Input: shall not be held out or used by me in any manner nor for any purpose whatsoever. 3. I have destroyed the original of said document, and turned over all copies thereof for destruction. We therefore affirm the trial court’s order dismissing the appellees’ complaint as moot. As to the attorney’s fees and costs awarded to the appellees as the prevailing parties, we also affirm. Section 709.08(11), Florida Statutes (2007), provides that the prevailing party in power of attorney litigation is entitled to attorney’s fees and costs. The determination of the prevailing party for the purpose of awarding attorney’s fees and costs is based on whether the party seeking fees succeeded on any significant issue(s) in the litigation. See Moritz v. Hoyt Enters., Inc., 604 So.2d 807, 810 (Fla.1992) (<HOLDING>); Boxer Max Corp. v. Cane A. Sucre, Inc., 905 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 that successful party is one who is the ultimate prevailing party in the litigation 2: holding that a defendant is the prevailing party within the meaning of statutory provisions awarding attorneys fees to the prevailing party even when the plaintiff voluntarily dismisses the action 3: holding that the party prevailing on the significant issues in the litigation is the party that should be considered the prevailing party for attorneys fees 4: holding that prevailing party has no standing to appeal


Input: Mountain Hosp. & Med. Services Co., 754 P.2d 1180, 1182 (Colo.App.1988); St. Francis Regional Med. Center v. Blue Cross Blue Shield of Kansas, 810 F.Supp. 1209 (D.Kan.1992); Institute of Living v. Blue Cross & Blue Shield, No. CV-90-0382398S, 1991 WL 223871 (Conn.Super.Ct. Oct. 4, 1991); Kent General Hosp., Inc. v. Blue Cross & Blue Shield of Delaware, Inc., 442 A.2d 1368 (Del.1982); Augusta Medical Complex, Inc. v. Blue Cross of Kansas, Inc., 230 Kan. 361, 634 P.2d 1123 (1981); Obstetricians-Gynecologists, P.C. v. Blue Cross & Blue Shield of Nebraska, Inc., 219 Neb. 199, 361 N.W.2d 550 (1985); Riddle Memorial Hosp. v. Blue Cross of Greater Philadelphia, 63 Del.Cty. Rep. 361 (Pa.Common Pleas 1976); cf. Davidowitz v. Delta Dental Plan of Cal., Inc., 946 F.2d 1476, 1478-81 (9th Cir.1991) (<HOLDING>); Washington Hosp. Center Corp. v. Group Holdings: 0: holding that the employer intended to create a new employee welfare benefit plan 1: holding that disability provision in comprehensive retirement plan constituted a welfare plan 2: holding that erisa does not preempt the plaintiffs claim that the erisa plan administrator is liable for medical malpractice where the plaintiff premised the claim solely on state law and did not invoke the erisa plan 3: holding that erisa welfare payments are not assignable in the face of a nonassignment clause in the health benefit plan 4: holding that plan administrator of an erisa health plan did not have to anticipate the confusion of a plan participant


Input: “I guess so.” In light of the “high degree of deference” that we must give to the factual determinations of the IJ, the inconsistencies in Kostic’s testimony and written sub missions leave us with little choice but to uphold the adverse credibility determination. See Sterkaj v. Gonzales, 439 F.3d 273, 278 (6th Cir.2006) (upholding an IJ’s adverse credibility determination where an asylum applicant submitted an inconsistent document without explanation). Because Kostic cannot overcome the IJ’s finding regarding his lack of credibility, he cannot prove that he is eligible for asylum. This also means that he cannot meet the more stringent standards required to qualify for withholding of removal. See INS v. Cardoza-Fonseca, 480 U.S. 421, 431-32, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (<HOLDING>). D. Changed country conditions The IJ and the Holdings: 0: holding that to establish asylum eligibility based on future persecution an applicant must show that he or she subjectively fears persecution and that this fear is objectively reasonable 1: holding that absent past persecution an alien can demonstrate eligibility for asylum based on a wellfounded fear of future persecution by demonstrating that he or she subjectively fears persecution and that this fear is objectively reasonable 2: holding that the clear probability standard for withholding of removal is higher than the standard for asylum which requires only a reasonable possibility of persecution 3: holding that the asylum standard for past persecution or wellfounded fear of future persecution is lower than the clear probability standard to show eligibility for withholding of removal 4: holding that the standard for withholding of removal is more demanding than the standard for asylum


Input: appellant’s allegation, our supreme court has held that ‘‘[c]ounsel clearly cannot be faulted for failing to raise a Batson objection at trial because Batson did not yet exist. See, e.g., [Commonwealth v. Gribble, 580 Pa. 647, 863 A.2d 455, 464 (2004) ] (‘Counsel cannot be deemed ineffective for failing to predict developments or changes in the law.’)..” Commonwealth v. Sneed, 587 Pa. 318, 899 A.2d 1067, 1076 (2006). 10 . Then-District Attorney Rendell served as Philadelphia County District Attorney from 1978 through 1985. He subsequently served as Governor of the Commonwealth, therefore, he will be referred to hereinafter as “Governor Rendell.” 11 . Appellant’s direct appeal was decided pri- or to our supreme court’s decision in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002) (<HOLDING>), therefore, at the time of appellant’s direct Holdings: 0: holding that claims of ineffective assistance of counsel are to be deferred to pcra review trial courts should not entertain claims of ineffectiveness upon postverdict motions and such claims should not be reviewed upon direct appeal 1: holding that as a general rule a petitioner should wait to raise claims of ineffective assistance of trial counsel until collateral review 2: holding that a petitioner should wait to raise claims of ineffective assistance of trial counsel until collateral review 3: holding that the appellate standard of review of ineffectiveness claim is de novo 4: holding that review of counsel ineffectiveness claims should be deferred until collateral review


Input: or unnecessary will not be counted____ That is, while the materiality determination rests on the substantive law, it is the substantive law’s identification of which facts are critical and which facts are irrelevant that governs.” (citations omitted)). The existence of “some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment[.]” Id. Therefore, to avoid summary judgment, the nonmoving party must put forth evidence sufficient for a reasonable factfinder to return a verdict for that party. Id. at 248-50, 106 S.Ct. 2505. The moving party bears the initial burden of demonstrating the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (<HOLDING>); see also Riley & Ephriam Constr. Co., Inc., Holdings: 0: holding the moving party must meet its burden by showingthat is pointing out to the trial courtthat there is an absence of evidence to support the nonmoving partys case 1: holding that once the moving party meets its burden the nonmoving party is obliged to produce evidence in response 2: recognizing that the burden on summary judgment shifts to the nonmoving party once the moving party has met its initial responsibility of showing the absence of a triable issue of fact and that the moving party is entitled to summary judgment if the nonmoving party fails to make a sufficient showing on an essential element of the case 3: holding due to the moving partys failure to meet its initial burden the onus never passed to the nonmoving party to set forth specific facts showing that there is a genuine issue for trial  citation omitted 4: recognizing that even where a party has the burden of proof at trial that party need not produce proof supporting his claim in response to a motion for summary judgment unless the movant has first presented evidence that would negate an element of the nonmovants claim or indicates that the nonmovant will be unable to meet his burden at trial it is never enough simply to state that the nonmoving party cannot meet its burden at trial


Input: addition, while detaining a vehicle at a traffic safety checkpoint constitutes a “seizure,” where the checkpoint serves the public interest and does not impose an unreasonable restriction on one’s liberty, it does not violate Fourth Amendment proscriptions. Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990); State v. Vickery, 399 S.C. 507, 732 S.E.2d 218 (Ct.App.2012). McHam did not challenge the propriety of his initial stop, so the sole focus of our inquiry is on the validity of the officer’s opening of the passenger’s side door of the vehicle McHam was driving. The parties agree that an officer may order the driver and any passengers to exit a detained vehicle without violating the Fourth Amendment. See Mimms, 434 U.S. at 109-10, 98 S.Ct. 330 (<HOLDING>); Maryland v. Wilson, 519 U.S. 408, 414-15, 117 Holdings: 0: holding that officer may order driver out of vehicle once lawfully detained for traffic violation 1: holding that once a motor vehicle has been lawfully detained for a traffic violation the police officers may order the driver to get out of the vehicle without violating the fourth amendments proscription of unreasonable searches and seizures 2: holding that once a vehicle has been lawfully stopped an officer may order the driver out of the vehicle without violating the fourth amendment 3: holding once a driver has been lawfully detained the police may order the driver to exit the vehicle even in the absence of unusual or suspicious behavior without violating the fourth amendments prohibition on unreasonable searches and seizures the court stated we think it too plain for argument that the states proffered justificationthe safety of the officeris both legitimate and weighty and it specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile 4: holding that a police officer may as a matter of course order the driver of a lawfully stopped car to exit his vehicle


Input: absolutely immune from damages liability under §1983 for this conduct. Relying on its decision in Salyer v. Patrick, 874 F. 2d 374 (CA6 1989), the Court of Appeals affirmed. I would grant certiorari to address petitioner’s challenge to that ruling. In Salyer, the Sixth Circuit held that, “due to their quasiprosecutorial function in the initiation of child abuse proceedings,” social workers are absolutely immune from liability for filing juvenile abuse petitions. Id., at 378. Other courts addressing the question have agreed that social workers are entitled to absolute immunity under § 1983 in some instances, depending on their conduct and the terms of the state laws pursuant to which they acted. See, e. g., Meyers v. Contra Costa County Dept. of Social Servs., 812 F. 2d 1154, 1157 (CA9) (<HOLDING>), cert. denied, 484 U. S. 829 (1987); Vosburg Holdings: 0: holding that social services attorneys were entitled to absolute immunity for actions related to the prosecution of child neglect and delinquency proceedings 1: holding that social workers are entitled to absolute immunity when prosecuting child delinquency petitions 2: holding that state prosecutors enjoy absolute immunity for the initiation and pursuit of a criminal prosecution 3: holding that social workers are entitled to absolute immunity in performing quasiprosecutorial functions connected with the initiation and pursuit of child dependency proceedings 4: holding that child social workers are entitled to absolute immunity for their actions on behalf of the state in preparing for initiating and prosecuting dependency hearings as well as the formulation and presentation of recommendations to the court in the course of such proceedings


Input: concern is more fundamental: We believe that the commentary is, for the most part, inconsistent with the guideline itself, which unequivocally states that the “threat of death” must be “express.” The Eleventh Circuit has already come to this conclusion, as well as Judge Easterbrook of the Seventh Circuit and Judge Arnold of the Eighth Circuit. See Hunn, 24 F.3d at 999-1000 (Easterbrook, J., dissenting); United States v. Cadotte, 57 F.3d 661, 662 (8th Cir.1995)(per curiam) (Arnold, J., dissenting), cert. denied, — U.S. -, 116 S.Ct. 783, 133 L.Ed.2d 733 (1996). In United States v. Tuck, 964 F.2d 1079 (11th Cir.1992), the Eleventh Circuit observed that § 2B3.1(b)(2)(F) predicates the application of the enhancement on two factors. First, the threat must be express 1th Cir.1993)(per curiam)(<HOLDING>). Similarly, Judge Easterbrook, dissenting in Holdings: 0: holding that an enhancement for an express threat of death may not be applied to the sentence for robbery when the threat is related to the use of the firearm and the defendant has a  924c sentence for the same firearm 1: holding that the phrase i have a gun constitutes a threat of death under  2b31b2f 2: holding that threat i have a gun and nothing to lose was not an express threat of death because there was not express mention of death and could also be interpreted to mean that robber was desperate and willing to turn alleged gun on himself 3: holding that the statement i have a gun is a threat of death 4: holding that i have a gun give me money may imply threat to use gun but was not an express threat of death


Input: of sentencing would, in effect, permit the Rule to read: “a determination that no such finding was necessary because the matter controverted was not taken into account in sentencing.” We reject such a reading of the Rule. II We next address what the Rule requires when a district court complies with the substantive requirements of the Rule, but fails to append to the presentence report the appropriate findings or determinations resolving the controverted matters. We hold that such a technical violation of the Rule is a ministerial error which does not require resentencing. The technical error must, however, be corrected by ordering the district court to append to the pre-sentence report the required findings or determinations. United States v. Knockum, 881 F.2d 730, 732 (9th Cir.1989) (<HOLDING>); U.S. v. Gattas, 862 F.2d 1432, 1435; (10 Holdings: 0: holding that appellate courts may not on appeal from the dismissal of a rule 32 petition consider claims not raise in the rule 32 petition 1: holding that appellate courts may not on appeal from the dismissal of a rule 32 petition consider claims not raised in the rule 32 petition 2: holding that a courts failure to provide a defendant with any portion of a habeas transcript was error 3: holding that error will not be presumed from a silent record and that without the relevant transcript there is insufficient evidence to review the alleged error and the appellant carries the burden of demonstrating the alleged error in the record 4: holding that ministerial error of failing to append rule 32 findings or determinations will not permit habeas relief because the error may be remedied by ordering the district court to attach the sentencing transcript


Input: of the tests was supported by reasonable suspicion, Jones claims, Amundsen has failed to show the violation of a constitutional right. Amundsen concedes that the stop was initially justified due to her improper lane change, but does not appear to concede that her driving pattern gave rise to reasonable suspicion of driving under the influence of drugs or alcohol. She argues that the roadside sobriety tests fell outside the proper scope of the stop. We review the permissibility of a traffic stop “under the principles pertaining to investigatory detentions set forth in Terry v. Ohio.” United States v. Tibbetts, 396 F.3d 1132, 1136 (10th Cir.2005) (citing 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). That is, we first consider “whether the officer’s action was just 5 (10th Cir.1995) (<HOLDING>); United States v. Rodriguez-Pando, 841 F.2d Holdings: 0: holding that an officers observations of a vehicle weaving between the center line and the shoulder line four to five times over a distance of approximately five miles created reasonable suspicion that the driver was under the influence 1: holding officers observations of a vehicle crossing the center double yellow line of a twolane highway four times by less than one half of her car  once causing a vehicle in the oncoming lane of traffic to shift right within his lane but without the need for drastic evasive action  and crossing the fog line four times over a distance of at least 16 miles established probable cause for a traffic stop 2: holding that observations of a driver swerving from the outside lane straddling the center line and then swerving back to the outside lane gave rise to a reasonable suspicion that the driver was driving under the influence 3: holding that there was not reasonable suspicion to justify a stop because a vehicles one time straddling of the center line of an undivided highway is a common occurrence 4: holding alj correctly held that officer had reasonable suspicion to make stop based on observation that driver crossed over shoulder stripe and was weaving within his traveling lane


Input: for purposes of appeal. Tobar v. United States, 639 F.3d 1191, 1194 (9th Cir. 2011). The facts presented here are taken from the operative complaint or are otherwise uncontested. 2 . The operative complaint makes clear that the Chairperson is sued in an official capacity only. 3 . The parties use terms such as "tribal immunity,” “tribal sovereign immunity,” and "the Tribe’s sovereign immunity” interchangeably in their briefing, as do we herein. 4 . The district court did, however, dismiss all claims against the Health Program because Bodi failed to controvert evidence that the entity had no legal existence independent of the Tribe and the Health Board. That ruling has not been appealed. 5 . Compare Ingrassia v. Chicken Ranch Bingo & Casino, 676 F.Supp.2d 953, 961 (E.D. Cal. 2009) (<HOLDING>), and Sonoma Falls Developers, LLC v. Dry Creek Holdings: 0: holding that removal to federal court does not waive tribal sovereign immunity 1: holding that tribal sovereign immunity did not bar rico suit only after concluding that sue and be sued clause in tribal ordinance unequivocally expressed waiver of sovereign immunity 2: holding that a controllers signature on a contract containing a forum selection clause was insufficient to waive sovereign immunity in part because the right to waive immunity was reserved to the tribal council 3: holding that a state may waive its sovereign immunity 4: holding that the ats does not waive the united states sovereign immunity


Input: the Agreement as he had promised; instead, Husband retained the document for nearly six months, during which time the parties were attempting to reconcile their marriage, and produced it for enforcement when Wife finally sought a divorce. This evidence — the prolonged retention of the Agreement that Husband promised to destroy as soon as Wife signed it, coupled with the subsequent attempt to enforce it — though slight, is sufficient to establish the existence of fraud, especially here, in light of the relationship between the parties and the nature of the Agreement. OCGA § 23-2-57 (“Fraud may not be presumed but, being in itself subtle, slight circumstances may be sufficient to carry conviction of its existence.”). Cf. Horton v. Johnson, 192 Ga. 338, 346-347 (1) (15 SE2d 605) (1941) (<HOLDING>). Based on the foregoing, the trial court did Holdings: 0: holding that parol evidence is admissible to establish a condition precedent to the existence of a contract 1: holding that the burden is on defendant as the party invoking removal jurisdiction to establish the existence of a sufficient amount in controversy 2: holding that the nonmovant must make a showing sufficient to establish the existence of an element essential to that partys case 3: recognizing that slight evidence of fraud is sufficient to establish its existence particularly involving family transactions 4: holding that evidence must be sufficient to establish elements of professional negligence particularly causation and damages arising from attorneys claimed failure to properly defend plaintiff


Input: the burden to seek review, on which the employee evidently acted on a writ of certiorari. Respondent suggests that the parties in this case should have similar powers and burdens. But the circumstances here are much different from those in Boe, which had continued effect when the employer refuses to submit a matter for independent review. Although respondent expressly declared to the employee that it was “reserving” the issue of jurisdiction for determination, it chose nevertheless to join with the employee in submitting the grievance question for independent review. Under these circum stances, in spite of its assertion of reserved powers, the county elected the process for determining the dispute. See Helmerichs v. Bank of Minneapolis & Trust Co., 349 N.W.2d 326, 327 (Minn.App.1984) (<HOLDING>), review denied (Minn. Dec. 20, 1984). Holdings: 0: holding that a credit card company could not introduce an alternative dispute resolution provision through a bill stuffer where nothing in the original agreement mentioned dispute resolution 1: holding that voluntary participant in arbitration process is estopped from objecting to this resolution of dispute citing twomey v durkee 291 nw2d 696 minn1980 2: holding that judicial is review available in the absence of an agreement for arbitration or some other form of final resolution of a dispute 3: holding that the federal arbitration act requires piecemeal resolution when necessary to give effect to an arbitration agreement and mandates enforcement of an arbitration agreement notwithstanding the presence of other persons who are parties to the underlying dispute but not to the arbitration agreement emphasis added 4: holding that because appraisal is analogous to arbitration the court would apply principles of arbitration law to this dispute regarding an insurance policy appraisal clause


Input: Co. v. United States, 222 U.S. 20, 26-27, 32 S.Ct. 2, 56 L.Ed. 72 (1911) (upholding amendment to Safety Appliance Act, 27 Stat. at L. 531, chap. 196, U.S. Comp. Stat.1901, p. 3174, 32 Stat. at L. 943, chap. 976, U.S. Comp. Stat. Supp.1909, p. 1143, which provided for all locomotives, cars, and similar vehicles used on any railway engaged in interstate commerce to be equipped with certain designated safety appliances, regardless of whether the vehicles were used in moving intrastate or interstate traffic); Perez v. United States, 402 U.S. 146, 155-156, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971) (“[F]or example, the destruction of an aircraft (18 U.S.C. § 32), or ... thefts from interstate shipments (18 U.S.C. § 659)”); see also United States v. Cobb, 144 F.3d 319, 321 & n. 2 (4th Cir.1998) (<HOLDING>). This underlying purpose, however, is not Holdings: 0: holding that the title of the statute did not limit the reach of the statute 1: holding that an amendment to a policy in existence prior to the effective date of a statute requiring uninsured motorist coverage which substituted insured automobiles did not incorporate the new statute because to do so would be an unconstitutional impairment of the obligation of the contract 2: holding that the statute qualifies as an exemption 3 statute 3: recognizing the principle that gives precedence to the terms of the more specific statute where a general statute and a specific statute speak to the same concern 4: recognizing that the federal carjacking statute fell within lopez s second category because the statute regulated harm to automobiles


Input: the consent, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct.” United States v. Santa, 236 F.3d 662, 677 (11th Cir.2000). “The proper inquiry is not simply whether [Mr. Scott’s] will was overborne by the agents’ illegal entry, but also whether his consent was a “product” of that illegality.” Id. Considering these factors, we conclude that Mr. Scott’s consent was not tainted by the illegal protective sweep of his home. To be sure, Mr. Scott’s consent was obtained minutes after the illegal protective sweep was completed. And we recognize that the fact that Mr. Scott was apprised of his right to refuse the search does not constitute an intervening factor sufficient to dissipate the taint of the illegal sweep. Id. at 678 (<HOLDING>). However, the officers’ conduct in this case, Holdings: 0: recognizing that unconstitutionally obtained evidence can become so attenuated as to dissipate the taint 1: holding that the reading of miranda warnings and the signing of a waiver of fourth and fifth amendment rights are not sufficient intervening factors sufficient to dissipate the taint of an unlawful entry into a home 2: holding that consent to search did not purge the taint of an unlawful detention when no intervening circumstances sufficiently separated the consent from the unlawful detention 3: holding that because miranda warnings make defendant aware of right to counsel and of consequences of waiving sixth amendment rights defendants waiver of right to counsel after receiving such warnings is valid 4: holding that although defendant was a deputy sheriff miranda warnings were required irrespective of defendants knowledge of his fifth amendment rights


Input: when working a case. See United States v. Ventresca, 380 U.S. 102, 111, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) ("Observations of fellow officers of the Government engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their number."). As such, "[Where law enforcement authorities are cooperating in an investigation, ... the knowledge of one is presumed shared by all." Illinois v. Andreas, 463 U.S. 765, 77l n. 5, 103 S.Ct. 3319, 77 LEd.2d 1003 (1983). In some situations, however, the police expand the scope of their investigation to include other officers not currently on seene. In those scenarios, the fellow officer rule operates to integrate those outside officers and make them part of the coordinated investigation. See Arias, 159 P.8d at 189-40 (<HOLDING>). 115 Specifically, we have previously held Holdings: 0: recognizing general rule 1: recognizing that the fellow officer rule functions to include officers outside the common investigation 2: holding that a mayor although the executive officer may still have legislative functions 3: recognizing rule 4: recognizing this rule


Input: the judgment and sentence ‘set[s] forth the statutory maximum and clearly indicated] that the term of community [custody] does not extend the total sentence beyond that maximum.’ ” Id. at 566 (emphasis added) (alterations in original) (quoting State v. Hibdon, 140 Wn. App. 534, 538, 166 P.3d 826 (2007)). While the court did not address Zavala-Reynoso, it did rely in part on Sloan to conclude that a remand to the trial court for clarification was the proper remedy. Torngren, 147 Wn. App. at 566. Although the Torngren court found that an amended sentence was the appropriate remedy in that case, Division Three has also indicated that either an amended sentence or a vacation and remand for resentencing are equally appropriate remedies in these circumstances. Hibdon, 140 Wn. App. at 538 (<HOLDING>). Does the sentence exceed the statutory Holdings: 0: holding that a remand need not be ordered despite legal errors if remand would be futile 1: holding remand order reviewable because crowded docket not ground for remand under  1447c 2: holding that in addition to a remand for clarification another option in these circumstances is to remand for resentencing 3: holding that on direct appeal appellate court may remand for resentencing of all counts 4: holding that the fourth circuit has jurisdiction to review a district courts sua sponte remand order even when that remand order is styled as a remand for lack of subject matter jurisdiction if the order was in fact based on the procedural insufficiency of the notice of removal


Input: work commenced before the effective date of its registration; or (2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless the registration is made within three months after first publication of the work.” 17 U.S.C. § 412. On October 17, 2006, OxBlue first published the OxBlue Specification. The Ox-Blue Specification was not registered with the Copyright Office until March 13, 2012. OxBlue is not entitled to statutory damages and attorneys’ fees because the Ox-Blue Specification was not registered at the time the alleged infringement occurred, or within the 3-month safe harbor period between publication and registration. See M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486, 1493 (11th Cir.1990) (<HOLDING>). OxBlue does not dispute that it is not Holdings: 0: holding that where the plaintiffs copyright infringement claim was without a reasonable legal basis an award of attorneys fees to the defendants was a proper exercise of judicial discretion 1: holding that attorneys fees and statutory damages were unavailable because the copyright was not registered at the time the alleged infringement occurred 2: holding that lanham act claim was not prohibited due to fact that author had not registered copyright 3: holding that a plaintiff may recover damages under both the lanham act and the copyright act provided the copyright damages serve a purpose other than compensation 4: holding that conversion and unjust enrichment claims were preempted by the copyright act since they were not qualitatively different from a copyright claim because they contained no extra element beyond those necessary to show copyright infringement


Input: not contest Alaimalo’s actual innocence. B. Prior Opportunities to Raise Actual Innocence Claim We turn to the question of whether Alaimalo’s actual innocence claim was unavailable to him during his direct appeal and his first § 2255 motion. In making this determination, we consider “(1) wheth er the legal basis for petitioner’s claim did not arise until after he had exhausted his direct appeal and first § 2255 motion; and (2) whether the law changed in any way relevant to petitioner’s claim after that first § 2255 motion.” Harrison, 519 F.3d at 960 (internal quotation marks omitted). An intervening court decision must “effect a material change in the applicable law” to establish unavailability. Harrison, 519 F.3d at 960. See also In re Davenport, 147 F.3d 605, 607, 610 (7th Cir.1998) (<HOLDING>); Triestman v. United States, 124 F.3d 361 (2d Holdings: 0: holding that the supreme courts interpretation of 18 usc  924c1 in bailey v united states 516 us 137 116 sct 501 133 led2d 472 1995 has retroactive application to cases on collateral review 1: holding that to enhance a sentence because of the defendants use of a firearm the jury must find the defendant guilty of a crime involving a firearm or otherwise specifically find that a firearm was used 2: holding that to apply the firearm enhancement the firearm need only reflect the context of the defendants possession and the defendants ability to use the firearm to promote the controlled substance offense 3: holding that the rule announced in bailey v united states 516 us 137 116 sct 501 133 led2d 472 1995 applies retroactively on collateral review 4: holding that the supreme courts decision in bailey v united states 516 us 137 116 sct 501 133 led2d 472 1995 effected a material change in the law because the circuit previously held that accessibility of a firearm was enough to support an inference that a firearm was used in a drug crime whereas bailey required active employment of the firearm


Input: (2007) from this constitutional definition. 6 . None of the parties allege that Hoffman’s inaccurate oath was a product of fraud. 7 . Compare this unambiguous language with the broader authority given to the Secretary of State in the context of reviewing referendum petitions, 21-A M.R.S. § 905(1) (2007) which provides in part: "The Secretary of State shall determine the validity of the petition.” 8 . The second sentence of 21-A M.R.S. § 354(9) provides "If a voter or circulator fails to comply with this section in signing or printing the voter’s name and address, that voter’s name may not be counted, but the petition is otherwise valid.” 9 . See also, Citizens Comm, for the D.C. Video Lottery Terminal Initiative v. D.C. Bd. of Elections & Ethics, 860 A.2d 813, 816-17 (D.C.App.2004) (<HOLDING>); Montanans for Justice v. State, 334 Mont. Holdings: 0: holding that an appeal to an agency review board would be futile because the board lacked authority to invalidate ordinance as requested 1: holding that taxpayer could not have presented substantive due process claim to the board of assessment review because of the limited jurisdiction of that board 2: holding that actions of arbitrators in gathering evidence outside the scheduled hearings and without notice to the parties constituted misconduct sufficient to vacate the award 3: holding that the district court was authorized to remand the proceedings to the board where the board failed to make required findings 4: holding board had authority to exclude entire petitions where evidence showed pervasive pattern of fraud forgery and other improprieties permeated the circulation process that a particular group gathering signatures used


Input: predicate to enhance his sentence as a second-offense habitual offender. While defendant objects to this, he offers no statutory or legal analysis to support the contention that his claimed double enhancement is inappropriate. The critical point from Bewersdorf is that the OUIL provisions increased the punishment for each repeated offense, just as the SORA provisions do in the present case. In fact, defendant concedes that there is no error in enhancing a SORA-2 sentence under the habitual-offender provisions as long as the habitual-offender enhancement is based on a felony other than a SORA violation. Thus, to this extent, defendant agrees with our conclusion that MCL 28.729(1) sets forth separate, elevated offenses. 51 E.g., People v Eilola, 179 Mich App 315, 325; 445 NW2d 490 (1989) (<HOLDING>); People v Brown, 186 Mich App 350, 357; 463 Holdings: 0: holding that the habitualoffender provisions could be used to enhance a sentence for a conviction that constituted firstdegree retail fraud because of a prior conviction mcl 750356c2 as added by 1988 pa 20 1: holding an uncounseled misdemeanor conviction is valid because no prison term was imposed and the conviction may be used to enhance a sentence for a subsequent offense 2: holding that a juvenile adjudication may be used as a prior conviction for apprendi purposes 3: holding the death sentence proportional for the firstdegree murder conviction where the aggravators included prior violent felony conviction and hac 4: holding that any fact other than a prior conviction may not be used to enhance a defendants sentence beyond the statutory maximum unless it is submitted to a jury and proved beyond a reasonable doubt


Input: for the writ of mandamus. C. Violation of Due Process Appellant next contends that the trial court erred in finding that his due process rights had not been violated. The trial court stated that " [procedural due process constrains government decisions which deprive an individual of some 'property' or 'liberty' interest. . .. petitioner has neither shown the existence of a property interest nor that his property has been taken." Order Den. Mot. for Recons, at 2 (Trial Div. Aug. 25, 1993). Appellant claims that his property interest lies in the 2% annual income tax he pays as an employee of the government. Appellant's argument is wrongly constructed, however. He does not challenge the ability of the Legislature to tax him and spend the money as part of the general fund. Ra 1983) (<HOLDING>). Thus, the mere fact that Appellant has Holdings: 0: holding that alleged violations of a state statute did not give rise to federal constitutional claims 1: holding that unilateral expectation of continued service at a particular stateoperated leprosy hospital did not give rise to a due process claim 2: holding that a property interest sufficient to support a due process claim requires a binding assurance and not a mere unilateral expectation 3: holding such service satisfies due process 4: holding that a state agencys violations of its own internal regulations did not establish a due process violation or otherwise give rise to a constitutional claim


Input: right to possession of real property either by an unlawful act or a lawful act performed in an unlawful manner.” N.Y. State Nat. Org. for Women v. Terry, 886 F.2d 1339, 1361 (2d Cir.), cert. denied 495 U.S. 947, 110 S.Ct. 2206, 109 L.Ed.2d 532 (1990) (finding summary judgment on a trespass claim to be appropriate against anti-abortion groups protesting on an abortion clinic’s property), citing Ivancic v. Olmstead, 66 N.Y.2d 349, 352, 497 N.Y.S.2d 326, 488 N.E.2d 72, cert. denied, 476 U.S. 1117, 106 S.Ct. 1975, 90 L.Ed.2d 658 (1986); see also Phillips v. Sun Oil Co., 307 N.Y. 328, 331, 121 N.E.2d 249 (1954). To succeed in an action for trespass, Plaintiff must prove that there was a wrongful or unjustifiable entry upon his land. Scribner v. Summers, 84 F.3d 554, 557 (2d Cir.1996) (<HOLDING>). As explained above, the barges at issue are Holdings: 0: holding that under new york law trespass is the intentional invasion of anothers property 1: holding that new york law applies to this matter 2: holding that contract signed in new york by promisor from florida and partially performed in florida was governed by new york law because it was executed in new york 3: holding that outofstate defendants transmittal into new york of ceaseanddesist letter to new york plaintiff for purported trademark infringement was insufficient to create jurisdiction over defendant in a new york declaratory judgment action 4: holding jurisdiction over nonresident defendant existed where note was payable in new york contained new york choice of law clause and proceeds were used to finance new york limited partnership


Input: and respect for the D.C. Court of Appeals.”). The Supreme Court held in Salve Regina College v. Russell,. 499 U.S. 225, 111 S.Ct. 1217,113 L.Ed.2d 190 (1991), that “a court of appeals should review de novo a district court’s determination of state law.” Id. 499 U.S. at 231, 111 S.Ct. at 1221. The D.C. Court of Appeals has not squarely addressed the question whether bad faith denial of an insurance claim constitutes an independent tort under D.C. law. The district court has considered the issue in two separate reported cases, but these cases are directly in conflict. Compare GEICO, 769 F.Supp. at 387 (“District of Columbia law does not recognize the tort of bad faith denial' of an insurance claim.”) with Washington v. Group Hospitalization, Inc., 585 F.Supp. 517, 520 (D.D.C.1984) (<HOLDING>). We find it unnecessary to divine whether the Holdings: 0: holding that the district of columbia is among the many jurisdictions that have recognized a cause of action in tort for the bad faith refusal of an insurer to pay 1: holding that insured may recover attorneys fees from insurer where insurer acts in bad faith 2: holding that no cause of action for bad faith exists when insurer has reasonable grounds to contest liability 3: holding that a bad faith claim is a tort 4: holding that an insurance contract between the parties and a breach thereof by the defendant is an element of a bad faith refusal claim


Input: act, not within the scope of the common purpose, but growpng] out of the individual malice of the perpetrator. 1 Wharton Crim.Law, § 397.” Keller v. State, 380 So.2d 926, 935 (Ala.Cr.App.1979), cert. denied, 380 So.2d 938 (Ala.1980). The capital offense of which this defendant was convicted, see § 13A-5-40(a)(7), Ala.Code 1975, requires (1) proof of an intentional murder and (2) proof that the murder was committed for pecuniary gain, or pursuant to a contract, or for hire. Sockwell v. State, 675 So.2d 4, 24 (Ala.Cr.App.1993). We agree with the defendant that his intent that Pope kill Elmer Woodall pursuant to a contract could not supply the intent necessary to convict the defendant for the capital murder-for-hire of Clemer Woodall. Cf. Tomlin v. State, 591 So.2d 550 (Ala.Cr.App.1991) (<HOLDING>). Rather, in order to convict the defendant of Holdings: 0: holding that general verdicts failed to reveal whether defendant was convicted on accomplice liability theory and that evidence supported accomplice liability theory 1: holding that under the accomplice liability doctrine a nontriggerman accomplice may be convicted of double murder a capital offense under  13a540a10 alacode 1975 only if he had the particularized intent that both victims be killed 2: holding that a defendant may be convicted of felony murder when the death of his accomplice was a reasonably foreseeable result of their commission of a felony 3: holding that in order to convict a defendant of firstdegree murder on a theory of accomplice liability proof of his own premeditation is required 4: holding that alabama appellate courts have repeatedly held that to be convicted of a capital offense and sentenced to death a defendant must have had a particularized intent to kill


Input: in context, and because it was unable to do so, afforded them no weight. We agree with the trial court’s ruling and thus deny relief on this issue. Psychological Mitigation Evidence In Spann v. State, this Court held: Mitigating evidence must be considered and weighed when it is contained anywhere in the record, to the extent it is uncontroverted and believable. This requirement applies with equal force when the defendant asks the court not to consider mitigating evidence .... (Citation omitted.) The sentencing court must “expressly evaluate in its written order each mitigating circumstance proposed by the defendant.” 857 So.2d 845, 857 (Fla.2003) (quoting Rogers v. State, 783 So.2d 980, 995 (Fla.2001)); see also Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) (<HOLDING>) (emphasis in original). Where a trial court Holdings: 0: holding that the trier of fact must be allowed to consider and give effect to all relevant mitigating evidence 1: holding that defendants relatively minor participation in the crime is a mitigating factor that sentencer must consider 2: holding that sentencing scheme that permitted a limited range of mitigating evidence was unconstitutional because the eighth and fourteenth amendments require that the sentencer  not be precluded from considering as a mitigating factor any aspect of a defendants character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death 3: holding for a unanimous court that sentencer in capital case must consider an extensive list of nonstatutory mitigating factors 4: holding that a sentencer may not refuse to consider as a matter of law any relevant mitigating evidence


Input: under Rule 60(b) to vacate a judgment directly with the district court, ■without seeking prior leave from the Court of Appeals. 601 F.2d 39, 41 (1st Cir.1979). The district courts are required “to review any such motions expeditiously, within a few days of their filing....” Id. at 42. Where the district court considers a motion to have merit, it issues a memorandum so that the movant may petition this Court to remand the case to the district court for the judgment to be vacated. Id.; see also United States v. 6 Fox St., 480 F.3d 38, 46 (1st Cir.2007). Otherwise, a litigant may not request on appeal that this Court remand a case to a district court for it to consider an argument that the litigant waived before that court. Toscano v. Chandris, S.A., 934 F.2d 383, 386-87 (1st Cir.1991) (<HOLDING>). In any event, Rosaura’s attempt is likely Holdings: 0: holding that a government agency seeking to enforce a prior order regarding prepetition acts of a debt or is not bound by a confirmed plan a if such agency fails to participate in the confirmation of such plan b if the obligations that such agency seeks to impose upon such debtor do not constitute claims c notwithstanding that such plan purports to treat such debtors obligations to such agency and d since it thus is not a named entity within  1141a 1: recognizing such an exception 2: holding that plaintiff must present such evidence 3: holding that a litigant who receives ex parte assurances of success from a judge is a state actor under  1983 4: holding that a litigant must follow colocotroni in such scenarios


Input: is not successive merely because it follows an earlier application. In re Cain, 137 F.3d 234, 235 (5th Cir.1998); Magwood v. Patterson, — U.S. —, 130 S.Ct. 2788, 2805, 177 L.Ed.2d 592 (2010) (“second or successive [does] not refer to all § 2254 applications filed second or successively in time, but [is] rather a term-of-art that takes its full meaning from our case law, including decisions predating the enactment of AED-PA.”) (internal citation and quotation marks omitted). A § 2254 application filed after an earlier application that was dismissed without prejudice for failure to exhaust state court remedies is not a second or successive application. Slack v. McDaniel, 529 U.S. 473, 487, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); In re Gasery, 116 F.3d 1051, 1052 (5th Cir.1997) (<HOLDING>). Under Lundy district courts should dismiss Holdings: 0: holding that declaratory judgment was inappropriate where after exhausting administrative remedies a contractor would have to bring separate actions against the state and other parties in state court 1: holding petitioner seeking to refile habeas application after prior dismissal without prejudice for failure to exhaust state remedies is not required to comply with  2244b3a when he returns to federal court after exhausting those claims 2: holding that proper remedy for failure to exhaust is dismissal of the claim without prejudice 3: holding federal habeas proceeding was properly dismissed for failure to exhaust state remedies when petitioners direct appeal from resentencing was still pending in state court at the time he sought habeas relief 4: holding that a prisoners failure to pursue an appeal in state court is a procedural bar to federal habeas relief unless the petitioner shows both cause for failing to bring the state claim  and actual prejudice from the failure to consider his federal claims


Input: that when the government undertakes to perform services, which in the absence of specific legislation would not be required, it will, nevertheless, be liable if these activities are performed negligently.”). In aviation cases, courts have held that an FAA controller owes a duty of reasonable care to an aircraft, passengers, crews, and cargoes in the performance of the controller’s duties; these duties are concurrent with an airplane pilot’s duty of due care. Davis v. United States, 824 F.2d 549, 550 (7th Cir.1987) (“While general negligence law applies to airplane tort cases, ... the standard of due care is concurrent, resting upon both the airplane pilot and ground personnel.”) (quoting Spaulding v. United States, 455 F.2d 222 (9th Cir.1972)); see also Freeman, 509 F.2d at 629 (<HOLDING>); Somlo v. United States, 416 F.2d 640, 647 Holdings: 0: holding that a duty of care may arise out of a contractual relationship between two parties 1: holding that the duty of good faith and fair dealing is a contractual duty 2: holding that police officers have no affirmative duty to search out favorable evidence for the defendant 3: holding that certain fiduciary duty claims did not arise out of the underlying contractual provisions 4: holding that a controllers duty extended to parachutists jumping out of the plane


Input: Beatty next contends that the district court misapplied the Sentencing Guidelines by relying on the specific offense characteristic, “more than minimal planning,” as the basis for both a two level upward adjustment pursuant to U.S.S.G. § 2Fl.l(b)(2)(A) and as one of its stated reasons for upward departure pursuant to U.S.S.G. § 5K2.0, p.s. Beatty does not contend that “more than minimal planning” was not present in his offense conduct. He merely contends that the district court engaged in an improper form of “double-counting” when it used the same factor to increase his punishment under two separate and different provisions of the Sentencing Guidelines. We disagree. Double-counting is permitted in some circumstances. Compare United States v. Burnett, 952 F.2d 187, 188-90 (8th Cir.1991) (<HOLDING>), and United States v. Thomas, 930 F.2d 12, Holdings: 0: holding that district court may consider defendants underlying conviction under both  2j16a and  4alla  d when sentencing him for failure to appear to serve his sentence 1: holding that where a district court clearly indicates that an alternative sentence would be identical to the sentence imposed under the guidelines any error that may attach to a defendants sentence under booker is harmless 2: holding that where a furlough and an enhanced sentence for failure to appear in court at a later time are part of the plea agreement a court is justified in imposing the enhanced sentence after the defendant fails to appear in court without giving him an opportunity to withdrawhis plea 3: holding that district court may consider defendants underlying conviction under both  2p11a1 and  4alld  e when sentencing him for escape 4: holding that sentencing court is permitted to consider evidence of both uncharged acts and evidence underlying counts on which the defendant has been acquitted


Input: damage to the front end, and a broken steering wheel. Is this the damage which Dr. Brown says is essential to his opinion? What of damage to the frame and understructure of the car? If speed is to be based partially on the damage done to the vehicles, that damage must be ascertained by something more than looking at a picture of the exterior of the automobile. No case has been cited to us which is factually similar to the one now before us. However we find substantial support for the views here expressed in Twidwell v. Davidson, 54 Wash.2d 75, 338 P.2d 326, 329-332; Stephanofsky v. Hill, 136 Conn. 379, 71 A.2d 560, 561; Kale v. Douthitt, 4 Cir., 274 F.2d 476, 480-483 (dealing particularly with evidence as to the angle of impact); Levine v. Remolif, 80 Nev. 168, 390 P.2d 718, 719-721 (<HOLDING>); Anderson v. Broome, Tex.Civ.App., 233 S.W.2d Holdings: 0: holding trial court properly excluded testimony concerning speed of vehicle where witness observed vehicle travel on a diagonal for thirtyfive 35 feet on poorly lit road estimate of speed may not be predicated on such a slender data base   1: holding that an experts opinion must be based on facts in evidence or within his or her knowledge and that the admission of an experts opinion is reviewed for an abuse of discretion 2: holding that rules of evidence do not permit an expert to give opinion or state legal conclusions regarding a question of law 3: holding that a picture of a damaged vehicle was insufficient to permit an opinion of speed based on damage to the vehicles 4: recognizing that a common illustration of an admissible opinion under rule 701 is an expression of opinion by a lay observer of a cars speed


Input: presence did not mean the wife got a fraction of both the community and the husband’s separate-property portions of those benefits. We presume the trial judge knew of Cearley and Taggart and constructed his decree accordingly. See Patino, 687 S.W.2d at 802. We find this intent clear from the language used, even if the judge did not also recite a “Taggart-type” fraction for Gloria’s 50 percent community-property interest. To conclude otherwise, we would have to find the trial judge intended to divide this asset contrary to four-year-old Supreme Court decisions and to violate the constitutional and statutory provisions already interpreted to prohibit awards of separate property and to allow division of community property only. See Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 139-40 (Tex.1977) (<HOLDING>); see also Tex. Const, art. XVI, § 15 Holdings: 0: recognizing division of separate property to be contrary to statute and constitution 1: recognizing exception under state constitution 2: holding that reviewing court may not reverse trial courts judgment on property division unless trial court has clearly abused its discretion or has made inequitable division 3: holding res judicata applied to improper property division before holding parties were bound by their division agreement 4: holding that reconsideration of the correctness of property division was barred on appeal from the judgment enforcing that division


Input: can be sufficient evidence that “tends to connect the accused to the alleged offense even if none of the circumstances would be sufficient individually.” Brown, 159 S.W.3d at 708; Cantelon, 85 S.W.3d at 460-61. “All the law requires is that there be some [corroborating] evidence from which rational jurors could conclude that this [other] evidence sufficiently tended to connect Appellant to the offense.” Jefferson, 99 S.W.3d at 793 (quoting Hernandez v. State, 939 S.W.2d 173, 179 (Tex.Crim.App.1997)). When corroborating evidence required for a conviction is lacking, the defendant will be entitled to a verdict of acquittal. Tex.Code CRiM. PROC. Ann. art. 38.17 (Vernon 2005); see Ex parte Reynolds, 588 S.W.2d 900, 902 (Tex.Crim.App.1979), cert. denied, 445 U.S. 920, 100 S.Ct. 1284 (1980) (<HOLDING>); Fare v. State, 1 S.W.3d 928, 930 Holdings: 0: holding jury cannot return any verdict except acquittal when evidence is insufficient to corroborate accomplice witness 1: recognizing distinction made in maynard that one accomplices outofcourt statement may corroborate the incourt testimony of another accomplice but outofcourt testimony of a testifying accomplice cannot be used to corroborate his own testimony 2: holding suspicion that some combination of individuals participated in five robberies was insufficient to corroborate accomplice testimony 3: holding possession alone cannot sufficiently corroborate the testimony of an accomplice when the stolen property was not sufficiently identified at trial 4: holding that mere speculation is insufficient to support a jury verdict


Input: to establish its consideration of a legal issue”). Like the Eighth Circuit, we do not believe that a district court errs when it fails “to explain a revocation sentence that is consistent with all applicable policy statements.” United States v. Caves, 73 F.3d 823, 825 (8th Cir.1996). IV. In addition to imposing eleven months confinement, the district court’s revocation order in CR-29 stated that the unpaid portions of Johnson’s fine and reimbursement costs for his court appointed counsel “remain in effect.” Johnson argues that the district court could not reimpose those obligations in the written judgment order revoking Johnson’s supervised release when it failed to reimpose them in open court in the revocation hearing. See United States v. Layman, 116 F.3d 105, 108 (4th Cir.1997) (<HOLDING>). We find that those obligations existed Holdings: 0: holding that a sentence imposed for a violation of supervised release will be upheld where 1 the district court considered the applicable policy statements 2 the sentence is within the statutory maximum and 3 the sentence is reasonable 1: holding that sentence is imposed when the district court orally pronounces it 2: holding that a court is free to change an orally pronounced sentence until a written judgment is filed 3: recognizing constitutional right to be present when sentence is imposed 4: recognizing that we review the sentence imposed by a district court under the abuse of discretion standard


Input: DISMISSING FIRST AMENDED PETITION WITHOUT PREJUDICE SAMUEL P. KING, District Judge. I. INTRODUCTION On January 7, 1999, Petitioner Michael Kent Poland (“Petitioner” or “Poland”) filed a First Amended Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254, amending a habeas petition filed on- October 20, 1998. Poland seeks, among other things, an evidentiary hearing on a claim that he is currently incompetent to be executed under Ford v. Wainwright, 477 U.S. 399, 410, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) (<HOLDING>). Respondent Terry Stewart, Director of the Holdings: 0: holding that leaning towards the death penalty is not the same as an automatic vote for the death penalty 1: holding that the eighth amendment prohibits the state from inflicting the penalty of death upon a prisoner who is insane 2: holding that the eighth amendment prohibits the punishment of death for a defendant convicting of raping a child 3: holding that the eighth amendment prohibits execution of persons whose mental illness prevents them from comprehending the reasons for the penalty and its implications 4: recognizing that the eighth amendment protects individuals from a lingering death


Input: The State argued that it was within prosecutorial discretion to choose which offense to charge the defendant with, but the court concluded that skilled prosecutors would usually seek the more severe sentence and thus the charge of aggravated kidnapping would effectively be nullified. "Since the elements which constitute aggravated kidnapping and armed violence are identical, common sense and sound logic would seemingly dictate that their penalties be identical." Id. at 774. 4 . Certainly, there was sufficient evidence from which a jury could conclude that Morris intended to leave the J.C. Penney store with the garbage bag containing unpurchased clothes, thus depriving J.C. Penney of the use and value of the merchandise. See, eg., Johnson v. State, 413 N.E.2d 335, 336 (Ind.Ct.App.1980) (<HOLDING>). Therefore, the State is not barred by double Holdings: 0: holding that where store employee discovered defendant exiting fitting room with merchandise in her own tote bag evidence was sufficient to support inference that defendant had requisite intent to deprive store of merchandise 1: holding that a store owner has a duty to protect invitees from foreseeable criminal acts 2: holding a store vicariously liable for wrongful death when its employee shot and killed a customer 3: holding that where a defendant abandoned a vehicle in a subdivision near where the victims body was found there was sufficient evidence of intent to permanently deprive the owner of the vehicle 4: holding that defendant was seized where the officer told defendant that she knew that he was on probation defendant admitted to the officer that he had given her a false name and defendant was asked for consent to search a backpack because a reasonable inference was that defendant was the subject of a continuing investigation and his or her freedom of movement had been significantly restricted by the officers show of authority


Input: negative and conclude that Merrill Lynch’s disclosure of the reports to Deloitte & Touche did not constitute a waiver of the applicable work product protection. In a frequently cited case, In re Pfizer, Inc. Sec. Litig., Judge Buchwald held that Pfizer’s disclosure of documents to its independent auditor, KPMG Peat Marwick (“Peat Marwick”), did not waive its work product privilege. 1993 WL 561125, at *6. Judge Buchwald’s decision was based on her observation that “Pfizer and Peat Marwick obviously shared common interests in the information, and Peat Marwick is not reasonably viewed as a conduit to a potential adversary.” Id. Other courts have adopted precisely this analysis. E.g., Gutter v. E.I. Dupont de Nemours & Co., No. 95 Civ. 2152, 1998 WL 2017926, at *5 (S.D.Fla. May 18, 1998) (<HOLDING>); Gramm v. Horsehead Indus., Inc., No. 87 Civ. Holdings: 0: holding that accountants worksheets did not contain privileged communications 1: holding that disclosure to outside accountants did not waive the work product privilege since the accountants are not considered a conduit to a potential adversary 2: holding that when a party discloses an item to an adversary even in the context of settlement a waiver of the work product privilege is effected 3: recognizing that the duty has been applied to accountants 4: holding that the attorneyclient privilege applied to communications with accountants where defendants  demonstrated the necessity of the accountants services by showing that the accountants provided services that were beyond  counsels resources and abilities but were uniquely within the accountants qualifications


Input: construction would have the “anomalous effect” of undermining the purposes of FIRREA. Specifically, Motorcity’s interpretation seeks to take advantage of oral agreements, evading the statute and D’Oench merely because Motorcity has paid off its loan. Such an interpretation would undermine the core purpose of both the D’Oench doctrine and its statutory cousins, i.e., allowing the FDIC to make its necessary decisions and evaluations, which sometimes must be made with lightning speed, by relying on the written bank records. For the foregoing reasons, we therefore hold that neither FIRREA, nor the Federal Deposit Insurance Act of 1950, preempted the federal common law D’Oench doctrine. B. Can Motorcity Avoid the D’Oench Doctrine if it Repaid its Loans to Southeast Prior to B Cir.1995) (<HOLDING>); John v. RTC, 39 F.3d 773, 776-77 (7th Holdings: 0: holding that ignorance by one prosecutor of promise made by another is irrelevant since the prosecutors office is an entity and  a promise made by one attorney must be attributed for these purposes to the government 1: holding that an officers promise to bring defendants cooperation to the attention of the prosecutor did not make confession involuntary 2: holding that a promise to make a loan is not covered by  1823e because a promise is not an asset 3: recognizing that a unilateral contract can be formed when only one promise is illusory because the nonillusory promise can serve as an offer which the promisor who made the illusory promise can accept by performance 4: holding that the failure to carry out an oral promise to convey land standing by itself is not fraud


Input: size of the burns in making the adverse credibility determination. Sixth, the IJ commented that it was “noteworthy” that Suntharalinkam had testified during the hearing that he was hospitalized for some ten days following his release from detention, whereas his asylum application did not mention hospitalization and instead only referred to medical treatment that he received at that time. The IJ’s concern is unfounded, as in fact there is no “discrepancy” between the application and Suntharalinkam’s testimony that can legally form the basis of an adverse credibility decision. An adverse credibility finding cannot be based on petitioner providing testimony that is more detailed than the information presented in the asylum application. See Singh v. INS, 292 F.3d 1017, 1021 (9th Cir.2002) (<HOLDING>). Here, there is no contradiction between the Holdings: 0: holding that a failure to corroborate ones testimony with supporting evidence cannot form the sole basis for an adverse credibility determination 1: holding that an adverse credibility determination is sufficient to deny asylum 2: holding that an adverse credibility finding can be based on materially different asylum claims in an airport interview and petitioners subsequent testimony before the ij 3: holding that an adverse credibility determination cannot be based on trial testimony that is more detailed than the applicants initial statements at the airport 4: holding that in the absence of an adverse credibility determination the court must accept petitioners testimony as true


Input: ill.... “[CJaring for the mentally ill” requires an actual medical diagnosis that the patient is mentally sick or deficient. (Id.) In light of this advice, it would have been reasonable for CGS, when developing a program in 2002 designed to “deliver[ ] the equivalent of the hospital’s comprehensive services directly to the adolescent” (ACT Staff Manual), to take steps to “ascertain what the Act requires” at that time, Wilamowsky, 833 F.2d at 19; see also SNET, 121 F.3d at 72 (finding that even though the employer took some efforts to ascertain its obligations under the Act because it sought advice from the DOL, the resulting opinion letter revealed that the employer “failed to ask the appropriate question” and did not compel a finding of good faith); Debejian, 64 F.Supp.2d at 91 (<HOLDING>). Defendant’s fourth and fifth arguments, Holdings: 0: holding that burden of demonstrating coverage rests with the insured 1: holding that regardless of insurers good faith denial of coverage plaintiff is entitled to recover interest to put it in position it would have been in if coverage had not been denied 2: holding claimant has burden of demonstrating a good faith work search 3: holding that while the creditor has the initial burden to produce some evidence of lack of good faith the ultimate burden is on the debtor to prove his good faith 4: holding that where employer did not show it furnished counsel with the specific information necessary to determine coverage it had not met its onerous burden of demonstrating good faith


Input: Florida Action The majority opinion holds that for an insurer to be bound by a judgment in an action between its insured and an uninsured motorist, all that is required is that the insurer be served with a copy of the summons and complaint, and that it is not necessary for the insurer to be a party to the action. In construing a statute, this Court is required to look at the entire statute, and construe it in pari materia, giving effect, if possible, to all provisions contained in the statute. Rhyne v. K-Mart Corp., 358 N.C. 160, 188, 594 S.E.2d 1, 20 (2004) (noting that “this Court does not read segments of a statute in isolation. Rather, we construe statutes in pari materia giving effect, if possible, to every provision.”); State v. Tew, 326 N.C. 732, 739, 392 S.E.2d 603, 607 (1990) (<HOLDING>). The second sentence of N.C. Gen. Stat. § Holdings: 0: holding that statutes dealing with same subject matter should be construed with reference to each other as parts of one system 1: holding the same 2: holding that a statute should not be construed so as to invalidate other parts of the same statute 3: holding that a statute should where possible be construed according to its plain meaning and as a whole giving meaning to all its parts 4: holding that all parts of the same statute dealing with the same subject are to be construed together as a whole    and individual expressions be accorded only that meaning which other modifying provisions and the clear intent and purpose of the act will permit internal citations omitted


Input: matter — makes for an admirable floor, but it is certainly not a ceiling. Traylor v. State, 596 So.2d 957, 961-63 (Fla.1992). With this background in mind, we proceed with what we now recognize as the Tonn-Ochoa analysis. IV. Discussion. It is well-settled that warrantless searches are virtually “ ‘per se unreasonable ... subject only to a few specifically established and well-delineated exceptions.’” Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854, 858 (1973) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585 (1967)); accord State v. Naujoks, 637 N.W.2d 101, 107 (Iowa 2001). One recognized exception to the warrant requirement of our constitution is consent. State v. Reinier, 628 N.W.2d 460, 464- 288-89 (1980) (<HOLDING>); State v. Bollinger, 169 N.J.Super. 553, 405 Holdings: 0: holding that mailing element was satisfied where the defendants sent letters to fraud victims in an attempt to convince them that the promised services would be performed even though mailings were sent after victims money had been obtained 1: holding defendants agreement to consentsearch provision not coerced merely because it was one of two undesirable options 2: holding that consentsearch provision of a probation agreement was voluntary even though defendant would have been sent to prison if he rejected it 3: holding probationer voluntarily accepted consentsearch provision by accepting probation 4: holding consentsearch provision in parole agreement was coerced and involuntary


Input: equal, pro rata basis.” Id. at 153. The Court recognized that there are limited exceptions to the trustee’s exclusive avoidance powers under Section 522, which is intended to “give limited protection to a debtor’s exemptions.” Id. The Court examined specifically Section 522(h), which provides in pertinent part: The debtor may avoid a transfer of property of the debtor ... to the extent that the debtor could have exempt “no specific statutory provision” authorizes Chapter 13 debtors to “exercise trustees’ avoidance powers”); LaBarge v. Benda (In re Merrifield), 214 B.R. 362, 364 (8th Cir. BAP 1997) (noting lack of a comparable provision applicable Chapter 13 debtors as 11 U.S.C. §§ 1107(a), 1203); Pruitt v. Gramatan Investors Corp. (In re Pruitt), 72 B.R. 436, 439 (Bankr.E.D.N.Y.1987) (<HOLDING>); Montoya v. Boyd (In re Montoya), 285 B.R. Holdings: 0: holding that notwithstanding a debtors inability to obtain a chapter 13 discharge a debtor is nonetheless eligible to file a chapter 13 case 1: holding that section 1303 does not authorize the chapter 13 debtor to exercise the avoiding powers of a trustee 2: holding that a chapter 13 debtor should be able to obtain a copy of his transcript in light of the broader discharge provision of chapter 13 3: holding that funds held by chapter 13 trustee become property of the chapter 7 estate upon conversion not subject to exemption 4: holding that there is no statutory authority in chapter 13 which grants a chapter 13 debtor independent standing to sue under the trustees  avoidance power


Input: B, 8 U. Miami Bus. L. Rev. 215, 220 (2000) [hereinafter “Dilorenzo Article”] (stating the rationale behind not allowing Regulation B as an affirmative defense). As a result, while these courts recognize a plaintiff can offensively assert an ECOA violation as a civil action to recover damages against a creditor, they refuse to recognize an ECOA violation asserted as an affirmative defense. 2. Position #2: A debtor can assert an ECOA violation as an affirmative defense in the nature of recoupment. Many federal and state jurisdictions have allowed a plaintiff to assert an ECOA violation as an affirmative defense, even after the two-year statute of limitations has run for an offensive ECOA claim, by way of recoupment. See, e.g., Bolduc v. Beal Bank, SSB, 167 F.3d 667, 672 (1st Cir.1999) (<HOLDING>); Silverman v. Eastrich Multiple Investor Fund, Holdings: 0: holding the recoupment doctrine could allow a spouse to assert an ecoa affirmative defense against a creditor even after the statute of limitations had run 1: holding even though an affirmative action for damages is barred the debtor may assert an ecoa violation defensively in the nature of recoupment 2: holding defendant was entitled to assert an ecoa violation as an affirmative defense to avoid only her liability because to do otherwise would be to enforce conduct that is forbidden by the ecoa 3: holding a plaintiff cannot assert a violation of the ecoa as an affirmative defense 4: holding that ecoa violation cannot be asserted as affirmative defense


Input: from the ballot without reference to the candidates’ support in the electoral process. Thornton, 514 U.S. at 835, 115 S.Ct. 1842 (emphasis supplied). The State has not demonstrated that § l-4-802(l)(g) protects the integrity or regularity of the election process and, as demonstrated above, the statute does involve measures that unjustly exclude various segments of the population from the ballot. We hold that the statute imposes additional qualifications to the exclusive qualifications set forth in the Constitution, and hence is impermissible. 3. Procedural Requirement The State, relying heavily on voter registration cases, also attempts to characterize voter registration as a simple procedure, or mechanical adjunct, that is authorized under Thornton. Id. at 832, .2d 484, 486 (1950) (<HOLDING>). We agree with Mr. Campbell’s assertions. We Holdings: 0: recognizing that the government carved out a portion of a larger conspiracy and alleged it as a separate conspiracy 1: holding that once a defendant becomes associated with a conspiracy he is responsible for all of the acts of the conspiracy even those which occurred before or after his association with the conspiracy 2: holding that a person alleging a conspiracy to violate constitutional rights must do more than simply aver that a conspiracy existed 3: holding that the notion of enterprise conspiracy has largely rendered the old distinction between single conspiracy and multiple conspiracy irrelevant to rico conspiracy charges 4: holding that state cannot render person convicted of conspiracy to overthrow the government ineligible for congress


Input: district court’s denial of a motion to amend a complaint is abuse of discretion. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 91 S.Ct. 795, 802, 28 L.Ed.2d 77 (1971); Shipner v. Eastern Air Lines, Inc., 868 F.2d 401, 407 (11th Cir.1989). After a responsive pleading has been filed, subsequent amendments are permissible only with leave of court, which “shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a). This liberal policy of allowing amendments under Rule 15(a) “circumscribes the exercise of the district court’s discretion; thus, unless a substantial reason exists to deny leave to amend, the discretion of the district court is not broad enough to permit denial.” Shipner, 868 F.2d at 407; see also Moore v. Baker, 989 F.2d 1129, 1131 (11th Cir.1993) (<HOLDING>) (emphasis added). In this case, the district Holdings: 0: holding that denial of a postconviction motion without prejudice and with leave to amend is not a final appealable order 1: holding that denial of leave to amend is error in the absence of justifying reasons 2: holding that denial of motion for summary judgment is interlocutory even though trial judge had stated that there was no just reason for delay because denial of motion for summary judgment was not a final determination of defendants rights and the appeal did not affect defendants substantial rights 3: holding that a justifying reason must be apparent for denial of a motion to amend 4: holding that though the court did not expressly state its reason for denying leave to amend it was apparent what delay and prejudice would be caused by plaintiffs motion which sought to add four new individual defendants as well as additional counts under two federal statutes and a statelaw claim


Input: gesture, understood and agreed to cooperate to achieve the objective of the conspiracy. Id. at 145-46, 767 A.2d 844. In Heckstall v. State, 120 Md.App. 621, 626, 707 A.2d 953 (1998), we concluded that, “standing alone, a single buyer-seller transaction ordinarily does not constitute a conspiracy,” and we held that, because the evidence at Heckstall’s trial was limited to a single sale of a small amount of heroin, the evidence was legally insufficient to sustain his conviction of conspiracy. Appellants acknowledge that our holding in Heck-stall was narrow and based on the facts of that case. They urge us nonetheless to recognize a “somewhat broader ‘buyer-seller’ doctrine[,]” and then find reversible error L.Ed.2d 130 (1999); United States v. Jones, 160 F.3d 473, 481-82 (8th Cir.1998) (<HOLDING>); United States v. Starnes, 109 F.3d 648, 651 Holdings: 0: holding that defendant was not entitled to buyerseller instruction in drug conspiracy prosecution given evidence that defendant played numerous roles in the conspiracy and that massive amounts of cocaine were involved 1: holding that defendant was not entitled to buyerseller instruction despite defendants contention that buyerseller transactions were the only contacts between defendant and alleged coconspirator because the government adduced far more evidence than the prior drug purchases to establish the conspiracy and instructions as a whole did not allow jury to convict on mere buyerseller theory 2: holding that defendant charged with conspiracy to manufacture marijuana and possessing marijuana with intent to distribute was not entitled to specific buyerseller instruction even though support for such instruction existed because court gave a complete instruction reciting all the elements of conspiracy 3: holding that evidence of specific uncharged drug trafficking offenses were not extrinsic to prosecution for conspiracy to possess and distribute cocaine where the events occurred within the time period of the alleged conspiracy and were demonstrative of the conspirators conduct 4: holding that evidence of prior drug transactions was admissible under rule 404b to show inter alia intent to enter into the drug conspiracy and knowledge of the conspiracy


Input: Accordingly, appellants have failed to demonstrate a prima facie case of race or national origin discrimination as to all appellants. 2. Appellants’ 42 U.S.C. § 1981 Retaliation Claims The district court granted summary judgment on appellants’ § 1981 retaliation claims for two reasons: 1) appellants failed to state a plausible claim for relief as to retaliation in their Third Amended Complaint; and 2) appellants failed to advance competent summary judgment evidence demonstrating they had engaged in protected activity. Appellants’ address the merits of this claim only in their reply brief. Accordingly, any claimed error as to the grant of summary judgment on appellants’ § 1981 retaliation claims has been waived. See Tharling v. City of Port Lavaca, 329 F.3d 422, 430 (5th Cir.2003) (<HOLDING>). 3. Appellants’ Hostile Work Environment and Holdings: 0: holding that the defendant waived an argument by failing to raise it in his appellants brief 1: holding argument waived for failure to raise it in opening brief 2: holding that appellant waived issue by failing to raise it in opening brief 3: holding that a party abandoned an issue by failing to raise it in the opening brief 4: holding that the failure to raise an issue in the opening brief waives the issue


Input: is controlling. 6 As noted above, knowledge of the "facts" comprising a cause of action for attorney malpractice is to be distinguished from knowledge that such conduct constitutes malpractice. As noted in Gevaart, the discovery rule does not require that the plaintiff know of the negligent character of the conduct alleged as the cause of his or her injury. See Gevaart, 111 Wn.2d at 502. 7 We note that a limited number of jurisdictions have adopted the position that a judgment of a trial court does not become final and, hence, a party to such action does not incur any injury as a result of negligent representation at such proceeding, until a court of appeals affirms the decision of the trial court and/or the time to appeal has expired. See Neylan v. Moser, 400 N.W.2d 538 (Iowa 1987) (<HOLDING>). Such an approach may be appropriate where the Holdings: 0: holding that interest does not begin to accrue until the date of judgment not the date of verdict 1: holding that the date of sale for an installment contract was the date of contract formation not the date of the last payment due 2: holding that the date of discrimination is the date on which a decision not to hire a plaintiff becomes effective 3: holding that the date of injury for purposes of attorney malpractice does not occur until the last possible date when the attorneys negligence becomes irreversible 4: holding that the date of the federal indictment not the date of the state arrest was the triggering date for the speedytrial act


Input: John Shannon, a Nevada state prisoner, appeals pro se the district court’s judgment for the defendants in his 42 U.S.C. § 1983 action alleging prison officials violated his constitutional rights by, inter alia, withholding his personal property. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.), cert. denied, 124 S.Ct. 50,124 S.Ct. 50, 157 L.Ed.2d 23 (2003), and we affirm. The district court properly dismissed as untimely Shannon’s claim concerning unlawful withholding of his magazines because he filed his action more than two years after the claim accrued. See Fink v. Shedler, 192 F.3d 911, 914 (9th Cir.1999) (<HOLDING>); Perez v. Seevers, 869 F.2d 425, 426 (9th Holdings: 0: holding that the states personal injury statutes of limitation should be applied for claims under section 1983 1: holding that civil rights claims at least those arising under 42 usc  1983 were subject to the applicable states personal injury statute of limitations 2: holding that in actions brought under 42 usc  1983 federal courts apply the states statute of limitation for personal injury 3: holding that the statute of limitations for  1983 claims is the most closely analogous state limitations period for general personal injury claims 4: holding that federal courts apply the forum states personal injury statute of limitations for section 1983 claims


Input: (2) and (3) of 9006(b) set forth certain exceptions. Paragraph 2 enumerates the bankruptcy rules for which enlargement is not permitted and paragraph 3, which includes Rule 4007(c), enumerates the bankruptcy rules for which enlargement of time is limited to the “extent and under the conditions stated in those rules.” Fed. R.Bankr.P. 9006(b)(3). Although Rule 4007(c) permits a court to extend the time to file a complaint under § 523(c), the motion to extend must be filed before the time has expired. Accordingly, the Court does not have the discretion to allow an untimely complaint under any of the sections set forth in § 523(c) on the basis of excusable neglect. See In re Tucker, 263 B.R. 632, 636-637 (Bankr.M.D.Fla.2001). See also Byrd v. Alton, 837 F.2d 457, 459 (11th Cir.1988) (<HOLDING>). Courts may nonetheless permit a late filed Holdings: 0: holding that a motion to continue a hearing on a postjudgment motion was ineffective to extend the period for the trial court to rule on the motion absent the express consent of the parties 1: holding creditors actual notice of chapter 7 case in ample time to prepare and timely file the necessary request for determination of dischargeability bars them from challenging the dischargeability of their claim 15 months after bar date 2: holding that the district court cannot extend the time for filing a rule 59e motion by margin order 3: holding that motion to extend time period for filing dischargeability complaint must be made before the running of that period and that court lacks discretion to grant late filed motion to extend time to file dischargeability complaint 4: holding that a second motion to reconsider served within ten days of the denial of the first motion does not extend the time period for filing a notice of appeal from the underlying judgment


Input: Judges System 21 (1995) ("The Senate report [regarding the 1976 Amendments to the Federal Magistrates Act] noted that without the assistance furnished by magistrates in handling a 09 S.Ct. 2237, 104 L.Ed.2d 923 (1989) (finding that the Federal Magistrates Act's "additional duties” clause did not permit magistrates to conduct jury selection in felony trials without consent and explaining that "the carefully defined grant of authority to conduct trials of civil matters and of minor criminal cases [subject to special assignment, consent of the parties, and judicial review] should be construed as an implicit withholding of authority to preside at a felony trial. The legislative history, with its repeated statements that magistrates should handle subsidiary matters to enable distr 984) (<HOLDING>). Yet the majority opinion gives this caselaw Holdings: 0: holding that the ninth circuits decision exceeded the limits imposed on federal habeas review by 28 usc  2254d 1: holding that it is unconstitutional for a us magistrate judge to exercise jurisdiction pursuant to 28 usc  636c over a  2255 motion 2: holding that referrals of civil matters to magistrates pursuant to 28 usc  636c are constitutional for essentially the reasons stated by our sister circuits 3: holding that equitable tolling is available for petitions filed pursuant to 28 usc  2255 4: holding that pursuant to 28 usc  2254d1 if  the state court reached the correct result with respect to petitioners claim of constitutional violation even if on erroneous reasoning that is the end of our inquiry


Input: (“New Jersey courts have applied the Cooper prejudice rule in various other contexts,” including in cases “involving both excess insurance and reinsurance despite the fact that reinsurance agreements are not contracts of adhesion.”). The Cooper decision rejected prior case law that did not require that an insurer show appreciable prejudice when an insured breached a condition precedent to insurance coverage: Cf. Whittle v. Associated Indem. Corp., 130 N.J.L. 576, 33 A.2d 866, 868 (N.J.Err. & App.1943) (finding the insurance policy notice and cooperation provisions to be conditions precedent to coverage, and that the insured breach of those provisions permitted the insurer to disclaim coverage); Ebert v. Balter, 74 N.J.Super. 466, 181 A.2d 532, 535 (N.J.Super.Ct.App.Div.1962) (<HOLDING>). State National argues that the County’s Holdings: 0: holding that an insurer can deny benefits based on late notice by the insured only when the insurer is prejudiced by the delay 1: holding that the insureds liability has been established by the settlement and the insurer may not later relitigate the issue 2: holding that a condition subsequent presupposes an existing obligation that is to be defeated or forfeited if the condition is not fulfilled 3: holding that an insureds compliance with a condition precedent is not tested by the presence or absence of prejudice to the insurer but only by whether the condition has been fulfilled by the insured under all the circumstances 4: holding that right to payment does not accrue until condition precedent has been fulfilled


Input: no Connecticut court appears to have addressed the reach of Conn. Gen. Reg. § 42-110b-18(g), that regulation, on its face, concerns conduct involving the advertising of products and services, not the settlement of claims. Thus, the reasoning of Webster Bank regarding the scope of § 38a-816(2) would appear to apply to § 42-110b-l 8(g) with equal force, as it is undisputed that any alleged representations by Allstate were not an attempt to induce Hipsky into entering into a contract for insurance with Allstate. 15 . See also fn. 14, supra. fore not subject to the holding of Mead v. Burns, 199 Conn. 651, 663, 509 A.2d 11 (1986), that CUTPA provides a private right of action for violations of CUIPA. But see Rivera v. Pereira, No. CV010382813S, 2002 WL 377517, *3 (Conn.Super. Jan. 25, 2002) (<HOLDING>) (unpublished opinion). At any rate, the Court Holdings: 0: recognizing private right of action 1: recognizing cause of action 2: holding that where statutory remedies exist private employees do not have a private cause of action for violation of state constitutional rights 3: holding that cutpa provides private cause of action for violation of  83a832 4: recognizing the cause of action


Input: law does not occupy the field governing private corrections employees’ actions. The government contractor defense is not likely to apply because there is no indication that the United States directed the GEO employees’ treatment of Pollard. See Malesko, 534 U.S. at 74 n. 6, 122 S.Ct. 515 (noting that “[t]he record here would provide no basis for such a defense,” which is available when “the government has directed a contractor to do the very thing that is the subject of the claim”). Because the conduct at issu recognizing that a police officer fails to act with due care if the officer confines a prisoner in an unfit and unsanitary place); Richardson, 176 P. at 208 (stating that the keeper of a jail has a common law duty to keep the jail warm and sanitary); Dabney, 25 Va. (4 Rand.) 256 (<HOLDING>); see generally M.L. Schellenger, Annotation, Holdings: 0: recognizing that new mexico has adopted the common law unless otherwise abrogated by specific statutory provisions and that the power of a trial court to change venue on its own motion if necessary to assure the defendant a fair trial is part of that common law 1: holding that the statute in question served to modify prior common law and that the legislature was empowered to make such changes in the common law based on the public interest 2: holding that new york law has no common law right of privacy embracmg such claims as false light as any such privacy right is purely statutory 3: holding that under the common law a claim for personal injuries died with the victim 4: holding that under common law a jailor has a duty to provide a prisoner with necessary supplies such as fuel for heat and bed covering


Input: ■wrists. Doc. 54-2 at 32, pp. 122-23; Doc. 59 at ¶ 17. Once Anderson was in the sheriff officers’ custody, Moussa left the parking lot, entering the courthous 7th Cir. 1985) (same). “To ascertain when an employee’s conduct is within the scope of employment, the Illinois Supreme Gourt has adopted § 228 of the Restatement (Second) of Agency.” Copeland v. Cnty. of Macon, 403 F.3d 929, 932 (7th Cir. 2005) (citing Pyne v. Witmer, 129 Ill.2d 351, 135 Ill.Dec. 557, 543 N.E.2d 1304, 1308-09 (1989)). Section 228 provides: Conduct of a servant is within the scope of employment if, but only if: (a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and place limits; (c) it is- actuated, at least in part, by a p 1, 6-7 (N.D. Ill, Mar. 25, 2014) (<HOLDING>); Coles v. City of Chicago, 361 F.Supp.2d 740, Holdings: 0: holding that an offduty officers assertion to bystanders that he was on the job  at the scene of a car accident did not place him within the scope of employment 1: holding that a suspended chicago police officer was not acting within his scope of employment when discharging his weapon in the neighboring municipality of cicero 2: holding that the officer acted within the scope of his authority in requiring the defendant stopped in middle lane of traffic to exit his vehicle 3: holding that a reasonable jury could find that an offduty chicago police officer acted within the scope of his employment during a roadside altercation on interstate 55 near the damen street exit which is in chicago 4: holding that scope of employment was an issue for the jury where a chicago police officer was off duty but within the city limits when he shot the plaintiff


Input: offer, the [right of first refusal] ripens into an option, governed, by the terms set gut in the initial agreement. Sager v. Rogers, 1987 WL 6718, at *2 (Tenn.Ct.App.1987) (emphasis added) (citing Sports Premiums, Inc. v. Kaemmer, 595 P.2d 696 (Colo.App.1979); Quigley v. Capolongo, 53 A.D.2d 714, 383 N.Y.S.2d 935 (1976), aff'd 43 N.Y.2d 748, 401 N.Y.S.2d 1009, 372 N.E.2d 797 (1977)). Thus, Tennessee law governing the exercise of options is applicable to the present case. Defendant Bruno’s is correct in pointing out that, absent any agreement to the contrary, Tennessee law requires the strict matching of terms in order to exercise an option. Bradford v. Crown-Bremson Indus., Inc, 255 F.Supp. 1009, 1012 (M.D.Tenn.1964). See also Pinney v. Tarpley, 686 S.W.2d 574, 580 (Tenn.Ct.App.1984) (<HOLDING>); Jones v. Horner, 36 Tenn.App. 657, 260 S.W.2d Holdings: 0: recognizing court must enforce unambiguous contract according to its terms 1: holding that the waiver of sovereign immunity must be clear and unequivocal 2: holding that acceptance of an option must be unqualified absolute unconditional unequivocal unambiguous positive without reservation and according to the terms of the option 3: holding that under oregon law an acceptance of an offer must be positive unconditional unequivocal and unambiguous 4: holding that if the statutory terms are unambiguous a courts review ends and the statute is construed according to the plain meaning of its words


Input: Because the hearing examiner had the jurisdiction and authority to reduce Leal’s indefinite suspension to a 644-day temporary suspension without pay, we reverse the trial court’s summary judgment in Leal’s favor in Cause No.2003-CVQ-001720-D2 and render judgment reinstating the hearing examiner’s decision. And, because Dovalina established his qualified immunity from Leal’s procedural and substantive due process claims, we reverse the trial court’s summary judgment in favor of Leal in Cause No.2001-CVQ-000765-D2 and render judgment in Dovalina’s favor. However., we do not have jurisdiction over the City of Laredo’s appeal in Cause No.2001-CVQ-000765~D2 and therefore dismiss the City’s appeal. See Bexar County v. Giroux-Daniel, 956 S.W.2d 692, 695 (Tex.App.-San Antonio 1997, no pet.) (<HOLDING>). Leal’s substantive and procedural due process Holdings: 0: holding that the court lacked jurisdiction over statelaw tort claims on an interlocutory appeal from a denial of qualified immunity 1: holding that local school boards were not entitled to eleventh amendment immunity even though entitled to sovereign immunity in the same degree as the state itself from tort suits 2: holding that qualified immunity is not merely immunity from damages but also immunity from suit 3: holding that defendants are not entitled to qualified immunity 4: holding a local government sued under  1983 has no immunity even if its employee is entitled to qualified immunity and the court of appeals does not have jurisdiction over the local governments interlocutory appeal


Input: “[G]iven a widely-recognized looseness in usage of the language” regarding severance, the court held, “[u]se of the word ‘severed’ is insufficient, in itself, to establish a Rule 21 severance.” Id. at 625. Because it was not clear that the plaintiffs claims against the diversity-defeating party were not a part of the case, the court remanded the case to state court. See id. at 626. As Caldwell illustrates, “[federal district courts have ... held that a defendant does not carry the burden of establishing federal jurisdiction where jurisdiction is predicated on a state court order that merely states .that plaintiffs claims are to be ‘severed’ from claims against non-diverse defendants.” Grefer v. Travelers Ins. Co., No. Civ.A. 03-0253, 2003 WL 22717716, at *4 (E.D.La. Nov. 18, 2003.) (<HOLDING>). In Johnson v. Snapper Division of Fuqua Holdings: 0: holding that a statecourt order providing for severance and separate trials of claims against a diverse defendant and a nondiverse defendant did not permit removal of a plaintiffs claim against the diverse defendant where the claims had not been separately docketed in state court and the plaintiffs claim against the nondiverse defendant had been removed together with the claim against the diverse defendant 1: holding that because there was complete diversity when the action commenced diversity jurisdiction was not defeated by the addition of a nondiverse plaintiff which was not indispensable 2: holding that were the court to find fraudulent joinder as to a nondiverse defendant on the basis of evidence equally dispositive of the liability of that defendant and a nondiverse defendant a refusal later in the proceedings to give judgment for the diverse defendant on the same grounds in turn would require the court to revisit a ruling that the nondiverse defendant was fraudulently joined 3: holding that plaintiffs had not fraudulently joined nondiverse defendants where the plaintiffs claims were based on respondeat superior if no cause of action can be stated against the nondiverse defendants for their alleged torts no case exists against defendant new england for example if a statute of limitation has run on a claim against a nondiverse defendant it necessarily has run for new england accordingly the arguments offered by new england to prove fraudulent joinder simultaneously show that no case can be made against the diverse defendant 4: holding that diversity jurisdiction was not established by a statecourt order that provided only that the plaintiffs claims against a nondiverse defendant be and hereby are severed from this action


Input: In support of his argument, Mattingly relies solely upon a statement in Johnson that, generally, a taking involves "an actual interference with, or disturbance of property rights, which are not merely consequential, or incidental injuries to property or property rights...." Id. at 804 (quoting School Town of Andrews v. Heiney, 178 Ind. 1, 7, 98 N.E. 628, 630 (1912)). Johnson does not stand for the proposition that a taking occurs each time a party asserts its property rights. Johnson dealt with the creation of a regulated drain, and we held that the establishment of such worked no additional taking of property "save that incidentally required by the county to enter upon the land to repair and maintain the drain." Id.; see Bemis v. Guirl Drainage Co., 182 Ind. 36, 105 N.E. 496 (1914) (<HOLDING>). No unconstitutional taking occurred when the Holdings: 0: recognizing that reasonable time limitations may be placed on the exercise of constitutional rights 1: holding that a preexisting but nondisabling condition does not bar recovery of compensation if a jobrelated injury causes the condition to escalate to the level of disability 2: holding that warrantless search as probation condition was a valid limitation to the defendants fourth amendment rights when defendant asserted the condition was not reasonably related to rehabilitation 3: holding that practice which discourages exercise of fifth or sixth amendment rights by penalizing through enhanced sentencing the exercise of those rights is unconstitutional 4: holding that compensation need not be made as condition to exercise of drainage law rights