Input: declined to provide a breath sample. At some point during or after the booking process, appellant complained of chest and wrist pain, so the police called for an ambulance. The trial court found appellant guilty of DWI, and this appeal followed. Sufficiency of the Evidence In his sole issue, appellant argues that the evidence was legally insufficient to support his DWI conviction. A. Standard of Review When reviewing the sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Adames v. State, 353 S.W.3d 854, 859 (Tex.Crim.App.2011) (<HOLDING>). Our review of “all of the evidence” includes Holdings: 0: holding that jackson standard is only standard to use when determining sufficiency of evidence 1: holding that appellate court could not review the sufficiency of the evidence  based on a particular legal standard because that standard was not submitted to the jury and no party objected to the charge on this ground or requested that the jury be charged using this standard 2: holding that the standard of review for the sufficiency of the evidence is the same as the standard for denying a motion for a directed verdict 3: holding the applicable standard of review in addressing the sufficiency of the evidence is manifest error 4: holding that the standard of proof for dischargeability actions is the preponderance of the evidence standard


Input: or identified in the same manner as a specific chattel.” See, e.g., 9310 Third Ave. Assocs, Inc. v. Schaffer oney alleged to have been converted was contained in a segregated fund of some sort. See, e.g., Mfrs. Hanover Tr. Co. v. Chem. Bank, 160 A.D.2d 113, 559 N.Y.S.2d 704, 712 (1990) (“Money, specifically identifiable and segregated, can be the subject of a conversion action.”); see also Thys v. Fortis Sec. LLC, 74 A.D.3d 546, 903 N.Y.S.2d 368, 369 (2010) (“An action for conversion of money may be made out where there is a specific, identifiable fund and an obligation to return or otherwise treat in a particular manner the specific fund in question.” (emphasis added) (internal quotation marks and citation omitted)); Sperrazza v. Kail, 267 A.D.2d 692, 699 N.Y.S.2d 609, 610 (1999) (<HOLDING>); Bankers Tr. Co. v. Cerrato, Sweeney, Cohn, Holdings: 0: holding that contents of joint bank accounts which had been withdrawn in their entirety by one of cotenant without consent of the other eotenant were sufficiently identifiable to be the subject of a claim for conversion 1: holding that proceeds of a litigation settlement were an identifiable fund and thus a proper subject of a misappropriation and conversion claim 2: holding that contract debt  was not subject to an act in tort for conversion 3: holding in a class action derivative suit that the joint defense privilege cannot be waived without the consent of all the parties to the defense except in the situation where one of the joint defendants becomes an adverse party in a litigation 4: holding that bank accounts in husbands and wifes joint names were property in a tenancy by the entirety


Input: privacy in one’s bodily integrity. See Bell, 441 U.S. at 558, 99 S.Ct. 1861. This lesser degree of privacy would result from the needs of prison officials to check intimate areas of a prisoner’s body for weapons or drugs. See id. The theory underlying this principle is that once a person has been subject to such searches, one does not expect to retain such privacy. This logic breaks down when applied and extended to probationers who have not served time in this environment and have not experienced this repeated searching. See id. In addition, the logic is not applicable to a person released and no longer subject to such searches. The intrusion past one’s bodily surface implicates the most grave privacy rights. See Schmerber, 384 U.S. at 769-70, 86 S.Ct. 1826; Nicholas, 430 F.3d at 658 (<HOLDING>). In the context of a warrantless and Holdings: 0: holding that presumption of innocence and reasonable doubt standard are constitutionally required in criminal cases 1: recognizing the difference between the physical intrusion required to take a fingerprint and the intrusion required to draw a blood sample is  constitutionally significant 2: holding that resentencing is required 3: holding that more than notice to a defendant is required 4: recognizing difference between tolling and equitable estoppel


Input: principles of res judicata; however, the court cannot agree with Mclnnis that the § 522 Avoidance was conditioned upon the Debtors completing a Chapter 13 plan and receiving a discharge. As more fully explained infra, the Avoidance Order clearly establishes that these conditions only applied to the § 506 Avoidance; therefore, the Avoidance Order, as amended by this Order, remains effective and enforceable as to the § 522 Avoidance. DISCUSSION Amendment of Avoidance Order 15. Before addressing the issues presented in the Second Avoidance Motion and the Second Objection, the court will thoroughly analyze the Avoidance Order, because the implications of the Avoidance Order directly affect the res judicata defense presented by Mclnnis. At the 2016 H 326, at *3 (Bankr.D.N.J. Oct. 18, 2007) (<HOLDING>). Using its equitable powers authorized by 11 Holdings: 0: holding that bankruptcy courts have inherent power and authority under 11 usc  105a to sua sponte reconsider modify or vacate orders previously entered 1: holding a bankruptcy court is empowered to reopen a bankruptcy case on its own motion under 11 usc  105a 2: recognizing that bankruptcy rule 9024 provides authority for the court to revoke a discharge 3: holding that bankruptcy courts have independent authority pursuant to 11 usc  105 and rule 9024 of the federal rules of bankruptcy procedure to reconsider sua sponte their own orders at any time 4: holding that  105 allows sua sponte transfer under rule 1014a2


Input: long been recognized “to possess independent vitality, separate and apart from the guarantees provided by the United States Constitution.” City of Sherman, 928 S.W.2d at 473; In the Interest of J.W.T., 872 S.W.2d 189, 197 (Tex.1994); LeCroy, 713 S.W.2d at 339. Thus, it is no surprise that the Texas Supreme Court concluded long ago that article I, section 16 of the Texas Constitution gives additional protection against retroactive lawmaking — in the form of an express bar on the passage of any “retroactive law” — not found in the U.S. Constitution. See Mellinger, 3 S.W. at 252. In the face of this express constitutional prohibition, little if any presumption of constitutionality remains. See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938) (<HOLDING>). In shielding individual rights from the Holdings: 0: recognizing presumption 1: holding that state appropriation to ports authority violated constitutional prohibition against state debt and other constitutional provisions 2: recognizing constitutional right to be present when sentence is imposed 3: recognizing a presumption against retroactive legislation 4: recognizing that scope of constitutional presumption is much narrower when legislation appears on its face to fall within express constitutional prohibition


Input: States criminal justice system. See Laurie L. Levenson, Peeking Behind the Plea Bargaining Process: Missouri v. Frye & Lafler v. Cooper, 46 Loy. L.A. L.Rev. 457, 468 (2013); Albert W. Alschuler, Plea Bargaining and Its History, 79 Colum. L.Rev. 1, 1 (1979). These concessions may relate to the sentence imposed by the court or recommended by the’ prosecutor, the offense charged, or a variety of other circumstances; they may be explicit or implicit; and they may proceed from any of a number of officials. The benefit offered by the defendant, however, is always the same: entry of a plea of guilty. Alschuler, supra at 3-4. A. History 1, Inflpence of English Practices The practice dates to medieval times. See North Carolina v. Alford, 400 U.S. 25, 35 n. 8, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (<HOLDING>). In Alford, the Supreme Court explained: The Holdings: 0: holding criminal defendant does not have constitutional right to have guilty plea accepted by court 1: holding jeopardy attaches when the guilty plea is accepted 2: holding that the defendant was entitled to have his plea accepted absent a sound reason for rejecting the plea 3: holding that a criminal defendant must provide a fair and just reason to support withdrawal of his guilty plea even when that plea has not yet been accepted by the district court 4: holding that a defendant may withdraw a guilty plea as a matter of right before it is accepted by the court based on ndr crim p 32d3 which states that a defendant may not withdraw his plea of guilty as a matter of right once the plea has been accepted by the court  alteration in original


Input: failure to respond to the court’s inquiry is not the only instance of abandonment. His counsel filed documents with the court just two days after Smart filed his request. This included an “Exhibit List” and “Defendant’s Witness List.” Additionally, Islas represented to the court that he was acting as Smart’s attorney. Cf. Brown, 665 F.2d at 612 (“The general rule is that a court may accept counsel’s representations and the defendant is bound thereby, except upon a showing of counsel’s bad faith or gross negligence.”). Though silence alone does not constitute waiver, silence in the face of contradictory intent to be represented by counsel generally indicates abandonment of the request to proceed pro se. See id. at 611-12; see also United States v. Long, 597 F.3d 720, 728 (5th Cir.2010) (<HOLDING>); United States v. Montgomery, 529 F.2d 1404, Holdings: 0: holding petitioner cannot claim he was denied right to assistance of counsel when he knowingly and voluntarily decided to represent himself 1: holding that it was error for the trial judge to answer a jurys question without giving defendants counsel an opportunity to be heard before the trial judge responded 2: holding that a defendant in a state criminal trial has an independent constitutional right of selfrepresentation and that he may proceed to represent himself without counsel when he voluntarily and intelligently elects to do so 3: holding that the district court did not err in continuing the trial without defendant when the trial had commenced in defendants presence he vigorously expressed his desire to be absent he was given ample opportunity to change his mind despite the disturbance he had created he had competent counsel and he knew of his right to be present 4: holding that defendant waived his right to selfrepresentation where he told the trial judge before trial that he did not want to represent himself and the public defender acted as counsel for the remainder of trial without objection


Input: of the contract, and (3) damages. See AIB Mortgage Co. v. Sweeney, 687 So.2d 68, 69 (Fla. 3rd Dist.Ct.App.1997). Moreover, Florida law provides that “[a] contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract.” Fla. Stat. § 672.204(1) (adopting U.C.C. 2-204). This statute includes “shrinkwrap contracts” like the one at issue, where an agreement becomes effective as soon as a customer opens the product. Tracfone Wireless, Inc. v. Access Telecom, Inc., 642 F.Supp.2d 1354, 1364 (S.D.Fla.2009). In “Florida and the federal circuits, shrinkwrap agreements are valid and enforceable contracts.” Salco Distribs., LLC v. iCode, Inc., 2006 WL 449156 at *2 n. 5 (M.D.Fla. Feb. 22, 2006) (<HOLDING>) (quoting ProCD, Inc. v. Zeidenberg, 86 F.3d Holdings: 0: holding that performance may be valid acceptance 1: holding that a valid contract requires acceptance of an offer 2: holding purchaser of software product was bound by terms of shrinkwrap agreement upon opening the packaging of the product reasoning that a vendor as master of the offer may invite acceptance by conduct and may propose limitations on the kind of conduct that constitutes acceptance a buyer may accept by performing the acts the vendor proposes to treat as acceptance 3: holding that complete performance of contract constituted acceptance 4: holding that absence of judicial opinions demonstrating acceptance by other courts of particular type of scientific technique should not by itself foreclose finding of general scientific acceptance and reliability


Input: disabled to the extent he would not be able to function in prison or in the population upon release without control of his delusional disorder.” Citing United States v. McAllister, 969 F.Supp. 1200, 1207-08 (D.Minn.1997), Green argues that “[i]f the ‘gravely disabled’ language in the [Policy] were not read to require a showing of dangerousness within the institution, the [Policy] would be unconstitutional under the Due Process Clause.” True, Harper's specific holding is that Due Process allows an inmate to be treated “if [he] is dangerous to himself or others” and (2) when “the treatment is in the inmate’s medical interest.” Harper, 494 U.S. at 227, 110 S.Ct. 1028. The Harper opinion does not make these criteria the only basis for involuntary medication. See id. at 227, 110 S.Ct. 1028 (<HOLDING>). The Supreme Court has explained that an Holdings: 0: holding that the due process clause permits the state to involuntarily treat a prison inmate who is seriously mentally ill if the inmate is dangerous to himself or others and the treatment is in the inmates medical interest 1: holding that inmate has a liberty interest under the due process clause to refuse the involuntary administration of psychotropic drugs 2: holding that the due process clause permits the state to treat a prison inmate  with antipsychotic drugs against his will under certain circumstances while not limiting treatment to those circumstances 3: holding that prisoners possess a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the due process clause of the fourteenth amendment and identifying procedures which comported with due process 4: holding that the due process clause permits the state to treat a prison inmate who has a serious mental illness with antipsychotic drugs against his will if the inmate is dangerous to himself or others and the treatment is in the inmates medical interest


Input: potential impact upon interstate commerce,” was sufficient. Finally, Malkus contends that Instructions 49 and 50 are contradictory in that one allowed the jury to consider “sworn testimony, exhibits and stipulated facts,” whereas the other told the jury it could consider “only the testimony and exhibits received into evidence.” As stipulated facts are in fact received into evidence, I cannot see how the jury could have been confused. In any event, the court also described matters that “are not evidence” and that “may not be considered in deciding what the facts are.” Stipulated facts were not among them. For these reasons, I would affirm across the board. 1 . We review the question whether there was a material variance or constructive amendment de novo. See United State (11th Cir.1991) (<HOLDING>). 4 .As the Second Circuit has explained, So Holdings: 0: 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 1: holding that the notion of enterprise conspiracy has largely rendered the old distinction between single conspiracy and multiple conspiracy irrelevant to rico conspiracy charges 2: holding that in a conspiracy case venue lies where the conspiracy agreement was formed or in any jurisdiction where an overt act in furtherance of the conspiracy was committed by any of the conspirators 3: holding that two conspiracies existed where the members of the second conspiracy did not know about the first conspiracy did not benefit from the first conspiracy and were connected with the first conspiracy only through a middleman 4: holding that a master conspiracy with subschemes to sell speed was a single conspiracy


Input: of status because he “lacked both an approved visa petition and an approved labor certification.” (Oct. 8, 2004 BIA Op. at 1.) The BIA found that the IJ did not err in denying the continuance request, and that in light of his failure to establish eligibility for adjustment of status, Faustino did not demonstrate any prejudice that would constitute a due process violation. The instant petition followed. II. Standard of Review We have jurisdiction to review final orders of the BIA under 8 U.S.C. § 1252(b)(2). Ponce-Leiva v. Ashcroft, 331 F.3d 369, 371 (3d Cir.2003). We review the BIA’s affirmance of the IJ’s denial of a continuance request for abuse of discretion. Id. at 377. Under an abuse of discretion standard, the BIA’s decision should only be reversed if it is arbitrary, .1990) (<HOLDING>). Therefore, the BIA did not abuse its Holdings: 0: holding no abuse of discretion where ij denied aliens request for continuance because alien had no immigrant visa available and it was unlikely attorney general would exercise discretion to permit excludable alien to stay 1: holding that the ij did not abuse his discretion in denying request for further continuance where the ij granted previous request 2: holding denial of continuance to be an abuse of discretion 3: holding failure to exercise discretion is abuse of discretion 4: holding that there was no abuse of discretion in allowing a defendants surprise fact witness to testify because the plaintiff did not request a continuance


Input: were short, making minimization difficult. Finally, as the district court noted, Judge Parker received reports on the investigation every ten days, in which he was informed that the government was intercepting communications involving Brown, Sanders, and Weems, among others. In fact, the very first of these reports listed Brown and Judge Sanders as people whose calls the government had intercepted. In light of these factors, the district court did not clearly err in finding that the government’s interception of the Cascade-related calls was objectively reasonable. Therefore, we affirm the district court’s denial of Brown’s motion to suppress the fruits of the wiretap. VIII. For the reasons stated above, Brown’s convictions on all counts are hereby A 1, 1015 (5th Cir.1990). 22 . See id. (<HOLDING>). 23 . See Kimbrough, 69F.3dat731. 24 . 18 Holdings: 0: holding that because the defendants offer of proof failed to show that the affiant was untruthful the district court did not abuse its discretion in refusing to order disclosure of the informant 1: holding that the district court did not abuse its discretion in refusing to order production of government files under rule 16a1c 2: holding that district court did not abuse discretion in not binding government to casual statements made by its attorney 3: holding that a district court did not abuse its discretion in refusing to give a mere inspection instruction in a firearm possession case 4: holding that district court did not abuse its discretion in refusing to certify class action when claims were so individualized that certification was improper


Input: notice has been provided to the interested parties. Tex.R.Civ.P. 316; see Jenkins v. Jenkins, 16 S.W.3d 473, 476 (Tex.App.-El Paso 2000, no pet.). Rule 329b(h) provides that “[i]f a judgment is modified, corrected or reformed in any respect ” the appellate timetable runs from the date of the new judgment. Tex.R.Civ.P. 329b(h)(emphasis added); Lane Bank Equipment Co., 10 S.W.3d at 313. Any change to a judgment made by the trial court while it retains plenary jurisdiction will restart the appellate timetable under Rule 329b(h). Lane Bank, 10 S.W.3d at 313. Since Appellants timely filed a motion for new trial seeking a substantive change in the judgment, the court signed the judgment nunc pro tunc during the court’s plenary power. See Tex.R.Civ.P. 329b(e); Lane Bank, 10 S.W.3d at 313 (<HOLDING>). The correction of the clerical error during Holdings: 0: holding that a timely filed motion for sanctions which specifically requested modification of judgment extended trial courts plenary power 1: holding that any change to a judgment made by the trial court while it retains plenary jurisdiction will restart the appellate timetable but only a motion seeking a substantive change will extend the appellate deadlines and the trial courts plenary power 2: recognizing plenary power of district court to alter interlocutory orders 3: holding that appellate timetable is extended by filing postjudgment motion or other instrument that is 1 timely filed and 2 assails the trial courts judgment 4: holding that a nonpartys motion for new trial and petition for intervention filed after the trial court signed a final judgment did not extend the courts plenary jurisdiction


Input: was that he was homeless. See ORS 151.505(3) (“The court may not require a person to pay costs under this section unless the person is or may be able to pay the costs.”); ORS 161.665(4) (“The court may not sentence a defendant to pay costs under this section unless the defendant is or may be able to pay them.”). Defendant urges us to review and correct the error as “an error of law apparent on the record.” ORAP 5.45(1); Ailes v. Portland Meadows, Inc., 312 Or 376, 381-82, 823 P2d 956 (1991). The state concedes that the trial court committed plain error when it imposed court-appointed attorney fees. We accept the state’s concession that the trial court plainly erred in imposing attorney fees of $416 on this record. See State v. Coverstone, 260 Or App 714, 716, 320 P3d 670 (2014) (<HOLDING>). Further, we conclude that, for reasons Holdings: 0: holding that it is plain error for a trial court to require a defendant to pay courtappointed attorney fees in the absence of legally sufficient evidence that defendant has the ability to pay the amount imposed 1: holding that a trial court commits plain error by imposing courtappointed attorney fees where the record is silent as to the defendants ability to pay the fees ordered 2: holding that a trial court cannot decide the issue of attorneys fees without findings as to one spouses ability to pay and the others need 3: holding because an award of attorney fees is discretionary court may consider attorney fees in relation to the underlying equities in the case 4: holding that trial court properly assessed mothers attorneys fees as necessaries against father in case in which trial court ordered father to pay mothers attorneys fees as child support but did not state that the fees were necessaries


Input: meaning of the Fourth Amendment. The majority concluded that the agency had conducted a search, and because the intrusion occurred in the absence of a valid warrant, it was a violation of Fourth Amendment prohibitions against unreasonable searches and seizures. In his concurrence, Justice Alito proposed that, as opposed to short-term monitoring, long-term GPS monitoring and cataloguing of a vehicle’s every movement impinged upon society’s expectation of privacy. Id. at _, 181 L. Ed. 2d at 934 (Alito, J., concurrence). We note that as to the application of the Fourth Amendment in the context of SBM, our Court has declared United States v. Jones to be inapposite. See State v. Jones, _ N.C. App. _, _, 750 S.E.2d 883, 886 (2013) (citing State v. Martin, _ N.C. App. _, 735 S.E.2d 238 (2012) (<HOLDING>)). We also note that in United States v. Jones, Holdings: 0: holding that the fourth amendment proscription against unreasonable searches and seizures was applicable to the states under the fourteenth amendment so that evidence seized in violation of the constitution could no longer be used in state courts 1: holding that the fourth amendment right implicated in a malicious prosecution action is the right to be free of unreasonable seizure of the person 2: holding sbm is not a violation of the defendants fourth amendment right to be free from unreasonable searches and seizures 3: holding parolees right to be free from unreasonable searches and seizures was unaffected by his signing of the consent to search provision 4: holding that forfeiture statute is subject to the fourth amendments prohibitions against unreasonable searches and seizures


Input: the holding in Waugh); Lichter v. Internal Revenue Serv. (In re Lichter), 1999 Bankr.Lexis 1904, *12 (Bankr.D.Md. 1999) (“This court agrees with the majority conclusion as expressed in Waugh.”). See, e.g., In re Steinhaus, 349 B.R. 694, 705 (Bankr.D.Idaho 2006)(“This [c]ourt agrees with [In re] Rowe[, 342 B.R. 341 (Bankr. D.Kan.2006)] that the phrase ‘allowed claim’ in § 521(a)(6) is one of those ‘rare cases.’ There is no logical reason why Congress would differentiate between creditors in asset cases and those in no asset cases, allowing the former but not the latter relief if debtor use a ‘ride through.’ And the Court is unaware of Congress ever articulating any such distinction.”) (internal citation omitted); In re Fibrex, Inc., 270 B.R. 714, 717-18 (Bankr. S.D.Ind.2001) (<HOLDING>); Woloshin, Tenenbaum and Natalie, P.A. v. Holdings: 0: holding that the court had no authority to order the payment of interim compensation to professionals without the chapter 9 debtors consent because  331 which governs interim payments to professionals is not incorporated into chapter 9 1: holding that licensor was entitled to administrative expense priority claim where debtor remained in possession postpetition of real property under a license agreement 2: holding that the estimation provision in 11 usc  502 which governs prepetition claims does not apply to 11 usc  503 which governs administrative claims 3: holding that interest on postpetition taxes incurred by the debtor during chapter 11 reorganization is an administrative expense 4: holding that the legislative intent of 11 usc  503b3f does not permit the court to grant administrative expense priority for compensation paid to professionals hired by the committee without the courts approval


Input: state habeas court’s findings of fact were objectively unreasonable. We assume arguendo, that the district court concluded, for the six reasons it gave, that they were not objectively reasonable. 6 . See, e.g., Patton v. Yount, 467 U.S. 1025, 1038, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984) (reasoning that trial court determinations of credibility and demeanor, which are entitled to "special deference” on direct review, deserve "no less” respect in habeas proceedings). 7 .. The state contends that Broolcs "was unlawful insofar as it departed from [Andrews v. Collins, 21 F.3d 612, 620 (5th Cir.1994)], which held that '[t]he Supreme C nd therefore nonprecedential, see 5th Cir. R. 47.5, their reasoning is persuasive. 9 . See Rivas v. Thaler, 432 Fed.Appx. 395, 404 (5th Cir.2011) (per curiam) (<HOLDING>). Again, Rivas is not precedential but is Holdings: 0: holding that district courts decision that trial counsels failure to object to crawford material was based on a reasonable trial strategy and did not constitute deficient performance under washingtons  first prong was not debatable 1: holding that counsel could have reasonably determined that the trial court would not sustain a rule 403 objection therefore counsels failure to object to this evidence was not deficient performance 2: holding counsels failure to object to victim impact testimony and evidence was not ineffective assistance of counsel when the trial record was silent as to counsels strategy 3: holding that counsels failure to object or request a limiting instruction for evidence of defendants incarceration was sound trial strategy 4: holding that failure to object to properly admitted evidence was not deficient performance by trial counsel


Input: identification of Elliott as the perpetrator by having her concede that she told police that she could not give a positive identification of Elliott for various reasons including that she was unsure, had a bad memory, and did not look at Elliott’s face. N.T., Oct. 26, 1994, at 90-99. Thus, Elliott brings to light no evidence that trial counsel would have been able to offer had he further investigated the prior bad acts relating to Ber-son, Gogos, or Cardinal, which would have altered the outcome of his trial. Finding no prejudice arising from trial counsel’s alleged failure to investigate the prior bad act witnesses, we conclude that appellate counsel cannot be deemed ineffective for failing to pursue such issue. See Commonwealth v. Jones, 590 Pa. 202, 912 A.2d 268, 278 (2006) (<HOLDING>). Accordingly, Elliott was properly denied Holdings: 0: holding that where trial counsel was not ineffective appellate counsel was not ineffective for failing to raise claim of ineffectiveness of trial counsel 1: holding that an attorney is not ineffective for failing to make a meritless objection 2: holding trial counsel was not ineffective for failing to pursue a meritless issue 3: holding that counsel cannot be deemed ineffective for failing to raise a meritless claim 4: holding that counsel cannot be deemed ineffective for failure to present cumulative evidence


Input: a certain period of time. Id. at 532. Our Supreme Court held “that when changing a group policy insuring contributing employees and obtaining the applications of those employees, the employer acts as an agent of the employees [cits.], and as such is under a duty to notify the employees of differences between the old and new policies and of any rights the employees may have to continue the old insurance on an individual basis. We hold further that where this duty is breached, an employee can recover such damages as result from the difference in coverage.” Id. at 535-536. Although this case is somewhat factually different from Dawes Mining, the same analysis of duty and breach are applicable in this case. When an employee makes application for group health insurance coverage and ) (1981) (<HOLDING>). In reaching our decision we are mindful that Holdings: 0: holding the employer breached the duty owed to its employee by erroneously advising the employee he would continue to have coverage for 30 days following his termination of employment under the employers group policy 1: holding that employer breached fiduciary duty to disclose that it was considering allowing employees to participate in benefit plan 2: holding that the employer created an erisa plan when it 1 paid for the employees insurance 2 contracted with the insurance company for coverage and eligibility requirements and 3 collected and remitted the employees dependents premiums 3: holding that the employer breached a duty to its employees by allowing their insurance coverage to lapse without giving them reasonable notification of the lapse 4: holding the plain terms of the mortgage did not demonstrate any contractual duty on the mortgagee to procure coverage on plaintiffs property or to notify plaintiff of lapse in coverage


Input: be set aside only when liability is truly joint — that is, when the theory of recovery requires that all defendants be found liable if any one of them is liable — and when the relief sought can only be effective if judgment is granted against all.”). Cole v. Erwin, _ N.C. App. _, 729 S.E.2d 128, 2012 WL 2895265, *6 (2012) (unpublished opinion). The United States Bankruptcy Court from the Middle District of North Carolina has embraced applying the Frow principle when allowing default judgment against one defendant would be logically inconsistent with the outcome for similarly sit uated non-defaulting defendants. In re Moss, 03-12672C-7G, 04-2004, 2005 WL 1288134 (Bankr. M.D.N.C. May 16, 2005) (‘‘Gulf Coast Fans, Inc. v. Midwest Elecs. Imps., Inc., 740 F.2d 1499, 1512 (11th Cir.1984) (<HOLDING>). Cf. Westinghouse Elec. Corp. v. Rio Algom Holdings: 0: holding that the issue of defendants actual knowledge should not be resolved on summary judgment but should be left to the trier of fact 1: holding that the notice of appeal filed after the district court entered judgment as to one defendant but before the court dismissed the claims against the other defendants would have become effective when those defendants were later dismissed 2: holding that a dismissal on limitations grounds is a judgment on the merits 3: holding that the principle that when defendants are similarly situated but not jointly liable judgment should not be entered against a defaulting defendant if the other defendant prevails on the merits is sound policy 4: holding that summary judgment should not be granted when depositions are pending unless protective order is sought or entered


Input: a record cannot qualify as a business record if it was prepared for purposes of litigation. See, e.g., United States v. Feliz, 467 F.3d 227, 234 (2d Cir.2006). But where a document is created primarily for the government to use it as a substitute for live testimony in a criminal prosecution, the fact that the document might happen to fall within the jurisdiction’s business records exception to the hearsay rule does not render the document non-testimonial. Accordingly, because DEA chemist’s reports are created expressly for use in criminal prosecutions as a substitute for live testimony against the accused, such reports are testimonial, whether or not they happen to meet this jurisdiction’s definition of a business record. See State v. Caulfield, 722 N.W.2d 304, 309-10 (Minn.2006) (<HOLDING>). ' Citing Howard, 473 A.2d at 839, the Holdings: 0: holding that bureau of criminal apprehension bca laboratory report identifying a substance as cocaine was testimonial and implicated defendants right to confrontation 1: holding that state bureau of criminal apprehension laboratory report offered at trial to prove that substance seized from defendant was cocaine was clearly prepared for litigation and was testimonial 2: holding forensic laboratory experts statement that substance was cocaine is testimonial for sixth amendment confrontation clause purposes 3: holding that fdle lab report reflecting that substances possessed by defendant were marijuana and cocaine was testimonial as such document was accusatory was prepared by law enforcement pursuant to a police investigation and was admitted to establish an element of the crime 4: recognizing that evidence regarding the high price the defendant had paid for the substance in question was relevant to show the substance was cocaine


Input: original intended purpose requirement. Indeed, two of the words, “repair” and “refurbish,” lend themselves most naturally to an interpretation that an item will retain its originally intended purpose. See, e.g., Webster’s Third New International Dictionary 1923 (2002) (defining “repair” as “to restore by replacing a part or putting together what is torn or broken” (emphasis added)); id. at 1910 (defining “refurbish” as “to make as if new”); see also In re Mallo, 774 F.3d 1313, 1321 (10th Cir.2014) (recognizing that we interpret words using their ordinary and common meanings). And there is nothing about any of the other three words, “resold,” “donated,” and “reused,” that excludes an original intended purpose requirement. See, e.g., Webster’s at 672 (defining “donate” as “to make 05) (<HOLDING>). But see Tebbetts v. Whitson, 956 P.2d 639, Holdings: 0: holding that a superior court can adjudicate a child as a child in need of aid based on the acts of just one parent 1: holding a fetus is not a child person or individual for purposes of criminal prosecution under the reckless injury to a child statute 2: holding that an outofwedlock childs pending claim for retroactive child support was nondischargeable in bankruptcy because a debt for child support arises upon the birth of the child and that the fact that no court had yet ordered the debtor to support the child does not take the debt outside the scope of 11 usc  523a5 3: holding that statute defining prostitution of a child as inducing a child to perform sex acts through the use of coercion threat or intimidation or in exchange for money can reasonably be construed in two different ways one which does not require a commercial transaction and one that does and turning to the legislative history for guidance 4: holding an unborn child is not a child for purposes of criminal prosecution of mistreatment of a child


Input: sufficient to render it liable to suit. Id. at 1385. We rejected this argument, instead defining maintain as "keeping a constructed edifice, structure, or improvement in the same general state of being, repair, or efficiency as initially constructed." Id. at 1886. A failure to maintain a roadway therefore, "is not a failure to keep a roadway in existence, but a failure to. restore a roadway to the state in which it was originally constructed." Id. In explaining our construction of the statute, we recognized that in 1992, to clarify the meaning of maintenance, the General Assembly added the following language to the definition of "dangerous condition": "Maintenanée does not include any duty to upgrade, modernize, modify, or improve the design or construction of a facility." Id. at 1885 (<HOLDING>) (quoting ch. 172, see. 1, § 24-10-1038, 1992 Holdings: 0: holding the word individuals is not the equivalent of the dictionary acts use of the word persons 1: holding that the word interest is to be understood in its ordinary senseto hold that congress intended to use the word in the sense of a penalty is contrary to all rules of interpretation and invokes a special definition of the word interest that is unwarranted citations omitted 2: holding that the most common definition of a word does not preclude other accepted alternatives 3: holding that purpose of the amendment was to clarify the definition of the word maintain 4: holding that the word void is not sufficient


Input: at *5 (Tex.App.-El Paso Dec.21, 2000, no pet.) (not designated for publication) (concluding based on Jenkins that "possession” refers only to statements in the prosecutor’s possession). 9 . Brooks v. State, 901 S.W.2d 742, 746 (Tex.App.-Fort Worth 1995, pet. ref’d & pet. dism’d). 10 . Williams v. State, 940 S.W.2d 802, 805 (Tex.App.-Fort Worth 1997, pet. ref’d); Jordan v. State, 897 S.W.2d 909, 918 (Tex.App.Fort Worth 1995, no pet.). 11 . Additionally, the trial court found that the recorded statements were made contemporaneously with the written statements and speculated that they were probably more detailed than the written statements. No one disputed the trial court’s recitation of the facts. 12 . See Amunson v. State, 928 S.W.2d 601, 608 (Tex.App.-San Antonio 1996, pet. ref'd) (<HOLDING>); see also Olivas, 2000 WL 1867971, at *5 Holdings: 0: holding that the defendants prior conviction referenced in his presentence report could be taken as admitted because he had made no objection to the facts in his report 1: holding that rule was not violated where officer stated he made a report but was unable to find it because there was no report to tender to counsel 2: holding that it was a deprivation of due process to find that a probationer had violated probation by failing to immediately report that he had received a traffic citation where such reporting was not required as a term of the probation 3: holding that it was error for the trial court to refuse to permit plaintiff to amend his complaint to include a new affidavit and report complying with section 2622 where there was no indication that the plaintiffs failure to file the report earlier in the litigation was in bad faith 4: holding no jurisdiction where appellant argued report was no report because it failed to mention appellant in any substantive way but trial court found report was merely deficient on element of causation as to appellant and granted extension


Input: that the summonses were issued as part of a criminal investigation against plaintiff, and Manzur’s declaration confirms this. See Compl. ¶ 4; Manzur Decl. ¶¶ 3-5. Therefore, defendants were not required to provide advance notice of the summonses to plaintiff under § 7602(c). In short, assuming arguendo that the Court could consider the merits of Counts One, Two, and Three, defendants would be entitled to summary judgment on those claims. III. Right to Financial Privacy Act Defendants move to dismiss plaintiffs separate claim under the Right to Financial Privacy Act (Count Four) on the ground that IRS summonses are exempted from its provisions. Defs.’ Mem. at 3. Defendants rely on 12 U.S.C. § 3413(c), which provides that “[n]othing in this chapter prohibits the 1 (D.Md.2007) (<HOLDING>), aff'd, 275 Fed.Appx. 221 (4th Cir.2008) (per Holdings: 0: holding this with respect to the defenses in 29 usc  623f 1: recognizing the importance of a determination on the merits with respect to the issuance of a permanent injunction 2: holding that the irs was not required to provide a certificate of compliance with the rfpa under 12 usc  3403b with respect to issuance of summonses based on the exclusion set forth at 12 usc  3413c 3: holding that because exclusion was not provided to certificate holder terms of the certificate controlled 4: holding that strict compliance with the 30180day time limit set forth in krs 4392651 is required


Input: the palm trees were at, and the water was dirty”; and picking up a water bottle as he was walking with Agent Hunter. Despite Alcantara’s detailed recollection of the former events, Alcantara did not remember traveling through a rugged and mountainous area into the United States, any statement to Agent Hunter about his entry into the United States, or even Agent Hunter’s trial testimony from the day before until finally answering the district court in denying Alcantara’s request for a curative instruction, as the district court properly held that the jury had been fully instructed concerning the credibility of government witnesses, and its prompt instruction to disregard the isolated comment sufficiently remedied any error. See United States v. Dorsey, 677 F.3d 944, 955 (9th Cir.2012) (<HOLDING>) (citation omitted); see also United States v. Holdings: 0: holding that a district court can cure the effect of an improper prosecutorial comment with a jury instruction 1: holding that instruction to disregard cured error from prosecutors improper comment during voir dire 2: holding that defendant suffered no prejudice from allegedly improper comment on defendants refusal to testify 3: holding that it is improper to ask a witness to comment on the credibility of another witness 4: holding that the district courts swift response instructing the jury to disregard the improper comment prevented  the improper comment from materially affecting the verdict


Input: student’s education, “including] the conduct and development of evaluations, eligibility determinations, IEPs, and educational placement.” Michael C. ex rel Stephen C. v. Radnor Twp. Sch. Dist., 202 F.3d 642, 654 (3d Cir.2000). No such proceeding concerning E.M.’s education has been initiated. Although the Majority devotes pages to discussing whether this case is a “proceeding” under § 1415, the proper inquiry is whether there exists a separate pending § 1415 proceeding, such as a due process complaint or an appeal of a ruling on such a complaint. Because “stay put” operates only “Muring the pendency” of such a proceeding, and no such proceeding has been initiated, § 1415’s “stay put” provision simply does not apply. See Moss by Mutakabbir v. Smith, 794 F.Supp. 11, 14 (D.D.C.1992) (<HOLDING>). Moreover, as the Majority acknowledges, there Holdings: 0: holding that the stay put provision establishes a strong preference but not a statutory duty for maintenance of the status quo 1: holding that a federal action to enforce the stay put provision is not itself a pending proceeding under  1415 that triggers stay put 2: holding that insurance guarantee association stay statute did not suspend limitation period because action was not pending when stay was entered 3: holding that the automatic stay did not bar the filing of a proof of claim where the debtor actively litigated a separate action during the pending bankruptcy proceeding because to permit the automatic stay provision to be used as a trump card played after an unfavorable result was reached  would be inconsistent with the underlying purpose of the automatic stay 4: holding that use of the preliminary injunction equitable factors would dilute the statutory framework under the stay put provision


Input: 227, 231-32 (S.D.N.Y.2001). However, the prospective class members were not denied benefits; they received benefits that they later discovered were miscalculated with resulting underpayment. The relevant date for fixing the accrual of such a claim is when a plaintiff was put on notice that the defendants believed the method used to calculate his disability pension was correct. Thus, the claim does not begin to run until a prospective class member inquires about the calculation of his benefits and the Plan rejects his claim that the benefits were miscalculated. See e.g., Davis v. NMU Pension & Welfare Plan, 810 F.Supp. 532, 536 (S.D.N.Y.1992); Kiefer v. Ceridian Corp., 976 F.Supp. 829, 842-43 (D.Minn. 1997); Cotter v. E. Conf. of Teamsters Ret. Plan, 898 F.2d 424, 429 (4th Cir.1990) (<HOLDING>). Contrary to plaintiffs argument, it is Holdings: 0: holding that where oral loan was silent as to the time of repayment the statute of limitations began to run at the time the contract was made 1: holding that the statute of limitations for a miscalculation of benefits claim began to run at the time at which some event other than a denial of a claim should have alerted the claimant to his entitlement to the benefits he did not receive 2: holding that a plaintiff in an erisa denial of benefits case bears the burden of proving her entitlement to contractual benefits 3: holding that although the defendantattorney did not disclose to the plaintiff his failure to file a claim in a timely manner the limitations period on the legal malpractice claim began to run when the plaintiff could reasonably discern that he suffered some harm caused by the defendants conduct 4: holding that the consideration of the fact that claimant collected unemployment benefits while he was allegedly disabled was not a ground for reversal where there was other medical and vocational evidence supporting denial of benefits and claimants receipt of unemployment benefits was not decisive factor in denial of benefits


Input: 289, 292 (D.D.C.2000); Arakelian v. National Western Life Ins. Co., 126 F.R.D. 1, 2 (D.D.C.1989). Such a finding is proper when “ ‘on the entire evidence’ the court ‘is left with the definite and firm conviction that a mistake has been committed.’” Neuder, 194 F.R.D. at 292 (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 365, 68 S.Ct. 525, 92 L.Ed. 746 (1948)); see also Arakeli-an, 126 F.R.D. at 2. I. Protective Order Rule 36 of the Federal Rules of Civil Procedure permits a party to “serve upon any other party a written request for the admission ... of any m have treated requests for admissions as being subject to discovery cutoff dates. See Coram Health Care Corp. of Ill. v. MCI Worldcom Communications, Inc., No. 01 C 1096, 2001 WL 1467681, at *3 (N.D.Ill. Nov. 15, 2001) (<HOLDING>); Revlon Consumer Prods. Corp., 2001 WL 521832, Holdings: 0: holding that the states rule dates the beginning of the discovery period only from the filing of the answer 1: holding that requests for admissions are subject to discovery cutoff dates 2: holding that plaintiff need not have submitted requests for admissions by the august 15 discovery motion cutoff date or by the discovery cutoff date of september 15 because requests for admissions are distinct from other general discovery devices and are not subject to discovery cutoff dates 3: holding that a discovery exception to a statute of limitation applies only to the discovery of facts not discovery of the law 4: holding that a request for admission is a tool of discovery subject to discovery cutoff dates


Input: a basis for calculating lost profits, reversal is not required where the trial court properly charged the jury that lost earnings were recoverable ‘where the evidence shows with reasonable certainty the amount of the loss’ ” (citation omitted)); Pouts, 222 Ga. App. at 577 (4) (noting the distinction between lost profits and lost earnings, and holding that the evidence presented at trial supported a claim for lost earnings); Quiktrip Corp. v. Childs, 220 Ga. App. 463, 467 (5) (469 SE2d 763) (1996) (“Lost wages and earnings are recoverable where the evidence shows the amount of the loss with reasonable certainty and the evidence permits the jury to determine the amount of the loss without speculation or guesswork.”); Beal v. Braunecher, 185 Ga. App. 429, 433-34 (5) (364 SE2d 308) (1987) (<HOLDING>); id. at 435 (noting the “substantial Holdings: 0: holding that trial court did not commit reversible error when it submitted admissibility of evidence question to jury because the trial court had independently decided the question 1: holding that trial court did not commit reversible error in charging jury that reasonable certainty was the proper standard for establishing the value of plaintiffs lost earnings and that some evidence was all that was required in this matter 2: holding that it was reversible error for district court to charge jury that plaintiffs were required in reduction of force case to show that they were clearly better qualified than the employees retained 3: holding that a district court did not commit reversible error because it attached great weight to one factor 4: holding that reversible error was committed when the court could not determine that the instruction given by the trial justice was sufficient to remove the taint of the statement and such doubt was to be resolved in favor of the defendant


Input: is therefore available in more than just the two circumstances described in Irwin and Bailey. See Nunnally v. MacCausland, 996 F.2d 1, 5 n. 7 (1st Cir.1993) (“A fair reading of Irwin, however, shows that the Court did not undertake an exhaustive list of factors that may be considered in the equitable weighing process.”). In addition to the guidance provided by the Supreme Court, several circuits have allowed equitable tolling based on mental illness. The First Circuit has established that mental incapacity is a suitable basis upon which to equitably toll a statute of limitations. See Meléndez-Arroyo v. Cutler-Hammer de P.R., Co., 273 F.3d 30, 39 (1st Cir.2001) (remanding for factual inquiry into whether plaintiffs mental state warranted equitable tolling); Nunnally, 996 F.2d at 5 (<HOLDING>); Oropallo v. United States, 994 F.2d 25, 28 n. Holdings: 0: holding that mental incapacity is an extraordinary circumstance that may warrant equitable tolling 1: recognizing that  2244dlds statute of limitations can be tolled 2: holding that 26 usc  6511 may not be equitably tolled but that mental incapacity is a grounds for tolling when available 3: holding that 42 usc  405g may be equitably tolled based on a plaintiffs mental impairment 4: holding that 5 usc  7703b2 can be tolled due to mental incapacity


Input: certain third class cities, a person appointed to be the chief of police must have been a member of the police, department. The Union concedes that the City of Terre Haute is a second class city, not a third class city. The fact that Ind.Code § 19 — 1— 29.5-1.5 was enacted after Ind.Code § 19-1-29.5-13 is instructive. “One inference that may be drawn from an amendment adding a provision to a statute is that, in the view of the legislature, the statute as originally drafted did not contain the provision.” Bailey v. Menzie, 505 N.E.2d 126, 128 (Ind.Ct.App.1987)., The Indiana Supreme Court has recognized that, when a statute is ambiguous, we may look to subsequent amendments for evidence of the legislature’s initial intent. See Seymour Nat’l Bank v. State, 422 N.E.2d 1223, 1226 (Ind.1981) (<HOLDING>), modified on reh’g on other grounds by 428 Holdings: 0: holding that courts must generally give effect to the plain meaning of a statute because that is the best evidence of the legislatures intent 1: holding that in cases of ambiguity we may resort to subsequent amendments in order to glean the legislatures intent 2: holding that the interpretation of statutory language should be consistent with the legislatures purpose and intent 3: holding that 1991 amendments to other aspects of  3910114lai clarified intent of 1988 amendments to statute 4: holding legislatures intent is determined from plain and common meaning of words used


Input: Mut. Fire Ins. Co., 188 F.3d 218, 223-24 (4th Cir.1999) (“[Sjervice of process is not legally defective simply because the complaint misnames the defendant in some insignificant way.”). Technical defects in the form of the summons and the complaint do not invalidate an otherwise proper and successful delivery of process under Fed. R.Civ.P. 4. Mid-Continent Wood Prods., Inc. v. Harris, 936 F.2d 297, 301 (7th Cir.1991) (citing United Food & Commercial Workers Union v. Alpha Beta Co., 736 F.2d 1371 (9th Cir.1984)). In other contexts, federal courts have determined that a technical defect in the service of process does not invalidate the service where the plaintiff has substantially complied with the appropriate state-law rule. Norsyn, Inc. v. Desai, 351 F.3d 825, 829-30 (8th Cir.2003) (<HOLDING>); Freeman v. Freeman, 2002 WL 539061, at *1 n. Holdings: 0: holding that state of south dakota does not have criminal jurisdiction over indians in indian country 1: holding that service to defendants business address resulted in total failure to serve process rather than mere technical defect and thus could not be cured by rule 415f 2: holding that there was no duty to answer a complaint after removal but pointing out that south dakota law will excuse a technical defect in the service of process where a plaintiff has otherwise substantially complied with the appropriate rule 3: holding that affidavit submitted to the court after the plaintiffs motion to remand was sufficient to cure the defect in the removal petition 4: holding that service of a statecourt summons and complaint after removal to federal court is valid service


Input: versa. Id. This court reviews a district court’s determination of inequitable conduct under a two-tiered standard: we review the underlying factual determinations of materiality and intent for clear error, and we review the ultimate decision as to inequitable conduct for an abuse of discretion. Star Scientific, 537 F.3d at 1365. If the district court’s inequitable conduct determination rests on a clearly erroneous finding of materiality or intent, it constitutes an abuse of discretion and must be reversed. Id. We agree with Honda that the undisclosed 96RL information was material to the Three-Status patent because the jury found, and the court upheld, the asserted claims as anticipated by the 96RL system, and ACI has not appealed that decision to us. See Therasense, 649 F.3d at 1291-92 (<HOLDING>). The materiality of the undisclosed Holdings: 0: holding that in reviewing a defendants motion for judgment of acquittal based on insanity which the defendant must prove by clear and convincing evidence the court must determine whether no reasonable jury could have failed to find that the defendants criminal insanity at the time of the offense was established by clear and convincing evidence 1: holding that if a claim is properly invalidated in district court based on the deliberately withheld reference then that reference is necessarily material because a finding of invalidity in a district court requires clear and convincing evidence a higher evidentiary burden than that used in prosecution at the pto 2: holding that a finding of fraud may be reversed only for clear error but that the finding must be judged in view of the clear and convincing burden of proof 3: holding that fraud on the court must be supported by clear unequivocal and convincing evidence 4: holding that appellate court may infer that district court considered sentencing guidelines policy statements despite district courts failure to make explicit reference to them


Input: was sufficient to support a conviction for the lesser included offense of attempting to set fire to or burn a building under N.C. Gen. Stat. § 14-67.1. The State was not required to prove a “burning” in order to prove an attempt to bum or set fire. Avery, 315 N.C. at 25, 337 S.E.2d at 799. We note that, unlike the facts of Avery, the juvenile in the present case did not set off a fire bomb, but rather set off fireworks. While this factual distinction may be significant under different facts, the facts here are that the juvenile set off fireworks “near the wall” of the interview room. Given the proximity of the fireworks to the wall and the resulting flame and damage, we infer an intent to set fire with the fireworks. See State v. Grigsby, 351 N.C. 454, 457, 526 S.E.2d 460, 462 (2000) (<HOLDING>). Accordingly, the trial court did not err in Holdings: 0: holding that where a defendant acknowledged awareness of the consequences of his plea agreement counsels erroneous explanation of the consequences was not prejudicial 1: holding that it is well established that whether an employees actions were within the scope of employment is a question of fact and even if some of the actions were unauthorized the question of whether the actions were within the scope of employment is for the jury 2: holding that an attorney is required to advise a defendant of the direct consequences of a plea and will not be found ineffective for failing to advise of collateral consequences of the plea 3: holding the federal government responsible for the immediately foreseeable consequences of its actions 4: holding that an individual is presumed to intend the natural consequences of the individuals actions


Input: stage of the litigation, Plaintiffs have sufficiently pled the ultra vires exception to the Eleventh Amendment and, thus, Defendants’ motion to dismiss Plaintiffs’ state law claims as to the individual basis, on this basis, is denied. D. Federal Claims Against Defendants Cuomo, Lippman, Prudenti, Hite, Ahl, Hanrahan, Megna, and DiNapoli in their Individual Capacities Plaintiffs assert § 1983 claims for monetary damages, injunctive relief, and declaratory judgment against Defendants Cuomo, Lippman, Prudenti, Hite, Ahl, Hanrahan, Megna, and DiNapoli, individually. Suits against state officials in their personal capacity are not barred by the Eleventh Amendment, even for actions required by their official duties, Hafer v. Melo, 502 U.S. 21, 27-28, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) (<HOLDING>); however, such actions may be subject to Holdings: 0: holding that states and state officials acting in their official capacity are not persons under  1983 1: holding that a state officer sued in his individual capacity may be held personally liable for damages under 42 usc  1983 based upon actions taken in his official capacity 2: holding state of north carolina and state official sued in their official capacity are immune from  1983 and  1985 actions in federal court 3: holding that eleventh amendment does not bar suits for prospective injunctive relief against state officials in their official capacity 4: holding that state officials may be personally liable for actions taken in their official capacity


Input: produce a policy-mandated incident report, created issues of material fact that should have been presented to the jury. The doctrine of spoliation provides that “the deliberate or negligent destruction of relevant evidence by a party to litigation may give rise to an inference that the destroyed evidence was unfavorable to that party.” Tancrelle, 756 A.2d at 748. The defendants argue that their failure to produce an incident report did not rise to the level of spoliation since there was no evidence that the report ever was prepared or destroyed, notwithstanding the policy requirement to do so. However, we “decline to allow defendants] to benefit from [their] own unexplained failure to preserve and produce responsive and relevant information during discovery.” Kurc-zy, 820 A.2d at 947 (<HOLDING>). In light of testimony that defendants Holdings: 0: holding spoliation instructions appropriate in light of the defendants failure to produce boardmeeting minutes for meeting where accident may have been discussed 1: holding that defense counsel may call attention to the states failure to produce evidence 2: recognizing the right of a defendant to comment upon the failure of the state to produce evidence 3: holding that counsel may not be deemed ineffective under strickland for failing to object to jury instructions where this court previously upheld validity of those instructions 4: holding that in light of the defendants failure to engage in the interactive process liability would be appropriate if  reasonable accommodation would otherwise have been possible


Input: or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan, this subchapter, section 1201 of this title, or the Welfare and Pension Plans Disclosure Act [29 U.S.C. § 301 et seq.], or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan, this sub- chapter, or the Welfare and Pension Plans Disclosure Act.... 29 U.S.C. § 1140 (emphasis added). Thus, this section forbids, and gives rise to wrongful discharge claims for, both “retaliation” for exercise of ERISA plan rights, and, as is alleged in this case, “interference” with future ERISA plan benefits. Kinkead v. Southwestern Bell Telephone Co., 49 F.3d 454, 456 (8th Cir.1995) (<HOLDING>); Morrison v. FirsTier Bank, 26 F.3d 65, 67 Holdings: 0: holding that where both defamation and tortious interference claims are pled and are based on same facts minnesota law requires the application of the actual malice standard to tortious interference claims 1: holding that interference and retaliation are two separate theories that can be advanced under the fmla and that termination is evidence of retaliation 2: recognizing similar analysis applies to discrimination and retaliation claims 3: recognizing first amendment retaliation right 4: recognizing both retaliation and interference claims under  1140


Input: Motion that Figure 7 of the FAC contains an accurate version of the endorsement email. See ECF No. 42. 5 . Plaintiffs selectively quote this blog post in the FAC, but the Court takes judicial notice of the entire document, which is available at http://blog.linkedin.com/2009/03/27/how-to-report-abusive-behavior-on-linkedin/, because the document has been incorporated by reference into the FAC. See infra Section II.C. 6 . In addition, Plaintiffs attach two judicial documents (an order and a complaint) to their Request for Judicial Notice, though they do not explicitly request judicial notice of these documents. See ECF No. 25-2, Exs. E-F. The Court takes judicial notice of these documents. See Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861, 866 n. 1 (9th Cir.2004) (<HOLDING>). 7 . Defendants, in a footnote, move to strike Holdings: 0: recognizing that a court may take judicial notice of court filings and other matters of public record 1: holding that undisputed matters of public record are proper subjects for judicial notice 2: holding that another courts decision is a proper subject of judicial notice 3: holding that the existence of prior convictions are typically matters of public record of which the trial court can take judicial notice without violating the defendants right to due process 4: holding that courts may take judicial notice of sec filings that are matters of public record


Input: to independent-negligence claims by an employee against his employer’s parent company, that is, Plaintiffs allegations in paragraph 9 tend to show that Novar and Indalex “work[ed] closely together,” Hinkle, 24 F.Supp.2d at 821 n. 2, not that Novar “ha[d] undertaken the duty to prevent injuries to [Indalex’s] employees.” Id. at 821. Further, while Plaintiffs allegations might also tend to show that Novar was concerned about safety at Indalex or that it even promulgated safety procedures that Indalex was supposed to implement, such allegations are still insufficient as a matter of law to show that Novar entered upon an active course of conduct to ensure the safety of Indalex’s employees so as to create an independent claim of negligence against Novar. See, e.g., Muniz, 737 F.2d at 148 (<HOLDING>). In summary, Plaintiffs Complaint fails to Holdings: 0: recognizing a state law tort claim for negligence arising under a duty to provide a safe work environment 1: holding that njeither mere concern with nor minimal contact about safety matters creates a duty to ensure a safe working environment for the employees of a subsidiary corporation 2: holding that control person liability adequately alleged because as the sole shareholder of the subsidiary the parent corporation had the potential power to influence and direct the activities of its subsidiary 3: holding that parent corporation could not be held liable for any acts of whollyowned subsidiary although boards of directors of the two corporations overlapped in all other respects corporation had not disregarded subsidiarys corporate separateness had not involved itself directly in management of subsidiary and had not otherwise dominated or controlled subsidiary 4: holding that there must be evidence that the parent corporation assumed a duty to ensure safety


Input: instance to the trial court and, therefore, is not preserved for appellate review. In any case, because we have vacated the award of punitive damages, the issue is now moot. AFFIRMED IN PART AND REVERSED IN PART. HEARN, C.J., and CONNOR, J, concur. 1 . S.C.Code Ann. § 36-2-714 (1976). 2 . S.C.Code Ann. § 36-2-715 (1976). 3 . Strother v. Lexington County Recreation Comm'n, 332 S.C. 54, 504 S.E.2d 117 (1998). 4 . South Carolina Dep’t of Soc. Servs. v. Smith, 343 S.C. 129, 136, 538 S.E.2d 285, 288-89 (Ct.App.2000). 5 . S.C.Code Ann. § 36-1-106 (1976). 6 . S.C.Code Ann. § 36-1-106 cmt. 1 (1976); see also Novosel v. Northway Motor Car Corp., 460 F.Supp. 541 (N.D.N.Y.1978) (noting that punitive damages are not recoverable); Sims v. Ryland Group, Inc., 37 Md.App. 470, 378 A.2d 1 (Md.1977) (<HOLDING>); cf. 11 S.C. Juris. Damages §§ 47, 70 (1992) Holdings: 0: holding that punitive damages are not recoverable against municipalities under  1988 1: holding that punitive damages are not recoverable under subsection 216b 2: holding punitive damages not recoverable under 2715 3: holding that punitive damages are not recoverable under viwda 4: holding that punitive damages are recoverable in a claim for retaliation under the flsa


Input: third parties. In the course of codifying execution remedies for judgment creditors, Rhode Island enacted a statutory provision codifying and arguably expanding the old creditor’s bill devised by the equity courts. R.I. Gen. Laws § 9-28-1. This provision permits an unsatisfied judgment creditor to reach “any equitable estate, any equitable assets, or any choses in action of the judgment debtor, except such as shall be exempt from attachment by virtue of statutory provision.” On its face, this language refutes any claim that Rhode Island is hostile to creditors taking over debtors’ legal claims against third parties. Howe responds by pointing to the just quoted qualification (“except such ... ”), arguing that this incorporates section 9-26-4(10)’s reference to “policy” exemp 987) (<HOLDING>). In the end almost everything turns on how an Holdings: 0: holding inter alia that common law claims were preempted 1: holding property exempt where inter alia claim not subject to garnishment affd 855 f2d 859 8th cir1988 2: holding that property not subject to sequestration is not therefore exempt 3: holding inter alia that expert testimony was not required to prove damages for emotional distress in an abuse of process claim 4: holding that because nondischargeable debt based on fraud was not one of the four enumerated exceptions to exempt property the exempt property was not liable for the creditors surviving claim


Input: promptly. See Def.’s Mem. Ex. H (Memorandum of Counseling, Sept. 7, 2007) at 2. It closed by warning that “[t]his time ... is just a counseling but if this happen[s] again, we will take the appropriate action.” Given that the memorandum itself made clear that disciplinary action was not forthcoming as a result of its issuance — and that “mere speculation that a letter of reprimand may lead to future punishment is insufficient to establish an adverse employment action,” Coleman v. District of Columbia, 2006 WL 2434926, at *4 (D.D.C. Aug. 22, 2006) — the Court cannot conclude that a reasonable employee would have been deterred from pursuing a claim of discrimination by the prospect of receiving a memorandum like this one. See Baloch, 550 F.3d at 1199; Herbert, 766 F.Supp.2d at 75 (<HOLDING>). ii. The September 13, 2007 Meeting with Holdings: 0: holding that counseling sessions and written criticisms of employees work performance did not fall within the types of materially adverse employment actions 1: holding that a job transfer was not an adverse employment action because the plaintiff enjoyed the same  rate of pay and benefits and her duties were not materially modified 2: holding that allegations that employee was yelled at for complaining about his discriminatory treatment and criticized  were not materially adverse actions 3: holding that a similar written reprimand provided to an architect of the capitol employee was not materially adverse because it merely criticized his job performance 4: holding that the decision to reprimand or transfer an employee if rescinded before the employee suffers a tangible harm is not an adverse employment action


Input: is not precluded if the other factors are sufficiently compelling. 8 . The girls and defendant primarily differed on whether defendant was clothed and what he was doing with his hands. See also note 13. 9 . Cf. United States v. Hall, 724 F.2d 1055, 1059 (2nd Cir.1983) (noting that "there is force in the [trial] judge’s observation that Hall knew his rights all along since he was not 'a newcomer to the law,’ United States v. Watson, 423 U.S. 411, 424-25, 96 S.Ct. 820, 828, 46 L.Ed.2d 598 (1976); and, more important, no newcomer to the jurisprudence of Miranda "). However, in Hall the defendant, a repeat offender, was at least read his rights and the only question was whether he understood them. See also Los Angeles Police Protective League v. Gates, 579 F.Supp 36, 42 (C.D.CaI.1984) (<HOLDING>). 10 . The State makes two additional arguments Holdings: 0: holding that a state is not a person under 42 usc  1983 1: holding that although miranda warnings were not given to defendant police officers they had no cause of action under 42 usc  1983 because they were never prosecuted 2: holding that although defendants voluntarily given initial statement was inadmissible because of miranda violation subsequent statement made after careful miranda warnings were given and waiver was obtained was admissible 3: holding that officers were entitled to qualified immunity where defendant officers could have reasonably believed that they were given sufficient third party consent to search 4: holding that defendants prosecuted under section 922g8 may only attack the validity of the underlying protective order on the grounds that they were not provided a hearing of which they were given actual notice and an opportunity to participate


Input: of the claim.” Here the court has tacked on fees for litigating the issue of presuit noncompliance, as well as for litigating the amount of fees to be awarded. Under the plain text of the statute, however, the liability is only for the narrow purpose specified and therefore the amount awarded should have been limited to those incurred “during the investigation and evaluation.” See Kukral v. Mekras, 679 So.2d 278, 281 (Fla.1996) (“These provisions for sanctions focus on the presuit period during ‘the investigation and evaluation of the claim’ and apparently contemplate the imposition of sanctions for the expense and effort that one party may have unnecessarily caused the other to incur during that presuit period.”); see also State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830 (Fla.1993) (<HOLDING>). We therefore reverse the award and remand for Holdings: 0: holding that higher rate would not be awarded for supplemental fees because there was no showing that any special factor justifies an increased rate for litigating the attorney fees motion 1: holding that court of appeals erred by rendering judgment for full amount of attorneys fees sought after reversing 0 fee award because jury awarded less in damages than amount sought and therefore uncontroverted attorney testimony on amount of attorneys fees did not establish amount of reasonable and necessary fees as a matter of law 2: holding that fees may be awarded for litigating amount of fees only where language of statute supports such conclusion 3: holding that such fees are discretionary but routinely awarded 4: holding that where a state statute provides for the award of attorneys fees those fees can be considered as part of the amount in controversy for the purpose of determining federal diversity jurisdiction


Input: liable when sexual harassment discrimination occurs in the workplace, the employer knows or should know of the harassment, and the employer fails to take “timely and appropriate action.” See Minn.Stat. §§ 363.01, subd. 41(3) (sexual harassment occurs when the employer knows or should know of the existence of the harassment and fails to take timely and appropriate action); 363.03, subd. l(2)(c) (1996) (employer engages in unfair employment practice when it discriminates, because of sex, against person with respect to terms, conditions, or privileges of employment). Additionally, the Minnesota Supreme Court relied on a liberal, remedial interpretation of the MHRA when it first recognized other types of sexual harassment under the Act in the past. See Continental Can, 297 N.W.2d at 248-49 (<HOLDING>); see also Cummings v. Koehnen, 568 N.W.2d 418, Holdings: 0: holding that under edenfield the act should be liberally construed 1: holding that coas should be construed liberally 2: holding coemployee sexual harassment actionable mhra should be liberally construed 3: holding that pleadings under the rico act are to be liberally construed 4: holding that pro se pleadings are to be liberally construed


Input: (Ala.1991). We may not reverse the judgment, based on a jury verdict, on the ground that the evidence was insufficient unless that evidence, when viewed in a light most favorable to Mokrzycki, indicates that the verdict was “plainly and palpably wrong and unjust.” Carter v. Henderson, 598 So.2d 1350, 1354 (Ala.1992). “A jury’s award of punitive damages will be considered excessive, as a matter of law, only if: 1) the jury’s decision-making process was tainted by bias, passion, prejudice, or other improper motive; or 2) the verdict goes beyond that necessary to accomplish society’s goals of punishment and deterrence.” Killough v. Jahandarfard, 578 So.2d 1041, 1046 (Ala.1991) (citation omitted). After conducting a hearing under Hammond v. City of Gadsde 436 So.2d 827, 830-31 (Ala.1983) (<HOLDING>); Hutchins v. Shepard, 370 So.2d 275, 276-77 Holdings: 0: holding that this court will not consider a theory or issue that was not pleaded or raised in the trial court 1: holding that an issue raised for the first time on appeal will not be considered by this court 2: holding that as a general rule this court will not consider an issue that was not raised below 3: holding that our court will not consider an issue of whether a defendant has standing to seek suppression of evidence if the issue was not raised in the lower court 4: holding that court will not consider issue raised for first time on appeal


Input: Ninth Circuit held that HCFA’s letter authorizes the continued application of the Boren Amendment standards, see 188 F.3d at 1095, and implicitly concluded that private parties may enforce the HCFA letter in a § 1983 action. We respectfully disagree with the latter conclusion. We have held that a formal regulation cannot by itself give rise to a federal right enforceable under § 1983. See Smith v. Kirk, 821 F.2d 980, 984 (4th Cir.1987); see also King v. Town of Hempstead, 161 F.3d 112, 115 (2d Cir.1998) (per curiam) (noting that the circuits are divided on the question of whether a regulation alone can create a federal right). A policy letter has even less legal stature than a regulation. See Christensen v. Harris County, 529 U.S. 576, 120 S.Ct. 1655, 1662-63, 146 L.Ed.2d 621 (2000) (<HOLDING>). Thus, HCMF’s claim is not cognizable Holdings: 0: holding regulations entitled to chevron deference 1: holding that deference  is warranted only when it appears that congress delegated authority to the agency generally to make rules carrying the force of law and that the agency interpretation claiming deference was promulgated in the exercise of that authority and discussing united states v mead corp 533 us 218 22627 121 sct 2164 150 led2d 292 2001 and chevron usa inc v natural res def council inc 467 us 837 84245 104 sct 2778 81 led2d 694 1984 2: holding that the slidingscale standard for granting preliminary injunctions survives winter v natural resources defense council inc 555 us 7 129 sct 365 172 led2d 249 2008 3: holding that agency opinion letters and policy statements unlike regulations are not entitled to deference under chevron usa inc v natural res def council inc 467 us 837 104 sct 2778 81 led2d 694 1984 4: holding that a longstanding agency interpretation was no longer entitled to chevron deference given that the agency had changed its position on the issue


Input: dard or limitation that Esso is allegedly violating under CWA. The CWA provides that a civil action may be brought against anyone “alleged to be in violation of [¶]... ] an effluent standard or limitation of this chapter.” See 33 USC 1365(a)(1). Effluent standard or limitation is d ed in the interior of the island constitutes water in the territorial seas. See United States v. Appalachian Electric Power Co., 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 243 (1941) (a body of water is “a navigable water of the United States” if (1) it presently, or (2) has been or was in the past, or (3) could be made in the future by reasonable improvements, susceptible for use in interstate or foreign commerce.), but see Natural Resources Defense Council, Inc. v. Callaway, 392 F.Supp. 685, 686 (D.D.C.1975) (<HOLDING>); Rivera Torres, 826 F.2d at 154-55 (citing Holdings: 0: holding that the plaintiff must demonstrate that defendants contacts with the united states as a whole support the exercise of jurisdiction consistent with the constitution and laws of the united states 1: holding that wetlands adjacent to navigable waters are included in the term territorial waters 2: holding that as used in the cwa the term waters of the united states is not limited to the traditional tests of navigability 3: holding that the land under navigable waters was not granted by the constitution to the united states but was reserved to the states respectively and that new states have the same rights jurisdiction and sovereignty over the soil under navigable water as the original states 4: holding that the term includes in the cwa allows for additional unstated meanings


Input: fraud claim on its findings that Chandler’s claim for money from the gas and oil severance tax and from the “burned out school” money was based on a void contract. In its order, the trial court found “that plaintiff [Chandler] would not be able to assert fraud based upon a fraudulent inducement to enter into a contract to pay a portion of revenue monies since the former has been determined to be a void contract as against public policy.” In light of our holdings in parts I, II, and III, we conclude that the reasoning given by the trial court in support of the summary judgment on the fraud claim was incorrect. The question then becomes whether the summary judgment can be sustained on any other grounds. See Lowe v. East End Memorial Hosp. & Health Centers, 477 So.2d 339 (Ala.1985) (<HOLDING>). After reviewing the record and the Holdings: 0: holding that in ruling on a motion for summary judgment the trial court is limited to the grounds raised in the motion 1: holding that a trial court can only consider admissible evidence in ruling on a motion for summary judgment 2: holding summary judgment must be upheld if it is proper on any grounds 3: holding that on appeal a summary judgment ruling will be upheld if it can be sustained on any grounds even if the trial court gave an incorrect reason for its ruling 4: holding that a trial courts ruling on a motion for new trial will be upheld if it is correct on any applicable legal theory even if the court articulated an invalid basis


Input: 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). A federal habeas court must grant relief if it is in “grave doubt” as to the harmlessness of the error. O’Neal v. McAninch, 513 U.S. 432, 436, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995); Fullwood v. Lee, 290 F.3d 663, 679 (4th Cir.2002). “ ‘[G]rave doubt’ exists when, in the relevant circumstances, the question is so evenly balanced that the reviewing court finds itself in ‘virtual equipóse’ [sic] on the harmlessness issue.” Barbe v. McBride, 521 F.3d 443, 461 (4th Cir.2008); Fullwood, 290 F.3d at 679; accord O'Neal, 513 U.S. at 435, 115 S.Ct. 992. The test is whether it can be said with fair assurance that not a single juror’s decision was swayed by resort to the extrinsic influence of the dictionary. See Parker, 385 U.S. at 366, 87 S.Ct. 468 (<HOLDING>); Lawson v. Borg, 60 F.3d 608, 613 (9th Holdings: 0: holding that a defendants claim that a jury was not impartial must focus on the jurors who ultimately sat 1: holding right of accused to trial by impartial jury justified postverdict protection of jurors from harassment and did not violate first amendment 2: holding that defendant has constitutional right to be tried by impartial jury unprejudiced by extraneous influence 3: holding that a defendant is entitled to be tried by 12 not 9 or even 10 impartial and unprejudiced jurors 4: holding that a defendant could not establish stricklands prejudice prong because any erroneous exclusion of an impartial juror was harmless because we have every reason to believe the replacement was also an impartial juror the defendant does not dispute that he was convicted and sentenced by an impartial jury and he presents no reason to think that a jury composed of a slightly different set of impartial jurors would have reached a different verdict


Input: restrictions in part of a tract of land which he is selling does not necessarily lead to the conclusion that he intended thereby to have the restrictions apply to his remaining land.”); cf. Varney v. Fletcher, 106 N.H. 464, 466-67 (1965) (implying an equitable servitude where 100 lots were laid out on a series of recorded plans and all but the fifteen or eighteen lots still owned by the real estate developer were conveyed with the same restrictions). Although the Pierros argue that the deeds from Frank Lord demonstrate his intent to expand his father’s scheme for the benefit of the back lots, the deeds themselves contain no such language. Nor do the deeds from Frank Lord incorporate by reference his father’s common scheme of development. See Regan v. Hovanian, 115 N.H. 40, 42-43 (1975) (<HOLDING>); McCleary v. Lourie, 80 N.H. 389, 392 (1922) Holdings: 0: holding that an easement agreement and an unrecorded easement plan created an easement 1: holding that void deed is neither title nor color of title 2: holding that one who possesses deeded easement need not use the easement to maintain his title and easement cannot be extinguished from nonuser alone 3: holding that implied easement arose because each deed in chain of title referenced community plan 4: holding foreclosure of prior deed of trust extinguished subsequent easement


Input: easily originated from a large number of sources, including the carpet, comforter, victim’s nightshirt, or any of the items thought to have been emptied from her purse which were discovered under the comforter upon which her body was found. See id. Likewise, the hair could have attached on contact with the belt or clothesline rope that were also used to bind Susan. See id. Thus, the conclusory assertion that if the hair does not belong to Overton or the victims, it must belong to a person who committed or participated in the crime, is far too tenuous because there is no way to determine when, why, where, or how the hairs attached to the tape. This assertion is the type of speculation that this Court has found to be a basis for denying a rule 3.853 motion. See Lott, 931 So.2d at 821 (<HOLDING>); Hitchcock v. State, 866 So.2d 23, 26 Holdings: 0: holding that a defendant whose new trial motion is based on the alleged ineffectiveness of trial counsel may bypass rule 33s sevenday time limit only if his claim that his counsel  was ineffective was based on information unavailable to the defendant at the time of trial 1: holding a written order is required for an appeal from a convicting courts ruling on a postconviction motion for dna testing 2: recognizing that an order for dna testing could cause irreparable harm because the test is intrusive and any error in improperly ordering genetic testing cannot be remedied on appeal after the testing is done and the results are released 3: holding that the defendant embarked on a fishing expedition for genetic material whose  potential relevance is pure conjecture and that the defendant could not obtain dna testing based on the speculative allegations in his motion 4: holding that to obtain a new trial based on newly discovered evidence the defendant must allege facts from which the court may infer diligence on the part of the defendant


Input: fiat.” Flowers v. District of Columbia, 478 A.2d 1073, 1078 (D.C.1984). Appellants buttress their argument for extending Williams by citing cases in several states which would allow recovery on a claim such as theirs. There are, however, a number of cases in other states in which such recovery would be denied. We are not bound, of course, by any of these decisions. None sways us from our belief in the correctness of our holding in Williams and of the cautious approach that led to that holding. Ill Alternatively, appellants argue that, even if Williams does not provide a basis for their claim, the complaint sufficiently states a cause of action for the denial of their right to make a medical decision based on informed consent. See Crain v. Allison, 443 A.2d 558, 561-562 (D.C.1982) (<HOLDING>). This argument is without merit. What the law Holdings: 0: holding that a physician has a duty to make disclosure that is reasonable under the circumstances so that the patient may make an intelligent and informed choice to undergo or reject a proposed treatment 1: holding that defendant medical center which allowed a patient who would likely cause bodily harm to his wife if he had the opportunity to leave the center for a weekend could be liable for the patients actions of killing his wife and her paramour during that weekend because inter alia when the course of treatment of a mental patient involves an exercise of control over him by a physician who knows or should know that the patient is likely to cause bodily harm to others an independent duty arises from that relationship and falls upon the physician to exercise that control with such reasonable care as to prevent harm to others at the hands of the patient punctuation omitted emphasis supplied 2: holding that the alj must make findings setting forth specific and legitimate reasons that are supported by substantial evidence in order to reject the contradicted opinion of a treating physician 3: recognizing that a conflict with treatment history is a germane reason to reject a physician assistants opinion 4: holding that the alj is free to reject the opinion of any physician when the evidence supports a contrary conclusion


Input: 84 S.Ct. 710, 725-26, 11 L.Ed.2d 686 (1964). Moreover, she did not have to reach the question whether the media defendants’ actions were protected by a common law privilege for reporting official actions in the District. See Phillips, 424 A.2d at 88. 17 . The balance of the instruction explains what is meant by “publication of a statement" and by a "defamatory statement.” 18 . It is important to emphasize that we are taking no position on the question whether, in this context, expert testimony would be required if a party raised the point. We note, however, that there is nothing to prevent a person who acted in or observed the transactions or occurrences at issue from testifying as an expert on the applicable standard of care. See Adkins v. Morton, 494 A.2d 652, 656-57 (D.C.1985) (<HOLDING>). 19 . Muse averred that it was "customary for Holdings: 0: holding that a request for funds for expert testimony must show inter alia that the testimony is crucial and is subject to varying expert opinions 1: holding that district court did not abuse its discretion in excluding testimony of mechanical engineer in products liability case involving automobile because expert did not have specific experience regarding subject matter of lawsuit 2: holding that an expert witnesss testimony on an ultimate issue was admissible recognizing that the expert did not specifically testify that the defendant was guilty or that as a matter of law the facts satisfied the applicable legal standard 3: holding that an expert may base his or her opinions and inferences on facts andor data perceived by or made known to the expert at or before the hearing internal quotation marks omitted 4: holding that professional whose opinions about lawsuit are acquired as an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit may provide expert testimony without certification as expert under superctcivr 26b4


Input: time of the divorce had accrued while the parties were married. Further, Ginger accepted as correct Randall’s valuation of the plans. Thus, we need not recalculate the value of the community extent in the plans as of the date of divorce. Further, Randall’s complaint is not about the 50-50 division of the plan values through the date of divorce, but about the trial court’s award of 50% of any future increases in value to Ginger. Post-divorce increases in the value of an individual’s defined-benefit retirement plans that are attributable to the person’s continued employment, such as raises, promotions, services rendered, and post-divorce contributions, are the individual’s separate property and are not subject to division. See Grher v. Grier, 731 S.W.2d 931, 932 (Tex.1987) (op. on reh’g) (<HOLDING>); Burchfield, 968 S.W.2d at 424 (listing types Holdings: 0: holding that the plaintiffs claim that he was wrongfully denied a promotion prior to his retirement accrued on the date that he was finally denied that promotion  the date of his retirement at the lower rank 1: holding that postdivorce increases in an individuals retirement benefits are subject to community property division if they are not attributable to postdivorce employment or contributions 2: holding that costofliving increases are not the result of any postdivorce labor but rather are a means of offsetting the otherwise declining value of retirement benefits after they become fixed 3: holding that berry prohibits nonemployee spouse from sharing in any postdivorce increases in value of employees retirement benefits 4: holding that retirement benefit increases due to postdivorce promotion were separate property


Input: liable for this deprivation of Gross’ constitutional rights. “Liability may be imposed under § 1983 upon one who has a duty to act to prevent a deprivation of another’s constitutional rights, and who fails to do so in reckless disregard of the other’s constitutional rights.” Hathaway v. Stone, 687 F.Supp. 708, 712 (D.Mass.1988) (citing Clark v. Taylor, 710 F.2d 4, 9 (1st Cir. 1983). “Thus courts have held that a police officer who fails to prevent the use in his presence of excessive force by another may be held liable under § 1983.” Id. at 712 (citing Byrd v. Brishke, 466 F.2d 6 (7th Cir.1972); see Bruner v. Dunaway, 684 F.2d 422, 426 (6th Cir.1982); Bibbo v. Mulhern, 621 F.Supp. 1018, 1025 (D.Mass. 1985)); see also, Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 560 (1st Cir.1989) (<HOLDING>). The plaintiffs allege that the defendant Holdings: 0: recognizing affirmative duty of a police officer to prevent the violation of constitutional rights by another officer 1: holding that an alcoholic beverage control officer was a public officer within the meaning of the statute 2: holding officer liable for deprivation of constitutional rights despite argument that officer although present was not in control of the situation 3: holding that although jury found officer not to have had probable cause for arrest officer was entitled to immunity because law was not clearly established as to circumstances in which officer found himself 4: holding that the initial stop by officer was based on reasonable suspicion that defendant was impersonating a police officer although another officer arrested defendant for privacy act violation


Input: the application of engineering and traffic studies to the installation of traffic control devices: a) New restrictions. The establishment or revision of a traffic restriction covered in this chapter may be warranted if: (1) One or more -of the engineering and traffic study elements justifies the traffic restriction. (2) Sound engineering judgment based upon a combination of all data sources substantiates the need for the restriction. 11 . Pa. R.E. 407 provides as follows: When, after an injury or harm allegedly caused by an event, measures are taken which, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove that the party who took the mea per.2000), appeal denied, 566 Pa. 666, 782 A.2d 548 (2001) (<HOLDING>). 13 .When an expert testifies about underlying Holdings: 0: holding parol evidence is admissible to show mistake 1: holding that evidence of assault on victim that was subsequent to the arson for which defendant was tried was admissible to show defendants bent of mind toward violence directed at the victim 2: holding that evidence of subsequent measures was admissible to show the feasibility of a design change 3: holding that remedial measures evidence was not admissible to impeach testimony that at the time of the event the measure was not believed to be as practical as the one employed 4: holding that postevent disciplinary measures are not admissible to show negligence or culpability


Input: at 16-17.) He said that common practice in the school district would be to make a referral to MCDJFS after a child had missed a certain number of school days. Mr. Schumacher testified that he could not recall talking to MCDJFS about Timothy at all, but if he did, it would have been about attendance. {Id. at 18-20.) 25 . Mr. Koslik testified at his deposition that, in January 2008, his brother-in-law, the former Director of MCDJFS, revealed the identity of the individual who made the complaint, and it was not someone employed by, related to or involved with the School District. The Court views this information as inadmissible hearsay under Rule 56, and declines to rely on it in rendering its decision here. See Pennsylvania v. Ritchie, 480 U.S. 39, 61, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) (<HOLDING>); Ohio Rev.Code § 5153.17. 26 . Plaintiffs also Holdings: 0: holding that where a public official takes discretionary action that the official knows will directly benefit a financial interest that the official has concealed in violation of a state criminal law that official has deprived the public of his honest services under  1346 1: holding that municipal court records were admissible under  official records or public documents  exception 2: recognizing records material to selfdefense claim outweigh victims interest in confidentiality 3: recognizing the public interest exception 4: recognizing strong public interest in maintaining confidentiality of official records concerning child abuse


Input: are under the control of the parties, the Court finds neither forum to be clearly more convenient. 2. Non-Party Witnesses The Defendants note several non-party witnesses, identified from exhibits attached to CAI’s amended complaint, and assert that their existence requires transfer to the Western District of Washington. When weighing the relative convenience of witnesses, courts assign greater weight to the location of non-party witnesses because securing their testimony may require use of compulsory processes and because they are more likely to be inconvenienced by having to travel. Dee Eng’g, Inc., 2003 WL 1089515, at *4 (“live testimony is favored over deposition testimony at trial”); Kendall U.S.A., Inc. v. Cent. Printing Co., et al., 666 F.Supp. 1264, 1268 (N.D.Ind.1987) (<HOLDING>). Indeed, whenever possible, courts are Holdings: 0: holding that transfer was appropriate because the transferee district could exercise compulsory process over nonparty witnesses 1: holding that because the circuit court did not have subjectmatter jurisdiction over the unlawfuldetainer action the district courts unauthorized transfer of the action could not transfer jurisdiction over that action to the circuit court 2: holding that a state defendant has a sixth amendment right guaranteed by the fourteenth amendments due process clause to compulsory process for obtaining witnesses in his favor 3: holding that age discrimination claim was subject to compulsory arbitration 4: holding that title vii claim was subject to compulsory arbitration