Input: and battery occurs “when a person is placed in imminent apprehension of harmful or offensive bodily contact and there is an actual use of force.” Cohen v. Davis, 926 F.Supp. 399, 402 (S.D.N.Y.1996) (citing 6 N.Y. Jur.2d § 1). Plaintiff has established that he was in “imminent apprehension” that the officers would eng entional. However, where there has been a lawful arrest, intentional contact with the arrested person does not constitute assault and battery, provided such force is reasonable. See, e.g., Lorensen v. State, 249 A.D.2d 762, 671 N.Y.S.2d 790 (3d Dep’t 1998) (upholding a finding that force used during a lawful arrest was “no more than necessary” in light of the circumstances); Wyllie v. District Atty., of County of Kings, 2 A.D.3d 714, 770 N.Y.S.2d 110 (2d Dep’t 1996) (<HOLDING>). Conversely, when “an arrest is determined to Holdings: 0: holding alvarez and garza were not entitled to judgment as a matter of law on their affirmative defense of limitations when they did not negate the discovery rule in their summary judgment motions 1: recognizing the cause of action 2: holding that whether pleadings fail to state a cause of action may not be resolved by summary judgment 3: holding that state defendants demonstrated their entitlement to summary judgment on the second assault and battery cause of action by demonstrating the reasonableness of their conduct in arresting and transporting the plaintiff 4: recognizing that when a cause of action is reduced to a judgment the cause of action is merged into the judgment and thereafter only an action on the judgment exists


Input: SSA, Plaintiffs have, as a matter of law, failed to establish any of the above elements—ie., an injury in fact, likelihood of future injury, traceability, or redressability. The Court does not agree. On the first element, ie., injury in fact, the Court acknowledges that Judge Patel’s prior orders focused on Plaintiffs’ emotional distress. See Davis Docket No. 26 (Order at 11) (citing Situ v. Leavitt, No. C06-2841 TEH, 2006 WL 3734373, at *4 (N.D.Cal. Dec. 18, 2006)); Doe Docket No. 26 (Order at 17) (citing the same). Con trary to what SSA suggests, many courts have found that emotional distress may constitute an injury-in-fact for purposes of standing. See, e.g., Soobzokov v. Holder, No. 10-6260(DRD), 2011 WL 2293853, at *4, 2011 U.S. Dist. LEXIS 65007, at *11-12 (D.N.J. June 7, 2011) (<HOLDING>); Kennedy v. City of Zanesville, 505 F.Supp.2d Holdings: 0: holding that plaintiff has satisfied the elements of standing because he alleges to have personally suffered emotionally as a result of defendants failure to vigorously investigate and prosecute several suspects for the murder of his father and his request for damages and an independent inquiry into defendants investigation will likely redress his suffering 1: holding that police chiefs son who alleged that he was denied an interview for a position because his father had criticized the local officials did not have standing to assert the first amendment rights of his father 2: holding that even though the plaintiff failed to prove that he suffered a meaningful injury he was nevertheless entitled to nominal damages for the defendants violation of his first amendment rights 3: holding child is entitled to know and be supported financially and emotionally by his or her biological father 4: holding that plaintiff had cared for his father who suffered severe depression after murder of his daughter within meaning of fmla interim regulation because inter alia he discussed with his father grief associated with murder and provided reassuring physical presence to his father


Input: inland wetlands agencies have not been found to be quasi-municipal entities. See Denehy v. Inland Wetlands & Watercourses Comm’n, No. CV940704881 S, 1994 WL 247903, *2 (ConmSuper. May 27, 1994) (unpublished) (finding in an action relating to an administrative appeal that, “The Agency is not a municipal or quasi-municipal corporation so as to allow service upon its presiding officer or managing agent”). The court does pause, however, in light of a recent case decided by another court in this district. In Arrigoni Enterprises, LLC v. Town of Durham, No. 3:08-CV-520, 2011 WL 4572025 (D.Conn. Sept. 30, 2011), the court held that a municipal planning and zoning commission and a municipal zoning board of appeals were proper defendants in a section 1983 action. Arrigoni, 2011 WL 4572025 at *8 (<HOLDING>). The court in Arrigoni relied on a Connecticut Holdings: 0: holding that the llupa does not provide for judicial review of requests to change zoning or comprehensive zoning plans 1: holding that a zoning commission was capable of being sued directly under section 1983 because zjoning commissions function legislatively when adopting zoning regulations and holding public hearings for the adjudication of individual petitions for zoning redress 2: holding that in the limited circumstances when local zoning authorities actions prohibit personal wireless service the act preempts local zoning law 3: holding a zoning authority acts in an arbitrary and capricious manner when it denies a permit meeting the general zoning qualifications solely because of the type of building to be constructed 4: holding that where a zoning board had no authority under state law to take certain actions with respect to a protected property interest a trier of fact could conclude that there was no rational basis for the towns zoning boards actions and that as a result the zoning board violated appellants rights to substantive due process


Input: order, or judgment, or more than two years after the date a disability is removed); see also Tex. Estates Code §§ 55.251, 202.203, 1056.101; cf. id. § 256.204 (limiting will contest to two years or two years after discovering fraud or forgery). These express references to statutes of limitations for bills of review reflect legislative concern for the orderly administration of estates and finality of judgments and are consistent with the “strong public interest in according finality to probate proceedings,” which has been afforded great weight in our precedent. Little, 943 S.W.2d at 418-21 (concluding that the discovery rule does not apply to adoptees’ belated inheritance claims despite the inherent difficulty of promptly asserting such claims); see Frost Nat’l Bank, 315 S.W.3d at 497 (<HOLDING>). Construing section 31 as prescribing a Holdings: 0: holding that the discovery rule does not apply to  bill of review claims to set aside probate judgments 1: holding that texass probate statute does not affect whether the probate exception to federal jurisdiction applies to a case 2: holding that courts review judgments not statements in opinions 3: holding that probate exception does not apply where plaintiffs assert claims for breach of fiduciary duty seek in personam jurisdiction over defendants and do not seek to probate or annul a will 4: holding rule does not apply to satisfied conciliationcourt judgments


Input: makes clear that the negligence claim is premised on precisely the same allegations of material misrepresentations regarding the source of investment advice in connection with the purchase and sale of securities, including that plaintiffs were injured when defendants “did not use the recommendations of Alex. Brown as a basis for making the recommendations to plaintiffs,” “recommended ... securities ... for purchase or sale ... based on what was good for Seaboard and themselves, and without regard to what was good for plaintiffs,” and that management fostered a “total disregard for the recommendations that were being made by Alex. Brown” in Seaboard’s provision of investment advice. It is therefore preempted by SLUSA. See Rowinski, 398 F.3d at 299-300; cf. Zandford, 535 U.S. at 822 (<HOLDING>). For the foregoing reasons, we hold that all Holdings: 0: holding that misrepresentation of credit terms of margin account however satisfied in connection with language of rule 10b5 1: holding defendant sold investment contracts when it substituted new investors money for real investment return on old investors funds 2: holding that the defendant was nondisehargeable where the plaintiff estab lished a violation of oklahoma securities laws by showing that defendants were in possession of funds that belonged to other investors 3: holding that the in connection with requirement of rule 10b5 was satisfied where investors were injured as investors through respondents deceptions and the scheme to defraud and the sale of securities coineided 4: holding that morrison precludes securities claims brought by us investors who purchase securities on a foreign exchange even where those securities are also listed on a us exchange


Input: that the district court did not impermissibly delegate its authority to establish a repayment plan to the IRS. The district court clearly stated at the resentencing hearing that it: anticipate^] a payment plan being submitted to it within 30 days of the defendant’s beginning of supervised release that would set forth the nature of the regular payments, not only during supervised release, but for the period within which those payments can be demanded and accepted and paid. Resentencing Tr. at 29. Here, the district court delegated the establishment of an initial payment plan to the IRS, which the district court would then approve or reject upon submission. Our precedents make clear that this is an acceptable procedure. See Weinberger v. United States, 268 F.3d 346, 360 (6th Cir.2001) (<HOLDING>). May does not fare any better with his Holdings: 0: holding that where the government has not presented evidence at the hearing concerning the appropriate amount of restitution    the imposition of the restitution order constitutes plain error 1: holding that when trial court orders restitution at sentencing pursuant to statute the defendant is entitled to notice of the amount claimed and the opportunity to dispute the amount 2: holding that the decision of the appellate court establishes the law of the case and it must be followed by the trial court on remand 3: holding that the court erred in failing to inform the defendant that it could impose restitution but that the error did not affect the defendants substantial rights because the court informed the defendant that it could impose a maximum fine of an amount higher than the restitution amount imposed 4: holding that a sentencing court does not abrogate its judicial authority when it delegates the setting of a restitutionpayment schedule  provided that the court first establishes the amount of restitution


Input: his prior customers.”). When the intangible asset of good will is sold along with the tangible assets of a business, the purchaser acquires the right to expect that the firm’s established customers will continue to patronize the business. The essence of the transaction [of the sale of good will] is, in effect, an attempt to transfer the loyalties of the business’ customers from the seller, who cultivated and created them, to the new proprietor. Mohawk, 52 N.Y.2d at 285, 419 N.E.2d at 329, 437 N.Y.S.2d at 651 (internal citations omitted). This duty of the seller not to solicit customers does not, however, include an obligation not to accept such of his former customers as may choose to follow him to his new employment. See id., 52 N.Y.2d at 287, 419 N.E.2d at 330, 437 N.Y.S.2d at 652 (<HOLDING>). The New York Court of Appeals has drawn an Holdings: 0: holding that a company who purchased computer parts to use in its computers is a consumer 1: holding that customers of registered representative were customers of memberfirm 2: holding that a person who obtains drugs from a seller is not an accomplice of the seller 3: holding that the seller of a business implicitly transferred a property right in the firms good will to the buyer and that the seller could not then impair that right by actively soliciting the customers of his former business 4: recognizing that the seller may accept the patronage of those customers who were actively dealing with the purchased company on the date of the sale if such customers choose to leave the purchased company without prompting from the seller


Input: employees provided by the defendant general employer, a crane rental service company). ¶ 38 Finally, no case in Arizona applying the lent employee doctrine mandates that a special employer must have had workers’ compensation coverage in place to receive tort immunity. Instead, the special employer is liable to an injured employee for workers’ compensation regardless of whether the special employer had coverage in place at the time of the employee’s injury. See Nation, 145 Ariz. at 420, 701 P.2d at 1228 (concluding that the plaintiff had the right to recover workers’ compensation benefits from the defendant special employer if she applied for such benefits); see also Porteadores Del Noroeste S.A. De C.V. v. Indus. Comm’n, 234 Ariz. 53, 59-60, ¶ 21, 316 P.3d 1241, 1247-48 (App.2014) (<HOLDING>). Furthermore, even if an employer does not Holdings: 0: recognizing a tort action when employee was dismissed for filing a workers compensation claim 1: holding that plaintiffs decedent became special employee of separately incorporated subsidiary after general employer parent corporation lent his services to subsidiary under circumstances that satisfied special employment factors 2: recognizing that a foreign company as a special employer under the lent employee doctrine was subject to arizonas workers compensation statutes for injuries sustained by an employee 3: holding that glc 152 15 provides that the only party immune from suit under the statute is the direct employer a special employer is not immune because the special employer is not liable for the payment of workers compensation and there was no agreement between the direct employer and the special employer that the special employer would be liable for the payment of such compensation 4: holding that when an employee suffers an injury from an unexplained fall while the employee is on the job and performing the duties of his employment that injury is eligible for compensation under the workers compensation act


Input: review is pending, there is “no good reason to hold the findings and sentence of the court-martial are impaired by the discharge.” United States v. Speller, 8 USCMA 363, 368, 24 CMR 173, 178, (1957). Similarly, the power of review authorities over the court-martial is unaffected by the administrative discharge. See United States v. Woods, 26 MJ 372 (CMA 1988); United States v. Jackson, 3 MJ 153 (CMA 1977); United States v. Entner, 15 USCMA 564, 36 CMR 62 (1965); United States v. Speller, supra; United States v. Sippel, 4 USCMA 50, 15 CMR 50 (1954). Moreover, the administrative discharge does not negate the responsibility of the convening authority to act on the findings and sentence; nor does it restrict his power to do so. See generally Speller, supra at 365-66, 24 CMR at 175-76 (<HOLDING>). As indicated earlier, the convening authority Holdings: 0: recognizing cause of action 1: recognizing private right of action 2: holding that where the action was filed as a class action and a consent decree was entered into entry of the consent decree was sufficient certification of the action as a class action under rule 23 3: recognizing validity of convening authoritys action where accused was released from active duty and transferred to reserves after courtmartial but before the convening authoritys action 4: recognizing the cause of action


Input: of the case. See Baptist Vie Le, 993 S.W.2d at 654; In re D.Z., 869 S.W.2d at 564. Thus, with each of the options in section 52.02(a), except the option of taking the child to a designated juvenile processing office, the officer’s involvement in the case ceases. Baptist Vie Le, 993 S.W.2d at 654; see In re D.Z., 869 S.W.2d at 564. When police officers fail to comply with the requirements of Family Code section 52.02(a), 52.12, and 52.025, governing the taking of a child into custody and the taking of the statement of a child in a juvenile processing office, a statement obtained from a juvenile by the investigating officer may violate his rights as a juvenile under the Family Code and thus be inadmissible at trial. See Tex. Fam.Code Ann. § 54.03(e); In re U.G., 128 S.W.3d at 799 (<HOLDING>). This is so even if the statement would Holdings: 0: recognizing juveniles right to counsel in certain juvenile proceedings 1: holding juveniles statement inadmissible when after being placed in custody police took juvenile to police station and held juvenile in area where adult suspects were held instead of taking juvenile to a juvenile processing office or any of the places listed as an alternative in section 5202 and placing juvenile in specifically designated office for juveniles 2: holding statement inadmissible when instead of following section 5202 officers took juvenile first to police station where they obtained signed written statement from him before taking him to appropriate juvenile detention center 3: holding that although the juvenile restitution statute does not expressly require the juvenile court to determine whether the juvenile has the ability to pay the restitution ordered as a condition of probation the policies underlying the adult restitutions command that a trial court make such an inquiry applies with equal force to juvenile courts 4: holding that jeopardy attaches in juvenile adjudication that determines whether juvenile violated criminal law


Input: on the doctrine of res judicata. Fundamental to a claim of res judicata in an administrative context are the requirements that the administrative agency was acting in a “judicial capacity” and that the parties had an “opportunity to litigate” their claims. See Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 107, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991). Plaintiff has not satisfied either requirement. Plaintiff has not demonstrated, through case law or facts, that the HCFA contracting officers in 1994 were acting in a judicial capacity when they made their decision in February 1994. Nor has Data shown that there was an adversarial proceeding between HCFA and Data that resulted in the issuance of the 1994 memorandum. See Roxco, Ltd. v. United States, 60 Fed.Cl. 39, 45 (2004) (<HOLDING>). For these reasons, the court finds that the Holdings: 0: holding that res judicata did not apply where a trial courts order was not a final judgment 1: recognizing that res judicata does not apply unless the facts and evidence necessary to maintain suit are the same in both actions 2: holding that res judicata and collateral estoppel apply to arbitration award 3: holding that res judicata does not bar those claims that arose after the original pleading is filed in the earlier proceeding 4: holding that res judicata does not apply where the contracting officer did not act in a judicial capacity and there was no adversarial proceeding between the government and roxco


Input: instructions to determine the amount of attorneys’ fees incurred by Cimco in enforcing its contract with Bartush.” We note that Cimco put on evidence of attorneys’ fees at trial, but Cimco’s attorneys’ fees question was conditionally submitted upon a "yes” answer to question 1, a finding that Bartush breached first in question 2, and a "no” answer to question 4, Because the jury found Cimco breached first in question 2, it did not answer Cimco's attorneys’ fees question. Cimco did not object to the conditional submission of its attorneys’ fees question; consequently, Cimco has failed to preserve any error from the jury’s failure to answer its attorneys’ fees question. See, e.g., Envtl. Procedures, Inc. v. Guidry, 282 S.W.3d 602, 631 (Tex. App.— Houston [14th Dist.] 2009, pet. denied) (<HOLDING>); Hunter v. Carter, 476 S.W.2d 41, 46 (Tex. Holdings: 0: holding that party that failed to object to instruction that jury not answer a question based on its answer to the prior question waived that partys right to have the jury make findings as to the subsequent question 1: holding failure to object to conditioning instructions waived error arising from the jurys failure to answer question when answer could not be implied and that lack of objection waived right to new trial to have jury answer questions 2: holding party that failed to object to instruction conditioning submission of a jurys question on its answer to a question waived that partys right to have the jury make findings as to the subsequent question 3: holding appellant could not complain of jurys failure to answer question because the charge instructed the jury not to do so based on its answer to a prior question and because appellant did not object to this instruction 4: holding appellant could not obtain a new trial so that jury could answer liability question because the charge instructed the jury not to answer the question based on its answer to a prior question and because appellant did not object to this instruction


Input: showing “that there is an absence of evidence to support the non-moving party’s case.” Id. at 325, 106 S.Ct. 2548. Once the 'moving party has met its burden, the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, the non-moving party must go beyond the pleadings and identify specific facts that show a genuine issue for trial. Id. at 587, 106 S.Ct. 1348. Only genuine disputes over facts that might affect the outcome of the lawsuit will properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248, 106 S.Ct. 2505; see also Arpin v. Santa Clam Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001) (<HOLDING>). A genuine issue of material fact must be more Holdings: 0: holding that summary judgment is unwarranted if the evidence is such that a reasonable jury could return a verdict for the nonmoving party 1: holding that an issue is genuine if the evidence is sufficient to allow a reasonable jury to return a verdict for the nonmoving party 2: holding that the nonmoving party must present specific evidence from which a reasonable jury could return a verdict in its favor 3: recognizing that a motion for directed verdict should be granted when there is no reasonable evidence upon which a jury could legally predicate a verdict in favor of the nonmoving party 4: holding that dispute regarding material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party


Input: which he used during his cross-examination of the witnesses. Resp’t Mem. at 6 (citing Petitioner’s Affidavit in Support of 2007 C.P.L. § 440.10 Motion to Vacate; Petitioner’s Statement of Facts; Petitioner’s Memorandum of Law at 3,4; and Petitioner’s Exhibits B, D & E, attached as App. PP to Resp’t Ans.). Furthermore, as Respondent points out, Concepcion acknowledged in one of his pleadings filed in this case that he had heard the audiotape when his attorney visited him at the prison. The audiotape of the witness conversation therefore cannot be considered “newly discovered” evidence for purposes of an actual-innocence tolling exception to AED-PA’s statute of limitations (assuming that such an exception exists). See, e.g., United States v. Middlemiss, 217 F.3d 112, 122 (2d Cir.2000) (<HOLDING>); Williams v. Phillips, No. 04 Civ.4653 DAB Holdings: 0: holding that affidavit from a new witness was not newly discovered evidence because trial counsel knew of the existence of the witness before trial trial counsel with due diligence could have discovered the evidence 1: 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 2: holding that to justify a new trial based upon newly discovered evidence 1 the evidence must have been discovered after trial 2 the failure to discover this evidence must not be attributable to a lack of due diligence on the part of the movant 3 the evidence must not be merely cumulative or impeaching 4 the evidence must be material and 5 the evidence must be likely to produce an acquittal if a new trial is granted 3: holding that to obtain a new trial based on newly discovered evidence the defendant must allege facts from which the court may infer diligence on the part of the defendant 4: holding that unavailable evidence may constitute newly discovered evidence if the failure to learn of the evidence did not result from the defendants lack of due diligence


Input: defendant’s jury waiver was discussed in open court as required. Most significantly, the transcript of proceedings reveals that there was no discussion of defendant’s waiver of his right to a jury. Instead, the record reveals only that defendant’s trial counsel scheduled a bench trial in September 2004 and the trial court referenced defendant’s signed jury waiver immediately before proceeding to the bench trial. Contrary to the State’s assertions, these two instances are insufficient to constitute a discussion of defendant’s waiver of his right to a jury trial in open court. Furthermore, although defendant signed a jury waiver, the existence of a written jury waiver is not dispositive of the issue of whether that waiver is valid. Bracey, 213 Ill. 2d at 269-70; Scott, 186 Ill. 2d at 284 (<HOLDING>). In this case, where there was no discussion Holdings: 0: holding prelitigation contractual jury waivers unenforceable 1: holding that written jury waivers alone cannot validly waive a defendants right to a jury trial 2: holding that a federal criminal defendant may waive jury trial without advice of counsel 3: recognizing the right to waive a jury trial 4: holding that party did not waive right to trial by jury by requesting directed verdict


Input: in effect, it is unrelated to the range of the defendant's punishments. Unlike parole, probation, or the length of imprisonment, the requirement to register as a sex offender is beyond the control of the trial court. The judge has no discretion whatsoever in determining whether the defendant will have to comply with registration statutes; instead, it is a legal obligation, predetermined by the legislature, placed on those convicted of particular crimes and is an automatic operation of statute. Similar to the consequence of losing one's driver's license or the right to possess a firearm, the registration requirement is intended to act not as a criminal punishment but as a prophylactic civil remedy. See, eg., Smith v. Doe, 538 U.S. 84, 95-96, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (<HOLDING>); United States v. Carel, 668 F.3d 1211, 1213 Holdings: 0: holding that alaskas registration requirement was a civil remedy and nonpunitive 1: holding that an additional remedy does not constitute an additional requirement 2: holding that a hearing would serve no purpose because the registration act and notification law subject all sex offenders as defined by the registration act to the registration and notification provisions and law enforcement authorities have no discretion to determine which offenders would be exposed to public dissemination 3: holding that the postmark on the registration application was the determining factor when a registration is subsequently approved 4: holding copyright statutes registration requirement a nonjurisdictional condition although previously held to be jurisdictional


Input: Conduct for United States Judges, Canon 3(A)(3); Judicial Council Order at 2. Judge McBryde does not, so far as we can determine, ever challenge this basic notion anymore than the plaintiff in Lyons claimed a right to engage in the sort of conduct that (he said) commonly led to police use of chokeholds. Indeed at oral argument counsel for Judge McBryde specifically acknowledged that at least some of the conduct “could be considered inappropriate.” See Oral Arg. Tr. at 80-81. With this decision’s confirmation of the Judicial Council’s authority to sanction Judge McBryde for consistent failure to adhere to this norm, we think the risk of recurrence fairly slight. We recognize that docket limitations can be a very serious matter. See Wozniak v. Conry, 236 F.3d 888, 890 (7th Cir.2001) (<HOLDING>). But here the two restrictions on Judge Holdings: 0: holding that presumption that respondent exercised undue influence by preparing will that left all of the decedents property to him was amply rebutted by evidence that decedent had made an earlier will ineffective because not witnessed leaving all her property to him and had written him a letter stating that she was leaving all her property to him 1: holding that plaintiffs tenured public employment is not a fundamental property interest entitled to substantive due process protection  thereby joining the great majority of courts of appeals that have addressed this issue and citing cases 2: holding a tenured state employee has a property right to continued employment and must be accorded due process before serious disciplinary sanctions 3: holding that the defendants property interest requires a preseizure hearing 4: holding that depriving a tenured professor of all teaching and research responsibilities affected a property interest sufficiently to entitle him to some kind of a hearing


Input: were not against Deitz personally. Because sanctions were not awarded on those grounds, we remand the case so that the trial court can consider an award of sanctions on these grounds. C. Calculation of Sanctions The appellees’ motion for sanctions was made not against Harris but against Deitz, his client. The first time anyone asked for sanctions against Harris was on the morning of the sanctions hearing when appellees’ counsel, in oral argument, made such a request. A part of the sanctions leveled against Harris was for opposing sanctions. Such an award was improper. It cannot be said that Harris lacked substantial justification in opposing sanctions against his client, Deitz, when he successfully opposed them. See U.S. Health, Inc. v. State, 87 Md.App. 116, 132, 589 A.2d 485 (<HOLDING>), cert. denied, 324 Md. 69, 595 A.2d 482 Holdings: 0: holding that the bankruptcy court abused its discretion in awarding opposing counsels attorneys fees and expenses as sanctions without affording the sanctioned party the right to examine question or provide argument against the claimed fees and expenses 1: holding attorney fees may be allowed for expenses incurred for default 2: holding that an award for medical expenses is proper when the expenses have been incurred but not paid 3: holding that rule 1341 does not provide for expenses incurred in asserting the claim for sanctions under the rule except perhaps to the extent that the offending party resists the claim for counsel fees without substantial justification for doing so 4: holding parties agreement provided clear contractual justification for the award of costs and expenses including attorneys fees to the prevailing party


Input: that SEIU has abandoned this claim. Additionally, the preliminary injunction was issued by the district court pursuant to section 301(a). Thus, our resolution of the jurisdictional issue has relevance to the ongoing litigation. Moreover, and essential to our determination here, in the preliminary injunction the district court explicitly preserved a portion of the TRO as still effective after issuance of the injunction. The preliminary injunction states, “all defendants in this action remain subject to paragraph three of the TRO and subsequent orders regarding the imaging of electronic devices.” (Order Granting In Part Mot. For Prelim. Inj. at 17). Thus it seems the TRO has not expired and remains enforceable. Compare Am. Tunaboat Ass’n v. Brown, 67 F.3d 1404, 1407 (9th Cir.1995) (<HOLDING>), with Negrete, 523 F.3d at 1098 (holding Holdings: 0: holding that where a noncompetition clause in a contract had expired by its own terms the plaintiffs appeal from the district courts denial of the plaintiffs request for a preliminary injunction enforcing the clause was moot 1: holding an appeal of injunction moot where the injunction expired three months before the appellate court heard arguments in the case 2: holding plaintiffs appeal of the denial of a preliminary injunction moot where defendants directive no longer in effect 3: holding that plaintiffs were not entitled to a preliminary injunction 4: holding that where a district courts preliminary injunction preventing the appellant from terminating its agreement with the defendant had expired the appellants appeal of the district courts decision to grant that injunction was moot


Input: William L. Prosser, Handbook of The Law of Torts, p. 2 (4th ed.1971). Wrongful injunction falls within this concept of civil wrong. The duty to avoid the harms caused to a defendant by an inappropriate injunction is perhaps best explained as a special duty created when the government establishes a special relationship with a person by bringing suit against that person. See Everton v. Willard, 468 So.2d 936, 938 (Fla.1985); Simpson v. City of Miami, 700 So.2d 87 (Fla. 3d DCA 1997); Hartley v. Floyd, 512 So.2d 1022 (Fla. 1st DCA 1987). Although we conclude that the claim is in the nature of strict liability, we also conclude that wrongful injunction is a “wrongful act” for purposes of the waiver in section 768.28. See Schick v. Florida Dep’t of Agric., 504 So.2d 1318 (Fla. 1st DCA 1987) (<HOLDING>). Once it is decided that the duty exists in Holdings: 0: holding that a state may waive its sovereign immunity 1: holding that plaintiffs claim was not barred by sovereign immunity because he sought specific relief against a government official 2: holding that sovereign immunity barred claim for compensatory sanctions against the government 3: holding that sovereign immunity barred a wrongful death claim against the board and stating that the only question is whether the boards sovereign immunity protection was waived emphasis added 4: holding inverse condemnation action not barred by sovereign immunity


Input: numbness in both legs after he injured himself getting out of a car. His condition improved significantly after physical therapy, which helped him to walk more easily and increased his spinal flexibility. Yet, he did not regain full sensation below the knees. By the end of 2012, Gibbens reported during an examination that he was “doing well” and never experienced pain beyond five or six on a scale of ten. Our review of this mixed evidence is not intended to minimize Gibbens’s ordeal. The mere presence of “periodic improvements and cessation of treatment” cannot support an ALJ’s decision to discount the severity of a claimant’s medical condition when the ALJ fails to consider other record evidence of declining health. Gentry v. Comm’r of Soc. Sec., 741 F.3d 708, 723-24 (6th Cir. 2014) (<HOLDING>). However, that is not the circumstance in the Holdings: 0: holding that the alj did not err in discounting a claimants reports of pain where they were not supported by the medical record 1: holding that evidence relied on by alj was insufficient to undermine pain allegations where medical records were replete with claimants reports of pain and of prescriptions 2: holding that the alj erred by discounting claimants impairments on the basis that she ceased certain treatments where her decision to go without those prescriptions was driven by serious side effects of her medication rather than recovery 3: holding that lack of medical evidence cannot form the sole basis for discounting pain testimony but is a factor that an alj may consider 4: holding that evidence that patient who had a history of not taking medication and who murdered husband during a period when she was off of her medication and delusional tends to confirm the likelihood of serious harm to patient or others


Input: the problems here in Wash-ington D.C., in New York, in Detroit where I grew up, can be traced right back to [drug trafficking].” In Defendants’ view, the prosecutor perceived the jury “might be [uninterested in Colombia’s drug problems,” Defendants Br. 48, which led him to improperly tie the Colombian drug trade to the American drug problem, inviting the jury to act as the “community conscience.” To be sure, a suggestion that the jury act as the “community conscience” can constitute error. In United States v. Hawkins, our circuit warned it is improper to “substitute emotion for evidence by equating, directly or by innuendo, a verdict of guilty to a blow against the drug problem.” 595 F.2d 751, 754 (D.C. Cir. 1978); see also United States v. Solivan, 937 F.2d 1146, 1151 (6th Cir. 1991) (<HOLDING>). This caution derives from Viereck v. United Holdings: 0: holding that statutory good time credits must be calculated under the law in effect at the time of resentencing after an appeal of the sentence is determined 1: holding that a notice of appeal filed when an appeal bond is required to perfect is a bona fide attempt to invoke appellate jurisdiction and that the court of appeals dismissal was improper without first affording an opportunity to correct the defective perfection of appeal 2: holding an appeal to the jury to act as the community conscience is improper when it is calculated to incite the passions and prejudices of the jurors 3: holding that an appeal is perfected when the appeal bond is filed 4: holding that a court may consider a theory raised for the first time in a posttrial brief unless it is precluded by the pleadings or it prejudices the opposing party


Input: liability on those who caused toxic tort injuries and those who released hazardous substances into the environment if their responsibility was equal to or greater than fifty percent. Tex Civ. PRAC. & Rem.Code § 33.013(c). In such cases, liability was not limited by proportionate responsibility. In 2003, the Legislature revisited that exclusion and repealed it in its entirety. Now, defen dants found liable for these tortious acts are subject to the general proportionate responsibility scheme. The Legislature seemed intent on creating a general scheme of proportionate responsibility for tort claims, subject to specific statutory exclusions. Finally, our controlling interpretation of that statutory scheme has remained in place since our 1993 decision in Smith v. Sewell. 858 S.W.2d at 856 (<HOLDING>). In the thirteen years since Se-well was Holdings: 0: holding that because the settlement agreement here specifically did not contain any admission of liability the plaintiff must therefore prove some liability on the part of defendant 1: holding that federal comparative negligence principles prevailed over state comparative negligence principles on the basis that admiralty is not merely a basis of jurisdiction but instead it is a body of substantive principles as well 2: holding that liability under  1983 requires a causal link to and direct responsibility for the deprivation of rights 3: holding that application of the principles of comparative responsibility to causes of action brought under the dram shop act establishes a consistent and equitable approach to the issue of dramshop liability generally and first party dramshop liability specifically 4: holding itca does not create new causes of action but creates acceptance of liability under circumstances that would bring private liability into existence


Input: a dispositional review hearing could not be combined with a termination of parental rights proceeding because doing so "would bypass the steps established by the Legislature for final determination of a child's status." Id. at 816. AE. addresses a situation where the parents did not yet have the opportunity to fulfill the service plan, and thus, a termination hearing at the same time as the permanency hearing was inappropriate. See id. However, here, the juvenile court did not conduct a disposi-tional hearing and a termination hearing at the same time-it held a permanency hearing and a termination hearing concurrently. Utah Code Ann. § 78-8a-312(6)(c)(8upp.2000) explicitly allows termination and permanency hearings to be combined. Cf. In re KM., 965 P.2d 576, 582 (Utah Ct.App.1998) (<HOLDING>). C. Ruling Regarding Permission to Medicate Holdings: 0: holding that  2253 analysis may be done at the time the claim for relief is determined 1: holding proper for permanency plan to be determined at dispositional hearing 2: holding that the constitutional level of punitive damages is not a finding of fact that must be determined by the jury it may be determined de novo by the court 3: holding state of the law must be determined at time of challenged action 4: holding that where perception of bias arose during the hearing then it was proper for counsel to move for disqualification at the hearing and then to later reduce motion to writing to be in compliance with rule


Input: on the agreement rather than on the judgment.” Indeed, the instant Separation Agreement provides that "this Agreement shall independently remain in full force and effect, and shall survive any decree, order, or judgment hereafter entered and shall forever be binding and conclusive upon the parties.” Thus, under settled Virginia law, Hildebrand may properly sue under the Separation Agreement given that it was not merged in the Final Decree of Divorce. Id. 15 . As noted supra, both Hildebrand and Iron Works are citizens of Virginia, while Lewis is a citizen of Florida. 16 . It is axiomatic that subject matter jurisdiction can be challenged at any time, either by the parties or by the court sua sponte. See Rule 12(h)(3), Fed.R.Civ.P.; Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir.1999) (<HOLDING>) (citations omitted). 17 . In this regard, it Holdings: 0: holding that state law claims cannot pend from a federal one over which the district court lacks subject matter jurisdiction 1: recognizing that a federal court is obliged to dismiss a case whenever it appears the court lacks subject matter jurisdiction 2: holding that when an appellate court determines that it lacks jurisdiction the only thing it can do is dismiss the appeal 3: recognizing that there are nonconstitutional grounds on which we may dismiss a suit before considering the existence of federal subject matter jurisdiction and concluding that the court could dismiss for failure to satisfy the demand pleading requirement of rule 231 before addressing subject matter jurisdiction 4: holding that a federal court is obliged to determine its own jurisdiction for each case


Input: powers to the executive department, and judicial powers to the judiciary * * In re Request for Advisory Opinion from House of Representatives (Coastal Resources Management Council), 961 A.2d 930, 933 (R.I.2008). Just as “the separation of powers amendments di 108 S.Ct. 646, 98 L.Ed.2d 798 (1988) (“To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence * * *”) (quoting United States v. Nixon, 418 U.S. 683, 709, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974)). The Court, the board, and lawyers licensed to practice in Rhode Island, as officers of the Court, including Disciplinary Counsel, may all properly exercise the judiciary’s inherent subpoena power. See In re Snyder, 472 U.S. at 644, 105 S.Ct. 2874 (<HOLDING>). Similarly, respondent’s contention that this Holdings: 0: holding that while a magistrate lacked the authority to enter an order granting a motion to correct error and thus that the order was defective for failing to contain the judges signature or another indication it was approved or adopted by the trial court the city waived any challenge to the validity of the order by failing to make a timely objection and observing that the indiana supreme court has long held that defects in the authority of a court officer as opposed to the jurisdiction of the trial court itself to enter a final order will be waived if not raised through a timely objection and more recently this court has applied the same principle to civil proceedings and clarified that any objection to the authority of an adjudicative officer must be raised at the first instance the irregularity occurs or at least within such time as the tribunal is able to remedy the defect 1: holding that information contained in affidavits and depositions submitted as attachments to a memorandum were properly before the trial court and appellate court for purposes of a motion for summary judgment 2: holding that material for witnesses need not be produced to defendant where the witnesses were not called as government witnesses at trial 3: recognizing that as an officer of the court a lawyer can cause persons to drop their private affairs and be called as witnesses in court and for depositions and other pretrial processes although subject to the ultimate control of the court 4: holding that a bankruptcy trustee is an officer of the court appointed by the court directed by the court and paid by the court but is in no sense an agent or employee or officer of the united states


Input: 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992), found that the plaintiffs are entitled to be made whole and, therefore, compensatory damages are appropriate forms of relief. See 503 U.S. at 69, 112 S.Ct. 1028. That case, however, did not reverse long-standing judicial attitudes regarding emotional distress damages awards in contract cases. The compensatory damages that Franklin v. Gwinnett County Pub. Sch. found appropriate do not include extraordinary damages, such as punitive awards and emotional distress damages. See Barnes v. Gorman, 536 U.S. at 188, 122 S.Ct. 2097 (“[I]t must be concluded that Title VI funding recipients have not, merely by accepting funds, implicitly consented to liability for punitive damages.”); Bradford v. Iron County C-4 Sch. Dist., 1984 WL 1443, at *7 (E.D.Mo.1984)(<HOLDING>). Even if the Court were to assume that Holdings: 0: holding in wrongful pregnancy suit that expenses of raising and educating child were not recoverable elements of damages but emotional distress was recoverable element 1: holding damages for emotional distress are not recoverable in an action for breach of contract whether express or implied in the absence of a showing that the parties contemplated such damages at the time the contract was made 2: holding that a tort claim for intentional infliction of emotional distress is distinct from a claim for emotional distress damages under the employment discrimination statute 3: holding that emotional distress damages are not recoverable under section 504 4: holding emotional distress damages for a willful violation of the automatic stay were recoverable against the social security administration


Input: "if it is not necessary to decide more, it is necessary not to decide more.” PDK Labs. Inc. v. U.S. D.E.A., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in judgment). 14 . In applying the "fundamental fairness” standard to evaluate foreign judicial systems under section 4(b)(1), our sister circuits have consistently recognized that constitutional due-process standards are more demanding. See Society of Lloyd's v. Ashenden, 233 F.3d 473, 477 (7th Cir. 2000) (interpreting the predecessor to section 4(b)(1) of Illinois’s UFCMJRA as employing an "international concept of due process” that was "less demanding” than "the complex concept that has emerged from American case law”); DeJoria v. Maghreb Petroleum Expl., S.A., 804 F.3d 373, 380 (5th Cir. 2015) (<HOLDING>); Society of Lloyd’s v. Reinhart, 402 F.3d 982, Holdings: 0: recognizing that under the predecessor to section 4b1 of texass ufcmjra the foreign judicial system must only be fundamentally fair and need not comply with the traditional rigors of american due process citations alterations and internal quotation marks omitted 1: holding that under ada discrimination need not be the sole reason for the adverse employment decision but must actually play a role in the employers decision making process and have a determinative influence on the outcome citation internal quotation marks and alterations omitted 2: holding that to establish a violation of due process an alien must show that she was denied a full and fair opportunity to present her claims internal quotation marks omitted 3: recognizing that the declaratory judgment act is only procedural and does not create substantive rights internal quotation marks and citations omitted 4: recognizing that party is not permitted to use the accident of a remand to raise an issue that it could just as well have raised in the first appeal internal quotation marks and alterations omitted


Input: occurred on or about June 19, 2006, (# 5, Ex. A), and the Complaint was not filed until July 27, 2009. (# 1-2 at 1). This is over three years. TILA has a one-year statute of limitations for damages actions. 15 U.S.C. § 1640(e) (“Any action under this section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation.”). The remedy of rescission is available for three years, see 15 U.S.C. § 1635(f), but even then only where a borrower is willing and able to tender the balance on the promissory note, see Yamamoto v. Bank of N.Y., 329 F.3d 1167, 1173 (9th Cir.2003); LaGrone v. Johnson, 534 F.2d 1360, 1362 (9th Cir.1976), which clearly is not kers, Inc., 552 F.Supp.2d 191 (D.P.R.2007) (<HOLDING>). Here, Plaintiffs obtained their loan in order Holdings: 0: holding that because property was no longer property of the estate the court could not order turnover 1: holding that  10113aa does not alter the requirement that the property in question be real property in order for the antimodification provision to apply 2: holding that the tila rescission remedy did apply where borrowers encumbered a second property in order to obtain financing for the first property 3: holding that overvaluation penalty did not apply where the taxpayers conceded other grounds of adjustment in the notice of deficiency including that they lacked a profit objective that the property at issue was not qualifying property and that the property was not placed in service 4: holding that plaintiffs may have a property interest in real property


Input: fails the first step of this inquiry, while his procedural due process claim fails the second. Substantive Due Process Leal alleged that his right to substantive due process was violated by the conduct of the Internal Affairs investigators and the composition of the Disciplinary Review Board that recommended indefinite suspension. However, an inadequate or invalid investigation is insufficient to state a civil rights claim unless another recognized constitutional right is involved. See, e.g., Andrews v. Fowler, 98 F.3d 1069, 1079 (8⅛ Cir. 1996). And Leal’s complaint regarding the composition of the Disciplinary Review Board rests upon the incorrect assumption that he was entitled to an impartial decisionmaker. See Schaper v. City of Huntsville, 813 F.2d 709, 715-718 (5th Cir.1987) (<HOLDING>). We therefore hold Leal’s substantive due Holdings: 0: holding that a limited pretermination hearing was sufficient where it was followed by a more comprehensive posttermination hearing 1: holding that due process does not require the state to provide an impartial decisionmaker at the pretermination hearing where posttermination remedies are available 2: holding a due process claim failed because the plaintiff did not seek to require a witnessess attendance at a posttermination grievance hearing and was not inhibited or restricted from doing so 3: holding that procedures that were available to the employees after the implementation of the rif guideline provided such protection of their rights that the absence of a pretermination hearing alone was not violative of due process 4: holding that a pretermination hearing need not be in front of a neutral decisionmaker so long as the state affords plaintiff subsequent to his termination a full adversarial hearing before a neutral adjudicator


Input: 130 S.Ct. at 2565 (internal citations and quotation marks omitted), and we have repeatedly emphasized that equitable tolling is not available to “those who sleep on them rights,” see, e.g., Covey v. Ark. River Co., 865 F.2d 660, 662 (5th Cir.1989). Giving Wickware all benefit of the doubt, equitable tolling still would not help him. Even if we fictionally extend the benefit of § 2244(d)(2) to his improperly filed petition and discount the entire period of time from Wickware’s original filing of his state habeas application on August 29, 2003, and the TCCA’s ruling on the merits of Wickware’s second application on April 4, 2007, Wickware would fail to meet the AEDPA time limits. Wickware’s conviction became final for AEDPA purposes on Decembe , 599 (5th Cir.2009) (per curiam) (<HOLDING>); Webb v. Dretke, 165 Fed.Appx. 375, 376 (5th Holdings: 0: holding that petition was properly filed even though the state court denied it as procedurally barred because the petition was delivered to and accepted by the state court 1: holding that the petitioner was not entitled to equitable tolling where he filed his habeas petition more than two months late 2: holding that trial court erred in granting petition for termination of parental rights based on noncompliance with case plan when case plan was not filed and approved by the court until seven months after petition for termination was filed 3: holding that petitioner was dili gent for equitable tolling purposes where petitioner filed state petition two months after conviction was final and filed federal petition seven days after discovering state had denied petition on the merits 4: holding that a petitioner was not entitled to equitable tolling where he waited six months to file a federal petition after any state misconduct ended


Input: 120 S.Ct. 2446. In this case the Commonwealth is only imposing a procedural, formal requirement on the structure of an organization. The statute neither requires nor even suggests any forced association of gun owners with anyone of differing views. Furthermore, as the Commonwealth points out, requiring a club to obtain a license in order to enjoy a narrow range of privileges relating to large capacity weapons does not “implicate any constitutionally protected right of association because it does not involve ... protected associative activity.” Like an ordinance restricting attendance at certain dance halls to persons of a certain age, this regulation simply does not implicate the First Amendment. See City of Dallas v. Stanglin, 490 U.S. 19, 24, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989) (<HOLDING>). The plaintiffs are not being forced to join Holdings: 0: holding that raising chickens is not an expressive act for the purposes of the first amendment 1: holding that the first amendment does not protect true threats against the president 2: holding that where the first amendment does not protect a certain activity there can be no first amendment right of association to engage in that activity 3: recognizing that the first amendment protects the expressive activities associated with the voterregistration process 4: holding that the dancing regulated by the municipal ordinance simply does not involve the sort of expressive association that the first amendment has been held to protect


Input: anything other than happenstance, unfortunately. ... [Tjhere is no evidence, nothing to suggest that this was a first-degree murder and this was somehow premeditated. 7 . Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). 8 . White v. United States, 425 A.2d 616, 618 (D.C.1980). 9 . Louis v. United States, 862 A.2d 925, 928-29 (D.C.2004). 10 . See Perrow v. United States, 947 A.2d 54, 55-56 (D.C.2008) (noting that "the trial judge is 'in the best position to determine whether the government presented an argument that, perhaps subtly, exceeded the bounds of the agreement’ ”) (quoting United States v. Pollard, 295 U.S.App.D.C. 7, 19, 959 F.2d 1011, 1023 (1992)). 11 . Puckett v. United States, 556 U.S. 129, -, 129 S.Ct. 1423, 1432-33, 173 L.Ed.2d 266 (2009) (<HOLDING>). 12 .Id. at 1429 (internal quotation marks and Holdings: 0: holding that a forfeited claim of governmental failure to fulfill its obligations under a plea agreement is subject to the requirements of plain error review 1: holding that we review for plain error whether the government breached its plea obligations when the defendant fails to object at sentencing 2: holding that plain error analysis is the proper standard for review of forfeited error in the rule 11 context 3: holding prevonn that plain error analysis is the proper standard for review of forfeited error in the rule 11 context 4: holding plain error analysis is the proper standard for review of forfeited error in the rule 11 context


Input: provided for significantly broadened access to public records.”); Levy v. Senate of Pa., 619 Pa. 586, 618, 65 A.3d 361, 381 (2013) (“[T]he enactment of the RTKL in 2008 was a dramatic expansion of the public’s access to government documents.”). According to Requesters, “[i]t is .-impossible to square the Commonwealth Court’s discarding of Lukes with the conclusion of SWB Yankees that the RTKL expands access to public records and with [SWB Yankees’] favorable treatment of Lukes.” Brief, for Appellants at 20. Requesters also depict the majority decision of the Commonwealth Court as a departure from a long line of decisions of this Court, such as Sapp Roofing Co. v. Sheet Metal Workers’ International Association, Local Union No. 12, 552 Pa. 105, 109, 713 A.2d 627, 629 (1998) (plurality) (<HOLDING>). Requesters note that, in other geographic Holdings: 0: holding that records relating to a student court were not education records 1: recognizing that intent of public records act is to provide all citizens with access to the records of all public governmental bodies 2: holding that municipal court records were admissible under  official records or public documents  exception 3: holding that payroll records of a private roofing contractor in the custody of a local agency were public records because they evidenced a disbursement by a governmental unit 4: holding that records in the possession of a party with whom an agency has contracted to perform a governmental function on behalf of the agency are presumptively public records subject to public access so long as the record a directly relates to the governmental function and b is not exempt under the rtkl


Input: magnified in the prison context. Jolly, 923 F.Supp. at 949. Thus, Kassen held that where prison physicians exercise governmental discretion, they are entitled to official immunity. Id. at 949-50; Kassen, 887 S.W.2d at 10-11. On the other hand, the court concluded that where state-employed physicians exercise purely medical discretion (as in the diagnosis and treatment of patients), the purpose of official immunity no longer applies. See Kassen, 887 S.W.2d at 10-11. A physician’s exercise of purely medical discretion thus does not warrant official immunity. In 2003, the Texas Legislature superseded Kassen by extending official immunity to all employees acting within the scope of their employment. Tex. Civ. Prac. & Rem. Code Ann. § 101.106 (West 2013); see Franka, 332 S.W.3d at 381-85 (<HOLDING>). Prior to its abrogation, several commentators Holdings: 0: recognizing abrogation 1: recognizing statutory abrogation of rule of liberality in workers compensation claims 2: recognizing abrogation of kassen 3: recognizing the abrogation of both dunett and bundles 4: recognizing abrogation of fought v unum life ins co of am 379 f3d 997 1005 10th cir2004


Input: respect to crimes where physical force is not a required element of the offense, the courts have also focused on whether lack of consent on the part of the victim was a required element. In Sutherland, the Second Circuit ). Thus, the Connecticut Legislature has made the determination, as expressed in Conn. Gen.Stat. § 53a-71, that children under the age of sixteen are not adults capable of making an intelligent choice in matters relating to sex. See State v. Jason B, 248 Conn. at 571, 729 A.2d 760. In analogous cases involving child victims who are incapable of giving their consent to the sexual activity involved, courts have found a substantial risk that physical force will be used against these children to ensure their compliance. See United States v. Reyes-Castro, 13 F.3d at 379 (<HOLDING>); United States v. Alas-Castro, 184 F.3d 812, Holdings: 0: holding that under iowa code  7098 the offense of lascivious acts with a child was a crime of violence because it involved a substantial risk that physical force would be used against the child victim in the course of committing the offense 1: holding that a conviction for sexual assault of a child under nebrevstat  28320011 was a crime of violence because this type of contact between parties of differing physical and emotional maturity carries a substantial risk that physical force may be used in the course of committing the offense 2: holding that a conviction under utah code ann  7654041 for sexual abuse of a child was a crime of violence under  16b based upon a common sense view of the sexual abuse statute in combination with the legal determination that children are incapable of consent which suggests that when an older person attempts to sexually touch a child under the age of fourteen there is always a substantial risk that physical force will be used to ensure the childs compliance 3: holding that attempted sexual abuse of a child under the age of fourteen is a crime of viqlenee 4: holding trial court was proper in admitting a doctors testimony that a delay between the occurrence of an incident of child sexual abuse and the childs revelation of the incident was the usual pattern of conduct for victims of child sexual abuse


Input: the same issues in subsequent stages in the same case.’ ” See Mason v. Texaco, Inc., 948 F.2d 1546, 1553 (10th Cir.1991) (quoting Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983)). In addition, the doctrine “requires every court to follow the decisions of courts that are higher in the judicial hierarchy.” Guidry v. Sheet Metal Workers Int’l Assoc., 10 F.3d 700, 705 (10th Cir.1993), aff'd in part and rev’d in part, Guidry v. Sheet Metal Workers Nat’l Pension Fund, 39 F.3d 1078 (10th Cir.1994) (en banc). Because the bankruptcy court did not depart from one of its own rulings or the ruling of a higher court in the same case, the doctrine of the law of the case arguably does not apply here. Cf. Been v. O.K Indus., Inc., 495 F.3d 1217, 1224-25 (10th Cir.2007) (<HOLDING>). The BAP concluded, however, that the Holdings: 0: recognizing that ruling of one trial judge does not preclude another trial judge reconsidering interlocutory ruling 1: holding that district court did not abuse its discretion in striking fact statements that did not comply with the local rules 2: holding that district court did not abuse its discretion in reconsidering a prior interlocutory ruling 3: holding that the district court did not abuse its discretion in its ruling whether to proceed with a declaratory judgment action 4: holding trial court did not abuse its discretion by ruling based only on affidavits


Input: of wrongful means); Cerberus Capital Mgmt., L.P. v. Snelling & Snelling, Inc., No. 60045, 2005 WL 4441899, at *7 (N.Y.Sup.Ct. Dec. 19, 2005) (“[T]he complaint contains nothing indicating the ... defendants acted beyond mere self-interest or other economic considerations. This is insufficient to support a claim for tortious interference with prospective business relations.”). Plaintiffs Complaint, which merely alleges that the various interlocked companies in the Shell family preferred to purchase from each other rather than from outside companies, does not offer an exam- pie of “egregious” conduct “so ‘culpable’ ... that it could be the basis for a claim of tortious interference with economic relations.” Carvel II, 818 N.E.2d at 1103-04; see also Masefield AG, 2006 WL 346178, at *9 (<HOLDING>); Advanced Global Tech., 836 N.Y.S.2d at 811 Holdings: 0: holding that conclusory allegations that defendant used coercive business practices to intentionally interfere with business relations was insufficient to state a claim 1: holding that plaintiffs allegations that defendant engaged in coercive business practices without justification entirely out of malice and without normal economic selfinterest were conclusory and thus insufficient to state a claim 2: recognizing the tort of wrongful interference with anothers business relations 3: holding that allegations against nondiverse defendants must be factual not conclusory because conclusory allegations do not state a claim 4: holding that with respect to tortious interference recognized standards of business ethics and business customs and practices are pertinent


Input: provision of § 903, and so is an exception to it. The terms of § 903 clarify that the remedies of “[t]his chapter” (i.e., Chapter 9) do not alter the ordinary powers that states have over their municipalities. This provision, together with § 904, “carries] forward doctrines of federal common law that had governed municipal insolvency before the first federal act, as well as the constitutional principle against federal interference in state and local governance.” McConnell & Picker, 60 U. Chi. L.Rev. at 462-63 (footnote omitted). “The effect is to preserve the power of political authorities to set their own domestic spending priorities, without restraint from the bankruptcy court.” Id.; cf. City of East St. Louis v. United States, 110 U.S. 321, 324, 4 S.Ct. 21, 28 L.Ed. 162 (1884) (<HOLDING>). Relying on the context of § 903, the Holdings: 0: holding that the right to control the means by which the work is accomplished is clearly the most significant test of the employment relationship and observing that many of the other factors enumerated in the restatement second are merely evidentiary indicia of the right to control 1: holding that the right to control is measured by considering 1 the independent nature of the workers business 2 the workers obligation to furnish necessary tools supplies and materials to perform the job 3 the workers right to control the progress of the work except as to the final results 4 the time for which the worker is employed and 5 the method of payment whether by unit of time or by the job 2: holding that no court has the right to control the discretion of municipal authorities as to what expenditures are proper and necessary for the municipal administration 3: holding authority to control limits duty to control 4: holding that the county has no control over a prosecutors nonsalary expenditures that do not exceed his budget because it would be incongruous to permit county government to control the operations and functions of the prosecutor a constitutional officer entrusted with awesome duties of vast importance to the public


Input: Congress intended by adding the mandatory language combined with the 'exceptional circumstances' standard for reopening under [the amended statute], while leaving intact the permissive language and less stringent 'reasonable cause' standard for avoiding in absentia deportation under § 1252(b)”); Iris Gomez, The Consequences of Nonappearance: Interpreting New Section 242B of the Immigration and Nationality Act, 30 San Diego L. Rev. 75, 150 (1993) ("In the context of a deportation hearing under [the Act], both 'reasonable cause’ and ‘exceptional circumstances' excuse nonappearance at a hearing”). 6 . Such evidence should be presented to the IJ prior to the entrance of the order so that the IJ is given the opportunity to refrain from proceeding in absentia. Typically evidence of this nat Holdings: 0: holding that the ijs failure to inform alien that he is eligible for relief from deportation constitutes due process violation where alien establishes prejudice 1: holding that the ijs failure to inform alien that he was eligible for relief from deportation constitutes a due process violation if alien establishes prejudice 2: holding that alien demonstrated deportation proceedings were fundamentally unfair when alien was deprived effective assistance of counsel 3: recognizing burden is on alien when alien is removable 4: holding that reasonable cause did not justify reopening deportation proceedings when the alien appeared thirty minutes late for the hearing because the alien and his attorney crossed signals about where to meet


Input: including law enforcement and the State of Illinois Department of Insurance....” (R. 51, Superseding Indictment, Count One ¶ 5.) The indictment further alleges that Segal “knew and believed that NNIB’s PFTA was not operated properly and according to the requirements of the law and the Code....” (Id.) By implication, then, the Government pleads that Segal knew he was violating a legal duty, satisfying one definition of “willful.” See Ratzlaf v. United States, 510 U.S. 135, 141-42, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994). Furthermore, we note that in denying motions to dismiss indictments or in affirming these denials, courts have held that § 2(b)’s “willfully” language need not be plead explicitly in the indictment. See United States v. Krogstad, 576 F.2d 22, 28-29 (3d Cir.1978) (<HOLDING>); United States v. Grubb, 469 F.Supp. 991, Holdings: 0: holding that although the indictment did not track the exact language of the statute the indictment when read as a whole sufficiently stated facts which support every element of the crime charged and apprised defendant of the specific charge against him 1: holding that  willfulness need not be expressly stated in the indictment charging a violation of 18 usc s 2 where the indictment simply stated that the defendant caused a false audit report to be submitted and did not specify a charge under  2a or  2b 2: holding that because the bank had no duty to report defendants structured transactions these transactions did not constitute material facts within the meaning of 18 usc  1001 consequently defendant may not be held criminally liable under 18 usc  2b for causing the bank to fail to disclose a material fact 3: recognizing that the government need only prove that crime occurred reasonably near the date stated in the indictment 4: holding that the fact of prior convictions under  924e need not be charged in an indictment and proven to a jury and also that the government need not charge in an indictment and prove to a jury that a defendants prior conviction constitutes a violent felony under  924e


Input: brought by companies operating in municipalities); Carbone, 511 U.S. at 391-92, 114 S.Ct. at 1682-83 (invalidating town waste processing ordinance in suit by local waste processor against town); Fulton Corp., 516 U.S. at 346, 116 S.Ct. at 861 (striking down North Carolina tax in suit by North Carolina company); W. Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 188, 114 S.Ct. 2205, 2209, 129 L.Ed.2d 157 (1994) (striking down Massachusetts milk pricing order in suit by Massachusetts-licensed milk dealers); Fort Gratiot, 504 U.S. at 367-68, 112 S.Ct. at 2027-28 (striking down Michigan waste import restrictions in suit by Michigan landfill operator); S. Waste Sys., 420 F.3d at 1291-92 (upholding waste processing ordinance on merits in suit by in-state company); Leib, 558 F.3d at 1311 (<HOLDING>). In addition, as noted above, the dormant Holdings: 0: holding that state restrictions on electronic license plates might constitute an undue burden on interstate commerce so the claim fell within the zone of interests protected by the dormant commerce clause 1: holding that commerce clause authorizes congress to punish any particular criminal action even without proof of a relation to interstate commerce when the activity is part of a class of activities determined by congress to affect interstate commerce 2: holding that state regulations of intrastate wildlife are within dormant commerce clause 3: holding that the government can satisfy the hobbs act interstate commerce requirement by showing that the robbery resulted in the closure of a business engaged in interstate commerce 4: holding that dormant commerce clause complaint by instate resident against municipality failed on merits because challenged rule regulated evenhandedly and did not burden interstate commerce


Input: little evidence in order to overcome an employer’s motion for summary judgment” because “the ultimate question is one that can only be resolved through a searching inquiry— one that is most appropriately conducted by a factfinder, upon a full record.” Davis, 520 F.3d at 1089 (quotation marks omit ted); see also McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1112 (9th Cir.2004) (“In evaluating motions for summary judgment in the context of employment discrimination, we have emphasized the importance of zealously guarding an employee’s right to a full trial, since discrimination claims are frequently difficult to prove without a full airing of the evidence and an opportunity to evaluate the credibility of the witnesses.”); Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1409 (9th Cir.1996) (<HOLDING>) (second alteration in original) (quotation Holdings: 0: holding that very little  evidence is necessary to raise a genuine issue of fact regarding an employers motive any indication of discriminatory motive  may suffice to raise a question that can only be resolved by a factfinder 1: holding that motive is circumstantial evidence of intent 2: holding extrinsic evidence of defendants motive to possess gun inadmissible where defendant did not contest the issue of motive 3: holding that defendants alleged motive to enhance its ability to raise cash under a 80 million credit facility agreement  is a sufficient motive to raise an inference of fraudulent intent 4: holding other crimes evidence admissible to show motive where motive was put in issue by defense at trial


Input: size and complexity with the South Wing project. A contracting officer who must exercise some level of discretion to determine a contractor’s responsibility should be encouraged to base this exercise of discretion on objective, identifiable factors. Doing so does not make those factors special standards. Grimberg argues alternatively that if the eleven Comparison Chart criteria are not special standards, then the solicitation’s requirement that bidders submit three projects “of the size and complexity” of the South Wing project is improper because it is not specific and fails to put contractors on notice of what exactly was required. A valid special standard must be specific, objective, and mandatory. See In re Weldtest, Inc., Comp. Gen. Dec. B-216747.2, 84-2 CPD ¶ 612 (1984) (<HOLDING>); In re Watch Security, Inc., Comp. Gen. Dec. Holdings: 0: holding that in extraordinary circumstances where a police officer neither knew nor should have known of the relevant legal standard qualified immunity may still be available 1: holding all that is required to impose a duty to warn is that the defendant knew or should have known of a specific threat made to harm a specific person 2: holding single incident of sexual harassment was neither sufficiently pervasive nor severe to constitute a hostile work environment 3: holding that chilling effect claim must still be rooted in specific present objective harm or a threat of specific future harm to convey standing 4: holding that a solicitation provision stating that a bidder may be required to prove that they have experience in comparable work was permissive and not sufficiently specific nor objective to be a special standard


Input: Woolston, 453 N.E.2d at 968. It is for the trial court to determine whether the juror is biased for or against the defendant. Id. Only if the defendant was placed in substantial peril will we find an abuse of discretion. Id. A. Juror Jester Alvies contends that Jester should have been removed and replaced with an alternate juror because her father-in-law is a second cousin of one of the victims. In response, the State directs us to subsection (a)(4) of the statute concerning relatives within the fifth degree of the defendant or victim. We agree with the State that Alvies cannot establish that Jester is related to the victim within the fifth degree and, thus, is not entitled to have her removed for cause under that section. See Whicker v. State, 511 N.E.2d 1062, 1064-65 (Ind.1987) (<HOLDING>). As Alvies points out, however, the basis of Holdings: 0: holding juror who was aunt of defendants mothers nephews wife was not related within fifth degree and thus should not have been removed for cause under indcode  353715a4 1: holding that trial court did not abuse its discretion in excusing a juror for cause 2: holding judge in bank robbery prosecution did not abuse discretion in refusing to excuse juror whose wife was bank employee or juror whose daughter had been victim of bank robbery 3: holding that trial courts denial of motion for new trial based on juror misconduct was justified where there was no evidence presented at hearing on motion that juror had knowingly concealed relevant litigation experience during voir dire and identity of juror as county court litigant was not demonstrated 4: holding that a defendants exercise of peremptory challenges  is not denied or impaired when the defendant chooses to use a peremptory challenge to remove a juror who should have been excused for cause


Input: of the contents of its own policy ... In addition, notice of facts which would cause a reasonable person to inquire further im poses a duty of investigation upon the insurer, and failure to investigate constitutes a waiver of all powers or privileges which a reasonable search would have uncovered. Steptore, 643 So.2d at 1216. If a policy requires an insurer to defend a claim, then the insurer must do so, even if it ultimately may not be liable under the policy. Peavey Company v. M/V ANPA, 971 F.2d 1168, 1175 (5th Cir.1992). An insurer can supply its insured with a defense and simultaneously contest its obligation to provide coverage by reserving its right to refuse coverage in a timely manner. Id. An insurer that tardily reserves its rights waives defenses to coverage. Id. at 1175-76 (<HOLDING>). a. The Johnson Lawsuit It is undisputed that Holdings: 0: holding that insurer who after being told of occurrence contacted insureds attorney for information should have issued reservation of rights letter within a reasonable time after  it was informed of the occurrence 1: holding that the insurer was estopped from asserting coverage defenses when it waited to file a declaratory action until 10 months after it had notice of the claim and several months after it had notice of a potential settlement of the underlying litigation 2: holding that insurer that waited five months after being informed of occurrence and two months after being informed of suit against insured to deliver reservation of rights letter waived its noncoverage defense 3: holding that an insured waited unreasonably long in first notifying an insurer of a lawsuit five months after its filing 4: holding despite a reservation of rights that when the insurer provides a defense to its insured the insured has no right to interfere with the insurers control of the defense and a stipulated judgment between the insured and the injured claimant without the consent of the insurer is ineffective to impose liability upon the insurer


Input: As previously noted, the parties dispute when Tri-Etch alerted Cincinnati of Young’s death and the resulting lawsuit. Cincinnati asks us to find Tri-Etch’s notice unreasonably late as a matter of law and affirm the trial court’s summary judgment order on this basis. However, regardless of when Cincinnati received notice of Young’s death and the Estate’s lawsuit, Cincinnati has always contended that Young’s death was not an “occurrence” entitled to coverage under its policies. Thus, we first must discern whether Cincinnati can show that it was prejudiced by Tri-Etch’s allegedly faulty notice. In Miller v. Dilts, our Supreme Court held that an insurer may not avoid liability under a policy’s cooperation and notice clauses unless the insured’s noncompliance with tho 2d 430, 435 (1992) (<HOLDING>). We will assume for the sake of the argument Holdings: 0: holding that when the insurer takes the position that the policy does not cover the complaint the insurer must 1 defend the suit under a reservation of rights or 2 seek a declaratory judgment that there is no coverage if the insurer fails to take either of these actions it will be estopped from later raising policy defenses to coverage 1: holding that an immaterial breach does not deprive the insurer of the benefit of the bargain and thus cannot relieve the insurer of the contractual coverage obligation 2: holding that under montana common law an insurer cannot be held liable for bad faith in denying a claim if the insurer had a reasonable basis for contesting the claim 3: holding that if an insurer denies coverage based on an assertion that the underlying claim is excluded from coverage there is a presumption that the insurer did not suffer prejudice because prompt notice would have merely resulted in an earlier denial of coverage 4: holding that in light of evidence that the insurer would have denied coverage even if it had received suit papers on a timely basis the insurer could not show prejudice


Input: beneficiary of the contract, not one who is benefitted only incidentally by the performance of the contract. MCI Telecomms., 995 S.W.2d at 651; Brunswick Corp. v. Bush, 829 S.W.2d 352, 354 (Tex.App.-Fort Worth 1992, no writ) (explaining that “only donee and creditor beneficiaries have enforceable rights”). A donee beneficiary is a party to whom the performance promised will, when rendered, come to him as a pure donation; a creditor beneficiary is one to whom the performance promised will come in satisfaction of a legal duty owed to him by the promisee. MCI Telecomms., 995 S.W.2d at 651. This legal duty may include indebtedness, contractual obligations, or other legally enforceable commitments owed to the third party. Id.; see also Stine v. Stewart, 80 S.W.3d 586, 588 (Tex.2002) (<HOLDING>). B. Application of the Law to the Present Holdings: 0: holding that a husband unlawfully attempted to name a beneficiary other than his daughter who was the irrevocable beneficiary pursuant to a separation agreement in a divorce decree 1: holding that the defendants mother validly consented to a search of a motor home parked in the driveway of her house when the motor home was connected by an electrical cord to her house the mother was observed entering the motor home repeatedly and the mother apparently had supervisory authority over two teenage girls who were inside the motor home because it was reasonable to conclude that the mother had common authority over the motor home sufficient to give valid consent 2: holding mother qualified as thirdparty beneficiary to daughter and soninlaws agreement incident to divorce because it provided for repayment to mother of a specific amount of money from the proceeds of the sale of the couples home 3: holding that the asserted right of the insureds child based on his agreement with his mother during their divorce to name the child as his fegli beneficiary was preempted by feglia 4: holding that daughter had no express authority to sign arbitration agreement for mother where no power of attorney and daughter did not discuss signing the agreement with her mother


Input: and (2) “where the complainant has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass.” Irwin, 498 U.S. at 96, 111 S.Ct. 453; see also Bailey, 160 F.3d at 1364. A careful study of Supreme Court precedent, as well as that of the regional circuits, however, reveals that equitable tolling is available in a variety of circumstances, including when a party has been mentally incapacitated. The Supreme Court has yet to address whether mental illness can justify equitable tolling. In Irwin, an employment discrimination case, petitioner claimed that the 30-day period prescribed in 42 U.S.C. § 2000e-16(c) should be tolled because his attorney was out of the country and did not, therefore, personally receive the relevant n 1177, 1180 (6th Cir.1995) (<HOLDING>); Miller v. Runyon, 77 F.3d 189, 191 (7th Holdings: 0: recognizing attorneys mental illness as grounds for relief under rule 60b6 1: holding that attorneys mental illness may justify equitable tolling 2: holding that 29 cfr  1614105a1 is subject to equitable tolling based on mental illness 3: holding that where client was abandoned by attorney due to attorneys mental illness equitable tolling may be appropriate 4: holding that mental incapacity is an extraordinary circumstance that may warrant equitable tolling


Input: to establish prima facie case of control); id. at 340 (“Although there is ample evidence of the [family] corporations having many dealings with each another, there is no evidence in the record of [the parent] exercising any control over [the subsidiary].”). Indeed, it would be surprising if a wholly-owned subsidiary did not act for its parent’s benefit. In order to establish jurisdiction over Ipsen or Ipsen Pharma as a result of Biomeasure’s contacts with Louisiana, which is what plaintiffs are attempting to do, plaintiffs must demonstrate “something beyond the subsidiary’s mere presence within the bosom of the corporate family.” Dickson, 179 F.3d at 338. Specifically, plaintiffs must prevail under the factors set forth in Dickson. See 179 F.3d at 339; see also Bauman, 579 F.3d at 1095 (<HOLDING>). Plaintiffs have failed to do so, and Holdings: 0: recognizing separate corporate identity of parent despite evidence that parent consolidated its profits and losses with that of its whollyowned subsidiary in presenting parents financial reports to shareholders that subsidiary was considered a division of parent and that subsidiary accounted for 60 of parents and subsidiarys combined operations 1: holding that a parent must exercise some control over the subsidiarys activities which does not require that the subsidiary be controlled to an ultimate degree by its parent  although something more than mere passive investment by the parent is required the parent must have and exercise control and direction  over the affairs of its subsidiary in order for venue to be proper 2: holding that parent is liable for acts of subsidiary under agency theory only if parent dominates subsidiary parent of whollyowned subsidiary that had seats on board took part in financing and approved major policy decisions was not liable because parent did not have daytoday control 3: holding that to establish that subsidiary is agent of parent for jurisdictional purposes the parent must exert control that is so pervasive and continual that the subsidiary may be considered an agent or instrumentality of the parent notwithstanding the maintenance of corporate formalities 4: recognizing separate corporate identity of parent despite evidence that parent was alterego of its subsidiary and was being sued for acts of its subsidiary


Input: disturb any of these Family Court rulings. He has not applied for a vacatur of the temporary custody order or the placement of the child in his temporary custody. Instead, Plaintiff only seeks specified monetary damages, see id. ¶¶ 739-42, and injunctive relief holding that various sections and procedures of the N.Y. Dom. Rel. Law unconstitutional prospectively, see id. ¶¶ 451-464, 728-29. Consequently, the Court follows the Second Circuit’s reasoning in McNamara and Green and finds that Rooker-Feldman does not apply to Plaintiffs claims that only seek monetary damages or prospective injunctive relief and do not seek to overturn a child custody award. See also Pittman v. Cuyahoga County Dep’t of Children and Family Servs., No. 06-3312, 2007 WL 2050840, at *3 (6th Cir. July 16, 2007) (<HOLDING>). III. Domestic Relations Exception Several Holdings: 0: holding that the federal claims which arose from state court criminal contempt proceedings were inextricably intertwined with the state court action and thus the federal district court lacked subject matter jurisdiction over the claims pursuant to the rookerfeldman doctrine 1: holding rookerfeldman doctrine inapplicable to claims that do not require review of a judicial decision in a particular case 2: holding rookerfeldman doctrine deprived district court of jurisdiction to review decision of west virginia state bar 3: holding that the rookerfeldman doctrine is broad enough to bar all federal claims that were or should have been central to the state court decision 4: holding that rookerfeldman does not bar plaintiff claims that do not focus on the outcome of state court custody proceedings or other wise request reversal of a juvenile court decision


Input: on Defendant's proposed final instruction number six, as I said before, I think, a, there are ... there is more than one explanation about why the dura on the left side would not have been seen. Transcript at 1815-1822. Ray argues that the trial court abused its discretion when it refused his instruction on the State's failure to produce evidence. We find Nettles v. State, 565 N.E.2d 1064 (Ind.1991), instructive. In Nettles, the defendant argued that the State failed to preserve potentially useful evide acted in bad faith, we cannot say that the tendered instruction was not misleading. A trial court may properly refuse misleading and confusing instructions tendered by a party. Pub. Serv. Ind., Inc. v. Nichols, 494 N.E.2d 349, 357 (Ind.Ct.App.1986), reh'g denied. Th (Ind.Ct.App.1994) (<HOLDING>). However, the tendered instruction does not Holdings: 0: holding that an agency need not credit an applicants explanations for inconsistencies in the record unless those explanations would compel a reasonable factfinder to do so 1: holding that an agency need not credit an applicants explanations for inconsistent testimony unless those explanations would compel a reasonable factfinder to do so 2: holding that the agency need not credit an applicants explanations for inconsistent testimony unless those explanations would compel a reasonable factfinder to do so 3: holding that the agency need not credit an applicants explanations unless those explanations would compel a reasonable factfinder to do so 4: holding whether these explanations are reasonable or not depends upon matters that the jury must decide including witness eredibility


Input: limitations period during the pendency of the original action when the original action was dismissed without prejudice for want of prosecution. Mississippi courts have never addressed this question per se. ¶ 27. Specifically, Benny cites, among others, King v. Lujan, 98 N.M. 179, 646 P.2d 1243 (1982), and Sluka v. Herman, 229 Neb. 200, 425 N.W.2d 891 (1988). In King, the New Mexico Supreme Court held that “[ajfter a consideration of the purpose and policies underlying Rule 41, we adopt the view that even though the filing of a suit ordinarily tolls the applicable limitations period, when an action is dismissed without prejudice because of a failure to prosecute, the interruption is considered as never having occurred.” King, 646 P.2d at 1244-45. Th D.La.1977) (applying Louisiana law) (<HOLDING>); Barrentine v. Vulcan Materials Co., 216 So.2d Holdings: 0: holding neither a lack of prejudice to the defendant nor the running of the statute of limitations constitutes good cause 1: holding that although the filing of suit and service of citation interrupt the running of the statute its dismissal for want of prosecution will have the same effect as if the suit had never been filed 2: holding that filing of suit ordinarily interrupts the running of prescription but when the action is dismissed without prejudice because of plaintiffs failure to prosecute the interruption in the running of the statute is considered as never having occurred 3: holding that the running of the statute of limitations is an affirmative defense 4: holding that the initial filing of a suit later voluntarily dismissed is not the effective date of a second suit because a voluntary dismissal does not toll or affect in any way the continuous running of the applicable statutory time period


Input: to App. C, amend. 706; see also id. amend. 713; Sentencing Guidelines for United States Courts, 72 Fed.Reg. 28571-28572 (2007). We acknowledge that U.S.S.G. § 1B1.10 can be read to permit a reduced sentence only where the defendant’s pre-departure sentencing range is found within the crack cocaine guidelines. However, “the meaning of language is inherently contextual [and] the [Supreme] Court has always reserved lenity for those situations in which a reasonable doubt persists about a statute’s intended scope even after resort to the language and structure, legislative history, and motivating policies of the statute.” United States v. Dauray, 215 F.3d 257, 264 (2d Cir.2000) (alteration and quotation marks omitted); see also United States v. Simpson, 319 F.3d 81, 86-87 (2d Cir.2002) (<HOLDING>). Here, we conclude that there is ambiguity as Holdings: 0: holding that the rule of lenity applies only if the provision being construed is still ambiguous after the application of normal rules of construction 1: holding that the rule of lenity applies to sentencing guidelines 2: recognizing that the rule of lenity applies only after courts exhaust all other evidence of congressional meaning 3: holding in sentencing guidelines context that the rule of lenity requires that we construe ambiguous terms in favor of the accused 4: holding rule of lenity in the penal context to be a rule of last resort


Input: The State has refused to disavow enforcement of the statute and is, in fact, vigorously defending the legality of the statute in the present action. In addition, albeit for public or non-consensual conduct, there have been prosecutions under Arkansas’s sodomy statute as recently as 1988. See, e.g., Young v. State, 296 Ark. 394, 757 S.W.2d 544 (1988)(conviction for nonconsensual sodomy under Ark. Code Ann. § 5-14-122); United States v. Lemons, 697 F.2d 832 (8th Cir. 1983) (conviction under Ark. Code Ann. § 5-14-122 for consensual conduct in a public restroom). In addition, our sodomy statute has been used outside the criminal context in ways harmful to those who engage in same-sex conduct prohibited by the statute. See, e.g., Stowe v. Bowlin, 259 Ark. 221, 531 S.W.2d 955 (1976) (<HOLDING>); Thigpen v. Carpenter, 21 Ark. App. 194, 730 Holdings: 0: holding that court should have allowed appellant to impeach appellees credibility as a witness by referencing appellees admitted engagement in sodomy 1: holding that the need to impeach credibility correspondingly increases as the importance of the witness credibility and testimony escalates 2: recognizing that statements in appellees brief can constitute judicial admissions 3: holding that conviction on appeal is not admissible to impeach witnesss credibility 4: holding that summary convictions of crimes involving dishonesty could be used to impeach the credibility of a witness


Input: Code (UCC) as adopted by Virginia: “Instrument” means a negotiable instrument as defined in § 8.3A-104, Title 8.8A or any other writing which evidences a right to the payment of money and is not itself a security agreement or lease and is of a type which is in ordinary course of business transferred by delivery with any necessary indorsement or assignment.... Va.Code § 8.9 — 105(l)(i). It is undisputed that the CD is neither a “negotiable instrument” nor a security agreement nor a lease. See id. The only question is whether the CD is a writing evidencing a right to the payment of money “which is in ordinary course of business transferred by delivery with any necessary indorsement or assignment.” M The bankruptcy court concluded that (1) although t 490 S.E.2d 334, 338-39 (W.Va.1997) (<HOLDING>). Almost every court to face the issue has Holdings: 0: recognizing the majority rule 1: holding that certificates of deposit are instruments not general intangibles even if the certificate is labeled nontransferable 2: holding that certificates of deposit are instruments and noting that the majority of jurisdictions agree 3: recognizing that majority of jurisdictions hold that the burden of proving an easement is on the party claiming such right and must be established by clear and convincing proof 4: holding that nonnegotiable certificates of deposit are instruments within the meaning of ucc article 9 even if transferability is severely restricted


Input: 119 N.M. 743, 751, 895 P.2d 265, 273 (Ct.App. 1995) (Hartz, J., concurring) (stating that some authorities question whether statutory redemption laws encourage higher bidding at foreclosure sales). In considering a clash of interests, the court can consider “overriding equitable considerations.” HSBC Bank, 2005-NMCA-138, ¶ 10, 138 N.M. 665, 125 P.3d 644. {9} The question before us is whether the holder of a junior mortgage who forecloses its mortgage remains a “junior mortgagee” under Section 39-5-18(A), thereby entitling it to redeem. No New Mexico case addresses this question. At least one New Mexico case appears to assume that a junior mortgagee who has foreclosed his mortgage has a right to redeem. See Springer Corp. v. Kirkeby-Natus, 80 N.M. 206, 210, 453 P.2d 376, 380 (1969) (<HOLDING>). Other eases note that junior mortgagees and Holdings: 0: holding that in a case in which an omitted junior mortgagee foreclosed its mortgage the junior mortgagee had the absolute right to redeem from the senior mortgagee who had purchased the property at a sale following foreclosure of the senior mortgage 1: holding that the junior mortgagee had no right title or interest in the real estate after the sale was confirmed in the purchaser who became title owner 2: holding that the mortgagee had no right to rents under its assignment of rents during the redemption period because it purchased the property for the full amount of the mortgage debt at its foreclosure sale 3: holding extension of senior mortgage resulted in loss of priority because intervening mortgagee had agreed to be subordinated on the assumption the senior mortgage would be fully satisfied on the initial due date 4: holding that despite foreclosure judgment providing that the holder of a junior mortgage had no interest in or lien on or claim to said premises the lack of foreclosure sale meant that the junior mortgage was not extinguished