Input: by the United States. Claims for vessel owner negligence under § 905 were delineated in Scindia, where the Court held that a vessel owner may be liable in tort for injury to an LHWCA employee if the vessel owner (1) fails to warn the repairman’s employer of a hidden danger that is known, or should have been known in the exercise of reasonable care, 451 U.S. at 167, 101 S.Ct. at 1622; (2) actively involves itself in repair work and negligently causes injury, id.; or (3) fails to intervene upon discovering a dangerous condition and the employer’s failure to correct it. Id. at 175-78, 101 S.Ct. at 1626-28. Contribution may be had against a person where the original plaintiff could have enforced liability against him. See United States v. Standard Oil Co., 495 F.2d 911, 919 (9th Cir.1974) (<HOLDING>). Because, if the United States had been a Holdings: 0: holding that contribution will lie where no statute precludes recovery from the joint tortfeasor against whom contribution is sought 1: holding original tortfeasor had no right to indemnification because claim properly was for contribution 2: recognizing a right to contribution 3: recognizing necessity of release of joint tortfeasor against whom contribution is sought 4: recognizing right of contribution against joint tortfeasor where release is obtained on his behalf


Input: CURIAM. AFFIRMED. DELL, C.J., and FARMER, J., concur. GLICKSTEIN, J., concurs in part and dissents in part with opinion. GLICKSTEIN, Judge, concurring in part and dissenting in part. I concur with the majority on the merits of the action, but disagree on the award of attorneys’ fees by the trial court. As to that, I would reverse and remand with direction to apportion appellant’s responsibility for same in accordance with the interest he received. See § 64.081, Fla.Stat. (1993); Diaz v. Security Union Title Ins. Co., 639 So.2d 1004, 1006 (Fla. 3d DCA), rev. denied, 649 So.2d 232 (Fla.1994) (<HOLDING>); Daugharty v. Daugharty, 441 So.2d 1160 (Fla. Holdings: 0: holding that cotenants of property each possessing a onehalf interest in property are each hable for onehalf of the attorneys fees awarded 1: holding that plaintiffs may have a property interest in real property 2: holding imposition of constructive trust on onehalf of brothers interest in decedent mothers real property for benefit of sister was particularly appropriate where there was evidence mother had orally stated that brother and sister should share all of her property equally even though deed for real property listed brother as sole owner 3: holding party should have segregated attorneys fees for fraud claim from attorneys fees for contract claim based largely on the difference between the essential elements of each claim 4: holding that awarded fees were reasonable and that proof that attorneys fees are necessary apart from testimony as to the reasonableness of the fee is not required


Input: of Pinewood on the date of the judgment between Ritchie and defendants. After the judgment, defendants were granted a preliminary injunction against Ritchie and all companies in which he maintains an ownership interest “from selling, disposing of, secreting, transferring or encumbering any assets until the post-judgment collection proceedings are completed[.]” Among those entities enjoined by the lower court was Pinewood, and, by extension, the assets Pinewood holds as trustee. Pinewood was not a named defendant in the injunction. According to the complaint, neither Ritchie nor Pinewood maintain an ownership interest in those trust assets. The preliminary injunction was later vacated by this Court. Harris v. Pinewood Dev. Corp., 176 N.C. App. 704, 707-08, 627 S.E.2d 639, 642 (2006) (<HOLDING>). Plaintiffs allege that while that appeal was Holdings: 0: holding that district courts order granting motion for default judgment was erroneous  because a default judgment cannot be entered until the amount of damages has been ascertained  1: holding that plaintiffs were not entitled to a preliminary injunction 2: holding that a hearing must be held to determine credibility in preliminary injunction cases 3: holding that nc gen stat  1355 does not allow a preliminary injunction to be entered until either a judgment has been returned wholly or partially unsatisfied or the terms of nc gen stat  1355 are met 4: recognizing the inappropriateness of a preliminary injunction where credibility determinations must be made but granting a preliminary injunction because the legal and factual issues have been sufficiently illuminated


Input: MDCR found "probable cause” that Bassett was (1) subjected to disparate scrutiny based on her race, and (2) retaliated against because she had attempted to pursue “legitimate channels” to stop the alleged discriminatory behavior in her employment. While not determinative on the question of discrimination, the finding of probable cause demonstrates that upon distillation of all the evidence presented, reasonable minds could disagree over the material fact of retaliation and intentional discrimination. See Chandler v. Roudebush, 425 U.S. 840, 863 n. 39, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976) (prior administrative findings made in employment discrimination claim admissible at trial under Fed.R.Evid. 803(8)(c)), cf. Johnson v. Yellow Freight Sys., Inc., 734 F.2d 1304, 1309 (8th Cir.1984) (<HOLDING>). 13 . Bassett’s charge, cross-filed with the Holdings: 0: recognizing that it is the proponents burden to demonstrate the admissibility of expert scientific testimony 1: holding that once an expert has passed rule 702s threshold of admissibility lingering questions or controversy concerning the quality of the experts conclusions go to the weight of the testimony rather than its admissibility 2: recognizing admissibility of eeoc reasonable cause determination but declining to adopt per se rule of admissibility 3: holding that trial judges determination of the admissibility of a confession is based on whether the confession was voluntarily given 4: holding that the admissibility of expert testimony was governed by state law


Input: request for a new penalty hearing and Ellio re to state such a ground [for relief] in the [PCRA] petition shall preclude the defendant from raising that ground in any proceeding for post-conviction collateral relief’). Even if we were to assume, for purposes of argument, that Elliott preserved his Brooks claim by referencing trial counsel’s failure to meet with him prior to trial in the context of the separate issue challenging counsel’s failure to investigate evidence of Elliot’s prior bad acts, he would not be entitled to relief on the merits of the claim. It is clear that a majority of this Court in Brooks expressly required that counsel representing a defendant in a capital murder trial conduct a substantive, face-to-face consultation with the defendant prior to tri 90, 896 (1999) (<HOLDING>); Commonwealth v. Bundy, 421 A.2d at 1051 Holdings: 0: holding that ineffectiveness of postconviction counsel could establish cause to reopen judgment but ineffectiveness of postconviction appellate counsel could not 1: holding that to establish ineffectiveness on the basis of alleged inadequate pretrial consultation the defendant must establish that counsel inexcusably failed to raise issues that had they been proffered would have entitled him to relief 2: holding that where counsel has failed to file or perfect an appeal despite the defendants request it is clear that the defendant need not demonstrate that but for the ineffectiveness of counsel such an appeal would have succeeded or even would have merit 3: holding that it would be improper for original trial counsel to raise the issue of his own alleged ineffectiveness in a posttrial habeas corpus case 4: holding that counsel cannot raise his or her own ineffectiveness


Input: statistically significant disparities in the compensation of black employees relative to white employees, are evidence from which a reasonable factfinder could determine that intentional discrimination occurred. Defendants contend that Plaintiffs generalized statistics are insufficient to support Plaintiffs claims of intentional discrimination. As the Supreme Court has noted, while statistical evidence may allow the District Court to “determine ... that the (racial) composition of defendant’s labor force is itself reflective of restrictive or exclusionary practices .... such general determinations, while helpful, may not be in and of themselves controlling as to an individualized hiring decision, particularly in the presence of an otherwise justifiable 9 F.2d 310, 330 (5th Cir.1977) (<HOLDING>). Because Plaintiff has failed to provide any Holdings: 0: holding plaintiffs had stated a claim for intentional discrimination under the ada and  504 1: recognizing that sjtatistical evidence is used to demonstrate how a particular employment practice causes a protected minority group to be under represented in a specific area of employment for example hiring or promotion and stating that the statistical analysis must show a disparity that is sufficiently substantial 2: holding that disparate impact analysis may be applied to subjective employment practices in employment discrimination actions 3: holding that plaintiffs evidence of statistical disparities in hiring promotion and compensation was sufficient to support claim of intentional discrimination where the employment decisions were based on completely subjective criteria 4: holding that disparities in compensation were due to a number of permissible factors including seniority experience and performance


Input: us would certainly fail to protect a defendant’s best interests and might leave the conviction on otherwise time-barred offenses vulnerable to collateral attack Id. at 309. We can glean at least four legal principles from court decisions involving the two distinct scenarios discussed above: First, the statute of limitations is waivable by a defendant, either expressly or through his own actions. Tucker, 459 So.2d at 306; Sturdivan v. State, 419 So.2d 300, 302 (Fla. 1982) (observing “a defendant may by his actions waive this defense.”) Second, because it is waivable, the statute of limitations necessarily cannot be considered “jurisdictional,” at least not in the sense of depriving the trial court of subject-matter jurisdiction. See Rodriguez v. State, 441 So.2d 1129 (Fla. 3d DCA 1983) (<HOLDING>); Farrar v. State, 42 So.3d 265, 265 (Fla. 5th Holdings: 0: holding statute of limitations is jurisdictional and may be raised at any time but noting other ohio appellate courts have held the statute of limitations is not jurisdictional and may be waived if not asserted at the trial level 1: holding statute of limitations is not jurisdictional and can be waived by a voluntary plea of guilty 2: holding that the statute of limitations defense does not deprive court of subject matter jurisdiction to the extent the statute of limitations may be considered in any sense a jurisdictional impediment it is one which can be waived 3: holding that the aedpa statute of limitations is not jurisdictional 4: holding that the statute of limitations is nonjurisdictional and defendant expressly waived it observing in dicta that a statute of limitations defense should be raised no later than the trial


Input: had no reasonable strategy for such omission, Elliott has failed to demonstrate the requisite prejudice by establishing what evidence a further investigation would have revealed that would have changed the outcome of the trial. Similar to our holding in Issue I, absent a proffer of information that trial counsel could have uncovered and used to impeach the bad act witnesses’ testimony, Elliott’s claim that he was prejudiced by a deficiency in his investigation or preparation fails. See Harvey, 812 A.2d at 1197 (rejecting claim that counsel was ineffective for not undertaking further investigation where appellant failed to show that doing so would have provided material evidence or would have been helpful to his defense); Commonwealth v. Hawkins, 567 Pa. 310, 787 A.2d 292, 304 (2001) (<HOLDING>). Contrary to Elliott’s contentions, the Holdings: 0: holding conjecture that additional investigation might have yielded valuable information is insufficient to establish prejudice for ineffective assistance claim 1: holding that a defendant must show actual prejudice to succeed on an ineffective assistance of counsel claim 2: holding that defendants mere allegations of ineffective assistance were insufficient to prevail on such a claim 3: holding that defendant may raise claim of ineffective assistance of counsel on direct appeal only if ineffective assistance is conclusive from the record 4: recognizing a constitutional claim for ineffective assistance of counsel


Input: or loss of evidence qualifies as spoliation. In Milwaukee Constructors II, 177 Wis. 2d at 532, we adopted the process for evaluating the details, significance and sanctions concerning allegations of destruction of evidence set forth in Struthers Patent Corp. v. Nestle Co., 558 F. Supp. 747, 756 (D.N.J. 1981). Struthers instructs that in reviewing the conduct of the offending party, the trial court should consider not only whether the party responsible for the destruction of evidence knew, or should have known, at the time it destroyed the evidence that litigation was a distinct possibility, but also whether the offending party destroyed documents which it knew, or should have known, would constitute evidence relevant to the pending or potential litigation. See id. at 756, 765 (<HOLDING>). ¶ 16. This two-part analysis makes perfect Holdings: 0: holding that the statute of limitations begins to run under federal law when plaintiffs knew or should have known of the injury which forms the basis of their claims 1: holding that the destruction of documents which the party knew or should have known would be relevant to a pending or potential lawsuit is sanctionable 2: holding that the district court erred because it applied the enhancement without taking into account whether the defendant knew or should have known possession would be unlawful 3: holding that a request is sufficiently clear if the administrator knew or should have known that plan information was requested 4: holding that a cause of action accrues when the claimant knew or reasonably should have known of the wrong


Input: Brown v. Crowe, 963 F.2d 895 (6th Cir.1992). That cannot be said to be the case here, especially in view of the fact that the “prior restraint” cases cited in the plaintiffs’ appellate briefs simply are not applicable to the facts of this case. Hence, even if the issue had been squarely presented, we could not find in the plaintiffs’ favor based on the authority submitted on appeal. There remains the equal protection question, which is raised here under the Fifth Amendment’s Due Process Clause. The district court held that the claim was non-cognizable because the Equal Protection Clause protects against inappropriate classifications of people, rather than things. This position has been adopted by several courts. See, e.g., Benjamin v. Bailey, 234 Conn. 455, 662 A.2d 1226 (1995)(<HOLDING>); California Rifle & Pistol Ass’n v. City of Holdings: 0: holding transfer rule did not violate federal equal protection 1: holding that doctrine does not violate equal protection 2: holding that the state law violated equal protection principles 3: holding that a state weapons ban did not violate equal protection principles because the plaintiffs challenge related to classifications among weapons not persons 4: holding that ch 980 does not violate principles of equal protection


Input: status under Law 100. Law 100 prohibits discrimination by an “employer” based on the protected characteristic of, among other factors, age. P.R. Laws Ann. Tit. 29 § 146. The term “employer” is defined as “any natural or artificial person employing laborers, workers or employees, and the chief, official, manager, officer, managing partner, administrator, superintendent, foreman, overseer, agent or representative of such natural or artificial person.” P.R. Laws Ann. Tit. 29 § 151(2). As discussed above there is no evidence in the record to support Plaintiffs’ contention that Buck had any control over PRMMPs employment practices nor that it had any employment nexus with the Plaintiffs. Therefore, Buck is not liable under law 100. See Santini-Rivera v. Serv Air, Inc., 94 JTS 121, p. 182 (<HOLDING>). C. Buck’s status under ERISA. Plaintiffs Holdings: 0: holding that the question of whether an existing constitutional right is infringed is strictly a question of law 1: holding that the legislation in question is exclusively concerned with labor matters its subject is strictly the employeremployee relationship translation ours 2: holding that the critical element in determining whether the provisions of the norrislaguardia act apply is whether the employeremployee relationship is the matrix of the controversy 3: holding that the jurisdictional reach under section 955a is strictly a question of law 4: recognizing employeremployee relationship between county school board and teacher


Input: (7th Cir. 2012) (“Although it is possible that the drugs found on January 18 were already in his possession as early as January 11, it is at least equally likely that they were not. For all we know, Sims sold the last of his January 11 drug supply to the officer that day and then acquired additional cocaine before his arrest on January 18.”). But Pham fails to contend, much less show, that he possessed the drugs confiscated on February 28 as early as February 12. See, e.g., Def. Br. 11 (citing Sims without tying it to this case); Reply 2 (“[U]nder these particular facts, two drug convictions, one consisting of a sale and the other of finding of the stash from that sale, warrant a finding of one criminal episode.”); see Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir. 2008) (<HOLDING>). Pham does, however, make the more complex Holdings: 0: holding a party waives an argument made for the first time on reply 1: holding argument is waived when raised for first time in reply brief 2: holding that arguments cannot be made for the first time in reply papers 3: holding that an argument raised for the first time in a reply brief is waived 4: holding that argument raised for the first time in reply brief was deemed abandoned


Input: that Legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality, and that the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way. Usery v. Turner Elkhom Mining Co., 428 U.S. 1, 15, 96 S.Ct. 2882, 2892, 49 L.Ed.2d 752 (1976). See also, Concrete Pipe and Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993) (upholding withdrawal liability under the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA) against a substantive due process challenge); Connolly v. Pension Benefit Guaranty Corp., 475 U.S. 211, 106 S.Ct. 1018, 89 L.Ed.2d 166 (1986) (<HOLDING>); Pension Benefit Guaranty Corp. v. R.A Gray, Holdings: 0: holding that statements within a firmly rooted hearsay exception do not violate the confrontation clause 1: holding that the withdrawal liability provisions of the mppaa do not violate the taking clause 2: holding the mandatory minimum sentencing provisions under 18 pacsa  7508 do not violate the equal protection clause 3: holding that the mandatory life sentence provisions of 21 usc  841b1 do not violate the eighth amendment 4: holding that the hearing provisions of the ina supersede the provisions of the apa


Input: On its face, ORS § 652.610(3) prohibits an employer from withholding “any portion of an employee’s wages unless ... [t]he employer is required to do so by law[.]” ORS § 652.610(3)(a) (emphasis added). Because neither the Internal Revenue Code nor its implementing regulations “require” an employer to withhold tax on estimated tips, an employer, like Starbucks, who does so pursuant to the permissive authority granted by federal law is in violation of the Oregon statute. This is precisely the type of conflict that is addressed by federal preemption. When a state law specifically prohibits an activity that is authorized by federal law, the state law must give way. See, e.g., Barnett Bank of Marion County, N.A. v. Nelson, 517 U.S. 25, 32-34, 116 S.Ct. 1103, 1108-09, 134 L.Ed.2d 237 (1996) (<HOLDING>); Watters v. Wachovia Bank, N.A., 550 U.S. 1, Holdings: 0: holding a federal law permitting national banks to sell insurance in towns with less than 5000 residents preempted a state statute prohibiting banks from selling most types of insurance 1: holding that a federal statute 12 usc  92 which expressly permits national banks to sell insurance in small towns is a statute which specifically relates to the business of insurance and preempts a state statute which prohibits banks from selling insurance 2: holding that a florida statute requiring a foreign corporation to obtain a certificate of authority prior to transacting business in the state was preempted as it applied to national banks 3: holding that an iowa statute requiring a foreign corporation to hold a certificate of authority to transact business in the state was preempted by the nba as the statute pertained to national banks because it infringed on the powers provided to national banks by the nba 4: holding that comptroller of currencys holding that annuities both fixed and variable are not insurance within the meaning of 12 usc  92 2000 a provision allowing banks to sell insurance products in towns with less than 5000 inhabitants was a reasonable interpretation of the statute and stating that fixed annuities more closely resemble insurance than do variable annuities


Input: the need for “rehabilitation.” Appellant’s Br. at 7. Because “ ‘reasonableness’ is inherently a concept of flexible meaning,” United States v. Crosby, 397 F.3d at 115, district courts necessarily enjoy broad discretion in imposing sentences within a statutory range. “Although the brevity or length of a sentence can exceed the bounds of ‘reasonableness,’ we anticipate encountering such circumstances infrequently.” United States v. Fleming, 397 F.3d at 100. This is not such a rare case. Bethea’s sentence represented the bottom of the applicable Guidelines sentencing range determined by reference to an offense level of 34 and a criminal history category of VI. Contrary to Bethea’s assertions, the district judge explicitly considered the issue of rehabilitation. See Sentencing Tr. at 13 (<HOLDING>). Noting Bethea’s eleven prior convictions, the Holdings: 0: holding that sentence is reasonable when the district court properly addresses sentencing factors of  3553a 1: recognizing that  3553a requires the sentencing court to consider educational and other correctional treatments 2: holding that a sentencing judge would commit a statutory error  if the judge failed to consider the applicable guidelines range  as well as the other factors listed in section 3553a 3: holding that nothing in booker or elsewhere requires the district court to state on the record that it has explicitly considered each of the  3553a factors or to discuss each of the  3553a factors 4: holding that the district court is not required to state on the record that it has explicitly considered each of the  3553a factors or to discuss each of the  3553a factors


Input: conclusory and far from artful,” Jennings v. Am. Postal Workers Union, 672 F.2d 712, 716 (8th Cir.1982), we construe Henley’s complaint as alleging a violation of her right to be free from the use of excessive force under the Fourth Amendment inasmuch as she is asserting that certain individual defendant 5 (8th Cir.2001) (“Intentional sexual harassment by persons acting under color of state law violates the Fourteenth Amendment and is actionable under § 1983.”). To the extent that Henley’s complaint asserts the violation of rights secured by the Constitution and committed by persons acting under color of state law, we conclude the district court erred in dismissing her section 1983 action for failure to comply with Title VIPs procedural requirements. See, e.g., Notari, 971 F.2d at 588 (<HOLDING>); cf. Jennings, 672 F.2d at 716 (concluding Holdings: 0: holding section 1983 provides remedy only if plaintiff proves elements of malicious prosecution under state law and establishes that misuse of the legal proceedings was so egregious that he suffered deprivation of rights secured by fourteenth amendment 1: holding that plaintiffs may bring a section 1983 claim for damages to vindicate their rights under idea 2: holding plaintiffs allegations defendant acted under col or of state law to violate rights secured by the fourteenth amendment are sufficient to defeat summary judgment of plaintiffs section 1983 claim 3: holding a plaintiff must allege the violation of a right secured by the constitution and laws of the united states to state a claim under  1983 4: holding that the plaintiffs state law claims are preempted by federal law


Input: Butler v. Chrestman, 264 So.2d 812 (Miss.1972); Brennan v. Biber, 93 N.J.Super. 351, 225 A.2d 742 (Law Div.1966), aff’d, 99 N.J.Super. 247, 239 A.2d 261 (App.Div.1968); Gilbert v. Stanton Brewery, 295 N.Y. 270, 67 N.E.2d 155 (1946); Kalsow v. Grob, 61 N.D. 119, 237 N.W. 848 (1931); Quinn v. City of Pittsburgh, 243 Pa. 521, 90 A. 353 (1914); McGarr v. National Providence Worsted Mills, 24 R.I. 447, 53 A. 320 (1902). 7 . See, e.g., Smith v. Richardson, 277 Ala. 389, 171 So.2d 96, 100 (1965) ((overruling earlier suggestion in Durden v. Barnett, 7 Ala. 169, 170 (1844), that the parental claim ought to be recognized)); Baxter v. Superior Court of Los Angeles County, 19 Cal.3d 461, 138 Cal.Rptr. 315, 563 P.2d 871, 874 (1977); Shattuck v. Gulliver, 40 Conn.Sup. 95, 481 A.2d 1110, 1113 (1984) (<HOLDING>); Curtis v. County of Cook, 109 Ill.App.3d 400, Holdings: 0: holding that attorneys fees and costs may not be awarded as child support when they are incurred in a suit to modify the parentchild relationship that does not involve the enforcement of a child support obligation 1: holding that the clear and convincing standard must apply in terminating the parentchild relationship after the children have been adjudicated dependent or neglected 2: holding that de facto parentchild relationship does not support a finding of qualifyingrelative status 3: holding that consortium is not a part of the parentchild relationship 4: holding that destruction of the parentchild relationship includes grief and mental anguish


Input: motion for summary judgment on this basis, they do not discuss those proceedings in their brief. 30 . See Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex.1993) (stating the general rule that a reviewing court cannot affirm summary judgment on grounds not presented in the motion); see also Lee R. Russ & Thomas F. Segalla, 15 Couch On Insurance 3d § 216:34 (2007) (indicating that settlement with an insurer does not release claims against the insurance agency or agent if claims against them are specifically reserved or if the claim against the insurer, which sounds in contract, is separate from the claim against the agency). 31 . The two-year statute of limitations applicable to the Insureds' negligence cla t *4 (Tex.App.-Houston [1st Dist.] Dec. 9, 2004, no pet.) (mem.op.) (<HOLDING>). 37 . However, evidence of trust and reliance Holdings: 0: holding that an arbitration award involving the appellants challenge to the failure of the insurance company to ensure that he had read and understood a signed waiver and to attach the waiver to the insurance policy as contrary to public policy is not reviewable by the courts because there is no challenge to a provision or term of the policy the appellant never claimed that the waiver or policy language itself was contrary to the public policy of this commonwealth 1: holding that under georgia law a holder of a master insurance policy is an agent of the insurance company and not the insurer 2: holding that an insurance agent owed no duty to explain the terms of the insurance policy to the insured or to advise him on other alternative policy coverages citing critchfield v smith 151 sw3d 225 230 texapptyler 2004 pet denied moore v whitneyvaky ins agency 966 sw2d 690 692 texappsan antonio 1998 no pet and pickens v tex farm bureau ins cos 836 sw2d 803 805 texappamarillo 1992 no writ 3: holding insurance agent has no duty to advise insured of amount of insurance necessary to cover all potential losses 4: holding that a policy with an excess other insurance clause provides no coverage until a policy with a pro rata other insurance clause is exhausted


Input: argument that he ever sought promotion to any job other than the job to which he was promoted. It is certainly true that a plaintiff’s promotion does not mean he may not be a representative of a class with respect to promotions, but it is equally certain that it is a factor which may be evaluated in considering whether such a person satisfies the requirements of Rule 23. Compare Miller v. Motorola, Inc., 76 F.R.D. 516 (N.D.Ill.1977) (“since plaintiff was hired, promoted, and given an opportunity to transfer, as the undisputed facts show, she cannot properly represent a class consisting of people who were allegedly denied those opportunities because of sex.”); Scott v. University of Delaware, 601 F.2d 76 (3rd Cir. 1979), cert. denied, 444 U.S. 931, 100 S.Ct. 275, 62 L.Ed.2d 189 (1979) (<HOLDING>). In the present case, the fact that Mr. Spears Holdings: 0: holding that the district court erred in not decertifying the class on the basis of facts adduced at trial including the fact that scott seeks to lead a challenge against the same university hiring policies which resulted in his employment 1: holding the findings of fact required to support an alimony award are sufficient if findings of fact have been made on the ultimate facts at issue in the case and the findings of fact show the trial court properly applied the law in the case 2: holding that the trial court did not err in charging the jury that the defendant was in the custody of the victim officer when he shot and killed the officer due to the undisputed evidence presented at trial including the defendants pretrial statement to police admitting that fact 3: holding that it is the claimants burden to show that the injury was the result of an accident that not only arose in the course of the employment but that it also grew out of or resulted from the employment 4: holding that the district court abused its discretion by decertifying the class without permitting class counsel reasonable time to determine whether a new class representative could be substituted


Input: request with a viable constitutional claim that is not procedurally barred, or (b) when the sought-after assistance would only support a meritless claim, or (c) when the sought after assistance would only supplement prior evidence. Id. (internal citation omitted; emphasis added). Gutierrez has not shown the district court abused its discretion in failing to grant additional investigative assistance. “[Gutierrez’] right under 21 U.S.C. § 848(q)(9) to the assistance of experts where reasonably necessary to press his habeas claims does not entitle him to a federal evidentiary hearing when he has failed to ... develop his evidence in state court”. Turner v. Johnson, 106 F.3d 1178, 1184 n. 16 (5th Cir.1997) (internal citations omitted); see also Riley v. Dretke, 362 F.3d 302 (5th Cir.2004) (<HOLDING>), cert. denied, 543 U.S. 1056, 125 S.Ct. 866, Holdings: 0: holding petitioner cannot show a substantial need for investigative assistance when the claims he seeks to pursue are procedurally barred 1: recognizing that ineffective assistance of appellate counsel claims not premised on procedurally barred claims can be raised for the first time on appeal by new appellate counsel and are not limited to habeas review 2: holding that claims raised on direct appeal are procedurally barred from consideration in a rule 3850 motion 3: holding petitioner cannot claim he was denied right to assistance of counsel when he knowingly and voluntarily decided to represent himself 4: holding that successive motions for postconviction relief are procedurally barred


Input: the Agreement. For example, assume that Aviall and Cooper entered into a contract that provided only that Aviall would assume liability for Cooper’s pre-closing debt to Jones Company. If Jones Company made demand on Cooper, who in turn made demand on Aviall, who then refused to pay the debt, Cooper could presumably bring a breach of contract claim against Aviall for failing to honor its contractual obligation to assume liability for the Jones Company debt. But this right would be based on a contract that reflected that this was the parties’ objective intent. In the present case, however, the Agreement has other relevant provisions, and the contract must be interpreted as a whole. See, e.g., Bank One, Tex., N.A. v. FDIC, 16 F.Supp.2d 698, 707 (N.D.Tex.1998) (Fitzwater, J.) (Texas law) (<HOLDING>). Section 1.03 and other provisions that impose Holdings: 0: holding that court must examine and consider the entire writing in an effort to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless 1: holding that the trier of fact must be allowed to consider and give effect to all relevant mitigating evidence 2: holding that contracts should be interpreted to give effect to all provisions 3: recognizing that a contract is to be construed to give reasonable effect to each of its provisions 4: holding that a contract should be read to give reasonable meaning to all provisions of that contract


Input: The district court and Wilson appear to have assumed that the failure to follow the requirements of the ICE Directive was sufficient to warrant suppression. Such an assumption is untenable in light of Moore and Whren. The ICE Directive that Rourke violated provided that a designated customs officer’s “[u]se of [customs] authorities without first having been coordinated and approved by the appropriate SAC is strictly prohibited.” Wilson has not suggested, however, that, as a general matter, the Fourth Amendment requires an officer to obtain supervisory authorization prior to making a vehicle stop justified by probable cause, nor are we aware of any authority that could support such a suggestion. Cf. United States v. Caceres, 440 U.S. 741, 744, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979) (<HOLDING>). Instead, Wilson’s Fourth Amendment argument Holdings: 0: holding that failure of irs agent to follow irs electronic surveillance regulations before recording conversations between taxpayer and agent did not require suppression of tape recordings in prosecution of taxpayer accused of bribing irs agent since irs was not required by constitution to adopt its regulations governing electronic surveillance violation of agency regulations did not raise constitutional questions 1: holding that irs agents did not violate the fourth amendment by conducting surveillance in violation of regulations requiring prior authorization because neither the constitution nor any act of congress requires that official approval be secured before conversations are overheard or recorded by government agents with the consent of one of the eonversants 2: holding that the government can usually satisfy its burden of demonstrating the propriety of an irs summons through an affidavit of one of its agents 3: holding that agents violation of irs regulations did not mandate exclusion of evidence obtained as a result of violation 4: holding that the principal is liable for an agents acts committed within the scope of the agents employment


Input: will be deemed acquiescence in the setting of that date.” Vermillion v. State, 719 N.E.2d 1201, 1204 (Ind.1999), reh’g denied. Where a defendant “seeks or acquiesces in any delay which results in a later trial date, the time limitations of the rule are also extended by the length of those delays.” Wooley v. State, 716 N.E.2d 919, 924 (Ind.1999), reh’g denied. We first address Hill’s argument regarding the seven-day delay between March 12, 2001 and March 19, 2001. The trial court offered the State its choice between the two dates, and the State chose March 19, 2001 as the trial date. However, Hill failed to object to the later trial setting. Thus, Hill acquiesced to the later trial date and waived his right to raise this issue on appeal. See, e.g., Vermillion, 719 N.E.2d at 1202-1205 (<HOLDING>). We now address Hill’s argument regarding the Holdings: 0: holding that the defendant waived the issue on appeal when he failed to contemporaneously object to the admission of such evidence at trial 1: holding that when determining whether a delay in prosecution violates a defendants right to a speedy trial courts must consider the length of the delay the reason for the delay whether the defendant asserted his rights and the resulting prejudice to the defendant 2: holding that the defendant acquiesced to the rescheduling of the trial and thus waived the right to object to the sevenday delay 3: holding the defendant did not demonstrate a denial of his sixth amendment right to a speedy trial where even though the delay was substantial and the defendant was detained pretrial for three years the fault for the delay was shared and the defendant continued to request continuances following his assertion for the right to a speedy trial 4: holding plaintiffs waived their right to appellate review of the admission of an experts testimony by failing to object to it at trial


Input: and tenuous,” SEC v. Mayhew, 121 F.3d 44, 52 (2d Cir.1997), but if that information comes from an insider and concerns actual and serious merger discussions, “a lesser level of specificity is required [to establish materiality].” Id. As the Supreme Court has recognized, “ ‘[i]nside information as regards mergers ... can become material at an earlier stage than would be the case as regards lesser- transactions-and this even though the mortality rate of mergers at such formative stages is doubtless high.’ ” Basic, Inc. v. Levinson, 485 U.S. 224, 238, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988), quoting SEC v. Geon Indus., Inc., 531 F.2d 39, 47-48 (2d Cir.1976); see also Glazer v. Formica Corp., 964 F.2d 149, 156 (2d Cir.1992) (same); SEC v. Shapiro, 494 F.2d 1301, 1306-07 (2d Cir.1974) (<HOLDING>). In fact, even disclosures about tender offer Holdings: 0: holding that even if information in an affidavit was provided in reckless disregard of the truth appropriate course of action is to sever that information from the affidavit and determine whether sufficient information remained in order for the magistrate to find probable cause 1: holding that such information is not material under securities law 2: holding that even though negotiations had not jelled to the point where a merger was probable information disclosed regarding those negotiations was material in light of the potential profits 3: holding that although the defendant was able to impeach the prosecution in certain respects the suppressed information was material under brady because there was a significant difference between the suppressed material and the information to which the defense had access 4: recognizing that information disclosed in private is not a public disclosure under the fca


Input: the United States Code only serve as "prima fa-cie” evidence of the law unless they are enacted as "positive law,” in which case they too serve as legal evidence of the laws. Tax Analysts v. Internal Revenue Serv., 214 F.3d 179, 182 n. 1 (D.C.Cir.2000); see 1 U.S.C. § 204(a) ("[WJhenever titles of such Code [of Laws of the United States] shall have been enacted into positive law the text thereof shall be legal evidence of the laws therein contained, in all the courts of the United States.”). Title 7 has not been enacted into positive law. See 1 U.S.C.A. § 204, United States Code Titles as Positive Law. In this case, therefore, the court is not bound by the codifier’s placement of FETRA in Title 7. Cf. United States v. Welden, 377 U.S. 95, 98 n. 3, 84 S.Ct. 1082, 12 L.Ed.2d 152 (1964) (<HOLDING>). 16 . It is also unsupported by the Holdings: 0: holding that when congress is silent on the issue of the burden of proof applicable to a common law affirmative defense that does not negate an element of the offense we presume congress intended the defendant to bear the burden of proof of the defense by a preponderance of the evidence 1: holding that upon approval by congress a compact between states becomes federal law that binds the states 2: holding that where congress has directed the agency to issue a rule without regard to any other provision of statute or regulation that applies to issuance of such rule  congress has amended the law and does not offend the constitution 3: holding that when congress has not enacted a codification as positive law a change of arrangement by the codifier without the approval of congress which places portions of what was originally a single section in two separate sections should be given no weight 4: holding that an unconstitutional act of congress has no legal effect


Input: Scott (1931) 113 Cal.App. Supp. 778, 783 [296 P. 601].) A dissolute person is one who is “ ‘indifferent to moral restraint’ ” and “ ‘given over to dissipation. . . .’ ” (People v. Jaurequi, supra, 142 Cal.App.2d 555, 560.) The terms “lewd” and “dissolute” ordinarily include conduct found “disgusting, repulsive, filthy, foul, abominable [or] loathsome” under contemporary community standards. (Silva v. Municipal Court (1974) 40 Cal.App.3d 733, 741 [115 Cal.Rptr. 479].) This impressive list of adjectives and phrases confers no clarity upon the terms “lewd” and “dissolute” in section 647, subdivision (a). Indeed, “the veiy phrases and synonyms through which meaning is purportedly ascribed serve to obscure rather than to clarify those terms.” (State v. Kueny (Iowa 1974) 215 N.W.2d 215, 217 (<HOLDING>).) To instruct the jury that a “lewd or Holdings: 0: holding the term lewdness undefined in the iowa abatement statute to be vague 1: holding the phrase open and gross lewdness unconstitutionally vague 2: holding that attorney disciplinary rule was unconstitutionally vague as applied 3: holding that essentially equivalent is unconstitutionally vague 4: holding factor b is not unconstitutionally vague


Input: unconstitutional as violative of his right to equal protection. After careful consideration, for substantially the same reasons stated in the district court's March 13, 2003 order, we `conclude that the district court did' not err in holding that Mr. Latu suffered no prejudice from the defects in the notice. The defects were cor rected and Mr. Latu was given all the time he needed to meet the charges. We reject Mr. Latu’s argument that, because the initial notice was defective, the attorney general’s subsequent acts in effecting his removal were ultra vires. An official act does not become ultra vires if the officer was statutorily empowered to act but may have acted erroneously. See Wyoming v. United States, 279 F.3d 1214, 1229-30 (10th Cir.2002); cf. Noriega-Lopez, 335 F.3d at 883 (<HOLDING>). Mr. Latu received all the process he was due. Holdings: 0: holding that the bia rule is reasonable 1: holding that the ex post facto clause does not apply to deportation orders because deportation however severe its consequences has been consistently classified as a civil rather than a criminal procedure 2: holding that we will not review an issue or claim that was not presented to the bia in the petitioners notice of appeal or brief to the bia even if the bia considered the issue or claim sua sponte 3: holding that because congress did not specifically state that deportation terminates supervised release it remains intact even after an aliens deportation 4: holding that bia acted ultra vires because statute did not give it authority to issue deportation orders


Input: Vasquez-Lopez and Barragan-Sanchez, we relied on the aliens’ previous voluntary departure agreements in rejecting their arguments for relief. Zazueta-Carrillo, 322 F.3d at 1173-74 (rejecting alien’s argument that the voluntary departure period did not begin until after our review, in light of the “specific policy” of voluntary departure to encourage prompt departure); Vasquez-Lopez, 343 F.3d at 974 (“While the statute provides some incentives to an alien to apply for voluntary departure and thus avoid removal proceedings and removal, nothing there suggests that an alien who commits to departure in order to avoid such proceedings is nevertheless entitled to continue accruing ‘presence’ so as to become eligible for other discretionary relief.”); Barragan-Sanchez, 471 F.2d at 760-61 (<HOLDING>); cf. Doherty, 502 U.S. at 324,112 S.Ct. 719 Holdings: 0: holding confessions voluntary and noting that these men were not young soft ignorant or timid they were not inexperienced in the ways of crime or its detection nor were they dumb as to their rights 1: holding that aliens continuous presence in the country was interrupted by voluntary departure under threat of deportation proceedings 2: holding that because aliens two previous voluntary departures were the result of implied agreements and were not therefore strictly voluntary they constituted significant departures that precluded a finding of seven years continuous presence in the united states under a rule that excused absences that were brief casual and innocent 3: holding that a plaintiffs voluntary dismissal of his claims with prejudice constituted a final order that was appealable 4: holding that defendants were not in control and therefore were not supervisors and not subject to liability under  1983


Input: 'we need not accept extrinsic facts not pleaded nor need we accept legal conclusions in contradiction of the pleaded facts'" See Osguthorpe v. Wolf Mountain Resorts, LC, 2010 UT 29, §10, 232 P.3d 999 (quoting Allred v. Cook, 590 P.2d 318, 319 (Utah 1979)). 4 . The alleged malicious intent on the part of NCR falls more appropriately within a claim of malicious prosecution, under which an actor may be liable for initiating or procuring "criminal proceedings against another who is not guilty of the offense charged ... if (a) [the accuser] initiates or procures the proceedings without probable cause and primarily for a purpose other than that of bringing an offender to justice, and (b) the proceedings have terminated in favor of the accused." Restatement (Second) of Torts § 653 P.3d 1042 (<HOLDING>). 7 . Because statutory amendments made Holdings: 0: holding that act did not bar intentional infliction of emotional distress claim 1: holding that a tort claim for intentional infliction of emotional distress is distinct from a claim for emotional distress damages under the employment discrimination statute 2: holding that emotional pain and a need for counseling combined with physical pain medical bills loss of employment and a need for sexual therapy supported a claim of intentional infliction of emotional distress 3: recognizing validity of cause of action for intentional infliction of emotional distress 4: recognizing the tort of intentional infliction of emotional distress


Input: or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.” Fed.R.Civ.P. 4(m). Good cause exists “only when some outside factor^] such as reliance on faulty advice, rather than inadvertence or negligence, prevented service.” Prisco v. Frank, 929 F.2d 603, 604 (11th Cir.1991) (per curiam) (discussing “good cause” under the former Rule 4(j)), superseded in part by rule as stated in Horenkamp, 402 F.3d at 1132 n. 2. Even in the absence of good cause, a district court has the discretion to extend the time for service of process. Horen-kamp, 402 F.3d at 1132; see Henderson v. United States, 517 U.S. 654, 663, 116 S.Ct. 1638, 1643, 134 L.Ed.2d 880 (1996) (<HOLDING>). The district court concluded that the Holdings: 0: recognizing that in the 1993 amendments to the rules courts have been accorded the discretion to enlarge the 120day period even in the absence of showing good cause 1: holding that the plain language of the rule broadens a courts discretion to extend time for service even if good cause has not been shown 2: recognizing the cause of action 3: holding that an extension of time in which to serve process may be granted despite the absence of good cause 4: holding that after the omnibus date the trial courts discretion controlled and such discretion is exercisable upon a showing of good cause by a defendant who has missed the deadline


Input: 1833, 104 L.Ed.2d 338 (1989); and Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir.1995). The Prison Litigation Reform Act of 1996, effective April 26, 1996, moved the relevant statutory provision addressing dismissal for frivolousness from former subsection (d) of Section 1915 to new subsection (e)(2)(B) and expanded the scope of that statute to expressly authorize dismissals of lawsuits as frivolous regardless of whether a filing fee or any portion thereof had been paid. See Jackson v. Stinnett, 102 F.3d 132, 136-37 (5th Cir.1996); and 28 U.S.C. § 1915(e)(2)(B)®. 89 . See Neitzke v. Williams, 490 U.S. at 327, 109 S.Ct. at 1833; and Schultea v. Wood, 47 F.3d at 1434. 90 . See Neitzke v. Williams, 490 U.S. at 325, 109 S.Ct. at 1831; Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.1997), (<HOLDING>); McCormick v. Stalder, 105 F.3d 1059, 1061 Holdings: 0: holding that claims under 42 usc  1983 are not personal injury tort claims 1: holding that a state is not a person under 42 usc  1983 2: holding that a state prisoner may not challenge the constitutionality of his conviction in a suit for damages under 42 usc  1983 3: holding that emotional distress requires a showing of either physical symptoms or mental illness 4: holding that title 42 usc  1997ee requires proof of a physical injury before a prisoner can recover for emotional or mental distress holding that verbal abuse is not actionable under section 1983 and also recognizing a de minimus standard for 8th amendment excessive force claims


Input: instant case is analogous to Niedland, in that Plaintiffs post-trial submissions c one at issue in Marba, the size of the grant and the fact that it was issued for purely private purposes leads me to find that the Dongan grant violated the public trust doctrine. Plaintiff therefore cannot claim title to the foreshore adjacent to his property from this source. Furthermore, while the Dongan Grant to Christopher Billopp did indeed encompass lands to the low water mark, this land was later confiscated by the State after Captain Billopp’s attainder for treason during the Revolutionary War. The 1779 Act of Attainder has been found to be valid by the Second Circuit numerous times, as recently as 1992. See Robins Island Pres. Fund, Inc. v. Southold Dev. Corp., 959 F.2d 409, 415 (2d Cir.1992) (<HOLDING>). While Plaintiff does not dispute the validity Holdings: 0: holding jurisdiction over nonresident defendant existed where note was payable in new york contained new york choice of law clause and proceeds were used to finance new york limited partnership 1: recognizing forum selection clause providing that no such claim shall be commenced prosecuted or continued in any forum other than the courts of the state of new york located in the city and county of new york or in the united states district court for the southern district of new york as clear and unambiguous expression of parties selection of exclusive forum in affirming district courts dismissal of action commenced in united states district court for the district of new jersey 2: holding that contract signed in new york by promisor from florida and partially performed in florida was governed by new york law because it was executed in new york 3: holding that neither the new york location of the terrorist attack giving rise to the policyholders claim nor the new yorkbased claims adjustor rendered new york the locus of operative facts because new york was not the site of the contracts execution 4: holding that in adjudicating property rights affected by new yorks act of attainder of 1779 neither the supreme court nor any court of new york state has ever declared the act to be invalid


Input: F.Supp.2d 640 (S.D.N.Y.), aff'd, 345 F.3d 78 (2d Cir.2003). As Judge Spatt has already recognized in this case, the holding in the district court’s decision in Pechinski required more than the mere fact that the fee at issue was associated with the termination of the debt obligation to the lender defendant; rather, the district court also specifically relied upon the fact that the fee at issue in that case was related to a service requested by the borrower — processing fees regarding a refinancing with another lender — and would not have otherwise been required by the borrower in the lifespan of the loan. See McAnaney, 357 F.Supp.2d at 586 (“Pechinski held that the fees were not finance charges because they were not required by the creditor”); see also Pechinski, 238 F.Supp.2d at 643 (<HOLDING>). The critical inquiry in determining whether a Holdings: 0: holding that counsel was not ineffective in failing to request a charge on the lesserincluded offense when the evidence showed either the commission of the completed offense as charged or the commission of no offense such that the defendant was not entitled to a charge on the lesser offense 1: holding that the defense of insufficient process was waived because it was not raised by the defendant in its answer but later in its response to the plaintiffs request for default judgment 2: holding that the defendants violated tila as a matter of law by failing to disclose as part of the finance charge the charge imposed for payment of federal express delivery 3: holding that required courier fees must be included in the finance charge 4: holding that the charged assignment fee was not includable in the finance charge where it was imposed because of plaintiffs specific request that defendant assign the mortgage to another lending institution


Input: N.E.2d 870, 873; Erie Cty. United Bank v. Berk (1943), 73 Ohio App. 314, 317, 28 O.O. 500, 501, 56 N.E.2d 285, 287. Where there are facts that could lead reasonable minds to conclude differently regarding whether the intervening cause broke the causal link, the question should be submitted to the jury, and summary judgment is not appropriate. Cascone, supra, at paragraph two of the syllabus. In a case based upon an intentional tort such as fraud or tortious interference, however, where the intervening act complained of is the act of the plaintiff, an analysis of intervening cause is tantamount to a comparative negligence claim, which is no defense to an intentional tort. See Hardiman v. Zep Mfg. Co. (1984), 14 Ohio App.3d 222, 14 OBR 250, 470 N.E.2d 941, paragraph two of the syllabus (<HOLDING>). The evidence in the instant case showed that Holdings: 0: holding invalid an instruction regarding intervening cause of act of plaintiff as a defense to strict liability in a case when the former contributory negligence may have been a defense 1: recognizing contributory negligence as a defense to professional malpractice claims 2: recognizing defense in securities case 3: holding that contributory negligence in the sense of mere carelessness or inadvertence is not a defense in strict liability cases 4: holding that defense of contributory negligence would implicate sensitive military judgment regarding power generation


Input: the proposition that the addition of the word “black” to a race-neutral insult does not constitute race-based harassment that would support a hostile work environment claim. No. AMD 04-3422, 2006 WL 173690, at *4 (D.Md. Jan. 25, 2006). In that case, the Court found racial harassment that included the use of phrases such as “black dummy” and “black bitch” did not create a hostile work environment. While the Rose court held that those insults were not racial in nature, this Court has identified a number of other cases within the Fourth Circuit wherein the use of the word “black” as a modifier for otherwise racially-neutral insults was, in fact, considered race-based harassment. See, e.g., Finch v. Smithfield Packing Co., No. 5:99CV10-BR, 2000 WL 33682696, at *4 (E.D.N.C. Feb. 10, 2000) (<HOLDING>); Jenkins v. City of Charlotte, No. Civ. A. Holdings: 0: holding that an officer had reasonable suspicion to justify an investigatory stop of an automobile where the officer received a dispatch that a black male in a black bmw with a temporary license tag was selling controlled substances and the officer observed a person in an automobile fitting that description less than one minute later 1: holding that the white defendants association with a black defendant was not sufficient to give them standing to join in the black defendants batson challenge 2: holding that articulable facts sufficient to support a stop included a telephone call that two black males were selling drugs at a particular location discovery of the juvenile at that location with another black male and the juveniles nervous body reflexes 3: holding that unequivocal examples of racial animus included instances when plaintiff was instructed to keep his black ass off the phone and was called a black son of a bitch and a black motherfucker 4: holding that a reasonable jury could conclude that there was a racially hostile work environment when plaintiff was subjected to several statements involving racial epithets and a nude black doll was hung from a noose in his locker


Input: that has been or may be reasonably incurred, (b) the loss of use of the land, and (c) discomfort and annoyance to him . as an occupant." (Emphases added). Bonewitz and Dellinger presented evidence regarding the approximate value of their home absent the nuisance, as well as evidence that their home is not currently marketable. Thus, the evidence shows that the home's value has been greatly diminished by its close proximity to Parker's business. A proper measure of damages shall be calculated as the difference between the market value of the Bonewitz home if the Parker By-Products myeceli-um-drying operation ceased and its current market value with an active nuisance next door. See, e.g., Northern Ind. Public Serv. Co. v. W.J. & M.S. Vesey, 210 Ind. 338, 200 N.E. 620, 627 (1936) (<HOLDING>). Further, Bonewitz and Dellinger presented Holdings: 0: holding that a cause of action for damages to property resulting from a permanent nuisance accrues to the owner of the land at the time the injury begins to affect the land and mere transfer of the land by deed does not transfer the claim for damages 1: holding that fair market value was proper measure of damages for stock brokers breach of margin agreement caused by sale of plaintiffs shares without authorization noting that generally speaking fair market value is proper measure of damages for breach of contract relating to sale of goods which have an ascertamable value on the market 2: holding measure of damages for unabated nuisance affecting greenhouse was the depreciation of the market value by reason of the continuance of a permanent nuisance 3: holding that if respondents suit is one for permanent damages to the land the measure of damages is the decreased value of the land 4: holding that the measure of damages of converted property is the market value at the time of conversion


Input: 403, 406 (9th Cir.1993)). WCSPA appeals from the denial of its motion to intervene in a case that the district court has since decided, through the Order on Remedy and the subsequent final judgment, from which neither party has appealed. Because the underlying litigation is over, we cannot grant WCSPA any “effective relief’ by allowing it to intervene now. The appeal is therefore moot. See United States v. Ford, 650 F.2d 1141, 1143 (9th Cir.1981) (dismissing as moot an appeal of a denial of a motion to intervene where the underlying litigation was voluntarily dismissed) (“Since there is no longer any action in which appellants can intervene, judicial consideration of the [intervention] question would be fruitless.”); cf. Canatella v. California, 404 F.3d 1106, 1109 n. 1 (9th Cir. 2005) (<HOLDING>). The “capable of repetition, yet evading Holdings: 0: holding that the appellate court should have construed the notice of appeal from the denial of a motion to vacate the judgment as an attempt to appeal from the underlying judgment 1: holding that appellate court had jurisdiction over claimants appeal from the denial of his motion for reconsideration separable from underlying judgment despite claimants failure to appeal from the underlying judgment because the reconsideration motion raised changes in the relevant medical criteria 2: holding that appeal from denial of rule 60b motion raised for review only the district courts order of denial and not the underlying judgment itself 3: holding that an appeal from a denial of a rule 59e motion should have been construed as seeking review of the underlying judgment 4: holding that entry of judgment in the underlying litigation does not moot an appeal from a denial of a motion to intervene if one of the parties keeps the underlying litigation live by pursuing an appeal


Input: the ODC. Second, the parties stipulated that Mr. Duffy’s conduct was knowing and intentional—the most culpable mental states. See In re Hernandez, 46 So.3d 1244 (La. 2010) (stating attorney knowingly and intentionally violated duties owed to public, legal system, and legal profession by failing to appear in court on several occasions and failing to cooperate with ODC).- Third, we find there is ample basis to support the ODC’s finding that Mr. Duffy’s conduct caused harm. Mr. Duffy adversely affected his clients by failing to attend hearings on their behalf and failing to -respond - to his client relating to an appeal. Likewise, Mr. Duffy’s conduct toward the ODC and his criminal conduct are harmful to the public and to the legal profession. See In re Baer, 21 So.3d 941, 943 (La. 2009) (<HOLDING>). Regarding the fourth Jordan factor, we have Holdings: 0: holding that the breach occurs when the union acts against the interest of its members 1: holding in the context of a case involving the availability for public inspection of criminal docket books that files in the possession of the clerk of the criminal court of the city of new york are public records which may be fully examined by any person unless the papers have been sealed from public scrutiny by the court or by the terms of a statute 2: recognizing serious harm results when members of the legal profession engage in criminal acts which give rise to a lack of confidence by members of the public in those who are officers of the court 3: recognizing right of this court to regulate and discipline members of the bar 4: holding that an organization whose members are injured may represent those members even where the organization itself cannot show injury


Input: [the witness] had motive to fabricate her allegations against defendant”); State v. Muldrew, 229 Or App 219, 230, 210 P3d 936 (2009) (concluding that the trial court’s exclusion of defendant’s proffered impeachment evidence—the statement in the officer’s report—was not harmless because it was the “crucial piece of evidence that the jury needed in order to evaluate [the officer’s] credibility”). Thus, I would conclude that the jury had an adequate opportunity to assess the officers’ credibility absent the consideration of evidence of the use-of-force policies. In determining if exclusion of bias evidence is harmless, we are also required to consider whether the particular evidence regarding the officers’ credibility was important to the outcome of the trial. See Titus, 328 Or at 482 (<HOLDING>). The majority does not address this necessary Holdings: 0: holding that under hubbard a trial courts error in excluding bias evidence would be harmless if either 1 despite the exclusion the jury nonetheless had an adequate opportunity to assess the witnesss credibility or 2 the witnesss credibility was not important to the outcome of the trial emphasis added 1: holding that a trial witnesss testimony as to the credibility of another witness was prejudicial error 2: holding that a witnesss testimony or an exhibit may not explicitly and directly contain an opinion as to a trial witnesss credibility 3: holding that the quashing of a defendants subpoena for a prosecution witnesss complete immigration file did not violate the defendants confrontation rights where the defendants crossexamination enabled the jury sufficiently to assess the witnesss credibility 4: holding that it was not erroneous for committing court to refuse to admit an affidavit from a private investigator that provided evidence of a witnesss lack of credibility when the affidavit would not have explained away the witnesss testimony but only challenged its credibility


Input: to market instability. If the large-volume purchasers chose not to opt out, their interests will presumably not be maligned with Plaintiffs. 15 . Specifically, Defendants contend that transaction prices during the relevant time period were affected by a United States Antidumping investigation and by Saskatchewan prorationing legislation. (Defs.' Mem. in Opp. to Class Cert. at 22.) Plaintiffs claim, however, that Defendant potash producers filed a petition with the United States International Trade Commission alleging Canadian potash was being "dumped” into the United States in furtherance of their conspiracy to fix potash prices. (TAC ¶¶ 48-49.) 16 . This is an element essential to an antitrust price-fixing claim and one common to the class. The fact that some Plai (D.Mass.1981) (<HOLDING>); Hedges Enterprises, Inc. v. Continental Holdings: 0: holding that to have standing a plaintiff must establish an injury in fact a casual connection between the injury and that the injury will be redressed by a favorable decision 1: holding that allegation of procedural injury does not affect the issues of injury in fact or causation 2: holding that injury to broker through loss of commission was not antitrust injury 3: holding that if plaintiffs could not establish that the particular agent orange causing injury to the plaintiff was manufactured by that defendant then the burden would shift to each defendant to establish that its product could not have caused the plaintiffs injury or alternatively that it should only be responsible for a proportion of the damage 4: holding that because fact of injury was a distinct question from quantum of injury common proof could establish classwide injury even though amount of damage to each plaintiff was uncertain


Input: that a nonspeculative reduction in the attorney’s income would result from the implementation of a new Social Security regulation. In each of these cases it would be anomalous for the attorney to be able to bring suit to challenge the statute or regulation, instead of a person protected by the constitutional provision or law asserted as the basis for the challenge — the injured worker, the medical malpractice plaintiff, or the Social Security claimant. Of course it may be harder for such a person to bring suit than for a lawyer to bring suit, since lawyers are often better off than their potential clients, and they are after all lawyers. But it still can’t be that lawyers would generally have standing in such situations. See Alexander v. Whitman, 114 F.3d 1392, 1408-09 (3d Cir.1997) (<HOLDING>) Cf. Lambert v. Turner, 525 F.2d 1101, 1102-03 Holdings: 0: holding that plaintiffs lacked standing to sue 1: holding that attorney and law firm lacked prudential standing to challenge a state statute which provided that a wrongful death action could only be brought on behalf of a fetus if the fetus was born alive and noting that we can not help but wonder how the lawyer and law firm plaintiffs can seriously challenge the district courts ruling as to their lack of standing 2: holding that the lack of shareholder standing under texas law does not implicate constitutional standing 3: holding that a litigant has standing to challenge the constitutionality of a statute if the law is unconstitutional as applied to that particular litigant 4: holding attorney lacked standing to challenge amount of attorney fees awarded plaintiffs not parties to the appeal


Input: S.Ct. 1819, 149 L.Ed.2d 958 (2001) (<HOLDING>). Kenner’s remaining contentions are Holdings: 0: holding that state prisoner seeking only monetary damages in  1983 suit need not exhaust administrative remedies pursuant to  1997e if such remedies do not provide for the award of monetary relief 1: holding that an inmate seeking only money damages must complete any prison administrative process capable of addressing his complaint and providing some form of relief even if the process does not provide for the recovery of monetary relief 2: holding that the burden of proving a violation of the idea lies on the party seeking relief during the administrative process 3: holding that exhaustion is required under the plra even if the plaintiff seeks only money damages and money damages are not available as relief 4: holding that exhaustion is required even where the relief sought is not available in the administrative process


Input: 120 S.Ct. 1362; Morales. The Supreme Court has, however, noted that the question is a matter of degree and indicated that the party challenging the law has the burden of “establishing that the measure of punishment itself has changed.” Morales, 514 U.S. at 510, n. 6, 115 S.Ct. 1597; Garner, 529 U.S. at 255, 120 S.Ct. 1362; see also Dobbert v. Florida, 432 U.S. 282, 293-294, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977) (refusing to accept “speculation” that the effective punishment under a new statutory scheme would be “more onerous” than under the old one). Therefore, given the Supreme Court’s jurisprudence on this issue in Morales and Garner, it is now clear that retro active changes in the laws governing parole may violate the ex post facto clause. Morales, 514 U.S. at 509, 115 S.Ct. 1597 (<HOLDING>); Garner, 529 U.S. at 256, 120 S.Ct. 1362 Holdings: 0: holding the application of change in law regarding the timetable for being eligible for parole board hearings was not an increase in punishment violative of the ex post facto clause 1: holding that parole guidelines are subject to the ex post facto clause 2: holding change in ultimate parole decisionmaker from board to governor does not violate ex post facto clause 3: holding that a change in parole law violates the ex post facto clause if the change in the law created a sufficient risk of increasing the measure of punishment attached to the covered crimes 4: holding that a change in parole policies without altering the underlying substantive standards does not violate the ex post facto clause


Input: that when a defendant “voices a seemingly substantial complaint” about his attorney, the district court should inquire into the matter. McKee v. Harris, 649 F.2d 927, 933 (2d Cir.1981) (internal quotation marks omitted). However, “[i]f the reasons are made known to the court, the court may rule without more.” Id. at 934 (internal quotation marks omitted). In this case, the motion to withdraw and appoint substitute counsel and motion to reconsider, together with a seventeen-page handwritten letter prepared by Bliss, set forth in detail Bliss’ and his counsel’s concerns. Having thus been apprised of Bliss’ concerns, the district court did not abuse its discretion when it ruled on the motions without hearings. See United States v. Simeonov, 252 F.3d 238, 241-42 (2d Cir. 2001) (per curiam) (<HOLDING>). Furthermore, by granting an extension of time Holdings: 0: holding that trial court did not abuse discretion in denying motion to continue for purposes of hiring private counsel on eve of trial where defendant had several months to do so and failed to articulate sufficient reasons for his dissatisfaction with appointed counsel 1: holding that district court did not abuse its discretion in denying a motion to strike when movant failed to show prejudice 2: holding that trial court did not abuse its discretion by denying motion for continuance when not in proper affidavit form 3: holding that the district court did not abuse its discretion in denying a motion to substitute counsel when reasons for defendants dissatisfaction with his attorney were made known to court through a letter and orally at sentencing 4: holding that the district court did not err by concluding that the bankruptcy court did not abuse its discretion in denying motion for continuance motion to withdraw and motion for reconsideration and rehearing


Input: insufficient to overcome the dictates of the Eleventh Amendment.’ ” Papasan v. Allain, 478 U.S. 265, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (quoting Green, 474 U.S. at 68, 106 S.Ct. 423). Second, Ex Parte Young does not apply to suits seeking damages; it only applies to suits seeking injunctive and declaratory relief. Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). The Court has said that suits for damages are suits against the state even if only the official is named as a defendant, because a damage remedy would require payment out of the state’s treasury. Id. Third, Ex Parte Young does not apply if the relief sought is “fully as intrusive” on a state’s sovereignty as a levy on funds in the state treasury. Coeur d’Alene Tribe, 521 U.S. at 287, 117 S.Ct. 2028 (<HOLDING>). Fourth, Ex Parte Young does not apply to Holdings: 0: holding that because plaintiff did not apply for a job he could not be rejected in a title vii case 1: holding that a title vii plaintiff could not hold coworkers liable in their individual capacities under title vii 2: holding that a renter who stole a motor home had void title not voidable title and could not convey good title 3: holding that arbitration agreement that did not provide for award of attorney fees to successful title vii claimant was unenforceable because the right to attorneys fees  is central to the ability of persons to seek redress from violations of title vii 4: holding that plaintiff could not use ex parte young to seek title to submerged lands


Input: arising out of the lessee’s failure to satisfy its financial obligations for services rendered on the leased premises. If, as appellant argues, a lessor could avoid liability simply by disclaiming liability in the lease without including such a disclaimer in the recorded short form, the purpose behind section 713.10(1) would be frustrated. Furthermore, section 713.10(2), which mandates that a notice regarding multiple leases on a parcel of land include the specific language contained in the various leases prohibiting a lessor’s liability, supports our interpretation of section 713.10(1). In other words, if a lessor desires to protect its interest from mechanics’ liens arising out of improvements made by a lessee, the document that is recorded in the clerk’ , 658 (Fla. 2d DCA 1983) (<HOLDING>); Budget Elec. Co. v. Strauss, 417 So.2d 1143, Holdings: 0: holding that the appellant contractor failed to prove the existence of a lease provision requiring the lessee to make the improvements at issue which could have the effect of subjecting the lessors property to a lien 1: holding that the mere fact that the parties to a lease may contemplate that the lessee will make improvements to the property is insufficient to subject the lessors interests to mechanics liens and that the lease must instead expressly or impliedly require the requirements to be made 2: holding that a lienor under a contract with a lessee is entitled to a lien against the lessors interest only where the lease expressly or impliedly requires the lessee to make improvements to the leased property 3: holding that the lessors interest in the leased property was subject to liens because it was perfectly obvious that the parties knew that the improvements at issue were the pith of the lease and that except for them the lease would not have been executed and because the improvements were essential to the purpose of the lease 4: holding that the lease at issue which set forth that the tenant may at its own expense make alterations and improvements did not require the lessee to make the improvements and that the alterations and improvements did not constitute the pith of the lease


Input: CURIAM: William Andrew Kinsey, III, challenges the district court’s dismissal of his motion, which he had styled a “motion for clarification.” In his motion, he argued that the language of his judgment of conviction does not clearly indicate that his restitution payments are to begin while he is incarcerated. On appeal, he argues that the district court improperly dismissed his motion and characterized it as a successive motion to vacate filed pursuant to 28 U.S.C. § 2255. Whether a district court has jurisdiction is a question of law subject to de novo or plenary review. See, e.g., United States v. Diaz-Clark, 292 F.3d 1310, 1315 (11th Cir. 2002) (<HOLDING>). We may review a district court’s jurisdiction Holdings: 0: holding that claimed errors of law are subject to plenary review 1: holding that the question whether section 3553b permits departure in some particular case is subject to plenary review 2: holding that the federal district court had no subject matter jurisdiction to review the courts denial of a particular application for admission to the district of columbia bar 3: holding that a court of appeals should review de novo a district courts determination of state law 4: holding that a district courts determination of its jurisdiction to resentence a defendant is subject to plenary review


Input: damages; and (6) the risk of duplicative recoveries or complex apportionment of damages. Balaklaw, 14 F.3d at 797 n. 9 (citing Associated Gen. Contractors of Cal., Inc., 459 U.S. at 537-45, 103 S.Ct. 897). In the context of health care antitrust litigation, courts have observed that physicians may not be the most efficient enforcer of the antitrust laws. See, e.g., Daniel, 428 F.3d at 443-44 (concluding that physician-plaintiffs seeking to join cartel were not efficient enforcers of antitrust laws); Korshin v. Benedictine Hosp., 34 F.Supp.2d 133, 140-41 (N.D.N.Y.1999). Nevertheless, where a physician’s interest coincides with the patient’s interest, a physician may be a proper enforcer of the antitrust laws. See Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 274-75 (3d Cir.1999) (<HOLDING>); Nilavar v. Mercy Health Sys.-W. Ohio, 142 Holdings: 0: holding that an activity which is exempt from the antitrust laws cannot form the basis of an antitrust investigation 1: holding that a plaintiff must show antitrust injury in order to bring an antitrust lawsuit 2: holding that plaintiffphysician was efficient enforcer of antitrust laws 3: holding that there must be a causal connection between the alleged antitrust violation and the antitrust injury for there to be antitrust standing 4: holding that the fcc was not given the power to decide antitrust issues and that its actions do not prevent enforcement of the antitrust laws in federal courts


Input: logic to conclude that the act of showing Spartin the other witnesses’ grand jury statements in October 1986 caused Spartin to state that the plaintiff knew of the conspiracy during his grand jury testimony in September 1987, but not during his polygraph examination in December 1986. Therefore, the plaintiffs argument that the Inspectors’ violation of the secrecy rules “tainted” Spartin’s grand jury testimony by causing him to state a “phony opinion” necessarily fails. Whatever the reason for the apparent change in Spartin’s opinion between December 1986 and September 1987, the plaintiff offers no evidence — only conclusory allegations— that the opinion Spartin offered at the grand jury hearing was swayed by the Inspectors’ violation of the secrecy rules. See Greene, 164 F.3d at 675 (<HOLDING>). Because the plaintiff has presented no Holdings: 0: holding that unsubstantiated representations will not withstand summary judgment 1: holding that plaintiff who provides evidence of acts more severe than a lack of due care may withstand summary judgment motion on a failure to protect claim 2: holding that an employees unsubstantiated testimony that he was better qualified than employees that were not subject to adverse employment actions was insufficient to defeat summary judgment 3: holding that unsubstantiated assertions are not competent summary judgment evidence 4: recognizing that the decedents claim should withstand summary judgment despite counsels concession  that he will be unlikely to prevail at trial


Input: as to how long it will last, a reasonable duration may be implied by the nature of the contract or from the surrounding circumstances. The law does not say specifically how long would be reasonable. That’s for you to decide. When a contract fixes no time for its duration, and none can be implied by the nature of the contract and surrounding circumstances, the contract may be terminated at the will of either party. (Appellant’s App. at 495.) Specifically, Pot-latch argues that the district court erred by instructing the jury that it could infer a reasonable duration to the oral contract. Potlatch cites several cases holding that a contract of indefinite duration may be terminated at will. See, e.g., Union Nat’l Bank v. Federal Nat’l Mortgage Ass’n, 860 F.2d 847, 853 (8th Cir.1988) (<HOLDING>); Gary Braswell & Assoc. v. Piedmont Indust., Holdings: 0: holding that traditional commercial contract provided for termination at will under arkansas law 1: holding requirement in contract to provide notice for termination but not limiting reasons for termination constitutes atwill employment relationship 2: holding in a successor liability case that questions of traditional tort law unrelated to the contract were properly governed under forum law 3: holding that where an oral contract was removed from the statute of frauds by clear and convincing evidence under arkansas law the defendant could not terminate the contract at its will only a contract of indefinite duration may be so terminated  4: holding that although a reason was provided in the termination letter the without cause termination provision was applicable


Input: subject: We hold that filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982). Whatever may have been the rule in Costello, it cannot be applied in a Title VII action involving untimely fifing with the EEOC. It is because the “statutory requirement is analogous to a statute of limitations,” Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir.1996), that dismissal for failure to comply with the requirement is a judgment on the merits. See PRC Harris, Inc. v. Boeing Co., 700 F.2d 894, 896-97 n. 2 (2d Cir.1983) (<HOLDING>). Although the result envisioned by the Holdings: 0: holding that application of res judicata requires that a prior adjudication include a ruling on the merits 1: holding that a dismissal on statute of limitations grounds is an adjudication on the merits for purposes of res judicata 2: holding that dismissal of case on statute of limitations grounds is final judgment and barring appeal has res judicata effect 3: holding that a dismissal on limitations grounds is a judgment on the merits 4: holding that under federal law the dismissal of a claim as timebarred is adjudication of merits for purposes of res judicata


Input: to the Insureds at the time of the late filing, balanced against the error made by Dave, was not great. The trial court agreed and determined that the damage to other insureds should Dr. Dave’s claim be allowed was “very minimal, if at all.” Given the relatively small size of Dr. Dave’s claim — “in excess of $15,000” — compared to the total of medical malpractice coverage claims in this receivership — approximately $21.8 million — we cannot say that the evidence preponderates against the conclusions of both the special master and the chancellor that allowing Dr. Dave’s claim would have no appreciable adverse impact on the rece ure to take precautions to assure that a deficiency claim was timely filed is not excusable neglect); In re Nickels Performance Sys., Inc., 169 B.R. at 652 (<HOLDING>). These decisions are consistent with our own Holdings: 0: holding that misplacing the notice of an appealable order was not excusable neglect 1: holding that an order was interlocutory in nature despite the trial courts certification of the order as a final appealable judgment 2: holding that a disqualification order in a criminal case is not appealable 3: holding that an order is not a final appealable order when it does not dispose of the complaints against all of the defendants 4: holding that a rehearing order was not final or appealable


Input: is generally used there for purposes other than to describe offenses that are punishable under its provisions .... Specifically, the term ‘felony’ is primarily used in 21 U.S.C. § 802(13) to trigger statutory sentence enhancement for repeat offenders.” Id, Indeed, there is only one instance under the Controlled Substances Act where the term “felony” is used to describe a punishable offense, see 21 U.S.C. § 843(b) (1999) (making it unlawful to use a communication facility “in committing or causing or facilitating the commission of any act or acts constituting a felony under any provision of this subchapter”), and case law makes clear that only a felony under federal law satisfies the felony element of this offense. See, e.g., United States v. Baggett, 890 F.2d 1095 (10th Cir.1989) (<HOLDING>). We thus find the BIA’s rationale with respect Holdings: 0: holding that defendants conviction for possession of marijuana with intent to distribute which was classified as a misdemeanor under south carolina law was properly deemed a felony for career offender purposes because offense was punishable by up to five years imprisonment 1: holding that a defendants conviction for two possession of marijuana counts could not be supported by his possession of two marijuana cigarettes dropped from his hand and again for his possession of several packets of marijuana found in a nearby jacket during the same search 2: holding there was no violation of  843b where a telephone was used to obtain possession of marijuana since possession is only a misdemeanor not a felony under 21 usc  844a 3: holding second simple possession conviction was not an aggravated felony because it was not prosecuted as recidivist possession 4: holding that jurys failure to find the defendant guilty of possession of marijuana could not be reconciled with a verdict of guilty of possession of marijuana with intent to purchase


Input: Having noted the substantially identical testimony, however, I do not find it necessary to decide whether the statement relates to this other excerpt. 51 . El-Hage argues that "Mr. al Fadl's claim that al Qaeda sought to fight the U.S. in Somalia represented the only evidence of any violence al Qaeda contemplated against the U.S. prior to Mr. El-Hage’s return to the United States in September 1997.” As discussed, infra, this argument is entirely without merit. 52 . I note that, although the value of the actual 3500 Material is quite minimal, even this minimal value would likely require a new trial if the Government's failure to produce the statements had been truly intentional, or under circumstances justifying a presumption of intentional suppression. See Hilton, 521 F.2d at 166 (<HOLDING>); United States v. Gil, 297 F.3d 93, 101 (2d Holdings: 0: holding that a new trial is warranted if the evidence is merely material or favorable to the defense where the government has either 1 deliberately suppressed evidence or 2 ignored evidence of such high value that it could not have escaped its attention 1: holding that suppression of evidence by the prosecution of evidence favorable to the defendant upon request violates the defendants right to due process where the evidence is material 2: holding that suppression by prosecutor of evidence favorable to an accused violates due process where evidence is material to either guilt or punishment 3: holding that new evidence must be evidence that is not merely cumulative 4: holding that new evidence is evidence not previously of record and not merely cumulative of other evidence


Input: without deciding, that these requirements provide authority for the proposition that counsel has a right to know the numerical breakdown of the jury, we do not find that the district court’s decision to withhold this information amounted to fundamental error. {59} “To constitute a critical stage of a criminal proceeding, the particular proceeding or act in question must be one at which, or in connection with which, the accused’s constitutionally protected rights may be lost or adversely affected.” State v. Acuna, 78 N.M. 119, 120, 428 P.2d 658, 659 (1967). Although Defendant maintains the information was “critical knowledge” he needed to decide whether to agree to a mistrial, he does not show how he was prejudiced. Cf. Smith v. United States, 542 A.2d 823, 826 (D.C.Ct.App.1988) (<HOLDING>). The jury’s note did not indicate whether it Holdings: 0: holding that in reviewing a jury instruction this court must review the entire instruction and look at all the evidence on the record to determine whether there was error and whether that error prejudiced the complaining party 1: holding that when no objection was made to jury instruction evidence to support finding based on instruction should be assessed in light of the instruction given 2: holding that whether the majority favored conviction or acquittal was a critical factor in the defendants decision whether to request a shotgun instruction since precedent prohibited the instruction in such circumstances 3: holding that defendant was not entitled to entrapment instruction when there was insufficient evidence to support such an instruction 4: recognizing that the decision of whether to give a jury instruction is reviewed for abuse of discretion


Input: accompanied by fraud or other inequitable conduct of the remaining parties. Mullin v. Eaton, 19 A. 371, 372 (N.H. 1889) erefore, qualitatively different from an action challenging title. Compare McCormick, 37 A.3d at 298 (explaining that covenant of warranty is a promise to defend lawful claims by third persons), with Bourne, 540 A.2d at 361 (stating that reformation is limited to the original parties and their successors in title). Consequently, we hold that RSA 477:27 does not authorize attorney’s fees for an action seeking reformation of a deed. See Anderson v. Selby, 700 N.W.2d 696, 702 (N.D. 2005) (declining to award attorney’s fees under warranty deed in reformation action by grantor); see also Civic Realty, Inc. v. Development, Inc., 641 P.2d 1361, 1362-63 (Haw. Ct. App. 1982) (<HOLDING>). Here, the petitioners asserted that, by Holdings: 0: recognizing this distinction 1: recognizing distinction between smith and mcdonnell 2: recognizing distinction between tolling and estoppel 3: recognizing distinction between two types of waiver 4: recognizing distinction between attack on title by third party and complaint alleging mutual mistake in deed


Input: 1990) (<HOLDING>); Molina, 520 So.2d at 321 (“This court has Holdings: 0: holding trial court abused its discretion in finding violation where state presented no evidence that defendant ever received the instruction from probation officer and thus knew about the condition 1: holding trial court did not abuse its discretion in revoking defendants probation when urinalysis tested positive for use of morphine 2: holding trial court did not abuse its discretion in finding violation was willful and substantial 3: holding that the trial court did not abuse its discretion in revoking the defendants probation before the defendant completed his executed sentence 4: holding trial court abused its discretion in revoking probation where greater weight of evidence did not show violation was willful


Input: I was coming in and out and I could feel it. I could feel every time he kicked me.... Borlawsky Dep. at 51-2. I assume that observing intimate activity of an arrestee without justification can sometimes be a Fourth Amendment violation, but the plaintiffs evidence simply does not make that case here under the circumstances of involuntary admission to a psychiatric ward on a doctor’s advice with concern for the plaintiffs risk to herself or others. See Cookish v. Powell, 945 F.2d 441, 447 (1st Cir.1991) (noting that inadvertent, occasional, casual and restricted observation of inmate’s body by an officer of opposite sex does not violate the Fourth Amendment and emergency circumstances, like harm to oneself, allows more direct observation); Ellis v. Meade, 887 F.Supp. 324, 332 (D.Me.1995) (<HOLDING>). Likewise, kicking an arrestee can amount to Holdings: 0: holding seizure of evidence in plain view reasonable under fourth amendment 1: holding that officers view of plaintiffs shower in light of his suicide watch did not violate the fourth amendment 2: holding that warrantless arrest based on probable cause did not violate the fourth amendment 3: holding that the observation of evidence in plain view is not a search for purposes of the fourth amendment and does not require a warrant 4: holding that an arrest made by an officer outside his jurisdiction does not violate the fourth amendment


Input: in the first.”); Davis v. Sun Oil Co., 148 F.3d 606, 613 (6th Cir.1998) (per curiam) (referring to the doctrine against claim-splitting as “the ‘other action pending’ facet of the res judicata doctrine”). Thus, in assessing whether the second action is duplicative of the first, we examine whether the causes of action and relief sought, as well as the parties or privies to the action, are the same. See The Haytian Republic, 154 U.S. at 124, 14 S.Ct. 992 (“There must be the same parties, or, at least, such as represent the same interests; there must be the same rights asserted and the same relief prayed for; the relief must be founded upon the same facts, and the ... essential basis, of the relief sought must be the same.” (internal quotation marks omitted)); Curtis, 226 F.3d at 140 (<HOLDING>); Serlin, 3 F.3d at 223 (“[A] suit is Holdings: 0: holding that the trial court did not abuse its discretion in dismissing curtis ii claims arising out of the same events as those alleged in curtis i which claims would have been heard if plaintiffs had timely raised them 1: holding that a district court retained supplemental jurisdiction over the plaintiffs statelaw claims after dismissing the plaintiffs federal claims and did not abuse its discretion by declining to remand the case to state court 2: holding that some of the claims raised in the plaintiffs complaint were not properly raised in its 60day citizen suit notice thus the district court correctly held that it lacked subject matter jurisdiction over those claims 3: holding that the federal district courts dismissal of the plaintiffs federal claims deprived the court of its jurisdiction over the remaining state law claims arising from the same incident 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: crimes and crimes involving only accidental, negligent, or reckless conduct. It listed crimes which, “though dangerous, are not typically committed by those whom one normally labels ‘armed career criminals.’ ” Id. at 146-47, 128 S.Ct. 1581 (citing as examples “Ark.Code Ann. § 8-4 — 103(a)(2)(A)(ii) (2007) (reckless polluters); 33 U.S.C. § 1319(c)(1) (individuals who negligently introduce pollutants into the sewer system); 18 U.S.C. § 1365(a) (individuals who recklessly tamper with consumer products); [18 U.S.C.] § 1115 (seamen whose in s reckless endangerment statute is not a crime of violence under Begay)-, Gray, 535 F.3d at 131-32 (same with respect to New York reckless endangerment statute because it “does not criminalize purposeful or deliberate conduct”); Smith, 544 F.3d at 786 (<HOLDING>); United States v. Herrick, 545 F.3d 53, 60 Holdings: 0: holding that neither recklessness nor gross negligence is a sufficient mens rea to establish that a conviction is for a crime of violence under section 16 1: holding that one can be convicted of attempted manslaughter under the subsections of section 765205 that require intentional conduct but not under the subsection that only requires the mens rea of recklessness 2: holding that the enhanced minimum sentence for discharging a firearm requires no additional mens rea specific to the firing of the gun 3: holding that those crimes with a mens rea of negligence or recklessness do not trigger the enhanced penalties mandated by the acca 4: holding that a mens rea of unlawfully in the indictment was sufficient because the indictment referenced the applicable statute which required a reckless mens rea


Input: 603 P.2d at 525-26 (relating to RAJI 21); see also Coury Bros. Ranches, Inc. v. Ellsworth, 103 Ariz. 515, 446 P.2d 458, 463 (1968) (relating to RAJI 23). 5. The district court did not err in denying Suenos a new trial. Suenos has not established any valid grounds for a new trial, such as “(1) manifest error of law; (2) manifest error of fact; and (3) newly discovered evidence.” Brown v. Wright, 588 F.2d 708, 710 (9th Cir.1978) (per curiam). 6. The district court did not err in declining to strike Suenos’s motion for attorney’s fees as untimely. The time limit was not jurisdictional. See Arizona Local Rule 54.2(b)(2) (setting due date as 14 days but allowing alternative deadlines); see also Schweiger v. China Doll Rest., Inc., 138 Ariz. 183, 673 P.2d 927, 930 n. 2 (Ct.App.1983) (<HOLDING>). Moreover, the district court found that Holdings: 0: holding that a time limit for filing a complaint as a creditor in bankruptcy proceedings is not jurisdictional 1: holding that section 1144 is a jurisdictional limitation 2: holding time limitation on statement of costs is not jurisdictional and late filing is within courts discretion 3: holding that time limit for filing petition for review is mandatory and jurisdictional 4: holding time for filing notice of appeal under rule 8002 is jurisdictional