Input: voted to terminate him on March 11, 1994. Because there is no evidence showing a causal connection between plaintiffs purported protected activity and his termination, his claim of retaliatory discharge must fail. See Mt. Healthy, 429 U.S. at 287, 97 S.Ct. at 576. To the extent plaintiff is attempting to allege that he was deprived of procedural due process, that claim must also fail. According to Mo. Ann. Stat § 79.240 (Vernon 1987), appointive officers of fourth-class cities such as Advance are terminable at will by the mayor acting with the consent of a majority of the aldermen or by two-thirds of the aider-men acting independently of the mayor. Because the Missouri courts have consistently referred to police 994); see also Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir.1990) (<HOLDING>). The uncontradicted evidence shows that the Holdings: 0: holding causal link between alleged discriminatory remarks and adverse employment action insufficient 1: holding that a prima facie case of retaliation requires a causal link between the employees protected activity and the employers adverse employment action 2: holding that a plaintiff must demonstrate a direct causal link between the municipal action and the deprivation of federal rights 3: holding that liability under  1983 can be established by showing that the defendants either personally participated in a deprivation of the plaintiffs rights or caused such a deprivation to occur 4: holding that liability under  1983 requires a causal link to and direct responsibility for the deprivation of rights


Input: Way had a qualified defined contribution plan, when in fact it had a qualified defined benefit plan. At trial, one of the issues was whether the RBP's reference to a non-existent contribution plan renders the RBP meaningless. The district court ruled that the RBP is ambiguous on this point and made reference to extrinsic evidence in order to hold that the RBP intended to make reference to the United Way qualified defined benefit plan. We affirmed. See Aramony II, 191 F.3d at 150. 5 . We have characterized this rule of contractual construction as a "guide[ ] to interpretation” rather than a ”rule[ ] requiring blind adherence” where the specific term in question is susceptible of two reasonable interpretations. Burger King Corp. v. Horn & Hardart Co., 893 F.2d 525, 528 (2d Cir.1990) (<HOLDING>). In this case, however, the specific terms are Holdings: 0: holding that there can be no implied contractual term at variance with an express term of a contract 1: holding that contract terms were ambiguous where the specific term that appellant argued should control a more general term was itself susceptible of two reasonable interpretations 2: holding contract with ambiguous terms should not be dismissed on pleadings 3: recognizing that the term including is somewhat ambiguous 4: holding that a contract is ambiguous if a reasonable person would find it susceptible to different or inconsistent interpretations


Input: Service owned the parking lot where Dorosan’s handgun was found, and its restrictions on guns stemmed from its constitutional authority as the property owner. See U.S. Const. art. IV, § 3 cl. 2; United States v. Gliatta, 580 F.2d 156, 160 (5th Cir.1978). This is not the unconstitutional exercise of police power that was the source of the ban addressed in Heller. See 128 S.Ct. at 2787-88 (noting the laws in question “generally prohibited] the possession of handguns” anywhere in the city). Moreover, the Postal Service used the parking lot for loading mail and staging its mail trucks. Given this usage of the parking lot by the Postal Service as a place of regular government business, it falls under the “sensitive places” exception recognized by Heller. See Heller, 128 S.Ct. at 2816-17 (<HOLDING>). Finally, the Postal Service was not obligated Holdings: 0: holding that turner did not cast doubt on the courts previous holding that strict scrutiny applies to racial classifications in prisons 1: holding that evidence in first trial concerning firearms in which defendant was acquitted of drug and rico conspiracies could be used in second trial on firearms offenses because evidence was collateral to elements of offenses in second trial 2: holding that nothing in our opinion should be taken to cast doubt on  laws forbidding the carrying of firearms in sensitive places such as schools and government buildings  3: holding that when a constitutional right is vested in a party and there is a doubt as to whether that right has been waived the doubt should be resolved in the defendants favor 4: holding that cash is the type of loot that criminals seek to hide in secure places like their homes and items such as firearms are the types of evidence likely to be kept in a suspects residence


Input: unavoidably unsafe product is whether the manufacturer provided an adequate warning. If accompanied by an adequate warning, a desirable but unsafe product is not unreasonably dangerous.” Clark, 1999 WL 613316, at *4; see Graham, 666 F.Supp. at 1498 (“The comment thus recognizes that while some products are inherently dangerous, the user has a right to know of these inherent risks so that he can make an informed decision; in the absence of such warning, the product is deemed to be defective.”). Generally, a manufacturer has a duty to warn of dangers that it either knew or should have known. Tipton v. Michelin Tire Co., 101 F.3d 1145, 1149-50 (6th Cir.1996); CertainTeed Corp. v. Dexter, 330 S.W.3d 64, 79 (Ky.2010) (quoting Post v. Am. Cleaning Equip. Corp., 437 S.W.2d 516, 520 (Ky.1968) (<HOLDING>)). In 2004, Kentucky formally adopted the Holdings: 0: holding that liability for a manufacturer follows only if it knew or should have known of the inherent dangerousness of the product and failed to accompany   it with the quantum of warning which would be calculated to adequately guard against the inherent danger  1: holding that the destruction of documents which the party knew or should have known would be relevant to a pending or potential lawsuit is sanctionable 2: holding that even if the industry and federal regulations evidenced an inherent danger and the defendant knew or should have realized that the device was or was likely to be dangerous for the use for which it was supplied there was a complete absence of evidence that the defendant had reason to believe that the plaintiff or its employees would not realize the danger 3: holding that the district court erred because it applied the enhancement without taking into account whether the defendant knew or should have known possession would be unlawful 4: holding danger was so open and obvious to plaintiff that as a matter of law he knew or should have known of danger


Input: an adjudication, requires proof that a defendant is guilty of an act that occurred in the past. The Legislature’s distinction between the proof required for a finding of guilt versus the proof required to find an adjudicated youthful offender non-amenable to treatment as a child is consistent with federal and state precedent. Compare id. with Kent, 383 U.S. at 547-48, 86 S.Ct. 1045. {35} We note that New Mexico courts have consistently held that the lack of a standard of proof for the amenability findings does not violate due process under the federal constitution. See State v. Doyal, 59 N.M. 454, 461-62, 286 P.2d 306, 311-12 (1955) (upholding law allowing any child charged with a felony to be prosecuted in district court); State v. Jimenez, 84 N.M. 335, 336, 503 P.2d 315, 316 (1972) (<HOLDING>); State v. Doe, 91 N.M. 506, 509-10, 576 P.2d Holdings: 0: holding transfer statute constitutional and noting that revised statute gave greater guidance to trial courts in determining whether juvenile should be tried in adult court than statute upheld in doyal 1: holding that a statute should not be construed so as to invalidate other parts of the same statute 2: holding that when a statute is patterned after a similar provision in another states statute it is proper to resort to judicial constructions placed on the statute by the courts of the state whose statute provided the model in determining the proper construction   3: holding that when the language of a statute is clear courts should not substitute their judgment for that of congress and should enforce the statute according to its terms 4: holding that the statute qualifies as an exemption 3 statute


Input: the 88R: “The role of all committees is advisory only. Final responsibility in selection rests with the Chancellor.” Ex. M to Dean Decl. at ¶1(4). Furthermore, while Russo was responsible only for Bronx High Schools, the 30R clearly requires the system of assignment to include “city-wide standards and procedures developed and promulgated by the Chancellor as minimum city-wide requirements ____” Ex. L to Dean Decl. at ¶ 11(C). Given this evidence, the Court finds that the Chancellor, not Ms. Russo, possessed final decisionmaking authority as a matter of New York law over the hiring of an AP for Smith High. Therefore, the Board cannot be liable for Russo’s actions insofar as they relate to the promotion process. See Carrero v. New York City Housing Authority, 890 F.2d 569 (2d Cir.1989) (<HOLDING>); see also Davis v. City of New York, 1990 WL Holdings: 0: holding that a supervisor cannot be held personally liable for the unconstitutional conduct of a subordinate based on vicarious liability 1: holding that the delegation of discretionary authority to supervisors for discipline and promotion constituted a policy or practice sufficient to satisfy the commonality requirement 2: holding that the housing authority could not be held liable for the allegedly discriminatory behavior of a supervisor because the supervisors alleged behavior was contrary to stated housing authority policy 3: holding that a supervisor who implemented a maternity leave policy that violated the terms of title vii could not be held individually liable 4: holding that absent explicit statutory authority a municipality cannot be held liable for punitive damages


Input: Union State Bank v. Galecki, Banking Comm’r, 142 Wis.2d 118, 417 N.W.2d 60, 63 (App.1987)). Further, an agency may not only “reopen and reconsider its orders on particular problem ... but it may also adopt or entertain a different view of the law in subsequent cases.” Union State Bank, 417 N.W.2d at 63 (citing Fond du Lac v. Dep’t of Natural Resources, 45 Wis.2d 620, 173 N.W.2d 605, 608 (1970); State ex rel. Schleck v. Zoning Bd. of App., 254 Wis. 42, 35 N.W.2d 312, 313 (1948)). See also Nick v. State Hwy. Comm’n, 21 Wis.2d 489, 124 N.W.2d 574, 577 (1963), cert. denied, 376 U.S. 963, 84 S.Ct. 1125, 11 L.Ed.2d 981 (1964) (stating that an administrative agency is not bound by its prior determinations); Robertson Transp. Co. v. Public Serv. Comm’n, 39 Wis.2d 653, 159 N.W.2d 636 (1968) (<HOLDING>). Similarly, the Supreme Court of Utah has Holdings: 0: holding that the ijs or bias credibility determinations are not questioned if they are substantially reasonable 1: holding that credibility determinations are reviewed only for substantial evidence 2: holding that the credibility determinations by the board are virtually unreviewable 3: holding that credibility determinations are for the jury 4: holding that inconsistencies in determinations arising by comparison are not proof of arbitrariness or eaprieiousness


Input: comply with the procedural requirements of Florida Rule of Criminal Procedure 3.840 governing the prosecution of indirect criminal contempts, as well as scrupulously afford the alleged contemnor the full panoply of constitutionally mandated protections applicable to criminal proceedings. See, e.g., International Union, United Mine Workers of America v. Bagwell, — U.S. -,-, 114 S.Ct. 2552, 2556-2557, 129 L.Ed.2d 642 (1994); Aaron v. State, 284 So.2d 673, 677 (Fla.1973). The supreme court subsequently observed that the power to punish for contempt exists independently of any statutory grant of authority as essential to the execution and maintenance of judicial authority. Ducksworth v. Boyer, 125 So.2d 844, 845 (Fla.1960); see also In re Hayes, 72 Fla. 558, 568, 73 So. 362, 365 (1916) (<HOLDING>). The court later determined, in reliance on Holdings: 0: holding that a statutory limitation on punishment for indirect criminal contempt was unconstitutional as it offended the inherent authority of courts to punish such affronts 1: holding that this court has inherent as well as express statutory authority to punish for contempt 2: holding that it is a well established rule that the power to judge a contempt rests exclusively with the court contemned and that no court is authorized to punish a contempt against another court 3: recognizing inherent power of supreme court independent of statutory authority to punish for contempt of court 4: holding that in addition to statutory contempt powers city courts have inherent contempt power


Input: bound to construe his pleadings liberally; much less ought we to construe them in such a way as to construct for Elzy the case that he has not made. And even if we were to find that the mere mention in the § 2255 proceedings of trial counsel’s failure to file an appeal was sufficient to raise an ineffective assistance claim, which the district court should have considered in order to determine whether it could proceed to the merits of Elzy’s claim that the Government breached the plea agreement, we would be constrained to hold that Elzy has waived the issue on appeal because he neither mentioned it in his motion for a certificate of appealability nor raised it in his brief on appeal. In short, the failure of the district court to notice and hold an evidentiary hearing on an Cir.1992) (<HOLDING>). We conclude that in this case we are Holdings: 0: holding that a district court has the power to raise the aedpa limitations period sua sponte because the defense implicates values beyond the interests of the parties 1: holding that a court may sua sponte take judicial notice of its docket 2: holding that appellate court may raise issues of default sua sponte where necessary to protect inter alia the finality of federal criminal judgments 3: holding court may raise procedural default sua sponte if doing so will further the interests of judicial efficiency conservation of scarce judicial resources and orderly and prompt administration of justice 4: holding that because concerns of finality of criminal judgments judicial economy and orderly administration of justice substantially implicate important interests beyond those of the parties appellate court may raise frady defense sua sponte


Input: certain additional criteria. § 39.6251(2), Fla. Stat. (2014). The administrative rule concerning section 39.6251 provides that "[a] young adult is considered to have been living in licensed care on the date of his or her 18th birthday if the young adult was in the legal custody of the Depart-meñt on the date of his or her 18th birthday.”' Fla. Admin... Code R. 65C-41.003 (2015). Thus, had the court placed R.J. in DCF’s custody when it adjudicated him dependent, R.J. may have been eligible for extended licensed care. As a remand ‘by the appellate court has the effect of restoring the case to the position it would have assumed absent the incorrect ruling, this case is not moot. See Wells Fargo Armored Servs. Corp. v. Sunshine Sec. & Detective Agency, Inc., 575 So.2d 179, 180 (Fla.1991) Holdings: 0: holding that the erroneous admission of dna evidence is never harmless 1: holding that the effect of a remand is to return this proceeding to the lower court as though the erroneous ruling never had been made 2: recognizing that an appeal has never been an evidentiary proceeding so appellate court will not consider evidence not presented to the lower tribunal because function of appellate court is to determine whether lower tribunal committed error based upon the issues and evidence before it 3: holding that an erroneous decision to exclude evidence is considered harmless unless the error had a substantial influence on the outcome or leaves this court in grave doubt as to whether it had such an effect 4: holding that this court may reconsider an erroneous ruling as long as the appeal is current


Input: I. Plaintiff first contends that the trial court’s denial as a matter of law of an award of monetary damages for delay in compliance in an action for a writ of mandamus was in error. We disagree. The issue of whether damages may be awarded to a successful plaintiff in an action for mandamus is one of first impression before this Court and we therefore carefully review the development of this extraordinary remedy in reaching this conclusion. The writ of mandamus originated as a common law action. See Tucker v. Justices of Iredell, 46 N.C. 451, 459 (1854). At common law, the petitioner was not permitted to deny facts alleged in the return to a writ of mandamus, and if the return was sufficient in law, the matter was resolved without further proceedings. See Tucker, 46 N.C. at 459 (<HOLDING>). As the aggrieved party could not contradict Holdings: 0: recognizing that the issuance of a writ of mandamus is itself generally a matter of discretion 1: holding a writ of mandamus could not be traversed and if the matters set forth were sufficient in law the defendant has judgment to go without day 2: holding that common pleas erred in setting aside the writ of execution on the basis that the union erroneously filed a writ of execution instead of filing a writ of mandamus 3: recognizing petitioner for writ of mandamus must demonstrate clear legal right to the act sought to be compelled and no other plain speedy and adequate remedy in the ordinary cause of law and stating mandamus may not be issued to compel an officials discretionary acts 4: holding that to grant a writ of mandamus a court in the exercise of its discretion must be satisfied that the writ is appropriate under the circumstances


Input: Id. at 507, 79 S.Ct. 1400. Closer to the case at hand is United States v. Hayman, discussed at page 82 above, where a district court faced with a claim of ineffective assistance of counsel in a habeas corpus case held a hearing without having the petitioner present, and then found that counsel had engaged in the conflicted representation with the knowledge and consent of the petitioner. The Supreme Court disapproved and reversed, holding that the district court “did not proceed in conformity with Section 2255 when it made findings on controverted issues of fact relating to respondent’s own knowledge without notice to respondent and without his being present.” Hayman, 342 U.S. at 220, 72 S.Ct. 263; see also, Walker v. Johnston, 312 U.S. 275, 285, 61 S.Ct. 574, 85 L.Ed. 830 (1941) (<HOLDING>). Although, as the government argues, in Holdings: 0: holding that contested factual issues in  2255 cases must be decided on the basis of an evidentiary hearing not affidavits 1: holding that issues raised and dealt with in posttrial evidentiary hearings may be preserved for appeal 2: holding that disputed issues of fact cannot be resolved based on affidavits and must be decided based on evidentiary hearings the only admissible procedure for resolving such issues 3: holding plenary hearings are required when there are contested issues of material fact on the basis of conflicting affidavits 4: holding that on a motion for summary judgment the court cannot try issues of fact it can only determine whether there are issues to be tried


Input: 477 (2d Cir.1946) (Clark, J., dissenting) (“It is as though we found Shakespeare a plagiarist on the basis of his use of articles, pronouns, prepositions, and adjectives also used by others.”); Boisson v. Banian, Ltd., 273 F.3d 262, 272 (2d Cir.2001) (“[A] court is not to dissect the works at issue into separate components and compare only the copyrightable elements. To do so would ... result in almost nothing being copyrightable because original works broken down into their composite parts would usually be little more than basic unprotectible elements like letters, colors and symbols.”) (internal citation omitted). The fact that each individual icon or feature on a screen cannot necessarily be copyrighted does not deny the screen itself, as re, Inc., 26 F.3d 1335, 1346 (5th Cir.1994) (<HOLDING>). Cf. Feist Publ’ns, Inc. v. Rural Tel. Serv. Holdings: 0: holding that a user interface here a screen display itself an audiovisual work may be entitled to copyright protection as a compilation 1: holding that the equal protection clause also prohibits discrimination in jury selection on the basis of gender 2: holding screen displays and inputoutput formats copyrightable and noting that their selection and arrangement contained enough originality under feist to warrant protection 3: holding that that choices as to selection and arrangement are entitled to copyright protection only so long as they are made independently 4: holding warrant valid where search warrant application affidavit was signed and probable cause existed for issuance of warrant


Input: the act’s criteria. Id. at 353, 117 S.Ct. 2072. We do not suggest that these procedures are a prerequisite to a First Amendment deprivation; Hendricks-style civil commitment presents a far greater deprivation of liberty than banning social networking. But Hendricks nevertheless illuminates the imprecision of the Indiana statute. Unlike the individualized assessment that ensured each respondent was “likely” to commit the redressa-ble evil, the Indiana legislature imprecisely used the sex offender registry as a universal proxy for those likely to solicit minors. There may well be an appropriate proxy, but the state has to provide some evidence, beyond conclusory assertions, to justify the regulation. This case also differs from our decision in Doe v. 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003) (<HOLDING>); Doe v. Miller, 405 F.3d 700 (8th Cir.2005) Holdings: 0: holding that the public disclosure provision of connecticuts sex offender registration law did not violate the due process clause 1: holding that the alaska sex offender registration act did not violate the ex post facto clause 2: holding that since sex offender registration was not a direct consequence of the plea the failure to warn of such a requirement did not render the pleas unknowing or unintelligent 3: holding that nebraskas sex offender registration statute did not violate due process because it is reasonable to conclude that retroactive application of sora furthers the public safety purpose of the legislation 4: holding that doctrine does not violate due process


Input: consistent herewith. SAWAYA, PALMER and MONACO, JJ., concur. 1 . On July 23, 1998, Barrow was sentenced to life imprisonment following his convictions, after jury trial, for attempted first-degree murder with a firearm, attempted carjacking while armed, two counts of carjacking while armed, felony causing bodily injury, aggravated assault, and burglary of a structure while, armed. His direct appeal was per curiam affirmed by this court. Barrow v. State, 736 So.2d 1203 (Fla. 5th DCA 1999). Barrow filed the instant rule 3.850 motion on June 29, 2005, which is well over two years after his judgment and sentence became final on direct appeal. However, because the claim asserted by Barrow is based on newly discovered evidence, it is not procedurally barred. See Fla. R.Crim. P. 3.850(b)(1) (<HOLDING>). 2 . In addition to the above statement, the Holdings: 0: holding that rule 3850 motion was not time barred where the order did not place any time limitation on when the defendant would refile his rule 3850 motion 1: holding that cr 6002 allows appeals based upon claims of error that were unknown and could not have been known to the moving party by exercise of reasonable diligence and in time to have been otherwise presented to the court 2: holding that posttrial discovery of asserted newly discovered evidence did not satisfy the requirement that the evidence must be such as with reasonable diligence could not have been discovered and produced at trial 3: recognizing the rule and the exception but holding facts did not support claim to exception 4: recognizing an exception to the twoyear time bar imposed on rule 3850 claims when the claim asserted is based on facts that were unknown to the movant and could not have been discovered through the exercise of due diligence


Input: verdict on the theory presented at trial. In reviewing a claim of insufficient evidence, we examine the record in the light most favorable to the State to determine if, when considered as a whole, a reasonable person could find guilt beyond a reasonable doubt. State v. Peck, 539 N.W.2d 170, 172 (Iowa 1995); State v. Mulder, 313 N.W.2d 885, 888 (Iowa 1981). A jury’s verdict is binding unless there is no substantial evidence to sustain it. Peck, 539 N.W.2d at 172. D. Analysis of Prejudice Claim 1. Beseo’s Authority The State charged Fenske with burglary under the first alternative of our burglary statute, entering an occupied structure not open to the public without right, license or privilege to do so. See Iowa Code § 713.1; see also State v. Dible, 538 N.W.2d 267, 270 (Iowa 1995) (<HOLDING>); accord State v. Taft, 506 N.W.2d 757, 761 Holdings: 0: recognizing that a court may look to the charging document in making a crime of violence determination but only where the statute provides disjunctive methods of committing the offense and the court needs to determine which of the statutory alternatives is involved in the particular case 1: recognizing different charging alternatives available under burglary statute 2: holding that iowa burglary is not categorical burglary as the elements of iowa burglary law are broader than those of generic burglary 3: holding that possession of burglary tools is an offense separate from burglary 4: holding that virginia burglary statute comes within definition of generic burglary


Input: district was platted and developed. In attempting to give effect to restrictive covenants, courts are not so much concerned with the grammatical rules or the strict letter of the words used as with arriving at the intention of the restrictor, if that can be gathered from the entire language of the instrument. Moreover, the language employed in stating the restriction is to be taken in its ordinary and generally understood or popular sense, and is not to be subjected to technical refinement, nor the words torn from their association and their separate meanings sought in a lexicon. Covenants are to be construed with reference to the present and prospective use of property as well as to the specific language employed and upon the reading as a whole rat l App 3d 356; 445 NE2d 1193 (1983) (<HOLDING>); In re Wallace’s Fourth Southmoor Addition to Holdings: 0: holding that an amendment passed two years into a 10year automatic extension period was not effective until the 10year extension period expired and stating that to hold otherwise would render the extension provision meaningless 1: holding that the states rule dates the beginning of the discovery period only from the filing of the answer 2: holding that amendments of the restrictive covenants passed during the initial 20year term would not take effect until the beginning of the automatic 10year extension period 3: holding that an amendment of restrictive covenants passed during the running of an automatic 10year extension period was not effective until the end of the 10year extension period 4: holding that extension of a federal grand jurys term was within the discretionary powers of the district court


Input: ¶ 21 The Arizona legislature has imposed upon convicted felons a standard for the restoration of the felon’s civil rights that is, perhaps, more stringent than the standard imposed by other states in requiring a convicted felon to have all civil rights restored before the person may be eligible to register to vote and, consequently, eligible to serve as a petition circulator. See Jean Chung, The Sentencing Project, Felony Disenfranchisement: A Primer (June 2013), available at http://senteneingproject.org/doe/publications/ fd_Felony% 20Disen franchisement% 20Primer.pdf. It is the legislature’s prerogative to impose strict requirements for petition circulators. See generally Arizona v. Inter Tribal Council of Ariz., Inc., — U.S. -, -, 133 S.Ct. 2247, 2257-58, 186 L.Ed.2d 239 (2013) (<HOLDING>). And the legislature’s decision as clearly Holdings: 0: holding courts have inherent power to compel discovery of the states evidence to protect a defendants due process rights 1: recognizing states have power to establish voting requirements 2: recognizing power of states to engage in some regulation of interstate commerce 3: holding that the federal power act did not evince an intent to permit states to prohibit export of hydroelectric power out of state 4: recognizing a distinction between the power of a federal court to hear statelaw claims and the discretionary exercise of that power


Input: 11 . This history of the bill of attainder was set forth in a 1993 case from the Court of Appeals for the Second Circuit, In re McMullen, 989 F.2d 603, 604-606 (2d Cir.), cert. denied, — U.S. -, 114 S.Ct. 301, 126 L.Ed.2d 249 (1993) (noting that Thomas Jefferson had been involved in the passage of a bill of attainder in the Commonwealth of Virginia in 1778). McMullen reversed a District Court finding that the supplementary extradition treaty between the United States and the United Kingdom constituted a bill of attainder as applied in the case of Mr. McMullen. The Second Circuit catalogued the dcvelopment of the prohibition against bills of attainder in the United States. For instance, the Court cited United States v. Lovett, 328 U.S. 303, 315, 66 S.Ct. 1073, 1078, 90 L.Ed. 1252 (1946) (<HOLDING>); United States v. Brown, 381 U.S. 437, 447-48, Holdings: 0: holding that the doctrine prohibits any act no matter what its form that applies either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment upon them without a judicial trial 1: holding that civil settlements have no bearing on decisions of criminal punishment and imposition of a restitution order is a form of punishment and part of a criminal sentence 2: holding that a courts refusal to recognize a group of individuals as a suspect class does not leave them entirely unprotected from invidious discrimination 3: holding group published doctrine does not apply to  oral remarks of other individuals 4: holding that imposition of punishment is a judicial function


Input: calm and relaxed so she could understand the Implied Consent. I read it to her when the time was right, so she could understand it; when she stopped crying. The officer read Naik the implied consent rights 18 minutes later, as soon as he felt that the scene was secured and Naik was calm enough to listen to her rights and to make a reasonable decision. After she consented, the State’s breath test was given on site. Given the concerns of the arresting officer for the safety of himself and the passenger, the security of the roadway, the protection of Naik’s purse and other valuables, and Naik’s fragile emotional state, his 18-minute delay in reading Naik her implied consent rights was timely under the circumstances. See State v. Marks, 239 Ga. App. 448, 453-454 (2) (521 SE2d 257) (1999) (<HOLDING>); Mason v. State, 177 Ga. App. 184, 186 (2) Holdings: 0: holding that a 20 to 30 minute delay was warranted when the arresting officer was investigating the accident scene and dealing with the hazard created by the wrecked vehicle 1: 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 2: holding that the consent of the driver was invalid when the officer knew that the passenger was the owner of the automobile 3: holding that exigency exists when time has elapsed while the driver is transported to the hospital and the investigating officer is detained at the accident scene 4: holding that the 16minute delay between the defendants arrest and the reading of the implied consent notice did not require suppression of the chemical test results when the arresting officer was dealing with a second intoxicated driver and investigating the accident scene


Input: and that the mother was unfit to have custody of the child. Those findings are essential to overcome the presumption in favor of parental custody in a child-custody case between a parent and a non-parent, see Ex parte Terry, 494 So.2d 628 (Ala.1986) (also holding that those facts must be proven by clear and convincing evidence), but those findings are not required in a dependency case. See O.L.D. v. J.C., 769 So.2d 299, 302 (Ala.Civ.App.1999) (“This case is not simply a custody dispute between a parent and nonparent, but, rather, is a dependency case; therefore, Terry is not applicable.”); J.P. v. S.S., 989 So.2d 591 (Ala.Civ.App.2008); and W.T.H. v. M.M.M. 915 So.2d 64 (Ala.Civ.App.2005); see also K.B. v. Cleburne County Dep’t of Human Res., 897 So.2d 379, 387 (Ala.Civ.App.2004) (<HOLDING>). Likewise, the finding that the maternal Holdings: 0: recognizing the circuit split and applying the subjective standard as more stringent without deciding which standard applies 1: holding that terry  parental unfitness  standard is more stringent than the dependency best interests standard 2: holding that congress intended to adopt a standard more stringent than the prepslra second circuit standard 3: holding that the standard for withholding of removal is more demanding than the standard for asylum 4: recognizing that the federal pleading standard is a less stringent standard than the delaware pleading standard


Input: wireless service industry in the processing of requests, or to subject their request to any but the generally applicable time frames for zoning decisions. H.R. Conf. Rep. No. 104-458, at 208 (1996) (emphasis added). Indeed, as one court has noted, “[t]here is nothing to suggest that Congress, by requiring action ‘within a reasonable period of time,’ intended to force local government procedures onto a rigid timetable .” Sprint Spectrum, L.P. v. City of Medina, 924 F.Supp. 1036, 1040 (W.D.Wash.1996); see also Sprint Spectrum L.P. v. Zoning Hearing Bd., 43 F.Supp.2d 534, 537 (E.D.Pa.1999) (interpreting the Telecommunications Act’s rea-gonable-period-of-time requirement to be congruent with a state statute imposing a 60-day time limit); Flynn v. Burman, 30 F.Supp.2d 68, 74 (D.Mass.1998) (<HOLDING>). Thus, under the Telecommunications Act, state Holdings: 0: holding that a mere showing facilities were permitted in different locations within a district was not unreasonable discrimination under the telecommunications act as a matter of law 1: holding that plaintiffs complaint failed to state a claim under section 1 of the sherman act 2: holding our habitual offender act does not limit enhancement to prior felony convictions within a certain time 3: 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 4: holding that a local commission had not failed to act on an application within time limit set by state law and consequently had not failed to act within a reasonable time under telecommunications act


Input: the child services agency, it was the man against whom the action was taken who sought to utilize the prior finding of paternity as a shield, arguing that principles of res judicata would prevent the disestablishment of paternity against one man and the establishment of paternity in another. As explained above, it is axiomatic that principles of res judicata attach only to the parties involved in the initial civil action; other parties, such as the child or another individual, are specifically not precluded by res judicata from subsequent litigation of the paternity issue. This is a universal holding embraced by this Court in syllabus point five of Benjamin P., as quoted above, and reviewing courts of other jurisdictions. See Ruddock v. Ohls, 91 Cal.App.3d 271, 154 Cal.Rptr. 87 (1979) (<HOLDING>); Dep’t of Health and Rehabilitative Services Holdings: 0: holding that husband who was excluded from paternity of children and could not intervene in a paternity action to obtain custody would be able to bring an independent action per tql 1: holding that adjudication of paternity in divorce decree is not binding on the child 2: holding that a paternity determination in which the child is not made a party and is not represented by a guardian ad litem is not binding on the child 3: holding that although a putative father had standing to bring a paternity action the action could not proceed and the blood tests could not be ordered unless the trial court determined that the paternity action would serve the best interest of the child 4: holding that child is not bound by paternity determination in marital dissolution action


Input: prove inadequate, Warden v. Exempla, Inc., 2012 CO 74, ¶ 16, 291 P.3d 30, 34. ¶ 13 In criminal cases, this Court has found the normal appellate process to be inadequate where the prosecutor would be barred from retrial post-acquittal due to double jeopardy. See, e.g., People v. Smith, 254 P.3d 1158, 1161 (Colo.2011) (electing to exercise original jurisdiction to hear the prosecutor's interlocutory appeal because wrongful suppression of the evidence at issue would force the prosecutor to wait for post-acquittal relief, which would preclude retrial per double jeopardy). This Court has also held that the normal appellate process is inadequate in criminal cases where the jury's decision could render the pretrial issue moot. See, e.g., Wood v. People, 255 P.3d 1136, 1141-42 (Colo.2011) (<HOLDING>). ¶ 14 Exercise of our original jurisdiction is Holdings: 0: holding that by fading to timely raise the issue before the trial court the defendant had waived the right to raise the issue on appeal that the trial court failed to consider less severe sanctions 1: holding the state failed to meet its burden of showing the erroneous jury instruction was harmless beyond a reasonable doubt where it did not address the issue on appeal 2: holding that the defendant had to appeal the trial courts pretrial determination that he failed to establish immunity under the makemyday statute before trial via car 21 because the issue became moot when the jury found that immunity did not exist beyond a reasonable doubt 3: holding that a challenged jury instruction did not impermissibly shift the burden of proof when the trial court elsewhere instructed the jury that the state must prove its case beyond a reasonable doubt 4: holding that the trial court did not abuse its discretion by refusing to accept the defendants guilty pleas to two counts of the indictment and stating that even if the trial court erred the error had not prejudiced the defendant because he was found guilty by the jury of the charges to which he intended to plead and the evidence of the other crimes would have been admissible in the trial for the first degree murder charge


Input: both supra, of a possible or plausible connection between the veteran’s current condition and the in-service incurrence that he had experienced, and the Court thus holds that the veteran has submitted a well-grounded claim. See Alemany v. Brown, 9 Vet.App. 518, 519 (1996) (medical opinion that “stress of the war may have unleashed a process that was dormant and latent and it is possible that he would never in his life [have otherwise] developed convulsions” sufficient to show “ ‘possible’ link between the seizure disorder and the headaches” and to make claim well grounded); Molloy v. Brown, 9 Vet.App. 513, 516 (1996) (stating that medical evidence as to nexus to service expressed as “could” suffices for requirement of well-grounded claim); Watai v. Brown, 9 Vet.App. 441, 443 (1996) (<HOLDING>); Robinette, 8 Vet.App. at 76 (“threshold of Holdings: 0: holding medical evidence as to nexus to service expressed as possible suffices for that aspect of wellgroundedclaim requirements 1: holding that medical evidence as to nexus to service expressed as very well might have been although not conclusive suffices to well ground claim 2: holding that the fourth amendment protects property as well as privacy 3: holding that it is within the power of the legislature to determine that the community should be beautiful as well as healthy spacious as well as clean wellbalanced as well as carefully patrolled 4: recognizing that nurses statements regarding nexus were sufficient to make a claim well grounded


Input: Juan Esber Manzur, a Nevada state prisoner, appeals pro se from the district court’s order dismissing his civil rights action challenging the revocation of his medical license. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir.2004). We affirm. The district court properly dismissed the action because absolute immunity bars Manzur’s claims against the Nevada State Board of Medical Examiners and its members. See Mishler v. Clift, 191 F.3d 998, 1007 (9th Cir.1999) (<HOLDING>). Manzur’s remaining contentions are Holdings: 0: holding that prosecutors have absolute immunity 1: recognizing absolute immunity for attorneys and board members of the texas medical board 2: recognizing absolute immunity for board members and the director of the mississippi state board of nursing 3: holding that the nevada state board of medical examiners and its members are functionally comparable to judges and prosecutors  and are entitled to absolute immunity for their quasijudicial acts 4: holding that all persons who are integral parts of the judicial process such as witnesses judges and prosecutors are entitled to absolute immunity


Input: a resident of Minnesota, and, therefore, the affidavit in support of publication was “manifestly false.” An affidavit must be supported by “good faith that [the defendant] cannot be found in the state.” Van Rhee v. Dysert, 154 Minn. 32, 35, 191 N.W. 53, 54 (1922). A “good faith” affidavit is required to show that the party and attorney used “due diligence in making a search for the defendant.” Id. Whether a party’s efforts at service were diligent is a question of fact. Duresky v. Hanson, 329 N.W.2d 44, 49 (Minn.1983). The steps necessary to constitute a diligent search can vary by case, but the plaintiff must be able to demonstrate that he or she has reasonably attempted to find the defendant and has been unsuccessful. Id. at 49; see also Van Rhee, 154 Minn. at 35, 191 N.W. at 54 (<HOLDING>). Here, the record supports the district Holdings: 0: recognizing county officers as  those whose general authority and jurisdiction are confined within the limits of the county in which they are appointed who are appointed in and for a particular county and whose duties apply only to that county and through whom the county performs its usual political functions  1: holding that the grant county prosecutor had a statutory duty to be legal advisor to the county clerk even though she was not embroiled in litigation in which the county was the real party in interest 2: holding that both saline county and grant county had jurisdiction to try the appellant for murder where the actual killing occurred in one county but the acts requisite to the consummation of the murder and the subsequent disposal of the body occurred in the other county 3: holding that relief against county and state officers was barred by the eleventh amendment because the state funded and cooperated in operating the county program at issue 4: holding that a search was diligent when a plaintiff made repeated inquiries of numerous persons at places in the county in which the defendant was believed to reside sought information touching the whereabouts of the defendant from several county officers and various places of business and looked for financial records regarding the defendant and his heirs


Input: Handbook of Federal Indian Law § 7.04(l)(a), p. 613 & n. 11 (Nell Jessup Newton ed., 2012) (citing National Farmers Union Ins. Cos., 471 U.S. at 852-53, 105 S.Ct. 2447). Indeed, in every case cited by the parties, the court determined that the scope of tribal court authority, even where allegedly circumscribed by contract, raised a federal question under § 1331. See Gaming World Int’l, Ltd. v. White Earth Band of Chippewa Indians, 317 F.3d 840, 848 (8th Cir.2003) (“[A]n action filed in order to avoid tribal court jurisdiction necessarily asserts federal law. It is well established that the scope of tribal court jurisdiction is a matter of federal law.” (emphasis added) (citation omitted)); Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck Hous. Auth., 207 F.3d 21, 28 (1st Cir.2000) (<HOLDING>); Bruce H. Lien Co. v. Three Affiliated Tribes, Holdings: 0: holding that in diversity cases federal courts are to apply state substantive law and federal procedural law 1: holding that the federal district courts dismissal of the plaintiffs federal claims deprived the court of its jurisdiction over the remaining state law claims arising from the same incident 2: recognizing that decisions of lower federal courts interpreting federal law are not binding on state courts 3: holding that the plaintiffs state law claims are preempted by federal law 4: holding in the context of dispute in which tribes adjudicative authority allegedly was limited by contract that federal courts have authority to determine as a matter arising under federal law the limits of a tribal courts jurisdiction and the fact that a plaintiffs claims are not premised on federal law does not alter this result quoting el paso natural gas co v neztsosie 526 us 473 483 119 sct 1430 143 led2d 635 1999


Input: which the property is adaptable and needed or likely to be needed in the reasonably near future.’” Id. (quoting Olson v. United States, 292 U.S. 246, 255, 54 S.Ct. 704, 78 L.Ed. 1236 (1934)) (alteration in Frazee)-, see also 26 C.F.R. § 1.170A-14(h)(3)(ii) (noting: where, as here, the tax court employs before-and-after valuation, “the fair market value of the property before contribution of the conservation restriction must take into account not only the current use of the property but also an objective assessment of how immediate or remote the likelihood is that the property, absent the restriction, would in fact be developed”). Needless to say, finding a property’s highest and best use is a critical aspect for determining its fair market value. Olson, 292 U.S. at 255, 54 S.Ct. 704 (<HOLDING>); Frazee, 98 T.C. at 563 (“Property should be Holdings: 0: holding merely that to the extent a breaching party claims that the appropriate measure of damages is the difference between the contract price and the market price it holds the burden of proving that there is in fact an available market for the goods in issue 1: holding determination of property value in case to decide if assessed value was excessive is not a liquidated demand where only evidence of property value was the conclusory allegation of value in plaintiffs unsworn petition 2: holding that 19 usc  1677bf2 and 3 as well as the legislative history of the major input rule support commerces decision to use the highest of transfer price cop or market value to value the major inputs that the producer purchased from the affiliated supplier 3: holding highest and best use is to be considered to the full extent that the prospect of demand for such use affects the market value 4: holding that a landowner could recover for placement of a median strip that could not have occurred but for the taking of the landowners property because the inquiry is how much has the particular public improvement decreased the fair market value of the property taking into consideration the use for which the land was taken and all the reasonably probable effects of its devotion to that use


Input: to trial while related criminal charges were also pending against him. We find no constitutional violation and affirm. I. In June of 2004, the South Carolina Department of Social Services brought a removal action against Michelle Walter, Ricardo Pagan, and William Nelson alleging that Walter and Pagan left Jane Doe, a sixteen-year-old female, in the custody of Nelson, who sexually abused her and allowed her to smoke marijuana. At the family court probable cause hearing, Nelson appeared with counsel and raised concerns that he might not be able to testify due to pending criminal charges. The family court denied the request to hold the family intervention action in abeyance pending resolution of the criminal charges. A trial was held, and the family court found that Nelson (3rd Cir.1988) (<HOLDING>); Wimmer v. Lehman, 705 F.2d 1402, 1406-1407 Holdings: 0: 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 1: recognizing the inherent anxiety associated with pending criminal charges 2: holding there was no constitutional requirement that the administrative hearing be postponed pending disposition of the criminal charges 3: holding that there is no constitutional right to appeal a criminal conviction 4: holding that no liberty interest existed when plaintiff was kept in administrative confinement for two months pending the resolution of criminal charges arising from an altercation with a corrections officer


Input: Stacy, while not fully identified, was not an anonymous tipster as Defendant claims; rather, she was much closer to being a disinterested "citizen-informant" and, hence, more reliable. See Street, 2011 UT App 111, ¶¶ 10-11 251 P.3d 862. 117 While we conclude that the informant here was not anonymous, we also consider whether she had a sufficient basis of knowledge for reporting that the individuals parked in the green car behind her building were "smoking drugs." See Saddler, 2004 UT 105, ¶ 11, 104 P.3d 1265. We have observed that "[mJembers of the general public have a common knowledge about whether a person is under the influence of alcohol." Street, 2011 UT App 111, ¶ 13, 251 P.3d 862 (citation and internal quotation marks omitted). Thus 4, TOL N.Y.S.2d 395 (N.Y.App.Div.) (<HOLDING>), cert.. denied, 95 N.Y.2d 795, 711 NY.S.2d Holdings: 0: holding in the context of vehicular searches that the fact that cm agent familiar with the odor of marijuana smelled such an odor emanating from an automobile  alone was sufficient to constitute probable cause for a subsequent search for marijuana 1: holding that although pcp has no odor because streetlevel pcp is mixed with other substances that have a distinct odor an officers recognition of that odor was sufficient to establish probable cause 2: holding the odor of an etherlike substance in combination with other circumstances gave officers probable cause to search a vehicle 3: holding that because marijuana has a distinct smell the odor of marijuana alone can satisfy the probable cause requirement to search a vehicle or baggage 4: holding that a smell associated with pcp was enough to establish probable cause


Input: as gatekeeper and provides some general standards that the trial court must use to assess the reliability and helpfulness of proffered expert testimony.”). In any event, expert testimony, whether experience based or strictly scientific, must be reliable. As explained by the Ninth Circuit, where the expert opinion is not a product of independent research unrelated to the current lawsuit, “the party proffering it must come forward with other objective, verifiable evidence that the testimony,” is reliable. Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1317-18 (9th Cir.1995) (“Daubert II”) (Ninth Circuit opinion on remand from Daubert v. Merrel Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)); see also, Cabrera v. Cordis, 134 F.3d 1418, 1422-23 (9th Cir.1998) (<HOLDING>); Fed.R.Evid. 702, Advisory Committee Notes Holdings: 0: holding that the admission of expert testimony was prejudicial where the testimony was pervasive 1: holding expert testimony properly excluded under daubert where testimony was prepared solely for litigation lacked any supporting research and there was no showing of support for witness conclusions in peerreview articles or any outside research 2: holding any error in admitting testimony of expert witness was harmless because it was cumulative of same testimony given by six other expert witnesses who testified at trial 3: holding a proffer of testimony is required to preserve the issue of whether testimony was properly excluded by the trial judge and an appellate court will not consider error alleged in the exclusion of testimony unless the record on appeal shows fairly what the excluded testimony would have been 4: recognizing inherent methodological limitations in all socialscience research particularly sexualharassment research nevertheless holding such expert testimony admissible


Input: motion for summary judgment. See Delapaz v. Richardson, 634 F.3d 895, 900 (7th Cir.2011). More critically, the record does reveal that the area of Harney’s arrest was in an area shared by all of the tenants of the condominium building. Absent certain particular facts not alleged here, there is no reasonable expectation of privacy in common areas of multiple dwelling buildings. See, e.g., United States v. Villegas, 495 F.3d 761, 767-68 (7th Cir.2007) (finding no reasonable expectation of privacy in the common hallway of a duplex building); United States v. Espinoza, 256 F.3d 718, 723 (7th Cir.2001) (noting that tenants in a multi-family building lack a reasonable expectation of privacy in common areas of the building); United States v. Concepcion, 942 F.2d 1170, 1172 (7th Cir.1991) (<HOLDING>). Moreover, the fact that a gate barred — to Holdings: 0: recognizing record supported determination that defendant lacked expectation of privacy in house 1: holding that the defendant lacked a reasonable expectation of privacy in an apartment bmldings common entrance 2: holding that defendant lacked reasonable expectation of privacy in garbage located outside curtilage of home 3: holding that defendants lacked a reasonable expectation of privacy in common area of residential building 4: holding that defendants had no reasonable expectation of privacy in the common areas of an apartment building


Input: of a recent Supreme Court case is at stake. When this circumstance arises, it makes no sense to treat the timeframe as mandatory for one application but not another. That would result in two applications which are identical on the merits having opposite outcomes based on the date each application was filed. And the same would be true when a Court of Appeals certifies to the Supreme Court a question that would decide an application to file a second or successive motion. See Felker v. Turpin, 518 U.S. 651, 667, 116 S.Ct. 2333, 2341-42, 135 L.Ed.2d 827 (1996) (Souter, J., concurring). In these cases, the unique procedural posture of an application might make it impractical to properly decide an issue in 30 days. In the same way, it makes no sense here to disp 1517, 137 L.Ed.2d 771 (1997) (<HOLDING>). 6 . The Sixth and Seventh Circuits have held Holdings: 0: holding that the rule announced in espinosa v florida 505 us 1079 112 sct 2926 120 led2d 854 1992 per curiam doesnt apply retroactively on collateral review 1: holding that the rule announced in cage v louisiana 498 us 39 111 sct 328 112 led2d 339 1990 per curiam doesnt apply retroactively on collateral review 2: holding that the rule announced in ring v arizona 536 us 584 122 sct 2428 153 led2d 556 2002 doesnt apply retroactively on collateral review 3: holding that the rule announced in mills v maryland 486 us 367 108 sct 1860 100 led2d 384 1988 doesnt apply retroactively on collateral review 4: holding that the rule announced in simmons v south carolina 512 us 154 114 sct 2187 129 led2d 133 1994 doesnt apply retroactively on collateral review


Input: less than forty-five days before the runoff, and the transmittal of the SWAB alone fails to provide UOCAVA voters with the necessary candidate information to satisfy the purpose of UOCAVA. Thus, considering the above, the Court finds that the United States is entitled to the declaratory judgment it seeks. The Court also find that the presence of irreparable harm, necessary for the entry of a permanent injunction. Irreparable harm occurs when a UOCAVA voter is denied the right to receive a sufficient absentee ballot in accordance with the provisions of § 1973ff-l(a)(8). The Supreme Court has consistently recognized that the right to vote is essential to the United States’ form of government. See, e.g., Bartlett v. Strickland, 556 U.S. 1, 10, 129 S.Ct. 1231, 173 L.Ed.2d 173 (2009) (<HOLDING>); Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. Holdings: 0: holding that the right to drive is not a fundamental right 1: holding right to be fundamental 2: holding that the right to vote is fundamental 3: holding that a fair referendum assuring the equal right to vote under  101a1 includes the right of members to have the vote scheduled at a time when they can exercise their vote and the right to be free from intimidation or fear of reprisal 4: recognizing that a criminal defendants right to a fair trial is fundamental


Input: user to attach a card transfer device to the top pipette tip holder card and carry the transfer device using the user’s thumb and forefinger. Meyst does not explain how a user can accomplish this task without grasping and holding the pipette holder card and transfer device from its center, which is impossible with the three hypothetical designs. Second, because all three alternatives have open sides, nothing prevents the stacked and nested pipette tip cards from slipping or tipping out of the container, particularly during card transfer. In sum, Meyst’s hypothetical alternatives actually uncover the essential functional characteristics of the Continental design. For these reasons, the Court concludes that Continental has failed to provide evidence such that a reasonable jury co 1984) (<HOLDING>). 2 . Previous orders and motions referred to Holdings: 0: holding that in computing time to determine whether an act was performed within a specified period of time under the statute of limitations the first day is excluded and the last day of the period is included 1: holding that there is no exception to rule 322c and that the limitations period is jurisdictional 2: holding that district court has limited authority under rule 59 to alter or amend judgment sua sponte so long as court acts within 10 days of entry of judgment 3: holding statute of limitations is not jurisdictional and can be waived by a voluntary plea of guilty 4: holding that 10 day period under rule 59 is jurisdictional and cannot be waived by the district court


Input: necessary to establish a price discrimination claim under 15 U.S.C. § 13(a). Their complaint’s “civil conspiracy” claim does not mention price, let alone that different prices were charged to different SCTC customers—but focuses instead on SCTC’s “avoiding state tobacco escrow payments and state taxes.” See Complaint, ROA at 14-16; see also Cont'l Baking Co. v. Old Homestead Bread Co., 476 F.2d 97, 103 (10th Cir.1973) (defining “price discrimination” as “price differentiation, or the charging of different prices to different customers for goods of like grade and quality”). In addition, plaintiffs allege no facts regarding competition in their market or among SCTC’s competitors. See Volvo Trucks N. Am. v. Reeder-Simco GMC, Inc., 546 U.S. 164, 126 S.Ct. 860, 163 L.Ed.2d 663 (2006) (<HOLDING>); Brooke Group Ltd. v. Brown & Williamson Holdings: 0: holding that for a plaintiff to establish secondaryline competitive injury resulting from price discrimination injuring competition among the discriminating sellers customers the plaintiff must show actual competition with that sellers customers 1: holding that unfair practices under  202 are not confined to those where competitive injury has already resulted but includes those where there is a reasonable likelihood that the purpose will be achieved and that the result will be an undue restraint of competition 2: holding that though we do not have exclusive jurisdiction over unfair competition claims our own circuit law nonetheless determines when inequitable conduct also constitutes unfair competition 3: holding that the determinative question in applying common law tort of unfair competition is whether the tortfeasors practices are likely to mislead customers into believing that the product emanates from or has been endorsed by the claimant 4: holding to establish a prima facie case of racial discrimination a plaintiff must show he 1


Input: of this case. In Arkansas-Platte & Gulf Partnership v. Van Waters & Rogers, Inc., 981 F.2d 1177 (10th Cir.1993), cert. denied, — U.S. —, 114 S.Ct. 60, 126 L.Ed.2d 30 (1993), the Tenth Circuit applied Cipollone in holding that the Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”) pre-empted state common law as well as statutory law. Id. at 1179. FIFRA provided that states “shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from [the federal requirements.]” 7 U.S.C. § 136v(b). The court held that “a common law duty is no less a ‘requirement’ in the preemption scheme than a state statute imposing the same burden.” Arkansas-Platte & Gulf, 981 F.2d at 1179. See also Kolich v. Sysco Corp., 825 F.Supp. 959 (D.Kan.1993) (<HOLDING>). The operative language used by APHIS is that Holdings: 0: holding fifra preempts implied warranty claims 1: holding that fifra preempts state law failure to warn claims 2: holding that fifra preempts breach of warranty claims based on labeling 3: holding fifra preempts no commonlaw claims 4: holding fifra preempts inadequate label claims but not claims for failure to warn through other channels


Input: than material misstatements. Central Bank itself references all three subsections of the statute, and describes “employ[ment of] a manipulative device” and “commit[ting] a manipulative or deceptive act,” as primary violations. 511 U.S. at 191, 114 S.Ct. 1439. SEC v. Zandford, a more recent case, underscores the principle that “the statute should be construed not technically and restrictively, but flexibly to effectuate its remedial purposes.” 535 U.S. 813, 122 S.Ct. 1899, 1903, 153 L.Ed.2d 1 (2002) (internal quotations omitted). “Neither the SEC nor [the Supreme] Court has ever held that there must be a misrepresentation about the value of a particular security in order to run afoul of the Act .... Congress meant to bar deceptive devices and cont 117 S.Ct. 2199, 138 L.Ed.2d 724 (1997) (<HOLDING>); Superintendent of Ins. of N.Y. v. Bankers Holdings: 0: holding that a person violates  10b and rule 10b5 when he misappropriates confidential information  in breach of a duty owed to the source of the information 1: holding that insider trading based on material nonpublic information qualifies as a deceptive device under  10b 2: holding that selling securities while secretly never intending to honor them is a  10b violation 3: holding that secretly using misappropriated confidential information for trading purposes to be  10b violation 4: holding records did not qualify as exempt confidential commercial information under exemption 4 because the information was not actually confidential


Input: questions before the Court. McNary held the district court to have jurisdiction largely because no de novo review was available. Thus: the abuse-of-discretion standard of judicial review under § 210(e)(3)(B) would make no sense if we were to read the Reform Act as requiring constitutional and statutory challenges to INS procedures to be subject to its specialized review provision. Although the abuse-of-discretion standard is appropriate for judicial review of an administrative adjudication of the facts of an individual application for SAW status, such a standard does not apply to constitutional or statutory claims, which are reviewed de novo by the courts. Id. at 493, 111 S.Ct. at 897; see also Reno v. Catholic Social Servs., 509 U.S. 43, 56, 113 S.Ct. 2485, 2495, 125 L.Ed.2d 38 (1993) (<HOLDING>); Rahim, 827 F.Supp. at 228; Wang v. Reno, 862 Holdings: 0: holding that because the circuit court did not have subjectmatter jurisdiction over the unlawfuldetainer action the district courts unauthorized transfer of the action could not transfer jurisdiction over that action to the circuit court 1: holding that the federal district court had no subject matter jurisdiction to review the courts denial of a particular application for admission to the district of columbia bar 2: recognizing district court application of the same rule 3: holding similar language to mandate district court jurisdiction over an action challenging the legality of a regulation without referring to or relying on the denial of any individual application 4: holding jurisdiction over an individual may not usually be predicated on jurisdiction over a corporation unless the corporation is the alter ego of the individual or when the individual perpetrates a fraud


Input: with respect to civil proceedings. The D.C. Circuit has neither recognized nor rejected that the First Amendment affords the public a right of access to civil proceedings. The government interprets the D.C. Circuit’s silence as a denial of the right. Quoting Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, the government argues that the D.C. Circuit has never “indicated that it would apply the [First Amendment right-of-public-access] test to anything other than criminal judicial proceedings.” 331 F.3d 918, 935 (D.C.Cir.2003). In Ctr. for Nat’l Sec. Studies, however, the third party was not seeking access to judicial records in civil proceedings; rather, it sought Department of Justice investigation information on individuals detained for immigration violations. 331 F.3d at 934-35 (<HOLDING>). The Court is unaware of any D.C. Circuit Holdings: 0: holding that the first amendment secures for the public and the press a right of access to civil proceedings 1: recognizing common law right of access to judicial documents 2: recognizing that first amendment provides qualified right of access to judicial documents 3: holding that the first amendment right of public access does not extend to nonjudicial documents compiled during an executive branch investigation 4: holding that there is no right of public access to documents considered in civil discovery motions


Input: as a ‘present sense impression’ under Rule 803(1).” Id. We explained that the victim’s “911 call was placed with sufficient contemporaneity to the underlying events to be admissible under Rule 803(1).” Id. Specifically, we noted that the occupants of the apartment adjacent to the victim’s apartment placed a 911 call prior to the victim’s call, complaining about a disturbance in the victim’s apartment. Id. The victim then placed her 911 call seven minutes later from a nearby store, stating that “ ‘my husband just pulled a gun out on me.’” Id. (citation omitted). We pointed out that “[o]ther courts have held in similar circumstances that statements on 911 tapes are admissible as a present sense impression.” Id. (citing United States v. Mejia-Valez, 855 F.Supp. 607 (E.D.N.Y.1994) (<HOLDING>); United States v. Campbell, 782 F.Supp. 1258, Holdings: 0: holding that evidence of recklessness by one officer in events leading up to shooting was immaterial in evaluating objective reasonableness of shooting officers decision to use deadly force in the situation he faced at time of shooting 1: holding statements on 911 tape admissible as present sense impression where call was made almost immediately after the defendant left the store after a shooting incident 2: holding statement made twentythree minutes after event admissible as a present sense impression 3: holding that under certain circumstances statements on a 911 tape may be admissible as a present sense impression 4: holding that tapes of two 911 calls the first 2 to 3 minutes after the shooting and the other approximately 16 minutes after shooting were sufficiently contemporaneous with the event and therefore admissible as present sense impressions


Input: situated employees differently is an “accepted consequence of the discretion granted” to the City as an employer. Id. at 603, 128 S.Ct. 2146. Plaintiffs could have proceeded under a standard equal protection theory based on membership in a class. After all, CFD exempt employees are a readily discernible class, and the City adopted a blanket policy that denied this class the early retirement benefit. Plaintiffs do not oppose summary judgment on this basis, however. This suggests, perhaps, that plaintiffs did not believe that they had a basis to sustain their claim under the rational basis test. Indeed, other courts have found a rational basis for personnel decisions analogous to this one. See, e.g., Confederation of Police v. City of Chicago, 481 F.Supp. 566, 568 (N.D.Ill.1980) (<HOLDING>). Finally, in their response to.the summary Holdings: 0: holding that disclosure of grandjury testimony of city employees was proper because they cannot be expected to have any personal privacy interest in their duties as city employees 1: holding that the scope of a government employees first amendment rights depends on the balance between the interests of the employee as a citizen in commenting upon matters of public concern and the interest of the state as an employer in promoting the efficiency of the public services it performs through its employees 2: holding even in context of employee manual that policy which included agreement to provide annual salary increase of five percent did not constitute contract between city and employees and distinction between atwill employees and public employees was not dispositive in this context 3: holding that probation department employees are not county employees 4: holding that the difference in compensation and benefit packages between police officers and other city government employees was justified by the functional differences between the employees and concluding that sjurely the court should not sit as a board of review for every decision of a state agency concerning employment conditions for different classes of government employees


Input: negligence.” One such case was Esposito: While operating a Century Village “trolley” bus, Esposito struck and killed an elderly woman crossing in a pedestrian walkway. The victim, walking slowly with a four pronged cane, had stepped off the median and was struck by the center of the bus at about the halfway point in the crosswalk. There is evidence that Esposi-to had an unobstructed view with no distracting conditions_ Witnesses ... stated that the driver should have seen her crossing and had ample opportunity to stop. ... The crosswalk was ... heavily traveled. There is a pedestrian warning sign posted and pedestrians in the crosswalk have the right of way. The bus was in good working order. 642 So.2d at 26. Esposito’s conviction for vehicular homicide was reversed. See W.E.B. (<HOLDING>). But see Hamilton v. State, 439 So.2d 238 Holdings: 0: holding that vehicular homicide involving criminal negligence is not a crime of violence under begay 1: holding that under the particular facts alleged in the indictment vehicular homicide was a lesser offense included in the murder charge 2: recognizing that dui manslaughter and vehicular homicide are two separate crimes neither being a lesser included offense of the other but holding that a single death cannot support convictions for both crimes 3: holding that dwi manslaughter and vehicular homicide are different forms of the same offense 4: holding that speeding defendant who after drinking beer drove onto shoulder overcorreeted and caused fatal collision in oncoming drivers lane was not guilty of vehicular homicide


Input: it so as to cause water to pool and form ice; and (4) failing to give notice of the hazardous icy walkway. Lloyd died (from unrelated causes) during the pendency of these proceedings, and the district court substituted Lloyd’s estate. The parties tried the case to a jury, which found the city was not at fault. The district court overruled Hoskinson’s motion for new trial. II. The issues. The plaintiffs contend the district court erred in concluding that the walkway in question is not a “sidewalk” under Iowa Code section 364.12(2)(b) (Supp.1995). They also contend the district court erred in instructing the jury on municipal immunity under Iowa Code section 668.10. III. Scope of Review. The manner in which we review a denial of a motion for new trial dep , 106 A. 203, 203, 204 (1919) (<HOLDING>); Blackburn v. Dillon, 189 Tenn. 240, 241, 225 Holdings: 0: holding that in a city or town a sidewalk is that part of a street or highway that is intended or used by pedestrians 1: holding that sidewalk is that part of a street that has been set aside for use by pedestrians 2: holding the term sidewalk denotes that portion of the highway that is set apart by dedication ordinance or otherwise for the use of pedestrians 3: holding that sidewalk is used to designate a portion of highway that has been set aside for pedestrians as distinguished from that which is used by vehicles 4: holding that sidewalk is simply a part of the street set apart for pedestrians


Input: has the burden to show why the defendant’s voluntary absence at the trial after receiving actual notice of the trial date, time, and place, does not constitute a knowing and voluntary waiver of the right to be present. The State does not have the burden of proving that a defendant’s absence is unjustified. To the contrary, a defendant has the burden of proving the absence was justified. Where, as here, the record reflects that a defendant was informed in court of the time and place of trial, and he or she fails to appear and also fails to file the appropriate motion challenging the waiver, the failure to make the appropriate motion before the trial court constitutes a second waiver pursuant to Rule 3:16(b). See State v. Butler, 278 N.J.Super. 93, 101, 650 A.2d 397 (App.Div.1994) (<HOLDING>). We also reject as impractical, the Appellate Holdings: 0: holding that another courts decision is a proper subject of judicial notice 1: holding that erisa creates no private right of action 2: holding that a reasonable inference need not be the sole possible inference 3: holding that fraud creates an exception to the rule 4: holding that absence following proper notice creates an inference of waiver


Input: CANCELLATION, or DELIVERY UP of agreements, securities, or deeds is sought....”) (citing Bromley v. Holland, [1802] 7 Ves. Jun. 3(Ch.) at 1» (Eng.) (discussing equity jurisdiction in such cases)). Likewise, the relief requested is, in effect, equitable rescission. See Ballow Brasted O’Brien & Rusin P.C. v. Logan, 435 F.3d 235, 240 (2d Cir.2006) (rescission is an equitable remedy); Standard Chlorine of Del., Inc. v. Leonard, 384 F.2d 304, 308 (2d Cir.1967) (“[I]t is clear that requests for ... rescission have traditionally been considered equitable in nature.”); Mallory v. Citizens Util. Co., 342 F.2d 796, 797 (2d Cir.1965) (action for rescission is “triable by the court,” not the jury); see also Deckert v. Independence Shares Corp., 311 U.S. 282, 284, 61 S.Ct. 229, 85 L.Ed. 189 (1940) (<HOLDING>). Indeed, the Second Circuit has noted that a Holdings: 0: holding that rule 10b4 claims were not automatically assigned to purchasers of securities 1: holding that the wording of  10b making fraud in connection with purchase or sale of security a violation of the act is surely badly strained when construed to provide a cause of action not to purchasers or sellers of securities but to the world at large 2: holding only purchasers and sellers of securities can recover under section 10b and rule 10b5 3: holding that evidence was sufficient to support convictions for willfully engaging in fraudulent conduct in connection with sale of securities because kjnowledge that the act violates the securities laws  is not relevant 4: holding that the securities act authorizes purchasers to maintain a suit in equity to rescind a fraudulent sale and secure restitution of the consideration paid


Input: failure to pay certain federal taxes, the Internal Revenue Service (“IRS”) applied the trust fund penalty, found in 26 U.S.C. § 6672, and assessed a penalty of $1,005,906.01 — including accrued interest as of September 10, 2007— against Johnson. The costs associated with each tax period are as follows: II. STANDARD OF REVIEW The Court may grant summary judgment when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987) (<HOLDING>). Nevertheless, in determining whether there is Holdings: 0: recognizing that the statute of limitations provision of the aedpa is an affirmative defenses rather than jurisdictional 1: recognizing that cases have generally treated statutory exceptions from remedial statutes as affirmative defenses 2: recognizing that trial judges have an affirmative obligation to prevent factually unsupported claims and defenses from proceeding to trial 3: holding that affirmative defenses are waived if not pled 4: holding that the defendant could not raise affirmative defenses initially in its dispositive motion but remanding the case to the trial court to determine if leave to amend answer to incorporate affirmative defenses was appropriate so that the defendant could then properly raise those defenses in its dispositive motion


Input: figure by restating the inventory to a FIFO basis. It had several reasons for not doing so: (1) Sieg’s independent accountants had refused to certify Sieg’s financial statements if inventory was stated on a FIFO basis; (2) Sieg-Fort Dodge’s inventory was obsolescent and slow moving; and (3) Sieg’s internal staff believed, based on their knowledge of Sieg-Fort Dodge’s inventory, that the stated book value of the inventory was accurate. Starting with a figure of $30.96, Si dge had continued to deteriorate in the year following this sale, the directors concluded the stock was worth less at the time of the merger than it had been worth a year earlier. Finally, they relied on offers made by one Sid Fisher, who was pressuring Sieg to sell Sieg-Fort Dodge for “pennies on the dollar.” See id. (<HOLDING>). We conclude there is substantial evidence to Holdings: 0: holding void shares issued in excess of the amount of common shares authorized in the articles of incorporation 1: holding that the failure to place a dollar value on a possible decrease in property value was not unreasonable 2: holding preliminary offer tended to prove the lowest possible value of the shares 3: holding determination of property value in case to decide if assessed value was excessive is not a liquidated demand where only evidence of property value was the conclusory allegation of value in plaintiffs unsworn petition 4: holding that defendant must prove when the services were rendered to establish that the new value exception applies


Input: the two calendar years preceding the calendar year in which the petition was filed. R.68 ¶¶ 20-21. Segal provided this explanation only in an opposition brief filed by counsel; he did not submit an affidavit to this effect. 8 . Segal also asserted claims for fraud and civil conspiracy based on the Guarantors’ alleged forgery of Segal’s signature on the release. 9 . The Bankruptcy Court’s April 3, 2013, Order approving the Trustee’s application to employ special litigation counsel was the subject of a previous appeal, which this Cou le, in which the Supreme Court held claims for loss-carryback tax refunds based on losses suffered and net income taxes paid by the debtors before they filed for bankruptcy protection were property of the debtors’ estates. See 382 U.S. at 380, 86 S.Ct. 511 (<HOLDING>). Although Segal was decided under the Holdings: 0: holding that because the purpose of the bankruptcy code is to give honest debtors a fresh start the language of section 523a1c includes attempts by a debtor to evade payment of taxes 1: holding that because the amount of the debtors obligation to the government exceeded the amount of their income tax refund the refund did not become property of the estate and could not be exempted 2: holding that a taxpayer only has a refund right after the irs has credited the refund to other underpaid taxes therefore the refund was not part of the bankruptcy estate 3: holding the losscarryback refund claims were sufficiently rooted in the prebankruptcy past and so little entangled with the bankrupts ability to make an unencumbered fresh start that they should be regarded as property under  70a5 of the bankruptcy act 4: holding that an anticipated tax refund was property of the bankruptcy estate as of the date the bankruptcy case was filed


Input: ostensible use — here, the number of heaters sold — necessarily relevant. The Lanham Act provides that “ ‘[u]se’ of a mark means bona fide use of such mark made in the ordinary course of trade.” 15 U.S.C. § 1127 (emphasis added); see Blue Bell, Inc. v. Jaymar-Ruby, Inc. 497 F.2d 433, 437 (2d Cir.1974) (noting the “clear line of decisions holding that the use must be bona fide, with token transactions accepted only where there is an accompanying intent to engage in commercial use in the future”); accord Exxon Corp. v. Humble Exploration Co., 695 F.2d 96, 101 (5th Cir.1983) (“The [Lanham] Act does not allow the preservation of a mark solely to prevent its use by others.”); cf. O’Connor & Gordon, Inc. v. Handicraft Publ’ns, 206 Misc. 1087, 1089-90, 136 N.Y.S.2d 558, 560 (N.Y.Sup.Ct.1954) (<HOLDING>). An effort to dispose of the remaining stock Holdings: 0: holding that under new york state law purely pro forma use intended only to acquire rights is not bona fide 1: holding that new york law applies to this matter 2: holding that new york law did not preclude an arbitrators award of punitive damages despite a new york choice of law provision because there was no indication in the contract that the parties intended to limit their remedies in arbitration 3: holding jurisdiction over nonresident defendant existed where note was payable in new york contained new york choice of law clause and proceeds were used to finance new york limited partnership 4: holding that contract signed in new york by promisor from florida and partially performed in florida was governed by new york law because it was executed in new york


Input: that continuing these plaintiffs on administrative leave would elicit a public outcry. See Lineback v. Printpack, Inc., 979 F.Supp. 831, 849-50 (S.D.Ind.1997) (chastising employer for tendering “no evidence that its customers ... would be outraged by a court-ordered reinstatement”). Moreover, the court finds it difficult to believe that delaying the plaintiffs’ terminations — which, it bears noting, have been pending for over a year — until the court can address the pending dispositive motions would impose any great hardship on the defendant. See Natural Res. Defense Council, Inc. v. U.S. Army Corps of Eng’rs, 457 F.Supp.2d 198, 236 (S.D.N.Y.2006) (emphasizing minimal financial prejudice from delay of a few months); Silva v. Univ. of New Hampshire, 888 F.Supp. 293, 326 (D.N.H.1994) (<HOLDING>). Nevertheless, the defendant has submitted Holdings: 0: holding that the debtors knowing act of failing to obtain workers compensation insurance so that the employer owed an employee a debt after the employee suffered a workplace injury was not the sort of willful and malicious injury required for nondischargeability under  523a6 because it cannot not be said that the employer intended for the employee to suffer a fall or that there was an unbroken chain of events leading from the employers intentional act to the employees physical injury 1: holding that a notice recommending termination of an employee to the board without notice to the employee of employees right to attend and dispute the claims violated due process 2: recognizing that due to the inequality of bargaining power the brunt of injury from termination falls on the employee rather than the employer 3: holding that res judicata properly barred claims based on an employers decision to terminate an employee because the termination was not a fresh act of discrimination rather it was the same decision not to allow the employee to return to work that the employee had challenged previously 4: holding that a termination of benefits must go handinhand with a termination of the liability of an employer


Input: [¶ 26] In support of his argument, Muhle asserts that the “new statements by G.E.” just before trial were favorable to the defendant in that they were completely inconsistent with G.E.’s prior interviews, that Muhle would have been able to better prepare for cross-examination and his testimony if he had known of the inconsistency, and that he had “no way to anticipate this new evidence.” [¶ 27] The United States Supreme Court has held evidence that can be used to impeach a witness is subject to disclosure under Brady. See Strickler v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (stating that the duty under Brady “encompasses impeachment evidence as well as exculpatory evidence”); United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (<HOLDING>). See, e.g., Spicer v. Roxbury Correctional Holdings: 0: holding evidence not to be material within the meaning of brady when the evidence did not eliminate the defendant as the perpetrator 1: holding impeachment evidence falls within the brady rule 2: holding that the alleged brady material was merely cumulative to the significant impeachment that already occurred during trial so there was no prejudice for a brady violation 3: holding that the prosecutors nondisclosure of material evidence affecting a witnesss credibility which goes uncorrected falls within the requirements of brady 4: holding that an admission  falls under the rule of completeness


Input: not enforce contracts made in contravention of the law or public policy of this State. See Woolsey v. Panhandle Refining Co., 131 Tex. 449, 116 S.W.2d 675 (1938); Dodd v. Harper, 670 S.W.2d 646, 650 (Tex.App.—Houston [1st Dist.] 1983, no writ); cf. Baron v. Mullinax, Wells, Mauzy & Baab, Inc., 623 S.W.2d 457 (Tex.App.—Texarkana 1981, writ ref’d n.r.e.). We therefore hold that the contract for the release and settlement of the Quinteros’ cause of action is void and unenforceable. In so holding, we are well aware that the Court of Criminal Appeals has adopted a different approach to violations of the Code of Professional Responsibility as the Code relates to criminal matters. See Henrich v. State, 694 S.W.2d 341 (Tex.Crim.App.1985); Pannell v. State, 666 S.W.2d 96 (Tex.Crim.App.1984) (<HOLDING>). See also Holt v. State, 683 S.W.2d 92 Holdings: 0: holding that a violation of the rules of professional conduct may not be used as evidence and citing terry cove north for the proposition that the sole remedy for a violation of the rules of professional conduct was the imposition of disciplinary measures 1: holding that the disciplinary rules of the code of professional responsibility are not laws of the state of texas for purposes of statute which excludes the admission of evidence obtained in violation of law 2: holding that in the absence of compliance with the code of professional responsibility a charging lien will not be granted 3: holding that a breach of the rules of professional conduct would not justify setting aside a divorce judgment and citing terry cove north for the proposition that the sole remedy for a violation of the rules of professional conduct was the imposition of disciplinary measures 4: holding that the rules of professional conduct are selfimposed internal regulations and do not play a role in determining the admissi bility of evidence and citing terry cove north for the proposition that the sole remedy for a violation of the rules of professional conduct was the imposition of disciplinary measures


Input: properly within the province of the” Legislature. See State v. Allen, 359 N.C. 425, 615 S.E.2d 256, 272 (2005). The court also observed that until its decision “no two state supreme courts [had] resolved Blakely issues in the same manner.” Id. at 271 n. 7 (summarizing the results in a number of recent cases). {53} We recognize that a majority of state supreme courts have reasoned as did the Court of Appeals in Frawley that Blakely’s discussion of the relevant statutory minimum within Washington’s sentencing scheme requires a state court to equate the presumptive sentence in a determinate sentencing scheme with the punishment authorized by the jury’s verdict. See, e.g., Natale, 878 A.2d at 737-38 (summarizing the varying conclusions); Smylie v. State, 823 N.E.2d 679, 682-84 (Ind.2005) (<HOLDING>). We are more persuaded by the reasoning of the Holdings: 0: holding that appellant properly preserved booker claim by citing blakely in his written objections to the psi and reminding the court at sentencing of his blakely objection 1: holding that blakely does not apply to the federal sentencing guidelines 2: holding blakely not retroactive 3: holding that a sixfold increase in sentence involved no enhancement of sentence because harrisonphilpot was charged and convicted of conspiracy the extent of the conspiracy caused the tremendous increase in her sentence 4: holding an increase in the sentence above the presumptive term in indianas sentencing scheme unconstitutional under blakely


Input: light-blue suit [Princess Diana] wore when she was presented with her signature flower” and “[c]ompletely accessorized with [a] purse and a tiny bouquet of Princess of Wales Roses” that Princess Diana carried on the same occasion. But it is far simpler (and more likely to be understood) to juxtapose — as Franklin Mint also did — a picture of the doll and a photograph of Princess Diana wearing the same suit and carrying the same purse and the same bunch of flowers. We therefore hold that Princess Diana’s physical appearance is not readily identifiable without the use of her likeness. Thus, the first element of the New Kids nominative fair use test is met. The second element of the New Kids n laintiffs product” differs from case to case. Compare Playboy Enters., Inc., 279 F.3d at 804 (<HOLDING>), with Mattel, Inc. v. MCA Records, Inc., 28 Holdings: 0: holding that a former employee was not entitled to recover a yearend bonus from his former employer where no definite sum of money or percentage of profits was promised and where the employee left the company before the end of the fiscal year in question 1: holding that the former wife did not waive her attorneyclient privilege simply because the credibility of her claim that she relied on her husbands representations could be impeached by deposing her former attorney 2: holding that the fact that the former wife lost on an issue which is not spurious does not mean that she could not be a candidate to receive attorneys fees from the former husband 3: holding that the government did not present sufficient evidence to support a guilty verdict in a  2251 case because the government did not provide evidence to prove that the defendant intended to create a visual depiction of the sexual conduct 4: holding that the repeated depiction of pmoy 81 is not necessary to describe a former playmate of the year on her website


Input: action a claim for nominal damages based on assertion that statements were “demonstrably false”). This Court finds that in light of the length of the unexcused delay, the prejudice that results from the motion practice completed and the need for additional discovery and motion practice to address a fraud claim (or the inability to do the same) is sufficient to warrant denial of Plaintiffs’ cross-motion. Of course, a defense of fraud, which Plaintiffs have already alleged, might mitigate the prejudice if such a defense were valid. In that event, Defendants could suffer little prejudice in having to litigate as a claim precisely the same legal issue that they would already have to confront as a defense. However, in this case, Plaintiffs’ defense of fraud is clearl 88 (N.Y.App.Div.1940) (<HOLDING>); cf. McKeon v. Prudential Lines, Inc., 108 Holdings: 0: holding that immunity from suit precluded claim for breach of contract for sale of county property and request for specific performance of contract 1: holding that plaintiffs were not entitled to an action for recision on contract for sale of real property based on fraud when they had treated contract as valid for more than a year after discovering the fraud 2: holding that an attorney approval clause in a contract for the sale of real estate was a part of that contract and would have to be satisfied for the underlying contract to be enforceable 3: holding that the legal title holders to real property held it in constructive trust for the equitable title holder who was entitled to the real property based on an earlier contract 4: holding that the validity of a contract for a commission for the sale of real estate is determined by the law of the state where the contract is made


Input: not an element of the crime under § 841; the statute is not susceptible to a contrary interpretation.”). Even if its intent were unclear, to conclude that, in light of Apprendi, Congress would have intended drug quantity to be an element of the offense “would be to proceed in an essentially legislative manner for the definition and specification of the criminal acts.” Evans, 333 U.S. at 490-91, 68 S.Ct. 634. This is a task outside the bounds of judicial interpretation. It is better for Congress, and more in accord with its function, to revise the statute than for us to guess at the revision it would make. That task it can do with precision. We could do no more than make speculation law. Id. at 495, 68 S.Ct. 634; United States v. Hudson, 11 U.S. (7 Cranch) 32, 32-33, 3 L.Ed. 259 (1812) (<HOLDING>). Ultimately, the solution of what a Holdings: 0: holding union members state law claims for defamation against union preempted 1: holding that it is the legislative authority of the union that must  make an act a crime 2: recognizing that union members interests are adequately represented by the union 3: holding that a union officials comments may be used to infer the object of union activity 4: holding that a rico action by union members was properly dismissed where any financial improprieties occurred with union funds and directly injured solely the union


Input: Judge Donahoe did not find beyond a reasonable doubt that Trombi had engaged in willfully contemptuous conduct. We therefore uphold the civil contempt sanction to pay the court $2,000, but vacate the remaining sanctions, without prejudice to further proceedings consistent with this opinion. CONCURRING: LAWRENCE F. WINTHROP and MICHAEL J. BROWN, Judges. 1 . We cite the current version of the statute because the portions material to this opinion have remained unchanged. 2 . Trombi did not seek a stay of the contempt ruling in this court. 3 . A.R.S. § 31-225 (2002) also provides for the transport of state prisoners by the sheriff upon order of the court. 4 . Courts also have inherent contempt power. Owen v. City Court of City of Tucson, 123 Ariz. 267, 268, 599 P.2d 223, 224 (1979) (<HOLDING>). 5 . Pursuant to the Arizona Constitution, Holdings: 0: holding that this court has inherent as well as express statutory authority to punish for contempt 1: holding that in addition to statutory contempt powers city courts have inherent contempt power 2: recognizing inherent power of supreme court independent of statutory authority to punish for contempt of court 3: recognizing civil contempt power under  105a 4: holding evidence insufficient to show direct contempt and no basis for indirect contempt because of failure to meet procedural requirements


Input: 29 C.F.R. §§ 825.305-308. With respect to Defendant’s liability in the instant ease, the Court concludes that there is a genuine issue of material fact at least as to whether Plaintiff was entitled to leave under the FMLA at the time of his termination. See 29 U.S.C. § 2612; 29 C.F.R. § 825.114. Therefore, summary judgment as to Claim III is inappropriate. With respect to the available affirmative defenses, Defendant argues that Plaintiff failed to provide sufficient notice for his absences under the FMLA, and therefore, he is precluded altogether from seeking its protections. Plaintiff is not required, however, to specify that his request for leave is covered by the FMLA in order to come within its provisions. See Manuel v. Westlake Polymers Corp., 66 F.3d 758, 761-64 (5th Cir.1995) (<HOLDING>); see also 29 C.F.R. § 825.303 (setting out Holdings: 0: holding that the employees reference to his mental condition did not constitute the requisite notice of an intent to invoke fmla leave 1: holding that an employee requesting unforeseeable medical leave is not required to even mention the fmla when requesting leave for a serious health condition 2: holding that both the cfra and the fmla require the employee to provide notice to the employer of the employees intent to take leave 3: holding that an employee who did not present evidence that she could have returned to work prior to the expiration of her fmla leave allowance was not entitled to additional leave merely because her employer had not properly provided her with notice that the leave was designated as fmla leave 4: holding that employers oral denial of plaintiffs request for fmla leave showed interference