Input: 321 S.W.3d at 682. A. Citizenship and Immigration Status As noted above, appellant’s citizenship status is not in dispute. The record reflects, and the State acknowledges, that appellant is not a United States citizen. B. Knowledge of Immigration Consequences Before examining the strength of the evidence of the appellant’s guilt, we must examine the record for any indication that the defendant knew the consequences of his guilty plea. VanNortrick, 227 S.W.3d at 713 (stating that the strength or weakness of the evidence against the appellant makes little difference to the harm analysis if the second factor above is not satisfied). To warrant reversal, the record must support an inference that the defendant did not know the consequences of his plea. Burnett, .-Dallas 2004, pet. ref'd) (<HOLDING>). We do not have a silent record. As explained Holdings: 0: holding that the defendants guilty plea was valid where the district court carefully questioned the defendant about whether he understood the consequences of his guilty plea 1: holding statements during voir dire and oral motion in limine were merely opaque references to deportation but  silent about whether appellant was actually informed that a guilty plea could result in his deportation and insufficient to support inference appellant knew consequences of his plea 2: holding trial judges statement during voir dire that appellant likely would be automatically deported if released on probation along with references to deportation by defense counsel and prospective jurors supported inference that appellant knew consequences of plea 3: holding that appellant was harmed by trial courts failure to admonish him of deportation consequences of his guilty plea where the record was silent about whether he was ever specifically informed that his guilty plea could result in deportation and record showed that appellant moved to the united states from korea 4: holding record insufficient to support inference appellant knew consequences of his plea when record is silent about whether appellant was actually informed that a guilty plea could result in his deportation


Input: re Dembiczak, 175 F.3d 994, 999 (Fed.Cir.1999). “The absence of ... a suggestion to combine is dispositive in an obviousness determination.” Gambro Lundia AB v. Baxter Healthcare Corp., 110 F.3d 1573, 1579 (Fed.Cir.1997). 3. Remaining Issues of Fact The parties dispute the extent to which the prior art could have suggested its combination to create the ’014 patent. (PL Reply Memo, on Validity at 9; Def. Memo, on Validity at 8). That determination, whether there is a suggestion or motivation to modify a prior art reference, is a question of fact to be decided prior to the ultimate conclusion of obviousness. SIBIA Neurosciences, Inc. v. Cadus Pharmaceutical Corp., 225 F.3d 1349, 1356 (Fed.Cir. 2000); Tec Air, Inc. v. Denso Manufacturing Michigan, Inc., 192 F.3d 1353, 1359 (Fed.Cir.l999)(<HOLDING>). It must therefore be determined if the Holdings: 0: holding that factual underpinnings of obviousness include whether reference provides motivation to combine its teachings with those of another reference 1: holding that obviousness is determined entirely with reference to a hypothetical person having ordinary skill in the art  and the actual inventors skill is irrelevant to the obviousness inquiry 2: holding of obviousness affirmed on the basis of the teachings of the prior art references in combination not on the basis of the contemporaneous invention 3: holding that obviousness analysis may include recourse to logic judgment and common sense available to a person of ordinary skill that do not necessarily require explication in any reference or expert opinion 4: holding that reference to ordinance is not improper reference to an external document because injunction sufficiently describes the act sought to be enjoined and reference to the ordinance as stated in the injunction is merely to give further notice as to the enjoined conduct but the reference was unnecessary to give the appellants sufficient notice of that conduct


Input: at the time of an accident. Cf. Argonaut Insurance Co. v. National Indemnity Co. (10th Cir. 1971), 435 F.2d 718; Hagans v. Glen Falls Insurance Co. (10th Cir. 1972), 465 F.2d 1249; Ryder Truck Lines v. Carolina Cas. Ins. Co. (Ind.App.1978), 372 N.E.2d 504; Allstate Insurance Co. v. Federal Insurance Co. (1974), 23 Md.App. 105, 326 A.2d 29. Conversely, there are also numerous cases that reject the notion that the I.C.C. regulations are determinative. Cf. Allstate Insurance Co. v. Liberty Mutual Insurance Co. (3rd Cir. 1966), 368 F.2d 121; Wellman v. Liberty Mutual Insurance Company (8th Cir. 1974), 496 F.2d 131; Vance Trucking Company v. Canal Insurance Company (D.S.C. 1966), 249 F.Supp. 33, aff’d (4th Cir. 1968), 395 F.2d 391, cert. denied, 393 U.S. 945, 89 S.Ct. 129, 21 L.Ed.2d 116 (<HOLDING>). The most recent decision in the area, and one Holdings: 0: holding that a defendant must have notice that the trial court might sentence him to death 1: holding that punitive damages are not duplicative since they are designed to punish rather than to compensate 2: holding that icc regulations are not designed to excuse a party from liability he might otherwise have 3: holding that when regulations are intended to have different purposes and are not dependent on each other they are not intertwined 4: recognizing that prison regulations designed to provide security are not only legitimate but are central to all other correctional goals


Input: because the patentee cancelled a claim covering “triple superphosphate” and expressly disclaimed that compound in his arguments to the examiner to gain patent allowance. Id. We reached a similar conclusion in Ballard Medical Products v. Allegiance Healthcare Corporation, 268 F.3d 1352, 1359-62, 60 USPQ2d 1493, 1499-1501 (Fed.Cir.2001), which involved means-plus-function claims. There, the patentee asserted that the accused devices were equivalents, under paragraph 6 of section 112, to the claimed function’s corresponding structure. Id. at 1359, 268 F.3d 1352, 60 USPQ2d at 1499. We rejected that assertion on the basis of prosecution disclaimer: When a patentee advises the examiner (and the public after patent issuance) that a particular structure is not within his invention, the pate 7 (<HOLDING>). To balance the importance of public notice Holdings: 0: recognizing due process right to notice and informal hearing in school disciplinary process 1: holding regular use of process cannot constitute abuse of process 2: holding that when a prisoners deliberate indifference claim is covered by the eighth amendment the substantive due process claims are duplicative and thus the substantive due process claims should be dismissed 3: holding that to establish a claim for abuse of process a claimant must demonstrate  an act in the use of the process not proper in the regular prosecution of the proceedings 4: holding that the limitation sputterdeposited dielectric excluded a twostep process because the patentee argued during prosecution that the metal oxide in the process was directly deposited and that the invention thus only covered a onestep process


Input: tended to prove that Dingle was credible in that it explained the inconsistencies in her statements. See Lawhorne v. State, 500 So.2d 519, 520 (Fla.1986) (“The credibility of witnesses is always in issue.” (citing Charles W. Ehrhardt, Florida Evidence § 401.1 (1984 ed.))). The probative value of the testimony was not outweighed by its prejudicial effect. This is especially so when compared to the cases approving such testimony in the context of gang activity, where, like the witness, the defendant is a member of the gang. Moreover, in the above cases, there is usually something more — such as an express code of silence and a legitimate fear of retaliation — than the general reluctance to speak truthfully here. In those circumstances, the testimony, unlike the testimony here, 4) (<HOLDING>). The instant case involves the admission of Holdings: 0: holding that prosecutors reference to cooperation agreements with government witnesses was not plain error 1: holding prosecutors reference to defendant being only witness in courtroom during testimony as tailoring opportunity not plain error 2: holding under plain error review that prosecutions repeated references to defendants silence in a one day trial were not harmless despite defendants responsive comments on silence 3: holding that prosecutors reference to code of silence among witnesses to shooting not plain error where argument finds support in record 4: holding that prosecutors reference to the fact that not one white witness has produced contradictory evidence was plain error


Input: 25 I. & N. Dec. 850 (BIA 2012), a precedential decision not cited by the BIA here, the BIA held that a “formal judgment of guilt entered by a court qualifies as a conviction under section 101(a)(48)(A) so long as it was entered in a ‘genuine criminal proceeding,’ that is, a proceeding that was ‘criminal in nature under the governing laws of the prosecuting jurisdiction.’ ” Id. at 852 (quoting Matter of Rivera-Valencia, 24 I. & N. Dec. 484, 486-87 (BIA 2008)); see id. at 853-55. Because the BIA did not consider Cuellar-Gomez when it found that Moreno was ineligible for cancellation, we remand to the BIA for it to consider in the first instance whether Moreno’s infraction is a “conviction.” See INS v. Ventura, 537 U.S. 12, 16-17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam) (<HOLDING>); Delgado v. Holder, 648 F.3d 1095, 1108 (9th Holdings: 0: holding that when an agency has not reached an issue the proper course is to remand to the agency to address it in the first instance 1: holding that this court has discretion to either address or remand arguments presented to it in the first instance provided it otherwise has jurisdiction over the claim 2: holding that a court of appeals should remand a case to an agency for decision of a matter that statutes place primarily in agency hands 3: holding that this court must remand to the bia to allow it to address in the first instance an issue that it has not yet considered 4: holding deference to agency methodology appropriate unless agency failed to address an essential factor


Input: and the application paragraph on murder as a party, neither specifically explained to the jury which facts it could properly consider to convict appellant as a party. In fact, the instructions were worse than that because, rather than merely withholding information from the jury, the application paragraph affirmatively misled the jury by telling the jury it could convict appellant for a murder committed by Jermarxian Green-even if appellant was not a party to the murder. This was a legally incorrect instruction that completely misstated the law, and to worsen matters, we cannot tell if the jury convicted appellant as a party based on the legally incorrect instruction or as a principal. See id. at 171-73; Guevara v. State, 191 S.W.3d 203, 207 (Tex.App.-San Antonio 2005, pet. ref'd) (<HOLDING>); see also Campbell v. State, 910 S.W.2d 475, Holdings: 0: holding no legal duty exists to prevent unforeseeable criminal acts 1: holding that the trial court committed reversible error in instructing the jury on a principals theory because there was no evidence that the appellant acted in concert with anyone in committing the charged offenses 2: holding that instructing the jury on a legal duty theory when appellant had no legal duty to prevent the commission of the offense was error 3: holding that the failure to plead a particular legal theory when the plaintiff pled two related legal theories was not a bar to recovery 4: holding that counsel was not ineffective in failing to request a charge on the lesserincluded offense when the evidence showed either the commission of the completed offense as charged or the commission of no offense such that the defendant was not entitled to a charge on the lesser offense


Input: is equal to or greater than the amount of his debt, his right of possession ceases, and the grantor or his legal representatives, and, if none, his heirs, may bring an action to recover the land.”). “The right of the grantor to redeem by the payment of the debt is never barred, so long as the grantee recognizes a right to redeem, and equity would by analogy decree that the right to redeem would in no event be lost until after the expiration of 10 years from the date of the last recognition by the grantee of the right to redeem.” Gunter, 38 S.E. at 374. While the transaction in the case sub judice is a Security Deed and not a mortgage, the debtor still has a right of redemption. See Wynndam Court Apartment Co. v. First Fed. Sav. & Loan Ass’n of Atlanta, 204 Ga. 501, 50 S.E.2d 611 (1948) (<HOLDING>). In the case sub judice the letter sent Holdings: 0: holding that the assignment of rents clause contained in the mortgage was enforceable during the period of redemption for the purpose of securing the 300000 deficiency existing after foreclosure of the mortgage 1: recognizing that the right to seek reformation of a deed is limited to the original parties to the deed and their successors in title 2: holding that a mortgage or modification of a mortgage is not a good or a service under the dtpa 3: holding that the right of redemption is treated the same whether in a mortgage or security deed 4: holding that upon execution of the mortgage the mortgagor retains only an equity of redemption accompanied by a right to possession


Input: argument that Defendants treated similarly situated white inmates more favorably than him to be unpersuasive. Plaintiff asserts that the named white inmates must be considered similarly situated because they were found to be in violation of prison rules for playing either their television or radio too loudly. However, the decision as to what sanction to impose for a particular rule violation may be based on the factors set out in Section III(D)(12) of the ISP Handbook. Giles has not shown himself to be similarly situated, considering such factors, with the three white inmates who received sanctions for playing either their television of radio too loud. See generally Anderson v. University of Wisconsin, 665 F.Supp. 1372, 1395 (W.D.Wis.1987), aff'd, 841 F.2d 737 (7th Cir.1988) (<HOLDING>). This conclusion is exemplified by the fact Holdings: 0: holding that comparison between plaintiff africanameriean law student who was expelled for academic reasons and white student with psychiatric disorder was like comparing apples with oranges 1: holding that a white office was not similarly situated to a black officer who was charged with more offenses than the white officer 2: holding that no special relationship existed between the school and student 3: holding that juveniles use of the f word in dispute with principal and another student over whether student had stolen her money did not constitute fighting words 4: holding proper remedy when a christian student newspaper was denied student activities funds was to make funds available to the religious paper not to deny funds to nonreligious student groups


Input: section, referenced in 18 U.S.C. § 1960(b)(1)(B), defines a “money transmitting business” as any business required to file reports under 31 U.S.C. § 5313, which in turn relates to “domestic financial institution[s].” Title 31 U.S.C. § 5312(b)(1) states that the term “domestic financial institution,” for purposes of that subchapter, “applies] to an action in the United States of a financial agency or institution.” Because Mazza-Alaluf raised his Title 31 argument in the district court only as it pertained to the government’s reliance on a § 1960(b)(1)(B) theory of guilt, we review his recasting of that claim to challenge his § 1960(b)(1)(A) conviction for plain error, and we identify none here. See Fed.R.Crim.P. 52(b); see also United States v. Needham, 604 F.3d 673, 678 (2d Cir.2010) (<HOLDING>). Mazza-Alaluf contends that for him to be Holdings: 0: holding that even if a defendant is able to show that there was a plain error that affected his substantial rights a court of appeals is not required to reverse a conviction unless it finds that the error seriously affected the fairness integrity or public reputation of judicial proceedings 1: holding that a plain error did not seriously affect the fairness integrity or public reputation of the judicial proceedings even though the error was assumed to have affected substantial rights 2: recognizing that plain error analysis requires 1 error 2 that is plain 3 that affects defendants substantial rights and 4 that seriously affects fairness integrity or public reputation of judicial proceedings 3: holding that plain error will be identified only if 1 there is error 2 that is clear or obvious rather than subject to reasonable dispute 3 that affects defendants substantial rights and 4 that seriously impugns fairness integrity or public reputation of judicial proceedings 4: holding that failure to charge drug quantity in the indictment and submit it to the jury seriously affects the fairness integrity and public reputation of judicial proceedings so that the court should exerciseits discretion to recognize the error


Input: see, e.g., SBKC Serv. Corp. v. 1111 Prospect Partners, L.P., 105 F.3d 578 (10th Cir.1997); Milk ‘N’ More, Inc. v. Beavert, 963 F.2d 1342 (10th Cir.1992), all involve situations where a case ended up in a forum that a party argued was not contemplated by the forum-selection clause in question. For example, in the K & V Scientific case, the plaintiff filed an action in New Mexico, but the clause in question stated that “[jurisdiction for all and any disputes arising out of or in connection with this agreement is Munich.” K & V Scientific, 314 F.3d at 496. Likewise, in Excell, the plaintiff challenged removal to a Federal District Court in light of contract language which named the State court as the proper venue. Excell, 106 F.3d at 320; see also Milk ‘N’ More, 963 F.2d at 1343, 1346 (<HOLDING>). None of these cases involve the situation Holdings: 0: holding that a forumselection clause was mandatory because it provided for exclusive jurisdiction and venue in a particular court 1: holding that remand to state court was appropriate where mandatory forumselection clause placed venue in a specified county of the state 2: holding that a forumselection clause was mandatory where it stated that for any action brought to enforce such terms and conditions venue shall lie exclusively in clark county washington 3: holding that venue in the district identified in  9 was mandatory 4: holding that if a modification petition is filed in a county where venue is appropriate it is improper to transfer the venue to another county merely because venue also would have been proper in the other county however once an enforcement proceeding is undertaken in an appropriate venue venue is improper in a different county over a subsequently filed petition to modify the decree which was the subject of the enforcement proceedings


Input: must comply with that section. Statutory provisions creating rights and remedies are mandatory and exclusive and must be complied with in all respects. Id. at 937. The court held that the notice requirements of section 42.21 are jurisdictional and affirmed the trial court’s dismissal. The court in Poly-America distinguished its holding from the decision in Corchine Partnership v. Dallas County Appraisal District, 695 S.W.2d 734 (Tex.App.—Dallas 1985, writ ref’d n.r.e.) in that the plaintiffs in Corchine had failed to give notice to the review board as required by section 42.06. However, the court in Corchine found that section 42.06(b) notice requirements were jurisdictional as well. See also Rockdale I.S.D. v. Thorndale I.S.D., 681 S.W.2d 225 (Tex.App.—Austin 1984, writ ref’d n.r.e.) (<HOLDING>). The property owner in Herndon Marine Holdings: 0: holding that regulatory requirements are not jurisdictional in nature 1: holding that notice requirements of 4206a are jurisdictional 2: holding service requirements under fedrcivp 4 to be jurisdictional 3: holding that notice requirements under former rule 40b1 are jurisdictional 4: holding that notice requirements under rule 252b3 are jurisdictional


Input: court may also depart if the government’s refusal to file a substantial assistance motion is attributable to bad faith, even when the plea agreement specifies that the decision whether to file is in the government’s sole discretion. See United States v. Isaac, 141 F.3d 477, 484 (3d Cir.1998). While Mr. Khan makes the assertion that he “vigorously assisted authorities,” he does not point to any concrete actions on his part other than bringing the authorities to the apartment in Brooklyn where he received the heroin. See Pet. Mot. at 3. The government acknowledged this act but determined it was not sufficient to warrant a substantial assistance motion. Mr. Khan fails to allege any suspect motive on the part of the government. See United States v. Higgins, 967 F.2d 841, 845 (3d Cir.1992) (<HOLDING>). Given the quantity of heroin involved and Holdings: 0: holding that motive is circumstantial evidence of intent 1: holding 404b evidence admissible under intent exception but not motive exception where motive not contested 2: holding trial court improperly instructed jury in trial for possession of cocaine base with intent to distribute that evidence of defendants similar acts of possession was admissible to show motive where motive was not element of crime charged and defendant did not contest motive 3: holding extrinsic evidence of defendants motive to possess gun inadmissible where defendant did not contest the issue of motive 4: holding that the mere fact that a defendant provided assistance and the prosecutor did not file a motion is not sufficient evidence of suspect motive


Input: It is established that when a hearing officer awards relief requested by the parents, the hearing officer’s decision constitutes an agreement between the State and the parents sufficient to change the placement of a child. See 34 C.F.R. § 300.518 (“If the hearing officer in a due process hearing ... agrees wit officer’s decision was incorrect, the District was not free to simply ignore its obligation to comply with the HOD. Under these circumstances, the parents were within their rights to enroll M.M. at Ivym-ount, and are entitled to reimbursement for their expenses. See 20 U.S.C. § 1415(i)(2)(C)(iii) (authorizing court to grant relief “as the court determines is appropriate” in IDEA action); Forest Grove School Dist. v. T.A., 557 U.S. 230, 246, 129 S.Ct. 2484, 174 L.Ed.2d 168 (2009) (<HOLDING>); District of Columbia v. Vinyard, 901 Holdings: 0: holding that the local educational agency is the appropriate target of a suit under the idea and that private entities cannot be held liable under the statute as the idea obligates the statenot the private schoolto ensure that such children are provided special education and related services in accordance with an individualized education program  1: recognizing that a school district must be a prevailing party in order to be entitled to attorneys fees under the idea 2: holding reimbursement for private tutoring available under the idea 3: holding that court may order reimbursement of private school expenses incurred by parents of handicapped child in successful challenge to iep brought under eha predecessor to idea stating that it is beyond cavil that appropriate relief would include a prospective injunction directing the school official to develop and implement at public expense an iep placing the child in a private school and affirming reimbursement award against petitioner local school district  4: recognizing that the idea authorizes courts to order reimbursement of the costs of private specialeducation services in appropriate circumstances


Input: U.S. 159, 165-66, 105 S.Ct. 3099, 3104-05, 87 L.Ed.2d 114 (1985); Will v. Michigan Dept’ of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989). Section 1983 does not provide for a remedy against the state; such- an action is barred by the Eleventh Amendment. Kentucky v. Graham, 473 U.S. at 165-66, 105 S.Ct. 3099; Will, 491 U.S. at 71, 109 S.Ct. at 2312. Thus, to the extent the plaintiffs’ claims against Sheriff Ackal and Deputy Garcia are asserted against these defendants in their official capacities, such claims are barred by the Eleventh Amendment and are DISMISSED WITHOUT PREJUDICE herein. The Court now turns to the defendants’ defense of qualified immunity in their individuals capacities. See, generally, Kentucky v. Graham, 473 U.S. at 166-67, 105 S.Ct. 3099 (<HOLDING>); Sanders—Burns v. City of Plano, 594 F.3d 366, Holdings: 0: holding suits against state officials for prospective injunctive relief are permissible because they are in effect suits against the officials in their individual capacities 1: holding that government entities may not assert qualified immunity 2: holding that defendants are not entitled to qualified immunity 3: holding that qualified immunity is not merely immunity from damages but also immunity from suit 4: holding officials in their individual capacities may  be able to assert personal immunity defenses including qualified immunity that are not available in officialcapacity suits


Input: situation.” Id. at 396-97. Nevertheless, the applicable standard is an objective one: “[T]he question is whether the officers’ actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Id. at 397. In the present case, Wilkey was not committing any crime when Argo confronted him. Nor was Wilkey resisting arrest or even seeking to avoid an encounter with law enforcement officers. Instead, he consented to a pat down search prior to Argo’s use of force against him. This search revealed that Wilke degree of force is necessary, gratuitous acts against a person who has been seized might violate the Fourth Amendment’s reasonableness standard. Phelps v. Coy, 286 F.3d 295, 297, 301-02 (6th Cir.2002) (<HOLDING>); Santos, 287 F.3d at 853 (explaining that Holdings: 0: holding that suspect was not in custody when officer handcuffed him for officer safety while transporting him to police station 1: holding that defendant was arrested  when the police officer took physical custody of him by grabbing his arm and returned him to the hotel for detention there 2: recognizing the necessity of analyzing officer coys use of force against phelps in segments where coy arrested phelps placed him in handcuffs took him to the police station for booking and then beat him after he raised his leg in a manner that coy perceived to be a threat to another police officer 3: holding the defendant was not under arrest when police asked him to go to the station and then offered him a ride because he did not have transportation 4: holding that police executed an illegal arrest when they took a teenage suspect from his home and brought him in handcuffs to the police station for questioning


Input: App 8, 288 Wis. 2d 804, 709 N.W.2d 497, the defendant bears a heavy burden in attempting to convince a reviewing court to set aside a jury's verdict on insufficiency of the evidence grounds. Id., ¶ 22 (citing State v. Allbaugh, 148 Wis. 2d 807, 808-09, 436 N.W.2d 898 (Ct. App. 1989)). ¶ 23. In Booker's trial, the girls' and the detective's testimonies regarding the content of the tape were admitted to prove the "harmful material" element of Wis. Stat. § 948.11. All of the’ witnesses explained that the video's dominant focus was on nudity and explicit sexual acts and suggested that the video had no additional plot line, meaningful dialogue or other notable qualities or characteristics. The girls characterized it as a "porno" video. Their descriptions of what they saw provi Cir. 1969) (<HOLDING>); State v. Tee & Bee, Inc., 229 Wis. 2d 446, Holdings: 0: recognizing that the dc circuit has stated that by attempting to evaluate the credibility of opposing experts and the persuasiveness of  competing studies the district court conflates the questions of the admissibility of expert testimony and the weight appropriately to be accorded such testimony by a factfinder  1: holding that issues of prurient appeal and offensiveness to contemporary community standards were appropriately decided by a jury notwithstanding the lack of expert testimony 2: holding that whether and to what extent a witnesss testimony should be believed is a matter to be decided by the jury that saw and heard the testimony not by an appellate court reviewing a transcript 3: holding expert testimony was not required where jury is capable of determining existence of duty 4: holding that defendants truthfulness and the credibility of and weight to be given expert medical testimony are issues of fact for jury


Input: jobs are not the same; therefore, they are not equal. Much of the precedent regarding unequal jobs involves comparing two jobs with a common core of duties, but with the higher-paid job having additional duties. See, e.g., Horn v. Univ. of Minn., 362 F.3d 1042, 1045-46 (8th Cir.2004) (finding that the jobs of two hockey coaches were not equal because the female hockey coach served as a public representative to the hockey team, in addition to the administrative duties she had in common with the male hockey coach), McLaughlin v. Esselte Pendaflex Corp., 50 F.3d 507, 513-14 (8th Cir.1995) (finding two jobs not equal because male employee performed other tasks in addition to the tasks female employee had previously performed), Krenik v. County of Le Sueur, 47 F.3d 953, 961 (8th Cir.1995) (<HOLDING>). Simpson did not attempt to prove that she and Holdings: 0: holding two maintenance employees jobs not equal where male maintenance engineer had supervisory duties in addition to the job functions that female assistant performed 1: holding that a change in job duties was not an adverse employment action where the new job duties did not constitute qualitatively inferior work requiring any less skill or knowledge 2: holding that under the first amendment speech can be pursuant to a public employees official job duties even though it is not required by or included in the employees job description or in response to a request by the employer 3: holding that an employers policy requiring female employees to make larger pension fund contributions than male employees was discriminatory on its face in violation of title vii 4: holding that garcetti barred claims involving speech not necessarily required by the plaintiffs job duties but nevertheless  related to his job duties


Input: Additionally, William's claims of procedural error are meritless. Therefore, we AFFIRM the decision of the superior court. 1 . AS 22.20.020(c) states, in relevant part: If a judicial officer denies disqualification the question shall be heard and determined by another judge assigned for the purpose by the presiding judge of the next higher level of courts or, if none, by the other members of the supreme court,. 2 . Capital Info. Group v. Office of the Governor, 923 P.2d 29, 41 (Alaska 1996). 3 . R.J.M. v. State, 946 P.2d 855, 869-70 (Alaska 1997) (internal quotation marks omilted). 4 . Alaska R. Civ. P. 52(a). 5 . AS 22.20.020(a)(9). 6 . See Amidon v. State, 604 P.2d 575, 578 (Alaska 1979); Perotti v. State, 806 P.2d 325, 327 (Alaska App.1 , 767 So.2d 626, 627 (Fla. 3d DCA 2000) (<HOLDING>); but see Shank v. American Motors Corp., 575 Holdings: 0: holding that the judge cannot consider factual statements of counsel in a motion for summary judgment 1: holding that statements that employee was doing a good job are more akin to opinions than statements of fact and on this basis are not actionable in fraud and citing a state case as holding that neither opinions nor statement that are general and indefinite are representations of fact giving rise to a misrepresentation claim 2: recognizing that under the rule of necessity where all judges would be disqualified in a suit brought against every district and circuit court judge in the circuit none are disqualified 3: holding that judge should be disqualified for statements suggesting preexisting unfavorable opinions about the management and litigation tactics of the cruise line industry 4: holding that an order or judgment issued by a disqualified judge is void but not because the court lacked jurisdiction


Input: instruction notes that if the defendant is not also charged with malice murder, the words in parentheses should be omitted. See id. In this case, although Appellant was not indicted for malice murder, the trial court included the parenthetical words in its jury instruction on felony murder. The court also charged that if the jury found that Appellant was “guilty of the offense of murder with malice af n that the State had to prove malice aforethought for Appellant to be found guilty of felony murder made it harder for the State to make its case, since malice aforethought is not an element of felony murder (although it is not inconsistent with that crime). Instructional errors that could only benefit a defendant are harmless. See Sanders v. State, 283 Ga. 372, 375 (659 SE2d 376) (2008) (<HOLDING>); Brown v. State, 250 Ga. 66, 72 n. 4 (295 SE2d Holdings: 0: holding that trial court did not err in refusing to give charge because plaintiff failed to demonstrate that his requested charge was tailored to the evidence 1: holding that because a mutual combat charge authorizes a jury to find the defendant guilty of voluntary manslaughter in lieu of murder it is a charge that benefits a defendant and as such a convicted defendants complaint that it was improper to give the charge is without merit 2: holding that because trial court actually gave part of a jury charge that appellant claimed was improperly omitted and because remainder of courts charge adequately defined one of the legal terms at issue the courts jury charge taken as a whole was not misleading and did not constitute reversible error 3: holding that jurys failure to address first degree murder charge amounted to a verdict of not guilty on that charge 4: holding that failure to charge jury that state had burden of proving beyond a reasonable doubt that defendant did not act in the heat of passion was harmless because the evidence did not support a charge on passionprovocation manslaughter


Input: AS 29.35.210(a)(4) (authorlzmg boroughs to provide garbage services, subject to AS 29.35.050); AS 29.35.050(a)(1) (authorizing garbage collection); AS 29.35.050(a)(6) (authorizing garbage-collection fees); AS 29.35.050(a)(7) (authorizing penalties for garbage-ordinance violations). 10 . AS 29.35.400 ("A liberal construction shall be given to all powers and functions of a municipality conferred in this title."). 11 . Kenai Peninsula Borough v. Associated Grocers, Inc., 889 P.2d 604, 606 (Alaska 1995). 12 . Id. (quoting AS 29.35.410). 13 . AS 29.35.050(a)(5)-(6). 14 . See AS 29.45.300(b) (providing property tax lien "is prior and paramount to all other liens or encumbrances against the property""). 15 . AS 29.35.125. 16 . Fairbanks N. Star Borough v. Howard, 608 P.2d 32, 34 (Alaska 1980) (<HOLDING>). 17 . Id. Following our Howard opinion, the Holdings: 0: holding that iowa sales and use tax law as amended is of general application 1: holding that forced sales of capital assets constitute sales for tax purposes and emphasizing salelike characteristics rather than voluntariness of transaction 2: holding that states have authority to tax sales of cigarettes to nonmembers of the tribe 3: holding property lien for nonpayment of sales tax was beyond boroughs authority to collect sales tax 4: holding that the essential purpose of use tax is the recoupment of lost sales tax revenue


Input: that use of undisclosed information will violate due process because of the risk of error.” Id. But the third Mathews factor — the government’s interest in maintaining national security — supports OFAC’s position. Given the extreme importance of maintaining national security, we cannot accept AHIF-Oregon’s most sweeping argument — -that OFAC is not entitled to use classified information in making its designation determination. See generally Gen. Dynamics Corp. v. United States, — U.S. -, 131 S.Ct. 1900, 1905, 179 L.Ed.2d 957 (2011) (“[Pjrotecting our national security sometimes requires keeping information about ou te, 327 F.3d 1238, 1241-43 (D.C.Cir.2003) (following NCORI and describing in detail its holding on this point); United States v. Ott, 827 F.2d 473, 477 (9th Cir.1987) (<HOLDING>); cf. Mohamed v. Jeppesen Dataplan, Inc., 614 Holdings: 0: holding that the right of access to government information or sources of information within the governments control is not mandated by the first or fourteenth amendments 1: holding that states inadvertent or negligent destruction of evidence did not violate defendants due process rights 2: holding that in a military criminal trial the governments use of classified information without permitting the defendant or his lawyers to view the information did not violate the defendants due process rights 3: holding that due process was violated where a death sentence was imposed based on information in a presentence report and the defendant was not given an opportunity to deny or explain the information 4: holding that in a designation of a foreign terrorist organization under the antiterrorism and effective death penalty act of 1996 aedpa the governments use of classified information without permitting the organization to view the information did not violate the organizations due process rights


Input: plain error review available for errors relating to alleged improper remarks being made during closing argument, our prior case law relating to the waiver of issues on appeal stemming from improper closing arguments that were not objected to at trial remains unaffected by OCGA § 24-1-103 of Georgia’s new Evidence Code.”). Further, this Court is unswayed by Durden’s claim that the prosecutor’s statement in closing argument amounts to an infringement on Durden’s constitutional right to remain silent. Because Durden did not, in fact, testify at trial, the prosecutor’s rejoinder was a permissible attempt to correct defense counsel’s misstatement, rather than an impermissible effort to comment on Durden’s failure to testify. See Jones v. State, 123 Ga. App. 310, 311 (180 SE2d 603) (1971) (<HOLDING>) (citation and punctuation omitted). Further, Holdings: 0: holding that the judges entry into the jury room constituted reversible error 1: holding that error in denying such challenge is reversible error without demonstration of prejudice 2: recognizing potential reversible error by disclosing defendants prior jury conviction 3: recognizing that the mere fact that the jury is made aware that the defendant is making an unsworn statement does not result in reversible error 4: holding that a failure to instruct the jury on additional uncharged conspiracies is not reversible error so long as the jury is instructed that the government has the burden to prove the charged conspiracy


Input: supra, a case which the majority addresses peripherally, we answered the question of whether the Legislature’s delegation of the power to appoint commissioners serving on the Commission on Medical Discipline to a private organization, violated the gubernatorial power provisions of the Constitution and the separation of powers doctrine in the Declaration of Rights. Chief Judge Murphy, writing for this Court, summarized this Court’s jurisprudence and succinctly and clearly articulated that the power of appointment is not an intrinsic executive function, but rather, that the Legislature can modify, control, and abolish any office it has created: [This question] was considered by the Court in Davis v. State, 7 Md. 151 (1854), and Baltimore v , 164 Md. 101, 105-07, 164 A. 155, 156-57 (1933) (<HOLDING>). The majority’s haste to formulate an opinion Holdings: 0: holding that an employee had a legitimate expectation of privacy in his office even though the papers seized from the office were not the property of the employee 1: recognizing that a prosecutors office is an entity and that information in the possession of one attorney in the office must be attributed to the office as a whole 2: holding that the prohibition of section 35 article iii against the increase or diminution of compensation for public officers applied to the treasurer of calvert county and therefore even though the legislature retained the power to alter or abolish the office it could not change the treasurers salary while in office 3: holding that the requirement that the county seek recommendations for appointments to a civil office from a private corporation was not constitutionally repugnant because where the office was created by the legislature the legislature retains the control over that offices method of appointment 4: holding that the governor had no power to make the appointment of officer of the school commissioner for cecil county without the consent of the senate when the office was not vacant because the legislature which had created and therefore controlled the office had not delegated that power to the governor


Input: faked left syndrome accident. On appeal, the Estate concedes that the instruction is a correct statement of the law and that it was not covered by other instructions. However, the Estate contends that the instruction was not supported by the evidence in the record because the alleged sudden emergency was the faked left syndrome and the faked left syndrome does not apply to the accident in question. As discussed supra, no evidence was presented to support the applicability of the faked left syndrome, and the trial court abused its discretion by admitting the testimony regarding the faked left syndrome. Consequently, we conclude that the trial court abused its discretion by instructing the jury regarding sudden emergency. See, e.g., Collins v. Rambo, 831 N.E.2d 241, 249 (Ind.Ct.App.2005) (<HOLDING>). We address the ramifications of this abuse of Holdings: 0: holding trial court erred by instructing jury that employer would be liable under burk if plaintiff showed improper motive was a factor in the decision to discharge him rather than a significant factor 1: holding that defendant failed to plead sufficient facts and instructing the trial court to dismiss the plaintiff from the case 2: holding that sudden emergency is an affirmative defense which must be specifically plead 3: holding that trial court erred by instructing jury regarding sudden emergency 4: holding that trial court erred in instructing the jury on unavoidable accident when no evidence supported its submission


Input: clock until August 21,2012. We further reject Eccleston’s challenge to the delay occurring between the original August 21, 2012 trial date and the actual start of trial on September 11, 2012. Ec-cleston apparently takes issue with government counsel’s request for this additional delay, even though government counsel indicated that he was willing to go forward with trial on August 21 if the court so ordered. The district court granted the government’s request due to counsel’s serious medical situation. Unavoidable health concerns are a valid reason for granting a reasonable delay. United States v. Trotman, 406 Fed.Appx. 799, 805 (4th Cir.2011) (unpublished); see also United States v. Hale, 685 F.3d 522, 535 (5th Cir.2012); United States v. DiTommaso, 817 F.2d 201, 210 (2d Cir.1987) (<HOLDING>). The district court did not clearly err in Holdings: 0: holding ends of justice provision was intended to enable plaintiffs to bring all members of nationwide rico conspiracy before a court in a single trial 1: holding that fivemonth openended continuance based on ends of justice did not violate speedy trial act 2: holding that a new trial was warranted where the prosecutor stated as the bible says and the murderer shall be put to death 3: holding that a seven week suspension of the speedy trial clock was warranted under the ends of justice provision where the chief prosecutor was ill and new assistant prosecutors required time to prepare for trial 4: holding that speedy trial act requires that an ends of justice continuance be specifically limited in time


Input: Evans rationale would seem inapplicable whenever the mistake was instead attributable to the law enforcement agency”); cf. Groh v. Ramirez, 540 U.S. 551, 564, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004) (stating, in the context of qualified immunity, that “because petitioner [police officer] prepared the invalid warrant, he may not argue that he reasonably relied on the Magistrate’s assurance that the warrant contained an adequate description of the things to be seized”). But see United States v. De Leon-Reyna, 930 F.2d 396, 401 (5th Cir.1991) (en banc) (applying good faith exception to a police officer’s m heard is at best ambiguous, and nearly nonsensical in light of the immediately preceding exchange. Although Antone’s sub sequent conduct concededly makes this a clos (D.C.Cir.1991) (<HOLDING>). Moreover, as noted above, there was no Holdings: 0: holding cotenants consent to search valid where rodriguez who was asleep inside the house was not asked for his consent if police reasonably believed the consenter possessed common authority over the premises 1: holding that the insurer is not bound by acts of the agent which are beyond the scope of his authority when the insured has notice of the limitations upon an agents authority or when the circumstances are sufficient to suggest that an inquiry should be made as to such limitations 2: holding that a principal is not hable for the actions of an agent when these actions exceed the agents authority and the thirdparty has knowledge that the agent does not have the authority asserted 3: holding that when an agent has limited authority and informs the third party of this limitation the principal is not bound by the agents actions that exceed that authority 4: holding that the agents superficial and cursory questioning of the consenting party did not disclose sufficient information for the agent reasonably to believe that she had common authority over the premises and that further inquiry was required under rodriguez


Input: statements). Even giving the confidential witness statements minimal weight, however, we do not doubt that sufficient facts have been presented to “raise a reasonable expectation that discovery will reveal evidence.” Twombly, 550 U.S. at 556, 127 S.Ct. 1955. We therefore conclude that Plaintiffs have adequately met the particularity requirement of Rule 9(b). B. Plaintiffs also appeal the dismissal of their § 11 claim for GAAP-based misstatements and omissions. The district court held that Plaintiffs failed to plead knowledge of falsity and therefore failed to state a claim. Defendants argue that we should affirm because the GAAP allegations are based on “soft information.” Cf. In re Almost Family, Inc. Sec. Litig., No. 3:10— CV-00520-H, 2012 WL 443461, at *4 (W.D.Ky. Feb. 10, 2012) (<HOLDING>). We disagree that Plaintiffs’ GAAP allegations Holdings: 0: holding that some gaap allegations were soft information because the allegations in plaintiffs complaint focused on defendants beliefs about accounting numbers not on the actual data they reported 1: holding that the district court did not err in finding that the plaintiff failed to provide adequate notice of new allegations where the plaintiffs complaint gave the defendants no notice of the specific factual allegations presented for the first time in the plaintiffs opposition to summary judgment 2: holding that allegations that defendants designed and implemented improper accounting practices failed to state claim for securities fraud in absence of allegations of particular facts demonstrating how defendants knew of scheme at time they made their statements of compliance that they knew the financial statements overrepresented the companys true earnings or that they were aware of a gaap violation 3: holding that because the allegations purportedly suppressed by the government were not material an evidentiary hearing further exploring the  allegations themselves and the governments knowledge of the allegations is unnecessary 4: holding that the plaintiffs complaint was valid because despite general allegations it provided notice


Input: ‘a constitutional policy of finality for the defendant’s benefit.’ ” (citation omitted)). Second, it prevents “[pros-ecutorial] overreaching.” Johnson, 467 U.S. at 502, 104 S.Ct. 2536. The defendant’s interests are balanced with the state’s “right to one full and fair opportunity to convict those who have violated its laws.” Id. (citation omitted); see also Richardson v. United States, 468 U.S. 317, 330, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984) (characterizing a “full and fair opportunity to convict the defendant” as the opportuni ty to “present constitutionally sufficient evidence” to achieve a conviction). The plea bargaining context is not immune from a double jeopardy, successive prosecution, analysis. Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 71 L.Ed. 1009 (1927) (<HOLDING>); Ricketts v. Adamson, 483 U.S. 1, 8, 107 S.Ct. Holdings: 0: holding that attorneys admission to an element of the offense in the petitioners presence at a deportation hearing was binding on the petitioners 1: holding that factual basis had to be established at time of guilty plea not later in presentence investigation 2: holding that the denial of petitioners appeal to the bia would have put a reasonable person in the petitioners position on notice that something was wrong with his attorneys preparation for the removal hearing 3: holding that entering a guilty plea is an admission of guilt and a waiver of the right to jury trial 4: holding petitioners initial guilty plea to mail fraud later vacated by district court at request of petitioner could not then be put before a jury at trial as evidence of petitioners guilt


Input: similar results, generally holding that contingency fees are assets of the partnership. As an example, where one partner worked on contingency fee cases with which the clients indicated they wanted him to remain involved after dissolution, a court held that the contractual obligation to conclude the cases was part of the fiduciary duty owed amongst the partners. Resnick v. Kaplan, 49 Md.App. 499, 434 A.2d 582, 585, 587 (1981). Fees earned from cases pending at dissolution were partnership assets. Id. at 587. The court also affirmed that, although a client has the right to select the attorney the client wants, the client’s right does not diminish or change the fiduciary duties of the partners. Id. at 588. See also Jewel v. Boxer, 156 Cal.App.3d 171, 203 Cal.Rptr. 13, 16-17 (1984) (<HOLDING>); LaFond v. Sweeney, — P.3d -, -, No. 10CA2005, Holdings: 0: holding that when an attorney represents multiple clients and a dispute between the attorney and one client later occurs there is a waiver of the privilege but only by the client asserting the liability 1: holding that an attorney may only undertake to represent a new client against a former client  where there is no confidential information received from the former client that is in any way relevant to representation of the current client 2: holding income generated through the winding up of unfinished cases is allocated to the former partners and the right of the client to select an attorney of ones choice is irrelevant to the rights and duties between the parties 3: holding client is not liable for actions of attorney who misled client as to the status of case 4: holding an attorney is an agent of the client and therefore cannot conspire with the client


Input: questions of law (including interpretation of the Guidelines) and clear-error review of questions of fact,” United States v. Legros, 529 F.3d 470, 474 (2d Cir.2008). Contrary to Garcia’s assertion, the application of a base offense level increase by the district court without jury findings does not violate Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Judicial factfinding that results in an offense level increase under the Guidelines, which are now advisory, see United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), does not offend a defendant’s Sixth Amendment right to jury trial, as the Guidelines do not alter statutory maximum or minimum penalties. See Alleyne v. United States,—U.S.-, 133 S.Ct. 2151, 2163, 186 L.Ed.2d 314 (2013) (<HOLDING>); see also United States v. Singletary, 458 Holdings: 0: holding that facts that increase mandatory minimum sentences must be submitted to the jury but emphasizing that its ruling does not mean that any fact that influences judicial discretion must be foundby a jury 1: holding facts that increase the maximum penalty for a crime must be submitted to a jury and proven beyond a reasonable doubt 2: holding that any fact that increases mandatory minimum is element that must be proved beyond reasonable doubt 3: holding any fact other than prior conviction that increases statutory mandatory minimum is element of offense that must be submitted to jury and found beyond reasonable doubt 4: holding any fact that increases the mandatory minimum is an element that must be submitted to the jury


Input: of a firearm. And that conduct would not involve the use, attempted use, or threatened use of physical force against another person for U.S.S.G. § 4B1.2(a)(l). By contrast, if the shooter ignored telltale signs of the vehicle’s occupancy, such as its presence at a toll booth where the shooter “reasonably should know” the vehicle is occupied, the shooter’s intentional or knowing discharge of a firearm in the direction of the vehicle would violate 720 Ill. Comp. Stat. 5/24-1.2(a)(2) and in turn, such conduct would constitute a § 4B1.2(a)(l) “crime of violence.” Although the shooter may not have known of the vehicle’s occupancy, the shooter still used, attempted to use, or threatened to use physical force against another person. Cf. United States v. Tapia, 610 F.3d 505, 513 (7th Cir.2010) (<HOLDING>); People v. Juarez, 278 Ill.App.3d 286, 214 Holdings: 0: holding that there was sufficient evidence that the defendant was alleged to have violated 720 ill comp stat 52412a1 because the shooting occurred in the early hours of the morning when the home would likely be occupied and in fact was 1: holding that the facts that the vehicle described in the tip was parked outside the home that allen gave inconsistent answers to officers questioning and that in addition the defendant fit the physical description of the suspect were sufficient to support the officers reasonable inference that the defendant was actually the suspect and therefore that there was probable cause to arrest him 2: holding that the defendant lacked sufficient contacts with the forum state because there was no evidence the defendant knew where the product would be sold 3: holding that even if the industry and federal regulations evidenced an inherent danger and the defendant knew or should have realized that the device was or was likely to be dangerous for the use for which it was supplied there was a complete absence of evidence that the defendant had reason to believe that the plaintiff or its employees would not realize the danger 4: holding that reasonable suspicion existed for an investigatory stop of a vehicle the defendant was driving slowly in the early morning hours down a deadend street where businesses had previously been robbed where the defendant was dressed shabbily but the vehicle was real nice and where the defendant appeared to avoid the officers gaze in passing


Input: identification of Respondent would generally be sufficient to establish probable cause. See Escobedo, 623 F.2d at 1102 (relying on deposition of victim identifying petitioner after being shown a single photograph of petitioner in upholding finding of probable cause); see also Cervantes Valles, 268 F.Supp.2d at 773 (“In the domestic law enforcement context, an ordinary citizen’s eyewitness account of criminal activity and identification of a perpetrator is normally regarded as sufficient to supply probable cause.”) (citing Burbridge, 252 F.3d at 778). 3. Credibility of witnesses Respondent also questions the credibility of the witnesses that provided statements to Mexican law enforcement. However, as discussed above, “an accused in an extradition hearing has 1131 (C.D.Cal.2005) (<HOLDING>). Here, a witness’s lack of credibility may be Holdings: 0: holding that evidence not submitted to the district court cannot be part of the record on appeal 1: holding that the government may not introduce evidence obtained through violations of the fourth amendment 2: holding that respondent could not challenge the veracity or validity of a witnesss statement because a fugitive in international extradition proceedings is not permitted to introduce evidence that contradicts the evidence submitted by the requesting country 3: holding that the admission of a report was not hearsay because it was not offered to prove its truth but to impeach the veracity of the witnesss direct testimony 4: holding that trial court erred by not allowing the plaintiff to introduce evidence of prior dealings with the defendant


Input: one. We do not anticipate an escalation of such claims. The Legislature has provided a remedy to members of the public injured by “failure on the part of a public entity to provide an emergency warning signal or device when a condition exists constituting a ‘trap’ to a person using a street or highway with due care.” N.J.S.A. 59:4-4 comment. But the Legislature has closely limited that remedy by requiring compliance with N.J.S.A 59:4-2, which, among other things, requires a plaintiff to demonstrate that the public entity had actual or constructive notice of the dangerous condition and that the public entity’s conduct was “palpably unreasonable.” Those requirements are difficult to meet. See, e.g., DeBonis v. Orange Quarry Co., 233 N.J.Super. 156, 170-71, 558 A.2d 474 (App.Div.1989) (<HOLDING>). In addition, the Legislature has recognized Holdings: 0: holding that warrantless search as probation condition was a valid limitation to the defendants fourth amendment rights when defendant asserted the condition was not reasonably related to rehabilitation 1: holding that contractor owed general negligence duty to thirdparty by dangerous condition contractor created on road 2: recognizing that duty to warn of dangerous conditions could be based on constructive knowledge of that condition as well as actual knowledge 3: recognizing that before a special condition of probation may be imposed there must be an oral pronouncement of the condition at sentencing 4: holding that countys general knowledge that stones from quarry would occasionally create dangerous condition on road surface was insufficient to impute to county constructive knowledge of condition of road at time of motorcyclists accident because condition was dynamic rather than static and was not predictably recurrent


Input: challenge a vehicle search from passenger standing to seek suppression of evidence discovered in a vehicle as the fruit of an unlawful stop, detention, or arrest.”). Now, in response to the district court’s cue, Defendant has raised for the first time on appeal the contention that he was unlawfully detained. In the ordinary civil case, we would have little trouble refusing to address a new argument on appeal under these circumstances. See, e.g., Ramsey Winch Inc. v. Henry, 555 F.3d 1199, 1204 n. 6 (10th Cir.2009) (observing that an appellate court will generally “not resolve issues on appeal unless they are presented, considered, and decided by the district court”). But our criminal cases have been more cautious. See United States v. Zubia-Torres, 550 F.3d 1202, 1207 (10th Cir.2008) (<HOLDING>). Because there is no evidence in this case Holdings: 0: holding that plain error review is appropriate unless there is some evidence that the defendant made a knowing and voluntary waiver of a particular argument 1: holding a waiver of a substantial constitutional right must be a voluntary knowing and intelligent act 2: holding that a defendant must demonstrate a knowing waiver 3: recognizing that courts will enforce waiver of appeal rights when waiver is knowing and voluntary 4: holding that under the sixth amendment a criminal defendant may waive his right to counsel if that waiver is knowing intelligent and voluntary


Input: OF THE COURT PER CURIAM The Appellee herein was charged with driving under the influence of alcohol in October of 1988. A Motion in Limine to exclude the results of the chemical breath test was made by the defense based on a lapse of two hours between arrest and test. Said Motion was granted. The State appeals. Testing is unnecessary in order for the State to prove a case against a defendant charged with driving under the influence. See § 316.193(l)(a), Fla. Stat. (1987); Layman v State, 455 So.2d 607 (Fla. 5th DCA 1984), cert. denied, 459 So.2d 1040 (Fla. 1984) (<HOLDING>). Cf. State v McIntyre, 393 So.2d 16 (Fla. 2d Holdings: 0: holding that the statute describes but one offense which can be committed by either or both of two methods 1: holding that a statute must not be given the one of two reasonable interpretations which will render it unconstitutional 2: holding that tex transp code ann  545060a describes one offense 3: holding that counsel was not ineffective in failing to request a charge on the lesserincluded offense when the evidence showed either the commission of the completed offense as charged or the commission of no offense such that the defendant was not entitled to a charge on the lesser offense 4: holding that a defendants sentence is controlled by the law in effect at the time he committed the offense


Input: is, at best, in remission. A condition in remission is still a mental disease.” However, the state submitted no evidence that, at the time of the hearing, petitioner’s prior mental health disease was in remission. The only evidence submitted established that a year earlier petitioner had suffered from a medical disease. It is equally as inferable from that evidence that petitioner no longer suffers from a mental disease as it is that the disease continues but is in remission. Once petitioner offered evidence at the hearing that established that he currently no longer suffers from the disease, the state had the burden to overcome that evidence and to show that petitioner still suffers from a mental disease that is in remission. See Martin v. PSRB, 312 Or 157, 166, 818 P2d 1264 (1991) (<HOLDING>). Because the medical records do not suffice to Holdings: 0: holding that jeopardy does not attach in the administrative process preliminary to formal forfeiture proceedings even when the petitioner has filed a petition for remission or mitigation 1: holding that the state courts determination that the petitioner could not show prejudice because he did not allege that the witness was available to testify was a reasonable application of federal law to the facts of the case 2: holding that to continue jurisdiction over the petitioner it was necessary to show that he had a mental disease or defect which was in remission at the time of the hearing 3: holding that the state court ruling was objectively unreasonable where prosecution failed to present sufficient evidence that the petitioner murdered a known drug dealer although the state established that the petitioner planned to rob drug dealers for drugs or money the victim was a known drug dealer who kept drugs in his freezer and that freezer was open and empty after the homicide the petitioner and the victim had engaged in drug transactions in the past the petitioner had a motive because he had seen the victim make a pass at the petitioners girlfriend and the petitioner had possessed and once purchased the murder weapon and a similar gun was seen in his home two weeks before the murder evidence placing the petitioner at the scene was conspicuously absent leaving only a reasonable speculation that the petitioner was present 4: holding that trial court abused its discretion in denying petitioners request for counsel in evidentiary hearing where petitioner had requested counsel and had indicated in his motion that all documents had been prepared by prison law clerk he had only ninthgrade education he had no training in the law and he lacked the skills necessary to participate in hearing


Input: the intervention of a party with standing after an action has been filed “cannot cure any jurisdictional defect that would have barred the federal court from hearing the original action.” 7 Charles Alan Wright, Arthur R. Miller, et al., Federal Practice and Procedure § 1917 (3 brought this enforcement action, we lack jurisdiction. This conclusion un doubtedly applies to numerous other en- - forcement actions taken by the Bureau for the 18 months of its existence before Richard Cordray was properly confirmed by the Senate in July 2013. But while the Supreme Court understands the practical consequences of invalidating large numbers of agency actions, it has nevertheless done so when the law requires. See Noel Canning v. NLRB, 705 F.3d 490, 493 (D.C.Cir.2013), aff'd 134 S.Ct. 2550 (2014) (<HOLDING>); see also New Process Steel, L.P. v. NLRB, 560 Holdings: 0: holding employment contracts of former executive director of township community mental health board ultra vires and void ab initio though board members had staggered terms of appointment because the contracts extended beyond the term of the township supervisor in office at the time of the execution of the contracts and the board was appointed by the supervisor 1: holding that an action taken in violation of the automatic stay is void ab initio 2: holding void ab initio ordinance proscribing punishment in excess of that authorized in charter 3: holding that the denial of enforcement on the basis that the board lacked a proper quorum did not deprive the board of jurisdiction to consider the case anew 4: holding that because there was no quorum of validly appointed board members the nlrb lacked authority to act and the enforcement order was therefore void ab initio


Input: of a firearm during and in relation to the drug conspiracy and a carjacking incident) and Count 10 (knowingly possessing a firearm in furtherance of the drug conspiracy and possession with intent to distribute). The pre-sentence report stated that the mandatory minimum terms for these convictions were ten and five years, respectively. The Government objected, arguing that Count 10 constituted a second conviction under 18 U.S.C. § 924(c) and therefore the mandatory minimum for Count 10 should be 25 years. See 18 U.S.C. § 924(c)(1)(C)(i) (“In the case of a second or subsequent conviction under [18 U.S.C. § 924], the person shall ... be sentenced to a term of imprisonment of not less than 25 years.... ”); Deal v. United States, 508 U.S. 129, 131-33, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993) (<HOLDING>). The probation officer agreed with these Holdings: 0: holding that  924cs enhanced penalty for a second or subsequent conviction applies when the defendant is convicted of multiple  924c counts in a single proceeding 1: holding that post conviction hearing act is not available to juvenile proceeding since the child is not convicted of a crime 2: holding that issues underlying all counts were sufficiently intertwined that the separate appeal of the summary judgment counts would complicate the trial of the remaining counts 3: holding that where a statute provides for an enhanced penalty based on a defendants prior conviction the fact of conviction is a sentencing factor to be determined by the court rather than a jury 4: holding that severance was not required when a defendant was charged with five counts of forcible rape two counts of felonious restraint three counts of kidnapping two counts of armed criminal action two counts of forcible sodomy one count of second degree assault one count of first degree robbery and one count of stealing


Input: to the detriment of defendants, but also had ex post facto implications. Fell, 209 Ariz. at 80-81 ¶¶ 10-12, 97 P.3d at 905-06. No such concerns exist here. ¶ 16 We also reject the State’s argument, raised for the first time in its supplemental brief, that SB 1449 unconstitutionally disturbs victims’ rights “in the finality of a defendant’s conviction.” The Arizona Constitution provides that “a victim of crime has a right ... [t]o a speedy trial or disposition and prompt and final conclusion of [a] case after the conviction and sentence.” Ariz. Const, art. 2, § 2.1(A)(10) (“Victims’ Bill of Rights”). But that provision does not give victims a vested right to sustaining a conviction on appeal. See State ex rel. Thomas v. Klein, 214 Ariz. 205, 209 ¶ 14, 150 P.3d 778, 782 (App.2007) (<HOLDING>). Therefore, SB 1449 “is a valid exercise of Holdings: 0: holding unconstitutional definition of criminal offense in  1344016 insofar as it narrowed definition of victim in effect when victims bill of rights adopted 1: holding that an award of restitution is only for the loss caused by the specific conduct that is the basis of the offense of conviction 2: holding that the victims negligence is not a defense to criminal conduct 3: recognizing that the legislature may effectively limit the scope of the victims bill of rights by decriminalizing certain conduct or redefining the type of conduct that qualifies as a criminal offense 4: holding that a sentencing court may consider acquitted conduct or uncharged criminal conduct


Input: herself, to get her own meals, to perform household chores or to drive. Similarly, at work Gretillat found ways to perform tasks that otherwise might involve squatting, crouching, crawling or kneeling. For example, instead of squatting to get things out of the bottom of a refrigerator, Gretillat would bend over sideways, get a pair of tongs or a long-handled spoon or ask a co-worker to help. Gretillat’s admitted ability to compensate for her limitations weighs against a finding that she is disabled under the ADA. See Williams, 534 U.S. at 198, 122 S.Ct. 681 (directing district courts to analyze “the extent of the limitation ... in terms of [the plaintiffs] experience” and the individual’s ability to compensate for the impairment) (citing Albertson’s, 527 U.S. at 567, 119 S.Ct. 2162) (<HOLDING>); Ristrom, 370 F.3d at 769 (holding that the Holdings: 0: holding that an individual is presumed to intend the natural consequences of the individuals actions 1: holding that episodic multiple sclerosis is categorized as an impairment  that will consistently meet the definition of disability and a ministroke is categorized as an impairment that may be disabling for some individuals but not for others 2: holding that monocular vision is not invariably a disability but should be analyzed on an individual basis taking into account the individuals ability to compensate for the impairment 3: holding that the determination of whether an individual is disabled should be made with reference to measures that miti gate the individuals impairment including in this instance eyeglasses and contact lenses 4: holding that a claimants failure to list an impairment either in her application for disability benefits or through her testimony disposes of the claim because the alj was under no obligation to investigate a claim not presented at the time of the application for benefits and not offered at the hearing as a basis for disability


Input: the employee is performing work on the project,” as factors in selecting the winning bidder. See Cincinnati, OH., Code § 320-3(j)-(k) (2013). Thus, the Ordinance assesses bidders partially based on their compensation practices on non-City projects. Of course, the Ordinance only imposes this consideration on a select group of contractors: those contractors that affirmatively choose to bid on City projects. One district court that has considered this issue has held that the mere fact that the municipal ordinance applies only to contractors who affirmatively choose to bid on city projects dictates that the ordinance is “sufficiently tailored” to the municipality’s proprietary interests. See Associated Builders & Contractors, Inc. v. New Castle County, 144 F.Supp.3d 633, 639 (D. Del. 2015) (<HOLDING>). As discussed above, we decline to resolve the Holdings: 0: holding that an ordinance requiring bidders on county projects to participate in an apprenticeship program was sufficiently tailored to the countys proprietary interest because it only applied to bidders on the countys projects 1: recognizing that but for a provision in a countys charter allowing for appointment of the county manager for a fouryear term the countys legislators would be unable to appoint the county manager for a term extending into the term of the legislators successors 2: holding that even though the defendant believed the real estate projects he misrepresented were viable his belief did not negate his intent to inflict a genuine harm on the victims by depriving them of material information necessary to determine for themselves whether to continue their development projects thereby continuing or increasing their exposure to the risk of the projects failure 3: holding in a breach of contract action that a state statute established that employees have a right to rely on the layoff and termination procedures advanced by their employers and that to the extent that the government employer considered factors in addition to seniority ability and merit the countys termination of the plaintiffs employment was in violation of the county personnel management act 4: holding a county taxpayer has standing to bring a declaratory decree and injunctive action against public officials of the county when the action seeks to enjoin the grant of certain tax exemptions given to other taxpayers in the county on the ground that such exemptions violate specific limitations on the countys authority to grant tax exemptions imposed by the florida constitution


Input: cancel both the “plain and precise” one-year limitation Congress placed on a former spouse’s right to claim the benefits and the clear prohibition against subjecting an annuity to legal process. Id. (quoting King v. King, 225 Ga. App. 298, 483 S.E.2d 379, 383 (1997)). The Court thus found that the Virginia divorce decree, which would effectively negate this federal one-year limitation, was appropriately overridden by the SBP law because clear and substantial federal interests would “suffer major damage if the state law [were] applied.” Id. at 8, 539 S.E.2d at 725 (quoting Yazell, 382 U.S. at 352). The facts and federal law at issue in the instant case are easily distinguishable on all three of these points. First, FEGLIA does not creat 19 F. Supp. 2d 1134, 1137 (C.D. Cal. 1998) (<HOLDING>); Metropolitan Life Ins. Co. v. Pearson, 6 F. Holdings: 0: holding that employee spouses accrued but unvested retirement benefits are a contingent property interest and a community asset 1: holding that feglia preempted a state divorce decree which ordered the insured to maintain his fegli policy for the benefit of his children from his first marriage 2: holding a nonemployee spouse who holds a community pioperty interest in an employee spouses retirement benefits owns a community property interest in the latters iethement benefits as enhanced by eaily xetirement incentives 3: holding that to the extent that california community property law gave the insureds former spouses or his daughter an interest in his fegli benefits it conflicted with feglias order of precedence 4: holding that the asserted right of the insureds child based on his agreement with his mother during their divorce to name the child as his fegli beneficiary was preempted by feglia


Input: in the “terms and conditions of employment” did not provide defendants notice of claims other than those specifically alleged in the complaint); Davis v. Bethlehem Steel Corp., 600 F.Supp. 1312, 1318— 19 (D.Md.1985), aff'd, 769 F.2d 210 (4th Cir.1985) (in the context of tolling noting that “notice only of the fact that [defendants] were being charged with racial discrimination in any and all types of general employment practices ... does not give the defendants ... fair notice”). Nor do the specific references to pay in the Original and First Amended Complaints provide notice of a compensation discrimination claim. See Fontana v. Haskin, 262 F.3d 871, 877 (9th Cir.2001) (“Specific legal theories need not be pleaded so long as sufficient factual averments sho 67, 1171 (9th Cir. 2004) (<HOLDING>). Plaintiffs’ reliance on the language of the Holdings: 0: holding that a prisoners allegations that a corrections officer retaliated against the prisoner for the prisoners report charging the officer with misconduct properly stated a claim for retaliation noting that aji allegation of retaliation should not be ignored simply because the charge was later dismissed  1: holding that allegations that a prison guard retaliated against a prisoner by terrorizing him with threats of death if proved would constitute a violation of the prisoners first amendment rights 2: holding that not all adverse action taken against a public employee in retaliation for exercising first amendment rights is sufficient to support a cause of action under  1983 3: holding that student stated a claim for violation of his first amendment right to speech when he alleged that school officials prevented him from openly stating that he was homosexual and retaliated against him for doing so 4: holding that prisoners complaint alleging that he was punished for filing a grievance against a correctional officer was sufficient to provide notice of claim that he was retaliated against for exercising his first amendment rights


Input: 254 S.W.2d at 1011. Though DeToto’s affidavit does not explicitly state that Roberts refused to provide an affidavit, we believe the affidavit implicitly makes this contention through DeToto’s statement that he had spoken with Roberts and that Roberts had denied making the statements. 36 . Because we have found, based on the reasoning already discussed in this section, that appellant’s affidavits are not deficient, we need not address whether appellant’s affidavits are sufficient on some other basis. More specifically, we need not consider whether Roberts’ alleged statements to Clinton are admissible through Clinton because they constitute an admission by party-opponent. See Tex.R. Evid. 801(e)(2); Rodela v. Stale, 829 S.W.2d 845, 847-50 (Tex.App.-Houston [1st Dist] 1992, pet. ref'd) (<HOLDING>); see generally Randolph N. Jonakait, The Holdings: 0: holding that the confrontation clause of the sixth amendment is not violated by the admission of hearsay statements under the coconspirator exception to the hearsay rule where the defendant was able to confront and crossexamine the witness who claimed that the statements at issue were made 1: holding that a police officers notes were relevant as prior and possibly inconsistent statements made and recorded by the witness 2: holding that federal rule of evidence 8034 the hearsay exception for statements made for medical diagnosis or treatment does not apply to statements made by doctors 3: holding that a witness could testify about statements made to him by a police department investigator because the statements were an admission by partyopponent and were thus not excluded by the hearsay rule 4: holding that the sixth amendment confrontation clause was not violated by the admission of hearsay statements under a georgia statute permitting an exception for statements by coconspirators where there was sufficient indicia of reliability supporting the truth of the statements


Input: to Hilton. Alternatively, Hilton argues that Arlynn was the initial transferee because Video Depot’s ledger .appears to indicate that the cashier’s check was a “loan” to Arlynn. We address each of these arguments in turn. I. Arlynn’s Control over Video Depot While the Bankruptcy Code does not define “transferee,” it is widely accepted that a transferee is one who, at a minimum, has ‘“dominion over the money or other asset, the right to put the money to one’s own purposes.’ ” In re Bullion, 922 F.2d at 548 (quoting Bonded Fin. Servs., 838 F.2d at 893). The bankruptcy court determined that Arlynn did not have, dominion over the $65,-000. The court reasoned that although Arlynn controlled Video Depot’s operations and arranged for the cheek Inc.), 164 B.R. 117, 127 (Bankr.N.D.Cal.1994) (<HOLDING>); with Ross v. United States (In re Auto-Pak, Holdings: 0: holding that a trustee may settle with an initial transferee and still pursue recovery against a subsequent transferee but notwithstanding the trustee will still be required to prove that the transfers  were fraudulent and improper in connection with its suit against the subsequent transferee because the trustees settlement with the initial transferee did not involve any determination on the merits as to the initial transfers and in this way the subsequent transferee will be afforded its due process rights to contest the avoidability of these initial transfers 1: holding that principal who caused debtor to issue cashiers check to satisfy personal obligation was not initial transferee 2: holding that the principal of a corporate debtor does not become a transferee by the mere act of causing the debtor to make a fraudulent transfer 3: holding that agent of corporation who used corporate funds to secure personal loan was initial transferee 4: holding a party to be an initial transferee because she was given legal title to the funds


Input: evidence did not establish the existence of the disease. In his examination report, Dr. Rasmussen noted a smoking history of approximately twenty-five pack years that ended when Marshall stopped smoking in 1973. Contrary to this summary, however, hospitalization records that were submitted in evidence reveal that Marshall continued to smoke at least as late as October 1988. Reliance on an inaccurate smoking history provides a sufficient basis for entirely discrediting Dr. Rasmussen’s opinion con cerning causation. Because Dr. Rasmussen’s opinion was based on misinformation, the reliability of his opinion was undermined, much the same way that an opinion is undermined where it is based on invalid objective data. See, e.g., Lane v. Union Carbide Corp., 105 F.3d 166, 173 (4th Cir. 1997) (<HOLDING>). Moreover, although he included Marshall’s Holdings: 0: holding that because fibromyalgia is a disease that eludes objective measurement alj improperly discredited treating physicians disability determination based upon lack of objective evidence 1: holding that alj properly rejected opinions based on invalid objective studies 2: holding that seventh application for postconviction relief which was rejected because evidence on which it was based was not properly authenticated was properly filed 3: holding that doctors opinions are not due much weight when based solely on reports made by a patient that the alj found to be incredible 4: holding that animal studies can be a proper foundation for an experts opinion but that those opinions must be sufficiently supported by the animal studies on which they purport to rely


Input: or not the Cargill witnesses testified falsely is not a question this court can answer on judicial review, nor can this court decide that the arbitrators erred in concluding that Cargill employees did not lie, because this court “ ‘may not set an award aside simply because ... the arbitrators erred in ... determining the facts.’ ” UHC Management Co., 148 F.3d at 998 (quoting Stroh Container Co., 783 F.2d at 751). However, this court can properly consider whether the arbitration proceedings improperly precluded Hoffman from discovering or presenting the pertinent evidence that would have impeached the truthfulness of the Cargill employees’ testimony, pursuant to either 9 U.S.C. § 10(a)(3) or the extra-statutory “fundamental unfairness” standard. See P & P Indus., Inc., 179 F.3d at 870 (<HOLDING>). The preceding five challenges were Holdings: 0: recognizing review for fundamental unfairness as an independent extrastatutory ground 1: recognizing plain or fundamental error 2: holding right to be fundamental 3: recognizing such a ground for judicial review of arbitration awards in this circuit 4: holding that section 34810 is an adequate and independent state ground


Input: L.Ed.2d 360 (1965), we reaffirmed Remington, holding that the government’s failure to advise a defendant of his right to counsel did not give the defendant “a defense to a charge that he thereafter gave false testimony while under oath in response to a material question directed to him by a competent tribunal.” Id. at 210; see also United States v. Mandujano, 425 U.S. 564, 582, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976) (plurality) (“In any event, a witness sworn to tell the truth before a duly constituted grand jury will not be heard to call for suppression of false statements made to that jury ....”) (rejecting defendant’s argument that Fifth Amendment required suppression where Miranda warnings were not given); United States v. Wong, 431 U.S. 174, 180, 97 S.Ct. 1823, 52 L.Ed.2d 231 (1977) (<HOLDING>); Wheel v. Robinson, 34 F.3d 60, 67 (2d Holdings: 0: holding that no discovery is permissible in similar circumstances 1: holding that subject matter questions may be but are not necessarily decided before questions of personal jurisdiction 2: holding that directing defendant to the secondary inspection area to answer additional questions is permissible under the fourth amendment 3: holding that review of questions not raised to the bia is barred 4: holding that perjury is not a permissible way of objecting to the governments questions


Input: distinguishable from this case because there the Court sought to prevent a declaratory judgment action from being used to prejudice a plaintiff in the underlying tort action who was not a party to the declaratory judgment action. Id. at 407-08, 347 A.2d 842. Nevertheless, we find Brohawn persuasive to the extent that it articulates one of many considerations that weigh on the question as to whether a declaratory judgment action is proper. We further find persuasive decisions arising from the courts of other jurisdictions that have refused to endorse the usurping of the jurisdiction of a court with concurrent jurisdiction through the failure to permit the matter to be resolved in its original forum. See, e.g., First Midwest Corp. v. Corp. Fin. Assoc., 663 N.W.2d 888, 892-93 (Iowa 2003) (<HOLDING>) (citing Waicker, supra, 347 Md. at 115, 699 Holdings: 0: holding not an abuse of discretion to deny funds 1: holding that it was an abuse of discretion to deny stay while matter was pending in neighboring state 2: holding it was not an abuse of discretion to deny funds 3: holding that it was an abuse of discretion for a district court not to stay an exhausted petition pending exhaustion of a newly discovered claim 4: holding that it was not an abuse of discretion for the court to deny an award of attorneys fees to the wife


Input: before Odettes filed this suit. In sum, whether Odettes’ delay in filing suit against defendants is taken as six years or three, it was clearly unreasonable in the circumstances of this case. Because the delay is inexcusable, and because defendants suffered prejudice from it, this case is an appropriate one in which to apply the doctrine of laches. Odettes is therefore barred from recovering damages from any of these defendants for any infringement occurring before June 29,1995. An appropriate Order has already issued. The Clerk is directed to send copies of this Memorandum Opinion to all counsel of record. 1 . A more complete recitation of the facts appears in a previous Memorandum Opinion in this case. See Odetics, Inc. v. Storage Technology Corp., 906 F.Supp. 324 (E.D.Va. 1995) (<HOLDING>). 2 . Briefly, an ATL is a computer-controlled Holdings: 0: holding that it is within the power of the legislature to determine that the community should be beautiful as well as healthy spacious as well as clean wellbalanced as well as carefully patrolled 1: holding that sentence factor manipulation applies to statutory minimums as well as to the guidelines 2: holding that the full payment rule is applicable to refund suits in the court of federal claims 3: holding that second sentence of 35 usc  102g is applicable to determine priority of invention in infringement suits as well as in interference proceedings 4: recognizing objective standard applicable under 42 usc  1983 and suits under united states constitution


Input: Thus, it appears to this court they would still be a proper member of the class. Their claims do not have to be identical to the class representatives. ii. Geographic Diversity It is undisputed the potential class covers tribes all over the United States. They involve tribes in 35 states. Defendant argues geographic diversity is insufficient to defeat joinder because it cannot be ascertained where the purported class members reside due to the vagueness and imprecision of the proposed class. However, the court agrees with plaintiffs that the geographic diversity of the potential class members makes joinder impractical, if not impossible. See Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir.1999) cert. denied 528 U.S. 1159, 120 S.Ct. 1169, 145 L.Ed.2d 1078 (2000) (<HOLDING>) Hi. Ability to Identify Class Members The Holdings: 0: holding joinder not practicable where 100 to 150 class members were geographically dispersed 1: holding that joinder is impracticable where the class consisted of at least fifty members 2: holding that 100 to 150 members  is within the range that generally satisfies the numerosity requirement 3: holding numerosity requirement to be satisfied where putative securities fraud class consisted of more than 90 geographically dispersed plaintiffs 4: recognizing that in determining numerosity the proper focus is not on numbers alone but on whether joinder of all members is practicable in view of the numerosity of the class and all other relevant factors


Input: or using the common meaning would lead to absurd results. FKM P’ship., Ltd. v. Bd. of Regents of Univ. of Houston Sys., 255 S.W.3d 619, 633 (Tex.2008). When the words of the statute are clear, they are determinative. Entergy Gulf States, 282 S.W.3d at 437. In moving for judgment notwithstanding the verdict, Occidental relied on several W.3d 412, 416 (Tex.App.-Houston [1st Dist.] 2006, no pet.) (observing that statute of repose operates as affirmative defense on which defendant bears burden of proof); see also Tex.R. Civ. P. 94. Unless Occidental conclusively established each element of its affirmative defense, its failure to obtain a jury finding in its favor is fatal. See Texaco, Inc. v. Pennzoil, Co., 729 S.W.2d 768, 805-06 (Tex.App.-Houston [1st Dist.] 1987, writ ref'd n.r.e.) (<HOLDING>); Whitney Nat’l. Bank v. Baker, 122 S.W.3d 204, Holdings: 0: recognizing that federal preemption is affirmative defense as to which defendant has burden of proof 1: holding defendant bears burden of establishing affirmative defense of official immunity 2: holding burden of proof is on one asserting an affirmative defense 3: holding that fair use is an affirmative defense 4: holding that unless an affirmative defense is established as matter of law defendant bears burden of obtaining jury findings necessary to support defense


Input: damage arising out of the discharge” of hazardous wastes “into or upon the land” unless “such discharge ... is sudden and accidental.” (Emphasis added). The occurrence that must be sudden and accidental then, is the disposal of hazardous wastes “into or upon the land” from which the property damage arose, not the unexpected migration and corresponding damages. See, e.g., Warwick, 26 F.3d at 1203 (under Rhode Island law, initial disposal of waste at landfill site was relevant discharge that had to be sudden and accidental for coverage to exist under exception to pollution exclusion clause in general liability policy; release of pollutants from landfill into surrounding environment was not relevant discharge); Transamerica Ins. Co. v. Duro Bag Mfg. Co. (6th Cir. 1995), 50 F.3d 370, 373 (<HOLDING>). ¶36 To hold otherwise eliminates the Holdings: 0: holding that the debtors deposit of funds was not in the ordinary course of business and was for the purpose of creating a setoff right for the bank 1: holding that a purchaser of a vehicle was a buyer in the ordinary course of business even though the car dealer did not provide the certificate of title at the time of the sale 2: holding that monitoring telephone calls is in the ordinary course of business where the employer has reason to suspect an employee of disclosing confidential information to business competitor 3: holding under kentucky law that coverage barred insureds depositing of drums and fiberboard barrels containing ink and glue at landfill when the disposal took place on regular basis or in ordinary course of business 4: holding that boat repair was done in the ordinary course of business of river transportation company


Input: caused the plaintiffs’ injuries. JA 21. There was no further development of this bare assertion in the Complaint regarding any specific Municipality actions undertaken pursuant to its customs and policies. In Rosaura Building Corp. v. Municipality of Mayaguez, 778 F.3d 55 (1st Cir. 2015), this court affirmed the district court’s dismissal of “claims against the municipal government under Monell, after it found that Rosaura failed to plead a scintilla of facts against that government entity ... [about the] execution of a government’s policy or custom.” Id. at 61-62, 69 (citation omitted). Here, given the record, we similarly conclude that there is no sufficient allegation that the Municipality acted under color of law. In summary, for purposes of a motion to dismiss, we c h Cir. 1955) (<HOLDING>). 6 . The enactment of a statute may, of Holdings: 0: holding that a termination of a government contract does not constitute a taking of the plaintiffs property without just compensation or without due process of law 1: holding that californias mandatory iota program does not involve a taking of property without just compensation as prohibited by the fifth amendment to the united states constitution 2: holding that a patent confers upon the patentee an exclusive property in the patented invention which cannot be appropriated or used by the government itself without just compensation 3: holding that a statute requiring a natural gas producer to make gas available to pump water for agriculture irrigation at a price fixed by the corporation commission is not a regulation under the police power but a taking of the producers property without due process of law and an appropriation of the producers property without just compensation 4: holding that district court may order hearing as remedy for termination of public employee without due process


Input: [debtor] significantly increases his income, he would go to his grave either indebted to ECMC or, if not, indebted to the IRS on the tax obligation incurred when ECMC forgives the unpaid loan.”). Second, contrary to the Bankruptcy Court’s reasoning, consideration of the ICRP would not impermissibly diminish the authority of the Bankruptcy Court by precluding discharge based upon undue hardship whenever a debtor is eligible for, but did not participate in, the ICRP. See Bronsdon, 2009 WL 95038, at *4. (citing Denittis, 362 B.R. at 64-65). Applying the Brunner test, three circuit courts of appeals have concluded that eligibility for the ICRP should be considered as a component of the undue hardship analysis but is not necessarily dispositive. In re Mosko, 515 F.3d 319, 326 (4th Cir.2008)(<HOLDING>); In re Alderete, 412 F.3d 1200, 1206 (10th Holdings: 0: holding that the defendant did not establish good faith as a matter of law 1: holding that the test for good faith is the actual belief of the party and not the reasonableness of that belief 2: holding that while the creditor has the initial burden to produce some evidence of lack of good faith the ultimate burden is on the debtor to prove his good faith 3: holding when applying the brunner test that while not a per se indication of a lack of good faith debtors decision not to take advantage of the icrp is probative of her intent to repay the loans 4: holding that seeking out loan consolidation options such as the icrp is an important component of the good faith inquiry under the brunner test


Input: new trial, and Muller moved for a judgment of acquittal or a new trial. Defendants challenged the Court’s pre-trial 'suppression orders, the evidentiary rulings made at trial that allowed out-of-court identifications into evidence, and the Court’s refusal to declare a mis 994) (discussing Dunaway’s holding' “that the ‘reasonable suspicion’ which permits a limited stop under Terry v. Ohio ... is not enough to allow the police to transport the person stopped to the police station and extract information through detention and interrogation” (citation omitted)). Other appellate courts have also concluded that transportation to and detention in a police station or other custodial setting constitutes a de facto arrest. See, e.g., United States v. Acosta-Colon, 157 F.3d 9, 15 (1st Cir. 1998) (<HOLDING>); Centanni v. Eight Unknown Officers, 15 F.3d Holdings: 0: holding that plaintiff had standing to challenge constitutionality of a georgia criminal trespass law because he was warned twice to stop handbilling and was told that if he engaged in the activity again he would be arrested 1: holding that the defendant was placed in official detention when two police officers approached him and told him that he was under arrest as the defendant could not reasonably have believed that he was free to leave 2: holding that under royer the defendant was arrested when he was prevented from boarding his plane placed in handcuffs involuntarily transported in restraints to an official holding area some distance from the place of the original stop confined to a small interrogation room and kept there under observation for more than a momentary period yet he was never informed how long he would be detained nor told that he was not under arrest 3: holding that defendant was not in custody for miranda purposes when fieldsobriety tests were conducted and when deputy responded in the negative to defendants question of whether he was under arrest and never placed defendant in handcuffs or in the back of a patrol car during the questioning 4: holding that a de facto arrest had occurred where petitioner was not questioned briefly where he was found  but rather was taken  to a police car transported to a police station and placed in an interrogation room