Input: see also Note, 58 BayloR L.Rev. at 259. That is, the existence of the basic fact of a contractual jury trial waiver gives rise to a presumed fact that the waiver was not knowingly and voluntarily made until the presumed fact is rebutted. Accord Hunter, 988 S.W.2d at 473. Because we begin with this presumption, the burden is on the party seeking to enforce the prelitigation contractual jury waiver to rebut this presumption with evidence that the waiver was knowingly and voluntarily made with full awareness of the legal consequences. In re Prudential, 148 S.W.3d at 132-33 (enforcing contractual jury waiver when “undisputed” facts established waiver was knowing and voluntary as a matter of law); accord In re Gen. Elec. Capital Corp., 203 S.W.3d 314, 316 (Tex.2006) (orig.proceeding) (<HOLDING>). But see L & R Realty, 715 A.2d at 754-55 Holdings: 0: recognizing that courts will enforce waiver of appeal rights when waiver is knowing and voluntary 1: recognizing that contractual jury waiver provision that was conspicuous  because it was in bolded font and in all capital letters  met burden of party seeking to enforce provision to make prima facie showing that waiver was knowing and voluntary 2: recognizing initial burden of presenting prima facie evidence that jury waiver was knowingly and voluntarily made is on party seeking to enforce provision 3: holding that a defendant must demonstrate a knowing waiver 4: holding contractual jury waiver provision that was in all capital letters and was bolded was conspicuous


Input: for which evidence has been presented that satisfies this key element of a Title VII case. Plaintiff provides the Court with the agency’s response to his appeal of the reduction in force before the District of Columbia Office of Employee Appeals. Moreover, the portions of plaintiffs deposition that defendant submits contain plaintiffs testimony about the termination of his employment. Ex. 1 to Def.’s Mot. at 192, 194-96. Termination of employment clearly constitutes a materially adverse action. See Taylor v. Small, 350 F.3d 1286, 1293 (D.C.Cir.2003). 7. After receiving notice of the RIF and before his employment was terminated, plaintiff was escorted from his place of employment and put on administrative leave. PL’s Opp. at 26-27. Once again, plaintiff does not supply suffici D.C.2006) (<HOLDING>); see also Boykin v. England, No. 02-950, 2003 Holdings: 0: holding sevenday suspension was not materially adverse because although it was disciplinary in nature plaintiff was able to remain on the job and in pay status 1: recognizing that although federal precedent was not binding it was persuasive authority 2: holding that the plaintiff could bring an action for negligent misrepresentation although the plaintiff could not sue on the contract because the contract was void 3: holding an employee must be able to perform essential job functions at the time of termination 4: holding that the ada plaintiff was unable to perform essential functions of job when the plaintiffs psychotherapist had told the employer that the plaintiff was unable to work in any position when the plaintiff did not disagree with that point and when the plaintiff in response to a request for admission conceded that she was no longer able to work


Input: requesting only reconsideration of an order awarding attorney fees tolls the effectiveness of a notice of appeal because the Millers’ Rule 60(b) motions not only challenged the attorney fee award but also sought to vacate the district court's announced judgment of dismissal. See Jones v. UNUM Life Ins. Co. of Am., 223 F.3d 130, 137-138 (2d Cir.2000) (recognizing that a Rule 60(b) motion seeking attorney fees is covered by Fed. R.App. P. 4(a)(4)(A)(vi) when the motion also addresses the merits of the judgment). 3 . Vacating the district court’s order does not inappropriately reverse this Court’s prior motion panel decision to dismiss, based on lack of jurisdiction, the Millers' appeal of the district court's Rule 60(b) order. See United States v. Houser, 804 F.2d 565, 567 (9th Cir.1986) (<HOLDING>). 4 . Also before the Court are Appellants' Holdings: 0: holding that under the law of the case doctrine an issue of fact or law decided on appeal may not be reexamined by the appellate court on a subsequent appeal 1: recognizing that ruling of one trial judge does not preclude another trial judge reconsidering interlocutory ruling 2: holding that district court did not abuse its discretion in reconsidering a prior interlocutory ruling 3: holding that the law of the case doctrine does not bar a panel reviewing the merits of an appeal from reconsidering a motions panels jurisdictional ruling 4: holding that an unappealed ruling is the law of the case


Input: benefits calculated under the Minimum Benefit Formulas, the amendment actually decreases the dollar amount of the participant’s net annuity- 16 . Plaintiffs have brought their § 1024(b)(4) claim pursuant to both 29 U.S.C. § 1132(a)(3) (which provides for injunctive relief) and 29 U.S.C. § 1132(c) (which gives the court discretion to impose civil penalties on a plan administrator in certain circumstances). In their Reply in support of their Motion to Dismiss, Defendants argue that the court may not as a matter of law impose civil penalties under 29 U.S.C. 1132(c) on the plan administrator for a § 1024(b)(4) violation. Plaintiffs have not had a chance to respond to this argument, and the Court will not consider it at this time. See Carroll v. Nakatani, 342 F.3d 934, 942 (9th Cir.2003) (<HOLDING>). 17 . Unlike prior SPDs, the 2000 Honeywell Holdings: 0: holding that issues which are not specifically and distinctly argued and raised a partys opening brief are waived 1: holding that arguments not raised in the opening brief are waived 2: holding that a court need not review arguments not specifically and distinctly raised in a partys opening brief 3: holding that issues not argued specifically and distinctly in a partys opening brief are waived internal quotation marks and citations omitted 4: holding that issues not specifically raised and argued in a partys opening brief are waived


Input: actions do not fall under section 5-60-101’s lawful exceptions, which include autopsies, embalming, or us ing the body for medical and scientific purposes. Therefore, in viewing the light most favorable to the State, we should give deference to this jury verdict and hold that substantial evidence supported Ham-monds’s conviction of abuse of a corpse. C. Jury instruction I would affirm the circuit court’s refusal to give Hammonds’s proffered jury instruction. Nonmodel jury instructions are to be given only when the trial court finds that the model instructions do not accurately state the law or do not contain the necessary instruction on the subject at hand. Jackson v. State, 359 Ark. 297, 197 S.W.3d 468 (2004); see also Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996) (<HOLDING>). Any party that | ^wishes to challenge the Holdings: 0: holding no error in rejecting the appellants proffered instruction even though that statement was based on language from case law when the amci instruction was a proper statement of the law 1: holding that the requested instruction was not required under rule 4325c because even assuming that the requested instruction was a correct statement of law the trial judge exercised his discretion properly 2: holding that when no objection was made to jury instruction evidence to support finding based on instruction should be assessed in light of the instruction given 3: holding that a prior inconsistent statement was admissible and the defendant failed to ask for a limiting instruction that the jury could not use the statement as substantive evidence 4: holding that even though the reasonable doubt instruction given in the case was not the preferred instruction it was not a misstatement of the law and therefore was legally appropriate


Input: Karras argues that the trial court lacked jurisdiction over Hoy’s motion to determine his attorney’s lien. Karras contends that Hoy could only recover fees due through a separate action in quantum meruit. We disagree. First, quantum meruit is not the only remedy available to Hoy. Quantum meruit is “an equitable doctrine, based on the concept that no one who benefits by the labor and materials of another should be unjustly enriched thereby; under those circumstances, the law implies a promise to pay a reasonable amount for the labor and materials furnished, even absent a specific contract therefor.” Black’s Law Dictionary 1243 (6th ed.1990). However, South Dakota law explicitly allows an attorney to recover fees by operation of an attorney’s lien , 619 P.2d 620, 623 (Okla.1980) (<HOLDING>). We specifically adopt the reasoning of the Holdings: 0: holding that the words allowed secured claim in  506d refer to a claim that is secured by a lien and allowed under  502 1: holding that a lawyers claim for impression of his statutory charging lien upon the recovery secured in an action may be prosecuted as an ancillary proceeding to the main litigation 2: holding that the attorneys charging lien may be asserted and enforced in the civil action which gave rise to the lien claim or in an independent action 3: holding that the lien bond releases the property from the lien but the lien is then secured by the bond 4: holding that a notice of appeal filed in an adversary proceeding could not appeal the main proceeding


Input: are proper....” Pope, 94 So. at 869; see also Pait v. State, 112 So.2d 380 (Fla. 1959). A trial court’s limitation on voir dire is reviewed for an abuse of discretion. Pope, 94 So. at 865. Defense counsel attempted to question potential jurors as to whether “a girl could come to court and lie?” and whether “a girl can come to court and lie about being raped?” and about a “rape charge.” The court prohibited references to “a girl” and “rape charge” because they seem to refer to the facts of the case. The trial court did not abuse its discretion by placing these reasonable limitations on voir dire. Counsel’s ability to determine the fairness of jurors was not restricted by this limitation. Any error was harmless beyond a reasonable doubt. Blevins v. State, 766 So.2d 401 (Fla. 2d DCA 2000) (<HOLDING>). Holdings: 0: holding that comment by prosecutor in closing argument that defense counsel did not produce evidence of the defendants innocence was not a comment on the defendants failure to testify 1: holding that reversal for a new trial was required where jury instruction relating to fraud was incorrect 2: holding that the trial courts actions in sustaining the defendants objections were sufficient to remedy any possible harm resulting from the mere asking of the three questions by the prosecutor 3: holding that once counsel was appointed defendant spoke to the court through counsel and thus the court was not required to respond to defendants request for a speedy trial 4: holding that reversal was not required where the trial court prevented defense counsel from asking hypothetical questions to illustrate the difficulty of proving a defendants innocence


Input: J. Jacqueline Moore appeals the summary denial of her motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, which raised eleven claims. Because the rationale for denial, along with record attachments, supports the trial court’s ruling with respect to ten of the claims, we affirm as to those issues without further discussion. However, we reverse the summary denial of Moore’s first claim, and remand for an evidentiary hearing on that claim only. Moore was convicted of attempted first degree murder with a firearm following a jury trial on that charge. Her conviction was affirmed on appeal. Moore v. State, 942 So.2d 897 (Fla. 5th DCA 20 ) (<HOLDING>); Rigdon v. State, 621 So.2d 475 (Fla. 4th DCA Holdings: 0: holding that evidence was sufficient to prove defendant constructively possessed the gun where although defendant denied ownership of the gun it was found near a knife of which defendant claimed ownership and where defendant was aware of the presence of the gun 1: holding direct testimony tying a defendant to a gun was not required when the gun was found in the defendants truck and when the defendant had both ammunition for the gun and a rack in which it could have been kept 2: holding that evidence of violent crimes and other illegal activities of defendants gang was not unduly prejudicial because defendant was not directly implicated and the evidence was probative of elements of the crimes that the defendant was charged with 3: holding that it was error to admit into evidence a gun purchased by the defendant which was not connected with the charged crimes 4: holding that it was error to admit into evidence 880 cartridges found in defendants car where there was no link established between the cartridges and the crime charged


Input: court to certify. This presents serious questions on.two separate fronts: our jurisdiction over this appeal under section 1292(b), and our general policy of declining to.consider arguments not made to the district court in the motion leading to the order.under appeal. Unlike the court, I cannot brush these concerns aside. Regarding our jurisdiction under section 1292(b), the Supreme Court has made clear that an appellate court can review “any issue fairly included within the certified order” because “[a]s the text of § 1292(b) indicates, appellate jurisdiction applies to the order certified to the court of appeals, and is not tied to the particular question formulated by the district court.” Yamaha Motor Corp., USA v. Calhoun, 516 U.S. 199, 205, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996) (<HOLDING>). But the “court of appeals may not reach Holdings: 0: holding that where the issue of sanctions was not before the court of appeals when the appeal was filed the district court retained jurisdiction 1: holding that where the district court decided two issues in the certified order but identified only the damages issue as the controlling question of law the court of appeals could nonetheless address the other issue 2: holding that where it was clear that the court of appeals had limited the issues on resentencing to the one issue raised in the defendants first appeal the district court did not err in declining to consider other issues raised by the defendant on remand 3: holding that when a court of appeals has jurisdiction on interlocutory appeal the scope of appellate review is not limited to the precise question certified by the district court because the district courts order not the certified question is brought before the court 4: holding that law of the case acts as a bar only when the issue in question was actually considered and decided by the first court


Input: figure and it is not relevant to this appeal. 2 . Downey also brought claims under Title VII, 42 U.S.C. § 2000e; the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq and Lo 2:04CV75-P-A, 2005 WL 1229695, at *5 (N.D.Miss. May 24, 2005) (concluding, in a case where the plaintiff "received every benefit to which she was entitled under the FMLA,” that Ragsdale implicitly invalidated 29 C.F.R. § 825.208(a)); Farina v. Compu-ware Corp., 256 F.Supp.2d 1033, 1056-57 (D.Ariz.2003) (noting that under Ragsdale, a plaintiff "must show that she detrimentally relied on and was prejudiced by Defendant's improper notice” and that "[pllaintiff provides no evidence that she was prejudiced”); Felder v. Winn-Dixie La., Inc., No. Civ.A. 03-1438, 2003 WL 22966364, at *5 (E.D.La. Dec. 16, 2003) (<HOLDING>); Smith v. Blue Dot Servs. Co., 283 F.Supp.2d Holdings: 0: holding that lack of justiciable interest resulted in lack of standing to pursue claim and that lack of standing deprived the trial court of jurisdiction to act 1: holding lack of prejudice to the defendant is not good cause 2: holding in a case where it was not clear whether the plaintiff suffered prejudice from the lack of notice that a plaintiff could not obtain reinstatement based on lack of notice 3: holding that the case must be dismissed for lack of appellate jurisdiction where notice of appeal was untimely 4: holding that lack of notice regarding the classification of the disability did not prejudice the respondent


Input: in violation of the Fourth Amendment. Watson testified that he arrested Wall because Wall stopped walking towards his car. Wall testified that he never stopped. He was walking away as directed and merely asked Watson to investigate a possible assault. Moreover, Wall never intimidated or obstructed employees or customers in Watson’s presence. California law prohibits a peace officer from arresting someone suspected of committing a misdemeanor unless the officer “has probable cause to believe that the person to be arrested has committed a public offense in the officer’s presence.” Cal.Penal Code § 836(a)(1). Additionally, the arrest was accomplished by violence, again in violation of the Fourth Amendment. See Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (<HOLDING>). If Wall’s account is true, the balance of the Holdings: 0: recognizing that the fourth amendment protects against the use of excessive force by police officers in carrying out an arrest 1: holding that the severity of the plaintiff s injuries for which he sought medical attention and received treatment supports the reasonable inference that the amount of force used by the defendant was excessive 2: recognizing that deadly force is only justified where a suspect poses an immediate threat 3: holding avoiding arrest is not the same as resisting arrest 4: holding that a fourth amendment excessive force analysis requires careful attention to the facts and circumstances of each particular case including the severity of the crime at issue whether the suspect poses an immediate threat to the safety of the officers or others and whether he is actively resisting arrest or attempting to evade arrest by flight


Input: the district court, holding that a competitive injury must be shown in order to state a claim under § 192(a) and (b). Because I believe that no such showing is required, I dissent. II Proper statutory analysis begins with the plain text of the statute. See Permanent Mission of India to the United Nations v. City of New York, 551 U.S. 193, 127 S.Ct. 2352, 2356, 168 L.Ed.2d 85 (2007) (“We begin, as always, with the text of the statute.”) (citation omitted); Watt v. Alaska, 451 U.S. 259, 265, 101 S.Ct. 1673, 68 L.Ed.2d 80 (1981) (“The starting point in every case involving construction of a statute is the language itself.”) (quotation omitted); see also In re Rogers, 513 F.3d 212, 225 (5th Cir.2008). “It is well established that when a statut 9, 118 S.Ct. 285, 139 L.Ed.2d 215 (1997) (<HOLDING>). The remaining parts of § 192 further support Holdings: 0: recognizing that undefined words in a statute ordinarily should be interpreted as taking their ordinary contemporary common meaning 1: holding that ordinarily courts are not obligated to review evidence presented for the first time on appeal 2: holding that ordinarily a statute must be construed in a manner which protects its constitutionality 3: holding that courts ordinarily should resist reading words or elements into a statute that do not appear on its face 4: holding that courts must avoid adding conditions to the applicability of a statute that do not appear in the provisions text


Input: vacate the TTD award. Employer argues that because “Claimant opted not to continue employment with the City, Claimant is not entitled to [TTD] benefits from the City and the City was under no obligation to offer light duty work to Claimant.” We are not persuaded by Employer’s argument. The clear weight of the evidence supports the trial court’s finding, affirmed by the panel, that Claimant’s termination from employment was not voluntary. Employer’s characterization of the events following Claimant’s receipt of the “Final Lay-off Notice” as a voluntary resignation lacks record support. ¶ 14 First, we note that “continued employment is not a statutory requirement for eligibility for workers’ compensation benefits.” Patterson v. Sue Estell Trucking Co. Inc., 2004 OK 66, 8, 95 P.3d 1087 (<HOLDING>). An employer is not relieved from its Holdings: 0: holding that an injured dump truck driver who was at fault in a workrelated automobile accident and cited for driving with a suspended license could not be denied ttd benefits even though employer fired him after his injury 1: holding that probable cause existed to arrest for driving on a suspended license under state law 2: holding motorist entitled to hearing before taking his license under statute that required loss of license if uninsured driver involved in an accident 3: holding that an evidentiary basis for the search was  lacking  because gant was arrested for driving with a suspended license an offense for which police could not expect to find evidence in the passenger compartment of his car 4: holding that a truck driver who was on call was not compensated for an injury in a motel room provided by his employer


Input: the prosecutor explained in closing arguments, Farris testified that she saw the money just after 5:18 p.m., which means he had not yet purchased any drugs. Instead, as the prosecutor asserted, the more likely scenario is that Gipson called Harper at 5:15 p.m. to tell Harper that Ricks would making the delivery. 11 . In his appeal brief Gipson relies on the Ohio Court of Appeals decision in Ricks’s trial, which found that Ricks arrived between 4:00 and 5:00 p.m., see State v. Ricks, 196 Ohio App.3d 798, 965 N.E.2d 1018, 1021 (2011), rev’d 136 Ohio St.3d 356, 995 N.E.2d 1181 (2013). But this evidence was not before the Ohio Court of Appeals in this case, and therefore may not be considered in evaluating the reasonableness of its decision. See Cullen, 563 U.S. at 180-82, 131 S.Ct. 1388 (<HOLDING>). 12 . This further included several meetings Holdings: 0: holding that aedpa only applies where the state court adjudicated the constitutional issue on the merits 1: holding that aedpa limits a federal habeas court to the record before the state court where a claim has been adjudicated on the merits by the state court 2: holding that review under  2254d1 is limited to the record before the state court that adjudicated the claim on the merits rejecting the petitioners claim that the federal habeas court could consider evidence introduced in an evidentiary hearing 3: holding that a state courts rejection of petitioners habeas claim was unreasonable under  2254d2 where the court made credibility determinations on the basis of a paper record without an evidentiary hearing 4: holding that the federal habeas corpus court could reach the merits of a due process claim even though there was no contemporaneous objection in state court trial where the state habeas corpus court reached the merits rather than rely on the procedural default defense


Input: his performance evaluation in September 2010, and by subjecting him to unwarranted disciplinary action. The October 2009 denial of promotion occurred more than six months after Nicholson engaged in protected activity, and the changes to Nicholson’s performance evaluation in September 2010 occurred 18 months after the protected activity. A time period greater than six months, without more, is not a sufficiently short period of time to satisfy the causal connection element of a retaliation claim. See Cooper, 795 F.2d at 1272; see also Clay v. United Parcel Service, Inc., 501 F.3d 695, 718 (6th Cir.2007) (finding no causal connection where gap between protected activity and adverse employment action was six months); Cecil v. Louisville Water Co., 301 Fed.Appx. 490, 502 (6th Cir.2008) (<HOLDING>). The approximately two-month gap between Holdings: 0: holding that sufficient evidence of causation existed where adverse employment action occurred less than three months after protected activity 1: holding that sufficient evidence of causation existed where adverse employment action occurred less than three months after the protected activity 2: holding that adverse employment activity that occurred 10 months and 17 months after protected activity was insufficient on its own to create a reasonable inference of causation 3: holding that sufficient evidence of causation existed where adverse employment action occurred less than two months after protected activity 4: holding that a threeyear gap between the protected activity and the adverse employment action was insufficient to support an inference of causation


Input: medical reporting. 13 See NRS 616B.324 (explaining that a self-insured employer’s administrator is the employer’s agent). 14 See Schmidt v. Beeson Plumbing and Heating, 869 P.2d 1170, 1175, 1175 n.7 (Alaska 1994); Barrington v. Employment Sec. Com’n, 286 S.E.2d 576, 578 (N.C. Ct. App. 1982) (“It is well established that the doctrine of equitable estoppel may be applied in workers’ compensation cases.”); Appleby v. Workers’ Safety & Comp. Div., 47 P.3d 613, 619 (Wyo. 2002) (explaining that substantive legal issues like equitable estoppel may be determined by an administrative agency as part of a contested workers’ compensation case and has been applied to prevent strict application of statutory limitations periods); see generally Lentz v. McMahon, 777 P.2d 83, 88-91 (Cal. 1989) (<HOLDING>); Matter of Harrison Living Trust, 121 Nev. Holdings: 0: recognizing that administrative agencies routinely apply equitable estoppel in administrative hearings and that permitting them to do so is consistent with administrative remedy exhaustion requirements and separation of powers 1: recognizing that administrative agencies lack to power to consider or determine constitutional issues 2: holding that requiring exhaustion of administrative remedies is appropriate where doing so can protect administrative agency authority and promote judicial efficiency 3: recognizing the transition of the administrative hearing process from the division of motor vehicles to the office of administrative hearings 4: recognizing that administrative agencies are not bound by rules of evidence


Input: in Trombetta and Youngblood is not relevant to the instant appeal. B. The law recognizes three general circumstances that give rise to a claim that the State violated a criminal defendant’s right to due process by failing to “provide evidence to the defense which is within, or potentially within, [the State’s] purview.” State v. Steffes, 500 N.W.2d 608, 612 (N.D.1993). The first circumstance arises when the State violates the defendant’s due process rights by collecting and preserving evidence from the crime scene only to withhold the evidence “when the defendant requests it, or when it otherwise becomes material to the defense.” Id. (citing Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963 ate v. Wells, 103 Idaho 137, 645 P.2d 371, 373 (Ct.App.1982) (<HOLDING>); State v. Stepter, 794 S.W.2d 649, 655 Holdings: 0: holding that the state is not allowed to suppress evidence but it need not collect evidence for the defendant 1: recognizing that state agents may suppress evidence by failing to collect and preserve the evidence when performing routine procedures 2: holding that it is clear that hearsay evidence is admissible in a hearing on a motion to suppress 3: holding that government did not suppress evidence when defendant knew about the existence of the evidence and could obtain it through the exercise of reasonable diligence 4: holding that similar agreement allowed the defendant to appeal the denial of his motion to suppress


Input: other things, that he has a “significantly protectable” interest in the property or transaction that is the subject of the suit. See Wilderness Soc’y v. U.S. Forest Serv., 630 F.3d 1173, 1177 (9th Cir.2011) (en banc); see also Fed.R.Civ.P. 24(a)(2). Klaas daims that 18 U.S.C. § 3771, which provides crime victims with certain rights, gives him a “significantly protectable” interest. We agree with the district court that it does not. Section 3771 gives crime victims rights in certain cases involving individual criminal defendants and prisoners and prescribes certain remedies. This case does not involve an individual defendant or prisoner, and intervention is not among the remedies listed in the statute. See 18 U.S.C. § 3771(b), (d); cf. Brandt v. Gooding, 636 F.3d 124, 136 (4th Cir.2011) (<HOLDING>). In addition, Klaas’s claim to an interest in Holdings: 0: holding that a motion to intervene to assert the publics first amendment right of access to criminal proceedings is proper 1: holding no right to counsel for capital defendants in state habeas proceedings 2: holding that infirmities in state habeas proceedings do not constitute grounds for federal habeas relief 3: holding that a deathsentenced state prisoner has a right to a competency determination in federal habeas proceedings 4: holding that  3771 does not give crime victims the right to intervene in federal habeas proceedings


Input: contractors. Such decisions are not, of course, wholly immune from review. The Secretary’s discretion, like that of a prosecutor, remains “subject to constitutional constraints,” including those “imposed by the equal protection component of the Due Process Clause of the Fifth Amendment.” Armstrong, 517 U.S. at 464, 116 S.Ct. 1480. Moreover, the Commission retains authority to adjudicate — subject to the appropriate standard of review — whether safety violations have in fact occurred. See 30 U.S.C. §§ 815(d), 823(d). In this case, however, Twentymile has stipulated that the conditions cited by the Secretary constitute violations of safety standards. See ALJ Decision, 25 F.M.S.H.R.C. at 353. We therefore grant the Secretary’s petition for review. The decision , 459-60 (D.C.Cir.2001) (<HOLDING>); In re Sealed Case, 131 F.3d 208, 216 Holdings: 0: recognizing that an agencys decision to terminate an employee is presumed correct 1: holding that judicial review of an administrative agencys decision is limited solely to whether given the relevant standard and facts the agencys decision was arbitrary illegal capricious or unreasonable 2: holding icc decision not to investigate nonreviewable 3: holding that the faas decision not to renew an aircraft examiners authority is nonreviewable 4: holding that an agencys decision to reach a settlement is nonreviewable


Input: at issue, or its specific application, is one with which an average juror might not be sufficiently familiar, or if the trial court determines that the expert testimony would “assist the jury in comprehending the evidence and determining issues of fact.” Odom, supra, 116 N.J. at 70, 560 A.2d 1198. The proposed expert witness must be adequately qualified and possess sufficient knowledge and experience to express an opinion and explain its basis to the jury. Id. at 71, 560 A.2d 1198; Kelly, supra, 97 N.J. at 208, 478 A.2d 364. Ordinar 7 L.Ed.2d 1044 (1990); United States v. Diaz, 878 F.2d 608, 616-18 (2d Cir.) (sustaining admission of expert-witness testimony concerning characteristics of narcotics “stash pad” and providing interpretation of financial records seized a 46-48 (1988) (<HOLDING>); State v. Avila, 166 Conn. 569, 353 A.2d 776, Holdings: 0: holding that a prior conviction for using a communications device to facilitate the distribution of cocaine was admissible under rule 404b to prove that the defendant had the requisite intent to distribute cocaine 1: holding that purity of 3644 did not disqualify a drug as crack in light of the chemists testimony that he had previously tested crack of lowerthantypical purity 2: holding admissible police officers expert testimony that seized cocaine of eightythree percent purity would be cut with lactose to achieve lesser purity prior to streetlevel distribution 3: holding future dangerousness expert testimony to be admissible 4: holding that simple possession of cocaine is not lesser included offense of conspiracy to possess cocaine with intent to distribute


Input: both an expert and fact witness); Cheek, 740 F.3d at 447 (recognizing “inherent dangers” with using one witness as both an expert and lay witness). Although the prosecution was careful to preface every question with “based upon your training and experience,” it seems that “experience” sometimes meant experience with this particular ease, not general experience as a task force agent. For example, when asked on cross-examination (during his expert testimony) how he came to the conclusion that “one” meant “one ounce of cocaine,” Clark attributed this interpretation to his experience “from what [he] gathered through the investigation” as lead case agent. App. Dkt. 70-3, 127. It was error to allow this transitioning back and forth between expert and fact testimony. See York, 572 F.3d at 426 (<HOLDING>); United States v. Moreland, 70S F.3d 976, 983 Holdings: 0: holding no confrontation right violation where the district court limited crossexamination to basic information about the witnesss convictions and prohibited inter alia descriptions of the witnesss conduct during the incidents leading to his convictions emphasis added 1: holding district court erred in admitting a witnesss responses to the governments questions about six fiftyfive and five dollar where the appeals court could not tell whether the witnesss interpretations were based on his exper tise or a conversation with the informant 2: holding that hospitalization of witnesss wife and his desire to be by her side was not a substantial basis for admitting witnesss testimony from first trial 3: holding that a participant in a conversation may testify as to his understanding of the conversation to satisfy rule 701as requirement that the testimony be rationally based on the witnesss perceptions 4: holding that a witnesss testimony or an exhibit may not explicitly and directly contain an opinion as to a trial witnesss credibility


Input: sold, that no one was already buried in the spot, or that no other circumstance would preclude the sale of the spot. 4 . Gaspard died sometime between the moving of Mr. Guerra's coffin and the Guerra’s complaint to the funeral commission. The Guer-ras contend Gaspard's death was a suicide but the record is unclear as to the cause of his death. 5 . Appellants contend, in part, by their third issue that the evidence was insufficient to establish that SCI, the corporate parent of SCI Texas, was liable for the Guerras' injuries. Appellants contend that SCI is a separate legal entity from SCI Texas and that the relationship between the companies does not make SCI automatically liable for the actions of SCI Texas. See generally Lucas v. Tex. Indus., Inc., 696 S.W.2d 372, 374-75 (Tex.1984) (<HOLDING>). However, the Guerras never alleged that SCI Holdings: 0: holding that a corporate officer signing a contract in his corporate capacity is generally not liable for damages under the contract 1: recognizing separate corporate identity of parent despite evidence that parent was alterego of its subsidiary and was being sued for acts of its subsidiary 2: holding that parent corporation could not be held liable for any acts of whollyowned subsidiary although boards of directors of the two corporations overlapped in all other respects corporation had not disregarded subsidiarys corporate separateness had not involved itself directly in management of subsidiary and had not otherwise dominated or controlled subsidiary 3: holding that under north carolina law a corporate parent cannot be held liable for the acts of its subsidiary unless the corporate structure is a sham 4: holding that a court will generally not disregard the corporate fiction and hold a corporation liable for the obligations of its subsidiary


Input: in In re Marrama, 430 F.3d 474 (1st Cir.2005), cert. granted — U.S. —, 126 S.Ct. 2859, 165 L.Ed.2d 894 (June 12, 2006), to decide “whether the right to convert a chapter 7 bankruptcy case to another chapter can be denied notwithstanding the plain language of the statute and the legislative history.” 2006 WL 295220 (petition for certiorari filed Jan. 30, 2006). The First Circuit in Marrama found that “at any time” meant “simply [] that the debtor may seek to convert at any time during the pendency of the bankruptcy case ” and that the statute does not prevent a court from refusing to convert based on the debtor’s own “willful misconduct, such as an intentional abuse of the bankruptcy process.” 430 F.3d at 479 (emphasis added). See also In re Finney, 992 F.2d 43, 45 (4th Cir.1993) (<HOLDING>). In contrast, a bankruptcy appellate panel for Holdings: 0: holding in a case considering whether the trial court should have conducted a competency hearing sua sponte that an appellate court may only consider those facts which were before the court when the trial commenced 1: holding that the district court should consider the totality of the circumstances in determining whether the patentee acted in subjective bad faith and should consider whether circumstantial evidence would support an inference of bad faith 2: holding that a state appellate courts decision to raise and answer a constitutional question sua sponte permits subsequent federal habeas review 3: holding that bad faith in a  706a conversion permits the court to consider sua sponte whether the petitioner engaged in abuse of process under 11 usc  105a 4: holding that the district court cannot remand sua sponte for defects in removal procedure


Input: correctly recognizes that sub-ACLs are not a mandatory measure, and that an FMP must simply establish an overall suite of accountability measures sufficient to prevent overfishing. See Pl.’s Mot. Summ. J. 22, ECF No. 36 (citing Oceana, Inc. v. Locke, 831 F.Supp.2d 95, 117 (D.D.C.2011)). Indeed, the MSA makes no mention of sub-ACLs. Cf. 16 U.S.C. § 1853(a)(15) (2012) (requiring that the Secretary “establish a mechanism for specifying [overall] annual catch limits”). The issue is thus whether NMFS, by not implementing Oceana’s sub-ACL proposal, acted arbitrarily and capriciously by ignoring bycatch of target stocks in non-directed fisheries. See also Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (<HOLDING>). Both the Guidelines and the administrative Holdings: 0: holding allegation that the agency failed to fully evaluate an aspect of petitioners claim to be another way of saying that the agency got the facts wrong 1: holding that an agency acts arbitrarily and capriciously if it entirely failed to consider an important aspect of the problem or offered an explanation for its decision that runs counter to the evidence before the agency 2: holding that the court must find that the agency entirely failed to consider an important aspect of the problem offered an explanation for its decision that runs counter to the evidence before the agency or the decision is so implausible that it could not be ascribed to a difference in view or the product of agency expertise 3: holding that an agency acts arbitrarily and capriciously if it reverses its position in the face of a precedent it has not persuasively distinguished 4: holding an agency decision is not final during the time the agency considers a petition for review


Input: F.2d 844, 851 (5th Cir.1991). 134 . Crowder v. Sinyard, 884 F.2d at 811, citing Ryland v. Shapiro, 708 F.2d 967, 972 (5th Cir.1983). 135 . See Bounds v. Smith, 430 U.S. at 824-28, 97 S.Ct. at 1496-98; Degrate v. Godwin, 84 F.3d 768, 768-69 (5th Cir.1996); Pembroke v. Wood County, Texas, 981 F.2d 225, 229 (5th Cir.1993), cert. denied, 508 U.S. 973, 113 S.Ct. 2965, 125 L.Ed.2d 665 (1993); Crowder v. Sinyard, 884 F.2d at 811-12; and Green v. Ferrell, 801 F.2d 765, 772-73 (5th Cir.1986). 136 . See Lewis v. Casey, 518 U.S. 343,-, 116 S.Ct. 2174, 2182, 135 L.Ed.2d 606 (1996). 137 . See Lewis v. Casey, 518 U.S. at---, 116 S.Ct. at 2179-82; Eason v. Thaler, 73 F.3d 1322, 1329 (5th Cir.1996); and Brewer v. Wilkinson, 3 F.3d at 821. 138 . See Beck v. Lynaugh, 842 F.2d 759, 762 (5th Cir.1988), (<HOLDING>); and Eisenhardt v. Britton, 478 F.2d 855 (5th Holdings: 0: holding that an inmate alleging denial of access to the courts must show an actual injury 1: holding that the total denial of all access to the law library for seven months violated the plaintiffs constitutional right of access to the courts 2: holding that denial of access to carbon paper and reproduction equipment and denial of facetoface access to other inmates did not deprive an inmate of his right of access to the courts 3: holding that although prison inmates have a first amendment right to access to the courts prison officials may regulate law library access including reasonable time place and manner of access taking into account the administrative needs of the institution 4: recognizing a right of access to civil proceedings


Input: AND JUDGMENT ROBERT E. BACHARACH, Circuit Judge. Mr. Miguel Angel Gutierrez-Carranza was convicted on federal charges and faced unrelated charges in Mexico. After the federal conviction, he requested extradition to Mexico and the district court denied the request based on a “lack of jurisdiction.” R. vol, I, at 7. We affirm. The defendant had no power to initiate his own extradition. The court’s power to order extradition derives from 18 U.S.C. § 3184. Under § 3184, a district court can initiate extradition proceedings only after the federal government files a sworn complaint for extradition based on a request from a foreign jurisdiction. 18 U.S.C. § 3184; see Grin v. Shine, 187 U.S. 181, 186, 23 S.Ct. 98, 47 L.Ed. 130 (1902) (<HOLDING>). Therefore, extradition could take place only Holdings: 0: recognizing with respect to a virtually identical predecessor to  3184 that a complaint must be made under oath charging the crime for which extradition is sought 1: holding that a district court may not rely on a charging document without first establishing that the crime charged was the same crime for which the defendant was convicted 2: recognizing a similar exception to its rule with respect to corporations 3: holding that once the statute is found to be divisible the court must look to the charging papers and judgment of conviction to determine if the actual crime of which defendant was convicted was a crime of violence but emphasizing that the court is not to examine the particular facts underlying the conviction 4: holding the same with respect to an apartment


Input: Hamilton v. Tenn. Secondary Sch. Athletic Ass’n, 552 F.2d 681, 682 (6th Cir.1976) (privilege of participation in interscholastie sports is outside due process protections); Albach v. Odle 531 F.2d 983, 984 (10th Cir.1976) (interscholastic athletic participation not a constitutionally protected right); Zehner v. Central Berkshire Reg’l Sch. Dist., 921 F.Supp. 850, 862 (D.Mass.1995) (taking part in interscholastic athletics was not constitutionally protected claim of entitlement); Simkins, 434 N.W.2d at 368 (interscholastie participation is mere expectancy); Bruce v. S.C. High Sch. League, 258 S.C. 546, 189 S.E.2d 817, 819 (1972) (participation in high school extracurricular activities is a privilege); Menke v. Ohio High Sch. Athletic Ass’n, 2 Ohio App.3d 244, 441 N.E.2d 620, 623 (1981) (<HOLDING>); Whipple, 629 P.2d at 386 (“While we think Holdings: 0: holding high school which allowed student secular noncurricular activities to meet on school property was required to provide equal access to a christian student group 1: holding drug testing high school student athletes was constitutional 2: holding right to be fundamental 3: holding that no special relationship existed between the school and student 4: holding that student has no fundamental right to participate in high school athletics


Input: prejudice as a result of the jury selection procedure. See N.C.G.S. § 15A-1443(c) (1999); State v. Miller, 339 N.C. 663, 681, 455 S.E.2d 137, 147, cert. denied, 516 U.S. 893, 133 L. Ed. 2d 169 (1995); State v. Fletcher, 348 N.C. 292, 312, 500 S.E.2d 668, 680 (1998), cert. denied, 525 U.S. 1180, 143 L. Ed. 2d 113 (1999). Defendant further argues that the improper jury selection procedure violated his constitutional right to a fair and impartial jury. However, defendant did not raise this constitutional issue at trial; consequently, the trial court did not have the opportunity to consider or rule on this issue. N.C. R. App. P. 10(b)(1). Therefore, defendant has failed to preserve this assignment of error for appellate review. See State v. Fleming, 350 N.C. 109, 122, 512 S.E.2d 720, 730 (<HOLDING>), cert. denied, — U.S. -, 145 L. Ed. 2d 274 Holdings: 0: holding that a defendant who fails to raise a specific issue as the basis for suppression in a motion to suppress to the district court has waived the right to raise that issue on appeal 1: holding the appellants failure to raise a particular issue in its directed verdict motion precludes appellate review of that issue 2: recognizing that the specific argument regarding an issue must be made in the trial court to preserve that issue for appellate review 3: holding that by fading to timely raise the issue before the trial court the defendant had waived the right to raise the issue on appeal that the trial court failed to consider less severe sanctions 4: holding that defendant failed to raise a constitutional issue at trial and thus waived appellate review of that issue


Input: Mem. Supp. Summ. J. at 13). The plaintiff fails to meet the fourth prong of the McDonnell Douglas test, which requires that he show that AMHA treated him differently than employees outside the protected class for the same or similar conduct. Under Mitchell, the Sixth Circuit held that sharing the same supervisor and being subject to the same standards are not sufficient to establish that a non-minority employee is similarly situated. See generally, Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.1992). Singfield must show that the non-minority employees “have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer’s treatment of them for it.” Clayton v. Meijer, Inc., 281 F.3d 605, 611 (6th Cir.2002) (<HOLDING>) Singfield cannot show that AMHA treated him Holdings: 0: holding that plaintiff was not similarly situated to another employee who also engaged in protected activity for purposes of plaintiffs retaliation claim 1: holding that fourth element of a prima facie case is satisfied when the employees who were more favorably treated were situated similarly to the plaintiff 2: holding that caucasian employees who engaged in the same act as the plaintiff but it did not result in injury to others were not similarly situated 3: holding that a plaintiff who did not show that he was paid at a lower rate than similarly situated employees could not survive summary judgment 4: holding that employee who violated a different policy of the store than plaintiff was not similarly situated


Input: properly bring a disciplinary action against a prisoner for filing a grievance that is determined by those officials to be without merit anymore than they can properly bring a disciplinary action against a prisoner for filing a lawsuit that is judicially determined to be without merit. That the Constitution does not obligate the state to establish a grievance 'procedure is, we believe, of no consequence here.... Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989) (emphasis added). Indeed, the Eighth Circuit recognizes that (1) an inmate possesses a First Amendment right to be free from retaliation for filing a grievance, id., while simultaneously recognizing that (2) an inmate does not have a due process “liberty interest in access to [a grievance] procedure,” Flick, 9 th Cir. 2006) (<HOLDING>). Like our sister circuits, we see no Holdings: 0: recognizing retaliation involving promotion as adverse employment actions under the first amendment 1: recognizing that first amendment provides qualified right of access to judicial documents 2: recognizing first amendment petition right where inmate alleged retaliation for filing grievances 3: recognizing first amendment retaliation claim where official filed a disciplinary report following an inmates filing of a grievance 4: recognizing first amendment retaliation right


Input: (and other cell phones in the area) to identify the phone to the network for authentication. That process would be repeated at different locations until the target cell-phone number was identified— here, that included the identification of several prepaid cell phones subscribed to in fictitious names using a post office box address in California. Defendants assert that the identification information was obtained “illegally” — and therefore evidence derived from that infor mation should be suppressed — because the use of a cell-site simulator to capture “autonomously” transmitted information could not be authorized under the pen-registe e itself provide for the suppression of evidence as a remedy for its violation. See United States v. Thompson, 936 F.2d 1249, 1250-51 (11th Cir. 1991) (<HOLDING>). We agree with the district court that use of Holdings: 0: holding suppression is not a remedy for violation of vienna convention under federal law 1: holding that the appropriate remedy for a public trial violation was a new suppression hearing not a new trial because the remedy should be appropriate to the violation 2: holding that the fourth amendment remedy sought is suppression 3: holding suppression not available remedy for violation of 18 usc  1321 et seq 4: holding that suppression of the evidence or dismissal of an indictment are not required to remedy a violation of  6103


Input: 329 Ga. App. at 518 (1) (punctuation omitted); accord In the Interest of L. T, 325 Ga. App. at 592. 14 Holcomb, 329 Ga. App. at 518 (1) (punctuation omitted); accord Luangkhot v. State, 292 Ga. 423, 424 (1) (736 SE2d 397) (2013); see also Deal, 294 Ga. at 173 (1) (a) (“[I]f the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning is at an end.” (punctuation omitted)). 15 Horton v. Dennis, 325 Ga. App. 212, 216 (750 SE2d 493) (2013) (punctuation omitted); accord Joyner v. Raymond James Fin. Servs., Inc., 268 Ga. App. 835, 838 (2) (602 SE2d 871) (2004). 16 Cason v. Cason, 281 Ga. 296, 299 (3) (637 SE2d 716) (2006). 17 See, e.g., Lockwood v. Fed. Deposit Ins. Corp., 330 Ga.App. 513, 515-16(1) (767 SE2d 829) (2014) (<HOLDING>); Nelson v. Nelson, 176 Ga.App. 107, 109 (2) Holdings: 0: holding that a court has power to award attorney fees when authorized by contract statute or recognized ground of equity 1: holding that an award of attorney fees was authorized by ocga  13111 a 3 when the requirements of that statute were satisfied 2: holding that offer of judgment statute does not provide a basis for an award of attorney fees and costs unless dismissal is with prejudice 3: holding because an award of attorney fees is discretionary court may consider attorney fees in relation to the underlying equities in the case 4: holding that the arbitration provision was substantively unconscionable because it precluded the award of attorney fees which were authorized in the relevant ohio consumer protection statute


Input: of whether to impose negligence per se should not be made merely by counting how many factors lean each way. Id. at 305-06. Rather, the factors should act as guidelines to assist courts in determining the ultimate question of whether imposing tort liability for violations of a statute is fair, workable, and wise. Id. Because the parties briefed this case prior to the supreme court’s decision in Perry, their arguments did not address all of the factors listed by the court. However, McCurdy’s primary argument on appeal is that the standard of conduct defined in section 61(a) is conditional in nature, and, therefore, the statute does not provide an absolute duty sufficient to support the application of negligence per se. This argument closely parallels one v.App. — Austin 1971, no writ) (<HOLDING>). These courts have reasoned that, if a Holdings: 0: holding that whether a driver yielded the right of way as per section 74 depends upon whether he acted negligently or unreasonably 1: holding that whether a driver safely entered an intersection as per section 71c depends upon whether he acted prudently 2: holding that whether a driver operated his vehicle on an improved shoulder in safety as per section 54a depends upon whether he acted reasonably under the common law 3: recognizing that whether a consumer survey should be admitted depends among other things on whether the questions are leading or suggestive  4: holding whether these explanations are reasonable or not depends upon matters that the jury must decide including witness eredibility


Input: 1567, 1573 (11th Cir.1992) (explaining that a facial challenge is proper because the regulation “affects the enjoyment of freedoms which the Constitution guarantees and subjects the exercise of First Amendment freedoms to licensing requirements”) (internal citations and quotation marks omitted). Because Frandsen and Morris challenge the permit regulation, which is a prior restraint on speech, on grounds that it fails to provide constitutionally required procedural safeguards, the general rule set forth in Adler does not apply to their facial challenge. A prior restraint on expression exists when the government can deny access to a forum for expression before the expression occurs. See Ward v. Rock Against Racism, 491 U.S. 781, 795 n. 5, 109 S.Ct. 2746, 2756 n. 5, 105 L.Ed.2d 661 (1989) (<HOLDING>). The regulation presently at issue clearly Holdings: 0: holding that a state may not exercise a prior restraint on publishing a newspaper 1: holding that strict scrutiny applies to a prior restraint enforcing a contentbased restriction on speech in a traditional public forum 2: holding that a regulation was not a prior restraint because it did not authorize suppression of speech in advance of its expression 3: holding that plaintiff did not have standing to challenge the permit process where it could not show that it would ever be genuinely threatened by an unconstitutional prior restraint in this case 4: holding that prior restraint analysis applies to commercial speech but that the general health claim regulation 21 cfr  10114 was sufficiently welldefined to survive prior restraint analysis


Input: it unnecessary to address these arguments because of our resolution of a necessary threshold question: Does Section 553 apply to the transactions at issue here? The Turners argue that the administrative offsets were not setoffs within the meaning of 11 U.S.C. § 553 at all, but rather were voidable preferences falling under 11 U.S.C. § 547. We agree. Setoff is an equitable right of a creditor to deduct a debt it owes to the debtor from a claim it has against the debtor arising out of a separate transaction; it “allows parties that owe mutual debts to state the accounts between them, subtract one from the other and pay only the balance.” Matter of Bevill, Bresler & Schulman Asset Management Corp., 896 F.2d 54, 57 (3d Cir.1990); see also Jones v. England, 782 P.2d 119, 122 (Okla.1989) (<HOLDING>). The United States has an inherent right of Holdings: 0: recognizing the existence of the special relationship 1: recognizing common law privileges 2: recognizing common law right of access to judicial documents 3: holding that federal government agencies have a common law right to interagency setoff 4: recognizing existence of common law right of setoff in oklahoma


Input: and alleging that as a result of Hoffenberg’s pre-existing use, One Harbor acquired an easement by implied reservation and that as a result of continued use by One Harbor and its predecessors in interest, One Harbor acquired an easement by prescription. The trial court specifically found that Hoffenberg took title to each parcel “individually and as trustee,” that no trust or beneficiary was identified in any conveyance of either parcel, and that there was no evidence that a trust relating to either parcel was ever recorded. The trial court applied the provisions of section 687.07, Florida Statutes (1959), and concluded, inter alia, that Hoffenberg was the fee simple “individual” owner of each parcel at the time that the Agreement was executed. The trial court also found that ) (<HOLDING>). An easement, by definition, is the right to Holdings: 0: recognizing that an easement may entitle the easement owner to do acts which were not for the easement would constitute a nuisance 1: recognizing that as long as the lots belonged to the same owner there could be no easement in favor of one lot or servitude upon the other 2: holding that where there is common ownership of two parcels there could be noeasement in favor of one lot operating as a burden to the other 3: recognizing that the dominant easement owner not the servient estate owner bears responsibility for maintaining an easement 4: holding same as to an easement by implication


Input: S.Ct. 478. Central to the Court’s conclusion in Ingersoll-Rand was the fact that the state law in question was not "a generally app at Ingersoll-Rand does not require preemption of state-law malpractice claim against insurers). 5 . MVP makes the claim that “[ajlmost all Courts of Appeals that have considered the question agree that state causes of action asserted against non-fiduciaries are preempted by ERISA.” MVP Br. at 26. The three circuit court cases which MVP cites, however, .involve suits brought by employees to recover plan benefits. See Custer v. Pan Am. Life Ins. Co., 12 F.3d 410, 418 (4th Cir.1993) (finding that an employee’s suit against administrator and underwriter for denied medical benefits was preempted); Gibson v. Prudential Ins. Co., 915 F.2d 414, 417 (9th Cir.1990) (<HOLDING>); Howard v. Parisian, Inc. 807 F.2d 1560, 1565 Holdings: 0: holding that an employees suit against agent for denied disability benefits was preempted 1: holding a suit against an agency of the state is a suit against the state 2: holding that disability pension benefits could be offset against both temporary and total permanent disability compensation benefits 3: holding that an employees claim against plan administrator for denied benefits is preempted 4: holding that disability benefits are not retirementtype benefits


Input: the Rules “have the force of law” throughout the state Id. at 166. The Court expressly reaffirmed Holt, however, explaining that the Rule 16(a)(2) “exception to disclosure and inspection does not apply to investigative files in possession of state agents or law enforcement officers, where the files have been closed and are not relevant to any pending or contemplated criminal action.” Id. Four years later, in 1991, the General Assembly amended the Public Records Act by replacing the phrase “state statute” with the phrase “state law.” This Court has since held that the phrase “state law,” added by the 1991 amendment, encompasses the Rules of Civil Procedure such that documents shielded by the Rules need not be disclosed pursuant to the Public Records Act. See Ballard, 924 S.W.2d at 662 (<HOLDING>); see also Swift v. Campbell, 159 S.W.3d 565, Holdings: 0: holding that by vesting jurisdiction of gtla actions in circuit court where the tennessee rules of civil procedure applied the legislature intended to allow the tennessee rules of civil procedure to apply to gtla actions 1: holding that tennessee rule of civil procedure 24 is not applicable to proceedings in juvenile court 2: holding that the public records act does not mandate disclosure of documents sealed by a protective order entered pursuant to the tennessee rules of civil procedure 3: holding that a protective order prohibiting the disclosure of pretrial discovery does not offend the first amendment 4: holding that the public records act does not mandate disclosure of records protected by tennessee rule of criminal procedure 16


Input: finds that good cause sufficient to require admission exists. The burden of establishing good cause is upon the party offering the evidence and good cause must be shown in the record. Tex. R. Civ. P. 215.5. This rale is mandatory, and the only remedy — exclusion of the witness — is automatic unless the offering party presents good cause on the record to excuse its imposition. See Alvarado, 830 S.W.2d at 914. The purpose of this rale is to require complete discovery so the responsible assessment of settlement is promoted and trial by ambush is prevented. See id. The case law is fairly liberal in providing good cause when the location information provided was sufficient to allow the requesting party to find the witness. See Smith v. Southwest Feed Yards, 835 S.W.2d 89, 91 (Tex.1992) (<HOLDING>); Varner v. Howe, 860 S.W.2d 458, 464 Holdings: 0: holding a motion is untimely if not filed after the party has knowledge to support disqualification and after the party suffers an adverse ruling 1: holding failure to designate party as witness not fatal because interrogatory answers showed party had knowledge of relevant facts 2: holding that implied consent is not established merely one party introduced evidence relevant to an unpleaded issue and the opposing party failed to object 3: holding that a plaintiff does not have to possess actual knowledge of all the relevant facts in order for the cause of action to accrue 4: holding that a nonhearsay response to an interrogatory that is based on personal knowledge may be considered as evidence on summary judgment


Input: 514 U.S. at 655, 115 S.Ct. 1671; Dillingham, 519 U.S. at 325, 117 S.Ct. 832; Rice, 331 U.S. at 230, 67 S.Ct. 1146. 37 . Greater Wash. Bd. of Trade, 506 U.S. at 130, 113 S.Ct. 580. 38 . See ERISA § 206(d)(1), 29 U.S.C. § 1056(d)(1); cf. Mackey v. Lanier Collection Agency & Serv., 486 U.S. 825, 829, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988) (concluding that a general state garnishment statute’s application to employee welfare benefits was not preempted by ERISA because ERISA was silent about enforcement mechanisms for money judgments whereas ERISA explicitly prohibited assignment of pension benefits). 39 . See Hermann Hosp. v. MEBA Med. & Benefits Plan, 845 F.2d 1286, 1289 & n. 13 (5th Cir.1988). 40 . See LeTourneau Lifelike Orthotics & Prosthetics, Inc., 298 F.3d 348, 352 (5th Cir.2002) (<HOLDING>); see also Physicians Multispecialty Group v. Holdings: 0: holding that constructive amendments which are per se reversible under harmless error analysis are also per se reversible under plain error analysis 1: holding that violation of state law was not a per se constitutional violation 2: holding that antiassignment provisions are not per se invalid as applied to health care providers 3: holding such agreements to be per se illegal 4: holding that to be preempted as a per se illegal hybrid restraint a regulation must involve a delegation of market power to private parties that is per se illegal because otherwise the hybrid restraint could not be attacked as facially invalid


Input: award of prejudgment interest is normally left in the discretion of the trial judge. We find that the trial court did not err in assessing interest at 8%.... ” (citation omitted)). Defendants do not suggest an alternative rate of prejudgment interest, and the Court concludes that 8% is an appropriate rate under Mississippi law. Cf. Miss.Code Ann. § 75-17-1 (setting 8% per annum rate for claims on “notes, accounts and contracts”). Prejudgment interest will begin with the date the first suit was filed. See id. § 75-17-7 (establishing that prejudgment interest begins on “date determined by such judge to be fair but in no event prior to the filing of the complaint”); see also Sw. Recreational Indus., Inc. v. FieldTurf Inc., No. 01-50073, 2002 WL 32783971, at *9 (5th Cir. Aug. 13, 2002) (<HOLDING>). Finally, the Court may take judicial notice Holdings: 0: holding that the district court erred by failing to determine and deduct the actual value of securities received by fraud victims 1: holding that district court erred by failing to follow prejudgmentinterest accrual date in state statute 2: holding that the district court erred in failing to properly charge the jury on defendants affirmative defenses 3: holding that district court erred in failing to consider evidence of secondary considerations 4: holding that a defendant waived a sentencing issue by failing to object in district court


Input: in state court and the Attorney General issues a scope certification, then the Act requires that the case be removed to federal court and the United States be substituted as the party defendant. Id. at 2679(d)(2). However, section 2679(d)(2) goes further than section 2679(d)(1) by stating, “This certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal.” Whether a federal employee is ultimately immune from suit, therefore, depends entirely upon whether the employee was acting within the scope of his employment when the events which underlie the lawsuit occurred. Previously in the Fourth Circuit this determination was left solely in the hands of the Attorney General. See Johnson v. Carter, 983 F.2d 1316, 1320 (4th Cir.) (<HOLDING>), cert. denied, — U.S. -, 114 S.Ct. 57, 126 Holdings: 0: holding that intent of parties to choice of law must be given effect 1: holding that effect must be given if possible to every clause and word of a statute 2: holding that plain meaning of legislation should be conclusive 3: holding that the attorney generals scope certification is to be given conclusive effect 4: holding to the same effect


Input: v. Taylor, 54 F.3d 967, 972 (1st Cir.1995) (“In general, the law ministers to the vigilant, not to those who sleep upon perceptible rights.”). Thus, the government argues that the defense’s failure immediately to object when Kevin was asked about convictions in addition to his unlawful sexual contact convictions constrains this court from considering the matter on appeal absent plain error. Fed.R.Crim.P. 52(b); Olano, 507 U.S. at 732-37, 113 S.Ct. 1770. Examination of the transcript, however, reveals that Meserve’s attorney objected as soon as it became obvious that the government’s line of questioning was in violation of Rule 609, i.e., when the government indicated that the conviction about which it was asking was a twenty-year-old disorderly conduct conviction. To 17 (D.C.Cir.1966) (<HOLDING>), with United States v. Benavente Gomez, 921 Holdings: 0: holding that objection by defense counsel that he did not see the relevance of the evidence was not a proper relevancy objection 1: holding that defendants objection to personal jurisdiction was forfeited where defendant did not object before he entered his plea 2: holding that defense counsels failure to object until after he learned the nature of the document being used to refresh the defendants recollection did not render objection nugatory 3: holding that defense counsels failure to object to testimony did not warrant a new trial because there was no prejudice from admission of the testimony 4: holding that counsel could have reasonably determined that the trial court would not sustain a rule 403 objection therefore counsels failure to object to this evidence was not deficient performance


Input: that Claimant had pursued that position in good faith. (R.R. 83-5a.) The duties of the position were “[c]ontacting organizations by phone to recruit fund raising campaigns.” (R.R. 109a.) She again indicated that the duties were within Dr. Durning’s sedentary work guidelines. After reviewing the six job referral notices, we disagree that they were insufficient to put Claimant on notice of the general duties and the exertional classification of the positions. Four-Way Construction. Certainly, the notices were sufficient to put Claimant on notice of the basic job duties and of the fact that they were within the sedentary guidelines set forth by Dr. Durning. Compare School District of Philadelphia v. Workmen’s Compensation Appeal Board (Stutts), 145 Pa.Cmwlth. 413, 603 A.2d 682 (1992) (<HOLDING>). We note, however, that at least three of the Holdings: 0: holding that where the employer discontinues a specially created job the employer must offer another suitable job to the claimant or continue total disability payments 1: holding that job referral notices without information advising a claimant that the job was within a category for which he received medical clearance were insufficient under kachinski 2: recognizing that employer is not obligated to produce evidence of change in physical condition as required by kachinski when modification request is based solely on job availability and allowing employee the benefit of same rule 3: holding that removal of job responsibility did not constitute an adverse employment action because there was no change in the plaintiffs job position grade pay or benefits 4: holding that an individual is not qualified for a job if there is a genuine substantial risk that he could be injured or could injure others and the employer cannot modify the job to eliminate that risk


Input: It maintains first that the Supreme Court’s SUWA case, 542 U.S. 55, 124 S.Ct. 2373, 159 L.Ed.2d 137, which concerns limitations on APA suits for an agency’s failure to act, bars review; second, that the Court’s analysis in Vermont Yankee, 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460, likewise prevents us from addressing the EIS’s failings; and third that the BLM is owed deference as to the methodology it adopts to comply with its NEPA obligations, including the failure to consider wilderness characteristics at all. None of these arguments is persuasive. a. SUWA SUWA held, inter alia, that an APA suit under 5 U.S.C. § 706(1) to “compel agency action unlawfully withheld or unreasonably delayed” “can proceed only where a plaintiff asserts that an agency failed to ta 99, 1503 (9th Cir.1995) (<HOLDING>); see also Ouachita Watch League v. Jacobs, 463 Holdings: 0: holding a rod to be final agency action 1: holding that the rod and eis for a program were final agency action 2: holding that it appears wellestablished that a final eis or the rod issued thereon constitute the final agency action for purposes of the apa and collecting cases 3: holding that the designation of the rod as final agency action under the apa is generally recognized 4: holding fda seizure action did not constitute final agency action


Input: 116, line 1] she states, ‘[Baker] may be the sole owner but it is still my house.’ ” Doc. 31 at 18. There are at two obvious problems with this contention. First, the cited page 116 of Griffin’s May 3, 2012 Examination Under Oath contains no such statement, and there are no similar statements in any of the bordering pages. The eourt confesses that it did not read the entire 294 pages of the examination to ascertain whether it could perhaps find the quoted language or any passage remotely similar to it because “judges are not like pigs, hunting for truffles buried in briefs” or, in this case, in a voluminous evidentiary record. Smith v. Lamz, 321 F.3d 680, 683 (7th Cir.2003) (internal quotation marks omitted). See also United States v. Adkinson, 135 F.3d 1363, 1378-1380 (11th Cir.1998)(<HOLDING>); Dickson v. Amoco Performance Prod., Inc., 845 Holdings: 0: holding that it is unfair to the district court to other litigants and to the movant to impose a duty on the district court to search and sift the factual record for the benefit of the defaulting party 1: holding that it is not the courts duty to sift through the record for evidence that supports a partys contentions 2: holding that the appeals court may affirm the ruling of the district court on any basis which the record supports 3: holding that an appellate court is not required to search the appellate record with no guidance from the briefing party to determine if the record supports the partys argument 4: holding it is proper to defer to the family court even if conflicting evidence is presented on appeal as long as ample evidence in the record supports the family courts findings and conclusions


Input: the Supreme Court determined in its discretion that the time had come to return the FJD to local control; the Justices then debated alternatives, voted, and issued a directive reorganizing the FJD. This procedure was no different from that which a legislature would follow in like circumstances. In sum, the issuance of the March 26 order was both substantively and procedurally legislative, and accordingly the dis trict court did not err in applying legislative immunity to Justices Zappala, Cappy, and Nigro with respect to claims arising from Gallas’ termination as Executive Administrator. Having reached this conclusion, we must afford quasi-legislative immunity to Sobolevitch, whose role in the reorganization derived from the Supreme Court’s order. See Aitchison, 708 F.2d at 99-100 (<HOLDING>). Indeed, Gallas’ counsel conceded before the Holdings: 0: holding that city council is entitled to absolute legislative immunity from claim under the age discrimination in employment act 1: holding that individuals acting in a legislative capacity at a regional level are entitled to absolute immunity 2: holding that the burden is on the defendants to establish the existence of absolute legislative immunity 3: holding that a judge was not entitled to absolute immunity for firing an employee 4: holding that borough attorney who was acting in direct assistance of legislative activity was entitled to absolute immunity


Input: v. Transamerica Financial Services (In re Matthews), 724 F.2d 798 (9th Cir.1984) (per curiam). The Matthews purchased a piano and a stereo with money borrowed from Transamerica Financial Services (Transamerica). The collateral listed as securing the loan included the piano, the stereo, and other household goods and other personal property of the Matthews. Subsequently, Transamerica refinanced the loan for a longer term at a lower monthly payment and issued a new loan. The Matthews used the new loan to pay off the old and, additionally, received $63.14 in cash and paid insurance charges of $279.23. The Matthews filed a petition for bankruptcy in November 1980. When Transamerica filed for relief from the Automatic Stay to repossess the collateral, the Debtors 84 B.R. 6 (D.R.I.1988) (<HOLDING>); (citing In re Matthews, supra, and In re Holdings: 0: holding buyer liable for balance of contract price of accepted goods 1: holding that a note which was a consolidation of the debtors previous notes did not give rise to a pmsi 2: holding that a creditors pmsi in goods sold to debtors did not survive consolidation of the original installment contract with a later contract for the purchase of additional goods 3: holding that under north dakota law consolidation of a note secured by a pmsi in farm machinery with other goods resulted in a novation destroying the creditors pmsi 4: holding that a statement of conditional sale of goods can be filed with the state auditor before the delivery of goods where statute says the statement must be filed within ten days of delivery of goods


Input: to present her reasons to the court as to why she should be granted a continuance. The scheduling order Ray relies on did not satisfy the requirements under the rule. Other than containing the date the petition was filed, there was no indication in the scheduling order alerting the judge that the case was subject to imminent dismissal. Simply agreeing on a trial date without including “grounds for continuance” circumvents the requirements under rule 215.1. Ray had the burden of keeping her case alive and avoiding an automatic dismissal under rule 215.1. See Greif v. K-Mart Corp., 404 N.W.2d 151, 154 (Iowa 1987). Accordingly, the stipulation as to a trial date does not save her case from automatic dismissal under rule 215.1. Compare Butner v. Beyer, 593 N.W.2d 133, 135 (Iowa 1999) (<HOLDING>). We find, therefore, this case was correctly Holdings: 0: holding that the lower court lacked jurisdiction to hear the case because it was filed without proper authority 1: holding that trial counsel did not abuse its discretion by denying a continuance where appellant failed to specify the evidence which might have been revealed if the continuance had been granted and counsel had been afforded the opportunity to investigate further 2: holding district court was without authority to dismiss the case on rule 2151 grounds when an application had been filed and a continuance ordered 3: holding that district court had no authority to reopen appeal period when motion was filed beyond 180day limit 4: recognizing district court application of the same rule


Input: was a convicted felon, and allow the State to parade the defendant’s prior felony history before the jury, over objection by the defendant, was an abuse of discretion and deprived defendant of his fundamental right to a fair trial. (A96) (emphasis added). Reviewing this sentence in the context of the arguments made in Petitioner’s Opening Brief, the Court likewise concludes that it is insufficient to put the state supreme court on notice that Petitioner was raising a federal constitutional claim. As the Court noted, Petitioner did not analyze his claim in constitutional terms and his reference to Old Chief as not binding on the state courts undermines Petitioner’s argument that he raised a federal constitutional claim. See e.g. Bright v. Snyder, 218 F.Supp.2d 573, 578-579 (D.Del.2002) (<HOLDING>). In addition, the Court finds further support Holdings: 0: holding that because defense counsel failed to alert the trial court that he was requesting relief based on a violation of defendants constitutional rights due process argument was not preserved for appellate review 1: holding that petitioner did not exhaust his due process claim that he was denied a full and fair hearing by arguing that due process was violated on the ground that the ij admitted uncertified evidence 2: holding that the petitioners due process claim that he was denied a full and fair hearing because the immigration judge was biased was the kind of procedural error that required exhaustion 3: holding that petitioners reliance on a case which concluded that a defendants right to a fair trial was violated was insufficient to place court on notice that petitioner was advancing a constitutional due process claim because the decision was based on state law 4: holding that notice of judgment was insufficient


Input: that it claims will cause individualized inquiries to overwhelm the common issues. These claimed defenses are that (1) ECMC’s warning on a previous call can establish a customer’s awareness of and implied consent to future recordings of subsequent calls, and (2) a caller’s hold time for each individual call can serve as a proxy for notice and consent. (See id. 11:16-12:2, 12:13-27.) i. ECMC’s Prior Awareness Defense The Court will first consider the effect of ECMC’s proposed “prior awareness” defense. As ECMC correctly notes, the existence of prior awareness of its recording practice or consent thereto could raise the possibility of individual differences among class members. See, e.g., Right v. CashCall, Inc. (“CashCall II"), 231 Cal.App.4th 112, 132, 179 Cal.Rptr.3d 439 (2014) (<HOLDING>). Here, however, ECMC offers evidence only that Holdings: 0: holding that fdcpa statutory damages did not predominate over the requested equitable relief because given the defendants net worth and the number of class members each class member would be entitled to receive only 025 in statutory damages 1: holding that because the defendant has the right to litigate the issue of each class members consent the trial court did not improperly exercise its discretion in finding that these issues would predominate over common questions 2: holding that individualized factual determinations precluded finding that common issues predominate reversing the class certification order 3: holding that individualized questions concerning the defendants responsibility for diminished sales prices of class members bonds predominated over any common questions rendering class certification inappropriate 4: holding that common issues of fact did not predominate because it was necessary to make an individualized inquiry into equitable circumstances


Input: Estate].” It is undisputed that at the time they signed the Release, the Mahans had knowledge of Claim 7 and knew that it would be assigned to them. Debtor conceded that prior to the closing of the loan with United Southern Bank, the Mahans decided that rather than simply pay off the Loan with Mercantile Bank, they would acquire the Mercantile Bank Loan documents, including Claim 7, by way of assignment. Debtor testified that when the Mahans signed the Release, they were aware of the escrow of the assignment of Claim 7 and of the note and other Loan documents. Debtor also testified that at the time the Mahans signed the Release, they knew that once Southeastern’s debt to Mercantile Bank was paid, Mercantile Bank would assign Claim 7 to the Mahans 208, 210 (Fla. 5th Dist.Ct. App.2002) (<HOLDING>); Hold v. Manzini, 736 So.2d 138, 141 (Fla.3d Holdings: 0: holding that despite release language discharging defendant from claims upon or by reason of any matter cause or thing whatsoever from the beginning of the world to the day of these presents release did not bar any claims accruing after the date of execution 1: holding that release which barred all claims from the beginning of the world to the day of these presents included claims which the releasor had or could have had against the releasee up to the date of its execution 2: holding that a release of such claims or other matters arising from the beginning of time to the date of execution of this agreement did not protect the defendant from liability arising from unconstitutional conduct that occurred after the agreements execution 3: holding that all inclusive language  from the beginning of the world to the days present barred all claims arising prior to releases execution 4: holding that release which barred all claims from the beginning of the world to the day of the date of these presents included all claims which had matured at the time of its execution


Input: abused its discretion.” Oravec v. Sunny Isles Luxury Ventures, L.C., 527 F.3d 1218, 1231 (11th Cir.2008). The district court “has discretion to deny leave to amend ... when the moving party offers no adequate explanation for a lengthy delay.” In re Engle Cases, 767 F.3d 1082, 1119 (11th Cir.2014). Witt’s motion was submitted a year after the action was initially filed and lacked any supporting explanation for why leave should have been granted. Her thread bare request failed to state why justice required the opportunity to submit a fourth version of her complaint. As we see it, the district court did not clearly abuse its discretion by denying leave to amend. Moreover, Witt’s proposed amendment was futile. See Hubbard v. BankAtlantic Bancorp, Inc., 688 F.3d 713, 716 (11th Cir.2012) (<HOLDING>) “Because justice does not require district Holdings: 0: recognizing that this court may affirm on any ground supported by the record even if it differs from the reasoning of the district court 1: holding that we may affirm a district court if its holding was right for any reason 2: holding this court may affirm on any grounds supported by the record even if different from the district courts grounds 3: recognizing this court may affirm for any reason supported by the record 4: recognizing ability to affirm for any reason that finds support in record


Input: when a union member brings a meritorious grievance, the union’s decision to ignore that grievance or to process it in a perfunctory manner is considered a ministerial action that breaches the union’s duty if it is arbitrary, discriminatory, or performed in bad faith. Nevertheless, a court reviewing a union’s conduct will not find that the union has exercised its duties perfunctorily unless it has treated the union member’s claim so lightly as to suggest an “egregious disregard” of her rights. Kirbyson, 795 F.Supp.2d at 940 (citations omitted). B. Defendants Have Not Demonstrated that the Six-Month Statute of Limitations Bars Vegas’s Claims. The applicable statute of limitations for hybrid § 301/fair representation claims is six months. DelCostello, 462 U.S. at 164-65, 103 S.Ct. 2281 (<HOLDING>). The limitations period begins to run when the Holdings: 0: holding ports authority was not an employer subject to the jurisdiction of the national labor relations board 1: holding that a district court may have jurisdiction over action taken by the national labor relations board despite an express statutory finality provision when the agency has acted in excess of its delegated powers and contrary to a specific prohibition in the national labor relations act 2: holding that  301 of the labor management relations act of 1947 29 usc  185 does not preempt claims brought under washingtons minimum wage act chapter 4946 rcw 3: holding that the but for test applied in a mixed motive case under the national labor relations act 4: holding that section 10b of the national labor relations act 29 usc  160b sets the applicable statute of limitations for hybrid  301fair representation claims at six months


Input: arid mandatory right originating outside of the CBA. see e.g., Rabe v. United Air Lines, Inc., 636 F.3d 866, 873 (7th Cir.2011) (“A state law claim is preempted only when it asserts rights or obligations arising under a collective bargaining agreement or when its resolution is substantially dependent on the terms of the collective bargaining agreement.”); Detabali v. St. Luke’s Hospital, 482 F.3d 1199, 1203 (9th Cir.2007) (“[T]he need to interpret the [collective bargaining agreement] must inhere in the nature of the plaintiffs claim.. If the claim is plainly based on state law, § 301 preemption is not mandated simply because the defendant refers to the [collective bargaining agreement] in mounting a defense.”); Harper v. AutoAlliance Int’l, Inc., 392 F.3d 195, 209 (6th Cir.2004) (<HOLDING>); Trevino v. Ramos, et al., 197 F.3d 777, 781 Holdings: 0: holding that plaintiffs state law claim against a nonsignatory to the cba was preempted by  301 1: holding that an employees retaliation claim was not preempted by section 301 because he was exercising his rights under the states antidiscrimination laws and the terms of the cba were at most relevant background for the employees termination 2: holding that a company exercising substantial control of the terms and conditions of the work of the employees is an employer under the flsa 3: holding that plaintiffs negligence claim was preempted by section 301 because employers duty to provide a safe workplace was expressly created by the cba 4: holding that both plaintiffs discrimination and retaliation claims were beyond the preemptive scope of section 301 because they involved purely factual questions and asserted rights independent of the cba


Input: been brought out on voir dire. At trial, defense counsel filed a motion for new trial and a motion to voir dire Julian. After a detailed hearing conducted August 8, 1994, at which Julian was thoroughly examined, the court denied the motion for new trial. As the postconviction court stated, “The underlying substance of this claim is clearly Mr. Julian’s potential bias, an issue which could have been raised on direct appeal because it was thoroughly addressed at the conclusion of the trial.” On this basis, the court rejected the claim as procedurally barred, finding that it could have been raised on direct appeal. To the extent Kimbrough seeks review of the substantive issue underlying his ineffective assistance of counsel claim, we agree. See Maharaj v. State, 684 So.2d 726 (Fla.1996) (<HOLDING>); see also Sireci v. State, 469 So.2d 119, 120 Holdings: 0: holding that claims alleging prosecutorial misconduct which were based on facts in the record could have and should have been raised on direct appeal and were thus not cognizable in postconviction proceedings 1: holding that any claim that was raised or could have been raised on direct appeal is barred from review on post conviction under the doctrine of res judicata 2: holding that claims not properly raised on direct appeal will not be considered as a basis for collateral relief 3: holding that postconviction relief claims which either were raised or could have been raised on direct appeal were properly denied without an evidentiary hearing 4: holding claims must be raised on direct appeal or waived


Input: of the statute, different terms may be used to show criminal intent. Morissette, 342 U.S. at 264, 72 S.Ct. 240 (“Congress ... has seen fit to prescribe that an evil state of mind, described variously in one or more such terms as ‘intentional,’ ‘wilful,’ ‘knowing,’ ‘fraudulent,’ or ‘malicious,’ will make criminal an otherwise indifferent act....”) Here, section (a)(3) requires a higher mens rea than general criminal intent; a defendant must “knowingly” falsify header information and “intentionally”. transmit it. Thus, a defendant must at the very least know he is being deceptive while sending multiple commercial emails. Under Mor-issette, and its progeny, this satisfies the “evil-meaning mind” requirement. See U.S. v. Yermian, 468 U.S. 63, 74-75, 104 S.Ct. 2936, 82 L.Ed.2d 53 (1984) (<HOLDING>). Cf. Liparota v. U.S., 471 U.S. 419, 432 n. Holdings: 0: holding that a defendant who deliberately avoids reading the form he is signing cannot avoid criminal sanctions for any false statements contained therein 1: holding that all claims submitted by defendant were false because they were acquired by kickback 2: holding statute imposing criminal sanctions for deliberately false statements submitted to federal agency even without a showing that defendant knew they were being submitted to the federal government did not constitute a trap for the unwary 3: holding that the provisions of the false claims act allowing suit imposing liability on any person who presented false claims to the federal government did not allow suits against state governments 4: holding that the defendant contractor violated 18 usc  286  a companion statute to the criminal fca  because his claims were false when submitted even though the false claims were ultimately irrelevant to the total amount paid by the government to the contractor


Input: and injustice warrant the setting aside of an arbitration award.” Id. When a non-prevailing party seeks to vacate an arbitration award, it bears the burden in the trial court of bringing forth a complete record that establishes its basis for vacating the award. Anzilotti, 899 S.W.2d at 266; GJR Mgmt. Holdings, L.P., 126 S.W.3d at 263-64 (citing Kline v. O’Quinn, 874 S.W.2d 776, 790 (Tex.App.-Houston [14th Dist.] 1994, writ denied) (op. on reh’g)). When there is no transcript of the arbitration hearing, the appellate court will presume the evidence was adequate to support the award. Jamison & Harris v. Nat’l Loan Investors, 939 S.W.2d 735, 737 (Tex.App.-Houston [14th Dist.] 1997, writ denied); House Grain v. Obst, 659 S.W.2d 903, 906 (Tex.App.-Corpus Christi 1983, writ ref'd n.r.e.) (<HOLDING>). Many Texas courts have held that without a Holdings: 0: holding that arbitration award is binding on the parties 1: holding merely that the evidence was sufficient to support the award of attorneys fees 2: holding that the party seeking to vacate the award has the burden of providing the court with the evidence to support its arguments 3: holding the appellate court must presume adequate evidence to support the award when appellant sought to vacate the award based on gross mistake with no transcript of the arbitration proceedings 4: holding that an order remanding an arbitration award is not a final appealable order when the order does not also vacate the arbitration award


Input: permanent place of incarceration. Our Court of Criminal Appeals has followed this view. See Lock, 839 S.W.2d at 444. In Lock, a prisoner who was serving a sentence in a Kentucky jail filed a request for final disposition of an indictment pending against him in Sumner County, Tennessee. Id. at 438. After the passage of 180 days, the prisoner filed a motion to dismiss the Sumner County charges, asserting that he had not been tried within the time period required by the IAD. Id. at 439. The Court of Criminal Appeals rejected the State’s argument that the IAD was not applicable because it found that the prisoner was in a county jail, not a state prison. The court held that “[i]f a prisoner is under custodial authority by virtue of serving a term of imprisonment, the 0-21 (D.Colo.2002) (<HOLDING>); United States v. Evans, No. 1:08CR00024-006, Holdings: 0: holding that it was an abuse of discretion to deny stay while matter was pending in neighboring state 1: holding it was not an abuse of discretion to deny funds 2: holding it an abuse of discretion for the district court to deny equitable relief by relying on its own findings that were inconsistent with the jurys findings 3: holding that a temporary order with no fixed time period had lasted so long as to make judicial review timely 4: holding that it is inconsistent with the purpose of the iad to deny its protections to a sentenced prisoner who serves time no matter how lengthy in a temporary facility


Input: (“[W]e conclude that § 1404(a) is the proper avenue of relief where a party seeks the transfer of a case to enforce a forum-selection clause, while Rule 12(b)(3) is the proper avenue for a party’s request for dismissal based on a forum-selection clause.”); Hillis v. Heineman, 626 F.3d 1014, 1016 (9th Cir.2010) (finding that a party’s defense for improper venue under Rule 12(b)(3) based on a forum-selection clause was valid and was not waived by the filing of a counterclaim); Muzumdar v. Wellness Int’l Network, Ltd., 438 F.3d 759, 760-62 (7th Cir.2006) (“A challenge to venue based upon a forum selection clause can appropriately be brought as a motion to dismiss the complaint under [Rule] 12(b)(3).”); Sucampo Pharm., Inc. v. Astellas Pharma, Inc., 471 F.3d 544, 548-50 (4th Cir.2006) (<HOLDING>); Riley v. Kingsley Underwriting Agencies, Holdings: 0: recognizing circuit agreement that a motion to dismiss based on an arbitration clause is proper under rule 12b3 1: holding prejudgment denial of motion to dismiss on basis of forumselection clause not to be immediately appealable under  1291 2: holding that since the fifth circuit has accepted rule 12b3 as a proper method for seeking dismissal for improper venue based on a forum selection clause the court need not decide whether a rule 12b1 motion  is appropriate 3: holding that motions to dismiss based on forumselection clause should be analyzed under rule 12b3 4: holding that a forumselection clause may be enforced under rule 12b3 as a motion to dismiss on the basis of improper venue


Input: to appropriate its business opportunities. See Cal. Corp. Code § 16404(b); Leff, 33 Cal.3d at 514, 189 Cal.Rptr. 377, 658 P.2d 740. Second Measure’s request to dismiss Counterclaims 2 and 4 is therefore DENIED. 3. Breach of Fiduciary Duty (Counterclaim 5) a. Relevant Substantive Law To establish a breach of fiduciary duty, a plaintiff must show “(1) existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach.” People ex rel. Harris v. Rizzo, 214 Cal.App.4th 921, 950, 154 Cal.Rptr.3d 443 (2013) (quotation omitted). Section 16404 of the California Corporations Code provides a nonexclusive list of the fiduciary duties that one partner owes to another. See Enea v. Superior Court, 132 Cal.App.4th 1559, 1565, 34 Cal.Rptr.3d 513 (2005) (<HOLDING>). Because fiduciary duties are imposed by Holdings: 0: holding that an error cannot be plain unless it is clear under current law quotation omitted 1: holding that the list is comprehensive but not exhaustive quotation and emphasis omitted 2: recognizing that a strong causal connection is required quotation omitted 3: holding that fela is comprehensive and also exclusive in respect of a railroads liability for injuries suffered by its employees while engaging in interstate commence quotation omitted 4: holding that competency is appropriately defined as the mental capacity to understand the nature of the death penalty and why it was imposed upon the convict emphasis added internal quotation marks omitted


Input: at 1273-1274. Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir.1993). Consequently, the Court refuses to conclude that one incident is, as a matter of law, insufficient to support a hostile work environment claim. That conclusion, coupled with the evidence that the incident at issue was especially severe, leads this Court to conclude that Plaintiff has submitted sufficient evidence to create a genuine issue of material fact as to the hostile work environment claim. Courts have pointed out that the racial epithet of “nigger” is particularly offensive. See Rodgers, 12 F.3d at 675. In Rodgers, the Seventh Circuit stated that the word “nigger” is unambiguously racist and held that its use on even a few occasions affects the terms and conditions 878, 885 (7th Cir.1998) (<HOLDING>). Consequently, the Court concludes that the Holdings: 0: holding that referring to a female colleague as dancing girl or call girl ignoring her except to comment on her appearance and another female employees quitting because of the same person was not sufficient to establish a prima facie case of hostile work environment because the offensive utterances do not rise to the level required by the supreme courts definition of a hostile work environment 1: holding that evidence of a single battery and two offensive remarks over six months did not establish a hostile environment 2: holding that a single offensive racist comment was not sufficient to establish a hostile work environment 3: recognizing a hostile work environment claim under section 1983 4: holding that a viable hostile work environment claim requires an environment that a reasonable person would find hostile or abusive