Input: not manage a fund entrusted to him by the client....”); In re Gelson, 12 F.Supp. 924, 925 (E.D.N.Y.1935) (“An attorney receiving money which is the property of his client, does so in a fiduciary capacity, within the purview of the bankruptcy law.”). Moreover, numerous cases have applied the defalcation exception to debts owed by corporate officers, notwithstanding the absence of any express trust. See, e.g., Pepper v. Litton, 308 U.S. 295, 306, 60 S.Ct. 238, 84 L.Ed. 281 (1939) (“A director is a fiduciary. So is a dominant or controlling stockholder or group of stockholders. Their powers are in trust.” (citations omitted)); In re Hammond, 98 F.2d 703, 705 (2d Cir.1938) (“It can scarcely be doubted ... that a director [is a fiduciary].”); In re Bernard, 87 F.2d 705, 707 (2d Cir.1937) (<HOLDING>). The district court’s view that only the Holdings: 0: holding that under delaware law the fiduciary duties of officers are the same as those of directors 1: holding that where the policy names only the directors or officers as insured the proceeds are not property of the estate 2: holding that independent directors can be entrusted with the decision to sue other directors on behalf of the corporation 3: holding that officers directors and employees of a corporation may become personally liable under  1981 4: holding that directors and officers are fiduciaries


Input: Creek sub-watershed; and may significantly impact other wildlife. In contrast, the Forest Service asserts that its finding of no significant impact was reasonable because “the Forest Service and Fish and Wildlife Service biological analyses demonstrate that impacts to wildlife, including the northern spotted owl ... will not be significant. Watershed analysis demonstrates that none of the watersheds in the project area will be significantly affected.” (Defi’s Mem. In Supp. Of Mot. For Summ. J. and in Opp’n to Pis.’ Mot. For Summ. J. (“Def.’s Mem.”) at 10.) 1. Northern Spotted Owl The EA concludes that the project “will affect, is likely to adversely affect” the Northern Spotted Owl. (EA at 58, AR 417.) Standing alone, this suggests the need for an EIS. Ocean Advocates, 361 F.3d at 1125 (<HOLDING>). The Forest Service concludes however, that Holdings: 0: holding that the presence of one intensity factor may be sufficient to deem the action significant in certain circumstances 1: recognizing that in certain circumstances inquiry notice may be determined as a matter of law 2: holding that in certain circumstances fraud can be prosecuted under the statute 3: holding that no one factor is determinative and the weakness of  one factor may be overborne by the strength of the others 4: holding that no one factor is determinative and the weakness of one factor may be overborne by the strength of the others


Input: invasion, and Issa’s blood found on a wooden fence slat in the back yard of the subject home, Issa’s counsel argued in his closing that his client went with others to the victims’ home but abandoned the robbery plan, was then shot by one of the other perpetrators, and remained in the back yard for some time after being wounded. And in a further effort to explain why all three victims testified that the perpetrator who struggled with C. D. was shot, Issa’s counsel posited that this unknown perpetrator faked being wounde r v. State, 293 Ga. 282, 283 (745 SE2d 646) (2013) (punctuation omitted); accord Gordon v. State, 334 Ga. App. 633, 634 (780 SE2d 376) (2015). 61 Gordon, 334 Ga. App. at 634 (punctuation omitted); see McNair, 293 Ga. at 283 (noting that the rule of 7 5 SE2d 187) (2015) Holdings: 0: holding that the defendant was guilty of leaving the scene because the injured party and a police officer were present at the scene within a reasonable time after the accident 1: holding counsels failure to object to victim impact testimony and evidence was not ineffective assistance of counsel when the trial record was silent as to counsels strategy 2: holding that trial counsels strategy of explaining that defendant was at the scene of crime to deal drugs rather than commit robbery was not unreasonable 3: holding that trial counsels decision to submit evidence to the jury that his confession was coerced rather than submitting the evidence to the judge in a motion to suppress was a matter of trial strategy and thus did not constitute ineffective assistance 4: holding that counsels failure to object or request a limiting instruction for evidence of defendants incarceration was sound trial strategy


Input: installation services. In addition, Siemens has stated that when installation services are provided, “they are part and parcel of the contract for sale of equipment to the customer.” These are clear indications that Siemens has provided recurrent work for installation services as defined by the Kentucky courts. See Cain, 236 S.W.3d at 588; Fireman’s Fund Insurance Company v. Sherman & Fletcher, 705 S.W.2d 459, 462 (Ky.1986) (finding that “a person who engages another to perform a part of the work which is a recurrent part of his business, trade, or occupation is a contractor”). Siemens has also continued to provide installation services since the NAS contract and indicates that this work is recurrent. See Daniels v. Louisville Gas and Electric Company, 933 S.W.2d 821, 823 (Ky.App.1996) (<HOLDING>). We find that Plaintiffs placed an unwarranted Holdings: 0: holding that uncharged conduct may be considered at sentencing when that conduct is proven by a preponderance of the evidence 1: holding that lg  e may be classified as a contractor when it subcontracted with tsa to conduct emissions testing at irregular or sporadic intervals which satisfied the definition of regular or recurrent work 2: holding that when attorneys were acting as members of the firm with respect to the case in question section 504b1 applies to allow  fee sharing with any member whether that membership is regular or sporadic 3: holding that duty to ensure that independent contractor performs its work in safe manner arises if the general contractor retains some control over the manner in which the independent contractor performs its work 4: holding that if contractor is hable to sub that liability though not yet satisfied by payment might well constitute actual damages to the contractor and sustain their suit under rule that contractor may only sue to recover its own damages


Input: any case that specifically addresses the precise issue here, i.e., whether the US-CIS’s termination of an alien’s refugee status constitutes final agency action.” R. 31 PagelD# : 568. But “the parties do cite cases that have considered whether the USCIS’s termination of an alien’s asylee status or its denial of an application to adjust status is final agency action within the meaning of the APA.” Id. The Court agrees with the Magistrate Judge that “[t]hese cases provide a useful framework for resolving the issues before this Court.” Id. Where removal proceedings are pending, such as in this case, further administrative relief is available and the termination of an alien’s current status is an intermediate, nonfinal agency action. See Qureshi v. Holder, 663 F.3d 778, 781 (5th Cir.2011) (<HOLDING>); see also Cabaccang v. USCIS, 627 F.3d 1313, Holdings: 0: holding that epa action initiating permitting proceedings was not final agency action 1: holding that termination of asylum is not final agency action because it is only an intermediate step in a multistage administrative process succeeded or accompanied by removal proceedings 2: holding that it was within the discretion of the bia to deny a motion to reopen because it was not accompanied by an asylum application 3: holding that because the ij denied an asylum application as untimely we lacked subjectmatter jurisdiction to review the final order of removal as it pertained to the asylum claim 4: holding issuance of administrative complaint to initiate proceedings not final agency action


Input: only in the way and to the extent that it would have been punishable if the territory embraced by the reservation remained subject to the jurisdiction of the State.” 219 U.S. at 10, 31 S.Ct. at 214. Within this framework, the federal assessment could be imposed in this case only to the extent of $15.00, the most that could be charged a defendant under the Virginia victim compensation scheme. Such a result seems counterintuitive, or at least impractical. Although the result follows from the reasoning of Press Publishing Co., it is not clear whether fines— especially unique fines such as the special assessments — must be treated in the same way as sentences of incarceration for purposes of the “like punishment” analysis. But cf. United States v. Kendrick, 636 F.Supp. 189 (E.D.N.C. 1986) (<HOLDING>); cf. also United States v. Patmore, 475 F.2d Holdings: 0: holding that the court of criminal appeals has jurisdiction to review fines under the criminal sentencing reform act of 1982 because sentence is a broad term which encompasses a fine probation a term of imprisonment or any other form of punishment imposed by the court 1: holding that trial courts failure to give reasonabledoubt instruction sua sponte during punishment phase for extraneous offenses offered during punishment was harmless error in part because the jury assessed punishment far below maximum available despite states plea for maximum 2: holding that misdemeanor offense of driving while intoxicated constitutes a crime of violence under ussg  4b12a 3: recognizing that felony and misdemeanor dwi are separate offenses because a prior conviction is an essential element of felony driving while intoxicated but it is not an element of the misdemeanor offense 4: holding that punishment in this court for an offense under ncgs  1381 north carolinas driving while intoxicated statute cannot exceed a fine of 1000 or imprisonment for a term not exceeding one year the maximum punishment for a misdemeanor under 18 usc section 1 because to allow the greater punishment that could be imposed under state law would conflict with the federal policy of limiting us magistrates nonconsensual jurisdiction to that allowed under the federal definition of a misdemeanor


Input: Commentary to ABA Defense Function Standard 4-8.2. See also United States v. Ruth, 768 F.Supp. 1428, 1435 (D.Kan.1991). For other cases where courts have applied the Flores-Ortega standard to privately retained counsel who informed their clients that they would not continue to represent them on appeal, see Raney v. State, 986 So.2d 468 (Ala.Crim.App.2007); Esters v. State, 894 So.2d 755 (Ala.Crim.App.2003); and Wallace v. State, 121 S.W.3d 652 (Tenn.2003); Cabinatan v. United States, unpublished, 2011 WL 255691, *5 (D.Haw.2011) (rejecting the contention that, because the defendant's trial attorney "was not retained or paid to prosecute an appeal, he therefore owed no duty to Cabinatan to file a notice of appeal."); Richardson v. United States, 612 F.Supp.2d 709, 715-16 (N.D.W.Va2009) (<HOLDING>); Schaefer v. United States, unpublished, 2008 Holdings: 0: holding the court lacked jurisdiction where the defendant failed to file a notice of appeal on the attorneys fee issue because a supplemental notice of appeal is required for us to have jurisdiction over an attorneys fees issue that becomes final subsequent to the initial notice of appeal 1: holding that equitable tolling of the time to file a notice of appeal is not permitted 2: holding that trial counsel owes a criminal defendant a duty to file a notice of appeal regardless of whether the attorney was retained for the appeal or not 3: recognizing that exception to requirement of timely filing of notice of appeal exists in cases where defendant either was not told of right to appeal or was not furnished attorney to exercise those rights or was furnished attorney for that purpose who failed to perfect and complete appeal 4: holding on appeal from a habeas corpus denial that counsel was not ineffective for failure to file a notice of appeal because of defendants escape


Input: amply justified in concluding that despite the fact that the hearing on Nelson’s motion in limine to exclude the Rule 404(b) evidence was deferred until trial, the speedy trial clock did not run during the entire pendency of this motion. See 18 U.S.C. § 3161(h)(1)(F); United States v. Phillips, 936 F.2d 1252, 1254 (11th Cir.1991) (“Motions necessitating hearings, such as suppression hearings ... are governed by section 3161(h)(1)(F). As such, the entire time from the fifing of the motion to the conclusion of the hearing is excludable, even when the hearing is deferred until trial.”)(citing United States v. Garcia, 778 F.2d 1558, 1562 (11th Cir.1986) and United States v. Mastrangelo, 733 F.2d 793, 796 (11th Cir.1984)); see also United States v. Beard, 41 F.3d 1486, 1488 (11th Cir.1995) (<HOLDING>). Thus, no more than 30 non-excludable days Holdings: 0: holding district courts should defer to hearing officers finding on the credibility and reliability of evidence of witnesses who testified before her 1: holding that a pretrial motion triggers an automatic exclusion under  3161h1f even though no actual delay results 2: holding trial court abused its discretion by refusing to conduct hearing and render decision on motion 3: recognizing that a district courts decision to defer hearing a motion until trial does not render the intervening time nonexcludable under  3161h1f 4: holding that where both the appellate and trial courts are reviewing the paper record  there is no reason for the appellate courts to defer to the trial courts finding


Input: whether the trial court found that adultery caused the dissolution of the marriage or related to pre- or post-separation conduct, (2) state the basis for the trial court’s award to Cynthia of more property than she requested, and (3) contained no explanation for the trial court’s “harsh rebuke” that Daniel had made a game of the divorce and the dissolution of his business and that his conduct constituted a “mockery of our judicial system.” Daniel asserts he is “left guessing” as to the basis for the trial court’s ruling and cannot adequately address the findings on appeal. Daniel’s complaints necessarily relate to the trial court’s failure to make additional findings pursuant to rule of civil procedure 298. See Moore v. Moore, 383 S.W.3d 190, 200-01 (Tex.App.-Dallas 2012, pet. denied) (<HOLDING>). Rule of civil procedure 298 provides that, Holdings: 0: holding the findings of fact required to support an alimony award are sufficient if findings of fact have been made on the ultimate facts at issue in the case and the findings of fact show the trial court properly applied the law in the case 1: recognizing appellate courts must not make fact findings 2: holding the appellant carries the burden of demonstrating error in the family courts findings of fact 3: holding because defendant does not argue in his brief that these findings of fact are not supported by    evidence in the record this court is bound by the trial courts findings of fact 4: recognizing distinction between findings of fact under section 6711 of the family code and findings of fact under rules of civil procedure


Input: goal in construing statute is to fulfill intent of legislature). ¶ 132 Before 1985, § 40-254(A) provided that a party dissatisfied with a Commission decision could commence an action “to vacate and set aside” the decision. A.R.S. § 40-254, Historical and Statutory Notes. Section 40-254(C) was the same as it reads today. Thus, before 1985, the superior court indisputably lacked authority to grant any relief under the statute other than affirming, modifying or setting aside a Commission decision. See Sun City Water Co. v. Arizona Corp. Comm’n, 113 Ariz. 464, 466, 556 P.2d 1126, 1128 (1976) (concluding court lacked authority to affirm Commission decision in part and remand another portion); Arizona Corp. Comm’n v. Fred Harvey Transp. Co., 95 Ariz. 185, 190, 388 P.2d 236, 239 (1964) (<HOLDING>). ¶ 133 In 1985, the legislature amended § Holdings: 0: holding that district court lacked power to decide personal jurisdiction issue already decided by district of columbia superior court 1: holding district court lacked authority to order placement at a school not approved by the state 2: holding superior court lacked authority to remand to commission 3: holding the appellate court lacked jurisdiction to hear an appeal where the circuit court had the power to remand the agency decision for further proceedings 4: holding that where a superior court judge was named a defendant in an action for a writ of mandamus the prosecuting attorney is the proper court representative of the superior court judge


Input: Penn Central Transportation Company, 944 F.2d 164, 165-66 (3d Cir.1991), cert. denied, 503 U.S. 906, 112 S.Ct. 1262, 117 L.Ed.2d 491 (1992). 7 .Id. at 166. 8 . For a discussion of the ownership and operational history of the Reading Terminal, see Reading Company v. City of Philadelphia, 823 F.Supp. 1218, 1222-25 (E.D.Pa.1993). 9 . Conrail has now dropped its motion for summary judgment on the immunity portion of Count II. ConraiTs Memorandum of Law in Further Support of Its Motion for Summary Judgment at 1. The summary judgment motions of the Uni .R. 406, 409 (Sp.Ct.R.R.R.A.1990) (concluding that an interpretation of language in the FSP. is within the Special Court’s jurisdiction); Consolidated Rail Corporation v. Penn Central Corporation, 533 F.Supp. 1351, 1353-55 (Sp.Ct.R.R.R.A.1982) (<HOLDING>); Stratford Land and Improvement Company, Inc. Holdings: 0: holding that interpretation of contract documents regulations or a solicitation present no disputed issues of material fact and is a question of law 1: holding that the court had jurisdiction to decide issues relating to the fsp conveyance orders and an agreement entered pursuant to the conveyance orders 2: holding that the interpretation of both conveyance orders and documents is within the jurisdictional grant of  209e2 3: recognizing that deference to an agencys interpretation of the written law is appropriate only when that interpretation is within the written laws language 4: holding erisa plan interpretation is simply one of contract interpretation


Input: of collateral procedural issues (such as limitations placed on attorneys’ fees), which do not implicate the merits of the case, should remain binding and are ordinarily not subject to further review when the case is remanded to a federal transferor court. See Walitalo, 968 F.2d at 747-48 (“the district court did not err in specifying how the originating trial courts should calculate the amount of lead and liaison counsel’s fees in those cases remanded for trial ... the district court appointed lead and liaison counsel and thus had authority to determine the amount of their compensation”). The federal rulings also apply to a case remanded to state court upon a finding that the federal court lacked subject matter jurisdiction over the case. See Willy, 503 U.S. at 137-38, 112 S.Ct. 1076 (<HOLDING>). “[I]t is well established that a federal Holdings: 0: holding that the district court did not have jurisdiction and remanding the matter to state court 1: holding that a district court may impose sanctions for abuse of judicial process pursuant to rule 11 even after it is determined that the court lacked subject matter jurisdiction over the plaintiffs claims 2: holding that an award of sanctions under rule 11 survives despite a later determination that the court lacked subject matter jurisdiction 3: holding that a district court could constitutionally impose rule 11 sanctions in a case in which was later determined that the court lacked subject matter jurisdiction 4: holding that rule 11 sanctions imposed by district court remained in effect after case was remanded to state court upon a finding that district court lacked subject matter jurisdiction over the case


Input: between the two cannot be clearly erroneous.” United States v. Plancarte-Vazquez, 450 F.3d 848, 854 (8th Cir.2006). Although, after reviewing the sentencing transcript, I find the district court’s view of Clark’s testimony, both on direct examination and on cross, to be a real stretch, I cannot say it is clearly impermissible. Thus, I must determine whether Brown was a supervisor or manager based on the district court’s view of the evidence, rather than Brown’s view. Under our precedent, although it is a very close call, I cannot say the district court’s determination — Brown was a supervisor based on his use of Clark to drive him to drug transactions, in exchange for food, drink, shelter, and marijuana — was incorrect. See United States v. Maejia, 928 F.2d 810, 815 (8th Cir.1991) (<HOLDING>); United States v. Alexander, 982 F.2d 262, 267 Holdings: 0: holding that when lawenforcement officers have legally stopped the driver of a vehicle they may consistent with the fourth amendment order a driver out of the ear for any reason or for no reason 1: holding that hearsay evidence may be considered on summary judgment if the same evidence would be admissible in another form at trial 2: holding that even a driver not listed as an authorized driver for a rental car could nevertheless have an expectation of privacy if given permission to use the car by an authorized driver 3: holding detention lawful when police referred driver to secondary to check ownership of the vehicle after the driver admitted that the car did not belong to him and the registration revealed that the car was owned by another 4: holding that defendant may be considered to have a leadership role when he hired one driver and recruited another


Input: of any specific contractual duty. Notwithstanding, Granite Rock contends that the alleged tortious interference claim still meets the requirement that “the resolution of the lawsuit be focused upon and governed by the terms of the contract.” Painters & Decorators, 707 F.2d at 1071. Granite Rock’s theory is that because breach of the underlying contract is a necessary element of the tortious interference claim, the resolution of the tort claim is “focused upon” and “governed by” the contract. We reject Granite Rock’s argument, because its position clashes with the plain language of section 301(a) and the Majestic Housing requirement that the underlying agreement must have created the rights or liabilities which the parties seek to vindicate by their suit. Majestic Housin .1982) (<HOLDING>); United Food & Com. Workers Union, Local No. Holdings: 0: holding section 301 preempted plaintiffs claim for tortious interference with contract because that claim would require interpretation of a collective bargaining agreement 1: holding that the lmra preempted plaintiffemployees claim under michigan law for tortious interference with contractual relations breach of contract is an essential element of a tortious interference claim and resolution of such claim would require the court to interpret collective bargaining agreement to determine if that agreement had been breached 2: holding that mere reference to a collective bargaining agreement does not confer federal question jurisdiction under section 301a 3: holding that a complaint for interference with a collective bargaining agreement against a nonparty to that agreement is not actionable under  301a of the lmra 4: holding that oral agreement made in connection with reinstatement should be treated as part of collective bargaining agreement


Input: the date of both the New Jersey Tort Claims Act amendment and the Supreme Court’s affirmance in State v. Michaels), would serve to bar plaintiff’s claim against these defendants unless plaintiff filed within the limitations period and satisfied the notice provision. Because plaintiff did not file her notice of claim until February 27, 1995, it would be untimely under this scenario. The court is puzzled as to why the individual defendants in opposing Newark’s motion to remand or to dismiss did not flag this issue. 13 . New Jersey courts have relied on this section of the Restatement in other contexts. See, e.g., Rubin v. Nowak, 248 N.J.Super. 80, 83, 590 A.2d 249 (App.Div.1991). 14 . With respect to criminal proceedings, see, e.g., Day v. Zubel, 112 Nev. 972, 922 P.2d 536, 539 (1996) (<HOLDING>); Greenberg v. Wolfberg, 890 P.2d 895, 904, n. Holdings: 0: holding that because the claims were dismissed with prejudice there was a final judgment for purposes of appellate review 1: holding that a dismissal in the interest of justice was a favorable termination for the purposes of a malicious prosecution action where the courts reasons for dismissing the criminal charges were not inconsistent with the innocence of the accused 2: recognizing the inherent anxiety associated with pending criminal charges 3: holding that the final termination of the criminal proceedings occurred when criminal charges  were dismissed with prejudice rather than when the accused was released from prison pending a retrial 4: holding that  1983 claims accrued when all charges were dismissed rather than a previous date on which the conviction was vacated on the theory that the charges remained pending until the dismissal


Input: after having been ordered or directed to do so. Under these circumstances, a defendant necessarily knows that failure to appear will “affect the judicial proceeding.” Aguilar, 515 U.S. at 599, 115 S.Ct. 2357. We have gone further and construed § 3146 as requiring a willful violation of a requirement to appear for a judicial proceeding. See, e.g., Weaver v. United States, 37 F.3d 1411, 1412-13 (9th Cir.1994) (“To establish a violation of 18 U.S.C. § 3146, the government ordinarily must prove that the defendant (1) was released pursuant to that statute, (2) was required to appear in court, (3) knew that he was required to appear, (4) failed to appear as required, and (5) was willful in his failure to appear.”); see also United States v. Smeaton, 762 F.2d 796, 797-98 (9th Cir.1985) (<HOLDING>). In this context, “[wjillfulness requires a Holdings: 0: holding that willful failure to appear at sentencing supported obstruction of justice enhancement 1: holding that causation is an essential element in failure to warn claim 2: recognizing willful failure to appear as an essential element of the bailjumping offense 3: holding that failure to prove an essential element of an offense does not constitute fundamental error which may be raised for the first time on appeal 4: holding that failure to appear is also a continuing offense


Input: DENYING CERTIFICATE OF APPEALABILITY MICHAEL R. MURPHY, Circuit Judge. This matter is before the court on Keith Frazier’s pro se requests for a certifícate of appealability (“COA”) and to proceed on appeal in forma pauperis. Frazier seeks a COA so he can appeal the district court’s dismissal, on the basis of lack of subject matter jurisdiction, of his 28 U.S.C. § 2241 petition. See 28 U.S.C. § 2253(c)(1)(A) (providing no appeal may be taken from a “final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court” unless the petitioner first obtains a COA); Montez v. McKinna, 208 F.3d 862, 869 (10th Cir.2000) (<HOLDING>). We grant Frazier’s motion to proceed on Holdings: 0: holding that  2253c1a applies when a state habeas petitioner proceeds under  2241 1: holding that a  2241 petitioners claim was not cognizable under  2241 and therefore the district court lacked jurisdiction 2: holding  2253clas coa requirement applies to state prisoners proceeding under  2241 when the petition relates to any of the incidents and circumstances of any detention pursuant to state court process 3: holding that a petitioner may not circumvent the requirements of the aedpa by filing a section 2241 petition 4: holding that  2253clas requirements apply when a state habeas petitioner is proceeding under  2241


Input: a search is unreasonably intrusive: (1) whether the police have a “clear indication” that the desired evidence will be found, (2) the presence of exigent circumstances such as the imminent destruction of evidence or a risk to individual safety, and (3) whether the methods used to obtain the evidence was performed in a reasonable manner. Id.) see also Burnett v. Municipality of Anchorage, 806 F.2d 1447 (9th Cir. 1986). Applying the framework set forth in Schmerber to the conduct of Officers Olsen and Vesely, we note that prior to forcing open defendant’s hand, the officers had been informed that the driver of the truck, in which defendant was a passenger, had been involved in a suspected drug transaction moments earlier. Upon approaching the truck, both officers ob .2d 519 (1995) (<HOLDING>). Therefore, we overrule defendant’s assignment Holdings: 0: holding that defendants collective possession of plastic baggies beepers and scales  in conjunction with other evasive action  was sufficient evidence for jury to find conspiracy to distribute and possess cocaine beyond reasonable doubt 1: holding that the evidence was sufficient to support a conviction under  856 where premises contained two white envelopes containing thirtytwo packs of crack cocaine equipment required for the manufacture and packaging of crack cocaine fortyone white envelopes containing particles of crack cocaine and crack cocaine stored in a laundry bag in the bathroom 2: holding that a federal agents expert testimony regarding the characteristics of crack cocaine and the methods of its distribution was admissible and highly relevant in helping the jury resolve the central issue of whether the defendant possessed crack cocaine with intent to distribute 3: holding police officers application of pressure to defendants throat causing him to spit out three plastic baggies containing crack cocaine was not unreasonably intrusive in light of the risk of losing the evidence and the potential health risk to the defendant 4: holding there was insufficient evidence to prove intent to distribute where the defendant dropped a plastic bag containing loose white rocks of cocaine and there was no other indicia of the defendants intent such as the drugs being packaged in smaller baggies


Input: that “are distinctively incident to the provision of airline service,” and thus necessarily exclude an air carrier’s common law duty to exercise ordinary care. 813 F.Supp. at 517-18. The court opined that extending the pre-emptive reach of Section 1305 to exempt air carriers from “ordinary premises liability” within a terminal building would justify exempting them from the duty to exercise reasonable care in their “downtown ticketing offices,” or in any other facility they owned or operated. Id. at 518. The court found it “impossible to 'discern any 'policy reason” justifying such an illogical result, and concluded that it “is inconceivable that. Congress intended to preempt state common law duties in this context.” Id. See also Margolis v. United Airlines, Inc., 811 F.Supp. at 324 (<HOLDING>). The Court holds that Section 1305 does not Holdings: 0: holding that a negligence claim is not a personal injury tort claim 1: holding that congress did not intend to preempt state common law actions for personal injury based on the negligence of the airline or its employees 2: holding flsa did not preempt state law fraud claim 3: holding that the airline deregulation act preempts claims under the illinois consumer fraud and deceptive business practices act but does not preempt state breach of contract actions 4: holding section 10 of faa is procedural and does not preempt state common law


Input: regarding Appellant’s sores. Without objection, Officer Meyer testified: that upon pulling her over, he noticed her hand shaking; that her behavior was “unusual”; that after obtaining her consent to search the car, he found a glass pipe with off-white residue; that upon her arrest he found another glass pipe in the trunk of Appellant’s car; and that upon a subsequent search, he found two small baggies containing a crystalline residue. This testimony, along with the items themselves and a lab report properly admitted into evidence, also establish the same essential fact as the testimony regarding Appellant’s sores — that Appellant used methamphetamine. The testimony regarding Appellant’s sores was, therefore, not prejudicial. See State v. Ponder, 950 S.W.2d 900, 910 (Mo.App. S.D.1997) (<HOLDING>). Point I is denied. Point II Appellant’s Holdings: 0: holding admission of challenged evidence is harmless error where the record contains other properly admitted evidence that independently establishes guilt 1: holding improperly admitted evidence was harmless error given the overwhelming evidence of guilt 2: holding that admission of evidence is harmless if it is cumulative to other legitimately admitted evidence that establishes a defendants guilt beyond a reasonable doubt 3: holding that if evidence is improperly admitted but other evidence establishes essentially the same facts there is no prejudice to the accused and no reversible error 4: holding improperly admitted evidence may be harmless if other evidence of guilt is overwhelming and the error is insignificant by comparison


Input: abuse”. There is no evidence in the record that the insureds’ understanding of the coverage departed in any way from that of the insurer’s. Even when we resolve all doubts concerning the meaning of the language employed in the policy in favor of the insured, we conclude that the notice concerns discussed in Canadian Universal are not invoked in this ease. Even if we were to agree with the Martins that NUFIC failed to provide adequate notice of a substantial reduction of coverage in this case, the appellants would nonetheless be unsuccessful. Although NUFIC’s earlier claims-made policy did not contain explicit exclusions for acts of sexual and physical abuse, such acts, nonetheless, are not covered as a matter of public policy. See D.W.H. v. Steele, 512 N.W.2d 586, 589 (Minn.1994) (<HOLDING>). b. Minn.Stat. § 245.814 The Martins also Holdings: 0: holding that public policy favors the exclusion of intentional acts as contained in the mjua policy 1: recognizing that texas public policy favors charitable gifts 2: holding nearly identical exclusion did not violate public policy noting there is no clear legislative pronouncement of public policy requiring umuim coverage for a named driver exclusion 3: holding that intentional acts exclusion applies to intentional act of child molestation 4: recognizingpublic policy favors arbitration


Input: be tailored somewhat to meet ADEA’s needs. ADEA damages are “deemed to be unpaid minimum wages and unpaid overtime compensation for purposes of [FLSA].” 29 U.S.C. § 626(b); see Fariss v. Lynchburg Foundry, 769 F.2d 958, 964 n. 7 (4th Cir.1985) (explaining how the sections are linked). Instead of the private right of action terminating upon the filing of an action by the Secretary of Labor, § 626(c)(1) provides for a similar termination upon the filing of an ADEA action by EEOC. But there is no mention of attorney’s fees beyond that contained in the above-quoted FLSA provision. Thus, this much is readily apparent— under FLSA, a defendant employer is liable for attorney’s fees to a prevailing plaintiff-employee. Cf. Richardson v. Alaska Airlines, Inc., 750 F.2d 763, 765-67 (9th Cir.1984) (<HOLDING>). By virtue of the incorporation of § 216(b), Holdings: 0: holding that district court erred in awarding attorneys fees in civil rights action where plaintiff only recovered 1 in nominal damages 1: holding attorneys fees not generally recoverable unless party prevails under cause of action for which attorneys fees are recoverable and damages are recovered 2: holding that attorneys fees under adea may not be recovered against a defendant who was not an employer of the plaintiff 3: recognizing that under a limited exception attorneys fees may be recovered by a party who gains enforcement of a previous support order even when no contempt is ordered 4: holding that an employees private arbitration agreement with her employer precluded her from filing suit against the employer under the adea


Input: benefits to a claimant's surviving spouse for the duration of the spouse’s life where the claimant died of a non-work related cause while his claim was still pending. 217 S.W.3d 900, 901-03 (Mo. banc 2007). The General Assembly amended sections 287.020.1, 287.200, and 287.230 the next year (in 2008) to abrogate Schoemehl, and to make it clear that “compensation for a permanent total disability is payable only during the lifetime of the injured employee and is not payable to dependents after the employee’s death when the employee dies from causes unrelated to the work injury." Gervich v. Condaire, Inc., 370 S.W.3d 617, 620-21 (Mo. banc 2012). Missouri courts thereafter concluded that the 2008 amendments to the Workers' Compensation Act could not be retroacti -02 (Mo. banc 2008) (<HOLDING>). Strait held that if a worker’s compensation Holdings: 0: holding new time period of 28 usc  2244d inapplicable to pending habeas petition where period ended before amendments effective date 1: holding retroactive application of the act to prosecution that was pending before the effective date of the act was precluded because the act is prospective 2: holding that statute which became effective after claimants death but prior to the trial of wrongful death case was remedial constitutional and governed pending litigation proceedings that were pending when statute was enacted 3: holding that children could receive permanent total disability payments after the death of their mother where the mothers claim was pending before the effective date of the 2008 statutory amendments and was still pending at the time of her death 4: holding that wife could receive permanent total disability payments after the death of her husband where the husbands claim was pending before the effective date of the 2008 statutory amendments and was still pending at the time of his death even though husbands death occurred after the effective date of the 2008 statutory amendments as wifes status as a dependent was subject to determination as of the time of husbands injury


Input: rise above the level of stray remarks ... when the statements are: (1) made by the decision maker or one whose recommendation is sought by the decision maker; (2) related to the specific employment decision challenged; and (3) made close in time to the decision.”); Ruane v. Continental Cas. Co., No. 96 Civ. 7153, 1998 WL 292103, at *8 (S.D.N.Y. June 3, 1998); Mosberger v. CPG Nutrients, Civ. No. 01-100, 2002 WL 31477292, at *7 (W.D.Pa. Sept.6, 2002) (“Discriminatory stray remarks are generally considered in one of three categories — those made (1) by a non-decisionmaker; (2) by a decisionmaker but unrelated to the decision process; or (3) by a decisionmaker but temporally remote from the adverse employment decision.”) (internal quotations and citations omitted). Add 753 (4th Cir.1986) (<HOLDING>). 2. Application The complaint purports to Holdings: 0: holding that harassment threats and one beating did not constitute persecution 1: holding that threats to fire employees based on legitimate concerns about productivity do not constitute harassment because any threats made to these plaintiffs  were no greater than justified by their lack of sales 2: holding that incidents of harassment and unfulfilled threats of injury are not persecution absent physical harm 3: holding that the title of legislation is relevant to legislative intent 4: holding that evidence of a general atmosphere of discrimination harassment or threats is relevant to the determinations of intent andpretext


Input: Here, a site plan depicting the easement over Lot 17 is recorded. This version of the plan was recorded 18 days after the property was conveyed to the Horgans, but had been submitted to and approved by the planning board prior to the sale. The plaintiffs argue that the fact that this plan was not recorded until after the conveyance is significant. We disagree. The plan was approved prior to the sale and recorded a short time later. The CCR acknowledges that subsequent site plans may be recorded, but that such plans become part of the master site plan. Further, the Horgan deed recognizes that the property is subject to the CCR. The plan depicting the easement, therefore, is valid, notwithstanding that it was recorded after the property was conveyed. See also Close, 146 N.H. at 484 (<HOLDING>). The question is whether another document Holdings: 0: holding that purchaser did not take property subject to unrecorded easement created by private agreement 1: recognizing that an easement may entitle the easement owner to do acts which were not for the easement would constitute a nuisance 2: holding that an easement agreement and an unrecorded easement plan created an easement 3: holding that one who possesses deeded easement need not use the easement to maintain his title and easement cannot be extinguished from nonuser alone 4: recognizing ways in which an easement may be created


Input: loss amounts between herself and Walsh constitute prosecutorial misconduct because one of the stipulations must be “inaccurate.” Cf. United States Attorneys’ Manual § 9-16.300 (prohibiting government attorneys from stipulating to a fact that is not accurate). The argument initially fails to recognize that two different loss amounts, for two different defendants, can both be accurate because the different loss amounts reflect the different loss for which each defendant was responsible. Furthermore, the government’s different loss calculations cannot be prosecutorial misconduct — let alone misconduct that rises to plain error — because the government has no obligation to stipulate to identical loss amounts with co-conspirators. United States v. Pierce, 409 F.3d 228, 233-34 (4th Cir.2005) (<HOLDING>). Our circuit has approved a government Holdings: 0: holding that the fair and adequate representation requirement was not satisfied because of litigation between plaintiff and defendant the antagonism between the parties and the lack of support plaintiff garnered in its claim 1: recognizing differing elements and standard of proof between medical malpractice and fraud 2: holding loss stipulation of between 70000 and 120000 with one defendant and between 120000 and 200000 with coconspirator permissible in a mail fraud case 3: holding that the first element of mail fraud  knowing participation in a scheme to defraud  can extend beyond the specific mailing and that the loss calculation for a mail fraud conviction may include any loss from the fraudulent scheme that the mailing furthered 4: holding that evidence may be introduced to provide necessary background information to show an ongoing relationship between the defendant and a coconspirator and to help the jury understand the coconspirators role in the scheme


Input: was therefore largely immaterial to the revocation of appellant’s probation, we conclude that appellant’s due process rights were not violated. Accordingly, revocation of probation and ordered execution of the previously imposed sentence of the Superior Court of the District of Columbia is hereby Affirmed. 1 . D.C.Code § 48-904.01 (2001). 2 . D.C.Code § 22-2105 (2001). 3 . D.C.Code § 25 — 1001(a) (2001). 4 . During discussion on the admi pplying a "clear and convincing” standard, but the judge declined to do so because of the inconsistency between Lieutenant Murphy's testimony at the PWID trial and at the revocation hearing. Judge Keary's finding was not precluded by Judge Diaz’s acquittal on the PWID charge under the stricter standard for criminal conviction. See id. at 711 Holdings: 0: holding that neither the doctrines of double jeopardy nor collateral estoppel apply to probation revocation proceedings after an acquittal on the charge used as basis to revoke probation 1: holding that probation revocation proceedings are clearly not criminal proceedings 2: holding that neither rule 11 nor the protections of boykin apply to probation revocation hearings and observing that less process is due in prison disciplinary proceedings than in probation revocation hearings 3: holding that it is sufficient grounds to revoke a probation if only one condition of the probation is broken 4: holding that the general rules of preservation apply in probation revocation proceedings


Input: prompting Bush to re-enter the home and shoot at Gina. See A.R.S. §§ 13-303, -1001(A)(1), - 1105(A)(1). The aggravated assault convictions were established by evidence that Bush shot Gina twice and seriously injured her soon after he initially entered the home. See A.R.S. §§ 13-303, -1203(A), -1204(A)(1) and (2). ¶ 139 Other considerations set forth in Gordon support imposition of consecutive sentences. Because the attempted murder and aggravated assaults occurred at different times during the home invasion and involved separate acts, it was possible for Forde to commit the former crime without committing the latter ones. Also, the aggravated assaults caused Gina to suffer physical injuries that were not inherent in the attempted murder. See Gordon, 161 Ariz. at 315, 778 P.2d at 1211 (<HOLDING>). For all these reasons, Forde’s conduct Holdings: 0: holding that uncharged sexual acts committed upon the same victim are admissible to show the conduct of the defendant toward the victim and to corroborate the evidence of the offense charged in the indictment 1: holding that a lesser crime cannot be a lesser included offense of a greater crime if the lesser crime contains an essential element not included in the greater crime 2: holding that a defendant more likely committed multiple acts if the defendants conduct in committing the lesser crime caused the victim to suffer an additional risk of harm beyond that inherent in the ultimate crime 3: holding that if a crime is broadly defined the court can look beyond the elements of the crime 4: holding the crime of conspiracy is committed or not before the substantive crime begins


Input: supra, 99 N.J. at 23, 489 A.2d 1148; Coons II, supra, 96 N.J. at 440, 476 A.2d 763; Salorio v. Glaser, 93 N.J. 447, 461 A.2d 1100, cert. denied, 464 U.S. 993, 104 S.Ct. 486, 78 L.Ed.2d 682 (1983). For example, in New Jersey Bd new rule would have on the effective administration of justice, the third factor. In State v. Burstein, supra, 85 N.J. at 410, 427 A.2d 525, we held that even limited retroactive application of the rule announced in State v. Cerbo, 78 N.J. 595, 397 A.2d 671 (1979), namely, that a delay in presenting tapes of intercepted conversations for sealing requires suppression unless there was satisfactory explanation for delay, would inflict “virtually incalculable” costs on our administration of justice. See also State v. Catania, supra, 85 N.J. at 447, 427 A.2d 537 (<HOLDING>). IV Any prospectivity decision necessarily Holdings: 0: holding that the rule announced in ring does not apply retroactively to cases already final on direct review 1: holding that the rule announced by booker  does not operate retroactively 2: holding generally that new rules of law should not be applied retroactively in habeas corpus cases 3: holding that rule announced excluding the results of a wiretap because of improper minimization should not be applied retroactively because to reopen cases even on a limited basis for detailed hearings on the reasonableness of the interception of each phone call during each wiretap would overwhelm the courts 4: holding that secrecy is essential to establishing a violation of massachusetts wiretap act


Input: employee’s consent to enter the special employment relationship. Those courts have not, however, considered whether the employee must know the corporate identity of the special employer for whom she agreed to work or whether her consent to work for a borrowing entity is tantamount to consent to work for the corporate entity of which the borrower is a part. Rather, the cases have analyzed only whether the employee agreed to work for an entity other than the general employer, an issue that is undisputed in this case. See Pacenti v. Hoffman-La Roche, Inc., 245 N.J.Super. 188, 584 A.2d 843, 845 (App.Div.1991) (inferring requisite consent from the employee’s reporting to borrower’s place of business and accepting its supervisors’ decisions, policies and training); Murin, 573 A.2d at 991-94 (<HOLDING>); Chickachop v. Manpower, Inc., 84 N.J.Super. Holdings: 0: holding that the employee must at least provide his employer with enough information for the employer to be put on notice that the fmla is a consideration 1: holding an employee is an agent of his employer where the employer assumes the right to control time manner and method of work 2: holding that existence of deliberate and informed consent turns on whether it is understood between the employee and his employers that he is to remain in the allegiance of the first employer  or is to be employed in the business and subject to the direction of the temporary employer 3: holding that glc 152 15 provides that the only party immune from suit under the statute is the direct employer a special employer is not immune because the special employer is not liable for the payment of workers compensation and there was no agreement between the direct employer and the special employer that the special employer would be liable for the payment of such compensation 4: holding that section 319s mandate that the employer is subrogated  to the extent of compensation payable does not mean that the sole right to recover from the tortfeasor is in the employer rather the right of action against the tortfeasor remains in the injured employee and suit is to be commenced in his name


Input: of counsel claim, Petitioner's failure to allege in his petition any arguments or facts in support of the claim would, in any event, render it entirely deficient. See Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (requiring a petitioner claiming ineffective assistance of counsel to show that counsel's representation "fell below an objective standard of reasonableness” and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different,” and further requiring that “a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance”); see also Murray, 477 U.S. 478 at 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (<HOLDING>) 7 . The court need not reach the issue of Holdings: 0: holding that ineffective assistance of counsel constitutes cause for procedural default only if counsels performance was constitutionally ineffective 1: recognizing that the defendant whose trial counsel represented him on motion for new trial had no opportunity to raise an ineffective assistance of counsel claim prior to appeal and remanding the case for a hearing solely on this issue 2: holding that the strickland test applies to claims  that counsel was constitutionally ineffective for failing to file a notice of appeal 3: recognizing that strickland applies to ineffective assistance of appellate counsel claims 4: holding that so long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established in strickland v washington supra we discern no inequity in requiring him to bear the risk of attorney error that results in procedural default


Input: Sugar and Stark to continue on their way, however, he held them there until a canine unit arrived. The question is whether this 10 to 15 minute-long seizure was justified by reasonable suspicion. First, in his initial encounter with defendants, Crivello said he would hold the vehicle until the canine came if defendants refused to consent to a search. But an assertion of one’s constitutional rights should not be the basis for an otherwise unjustified detention. See Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (“We have consistently held that a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.”) (citations omitted). In fact, their refusal to consent to the 6 (1st Cir.1990) (<HOLDING>); Soule, 908 F.2d at 1036 (holding that where Holdings: 0: holding evidence was insufficient to link defendant to drugs in borrowed vehicle when the drugs were not in plain view the defendant disavowed knowledge that drugs were hidden in floorboard of car and a person antagonistic toward defendants husband had access to the car before she borrowed it 1: holding that the defendant failed to demonstrate legitimate expectation of privacy where he could not show that he had the owners permission to use the car or demonstrate prior use or control of the car 2: holding that the driver of a car who had permission to use the car had standing to challenge its search 3: holding that the driver of a borrowed car had the requisite legitimate expectation of privacy to support standing for fourth amendment purposes 4: holding that a defendant who had borrowed a car for a limited period of time had no legitimate expectation of privacy in the cars locked trunk where it was the very person from whom he had borrowed the car who first called the police after he failed to return the car


Input: in their capacity as Trustees of the Family Trust. Nonetheless, Sternberg contends that the Olsons waived any defects in service of process and jurisdiction. Pursuant to Mass.R.Civ.P. 12(h)(1), the defenses of insufficiency of service of process and lack of personal jurisdiction are waived by failure to raise them in either a motion to dismiss filed under the rule or in the answer. In the present case, however, the Olsons never filed any motions or responsive pleadings but rather, allowed a default judgment to be entered against them. Because they never entered an appearance in the original action in their capacities as Trustees of the Family Trust, they did not waive the defenses of deficient process and lack of jurisdiction. Compare Smith v. Arnold, 4 Mass.App.Ct. 614, 616 (1976) (<HOLDING>). Accordingly, the Judgment and Order of Holdings: 0: holding that defendant did not waive his special appearance by filing a motion for new trial subject to the special appearance 1: holding that party waived special appearance 2: holding that defendant did not waive special appearance 3: holding that district courts do not have appellate jurisdiction over state courts 4: holding that where the defendant filed a special appearance to challenge the courts jurisdiction over his person he was bound by the courts determination and could not relitigate it


Input: of an “infamous crime,” Lucas v. McAfee, 217 Ind. 534, 541, 29 N.E.2d 588, 588 (1940) (Shake, J.). Although it contains a categorical limitation, the Infamous Crimes Clause does not contain a durational limitation. Consequently, if misdemeanor battery is an “infamous crime,” then it is only by legislative grace that Snyder’s right to vote was restored when he was released from incarceration. To be sure, the power to disenfranchise permanently persons convicted of any crimes even though they have completed their sentences might be limited by other provisions of the Indiana Constitution, such as the Proportionality Clause of Article I, § 16, and it may also be limited by the Equal Protection Clause, cf. Richardson v. Ramirez, 418 U.S. 24, 43-56, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974) (<HOLDING>). It is, however, unnecessary to consider here Holdings: 0: holding that section 2 of the fourteenth amendment permits states to disenfranchise convicted felons who have completed their sentences 1: holding the sixth amendment right to a jury trial applies to the states through the fourteenth amendment 2: holding that bankruptcy jurisdiction is not within section 5 of the fourteenth amendment 3: holding second amendment right is incorporated against the states through fourteenth amendment 4: holding the sixth amendment applicable to the states through the fourteenth amendment


Input: is sued for breach, it may defend on the ground that there existed a legal excuse for its nonperformance at the time of the alleged breach. Faced with two parties to a contract, each of whom claims breach by the other, courts will “often ... impose liability on the party that committed the first material breach.” Barron Bancshares, Inc. v. United States, 366 F.3d 1360, 1380 (Fed.Cir.2004) (citations omitted) F.3d 1260 (Fed.Cir.1999) (explaining contractor obligated to adhere to contract’s dispute clause because Government’s breach was not material ); Gibson v. Dep’t of Veterans Affairs, 160 F.3d 722, 727 (Fed.Cir.1998) (justifying termination of employment after employee’s material breach of “last chance” employment agreement); Thomas v. Dep’t of Housin .2d 1273, 1279 (Fed.Cir.1985) (<HOLDING>). 2. Restitution Outside of the FIRREA context, Holdings: 0: recognizing that the elements of a claim for breach of contract are 1 existence of a valid contract and 2 breach of the terms of that contract 1: holding fraud committed by contractor amounted to material breach justifying governments termination of contract 2: holding that independent contractor claiming termination of contract in retaliation for petition was not protected by first amendment 3: holding that a contract must entitle the plaintiff to money damages in the event of the governments breach of that contract 4: holding contractor liable for total or material breach thus excusing government from payment of contract price


Input: the trust, if any, are not set forth, and the trust is not identified by title or date, shall grant and is hereby declared to have granted a fee simple estate with full power and authority in and to the grantee in such deed to sell, convey, and grant both the legal and beneficial interest in the real estate conveyed, unless a contrary intention sh o, 417 So.2d 1035 (Fla. 4th DCA 1982), Hoffenberg never had the legal ability to grant an easement over his own property. In Hensel, the appellant acquired title to lots A, B, C and D. Appellant later sold lots B, C and D to appellee. Thereafter, the parties entered into a written contract which provided that lot B was to be repurchased by appellant. As originally drawn, that contract provided for an easement t pt. 87 (Cal.App. 4 Dist.1991) (<HOLDING>); Hayes v. Moreau, 104 N.H. 124, 180 A.2d 438 Holdings: 0: holding one cannot grant an easement to oneself one can only reserve such interest in land granted to another 1: holding that the owner of an equitable interest in property in the form of a land contract can grant a mortgage on that interest under ohio law 2: holding no easement can be created over a section of land in favor of another adjoining parcel when one owner owns both properties 3: holding that one who possesses deeded easement need not use the easement to maintain his title and easement cannot be extinguished from nonuser alone 4: recognizing that one cannot have an easement in his own land


Input: Justice. The petition for the writ of certiorari is denied. See Ex parte Bonner, 926 So.2d 339 (Ala.2005) (<HOLDING>); see also Ex parte V.S., 918 So.2d 908 Holdings: 0: recognizing that rule 32 is a postconviction remedy 1: holding that an appellant cannot raise an issue on appeal from the denial of a rule 32 petition which was not raised in the rule 32 petition 2: holding that appellate courts may not on appeal from the dismissal of a rule 32 petition consider claims not raise in the rule 32 petition 3: holding that where the petitioner alleges that he failed to receive notice of the dismissal of his rule 32 ala rcrim p petition in time to effect a timely appeal therefrom and the events about which the petitioner complains all occurred before june 1 2005 the effective date of the amendment to rule 32 providing a different remedy for obtaining an outoftime appeal from the dismissal of a rule 32 petition a petition for a writ of mandamus is the only appropriate remedy 4: holding that appellate courts may not on appeal from the dismissal of a rule 32 petition consider claims not raised in the rule 32 petition


Input: injunctive relief against the individual Defendants in their official capacities, and against Defendant OASAS, the Court finds that they are immune from suit pursuant to the Eleventh Amendment; and, therefore, grants this portion of Defendants’ motion to dismiss. See Walker v. Connecticut, 106 F.Supp.2d ed immunity] is whether the state of the law ... gave [the defendants] fair warning that their alleged treatment of [the plaintiff] was unconstitutional.” Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). As qualified immunity is an affirmative defense, the burden of pleading it falls on the defendants. See Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980) (citations omitted); see also Varrone v. Bilotti, 123 F.3d 75, 78 (2d Cir.1997) (<HOLDING>). The qualified immunity determination consists Holdings: 0: holding that plaintiffs bear the burden of showing by a preponderance of the evidence that defendants have failed to adhere to the requirements of nepa 1: holding that defendants bear the burden of proving contributory negligence by a preponderance of the evidence 2: holding that the party seeking a new trial must make an affirmative showing that some extraneous influence came to bear on the jurys deliberations internal quotation marks and citation omitted 3: holding that defendants bear the burden of showing that the challenged act was objectively reasonable citation omitted 4: holding that the burden is on the defendant when the validity of the warrant is challenged


Input: 2005 proceedings. However, the written record of those proceedings reflects that Wolf waived his right to counsel. Therefore, the question is whether Chant’s procedural bar applies in cases where a defendant waives the right to counsel. [¶ 6.] Chant adopted the rule set forth in Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d BIT (1994). Custis held that there was no right to collaterally attack the validity of prior convictions used for sentence enhancement “with the sole exception of convictions obtained in violation of the right to counsel[.]” Id. at 487, 114 S.Ct. at 1734. In discussing the nature of the right to counsel violations that would permit a collateral attack, the Supreme Court observed: “If the accused ... is not represented by cou -99 (10th Cir.2006) (<HOLDING>); United States v. Dahler, 171 F.3d 441, 442 Holdings: 0: holding that committee failed to carry its ultimate burden 1: holding that the burden of proving lack of negligence is on the owner 2: holding that the state had the burden of proving the defendants two prior convictions in order to obtain the felony dui conviction 3: holding that the defendant failed to carry his burden of proving the invalidity of the waivers of counsel for prior colorado convictions 4: holding that a defendant may challenge the validity of prior convictions during a sentencing hearing and that the burden to establish invalidity is on the challenging party


Input: sense. Asking jurors to forget that Butler is a convicted child molester simply asks too much of fallible human beings. Some occurrences cannot be forgotten, notwithstanding the court’s admonishments to the contrary. This is one of those situations, or at least we cannot say beyond a reasonable doubt that it is not. We sustain point one. We also sustain point two based on the denial of a mistrial. Butler’s remaining two points are not reached. The judgment is reversed and the cause remanded for a new trial. 1 . The court could have refused to administer the oath to Butler and refused to withdraw his un-sworn testimony from the jury's consideration on the ground that he had waived any complaint about his unsworn testimony. See Beck v. State, 719 S.W.2d 205, 212 (Tex.Crim.App.1986) (<HOLDING>). However, the court chose to administer the Holdings: 0: holding that a complaint is waived by the failure to object during the witness unsworn testimony 1: holding defendant waived complaint 2: holding claimed errors waived for failure to timely object 3: holding that a defendant waived a sentencing issue by failing to object in district court 4: holding complaint that sentence violated equal protection was waived because of failure to object at trial


Input: a § 2255 waiver because Second Circuit law clearly upholds waivers of direct appeals and had not struck down § 2255 waivers that have come before it). General enforcement of § 2255 waivers may be subject to exceptions, just as enforcement of direct appeal waivers is. For example, in this Circuit, a direct appeal waiver cannot bar claims that the plea was not knowing and intelligent, that the sentence imposed is in excess of the maximum penalty provided by statute, that the sentence is based on a constitutionally impermissible factor such as race, or that defendant was denied ineffective assistance of counsel after entry of the guilty plea. Attar, 38 F.3d at 732-33; Wessells, 936 F.2d at 167. Such exceptions may be warranted for § 2255 waivers as well. See DeRoo, 223 F.3d at 922-24 (<HOLDING>). But see Cockerham, 237 F.3d at 1187 (holding Holdings: 0: holding an attorneys mistaken prediction about a possible sentence does not render a defendants plea unknowing and involuntary 1: holding defendant cannot waive claims of an illegal sentence a sentence violating terms of plea agreement an unknowing and involuntary plea and ineffective assistance of counsel 2: holding that an issue of ineffective assistance of counsel is rendered moot when a defendant receives an illegal sentence 3: holding that plea did not waive claim of ineffective assistance of counsel for failure to seek suppression 4: holding that ineffective assistance can render a guilty plea involuntary


Input: Government failed to prove that he possessed the SSN “in relation to” his false representation offense, he has waived any such argument on appeal by failing to raise it in his Fed.R.Crim.P. 29 motion before the district court. United States v. Chong Lam, 677 F.3d 190, 200 (4th Cir. 2012). Castellanos-Loya next urges that the district court abused its discretion in declining to prohibit testimony about the date of birth associated with the SSN, due to the Government’s late disclosure of the pertinent information. We have reviewed the record and conclude that, regardless of whether the district court properly considered the factors enumerated in United States v. Hastings, 126 F.3d 310, 317 (4th Cir.1997), any error was harmless. United States v. Johnson, 617 F.3d 286, 292 (4th Cir.2010) (<HOLDING>). Finally, Castellanos-Loya attacks his Holdings: 0: holding that evidentiary rulings are subject to harmless error renew 1: holding that confrontation clause violations are subject to harmless error review 2: holding blakely errors are subject to harmless error analysis 3: holding that confrontation clause issues are subject to harmless error analysis 4: holding trial errors are subject to a harmless error analysis


Input: 103 S.Ct. 2841. Although the question was left unresolved in Franchise Tax Board, the Court resolved this issue definitively a few years later in Metropolitan Life, 481 U.S. at 64-67, 107 S.Ct. 1542. There, the Court limited application of the complete preemption exception to the well-pleaded complaint rule, with respect to ERISA claims, to only those claims which fall court cannot resolve a dispute where a claim is preempted under § 514, but outside the scope of § 502 because it lacks removal jurisdiction); Rice v. Panchal, 65 F.3d 637, 639-40 (7th Cir.1995) (noting that if the issue is merely preemption under § 514(a), it serves only as a federal defense, and the complaint should not be recharacterized as federal); Allstate Ins. Co. v. 65 Sec. Plan, 879 F.2d 90, 93-94 (3d Cir.1989) (<HOLDING>); Warner, 46 F.3d at 535 (that a claim is Holdings: 0: holding that  502a may serve as an independent basis for preemption where  514a the blanket erisa preemption provision is inapplicable 1: holding that complete preemption exists when a remedy falls within the scope of or is in direct conflict with erisas civil enforcement section 2: holding that  514a preemption defense will not justify removal unless claim falls within the scope of erisas civil enforcement provision  502 3: holding  502 overpowers erisas savings clause 4: holding removal and preemption are distinct concepts erisa preemption does not allow removal unless complete preemption exists


Input: below fair value. See Torrington’s Br. Resp. to SKF’s Mot. J. Agency R. at 11. Tor-rington argues that only if the transactions are truly without consideration can they fall within NSK’s exclusion. See id. at 12. Commerce concedes that the case should be remanded to it to exclude the sample transactions for which SKF received no consideration from SKF’s United States sales database. See Def.’s Partial Opp’n to Pis.’ Mots. J. Agency R. at 27. Commerce is required to impose anti-dumping duties upon merchandise that “is being, or is likely to be, sold in the United States at less than its fair value.” 19 U.S.C. § 1673(1) (1988). A zero-priced transaction does not qualify as a “sale” and, therefore, by definition cannot be included in Commerce’s FMV calculation. See NSK, 115 F.3d at 975 (<HOLDING>). Thus, the distribution of AFBs for no Holdings: 0: holding an implied dedication gives rise to a servitude of public use and does not transfer ownership 1: holding that both tria  201 and fsia  1610g require plaintiffs to prove some terrorist state ownership in order to attach and execute on property and finding that ownership interest through federal interstitial rule making 2: holding that the term sold  requires both a transfer of ownership to an unrelated party and consideration 3: holding that term court encompasses trial by both judge and jury 4: holding that a contract without a minimum quantity term is unenforceable for lack of consideration and mutuality


Input: punctuation omitted). We presume that a sentence within the Guidelines range is reasonable. Id. This presumption, however, may be rebutted by reference to the statutory sentencing factors found in 18 U.S.C. § 3553(a). Id. Price, however, did not receive a Guidelines sentence but a sentence varying below her Guidelines range by twelve months. The only evidence that Price offers in support of her argument that her below-Guidelines sentence is unreasonable is her past history of family problems. The district court considered this evidence but found that it was not sufficiently compelling to warrant a greater variance, and we conclude that the district court acted within its discretion in determining the extent of the variance. See United States v. Austad, 519 F.3d 431, 434 (8th Cir.2008) (<HOLDING>) (quoting Gall v. United States, — U.S. —, 128 Holdings: 0: recognizing that while our reasonableness review may take into consideration the extent of the district courts deviation from the guidelines range we must give due deference to the district courts decision that the  3553a factors on a whole justify the extent of the variance 1: holding that a reviewing court must give due deference to the district courts decision that the  3553a factors on a whole justify the extent of the variance above the guideline range 2: holding that we may apply a presumption of reasonableness to a sentence within the guidelines range 3: holding that there must be sufficient evidence in the record to affirmatively demonstrate the courts consideration of the relevant section 3553a factors 4: holding that we review factual findings underlying a decision to apply a sentencing enhancement for clear error and give due deference to the district courts application of the guidelines to the facts


Input: 32(c), formerly 32(a). The Court concluded that it made “no sense to impute to Congress an intent that a defendant have the right to comment on the appropriateness of a sua sponte departure but not the right to be notified that the court is contemplating such a ruling.” Burns, 501 U.S. at 135-36, 111 S.Ct. 2182 (emphasis in original). Although Burns itself dealt with the need for notice regarding potential upward departures, Townsend notes that some lower courts have extended its reasoning to adjustments, see United States v. Jackson, 32 F.3d 1101 (7th Cir.1994); United States v. Brady, 928 F.2d 844 (9th Cir.1991), abrogated on other grounds, Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994); but see United States v. Canada, 960 F.2d 263 (1st Cir.1992) (<HOLDING>); United States v. Willis, 997 F.2d 407 (8th Holdings: 0: holding that more stringent requirements of  1823e do not apply retroactively 1: holding that the notice requirements of section 101101 do not apply to employees because they are not governmental units 2: holding that more than notice to a defendant is required 3: holding that burns notice requirements did not apply to adjustments which are more predictable than departures 4: holding that the federal register notice requirements do not apply to federal criminal statutes


Input: 612 (N.D.Iowa 1972) (stating that “absent other considerations” it would be unreasonable to allow the filing of a Rule 60(b)(6) motion based upon perjury of a third-party witness more than one year after entry of judgment). Like the plaintiff in Lester, Swanson seeks to vacate the judgment because Donna, a third-party witness, committed perjury. Swanson did not file his motion, however, until nearly 32 months after the entry of the judgment in this case. Swanson’s motion thus would be untimely if Jones, rather than Donna, committed perjury. And like the court in Lester, the court here finds no reason to treat Donna’s testimony differently than Jones’s testimony. The court thus finds that Swanson’s motion was not filed in a reasonable amount of time. See also Middleton, 388 F.3d at 614 (<HOLDING>). Swanson attempts to distinguish Lester by Holdings: 0: holding that a 13 month delay was unreasonable 1: holding threeyear delay without mitigating circumstances was unreasonable 2: holding that a five month delay was unreasonable 3: holding that a 26month delay was a period of time which constitutes a patently unreasonable delay absent mitigating circumstances 4: holding that a six month delay was unreasonable


Input: water charges in order to assist in meeting its debt obligations. 5 . The sole case cited by Engelman in support of its contention "that property owned by districts, like Engelman, created under Article XVI § 59 of the Texas Constitution are [sic] exempt from forced sale and taxation” sheds little light on the issue raised in this case. See Lower Colo. River Auth. v. Chemical Bank & Trust Co., 144 Tex. 326, 190 S.W.2d 48, 50 (1945) (noting in dicta that LCRA's enabling legislation exempted its property from forced sale). As mentioned above, there is no dispute that Engelman's water rights and allocations may not be the subject of a forced sale because these assets are the property of a governmental agency. See Satterlee v. Gulf Coast Waste Disposal Auth., 576 S.W.2d 773, 779 (Tex.1978) (<HOLDING>). 6 . The viability of these alternatives will Holdings: 0: holding agencies of state government are part of the state for purposes of sovereign immunity 1: holding that state and local government agencies were not persons under the fca 2: holding that lcras property devoted exclusively to public use is exempt from taxation under article xi section 9 3: recognizing that tribal sovereign immunity extends to agencies and subdivisions of the tribe 4: holding that article xi section 9 extends to property held by government agencies


Input: Haynor v. General Motors Corp., No. 81539, Dec. 17, 1985. In light of the defendant’s acknowledgment through its representatives LaLonde and Crabill that a “compensable injury” is defined by the workers’ compensation laws (“ ‘compensable injury’ is not defined anywhere in the agreement, but rather, it is defined by the administrative agencies of the state,” LaLonde’s Dep., A.R. 251-52; “[t]he answer to this question [of whether Mr. Haynor’s status was correctly reflected in his employment record”] lies with the Workers Compensation Activity and Labor Relations,” Letter to Russell C. Babcock from Preston M. Crabill, Jan. 25, 2007, Ex. 4 to PL’s Cross Mot. for Summary Jmt. [dkt. # 18]), it is virtually incomprehensible why the defendant would rely on an an 547, 553 (6th Cir.2008) (<HOLDING>). As noted earlier, the Pension Committee and Holdings: 0: holding that under erisa a plan administrators decision to deny an employee longterm disability benefits is arbitrary and capricious if the administrator ignores favorable evidence  and selectively reviews the evidence it does consider 1: holding that the plan administrators failure to address the social security administrations finding of the claimants disability rendered the decision arbitrary and capricious 2: holding that a social security disability determination is a legal proceeding 3: holding that a failure of an erisa plan administrator to address the social security administrations determination that claimant is totally disabled is yet another factor that can render the denial of further longterm disability benefits arbitrary and capricious 4: holding that an erisa plan administrator is not bound by an ssa disability determination when reviewing a claim for benefits


Input: punished in the territory of the requesting Party for an offense other than that for which the extradition has been granted .... ” Extradition Treaty Between the United States of America and the United Mexican States, art. 17, Feb. 6, 1980, 31 U.S.T. 5059 (emphasis added). At the outset, as the government points out, Gov’t’s Opp’n to Agustin’s Specialty Mot., at 5 n.2, Agustín may not have standing to raise a challenge under the Rule of Specialty since the D.C. Circuit has declined to resolve conflicting authority and opine “as to whether a criminal defendant—as opposed to the extraditing state—has standing to assert the doctrine of specialty.” United States v. Lopesierra-Gutierrez, 708 F.3d 193, 206 (D.C. Cir. 2013); see also United States v. Todd, 287 F.3d 1160, 1165 (D.C. Cir. 2002) (<HOLDING>); United States v. Sensi, 879 F.2d 888, 892 n.1 Holdings: 0: holding that the speedy trial clock for state charges did not begin to run when the defendant was taken into custody by federal authorities on federal charges but rather when he was indicted for the state charges 1: holding that a criminal defendant is entitled to know the charges against him and to be tried solely upon the charges against him internal quotation marks and citation omitted 2: holding that student stated a claim for violation of his first amendment right to speech when he alleged that school officials prevented him from openly stating that he was homosexual and retaliated against him for doing so 3: recognizing that we are leaving certain legal questions raised by the government unresolved including whether defendant lacks standing to bring a claim of violation of rule of specialty based on alleged threats to prosecute him for visa and tax fraud when he was not extradited to face such charges 4: holding that although plaintiff was liable for medical services rendered he was not bound by the amount of the charges listed in the admission contract as he was entitled to question the reasonableness of the charges


Input: individuals without first obtaining class certification pursuant to Federal Rule of Civil Procedure 23.” Gen. Tel. Co. of the Nw. v. EEOC, 446 U.S. 318, 333-34, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980). Additionally, we .have noted, in a different posture, that the EEOC is not required to provide documentation of individual attempts to conciliate on behalf of each potential claimant in a class action. EEOC v. Bruno’s Restaurant, 13 F.3d 285, 289 (9th Cir.1993). In Bruno’s, the defendant restaurant fired its pregnant waitresses. The EEOC investigated and found reasonable cause to believe that the defendant had illegally discriminated against them. Id. at 286-87. The defendant rejected the EEOC’s efforts to settle and the EEOC brought suit. The district court dismissed the EEOC’s action ) (<HOLDING>); EEOC v. Keep. Indus., Inc., 748 F.2d 1097, Holdings: 0: recognizing that the court has rejected the notion that the agency must expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner internal quotation marks omitted 1: holding that an employer violates the nlra when it fails to provide information that is needed by the bargaining representative for the proper performance of its duties internal quotation marks omitted 2: holding the eeoc is not required to provide documentation of individual attempts to conciliate on behalf of each potential claimant internal quotation marks omitted 3: holding that compliance with rule 3 is both a mandatory and jurisdictional prerequisite to appeal internal quotation marks omitted 4: recognizing that this court has rejected the notion that the agency must expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner internal quotation marks omitted


Input: see also Smith Barney Shearson Inc. v. Sacharow, 91 N.Y.2d 39, 666 N.Y.S.2d 990, 689 N.E.2d 884, 889-90 (1997). . In their merger agreement, Vocada and Nuanee agreed to arbitrate “any ... dispute relating to the -Earnout Consideration.” This clause is narrow. It does not require arbitration of all disputes arising out of the merger agreement; instead,- it requires arbitration only of disputes related to the earnout consideration. See State v. Philip Morris Inc., 8 N.Y.3d 574, 838 N.Y.S.2d 460, 869 N.E.2d 636, 639-40 (200.7) (observing that an arbitration clause that covers “any dispute ... relating to” an auditor’s calculations and determinations is “misleadingly called broad” (alterations and emphasis omitted»; Gerling Global Reinsurance Corp., 302 A.D.2d at 119, 126, 752 N.Y.S.2d 611 (<HOLDING>); We’re Assocs., Inc. v. Int’l Bus. Machines Holdings: 0: holding an entire arbitration clause is void and arbitration cannot be compelled where contract contained unconscionable clause and has a nonseverability clause 1: holding that an arbitration clause that covered any irreconcilable difference of opinion  as to the interpretation of this contract was a narrowclause 2: holding erisa plan interpretation is simply one of contract interpretation 3: holding that the interpretation of an unambiguous contract is a question of law 4: holding that consideration for a contract as a whole covers the arbitration clause


Input: breached the duty; (3) the breach proximately caused the plaintiff injury; and (4) damages resulted. Id. at 665. Attorney-Client Relationship. The AMn Gump Defendants deny that they represented Grady and Chama, and thus deny that they owed a duty to them. The Court, however, concludes that there is sufficient evidence in the record to determine that an attorney-client relationship was formed between the AMn Gump Defendants and Grady. The Court has found that Kelso was an agent of Grady’s who had the authority to hire counsel for Grady and Chama to design and implement the Chama reorganization scheme; Kelso did hire counsel for Grady and Chama for this purpose. An agent may employ counsel for Ms principal. See Randolph v. Resolution Trust Corp., 995 F.2d 611, 616 (5th Cir.1993) (<HOLDING>), cert. denied, — U.S. -, 114 S.Ct. 1294, 127 Holdings: 0: recognizing this possibility in vacating a summary judgment and remanding the determination as to whether an attorneyclient relationsmp existed 1: holding that before granting an unopposed summary judgment motion the court must inquire whether the moving party has met its burden to demonstrate undisputed facts entitling it to summary judgment as a matter of law 2: holding that a court may consider undisputed summary judgment type evidence when determining whether a reasonable possibility of recovery under state law exists 3: holding that consideration of summary judgment motion should await determination of jurisdiction 4: holding that summary judgment was improper where genuine issues of material fact existed as to whether prison officials prevented inmate from filing grievances


Input: the States, so that it would be inappropriate to infer a cause of action based solely on federal law. Id. at 78, 95 S.Ct. 2080. (quotations omitted). Subsequent Supreme Court decisions have focused the Cort analysis to “emphasize the centrality of the second factor — Congressional intent; treating the other factors as ‘proxies of for the Eleventh Circuit in Arrow Airways, Inc. v. Dade County, 749 F.2d 1489 (11th Cir.1985) held that “[b]ased upon the ... lack of any evidence in the 1982 Act of an intent to create a private right of action, we conclude that the district court properly held that Appellants had no express or implied cause of action under 49 U.S.C. § 2210.” Id. at 1491; see also Four T’s, Inc. v. Little Rock Municipal Airport Commission, 108 F.3d 909, 915-16 (8th Cir.1997) (<HOLDING>); accord Northwest Airlines, Inc. v. County of Holdings: 0: holding that no private right of action exists 1: holding that no private right of action exists under any of the provisions of the airport and airway improvement act 2: recognizing that no private right of action exists for subsection a violations 3: recognizing private right of action 4: holding that a private right of action exists


Input: King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) wherein the Supreme Court stated that in analyzing issues of personal jurisdiction, “when commercial activities are ‘carried on in behalf of an out-of-state party those activities may sometimes be ascribed to the party.” 471 U.S. at 480 n. 22, 105 S.Ct. 2174. Central argues that if CEJ is indeed an indispensable party to an action involving the 902 Patent because it retained substantial rights in that patent, then all of Mitutoyo’s threats of litigation in defense of the 902 Patent must have been made by Mitutoyo on behalf of CEJ because Mitutoyo lacks the power to bring such an infringement action on its own. (See Pl.’s Obj. at 19 (citing Abbott Labs. v. Diamedix Corp., 47 F.3d 1128, 1132 (Fed.Cir.1995) (<HOLDING>)).) But see Intellectual Prop. Dev., Inc. v. Holdings: 0: holding that the assignor of a patent retained substantial rights in the patent and must be added as an indispensable party 1: holding that where patent owner licensor retained substantial rights under license agreement licensee did not have an independent right to sue for infringement 2: holding that a written instrument was needed to document the transfer of proprietary rights to support standing to sue for patent infringement 3: holding that an exclusive license granting the licensor a reversionary interest in the patent in the event of the licensees bankruptcy was a grant of all substantial rights such that the licensee could sue for patent infringement 4: holding in a patent infringement case that plaintiff lacked standing where it held a conditional right to license a patent and enforce license agreements but did not have the right to transfer the patent


Input: 38,122 includes several elements, each of which is capable of being readily understood: (1) a person must intend to obtain an economic benefit for himself by (2) holding himself e of law — a commercial enterprise— therefore, it is not facially overboard. See Cells, 354 S.W.3d at 32 (citing Manrique, 40 S.W.3d at 554). The State of Texas has a compelling interest in this regulatory framework; the benefit is to the citizens as a whole. See id. at 33 (citing Sperry v. Florida, 373 U.S. 379, 383, 83 S.Ct. 1322, 10 L.Ed.2d 428 (1963)) (recognizing that a state has a “substantial interest in regulating the practice of law within the State”) (other citations omitted). Appellant also urges that neither Cells nor Manrique had the benefit of Ex parte Lo, 424 S.W.3d 10, 24 (Tex.Crim.App.2013) (<HOLDING>). Appellant also argues the burden is on the Holdings: 0: recognizing the compelling interest in highway safety 1: holding that narrowtailoring requires a state to act with precision and to use the least restrictive means of achieving its compelling interest 2: holding grandparent visitation statute serves compelling state interest in maintaining grandparentgrandchild relationship where grandparents had raised child for period of time but agreeing with trial court that something more than childs best interest must be established to serve compelling state interest 3: holding the online solicitation statute was not narrowly drawn to effectuate a compelling state interest and there were more narrow means of achieving the states interest in protecting minors 4: holding total ban on indecent dialaporn telephone communications not narrowly drawn to serve the governments compelling interest in protecting children


Input: her work to heightened scrutiny. A Title VII retaliation claim predicated on Knight’s alleged retaliatory supervision of Perry is not in the operative second amended complaint for the obvious reason that his supervision of Perry post-dates the amended pleading’s filing and, thus, had not yet occurred. While the operative complaint does set forth a Title VII retaliation claim, that claim does not allege that the filing of this lawsuit is the protected activity for which Perry suffered adverse action. At no time did Perry file a motion in the district court to amend the second amended complaint to add a Title VII retaliation claim based upon Knight’s alleged post-lawsuit retaliatory conduct, as this circuit generally requires. See Brown v. Snow, 440 F.3d 1259, 1266 (11th Cir. 2006) (<HOLDING>). Notwithstanding the nonexistence of the Title Holdings: 0: holding that an officials failure to forward a complaint letter on the basis that plaintiff had filed an eeo complaint was direct evidence of retaliation 1: holding plaintiff did not exhaust his retaliation claim where his eeoc charge made no mention of retaliation 2: holding that a title vii retaliation claim was not properly before the court because although the plaintiff had not been fired when he filed his complaint the plaintiff never amended his complaint to include a claim of retaliation based on his termination 3: holding court did not have jurisdiction to hear plaintiffs retaliation claim where plaintiff did not check the retaliation box or describe anything that indicates such a claim in the eeoc complaint 4: holding that a plaintiff can prove illegal retaliation under   1981 in the same manner as he establishes retaliation under title vii


Input: concluded that Hampton had an opportunity to present evidence of prejudice. The trial court denied Hampton any such opportunity. Because prejudice is a necessary Barker factor and the trial court failed to comply with the instructions on remand, the Court of Appeals erred in affirming the trial court’s finding that Hampton was not denied a speedy trial. We reverse the judgments of the Court of Appeals and the Circuit Court of Tunica County, and remand for a new hearing in which the parties will be allowed to present evidence related to the Barker factors. ¶ 26. REVERSED AND REMANDED. WALLER, C.J., RANDOLPH, P.J., KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR. LAMAR, J., NOT PARTICIPATING. 1 . Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (<HOLDING>). 2 . One 1970 Mercury Cougar, VIN No. Holdings: 0: holding the defendant did not demonstrate a denial of his sixth amendment right to a speedy trial where even though the delay was substantial and the defendant was detained pretrial for three years the fault for the delay was shared and the defendant continued to request continuances following his assertion for the right to a speedy trial 1: holding that the excusable neglect inquiry is at bottom an equitable one that should be made by considering the danger of prejudice to the nonmoving party the length of the delay and its potential impact upon judicial proceedings the reason for the delay including whether it was in the reasonable control of the movant and whether the movant acted in good faith  2: holding that one minute delay between the initial stop of the defendant and the officers question regarding whether the defendant had any illegal substances and his request to search the defendants car was sufficiently contemporaneous with the issuance of the citation such that there was no appreciable delay and certainly no unreasonable delay 3: holding that when determining whether a delay in prosecution violates a defendants right to a speedy trial courts must consider the length of the delay the reason for the delay whether the defendant asserted his rights and the resulting prejudice to the defendant 4: holding that the length of a continuance was not unreasonable because of defendants part in extending the delay


Input: duty of utmost good faith and fair dealing.” (Third Am. Compl. ¶ 461.) Henneberry fails, however, to provide the Court with any factual allegations that show any duty specifically owed to Henneberry that is separate and outside of a duty SCOA may have owed all of the shareholders. Simply stating a duty existed does not make it so where the preceding factual allegations do not support such a claim. See First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 772 (2d Cir.1994) (“ ‘[Cjourts do not accept conclusory allegations on the legal effect of the events plaintiff has set out if these allegations do not reasonably follow from his description of what happened.’ ” (quoting Kadar Corp. v. Milbury, 549 F.2d 230, 233 (1st Cir.1977))); Salahuddin v. Jones, 992 F.2d 447, 449 (2d Cir.1993) (<HOLDING>); 5B Charles Alan Wright & Arthur R. Miller, Holdings: 0: holding that allegations against nondiverse defendants must be factual not conclusory because conclusory allegations do not state a claim 1: holding district courts dismissal of plaintiffs claims proper where plaintiff only made wholly conclusory and inconsistent allegations 2: holding party opposing summary judgment does not show genuine issue for trial by replacing conclusory allegations of the complaint or answer with conclusory allegations of an affidavit 3: holding that securities fraud claims cannot rest on speculation and conclusory allegations 4: holding that district courts dismissal of state law claims was proper where the district court had properly dismissed all of the federal questions that gave it original jurisdiction


Input: the United States of jurisdiction in public-utility rate cases”); id., at 8419 (remarks of Rep. Hancock) (“the Johnson bill seeks to [save time and money] by divesting the Federal courts of all jurisdiction in public-utility cases except the right of appeal to the Supreme Court of the United States after the final decision of the State court of last resort”). 23 This Court has long recognized the dangers inherent in disrupting the administration of state tax systems. See, e. g., Dows v. City of Chicago, 11 Wall. 108, 110 (1871) (“It is upon taxation that the several States chiefly rely to obtain the means to carry on their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as li , at 299 (<HOLDING>); Fair Assessment in Real Estate Assn., Inc. v. Holdings: 0: holding that declaratory relief is improper when a prosecution involving the challenged state statute is pending in state court at the time the federal suit is initiated and the same principles that govern the propriety of federal injunctions of state criminal proceedings govern the issuance of federal declaratory judgments in connection with such proceedings 1: holding that federal courts will not enjoin the collection of unconstitutional state taxes where the taxpayer has a plain adequate and complete remedy at law 2: holding that the same considerations which have led federal courts of equity to refuse to enjoin the collection of state taxes save in exceptional cases require a like restraint in the use of the declaratory judgment procedure 3: holding the federal and state tests to be the same 4: holding that the exceptional circumstances test does not apply to declaratory judgment actions


Input: Lu, such medical evidence would have been too speculative to have made a difference on the question of whether there was new and material evidence to reopen as to the claim for service connection of the veteran’s death. See 38 U.S.C. § 7261(b); Edenfield, 8 Vet.App. at 390-91 (as to nonprejudicial error); see also Dean v. Brown, 8 Vet.App. 449, 455 (1995) (concluding that even if physician’s statement were of record, it would be insufficient to render claim well grounded “because it would be an opinion only as to the likelihood of the veteran’s subsequently developing Huntington’s chorea, not an opinion that the disability had its onset in, was aggravated by, or would otherwise be related to the appellant’s condition in service”); Johnson (Ethel) v. Brown, 8 Vet.App. 423, 427-28 (1995) (<HOLDING>). III. Conclusion Upon consideration of the Holdings: 0: holding that trial counsel was not ineffective when he failed to introduce defendants prior consistent statement statement was not admissible because it was made after defendant had been arrested clearly not a time when the effect of the statement could not have been foreseen 1: holding that hearing officer had no obligation under 38 cfr  3103c2 to advise appellant as to physicians statement because that statement would not have helped prove the claim  that is that statement would not have provided a nexus with the veterans service 2: holding that the statement i have a gun is a threat of death 3: holding that anonymous statement was admissible as a statement by a partys agent under rule 801d2d and noting that a district court should be presented with sufficient evidence to conclude that the person who is alleged to have made the damaging statement is in fact a party or an agent of that party 4: holding that the statement i have a gun is a threat of death because a reasonable teller upon hearing the statement normally and reasonably would fear that his or her life is in danger