Input: to reimburse the widow for the amount she paid to satisfy the mortgage on the condominium before her husband’s death, even if she did so under the mistaken belief that she was the titleholder to the property. Reversed and remanded for proceedings in compliance herewith. 1 . The appellants argue certain of the widow’s claims are barred by res judicata. Because the claims made in the amended complaint filed by her in this action are different from those made by the appellants in Aronson I, there is no res judicata defense available to the appellants in this case. See AMEC Civil, LLC v. State Dep’t of Transp., 41 So.3d 235, 245 (Fla. 1st DCA 2010); Jones v. State ex rel. City of Winter Haven, 870 So.2d 52, 55 (Fla. 2d DCA 2003); Pipkin v. Wiggins, 526 So.2d 1002, 1003 (Fla. 3d DCA 1988) (<HOLDING>). 2 . Three requirements must be satisfied for Holdings: 0: holding res judicata did not bar current litigation when prior litigation between the parties involved one breach of obligation under a joint venture agreement and instant litigation was based upon a different cause of action from a subsequent interference with the same agreement 1: holding that entry of judgment in the underlying litigation does not moot an appeal from a denial of a motion to intervene if one of the parties keeps the underlying litigation live by pursuing an appeal 2: holding that letters addressing dispute that was subject of litigation and that were written in anticipation of litigation did not fall under business record exception under rule 8036 of the federal rules of evidence and noting that it is wellestablished that one who prepares a document in anticipation of litigation is not acting in the regular course of business 3: holding hospitals prior litigation conduct in criminal case constituted waiver of right to arbitrate where prior litigation involved developing evidence as part of strategic plan for defense of civil suit for damages 4: holding that the current party was sufficiently identified with the parties to the prior litigation


Input: Code does not survive intermediate scrutiny, and is void on its face because the statute is overbroad, reaching a substantial amount of constitutionally protected conduct. See Stevens, 130 S.Ct. at 1587. Conclusion Based on the foregoing, we hold subsection 21.15(b)(1) of the Texas Penal Code is void on its face as it fails intermediate scrutiny and violates the First Amendment to the U.S. Constitution because it is over-broad. Accordingly, we reverse the trial court’s denial of Thompson’s application for writ of habeas corpus and remand this matter to the trial court to enter an order dismissing the prosecution, i.e. all charges against Thompson on alleged violations of section 21.15(b)(1) of the Texas Penal Code. See Long v. State, 931 S.W.2d 285, 297 (Tex.Crim.App.1996) (en banc) (<HOLDING>). 1 . Thompson does not argue or provide Holdings: 0: holding statutory provision is unconstitutionally vague on its face and remanding case to trial court to enter order dismissing prosecution 1: holding court must have evidence to support dismissal before dismissing a case for fraud on the court 2: holding provision in contempt order void because it punished relator for violating order that trial court lacked authority to enter 3: holding that the trial court had abused its discretion in dismissing the case without allowing appellants an opportunity to amend 4: holding that when the trial court signed an order dismissing the plaintiffs complaint but refused to enter a final judgment on that order the order refusing to enter judgment was appealable under former ors 190102a


Input: Id. Similarly in Green v. Green, the Maryland Court of Special Appeals, in holding that unvested stock options may be considered marital property, reasoned that restricted stock option plans, like pension plans, are a form of employee compensation. 64 Md.App. 122, 494 A.2d 721, 728 (1985). The court also reasoned that the options constituted marital property because the husband acquired such options while he was married. Id. According to the court, although the options have an “unassignable, unsalable” character and no fair market value, they are nonetheless an “economic resource.” Id. Several other state courts have also held that unvested stock options acquired during the marriage constitute marital property. See Richardson v. Richardson, 280 Ark. 498, 659 S.W.2d 510, 513 (1983) (<HOLDING>); In re Marriage of Hug, 154 Cal.App.3d 780, Holdings: 0: holding that the trial court properly determined that unvested stock options have marital aspect 1: holding that stock options that could be purchased but not sold without company consent during marriage were community property even though value of options was dependent upon employee spouses postdivorce employment 2: holding that like pension benefits stock options are a form of deferred compensation for efforts expended during the marriage 3: holding that unexercised stock options were not marital property 4: holding that unexercised stock options obtained during the marriage are marital property just like traded options or traded common stock


Input: 2678589, at *7 (E.D. Pa. 2011) (relating to lead paint exposure); McField v. Phila. Hous. Auth., 992 F.Supp.2d 481, 487 (E.D. Pa. 2014) (same). 30 . McField, 992 F.Supp.2d at 487. 31 . Id. at 488 (quoting Wright, 479 U.S. at 430, 107 S.Ct. 766) (internal citations omitted). 32 . Wright, 479 U.S. at 429-30, 107 S.Ct. 766. 33 . Johnson vs. Hous. Auth. of Jefferson Parish, 442 F.3d 356, 357 (5th Cir. 2006); DeCambre v. Brookline Hous. Auth., 826 F.3d 1, 12-13 (1st Cir. 2016). 34 . Wright, 479 U.S. at 425, 107 S.Ct. 766. 35 . Id. at 419, 107 S.Ct. 766. 36 . Id. 37 . Id. at 429, 107 S.Ct. 766; see McDowell v. Phila. Hous. Auth., 423 F.3d 233, 236 (3d Cir. 2005) (recognizing a Section 1983 claim against a public housing authority to enforce Section 1437a). 38 . See Johnson, 442 F.3d at 361 (<HOLDING>); DeCambre, 826 F.3d at 1, 13-14 (1st Cir. Holdings: 0: holding congress did not exceed its authority in enacting the mdlea 1: holding that because federal regulations have the force of law they may create enforceable rights under  1983 2: holding federal regulations have the force of law and may create enforceable rights 3: holding housing statutes create no rights in tenants for purposes of section 1983 4: holding that congress intended to create enforceable rights in participating section 8 tenants to the same extent as it did in enacting the statute implicated in wright


Input: We noted that Stein’s holding was based on the “tessellated scheme” of Rule 4(a) and Federal Rule of Civil Procedure 77(d), regarding notice of judgment. Id. at 1252 (quoting Stein, 197 F.3d at 426). Because Mackey’s appeal was untimely not for lack of notice, but because his counsel had failed to continue representing him in court — a scenario for which no rule parallel to Rule 77 exists — we concluded that the Federal Rules were not so comprehensive as to leave no room for Rule 60(b)(6). We recognized that “[a] federal habeas petitioner — who as such does not have a Sixth Amendment right to counsel — is ordinarily bound by his attorney’s negligence.” Id. at 1253 (quoting Towery v. Ryan, 673 F.3d 933, 941 (9th Cir.2012)). However, we then reasoned from Maples, 132 S.Ct. at 923-24 (<HOLDING>), and Community Dental Services v. Tani, 282 Holdings: 0: holding that attorney abandonment constitutes an extraordinarycircumstance that allows a federal court to disregard the state procedural bar to hearing a habeas petition 1: holding that the district court  did not abuse its discretion in denying his petition for reinstatement where membership in good standing in the state bar was required before attorney could be admitted to the federal bar and applicant had not been readmitted to state bar 2: holding that a prisoners failure to pursue an appeal in state court is a procedural bar to federal habeas relief unless the petitioner shows both cause for failing to bring the state claim  and actual prejudice from the failure to consider his federal claims 3: holding that if the state court addresses both the procedural default and the merits of a federal claim in the alternative a federal court should apply the state procedural bar and decline to reach the merits of the claim 4: holding that a state procedural default will not bar consideration of a federal claim on habeas review unless the last state court rendering a judgment clearly and expressly stated that its judgment rested on a state procedural bar


Input: (citing State v. DeLuna, 110 Ariz. 497, 500, 520 P.2d 1121, 1124 (1974)). Nevertheless, an indigent defendant is not “entitled to counsel of choice, or to a meaningful relationship with his or her attorney.” Moody, 192 Ariz. at 507, ¶ 11, 968 P.2d at 580 (citing State v. Bible, 175 Ariz. 549, 591, 858 P.2d 1152, 1194 (1993)). But when there is a complete breakdown in communication or an irreconcilable conflict between a defendant and his appointed counsel, that defendant’s Sixth Amendment right to counsel has been violated. See id. Accordingly, this court has held that if a defendant is forced to go to trial with counsel with whom he has an irreconcilable conflict or a complete breakdown in communication, a resulting conviction must be reversed. See id. at 509, ¶ 23, 968 P.2d at 582 (<HOLDING>). ¶7 Therefore, as the court of appeals Holdings: 0: holding that a trial courts erroneous denial of the defendants counsels application for admission pro hac vice violated the defendants sixth amendment right to choice of counsel and amounted to a structural error requiring no showing of prejudice 1: holding that a trial courts erroneous denial of a request to change counsel deprives a defendant of his sixth amendment right to counsel which infects the entire trial process requiring automatic reversal quoting bland v cal dept of corr 20 f3d 1469 1478 9th cir1994 overruled on other grounds by schell v witek 218 f3d 1017 102425 9th cir 2000 2: recognizing that the sixth amendment guarantees a defendant the right to counsel and the right to waive counsel 3: holding that a criminal defendant has a sixth amendment right to counsel at trial 4: holding that the sixth amendment right to counsel embodies the right to effective assistance of counsel


Input: to the work independent contractors perform for property owners. Applying this rule, the Parkers contend that the undisputed facts establish that Mr. Patel, through his deemed agent D & S Builders, created the defective condition that caused their injuries. The authority cited by the Parkers does not support adoption of such a rule. These decisions turned on the property owners’ constructive notice of the dangerous condition. See Sanders v. State, 783 S.W.2d 948, 952 (Tenn.Ct.App.1989) (noting that the State had at least constructive notice of the exposed cement that caused injury because a State employee had periodically replaced the wood chips in that area of the playground); Frazer v. Horton Automatics, No. E2006-00102-COA-R9-CV, 2006 WL 3001013, at *7 (Tenn.Ct.App. Oct. 23, 2006) (<HOLDING>); Hamby v. State, No. W2002-00928-COA-R3-CV, Holdings: 0: holding that the automatic stay terminates as to the debtor personally and as to his nonestate property but that the stay persists as to property of the bankruptcy estate 1: holding that subsequent property owners were bound by prior owners agreement to restrict building density and preserve certain portions of land as a condition of the original zoning approval 2: holding that the doctrine of strict liability applies where an owner of residential property brought a claim against the owners of a gasoline station immediately adjacent to a private residence after gasoline leaked into the property owners well 3: holding that the property owners duty of reasonable care included maintaining the automatic doors into the building and concluding that disputes of material fact remained as to the property owners constructive notice that the automatic doors were closing too quickly 4: holding that if property is not part of the individuals estate at the time he files a bankruptcy petition no automatic stay provision applies to the property


Input: its Order of May 16, 2003, and, find good cause exists to issue a new Order,” entitling plaintiff to present his case and put forth all evidence before a jury. Under the Internal Revenue Service Restructuring and Reform Act of 1998, 112 Stat. 685, 746, Congress enacted Internal Revenue Code § 6330 (pertaining to levies) to provide certain due process protections in connection with tax collection matters. Under § 6330(a), the IRS is required to give notice to the taxpayer before imposing a levy of his/her right to request a collection due process hearing with the IRS Appeals Office within thirty (30) days of the notice. 26 U.S.C. § 6330(a)(3)(B). Following the hearing, the IRS sends a Notice of Determination to the taxpayer that summarizes the matters raised 2 (N.D.Ohio Dec. 11, 2001) (<HOLDING>). In light of the above, the Court denies Holdings: 0: holding that a reviewing court can only address matters raised by the taxpayer at the cdp hearing 1: holding that a reviewing court will not address those issues not raised below or not addressed by the trial court 2: holding that under florida law a court hearing a case on a motion for a summary judgment can only consider those issues raised by the pleadings 3: recognizing the general rule that an appellate court will not address matters that were not raised or decided in the trial court   4: holding that a question that is not raised or passed upon in the lower court cannot be considered by a reviewing court


Input: but this does not mean that he is incapable of alleging facts which would merit legal relief. In interpreting which claims can be dismissed as "clearly baseless" under § 1915(d), the Neitzke Court referred to a "fantastic or delusional scenario," not a "fantastic or delusional” person. Neitzke, 490 U.S. at 328, 109 S.Ct. at 1833. 3 . Hudson negates the dicta in Miller, 948 F.2d at 1567, where we stated that the Wilson v. Seiter, — U.S. -, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991) deliberate indifference standard for Eighth Amendment conditions of confinement cases applies as well to nonemergency excessive force claims. 4 . Moreover, the allegations may state a claim under a substantive due process analysis. See Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986) (<HOLDING>). See also McGill, 944 F.2d at 347-49 Holdings: 0: holding that mere neglect for prisoners safety does not amount to a substantive due process violation implying that intent to do harm would be an abuse of government power and amount to a substantive due process violation 1: holding that government actor must intentionally abuse his or her power as a state official to harm state employee in order to sustain substantive due process violation 2: recognizing a plaintiffs  1988 claim predicated on an alleged violation of his substantive due process rights 3: recognizing  1983 substantive due process claim 4: holding that when a prisoners deliberate indifference claim is covered by the eighth amendment the substantive due process claims are duplicative and thus the substantive due process claims should be dismissed


Input: regarding the school; the implication, therefore, is that Finlay would have received his standard commission for bringing business to the MARQUES if in fact he ever brought such business from the school. The fact that the Ship’s Regulations provided that the captain was solely responsible for the safety of the ship and those on board does not make Finlay liable for the ship’s unseaworthiness, because a shipowner’s duty to provide a seaworthy ship is nondelegable. See Sieracki, 828 U.S. at 94 n. 11, 66 S.Ct. at 877 n. 11. Holding Finlay to be an owner pro hac vice because the Ship’s Regulations made him solely responsible for the safety of the ship would defeat the rule of nondelegability, for it would absolve the owners of liability for unseaworthiness. See Ramos, 423 F.2d at 917-18 (<HOLDING>). That plaintiffs’ decedents had no contact Holdings: 0: recognizing that enhancement requires control over a participant in the scheme not only control over the scheme itself 1: recognizing the general rule that a property owner is not liable for the negligence of an independent contractor 2: holding employer may be hable for sexual harassment of employee by independent contractor 3: holding that owner could not be hable for unseaworthy conditions arising after he has parted with control over his vessel under a demise charter and that a shipowner cannot escape liability by delegating partial control of his vessel to an independent contractor 4: holding authority to control limits duty to control


Input: a § 3.203(a)-qualifying document, but also as to the consequences, under that regulatory interpretation, of failing to submit such a document prior to the RO’s decision to seek verification from ARPER-CEN. Indeed, in a scheme where VA’s initial inquiry to ARPERCEN carries such potentially outcome-determinative consequences, the duty to notify the claimant as to what evidence she may submit would be of even greater importance. Similarly, in the context of such an interpretation, or more so, if § 3.203(a) is not applicable here, VA’s failure to inform the appellant that she should “provide any additional personal data pertaining to her husband, such as any aliases he may have used during military service”, would also be a notice error . Cf. Sarmiento v. Brown, 7 Vet.App. 80, 85 (1994) (<HOLDING>), overruled on other grounds by D’Amico v. Holdings: 0: holding that a fax requesting employment information and verification did not convey information regarding a debt but also noting that the senders name and logo did not make explicit that the request was from a debt collector 1: holding that when claimant supplies new identifying information va must submit additional request to arpercen for verification of service 2: holding that a party must submit a proposed instruction to preserve an objection for appeal 3: holding that general allegations of a need for additional discovery will not suffice the person presenting such a claim must show what discovery has been obtained why it is inadequate and the what additional information he expects to obtain from additional discovery 4: holding that an additional remedy does not constitute an additional requirement


Input: “have his cake and eat it too.” Id. at 282. Under basic principles of contract law, “[d]efendants must take the bitter with the sweet.” Id. at 283; see also United States v. Cianci 154 F.3d 106, 110 (3d Cir.1998) (“Under the law of this circuit, [a defendant] cannot renege on his agreement”). “When the government breaches a plea agreement, the general rule is to remand the ease to the district court for a determination whether to grant specific performance or to allow withdrawal of the plea.” United States v. Nolan-Cooper, 155 F.3d 221, 241 (3d Cir.1998). However, “we have allowed for an exception when the circumstances dictate that there is only one appropriate remedy for the defendant.” Williams, 510 F.3d at 427; see, e.g., United States v. Badaracco, 954 F.2d 928, 941 (3d Cir.1992) (<HOLDING>); see also Nolan-Cooper, 155 F.3d at 241 Holdings: 0: holding that the government was not responsible for delay from withdrawal of guilty plea 1: holding that permitting withdrawal of the defendants plea would be an empty remedy as he had already served much of his sentence 2: holding that defendant was responsible for the delay from the withdrawal of his guilty plea 3: holding that prosecution is generally entitled to specific performance or withdrawal of plea following defendants breach but because the government waived its right to withdrawal of plea only the possibility of specific performance remained 4: holding that because the defendants challenge to his sentence implicated his plea agreement the defendants request must be construed as a petition for postconviction relief


Input: particularity forfeits review under the “harmless error” rule. See Scarfo, 54 F.3d at 944; Linn v. Andover Newton Theological School, Inc., 874 F.2d 1, 5 (1st Cir.1989); Elwood, 815 F.2d at 175-76; New York, N.H. & H.R. Co. v. Zermani, 200 F.2d 240, 245 (1st Cir.1952). Consequently, appellate review is lim ited to determining whether a miscarriage of justice would occur were the asserted error not corrected. -See Scarfo, 54 F.3d at 940. WorldCom can demonstrate no miscarriage of justice. First, the “fair market value” standard defined by the district court, see supra 28-29, provided the jury with a just and reasonable measure of damages under Massachusetts law in these circumstances. See Mechanics Nat’l. Bank of Worcester v. Killeen, 377 Mass. 100, 384 N.E.2d 1231, 1239 (1979) (<HOLDING>); Hall v. Paine, 224 Mass. 62, 112 N.E. 153, Holdings: 0: holding that the new jersey real estate licensing act is applicable to the sale of a company through a stock sale 1: holding that fair market value was proper measure of damages for stock brokers breach of margin agreement caused by sale of plaintiffs shares without authorization noting that generally speaking fair market value is proper measure of damages for breach of contract relating to sale of goods which have an ascertamable value on the market 2: holding in action for breach of contract caused by wrongful foreclosure and sale of shares of stock plaintiff was entitled to recover the fair market value of the stock at the time of its sale 3: holding that chapter 8 of colorados ucc applied to the sale of shares in a corporation whose entire stock was held by one individual 4: holding stock transfer restriction in corporate bylaws did not prevent levy against and sale of stock by third party in order to pay judgment


Input: time prior to the closing of this transaction, Buyer agrees that such filing shall constitute a material breach of the terms of both this Purchase and Sale Agreement and its lease with Seller and Seller may ... retain any and all monies paid to it by Buyer, whether in the form, of earnest money or lease payments, as liquidated damages which sum Buyer and Seller agree would be fair and reasonable liquidated damages to Seller for such breach of this Agreement.... Thus, although the amendments to RE-21 did not specifically state that making the earnest money non-refundable was an advance election of remedies, when Phillips availed himself of the earnest money, he foreclosed his ability to pursue actual damages. See, e.g., McMullin v. Shimmin, 10 Utah 2d 142, 349 P.2d 720, 720-21 (1960) (<HOLDING>). Further, the parties’ intent is supported by Holdings: 0: holding that broker who represents seller cannot represent buyer in purchase of property from seller without sellers knowledge and consent 1: holding that liquidated damages under the adea are intended to punish and deter while contrasting them to the legislative purpose of liquidated damages under the fsla 2: holding that the sellers retention of the deposit evidenced an election of liquidated damages by the seller 3: holding that liquidated damages under fair labor standards act constitutes compensation for the retention of a workmans pay which might result in damages too obscure and difficult of proof for estimate other than by liquidated damages 4: holding that because liquidated damages under the adea are punitive in nature a jurys award of state punitive damages and adea liquidated damages constitutes a double recovery and therefore reducing the total recovery by the amount of the liquidated damages award


Input: this would constitute a miscarriage of justice. The offense of loitering and prowling contains two elements: first the accused must be loitering and prowling in a manner not usual for law-abiding citizens; and second, the loitering and prowling must be under circumstances that threaten the public safety. State v. Ecker, 311 So.2d 104 (Fla.), cert. denied, Bell v. Florida, 423 U.S. 1019, 96 S.Ct. 455, 46 L.Ed.2d 391 (1975). With regard to the second element, “the p an open convenience store constitutes loitering and prowling in a manner unusual for law-abiding citizens, there was no evidence introduced at trial indicating that appellant’s actions were creating an imminent threat to the safety of persons or property in the area. See T.W. v. State, 675 So.2d 1018 (Fla. 2d DCA 1996)(<HOLDING>); R.D.W. (holding that juvenile’s and two other Holdings: 0: holding that police officers had reasonable suspicion of criminal activity after observing a group of men huddled around a closed store at 2 am 1: holding that change in schedule  from working 600 am to 230 pm with sundays and mondays off to working 730 am to 400 pm with sundays and tuesdays off  did not constitute adverse employment action 2: holding that the police officer had reasonable suspicion when he saw a vehicle moving with its lights off in the parking lot of a closed business in a rural area at 300 am 3: holding that juveniles presence one foot from closed pawn shop at 400 am while carrying chain saw case did not create imminent threat to the safety of persons or property in the area 4: holding that the officer lacked reasonable suspicion to stop the car in which the defendant was a passenger when the officer saw the vehicle come out from behind a closed building at 330 am and the building had been recently burglarized


Input: a “custom, rule, and/or procedure among international long-haul carriers [by failing] to warn, advise and/or take adequate precautions to inform passengers of the risk of DVT.” Pis.’ First Am. Compl. at ¶ 20. Many courts have recognized that failing to carry out routine procedures in the usual way can constitute an accident under the Warsaw Convention. See, e.g., Fishman v. Delta Air Lines, Inc., 132 F.3d 138, 143 (2d Cir.1998) (applying a hot compress to relieve ear pain, which is a routine procedure, can be an accident if the water is excessively hot); Fulop v. Malev Hungarian Airlines, 175 F.Supp.2d 651, 669 (S.D.N.Y.2001) (failing to divert an airplane w to warn is irrelevant to the accident inquiry. Cf. Magan v. Lufthansa German Airlines, 181 F.Supp.2d 396, 402-03 (S.D.N.Y.2002) (<HOLDING>). The Sprayregen is inapposite; it involved an Holdings: 0: holding that where the dispositive issue in an administrative proceeding was whether an accident occurred as the plaintiff alleged it did collateral estoppel did not bar litigation of whether the accident was workrelated because that issue had not yet been litigated 1: holding that ordinary turbulence is not an accident and that the flight crews failure to knock on the lavatory door to warn the plaintiff of the turbulence was irrelevant to the accident inquiry 2: holding that an insureds personal belief that he was not liable for an accident provided no basis for submitting the question of the reasonableness of his delay in notification to a jury when the insured knew the day after the accident that it had been claimed that the cable he had installed had caused the accident 3: holding that summary judgment on plaintiffs res ipsa loquitur theory was precluded both because there existed genuine issues of material fact as to the cause of the accident and whether or not one of the defendants had exclusive control over the instrumentality of the accident 4: holding that probable cause was clearly present justifying the taking of a blood sample without the defendants consent when it was established that the defendant was involved in an automobile accident and the police noticed liquor on his breath at the scene of the accident and at the hospital


Input: True, the Ohio General Assembly has tasked the county offices with implementing the NVRA; but, as previously explained, the General Assembly also tasked the Director with the power to enforce any county transgressions of federal law. This is not an either-or proposition. The fact that some states, like Ohio, delegate the administration of public assistance programs to counties or municipalities should not mean that those states are free of all statutory obligations. See New York, 255 F.Supp.2d at 79 (“It would be plainly unreasonable to permit a mandatorily designated State agency to shed its NVRA responsibilities because it has chosen to delegate the rendering of its services to local municipal agencies.”); see also Henrietta D. v. Bloomberg, 331 F.3d 261, 286 (2d Cir.2003) (<HOLDING>). The federal food stamp program is Holdings: 0: holding that new york could not avoid its obligations under the rehabilitation act by delegating authority to localities to deliver federally funded services 1: holding that a financial guaranty payable in new york is a contract to perform services in new york subjecting foreign guarantor to jurisdiction under  302a1 2: holding that contract signed in new york by promisor from florida and partially performed in florida was governed by new york law because it was executed in new york 3: holding that the plaintiff in an eviction proceeding by a private landlord in federally funded section 8 housing could assert claims for violations of the rehabilitation act and fha as affirmative defenses with regard to nopet policy 4: holding that post2001 new york was clearly subject to suit under section 504 of the rehabilitation act


Input: decline to set a particular amount that constitutes a substantial reduction; this is a question for the trier of fact to determine, examining the totality of the circumstances. Because the commissioner did not consider whether Terry acted reasonably by leaving when faced with a reduction in pay and whether exhausting her alternatives by testing would have been futile, we remand for a new hearing. Terry requests attorney fees. RCW 50.32.160 provides that if this court overturns or modifies the commissioner’s ruling, the claimant is entitled to reasonable attorney fees. Accordingly, Terry is entitled to attorney fees upon timely filing an affidavit of attorney fees with this court. Agid and Ellington, JJ., concur. 1 Tapper v. Employment Sec. Dep’t, 122 Wn.2d 397, 406, 858 P.2d 494 (1993) (<HOLDING>). 2 Sweitzer v. Department of Empl. Sec., 43 Holdings: 0: holding the findings of fact required to support an alimony award are sufficient if findings of fact have been made on the ultimate facts at issue in the case and the findings of fact show the trial court properly applied the law in the case 1: holding because defendant does not argue in his brief that these findings of fact are not supported by    evidence in the record this court is bound by the trial courts findings of fact 2: holding that the court may not overturn the administrative law judges factual findings as long as they are supported by competent substantial evidence 3: holding that it is the commissioners findings of fact to the extent they modify or replace the administrative law judges findings that are relevant on appeal 4: holding that trial court made sufficient findings of fact when it dismissed appeal


Input: these circumstances, and assuming, solely for the purpose of this argument, that Maine law requires that a power of sale foreclosure auction meet the standard of commercial reasonableness, we cannot' agree with Oceanic’s argument that a fact-finder could" rationally conclude that the sale was commercially unreasonable. [¶33] Finally, Sloan’s Cove’s decision not to hire a licensed auctioneer does not render the sale unreasonable or require invalidation of the sale. ‘ Oceanic points to the auctioneering licensing statute, 32 M.R.S. § 285 (2015), which requires a person “who engages in the business of auc-tioneering, professes or advertises to be an auctioneer or advertises the sale of real, personal or mixed property by auction” to hold a valid auctioneer’s license. The pow per curiam) (<HOLDING>); Williston v. Morse, 51 Mass. 17, 23 (1845) Holdings: 0: holding that plaintiff lacked standing after foreclosure sale to set aside the sale arid reinstate her right to redeem property based upon arguments that events surrounding the closing of the sale were improper 1: holding in the analogous context of choiceoflaw in relation to the sale of personal property that compensation for arranging the sale is assessed apart from underlying sale 2: holding that the new jersey real estate licensing act is applicable to the sale of a company through a stock sale 3: holding that an auction sale by an unlicensed auctioneer did not invalidate the sale 4: holding that failure to comply with rule requiring notice of sheriffs sale requires voiding of sale


Input: that the state would choose to prosecute at trial put defendant at a disadvantage as he tried to defend against the charges. That is because the state’s method of charging, combined with a late election, allows the state to present evidence of a defendant’s multiple bad acts and then to select, mid-trial, which of those will be considered as a charge for the jury to decide. That approach to charging undermines efforts by Oregon courts to prevent “other acts” evidence from being introduced in contravention of the principle in OEC 404(3) that such evidence “is not admissible to prove the character of a person in order to show that the person acted in conformity therewith.” See, e.g., State v. Leistiko, 352 Or 172, 184-85, 282 P3d 857, modified on recons, 352 Or 622, 292 P3d 522 (2012) (<HOLDING>). In this case, the trial court did not know Holdings: 0: holding that absent a defendants stipulation the state must first introduce evidence sufficient to allow the jury to find that the charged act occurred before the trial court can admit uncharged misconduct evidence to prove intent 1: holding that at the summary judgment stage there must be sufficient evidence on which the jury could find for the plaintiff 2: holding that the government may not be permitted to introduce other crimes evidence in its case in chief to prove intent unless the defense disputes intent during opening statements 3: holding that the evidence was sufficient for the jury to find that an oral agreement existed and that it was not modified 4: holding that trial court did not abuse its discretion by allowing the state to introduce direct evidence of the controlling nature of defendants relationship with the victim


Input: (1984) (citing Menard v. Newhall, 135 Vt. 53, 55, 373 A.2d 505, 507 (1977)); see also McCullock I, 981 F.2d at 658 n. 2 (“The Ostrowski court applied a single standard to plaintiffs claims of negligent failure to warn and strict products liability.”). So, under Vermont law, to sustain a verdict premised on a “failure to warn” theory, plaintiff must provide evidence from which a reasonable jury could find: (1) that defendant owed a duty to warn plaintiff; (2) lack of warning made the product unreasonably dangerous, hence defective; and (3) defendant’s failure to warn was the proximate cause of plaintiffs injury. Menard, 135 Vt. at 54, 373 A.2d at 506; see Ostrowski, 144 Vt. at 308, 479 A.2d at 127; see also Hobart v. P.J.’s Auto Village, Inc., 136 Vt. 287, 289, 388 A.2d 419, 420 (1978) (<HOLDING>); see also Scronce v. Howard Bros. Discount Holdings: 0: holding that if a user actually knows of the danger a failure to warn cannot be a proximate cause of the injury 1: holding that the basis of liability is negligence and not injury 2: holding that whether the negligent acts of parties combined to become the proximate cause of the injury was a question for the jury 3: holding that use of tangible property must be proximate cause of injury and that property does not cause injury if it does no more than furnish the condition that makes the injury possible 4: holding that negligence must be the proximate cause of injury


Input: any commercial transactions and does not offer any products or services. (Id.) The “core notion” of commercial speech is that it “does not more than propose a commercial transaction.” Bolger v. Youngs Drug Prods. Co., 463 U.S. 60, 66, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983) (citations and quotations omitted); see Hoffman, 255 F.3d at 1184. However, the “boundary between commercial and noncommercial speech has yet to be clearly delineated.” Hoffman, 255 F.3d at 1184. On one end of the spectrum, an advertisement is “clearly commercial speech.” Id. at 1185; see e.g. Abdul-Jabbar, 85 F.3d at 409; Waits, 978 F.2d at 1097-98. On the other end of the spectrum is speech that, when viewed as a whole, expresses editorial comment on matters of interest to the public. See Hoffman, 255 F.3d at 1185 (<HOLDING>); Montana, 34 Cal.App.4th at 793-95, 40 Holdings: 0: holding that the court may consider an article not attached to the complaint in determining whether to dismiss the complaint because the article was integral to and explicitly relied on in the complaint and because the plaintiffs did not challenge its authenticity 1: holding that magazine article that used an altered photograph of a male celebrity to showcase a designer gown was noncommercial speech because the article did not have the sole purpose of selling a particular product complemented the magazine issues focus on hollywood part and present and combined fashion photography humor and visual and verbal editorial comment 2: holding that a state law violates article i when it has the likely effect of disadvantaging a class of candidates for national office and has the sole purpose of indirectly creating qualifications in addition to those set forth in article i 3: holding that expelled student whose role in controversy merited only short blurb in a nine page magazine article did not assume position of prominence 4: holding newspapers article reporting that police officer had stated he and others planned to kill the city mayor was not capable of an innocent construction so as to be nonactionable whether read alone or in the context of the entire article the court rejecting the defendants assertion that the remainder of the article gave it a different innocent meaning and finding the entire focus of the article is the threat by a police officer on the life of the mayor and noting the headline announced policeman threatened mayor


Input: not unconscionable); Walther v. Sovereign Bank, 872 A.2d 735 (Md. 2005) (arbitration provision in loan agreement not unconscionable, even though only the mortgagor was permitted to go to court, it prohibited class action claims, arbitration fees were not disclosed, and mortgagee was required to waive right to jury tria 85 So. 2d 990, 992 (Fla. Dist. Ct. App. 2004) (arbitration provision requiring purchaser of automobile to resolve all claims in arbitration but not requiring dealer to resolve any claims in 04) (arbitration provision that provides "a judicial forum for practically all claims" that automobile dealer could have against purchaser but assigning any claims by the purchaser to arbitration unconscionable); Arnold v. United Cos. Lending Corp., 511 S.E.2d 854, 861-62 (W.Va. 1998) (<HOLDING>). See cases cited at 1 Farnsworth, supra note Holdings: 0: holding that where a debtor borrowed money from a third party to pay off the holder of a pmsi in the collateral the effect was to extinguish the pmsi the court noted that a finding that the lender enabled the debtor to acquire rights in the collateral as  9107 requires may be possible where a nonselling lender has given value prior to the time the debtor acquires rights in the collateral 1: holding unconscionable an arbitration provision in a consumer lending contract that binds the consumer to relinquish his or her right to a day in court and virtually all substantive rights while the lender retains the right to a judicial forum for purposes of collection and foreclosure proceedings deficiency judgments and all other procedures which the lender may pursue to acquire title to the borrowers real or personal property 2: holding that the fcras provision that a lender may only use and obtain consumer credit information for the purpose of making a firm offer of credit requires that the lender offer something of value as an extension of credit alone 3: holding that the lender was subject to the dtpa because the borrowers purpose in obtaining the loan was the purchase of a house 4: holding lender loses right to a premium when it elects to accelerate the debt and declining to allow lender to avoid the consequences of its choice of acceleration


Input: vacated on other grounds, 516 U.S. 1105, 116 S.Ct. 900, 133 L.Ed.2d 834 (1996); see also United States v. Scafe, 822 F.2d 928, 932 (10th Cir.1987) ("A defendant t.Ct.App.1994) (reversing for failure to instruct on justifiable use of nondeadly force, noting "it is the nature of the force and not the end result that must be evaluated”); White v. Commonwealth, 333 S.W.2d 521, 524 (Ky.1960) ("[Wjhere no deadly weapons are involved and the defendant is entitled to an instruction on involuntary manslaughter, an unintentional homicide, he is entitled to a further instruction on the theory of defense against ordinary assault and battery, against the menace of mere bodily harm as distinguished from the threat of death or great bodily harm.’’); State v. Hare, 575 N.W.2d 828, 833 (Minn.1998) (<HOLDING>). We cannot therefore agree with the dissent Holdings: 0: holding that illegal use of a weapon is one of the predicate offenses for manslaughter where there is no intent to cause death or great bodily harm 1: holding that although the first shot might have been justified in selfdefense a second shot to the victims body cannot be so justified when danger of death or great bodily harm ceases 2: holding that where use of reasonable nondeadly force causes death defendant entitled to instruction on selfdefense 3: holding it error to give selfdefense instruction requiring that defendant believe his actions were necessary to avert death or great bodily harm when defendant claimed that the victims death was accidental 4: holding that when both parties agree that the facts of the case entitled defendant to a selfdefense instruction failing to so instruct the jury was error


Input: P.3d 170, 177 (Okla.2007). Stewart involved an action for damages for personal injuries caused when the driver-employee of a tractor-trailer rear-ended the Stewarts’ vehicle. 241 F.Supp.2d at 1218. Stewart, relying on Marrier, sued the driver and the commercial carrier that employed the driver, asserting a private cause of action under section 14704(a)(2). Id. at 1219. The Stewart court respectfully disagreed with the reasoning in Marrier. Finding the language in section 14704(a)(2) “ambiguous and inconsistent with other language in the statute,” the federal district court looked “to the legislative history for guidance in interpreting the statute.” Id. The Stewart court relied, in part, on Owner-Operator Indep. Drivers Ass’n, Inc. v. New Prime, Inc., 192 F.3d 778, 785 (8th Cir.1999) (<HOLDING>). Stewart, 241 F.Supp.2d at 1221. In Holdings: 0: holding that section 14704a2 authorizes private action for damages and injunctive relief to remedy at least some violations of the motor carrier act and its implementing regulations 1: holding that  1132a3b authorizes the award of appropriate equitable relief to a beneficiary for violations of erisa 2: holding that liquidated damages provision did not provide adequate remedy at law or prevent injunctive relief 3: holding that section 14704a authorizes private actions for damages  to remedy at least some violations of the motor carrier act 4: recognizing that implicit in language of  9 allowing civil action for damages or injunctive relief or both was a plain legislative intent to afford victims of discrimination the legal remedy of compensatory damages


Input: at 993. B. The People next argue that the evidence discovered by the arresting officers is admissible under the good faith exception to the exclusionary rule. Subsection 16-3-308(1), 8A C.R.S. (1986), provides that “[ejvidence which is otherwise admissible in a criminal proceeding shall not be suppressed by the trial court if the court determines that the evidence was seized by a peace officer, as defined in subsection 18-1-901(3)(1), C.R.S., as a result of a good faith mistake or a technical violation.” “Good faith mistake” is defined in subsection 16-3-308(2)(a) as “a reasonable judgmental error concerning the existence of facts or law which if true would be sufficient to constitute probable cause.” See also United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (<HOLDING>); Massachusetts v. Sheppard, 468 U.S. 981, 104 Holdings: 0: recognizing good faith exception to fourth amendment exclusionary rule 1: holding that the fourth amendment exclusionary rule should not bar the use of evidence obtained by police officers acting in good faith and with reasonable reliance on a facially valid search warrant 2: holding that the exclusionary rule under the fourth amendment applies to civil forfeiture proceedings 3: holding that an exception to the fourth amendment exclusionary rule applies where the police would have obtained the evidence if no illegality had occurred 4: holding that with respect to the good faith exception to the exclusionary rule article 1 section 11 of the wisconsin constitution affords additional protection than that which is afforded by the fourth amendment


Input: the res judicata doctrine bars Donald’s action against him. Collateral estoppel, or issue preclusion, “prevents the relitigation of factual issues already decided if the identical issue was determined by a prior final judgment, and the party estopped had a fair opportunity and incentive to litigate the issue in a prior proceeding.” Portland Co., 2009 ME 98, ¶22, 979 A.2d at 1287 (quotation marks omitted). [¶ 19] A party to a current proceeding may assert collateral estoppel defensively to bar the opposing party from relitigating factual issues resolved against it in a prior proceeding and which were decided by a prior final judgment, even though the party asserting collateral es-toppel was not a party to the prior proceeding. See Brewer v. Hagemann, 2001 ME 27, ¶ 8, 771 A.2d 1080, 1033 (<HOLDING>); Hossler v. Barry, 403 A.2d 762, 768 Holdings: 0: holding that the party against whom collateral estoppel is asserted must have been a party to the prior action 1: holding that a civil claim is barred by collateral estoppel even though the prior adjudication was in criminal proceedings and the parties are not the same because the matters were actually litigated and decided in the prior trial 2: holding that the plaintiff could not show surprise when the plaintiff had received the additional terms from the defendant prior to the agreement 3: holding that where the dispositive issue in an administrative proceeding was whether an accident occurred as the plaintiff alleged it did collateral estoppel did not bar litigation of whether the accident was workrelated because that issue had not yet been litigated 4: holding that the defendant though not a party to the prior litigation could assert collateral estoppel defensively to preclude the plaintiff from relitigating factual issues that the plaintiff had previously litigated and lost


Input: in the first place. If [it] prevails], the only appropriate remedy is a declaration that the [Ordinance] is invalid and an injunction forbidding its enforcement.” Ezell, 651 F.3d at 699 n. 10 (emphasis in original). Waterfront cites to no case awarding anything other than injunctive relief to a plaintiff who asserts that it was harmed by the mere enactment of a zoning law, where the plaintiff has not applied for a permit. See also Rumber v. District of Columbia, 595 F.3d 1298, 1300 n. 1 (D.C.Cir.2010) (claim for compensatory damages did not save from mootness an action to enjoin eminent domain against a property because “no property ha[d] been taken from [the] plaintiffs”); Angino v. VanWagner, No. 1:CV-05-1748, 2009 WL 2859041, at *14-15 (M.D.Pa. Sept. 3, 2009) (Vanaskie, J.) (<HOLDING>). Limiting the available remedy to an Holdings: 0: holding that nominal damages award was appropriate where the evidence supporting the damages was speculative 1: holding that a  1983 claim for damages was not prohibited by claim preclusion because the plaintiff could not have sought damages in his prior article 78 proceeding arising out of the same facts 2: holding such damages available where local law silent on issue speculative nature of damages does not preclude recovery 3: holding that damages were not available to a plaintiff who challenged an ordinance under a due process theory because the plaintiff had not sought a permit and therefore any claim for damages was purely speculative 4: holding that plaintiff could not request damages for a facial challenge to a zoning ordinance under the first amendment because the provision had not yet harmed the plaintiff


Input: of Span and did not take his threats seriously. For example, counsel grilled Epps about his failure to immediately report Span’s threat to the staff at the Metropolitan Correction Center where Epps was detained at the time. But Epps’s testimony about “Lil Ride” showed that he had good reason to take Span seriously. Epps knew that Span had tried to coerce “Lil Ride” into recanting, and he had reason to believe, based on Span’s plot to kill “Lil Ride”, that Span would resort to violence. This knowledge explains why Epps would have recanted his statements, and why he might have hesitated to report Span’s threat to authorities. The testimony about “Lil Ride” thus tended to rehabilitate Epps and lend plausibility to his story. See United States v. Holly, 167 F.3d 393, 394-95 (7th Cir.1999) (<HOLDING>). Accordingly, we agree with appellate coun sel Holdings: 0: holding that testimony by witnesses that the defendant threatened a witness is sufficient to support acharge of retaliation 1: holding that material for witnesses need not be produced to defendant where the witnesses were not called as government witnesses at trial 2: holding that district court could admit evidence under 404b that defendant in insurance fraud case had threatened and abused witnesses in order to explain why witnesses initially told investigators defendant was not involved 3: holding that the failure to call certain witnesses was not ineffective assistance because witnesses already presented similar evidence and counsel is not required to present cumulative evidence 4: holding it was not error to admit incourt identifications for the first time without notice to defendant since witnesses had not made pretrial identifications and counsel had the opportunity to crossexamine the witnesses


Input: the district court committed no error in denying Plaintiffs' motion to amend their complaint and add a claim for disparate impact discrimination based on Department of Education regulations promulgated under § 602. 8 . Noteworthy among the district court cases are the following. In South Camden Citizens in Action v. New Jersey Dep’t. of Envtl. Prot., 145 F.Supp.2d 505 (D.N.J.2001), the district court had issued an injunction and declaratory judgment against the commissioner of the state's environmental protection agency for issuing air permits that the court determined had a disparate impact in violation of the regulations passed pursuant to § 602 by the Environmental Protection Agency. When the Sandoval decision was issued, the district court set a briefing schedule and th Cir.1997) (<HOLDING>). 9 . Not only are the Eleventh Circuit Holdings: 0: holding that private rights of action to enforce federal law must be created by congress courts may not create a cause of action absent statutory intent 1: holding congress must unambiguously confer federal rights on the plaintiff 2: holding that congress cannot confer the executives standing to enforce public rights on private individuals through citizensuit provisions 3: holding that just because a claim implicates a federal issue or involves construction of federal law does not necessarily give rise to a federal question and confer removal jurisdiction on a federal court 4: holding that congress cannot consistent with the constitutional principles of the separation of powers confer standing on a qui tam plaintiff who has suffered no cognizable injury to allow that plaintiff to prosecute an fca action on the governments behalf


Input: ... and by any paraprofessional person employed by such ... attorney ... based on the nature, the extent, and the value of such services, the time spent on such services, and the cost of comparable services other than in a case under this title: and (2) reimbursement for actual, necessary expenses. 11 U.S.C. § 330(a) . The award of compensation as well as the time of the award, and the amount of such award is within the discretion of the Court. In re Land, 138 B.R. 66 (D.Neb.1992), aff'd, 994 F.2d 843 (8th Cir.1993) (Table); 11 U.S.C. §§ 330 and 331. Further, an attorney must apply to the Court for compensation or reimbursement of expenses as set forth in Rule 2016(a) of the Federal Rules of Bankruptcy Proc e Golden Triangle Film Labs, Inc.), 164 B.R. 670, 671-72 (M.D.Fla.1994) (<HOLDING>); Kenneth Leventhal & Co. v. Spurgeon Holding Holdings: 0: holding that if an attorney is discharged without cause he is entitled to a charging lien for the reasonable value of his services rendered prior to the date of the substitution of counsel where 1 his representation was entirely competent and successful up until his discharge 2 any potential conflict of interest was disclosed and the plaintiff chose to continue to be represented by the attorney and 3 the discharge of the attorney occurred solely because of a fee dispute 1: holding that each plaintiff is liable for fees if he would have been entitled to his fees if he had prevailed 2: holding that an attorney could be required to disgorge any fees already received if he failed to indicate the specific nature of any services preformed or to produce documentary evidence that he was entitled to such fee 3: holding that because the wife failed to present any evidence as to the legal services performed in the trial court the wife was not entitled to a second hearing to establish attorneys fees 4: holding that a suspect must be warned prior to any questioning that he has the right to remain silent that anything he says can be used against him in a court of law that he has the right to the presence of an attorney and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires


Input: Mr. Robbins asserts that the district court erred in calculating the tax-loss amount attributable to his crimes, a determination which affects his sentence under the advisory Federal Sentencing Guidelines. See U.S.S.G. § 2T1.1. On guideline issues, we review legal questions de novo, factual findings for clear error, and give due deference to the district court’s application of the guidelines to the facts. United States v. Wolfe, 435 F.3d 1289, 1295 (10th Cir.2006). In determining the total tax loss, “all conduct violating the tax laws should be considered as part of the same course of conduct or common scheme or plan unless the evidence demonstrates that the conduct is clearly unrelated.” U.S.S.G. § 2T1.1, cmt. n. 2. See also United States v. Hayes, 322 F.3d 792, 801-02 (4th Cir.2003) (<HOLDING>). The tax loss proved at trial amounted to Holdings: 0: holding that tax loss may include amounts in returns prepared by the defendant but not included in the indictment 1: holding crimefraud exception applied to testimony of attorney and accountant who prepared his clients tax returns during grand jury investigation for tax evasion 2: holding that tax returns and tax return information cannot regain their confidential status once the returns have become part of the public record by their use in a public trial 3: holding that the lower court erred both in requiring production of copies of the defendants income tax returns and in receiving the returns into evidence over objection 4: holding that tax returns are privileged under the statutes that prohibited the tax board and employees from disclosing any information and this privilege should not be nullified by allowing third parties to obtain the information by demanding copies of the returns


Input: executed U-4 registration agreement. ISSUES I. Does Ottman’s defamation claim fall within the scope of the U-4 registration agreement? II. Does compelling arbitration violate Ottman’s right to a jury trial? III. Is Ottman pursuing a baseless claim? ANALYSIS Whether a party has agreed to arbitrate a particular dispute is a matter of contract interpretation, which we review de novo. See Johnson v. Piper Jaffray, Inc., 530 N.W.2d 790, 795 (Minn.1995) (agreement to arbitrate matter of contract interpretation); Turner v. Alpha Phi Sorority House, 276 N.W.2d 63, 66 (Minn.1979) (contract interpretation subject to de novo review). We resolve any doubts in favor of arbitration. See Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983) (<HOLDING>); see also 9 U.S.C. §§ 1-15 (1988) (codifying Holdings: 0: holding any doubts concerning scope of arbitrable issues resolved in favor of arbitration 1: holding that the workers compensation act is to be liberally construed and reasonable doubts as to construction are to be resolved in favor of coverage 2: holding that we resolve doubts about the usefulness of expert testimony in favor of admissibility 3: holding that a settlement agreement is an arbitrable subject when the underlying dispute is arbitrable 4: holding that statutes and ordinances are presumed to be constitutional and all reasonable doubts must be resolved in favor of constitutionality


Input: objected to arbitration on numerous grounds, including that the agreement to arbitrate was unconscionable. Although the District Court found that the arbitral forum was unavailable, it neither addressed substitution of a different arbitrator under § 5 of the FAA nor reached Mr. Inetianbor’s claim of unconscionability. Mr. Inetianbor does not ask us specifically to affirm on the grounds that the agreement to arbitrate was unconscionable, but he has repeatedly maintained on appeal that the agreement was a sham. I agree and conclude Congress did not intend for the federal courts to compel arbitration in such circumstances and that we should exercise our discretion to affirm the District Court on this alternate ground. See Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir.2001) (<HOLDING>); Stewart v. Happy Herman’s Cheshire. Bridge, Holdings: 0: holding that judgment may be affirmed on any ground supported by record 1: holding that judgment may be affirmed on any ground supported by the record 2: holding that in reviewing a district courts decision on a motion for summary judgment de novo the decision can be affirmed on any ground that finds support in the record including an alternate ground 3: holding that a grant of summary judgment may be affirmed on any independent ground revealed by the record 4: holding that the trial court may not grant summary judgment on a ground not raised in the motion


Input: groundwater. Thus, although the PCE contamination (as Sen try now argues) was not actually known or discovered by Greenbriar until 1996 (after the expiration of the Sentry policies), it may have “manifested itself” — that is, it may have been discoverable through reasonable testing — during the effective terms of each of the Sentry policies. Even if, as Sentry urges, “manifest” could be taken also to mean “discovered,” there would be, at most, an ambiguity in the meaning of “manifest” in this case, because “discoverable,” as shown supra, is at the very least an equally plausible definition of the term. The existence of such an ambiguity requires application of well-settled rules of construction as aids in the interpretive enterprise. See, e.g., Partnership Umbrella, 530 S.E.2d at 160 (<HOLDING>); State Farm Fire & Cas. Co. v. Walton, 244 Va. Holdings: 0: recognizing that where the statutory language is not ambiguous  the plain and ordinary meaning of the statute must be given effect 1: holding that when relevant contract language is ambiguous interpretation is turned over to the factfinder 2: holding that court may not use extrinsic evidence unless contract language is ambiguous 3: holding that extrinsic evidence of the parties course of conduct may be considered where the contract language is ambiguous 4: holding that rules of contract construction are to be applied where the language used is ambiguous


Input: that the first part of MCL 600.5851(7) establishes a specific time in which a person under the age of eight must file a claim, with Miller, supra at 202, which defines a statute of limitations as a statute requiring a person to bring a claim within a specified time. In other words, statutes like MCL 600.5851(1) and MCL 600.5852 contain language that “saves” a claim that may otherwise be barred, while the language within MCL 600.5851(7) “gives” two distinct periods in which this particular class of claimants may file suit. Thus, the plain language of MCL 600.5851(7) provides an alternative limitations period (the tenth-birthday rule) that, depending on the facts of a particular case, may provide a plaintiff with more time than the “general” two-year period to sue. Miller, supra at 202 (<HOLDING>). Key to this conclusion is both that the Holdings: 0: holding that duration of limitation is a factor in determining whether limitation is significant 1: holding that a discovery exception to a statute of limitation applies only to the discovery of facts not discovery of the law 2: holding that limitation period begins to run at the time of the breach 3: holding that the discovery rule within mcl 6005838a2 is an alternative to the other periods of limitation and it is itself a period of limitation 4: recognizing that a principal may limit the authority of its agent and such limitation will be binding on a third party who is aware of the limitation


Input: need for reliability in the determination that death is the appropriate punishment. See id. at 584, 108 S.Ct. at 1986. The Court remarked that to allow the jury to consider evidence that was materially inaccurate was error. See id. at 590,108 S.Ct. at 1989. The present case does not parallel the situation addressed in Johnson nor the vast majority of cases that have relied upon Johnson to determine whether evidence of a criminal conviction or conduct may be properly admitted at sentencing. Instead of a materially inaccurate criminal conviction, we confront purportedly materially inaccurate testimony. Notwithstanding the difference, Hernandez must still establish that Grigson’s and Erdmann’s testimonies were false and material. See Fuller v. Johnson, 114 F.3d 491, 497 (5th Cir.1997) (<HOLDING>). Although neither the Supreme Court nor this Holdings: 0: holding that the petitioners federal habeas action accrued when a witness executed an affidavit recanting the testimony he gave during a prisoners murder prosecution not on the date that the state supreme court rejected the prisoners claim 1: holding that in a prisoners eighth amendment claim of deliberate indifference to a serious medical need expert testimony is necessary when the seriousness of injury or illness would not be apparent to a lay person 2: holding that habeas prisoners eighth amendment claim failed because he had not adequately shown that erdmanns testimony was false or material 3: holding that a prison official can violate a prisoners eighth amendment rights by failing to intervene 4: holding that because pretrial detainees fourteenth amendment rights are comparable to prisoners eighth amendment rights the same standards apply


Input: bad faith while negotiating his losses: "WHEREAS, Farmers has denied that any such promise was extended to Goodwin, but has nevertheless agreed to pay to Goodwin the sum of $50,000 . . .”. (Italics ours.) Clerk’s Papers, at 27. Likewise, the agreement cannot be said to extinguish Bacon’s liability, as it required commencement of a lawsuit against Bacon, nor did Plaintiff receive full payment, as he would receive any award beyond $50,000, whether from Bacon or Sandoz. Thus, Plaintiff remained the real party in interest, and CR 17 did not compel admission of the test uding the seven federal circuits, that have addressed FIFRA preemption since the United States Supreme Court’s explanation of express preemption analysis in Cipollone v. Liggett Group, Inc., 505 U.S. 504, 120 L. N.Y. 1992) (<HOLDING>). Upon engaging in our own analysis of the Holdings: 0: holding fifra preempts no commonlaw claims 1: holding that fifra preempts breach of warranty claims based on labeling 2: holding that fifra preempts state law failure to warn claims 3: holding fifra preempts implied warranty claims 4: holding fifra preempts inadequate label claims but not claims for failure to warn through other channels


Input: opinion supplements and amends a letter opinion I issued on June 15, 2007 denying cross-motions for summary judgment because genuine issues of material fact existed, see R. 4:46-2(c), and my bench opinion of September 7, 2007 in which I made certain factual findings but did not decide the merits of these appeals. This opinion is based on the certifications and documents submitted in connection with the summary judgment motions as well as the testimony and documents presented at a plenary hearing on September 7, 2007, and my evaluation of the credibility of the witnesses. 3 Under I.R.C. § 1031(a), the “taxpayer” must effect the exchange, that is, the same taxpayer must be transferor and transferee in the exchange transaction. See Chase v. Commissioner, 92 T.C. 874, 1989 WL 38262 (1989) (<HOLDING>). 4 Because single member limited liability Holdings: 0: holding that a transaction did not satisfy the requirements of  1031a when a partnership sold property and individual partners acquired the exchange property 1: holding that tjhere is a strong legal presumption that all property acquired during marriage is community property 2: recognizing that partnership property is a type of ownership 3: holding lease of property was a commercial transaction where the property was for commercial ranching but a residence was maintained on the property 4: holding under oregons larceny statute which is based on new yorks larceny statute that a partner cannot be charged with the theft of partnership property because oregon adheres to the commonlaw rule that partners cannot steal partnership property


Input: (Tex. App.-Texarkana 2000, pet. denied) (internal citation omitted); Natho v. Shelton, No. 03-11-00661-CV, 2014 WL 2522051, at *2 (Tex.App.-Austin May 30, 2014, no. pet. h.) ("When a fiduciary intentionally breaches his duty by self-dealing and thereby gaining a benefit for himself, willful and fraudulent acts are presumed.”). Thus, under Texas law, Whitting-ton’s intent is likely presumed as a matter of law. 13 . Some courts, noting that it could be difficult to "prove a negative” — that is, to prove reliance on facts that were not disclosed— have focused their inquiry on whether the concealed information was material, that is, whether it would have affected decision-making had it been disclosed, a standard plainly met here. See Titan Grp. v. Faggen, 513 F.2d 234, 239 (2d Cir.1975) (<HOLDING>); see also Apte v. Japra (In re Apte), 96 F.3d Holdings: 0: holding in securities law context that in cases involving nondisclosure of material facts  materiality rather than reliance  becomes the decisive element of causation 1: holding that reliance is not an element to be proven under securities fraud in indiana 2: holding that such information is not material under securities law 3: holding in a securities fraud action that a court may only find the lack of materiality where a jury could not reasonably find materiality 4: holding that reliance is not a required element of securities fraud in a state enforcement action in idaho


Input: Connecticut. Consequently, the court has no information on the precise content of these histories, and must base its decision solely on the records from Connecticut. See footnote 4, supra. 9 . Camara’s birth date and driver's license expiration date are not protected. In the definition of "personal information,” section 2725(3) lists an individual's "photograph, social security number, driver identification number, name, address (but not the 5-digit zip code), telephone number, and medical or disability information....” 18 U.S.C. § 2725(3). Applying the interpretive doctrine of expressio unius est exclusio alterius, the statute cannot be read to apply to an individual's birth date nor his driver's license expiration date. See Frank G. v. Bd. of Educ., 459 F.3d 356, 370 (2d Cir.2006) (<HOLDING>). 10 . Courts turn to the traditional canons of Holdings: 0: holding that application of the doctrine of expressio unius is proper where the statute identifies a series of two or more terms or things that should be understood to go hand in hand thus raising the inference that a similar unlisted term was deliberately excluded 1: holding law of case doctrine is procedural and does not go to jurisdiction of court 2: holding that the term occurrence was defined to mean any happening or series of happenings arising out of or due to one event taking place during the term of this contract 3: holding that contract terms were ambiguous where the specific term that appellant argued should control a more general term was itself susceptible of two reasonable interpretations 4: holding that where a statute uses the disjunctive term or the provisions of the statute plainly encompass two distinct situations


Input: and the district court will be ordered to enter a judgment of acquittal on both of those counts on remand. 1 . Inasmuch as we are vacating each of the defendants’ convictions on Counts 2 through 13, and Inge’s convictions on two counts, we need not address the claims of error that pertain to sentencing. We will, however, address certain evidentiary rulings that are challenged in this appeal as the same issues may again arise if the Defendants are retried on the tax evasion charges. 2 . The Donatos were charged in Counts 14 through 17 and McKee in Counts 18 through 21. 3 . Courts of Appeals are split on whether a constructive amendment to an indictment are per se reversible error under plain error review. Compare United States v. Floresca, 38 F.3d 706, 712-13 (4th Cir.1994) (en banc) (<HOLDING>) with United States v. Fletcher, 121 F.3d 187, Holdings: 0: holding that it is per se reversible error to prohibit adverse inference questioning of the venire 1: holding the erroneous deprivation of the right to counsel constitutes per se reversible error 2: holding trial errors are subject to a harmless error analysis 3: holding that constructive amendments which are per se reversible under harmless error analysis are also per se reversible under plain error analysis 4: holding that per se statutory rule is not permissible under fourth amendment


Input: the subject: Plaintiff included a copy of the 2001 EEOC Complaint with his application on June 30, 2005 — twelve days before Plaintiffs interview with Schlem-mer. {See Michael Henshaw Decl. ¶ 4, June 19, 2007) Plaintiff had earlier stated at oral argument that it was Schlemmer who first brought up the 2001 EEOC Complaint. (Mem.Op.4, Apr. 4, 2007) The only genuine issue is which party first broached the subject. For purposes of Plaintiffs prima facie case, it is sufficient that Defendant was aware of the protected activity, regardless of which party first brought up the issue. Defendant argues, however, that in Title VII retaliation cases, “generally the passage of time ... tends to negate the infer- enee of discrimination.” Price, 380 F.3d at 213; see also Dowe, 145 F.3d at 657 (<HOLDING>). Although Defendant’s argument is true, Holdings: 0: holding that although evidence that the alleged adverse action occurred shortly after the employer became aware of the protected activity is sufficient to make a prima facie causation case the opposite is equally true  a lengthy time lapse between the employer becoming aware of the protected activity and the alleged adverse employment action  negates any inference that a causal connection exists between the two 1: holding that a threeyear gap between the protected activity and the adverse employment action was insufficient to support an inference of causation 2: holding that five weeks between protected activity and adverse employment action insufficient to establish a causal connection 3: holding that sufficient evidence of causation existed where adverse employment action occurred less than two months after protected activity 4: holding that a prima facie case of retaliation requires a causal link between the employees protected activity and the employers adverse employment action


Input: Cir. 1993) (Breyer, C.J.). Other courts of appeals have enumerated comparable requirements. See, e.g., United States v. Sloan, 505 F.3d 685, 697 (7th Cir.2007); United States v. Mandanici, 205 F.3d 519, 524 (2d Cir.2000); United States v. Walgren, 885 F.2d 1417, 1420 (9th Cir.1989). Beyond these generalities, the case law has been uneven. For example, several courts have indicated that something more than the stain of conviction is needed to show continuing collateral consequences. See, e.g., Fleming v. United States, 146 F.3d 88, 90-91 & n. 3 (2d Cir.1998) (per curiam); United States v. Dyer, 136 F.3d 417, 429-30 & n. 33 (5th Cir.1998); Hager, 993 F.2d at 5; United States v. Osser, 864 F.2d 1056, 1059-60 (3d Cir.1988); see also United States v. Keane, 852 F.2d 199, 203 (7th Cir.1988) (<HOLDING>). Other courts have indicated that continuing Holdings: 0: holding that defendants have a federal constitutional right to make a collateral attack on a prior conviction only when that conviction was obtained without the assistance of counsel 1: holding that  once the sentence imposed for a conviction has completely expired the collateral consequences of that conviction are not themselves sufficient to render an individual in custody for the purposes of a habeas attack upon it 2: holding that the exception is applied only in exceptional situations  3: holding that continuing collateral consequences arise only in situations where the disability is unique to a criminal conviction 4: holding the petitioners challenge of his conviction is not rendered moot by the expiration of the underlying sentence because collateral consequences flowing from the conviction give the petitioner a substantial stake in the judgment of conviction which survives the satisfaction of the sentence imposed on him


Input: of Corr., 364 Fed.Appx. 499, 500 (10th Cir.2010). On September 19, 2014, after additional state-court proceedings, Mr. Chase filed a second § 2254 application in federal district court again asserting ineffective assistance of counsel with respect to his plea. He supported his argument with alleged new law—Lafler v. Cooper, — U.S. -, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). The district court dismissed the application for lack of jurisdiction and denied a COA, determining that the application was second or successive. The court declined to transfer the application to this court because Lafler did not announce a new rule of constitutional law and therefore it would not apply retroactively to Mr. Chase’s conviction. See In re Graham, 714 F.3d 1181, 1182-83 (10th Cir.2013) (per curiam) (<HOLDING>). Mr. Chase now seeks a COA from us. He asserts Holdings: 0: holding ineffectivetrialassistance claim may be brought in 28 usc  2255 proceeding regardless of whether claim could have been raised on direct appeal 1: holding that a claim under booker does not fit within the savings clause of 28 usc  2255 2: holding that constitutional claims are extraneous resentencing issues that a court cannot address during a  3582c2 proceeding and that a defendant is entitled to raise constitutional challenges to a sentence by making a collateral attack under 28 usc  2255 3: holding that equitable tolling is available for petitions filed pursuant to 28 usc  2255 4: holding in 28 usc  2255 proceeding that lafler does not establish new rule of constitutional law


Input: his motion to reconsider. In re Jin Di Lu, No. A97 162 780 (B.I.A. Jan. 16, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of the case. Where, as here, an alien files a timely petition for review from the denial of a motion to reconsider, but not from the underlying decision for which reconsideration is sought, we may review only the denial of the motion to reconsider. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 88, 89-90 (2d Cir.2001). To the extent that Lu challenges the BIA’s denial of his motion to reconsider, we find that the BIA reasonably denied his motion where he failed to specify errors of fact or law in its prior decision as required by 8 C.F.R. § 1003.2(b)(1). See Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir.2006) (<HOLDING>). For the foregoing reasons, the petition for Holdings: 0: holding that bia abused its discretion in denying motion to reopen 1: holding that the bia does not abuse its discretion by denying a motion to reconsider where the motion merely repeats arguments that the bia has previously rejected 2: holding the finality of a bia order is not affected by a subsequent motion to reconsider 3: holding that merely reiterating arguments previously presented to the bia does not constitute specifying errors of fact or law as required for a successful motion to reconsider alteration omitted 4: holding that the timely filing of a motion to reopen or reconsider with the bia does not toll the time period for seeking appellate court review and that the mere act of filing the motion does not render nonfinal the underlying bia decision


Input: Criminal Appeals. The Air Force Rules of Practice and Procedure provide further guidance on the granted issue: When a case is remanded directly to the Court by the United States Court of Appeals for the Armed Forces (hereinafter CAAP), it shall, when practical, be referred to the same numbered panel that last decided the case. A.P.C.C.A. R. 2.2(b). Nothing in the UCMJ, or rules of procedure provide Appellant the right to select a panel, or have his case considered by any particular panel. Article 66, UCMJ; A.F.C.C.A. R. 2.2(b); United States v. Vines, 15 M.J. 247, 249 (C.M.A. 1983). By law, the court may review eases en banc or in panels, and the chief judge of the court has broad authority to assign, remove and reassign judges to cases on the court’s docket. See Vines, 15 M.J. at 249 (<HOLDING>). In Vines, the accused’s case was sent to the Holdings: 0: holding that the panel is bound by decisions of prior panels 1: holding that statements made only to supervisor and chief by police officer were matters of public concern 2: holding that a prior panel decision is binding on subsequent panels 3: holding that there are no restrictionsstatutory or regulatoryon the authority of the chief judge as administrative chief of the court to assign cases to panels as he wishes in addition the power to change panel assignment once made is likewise unrestricted 4: holding the chief of police was an atwill employee because the parties agreed that the chief of police was an appointed officer and the citys charter stated that officers shall be appointed and may be removed by the mayor with consent of the council


Input: deliberative process and then to discuss that information with her. The standard only requires physicians and counselors to make reasonable efforts. They need not be mind readers, as long as they reasonably attend to the circumstances of their individual patients____ The reasonably prudent patient standard thus takes into account each woman’s unique circumstances. [Kathy Seward Northern, Procreative Torts: Enhancing the Commonr-Law Protection for Reproductive Autonomy, 1998 U. Ill. L.Rev. 489, 533.] The physician’s obligation, therefore, does not “compel disclosure of every risk ... to any [pregnant] patient[,]” but rather only “material risks to a reasonable patient.” Largey, supra, 110 N.J. at 213, 540 A.2d 504. E.g., Jones v. United States, 933 F.Supp. 894, 902 (N.D.Cal.1996) (<HOLDING>), aff'd, 127 F.3d 1154 (9th Cir.1997), cert. Holdings: 0: holding that notice and authorization were ineffective to toll statute because release failed to include information on plaintiffs physicians for previous five years and portion requiring her to identify her treating physicians was also incomplete 1: holding that military physicians did not have duty to disclose to patient that penicillin they had prescribed for her could interfere with effectiveness of her birth control pills because existence of such drug interaction was unproven and danger of interference occurring appeared to be extremely remote 2: 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 3: holding that threatening employee to mind her own business investigating her videotaping her without her permission and forcing her to take polygraph could not be considered adverse employment actions because they had no effect on conditions of employment 4: holding that a psychiatrist had no duty to detain a patient who killed himself and injured his wife because the patient was outside of the scope of the facilitys range of observation and control even when the psychiatrist agreed to treat the patient the patient had suicidal tendencies and the psychologist took the patient into custody but then later permitted him to leave


Input: P. 44, 47, 48(a), that the State had failed to argue accomplice liability and arguing that D.B. had not been given an opportunity to present a defense to this alternate theory. Although a post-judgment motion on an issue is not necessary if D.B. had otherwise raised the issue, a timely postjudgment motion may in some instances be used to preserve an issue not previously raised if the court considers and rules on the issues raised in a postjudgment motion. Cf. Normandeau v. Hanson Equip., Inc., 2009 UT 44, ¶ 23, 215 P.3d 152 (" [OJnee trial counsel has raised an issue before the trial court, and the trial court has considered the issue, the issue is preserved for appeal. " (alteration in original) (internal quotation marks omitted)); State v. Belgard, 830 P.2d 264, 265-66 (Utah 1992) (<HOLDING>). 111 D.B.'s failure to object either at trial, Holdings: 0: holding that issues not raised before the trial court cannot be raised on appeal 1: holding issues not raised to and ruled upon by the trial court are not preserved for appellate review 2: holding issues not raised before the district court are not preserved for appeal 3: holding that issues raised and dealt with in posttrial evidentiary hearings are preserved for appeal 4: holding that issues not raised before a district court are waived on appeal


Input: Inc., 633 F.3d 591, 597-98 (7th Cir.2011) (noting that the “district court’s denial of any discovery was all the more unreasonable because [the producing party] had refused to meet with [opposing counsel] to negotiate a reduction in the amount of discovery sought and ... refuse[d] • to present any evidence of the burdens that granting, [the] discovery request would impose.”). Finally, no undue burden exists because the discovery requests being compelled through this Order are sufficiently tailored. The discovery requested here is narrower than the discovery requested in In re Consorcio Ecuatoriano as Mesa Power is requesting documents that directly relate to the foreign proceeding and that date from within a reasonable time period. Compare In re Consorcio Ecuatoriano, 685 F.3d at 999 (<HOLDING>), with Advanced Micro Devices, Inc. v. Intel Holdings: 0: holding that rejection of the appellants rule 56f request for additional discovery was proper where the information as to which he sought discovery was immaterial to the question of whether he is liable 1: holding that discovery was appropriately tailored as it limited the request to information within a six year time period relating to one specific contract and the deposition of a person most knowledgeable 2: holding that a blanket bond contract provision requiring a party to bring suit within one year after discovery of the loss was not unreasonable 3: holding that abusive acts within one month of receipt of deposition notices may be retaliation for initiation of lawsuit more than one year earlier 4: holding that one year limitations period in insurance policy was reasonable and therefore enforceable to shorten the fifteen year statute of limitations for breach of contract


Input: in light of the instruction in Sheppard that “conflict-free counsel is not necessary when the motion’s allegations are conclusively refuted by the record.” Smith v. State, 21 So.3d 72, 76 (Fla. 1st DCA 2009). In Smith, we applied Sheppard under facts similar to those in the instant case, where the trial court struck a represented defendant’s pro se motion as a nullity. There, we conducted a de novo review to determine whether the trial court’s decision to strike the appellant’s motion would be affirmable even if reached for the wrong reason. We found that even where allegations “are sufficient to invoke the requirement to hold a limited hearing under Sheppard” a harmless error analysis would be appropriate. Id. at 76; see also Johnson v. State, 22 So.3d 840, 844 (Fla. 1st DCA 2009) (<HOLDING>). Here, the transcript of the plea colloquy Holdings: 0: holding that where the coercion alleged to enter a plea is legally insufficient or conclusively refuted by the record there is no need to hold an evidentiary hearing or appoint conflictfree counsel 1: holding that postconviction allegations directly refuted by the trial record are without merit 2: holding that defendants waived any challenge to the trial courts failure to hold an evidentiary hearing 3: holding that a postconviction claim that is refuted by the record is without merit 4: holding that a trial courts failure to hold a sheppard hearing may be considered harmless if the allegations in the rule 3170z motion are conclusively refuted by the record


Input: Based on this language, Ross argues the restitution statutes must be construed as reaching only those victims affected by wire transactions alleged in the indictment and submitted to the jury. We disagree with the government’s claim that Ross cannot attack the restitution order because we affirmed it in the first appeal. Apprendi was decided after the first appeal, and announced a new (although not watershed) rule of constitutional law. See United States v. Moss, 252 F.3d 993, 997 (8th Cir.2001), cert. denied, — U.S. -, 122 S.Ct. 848, 151 L.Ed.2d 725 (2002). Since Ross relies upon Apprendi, and this appeal is a direct review of Ross’s resentencing, he is not barred from attacking the restitution order. See Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (<HOLDING>). Because Ross raised his Apprendi challenge in Holdings: 0: holding that a new rule for conducting criminal prosecutions should be applied to all cases pending on direct review or not yet final 1: holding that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases  pending on direct review  with no exception for cases in which the new rule constitutes a clear break with the past 2: holding that all newly declared rules must be applied retroactively to all criminal eases pending on direct review 3: recognizing that the pipeline theory allows a defendant to seek application of a new rule of law if the case is pending on direct review or not yet final and the defendant timely objected at trial 4: holding newly announced rules of constitutional criminal procedure must apply retroactively to all cases state or federal pending on direct review or not yet final with no exception


Input: evidence supports a finding that Van Winkle did not suffer from disabling pain during the relevant period. To determine whether a claimant suffers from debilitating pain, the court applies the following two-part test announced in Duncan v. Sec’y of Health & Human Servs., 801 F.2d 847, 853 (6th Cir.1986): First, we examine whether there is objective medical evidence of an underlying medical condition. If there is, we then examine: (1) whether objective medical evidence confirms the severity of the alleged pain arising from the condition; or (2) whether the objectively established medical condition is of such a severity that it can reasonably be expected to produce the alleged disabling pain. See also McCormick v. Sec’y of Health & Human Servs., 861 F.2d 998, 1002-03 (6th Cir.1988) (<HOLDING>). Van Winkle did not suffer from disabling pain Holdings: 0: holding that the bankruptcy reform act effectively overruled wrenn 1: holding the plain legal prejudice test applies to voluntary dismissal under the code 2: holding that the bankruptcy reform act of 1978 publ no 95598 92 stat 2549 precluded dismissal of cases pending before enactment of the reform act in order to refile under the act 3: holding that the plaintiff could bring an asapplied challenge to the bipartisan campaign reform act despite the court upholding the statute on its face 4: holding that the duncan test applies to the reform act of 1984 and to the commissioners superseding regulations on pain


Input: L.Ed.2d 403 (1987); United States v. Overmyer, 899 F.2d 457, 465 (6th Cir.1990), cert. denied, 498 U.S. 939, 111 S.Ct. 344, 112 L.Ed.2d 308 (1990). In denying Lee’s Motion to Dismiss, the district court relied on United States v. Swift, 809 F.2d 320 (6th Cir.1987), and United States v. Sarihifard, 155 F.3d 301 (4th Cir.1998). In Sivift, this court held that a false statement’s failure to lead the tribunal astray is irrelevant for 18 U.S.C. § 1623 analysis. 809 F.2d at 324. The court stated that “a false declaration satisfies the materiality requirement if a truthful statement might have assisted or influenced the grand jury in its investigation.” Id. (citing United States v. Richardson, 596 F.2d 157, 165 (6th Cir.1979)); see also United States v. Lutz, 154 F.3d 581, 588 (6th Cir.1998) (<HOLDING>); United States v. DeZarn, 157 F.3d 1042, 1049 Holdings: 0: holding that allegations of influence by an unnamed person outside the jury required the holding of an evidentiary hearing to determine extrinsic influence 1: holding that equally consistent circumstances of influence cannot be considered as evidence of undue influence 2: holding that materiality does not require a showing that the creditors were prejudiced by the false statement 3: holding that a statement is material if it has the natural tendency to influence or is capable of influencing a decision making process showing of actual influence unnecessary to prove materiality 4: holding that the standard for determining whether false statement is material under 19 usc  1592a is whether statement has a natural tendency to influence or was capa ble of influencing the decision of the tribunal in making a determination required to be made


Input: details of the previous molestation and thus failed to show that the prior molestation was similar to the current offense. We also conclude that Oatts did not offer specific details of the videotape and thus failed to show that the conduct in the videotape was similar to the current offense. Oatts failed to show that either the prior molestation or videotape were similar to the current offense. Oatts also failed to show that the evidence was relevant or that the probative value outweighed the prejudicial effect. Under the circumstances, we cannot say that the exclusion of the evidence violated Oatts’s right to cross examine witnesses under the Sixth Amendment of the United States Constitution and Article 1, Section 13 of the Indiana Constitution. See Grant, 75 F.Supp.2d at 217-218 (<HOLDING>); People v. Hill, 289 Ill.App.3d 859, 225 Ill. Holdings: 0: holding that application of the rape shield law to a case in which the underlying events occurred prior to the enactment of the rape shield law was not a violation of the constitutional prohibition against ex post facto laws 1: holding that a death sentence for a conviction for the rape of a child where the crime did not result and was not intended to result in death of the victim was barred by the eighth amendment 2: holding that mistake as to the age of the victim is no defense to statutory rape 3: holding that a trial court does not commit plain error unless the error is clear under current law 4: holding that the trial court did not commit constitutional error by excluding evidence about the pri or rape of the tenyearold victim when she was five years old because the defendant did not proffer evidence that the prior rape was similar to the current incident


Input: deed takes effect from the date of delivery, and the recording of a deed is not essential to its validity as between the parties or those taking with notice,”); see also Sargent v. Baxter, 673 So.2d 979, 980 (Fla. 4th DCA 1996) (“A grantor’s recording of a deed ... is generally presumed equivalent to delivery”). Thus, even if the Declaration clearly creates an easement for access to the dock on Parcel A, it was not a recorded document at the time that the Davids took the property. And due to the summary nature of the proceedings below, there is no evidence in the record that the Davids took possession of Parcel A with any knowledge of the Declaration or any other indication of a possible easement for access to the dock on Parcel A. See Kirma v. Norton, 102 So.2d 653, 657 (Fla.1958) (<HOLDING>); cf. Flanigan’s Enters., Inc. v. Shoppes at Holdings: 0: recognizing that chapter 7 trustee as hypothetical bona fide purchaser takes title to the real property free from all equitable liens 1: holding that under mississippi law a purchaser is a bona fide purchaser for value without notice unless there is actual notice or circumstances which would put a purchaser on inquiry notice 2: holding that generally a bona fide purchaser without notice of easements takes the property free of such easements 3: holding that one who acquires legal title with notice of a prior equitable interest in the property is not a bona fide purchaser 4: holding that a bona fide purchaser may be considered in privity with its predecessor


Input: that a municipality may be held liable under Section 1983 for a single decision by its properly constituted legislative body, regardless of whether that body had taken similar action in the past or intended to do so again in the future, because even a single decision by such a body unquestionably constitutes an act of official government policy. Id. at 480, 106 S.Ct. 1292. Justices Stevens and O’Connor, each writing separately, agreed with this portion of the plural 520 U.S. 781, 784-88, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997); Pembaur, 475 U.S. at 483, 106 S.Ct. 1292 (plurality); Dallas I.S.D., 153 F.3d at 216-17; and Flores, 92 F.3d at 263. See also Jett v. Dallas ISD, 491 U.S. 701, 737, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989); and Gros v. City of Grand Prairie, Texas, 181 F.3d at 617 (<HOLDING>). 166 . See McMillian, 520 U.S. at 786-87, 117 Holdings: 0: holding that the determination of whether there was joint access and control for actual authority is a fact question reviewed under the plainerror standard but a determination of whether the government reasonably relied on a third partys consent is a question of law to be reviewed de novo 1: holding that claim construction is an issue of law for the court not a question of fact for the jury 2: holding that a jurys finding that a city had delegated its final policymaking authority in the area of law enforcement to a city police chief was supported by the evidence and warranted imposing liability upon the city 3: holding that determination as to whether an official has been delegated final policymaking authority is a question of law for the court not one of fact for the juiy 4: holding that the question of whether a municipal official is a policymaking official is a matter of state law to be decided by the court


Input: was an effort to get recklessness in, which would have changed the standard from the second circuit.”). 4 . As ove the truth of the information contained in them, but to show the lack of scienter on the part of the defendants. See Gray v. First Winthrop Corp., 82 F.3d 877, 885 n. 10 (9th Cir.1996). 7 . The argument over the stop ship reports exemplifies the problem with the generalized allegations in plaintiffs' complaint. If plaint also require direct involvement. See Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 152, 92 S.Ct. 1456, 1471, 31 L.Ed.2d 741 (1972) (approving of primary liability of bank employees who made a market in securities despite bank representations that its duty was to individual clients); Shores v. Sklar, 647 F.2d 462, 464 n. 2 (5th Cir.1981) (<HOLDING>); Competitive Assoc., Inc. v. Laventhol, Holdings: 0: holding defendants liable for their various roles in fraudulent marketing of bonds 1: holding defendants personally liable for alleged conversion even when acting in corporate capacity 2: holding that individual defendants may not be held liable for violations under title vii 3: holding that state officials may be personally liable for actions taken in their official capacity 4: holding the government liable to plaintiffs for breach of contract