Input: in part, reversed in part, and remanded by published opinion. Judge NIEMEYER wrote the opinion, in which Judge LEE joined. Judge KING wrote a dissenting opinion. OPINION NIEMEYER, Circuit Judge: This appeal presents the question of first impression in this circuit whether and to what extent the Equal Employment Opportunity Commission (“EEOC”), in prosecuting a suit in its own name, is bound by a private arbitration agreement between the charging party and his employer. Other circuits are split on the proper response to this question. Compare EEOC v. Kidder, Peabody & Co., 156 F.3d 298 (2d Cir.1998) (<HOLDING>), with EEOC v. Frank’s Nursery & Crafts, Inc., Holdings: 0: holding that neither the faa nor principles of preclusion or waiver could operate to bar the eeoc from seeking monetary relief on behalf of aggrieved individuals 1: holding that even if indirect purchasers are barred from seeking damages relief they may still obtain injunctive relief 2: holding a party seeking mandamus must serve the party against whom relief is sought 3: holding that an arbitration agreement between a charging party and an employer precludes the eeoc from seeking purely monetary relief in federal court on behalf of the charging party but not from seeking broad injunctive relief 4: holding that a private party may bring an action in a federal district court seeking injunctive relief on the basis of garmon preemption for only arguably protected or prohibited activity


Input: 2013 WL 98059, at *1 (W.D.Ky. Jan. 7, 2013) (“Based on the overwhelming precedent where federal courts sitting in diversity have applied Federal Rule of Civil Procedure 42(b) rather than state law to decide bifurcation issues—many of which appear in the precise context presented in this case—the Court cannot agree with the parties’ assertions that Kentucky law governs and instead finds Rule 42(b) is the standard applicable here.”). Federal law on bifurcation for bad faith claims against insurers does not support Arrowood’s argument for separate trials. Federal courts sometimes bifurcate trials of underlying liability claims and bad faith claims, but only when the liability claims are still unresolved. See, e.g., Warren v. Federal Ins. Co., 358 Fed.Appx. 670, 676 (6th Cir.2009) (<HOLDING>). There is no pending contract claim here. The Holdings: 0: holding it was reasonable for the district court to bifurcate bad faith claim and stay discovery while breach of contract coverage claim was pending 1: holding that claim file discovery was premature in a firstparty breach of contract claim 2: holding that a bad faith claim is a tort 3: holding that an insurance contract between the parties and a breach thereof by the defendant is an element of a bad faith refusal claim 4: holding that a party cannot claim damages for breach of contract unless he has shown his full compliance with the contract and is not acting in bad faith


Input: the legal requirements of exclusive dealing. We acknowledge that “partial” exclusive dealing is rarely a valid antitrust theory. See Barr Labs., 978 F.2d at 110 n. 24 (“An agreement affecting less than all purchases does not amount to true exclusive dealing.”) (citation omitted); Concord Boat, 207 F.3d at 1044, 1062-63 (noting that the defendant’s discount program, which conditioned incremental discounts on customers purchasing 60-80% of their needs from the defendant, did not constitute exclusive dealing because customers were not required to purchase all of their requirements from the defendant, and in fact, could purchase up to 40% of their requirements from other sellers without foregoing the discounts); Magnus Petroleum Co. v. Skelly Oil Co., 599 F.2d 196, 200-01 (7th Cir.1979) (<HOLDING>) (citations omitted). Partial exclusive dealing Holdings: 0: holding that where buyer had opportunity to inspect goods and failed to inform seller in timely manner of defects buyer deemed to have accepted goods pursuant to  672606 1: holding that contract requiring buyer to purchase a fixed quantity of goods that amounted to roughly 6080 of its needs was not unlawful because the agreements contained no exclusive dealing clause and did not require the buyer to purchase any amounts of the defendants product that even approached its requirements 2: holding an arbitration clause contained in confirmations sent to buyer by seller was part of parties course of dealing and therefore part of the contract after buyer had repeated opportunities to object to the clause and had failed to do so 3: holding buyer liable for balance of contract price of accepted goods 4: holding that although the language of the contract was permissive when it said the buyer could purchase such quantities of the items listed herein as it might order or schedule and that the buyer shall have the right at any time and from time to time to cancel in whole or in part the deliveries specified and the authorizations contained in any shipping schedule given to the seller we must conclude that the contract taken as a whole is ambiguous and that further investigation as to whether the parties intended a requirements contract is required


Input: (1993). In § 2254 proceedings, the federal court must assess the prejudicial impact of a constitutional error in a state-court criminal proceeding under Brecht’s more forgiving “substantial and injurious effect” standard, whether or not the state appellate court recognized the error and reviewed it for harmlessness under the “harmless beyond a reasonable doubt” standard set forth in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824,17 L.Ed.2d 705 (1967); Fry v. Pliler, 551 U.S. 112, 127 S.Ct. 2321, 2328, 168 L.Ed.2d 16 (2007). The Brecht harmless error analysis also applies to habeas review of a sentencing error. The test is whether such error had a “substantial and injurious effect” on the sentence. Calderon v. Coleman, 525 U.S. 141, 145-47, 119 S.Ct. 500, 142 L.Ed.2d 521 (1998) (<HOLDING>); Hernandez v. LaMarque, 2006 WL 2411441 Holdings: 0: holding that states improper use of defendants postmiranda silence was error but did not warrant habeas relief unless error had a substantial and injurious effect or influence on the jurys verdict 1: holding that a substantial right is affected when the error had a substantial and injurious effect or influence in determining the jurys verdict 2: holding that an error must have a substantial and injurious effect on the verdict to entitle a petitioner to habeas relief 3: holding that mental health evidence could be mitigating at the penalty phase even though it is insufficient to establish a legal defense to conviction in the guilty phase 4: holding that for habeas relief to be granted based on constitutional error in capital penalty phase error must have had substantial and injurious effect on the jurys verdict in the penalty phase


Input: 1223, 1228 (7th Cir.1994) (same); United States v. Badalamenti, No. S.S. 84 Cr. 236CPNL), 1985 WL 2572, at *10 (S.D.N.Y. Sept. 19, 1985) (referring to a second indictment that would be returned after dismissal of a first indictment because of section 2517(5) violations, the same situation as in this case, as a “superseding” indictment). Therefore, the court holds that the second indictment in this case can properly be referred to as a “superseding” indictment. The superseding-versus-new-indictment issue might have been an interesting and relevant debate if the Speedy Trial Act or the statute of limitations were the focus of defendants’ appeals from the Detention Order, because those are the only situations in which it matters whether an indictment is a superseding indictme (D.C.1979) (<HOLDING>); United States v. Thoresen, 428 F.2d 654, Holdings: 0: holding that application of the doctrine of law of the case is discretionary and that a district court abuses its discretion in applying the law of the case doctrine only if 1 the first decision was clearly erroneous 2 an intervening change in the law occurred 3 the evidence on remand was substantially different 4 other changed circumstances exist or 5 a manifest injustice would otherwise result 1: holding that the law of the case doctrine posits that when a court decides upon a rule of law that decision should continue to govern the same issues in subsequent stages in the same case 2: holding that the application of the fair use doctrine at the pleading stage is appropriate 3: holding that for all intents and purposes the instant case is the same action that was brought previously we therefore find the application of the doctrine of the law of the case to be appropriate 4: holding that the degree of the loss of use of a body part is a question of fact whether the loss is for all practical intents and purposes is a question of law


Input: be obtained’ and the ‘obligations imposed’ reveal a purpose to preclude state authority.... Even when Congress has not chosen to occupy a particular field, pre-emption may occur to the extent that state and federal law actually conflict. Such a conflict arises when ‘compliance with both federal and state regulations is a physical impossibility/Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963), or when a state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress/Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581 (1941). — U.S. at -, 111 S.Ct. at 2481-82 (citations omitted). Accord Hatfield v. Burlington Northern R. Co., 958 F.2d 320, 321 n. 1 (10th Cir.1992) (<HOLDING>). We believe that release of the government’s Holdings: 0: holding that where evidence shows that federal funds were expended for installation for warning devices or signs at railroad crossing state law claims based on adequacy of those warning devices are preempted by the federal railroad safety act 1: holding that manual on uniform traffic control devices mutcd standards were admissible 2: holding adoption by secretary of transportation of manual on uniform traffic control devices issued under federal railroad safety act preempted state common law standards of care for grade crossings 3: holding that the government is immune from liability for its choice of traffic protection devices 4: holding that the plaintiffs state law claims are preempted by federal law


Input: stop” and “not an effort to obtain an arrest for failure to identify after a Terry stop yielded insufficient evidence.” Hiibel, 542 U.S. at 189, 124 S.Ct. 2451. But the request for Mocek’s identification was a “commonsense inquiry” meant to gather basic information about a suspect, which has “an immediate relation to the purpose, rationale, and practical demands of a Terry stop.” Id. Mocek’s refusal to cooperate interfered with these efforts to investigate possible disorderly conduct. Second, Mocek argues the arrest was a mere pretext for seizing his camera and destroying his recordings of the security checkpoint. He cites our holding that police cannot use an administrative search as an excuse to enter a building to seize suspected contraband. See Winters v. B ly motivated by hi 4) (<HOLDING>); Abrams v. Walker, 307 F.3d 650, 654 (7th Holdings: 0: recognizing that general rule applies only to statutes that implicate  no constitutionally protected conduct emphasis added 1: holding that the law of michigan rather than the forum applied to manufacturers claim of attorneyclient privilege in a products liability suit because the communication took place in michigan and therefore michigan had most significant relationship to communication 2: holding for purposes of a retaliation claim because michigan has not passed an applicable time place or manner restriction dean had a constitutionally protected right to engage in peaceful targeted picketing in front of byerleys residence emphasis added 3: holding floridas stalking statute which contained the language constitutionally protected activity is not included in the course of conduct definition and constitutional protected activity includes picketing or other organized protests was not impermissibly vague 4: holding for purposes of a retaliation claim restricting  disruptive behavior constitutes the type of time place and manner regulation that survives even the most stringent scrutiny for a public forum


Input: in issue here is the air bladder, and only the air bladder. (Big-man Deck, Ex. 8 at 105.) Plaintiff has, however, admitted that its “air bladder concept and design” (the trade secret) were disclosed in the ’099 Patent, which issued on September 9, 1986. (First Am.Compl. ¶ 10.) Additionally, this Court has previously determined that “the information disclosed to Reebok in May of 1986 was contained in the [’099 Patent].” (Order of Dec. 6, 1993.) Thus, as plaintiffs trade secret was extinguished in September 1986 with the issuance of the ’099 Patent, Reebok'couíd only be liable on plaintiffs trade secret claims for products incorporating the trade secret that were sold by defendant prior to the issuance date of the patent. See Timely Prods. Corp. v. Arron, 523 F.2d 288, 304 (2d Cir.1975) (<HOLDING>); Trenton Indus. v. A.E. Peterson Mfg. Co., 165 Holdings: 0: holding that the cause of action accrued on the date of sale 1: holding that a plaintiff could recover actual damages under the tcpa for loss of credit if the plaintiff submitted sufficient proof of the amount damages requested 2: holding that if the breach of an entire contract is only partial the plaintiff can recover only such damages as he or she has sustained leaving prospective damages to a later suit in the event of further breaches 3: holding that plaintiff could recover royalties only for products manufactured by defendant after disclosure of secret but before issuance of patent 4: holding that plaintiff could recover only damages sustained as a result of the sale of the accused product by defendant prior to the issuance date


Input: no matter how meager or unlikely. Manuel v. State, 667 So.2d 590, 593 (Miss.1995). A lesser-included-offense instruction should be granted where there is an evidentiary basis in the record for it. Lee v. State, 469 So.2d 1225, 1230 (Miss.1985). “[T]he evidence in a particular case generally warrants granting a lesser offense instruction if a ‘rational’ or a ‘reasonable’ jury could find the defendant not guilty of the principal offense charged in the indictment yet guilty of the lesser included offense.” Monroe v. State, 515 So.2d 860, 863 (Miss.1987). Common sense dictates that if someone resists too strongly it becomes an assault, and therefore, resisting arrest is clearly a lesser-included-offense of simple assault on an officer. Murrell v. State, 655 So.2d 881, 886 (Miss.1995) (<HOLDING>). ¶ 5. Officer Gray testified that there was a Holdings: 0: holding that force exerted against an officer after an arrest is complete cannot be used as the basis for prosecuting one for resisting arrest 1: holding that resisting arrest is lesser offense of assault on an officer 2: holding that merger did not apply because sexual assault was not a lesser included offense of seconddegree kidnapping involving sexual assault 3: holding avoiding arrest is not the same as resisting arrest 4: holding simple assault is a lesser included offense of recklessly endangering another person


Input: to one holding a superior position or office.” That relationship typically involves “subjection, guidance, or control.” In addition, precedent and statutory purpose make clear that the private person’s “acting under” must involve an effort to assist, or to help carry out, the duties or tasks of the federal superior. Watson v. Philip Morris Companies, Inc., 551 U.S. 142, 151-52, 127 S.Ct. 2301, 168 L.Ed.2d 42 (2007) (internal citations omit ted). “The words ‘acting under’ are broad,” and the Supreme Court “has made clear that the statute must be ‘liberally construed.’” Id. at 147, 127 S.Ct. 2301. In Jacks v. Meridian Resource Co., LLC, 701 F.3d 1224 (8th Cir.2012), an insurance carrier administering a service benefit plan under FEHBA brought a sub , 629 F.Supp.2d 905 (E.D.Ark.2007) (<HOLDING>). The Federal Employees Health Benefits Act of Holdings: 0: holding that a health plan insurer contracting with a government agency under a federal benefits program is considered a person acting under a federal officer 1: holding that the federal officer removal statute is not narrow or limited  2: holding that health insurer contracted with fehba was not acting under a federal agency within the meaning of the federal officer removal statute 3: holding that an alcoholic beverage control officer was a public officer within the meaning of the statute 4: holding that a federal drug informant acting under the partial direction of the fbi and for pay was not a federal employee under the ftca


Input: custody of his mother when she was naturalized, the legal custody condition would be met if he could show that his parents were legally separated at that time. The critical question, therefore, is whether, at the time of his mother’s naturalization, “there ha[d] been a legal separation of the parents.” INA § 321(a)(3). The meaning of the term “legal separation” as contained in former INA § 321(a)(3) is a question of federal statutory interpretation. See Brissett v. Ashcroft, 363 F.3d 130, 133 (2d Cir.2004); Wedderburn v. INS, 215 F.3d 795, 799 (7th Cir.2000). Yet, the INA does not define the term and the only case from our circuit to discuss it merely holds that a legal separation must be preceded by a legal marriage. See Barthelemy v. Ashcroft, 329 F.3d 1062, 1065 (9th Cir.2003) (<HOLDING>); see also Wedderburn, 215 F.3d at 797, 799-800 Holdings: 0: holding that a petitioner did not enjoy derivative citizenship under the first clause of  321a3 because his natural parents never married and thus could not legally separate emphasis in original 1: holding that a childs interest supercedes that of its natural parents 2: holding the foster parents responsible for support where the childs natural parents are unknown and noting that an earlier new york case held that an agreement to adopt did not terminate the natural parents duty of support but that in that earlier case the natural parent was alive and capable of providing for the child 3: holding evidence legally sufficient 4: holding that once a state posits a judicially enforceable right on behalf of children to needed support from their natural fathers there is no constitutionally sufficient justification for denying such an essential right to a child simply because its natural father has not married his mother


Input: an interpreter when, other than having some syntactical errors, his testimony was “very responsive” and “indicative of [his] ability to speak and understand English.”). Additionally, and as noted by the trial court in its denial of Nur’s motion for a new trial, neither Nur nor his attorney ever requested an interpreter; Nur communicated with the court in English, both orally and in writing; and the evidence at trial showed that Nur communicated with native English speakers in English when orchestrating the crime. Thus, based on the record, we cannot say that the court had notice that Nur had a significant language difficulty. As such, the court’s failure to appoint an interpreter on its own motion was not fundamental error. See, e.g., Martinez v. State, 451 N.E.2d 39, 41 (Ind.1983) (<HOLDING>). We therefore affirm the trial court’s denial Holdings: 0: holding that the trial court was under no obligation to appoint an interpreter where defendant did not request one and spoke english reasonably well 1: holding that it was not error for a trial court to have failed to provide sua sponte a competent interpreter where counsel did not request one prior to trial and defendant spoke and understood english well enough to conversantly discuss the crime with a police officer and had no trouble answering questions at the sentencing hearing 2: holding that trial court need not appoint an interpreter where counsel indicated that he could communicate with defendant and that defendant could understand questions and answers 3: holding that once counsel was appointed defendant spoke to the court through counsel and thus the court was not required to respond to defendants request for a speedy trial 4: holding that where alien was in custody spoke only spanish had limited education and was unfamiliar with this country and its legal procedures in light of his failure to obtain counsel despite his efforts the immigration judge sua sponte if necessary should have continued the hearing so as to provide the petitioner a reasonable time to locate counsel and permit counsel to prepare for the hearing


Input: for the confidential informant to exit his vehicle and say “Hi,” Peery drove his vehicle to the corner of the parking lot where he parked and took no further action until, coincidentally, the confidential informant had completed his drug deal with Dustin and the police moved in for the drug bust, at which point Peery attempted to exit the parking lot. Courts have considered similar conduct to be suggestive of counter-surveillance by a participant in a drug transaction. See United States v. Diaz-Lizaraza, 981 F.2d 1216, 1221 (11th Cir.1993) (officer’s belief that person was engaged in counter-surveillance was reasonable when record showed that the defendant showed up with the suspect and drove back and forth in front of store while the suspect purchased drugs); Ocampo, 937 F.2d at 490 (<HOLDING>); United States v. Green, 52 F.3d 194, 198-99 Holdings: 0: holding that the court of appeals erred in declining to consider whether the arrest was illegal and whether the consent was tainted by the potentially illegal police activity 1: holding that firing authority is indicative of employer status 2: holding that countersurveillance driving is a fact indicative of illegal activity 3: holding that money seized from a bank account must be traceable to illegal activity in order to be subject to forfeiture even if account previously contained proceeds of illegal activity 4: holding that unprovoked flight is not necessarily indicative of wrongdoing but it is certainly suggestive of such


Input: See id. at 281, 117 S:Ct, 2028 ("We do not think Treasure Salvors ... is helpful to the Tribe because the state officials there were acting beyond the authority conferred upon them by the State, a theory the Tribe does not even attempt to pursue in the case before us.” (internal citation omitted)). 11 . Because the Court in Inyo County determined the tribe sought to assert sovereign rights, the Court did not definitively resolve whether a sovereign could sue under § 1983 to vindicate personal, non-sovereign rights. Inyo County, 538 U.S. at 710-12, 123 S.Ct. 1887. Subsequently, certain of our sister circuits appear to have provided different answers to that question, albeit in differing contexts. Compare Va. Office for Prot. & Advocacy v. Reinhard, 405 F.3d 185, 190 (4th Cir.2005) (<HOLDING>), with Keweenaw Bay Indian Cmty. v. Rising, 569 Holdings: 0: holding that the state police is a state agency 1: holding that an action naming a state entity as a defendant did not constitute an action against the state because the state entity was sued in its capacity as receiver 2: holding that the university of colorado is an arm of the state for purposes of sovereign immunity 3: holding state university is not a person under  1983 4: holding a state agency as an arm of the state cannot constitute a person under  1983 because it is a sovereign entity


Input: that: Notwithstanding any other provision of law ... no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person, including any term of imprisonment imposed for the crime of violence or drug trafficking crime during which the firearm was used, carried, or possessed. Id. § 924(c)(l)(D)(ii). These consecutive terms are imposed separately from, and in addition to, the enhanced penalty for use of a weapon already provided by the bank robbery statute itself. See 18 § U.S.C. 2118(d) (raising maximum penalty from 20 to 25 years if the offender “puts in jeopardy the life of any person by the use of a dangerous weapon or device”); United States v. Segarra, 582 F.3d 1269, 1272-73 (11th Cir.2009) (per curiam) (<HOLDING>). A defendant may be convicted of multiple § Holdings: 0: holding that  924es consecutive sentences apply even when the underlying crimes carry their own mandatory minimums 1: holding apprendi does not apply to consecutive sentencing 2: holding that consecutive sentences were warranted because of the multiple separate and distinct criminal acts 3: holding that mandatory minimums do not implicate apprendi 4: holding that the federal constitutional right to a jury trial does not apply to decisions to impose consecutive sentences


Input: is binding upon the United States. C. Authority To Bind The United States Even if the court were to assume arguen-do that Kozak has demonstrated the existence of a cooperation agreement between her and Iowa authorities, Kozak must also demonstrate that the state cooperation agreement is binding on the United States. Federal circuit courts of appeal have held that agreements made by state agents cannot be enforced against the United States because state agents are without authority to bind federal proceedings. Hendrix v. Norris, 81 F.3d 805, 807 (8th Cir.1996) (“ ‘[S]tate prosecutors cannot bind federal prosecutors without the latter’s knowledge and consent.’ ”) (quoting United States v. Fuzer, 18 F.3d 517, 520 (7th Cir.1994)); United States v. Sparks, 87 F.3d 276, 279 (9th Cir.1996) (<HOLDING>); United States v. Cordova-Perez, 65 F.3d 1552, Holdings: 0: holding that prosecutors have absolute immunity 1: holding that prosecutors statements were not evidence and could not support restitution order 2: holding that state prosecutors agreements with defendant not binding on federal prosecutors 3: holding that prosecutors reference to cooperation agreements with government witnesses was not plain error 4: holding that the prosecutors question to the defendant about a prior unrelated offense was improper


Input: require a showing of actual harm when a plaintiff sues for willful violations.” Robins v. Spokeo, Inc., 742 F.3d 409, 412 (9th Cir.2014). The court reasoned that when, as with the FCRA, “the statutory cause of action does not require proof of actual damages, a plaintiff can suffer a violation of the statutory right without suffering actual damages.” Id. at 413; see also 15 U.S.C. § 1681n(a)(1)(A) (“Any person who willfully fails to comply with any requirement imposed [under the FCRA] with respect to any consumer is liable to that consumer in an amount equal to the sum of — any actual damages sustained by the consumer as a result of the failure or damages of not less than $100 and not more than $1000.” (emphasis added); Bateman v. Am. Multi-Cinema, Inc., 623 F.3d 708, 719 (9th Cir.2010) (<HOLDING>); Montgomery v. Wells Fargo Bank, C12-3895 TEH, Holdings: 0: holding that irrespective of whether bateman and all the potential class members can demonstrate actual harm resulting from a willful violation of the fail and accurate credit transactions act they are entitled to statutory damages 1: holding that rule 23b2 calls for injunction as to all class members or to none of them and does not authorize class certification when each class member would be entitled to an individualized award of monetary damages 2: holding that a plaintiff can seek statutory damages even in the absence of actual damages 3: holding that fdcpa statutory damages did not predominate over the requested equitable relief because given the defendants net worth and the number of class members each class member would be entitled to receive only 025 in statutory damages 4: holding that class certification is not appropriate because plaintiffs failed to demonstrate that the calculation of individualized actual economic damages if any suffered by the class members can be performed in accordance with the predominance requirement of rule 23b3


Input: such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” Internatl. Shoe Co. v. Washington (1945), 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, 102. The phrase “transacting any business” (R.C. 2307.382[A][2]) has been interpreted very broadly by Ohio courts. Schneider v. Gunnerman (Aug. 24, 1998), Fayette App. Nos. CA97-07-017, CA97-12-034, unreported, 1998 WL 526541. Defendants argue that there was no significant business transacted in Ohio. They note that the closing occurred in Kenton County, Kentucky, for assets located in Kenton County, Kentucky, of a business incorporated in Kentucky. However, plaintiffs argue that they were contacted by defendants at their residence in Clermont County, hio App.3d 696, 591 N.E.2d 1336 (<HOLDING>). In our case, the contacts between defendants Holdings: 0: holding that a texas court had personal jurisdiction over a kansas resident who after objecting to the texas courts jurisdiction filed a motion for attorneys fees 1: holding negotiating over the telephone with an ohio resident and mailing a contract to ohio to be accepted were sufficient to grant ohio courts jurisdiction 2: holding that outofstate defendants who furnished intangibles and services in west virginia and ohio and entered into agreement in which a florida corporation served as financier and supervisor of enterprises business aspects did not submit themselves to florida jurisdiction 3: holding the defendant employee subject to personal jurisdiction in ohio based on his businessrelated travels to ohio in an action for breach of a noncompetition agreement 4: holding nonresident defendant did not submit to general jurisdiction of texas courts merely by executing contract with resident


Input: dissenting. I respectfully dissent from the majority’s reversal of Carter’s attempted murder conviction. While I agree that the instruction at issue here was erroneous and that Carter’s appellate counsel was deficient for failing to raise the issue on direct appeal, I conclude that Carter has failed to demonstrate prejudice. As a result, I would affirm the post-conviction courts denial of Carter’s petition for post-conviction relief. If deficient performance by appellate counsel is found, we turn to the prejudice prong to determine whether the issues appellate counsel failed to raise would have been clearly more likely to result in reversal or an order for a new trial. Ritchie v. State, 875 N.E.2d 706, 724 (Ind.2007), reh’g denied; Overstreet v. State, 877 N.E.2d 144, 165 (Ind.2007) (<HOLDING>), reh’g denied, cert. denied, — U.S.-, 129 Holdings: 0: holding that to succeed on an ineffective assistance claim a defendant must show that there is a reasonable probability that but for counsels unprofessional errors the result of the proceeding would have been different 1: holding that in order to show prejudice defendant must demonstrate that there is a reasonable probability that but for counsels unprofessional errors the result of the proceeding would have been different 2: holding that to show prejudice in a claim of ineffective assistance of appellate counsel the petitioner must show a reasonable probability that but for counsels errors the result of the proceeding would have been different 3: holding that to establish prejudice sufficient to warrant finding of ineffective assistance the defendant must show that there is a reasonable probability that but for counsels unprofessional errors the result of the proceeding would have been different 4: holding that to establish prejudice there must be a reasonable probability that but for counsels unprofessional errors the result of the proceeding would have been different


Input: the parties supplement their briefs following the Court's decision in that case. 3 Scull argues that the State forfeited its right to argue that the good-faith exception applies because it did not raise the issue before the circuit court. We disagree. First, we may affirm a circuit court's decision on any grounds. See State v. Milashoski, 159 Wis. 2d 99, 108-09, 464 N.W.2d 21 (Ct. App. 1990). Second, the good-faith exception never came up before the circuit court because the circuit court ruled on the issue prior to the United States Supreme Court's decision in Jardines and concluded that the dog sniff was not a search. Therefore, the circuit court did not need to explore the contours of the exclusionary rule in this case. 4 See United States v. Brock, 417 F.3d 692, 696 (7th Cir. 2005) (<HOLDING>); United States v. Roby, 122 F.3d 1120, 1125 Holdings: 0: holding that a drug sniff outside defendants locked bedroom door was not a fourth amendment search because it detected only the presence of contraband and did not provide any information about lawful activity over which the defen dant had a legitimate expectation of privacy 1: holding that a dog sniff during a legitimate traffic stop does not constitute a search because there is no expectation of privacy in contraband and a dog sniff does not violate any privacy interest 2: holding that a dog sniff of the area outside the door of a hotel room is not a search under the fourth amendment or the texas constitution because the dogs sniff does not explore the details of the hotel room and the sniff reveals nothing about the room other than the presence of cocaine in which there is no legitimate privacy interest 3: holding a dog sniff outside the defendants front door was not a fourth amendment search 4: holding that a drug sniff outside the front door of the defendants residence was not a fourth amendment search because the defendant had no reasonable expectation of privacy at the entrance to property that is open to the public including the front porch


Input: end of the spectrum, in that Scott Brooks was an indirect cause of these injuries, but we cannot conclude that Scott Brooks is outside the scope of USSG § 5K2.1 or USSG § 5K2.2. Unintended consequences are often the result of reckless behavior, and while perhaps Scott Brooks could not have anticipated the particular sequence of events, Scott Brooks should have foreseen the possibility of serious physical harm to another as a result of his actions. We see no basis for foreclosing a departure under USSG § 5K2.1 or USSG § 5K2.2 when a defendant helps put into motion a chain of events that risks serious injury or death, even when an intent to harm is entirely absent and the defendant was not directly responsible for the death. Cf. United States v. Diaz, 285 F.3d 92, 100-01 (1st Cir.2002) (<HOLDING>); United States v. Fortier, 242 F.3d 1224, Holdings: 0: holding it error to give selfdefense instruction requiring that defendant believe his actions were necessary to avert death or great bodily harm when defendant claimed that the victims death was accidental 1: holding a reasonable recipient would have perceived the letter as a serious expression of an intent to harm 2: holding that in a 18 usc  922g1 prosecution ussg  5k21 upward departure was warranted because the defendant should have foreseen the possibility of serious harm as a result of his actions even though the defendant harbored no intent to harm and was not directly responsible for the death 3: holding that a death sentence for a conviction for the rape of a child where the crime did not result and was not intended to result in death of the victim was barred by the eighth amendment 4: holding that defendant was responsible for the delay from the withdrawal of his guilty plea


Input: requirements. Further, upon review of the record, we find no objection by appellant to the trial court’s response to the jury question. Appellant stated that he was satisfied with the judge’s instruction. See N.T., 9/22/99, at 131-32. Under Pa. R.A.P. 302(a), “[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal.” See also Commonwealth v. Edmondson, 553 Pa. 160, 718 A.2d 751, 753 (1998); Commonwealth v. Dennis, 548 Pa. 116, 695 A.2d 409, 411 (1997) (“[I]f appellate courts were to consider issues not raised in the trial court, then the trial would become a dress rehearsal ....”) (citing Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114, 116 (1974)); Commonwealth v. Jones, 248 Pa.Super. 214, 375 A.2d 63, 65-66 (1977) (<HOLDING>). Because appellant did not preserve the issue Holdings: 0: holding that the failure to object to a trial courts instruction constitutes waiver 1: holding that plaintiffs failure to object to the improper comments of defendant during closing arguments resulted in waiver of plaintiffs right to argue the issue on appeal because the trial court was not given an opportunity to rule on the issue 2: holding that the failure to object to an instruction constitutes a waiver of error 3: holding that failure to object to trial courts refusal of further instruction to jury during deliberation results in waiver of issue on appeal 4: holding failure to object in timely fashion at trial results in waiver of issue for appeal


Input: Co., 32 Va. Cir. 497, 502-03 (Henrico 1981). In any event, Dryvit was sued at the same time as RML and had the same notice of the original homeowner suit. Defendants state that the only notice received regarding the warranty claims was from the service of the Third-Party Motion for Judgment and RML’s cross-claim against Dryvit and argue that this does not constitute adequate notice within the parameters of Virginia Code § 8.2-607(3)(a). It is true that some courts have found that service of process is insufficient notice of a breach of warranty claim. See, e.g., Armco Steel Corp. v. Isaacson Structural Steel Co., 611 P.2d 507, 513 (Ala. 1980) (filing of a third-party complaint by defendant one year into the litigation); Lynx, Inc. v. Ordnance Prods., Inc., 327 A.2d 502, 514 (Md. 1974) (<HOLDING>); Voboril v. Namco Leisure World, Inc., 24 UCC Holdings: 0: recognizing private right of action 1: holding that right to payment does not accrue until condition precedent has been fulfilled 2: holding that once the workers compensation act provides a remedy it is exclusive and the employee has no right to bring an action in commonlaw negligence against his employer 3: holding that if no notice was given prior to the institution of an action a condition precedent to the right to bring the action does not exist and the buyerplaintiff has lost the right of his remedy 4: holding that no right of action is given to the estate of the victim of a tort but is granted only to his heirs  if there are no heirs no right of action vests in anybody


Input: susceptible to the interpretation that they do”). However, it was appropriate for the court to look to the 1994 Will as an aid to determining whether the 2007 Will was affected by undue influence. See Griffith, 50 Md. at 482 (explaining that a testator’s "declarations in regard to her testamentary intentions ... before the execution of the will and codicil, and before any improper influences are supposed to have operated upon her, are admissible ... either to rebut the charges of fraud and undue influence, by showing that the will is consistent with the long cherished wishes of a testator, or [to show] that it is contrary to well settled convictions of what he thought was a just and proper disposition of his property”); Estate of Gill, 111 Cal.App.2d 486, 244 P.2d 724, 726 (1952) (<HOLDING>). 13 . The 1994 Will did name Amani as trustee Holdings: 0: holding that presumption that respondent exercised undue influence by preparing will that left all of the decedents property to him was amply rebutted by evidence that decedent had made an earlier will ineffective because not witnessed leaving all her property to him and had written him a letter stating that she was leaving all her property to him 1: holding that the plaintiffs evidence that his back injury precluded him from performing at least 50 of the jobs previously available to him was enough to classify him as disabled under the ada 2: holding that the trial court abused its discretion in denying a motion to substitute counsel on the strength of gonzalezs sworn responses at the pleataking that no one was threatening him or forcing him to plead where the defendant alleged that his attorney forced him to plead guilty  and threatened him if he did not take the plea 3: holding that defendant had the right to refuse to answer questions put to him by police officer who had called him 4: holding that the trial judge must comply with rule 3172c8 and advise all defendants in all cases that the plea may subject him or her to deportation


Input: by the plaintiffs in their complaints — harmful effects on the quality and quantity of East Texas’ water supply— “are among the sorts of interests” that NEPA was specifically designed to protect. Lujan, 110 S.Ct. at 3187. These alleged injuries fall squarely within the class of injuries that NEPA safeguards: the circuit courts, to be sure, are flooded with cases which elucidate that water quality and water supply are prototypically matters of great environmental concern. E.g., Olmsted Citizens for a Better Community, 793 F.2d 201, 205 (8th Cir.1986) (a federal action which “poses a threat to the physical resources of the area because of anticipated ... water supply problems” must be preceded by an EIS); Environmental Defense Fund, Inc. v. Andrus, 596 F.2d 848, 851-53 (9th Cir.1979) (<HOLDING>); City of Davis v. Coleman, 521 F.2d 661, Holdings: 0: holding after consideration of a single significance factor that an eis was required 1: holding that an attorney is required to advise a defendant of the direct consequences of a plea and will not be found ineffective for failing to advise of collateral consequences of the plea 2: holding that an eis was required to evaluate the environmental consequences of the decision to divert water to industrial use 3: holding that an agencys decision not to prepare an eis was unreasonable because record demonstrated that four of the regulatory factors were implicated 4: holding that an ea prepared by an agency in that case was not the functional equivalent of an eis


Input: or in a state of flux, “this Court has not hesitated to render its independent judgment as a matter of distinct and enforceable Pennsylvania constitutional law.” Pap’s AM. v. City of Erie, 571 Pa. 375, 812 A.2d 591, 607 (2002) (addressing freedom of expression) (citing Commonwealth v. Smith, 532 Pa. 177, 615 A.2d 321, 325 (1992) (extending double jeopardy protection under Pennsylvania Constitution) and Ins. Adjustment Bureau v. Ins. Comm’r, 518 Pa. 210, 542 A.2d 1317, 1324 (1988) (addressing commercial speech)). Similarly, we have recognized that decisions based on Pennsylvania’s Declaration of Rights “ensure[s] future consistency in state constitutional interpretation, since federal law is always subject to change.” Commonwealth v. Lewis, 528 Pa. 440, 598 A.2d 975, 979 n. 8 (1991) (<HOLDING>). When considering the rights provided by the Holdings: 0: holding that state prosecutor violated fifth amendment by telling jury that a defendants failure to testify supports an unfavorable inference against him 1: holding that a single ballot question encompassing amendments to both article i section 9 and article v section 10c violated the separatevote requirement 2: holding that defendants rights under article i section 9 were violated by the failure to provide a noadverse inference instruction 3: recognizing that rights under article i section 11 are subject to reasonable limitations 4: holding that a defendants fifth amendment rights were violated when an interpreter was withdrawn by the court


Input: the use must be necessary to the use of the dominant estate); Koonce v. J.E. Brite Estate, 663 S.W.2d 451, 452 (Tex.1984) (stating one of the required elements to establish an easement by necessity is that “access must be a necessity and not a mere convenience”). Because necessity is the common, and dispositive element for the purpose of this appeal, we further narrow our review to whether the Saenzes carried their burden of showing there are no genuine issues of material fact on the element of necessity, and we do not consider whether they met their burden on the remaining elements of their theories of recovery. There is no dispute the Saenzes must cross property owned by another in order to access their acreage. “[A]n easement by necessity is not defeated n Antonio 1996, writ denied) (<HOLDING>). In their motion for summary judgment, the Holdings: 0: holding same as to an implied easement appurtenant 1: holding that one who possesses deeded easement need not use the easement to maintain his title and easement cannot be extinguished from nonuser alone 2: holding same as to an easement by implication 3: recognizing that an easement may entitle the easement owner to do acts which were not for the easement would constitute a nuisance 4: holding that an easement agreement and an unrecorded easement plan created an easement


Input: as applicable, to the present case. 1. Purchaser Of Assets As an initial matter, there is no explicit requirement in the substantial continuity test for successor liability that an entity must be a “purchaser of assets” to be a successor. However, the Court recognizes that whether a transfer of assets occurred may be relevant to the find ing of substantial continuity when balancing the equities in a particular case or legal context. See Whitmore v. O’Connor Mgmt., Inc., 156 F.3d 796, 799 (8th Cir.1998) (“[T]here are many difficulties with [plaintiffs] legal argument, not the least of which is the fact that there was no sale of a business creating a predecessor-successor relation between the two corporations”). ERISA appears to be such a legal context. See Einhorn, 632 F.3d at 99 (<HOLDING>); see also Cobb, 452 F.3d at 556 (“Title VII Holdings: 0: holding that seller carried insurance for benefit of buyer and held proceeds in trust for buyer when seller agreed to maintain insurance until possession date but bam burned before buyer took possession 1: holding that broker who represents seller cannot represent buyer in purchase of property from seller without sellers knowledge and consent 2: holding that a purchaser of assets may be liable for a sellers delinquent erisa fund contributions to vindicate important federal statutory policy where the buyer had notice of the liability prior to the sale and there exists sufficient evidence of continuity of operations between the buyer and seller emphasis added 3: holding that a seller could enforce an arbitration provision against a buyer even though only the buyer had signed the provision 4: holding that auctioneer who handled sale of car between seller and buyer could not be held liable for allegedly defective condition of car


Input: Bank of Am. Nat’l Trust & Sav. Ass’n v. Hotel Rittenhouse Assocs., 800 F.2d 339, 345 (3d Cir.1986). Second, the fact that the Defendants are all governmental entities is compelling as well. The public’s interest in accessing a settlement forming part of the public record is strong enough as it is, but it becomes even more so when the government is a party to that agreement. In such cases, the right of access plays an important role in giving the public oversight of the government’s actions, an interest long recognized by the courts. See, e.g., Nixon, 435 U.S. at 597-598, 98 S.Ct. 1306 (noting that the right of access is especially important when sought to keep a watchful eye on the workings of public agencies); see also State ex rel. Colescott v. King, 154 Ind. 621, 57 N.E. 535 (1900) (<HOLDING>); Ferry v. Williams, 1879 WL 7013, 41 N.J.L. Holdings: 0: holding that the county had no standing to sue the state to recover taxes illegally obtained from citizens unless the money belongs to the county 1: holding that plaintiffs claim for conversion of funds was barred by statute of limitations because the conversion occurred when robert white exercised unlawful dominion over the funds  in other words when robert white withdrew the funds from the annuities without plaintiffs permission 2: holding that plaintiff could state a claim for conversion of confidential information 3: holding citizens lacked standing to challenge statute when all citizens affected in the same way 4: holding that a group of concerned citizens could have ac cess to files relating to county officials possible conversion of funds


Input: agent for service of process is one of agency law with particular emphasis on the nature of the relationship and the degree of control exercised. In Cannon Manufacturing Co. v. Cudahy Packing Co., 267 U.S. 333, 45 S.Ct. 250, 69 L.Ed. 634 (1925), the United States Supreme Court held that a parent-subsidiary relationship, by itself, is not sufficient to justify severance of the subsidiary as an agent for the parent corporation. Although in Cannon service of process was made on the subsidiary as agent for the parent, rather than on the parent as in the present case, this factual distinction does not affect the Supreme Court’s reasoning concerning when one corporation becomes the other corporation’s agent for severance. See Akari Imeji Co. v. Qume Corp., 748 F.Supp. 588, 591 (N.D.Ill.1990) (<HOLDING>); Geick v. American Honda Motor Co., 117 F.R.D. Holdings: 0: holding that a parent must exercise some control over the subsidiarys activities which does not require that the subsidiary be controlled to an ultimate degree by its parent  although something more than mere passive investment by the parent is required the parent must have and exercise control and direction  over the affairs of its subsidiary in order for venue to be proper 1: holding that to establish that subsidiary is agent of parent for jurisdictional purposes the parent must exert control that is so pervasive and continual that the subsidiary may be considered an agent or instrumentality of the parent notwithstanding the maintenance of corporate formalities 2: holding there is no precise test for defining how much control a foreign parent corporation must wield over its domestic subsidiary before the subsidiary will be deemed its agent for the purposes of service 3: recognizing separate corporate identity of parent despite evidence that parent was alterego of its subsidiary and was being sued for acts of its subsidiary 4: holding that control person liability adequately alleged because as the sole shareholder of the subsidiary the parent corporation had the potential power to influence and direct the activities of its subsidiary


Input: evade review. DEQ begins by observing that some federal courts have adopted a “rule of thumb” that two years is an adequate time to obtain a final judicial decision on a challenge to a federal administrative agency order. See, e.g., Fund for Animals, Inc., v. Hogan, 428 F3d 1059, 1064 (DC Cir 2005). The time it takes to fully litigate a challenge to a federal administrative agency order or rule, however, may be different from the time it would take to challenge an Oregon agency’s order or rule under the Oregon Administrative Procedure Act. Moreover, the “rule of thumb” that DEQ identifies does not appear to have been uniformly followed by federal courts, particularly in cases involving challenges to NPDES permits. See, e.g., Trustees for Alaska v. EPA, 749 F2d 549, 555 (9th Cir 1984) (<HOLDING>); Montgomery Environmental Coalition v. Costle, Holdings: 0: recognizing a mootness exception for abortion litigation because pregnancy  truly could be capable of repetition yet evading review  1: holding that a party may not invoke the capable of repetition yet evading review exception where its failure to obtain prompt relief has prevented judicial review 2: holding ease not moot when challenged administrative order expired because icc proceedings are continuing and their consideration ought not be defeated by short term orders capable of repetition yet evading review 3: holding that we have no difficulty concluding that challenge to expired fiveyear npdes permit was capable of repetition yet evading review 4: holding that challenge to expired fiveyear npdes permits originally issued eight years earlier was capable of repetition yet evading review


Input: is three years1.”); Ortiz v. Morgenthau, 772 F.Supp. 1430, 1432 (S.D.N.Y.1991) (“The three-year limitations period is appropriate for actions pursuant to 42 U.S.C. §§ 1981 and 1985....”), aff'd, 962 F.2d 4 (2d Cir.1992.). Plaintiffs alleged civil rights claims arise solely out of the 1994 civil suit, and thus are time-barred because they accrued more than three years prior to the commencement of this action. Plaintiff filed this suit on October 5, 1999. Therefore, any civil rights claims which accrued prior to October 5, 1996 are time-barred. All of Plaintiffs civil rights claims arose prior to October 5,1996. In New York, federal civil rights actions are governed by a three-year statute of limitations. See Owens v.Okure, 488 U.S. 235, 250-51, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989) (<HOLDING>). “Federal civil rights claims accrue at the Holdings: 0: holding that new york statute of limitations for  1983 actions was three years 1: holding new mexico statute of limitations for filing a  1983 action is three years 2: holding that the new jersey statute of limitations applicable to  1983 actions is njsa 2a142 3: holding that the statute of limitations for an attorneys fees action under  1415e4b is three years 4: holding that a complaint filed within three years of an accident complied with the michigan court rules and was not barred by the statute of limitations even though service was made more than three years after the accident


Input: the City from intervening as a matter of right. B. The District Court Improperly Engaged In Issue Reduction. The district court acknowledged that the complaint contained allegations regarding both abuse of process and federal preemption, but inappropriately claimed that the case “is not about the applicability of environmental laws.” The district court is mistaken; the question of federal preemption necessarily concerns the applicability of environmental laws. CEMEX’s prayer for relief clearly states that it wishes to conduct its gravel mining operation without impediment from state environmental laws. The district court’s focus on abuse of process and away from the application of environmental laws is not only mistaken, but also impermissible. City of Los Angeles, 288 F.3d at 399 (<HOLDING>) Regardless of the impermissible issue Holdings: 0: holding that while it is not appropriate to consider the merits in determining certification the admissibility of all evidence which has relevance to the merits is not barred if it is relevant to the purpose of refuting or supporting the existence of a class 1: holding that the district court is not free to consider the potential for issue reduction when determining whether a putative intervener has a protectable interest in the merits of the action 2: holding that when the district court dismissed rather than transferred a case not within its jurisdiction and a party appealed that dismissal the circuit court could consider only the propriety of the dismissal on appeal and determining that the circuit court lacked jurisdiction on appeal to consider the merits of the action 3: holding that either the district court or the court of appeals must issue a certificate of appealability on both the merits and the procedural bar before we can consider the merits of a claim that the district court held to be procedurally barred 4: holding that the district court is free to consider the full record in the case when selecting the appropriate sanction


Input: Act. Labor Management Relations Act (Taft-Hartley Act), Pub.L. 80-101, 61 Stat. 136 (1947). The amendments left intact the prohibition against discrimination based on union-membership status, but having found the closed shop susceptible to abuse, Congress outlawed it. See General Motors, 373 U.S. at 740-41, 83 S.Ct. 1453. Congress accordingly rewrote Section 8(3) — which it renumbered as Section 8(a)(3) — to permit only union-shop and agency-shop arrangements requiring union membership (or its equivalent) no earlier than 30 days after the start of employment. Id.; see also 29 U.S.C. § 158(a)(3). Gone was the language authorizing closed-shop agreements that made union-membership a condition of obtaining employment. See N.L.R.B. v. Local Union No. 55, 218 F.2d 226, 232 (10th Cir.1954) (<HOLDING>). But lest the Taft-Hartley Act’s detailed Holdings: 0: holding that immunity agreements are analogous to plea agreements and are enforced under principles of contract law within the constitutional safeguards of due process 1: holding that identical all agreements language  this policy contains all of the agreements between the parties  is an integration clause 2: recognizing closed shop agreements were made illegal 3: holding that agreements other than fullfledged collective bargaining agreements may be contracts within the meaning of  301 4: holding such agreements to be per se illegal


Input: the use and benefit of the life tenant ..."); see also Tex. Prop.Code Ann. § 5.009 (West 2003) (specifying rules with respect to the fiduciary duties of a life tenant of a life estate who is given the power to sell and reinvest life tenancy property). 82 .See Gonzales v. Gonzales, 115 Tex. 16, 273 S.W. 798, 798 (1925) (indicating that the continued homestead rights of a spouse following the death of the owner of the homestead property are contingent upon the spouse's use and possession of the property for homestead purposes); Laster, 826 S.W.2d at 129 ("This homestead protection, however, can arise only in the person or family who has a present possessory interest in the subject property.”); see also Moorhouse v. Crew, 273 S.W.2d 654, 655-56 (Tex.Civ.App.-San Antonio 1954, writ ref'd) (<HOLDING>). 83 . See Lucas v. Lucas, 104 Tex. 636, 143 Holdings: 0: holding that homestead exemption was unavailable even though claimants were  living on the land and claiming it as homestead with the permission or acquiescence of the owner for they could have no homestead right or interest in land to which they had no title 1: holding that spouses homestead interest was not abandoned because right to possession continued 2: holding despite contrary authority that husband debtor with a mere possessoiy interest was not entitled to claim a homestead exemption and stating it is a fundamental tenet of the law of exemptions that the debtor must have an ownership interest in the property before an exemption may be claimed a long line of illinois cases has required that a debtor have title or some ownership interest in property in order to claim a homestead exemption other courts deciding the issue under the federal exemption scheme have held that the key word is interest and that an interest in real property up to a specified amount implies a monetary interest more than just one spouses right to reside with the other 3: holding even though debtor would have been entitled to iowa homestead exemption but for former spouses iowa code section 59821 lien debtor could not avoid the lien because it attached to the homestead prior to or simultaneously with debtors acquisition of the interest in the homestead 4: holding that even if divorced wife only owned a beneficial interest and not title interest in the residence constituting her homestead she was nonetheless entitled to claim a homestead exemption from the forced sale of the property


Input: may bring an action on the contract if the parties to the agreement intended to benefit the non-party, provided that the benefit claimed is a direct and not merely an incidental benefit of the contract. E.B. Roberts Constr. Co. v. Concrete Contractors, Inc., 704 P.2d 859, 865 (Colo.1985). While the intent to benefit the non-party need not be expressly recited in the contract, the intent must be apparent from the terms of the agreement, the surrounding circumstances, or both. Id. In this case, Parrish was only one of many health care providers from which Progressive’s insureds could have chosen for treatment of injuries resulting from automobile accidents covered by that policy. See Kelly Health Care, Inc. v. Prudential Ins. Co. of America, Inc., 226 Va. 376, 309 S.E.2d 305, 307 (1983) (<HOLDING>). Parrish argues that it is nevertheless an Holdings: 0: holding that an incidental beneficiary does not have standing to sue for breach of a contract 1: holding that health care providers could pursuant to  1983 enforce the boren amendment to the medicaid act 2: holding that boren amendment created substantive federal right enforceable by health care providers to reasonable and adequate rates 3: holding that even though certain corporate formalities had not been complied with in the execution of the subject contract the corporation had knowledge of the existence of the contract and treated it as a valid and binding contract and thus ratified the contract by accepting the benefits thereunder 4: holding that member of a large class of health care providers available to the insured was only a potential and incidental beneficiary of the contract and thus not entitled to recover thereunder


Input: however, the Appellant in this case conceded that United States v. Moreno-Rivera, 472 F.3d 49 (2d Cir. 2006), prevents this Court from dismissing this appeal and remanding with instructions that the district court enter a new judgment as in Fuller. See Moreno-Rivera, 472 F.3d at 51-52 (<HOLDING>). The Appellant requested, in the alternative, Holdings: 0: holding that where trial counsel was not ineffective appellate counsel was not ineffective for failing to raise claim of ineffectiveness of trial counsel 1: holding that an issue was not properly before the court on appeal because the trial court did not have the opportunity to make any findings of fact regarding it 2: holding that because it was not clear on the present record unlike in fuller that morenoriveras trial counsel was constitutionally ineffective the court should dismiss the appeal as untimely and the defendant would have the opportunity to develop the recordand seek a remedy for his trial counsels alleged ineffectiveness should he prove that trial counsel failed to timely file a requested appealin a  2255 motion before the district court 3: holding that a defendant whose new trial motion is based on the alleged ineffectiveness of trial counsel may bypass rule 33s sevenday time limit only if his claim that his counsel  was ineffective was based on information unavailable to the defendant at the time of trial 4: holding a party must timely present his legal theories to the trial court so as to give the trial court an opportunity to rule properly


Input: So.2d 185, 187-88 (Fla.1993). When a police officer turns on his or her emergency and takedown lights under these circumstances, a reasonable person would expect to be stopped, at a minimum, for a traffic infraction and perhaps for the crime of fleeing and eluding if he or she drove away. See § 316.126, Fla. Stat. (1999); State v. McCune, 772 So.2d 596 (Fla. 5th DCA 2000). Accordingly, the use of such lights cer who has initiated a consensual encounter may turn on his emergency lights for reasons of traffic safety during the consensual encounter. In this case, there is no dispute that the deputy lacked a well-founded suspicion that Mr. Hrezo had committed or was about to commit a crime when he turned on his emergency lights. See Danielewicz v. State, 730 So.2d 363 (Fla. 2d DCA 1999) (<HOLDING>). The cocaine and drug paraphernalia that the Holdings: 0: holding that officers observation of a known drug dealer approaching the defendants car gave rise to reasonable suspicion 1: holding the location of an investigative stop is a factor that contributes to an officers reasonable suspicion 2: holding investigative stop based on officers observation of defendant apparently asleep in legally parked car was improper 3: holding that even if an officers stop of a defendant who was on foot was unlawful the search of a parked car was justified by a different officer observing a gun magazine in plain view in the car 4: holding that the fact that a group of men surrounding a car parked in a marked bus stop dispersed upon the approach of investigating officers was relevant to a reasonable suspicion determination


Input: ruling precluded Bolt from testifying about the work papers. The court did not explicitly make a ruling on Bolt’s testimony concerning the work papers. The court stated it was not prepared to rule on Bolt’s analysis of the work papers at the beginning of the trial. The court also stated it had no problem with QCBT mentioning inconsistencies and inaccuracies in the work papers in its opening statement; The record clearly establishes the court’s ruling on the motion in limine declared that Bolt’s testimony concerning generally accepted CPA auditing standards, whether Kireher breached those standards, and causation, was inadmissible. The court did not equivocate or state it would reconsider its ruling at trial. Cf. Holst v. Countryside Enters., Inc., 14 F.3d 1319, 1323 (8th Cir.1994) (<HOLDING>). Thus, as to this testimony, we conclude the Holdings: 0: holding defendant failed to preserve for appeal the question of admissibility of evidence that was the subject of the motion in limine where defendant failed to object to evidence when offered at trial 1: holding that a trial courts evidentiary ruling on a pretrial motion is not sufficient to preserve the issue    for appeal unless a defendant renews the objection during trial 2: holding that a party failed to preserve error by not pursuing a ruling at trial where the courts motion in limine ruling invited the party to attempt to admit the evidence during trial 3: holding that a party had failed to preserve an argument for appellate review when that party had failed to argue the issue to the trial court either at trial or in his postjudgment motion 4: holding that trial courts have discretion to decide whether litigation conduct violates a ruling on a motion in limine


Input: Section 1692f(6), referenced in this definition, prohibits a debt collector from taking or threatening to take “nonjudicial action to effect dispossession or disablement of property” if there is no present right to possession of the property claimed as collateral through an enforceable security interest, if there is no present intention to take possession of the property, or if the property is exempt by law from such dispossession or disablement. Under the cited definition, a person whose principal purpose is the enforcement of security interests is a “debt collector” for the purpose of § 1692f(6), but is not subject to the rest of the FDCPA unless he also fits § 1692a(6)’s general definition of a debt collector. See Kaltenbach v. Richards, 464 F.3d 524, 527, 527 n. 3 (5th Cir.2006) (<HOLDING>) (citing Montgomery v. Huntington Bank, 346 Holdings: 0: holding that effect of discharge of debt under bankruptcy code is the same as it was under the 1898 bankruptcy act it is not an extinguishment of the debt but only a bar to enforcement of the debt as a personal obligation of the debt or 1: holding that a person may regularly render debt collection services even if these services are not a principal purpose of his business 2: holding that an entity engaged in collection activity on a defaulted debt acquired from another is a debt collector under the fdcpa even though it may actually be owed the debt 3: recognizing distinction between general debt collection and enforcement of a security interest and observing that by the plain language of  1692a6   a person whose business has the principal purpose of enforcing security interests but who does not otherwise satisfy the definition of a debt collector is subject only to  1692f6 4: holding that law firm executing nonjudicial foreclosure proceeding was enforcing a security interest rather than collecting a debt and hence fell outside the ambit of the fdcpa except for the provisions of section 1692f6


Input: were made after 11 October 2002. See Warren v. Warren, 175 N.C. App. 509, 517, 623 S.E.2d 800, 805 (2006); 2002 N.C. Sess. Laws ch. 159, sec. 33.5. Here, the parties separated a January 2002. Therefore, any post-separation, debt-reduction payments made prior to 11 October 2002 should technically not be characterized as divisible property. However, Plaintiff does not argue that the trial court erred by mischaracterizing, in this particular way, the post-separation payments made by the parties as divisible property. Nonetheless, we hold that any error regarding the trial court’s characterization of any such payments as divisible property to be harmless. See Cooke v. Cooke, 185 N.C. App. 101, 107-08, 647 S.E.2d 662, 667 (2007), disc. review denied, 362 N.C. 175, 657 S.E.2d 888 (2008) Holdings: 0: holding that it was not an abuse of discretion to award a spouse all of the divisible property attributable to his postseparation payments which reduced marital debt 1: holding that the lower court failed to account for payments made in connection with the marital home including mortgage payments 2: holding that funds advanced by husbands parents as down payment for purchase of marital residence was a gift and not a loan where there was no promissory note or other documentation no payments were made to parents for several years and no payments were requested 3: holding that the collateralsource statute requires a reduction of the judgment only for payments made prior to the verdict 4: holding that it was error but not error necessitating remand for a trial court to mischaracterize postseparation payments made prior to 11 october 2002 towards marital debt as divisible property and to distribute all such payments to the party who made them


Input: 139 Va. 394, 124 S.E. 477, 481 (1924)). All of these versions of fraud share the common element of a false statement of fact. In the present case, Plaintiff has not alleged any statement attributable to Womack that was false. Plaintiff does allege that, “Defendants engaged in an aggressive advertising campaign throughout Virginia touting its self-proclaimed honesty and fair dealing to prospective consumers, including the Plaintiffs.” (Compl. ¶ 4.) While this amounts to an assertion by Defendants, it is not an assertion of fact. It is well established that such an expression of opinion “is no fraud.” McMillion v. Dryvit Sys., Inc., 262 Va. 463, 471-72, 552 S.E.2d 364 (2001); see ECA Local m IBEW Joint Pension Trust of Chicago v. JP Morgan Chase Co., 553 F.3d 187, 205 (2nd Cir.2009) (<HOLDING>); Alpine Bank v. Hubbell, 555 F.3d 1097, 1108 Holdings: 0: holding that five alleged incidents in four years were too few too separate in time and too mild  to create an abusive working environment 1: holding that false statements in a labor dispute that were injurious to employers reputation were not preempted 2: holding that a plaintiff cannot avoid the securities fraud exception by pleading mail fraud or wire fraud if the conduct giving rise to those offenses also amounts to securities fraud 3: holding that defendants selfprofessed standardsetting reputation for integrity were too general to sustain charge of fraud 4: holding sanctions order was too general to support award


Input: each other prior to trial is of no consequence. Under those circumstances, we are persuaded that there was manifest necessity to declare a mistrial, considering the “ends of justice for the defendant and the State.” Farmer, supra, 48 N.J. at 171, 224 A.2d 481. In our view, the trial court exercised sound discretion in declaring a mistrial and that decision is entitled to deference. Ibid, (noting that “appellate courts must realize that under our system the conduct of a trial is committed to the trial judge, and that in appraising the exercise of his discretionary action a wise and tolerant restraint must be practiced if the separate levels of the judicial process are to be maintained.”). See also Arizona v. Washington, supra, 434 U.S. at 515-16, 98 S.Ct. at 835-36, 54 L.Ed.2d at 734 (<HOLDING>); State v. Modell, 260 N.J.Super. 227, 239, 615 Holdings: 0: holding plaintiff responsible for attorney error 1: holding that the record supported the district courts award of damages 2: holding the federal government responsible for the immediately foreseeable consequences of its actions 3: holding defendant implicitly consented to trial courts declaration of a mistrial 4: holding that trial courts responsible and deliberate actions supported mistrial declaration


Input: in the best position to discern the impression conveyed by the witness, and because the IJ’s finding of non-responsiveness was supported by the record, the IJ reasonably found that Li’s demeanor undermined her credibility. See Zhou Yun Zhang, 386 F.3d at 73. Similarly, the record supports the IJ’s finding that Li was “hesitant and vague” when asked to describe her mother’s practice of Falun Gong. The record reflects that Li’s testimony on this topic was “spare” and that the IJ attempted to “probe for incidental details.” Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 152 (2d Cir.2003). Because the IJ’s finding also included her perception of Li’s demeanor, it serves as an adequate basis for an adverse credibility finding. See Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 114 (2d Cir.2005) (<HOLDING>). Additionally, the IJ reasonably found that it Holdings: 0: holding that history of dishonesty can support an adverse credibility finding 1: holding that in the absence of an adverse credibility determination the court must accept petitioners testimony as true 2: holding that the record did not support the agencys adverse credibility finding in the absence of additional probing 3: holding that speculation and conjecture cannot support an adverse credibility finding 4: holding that inconsistencies  adequately support the administrative law judges alj  adverse credibility finding


Input: these two provisions do not do, however, is clearly define how states can invoke standing to bring Title VII suits. Nonetheless, a review of the standing capacities traditionally available to plaintiff states confirms that Congress intended to permit parens patriae actions when it authorized state governments to bring suit under Title VII. In Connecticut ex rel. Blumenthal v. Cahill, 217 F.3d 93, 97 (2d Cir.2000), the Second Circuit held that “Plaintiff-States generally bring suit in the federal courts in one of three standing capacities: (1) proprietary suits in which the State sues much like a private party suffering a direct, tangible injury; (2) sovereignty suits requesting adjudication of boundary disputes or water rights, or (3) parens patriae suits in which States h Cir.1976) (<HOLDING>); Gray v. Greyhound Lines, East, 545 F.2d 169, Holdings: 0: holding that discriminatory employment practices are cognizable under title ix 1: holding that white woman who sued under title vii to enjoin racially discriminatory employment practices was aggrieved person within meaning of the statute 2: holding individual defendants are not an employer within meaning of title vii 3: holding that white woman who was not object of discrimination but who alleged injury because of race discrimination against another was a person aggrieved within the meaning of title vii 4: holding that a plaintiff alleging discriminatory employment practices with regard to race has an independent remedy under  1981 without respect to exhaustion under title vii


Input: a grace period of 30 days to permit the claimant to comply with that subsection.” See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 985-87, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 887. Under section 13.01(g), the granting of a 30-day grace period is mandatory upon a finding that the failure to comply was the result of accident or mistake. Walker v. Gutierrez, 111 S.W.3d 56, 62-63 (Tex. 2003). Although a trial court has the discretion to find good cause and grant an extension under section 13.01(f) based on facts that also would constitute accident or mistake under section 13.01(g), this does not mean that the analysis under these two statutory provisions is the same. See James, 2005 WL 713671, at *2-4 (<HOLDING>). Even if the Scotts had proven accident or Holdings: 0: holding that claims under the adea and the nyshrl are subject to the same analysis 1: holding that analysis under section 1301g is not the same as the analysis under section 1301f and that the existence of accident or mistake is irrelevant because appellants moved for relief only under section 1301f 2: holding that equitable relief is not available to an individual under this section of the fdcpa 3: holding that plaintiff had failed to state a claim for relief under section 1983 4: holding that section 4a12 is a broadly applicable section of the guidelines


Input: will undoubtedly assist us in our present analysis. Indeed, Massachusetts courts have indicated that when a Massachusetts statute is similar to a statute in another jurisdiction, even though it may not be identical, a consideration of the foreign jurisdiction’s law, including judicial decisions, is appropriate, though by no means binding. See Piemonte v. New Boston Garden Corp., 377 Mass. 719, 723, 387 N.E.2d 1145, 1148 (1979). An examination of case law from other jurisdictions reveals that there are two types of actions that arise during the period of corporate existence but survive past the windup period of the survival statute. The first are those actions that are brought in an individual capacity for a personal wrong. See Hunter v. Old Ben Coal Co., 844 F.2d 428, 432 (7th Cir.1988)(<HOLDING>). Indeed, when a claim is held individually by Holdings: 0: holding shareholder thirdparty benficiaries to corporate contract have individual breachofcontract claim 1: holding that a corporate officer signing a contract in his corporate capacity is generally not liable for damages under the contract 2: holding that even where no attorneyclient relationship exists between a shareholder and the corporate attorney this does not necessarily mean that the law firm had no fiduciary duty to the shareholder and observing that instances in which the corporation attorneys stand in a fiduciary relationship to individual shareholders are obviously more likely to arise where the number of shareholders is small in such cases it is not really a matter of the courts piercing the corporate entity 3: holding that shareholders lack standing to sue as thirdparty beneficiaries to allegedly breached contract unless the contract indicates the intent to benefit them directly independently of their shareholder status 4: holding that sole shareholder could recover on behalf of company but not in individual capacity for former shareholder and officers misappropriation of corporate assets


Input: 717 (1910). In all of those situations, the conduct at issue occurred before a specific risk had been identified; the risk at issue was the inherent danger of gas or electricity. Here, in contrast, the risk at issue was not the inherent danger of mulch, but the unique and specific danger of the mulch surrounding these buildings and its known propensity to catch fire from careless disposal of smoking materials. See Shantigar Found. v. Bear Mt. Builders, 441 Mass. 131, 144, 804 N.E.2d 324 (2004) (“Massachusetts law recognizes that in the absence of a statutory duty to [take certain fire prevention measures], a jury could find such a duty when the owner knows of a ‘particular danger of fire.’ ”); accord Little v. Lynn & Marblehead Real Estate Co., 301 Mass. 156, 161, 16 N.E.2d 688 (1938) (<HOLDING>). In Stewart, the SJC also held that expert Holdings: 0: holding that damage to building and personal property as a result of fire negligently caused by defendant was to be measured by reasonable cash market value of the property at the time it was destroyed by the fire or if it was not totally destroyed by the diminution in its fair market value before and after the fire 1: holding that the relationship between fire insurance regulation and rating fire loss fire prevention and fire investigation is rational and reasonable 2: holding that not having been shown to have knowledge of any particular danger of fire the defendant was not obliged to take precautions to guard against it 3: holding that even without  expert testimony the grand jurors common knowledge of the nature of fire would have allowed them to conclude that a fire spreads and becomes more dangerous the longer it is left unattended 4: holding that the fact that the fire was communicated to other property may reasonably be inferred from common knowledge of the operation of the established laws of nature in the familiar forms of combustion  and the effects of wind on fire


Input: and Key were unreliable because they were not asked to identify him in a photographic lineup before trial and their testimony about the appearance of the surviving assailant differed to some extent. However, Appellant did not object to the admission of this eyewitness identification evidence at trial. See Neil v. Biggers, 409 U. S. 188, 196-201 (93 SCt 375, 34 LE2d 401) (1972) (discussing the due process protection against the admission of evidence deriving from suggestive identification procedures). And it is firmly established that the determination of a witness’s credibility, including eyewitness identification, is within the exclusive province of the jury. See Reeves v. State, 288 Ga. 545, 546 (705 SE2d 159) (2011). See also Walker v. State, 295 Ga. 688, 690 (763 SE2d 704) (2014) (<HOLDING>); Vega v. State, 285 Ga. 32, 33 (673 SE2d 223) Holdings: 0: holding a proffer of testimony is required to preserve the issue of whether testimony was properly excluded by the trial judge and an appellate court will not consider error alleged in the exclusion of testimony unless the record on appeal shows fairly what the excluded testimony would have been 1: holding that expert testimony should not be admitted as to a matter that is obviously within the common knowledge of jurors because such testimony almost by definition can be of no assistance 2: holding that because the special master saw the witnesses and heard the testimony he has broad discretion in determining credibility 3: holding that a trial court did not abuse its discretion by denying a motion to exclude testimony of a witness for an alleged sequestration violation where no impermissible harmonization of testimony could be inferred from the witnesss reading of the newspaper in the absence of any evidence that this testimony was based on what he read 4: 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


Input: different place in the superseding indictment than it does in the statute makes no difference here. First, the “attempt” language appears after “knowingly” and before the other elements of the crime. “Attempt” can fairly be read to modify all of the elements that follow the word, not just the “means or facility of interstate commerce” element. Second, even if the “attempt” language in the superseding indictment is somewhat imprecise, this does not render the superseding indictment insufficient. “[D]ue process does not require a recitation of the statute; it requires only that the [indictment] as a whole set forth the critical details of the offense charged.” United States v. Lentsch, 369 F.3d 948, 953 (6th Cir.2004); see also United States v. Martinez, 981 F.2d 867, 872 (6th Cir.1992) (<HOLDING>). Third, given the circumstances in which this Holdings: 0: holding that the government need not prove that the defendant actually knew the exact nature of the substance to establish mens rea knowledge of drugs illegality is sufficient 1: holding that a mens rea of unlawfully in the indictment was sufficient because the indictment referenced the applicable statute which required a reckless mens rea 2: holding convictions under fla stat  893131 qualify as serious drug offenses pursuant to the acca despite the florida statutes lack of a mens rea element 3: holding that an indictment gave sufficient notice when the indictment charged the elements of the offense 4: holding that an indictment that omitted the mens rea element was sufficient because it cited the applicable statutes which informed the defendant of the elements of the charged offenses


Input: stated: In many cases it would work the grossest injustice to a carrier if it could not rely on the contract of shipment it has made, know whether it was bound to obey the state or Federal law, or, obeying the former, find itself mulcted in penalties for not obeying the law of the other jurisdiction, simply because the shipper intended a transportation beyond that specified in the contract. It must be remembered that there is no presumption that a transportation when commenced is to be continued beyond the state limits, and the carrier ought to be able to depend upon the contract which it has made, and must conform to the liability imposed by that contract. Id. at 414, 27 S.Ct. at 363. 21 . Compare Klitzke v. Steiner Corp., 110 F.3d 1465, 1470 (9th Cir.1997); Shew, 370 F.2d at 378, 380 (<HOLDING>); Beggs v. Kroger Co., 167 F.2d 700, 703 (8th Holdings: 0: holding shipments from a distribution point supplied by outofstate shipments made pursuant to preexisting orders were interstate in character 1: holding prima facie showing of unreasonableness made by presenting evidence that tariff rates in effect at time of shipments were well above rates paid to other carriers for same service 2: holding that warehouse distributions to companyowned stores constituted interstate commerce since inter alia the company knew at the time oufiofstate shipments to the warehouse commenced that the shipments were bound for its retail stores 3: holding that interstate shipments to a warehousedistribution point through to samestate retail outlets retained their interstate character where the warehouse was merely a convenient instrumentality for the division of the shipments coming to it and the continuation of the movement of each part to the retail stores 4: holding that the halt of shipments of unprocessed milk without processing or commingling did not remove the interstate character of the shipments


Input: developed over a period of years is evenhandedly applied.” Id. at 401, 101 S.Ct. 2424. Reliance on “public policy” was similarly misplaced: “ ‘[pjublic policy dictates that there be an end of litigation.’ ” Id. (quoting Baldwin v. Traveling Men’s Ass’n, 283 U.S. 522, 525, 51 S.Ct. 517, 75 L.Ed. 1244 (1931)). See also Supporters to Oppose Pollution v. Heritage Group, 973 F.2d 1320, 1325 (7th Cir.1992) (“Moitie scotches equitable arguments” against application of principles of preclusion in any particular situation). Just as fairness and equity are no reason not to apply claim preclusion, a party seeking its application need not show that the particular circumstances are abusive or vexatious. See First Alabama Bank of Montgomery v. Parsons Steel, Inc., 825 F.2d 1475, 1482 (11th Cir.1987) (<HOLDING>). It is the mere fact of relitigation that is Holdings: 0: holding that suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment irrespective of the good faith or bad faith of the prosecution 1: holding that a bad faith claim is a tort 2: holding that suppression by the prosecution of evidence favorable to an accused  violates due process where the evidence is material either to guilt or to punishment irrespective of the good faith or bad faith of the prosecution 3: holding that showing of bad faith prosecution or harassment not required for issuance of injunction to prohibit relitigation 4: holding that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment irrespective of the good faith or bad faith of the prosecution


Input: that they made a fraudulent statement in the October letter when they said that “the congregation of [the Church] has been working on the ‘Ball Field’ at [the Park], without pay, since April 2013” because “work performed by members of the Church congregation had ceased in May 2013.” (Compl. ¶ 92.) The next paragraph of the Complaint, however, belies this assertion of falsity because it acknowledges that the October letter also informed the Town that the Church’s work at the Park “had stopped.” (Id. ¶ 93,). In other words, the October letter stated that the Church had worked on the soccer field, but this work had ended. Thus, the Complaint does not adequately explain why the October letter was fraudulent. Compare Houraney v. Burton & Assocs., P.C., 701 F.Supp.2d 258, 262 (E.D.N.Y. 2010) (<HOLDING>), with Nanjing Standard Int'l, Ltd. v. DMD Holdings: 0: holding that plaintiff failed to establish pretext where plaintiff was terminated after the employer conducted an investigation into a subordinates allegations of misconduct on the part of the plaintiff and believed the allegations to be true even though plaintiff presented evidence in the lawsuit that the allegations may have been false 1: holding that a prior inconsistent statement was admissible and the defendant failed to ask for a limiting instruction that the jury could not use the statement as substantive evidence 2: holding that failure to explain allegations and possible consequences mandated reversal 3: holding that fundamental error occurred and reversal was required when trial court failed to explain allegations or to explain adequately future use of adjudication record 4: holding that plaintiff failed to explain why statement was fraudulent where it was not necessarily inconsistent with plain tiffs factual allegations


Input: decision to waive his right to counsel. 3 . Our concurring colleague, Judge Katzmann, disagrees with our characterization of the quoted language as dictum. In his view, the Supreme Court would not have vacated the state judgment of conviction if it had not been satisfied that Faretta knowingly exercised his right to self-representation; thus, the Court’s discussion of what constitutes a "knowing and intelligent” waiver of the right to counsel “was essential to its conclusion that Faretta’s constitutional rights had been violated.” Infra at 566. We are not convinced. Given Faretta's recognition of a constitutional right to represent oneself, the Court might well have vacated the state conviction and remanded the case even without a finding of a valid waiver of the right t 1984) (<HOLDING>); see also United States v. Medina, 944 F.2d Holdings: 0: holding that for a trial judge to accept a defendants guilty plea without an affirmative showing that it was intelligent and voluntary violates the defendants constitutional rights 1: holding that right to challenge factual basis is waived by guilty plea 2: holding that factual basis inquiry is one way of satisfying the constitutional requirement that a guilty plea be voluntary and intelligent but it is not mandated by due process 3: holding that a voluntary and intelligent plea of guilty is an admission of all the elements of a formal criminal charge 4: holding that due process requires state courts to make an affirmative showing that a guilty plea is intelligent and voluntary


Input: the Sixth Amendment of the United States Constitution. However, if Johnson’s claim rests upon the ineffectiveness of his attorney on appeal, then his cause of action could not have accrued prior to the disposition of his appeal. For these reasons, we find that Johnson’s cause of action for habeas corpus did not accrue until his direct appeal was decided by this court on May 19, 1989. See Johnson, 774 P.2d 1141. Because this decision occurred after the legislature’s deletion of imprisonment as a disability that tolls the statute of limitations under section 78-12-36, the trial court correctly held that Johnson’s claim was time-barred. We recognize that the ninety-day statute of limitations applicable to habeas corpus actions has been declared unconstitutional. See Currier, 862 P.2d 1357 (<HOLDING>); see also Renn v. Utah State Bd. of Pardons, Holdings: 0: recognizing that rights under article i section 11 are subject to reasonable limitations 1: holding that executive branch prosecution of disciplinary charges against a judge violated the separation of powers provision in the nevada constitution a provision identical to article v section 1 of the utah constitution 2: holding that refusal to proceed to trial by arbitrarily abating case violates article i section 13 of the texas constitution 3: holding that the contracts clause article i section 10 clause 1 to the united states constitution does not apply to the actions of the federal government 4: holding that ninetyday statute of limitations on habeas actions is unreasonable limitation that violates article i section 11 of utah constitution


Input: me with real questions about the fairness of this trial. See United States v. Haynes, 729 F.3d 178, 197 (2d Cir.2013) (vacating judgment of conviction and remanding because multiple errors, considered together, “call into serious doubt whether the defendant received the due process guarantee of fundamental fairness to which she and all criminal defendants are entitled”). See infra Point IV. Because the Confrontation Clause violation and the instructional error rendered defendants’ trial fundamentally unfair, a new trial as to all counts is warranted. See Spencer v. Texas, 385 U.S. 554, 563-64, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967) (“[T]he Due Process Clause guarantees the fundamental elements of fairness in a criminal trial.”); cf. United States v. Bruno, 383 F.3d 65, 91 (2d Cir.2004) (<HOLDING>). See infra Point V. I The Constitution Holdings: 0: recognizing spillover effect that warranted vacatur of counts other than those primarily infected with error 1: 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 2: holding error was structural because of the difficulty of assessing the effect of the error 3: recognizing with approval the practice following vacatur of some counts of conviction on appeal of increasing the defendants sentence on remaining counts to yield an aggregate sentence equal to the original aggregate imposed 4: 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


Input: v. New Jersey were tried and convicted based on confessions elicited without Miranda warnings, and the convictions became final before Miranda was decided. Id. at 725-26, 86 S.Ct. 1772. In unambiguous terms, the Court held that “Miranda applies only to cases in which the trial began after the date of our decision one week ago.” Id. at 721, 86 S.Ct. 1772. The rule did not apply “retroactively,” that is, to convictions which were already final, nor did it apply to cases tried before Miranda’s effective date. Id. at 731-32, 86 S.Ct. 1772. However, even for statements elicited pre-Miranda, the rule would henceforth apply “to persons whose trials had not begun as of June 13, 1966.” Id. at 734, 86 S.Ct. 1772; see also Frazier v. Cupp, 394 U.S. 731, 738, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969) (<HOLDING>). Since Johnson v. New Jersey and Frazier, no Holdings: 0: holding that a confession obtained in violation of miranda was admissible for impeachment 1: holding miranda decision does not apply retroactively 2: holding that miranda was constitutionally based but declining to go further than miranda  to establish a constitutional right 3: holding on collateral review that miranda rule did not apply to confession because petitioner was tried before miranda decision 4: holding miranda inapplicable because defendant not in custody


Input: most favorable to the plaintiffs, the court finds that a material issue of fact exists concerning whether or not the La Vega site may currently present an imminent and substantial endangerment. Defendant Esso has presented evidence that the chemicals released at the site do not constitute such a threat, but this evidence has been controverted by plaintiffs. Accordingly, this issue must be reserved for trial. F. Plaintiffs’ CWA Claim Adequately Identifies the Effluent Standard That Esso is Allegedly Violating Defendant argues that plaintiffs claim does not identify the effluent al cases in support of assertion that “the CWA has been consistently applied by the courts to land and waters located in Puerto Rico”); Commonwealth of Puerto Rico v. Alexander, 438 F.Supp. 90, 94-96 (D.D.C.1977) (<HOLDING>). Plaintiffs’ claim alleges that an indivisible Holdings: 0: holding that the federal water pollution control act amendments of 1972 and certain regulations promulgated thereunder are applicable to nonnavigable waters of puerto rico despite contention that such waters are areas of purely local concern and that federal regulation of such areas is inapplicable under the puerto rican federal relations act 1: holding that no implied private right of action exists under the nha and noting that the district of columbia first sixth and ninth circuits have held that the housing act and regulations promulgated thereunder do not satisfy the fourpart cort test and thus have refused to create a right of action for private parties who wish to sue to enforce the statute or regulations promulgated thereunder 2: holding ripe for review an epa informal adjudication that regulations promulgated under the federal water pollution control act applied to certain brass cleaning facilities 3: holding that a private company operating under a federal contract was not a federal department agency or instrumentality for the purposes of section 313 of the federal water pollution control act amendments of 1972 4: holding that a landlord has a duty of reasonable care over common areas or other areas over which the landlord has retained control