Input: Privilege (2d ed. 1990); cf. Gamer v. Wolfinbarger, 430 F.2d 1093, 1101 (5th Cir.1970), cert. denied sub nom., Gamer v. First American Life Ins. Co., 401 U.S. 974, 91 S.Ct. 1191, 28 L.Ed.2d 323 (in analyzing attorney-client privilege issues, “[cjoneeptualistic phrases describing the corporation as an entity ... are not useful tools of analysis.”). This is such an instance. Plaintiffs have sued not only the Town of Georgetown, but the individual members of its Town Council. See D.I. 1. The Court must, therefore, examine the legal relationship that exists between the Town Council and its individual councilmembers in evaluating attorney-client privilege issues. See Del.U.R.E. 502(b)(3); Kirby v. Kirby, No. 8604, 1987 WL 14862 (Del.Ch. July 29, 1987) (LEXIS, States library, Del file) (<HOLDING>); In re Grand Jury Investigation, 918 F.2d 374, Holdings: 0: holding that independent directors can be entrusted with the decision to sue other directors on behalf of the corporation 1: holding the privilege belonged to both the corporate client  a closely held charitable foundation  and its directors because at the time of the privileged communication the directors collectively were the client 2: recognizing privilege for corporate officers directors and shareholders to influence the actions of their corporation 3: holding that an attorney may only undertake to represent a new client against a former client  where there is no confidential information received from the former client that is in any way relevant to representation of the current client 4: holding that even where a client was more sophisticated in business matters than the lawyer himself the lawyer should have assumed the client was relying on the lawyer for the legal aspects of the loan from the client to the lawyer to the same extent that the client would rely on the lawyer for advice were the client making the loan to a third person


Input: of her continued failure to cooperate and open disobedience to plaintiff in administrative matters; and 4. On May 8, 1996, plaintiff sent a letter to defendant President Judge Bonavi-tacola stating that he would attend a meeting of the Administr s instance, plaintiff has made sufficient allegations to demonstrate that his complaints did not relate solely to the removal of his personal responsibilities but also touched on the issues of the proper role of a guberna-torially appointed President Judge versus a judicially appointed Court Administrator and the extent of political influence on administrative decisions in the judiciary, issues which are of general public concern. See Complaint ¶¶ 43, 48-49, 51; Connick v. Myers, 461 U.S. 138, 149, 103 S.Ct. 1684, 1691, 75 L.Ed.2d 708 (1983) (<HOLDING>). And the fact that these communications were Holdings: 0: recognizing that even as to an issue that could arguably be viewed as a matter of public concern if the employee has raised the issue solely in order to further his own employment interest his first amendment right to comment on that issue is entitled to little weight 1: holding that the trial judge did not err by denying a motion to recuse that alleged in part that a defendant had previously worked on the judges election campaigns 2: holding that a question relating to whether assistant district attorneys felt pressured to work on political campaigns touched on a matter ofpublic concern even though the rest of the questions in the questionnaire at issue did not 3: holding that if the speech in question does not address a matter of public concern there is no first amendment violation 4: holding that the absence of a motivating desire to address a matter of public concern was not dispositive as to whether the speech addressed a matter of public concern


Input: and no argument that its increasing the fee contravened state law. Although the plaintiff couched its appellate arguments in terms of whether the unilateral amendment of the alleged contract was “lawfully authorized,” the only question was whether the State would breach the alleged contract that the license represented by its increasing the fee, not whether the State would act contrary to statute in doing so. See id. at 77-78, 308 S.W.2d at 840. The Dodgen court held that the State was not so bound; in so holding, the court distinguished the case from those in which a plaintiff seeks to determine whether State officials are acting outside their statutory or constitutional authority. See id. at 78-79, 308 S.W.2d at 840 (distinguishing Cobb, 144 Tex. at 365-66, 190 S.W.2d at 712 (<HOLDING>)). In the case before us, the protesting Holdings: 0: holding that a damages suit against a state officer in his official capacity was barred because it was functionally a suit against the state 1: holding the rule against taxpayer standing applies both to federal taxpayers and state taxpayers challenging state tax or spending decisions simply by virtue of their status as state taxpayers 2: holding that taxpayers failure to follow state requirement that he report change in federal income tax did not except state tax liability from discharge 3: holding a suit against an agency of the state is a suit against the state 4: holding that suit by taxpayers alleging that they fell outside statutorily defined class subject to occupation tax so that states attempt to collect such tax from them was illegal was not suit against state


Input: jurors should have been allowed to hear the 911 tape is no exceptio be worded Independently of our concern regarding the decision about the tape, we also hold that the conference triggered Frantz’s Faretta rights because it resolved the content of the judge’s response to the jurors’ request. The chance to shape the jury’s interpretation of an important tactical decision is at least as important as the chance to make the decision itself. And regardless of the judge’s leeway in granting the jurors’ request, the substance and wording of the judge’s response could have influenced the jurors’ interpretation of the tape’s absence. We have repeatedly recognized how seriously jurors consider judges’ responses to their questions. In federal court, we allow trial judges substantial th Cir.1986) (<HOLDING>). Because of the delicate nature of such Holdings: 0: recognizing that a defendants participation in formulating a response to a deadlocked jury  may be important to ensuring the fairness of the verdict particularly because there may be holdout jurors 1: holding that trial court was not required to instruct the jury to continue deliberations because despite jurors initial indication that the verdict was not hers she unequivocally affirmed the verdict in response to additional questions 2: recognizing that immunity may be waived 3: holding that there was an impermissible compromise where the damages award was inadequate liability was hotly contested at trial the jury was deadlocked the court charged the jury to continue deliberating to reach a decision and less than one hour later the jury returned a verdict 4: holding that the verdict must be sustained if there is any competent evidence to support the verdict


Input: court’s granting of motion to dismiss). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner or without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). However, a trial court has no discretion in determining what the law is or in applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992); Baylor Univ. Med. Ctr. v. Biggs, 237 S.W.3d 909, 916 (Tex.App.-Dallas 2007, pet. denied). Therefore, when the issues are purely questions of law, as here, we effectively conduct a de novo review. See Pallares v. Magic Valley Elec. Coop., Inc., 267 S.W.3d 67, 69-70 (Tex.App.-Corpus Christi 2008, pet. refd); see also Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex.1989) (<HOLDING>). III. Analysis By his sole issue, Dr. Salinas Holdings: 0: holding that the function of the trial court on a motion for summary judgment is to determine whether issues of fact exist and not to decide the merits of the issues themselves 1: holding that issues of discriminatory intent and actual motivation are questions of fact for the trier of fact 2: holding that courts must decide pure questions of statutory construction 3: holding that claim construction is an issue of law for the court not a question of fact for the jury 4: holding that matters of statutory construction are questions of law for the court to decide rather than issues of fact


Input: was a GS-13 who performed duties similar to the ones plaintiff performed as Acting Team Leader. Id. 52:4-5. Yet plaintiff also conceded that Lane was not promoted to a GS-14 level. “Q. And did Iris Lane, did she ever become a GS-14? A. No.” Id. 52:6-8. Plaintiff therefore identifies no other individuals who were promoted when her alleged request was denied. Even if the Court looks more expansively at plaintiffs proposed comparables described above, there is no evidence that individuals performing work similar to plaintiff were employed at or above a grade 14 level. In fact, there is evidence to the contrary. Plaintiff herself admits that Iris Lane performed similar work and was also a grade 13. Id. 52:4-5. Kress indicates he performed similar work to plaintiff a Sept. 19, 2007) (<HOLDING>). B. 2003 Performance Evaluation Plaintiff next Holdings: 0: holding that the plaintiff failed to establish a prima facie case of retaliation because there was no evidence that the decisionmaker knew of the plaintiffs protected conduct 1: holding that fourth element of a prima facie case is satisfied when the employees who were more favorably treated were situated similarly to the plaintiff 2: holding the plaintiff failed to make a prima facie case that the defendants failure to promote him was discriminatory where the plaintiff failed to that show he was qualified for the relevant position 3: holding that because there was no evidence before the court of any similarly situated employees who were promoted to a higher salary grade when plaintiff was denied a promotion plaintiff could not establish a prima facie case of discriminatory failure to promote 4: holding that district court erred by requiring plaintiffs to show that they were better qualified than employees who were promoted in order to make a prima facie case


Input: Thus, facilitation of aggravated burglary presents a risk of physical injury sufficient to be classified as a “violent felony.” Sawyers, relying on United States v. Pazzanese, 982 F.2d 251 (8th Cir.1992), argues that criminal facilitation is never a “violent felony” under the ACCA. Although Sawyers commingles the arguments, there are essentially two components to this claim: first, because of the categorical approach, facilitation crimes cannot be classified as a “violent felony” based on the underlying crime; and second, facilitation does not meet the inherent mens rea requirement in the ACCA. The first argument is quickly disposed of. First, criminal facilitation in Tennessee requires the government to show that the underlying crime actually occurred. See Parker, 932 S.W.2d at 951 (<HOLDING>)(fodtnote omitted); see also State v. Virges, Holdings: 0: holding that proof of an agreement to commit a felony is not a necessary element in a conviction for the commission of the felony 1: holding that for facilitation of a felony the state must prove the commission of a specified felony and the assistance the accused gave to the person committing the specified felony 2: holding that drug felony under state law can constitute an aggravated felony for federal sentencing guidelines purposes even if the same conduct would not constitute a felony under federal law 3: holding that reversal of conviction for felony murder was required where jury failed to find the defendant guilty of the underlying felony as essential element of the felony murder offense 4: holding the state must prove that at the time of the homicide the defendant was engaged in the commission of the felony


Input: to create a new right,” but instead were intended to overrule Texport and thus to clarify the pre-existing right to drawback of HMT. See Aectra, 565 F.3d at 1369-70; Recording of Oral Argument at 12:15-13:55 (Shell argued that statement in Aectra is inconsistent with conceptual underpinnings of default rule). Shell’s “default rule” argument is both untimely and lacking in merit. As noted above, Shell raised the argument for the first time at oral argument. Shell’s briefs do not even allude to the default rule, much less articulate a position on the relevance and application of the rule to the facts of this case. By failing to brief the point, Shell waived its right to press its default rule argument here. See, e.g., Novosteel SA v. United States, 284 F.3d 1261, 1273-74 (Fed.Cir.2002) (<HOLDING>). However, even if Shell had briefed (and thus Holdings: 0: holding that issue raised for the first time in reply brief was waived 1: holding that an argument raised for the first time in a reply brief is waived 2: holding that party waived argument which was not presented to court of international trade until after the party had filed its principal summary judgment brief reasoning that parties must give a trial court a fair opportunity to rule on an issue other than by raising that issue for the first time in a reply brief 3: holding that this court will not address the merits of an issue presented for the first time in a reply brief 4: holding that a partys failure to raise an issue in the opening brief waived the issue even though the party raised the issue in his reply brief


Input: IN PART. ORFINGER and EVANDER, JJ„ concur. 1 . Despite the fact that Nicole’s current full-time job compensates her better than any job she had prior to or during her marriage, she still earns approximately one third of the income earned by Robert. 2 . We would also recede from the other panel decisions from our court that have followed or applied the same rule announced in Martin. See, e.g., Greene v. Greene, 895 So.2d 503 (Fla. 5th DCA 2005); Widmer v. Widmer, 713 So.2d 1054 (Fla. 5th DCA 1998); Fullerton v. Fullerton, 709 So.2d 162 (Fla. 5th DCA 1998); Ingle v. Ingle, 640 So.2d 223 (Fla. 5th DCA 1994). 3 . We note that a panel of this court several years ago signaled the court's willingness to reconsider Martin. See Alpha v. Alpha, 885 So.2d 1023, 1031-32 (Fla. 5th DCA 2004) (<HOLDING>) (citations omitted). The trial courts within Holdings: 0: recognizing that although this court has not looked kindly on bridge the gap rehabilitative alimony awards in the past in a proper case it might do so in the future 1: holding that for 9year marriage where wife was 29years old and able to be selfsufficient rehabilitative alimony should have been awarded reversing permanent periodic alimony as inappropriate 2: holding that length of marriage and the proper amount or duration of alimony do not correlate in any mathematical formula 3: holding that the proper focus should be on whether the outofstate defendant engaged in any act that might provide the court with jurisdiction 4: recognizing such a ground for judicial review of arbitration awards in this circuit


Input: Clouse, the Arkansas Court of Appeals held that service had been completed for purposes of the savings statute when a process server served the defendant’s wife and office manager at the defendant’s office after she represented herself as her husband’s agent, but in fact was not. 274 S.W.3d at 345-46. Here, the Barners’ attorney sent the complaint and summons for T/C LLC by certified mail to the wrong registered agent, which accepted service on T/C LLC’s behalf and sent a return receipt to the Barners’ attorney showing that service had been completed. This case is much closer to Cole and Clouse than to cases in which the Arkansas courts have held that the savings statute did not apply. See, e.g., Posey v. St. Bernard’s Healthcare, Inc., 365 Ark. 154, 226 S.W.3d 757, 761, 765-66 (2006) (<HOLDING>); Hicks v. Clark, 316 Ark. 148, 870 S.W.2d 750, Holdings: 0: holding that the plaintiffs did not complete service for purposes of the savings statute when they served the defendant with a complaint signed by an unlicensed attorney a nullity under arkansas law and made no attempt to serve the defendant with the amended complaint 1: holding that the amended complaint could not relate back to the original complaint in which all claims were barred by the statute of limitations 2: holding defendant waived complaint 3: holding that the plaintiff did not complete service when she made no attempt to serve the defendant within the time required by the arkansas procedural rules 4: holding that the district court did not abuse its discretion in dismissing a complaint with prejudice based on the plaintiffs failure to amend the complaint by the deadline imposed by the court


Input: alleged interest created by the State rises to the level of ‘property,’ thereby securing the protections of the Fifth and Fourteenth Amendments.”). Significantly, § 42-56-22, like § 42-56-21, vests Wall with total discretion over whether Young may work at all, by making the labor of prisoners subject to the “discretion of the director” and contingent upon receipt of the “express consent of the director.” Such discretion evidences a lack of intent to provide prisoners with a protected property interest. See, e.g., Jennings v. Lombardi, 70 F.3d 994, 996 (8th Cir.1995) (reasoning that “[wjhere the statute or policy ... grants to the decisionmaker discretionary authority in implementing it, a protected property interest is not created”); cf. Bishop v. State, 667 A.2d 275, 277-78 (R.I.1995) (<HOLDING>). Moreover, under Rhode Island law, a Holdings: 0: holding that where the defendant challenges the use of documents purporting to establish the washington classification of an outofstate conviction the state must present additional evidence of the proper classification so as to carry its burden of proving the defendants criminal history by a preponderance of the evidence 1: holding that a prisoner has no constitutionallybased liberty interest in a particular prison classification  because an inmate is not entitled to a particular degree of liberty in prison 2: holding that prisoner had no constitutionallyprotected liberty interest in prisoninmate classification system process where director of department of corrections retained unfettered discretion in classification and housing of prisoners 3: holding that a statecreated liberty interest in ones classification may exist where classification imposes atypical and significant hardship 4: holding that inmates have no constitutionallyprotected liberty interest in access to grievance procedure


Input: 471 (5th Cir.2002)). 19 . McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir.2007). 20 . Id. 21 . Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir.2003). 22 . We also note that if the ALJ’s conclusion were relevant in this appeal, then the ALJ’s other conclusion — that "the facts fail to validate [Etienne's] assertion that the reason for her separation was due to the complaint she logged with the [EEOC]” — also presumably would be relevant. We doubt that Etienne desires such a result. 23 . Laxton, 333 F.3dat 579. (quoting Evans v. City of Hous., 246 F.3d 344, 355 (5th Cir. 2001)). 24 . Univ. of Tex. Sw. Med. Ctr. v. Nassar, - U.S.-, 133 S.Ct. 2517, 2533, 186 L.Ed.2d 503 (2013). 25 . Cf. Pennington v. Tex. Dep’t of Family & Protective Servs., 469 Fed.Appx. 332, 338 (5th Cir.2012) Holdings: 0: holding that summary judgment was appropriate where plaintiffs admissions in her deposition undermined her claims 1: holding that a oneday time period between the employees complaint and her supervisors recommendation to fire her was sufficient 2: holding that allegations that employees supervisors yelled at her told her she was a poor manager and gave her poor evaluations chastised her in front of customers and once required her to work with an injured back were insufficient to state title vii claim 3: holding that plaintiffs allegations that her supervisor was a lesbian and that she made improper remarks to her including telling the plaintiff to invite her to lunch and making comments about plaintiffs coworkers private lives and sexual preferences   and on one occasion approaching the plaintiff from behind hugging her and whispering in her ear a request for a cookie from another table did not suffice to establish a hostile working environment 4: holding that the plaintiffs evidence of pretext which included but was not limited to her supervisors statement that she had enough of the plaintiff going to her supervisor about her was not sufficient to preclude summary judgment


Input: the applicant’s information-a confidential informant, Slycord, and Carroll-White-were facing criminal charges. However, a fair read of the application in its entirety makes this point clear. The application states that Slycord and Carroll-White’s shared residence was raided on December 4, 1999, and that officers found a substantial amount of methamphetamine therein. It further states that the signing officer interviewed Carroll-White and Slycord two days later, on December 6. The issuing judge could reasonably infer that Carroll-White and Slycord were likely to face serious drug charges. Moreover, even if the warrant application were corrected as Oleson suggests, probable cause would still exist to support its issuance. See United States v. Jacobs, 986 F.2d 1231, 1233-34 (8th Cir.1993) (<HOLDING>). The district court did not err in denying Holdings: 0: holding that an arrest warrant can authorize entry into a dwelling only where the officials executing the warrant have reasonable or probable cause to believe the person named in the warrant is within 1: holding warrant valid where search warrant application affidavit was signed and probable cause existed for issuance of warrant 2: holding that probable cause is the appropriate standard for  3144 material witness warrants 3: holding that hearing on warrants validity required only where defendant can show warrant would not have established probable cause if corrected 4: holding invalid warrant did not create probable cause for arrest


Input: strategic purposes. The courts were justifiably cautious in observing the potential preclusive effect of such weak class actions. Coleman v. Gen. Motors Acceptance Corp., No. 39-0211, 220 F.R.D. 64,-, 2004 WL 187332, at *18 (M.D.Tenn. Jan. 14, 2004). In contrast, in this case the court is satisfied that the interests of the named plaintiffs are aligned with the interests of the absent class members. Although the named plai ndem. Ins. Co., 319 F.3d 205, 211 (5th Cir.2003) (observing that “[fjraud actions that require proof of individual reliance cannot be certified as Fed.R.Civ.P. 23(b)(3) class actions”; holding the district court committed reversible error by certifying a class in a RICO fraud action); Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331, 342 (4th Cir.1998) (<HOLDING>); Baum v. Great W. Cities, Inc., 703 F.2d 1197, Holdings: 0: holding damages do not constitute other equitable relief 1: holding professional rules do not provide basis for civil liability 2: holding that the equal protection and due process clauses of the fifth and fourteenth amendments do not provide a sufficient basis for jurisdiction because they do not mandate payment of money by the government 3: holding fraud claims do not provide a suitable basis for classwide relief 4: holding that claims not properly raised on direct appeal will not be considered as a basis for collateral relief


Input: the constitutional right “at de minimis cost to valid penological interests.” ... Ramirez, 379 F.3d at 126 (internal citations omitted) (alteration in the original). While the Tuner factors “serve as guides to a single reasonableness standard,” the first factor “ ‘looms especially large’ because it ‘tends to encompass the remaining factors, and some of its criteria are apparently necessary conditions.’ ” Id. (quoting Waterman v. Farmer, 183 F.3d 208, 213-14 (3d Cir.1999)). If the connection between a prison policy and the government’s asserted interests is too tenuous, the policy is “arbitrary or irrational” and “fails irrespective of whether the other factors tilt in its favor.” Wolf, 297 F.3d at 309-10. Accord Ashker v. Califonia Dept. of Corrections, 350 F.3d 917, 923 (9th Cir.2003) (<HOLDING>). The Supreme Court has made clear that the Holdings: 0: holding that where one argument is dispositive of the appeal we need not address the defendants other arguments 1: holding that if a policy fails the first tuner prong the court need not address the other factors 2: holding appellate court need not address issues unnecessary to its decision 3: holding that because the plaintiff was not disabled for the purposes of the ada this court need not to address the other elements of the prima facie case 4: holding that this court need not address the merits of an argument raised for the first time on appeal


Input: and the failure of the City to award promotions to the plaintiffs. Only one racist comment was mentioned— the “rug head” remark — and that comment was directly tied to the failure to promote one of the plaintiffs’ black colleagues. The plaintiffs claim to have verbally notified EEOC officials about other facts that support their hostile-work-environment claim, but the record contains no evidence beyond bald, nonspecific assertions that they did so. No decision in this circuit has held that EEOC charges regarding discrete acts of discrimination are alone sufficient to put the EEOC on notice of a hostile-work-environment claim. Several unpublished decisions of this court have in fact held to the contrary. See, e.g., Brown v. City of Cleveland, 294 Fed.Appx. 226, 234-35 (6th Cir.2008) (<HOLDING>); Scott v. Eastman Chem. Co., 275 Fed.Appx. Holdings: 0: holding that because the amendment added a new substantive theory which is fundamentally distinct from the original race discrimination charge it did not relate to or grow out of the plaintiffs original eeoc charge 1: holding that claimant exhausted administrative remedies only as to the complaints made in the original charge and factually related claims that reasonably could be expected to grow out of the administrative investigation of that charge 2: holding that a viable hostile work environment claim requires an environment that a reasonable person would find hostile or abusive 3: holding that an eeoc investigation of a hostile work environment could not reasonably be expected to grow out of a charge describing the denials of a promotion and a handicapped parking space 4: recognizing a hostile work environment claim under section 1983


Input: contract on or about December 18, 2000. Both parties stipulated that DPS removed its employees from the Rollins project on Monday, December 18, 2000 and provided no further services to Rollins after that date. In light of this jury finding and the stipulated evidence, we must conclude that DPS received notice of contract termination from Rollins no l nce of any costs avoided to allow the jury to properly calculate net damages. See Farris, 516 S.W.2d at 283-84. However, this general rule does not apply in situations where the breach of contract occurs in such a manner that the non-breaching party does not have the opportunity to reduce its expenses. See Houston Chronicle Publ’g Co. v. McNair Trucklease, Inc., 519 S.W.2d 924, 932 (Tex.Civ.App.Houston [1st Dist.] 1975, writ ref d n.r.e.) (<HOLDING>). We must analyze the jury award for the breach Holdings: 0: holding that if plaintiff substantially performed its contractual obligations then it would be entitled to the payment due under the contract less the cost of any correction of defects in its performance even if it breached the contract 1: holding that jurys verdict for the defendant in a breach of contract action did not establish the absence of breach because the jury was instructed that it could find for the defendant if it concluded that the defendant had not breached the contract or if the defendant proved an affirmative defense 2: recognizing that where a plaintiff failed to perform because of the defendants breach the plaintiff could recover damages caused by the defendants breach 3: holding that if the defendants breach does not permit the plaintiff to reduce its overhead then defendant is not entitled to a reduction in the damages awarded against it 4: holding that it is wellsettled that although a plaintiff is entitled to full recovery for its damages it is not entitled to a double recovery for the same loss or injury


Input: they differ, the Constitution must be taken as a limitation or qualification of the general principle previously declared, according to the subject and the language employed.’ Id. at 459 (citation omitted in original). In Anderson v. Baker, 23 Md. 531 (1865), the Court considered a provision of the Maryland Constitution of 1864 which was also identical to Art. II, § 10 of our present Constitution. In holding that the legislature could constitutionally provide for appointment to an office created by it, notwithstanding the separation of powers provision of the Declaration of Rights, the Court said: ‘The Act in question, creating the office, does prescribe a different mode of appointment. Where the office is of legislative creation, the Legislature can modi 6, 270, 93 A. 518, 520 (1915) (<HOLDING>); Ash v. McVey, 85 Md. 119, 129-31, 36 A. 440, Holdings: 0: holding a defendant is liable as a control person if the defendant had the power to control the general affairs of the entity primarily liable at the time the entity violated the securities laws but declining to decide whether power to control means simply abstract power to control or actual exercise of the power to control internal quotations omitted 1: holding that the legislature which created the state board of education has the power to abolish modify and control it and therefore had the power to do away with the prerequisite that the senate affirm the governors appointments of all commissioners serving on the board 2: holding that the governor had no power to make the appointment of officer of the school commissioner for cecil county without the consent of the senate when the office was not vacant because the legislature which had created and therefore controlled the office had not delegated that power to the governor 3: recognizing that the state courts have the power to abolish the tort of alienation of affections 4: holding that the governor did not have to obtain the consent of the senate for the appointment of a candidate when the first candidate had been rejected by the senate the senate was not in session at the time that the second candidate was appointed and because the legislature which created and therefore controlled the office did not require by statute that the governor seek the senates approval in those circumstances


Input: yield of money is approximately two percent); O’Shea v. Riverway Towing Co., 677 F.2d 1194, 1199 (7th Cir.1982) (Posner, J.) ("In periods when no inflation is anticipated, the risk-free interest rate is between one and three percent.”); id. at 1200 (indicating that one-half percent is "lower than most economists believe [the real rate of interest on safe investments] to be for any substantial period of time”); Feldman v. Allegheny Airlines, Inc., 382 F.Supp. 1271, 1293-94 (D.Conn.1974) (explaining that: an inflation-adjusted discount rate should be used; the rate should be about two percent during stable periods of low inflation; and it should be approximately one and one-half percent when inflation is high and/or unpredictable); see also Pfeifer, 462 U.S. at 548-49, 103 S.Ct. at 2556 (<HOLDING>); Culver v. Slater Boat Co., 722 F.2d 114, 122 Holdings: 0: holding that a trial court using a real growth rate of between one and three percent will not be reversed if it explains its choice 1: holding that a four percent error rate constitutes substantial compliance with a statute 2: holding that a 50 percent error rate would constitute a substantial risk of erroneous deprivation 3: holding that where the proper rate of interest was eight percent but the court ordered six percent movant had waived right to higher rate by not raising the issue earlier in its petition for review 4: holding that district court did not abuse its discretion in awarding prejudgment interest at the colorado statutory rate of 8 percent


Input: contains sufficient evidence for a jury to convict the defendant.” United States v. Tome, 61 F.3d 1446, 1455 (10th Cir.1995). Rather, reversal is appropriate where an error has a substantial influence on the outcome of a trial or leaves one in grave doubt as to whether it had such effect. United States v. Medina-Copete, 757 F.3d 1092, 1108 (10th Cir.2014). In determining whether Mr. Smith’s testimony had a substantial influence on the outcome of the trial, we And three factors relevant to this case: (1) the strength, importance, and pervasiveness of the erroneously admitted testimony; (2) the strength of the admissible evidence; and (3) whether the district court’s instructions to the jury mitigated any error. See, e.g., United States v. Turner, 285 F.3d 909, 914-15 (10th Cir.2002) (<HOLDING>); Tome, 61 F.3d at 1455 (holding that the Holdings: 0: holding although admission of victim impact testimony was error it was harmless in light of strong evidence against defendant 1: holding that error in admission of videotape was harmless because it was cumulative of childs properly admitted live testimony 2: holding that improper admission of expert testimony was harmless in light of otherwise overwhelming evidence and fact that testimony covering substantially the same area was introduced without challenge 3: holding improperly admitted testimony was cumulative to the other properly admitted evidence and was therefore harmless 4: holding that other evidence properly admitted at trial was sufficiently strong to permit the conclusion that the improper admission of unreliable expert testimony was harmless


Input: arrested twice in the year preceding the stop, once for manufacturing methamphetamine and once for possession of marijuana. This information was validly considered as part of the reasonable suspicion calculus. However, given that Detective Schaffner’s records check did not indicate that either of those arrests had resulted in a conviction, the Court accords this factor little weight in the overall analysis. 2. Nervousness Similarly, nervous behavior is not in itself sufficient to create reasonable suspicion, but is a factor that may be considered in the analysis. United States v. Perez, 37 F.3d 510, 514 (9th Cir. 1994), overruled on other grounds by United States v. Mendez, 476 F.3d 1077, 1080 (9th Cir. '2007); see also United States v. Crap-ser, 472 F.3d 1141, 1156 (9th Cir. 2007) (<HOLDING>). The government contends that Garcia’s extreme Holdings: 0: holding defendants nervousness in part presented officer with reasonable articulable suspicion of criminal activity 1: holding that reasonableness for qualified immunity purposes requires an objective inquiry into the totality of the circumstances 2: holding nervousness is of limited significance in determining whether reasonable suspicion exists 3: holding that eight factors including the drivers criminal record nervousness and lack of registration justified terry detention 4: holding that while nervousness may be considered as part of the totality of circumstances nervousness standing alone was insufficient to expand a terry stop into an inquiry into drug activity


Input: to render official belief in its existence entirely unreasonable,” or (4) the warrant is “so facially deficient ... that the executing officers cannot reasonably presume it to be valid.” Id. at 923, 104 S.Ct. at 3421 (citations omitted). There is no evidence in the record that Officer Hayhoe made any misrepresentations to the issuing state court judge, nor did he make any statements in reckless disregard for the truth. The only incorrect information given to the state court judge was that Taylor’s apartment was unit # 4 instead of unit # 3. At the time it was given Officer Hay-hoe believed this information was correct. The officers did not search Taylor’s apartment (unit # 3) until after a corrected search warr L.Ed.2d 249 (1990); United States v. DeBardeleben, 740 F.2d 440 (6th Cir.) (<HOLDING>), cert. denied, 469 U.S. 1028, 105 S.Ct. 448, Holdings: 0: holding that the structure purchased solely for demolition by the birmingham airport authority did not constitute a building for the purpose of thirddegree burglary 1: holding that the insertion of a key into the door of a car to see if it fit constituted the beginning of a search because there is a reasonable expectation of privacy 2: holding that mere insertion of key was not a search or at least not an unreasonable search protected by the fourth amendment 3: holding that insertion of a crowbar into the door of a suspects house by officers before they announced their presence constitutes an unreasonable search 4: holding that the insertion of a key into a lock solely for the purpose of identifying ownership does not constitute a search


Input: not filed for bankruptcy, could have brought them notwithstanding Cannon’s misappropriation of trust property, the presence of the express trust in this case complicates matters. Since Bradford did not accept the trust funds as a bona fide purchaser for value and without notice of Cannon’s breach of trust, under general common-law principles the funds Cannon misappropriated remain subject to the express trust. See, e.g., Harris Trust & Sav. Bank, 530 U.S. at 252, 120 S.Ct. 2180 (“[W]hatever [the trustee] recovers he will hold subject to the trust.”). Consequently, the trustee’s recovery, if any, in this case will benefit Cannon’s clients — not the general creditors of the estate. As we previously discussed, section 541 excludes from the debtor’s estate property hel 2d 114 (2d Cir.1991) (<HOLDING>); E.F. Hutton & Co. v. Hadley, 901 F.2d 979 Holdings: 0: holding that a trustee had no standing to pursue claims of fraud against the debtors accountant because under connecticut law those claims belonged to investors 1: holding that under the rule against splitting a cause of action a new claim for damages is not barred if the underlying cause of action had not accrued at the time of filing the previous lawsuit 2: holding that the trustee had standing to pursue an action for churning against the debtors broker relating to transactions in a discretionary account but did not have standing to bring a suit for fraud since that cause of action accrued to creditors under new york law 3: holding that the rico bar applies even where the plaintiff does not have standing to bring a securities fraud action 4: holding that the plaintiffs lacked standing to pursue a permanent nuisance action for injury to property because none of the plaintiffs were the owners of the land when the cause of action accrued with the first injury


Input: to clothe his argument under the guise of Supreme Court authority. Rather, he cites only our holding in Rodriguez to support his claim. Rodriguez itself makes clear, though, that its holding is based solely on Ninth Circuit precedent. Id. (“To the extent Nelson [v. McCarthy, 637 F.2d 1291, 1296-97 (9th Cir.1980),] requires pre-waiver clarification of a suspect’s wishes concerning his Miranda rights, it has not been superseded by Davis and remains binding precedent.”). Because state courts are not bound under AEDPA by precedent other than that established by the Supreme Court, Rodriguez is immaterial to our review of the state court’s decision to the extent Sessoms relies on it to argue that clarifying questions were required. Compare Albemi v. McDaniel, 458 F.3d 860, 866 (9th Cir.2006) (<HOLDING>), with Davis, 512 U.S. at 461, 114 S.Ct. 2350 Holdings: 0: holding that a state court cannot be said to have unreasonably applied clearly established federal law under  2254d1 when there are no holdings from the supreme court addressing the issue raised by the petitioner 1: holding that the sixth circuit erred by following its own precedent rather than that of the supreme court in determining what is clearly established federal law 2: holding that where the supreme court has expressly left an open question circuit precedent is immaterial and there is no clearly established law for the state court to have unreasonably applied 3: holding state court could not have unreasonably applied clearly established federal law given the lack of holdings from the supreme court regarding the potentially prejudicial effect of spectators courtroom conduct 4: holding that state court could not have unreasonably applied federal law if no clear supreme court precedent existed


Input: 257 S.E.2d 808, 818 (1979) (quoting Karnes v. Commonwealth, 125 Va. 758, 764, 99 S.E. 562, 564 (1919))). “Whether an alternate hypothesis of innocence is reasonable is a question of fact and, therefore, is binding on appeal unless plainly wrong.” Archer v. Commonwealth, 26 Va.App. 1, 12-13, 492 S.E.2d 826, 832 (1997). Emerson v. Commonwealth, 43 Va.App. 263, 277, 597 S.E.2d 242, 249 (2004). Absent a direct admission by the defendant, intent to distribute must necessarily be proved by circumstantial evidence. See Hunter v. Commonwealth, 213 Va. 569, 570, 193 S.E.2d 779, 780 (1973). Virginia courts have considered a number of factors alone and in combination when determining if an intent to distribute exists: 1) packaging (see McCain v. Commonwealth, 261 Va. 483, 545 S.E.2d 541 (2001) (<HOLDING>)); 2) quantity (see Early v. Commonwealth, 10 Holdings: 0: holding that large amount of cocaine packaged in individual baggies was one basis for affirming conviction for possession of a firearm in furtherance of a drug trafficking offense 1: holding that a defendant may not be charged with two separate offenses premised on two amounts of cocaine one found in a box and one found in a bag located in the passenger compartment of the defendants vehicle 2: holding that cocaine packaged in two individually wrapped blocks in a single plastic bag supported a finding of distribution 3: holding officers observation of plastic bag protruding from defendants pocket coupled with defendants behavior and officers knowledge that the area was commonly used for narcotic transactions and narcotics are commonly packaged in plastic bags provided sufficient probable cause to seize the plastic bag and arrest the defendant 4: holding there was insufficient evidence to prove intent to distribute where the defendant dropped a plastic bag containing loose white rocks of cocaine and there was no other indicia of the defendants intent such as the drugs being packaged in smaller baggies


Input: statute and thus was invalid. See Felton I, 4 Vet.App. at 369-71; Ozer I, 14 Vet.App. at 263-64. Indeed, as the preceding discussion shows, the Court’s denunciation of the regulation was even stronger in Felton I than in Ozer I. See ibid. Therefore, the Court holds that the Secretary was substantially justified in promulgating the regulation at issue here. See Felton II, 7 Vet.App. at 282-84; Secretary’s Oct. 2002 Mem. at 2 (attesting that Federal Register “contained no discussion of public comments having been solicited or received”). As to the second part of action at the administrative level, VA’s application of the regulation in the instant case, VA and the BVA were bound by law to apply the regulation to the appellant’s claim. See Fugere v. Derwinski, 1 Vet.App. 103, 110 (1990) (<HOLDING>). Moreover, as in Felton II, “the regulation Holdings: 0: recognizing that zoning agency bodies   are not bound by strict rules of evidence 1: holding that agency regulations cannot be applied retroactively unless congress has so authorized the administrative agency and the language of the regulations require it 2: holding that a party is not bound by the testimony of a witness it calls 3: holding that agency is bound by its regulations 4: holding that a panel of this court is bound by a holding of a prior panel but is not bound by a prior panels dicta


Input: portion of the affidavit on tape.” We are satisfied that under Criminal Rule 37(a)(l)(ii) Officer Mowry’s off-the-record statement to Magistrate Johnson may not be considered as part of the affidavit in support of the search warrant. The affidavit consists of four handwritten paragraphs followed by the words “continued on tape,” and six paragraphs transcribed from the testimony which was then recorded. Neither the written nor the taped portions of Officer Mowry’s affidavit contains any express connection between White and 21-D Kennedy Camp. The “composite affidavit” cannot be supplemented by additional material which the officer later testifies that he also told the magistrate, but which does not appear of record. See United States v. Anderson, 453 F.2d 174, 177 (9th Cir.1971) (<HOLDING>). The state’s reliance on Nelson v. State, 628 Holdings: 0: holding that a totality of circumstances standard was proper for determining probable cause for issuance of a search warrant based on information from an informant 1: holding that all data necessary to show probable cause for the issuance of a search warrant must be contained within the four corners of the affidavit 2: holding that there was probable cause for the issuance of a search warrant where the officers corroboration of events that occurred during the controlled buy as set forth in the affidavit provide sufficient probable cause 3: holding warrant valid where search warrant application affidavit was signed and probable cause existed for issuance of warrant 4: holding that the plaintiff must show that there was a lack of probable cause for the criminal prosecution


Input: an auto liability line of insurance with nearly identical language to the Nationwide Auto Policy at issue here. Id. at 1274. The Domino’s auto policy' agreed to “pay all sums Domino’s is legally required to pay ‘caused by an accident’ and resulting from the ‘ownership, maintenance or use of a covered auto.’ ” Id. Just like Titan, Domino’s had selected “any auto” in the covered auto section. Id. The Ninth Circuit upheld the District Court’s holding that Domino’s auto coverage was triggered by the accident. Id. at 1272. The Ninth Circuit, citing California state law precedent, held that the employee’s personal car was a “covered auto” under the “any auto” designation in Domino’s auto policy. Id. at 1275; See Travelers Indem. Co. v. Swearinger, 169 Cal.App.3d 779, 214 Cal.Rptr. 383 (1985) (<HOLDING>). Nationwide cites Ogden v. U.S. Fid. & Guar. Holdings: 0: recognizing application of sovereign immunity to school districts 1: holding that defendants auto theft conviction could serve to support his conviction for auto theft as a class c felony and as a prior unrelated felony conviction under the habitual offender statute 2: holding that a vehicle owned by a host family for a school overnight event fell under the any auto designation in the school districts auto policy 3: holding the tlo standard governs school searches when school resource officers  who although employed by the local police department are primarily responsible to the school district  are acting in conjunction with school officials 4: holding school districts had standing to bring claims against the state asserting that school financing system had become unconstitutional


Input: Tourtellot, No. 12-CV-413 (M.D.N.C. June 13, 2012) (Doc. 15 at 9-10) (finding that, under either mandatory withdrawal standard, legal issues triggered § 157(d)). Defendant Debtors’ complaint raises a claim of trademark infringement. (Doc. 5 ¶¶ 93-95.) It alleges that UD filed a federal application to register “AROUNDCAMPUS” as a trademark and service mark. (Id. ¶ 19.) The application currently awaits decision before the U.S. Patent and Trademark Office. (Id.) It further alleges that the mark 6 F.3d 144, 152-53 (4th Cir.2012) (laying out a multi-part test to establish trademark infringement claim under the Lanham Act and articulating “at least nine factors” relevant to one part of that test); cf. In re Singer Co., N.V., No. 01 CIV. 0165, 2002 WL 243779, at *3 (S.D.N.Y. Feb. 20, 2002) (<HOLDING>). Defendant Debtors cite Doctors Assoc., Inc. Holdings: 0: holding patent policy incorporated by reference into patent agreement 1: holding that the assignor of a patent retained substantial rights in the patent and must be added as an indispensable party 2: holding that copyright infringement defendant failed to prove the affirmative defense of unclean hands which was based on the patent holders marking of its product with an expired patent because there was no evidence that the patent holder had acted with the requisite intent to deceive 3: holding that whether an accused product infringes a patent requires significant and material consideration of patent law and thus withdrawal of reference was mandatory 4: holding a nonparty to a patent infringement suit who funded an unsuccessful challenge to a patent could not file a subsequent lawsuit again challenging the patent


Input: by the agency’s power to bring suit to require compliance. Another example of this usage, albeit in a slightly different context, appears in the citizen-suit provision of the Clean Water Act; under this statute, suits may not be instituted by individuals or organizations if the EPA or the appropriate state enforcement authority “has commenced and is diligently pursuing a civil or criminal action ... to require compliance” with the Act’s substantive provisions. 33 U.S.C. § 1365(b)(1)(B) (emphasis added). Despite this reference to “requir[ing] compliance” in the statutory language, the Supreme Court held in Romero-Barcelo that the Clean Water Act does not require the issuance of an injunction in all cases where a statutory violation has been identified. 456 U.S. at 313, 102 S.Ct. 1798 (<HOLDING>). These examples demonstrate that a statutory Holdings: 0: holding that a sentence not in compliance with the mandatory provisions of a sentencing statute was illegal and appealable 1: holding so under circumstances similar to the present ones 2: holding that neither the language of the statute nor its legislative history suggests that appointment is permissible only in some limited set of circumstances 3: holding that the grant of jurisdiction to ensure compliance with a statute hardly suggests a duty to do so under any and all circumstances 4: holding that substantial compliance with notice is sufficient


Input: 1380, 1390 (5th Cir. 1977); Marshall v. Gulf and Western Industries, Inc., 552 F.2d 124 (5th Cir. 1977). Indeed, Gulf and Western, holding that the agricultural exemption does not apply to tomato packing facilities that processed tomatoes grown by independent farmers, is controlling here. As in Gulf and Western, the processing activities here are subject to the requirements of the Fair Labor Standards Act since they are independent of the contract growers’ activity and nonagricultural in nature. REVERSED. 1 . This provision is to be read in parallel with the agricultural exemption of the Fair Labor Standards Act. Bayside Enterprises v. NLRB, 97 S.Ct. 576, 578, 97 S.Ct. 576, 50 L.Ed.2d 494 (1977). 2 . Defendant gains no support from Abbott Farms v. NLRB, 487 F.2d 904 (5th Cir. 1973) (<HOLDING>) in view of the Supreme Court’s statement in Holdings: 0: holding evidence of one possible burglary before incident at issue insufficient to demonstrate prior criminal activity 1: holding that abbotts feedmill operation was an agricultural activity because incident to a poultry raising venture 2: holding that raising a complaint about a violation of an internal policy is not considered protected activity 3: holding that the court bars a party from raising an issue on remand that  was not raised on appeal 4: holding that the plaintiff was precluded from raising the issue for the first time on appeal


Input: May 10, 1985). The district court was asked to render a decision on the merits without trial based on stipulated evidence. Schneider, 1985 WL 570618, at *1. On appeal, we held that the district court should have addressed whether there had been actual discharge because its findings of fact suggested that an actual discharge had occurred. Schneider, 794 F.2d at 384. A motion for summary judgment presents different opportunities and imposes different responsibilities on the parties. See Rodgers v. City of Des Moines, 435 F.3d 904, 908 (8th Cir.2006) (“Without some guidance, we will not mine a summary judgment record searching for nuggets of factual disputes to gild a party’s arguments.”); see also Satcher v. Univ. of Ark. at Pine Bluff Bd. of Trs., 558 F.3d 731, 735 (8th Cir.2009) (<HOLDING>). Thus, unlike the plaintiff in Schneider, who Holdings: 0: holding that the failure to oppose a basis for summary judgment constitutes waiver of that argument on appeal 1: recognizing that failure to develop claim on appeal constitutes waiver 2: holding that defendants failure to appeal the voluntariness of a plea constitutes waiver of the issue on subsequent appeal 3: holding that failure to brief an argument constitutes waiver 4: holding failure to brief argument constitutes waiver


Input: different grounds than those relied upon by the district court, and AFFIRM in part, REVERSE in part, and REMAND Shankle’s case for further proceedings consistent with this opinion. 1 . Circuit City reserved the right to modify the rules of the arbitration agreement, and it has modified one of the rules at issue in the present case. This modification is discussed in section III.D. infra. 2 . Even though Morrison’s case has been arbitrated, the claims she raises in this appeal are not moot because this court could still grant effectual relief in the present case, if we were to determine that the arbitration agreement was in fact unenforceable and thus arbitration should never have taken place. Cf. Church of Scientology v. United States, 506 U.S. 9, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) (<HOLDING>). As discussed infra, however, we ultimately Holdings: 0: holding that even though the appeal was not moot because effective relief was possible it was inequitable to require that the debtors counsel disgorge fees and costs awarded by the bankruptcy court 1: holding that the case was not moot even though claims for injunctive and declaratory relief were no longer alive because the plaintiff had requested pecuniary relief 2: holding that appeal of irs summons was not moot even though subject of summons had already turned over the evidence at issue because court could still order some partial relief 3: holding that challenge to oneyear order for protection was not moot even though it had expired 4: holding appeal moot on this basis


Input: entered pursuant to a nolo contendere plea constituted a “crime of violence” within the meaning of U.S.S.G. § 4B1.2(1). The Information merely stated, “without elaboration,” that the defendant had committed “the crime of intimidation based on bigotry and bias ... in violation of General Statute No. 53a-181b.” Id. at 56. However, the court held that “the plea proceeding includes a lucid description of the conduct for which Palmer was convicted, that conduct manifestly constitutes a ‘crime of violence’ ..., and Palmer’s on-the-record agreement to the description of his conduct proffered by the prosecuting attorney results in the functional equivalent of a plea agreement with respect to that conduct.” Id. at 59; see also United States v. Etimani, 328 F.3d 493, 503-04 (9th Cir.2003) (<HOLDING>). The reasoning in Palmer is persuasive. As Holdings: 0: holding that for sentencing purposes the government does not need to allege a defendants prior conviction or prove the fact of a prior conviction where that fact is not an element of the present crime 1: holding that a courts inquiry as to disputed facts in connection with a prior conviction is limited to the terms of the charging document a plea agreement a transcript of the plea colloquy or a comparable judicial record 2: holding that the record did not establish that a prior conviction was for a sexual act for purposes of the 18 usc  2241c sentence enhancement but remarking that a transcript of etimanis plea of nocontest might have clarified the exact nature of his prior conviction but none was provided 3: holding district courts use of state psr from different prior conviction permissible to establish fact of pri or conviction considered for acca sentence enhancement 4: holding that to avoid the risk of unfair prejudice the parties should make use of a redacted record stipulation affidavit or other similar technique whereby the jury is informed only of the fact of a prior felony conviction but not the nature or substance of the conviction


Input: the district court’s denial of his 28 U.S.C. § 2241 petition, challenging his guilty plea conviction and sentence for conspiracy to manufacture and distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846; and manufacturing methamphetamine, in violation of § 841(a)(1) and 18 U.S.C. § 2. We have jurisdiction pursuant to 28 U.S.C. § 2253. Reviewing de novo, see Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.1988), we affirm. Brees may not challenge his conviction or sentence pursuant to a § 2241 petition because he has failed to demonstrate that any remedy pursuant to 28 U.S.C. § 2255 is inadequate or ineffective to test the legality of his detention. Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir.1999) (per curiam); see Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir.2000) (<HOLDING>). Accordingly, the district court properly Holdings: 0: holding that a district court lacks jurisdiction to review a second or successive  2255 motion where the movant failed to obtain authorization to file the motion from this court 1: recognizing that   2241 is not available under the inadequateorineffectiveremedy escape hatch of  2255 merely because the court of appeals refuses to certify a second or successive motion under the gatekeeping provisions of  2255 2: holding that district court has no jurisdiction to decide unauthorized second or successive  2255 claims 3: holding premagwood that where a first  2255 motion was granted so movant could file a direct appeal the second  2255 motion was not a successive motion under aedpa 4: holding that a prisoner cannot use the savings clause of 28 usc  2241 to escape the restrictions on successive  2255 motions and the failure to raise an available claim earlier


Input: and unqualified. Id. at 256, 103 S.Ct. at 2990-91. That interest must be balanced against the government’s interest in the health, education, and welfare of children as citizens. Stanley v. Illinois, 405 ed legal norms regarding the degree of suspicion a child welfare worker must possess before initiating custody proceedings. Callahan, 880 F.Supp. at 332 (conducting thorough review of all-circuit case law). See also Doe v. State of Louisiana, 2 F.3d 1412, 1417 (5th Cir.1993) (casé worker and supervisor entitled to qualified immunity because law not clearly established with respect to claim that case worker manipulated children to state false allegations of abuse), cert. denied, 510 U.S. 1164, 114 S.Ct. 1189, 127 L.Ed.2d 539 (1994); Frazier v. Bailey, 957 F.2d 920, 929 (1st Cir.1992) (<HOLDING>); Hodorowski v. Ray, 844 F.2d 1210, 1217 (5th Holdings: 0: holding that plaintiff failed to prove that child care workers alleged conduct in programming children to accuse parent of abuse violated amorphous right of family integrity 1: recognizing fundamental right of parents to care for their children 2: holding care custody and control of children is a fundamental right 3: recognizing duty of parent to control conduct of child 4: holding right to family integrity is nebulous in nature and not sufficiently particularized for government officials to know that their conduct in removing children from parents custody without court order violated parents substantive rights


Input: 58 F.3d 896, 903-04 (3d Cir.1995) (“the fact that the ... plans used terms such as ‘lifetime’ or ‘for life’ to describe the duration of retiree medical benefits, while at the same time expressly reserving the company’s right to terminate the plans under which those benefits were provided, did not render the plans ‘internally inconsistent’ and therefore ambiguous.”). When the benefit plans and the collective bargaining agreement are read as a whole contract, it is clear that the phrase “will be covered” cannot mean a lifetime of unaltered coverage, as the plaintiffs contend, because the health benefit plans contain language in which the insurance company and NSTAR reserve the right to change or cancel coverage. See DeGeare v. Alpha Portland Indus., Inc., 837 F.2d 812, 816 (8th Cir.1988) (<HOLDING>), vacated and remanded on other grounds, 489 Holdings: 0: holding that disability benefits are not retirementtype benefits 1: holding that employers promise to provide welfare benefits until death of retiree did not create vested rights because employer had expressly reserved the right to terminate or amend the plan 2: holding employers promise that retiree benefits will continue did not create vested lifetime benefits in the face of a termination clause 3: holding that rights in a government benefits program were not vested property for purposes of the takings clause of the fifth amendment 4: holding that retirement benefits are accrued benefits under erisa


Input: citizens from harm caused by criminal conduct); Warren v. District of Columbia, 444 A.2d 1, 3 (D.C.1981) (neither District nor police officials can be held liable for failure of police properly to respond to request from victims for protection from burglars); see also District of Columbia v. Forsman, 580 A.2d 1314, 1317-18 (D.C.1990) (District owes no individualized duty, in context of issuing building permits, to ensure that person to whom permit is issued secures liability insurance adequate to compensate neighbors for damage to their property caused by collapse of permittee’s structure). 5 . My colleagues dispute this analogy upon the ground that the public duty doctrine "is applied to determine whether a duty exists.” That, however, is also the essenc 140, 142-43 (D.C.1990) (<HOLDING>). My colleagues apparently contend that Nichol Holdings: 0: holding that hospital may be held liable for negligence of emergency room physicians under apparent agency doctrine 1: holding that the govemment is not liable under the federal tort claims act for injuries to service members where the injuries arise out of or are in the course of activity incident to military service 2: holding that a forest preserve will be liable for injuries only in the case of willful and wanton negligence that proximately causes such injuries 3: holding bad faith not merely negligence must be proved if insurer is to be held liable for damages over policy limits for refusing to settle 4: holding that district could be held liable if affirmative negligence of ambulance service actively worsens plaintiffs injuries


Input: F.2d 77, 79 (4th Cir.1989); Bruce v. Riddle, 631 F.2d 272, 279 (4th Cir.1980). Their actions are in a “legislative capacity” if they are an “integral part,” Gravel v. United States, 408 U.S. 606, 625, 92 S.Ct. 2614, 2627, 33 L.Ed.2d 583 (1972); Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 504, 95 S.Ct. 1813, 1821, 44 L.Ed.2d 324 (1975), of legislative actions undertaken by the local governmental body. Scott v. Greenville County, 716 F.2d 1409, 1423 (4th Cir.1983) (indicating that county council members acted in their legislative capacity if the action taken by the council in which they participated was legislative). Not all actions undertaken by local governmental bodies that have legislative responsibilities are necessarily “legislative.” E.g., Scott, 716 F.2d at 1423 (<HOLDING>); Trevino v. Gates, 17 F.3d 1189, 1191 (9th Holdings: 0: holding a dedication of a rightofway in connection with a subdivision did not vest rights in the property owner for the purpose of estopping the county from changing the zoning classification absent a showing that the planning commission or county knew that the sewer permit would not be granted or that the countys subdivision regulations guaranteed the zoning of the property would not change 1: holding that county councils action in delaying consideration of zoning permit was not legislative 2: recognizing that the zoning code of a homerule city is a legislative enactment 3: recognizing that zoning and rezoning are legislative matters 4: 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


Input: E.g., Gafford v. State, 387 So.2d 333, 337 (Fla.1980); Lewis v. State, 377 So.2d 640, 646-47 (Fla.1980); Fleming v. State, 374 So.2d 954, 957-59 (Fla.1979). The United States Supreme Court has reversed a death sentence on federal constitutional grounds where the state supreme court rejected all three of the theories relied on by the sentencing jury in support of an aggravating factor. Presnell v. Georgia, 439 U.S. 14, 99 S.Ct. 235, 58 L.Ed.2d 207 (1978) (per curiam). The Court held the defendant’s right to due process was violated by the state supreme court’s affirmance of his sentence on the basis of a theory that the sentencing jury had not been instructed to consider. Id. at 16-17, 99 S.Ct. at 236-237. See also Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (<HOLDING>). 44 . An essential premise of the Majority’s Holdings: 0: holding that the death of a victim may not be considered an aggravating factor in a homicide sentencing 1: recognizing that the fear experienced by the victim before death is a significant factor in determining the existence of this aggravating circumstance 2: holding sentencers application of outrageously or wantonly vile horrible and inhuman aggravating factor to particular case unconstitutional and invalidating death sentence based solely on that factor 3: holding evidence sufficient to support aggravating factor of old age 4: recognizing attorneys substantial experience in the practice of law as an aggravating factor


Input: trials cover proceedings for a voir dire examination of potential jurors. Press-Enterprise was subsequently relied on in Waller v. Georgia (1984), 467 U.S. 39, 81 L. Ed. 2d 31, 104 S. Ct. 2210, where the court held that the sixth amendment right to a public trial applies to hearings on motions to suppress evidence. The court noted that Press-Enterprise was premised on the first amendment right of the public and the press to attend voir dire proceedings but added, “Nevertheless, there can be little doubt that the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public.” (Waller, 467 U.S. at 46, 81 L. Ed. 2d at 38, 104 S. Ct. at 2215; see also United States v. Kobli (3d Cir. 1949), 172 F.2d 919 (<HOLDING>).) Accordingly, it is clear that the public Holdings: 0: holding that the closure of a courtroom during jury selection a structural error did not seriously affect the fairness integrity or public reputation of the judicial proceedings 1: holding a material departure from statute governing jury selection is one that affects the substantial rights of a defendant in securing an impartial jury 2: holding that the selection of the jury constitutes part of a public trial 3: holding that it is error to conduct most of the jury selection process in the absence of the defendant 4: holding that a defendants guilty plea   forecloses independent inquiry into the claim of discrimination in the selection of the grand jury


Input: at sentencing, “quick, temporary transfers do not violate the IAD.” Id. at 541-42 (citing Taylor v. United States, 504 U.S. 991, 112 S.Ct. 2982, 119 L.Ed.2d 599 (1992) (White, J., dissenting from denial of certiorari)). Much of the legal foundation of the Taylor rule was abrogated by the Supreme Court of the United States’ holding in Bozeman, 533 U.S. 146, 121 S.Ct. 2079. In Bozeman, the Supreme Court held that “every prisoner arrival in the receiving state, whether followed by a very brief stay or a very long stay in the receiving state, triggers [Article] IV(e)’s ‘no return’ requirement.” 533 U.S. at 154, 121 S.Ct. 2079. The Supreme Court reasoned that the language of the IAD was absolute and militated against an implicit exception, even for de minimis violation 5 (Ct.App.1994) (<HOLDING>); State v. Wade, 105 Nev. 206, 772 P.2d 1291, Holdings: 0: holding the iad inapplicable to a prisoner at a temporary holding facility and noting that while there may be an occasional case in which a prisoner awaiting transfer is involved in rehabilitative programs offered at the local facility such rehabilitation efforts themselves ultimately would be disrupted by that prisoners transfer to his permanent correctional residence 1: holding that because the stated purpose of the iad is to prevent interference with a prisoners rehabilitative environment there is no reason for the iad to apply to a prisoner until he or she is assigned to the institution where the sentence will be served 2: holding the iad was not applicable to a prisoner who had been sentenced but was incarcerated in a local jail or holding facility while awaiting transfer to the assigned penal institution 3: holding that iad is not applicable until a state lodges a detainer in the jurisdiction where the prisoner is incarcerated 4: holding that a youth detention facility was a jail for purposes of statute requiring credit for time served in jail while awaiting trial


Input: by the parties or some other established exception.” Merlino v. Delaware County, 556 Pa. 422, 425, 728 A.2d 949, 951 (1999). In cases where parties to a contract agree to shift fees, “provisions for the payment of ‘costs of collection’ have often been held to include reasonable attorney’s fees in the event that it is necessary to institute legal action to collect.” Wrenfield Homeowners Ass’n, Inc. v. DeYoung, 410 Pa.Super. 621, 600 A.2d 960, 964 (1991). Additionally: “Taxable costs are generally payable incident to a final judgment, i.e., after termination of the action by discontinuance or final disposition.” Miller Elec. Co. v. DeWeese, 589 Pa. 167, 175, 907 A.2d 1051, 1056 (2006). See also Joseph F. Cappelli & Sons, Inc. v. Keystone Custom Homes, Inc., 815 A.2d 643 (Pa.Super.2003) (<HOLDING>). ¶ 26 Instantly, the “Default and Remedies” Holdings: 0: recognizing that the sixth amendment guarantees a defendant the right to counsel and the right to waive counsel 1: recognizing right to counsel fees arose as result of favorable verdict in underlying litigation 2: recognizing the right to counsel on appeal 3: recognizing constitutional right to effective counsel 4: recognizing that a criminal defendants right to counsel is the right to the effective assistance of counsel


Input: expectation that it w[ill] arrive in th[e] forum,” 629 N.W.2d at 675, sufficient to constitute purposeful availment in Maryland. To satisfy the “purposeful availment” requirement in Maryland, mere foreseeability that a defendant’s products will enter the State and cause injury here is insufficient. Bond, 391 Md. at 730, 895 A.2d at 1005. Rather, the defendant must “create a ‘substantial connection’ ” with Maryland such that having to defend a lawsuit in the State would be foreseeable. See Burger King Corp., 471 U.S. at 475, 105 S.Ct. a ng that a Maryland court could exert jurisdiction over a Kentucky resident whose agent engaged in “intensive” negotiations with a temporary resident of Maryland to resolve a contract dispute); Harris v. Arlen Properties, 256 Md. 185, 260 A.2d 22 (1969) (<HOLDING>). Purposeful availment, however, will not arise Holdings: 0: holding that a maryland court could exercise jurisdiction over an outofstate real estate development company that scouted potential development sites in maryland and through its agents filed a building permit in the state and arranged for the washington suburban sanitation commission to install a storm drain 1: holding that the university of maryland law school was a state agency 2: holding that a question of fact existed as to whether defendants alleged predicate acts directly injured plaintiff under the parties real estate development contract after defendants forced plaintiff out of further development of the property 3: holding that a maryland court could exercise jurisdiction over an outofstate hospital that provided services to maryland residents and registered as a maryland provider designating itself as a liver transplant referral center 4: holding that a maryland court could not exercise jurisdiction over an ohio lawyer when a maryland client initiated five of seven contacts with the lawyer the parties created the attorneyclient relationship in ohio and the attorneyclient relationship involved only events in and the law of ohio


Input: deadline waives its right to challenge the report on appeal. Neason v. Buckner, 352 S.W.3d 254, 259 (Tex.App.-Houston [14th Dist.] 2011, no pet.); Troeger, 274 S.W.3d at 108. In that event, we do not consider the merits of the defendant’s objections. See Neason, 352 S.W.3d. at 259; Troeger, 274 S.W.3d at 108. The Hospital complains that the expert reports addressed only the doctors’ conduct and did not name the Hospital; however, the Hospital concedes-that Nguyen pleaded that the Hospital was vicariously hable for the conduct d on a potentially frivolous vicarious liability claim would encourage claimants to artfully plead vicarious liability claims against hospital, defendants to avoid dismissal-of those defendants from the case. See Loaisiga v. Cerda, 379 S.W.3d 248, 261 (Tex.2012) (<HOLDING>). The Hospital would have this court add to the Holdings: 0: holding that the district court should consider the totality of the circumstances in determining whether the patentee acted in subjective bad faith and should consider whether circumstantial evidence would support an inference of bad faith 1: holding expert may consider and assume validity of matters set out in pleadings in the suit absent a showing that thepleadings are groundless or in bad faith or rebutted by evidence in the record 2: holding that where the plaintiff is pro se the court must consider as evidence in his opposition to summary judgment all of plaintiffs contentions offered in motions and pleadings where such contentions are based on personal knowledge and set forth facts that would be admissible in evidence and where plaintiff attested under penalty of perjury that the contents of the motions or pleadings are true and correct 3: holding that for a defendant to recoup attorneys fees under  706k of title vii a court must find that the plaintiff litigated his or her claim beyond the point where it became frivolous unreasonable or groundless or where plaintiff acted in bad faith 4: holding expert testimony is not required as a per se rule  in bad faith actions


Input: he or she is innocent of these allegations would do. Wyche and McCord are thus archetypal eicirmsic-fabrication cases. Moreover, the confession cases the majority relies upon are wholly distinguishable. Many of these confession cases involve situations where the police lie to the suspect by falsely claiming that a eodefen-dant has already confessed and implicated the suspect, so the suspect might as well come clean. See, e.g., Frazier, 394 U.S. at 739, 89 S.Ct. 1420; Burch, 343 So.2d at 833 (substantially similar, but involving “failed polygraph” ruse). Even in those cases that do not involve this precise species of misrepresentation, the misrepresentation is still intrinsic to the case the police are actually investigating. See, e.g., Escobar v. State, 699 So.2d 988, 994 (Fla. 1997) (<HOLDING>), abrogated on other grounds by Connor v. Holdings: 0: holding that physical brutality led to an involuntary confession 1: holding that impermissible police procedures rendered confession involuntary 2: holding that agents promise to inform prosecutor of defendants cooperation does not render a subsequent confession involuntary 3: holding that later declarations during defendants confession leading officers to evidence of the crime constituted part of one continuous confession that began at the police station 4: holding that pjolice misrepresentation alone does not necessarily render a confession involuntary in the context of a case where police allegedly misrepresented that they possessed physical evidence of the crime at issue


Input: rights shall be liable in a suit for damages.” Tower v. Glover, 467 U.S. 914, 919, 104 S.Ct. 2820, 81 L.Ed.2d 758 (1984) (quoting 42 U.S.C. § 1983). As this statement makes clear, the party from whom damages are sought must have acted under color of state law. Therefore, the relevant inquiry in Yanaki was whether the private defendants (the only parties sued) acted under color of law. We affirmed the dismissal of the complaint because we found that the plaintiffs had failed to allege sufficiently that the private defendants had acted under color of state law because the conduct of the private defendants in obtaining the relevant court orders could not be attributed to the state so as to satisfy the first part of the under-color-of-law test. See Yanaki, 415 F.3d at 1209-10 (<HOLDING>); see also id. at 1211 (Holloway, J., Holdings: 0: holding that the involvement of the police in executing the courtordered search without more does not convert the private defendants abuse of state law into conduct attributable to the state for purposes of  1983 liability and because yanaki and moss allege nothing more than private misuse of state laws their compliant fails to satisfy the first part of the color of law test 1: holding that establishing the existence of an understanding among private parties and state actors for  1983 conspiracy purposes is really nothing more than another way to show state action by alleging a private partys connection to a state actor 2: holding that private misuse of a state statute does not describe conduct that can be attributed to the state 3: holding private actors are not acting under the color of state law for the purposes of section 1983 liability 4: holding that to prevail on a  1983 claim a plaintiff must allege that the defendant acted under color of state law in other words that there was state action


Input: damages for Tele-group’s alleged breach of its agreement to use its best efforts to ensure that their stock was registered and freely tradeable. Claimaifts appeal from an order of the District Court affirming the Bankruptcy Court’s order subordinating their claims against the bankruptcy estate pursuant to § 510(b). Claimants argue that § 510(b) should be construed narrowly, so that only claims for actionable conduct-typically some type of fraud or other illegality in the issuanc se from” the purchase or sale of Telegroup’s common stock because they allege a breach of the purchase agreement whereby claimants acquired shares of- Tel-egroup stock, which required Telegroup- to use its best efforts to register its stock. See In re NAL Fin. Group, Inc., 237 B.R. 225 (Bankr.S.D.Fla.1999) (<HOLDING>); see also In re Betacom of Phoenix, Inc., 240 Holdings: 0: holding that claims for breach of debtors agreement to use its best efforts to register its securities arise from the purchase of those securities for purposes of  510b 1: holding that a claim for breach of a provision in a merger agreement arises from the purchase or sale of the debtors securities 2: holding that claims alleging that the debtor fraudulently induced the claimants to retain securities they had purchased from the debtor arise from the purchase or sale of those securities for purposes of  510b 3: holding that plaims for breach of a merger agreement arise from the purchase or sale of debtors securities 4: holding that claims that debtor fraudulently induced claimants to retain debtors securities arise from the purchase or sale of those securities


Input: it required to credit their opinions over other evidence that was relevant to her medical condition. See id. Because, as the district court decided, Ms. Atkins’ “evidence was not thorough enough to be considered reliable,” Aplt. App., Vol. 3 at 890, and the additional medical evidence she submitted “did not meet the degree of specificity [she] had been advised was required,” id. at 891, Sedgwick gave proper weight to Dr. Shadid’s and Ms. Burrows’ opinions. Sedgwick’s reliance on its consulting doctors’ paper review of the medical records of Dr. Shadid and Ms. Burrows was not, under the circumstances presented here, arbitrary and capricious. See Hufford v. Harris Corp., 322 F.Supp.2d 1345, 1359 (M.D.Fla.2004); see also Davis v. Unum Life Ins. Co. of Am., 444 F.3d 569, 577 (7th Cir.2006) (<HOLDING>), cert. denied, No. 06-70, 2006 WL 2007574 Holdings: 0: holding that review of medical history during an examination assisted doctors medical conclusions 1: recognizing it is common and reasonable for doctors to examine medical records and arrive at professional opinions 2: holding that expert report that sufficiently addressed certain claims against doctor employed by professional association was sufficient as to claims against professional association based on doctors negligence because the doctors negligence is imputed to the association under the professional association act 3: holding that an employer must permit cpa to examine employers records 4: holding that a patients settlement of a prior action brought against him by doctors for payment of a bill did not bar medical malpractice action against doctors


Input: nature of the suit because this case can be resolved on a narrower ground. Assuming without deciding under the Koch Fuels rationale that Concor-dia’s designation of the action as arising in admiralty did not necessarily control the entire action, we nonetheless conclude that Pa-nek waived his right to a jury by making a 9(h) election to proceed “In Admiralty” without making a demand for a jury in the counterclaim. To begin, Rule 9(h) applied to Panek’s counterclaim because his claims for breach of contract and negligence were saving 5, 8 (D.Mass.1988) (‘Where a claim is made in accordance with Rule 9(h), the existence of diversity as an alternative basis of jurisdiction will not entitle plaintiff to a jury trial.”); Banks v. Hanover Steamship Corp., 43 F.R.D. 374, 376-77 (D.Md.1967) (<HOLDING>). Panek argues that the words “In Admiralty” in Holdings: 0: holding that a complaint that asserts both admiralty jurisdiction and diversity jurisdiction is not an adequate 9h designation to trigger admiralty procedures 1: holding that a party need not make a specific reference to rule 9h to fall under admiralty jurisdiction 2: holding that courts apply substantive admiralty law to claims that sound in admiralty regardless of whether the complaint invokes diversity or admiralty jurisdiction 3: holding that substantive admiralty law applies though suit was filed in federal court under diversity jurisdiction 4: holding that admiralty jurisdiction extends to maritime insurance contracts


Input: a gate-keeping function, the court’s focus is on the expert’s methodology, while the “soundness of the factual underpinnings of the expert’s analysis and the correctness of the expert’s conclusions based on that analysis are factual matters to be determined by the trier of fact.” Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir.2000) (citing Daubert, 509 U.S. at 595, 113 S.Ct. 2786). In this case Dickson has formed an opinion — based on his experience with roofs in general and his inspection of the particular roof in question — as to what caused the damage to the roof. (Dickson’s Dep. at 74-91.) It is not this court’s job to determine whether his opinion is correct — it is the plaintiffs job to attack the validity of his opinion on cross-examination. See Smith, 215 F.3d at 718 (<HOLDING>). Thus, Dickson will be allowed to testify Holdings: 0: holding that it is not the courts role to decide whether an experts opinion is correct 1: holding that an experts opinion must be based on facts in evidence or within his or her knowledge and that the admission of an experts opinion is reviewed for an abuse of discretion 2: holding that if an experts opinion is dependent upon information that is inaccurate or lacks support in the record it is deemed incompetent 3: holding that it is not 4: holding even though experts are permitted to give an opinion they may not offer an opinion regarding the credibility of others


Input: to allow all express warranties of limited duration to impliedly exclude or modify implied warranties. Instead, we base our holding on the fact that here, paragraph 55’s global warranty was incorporated into the specifications, and even the commentary to § 12A:2-316 recognizes that the instance in which a “buyer gives precise and complete specifications to the seller” is not the ordinary circumstance that the section is designed to address. Nevertheless, we believe our holding is in line with the general purpose of § 12A:2-316, which, according to the commentary, is to ensure that there are no surprises concerning which warranties accompany the goods sold. See N.J. Stat. Ann. § 12A:2-316 cmt. n. 1. See also Travel Craft, Inc. v. Wilhelm Mende GmbH & Co., 552 N.E.2d 443, 445 (Ind.1990) (<HOLDING>). Because we conclude that in this case there Holdings: 0: holding that to apply indcode  26123162 which is identical to  12a2316 in favor of  the buyer and drafter of the warranty would subject the seller to the same type of surprise the provision is intended to prevent 1: holding that seller carried insurance for benefit of buyer and held proceeds in trust for buyer when seller agreed to maintain insurance until possession date but bam burned before buyer took possession 2: holding that breach occurred when seller told buyer that seller would do no more to rectify alleged warranty violation 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: holding that a seller could enforce an arbitration provision against a buyer even though only the buyer had signed the provision


Input: rather than opinions. As we said in Dayco Corp. v. NLRB, 382 F.2d 577, 579 (6th Cir.1967), “[a] single sentence contained in a letter or speech of an employer, cannot be considered apart from the entire statement and background in which it was made.” HCEA places great weight on one sentence from the letter, where Stewart, after explaining that PECCA removes principals and assistant principals from the collaborative conferencing unit, stated, “I trust this information will be shared appropriately with any HCDE administrators who inquire about remaining members of [HCEA].” While this statement could conceivably be read as a command in other contexts, here the full text of the letter confirms that Stewart’s statement is a request rather than an order. Notab 2d 1006, 1008 (5th Cir.1969) (<HOLDING>). Third, HCEA contends that the district court Holdings: 0: holding that where contract does not authorize employers selective discharge of union officials discharge violates section 8a3 1: holding that threatening to discipline employees for not reporting union solicitation violated  8a1 2: recognizing that union members interests are adequately represented by the union 3: holding that threatening to discharge union secretary for presenting employee grievances violated  8a1 4: holding union members state law claims for defamation against union preempted


Input: v. Grimes, 173 F.3d 634, 637 (7th Cir.1999). Crimes against vulnerable victims also warrant additional punishment because the criminal’s choice of such victims evidences an “extra measure of criminal depravity.” United States v. Castellanos, 81 F.3d 108, 111 (9th Cir.1996). Further, the vulnerable victim enhancement serves the special needs of vulnerable victims by creating a greater level of societal protection for those who are most in need of such protection. See United States v. Randall, 162 F.3d 557, 560 (9th Cir.1998). Section 3Al.l(b)(l) of the Sentencing Guidelines provides that: “If the defendant knew or should have known that a victim of the offense was a vulnerable victim, increase [the offense level] by 2 additional levels.” We have explained the applicat 5 (9th Cir.2000) (<HOLDING>); United States v. Randall, 162 F.3d 557, 560 Holdings: 0: holding that prosecutors statement that crime shouldnt go on was simply a way of saying that defendant had engaged in criminal conduct and should not be permitted to continue that criminal conduct 1: holding a sleeping victim of sexual abuse was particularly susceptible to criminal conduct 2: holding a car salesman who was obligated to go on a drive with assailants was particularly susceptible to criminal conduct 3: holding that criminal conduct on premises was not foreseeable 4: holding persons known to have fallen for telemarketing scams previously were particularly susceptible to criminal conduct


Input: See Fla. Stat. § 768.28(9)(a) (providing immunity for officers in tort unless they “acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.”); Von Stein v. Brescher, 904 F.2d 572, 584 (11th Cir. 1990) (“[T]he conduct is privileged and the actor is never liable where he does no more than insist upon his legal rights in a permissible way, even though the actor is well aware that such insistence is sure to cause emotional distress.”). Further, because Sada was not deprived of any constitutional or statutory rights, the City is not municipally liable for claims of negligence for any insufficient training under § 1983. City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986) (<HOLDING>). And lastly, because there was probable cause Holdings: 0: holding that a superior can be held liable in his individual capacity if he participated in the deprivation of a plaintiffs constitutional rights 1: holding that if a police officer inflicted no constitutional injury on a suspect it is inconceivable that the police commissioners could be liable to the suspect 2: holding that the constitutional requirement for ripeness is injury in fact 3: holding officer liable for deprivation of constitutional rights despite argument that officer although present was not in control of the situation 4: holding that if a person has suffered no constitutional injury at the hands of the individual police officer the fact that the departmental regulations might have authorized a constitutional deprivation is immaterial


Input: (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; [and] (D) the difficulties likely to be encountered in the management of a class action. Fed.R.Civ.P. 23(b)(3). 13 . The per se ban on simultaneous negotiation of settlement terms and attorney's fees pronounced in Prandini v. National Tea Co., 557 F.2d 1015, 1020-21 (3d Cir.1977), has been overruled by the Supreme Court in Evans v. Jeff D., 475 U.S. 717, 738 n. 30, 106 S.Ct. 1531, 1543 n. 30, 89 L.Ed.2d 747 (1986), at least as to statutory fee actions under 42 U.S.C. § 1988. See Ashley v. Atlantic Richfield Co., 794 F.2d 128, 137-38 & n. 16 (3d Cir.1986) (<HOLDING>). Applying either the letter or the spirit of Holdings: 0: recognizing rule 1: recognizing prandinis overruling 2: recognizing privilege 3: recognizing change 4: recognizing presumption


Input: for the Hostile Work Environment Because the district court concluded that Bell Atlantic was entitled to summary judgment on the first element of a hostile work environment claim, it did not reach the second element: whether any harassing conduct can fairly be imputed to the employer for purposes of assessing liability. See Mack v. Otis Elevator Co., 326 F.3d at 122. Bell Atlantic submits that, on the record before this court, this question of vicarious liability can be resolved in its favor as a matter of law, thereby providing an alternative ground for affirming the district court’s award of summary judgment. In the exercise of our discretion and in the interests of judicial economy, we address this issue, see Booking v. General Star Mgmt. Co., 254 F.3d 414, 418-19 (2d Cir.2001) (<HOLDING>), and conclude that disputed issues of fact Holdings: 0: holding that subject to limited exceptions this court will not consider issues not presented to the district court but raised for the first time on appeal 1: holding that where it was clear that the court of appeals had limited the issues on resentencing to the one issue raised in the defendants first appeal the district court did not err in declining to consider other issues raised by the defendant on remand 2: holding issues not raised in appellate brief are waived 3: recognizing appellate courts discretion to consider issues raised in the district court but not resolved there 4: recognizing that an appellate court ordinarily will not consider issues that were not raised at trial


Input: where the underlying claim is for breach of a contract); W.D. Haden Co. v. Dodgen, 158 Tex. 74, 81-82, 308 S.W.2d 838, 842 (1958) (drawing no distinction between the individual defendant and the agency defendant in holding that a suit seeking “enforcement of contract rights” is barred by immunity in the absence of any “statutory provision governing or limiting the manner of sale”). The underlying nature of Multi-County’s contract claim is not altered simply because it seeks to prevent the governmental entities from continuing the alleged breach of contract in the future rather than seeking monetary damages for a breach that may have occurred in the past. In sum, this is a contract action to which governmental immunity applies. See, e.g., Dodgen, 158 Tex. at 79, 308 S.W.2d at 840-41 (<HOLDING>); Anderson v. City of McKinney, 236 S.W.3d 481, Holdings: 0: holding that immunity applies to suit for declaratory judgment that plaintiff was entitled to continue paying for mudshell at the price specified in its contract with the government 1: holding that plaintiff stated a claim for breach of contract when it alleged the government failed to purchase insurance for plaintiff as agreed by contract 2: holding that for a suit to be brought in the venue in which the contract was to be performed the contract must expressly state where the performance of the contract was to occur 3: holding that plaintiff was entitled to sue under rule 10b5 for the difference between the price and the value received from the sale of the security where as here the evil is not the price at which plaintiff bought but the fact of being induced to buy 4: holding that immunity from suit precluded claim for breach of contract for sale of county property and request for specific performance of contract


Input: claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit — not that the prisoner will ultimately prevail on his claim. See Martinez, 132 S.Ct. at 1318-19 (citations omitted). Here, Abdur’Rahman met these requirements. 1. Petitioner alleges trial counsel was ineffective Abdur’Rahman argues that his trial counsel was ineffective in failing to address cumulative errors and correct the accomplice jury instruction. (See Pet’r State ment, R. 367, Page1D 520-23.) This is sufficient to meet the first prong of the Martinez/Trevino test. 2. Petitioner alleges post-conviction counsel was ineffective Martinez does not apply to claims of ineffective assistance of appellate counsel. See Atkins, 792 F.3d at 661 (<HOLDING>). However, as evidenced by the briefs in this Holdings: 0: holding that review of counsel ineffectiveness claims should be deferred until collateral review 1: holding that counsel cannot raise his or her own ineffectiveness 2: holding that the appellate standard of review of ineffectiveness claim is de novo 3: holding that ineffectiveness of postconviction counsel could establish cause to reopen judgment but ineffectiveness of postconviction appellate counsel could not 4: holding that where trial counsel was not ineffective appellate counsel was not ineffective for failing to raise claim of ineffectiveness of trial counsel


Input: has not imposed strict liability for disparate impact. Pfaff recognized that a defendant may rebut a plaintiffs showing of disparate impact by “supplying] a legally sufficient, nondiscriminatory reason.” 88 F.3d at 746-747 (noting that “the appropri ate standard of rebuttal in [Title VII] disparate impact cases normally requires a compelling business necessity”). The question here is what constitutes a legally sufficient reason for a municipality executing its congressionally mandated duties under TEFRA. While we are mindful of the guidance Title VII often provides in FHA,cases, the defense of “business necessity” in the employment discrimination arena does not transpose cleanly into the circumstances present here. Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 148 (3rd Cir.1977) (<HOLDING>). Congress required the city council to hold a Holdings: 0: recognizing that importing the defense of business necessity from the employment discrimination context to a claim under the fair housing act is of somewhat uncertain application 1: holding that claims arising under the age discrimination in employment act may be subject to arbitration 2: holding that the elements of a criminal necessity defense under  951 are the same as the civil privilege defense 3: holding that the most analogous claim for relief under new york law is a claim for employment discrimination 4: holding that city council is entitled to absolute legislative immunity from claim under the age discrimination in employment act