Input: district court, the USPS relies more heavily on a different argument: that the Award is improper because it requires the discharge of an employee who was not a party to the arbitration proceeding. But this argument also was not raised in arbitration and thus is also waived. The USPS urges that this argument is not waivable because it is based on due process and the civil service statutes; thus, if upheld, this argument would render the CBA and the Joint Statement unenforceable on public policy grounds. Our precedent does not support this position, however. See Dist. 17, 179 F.3d at 140 (finding waiver of First Amendment claim not raised during arbitration); see also AAOT Foreign Econ. Ass’n (VO) Technostroyexport v. Int’l Dev. & Trade Servs., Inc., 139 F.3d 980, 981-82 (2d Cir.1998) (<HOLDING>). We therefore hold that the decision of the Holdings: 0: holding that party waived public policy challenge by failing to raise it during arbitration 1: holding that the defendant waived an argument by failing to raise it in his appellants brief 2: holding that appellant waived issue by failing to raise it in opening brief 3: holding that party waived argument by failing to brief it on appeal 4: holding that a party abandoned an issue by failing to raise it in the opening brief


Input: (1986). While Burgunder is formally the employee of plan sponsor PNG, he performed his activities for the plan on behalf of the plan administrator defendants, and not on behalf of the plan sponsor. The conclusion that Burgunder performed these tasks on behalf of the plan administrator, the named fiduciary with respect to the plan, is clear from the regulations. These provide that “[i]n discharging fiduciary responsibilities, a fiduciary with respect to a plan may rely on ... persons who perform purely ministerial functions for such plan,” such as “advising participants of their rights and options under the plan.” DOL Reg. § 2509.75-8, 29 C.F.R. § 2509.75-8, Q & A D-2 & FR-11 (emphasis added); see also 2 JEFFREY D. MAMORSKY, Employee Benefits Law: ERISA and Beyond § 12.06[4] (1993) (<HOLDING>). The defendants concede, as we have noted, Holdings: 0: recognizing the dol opinion letter as the source of the nonstatutory factor 1: recognizing cause of action for damages against federal agents acting under their authority who allegedly violated plaintiffs fourth amendment rights 2: holding that when acting pursuant to a valid warrant the police did not violate the fourth amendment by acting outside their jurisdiction in violation of state law 3: recognizing that pursuant to dol reg  2509758 a committee acting as plan ad ministrator can select  agents to perform ministerial functions 4: holding that the bank trustee of a relevant plan was not a fiduciary in regard to real estate interests because it performed only administrative and ministerial functions


Input: innovative, such that it could not be readily duplicated by others in the industry. See USA Power, 2010 UT 31, ¶ 45, 235 P.3d 749 (listing "the ease or difficulty with which the information could be properly acquired or duplicated by others" as a relevant factor in determining whether information is a trade secret (citation and internal quotation marks omitted)). Nor does CDC cite any record evidence that the pricing information required great time or financial investment to develop. See id. (listing "the amount of effort or money expended by the business in developing the information" as a relevant factor for determining whether information is a trade secret (citation and internal quotation marks omitted)); see also Microbiological Research Corp. v. Muna, 625 P.2d 690, 700 (Utah 1981) (<HOLDING>); Hammerton, Inc. v. Heisterman, No. Holdings: 0: holding that the plaintiff failed to carry its burden of proving that its customer list was a trade secret in part because the sole evidence in regard to the customerlist concerned the expenditures in an unidentified sum 1: holding that a customer list may be protectable as a trade secret if it is secret and the court examines and determines if it is protectable based on three factors 1 what steps if any an employer has taken to maintain the confidentiality of a customer list 2 whether a departing employee acknowledges that the customer list is confidential and 3 whether the content of the list is readily ascertainable 2: holding that the plaintiff presented sufficient evidence to create a genuine issue of material fact that its customer list was a trade secret because the plaintiff presented evidence that the list took ten years and great expense to the company to develop 3: holding former employee could properly use recollection of customer information where he did not otherwise misappropriate an actual customer list 4: holding that the plaintiffs customer list was not a trade secret in part because there was no evidence that by the nature of the plaintiffs business extraordinary effort was involved in compiling the customer list


Input: case here, where part of the merchandise is fragile glass. 14 . Both GRI 2(a) and GRI 3(b) employ the term "essential character,” but in rather different contexts. As explained above, GRI 2(a) provides that "[a]ny reference in a heading to an article shall be taken to include a reference to that article incomplete ..., provided that, as entered, the incomplete ... article has the essential character of the complete ... article." GRI 2(a) (emphasis added). In contrast, GRI 3(b) provides, in relevant part, that mixtures, composite goods, and sets "which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential 20 CIT 793, 800-01, 932 F.Supp. 1499, 1504-05 (1996), aff'd, 122 F.3d 1446 (Fed.Cir.1997) (<HOLDING>). Similarly, if the test for "essential Holdings: 0: holding that where the gri 3a rule of relative specificity adequately resolved proper classification of merchandise customs erred in reaching gri 3b essential character analysis 1: holding that where the parties fail to reach an agreement as to the character nature or type of release to be used an essential element of the agreement is not established 2: holding that even though an agreement was approved by the family court it retained its character as an agreement for purposes of legal analysis 3: holding that for purposes of gri 2a essential character analysis it is the ability to process data that gives the essential character to articles under a tariff provision covering automatic data processing machines and units thereof 4: holding that for purposes of gri 2a essential character analysis incomplete merchandise as imported does not have the essential character of the complete or finished article  the ability to strain salt from water and thus cannot be classified as straining cloth


Input: 33 . Dissent at 1052. 34 . See Julsen, 741 P.2d at 649 n. 10. 35 . Id. 36 . See Dissent at 1052. 37 . Dissent at 1053. 38 . Borchgrevink, 941 P.2d at 138; see also Julsen, 741 P.2d at 649 n. 10. 39 . Borchgrevink, 941 P.2d at 137; see also Duffus, 932 P.2d at 779. 40 . Park, 986 P.2d at 210. 41 . Gratrix v. Gratrix, 652 P.2d 76, 82-83 (Alaska 1982). 42 . The fact that Joseph later reimbursed Kathey for the November house payment does not contradict the court's finding. 43 . See Davila v. Davila, 876 P.2d 1089, 1092 (Alaska 1994) (quoting Parker v. Northern Mixing Co., 756 P.2d 881, 892 (Alaska 1988)) ("[I]t is the function of the trial court, not of this court, to judge witnesses’ credibility and to weigh conflicting evidence.”). 44 .See Long v. Long, 816 P.2d 145, 157 (Alaska 1991) (<HOLDING>). 45 . See Burcell v. Burcell, 713 P.2d 802, Holdings: 0: holding that psychological parent was not entitled to custody or visitation 1: recognizing right of fit parent to prevent visitation by grandparents which right can only be overridden by court based on evidence that the prevention of the visitation would harm the child 2: holding visitation statute unconstitutional because it disregards presumption favoring parental decisionmaking forcing parents to prove visitation not in childs best interest 3: holding that uncertainty regarding amount of visitation ordered is fatal to the validity of a trial courts visitation  award 4: holding conclusory statements in visitation dispute were not adequate to support awarding visitation rights


Input: the circumstances was not clearly erroneous. Consequently, the ultimate finding that Hamilton negligently operated the boat was not clearly erroneous. Moreover, this finding is consistent with decisions in other circuits finding a boat operator negligent when, along with other factors, he failed to familiarize himself with the area by consulting charts, notices to mariners, or approved light lists. See, e.g., Andrews v. United States, 801 F.2d 644, 649 (3rd Cir.1986) (evidence that recreational boaters were “piloting their boats in wholly unfamiliar waters without the benefit of personal experience, navigational charts, or even the ability to recognize the standard maritime road symbols” supported finding of negligence); Albinder v. United States, 685 F.Supp. 45, 46 (S.D.N.Y.1987) (<HOLDING>). Our conclusion is not affected by the fact Holdings: 0: holding that hired boat pilot who was unfamiliar with the area was negligent in not having available uptodate navigational guides made available to the public by the us government and in selecting a route which departed from the plainly indicated channels and resulted in the accident 1: holding that the area of concern raised by appellant is exempted from public rulemaking procedures because the rules of practice which appellant claims the university should be required to promulgate would affect only the staff and faculty of the university and not the private rights of or procedures available to the public 2: holding that it is the claimants burden to show that the injury was the result of an accident that not only arose in the course of the employment but that it also grew out of or resulted from the employment 3: holding that equitable relief under rico is available only to the government 4: holding that a certain loan transaction was not merchandise and not available to the consumer in the popular sense where it was not advertised to the public available to consumers in the ordinary market place mass produced or available in large quantities but that it was more accurately characterized as a rare specialized and complex transaction whose availability is restricted to a small number of corporate insiders who hold a significant volume of corporate stock


Input: of such an available remedy, this case will be heard in federal courts rather than state courts whether or not this Court concludes that the complaint constitutes a challenge to processes of state and local taxation.' Ah appropriate regard for the delicate balance between state and national judicial authority counsels that, insofar as feasible, decisions relating to the jurisdiction and remedial capacity of the Delaware state courts — decisions central to the resolution of this case — be made by the Delaware courts themselves. (c) Our concern about the remedy available in the Delaware courts arises in part from the potential tension between the decision of the Court of Chancery in Delaware Bankers Ass’n v. Division of Revenue of the Dep’t of Finance, 298 A.2d 352, 356 (Del.Ch.1972) (<HOLDING>), and that of the Superior Court in Tatten Holdings: 0: recognizing that in some circumstances an afterthefact remedy under state law may be adequate 1: holding that in some rcases there is an adequate remedy at law for an attack on an illegal or unconstitutional tax through the tax appeal board 2: holding that the granting or denial of an urban renewal tax exemption is reviewable by tax appeal 3: holding refund of discriminatory tax required because predeprivation remedy not clearly available for tax years at issue 4: holding that massachusetts provides an adequate remedy for challenging a real estate tax assessment


Input: $2500 fine, noting that “the penalty is particularly needed because of the perjury that I’ve been alluding to.” ¶ 5. On appeal, defendant argues that the trial court erred by basing her sentence, without advance notice, on her suborning perjury when there was no evidence that her husband gave perjured testimony or that, even if he did, she suborned such testimony. ¶6. A number of general principles guide our decision. A judge presiding at a trial may rely upon observations made during the trial in sentencing a defendant who was convicted by the jury. See United States v. Grayson, 438 U.S. 41, 55 (1978) (reaffirming trial court’s authority to take into account willfully false testimony in determining appropriate sentence); State v. Loveland, 165 Vt. 418, 423, 684 A.2d 272, 276 (1996) (<HOLDING>); State v. Noyes, 157 Vt. 114, 119, 596 A.2d Holdings: 0: holding that when a defendants sentence has been set aside on appeal a trial court at resentencing may consider evidence of the defendants postsentencing rehabilitation 1: holding that appellate court could not consider objection to testimony when defendant objected at trial on different grounds 2: holding district courts may consider rehabilitation when deciding whether to impose a more lenient sentence at a defendants resentencing 3: holding that trial court could consider defendants testimony and demeanor at trial in fashioning sentence because defendants truthfulness at trial is probative of attitude towards society and prospects for rehabilitation 4: holding inter alia that a jury may consider a defendants appearance at trial in conjunction with the evidence submitted at trial in order to resolve conflicts in the testimony presented


Input: (citing Supreme Court cases noting the permissibility of limitations on speech, privacy, and self-incrimination protections where a citizen works for a government agency). As noted below, such limitations have been expressly considered when ascertaining the exercise of a right of intimate association. Here, the FBI’s conduct regulations limited certain conduct on government property, including cohabitation or sleeping in a room at the FBI Academy other than one to which the NAT is assigned. (See Def.’s Ex. 1 at 23.) A regulation that may implicate certain aspects of relationships between fellow NATs is rationally related to the government interest of instilling and maintaining a certain code of conduct. See Mercure v. Van Buren Tp., Mi., 81 F.Supp.2d 814, 827 (E.D.Mich.2000) (<HOLDING>); cf. LaVergne, 371 F.3d at 882 (holding that a Holdings: 0: holding that an officers use of force against a plaintiff was objectively reasonable considering the force the plaintiff herself exercised in resisting police custody 1: holding that concerns of cohesiveness among members of a police force justified prohibitions on relationships between the plaintiff and a fellow officer 2: recognizing that the fellow officer rule functions to include officers outside the common investigation 3: holding that expert testimony on what constitutes deadly physical force and whether the use of force was justified should have been excluded 4: holding that discharge of a police officer for the choice to enter into a relationship with the wife of his superior officer on the force was rational


Input: shield to justice.” We find no authority on which to do so and Plaintiff provides us with none. {33} This Court previously indicated, although not specifically addressing an argument concerning conflicting public policies created by the Legislature, that negligence arising out of the violation of a statutory duty does not change the immunity granted under the Tort Claims Act. See Rubio v. Carlsbad Mun. Sch. Dist., 106 N.M. 446, 449, 744 P.2d 919, 922 (Ct.App.1987) (denying education malpractice claim based on duties under the Certified School Personnel Act, stating the claim was “a form of negligence and the courts of this state would have no jurisdiction over the claim unless there was a waiver of immunity”); Begay v. State, 104 N.M. 483, 487-88, 723 P.2d 252, 256-57 (Ct.App.1985) (<HOLDING>), rev’d on other grounds by Smialek v. Begay, Holdings: 0: holding that plaintiffs claim that medical providers did not comply with baker act was not subject to medical malpractice statutes ajlthough a medical diagnosis is necessary in order to involuntarily commit a patient the process of complying with the statute does not require medical skill or judgment 1: holding that general statement of intent does not override plain language of statute 2: holding state medical examiner immune from alleged violation of autopsy statute stating even if the statute does create a private cause of action it does not override the medical investigators grant of immunity under the tort claims act 3: holding that the ada does not create a remedy for medical malpractice 4: holding at least under the facts of the case that the statute of limitations in a medical malpractice action did not begin to run until the plaintiff secured a specific medical diagnosis


Input: and effective administration of justice, particularly when a change of counsel is sought on the eve of trial, primarily for the purpose of delay, and without making any effort to obtain substitute counsel.” Whitlow, 2016 Ark. App. 510, at 7-8, 506 S.W.3d at 276. And this court has explained that “[t]he constitutional right to counsel is a shield, not a sword, and a defendant may not manipulate [the] right for the purpose of delaying trial or playing ‘cat-and-mouse’ with THE COURT.” Coakes v. State, 2014 Ark. App. 298, at 5 n.1, 2014 WL 2011804; see also Faretta, 422 U.S. at 834 n.46, 95 S.Ct. 2525 (noting that the trial court may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct); Brown v. Gibson, 2012 Ark. 285, 423 S.W.3d 34 (<HOLDING>); Burns v. State, 300 Ark. 469, 780 S.W.2d 23 Holdings: 0: holding that a defendants pro se status may be terminated if he or she has demonstrated disruptive behavior or used the right as a tactic for delay disruption distortion of the system or manipulation of the trial process 1: holding that a public employee who is defamed in the course of being terminated or constructively discharged satisfies the stigmaplus test even if as a matter of state law he or she lacks a property interest in the job that he or she lost 2: holding that a defendant has a right to proceed pro se at trial 3: holding that an individual can waive any process to which he or she has a right 4: holding that a defendant can lose his right to be present at trial if after a warning by the judge he continues his disruptive behavior


Input: Lankford was reasonable and supported by substantial evidence, the Court will not address the merits of the summary judgment motions between Webco and HCC as the issue of HCC’s payment of the claim under the stop-loss policy is now moot. V. Conclusion For the foregoing reasons, Defendants’ Webco, Inc. and the Plan Administrator for the Webco Employee Group Health Plan Motion for Summary Judgment (Doc. No. 63) is GRANTED, Plaintiffs Motion for Summary Judgment (Doc. No. 56) is DENIED, and the remaining motions are DENIED AS MOOT: Third-Party Defendant’s Motion for Summary Judgment (Doc. No. 61) and Third-Party Plaintiffs Motion for Summary Judgment (Doc. No. 65). IT IS SO ORDERED. 1 . In accordance with Local Rule 56.1(a), "[a]ll facts set forth in the statement o 947-48 (8th Cir.2000)(<HOLDING>) with Chronister v. Baptist Health, 442 F.3d Holdings: 0: holding that when the insurer is also the plan administrator we have recognized something akin to a rebuttable presumption of a palpable conflict of interest 1: holding that plan administrator that was also insurer operated under conflict of interest 2: holding that when an entity both funds and administers the plan there is a rebuttable presumption that a palpable conflict of interest exists 3: holding that a structural conflict of interest exists when an insurer acts as both the plan administrator and the funding source 4: holding that it is wrong to assume a financial conflict of interest from the fact that the plan administrator is also the insurer


Input: 189 Colo. 173, 538 P.2d 110 (1975), and White Cap Mining Co. v. Resurrection Mining Co., 115 Colo. 396, 174 P.2d 727 (1946), for the proposition that a party should not have to search property titles before resorting to service by publication is misplaced. Both cases involve a county treasurer's obligation to ascertain the current addresses of delinquent property taxpayers before issuing tax deeds. Under section 39-11-128, C.R.S$.2015, a county treasurer must make "diligent inquiry" into information available in county records. Neither Siddoway nor White Cap Mining Co. say that a treasurer has no duty to search county records; they merely state that a treasurer need not search beyond county records to ascertain taxpayers' addresses. See Siddoway, 189 Colo. at 176, 538 P.2d at 113 (<HOLDING>); White Cap Mining Co., 115 Colo. at 408, 174 Holdings: 0: holding that this court need not address the merits of an argument raised for the first time on appeal 1: holding appellate court need not address issues unnecessary to its decision 2: holding that an administrator need not address each piece of evidence 3: holding that a treasurer need not search miscellaneous personal correspondence after an address had been found in the countys records 4: holding that where a party does not adequately brief an argument we need not address it on appeal


Input: for searches under the Maine Constitution than is provided under the Fourth Amendment to the United States Constitution. In State v. Patten, 457 A.2d 806, 811 (Me.1983) and State v. Bouchles, 457 A.2d 798, 801-02 (Me.1983) we refused to hold that the Maine Constitution mandated a result different from that required by the Fourth Amendment for the search of closed containers in a vehicle. In State v. Wallace, 333 A.2d 72, 74 (Me.1975) the defendant argued that we should not permit consent as an exception to the warrant requirement, but we disagreed and said: "We are not persuaded, in cases involving consent searches, that we should adopt more rigid Fourth Amendment standards than those acceptable to the United States Supreme Court.” See also State v. Heald, 314 A.2d 820, 829 (Me.1973) (<HOLDING>). We are not persuaded that the prohibition Holdings: 0: holding that the state must prove juvenile delinquency beyond a reasonable doubt 1: holding that as both a state and federal constitutional matter we conclude that due process requires that the prosecution prove every element of the charged crimes beyond a reasonable doubt citing utah const art i  7 us const amends v xiv other citations omitted 2: holding that because of its civil nature section 881 does not require the government to prove beyond a reasonable doubt that a criminal violation occurred 3: holding that me const art 1  5 does not require the state to prove probable cause for a search beyond a reasonable doubt 4: holding state must prove voluntariness of confession beyond a reasonable doubt


Input: 2d 353, 361 (1995). The term “wrongfully caused” refers to the point in time in which “the injured person becomes possessed of sufficient information concerning his injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is involved.” Knox College v. Celotex Corp., 88 Ill. 2d 407, 416 (1981). Historically, the limitations period for bringing a wrongful death action has been regarded as a condition precedent, not modified or affected by the general statute of limitations. Fure v. Sherman Hospital, 64 Ill. App. 3d 259, 264 (1978). However, as plaintiff correctly notes, the discovery rule has been applied to wrongful death actions under certain circumstances. See, e.g., Coleman v. Hinsdale Emergency Medical Corp., 108 Ill. App. 3d 525, 529 (1982) (<HOLDING>); Fure, 64 Ill. App. 3d 259 (same). Holdings: 0: holding that a failure to include a beneficiary in a wrongful death action is a defect because the wrongful death act restricts plaintiffs to a single action 1: holding that a surviving spouse can bring a wrongful death action based on medical malpractice 2: recognizing cause of action for wrongful death 3: holding that plaintiffs failure to prove decedents death was caused by the wrongful acts of the defendant precludes any recovery of wrongful death damages under mississippis wrongful death statute 4: holding that discovery rule applied to wrongful death action predicated on medical malpractice


Input: 7 through October 4. Bloate, 130 S.Ct. at 1358. On remand, this court ordered supplemental briefs on the periods (1) from September 25 through October 4, and (2) from February 23 through March 5. II. The Speedy Trial Act requires that a defendant’s trial begin within 70 days from the indictment or the defendant’s initial appearance. See 18 U.S.C. § 3161(c)(1), (h). If not, the district court must, on the defendant’s motion, dismiss the indictment. See 18 U.S.C. § 3162(a)(2). The Act automatically excludes “delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion.” 18 U.S.C. § 3161(h)(1)(D); see United States v. Tinklenberg, — U.S. -, -, 131 S.Ct. 2007, 2016, 179 L.Ed.2d 1080 (2011) (<HOLDING>). This court reviews de novo the district Holdings: 0: holding subsection h1d stops the speedy trial act clock upon filing of a pretrial motion regardless of whether the motion has any impact on the trial setting 1: holding that the speedy trial provision is tolled when a defendants pretrial motion is pending 2: holding that a delay of 8 months is enough to provoke a speedy trial inquiry 3: holding that when determining whether a delay in prosecution violates a defendants right to a speedy trial courts must consider the length of the delay the reason for the delay whether the defendant asserted his rights and the resulting prejudice to the defendant 4: holding that whether a pretrial motion actually caused or is expected to cause delay of trial is irrelevant to the speedy trial act


Input: fact subject to independent appellate review); Lightbourne v. State, 742 So.2d 238, 247-48 (Fla.1999) (requiring cumulative analysis of Brady material). The second issue is whether the trial court erred in denying relief based on erroneous jury instructions as to the CCP and HAC aggravators. The trial court properly denied relief as to appellant’s claims regarding the CCP and HAC instructions. First, the State’s argument (based on the trial court’s ruling) that appellant failed to preserve the error as to the CCP instruction is supported by the record. On direct appeal, appellant failed to specifically argue that the CCP instruction was unconstitutionally vague, even though he advanced the argument with respect to the HAC instruction. See Jackson v. State, 648 So.2d 85, 90 (Fla.1994) (<HOLDING>); see generally Steinhorst v. State, 412 So.2d Holdings: 0: holding party may not argue one ground at trial and another on appeal where appellant did not object to testimony at trial on the grounds raised on appeal that it was improper character evidence but objected only on the basis of relevancy issue was not preserved for review 1: holding factor b is not unconstitutionally vague 2: holding that an issue was not preserved for appellate review because appellants trial objection does not comport with the issue he raised on appeal 3: holding that an issue is preserved for appeal where the issue was sufficiently raised for the court to rule on it   4: holding that issue of unconstitutionally vague instruction relative to aggravating factor was properly preserved for postconviction review where the defendant objected to the vagueness at trial and raised the issue on direct appeal


Input: that behavior. See 1414(d)(3)(B). Finally, an IEP team, “periodically, but not less than annually must determine whether the annual goals for the child are being achieved.” See 1414(d)(4)(A)(i). The IDEA does not require that a school either maximize a student’s potential or provide the best possible education at public expense. Fort Zumwalt Sch. Dist. v. Clynes, 119 F.3d 607, 612 (8th Cir.1997). The Act requires only that a student receive sufficient specialized services to benefit from his education. Id. See also Rowley, 458 U.S. at 195, 102 S.Ct. 3034 (IDEA’S goal is “more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.”). See also Doe v. Bd. of Educ., 9 F.3d 455, 459-60 (6th Cir.1993) (<HOLDING>). In regard to placement of a disabled child in Holdings: 0: recognizing that a school district must be a prevailing party in order to be entitled to attorneys fees under the idea 1: holding idea requires transportation of disabled child only to address his educational needs and does not require school district to accommodate a parents unrelated noneducational preferences 2: holding that the idea requires a school district to provide the educational equivalent of a serviceable chevrolet  not  a cadillac 3: holding that a school district was not required to move a nurse to a students neighborhood school to comply with the idea 4: holding that school districts provision of teaching materials in a tardy fashion had an educational source and educational consequences


Input: 170 N.C. App. 100, 105, 612 S.E.2d 172, 175-76, disc. review denied, 359 N.C. 640, 617, S.E. 7). Accordingly, we must examine the other evidence presented in the light most favorable to the State. The State points to the fact that the marijuana seized from defendant was separated into three smaller packages. Officer Bunt testified that marijuana is typically sold “in bags in different sizes.” Based on his training and experience, Officer Bunt believed that each bag of marijuana found in defendant’s pocket would sell for between $5.00 and $10.00 each. “The method of packaging a controlled substance, as well as the amount of the substance, may constitute evidence from which a jury can infer an intent to distribute.” State v. Williams, 71 N.C. App. 136, 139, 321 S.E.2d 561, 564 (1984) (<HOLDING>); see also In re I.R.T., 184 N.C. App. 579, Holdings: 0: holding that the trial court erred by granting the defendants motion to dismiss 1: holding that the trial court did not err in denying defendants motion to dismiss where the evidence at trial showed that the 276 grams of marijuana  was packaged in seventeen separate small brown envelopes known in street terminology as nickel or dime bags  2: holding that trial court did not abuse its discretion in denying defendants motion to dismiss on de minimis grounds where his expert witness testimony was inadmissible 3: holding that the trial court did not err by granting defendants motion for summary judgment 4: holding that trial court did not err


Input: swamp any common issues and defeat predominance.’ ” Id. (quoting Castano v. Am. Tobacco Co., 84 F.3d 734, 741 (5th Cir.1996)). It is settled that in reviewing a class certification order, we must evaluate “ ‘the claims, defenses, relevant facts, and applicable substantive law.’ ” Bernal, 22 S.W.3d at 435 (quoting Castano, 84 F.3d at 744). In so doing, we have required “trial courts [to] abandon the practice of postponing choice-of-law questions until after certification, as courts can hardly evaluate the claims, defenses, or applicable law without knowing what that law is. ” Compaq, 135 S.W.3d at 672 (citing Tracker Marine, L.P. v. Ogle, 108 S.W.3d 349, 351-52 (Tex.App.-Houston [14th Dist.] 2003, no pet.)) (emphasis added); see also Spence v. Glock, 227 F.3d 308, 313 (5th Cir.2000) (<HOLDING>); Citizens Ins. Co. of Am. v. Daccach, 217 Holdings: 0: holding that we lacked jurisdiction to review the veterans courts determination that equitable tolling did not apply in the case before it 1: holding that issues not raised before the district court cannot be raised for the first time before this court 2: holding that where the party does know that the filing and signing is sic wrongful and the attorney reasonably should know then sanctions against both are appropriate 3: holding that the district court is required to know which law will apply before it makes its predominance determination 4: holding that role in the offense is a factual determination albeit complex a district courts decision not to apply an adjustment based on such a determination is reversed only for clear error


Input: would in itself be unconstitutional or otherwise contrary to criminal or civil statutes.” Doe v. McMillan, 412 U.S. 306, 312-13, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973) (citation omitted). Before defendants in the instant case can invoke legislative immunity, they have the burden of establishing both of the following: (1) that the acts giving rise to the harm alleged in the complaint were undertaken when defendants were acting in their legislative capacities under the functional test set forth in Bogan; and (2) that the particular relief sought would enjoin defendants in their legislative capacities, and not in some other capacity in which they would not be entitled to legislative immunity. See State Emp., 494 F.3d at 89; see also Canary v. Osborn, 211 F.3d 324, 328 (6th Cir.2000) (<HOLDING>). Here, Defendants argue that by issuing the Holdings: 0: holding that the burden is on the defendants to establish the existence of absolute legislative immunity 1: holding that the burden is on the plaintiff 2: holding that city council is entitled to absolute legislative immunity from claim under the age discrimination in employment act 3: holding that the burden is on defendant as the party invoking removal jurisdiction to establish the existence of a sufficient amount in controversy 4: holding that prosecutors have absolute immunity


Input: per se to violation of OSHA regulation because statute provided that regulations were not to enlarge, diminish, or affect common law rights, duties, and liabilities). When a legislative enactment or regulation does not define the applicable standard of care, it may nonetheless “be relevant evidence bearing on the issue of negligent conduct.” Restatement (Second) of Torts § 288B (1965). This is particularly true in the case of administrative regulations, whose violation courts commonly regard as evidence of the applicable standard of care. See id. cmt. d. We therefore conclude that violations of commission rules are valid, but not conclusive, evidence that a lessee breached a duty owed to the surface owner. See Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579, 591-92 (Colo.1984) (<HOLDING>). Because commission rules are only evidence of Holdings: 0: recognizing right to privacy in receipt of health care services to the extent consistent with providing adequate medical care and the safety and good order of the facility 1: holding whistleblower protections available under the washington health care act rcw 4370075 adequately promoted workplace safety ensured compliance with the accepted standard of care and prevented fraudulent billing in the health care industry 2: holding that although compliance with administrative safety regulations did not establish due care it was evidence of due care 3: recognizing that missouri courts have often held that regulations may establish the appropriate standard of care in a negligence case 4: holding that a general acute care hospital may not delegate its duty to provide physicians for emergency room care because the law imposes a duty on hospital to provide that health care


Input: stolen enclosed trailer, the snowmobile, the Polaris ATV, and the Honda ATV, contrary to Section 30-16D-4(A). {38} IT IS SO ORDERED. JAMES J. WECHSLER, Judge WE CONCUR: CYNTHIA A. FRY, Judge J. MILES HANISEE, Judge 1 NMSA 1978, Section 66-1-4.19 (B) (2005) defines “vehicle” as “every' device in, upon or by which any person or property is or may be transported or drawn upon a highway].]” A “motor vehicle” is defined as “every vehicle that is self-propelled and every vehicle that is propelled by electric power obtained from batteries].]” NMSA 1978, Section 66-1-4.11(H) (2007). State v. Richardson, 1992-NMCA-041, ¶ 5, 113 N.M. 740, 832 P.2d 801 (“[A] ‘motor vehicle’ is but a subset or subgroup of the larger category ‘vehicle’].]”); cf. State v. Natoni, 2012-NMCA-062, ¶ 14, 282 P.3d 769 (<HOLDING>). 2 Sanchez involved a trial court’s dismissal Holdings: 0: holding that plaintiff who slipped and fell on ice while securing cars on his employers motor vehicle carrier preparing to travel was very close to the vehicle and engaged in a task related to the vehicle and therefore was an occupier of a motor vehicle 1: holding that to be convicted under dwi statute a person must be driving or in actual physical control of the vehicle but motion of the vehicle is not necessary 2: holding that the sensible and popular understanding of what a motor vehicle accident entails necessarily involves the motor vehicle being operated as a motor vehicle  3: holding that an atv qualifies as a vehicle for purposes of section 661419b and the motor vehicle codes dwi statute nmsa 1978  668102a 2010 4: holding that the statute qualifies as an exemption 3 statute


Input: Cir.2011). A sentencing court first calculates the applicable Guidelines range and only then does it consider the § 3553(a) factors in making an “individualized assessment based on the facts presented.” Gall v. United States, 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). It is eminently reasonable to weigh a defendant’s criminal history and the efficacy of prior sentences when selecting the appropriate sentence, regardless of whether it is within or above the Guidelines range. See Canning, 633 F.3d at 477; see also United States v. Dunn, No. 12-3566-cr, 529 Fed. Appx. 30, 2013 WL 3368875, at *2 (2d Cir. July 8, 2013) (“In [defendant’s] case, it would make no sense to ignore his criminal history and imperviousness to rehabilitative treatment in de . 811, 812 (9th Cir.2011) (<HOLDING>); United States v. Oliver, 20 F.3d 415, 418-19 Holdings: 0: holding district court did not impermissibly engage in triplecounting when it relied on prior convictions to calculate criminal history category enhance the offense level and impose an upward variance 1: holding a court may consider a defendants criminal history even if that history is included in the defendants criminal history category 2: holding that a district court may depart upward based upon based criminal conduct when such conduct is not included in the computation of criminal history category 3: holding that the district court did not abuse its discretion by imposing an upward variance after finding that the defendants criminal history category of i understated the seriousness of his criminal history 4: holding district court did not impermissibly engage in triple or quadruplecounting when it relied on prior convictions to determine that the sixteenlevel enhancement applied in calculating the criminal history category in departing upward and in varying upward


Input: of contract claim is based on the same facts as its default claim. Consequently, FSIA’s commercial activity exception to immunity applies to Plaintiff's breach of contract claim for the same reasons it is applicable to the default claim. See DRFP, 622 F.3d at 515-18 (outlining how Venezuela’s refusal to pay the promissory notes caused a direct effect in the United States). 21 .The Court recognizes the potential application of other bodies of law, such as Swiss law, to the Notes in question. In analyzing the breach of contract claim, however, both parties appear to presume that Ohio law applies. Specifically, neither party advocates for the application of foreign law nor do the parties contend that applying foreign law would impact the outcome. See Wendy’s Intern., 2007 WL 710242, at *5 (<HOLDING>). For the reasons described below, Plaintiff's Holdings: 0: recognizing that an ohio court should apply local law unless a party meets the burden of showing that foreign law requires a different result 1: holding under texas version of the recognition act that public policy exception is not triggered simply because the body of foreign law upon which the judgment is based is different from the law of the forum or because the foreign law is more favorable to the judgment creditor than the law of the forum 2: holding that a party relying on foreign law must plead and prove it and partys failure to do so entitles court to assume that foreign law is the same as forum law 3: holding state law governs property interests in bankruptcy proceedings unless some federal interest requires a different result   4: holding that a states law is materially different from california law if application of the other states law leads to a different result


Input: the knowledge or consent of that owner.” 21 U.S.C. § 881(a)(6) & (7) (brackets conform to subsection (7)). “Innocent owners are those who have no knowledge of the illegal activities and who have not consented to the illegal activities.” United States v. One Single Family Residence, 995 F.2d 1558, 1560 (11th Cir.1993) (quoting United States v. 15603 85th Ave. North, Lake Park, 933 F.2d 976, 981 (11th Cir.1991)). Moreover, the Eleventh Circuit has adopted the Calero-Toledo standard for purposes of defining the innocent owner exceptions contained' in § 881(a)(6) and (7). United States v. One Parcel of Real Estate, 963 F.2d 1496, 1504 (11th Cir.1992) (applying the Calero-Toledo standard to § 881(a)(7) proceeding); United States v. 15603 85th Avenue North, 933 F.2d 976, 982 (11th Cir.1991) (<HOLDING>). The court stresses that the innocence of the Holdings: 0: holding  2254 applies to administrative proceedings 1: holding that the doctrine of issue preclusion applies in removal proceedings 2: holding that the reasonably possible language of calerotoledo applies to  881a6 proceedings 3: holding that exclusionary rule applies to civil forfeiture proceedings 4: holding that the doctrine of res judicata applies to deportation proceedings


Input: recognition proved to be the answer to the question presented in Government of the Virgin Islands v. Smith, 615 F.2d 964, 17 V.I. 623 (3d Cir. 1980): If a defendant’s right to due process can be violated by strict rules of evidence that prevent a defendant from presenting clearly exculpatory evidence to the jury, can that same right also be violated by the failure to affirmatively grant immunity to an available defense witness who will not testify under grounds of self-incrimination when the witness is likely to offer clearly exculpatory testimony? Smith said “yes,” observing that the latter violation is “not different in substance than the violation found in Chambers.” Id. at 970. Indeed, cases like Chambers; Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963) (<HOLDING>) and Brady v. Maryland, 373 U.S. 83, 83 S. Ct. Holdings: 0: holding that the appropriate remedy for a trial courts refusal to consider an indigent defendants request for new counsel is to remand for a hearing 1: holding that a conditionally suspended sentence of imprisonment cannot be imposed on an indigent in a misdemeanor case who is denied counsel 2: holding that rational basis analysis applies to an indigent defendant seeking the assistance of an investigator for trial 3: holding that an indigent defendant cannot have a fair trial without being provided counsel 4: holding that an indigent party has the right to courtappointed counsel in a private child custody proceeding in which the other parent is represented by counsel provided by a public agency


Input: raised in state court that McGee labored under a conflict because he hoped to secure a new trial in which Wisdom likely would be a witness. In any event, Beaty's claim is without merit. Beaty has not shown that McGee labored under an “actual conflict.” Specifically, Beaty has not demonstrated how these circumstances inhibited McGee from zealously advocating the award of a new trial. See, e.g., Mickens v. Taylor, 535 U.S. 162, -, 122 S.Ct. 1237, 1243, 152 L.Ed.2d 291 (2002); Bonin v. Calderon, 59 F.3d 815, 826 (9th Cir.1995). 8 . While Beaty contends that he is entitled to an evidentiary hearing, he has not shown with any specificity that the factual record is inadequately developed to assess whether he was interrogated. See, e.g., Phillips v. Woodford, 267 F.3d 966, 972 (9th Cir.2001) (<HOLDING>). 9 . While Beaty did not receive an Holdings: 0: holding that a formal offer of proof was not required to challenge an evidentiary ruling because the substance of excluded testimony was apparent from the context 1: holding that proof of an explicit agreement is not required 2: holding that an adequate offer of proof is normally required to preserve error when a trial court excludes evidence 3: holding that an evidentiary hearing is not required when the petitioner relies solely upon conclusory unsworn statements unsupported by any proof or offer or proof 4: holding that an unsworn letter is not proper summary judgment proof


Input: and its agents. The pressure exerted against Naifeh to falsify records was no less intimidating because it was asserted by a fellow employee. Tanja had the power to terminate Naifeh and did so because she would not become a party to a criminal enterprise. Her conduct constitutes the very essence of the common law tort created by Sabine Pilot Accordingly, I respectfully dissent. 1 . Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex.1985). 2 . Other jurisdictions take varied approaches to claims of individual liability for wrongful termination. At one end of the spectrum, California, Illinois, and Kansas do not recognize liability for wrongful-discharge claims against individual non-employers. See Reno v. Baird, 18 Cal.4th 640, 76 Cal.Rptr.2d 499, 957 P.2d 1333, 1334 (Cal.1998) (<HOLDING>); Buckner v. Atl. Plant Maint., Inc., 182 Holdings: 0: recognizing tort of wrongful discharge 1: holding that supervisors may not be sued individually under californias fair employment and housing act and stating that this holding also applies to common law actions for wrongful discharge 2: recognizing cause of action for wrongful discharge 3: holding that the test for preclusion of a common law wrongful discharge claim is disjunctive 4: holding that the statute applies also to malicious prosecution actions


Input: CURIAM: Robert Holland Koon seeks to appeal the district court’s order dismissing without prejudice his 28 U.S.C. § 2254 (2000) petition pursuant to Fed.R.Civ.P. 41(a)(2). The district court’s order stemmed from Koon’s request that the court dismiss his petition without prejudice in order to allow him to exhaust his state remedies. A Rule 41(a)(2) voluntary dismissal without prejudice is not appealable. See Unioil, Inc. v. E.F. Hutton & Co., 809 F.2d 548, 555 (9th Cir.1986) (<HOLDING>), overruled in part on other grounds by Moore Holdings: 0: 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  1: holding that dismissal of a pro se complaint for failure to state a claim should generally be without prejudice but if the plaintiff has been given an opportunity amend his complaint and fails to do so the dismissal may be with prejudice 2: holding that this court has jurisdiction over an appeal from a stipulated voluntary dismissal with prejudice unless it was intended to settle the case 3: holding that a plaintiff generally may not appeal a voluntary dismissal without prejudice because it is not an involuntary adverse judgment against him 4: holding appeal improper since the dismissal was voluntary


Input: with the Canadian law governing the dispute.” Both of these concerns are overwrought. As the majority noted, where a foreign defendant is forced to litigate in the United States, “great care and reserve should be exercised before personal jurisdiction is exercised” because of the heightened burden on the defendant. OMI, 149 F.3d at 1096. However, as the Supreme Court noted nearly a half century ago, “modern transportation and communication have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity.” McGee v. International Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). Since that time, transportation has become even more convenient. See Sculptchair, Inc. v. Century Arts, 94 F.3d 623, 632 (11th Cir.1996) (<HOLDING>); Aristech Chem. Int’l Ltd. v. Acrylic Holdings: 0: recognizing that the burden of persuasion for a showing of prejudice was on the defendant 1: holding that the burden is on the plaintiff 2: holding that a robbery defendant was not entitled to a compulsion instruction in the absence of a claim that he or the victim was the target of a specific threat forcing the defendant to participate in the robbery 3: recognizing burden 4: holding the burden of forcing a canadian defendant to litigate in florida was uncompelling


Input: characterization of southbound Route 13 as “a frequented corridor for illegal narcotics flowing from New York and other points north” equally hollow as a basis for reasonable articulable suspicion. First, the district court gave no indication that it accepted Trooper Wade’s testimony on this issue, and the government presented no statistics or other objective evidence regarding Route 13’s status as a “drug corridor.” Moreover, even if the factor was supportable, every southbound car that passed Trooper Wade on that corridor was, by the government’s logic, suspicious. Such a broad generalization does nothing to eliminate the overwhelming number of innocent travelers on that corridor. See Reid, 448 U.S. at 441, 100 S.Ct. 2752; United States v. Boyce, 351 F.3d 1102, 1109 (11th Cir.2003) (<HOLDING>) (internal quotation marks and citation Holdings: 0: holding that officers observation of a known drug dealer approaching the defendants car gave rise to reasonable suspicion 1: holding that a dog sniff of a vehicle during a traffic stop conducted absent reasonable suspicion of illegal drug activity did not violate the fourth amendment because it did not implicate any legitimate privacy interest 2: holding that the facts that defendant had outofstate license plates and was traveling on a highway that was a known drug trafficking corridor alone cannot justify the stop 3: holding that merely traveling with drug dealers did not create probable cause at time of defendants arrest 4: holding that travel on a known drug corridor did not create reasonable suspicion because the factor was one of several applicable to a considerable number of those traveling for perfectly legitimate purposes


Input: court must use the filing date of March 24, 2005, in its calculations. 2 . The number of days between November 19, 2001, and September 20, 2002, is actually 306 days when including September 20, 2002, in the calculation. 3 . The Fifth Circuit has considered 28 U.S.C. 04) (stating that the petitioner could have learned of his counsel’s potential conflict of interest with the exercise of due diligence given that his lawyer’s affiliation with the assistant district attorney was widely known in the small legal community); Easterwood v. Champion, 213 F.3d 1321, 1323 (10th Cir.2000) (stating that a prisoner does not fail to act with due diligence when he does not learn of a new case until it is accessible in the prison law library); Downes v. Carroll, 348 F.Supp.2d 296, 301 (D.Del.2004) (<HOLDING>); Small v. Miller, No. 03 Civ.240 DC, 2003 WL Holdings: 0: holding that a prisoner had failed to demonstrate diligence for purposes of equitable tolling for the same reason that he had failed to show diligence to invoke the statute of limitations under  2255f4 where he had waited several years before pursuing expungement of his disciplinary actions 1: holding that the district court did not err in continuing the trial without defendant when the trial had commenced in defendants presence he vigorously expressed his desire to be absent he was given ample opportunity to change his mind despite the disturbance he had created he had competent counsel and he knew of his right to be present 2: holding that the petitioner could have learned of the factual predicate for his claims before the date of the affidavits in question if he had exercised reasonable diligence given that he was able to obtain the affidavits without any problems while in prison 3: holding that the plaintiffs assertion that he neither knew nor in the exercise of reasonable diligence could have known about the governments possible liability for his injury was irrelevant to accrual of his ftca claim 4: holding that the state courts determination that the petitioner could not show prejudice because he did not allege that the witness was available to testify was a reasonable application of federal law to the facts of the case


Input: unnamed plaintiffs are the real parties in interest. See Navarro, 446 U.S. at 461, 100 S.Ct. 1779. A court may not consider a plaintiff-State a “citizen” for diversity jurisdiction purposes if the State is a real party in interest. Nuclear Eng’g Co., 660 F.2d at 250 (citing Ford, 323 U.S. at 464, 65 S.Ct. 347). A State is a real party in interest when it “articulate[s] an interest apart from the interests of particular private parties, i.e., the State must be more than a nominal party. The State must express a quasi-sovereign interest.” Illinois v. Life of Mid-America Ins. Co., 805 F.2d 763, 766 (7th Cir.1986) (quoting Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 607, 102 S.Ct. 3260, 73 L.Ed.2d 995 (1982)) (emphasis added); see also SDS West Corp., 640 F.Supp.2d at 1050 (<HOLDING>). Advancing a quasi-sovereign interest is Holdings: 0: recognizing that a narrow reading of missouri would suggest that the state is the real party in interest for diversity purposes only when the relief sought inures to the benefit of the state alone but noting that cases have only required a real interest pecuniary or otherwise in the outcome of the litigation 1: recognizing as a quasisovereign interest that the state and its residents are not excluded from the benefits that are to flow fiom participation in the federal system 2: holding that when the action is in essence one for the recovery of money from the state the state is the real substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants 3: holding that the state would be the real party in interest with respect to its claim for restitution even under the claimbyclaim approach because it has a quasisovereign interest in seeking recovery on behalf of a wide range of consumers and aiming to deter future antitrust conduct by corporations in the state 4: holding that when a state sues on behalf of its residents without a sovereign or quasisovereign interest it is only a nominal party and thus not the real party in interest


Input: must have been "informed that, if he or she refused to submit to such test, his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months." § 316.1939(l)(c). The defendant must also have been "informed that a refusal to submit to a lawful test of his or her breath, ... if his or her driving privilege has been previously suspended for a pri- or refusal to submit to a lawful test ... [constitutes] a misdemeanor.” § 316.1939(l)(d). 4 . Busciglio also contended below that the Miranda warnings given at the scene were deficient because they did not properly advise him of his right to have counsel present "during” questioning. See Powell v. State, 969 So.2d 1060 (Fla. 2d DCA 2007) (<HOLDING>). The trial court agreed and suppressed other Holdings: 0: holding that any time is insufficient to warn accused of right to counsel during questioning 1: recognizing that a criminal defendants right to counsel is the right to the effective assistance of counsel 2: holding police violated edwards when they continued questioning a defendant after his initial invocation of the right to counsel even though he responded to the subsequent questioning 3: holding because the svp is civil the accused has no constitutional right to counsel 4: holding that a defendant need not be advised of the right to terminate questioning at any time


Input: was that the trial court erred in sustaining the prosecutor’s objections to defense counsel’s questions to Petitioner’s motion concerning a telephone call that Petitioner allegedly made to her mother while she was being interrogated by the police. The motion court rejected the claims based on the mandatory procedural rule set forth in C.P.L. § 440.10(2)(c), finding that “[sufficient facts appear in the record to have permitted review of [this] issue[] on direct appeal.” C.P.L. § 440.10 Order at 3. Because Petitioner failed to raise the evidentiary issue before the Appellate Division, the motion court found, she was “not entitled to collateral review[.]” Id. (citing N.Y. Crim. Proc. Law § 440.10(2)(c)); People v. Cooks, 67 N.Y.2d 100, 103, 500 N.Y.S.2d 503, 491 N.E.2d 676 (N.Y.1986) (<HOLDING>) As noted above in this Decision and Order, Holdings: 0: holding that the defendants oral motion challenging the venire was insufficient to preserve the issue for review 1: holding that defendants failure to appeal the voluntariness of a plea constitutes waiver of the issue on subsequent appeal 2: holding a general ruling by the trial court is insufficient to preserve a specific issue for appellate review 3: holding defendant failed to preserve burden of proof issue for appeal 4: holding that dismissal of claim attacking sufficiency of a plea allocution by defendants failure to preserve the issue otherwise available on direct appeal for such review


Input: parent is poor, uneducated, and without sufficient financial resources to care for her children in the manner the Department deems advisable-” T.C.B. v. Dep’t of Children & Families, 816 So.2d 194, 197-98 (Fla. 1st DCA 2002). Best Interests of the Child Finally, we acknowledge that we have not addressed whether termination is in the best interest of the child, and we de- dine to do so. We find that where the Department has not provided competent, substantial evidence to prove that Appellants pose a substantial risk of significant harm to V.B., and thus failed to show that termination is the least restrictive means of protection, we need not decide whether termination would be in the child’s best interests. See J.J. v. Dep’t of Children & Families, 994 So.2d 496, 503 (Fla. 4th DCA 2008) (<HOLDING>). Thus, we REVERSE and REMAND for further Holdings: 0: holding that although a reason was provided in the termination letter the without cause termination provision was applicable 1: holding that though the mother admitted that there were grounds to support termination of her parental rights the benefits of allowing the mothers relationship with her teenage daughter to continue were too palpable and the benefits of severing it too speculative for us to agree that the state had shown by clear and convineing evidence that termination was in the best interest of the child 2: holding that it need not discuss the trial courts findings concerning the manifest best interests of the children because it was reversing termination due to the departments failure to prove that the mother posed a substantial risk of significant harm and that termination was the least restrictive means 3: holding that in cases involving severe or continuing abuse or neglect the termination of parental rights without the use of plans or agreements is the least restrictive means 4: holding that a superior court properly considered the childrens need for permanency a crucial need for young children in evaluating the best interests of the child in a termination proceeding


Input: plaintiff can show that the third party breached a duty recognized by law. Id. In the absence of affirmative conduct such as an agreement, contract, statute, or other special circumstance, negligence law generally does not impose affirmative duties, such as the duty to preserve evidence. Id. The question “ ‘[w]hether a duty exists is ultimately a question of fairness. The inquiry involves a weighing of the relationship of the parties, the nature of the risk and the public interest in the proposed solution.’ ” Id. (quoting Cruet v. Certain-Teed Corp., 432 Pa.Super. 554, 639 A.2d 478, 479 (1994)). There are two possible duties to consider in the context of this case: 1) duty of a third-party company to its customers, and 2) duty of a third-party employer to its employ d 615 (Ala.1983) (<HOLDING>). On remand from the Eighth Circuit Court of Holdings: 0: holding that no independent commonlaw duty exists on the part of an employer to preserve evidence for an employees potential civil action against third parties 1: holding that an employer through its employees did not breach an independent duty to power company not to come in contact with power companys transmission lines because such a duty is a general duty not an independent one 2: recognizing that the compensation that an employer pays may exceed an employees recovery from third parties 3: holding there is no duty to third parties on the part of a premises owner who could not have foreseen the criminal acts of third parties 4: holding that such a duty exists


Input: funds that is required for the imposition of the statutory trust. Cucinotti next contends that the trial court erred in holding him personally liable. He points out that Reliance rested its theory of personal liability on several grounds, each of which was essentially abandoned in favor of the participation theory as articulated by the Supreme Court in its decision in Saltiel v. GSI Consultants, Inc., 170 N.J. 297, 788 A.2d 268 (2002), a decision released while the Reliance summary judgment motion was pending. While there are other reported decisions that hold that corporate officers who participate in fraud or conversion can be held personally liable for the losses occasioned thereby, see, e.g., Charles Bloom & Co. v. Echo Jewelers, 279 N.J.Super. 372, 382, 652 A.2d 1238 (App.Div.l995)(<HOLDING>); Robsac Indus., Inc. v. Chartpak, 204 Holdings: 0: holding defendants personally liable for alleged conversion even when acting in corporate capacity 1: holding that a state officer sued in his individual capacity may be held personally liable for damages under 42 usc  1983 based upon actions taken in his official capacity 2: holding that a corporate officer signing a contract in his corporate capacity is generally not liable for damages under the contract 3: holding that the plaintiffs were entitled to discovery to determine whether the defendant intended to be bound in his personal andor corporate capacity where the agreement contained certain personal guarantees by the defendant but where the defendant signed the agreement only in a corporate capacity with no signature blocks provided for signing in a personally capacity 4: holding that state officials may be personally liable for actions taken in their official capacity


Input: to Virginia jurisdiction, but also more than passingly familiar with the Commonwealth’s court system. (Dkt. No. 45 ¶ 7.) Furthermore, the parameters of United’s own contract with the decedents stipulate that, upon issuance of a ticket, United consented to “conditions of carriage upon which [United] agree[d] to provide Domestic and International Carriage.” (Dkt. No. 15-1 at 24.) Pursuant to its contract of carriage, United was bound to provide air transportation for decedents from an airport in Virginia to their destination in Europe. Thus, even absent United’s other numerous and substantial connections to Virginia, United’s express agreement that certain contractual duties be performed in the forum is sufficient to demonstrate purposeful availment. See Peanut Corp., 696 F.2d at 314 (<HOLDING>). Because United engaged in long-term business Holdings: 0: holding that the defendant must have created a substantial connection to the forum state by action purposefully directed toward the forum state or otherwise invoking the benefits and protections of the laws of the state 1: holding that by advertising and offering its products for sale via the internet the defendant purposely availed itself of the forum state even though only two sales had been consummated with forum residents both of which were to plaintiffs president and his friend after the motion to dismiss the complaint had been made 2: recognizing that where plaintiff is from the forum state and defendant is from an alternate forum each forum can claim a connection to one of the parties 3: holding that phone and facsimile communications to the forum purchase orders and payments sent to the forum a choice of law clause within the contract regarding the forum state and delivery of the product within the forum state were not enough to satisfy minimum contacts 4: holding that a defendants agreement that a substantial performance of contractual duties take place in the forum state is dispositive on whether defendant purposefully availed itself of that forum


Input: marijuana patch, (2) the defendant t Ryan, who has substantial expertise and training in investigations relating to marijuana cultivation, that marijuana and other indicia of marijuana cultivation would be located at defendant’s residence. This court has “recognized that courts often rely on the opinion of police officers as to where contraband may be kept.” $14.9,44243 in U.S. Currency, 965 F.2d at 874. In short,- contrary to defendant’s claim, the totality of these facts do provide a reasonable, common-sense basis for believing that marijuana and related contraband would be found in his residence. The decision of the district court denying defendant’s motion to suppress is AFFIRMED. * This order and judgment is not binding precedent, except under the doctrines o 896 (10th Cir.1992) Holdings: 0: holding court will generally not consider arguments presented for the first time on appeal 1: holding that court will not consider issue raised for first time on appeal 2: holding that generally appellate courts will not review an issue raised for the first time on appeal 3: holding that subject to limited exceptions this court will not consider issues not presented to the district court but raised for the first time on appeal 4: holding that courts of appeals will generally not consider arguments raised on appeal for first time in reply brief


Input: on, or after September 30, 1996. 2 . Singh also challenges the BIA’s procedure for affirmance without opinion. We approved these streamlining regulations in Dia v. Ashcroft, 353 F.3d 228 (3d Cir.2003) (en banc), which was decided after Singh filed his opening brief. Although Dia may not dispose of Singh's nondelegation and judicial economy arguments against the streamlining regulations, those arguments would be better addressed to the Court en banc. At all events, our resolution of this case on alternative grounds avoids the need to confront the novel questions raised in Singh’s challenge to the streamlining regulations. 3 . Two of these cases -Lee and Patel -turn on whether certain federal criminal offenses are directly identified in 8 U.S.C. § 1101(a)(43). See Lee, 368 F.3d at 224 (<HOLDING>); Patel, 294 F.3d at 470 (holding that the Holdings: 0: holding that if federal income tax statutes are intended to benefit anyone it is the federal government to whom the withheld tax is to be remitted there is no indication anywhere in the language of the statutes that congress intended to confer rights on employees with respect to the withholding of tax 1: holding that when the united states held a senior tax lien it was an indispensable party under the controlling federal tax law 2: holding that 8 usc  1101a43mii is the exclusive category for federal tax offenses and thus that federal tax offenses are not covered by 8 usc  1101a43mi 3: holding that property tax was a state tax and was thus disproportionate unreasonable and unfair because of discrepancies in tax rates of up to 400 between school districts 4: holding that when two underlying offenses are charged in an indictment for capital murder the state need only prove one of the two offenses to support the conviction


Input: that was not his writing. Contrary to Overton’s assertion that the cross-examination was insufficient, Overton’s counsel attacked the alleged broken chain of custody with regard to both the brown paper bag and the envelopes that contained the clippings. Finally, we conclude that the decision by Overton’s counsel to not address a potential degradation of the DNA evidence during the Frye hearing on the basis of an alleged broken chain of custody was reasonable. First, notwithstanding that Over- ton’s counsel had not conceded at the time of the Frye hearing that the DNA evidence taken from the scene belonged to Overton, the location of DNA evidence matching Overton would be consistent with his theory that his DNA had been planted there. See McDonald v. State, 952 So.2d 484, 495 (Fla.2006) (<HOLDING>). Second, an expert (Dr. Litman) with whom Holdings: 0: holding that the erroneous admission of dna evidence is never harmless 1: recognizing that in prior decisions the court had used the term inconclusive to mean that dna evidence did not exclude an individual but clarifying that in the future the term inconclusive would be used only when a dna sample does not contain enough dna to draw a conclusion dna is degraded or for other reasons a dna test yields no results or the examiner draws no conclusion 2: holding that there was no ineffective assistance for failing to hire a dna expert because the defenses theory was that the defendants dna was planted so the dna evidence would not seem to be an issue 3: holding that admission of evidence that defendants dna profile was consistent with dna profiles from mixed blood samples was plain error warranting reversal because no testimony was provided to explain the statistical significance of a potential match 4: holding that retroactively applying new version of dna act authorizing collection of defendants dna as a condition of supervised release did not constitute a sentence in excess of the statutory maximum


Input: guilty beyond a reasonable doubt, given the direct and circumstantial evidence, along with reasonable inferences therefrom, taken in the light most favorable to the government.” United States v. Diaz, 679 F.3d 1183, 1187 (10th Cir.2012) (internal quotation marks omitted). Under the Major Crimes Act, 18 U.S.C. § 1153, the prosecution must prove to the jury that the defendant is an Indian. United States v. Stymiest, 581 F.3d 759, 763 (8th Cir.2009). The term “Indian” is not defined by the statute; thus, we use a two-pronged test, asking whether “the defendant (1) has some Indian blood; and (2) is recognized as an Indian by a tribe or by the federal government.” United States v. Prentiss, 273 F.3d 1277, 1280 (10th Cir.2001) (internal quotation marks omitted); see id. at 1280 n. 2 (<HOLDING>). The first prong is met when the defendant’s Holdings: 0: holding that 18 usc  3742e applies to downward departures 1: recognizing that the twopart test applies to prosecutions under 18 usc  1152 and 1153 2: holding that crimes subject to a minimum sentence of 15 years under 18 usc  924e1 are properly characterized as class a felonies under 18 usc  3559 3: holding this twopart test applies to challenges to guilty pleas based upon ineffectiveness of counsel 4: holding that 18 usc  1919 did not implicitly repeal 18 usc  1001


Input: that continued to fall for the duration of the storm” and “a pool of rain that had gathered at the bottom of the stairwell.” (Gould Aff. ¶ 8; Pl.’s Opp’n ¶ 7; PL’s Opp’n Mem. at 2, 5.) Liberty does not dispute that these were the causes. (Def.’s Reply at 2.) Accordingly, the parties’ textual arguments center around whether these sources of water constitute “water damage” as defined in the policy. Liberty argues persuasively that a pool of rainwater constitutes “surface water,” which the policy included under its definition of “water damage.” (Id. at 2-3.) Maryland courts have held that “surface wa ter [is] caused by rain or melting snow.” City of Cumberland v. Willison, 50 Md. 138, 1878 WL 6579 at *6 (1878); see also Mateer v. Reliance Ins. Co., 247 Md. 643, 233 A.2d 797, 799 (1967) (<HOLDING>). Other jurisdictions have also defined Holdings: 0: holding issues of fact in dispute are solely for the jury 1: holding that driver exclusions which are clear unambiguous and supported by consideration are enforceable and do not violate public policy or compulsory insurance laws 2: holding funds received by plaintiff from an insurance policy that was procured by the defendant and for which a premium was paid are not a collateral source 3: holding in an insurance policy dispute case that surface waters are those which are produced by rainfall melting snow or springs 4: holding that under minnesota law an insurance policy or provision not filed with the commissioner of insurance is unenforceable


Input: 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978); Uniforce Temporary Personnel, Inc. v. National Council on Compensation Insurance, Inc., 87 F.3d 1296 (11th Cir.1996); and TEC Cogeneration, Inc. v. Florida Power & Light Co., 76 F.3d 1560, 1563 n. 1 (11th Cir.), modified, 86 F.3d 1028 (1996). Based on the aforementioned order, this appeal was presented to this court for decision on the merits. II. DISCUSSION The issue presented here is whether this court has jurisdiction to hear this appeal pursuant to the collateral order doctrine announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Defendants sought a certificate for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) , but were denied. Thus, this court has juri , 87 L.Ed. 315 (1943) (<HOLDING>). The inquiry becomes whether the Act grants a Holdings: 0: holding that state could not assert sovereign immunity defense where the state had waived immunity in state court and agreed to remove suit to federal court 1: holding that as a general rule interlocutory trial court orders rejecting defenses of common law sovereign immunity governmental immunity public official immunity statutory immunity or any other type of immunity are not appealable under the maryland collateral order doctrine 2: holding that a district courts order is final and immediately reviewable under mitchell if the appellants properly raised a claim of qualified immunity in the district court 3: holding that stateaction immunity issues immunity from federal statutes not intended to restrain state action or official action directed by a state  are immediately appealable under cohen and mitchell 4: holding that while the fourteenth amendment is directed against state action and not private action the state action requirement is met in a civil action where state law is applied whether by statute or common law


Input: to the defendant’s insurance if such evidence has some independent probative value. In this case, Nevarez denied that he or his vehicle were involved in the accident. Thus, one of the primary issues for the jury’s determination was the identification of the driver and the owner of the vehicle which allegedly caused injury to Friskney. Accordingly, the insurance information, as well as the defendant’s name, address, and driver’s license number, was relevant to the jury’s determination of the driver’s identity. We find no error in the trial judge’s decision to allow the jury to learn the name of the defendant’s insurer and policy number as that was the only information Friskney could not have otherwise obtained from public records. See Carlton v. Johns, 194 So.2d 670 (Fla. 4th DCA 1967) (<HOLDING>); Seminole Shell Co. v. Clearwater Flying Co., Holdings: 0: holding that the proceeds of a liability insurance policy were not property of the estate 1: holding that circumstantial evidence may create a fact issue if from the evidence a reasonable person could conclude that the existence of the ultimate fact in dispute is more reasonable than its nonexistence 2: holding that motion to dismiss should not  be granted unless the moving party has established that there is no material issue of fact to resolve and that it is entitled to judgment in its favor as a matter of law 3: holding that the insureds liability has been established by the settlement and the insurer may not later relitigate the issue 4: recognizing that the fact that a defendant has liability insurance can be established at trial where the issue of ownership is in dispute


Input: to cases brought under the APA, as the test was "most usefully understood as a gloss on the meaning of § 702.” Clarke, 107 S.Ct. 758 n. 16. The Court did not purport to speak beyond cases brought under the "generous review provisions" of the APA, id. (quoting Data Processing, 397 U.S. at 156, 90 S.Ct. at 831), an act to be construed as "serving a broad remedial purpose.” Id. at 755 (quoting Data Processing). When a court adjudicates a case brought under a specific statutory private right of action it may need to analyze more carefully what actions Congress contemplated in creating that cause of action. Id. (citing Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). See also Cargill, Inc. v. Monfort of Colorado, Inc., — U.S. -, 107 S.Ct. 484, 490, 93 L.Ed.2d 427 (1986) (<HOLDING>); Water Transport Ass’n v. ICC, 819 F.2d 1189, Holdings: 0: holding that plaintiff seeking injunction under clayton act  16 must allege an injury of the type the antitrust laws were designed to prevent  1: holding that plaintiff must show antitrust injury meaning injury of the type the antitrust laws were intended to prevent and which flows from defendants unlawful acts 2: holding that a plaintiff must show antitrust injury in order to bring an antitrust lawsuit 3: holding that the fcc was not given the power to decide antitrust issues and that its actions do not prevent enforcement of the antitrust laws in federal courts 4: holding that to have standing to bring a  2a robinsonpatman claim a private plaintiff must make some showing of actual injury attributable to something the antitrust laws were designed to prevent


Input: (18 U.S.C. § 1956), dealing in counterfeit goods and services (18 U.S.C. § 2320), and interstate transportation of misappropriated property (18 U.S.C. § 2314). While all three of these crimes connote some element of dishonesty, they do not necessarily involve fraud per se. So, as a general matter, they would be subject to the general notice pleading standard. Rose v. Bartle, 871 F.2d 331, 356 (3d Cir.1989) (“Thus, the suggestion that ‘[a] charge of racketeering, with its implications of links to organized crime, should not be easier to make than accusations of fraud appears unwarranted.’ ”) For that reason, each would not be subjected to the higher pleading standard required of fraud. See Republic of Colombia v. Diageo North America, Inc., 531 F.Supp.2d 365, 382 (E.D.N.Y.2007) (<HOLDING>); see Muscletech Research and Dev., Inc., v. Holdings: 0: holding that charge of money laundering need not satisfy rule 9b 1: holding a complaint failed to satisfy rule 9b where the allegations were lacking in detail 2: holding plaintiffs speculations did not satisfy rule 9b requirements 3: holding that specific details about time place and substance of the fraud satisfy rule 9b 4: holding a broad claim with no factual support was insufficient to satisfy rule 9b


Input: Incorporated in June 2001, approximately six months after the judgments for bad faith litigation were entered against Fischer, MBI was formed to acquire substantially all of the assets of Montgomery Doughnuts, Inc., a bankrupt bakery. On October 8, 2001, Paley Rothman served a writ of attachment directing MBI to withhold “25% of [Benson Fischer’s] disposable wages for each workweek or other pay period.” MBI filed an answer, see D.C.Code § 16-551 (2001), stating that it did not employ Fischer and had paid no salary or wages to him. MBI also answered interrogatories, and Paley Roth-man requested a traverse hearing pursuant to D.C.Code § 16-553. After hearings were held on July 18, 2002, and October 22, 2003, the court found that MBI “is owned by Benson Fischer, his wife Mona Fischer (<HOLDING>) and his parents Sheldon and Ann Fischer (each Holdings: 0: holding that prejudgment interest may include compound interest 1: holding that a married couple filing a joint return can deduct interest paid on 1 million of acquisition indebtedness 2: holding that there was no community of interest because the alleged joint venturers did not have an equal proprietary interest and only one of the alleged joint venturers bore the risks and paid the expenses 3: holding that joint employment determination was a complex mixed question of law and fact properly determined by jury 4: holding a 50 joint interest


Input: of $4,500.00 for “diminution in value”. Following the jury verdict, Plaintiff moved for an award of $8,964.50 in attorney fees and $1,701.00 in costs. On 24 August 2004, the trial court awarded Plaintiff attorney fees in the amount of $500.00, but denied Plaintiff’s request for costs. Plaintiff first argues that the trial court failed to make findings to support the award of attorney fees in the amount of $500.00 under North Carolina General Statute section 6-21.1. We agree. Preliminarily, we note that the issue on appeal concerns the amount of the attorney fee award, not whether attorney fees should be awarded which the trial court in this case, in its discretion, elected to do after considering the factors under Washington v. Horton, 132 N.C. App. 347, 351, 513 S.E.2d 331, 334 (1999) (<HOLDING>). See N.C. Gen. Stat. § 6-21.1 (providing that Holdings: 0: holding that the decision to transfer rests within the sound discretion of the court 1: holding that the decision to allow attorney fees rests with the trial judge and that decision may only be reversed for an abuse of discretion 2: holding that such a decision was within the trial courts discretion 3: holding that the decision to transfer rests within the sound discretion of the district court 4: holding that the determination of whether statements are excited utterances is within the trial courts discretion and its ruling will be reversed only for an abuse of that discretion


Input: “not situated similarly to his co-defendants” because “[h]e was the only defendant charged with the special circumstance of a previous murder, and he was the only one who physically participated in both California homicides.” Beardslee v. Woodford, 358 F.3d 560, 579-80 (9th Cir.2004). This case is distinguishable because, here, the prosecution specifically acknowledged that Morris, Eckstrom, and Barrett were equally guilty of Van Zandt’s murder; unlike the defendant in Beardslee, Morris is situated similarly with respect to his guilt in Van Zandt’s death. There would be no legal imposition of the death penalty without the ability of juries to consider mitigating evidence proffered by the capital defendant. See Gregg v. Georgia, 428 U.S. 153, 206, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (<HOLDING>); see also Lockett, 438 U.S. at 603, 98 S.Ct. Holdings: 0: holding that a new york city family court judge had no constitutionally protected property right to reappointment after her tenyear term expired and the mayor decided not to reappoint her and explaining that the fact that many or even most incumbent judges have been reappointed cannot operate to raise appellants subjective expectation to a constitutionally protected right  appellant has failed entirely to demonstrate any mu tually explicit understanding sufficient to establish a property right citing perry 408 us at 601 92 sct 2694 bd of regents of state colls v roth 408 us 564 577 92 sct 2701 33 led2d 548 1972 1: holding that under the alabama death penalty statute because the judge did not consider the jurys recommendation the statute which forced the jury to sentence the defendant to death whenever aggravating circumstances existed was not unconstitutional 2: holding that georgias revised death 4356 penalty sentencing scheme differed from that ruled unconstitutional in furman v georgia 408 us 238 92 sct 2726 33 led2d 346 1972 because it focused the jurys attention on the particularized nature of the crime and the particularized characteristics of the individual defendant 3: recognizing that the first amendment limits the ability of a public employer to leverage the employment relationship to restrict incidentally or intentionally the liberties employees enjoy in their capacities as private citizens citing perry v sindermann 408 us 593 597 92 sct 2694 33 led2d 570 1972 4: holding the death penalty unconstitutional for defendants under age eighteen at the time of the crime


Input: the same outcome even absent the flaws identified. See Xiao Ji Chen, 434 F.3d at 159-65. Even though Liu did not exhaust his withholding of removal claim before the BIA, the BIA considered and decided that claim. See Xian Tuan Ye, 446 F.3d at 296-97 (stating that the Court has jurisdiction to review a claim that was not argued before the BIA if the BIA nonetheless addressed it); Waldron v. INS, 17 F.3d 511, 515 n. 7 (2d Cir.1994). However, because the only evidence of a threat of future persecution to Liu depended upon his credibility, the adverse credibility determination in this case necessarily precludes success not only on Liu’s claim of a well-founded fear of persecution, but also on his claim for withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 154 (2d Cir.2006) (<HOLDING>); Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Holdings: 0: holding that where the ij finds the petitioner to be credible his testimony must be accepted 1: recognizing that a withholding of removal claim necessarily fails if the applicant is unable to show the objective likelihood of persecution needed to make out an asylum claim and the factual predicate for the claims is the same 2: holding that for an applicant who has been determined to be incredible to prevail on a future persecution claim the predicate of that claim must be independent of the testimony that the ij found to be incredible 3: holding that to show an objectively reasonable fear of future persecution an applicant must establish that he would be singled out for persecution or that there was a pattern or practice of persecution of similarlysituated individuals 4: holding that a claim including a constitutional claim must have been asserted to the trial court to be raised on appeal


Input: that it was ready, willing, and able to perform because the contract characterized the deposits as liquidated damages, and a party seeking liquidated damages need not prove actual damages. We are not persuaded. “To bring an action for the breach of the contract, the plaintiff has the burden of proving the existence of the contract, its breach and the resulting damages.” Graham v. Asbury, 112 Ariz. 184, 185, 540 P.2d 656, 657 (1975). A liquidated damages clause relieves the plaintiff of the burden of proving the amount of actual damages caused by the breach. Mech. Air Eng’g Co. v. Totem Constr. Co., 166 Ariz. 191, 193, 801 P.2d 426, 428 (App.1989). But it does not establish whether a breach suffi cient to support damages has occurred. See Bowen v. Korell, 587 P.2d 653, 657 (Wyo. 1978) (<HOLDING>). Although the contract stipulated the amount Holdings: 0: holding that a cause of action for breach of contract accrues at the time of the breach 1: holding that no reporters record was required in suit to recover damages for breach of employment contract because the claim for damages was liquidated and proved by the employment contract attached to the petition 2: holding party in breach could not maintain suit for breach of contract 3: holding that when a contract contemplates liquidated damages only for a specified breach the provision will have no force and effect except upon proof of the breach provided for by the agreement 4: recognizing that the elements of a claim for breach of contract are 1 existence of a valid contract and 2 breach of the terms of that contract


Input: For example, interrogation in a police station does not amount to custody per se. See Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977); California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983); Ashe, 125 Md.App. at 551, 726 A.2d 786. As the Supreme Court explained in Mathiason, 429 U.S. at 495, 97 S.Ct. 711: Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Another established rule is that police do not violate Mira th Cir.1969) (<HOLDING>); State v. Patterson, 146 N.C.App. 113, 552 Holdings: 0: holding that appellants complaint on appeal that the environment was coercive did not change the fact that he was not in custody when he voluntarily went to the police station was told several times he could leave and did leave after the interrogation 1: holding that accused was not in custody when told he was not under arrest and was free to leave and did in fact freely leave the interview 2: holding that a defendant who was told several times he was not under arrest and who never asked to leave during an interview with investigators was not in custody 3: holding that the defendant was placed in official detention when two police officers approached him and told him that he was under arrest as the defendant could not reasonably have believed that he was free to leave 4: holding in the context of a prosecution for second degree escape that although defendant was not handcuffed he had nonetheless been placed under arrest had had his liberty restrained in that he was not free to leave and at that point the first step in the process of transporting him to the police station had begun consequently the defendants arrest was complete and he was in custody


Input: made by Midland in its July 14, 1995, letter were true when made. In its July 14, 1995, letter, Midland stated that the monthly contribution for health insurance benefits “is” $41.67, and, according to the complaint, that is the amount Hardy paid monthly from the date of his retirement until January 1, 2000. The letter, which was attached to the complaint, did not state that Hardy’s health care insurance premium would never change or would not change until he was sixty-five. Moreover, the letter was not inconsistent with Midland’s official health care plan document, which Hardy received and which explicitly provided that Midland “reserve[d] the right to terminate, amend or modify the Plan for any reason, at any time.” See Weiner v. Klais and Co., Inc., 108 F.3d 86, 89 (6th Cir.1997) (<HOLDING>). The district court properly found Hardy’s Holdings: 0: holding that in connection with a motion to dismiss the court may consider a document not attached to the pleadings where the plaintiffs claim depends on the contents of a document the defendant attaches the document to its motion to dismiss and the parties do not dispute the authenticity of the document even though the plaintiff does not explicitly allege the contents of that document in the complaint 1: holding that a court may consider a document submitted by a defendant in determining whether to dismiss the complaint because it was integral to and explicitly relied on in the complaint and because the plaintiffs do not challenge its authenticity 2: holding that district court may consider documents referred to in plaintiffs complaint and central to his claim 3: holding court could consider a mortgage agreement not attached to the complaint in ruling on motion to dismiss because the complaint refers to the mortgage numerous times the mortgage is attached to this motion and is central to plaintiffs claims 4: holding that a court ruling on a motion to dismiss may consider a document that is referenced in the complaint and is central to the plaintiffs claims


Input: “arbitrary and unjustified” without precise figures to draw upon. However, the New Mexico statutes provide a default interest rate that allows “private lenders to charge interest on money debts at the legal rate where the contract is silent on the issue.” Martinez v. Albuquerque Collection Servs., Inc., 867 F. Supp. 1495, 1508 (D.N.M. 1994) (citing 47 C J.S. Interest & Usury § 11 (2014) “(promise to pay interest at the legal rate implied at law)”). Fifteen percent is the maximum allowable default interest rate. Section 56-8-3(A) (“The rate of interest, in the absence of a written contract fixing a different rate, shall be not more than fifteen percent annually ... on money due by contract.”); Sunwest Bank of Albuquerque, N.A. v. Colucci, 1994-NMSC-027, ¶ 24, 117 N.M. 373, 872 P.2d 346 (<HOLDING>). The default rate under Section 56-8-3 is Holdings: 0: holding that section 5683 fixes the maximum rate that can be awarded by the district court 1: holding that once a rate is filed with the appropriate agency except for review of the agencys orders the courts can assume no right to a different rate on that ground that in its opinion it is the only or the more reasonable rate 2: holding that the proper rate for prejudgment interest is the rate fixed by the parties in a contract 3: holding that a utility can claim no rate as a legal right that is other than the filed rate whether fixed or merely accepted by the commission 4: holding that the petitioner can claim no rate as a legal right  other than the filed rate whether fixed or merely accepted by the agency commission


Input: that a defendant has committed a felony while released pending adjudication of a prior charge, so that the court may revoke the defe t both hearings was similar because his motivation was to discredit Puckett’s testimony. Certainly appellant sought to discredit Puckett’s testimony. However, appellant’s lack of a similar opportunity to develop the testimony at the bond hearing, in order to so do, is particularly evident in this case. Here, the trial court was notified by appellant’s counsel at the bond hearing that he would not represent counsel on the other criminal charges. Therefore, the trial court was clearly on notice that appellant’s counsel was not prepared to develop the testimony by direct, cross, or redirect exam. Compare Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993)(<HOLDING>). The State’s assertion that appellant’s Holdings: 0: holding that the district court did not abuse its discretion by denying the defendant an opportunity to recall a witness who had already testified and been subject to crossexamination 1: holding that the trial court should have granted the defendants motion for mistrial after it was revealed that a police officer who also was a prosecution witness had sat with several jurors during a lunch break even though the witness testified that he did not discuss the business of the case with the jurors 2: holding any error in admitting testimony of expert witness was harmless because it was cumulative of same testimony given by six other expert witnesses who testified at trial 3: holding that a mistrial was not required after a police officer testified that he had once chased the defendant after the defendant had fired a gun where the testimony was a logical response to the prosecutors questions the statement was not made maliciously the evidence against the defendant was great and the jury was instructed to disregard the testimony 4: holding prior testimony was admissible where the witness who first testified during a suppression hearing was murdered after he testified where the defendant was represented by counsel who had extensively crossexamined the witness


Input: the property damage occurred during a Liberty policy period. I. What Constitutes One Occurrence In Lombard v. Sewerage & Water Board of New Orleans, the Louisiana Supreme Court held that, in cases where different parties are damaged by a series of events, the damage to each party is a separate “occurrence” for purposes of an insurance c 1225-26 (La.Ct.App.1995) (“The differential settlement resulted from each home’s continuous or repeated exposure to the injurious conditions over a course of time, but the effects of the excessive settlement did not become ‘damage’ until it was discovered by the homeowners.”); see also, e.g., New Orleans Assets, L.L.C. v. Travelers Prop. Cas. Co., Nos. Civ.A. 01-2171, Civ.A. 02-974, 2002 WL 32121257, at *2-3 (E.D.La. Sept.12, 2002) (Feldman, J.) (<HOLDING>). “Under the manifestation theory, insurance Holdings: 0: holding that property damage occurred when mold contamination first manifested 1: holding that continuous trigger will be applicable when environmental contamination claimant is able to show that damage like asbestosis occurred on continuing basis 2: holding that property damage occurred when homeowners noticed damage not when house was improperly constructed 3: holding groundwater contamination is continuous process in which the property damage is evenly distributed over the period of time from the first contamination to the end of the last triggered policy 4: holding a cause of action accrues once an injury has occurred and manifested itself