Input: torture.” As is evident from the facts recited above, there is more than ample evidence to support such a conclusion. This distinction—finding torture but not depravity of mind—is significant. The vagueness problem of the “heinous, atrocious, and cruel” (“HAC”) instruction is curable with appropriately narrowing language. We have held, of course, that requiring “torture or depravity of mind” does not solve the vagueness problem. Requiring only torture, however, does. See Maynard v. Cartwright, 486 U.S. 356, 364-65, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988) (implying that “torture” limitation suffices to cure vagueness of HAC); Walton v. Arizona, 497 U.S. 639, 654, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990) (confirming implication); Duvall v. Reynolds, 139 F.3d 768, 793 (10th Cir.1998) (<HOLDING>); cf. Wade v. Calderon, 29 F.3d 1312, 1319-20 Holdings: 0: holding evidence of serious physical injury insufficient where victim was shot in right cheek but did not have to have surgery and victim denied having any longterm effects from the shooting 1: holding that begay rejected that circuits earlier approach under which an offense presented a serious potential risk of physical injury to another if the offense conduct had the potential for serious physical injury to another 2: holding that torture occurs when the victim is subjected to serious physical abuse before death that serious sexual abuse may constitute serious physical abuse that facts supporting a finding of torture will also support a finding of depravity of mind and that the age of the victim may be considered in determining whether the evidence shows depravity of mind 3: holding the harmed victim need not be the victim of the offense of conviction 4: holding that torture of the victim or serious physical abuse language in the instruction cures vagueness of hac


Input: of FDCPA claims, concluding that the obligation to pay for criminal or tortious actions does not constitute a “debt.” See, e.g., Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C., 111 F.3d 1322, 1326 (7th Cir.1997) (“[A]lthough a thief undoubtedly has an obligation to pay for the goods or services he steals, the FDCPA limits its reach to those obligations to pay arising from consensual transactions, where parties negotiate or contract for consumer-related goods or services.”); Zimmerman v. HBO Affiliate Group, 834 F.2d 1163, 1168 (3d Cir.1987) (“[N]othing in the statute or the legislative history leads us to believe that Congress intended to equate asserted tort liability with asserted con sumer debt.”); Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1371 (11th Cir. 1998) (<HOLDING>). Plaintiffs argue that they were in consensual Holdings: 0: holding that back rent is debt under the fdcpa 1: holding that fdcpa applies to attorneys who regularly engage in consumer debt collection activities 2: holding that debt under the fdcpa is limited to liability arising out of consensual consumer transactions and not tortious activity 3: holding the fdcpa applies to attorneys who regularly engage in consumer debt collection activity even when that activity consists of litigation 4: holding that unpaid traffic fine is not debt under fdcpa


Input: jury to conclude that the vehicle registration and inspection lane checklist, which indicated that a vehicle owned by Mendoza and bearing the license plate number 0285 had been inspected on June 4, 2009, was false. Moreover, Wheatley’s testimony that Mendoza physically deposited the 0285 license plates with the Commission when he sold the 0285 license plates and medallion in December 2008 would allow a reasonable jury to conclude that Mendoza knew the vehicle registration and inspection lane checklist were false. A jury could also reasonably infer from Mendoza’s possession of the false vehicle registration and inspection lane checklist that he had procured those documents and that he had the intent to file them at the BMV. See United States v. Hall, 632 F.2d 500, 502 (5th Cir. 1980) (<HOLDING>); People v. Rodriguez, 71 A.D.3d 450, 897 Holdings: 0: holding evidence establishing the intent of the defendants to distribute drugs also permits the inference they intended to exercise dominion over them to demonstrate constructive possession 1: holding jurys finding that money in bank safe deposit box was contraband was not supported by factually sufficient evidence when safety deposit box was located a distance away from marijuana despite fact that canine alerted to safety deposit box 2: holding defendants possession of fake ids was sufficient to infer his intent to defraud or deceive 3: holding defendants possession of forged checks was sufficient to allow inference of his intent to deposit them 4: holding that an inference of intent to distribute was not warranted from the possession of one ounce of cocaine


Input: (1952). The general test to resolve this question employs the following factors: 1) the form and manner of the employment contract concerning provisions of full-time or part-time employment; 2) whether the employment contract provides for vacation time, sick leave, or a retirement program; 3) the extent an nature of control the individual has over the execution of his duties; 4) the form of payment; and 5) the ownership status of equipment which is utilized. Rivera v. Hospital Universitario, 762 F.Supp. at 17. No one factor, by itself, is sufficient to establish an individual as an independent contractor. Id. In fact, it is unusual to find cases where the distinction between an “independent contractor” and an employee is crystal clear. Nazario v. Gonzalez, 101 D.P.R. 569, 572 (1973) (<HOLDING>). In Landrón v. Labor Relations Board, 87 Holdings: 0: holding that depriving an employee of vacation days to which he was entitled would constitute adverse action 1: holding that an employer is accountable to a discharged employee for unpaid compensation if the employee was terminated in bad faith and the compensation is clearly connected to work already performed 2: holding that vacation pay is shortterm compensation because an employee must work six months before getting any vacation vacation pay was computed on the basis of the employees weekly earnings and if an employee was laid off he received vacation pay on a pro rata basis 3: holding that under the mwa the question of whether an employee was an independent contractor or an employee was a question of statutory interpretation 4: holding that an electrical appliance representative and salesperson was not an independent contractor but an employee and as such was entitled to unpaid compensation for accumulated vacation time


Input: abuse of discretion. VI. Finally, the failure to give eyewitness identification instructions was not harmless. To reiterate, the State lacked any evidence directly connecting Cabinatan to the charged offenses. The testimony of Kincaid was in some respects inconsistent with the police report she filled out before viewing Cabina-tan. Also, her identification was the result of the inherently suggestive environment of a police showup. Cabinatan presented alibi evidence that indicated that he was not present when the thefts occurred. Hence, there was a reasonable possibility that the absence of eyewitness instructions caused the jury to place undue weight on Kincaid’s testimony; thus contributing to Cabinatan’s conviction. See State v. Pauline, 100 Hawai'i 356, 378, 60 P.3d 306, 328 (2002) (<HOLDING>) (internal quotation marks omitted). Absent Holdings: 0: holding that error is considered harmless if it is established beyond a reasonable doubt that the error complained of did not contribute to the verdict or alternatively stated that there is no reasonable possibility that the error contributed to the conviction 1: holding that the harmless error test places a burden on the state to prove that the error complained of did not contribute to the verdict or alternatively stated that there is no reasonable possibility that the error contributed to the conviction 2: holding that under the harmless error standard an appellate court must determine whether there is a reasonable possibility that the error complained of might have contributed to the conviction 3: holding that harmless error test is satisfied when there is no reasonable possibility that the error contributed to the conviction 4: holding that an error is harmless if there is no reasonable possibility that it contributed to the conviction


Input: to “[m]ake reasonable accommodation to the known physical or mental limitations of qualified employees with handicaps unless the accommodation would impose an undue hardship on the operation of the agency's program," 29 C.F.R. § 1614.102(a)(8). In order to fall under the protections of the Rehabilitation Act, a claimant must have a disability. The term "disability," as used in the Rehabilitation Act and the ADA, means "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such impairment." 42 U.S.C. § 12102(2). In determining whether an impairment significantly restricts an individual's ability to perform a major , 101 F.3d 346, 349 (4th Cir.1996) (<HOLDING>); Petty v. Freightliner Corp., 123 F.Supp.2d Holdings: 0: holding that a twentyfive pounds lifting restriction did not substantially limit any major life activities 1: holding that a lifting restriction of ten pounds did not constitute a physical impairment that substantially limited a major life activity 2: holding as a matter of law that a twentyfive pound lifting limitation does not constitute a significant restriction on ones ability to lift work or perform any other major life activity 3: holding that a lifting restriction did not substantially limit a computer technicians ability to engage in the major life activity of working 4: holding plaintiff with carpal tunnel syndrome who could not perform heavy lifting failed to meet burden of establishing substantial limitation in major life activity of work


Input: ("The parties are entitled to all instructions on their legal theories of the case, provided the instructions are timely requested, supported by evidence, and correctly state the law.”) (citing United States v. Jerde, 841 F.2d 818, 820 (8th Cir.1988)). 25 . See United States v. Lanham, 617 F.3d 873, 884 (6th Cir.2010) ("Where there are conflicting authorities, the district court could not have committed plain error.”) (citing United States v. Williams, 53 F.3d 769, 772 (6th Cir.1995)); Rice v. Office of Servicemembers’ Grp. Life Ins., 260 F.3d 1240, 1249 (10th Cir.2001) (“While there is conflicting authority, we cannot say that the jury instruction amounted to plain error.”) (citation omitted). See also United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (<HOLDING>). 26 . See State v. Shackelford, 150 Idaho 355, Holdings: 0: holding that a trial court does not commit plain error unless the error is clear under current law 1: holding that an error is plain only if it is clear under current law when there is no binding precedent on point an instruction typically will not be plain error 2: holding that an error cannot be plain unless it is clear under current law quotation omitted 3: holding that an error is plain if it is clear or obvious 4: holding that any error was harmless and thus not plain error


Input: now moves to dismiss the complaint for want of subject matter jurisdiction. II. The defendant argues tha aid fall into the latter its by taxpayers for refunds of taxes and penalties paid. See 26 U.S.C. § 7422(f). However, such suits must be filed within two years of the decision by the IRS refusing the claim for refund. The governing statute states: No suit or proceeding under section 7422(a) for the recovery of any internal revenue tax, penalty, or other sum, shall be begun before the expiration of 6 months from t .2d 320, 324 (6th Cir.1990) (observing that “as with most periods of limitation involving suits against the sovereign, the prerequisites to suit described in section 6532’s ‘general rule’ are jurisdictional”); Stevens v. United States, 859 F.Supp. 1110 (W.D.Mich.1994) (<HOLDING>); United Iron & Metal Co. v. Carey, 137 F.Supp. Holdings: 0: recognizing that  1404a allows for the transfer of federal employers liability act suits 1: holding that in statute authorizing suits against united states limits time period in which such suits may be brought united states retains its sovereign immunity as to any suits brought outside of that time period therefore court does not have subject matter jurisdiction over suit against united states that is barred by statute of limitations 2: recognizing that  1404a allows for the transfer of clayton act suits 3: holding that since limitations section in internal revenue code allows for suits against a sovereign its requirements are jurisdictional 4: holding that regulatory requirements are not jurisdictional in nature


Input: appears to be no major gender difference in the overall frequency of Delusional Disorder. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (DSM-IV-TR) (2000), 297.1, atp. 326. 92 . FEH Transcript, testimony of Dr. Mary Alice Conroy, atpp. 145-50. 93 . Id., at p. 151. 94 . FEH Transcript, testimony of Dr. Mary Alice Conroy, atpp. 153-54. 95 . Id.., atpp. 154-58. 96 . Id., atpp. 170-71. 97 . Id., atpp. 172-73. 98 . Id., atpp. 180-81. 99 . FEH Transcript, testimony of Dr. Michael A. Roman, atp. 183. 100 . Id.., at p. 188. 101 . Id., at pp. 200-03. 102 . Id., at p. 203. 103 . Id., at pp. 206-07. 104 . Id., at pp. 209-10. 105 . I'd., at pp. 211-12. 106 . See Morris v. State, 301 S.W.3d 281, 300 n. 25 (Tex.Crim.App.2009)(<HOLDING>); Bigby v. State, 892 S.W.2d 864, 870 Holdings: 0: holding that defense counsel validly waived a double jeopardy claim by assenting to a mistrial after defendant was found incompetent to stand trial in the midst of trial 1: holding that the due process clause prohibits the trial of a person who is incompetent 2: holding that the state does not have to prove a defendants competency to stand trial 3: holding that the burden is on the plaintiff 4: holding the statutory burden is on the defendant to prove he is incompetent to stand trial


Input: errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.” 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). A habeas petitioner claiming ineffective assistance of counsel must succeed on both prongs of the Strickland test. Butcher v. United States, 368 F.3d 1290, 1293 (11th Cir.2004). The Supreme Court has provided the following explanation regarding Strickland’s application in the guilty plea context: In the context of guilty pleas, the first half of the Strickland [ ] test is nothing more than a restatement of the standard of attorney competence .... [t]he second, or ‘prejudice,’ requirement, on the other hand, focuses 1991) (<HOLDING>). Alvarez-Sanchez’s assertion that Deering did Holdings: 0: holding that defendant was responsible for the delay from the withdrawal of his guilty plea 1: holding entry of guilty plea waives challenges to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea  emphasis added 2: holding that the defendant remains the master of his case particularly with respect to the entry of a guilty plea 3: holding that the defendants guilty plea was valid where the district court carefully questioned the defendant about whether he understood the consequences of his guilty plea 4: holding entry of a guilty plea waives all nonjurisdictional issues


Input: court harmless. The district court stated that although the jury’s special verdict “would have no impact upon the [c]ourt’s sentencing decision,” it would impact the court’s decision if “the Supreme Court later determine[d] that Blakely [v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)] extends to federal sentencing.” As mentioned above, the special verdict indicated that Soreide was responsible for $7 million to $20 million in actual loss and more than $20 million in intended loss, and that he participated as an organizer or leader. Because these jury findings were identical to those made by the sentencing judge and because they would be applied upon resentencing, any constitutional error was harmless. See United States v. Lee, 427 F.3d 881, 892 (11th Cir.2005) (<HOLDING>). As for Soreide’s claim of statutory Booker Holdings: 0: holding that in order to conclude that federal constitutional error is harmless court must find that error harmless beyond a reasonable doubt 1: holding a constitutional booker error harmless on the ground that because the district court stated its sentence would be the same even if the guidelines were only advisory  we know with certainty beyond a reasonable doubt what the district court would do upon remand 2: holding that apprendi error is harmless if the court finds beyond a reasonable doubt that the result would have been the same absent the error internal quotation marks and citation omitted 3: holding that booker constitutional error was harmless beyond a reasonable doubt because on remand the district court would have given defendant the same sentence 4: holding that before a federal constitutional error can be held harmless the court must be able to declare a belief that it was harmless beyond a reasonable doubt


Input: without their permission. Bums Librarian O'Neill states in his affidavit that "[h]ad the assurances of confidentiality not been made, it is doubtful that any paramilitary would have participated in this oral history project. Their stories would have died with them, and an opportunity to document and preserve a critical part of the historical record would have been lost forever.” 27 . Appellants’ intervention complaint raised the same claims as their separate civil complaint. We have affirmed that there is no cause of action under the treaty and under the Constitution, so there is no need for us to consider whether the district court acted within its discretion in denying appellants' motion to intervene. Cf. In re Grand Jury Proceedings, 708 F.2d 1571, 1575 (11th Cir. 1983) (per curiam) (<HOLDING>). 28 . Appellants also claim that the Attorney Holdings: 0: holding that sentencing error is harmless if the error did not affect the district courts selection of the sentence imposed 1: holding that a denial of qualified immunity on the law is collateral to the merits of the underlying action and is therefore considered final for appellate purposes 2: holding that the district courts error was however harmless in light of other considerations 3: holding that the district courts error in calculating the amount of drugs at issue was harmless because the error had no impact on the defendants sentence 4: holding that the district courts denial of a petition to intervene was harmless error because the merits of the appellants claim were eventually considered on appeal


Input: must advise the employee of this fact and provide the employee a reasonable opportunity to cure any deficiency in the certification. Darst, 512 F.3d at 910. 29 C.F.R. § 825.305(d). In the case of an unforeseeable, serious health condition, an employee has "15 calendar days after the employer’s request” to submit certification from her physician. Kauffman, 426 F.3d at 885. 4 . To be considered an "eligible employee” under the FMLA, an employee must demonstrate that, on the date which FMLA leave is to commence, the employee: (1) has been employed for a total of at least 12 months by the employer, and (2) has been employed for at least 1,250 hours of service with such employer during the previous 12-month period. 29 U.S.C. § 2611(2); 29 C.F.R. § 825.110(a). Bailey, 2009 WL 2970395 at *3 (<HOLDING>); Lonergan v. Cargo Tech. Inc., 2009 WL 3152562 Holdings: 0: holding a plaintiff to be ineligible for fmla leave wherein the plaintiffs leave exceeded twelve weeks within a twelve month period 1: holding a plaintiff to be ineligible for fmla leave wherein the plaintiff had not accumulated enough work hours 2: holding that employees who exceed the twelve weeks of fmla leave stand to lose their entitlement to job restoration even if their employers provide additional nonfmla leave 3: holding that an employee who did not present evidence that she could have returned to work prior to the expiration of her fmla leave allowance was not entitled to additional leave merely because her employer had not properly provided her with notice that the leave was designated as fmla leave 4: holding that employers oral denial of plaintiffs request for fmla leave showed interference


Input: Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.2000) (internal quotations omitted). A motion to dismiss may only be granted where the allegations fail to state any claim upon which relief can be granted. See Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.1997). Dismissal is warranted “if it is certain that no relief can be granted under any set of facts which could be proved.” Klein v. General Nutrition Cos., Inc., 186 F.3d s Brennan and its progeny too broadly. Specifically, Hartford asserts that where a dispute centers on whether a particular policy provision is contrary to a constitutional, legislative or administrative mandate, the controversy may be subject to judicial review. See, e.g., Warner v. Continental/CNA Ins. Cos., 455 Pa.Super. 295, 688 A.2d 177, 181 (1996) (<HOLDING>). In view of this exception, Hartford maintains Holdings: 0: holding that where a contract containing an arbitration clause is challenged as unconscionable those disputes should first be resolved by an arbitrator 1: recognizing general rule 2: recognizing exception to general rule that disputes arising under contract with valid arbitration clause are referred to arbitrator 3: holding that an arbitrator not a federal or state court will resolve questions concerning validity in the first instance when parties agree to arbitrate all disputes arising under their contract 4: holding defenses concerning the contract as a whole must be referred to ah arbitrator while defenses to the arbitration provision itself are considered by the court


Input: The prosecutor explained that he was requesting the amendment only because he was unsure whether the multiple diamonds embedded in the ring were properly characterized as “clusters.” It is unclear whether Nations’s argument on appeal is intended to challenge this amendment, as her brief does not mention the ring. In any event, this amendment was also permissible.. The State is permitted to amend the indictment to correct “the description of any property or thing,” provided the amendment is not material or prejudicial. Miss. Code Ann. § 99-17-13 (Rev. 2015); see Jackson v. State, 450 So.2d 1081, 1082 (Miss.1984) (explaining that “[t]he indictment could have been amended” to allege theft of “rib eye roasts” rather than “rib eye steak”); Bennett v. State, 211 So.2d 520, 522 (Miss.1968) (<HOLDING>); Andrews v. State, 220 Miss. 28, 31, 70 So.2d Holdings: 0: holding that an indictment gave sufficient notice when the indictment charged the elements of the offense 1: holding that the amendment of the indictment was permissible under the statutory predecessor to code  192231 because the amendment did not within the meaning of the statute change the nature of the offense charged in the original indictment 2: holding that the indictment was permissibly amended to change the brand name of the barbed wire stolen 3: holding that the amendment made to the indictment in this case was not authorized by code  192231 because the amended indictment materially changed the nature of the offense originally charged 4: holding that the indictment was permissibly amended to change the description of a stolen watch


Input: Israel, 19 Wn. App. at 779. In Israel, after the prosecutor made a motion for competency determination, the trial judge did not appoint any experts to examine the defendant. Id. at 775. Instead, the court proceeded to ask questions of the defendant and allowed the prosecutor to question her. Id. Defense counsel asked no questions hut asked that the court find her competent at the close of the perfunctory examination. Id. at 775-76. While the court acknowledged that “the Washington statute . . . speak[s] in mandatory language,” id. at 777, it held that the “statutory requirement that two experts be appointed to examine a defendant is not a constitutional right but is statutory and may be waived by counsel.” Id. at 779; see also State v. Brooks, 16 Wn. App. 535, 538, 557 P.2d 362 (1976) (<HOLDING>). ¶19 Despite the propriety of waivers in Holdings: 0: holding that the defenses presentation of two psychiatrists testimony constituted an election of the procedure and a waiver of the specific statutory procedures 1: recognizing that where the juvenile code sets forth specific procedures governing termination actions those procedures apply to the exclusion of the rules of civil procedure 2: holding that the presentation of a new theory does not constitute the presentation of a new issue on which a jury trial should be granted as of right under  rule 38b 3: holding that brady does not place any burden upon the government to conduct a defendants investigation or assist in the presentation of the defenses case 4: holding that the issue of waiver requires an analysis of the specific facts in each case


Input: the Law and Order Code also explicitly recognizes causes of action for the types of claims asserted against Snooks. Thus, Bassetto’s causes of action are recognized and anticipated by the Washoe Tribe and by the Washoe Tribal Court. It is clear that the existence of tribal legislation in an area will exclude the state even if the tribal legislation differs greatly from the state’s, or offers no remedy. ... A tribe’s legislative jurisdiction over its own people and within its own territory must include the right not to legislate at all in an area, if self-government is to be meaningful. Felix Cohen’s Handbook of Federal Indian Law 351 (1982) (citing Littell v. Nakai, 344 F.2d 486 (9th Cir. 1965), cert. denied, 382 U.S. 986 (1966), Schantz v. White Lightning, 502 F.2d 67 (8th Cir. 1974) (<HOLDING>) and Enriquez v. Superior Court, 565 P.2d 522, Holdings: 0: holding that oklahoma police officer was without jurisdiction to arrest indian inside indian reservation when the state has neither received by express grant nor acted pursuant to congressional authorization to assume criminal jurisdiction over indian country 1: holding that a nevada state court had no jurisdiction to entertain a civil action filed by a nonindian against an indian for events that occurred on indian land 2: holding that the state has no jurisdiction to pursue an indian onto an indian reservation for criminal offenses committed off the reservation 3: holding that federal court has neither federal question nor diversity jurisdiction over civil action by nonindian against indian for events occurring on the reservation 4: holding that state has no jurisdiction over civil suit by nonindian against indian where cause of action arises on indian reservation


Input: the defendant has assisted authorities in a manner that avoids preparing for trial, an adjustment under subsection (b) may only be granted upon a formal motion by the Government at the time of sentencing.” Id., comment. (n.6) (emphasis added). We have rejected a defendant’s claim for an additional one-level reduction pursuant to § 3El.l(b) where there was no government motion filed in support of such a reduction. U.S. v. Wade, 458 F.3d 1273, 1282 (11th Cir.2006), cert. denied, — U.S. -, 127 S.Ct. 2096, 167 L.Ed.2d 816 (2007). It appears, however, that we are not precluded from reviewing for an abuse of discretion the government’s refusal to file a motion for a reduction pursuant to § 3E1.1(b). See Wade v. United States, 504 U.S. 181, 185-86, 112 S.Ct. 1840, 1844, 118 L.Ed.2d 524 (1992) (<HOLDING>); see also United States v. Nealy, 232 F.3d Holdings: 0: holding there was no jurisdiction to review district courts discretionary refusal to depart downward on the grounds that defendants conduct constituted a single act of aberrant behavior 1: holding that an insurer is not liable for punitive damages by its refusal to pay a claim unless such refusal is accompanied by a malicious intent to injure or defraud 2: holding in the context of a motion for substantial assistance that federal district courts have authority to review a prosecutors refusal to file a discretionary motion  if they find that the refusal was based on an unconstitutional motive such as the defendants race or religion 3: recognizing that federal district courts have the authority to grant a remedy if the refusal to file a substantial assistance motion was based on an unconstitutional motive 4: holding the trial court was without authority to dismiss an appeal on the ground that the amount of the judgment required the appellant to file an application for discretionary review


Input: notwithstanding the previous Rule 404(b) ruling. Obviously, the calculus of whether or not to place Harris on the stand might have differed if evidence of his prior drug conviction were already before the jury. 2 . Compare Aron v. United States, 291 F.3d 708, 714-15 (11th Cir.2002) (in § 2255 context, where petitioner "alleges facts that, if true, would entitle him to relief, then the district court should order an evidentiary hearing and rule on the merits of his claim”) (citation omitted) and United States v. Yizar, 956 F.2d 230, 234 (11th Cir.1992) (where § 2255 petitioner "has made sufficient allegations so that it cannot be conclusively stated that he is entitled to no relief, ... an evidentiary hearing must be held”) with Lynn v. United States, 365 F.3d 1225, 1239 (11th Cir.2004) (<HOLDING>) and Long v. United States, 883 F.2d 966, 968 Holdings: 0: holding that there is no need for an evidentiary hearing when the petitioners habeas submissions demonstrate that the petitioner is conclusively entitled to relief in such circumstances an evidentiary hearing would be a waste of judicial resources 1: holding that district court was not required to hold an evidentiary hearing based on  2255 petitioners mere eonclusory allegations in his affidavit 2: recognizing that evidentiary hearing is not required when  2255 petitioner offers nothing more than conclusoiy allegations 3: holding that more than notice to a defendant is required 4: holding that an evidentiary hearing is not required if there are no factual issues in dispute


Input: for PFG whether removing New Mexico PERA and Central States from PFG would be a possible solution. Counsel for PFG answered in the affirmative. Transcript of Oral Argument at 55. A group vying for lead plaintiff status does not necessarily rise and fall as a group. Segmentation is a viable remedy and finds support in the case law. In re Surebeam Corp. Sec. Litig., No. 03CV 1721, 2003 U.S. Dist. LEXIS 25022, at *23 (S.D.Cal. Jan. 5, 2004). There, the court found one member of the presumptive lead plaintiff, FMC Pension Group, inadequate because of its securities industry misconduct. The court explained that it had the authority to “break apart a proposed group in search of the most adequate lead plaintiff.” Id.; see also Newman v. Eagle Bldg. Tech., 209 F.R.D. 499, 505 (S.D.Fla.2002) (<HOLDING>); In re Razorfish, Inc. Sec. Lit, 143 F.Supp.2d Holdings: 0: holding that because the spd at issue stated that it is made part of the group policy its terms were sufficient to find that the plan conferred discretion on the plan administrator 1: holding that one members inadequacy is not imputed to the rest of the group noting that the remainder of the group still claimed a financial interest of well over 1 million 2: holding one of the trustees duties is to investigate the financial affairs of the debtor 3: holding that it is wrong to assume a financial conflict of interest from the fact that the plan administrator is also the insurer 4: recognizing that the primary issue to be considered in whether the representative parties will fairly and adequately protect the interest of the class is a determination of whether any antagonism exists between the interests of the plaintiffs and those of the remainder of the class


Input: the meaning of the Restrictions, and the Restrictions specifically preclude the construction or retention of any structure other than a single-family home. It was an abuse of discretion to ignore the language contained in the Restrictions, or to interpret the term “structure” to exclude the proposed roadway. Holding otherwise would render meaningless “[t]he sanctity of written contracts, [which] defin[e] the rights and duties of the contracting parties,” Apolito v. Johnson, 3 Ariz.App. 358, 360, 414 P.2d 442, 444 (1966), and would violate the clear intent of the Restrictions as a contract among the property owners. ¶ 20 Other jurisdictions have reached similar conclusions. See, e.g., Highland Meadow Estates at Castle Peak Ranch, Inc. v. Buick, 994 P.2d 459, 462-64 (Colo.Ct.App.1999) (<HOLDING>), aff'd in part, rev’d in part, 21 P.3d 860 Holdings: 0: holding that a covenant stating that all lots shall be used exclusively for singlefamily dwellings was both a structural and a use restriction that prohibited the building of roads not used in connection with a residence 1: holding that a pasture leased by the policyholder was not used in connection with the residence premises of the policyholder 2: holding that the application of the enhancement for using a firearm in connection with another felony offense is proper only if there is a clear connection between the firearm that was used in the other offense and the one that was used in the offense of conviction 3: holding that an unpaved public street a short distance from the policyholders home was not part of the insured premises because it was not used in connection with the residence premises 4: holding that homeowners short term rental of home violated deed restriction that home could be used only for singlefamily residence purposes


Input: to witnesses. Trial Tr. at 360-61, 365, 387-89, 404, 423, 441, 466, 481, 496-97, 562-63, 577, 645. Contrary to the majority’s conclusion, then, a review of the record shows there could have been a disparity between the movements of the parties during the trial that violated Earhart’s “Sixth Amendment right to act as his own attorney,” rebutting any factual determination to the contrary. See 28 U.S.C. § 2254(e)(1). A violation of the Sixth Amendment right to conduct one’s own defense is a structural trial error not subject to the harmless-error rule; thus, whether Earhart was prejudiced is irrelevant in determining whether his movement restrictions violated his right to self-representation. McKaskle v. Wiggins, 465 U.S. 168, 173, 174, 177, 177 n. 8, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (<HOLDING>). If Earhart’s rights were violated, the Ohio Holdings: 0: recognizing a defendants constitutional right to be represented by counsel of his own choice 1: holding that in determining whether a state officer is entitled to qualified immunity for  1983 purposes courts may not consider whether the constitutional right was clearly established before determining first that a constitutional right was violated 2: holding that the same waiver standard applies when assessing whether a defendant has waived his sixth amendment right to counsel during a postindictment interrogation as when assessing whether a defendant has waived his fifth amendment right to counsel preindictment 3: holding an accused has a constitutional right under the sixth amendment to conduct his own defense and the primary focus in determining whether this right was violated must be on whether the defendant had a fair chance to present his case in his own way citing faretta v california 422 us 806 95 sct 2525 45 led2d 562 1975 4: holding that the sixth amendment right to present a meaningful defense does not entitle a defendant to present evidence on a question of law


Input: another. U.S.S.G. § 4B1.2(1) (1992). 4 . Although “bank robbery" is not an expressly listed offense, separate from “robbery,” the Guidelines assume that "robbery” encompasses "bank robbery." Under section 2B3.1 of the Guidelines, which assigns offense levels to various forms of “robbery," a sentencing court is instructed to increase the offense level by a certain number of points “[i]f the property of a financial institution ... was taken____” U.S.S.G. § 2B3.1(b)(1) (1992). 5 . These purposes include, inter alia, (1) "to provide just punishment;” (2) to deter criminal conduct; and (3) "to protect the public from further crimes of the defendant____” 18 U.S.C. § 3553(a)(2). 6 . Our observation in this regard might be read as implicitly questioning our decision in Baskin, 886 F.2d at 389 (<HOLDING>). We do not address the validity of Baskin in Holdings: 0: holding that robbery is a crime of violence for purposes of habitualoffender sentencing 1: holding that a court must only look to the statutory definition not the underlying circumstances of the crime to determine whether a given offense is by its nature a crime of violence for purposes of 18 usc  16 2: holding that a sentencing judge retains discretion to examine the underlying facts of a case in deciding whether an offense is a crime of violence under section 4b12 3: holding that sexual abuse of a minor is a violent crime within the meaning of the sentencing guidelines and noting that definitions of crime of violence in 18 usc  16 and ussg  4b12 differ slightly finding reyescastro to be persuasive in its  4b12 analysis 4: holding that once the statute is found to be divisible the court must look to the charging papers and judgment of conviction to determine if the actual crime of which defendant was convicted was a crime of violence but emphasizing that the court is not to examine the particular facts underlying the conviction


Input: in requiring in camera review of the minutes. Fisher, 123 Md.App. at 328, 329, 718 A.2d 627. In Johnson, which was not an action for judicial review, this Court barred the County Executive’s deposition, because the only relevant information concerned his mental processes while performing discretionary acts. See Johnson, 199 Md.App. at 328-30, 21 A.3d 199. 14 . See, e.g., Patuxent Valley, 300 Md. at 214, 477 A.2d 759 (quoting United States v. Morgan, 313 U.S. 409, 422, 61 S.Ct. 999, 85 L.Ed. 1429 (1941)) (just as a party may not depose a judge about his or her decisional processes, " 'so the integrity of the administrative process must be equally respected’ ”). 15 . Compare Maryland-Nat’l Capital Park & Planning Comm’n v. Mardi-rossian, 184 Md.App. 207, 223, 964 A.2d 713 (2009) (<HOLDING>). 16 . In arguing that the collateral order Holdings: 0: holding that the trial court did not abuse its discretion in denying defendants motion for mistrial where the trial court sustained defendants objections to a question by the prosecutor containing improper information and instructed the jury to disregard the question 1: holding that the trial court acted within its discretion in determining that the expertise of an automobile systems expert did not extend to the mental processes and human factors which may have caused an automobile accident 2: holding that the court did not abuse its discretion by tracking the statutory language in the instruction 3: holding that court did not abuse its discretion in permitting the deposition of administrative decisionmakers because the party disavowed any intent to question the commissioners mental processes 4: holding that the trial court did not abuse its discretion in ordering a new trial based on a 250000 award for a mental distress claim


Input: did not file a return to this motion. The trial court granted the motion to alter or amend, finding the district court decision was binding on all parties to this action. It vacated the consent judgment and restored the case to the trial docket. Payne filed a motion to reconsider, which the trial court denied. This appeal followed. LAW/ANALYSIS The Pocisks assert the order granting Rule 60(b) relief is not immediately appealable. We agree. The determination of whether a party may immediately appeal an order issued before or during trial is governed primarily by statute. S.C.Code Ann. § 14-3-330 (1976 & Supp. 2007); Hagood v. Sommerville, 362 S.C. 191, 195, 607 S.E.2d 707, 70 part of a pleading in the action. Therefore, neither subsections (a) nor (c) apply to this order. P (1980) (<HOLDING>); Anglin Stone v. Curtis, 146 N.C.App. 608, 553 Holdings: 0: holding that the denial of a motion to remand is interlocutory and not immediately appealable 1: holding an order denying a motion for summary judgment is interlocutory and not appealable 2: holding an order allowing a motion under rule 60b is not immediately appealable because it is interlocutory and does not affect a substantial right 3: holding that an order of consolidation is interlocutory and not immediately appealable 4: holding that overruling of motion to quash does not affect substantial right and is therefore not final appealable order


Input: at 73. 5 Id. 6 RCW 51.52.115; Johnson v. Weyerhaeuser Co., 134 Wn.2d 795, 800 n.4, 953 P.2d 800 (1998); Dep’t of Labor & Indus. v. Fankhauser, 121 Wn.2d 304, 308, 849 P.2d 1209 (1993). 7 ROW -51.52.115. 8 ROW 51.52.140; McClelland v. ITT Rayonier, Inc., 65 Wn. App. 386, 390, 828 P.2d 1138 (1992). 9 Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008). 10 CR 56(c). 11 Ranger Ins. Co., 164 Wn.2d at 552. 12 Id. 13 Id. 14 Id.; see also Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005). 15 Sligar v. Odell, 156 Wn. App. 720, 725, 233 P.3d 914 (2010). 16 Id. (quoting Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989)). 17 Superior Asphalt & Concrete Co. v. Dep’t of Labor & Indus., 19 Wn. App. 800, 804, 578 P.2d 59 (1978) (<HOLDING>). 18 Young, 112 Wn.2d at 225-26. 19 RCW Holdings: 0: holding the appellant needed to prove by a preponderance of the evidence that her husbands death fell within the terms of the insurance policy 1: holding that wife could receive permanent total disability payments after the death of her husband where the husbands claim was pending before the effective date of the 2008 statutory amendments and was still pending at the time of his death even though husbands death occurred after the effective date of the 2008 statutory amendments as wifes status as a dependent was subject to determination as of the time of husbands injury 2: holding that it was appellants burden to prove that her husbands death occurred in the scope of employment and that she was eligible for widows benefits 3: holding widows claim that deceased husbands former employer and its life insurance carrier were negligent in their handling of husbands conversion of benefits was preempted by erisa finding the liability of the defendants is dependent upon the existence of the erisa plan and the interpretation of rights conferred by it 4: holding that the employee was acting within the course of her employment when she died while returning from the workrelated session because her death occurred on a public highway which was brought within the scope of her employment by her employers requirement that she attend training at the state police academy


Input: he held a press conference announcing his candidacy, Nix Decl. ¶ 7; see also Haase v. Sessions, 835 F.2d 902, 907 (D.C.Cir.1987) (noting that a plaintiff “can freely augment his pleadings with affidavits,” such as the affidavit Nix filed discussing, among other things, his press conference, to establish the plaintiffs standing). The district court nonetheless app . FEC, — U.S. —, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010). In our view, Nix’s allegation that he intended to run in the November 2011 election and his public announcement at the press conference sufficiently establish the “substantial probability” of imminent injury required for Article III standing. Chamber of Commerce v. EPA, 642 F.3d 192, 201 (D.C.Cir.2011) (internal quotation marks omitted); cf. Shays, 414 F.3d at 92 (<HOLDING>). Indeed, as Nix argues, a contrary holding Holdings: 0: holding that the driver of a car who had permission to use the car had standing to challenge its search 1: holding that passengers of a vehicle which they did not own had standing to challenge the validity of a traffic stop 2: holding that senator mcconnell lacked standing to challenge a provision of the bipartisan campaign reform act of 2002 bcra that at earliest would have affected him in his 2008 reelection campaign 3: recognizing taxpayer standing to assert a constitutional challenge to the manner of a judicial election given the special circumstances involved 4: holding that incumbent congressmen subject to twoyear election cycles had standing to challenge the fecs implementation of certain provisions of bcra


Input: Delta Airlines and Gary Richter contend that because Plaintiffs breach of contract claim arises out of events which occurred during the course of embarkation of an international flight, her claim is preempted by the Montreal Convention. Plaintiff responds that her claim falls outside the scope of the Convention because she alleges nonperformance of a contract. Although the Sixth Circuit Court of Appeals has not addressed this issue, a number of other federal courts have concluded that where the complaint alleges complete nonperformance of a contract, rather than delay in transportation, the Montreal Convention does not preempt a plaintiffs breach of contract claim. See, e.g., Nankin v. Continental Airlines, Inc., No. CV-09-07851, 2010 WL 342632, at *7 (C.D.Cal. Jan. 29, 2010) (<HOLDING>); Mullaney v. Delta Air Lines, Inc., No. Holdings: 0: holding that additional claims brought under state law are preempted by the montreal convention 1: holding plaintiffs claims were not preempted by the montreal convention because they were grounded in a cause of action for nonperformance of a contract and not delay 2: holding plaintiffs breach of contract claim was not preempted by the montreal convention because plaintiff was seeking damages resulting from deltas refusal to provide him with any flight home after having taken his money for a ticket  in short for failure to perform its obligation to provide carriage in exchange for money it had received 3: holding that the montreal convention was not applicable to plaintiffs claims because based on plaintiffs allegations it clearly appears that through its employees continental refused to perform the contract 4: holding plaintiffs breach of contract claims fell outside the scope of the montreal convention because the plain language of article 19 of the montreal convention indicates that it governs claims for delay not nonperformance


Input: review. (d) Martin argues that the prosecutor’s closing argument repeatedly misled the jury regarding the effect of a sentence of guilty but mentally ill. While it was not improper for the prosecutor to state that it would not be justice for the jury to impose a sentence of guilty but mentally ill if it was not supported by the evidence, we agree that it was improper to refer to such a verdict using the phrases, “a break” and “a pass,” and by making similar arguments. We note, however, that such language would have been permissible in the sentencing phase where, regardless of whether the jury had found Martin guilty or guilty but mentally ill, the jury would be choosing between imposing a death sentence or granting mercy. See Lewis v. State, 279 Ga. 756, 764 (12) (620 SE2d 778) (2005) (<HOLDING>). Because Martin did not object to this line of Holdings: 0: holding that the verdict must be sustained if there is any competent evidence to support the verdict 1: holding that the trial court erred in granting the school boards posttrial motion for directed verdict because although the school board timely moved for a directed verdict during trial it did not serve its motion for directed verdict until the eleventh day after the verdict 2: holding that the statute that provides for a verdict of guilty but mentally ill does not preclude a death sentence as the result of such a verdict 3: holding that a jury verdict of guilty constitutes a conviction for purposes of the federal firearms statute and therefore the defendant was convicted of a felony during the interval between the jurys return of its guilty verdict and his scheduled sentencing 4: holding that where the evidence offered by the state and admitted by the trial court  whether erroneously or not  would have been sufficient to sustain a guilty verdict the double jeopardy clause does not preclude retrial


Input: similar to those presented here, involving an infant delivered by emergency caesarean section at 23-weeks’ gestation that received lifesaving resuscitation contrary to the parents’ wishes. The infant survived but later suffered a brain hemorrhage, a common complication of premature birth, which resulted in severe and permanent disabilities. In rejecting the parents’ informed consent claim, the court in Miller, id. at 769, concluded that even though the parents were present in the delivery room, “there was simply no time to obtain their consent to treatment . . . without jeopardizing [the infant’s] life” because the infant might survive with treatment but would likely die if treatment were postponed. See also Montalvo v. Borkovec, 2002 WI App 147, 256 Wis. 2d 472, 647 N.W.2d 413, 420 (<HOLDING>). In this case, as well, there was no time for Holdings: 0: holding unconstitutional defendants sentence of death based upon the holding in roper supra and remanding for the montgomery circuit court to set aside the defendants death sentence and to sentence him to the only other sentence available  life in the penitentiary without the possibility of parole 1: holding that the informed consent doctrine does not apply in the context of emergency treatment provided to a neonate following a caesarean procedure because the failure to treat would be tantamount to a death sentence 2: holding that the doctrine does not apply in such circumstancesi 3: holding in case where plaintiff sought damages resulting from the defendants failure to pay the accidental death benefit claims she filed following death of her husband transfer to south carolina was warranted because with the exception of plaintiffs relocation to the state of west virginia following the death of the decedent the cause of action bears virtually no relation to the forum chosen by the plaintiff 4: holding that even if the court were to apply the apex doctrine the doctrine would not preclude the deposition of two corporate executives in that case


Input: crime. In accordance with our reasoning in Mordica, therefore, section 784.045(l)(b) defines a specific intent crime because the statute requires the knowing commission of a battery on a pregnant woman. Appellant is thus correct to argue that the doctrine of transferred intent does not operate in the instant case to elevate V.M.’s general intent to commit a simple battery on her brother to the specific intent required to violate section 784.045(l)(b). See (Mordica, 618 So.2d at 304-05)(“In this case, the state could not apply the doctrine of transferred intent to enhance the severity of the crime from simple battery to battery of a law enforcement officer by only proving that simple battery against the inmate was intended.”). See also D.J. v. State, 651 So.2d 1255 (Fla. 1st DCA 1995) (<HOLDING>). Nevertheless, we affirm appellant’s Holdings: 0: holding where school principal was struck while trying to stop student fight transferred intent operates to transfer students intent to commit simple battery on classmate thus negating conviction for attempted battery on school official which requires heightened level of intent 1: holding that battery is an inherently included offense of aggravated battery 2: holding that under maryland common law an assault is an attempted battery an actual battery or a combination of the two 3: holding that prior battery was admissible to prove defendants intent to injure 4: holding sentence enhancement statute did not create offense of attempted battery on school employee and thus minors adjudication of delinquency should have been based on finding that minor committed attempted battery


Input: Sec. Dealers, Inc., 191 F.3d 198, 205 (2d Cir.1999). This Court reached a similar conclusion in St. Paul Fire and Marine Insurance Company v. Employers Reinsurance Corporation, 919 F.Supp. 133 (S.D.N.Y.1996) (Sotomayor, J.), holding that arbitration clauses only affect “procedural right[s]” and “the parties’ substantive rights remain amply protected.” Id. at 139. The right to have a dispute heard in an arbitral forum is a procedural right that affects the forum that will decide the substantive rights of the parties. Therefore, applying the present law to this dispute would not have a disfavored retroactive consequence. Rather, because the parties’ substantive rights remain unaffected by this statute, it is proper to apply the present law to this dispute. See Pezza, 767 F.Supp.2d at 234 (<HOLDING>). Therefore, section 922 of Dodd-Frank applies Holdings: 0: holding that collective bargaining agreements cannot compel the arbitration of statutory rights 1: recognizing that new law did not apply to claims that accrued prior to enactment 2: holding that the fair sentencing act does not apply retroactively to defendants whose criminal conduct occurred before its enactment even if those defendants were sentenced after its enactment 3: holding that because agreements to arbitrate do not affect underlying substantive rights doddfranks ban on arbitration should be applied to conduct that arose prior to its enactment 4: holding that a change of an element of an offense could not be applied retroactively to a crime committed prior to the statutes enactment


Input: is not impaired”); In re Harris, 482 B.R. 899 (Bankr. N.D. Ill. 2012) (same); and In re Stroud, 219 B.R. at 390 (same and concluding that “[l]ien avoidance must be conditioned upon Debtor’s completion of the Chapter 13 Plan and granting of the discharge in order to ensure that creditors’ interests are protected” (citation omitted)). 18 . See In re Mulder, No. 810-74217-reg., 2010 WL 4286174, at *3 (Bankr. E.D.N.Y. Oct. 26, 2010) ("This Court finds no support in the Code to use Section 349 as a basis on which to condition Section 522(f) lien avoidance upon entry of a discharge. This position inappropriately assumes that failure to' receive a discharge goes hand in hand with dismissal of a case.”); see also In re Ferrante, No. 09-13098, 2009 WL 2971306 (Bankr. D.N.J. Sept. 10, 2009) (<HOLDING>). 19 . Law v. Siegel, — U.S. -, 134 S.Ct. 1188, Holdings: 0: holding that a state statutory framework and the punitive nature of segregation created a liberty interest 1: holding that the debtor must have had an interest in the property before the lien attached to take advantage of  522f 2: holding that in light of the statutory framework created by the code  522f lien avoidance cannot be made subject to any subsequent event 3: holding that consumer lien avoidance powers of section 522f cannot be applied retroactively 4: holding that a debtors ability to utilize  522f to avoid a judicial lien is not dependent upon the debtor receiving a discharge


Input: the burden shifts to the defendant to rebut the presumption of discrimination by “producing evidence that the adverse employment actions were taken for a legitimate, nondiscriminatory reason.” Id. Finally, if the rebuttal is successful, the burden shifts back to the plaintiff to show that the employer’s nondiscriminatory reason was pretext. Id. However, where the defendant asserts a legitimate, non-retaliatory explanation for the alleged adverse actions, “the district court should ... proceed[ ] to the ultimate issue of retaliation vel non instead of evaluating whether [plaintiff] made out a prima facie case.” Jones v. Bernanke, 557 F.3d 670, 678 (D.C.Cir.2009) (citing United States Postal Service Bd. Of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983) (<HOLDING>)). In this case, the parties do not dispute Holdings: 0: holding that once the employee makes its prima facie showing the burden then shifts to the employer to prove that legitimate reasons supported the termination 1: holding that if the plaintiff makes a prima facie case the defendant employer must then articulate some legitimate nonretaliatory reason for the adverse action and the employee must then have a fair opportunity to show pretext that is that a discriminatory intent motivated the employers action 2: holding that once an employer asserts a legitimate nondiscriminatory reason for its action it has done everything that would be required  if the plaintiff had properly made out a prima facie case so whether the plaintiff really did so is no longer relevant 3: holding in a race discrimination case that close timing is an element of the plaintiffs prima facie case but insufficient on its own to rebut a legitimate nondiscriminatory reason that explains the action and its timing 4: holding that in title vii disparate treatment case in order for a plaintiff to establish a prima facie case the plaintiff must proffer evidence among other things that she performed her job according to her employers legitimate expectations if the plaintiff establishes the prima facie case the presumption shifts the burden to the employer to produce a legitimate nondiseriminatory reason for its actions


Input: that the finality of a decision resolving an adversary action does not turn on whether the entire bankruptcy proceeding has been terminated. See In re UAL Corp., 411 F.3d 818, 821 (7th Cir.2005). In this case, the bankruptcy court issued a final decision in Booker’s adversary action against Fields on September 15, 2005, when the court entered a default judgment and declared that the amount owing to Booker was nondischargeable. This decision is therefore final because it resolved a discrete dispute that is equivalent to a stand-alone lawsuit. See Bank of Am. v. Moglia, 330 F.3d 942, 944 (7th Cir.2003); In re Szekely, 936 F.2d 897, 899 (7th Cir.1991). The “final disposition of any adversary proceeding falls within our jurisdiction.” Zedan v. Habash, 529 F.3d 398, 402 (7th Cir.2008) (<HOLDING>); see also In re Teknek, 512 F.3d 342, 345 (7th Holdings: 0: holding that this court lacked preliminary authority to review the district courts jurisdiction because there was no immediately appealable order before the court 1: holding that bankruptcy courts have inherent power to sanction and affirming sanctions imposed by bankruptcy court against a nonparty 2: holding that a district courts order of dismissal with prejudice was a nullity because the court lacked jurisdiction 3: holding that this court had jurisdiction to review a district courts order affirming a bankruptcy courts dismissal of an adversary complaint with prejudice 4: holding that district courts do not have appellate jurisdiction over state courts


Input: of acquittal were entered on these counts by the Court because the jury’s findings did not identify specified unlawful activities from which the funds were acquired by the defendant that were distinct from the alleged money laundering activities. See United States v. Howard, No. 02-079, slip. op. at 8 (D.D.C. Feb. 5, 2003); see also United States v. Seward, 272 F.3d 831, 836 (7th Cir.2001) (“The transaction or transactions that created the criminally-derived proceeds must be distinct from the money-laundering transaction because the money laundering statutes criminalize ‘transaction^] in proceeds, not the transaction^] that create [ ] the proceeds.' ”) (quoting United States v. Mankarious, 151 F.3d 694, 705 (7th Cir.1998)); United States v. Butler, 211 F.3d 826, 830 (4th Cir.2000) (<HOLDING>). 9 . It is not entirely clear whether the Holdings: 0: holding that the evidence of  1957 money laundering was sufficient where the government proved aggregate withdrawals of far more than 10000 above the amount of clean funds available the vast majority of funds transferred to the defendants business account from the food stamp reimbursements were not supported by evidence of legitimate food sales 1: holding that an order to disgorge funds was final even though the order did not distribute the funds 2: holding that a money laundering enhancement was applicable because defendant knew the funds were represented to be proceeds of a drug transaction 3: holding that defendant violated section 4b when she misappropriated pool participant funds by soliciting funds for trading and then trading only a small percentage of those funds while disbursing the rest of the funds to investors herself and her family 4: holding that to establish a money laundering offense the laundering of funds cannot occur in the same transaction through which those funds first become tainted by crime


Input: S.Ct. 1373, 84 L.Ed.2d 392 (1985). The Court agrees and finds that, as a class, gay men and lesbians are a minority and have relatively limited political power to attract the favorable attention of lawmakers. See City of Cleburne, 473 U.S. at 445, 105 S.Ct. 3249. Although this factor is not an absolute prerequisite for heightened scrutiny, the Court finds the evidence and the law support the conclusion that gay men and lesbians remain a politically vulnerable minority. See Plyler, 457 U.S. at 216 n. 14, 102 S.Ct. 2382; Murgia, 427 U.S. at 321, 96 S.Ct. 2562. Here, having analyzed the factors, the Court holds that the appropriate level of scrutiny to use when reviewing statutory classifications based on sexual orientation is heightened scrutiny. See also In re Levenson, 587 F.3d at 931 (<HOLDING>); Witt, 527 F.3d at 824-25 (Canby, J., Holdings: 0: holding that disability is not a suspect or quasisuspect classification that requires heightened scrutiny 1: recognizing that strict scrutiny applies to facial discrimination against a suspect class 2: holding that strict scrutiny applies 3: holding that some form of heightened constitutional scrutiny applies 4: recognizing scrutiny on statutory grounds stated in  10a and scrutiny for whether the award evinces a manifest disregard of applicable law


Input: by the phrase “a public entity’s property,” and thus the same public entity on whose property the dangerous condition exists. Id. As such, the threshold question which must first be addressed when a public entity is sued for injuries resulting from a dangerous condition on property is whether the property is the public entity’s property. Summitt v. Roberts, 903 S.W.2d 631, 635 (Mo.App.W.D.1995) (claim “fails on a threshold question” because property where plaintiff was injured “belongs to neither” public entity); see also Spielvogel v. City of Kansas City, 302 S.W.3d 108, 112 (Mo.App.W.D.2009); Thomas v. Clay Cnty. Elec. Bd., 261 S.W.3d 574, 578-80 (Mo.App.W.D.2008). The phrase “a public entity’s property” plainly includes property owned by a public entity. Claspill, 809 S.W.2d at 89 (<HOLDING>); Dorlon v. City of Springfield, 843 S.W.2d Holdings: 0: holding that the crucial distinction that rendered the public entity liable for a private actors inaccessibility was that the public entity had contracted with the private actor for it to provide aid benefits or services to beneficiaries of the public entitys redevelopment program 1: holding that if property is not property1 of the public entity then the public entity cannot be subject to suit under the dangerous condition waiver 2: holding that ijnjuries caused by the condition of a public entitys property  clearly refers to ownership of a property interest which allows a public entity to control the property 3: holding that a public entitys property refers to the public entity that owns the property where a dangerous condition exists 4: holding that property of a public entity includes having exclusive control and possession of  property


Input: applied retroactively if it constitutes a "clear break with the past." Hoff, 814 P.2d at 1128. A new rule is a clear break with the past if it caused " 'an abrupt and fundamental shift in doctrine as to constitute an entirely new rule which in effect replaced an older one.'" Baker, 935 P.2d at 509 (quoting United States v. Johnson, 457 U.S. 537, 551, 102 S.Ct. 2579, 73 LEd.2d 202 (1982)). A break with the past occurs when a decision "disapproves a practice this Court arguably has sanctioned in prior cases." Id. (internal quotation marks omitted). T 74 As we concluded above, before subsection (1) was added to rule 11, the controlling case law only required a defendant to show good cause to withdraw his plea. And when a court failed to inform a defendant of a constitutional right li 2) (<HOLDING>). The failure to properly inform a defendant of Holdings: 0: holding that any error in excluding impeachment evidence about witnesss drug use in general was harmless when witness was heavily impeached in other ways 1: holding that witness statements in police report inadmissible 2: holding that error if any in excluding portion of defendants statement to police was harmless because similar evidence was admitted through the testimony of another witness 3: holding that error in excluding a police officers report was harmless where the same evidence was presented by another witness 4: holding that police officers have a duty to conduct an investigation into the basis of the witness report


Input: the twentieth century, displaced “the traditional rule ... that an ‘at will’ employee could be discharged at any time and for any reason.” 2 Dobbs § 6.10(1), at 190. Contrary to the majority’s conclusion, it is not sufficient to state that because back pay involves monetary relief, it is necessarily legal in nature. Chauffeurs, Teamsters, and Helpers, Local No. 391 v. Terry, 494 U.S. 558, 570, 110 S.Ct. 1339, 108 L.Ed.2d 519 (1990). “[N]ot all monetary relief is damages,” and “[ejquity sometimes awards monetary relief, or the equivalent.” Clair v. Harris Trust & Sav. Bank, 190 F.3d 495, 498 (7th Cir.1999) (concluding that “restitution is both a legal and an equitable remedy that is monetary yet is distinct from damages”); Allison v. Bank One-Denver, 289 F.3d 1223, 1243 (10th Cir.2002) (<HOLDING>). Even Great-West, which stated that suits Holdings: 0: holding that prejudgment interest may include compound interest 1: holding that a court may in its discretion award prejudgment interest in erisa cases where appropriate but it is not axiomatic that such interest should be awarded simply because  the prevailing party has demonstrated entitlement to the funds 2: holding that the owner of an equitable interest in property in the form of a land contract can grant a mortgage on that interest under ohio law 3: holding that prejudgment interest is in the nature of compensatory damages and therefore should be included in judgment finally obtained 4: holding in an erisa case decided after greatwest that monetary relief in the form of prejudgment interest may be equitable in nature


Input: To be actionable as fraud in Illinois, a “misrepresentation” must contain the following elements: (1) it must be a statement of material fact, as opposed to opinion; (2) it must be untrue; (3) the party making the statement must know or believe it to be untrue; (4) the person to whom the statement is made must believe and rely on it, and have a right to do so; (5) it must have been made for the purpose of inducing the other party to act; and (6) the reliance by the person or entity to whom the statement is made must lead to the claimed injury. See Mother Earth, Ltd. v. Strawberry Camel, Ltd, 72 Ill.App.3d 37, 28 Ill.Dec. 226, 390 N.E.2d 393, 403 (1979) (citing Broberg v. Mann, 66 Ill.App.2d 134, 213 N.E.2d 89, 91-92 (1965)) ; see also W.W. Vincent, 286 Ill.Dec. 734, 814 N.E.2d at 969 (<HOLDING>). Orion’s live pleadings allege that UOP’s Holdings: 0: holding that purchasing corporation stated valid claim of fraudulent misrepresentation by inducement based on knowingly false statements by transferring corporation that assets transferred to purchasing corporation included general agents contract 1: holding that claims of corporation vest in corporation 2: holding that in a merger shareholders are effectively purchasing shares in a new corporation while losing their status as shareholders in the previous corporation 3: recognizing that agents of a corporation may be held criminally responsible for crimes committed in the name of the corporation 4: holding that corporation and sole owner of corporation were separate legal entities and corporation was not party to contract signed by owner in individual capacity


Input: Q. Is there another statement? A. On her? Q. Yes, sir. A. Not by me. Q. Okay. Well, when I asked you if there was anyone else around, you said not on this statement. A. There are other statements, but I was not present. Q. You weren’t present for those? A. No, sir. Ms. Wansley argues that “[b]y combining only the first and last [statements] and omitting others, the prosecutor left the possibility for the jury to misunderstanding the meaning of the statements.” The State counters Ms. Wansley’s concern that “[c]ombining the two statements may have misled the jury,” by asserting the “presumption that the judgment of the trial court is correct, and the burden is on the appellant to demonstrate some reversible error to the appellant Court.” See Edlin v. State, 533 So.2d 403, 410 (Miss.1988) (<HOLDING>) (citation omitted). The State further contends Holdings: 0: holding evidence insufficient to overcome presumption of correctness 1: holding that in appellate proceedings the decision of the trial court has the presumption of correctness and the burden is on the appellant to demonstrate error 2: holding that it is the duty of the appellant to overcome the presumption of the correctness of the trial courts judgment by demonstrating some reversible error 3: holding that in appellate proceedings where no transcript is provided a trial courts decision has the presumption of correctness and the burden is on the appellant to demonstrate error 4: holding that it is the appellants burden to present a record to overcome the presumption of correctness of the trial courts findings


Input: governmental conduct, that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.” Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Following the Supreme Court’s holing in Graham, the First Circuit Court of Appeals has rejected alleged deprivations of substantive due process rights under the Fourteenth Amendment based either on excessive force or on malicious prosecution. Estate of Bennett v. Wainwright, 548 F.3d 155 (1st Cir.2008) (dismissing a substantive due process claim for deprivation of a life interest because the claim was based on excessive force more appropriately brought under the Fourth Amendment); Torres-Rivera v. O’Neill-Cancel, 406 F.3d 43, 51-53 (1st Cir.2005) (<HOLDING>); Roche v. John Hancock Mutual Life Ins., 81 Holdings: 0: holding that whether an officers force was reasonable must be analyzed under the reasonableness standard of the fourth amendment 1: holding that the protect act amendments to the standard of review apply retroactively 2: holding that an excessive force claim is governed by the fourth amendments objectively reasonable standard rather than the fourteenth amendments shock the conscience standard 3: holding that claims that law enforcement officials used excessive force in making an arrest are properly analyzed under the fourth amendments objective reasonableness standard 4: holding that new york law reasonable cause standard is equivalent to fourth amendments probable cause standard


Input: federal statute. See S Cal.App.3d 1365, 245 Cal.Rptr. 585, 588 (1988) (noting that State did not introduce any evidence regarding the purpose behind monitoring defendant's statements spoken in an interview in answer to defendant's contention that his statements were protected unless monitored for institutional security purposes). See generally U.S. v. Hearst, 9th Cir., 563 F.2d 1331, 1345-46 (1977), reh’g denied, 9th Cir., 573 F.2d 579 (1978), cert. denied, 435 U.S. 1000, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978) (finding that surreptitiously recording conversations between prisoner and visitor does not violate prisoner’s right to privacy when confronted with state's "justifiable purpose of imprisonment or prison security"); State v. Hauss, App., 142 Ariz. 159, 688 P.2d 1051, 1054-55 (1984) (<HOLDING>); People v. Gallego, Cal. Supr ., 52 Cal.3d Holdings: 0: holding that taking an individual who was not suspected of any crime to a police station and into an interview room and detaining her for approximately four hours where it was made clear she was not free to leave violated the fourth amendment 1: holding that in this case where police were concerned that while couple was in an interview room they would pass a weapon discuss escape plans or destroy evidence once the government established that its intrusion was for a justifiable purpose of imprisonment or prison security the fourth amendment question was essentially resolved in its favor 2: holding that even if an agreement that title would pass once financing was obtained the most a creditor could claim was a security interest once the good was delivered 3: holding that where an individual voluntarily goes to the police station to discuss the commission of a crime that person has not been seized within the meaning of the fourth amendment 4: holding that public safety exception applies if and only if two conditions are satisfied 1 that the defendant might have or recently have had a weapon and 2 that someone other than police might gain access to that weapon and inflict harm with it and that while second prong would not apply for instance if the police entered a defendants room handcuffed him and placed him on a chair in the hallway outside his room it might apply if defendant was unrestrained and had turned back into his room to retrieve his identification when questioned by the police


Input: a set of facts would give rise to reasonable suspicion, this court must look at the totality of the circumstances and not just each independent fact standing alone. Furthermore, the court may consider any added meaning that certain conduct might suggest to experienced officers in the field, trained in the observation of criminal activity.” United States v. Jones, 269 F.3d 919, 926-927 (8th Cir.2001). Based on the totality of facts discovered by Deputy Sheriff Brown during this consensual encounter, I conclude the officer had a reasonable articulable suspicion to continue detaining the defendants for a reasonable period of time to investigate the circumstances and determine if the defendants were engaged in criminal activity. United States v. Foley, 206 F.3d 802, 805 (8th Cir.2000)(<HOLDING>). See also, Jones, 269 F.3d at 928 (holding Holdings: 0: holding that passengers lacked any reasonable expectation of privacy and therefore had no standing to challenge the search of the vehicle 1: holding that questioning of passengers on bus including asking for drivers licenses and tickets constituted consensual encounter and passengers were free to decline to answer questions 2: holding presence of a masking odor in vehicle passengers nervous behavior passengers inability to recall the name of his purport ed daughterinlaw and vast divergence between passengers and drivers statements regarding travel accommodations to california justified further detention of the vehicle for investigation of whether a crime was being committed 3: holding that if random suspicionless questioning of bus passengers for inspection of identification and tickets was consensual encounter it was not a violation of passengers fourth amendment rights 4: holding that passengers of a vehicle which they did not own had standing to challenge the validity of a traffic stop


Input: and parties to a criminal prosecution may be privy to the information derived from the blood sample, O.R.S. § 181.085(2), and the State may not analyze'the samples to discover genetic predispositions to physical or mental conditions. The absence of any individualized suspicion that persons subject to blood sampling have committed criminal offenses other than their original offenses of conviction does not render Chapter 669 unconstitutional. Rather, the evenhandedness of Oregon’s statute contributes to its reasonableness. “An essential purpose of a warrant requirement is to protect privacy interests by assuring citizens subject to a search or seizure that such intrusions are not the random or arbitrary acts of government agents.” Skinner, 489 U.S. at 621-22, 109 S.Ct. at 1415-16 (<HOLDING>). The Supreme Court recently reaffirmed and Holdings: 0: holding that a warrant was not required in part because in light of the standardized nature of the tests and the minimal discretion vested in those charged with administering the program there are virtually no facts for a neutral magistrate to evaluate 1: holding that a contract for the installation and implementation of a complex computer system did not constitute a consumer purchase covered by the njcfa and noting that the contract did not provide for simply the installation of a standardized computer software program but rather the design of a custommade program to satisfy the plaintiffs unique needs and the defendants active participation in implementation of this program 2: holding that an alien had no wellfounded fear of persecution for resisting chinas coercive population control program in part because he was not charged with a crime and there was no warrant issued for his arrest 3: holding that nature and occasion of offenses are facts inherent in convictions and those facts need not be alleged in indictment or submitted to jury 4: holding that the nature and occasion of prior offenses are facts inherent in the convictions which government is not required to allege in the indictment or prove beyond a reasonable doubt


Input: days of receiving the notice of right to sue). Ms. Scott never served the defendant in that case, and the court dismissed it without prejudice on January 21, 2000. Ms. Scott filed a second lawsuit on July 21, 2000. However, Ms. Scott also did not serve the defendant in the second case, and the court dismissed it without prejudice on February 6, 2001. This circuit has held “that the filing of a complaint that is dismissed without prejudice does not toll the statutory filing period of Title VII.” Brown, 926 F.2d at 961. We reasoned that “as a general rule, a voluntary dismissal without prejudice leaves the parties as though the action had never been brought.” Id. Other courts have applied this rule to ADA claims, see Chico-Velez v. Roche Prods., Inc., 139 F.3d 56, 59 (1st Cir.1998) (<HOLDING>). As the district court observed, application Holdings: 0: holding that a review committee of the kansas board for discipline of attorneys had the authority to dismiss a complaint against an attorney with or without prejudice and when dismissal was ordered without specifying the nature of the dismissal the dismissal was without prejudice to the filing of later proceedings on the same matter 1: holding that the dismissal without prejudice of the plaintiffs first action doomed his ada claim because the ninetyday filing period had run 2: holding that proper remedy for failure to exhaust is dismissal of the claim without prejudice 3: holding borough could not appeal dismissal of complaint without prejudice because  dismissal without prejudice is comparable to a nonsuit under the former practice of lavf  4: holding district court had no authority to require plaintiffs to obtain courts permission to dismiss defendant who had not served answer or motion for summary judgment as plaintiffs had absolute right to dismissal without prejudice and thus court could not sanction plaintiffs for filing notice of voluntary dismissal rather than motion


Input: are the prices charged by suppliers like the BPA and the WAPA to the consumers like PG&E, through the CalPX and ISO. The Memphis clause binds the price charged to FERC determinations; the tariff binds the parties to use the CalPX and ISO for sale/purchase of energy; the parties, conducting sales through the CalPX and ISO to purchase/supply energy amongst themselves, are bound to each other through, their market transactions, the- rules of the tariff, and the FERC regulations. “When a contract provides that its terms are subject to a regulatory body, all parties to that contract are bound by the actions of the regulatory body.” Alliant Energy v. Neb. Pub. Power Dist., 347 F.3d 1046, 1050 (8th Cir. 2003). See Inter-City Gas Corp. v. Boise Cascade Corp., 845 F.2d 184, 187 (8th Cir. 1988) (<HOLDING>). The sellers and buyers of power achieved Holdings: 0: holding that a federal court may refuse to exercise continuing jurisdiction even though the parties have agreed to it parties cannot confer jurisdiction by stipulation or consent 1: holding that parties to a contract which provided that its rates may be approved ordered or set by any valid law order rule or regulation of any  regulatory authority  having jurisdiction were bound by a ferc rate determination even though they were not directly subject to fercs jurisdiction 2: recognizing that subject matter jurisdiction can be questioned at any time and with respect to any claim 3: holding that unlike subject matter jurisdiction personal jurisdiction may be waived 4: holding issues related to subject matter jurisdiction may be raised at any time


Input: if the jury posed a question about insurance during deliberations. Evidence of insurance is generally not admissible at trial unless it is offered for a purpose permitted by Federal Rule of Evidence 411. See also Piontkowski v. Scott, 65 Ohio App.3d 4, 582 N.E.2d 1002, 1003-04 (1989). Gratzianna’s brief reference to “Cincinnati Insurance” was inadvertent and unresponsive to the question Chapman’s counsel asked. ■ Counsel hurriedly diverted the jury’s attention from the comment and, unlike the cases on which defendants rely, defense counsel did not ask the court contemporaneously to strike the witness’s remark and instruct the jury to disregard it, nor did counsel ask for an immediate curative instruction. Cf. e.g., Kaltrider v. YMCA of Cleveland, Ohio, 457 F.2d 768, 770 (6th Cir.1972) (<HOLDING>); Davis v. Wal-Mart Stores, Inc., 967 F.2d Holdings: 0: holding the lack of a contemporaneous objection could not be salvaged by a motion for a mistrial 1: holding no prejudice occurred where party made contemporaneous objection to brief remark about insurance during closing argument and court gave cautionary instruction 2: holding a contemporaneous objection is required to preserve an issue for appellate review 3: holding that when no objection was made to jury instruction evidence to support finding based on instruction should be assessed in light of the instruction given 4: holding mistrial unwarranted where contemporaneous objection was made to single mention of insurance and court gave cautionary instruction


Input: so that no party is harmed by what we have called a 'preliminary' adjudication." (quoting United States v. Munsingwear, Inc., 340 U.S. 36, 40-41, 71 S.Ct. 104, 95 L.Ed. 36 (1950))); Peter A. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 146 P.3d 991, 994-96 (Alaska 2006) (finding equity requires vacatur of challenged order when prevailing party's unilateral actions below resulted in issue becoming moot); City of Valdez v. Gavora, Inc., 692 P.2d 959, 960-61 (Alaska 1984) (vacating judgment because it was moot and to prevent it having later legal effect). 10 . See, e.g., State v. Carlin, 249 P.3d 752, 756 (Alaska 2011) ("We will overturn one of our prior decisions only when we are 'clearly convinced that the rule was originally erroneous or is no 0) (<HOLDING>). 18 . See, e.g., Bigley v. Alaska Psychiatric Holdings: 0: recognizing policy and ruling that person who failed to file counterclaim when childs paternity was being determined in earlier litigation should not be allowed to bring later suit to establish that he was childs natural father as this would not be in the childs best interests 1: holding harmless the improper admission of a social workers hearsay testimony concerning a childs report of sexual abuse where the credibility of the childs testimony was supported by other witnesses 2: holding that a plenary hearing was necessary based upon mothers certification and school social workers report of childs behavioral problems 3: holding childs claim he was improperly adjudicated as delinquent not moot even though adjudication was later declared void ab initio because childs records were easily obtainable by others such as school authorities social workers judges at sentencing military and prospective employers 4: holding that trial court improperly awarded custody of child to the childs stepmother and grandparents where no pleading in the case was directed at such relief and the childs mother had no notice that the issue would be considered


Input: v. Cruz Pagan, 537 F.2d 554, 558 (1st Cir. 1976). We tend to agree. ¶ 35. It is important to distinguish between the apartment building and Dumstrey's actual home. While the parking garage is located directly beneath the entire apartment building, it does not follow that it is therefore closely proximate to Dumstrey's home. His home cannot reasonably be said to constitute the entire apartment building. Rather, Dumstrey occupies only one of the 30 units located within the building. This is a far cry from a single family home's attached garage, which courts have consistently held constitutes curtilage. See State v. Davis, 2011 WI App 74, ¶ 12, 333 Wis. 2d 490, 798 N.W.2d 902 (collecting cases and citing State v. Leutenegger, 2004 WI App 127, ¶ 21 n.5, 275 Wis. 2d 512, 685 N.W.2d 536 (<HOLDING>)). ¶ 36. In such cases, the garage is quite Holdings: 0: recognizing that cases consistently hold that an attached garage is part of the curtilage 1: recognizing that the supreme court in hayes consistently limited its holding that the mva title provisions applied instead of the ucc to cases involving tort law and liability insurance coverage  2: recognizing that the supreme court has consistently applied an analysis keyed to economic realities  3: recognizing that  the virginia supreme court has consistently applied the one year statute of limitation  to defamation actions  4: recognizing that an indictment may be dismissed in part


Input: not to place the tapes in the investigation file, depends upon the function he was performing at the time the conduct occurred. He is absolutely immune from liability for damages if he was gathering evidence to present to the trier of fact. See Ybarra, 723 F.2d at 679. Bogan and Ingram would be protected only by qualified immunity, however, if they were conducting an investigation to determine whether probable cause existed to arrest Broam and Manning. See, e.g., Powers v. Coe, 728 F.2d 97, 103 (2d Cir.1984) (determining that, “when a prosecutor engages in or authorizes and directs illegal wiretaps” and “the wiretapping is ... investigative in nature,” the prosecutors are only “entitled to qualified, rather than absolute, immunity”); Jacobson v. Rose, 592 F.2d 515, 524 (9th Cir.1978) (<HOLDING>); Guerro v. Mulhearn, 498 F.2d 1249, 1255-56 Holdings: 0: holding officers engaged in search entitled to immunity 1: holding that a judge was not entitled to absolute immunity for firing an employee 2: holding that while a witness and prosecutor were protected by absolute immunity for their participation in judicial proceedings they were not entitled to absolute immunity on a  1983 claim that they conspired to present false testimony 3: holding that when prosecutors joined in implementing the wiretap they engaged in an act that was ordinarily related to police activity and were not entitled to absolute immunity 4: holding that prosecutors have absolute immunity


Input: to the suit in which he is appointed, and the receiver is not appointed for the benefit of any party_”) 16 . RCW § 7.60.040 provides: "[t]he receiver shall have power, under control of the court, to bring and defend actions, to take and keep possession of the property, to receive rents, collect debts, and generally to do such acts respecting the property, as the court may authorize.” 17 . RCW § 7.60.030 provides: Before entering upon his duties, the receiver must be sworn to perform them faithfully, and with one or more sureties, approved by the court, execute a bond to such person as the court may direct, conditioned that he will faithfully discharge the duties of receiver in the action, and obey the orders of the court therein. 18 . See also, Bennett v. Williams, 892 F.2d at 824 (<HOLDING>). 19 . The general definition is in CERCLA § Holdings: 0: holding that individual defendants may not be held liable for violations under title vii 1: holding that a municipality may be held liable as a person under  1983 2: holding that no judgment can be rendered against defendant who cannot be held liable 3: holding that bankruptcy trustees shall not be held liable for mistakes within reasonable business judgment 4: holding that employer may be held liable under  1981 for discrimination by supervisory employee


Input: and, in addition, show that a writing is “sufficient against the sender.” We proceed to examine the context of the statute. ORS 71.1020 provides in part: “(1) The Uniform Commercial Code shall be liberally-construed and applied to promote its underlying purposes and policies. “(2) Underlying purposes and policies of the Uniform Commercial Code are: “(a) To simplify, clarify and modernize the law governing commercial transactions; “(b) To permit the continued expansion of commercial practices through custom, usage and agreement of the parties; “(c) To make uniform the law among the various jurisdictions.” In examining the context of the statute, we also look to the decisions of other jurisdictions that have considered the merchant’s exception. See Security Bank, 304 Or at 445 n 6 (<HOLDING>). The cases cited by the parties, however, do Holdings: 0: recognizing that decisions of lower federal courts interpreting federal law are not binding on state courts 1: recognizing that decisions of other courts that have examined these questions are relevant 2: holding that subject matter questions may be but are not necessarily decided before questions of personal jurisdiction 3: holding that questions of procedure are for the arbitrator not the courts 4: holding that state courts in construing and interpreting state law are not bound by the decisions of federal courts


Input: Cir.1996) (stating that the “purpose of the thirty-day rule is to ensure that the defendant is not held under an arrest warrant for an excessive period without receiving formal notice of the charge against which he must prepare to defend himself’); United States v. McCown, 711 F.2d 1441, 1447 (9th Cir.1983) (noting that purpose of the STA time limit is to “apprise defendant of the charges against which he must be prepared to defend himself”). 6 . See also United States v. Hsin-Yung, 97 F.Supp.2d 24, 30 (D.D.C.2000) (citing Bailey with approval and concluding the charged offenses were not the same because “they have different elements, proscribe different forms of conduct, and carry different penalties”). 7 .Cf. United States v. Cardenas-Alvarez, 987 F.2d 1129, 1132-33 (5th Cir.1993) (<HOLDING>). It is of no moment that the two indictments Holdings: 0: holding that a found in indictment need not allege all of the elements of entry 1: recognizing difference in elements between offense of actual entry and attempted entry 2: holding that trial court must make entry of default prior to entry of default judgment and court may not make entry of default when there is no default in law or in fact 3: holding that the defendants entry into the foyer of a fraternity house was an entry into a dwelling 4: holding in an impliedconsent case that a warrantless police entry was unlawful in part because the police did not request entry


Input: have held that, under these circumstances, the additional language of Jenkins’ proposed instruction “prevents] the jury from considering the forbidden defense of assumption of the risk while allowing it to make factual findings on the issue of comparative negligence.” Gish, 890 F.2d at 993; see also Koshorek v. Pennsylvania R.R. Co., 318 F.2d 364, 369 (3rd Cir.1963). Because there was sufficient evidence from which the jury could find that Jenkins was given a direct order, the district court’s failure to give the proposed instruction was tantamount to reinstating the defense of assumption of risk. The district court’s instruction allowed the jury to treat the employee’s “voluntary, knowledgeable acceptance of a dangerous condition” as contributory negligence. Gish, 890 F.2d at 991 (<HOLDING>). C Union Pacific argues that the district Holdings: 0: holding that trial court did not err 1: holding that the trial court erred by giving a misleading instruction 2: recognizing district court does not err by giving instruction that tracks pattern instruction and correctly states the law 3: holding that district court did not err in giving an instruction identical to that proposed by jenkins 4: holding that district court did not clearly err in giving twolevel enhancement for similar conduct


Input: being discharged. See NRDC v. EPA 822 F.2d 104,108. (D.C.Cir.1987); see also Waterkeeper All., 399 F.3d at 498 (discharge allowed “where ... permits ensure that every discharge of pollutants will comply with all applicable effluent limitations and standards”). This permit, known as a National Pollutant Discharge Elimination System (“NPDES”> permit, establishes enforceable effluent limitations, as well as monitoring and reporting requirements. NPDES permits, which are issued either by EPA or a state in a federally approved permitting system, see 33 U.S.C. § 1342, may be individual (issued to a specific entity to discharge y-forcing, meaning it should force agencies and permit applicants to adopt technologies that achieve the great est reductions in pollution. See NRDC, 822 F.2d at 124 (<HOLDING>). In determining the standard for TBELs, EPA Holdings: 0: holding that cwa seeks not only to stimulate but to press development of new more efficient and effective technologies which is essential purpose of this series of progressively more demanding technologybased standards 1: holding that the standard for withholding of removal is more demanding than the standard for asylum 2: holding that more than notice to a defendant is required 3: holding that the more transformative the new work the more likely the use of the old work is a fair one 4: holding the aedpa standard is demanding but not insatiable


Input: adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quotations omitted). Because the district court did not rule on whether to grant Valencia a COA, we assume it was denied. 10th Cir. R. 22.1(C). Accordingly, she may not appeal the district court's decision absent a grant of COA by this court. 2 . Because the district court did not enter a separate judgment disposing of Valencia’s § 2255 petition, judgment is deemed entered 150 days from the entry of the relevant order. Fed.R.Civ.P. 58(b)(2)(B). Thus, the judgment dismissing the first § 2255 petition is deemed entered on September 18, 2006, and Valencia’s June 26, 2006 Notice of Appeal is timely. See Thompson v. Gibson, 289 F.3d 1218, 1221 (10th Cir.2002) Holdings: 0: holding that a notice of appeal is timely when filed before final judgment is entered by the district court 1: holding that a judgment is final only when the parties have exhausted their respective rights to appeal or if no party to the action filed a timely appeal 2: holding that court had jurisdiction where no separate judgment had been entered even though notice of appeal was not timely filed as measured from the final decision 3: holding that a conviction is deemed final on the date of sentencing when there is no evidence that notice of appeal was filed 4: holding that notice of appeal was not effectively taken where appeal was filed simultaneously with timely motion for reconsideration because when timely motion for reconsideration is filed a notice of appeal filed prior to disposition of the motion to reconsider has no effect


Input: assesses the prejudicial impact of most constitutional errors by determining whether they “had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)); see also Fry v. Pliler, 551 U.S. 112, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007) (Brecht standard applies whether or not the state court recognized the error and reviewed it for harmlessness). 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 an error must have a substantial and injurious effect on the verdict to entitle a petitioner to habeas relief 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 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 3: 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 4: 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