Input: addressing a different removal-related issue, has endorsed this reasoning, Legg v. Wyeth, 428 F.3d 1317, 1325 (11th Cir.2005), and observed an admonishment from the United Stated Supreme Court that “the Federal courts should not sanction devices intended to prevent a removal to a Federal court where one has that right, and should be equally vigilant to protect the right to proceed in the Federal court.” Id. (citing Weaker v. Nat’l Enameling & Stamping Co., 204 U.S. 176, 186, 27 S.Ct. 184, 51 L.Ed. 430 (1907)). The Sixth and Eighth Circuits have gone even further in protecting the rights of defendants. They have interpreted § 1446(b) as allowing each defendant thirty days from service to file a notice of removal, regardless of whether other defendants have so filed. Marano, 254 F.3d 753 (<HOLDING>); Brierly, 184 F.3d 527 (holding same). The Holdings: 0: holding that the thirty day removal period runs from the date of fdics plea in intervention and notice of substitution 1: holding that the defendants motion to amend their notice of removal was proper due to plaintiffs waived objections to the sufficiency of the notice of removal by failing to seek remand within thirty days of removal 2: recognizing that exceptional circumstances might permit removal when a laterjoined defendant petitions for removal more than thirty days after the firstserved defendant is served 3: recognizing that while defendants may freely amend their notice of removal within thirty days of service they may not add new grounds for removal after the thirty day period has expired 4: holding that the laterserved defendants  had thirty days from the date of service on them to file a notice of removal with the unanimous consent of their codefendants even though the firstserved codefendants did not file a notice of removal within thirty days of service


Input: which, given the pleadings in this case, is how the occupants of Toyota vehicles allegedly were injured in the underlying cases and will be the focus at trial. See Moore v. Pulmosan Safety Equip. Corp., 278 S.W.3d 27, 38 (Tex.App.-Houston [14th Dist.] 2008, pet. denied) (concluding, in products liability action, that no substantial connection existed between defendant’s contacts with Texas and operative facts of litigation because focus of trial would be on injury allegedly caused in Louisiana by a defective product that was manufactured in New York). None of these activities establish contacts that bear a substantial connection to the operative facts of this litigation. See Info. Servs. Grp., Inc. v. Rawlinson, 302 S.W.3d 392, 401 (Tex.App.-Houston [14th Dist.] 2009, pet. denied) (<HOLDING>); Yfantis v. Balloun, 115 S.W.3d 175, 183 Holdings: 0: holding that where the entity was incorporated in texas and the shareholders reside in texas and the bankruptcy case is pending in texas texas law  not arizona law  should be applied 1: holding that specific jurisdiction requires plaintiff to show that defendants forum contacts be related directly to the subject of the lawsuit 2: holding licensing agreement between defendant and nonparty texas resident was not relevant to specific jurisdiction 3: holding no specific jurisdiction where alleged tortious conduct was not related to defendants contacts with texas 4: holding defendants ownership interest in texas company that was not party to lawsuit was not relevant to specific jurisdiction


Input: In addition to the compensation provided by this chapter, an employee who becomes either totally or partially disabled from an occupational disease is entitled to receive for treatment of the occupational disease, without limitation as to length of time or dollar amount, reasonable medical services, hospitalization, medicines, and other treatment approved by the division. (Emphasis added.) In response, the State Fund contends it is not responsible for the 1992 and 1993 surgeries because Caekaert aggravated his condition by working in the poultry business between 1988 and 1992. The State Fund asserts that the Workers’ Compensation Court correctly concluded that the ‘last injurious exposure doctrine” applies. See Belton v. Carlson Transport (1983), 202 Mont. 384, 389, 658 P.2d 405, 408 (<HOLDING>); EBI/Orion Group v. State Compensation Mutual Holdings: 0: holding once a claimant reaches maximum healing or a medically stable condition the initial insurer at risk is not responsible for subsequent injuries or conditions 1: holding that claimant was entitled to recover for injuries resulting from a stumble that aggravated or accelerated the arthritic condition of his knee 2: holding the defendant responsible for the greater of the actual or intended loss 3: holding that receiving advice or treatment during the exclusionary period for a condition which proves to be the same condition the claimant seeks benefits for qualifies as a preexisting condition regardless of whether there was an accurate diagnosis 4: holding that a condition subsequent presupposes an existing obligation that is to be defeated or forfeited if the condition is not fulfilled


Input: a jury; otherwise, it is considered to have demanded a jury trial on all the issues so triable. If the party has demanded a jury trial on only some issues, any other party may-within 10 days after being served with the demand or within a shorter time ordered by the court-serve a demand for a jury trial on any other or all factual issues triable by jury. (d) Waiver; Withdrawal. A party waives a jury trial unless its demand is properly served and filed. A proper demand may be withdrawn only if the parties consent. Fed.R.Civ.P. 38. Although ues will not give rise to a demand for a jury trial. Fredieu v. Rowan Cos., 738 F.2d 651, 653 (5th Cir.1984). “New issues” do not relate to new theories of recovery. Id.; Trixler Brokerage Co. v. Ralston Purina Co., 505 F.2d 1045, 1050 (9th Cir.1974) (<HOLDING>). Rather, Rule 38(b) is concerned with issues Holdings: 0: holding party should not rely on courts power to remand for new trial under iowa rule of appellate procedure 26 now rule 626 as a substitute for careful trial preparation and presentation of evidence 1: holding that an issue not raised on direct appeal of sentence is barred by the law of the case from presentation in a subsequent appeal 2: holding that the movant was not entitled to new trial under rule 59 based on a defense which if properly placed in issue would have affected the course of the jury trial 3: holding new trial should not have been granted because jury was properly instructed 4: holding that the presentation of a new theory does not constitute the presentation of a new issue on which a jury trial should be granted as of right under  rule 38b


Input: Noble v. Sears, Roebuck & Co., 33 Cal.App.3d 654, 109 Cal.Rptr. 269 (1973); Spencer v. Burglass, 337 So.2d 596 (La.App.1976), writ denied, 340 So.2d 990 (La.1977); Martin v. Trevino, 578 S.W.2d 763 (Tex.Civ.App.1978); Bob Godfrey Pontiac, Inc. v. Roloff, 291 Or. 318, 630 P.2d 840 (1981); Tingle v. Arnold, Cate, & Allen, 129 Ga.App. 134, 199 S.E.2d 260 (1973); Brainard v. Brown, 91 A.D.2d 287, 458 N.Y.S.2d 735 (1983). We find these cases to be dis-positive in deciding the case at bar. The Code of Professional Responsibility is designed not to create a private cause of action for infractions of disciplinary rules, but to establish a remedy solely disciplinary in nature. Bob Godfrey Pontiac, Inc. v. Roloff supra.” 521 So.2d at 23. See also Ex parte Toler, 710 So.2d 415 (Ala.1998)(<HOLDING>); Gaylard v. Homemakers of Montgomery, Inc., Holdings: 0: holding violation of the rules of professional conduct does not create a legal duty on the part of the lawyer nor constitute negligence per se although it may be used as some evidence of negligence 1: holding professional rules do not provide basis for civil liability 2: holding that a violation of the rules of professional conduct may not be used as evidence and citing terry cove north for the proposition that the sole remedy for a violation of the rules of professional conduct was the imposition of disciplinary measures 3: holding that although violation of rules of professional conduct does not constitute negligence per se such violations may be relevant and admissible in assessing the legal duty of an attorney in a malpractice action and whether that duty was breached 4: holding that the disciplinary rules of the code of professional responsibility are not laws of the state of texas for purposes of statute which excludes the admission of evidence obtained in violation of law


Input: v. Bealieau, 2008 WL 4372761, *4 (D.Mass.2008) (finding Garcetti inapplicable to “public officials”); Miller v. Town of Hull, Mass., 878. F.2d 523, 530 (1st Cir.1989) (stating that the court had “no difficulty in finding that the act of voting on public issues by a member of a public agency or board comes within, the freedom of speech guarantee of the first amendment” in a retaliatory discharge claim by a board member, although additionally noting that a State statute permitted removal only for “inefficiency,, neglect of duty or misconduct in office”). Other federal courts have rejected arguments based on Bond or Miller, however, the facts of those cases distinguish them from the holdings of Bond and Miller. See Shields v. Charter Tp. of Comstock, 617 F.Supp.2d 606 (W.D.Mich.2009) (<HOLDING>); Rash-Aldridge v. Ramirez, 96 F.3d 117, 119 Holdings: 0: holding that an association board could assess the members without a member vote to pay for a vertical seawall to protect the common elements from storm damage because if work was necessary board authority was sufficient 1: recognizing absolute immunity for attorneys and board members of the texas medical board 2: holding that a town board could prevent an elected member from speaking at a town meeting where the board member could not identify any topic of discussion he was prevented from exploring during the meeting of the board to discuss the same issues where he was given ample time to speak 3: holding that the district court was authorized to remand the proceedings to the board where the board failed to make required findings 4: holding that taxpayer could not have presented substantive due process claim to the board of assessment review because of the limited jurisdiction of that board


Input: (stating that "appellate courts must apply a 'clearly erroneous’ standard of appellate review to a trial court’s ruling on a Batson claim" because "the trial court is in the best position to determine whether a prosecutor’s facially race-neutral explanation for a peremptory strike is genuinely race-neutral"); Jasper v. State, 61 S.W.3d 413, 421-22 (Tex.Crim.App.2001) (stating that the trial judge is in a unique position to determine whether a prosecutor exercised a peremptory challenge for race-neutral reasons, therefore the trial judge's decision is accorded great deference and will not be overturned unless it is clearly erroneous). 32 . We note that neither the defense nor the State requested findings of fact. See, e.g., State v. Cullen, 195 S.W.3d 696, 699 (Tex.Crim.App.2006) (<HOLDING>). 33 . What the prosecutor could have Holdings: 0: holding that on review of a motion to suppress the appellate court is to give deference to a trial courts factual findings but legal conclusions are reviewed de novo 1: holding that it is clear that hearsay evidence is admissible in a hearing on a motion to suppress 2: holding remand proper on circuit courts own motion in a workers compensation case where the commission failed to make essential findings of fact because to hold otherwise would in such cases make the determination of the rights of the parties turn upon the neglect of the commission to make essential findings of fact or require the appellate court to make the omitted findings of fact which our statute forbids 3: holding that when a court has given a party a full and fair opportunity to litigate a motion to suppress and then  has decided the motion on the merits the party may be estopped from bringing the same motion in subsequent litigation 4: holding that upon the request of the losing party on a motion to suppress evidence the trial court shall state its essential findings


Input: distinction between the school children in Schempp and the plaintiffs in Valley Forge. “We simply cannot see,” said the Court, “that respondents have alleged an injury of any kind ... sufficient to confer standing. Respondents complain of a transfer of property located in Chester County, Pa. The named plaintiffs reside in Maryland and Virginia.... They learned of the transfer through a news release.” Valley Forge, 454 U.S. at 486-87, 102 S.Ct. at 765-67 (footnotes omitted). The circuits have thus recognized that “[t]he practices of our own community may create a larger psychological wound than someplace we are just passing through.” Washegesic v. Bloomingdale Public Schools, 33 F.3d 679, 683 (6th Cir.1994). Plaintiffs who “are part of the [community where challenged (6th Cir.1985) (<HOLDING>). Though individuals offended by a religious Holdings: 0: recognizing legislature reallocated the regulatory authority from the cities over the property on which dfw airport is located to the airport board 1: recognizing that presence of sectarian chapel in airport impaired use of airport by passengers 2: holding that a dog sniff of the exterior of luggage in a public airport does not constitute a search under the fourth amendment 3: holding that no private right of action exists under any of the provisions of the airport and airway improvement act 4: holding that county airport board and twenty board members in their representative capacities had sovereign immunity in suit for negligence


Input: to report as requested to the probation officer and failure to notify the probation of any change in his residence. Oh appeal, Angelo-Guarino argues that upwardly variant sentence is unreasonable because the district court based the sentence on improper considerations and unfounded speculation. After thorough review, we affirm. We review the sentence imposed upon the revocation of supervised release for reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir. 2006). “[R]easonableness” review “merely asks whether the trial court abused its discretion.” United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir.2008) (quoting Rita v. United States, — U.S.-, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007)); see also United States v. Silva, 443 F.3d 795, 798 (11th Cir.2006) (<HOLDING>). We review de novo whether a factor considered Holdings: 0: holding apprendi is not implicated by an application of the sentencing guidelines that increases the sentencing range so long as the sentence imposed does not exceed the statutory maximum 1: holding that despite the advisory nature of the sentencing guidelines they remain the starting point and the initial benchmark of a district courts sentencing analysis the district court should begin all sentencing proceedings by correctly calculating the applicable guidelines range and keep that range in mind throughout the sentencing process and that failing to calculate or improperly calculating the guidelines range  or failing to adequately explain the chosen sentenceemdashincluding an explanation for any deviation from the guidelines range constitutes significant procedural error  2: holding that retroactive application of advisory sentencing guidelines violated ex post facto clause because guidelines increased minimum sentencing range 3: holding that district courts decision to exceed the advisory sentencing range in chapter 7 of the sentencing guidelines ussg  7b14 is reviewed for an abuse of discretion 4: holding that retroactive application of advisory sentencing guidelines violated ex post facto clause because guidelines created sufficient risk of increased sentencing range


Input: was performed for the purposes of both the guilt phase and the penalty phase. After the panel returned a guilty verdict, counsel discussed mitigation strategy with Wickline two or three times. Wickline did not want to speak with a psychiatrist or a probation officer or involve his family. Consequently, Wickline and his counsel reached the decision to focus on their strongest mitigating factor — that the Lerches facilitated the murders by participating in drug dealing and attempting a drug rip-off. Wickline made the final decision to proceed with this strategy. Based on the record evidence of Wickline’s strategic choices, counsel’s investigation and presentation of mitigating evidence did not fall below an objective standard of reasonableness. See Coleman I, 244 F.3d at 545-46 (<HOLDING>). But see Coleman II, 268 F.3d at 452 (finding Holdings: 0: holding that the sixth amendment right to counsel embodies the right to effective assistance of counsel 1: holding that counsel cannot be found ineffective for failing to pursue a particular mitigating factor where despite a reasonable investigation by counsel counsel was not put on notice of any such mitigating evidence 2: holding that petitioner was not deprived of the right to effective assistance of counsel at sentencing where petitioner did not cooperate with counsel regarding the investigation and identification of mitigating evidence imposed restrictions upon counsel and refused to submit to further psychological or psychiatric testing 3: holding that the statutory right to counsel at a civil commitment hearing implicitly includes the right to the effective assistance of that counsel 4: recognizing that a criminal defendants right to counsel is the right to the effective assistance of counsel


Input: between Allen and Forte. Id. at 1303. Importantly, the court observed that “contractors ... share an economic relationship and community of interest with the architect on a construction project,” id., and that “too much control over the contractor necessarily rests in the hands of the supervising architect for him not to be placed under a duty imposed by law to perform without negligence his functions as they affect the contractor.” Id. (quoting United States v. Rogers & Rogers, 161 F.Supp. 132, 136 (S.D.Cal.1958)). By recognizing an independent duty in tort, Forte Bros, represents an exception to the general rule propounded in Car-dente. Kennett, 798 A.2d at 418. The exception carries currency in the construction context, see Boren v. Thompson & Assoc., 999 P.2d 438, 445 (Okla.2000) (<HOLDING>), and has superficial appeal here, particularly Holdings: 0: holding in part that the liability insurance company of the subcontractor which had named the general contractor as an additional insured on the subcontractors policy was liable to reimburse the general contractor for a settlement payment the general contractor had made to the subcontractors employee 1: holding that contractor owed general negligence duty to thirdparty by dangerous condition contractor created on road 2: holding that it was not essential to an action by a supplier on a payment bond under the miller act that a demand be made on the general contractor for payment  although there was evidence in the case from which it could be found that the materialman looked to the general contractor for payment  since the statute does not require a demand for payment but merely requires written notice of the claim 3: holding that duty to ensure that independent contractor performs its work in safe manner arises if the general contractor retains some control over the manner in which the independent contractor performs its work 4: holding relying in part on forte bros that an architectural firm had duty to ensure that general contractor had secured statutorily required payment bond before certifying payments to contractor


Input: industry; i.e., the employers, the Union, and the employees. rv Many states have denied real-estate exemptions to schools that do not provide traditional types of education and that primarily benefit a particular occupation, profession, or group rather than the public. See, e.g., Alcoser v. County of San Diego, 111 Cal.App.3d 907, 169 Cal.Rptr. 91, 92-93 (1980) (denying exemption to construction trade school because Gymnastics & Performing Arts Educ. Found., Inc. v. City of Rutland, 143 Vt. 294, 465 A.2d 1363, 1365 (1983) (denying exemption to nonprofit school for gymnastics and performing arts because it provided “an essentially private benefit to a limited class of persons”); Engineers and Scientists of Milwaukee, Inc. v. City of Milwaukee, 38 Wis.2d 550, 157 N.W.2d 572, 578 (1968) (<HOLDING>). Other states have adopted an intermediate Holdings: 0: holding that plaintiffs may have a property interest in real property 1: holding property for continuing education and professional advancement of engineers and scientists was not within legislatures intent when it exempted property for educational associations 2: holding that the debtor could retain exempt property because it was not property of the estate 3: holding lease of property was a commercial transaction where the property was for commercial ranching but a residence was maintained on the property 4: holding that property manager not a professional when management authority had not been delegated to it


Input: 1306 (Fed.Cir.1999). When an appellant “states that a reason for a filing delay is physical or mental illness, [s]he must receive explicit information regarding the legal standard for establishing good cause on that basis, and [s]he must be afforded a fair opportunity to submit evidence and argument to show that [s]he met that standard.” Id. (quoting Lacy v. Dep’t of the Navy, 78 M.S.P.R. 434, 438 (1998)). The Lacy criteria provides that the petitioner be afforded an opportunity to (1) identify the time period during which she suffered from the illness, (2) submit corroborating evidence showing that she suffered from the illness during that time period, and (3) explain how the illness prevented her from timely filing an appeal or requesting an extension of time. 78 M.S.P.R. at 437 (<HOLDING>); see Smith, 168 F.3d at 1306 (endorsing the Holdings: 0: holding that the corroborating evidence need not be medical evidence if the appellant explains why medical evidence is not available 1: holding that the state is not allowed to suppress evidence but it need not collect evidence for the defendant 2: holding that an aljs own medical analysis which is contrary to medical evidence is invalid 3: holding that new evidence is evidence not previously of record and not merely cumulative of other evidence 4: holding remedy for lack of sufficient corroborating evidence is acquittal


Input: work release. Defense counsel’s advice implying that Ostrander was eligible for work release and that he had a very good prospect of receiving it soon after sentencing was unrealistic. 46 F.3d at 355. Ostrander was not eligible for work release and a minimal amount of research by defense counsel would have informed him of that. The Court had no difficulty in concluding that Ostrander had received ineffective assistance of counsel: We think that this misadvice falls well below the range of competence we must expect from defense lawyers.... There is a difference between a bad prediction within an accurate description of the law and gross misinformation about the law itself. If the lawyer simply underestimates the sentence, there may not be ineffective assistance.... We can 4th Cir.2013) (<HOLDING>). Not only does Ross’s case include gross Holdings: 0: holding statute of limitations is not jurisdictional and can be waived by a voluntary plea of guilty 1: recognizing defense counsels misrepresentations can undermine validity of guilty plea citing tollett v henderson 411 us at 26667 93 sct 1602 2: holding that ineffective assistance can render a guilty plea involuntary 3: holding failure to advise of right to subpoena witnesses does not affect the validity of a guilty plea 4: holding that a valid guilty plea waives a statute of limitations defense


Input: omitted); accord Kenton v. Wood, 56 Ariz. 325, 331, 107 P.2d 380, 383 (1940) (“[D]i-rectors are trustees for the benefit of the stockholders.”). ¶ 16 In support of their contention that this case arises out of contract, Defendants argue that they had no duty to preserve development opportunities for Corvallas absent an alleged oral agreement with Plaintiff, and that they were free to pursue real estate developments outside Corvallas. But Defendants’ argument goes to the merits of Plaintiffs claim, not to its fundamental nature: Plaintiff did not sue for breach of any alleged oral agreement, and the validity and terms of such an agreement were not necessary to the disposition of the claim. Compare Asphalt Eng’rs, Inc. v. Galusha, 160 Ariz. 134, 138, 770 P.2d 1180, 1184 (App.1989) (<HOLDING>). Further, a defense based on the absence of a Holdings: 0: holding that when an employee had his duties changed but had no interest created or protected by the constitution or state law in those duties then no liberty interest claim was stated 1: holding that under delaware law the fiduciary duties of officers are the same as those of directors 2: holding that the amount of time devoted to managerial duties and the significance of those duties present factual questions 3: holding that a breach of duties that a fiduciary contractually assumes beyond those duties imposed by law is considered to arise out of contract 4: recognizing similar duties


Input: to confirmation of an arbitration award under the New York Convention, we may look to authority under the FAA. Parsons & Whittemore, 508 F.2d at 974. III. We may decline enforcement of an arbitral award on the basis that “the arbitral procedure was not in accordance with the agreement of the parties.” 21 U.S.T. 2517, Art. V, § (l)(d). To determine whether the procedure used was contrary to the parties’ agreed arbitral procedures, we must begin with the language of the parties’ arbitration agreement. See Encyclopaedia Universalis S.A. v. Encyclopaedia Britannica, Inc., 403 F.3d 85, 91 (2d Cir.2005); Coast Trading Co. v. Pac. Molasses Co., 681 F.2d 1195, 1198 (9th Cir. 1982); cf. generally Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002) (<HOLDING>); Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, Holdings: 0: holding that in the context of an arbitrability determination the court reviews the contract de novo 1: holding appellate court reviews legal conclusions de novo 2: holding that statutory construction is a question of law which this court reviews de novo 3: holding that an appellate court reviews a trial courts grant of a summary judgment motion de novo because it is a question of law 4: recognizing that appellate court reviews questions of law de novo


Input: investigation would probably have required sending a team of lawyers and accountants to Sarasota to conduct a field audit of JHIS’s books and records. But the appropriate inquiry here is not what Jackson Hewitt might have learned upon further investigation of Prewett and JHIS in 2002. Instead, the focus must be on what Jackson Hewitt actually knew in 2004 and 2005 when the Kamans were making their investments. When Valmont contacted Cort at Jackson Hewitt in 2002, Jackson Hewitt had already experienced an uneventful relationship with its franchisee, SFS, for nine years. And SFS, in a letter signed by Scott, successfully allayed Hapward’s concerns about JHIS with reassuring but false information and a change of the corporate name. Although Prewett successfully solicit 25 (Tex.Civ.App.) (<HOLDING>), affirmed in part and reversed in part on Holdings: 0: holding that a franchisor did not waive  his arbitrable claims by prosecuting the unlawful detainer action in california state court because that action involved different issues 1: holding that in an action by a customer of a mobil dealer against the franchisor on an apparent agency theory the trial court improperly excluded a letter showing that the customer believed that the service station was owned by an individual not the franchisor 2: holding that a draft of a proposed letter from an area director of a government agency to a municipal administrative agency was properly excluded because it did not represent an agency finding 3: holding that an order by the trial court remanding the cause to the agency to impose a sanction other than the one imposed by the agency was not a final and appealable order because it did not terminate the litigation between the parties on the merits 4: holding that the customer of a chevron dealer could not maintain an action against the franchisor on an apparent agency theory when the customer knew that the station was independently owned and operated


Input: of Justice, 416 F.3d 129, 130-31 (2d Cir.2005) (finding that the birth of U.S. citizen children constitutes a change in personal circumstances, not a change in country conditions, and therefore does not establish an exception to the filing deadline for motions to reopen). Furthermore, despite Chen’s submission of various allegedly official Chinese government documents, as well as recent country reports and a letter from her its discretion in concluding that Chen provided insufficient evidence that the birth of her U.S. citizen children violated the family planning policy in her area of residence in China, or that the implementation of sanctions resulting from any possible violation would rise to the level of persecution. Cf. Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir.2005) (<HOLDING>). We decline to examine Chen’s argument Holdings: 0: holding that an applicants fear was not objectively reasonable because it lacked solid support in the record and was merely speculative at best 1: holding that absent solid support in the record for the petitioners assertion that he would be persecuted his fear was speculative at best 2: holding that absent solid support in the record for the petitioners assertion that he would be subjected to persecution his fear was speculative at best 3: holding that absent solid support in the record a petitioners fear is speculative at best 4: holding that in the absence of solid support in the record for an applicants assertion that she would be persecuted the bia did not err in denying asylum because her fear was speculative at best


Input: and because it shows the defendant’s efforts to avoid detection regarding his activities. See Fed.R.Evid. 401 (defining relevant evidence as evidence having any tendency to make a fact of consequence to the determination of the action more or less probable than without the evidence); United States v. Cusack, 229 F.3d 344, 347-48 (2d Cir.2000). Even relevant evidence may be held inadmissible, however, if its probative value is substantially outweighed by the danger of unfair prejudice. See Fed. R.Evid. 403. The Advisory Committee Note to Fed.R.Evid. 403 explains that unfair prejudice is an “undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” See Tome v. United States, 513 U.S. 150, 160, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995) (<HOLDING>); see also Old Chief v. United States, 519 U.S. Holdings: 0: holding guidelines to be only advisory 1: holding that the burden is upon the state under the applicable federal rules of evidence 2: holding that the advisory committee notes are a helpful guide for interpreting the federal rules of evidence 3: holding that the cocaine guidelines  are advisory only 4: holding that the federal expert witness compensation rules are in direct conflict with the state rules even when the state rules allow for a greater recovery


Input: of what constitutes an adequate “independent duty” for imposing common-law indemnity from a general contractor to a subcontractor for injuries to another. Thus, the standards discussed above, in reference to National Tank’s third-party claim for indemnity against Eagle Grove, for what constitutes the necessary “independent duty” appear to be equally applicable here. Thus, the question is whether Gehrke’s alleged duty to supervise and maintain the safety of the job site is the sort of duty of “a specific, defined nature,” running from Gehrke to National Tank, and not simply the general duty of care owed to each member of society. See, e.g., Hysell, 534 F.2d at 782-83; accord Johnson, 481 N.W.2d at 320 (quoting this standard from Hysell); Abild Constr. Co., 144 N.W.2d at 310-11 (<HOLDING>); see also Woodruff Constr. Co., 406 N.W.2d at Holdings: 0: holding that an indemnity provision need not be valid and enforceable to trigger obligations under the contract so long as the parties agreed to indemnity 1: holding that a third party has authority to consent to a search if the third party is a coinhabitant 2: holding that a party that settled but failed to immediately notify a third party of indemnity claims did not waive indemnity claims 3: holding that a duty not to cause injury to another by ones negligent act is too broad to serve as a basis for permitting indemnity of an employer to a third party 4: holding that an indemnitee must be proven to be free of negligence in order to receive indemnity either under a general indemnity agreement or under implied indemnity


Input: setting. Eleven also included language in his motion declaring that, if the case had been again dismissed in the meantime, the document should be considered his notice of appeal. A trial court is required to consider and rule on a motion within a reasonable time. Barnes v. State, 832 S.W.2d 424, 426 (Tex.App.-Houston [1st Dist.] 1992, orig. proceeding); Kissam v. Williamson, 545 S.W.2d 265, 266-67 (Tex.Civ.App.-Tyler 1976, orig. proceeding). When a motion is properly filed and pending before a trial court, considering and ruling on that motion is a ministerial act, and mandamus may issue to compel the trial court to act. Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.App.-San Antonio 1997, orig. proceeding); see also Eli Lilly & Co. v. Marshall, 829 S.W.2d 157, 158 (Tex.1992) (<HOLDING>); Chiles v. Schuble, 788 S.W.2d 205, 207 Holdings: 0: holding that trial court abused its discretion by denying a motion for rule 11 sanctions without adequate explanation 1: holding that the district court abused its discretion by denying the habeas petitioners motion to conduct dna testing which was unavailable at trial 2: holding trial court abused its discretion by refusing to conduct hearing and render decision on motion 3: holding trial court abused its discretion by refusing to allow questions regarding victims status as a child 4: holding that district court had not abused its discretion in denying plaintiffs motion to amend complaint


Input: the basis of the inside influence or economic leverage of a particular creditor.” H.R.REP. 103-835. State and Federal governments “must abide by the regular processes of the bankruptcy court applicable to all claimants.” 140 Cong.Ree. H10752-01, H10772. III. Conclusion We conclude on the basis of the foregoing discussion that Congress has the authority to abrogate the Eleventh Amendment when it acts pursuant to the powers accorded it under the Bankruptcy Clause, Art. I, § 8, cl. 4; that it expressly and unequivocally did so when it enacted § 113 of the Reform Act, 11 U.S.C. § 106; and that § 113 applies retroactively to this case. Accordingly, the judgment is Reversed and the cause Remanded. 1 . But see Seminole Tribe of Florida v. State of Florida, 11 F.3d 1016, 1023 (11th Cir.1994) (<HOLDING>). 2 . To the extent 11 U.S.C. § 106(a) could be Holdings: 0: recognizing that congress has specifically abrogated the eleventh amendment defense when legislating pursuant to  5 of the fourteenth amendment and its article i  8 plenary power over commerce but refusing to extend authority to abrogate to legislation enacted pursuant to the indian commerce clause the indian gaming regulatory act 1: holding that federal legislation with respect to indian tribes  is not based upon impermissible racial classifications and noting that article i  8 of the constitution gives congress the power to regulate commerce  with the indian tribes 2: holding that congress could abrogate the eleventh amendment pursuant to the commerce clause 3: holding that the eleventh amendment bars con gress from using its power under the indian commerce clause of article i to expand the jurisdiction of the federal courts under article iii 4: holding that congress may abrogate a states immunity pursuant to its enforcement power under  5 of the fourteenth amendment


Input: $50-$70. 363 F.3d at 202. We held that the interstate commerce nexus was satisfied because the tavern sold beer that was manufactured outside of the Virgin Islands. Id at 211. Likewise, in United States v. Claus have a substantial effect on interstate commerce. See Raich, 545 U.S. at 17-19, 125 S.Ct. 2195. Although this robbery was of a small business that purchased alcohol sold in interstate commerce, if robberies oc curred at and led to the closure of such establishments on a large scale, the effect on interstate commerce would be substantial. For that reason, the size of Jeanette’s business and the fact that the appellants stole only $121 dollars, a wallet, and two cell phones did not make this crime too small to satisfy the de minimis standard. See Walker, 657 F.3d at 180 (<HOLDING>); Haywood, 363 F.3d at 202, 211 n. 7 (holding Holdings: 0: recognizing de novo standard of review 1: holding that fiveday suspension was not a de minimis deprivation 2: holding that district court properlydiscounted four calls as de minimis 3: holding that a robbery of 40 to 50 satisfied the de minimis standard 4: holding that to demonstrate retaliation complainedof action must be more than de minimis


Input: Application to Congenital Conditions The Federal Circuit has made clear that the only prerequisite for the application of the presumption of soundness is that the veteran’s entry examination be clear of any noted diseases or disabilities. See Wagner, 370 F.3d at 1096. This Court has recognized that service connection may be granted for congenital diseases. See Monroe v. Brown, 4 Vet.App. 513, 515 (1993). We have also held that the presumption of soundness applies if a veteran’s congenital condition is not noted at entry. See id. The presumption of soundness does not, however, apply to congenital defects, because such defects “are not diseases or injuries” within the meaning of 38 U.S.C. §§ 1110 and 1111. 38 C.F.R. § 3.303(c); see Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed.Cir.2003) (<HOLDING>); see Winn, 8 Vet.App. at 516 (holding that a Holdings: 0: holding that the presumption that rule 45 does not apply to the federal government can only be overcome by affirmative evidence 1: holding that harmful error analysis does apply to defects in an explanation required by section 5403b 2: holding that the presumption of soundness does not apply to congenital defects 3: holding that a district judge does not enjoy the benefit of a legal presumption that the guidelines sentence should apply 4: recognizing presumption


Input: (“We allow the admission of survey evidence as an exception to the hearsay rule if the survey is material, more probative on the issue than other evidence and if it has guarantees of trustworthiness.” (citations omitted) (internal quotations omitted)), C.A. May Marine Supply Co. v. Brunswick Corp., 649 F.2d 1049, 1054 (5th Cir.1981) (“Surveys and customer questionnaires are admissible, if they are pertinent to the inquiry, upon a showing that the poll is reliable and was compiled in accordance with accepted survey methods.”), Baumholser v. Amax Coal Co., 630 F.2d 550, 552 (7th Cir.1980) (“To qualify a study or opinion poll for admission into evidence, there must be a substantial showing of reliability.”), and Pittsburgh Press Club v. United States, 579 F.2d 751, 758 (3d Cir.1978) (<HOLDING>). Courts have, however, rarely articulated Holdings: 0: holding that testimonial statements are subject to the requirements of the confrontation clause even if they are otherwise admissible under the hearsay exception for excited utterances 1: holding that when regulations are intended to have different purposes and are not dependent on each other they are not intertwined 2: holding that surveys are admissible only if they are conducted with proper safeguards to insure accuracy and reliability 3: holding that the remedy under another subsection of  1581 is not manifestly inadequate because  1581s builtin safeguards and limitations    are not to be dismissed because they are inconvenient 4: holding that claims are related if they involve a common core of facts or they are based on related legal theories


Input: trial court. We read the trial court’s comment that Digital Broadcast had not complied with the requirements of Rule 55(c) as a reference to the requirement of a verified answer or assertion of the court’s lack of jurisdiction. Although the trial court did not explain why the asserted lack of personal jurisdiction was insufficient, we conclude that the assertion fails as a matter of law. Digital Broadcast’s only asserted defense was that the Superior Court lacked personal jurisdiction because Digital Broadcast is incorporated and located elsewhere and has “no business operations in the District of Columbia.” In asserting that defense, Digital Broadcast bore the burden of alleging facts that, if proven, would demonstrate a lack of personal jurisdiction. Cf. Venison, 756 A.2d at 911-12 (<HOLDING>). Digital Broadcast failed to meet that burden. Holdings: 0: holding that plaintiffs statistical evidence failed to establish prima facie case or pretext where evidence failed to make specific analytical comparisons 1: holding that the plaintiff failed to establish a prima facie case of retaliation because there was no evidence that the decisionmaker knew of the plaintiffs protected conduct 2: holding that without more the mere fact that the prosecutor used a high number of strikes to remove women from the venire is insufficient to establish a prima facie case 3: holding that the simple assertion that the district of columbia failed to follow the proper procedures in selling a property for delinquent taxes without citing supporting evidence is insufficient to establish a prima facie defense under rule 60b 4: holding that a movants failure to establish a prima facie case for the underlying substantive relief is a proper ground for the bia to deny a motion to reopen


Input: same FERC decision. On November 26, 2014, Plaintiffs filed a Response. On January 22, 2015, the court held a final oral argument in San Francisco, California (“1/22/15 TR 1-92”). III. DISCUSSION. A. Whether Plaintiffs Have Standing. As a matter of law, a “plaintiff must be in privity with the United States to have standing to sue the sovereign on a contract claim.” S. Cal. Fed. Sav. & Loan Ass’n v. United States, 422 F.3d 1319, 1328 (Fed. Cir. 2005). Privity “takes on even greater significance in cases such as this, because the ‘government consents to be sued only by those with whom it has privity of contract.’ ” Id. (quoting Erickson Air Crane Co. of Wash. v. United States, 731 F.2d 810, 813 (Fed. Cir. 1984)); see also Anderson v. Unit ed States, 344 F.3d 1343, 1351 (Fed. Cir. 2003) (<HOLDING>); see also id. (“To have standing to sue the Holdings: 0: holding that because private plaintiffs were signatories of a breached contract they were entitled to recoveiy independent from that of the corporation but denying expectancy damages claim and not addressing claim for reliance damages 1: holding that absent privity between plaintiffs and the government there is no ease 2: holding that pursuant to the best evidence rule trial testimony relying on documents was inadmissible without submission of such documents or an explanation as to why the documents were unavailable 3: holding that privity is lacking where plaintiffs were not signatories to the contractual documents 4: holding that contractual privity between the buyer and seller was not necessary for a cfa claim


Input: accounting firm was not an abuse of discretion because the testimony helped establish Spivak’s state of mind. Under Federal Rules of Evidence 401 and 403, the district court’s ruling excluding both Bill Feinberg’s testimony and Cohn’s testimony about Joseph Reda’s comments was not an abuse of discretion. An erroneous jury charge is one that misleads the jury as to the proper legal standard or does not adequately inform the jury of the law. See Luciano v. Olsten Corp., 110 F.3d 210, 218 (2d Cir.1997). “Challenged jury instructions are reviewed de novo, but this Court will reverse only if all of the instructions, taken as a whole, caused the defendant prejudice. United States v. Bok, 156 F.3d 157, 160 (2d Cir. 1998); see also Thomley v. Penton Publ’g, Inc., 104 F.3d 26 (2d Cir.1997) (<HOLDING>).” Hester v. BIC Corp., 225 F.3d 178,186 (2d Holdings: 0: holding that to grant a new trial the error must be more than harmless 1: holding cumulative error not reversible if it is more probably harmless than not 2: holding exclusion was harmless error 3: holding that in order to conclude that federal constitutional error is harmless court must find that error harmless beyond a reasonable doubt 4: holding that admission of hearsay constituted harmless error when there was more than sufficient other evidence in the record to support the verdict


Input: this concept of perhaps somebody suggested mutual consent, to which he concurred. The court found plaintiff had something to gain from the novation in that [o]n the record the file became listed as a resignation. He had that to gain from and I don’t see that he had anything else, particularly, to gain from it. The facts presented lead us unequivocally to the conclusion that defendant Brown Boveri breached the employment contract. There is an emerging pattern of persuasive out-of-state case law supporting the propositions that Brown Boveri’s attempt to reclassify plaintiff to a lesser job status constructively discharged him in violation of his employment contract, see, e.g., Knee v. School District No. 139, In Canyon County, 106 Idaho 152, 153-55, 676 P.2d 727, 728-30 (Ct.App.1984) (<HOLDING>); Sanders v. May Broadcasting Co., 214 Neb. Holdings: 0: recognizing that a constructive discharge claim and a hostile work environment claim are not equivalent because a constructive discharge claim imposes a higher standard 1: holding that a constructive discharge would constitute a tangible employment action and prevent the employer from utilizing the affirmative defense to vicarious employer liability for sexual harassment 2: holding that constructive discharge may qualify as a tangible employment action depriving employer of right to assert affirmative defense when a supervisors official act precipitates the constructive discharge 3: recognizing the principle that where sufficient words or actions by the employer would lead a prudent man to believe his tenure has been terminated a constructive discharge is present 4: holding defendants belief that his work was unfairly criticized is not sufficient for constructive discharge


Input: requires that Yoon “reside[] continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove [him] from the United States.” Id. at § 1182(h)(2) (emphasis added). For both a cancellation and a § 212(h) waiver, the period of lawful continuous residency terminates when the alien is served with a notice to appear. Id. at §§ 1229b(d)(1) and 1182(h). Yoon gained lawful entry into the Commonwealth of the Northern Mariana Islands (CNMI) on May 15, 1996. However, residence in the CNMI before 2009 was not residence in the United States. See Consolidated Natural Resources Act of 2008, Pub. L. No. 110-229, §§ 701-702, 122 Stat. 754 (2008) (codified at 48 U.S.C. § 1806); Eche v. Holder, 694 F.3d 1026, 1030 (9th Cir.2012) (<HOLDING>). Thus, Yoon’s admission into the CNMI on May Holdings: 0: holding that defendant was not in custody during search of his residence 1: holding that residence in the cnmi before 2009 was not residence in the united states for naturalization purposes 2: holding residence means legal residence for will probate 3: holding that a warrant authorizing the search of a residence vehicles at the residence and all persons found in the residence was not overly broad given that search was limited to places were drugs or weapons might be found 4: holding that a realestate appraisal was not a guarantee of the condition of the residence but a valuation of the residence and thus not a misrepresentation


Input: court cases, the wardens argue that defense counsels’ failure to inform Miller and Haynes of the prosecution’s right to appeal the imposition of a juvenile sentence does not comprise ineffective assistance because the prosecutor’s right of appeal represents a collateral, as opposed to a direct, consequence of the plea. We reject this argument on two grounds. First, the wardens’ reliance on circuit court cases is improper. The AEDPA prohibits use of lower court decisions in determining whether the state court deei sion is contrary to, or is an unreasonable application of, clearly established federal law. Williams, 529 U.S. at 412, 120 S.Ct. 1495 (defining “clearly established law as determined by the Supreme Court” to mean holdings of Supreme Court decisions); Harris, 212 F.3d at 944 (<HOLDING>). Second, the wardens’ argument is incompatible Holdings: 0: holding that district court opinion which cites controlling authority that is pending review in florida supreme court allows supreme court to exercise jurisdiction 1: recognizing that the new  2254d is a retrenchment from former practice which allowed the united states courts of appeals to rely on their own jurisprudence in addition to that of the supreme court 2: holding that a state court criminal judgment is final for purposes of collateral attack in federal court at the conclusion of review in the united states supreme court or when the time for seeking certiorari review expires 3: holding that no federal court other than the supreme court may entertain a proceeding to reverse or modify a judgment of a state court 4: holding district court erred in relying on authority other than that of the supreme court of the united states in its analysis under  2254d


Input: that any judgment against the State of New Jersey, the New Jersey Department of Labor and Workforce Development, or the Division of Workers’ Compensation would be paid by New Jersey’s state treasury. Dist. Ct. Op. at 13-15. Because the State of New Jersey was thus the real party at interest, the District Court properly held that these entities are immune from a suit seeking money damages. Fitchik v. N.J. Transit Rail Operations, Inc., 873 F.2d 655, 659 (3d Cir.1989). As Hogg’s made neither a demand for injunctive relief, nor any allegation of a continuing violation of constitutional rights, there is no basis for excepting the application of Eleventh Amendment immunity in this case. See Edelman v. Jordan, 415 U.S. 651, 676-78, 94 S.Ct. 1347, 39 L.Ed.2d 449 F.2d 1298 (3d Cir.1971) (<HOLDING>). As noted, the District Court also dismissed Holdings: 0: holding state university is not a person under  1983 1: holding that a state is not a person within the meaning of  1983 2: holding that a state is not a person under 42 usc  1983 3: holding state is not a proper defendant under  1983 4: holding that state of new jersey is not a person under  1983 and thus not amendable to suit under that statute


Input: that the amount of cocaine contained in the residue was so minute that it could not effectively be weighed or measured. Further, Jones’s counsel contended in his closing argument that, although the residue itself was visible, it had to be tested multiple times before the police could make a positive determination that it contained cocaine. We conclude that Jones’s counsel placed in dispute the issue of whether Jones knew the illicit nature of the substance on the pipe. Under Delva, it was fundamental error for the trial court to fail to properly instruct the jury on that disputed element of the crime charged against Jones. Since such fundamental error is not subject to harmless error analysis, Jones’s conviction must be reversed. See Reed v. State, 887 So.2d 366, 369-70 (Fla.2002) (<HOLDING>). Section 893.101, Florida Statutes (2002), Holdings: 0: recognizing plain or fundamental error 1: holding that the omission of an element is not a structural error subject to automatic reversal but rather  where objected to  is subject to harmless error analysis 2: holding that lack of appellate jurisdiction is fundamental error 3: holding that failure to give proper instruction regarding disputed element of crime charged was fundamental error requiring reversal and stating that fundamental error is not subject to harmless error review 4: holding that when none of the required explanations were given that was fundamental error requiring reversal


Input: some apparently directive or dispositive words,” such as, “ ‘the plaintiffs motion [for summary judgment] is granted.’ ” Because the opinions or memo-randa sometimes lacked all the requisite elements of a judgment, and because judges sometimes later signed formal judgments in addition to those opinions and memoranda, Rule 58 was amended to clarify when a judgment became “effective, starting the time running for post-verdict motions and for the purpose of appeal.” Given this clear need for certainty, we should not cloud the issue of when a federal court judgment is “rendered” — it is “rendered” when it is set forth in writing on a separate document and entered on the civil docket, in compliance with Rule 58. See United States v. Woods, 885 F.2d 352, 353 (6th Cir.1989) (per curiam) (<HOLDING>) (emphasis added); Simon v. City of Clute, 825 Holdings: 0: holding that because the district courts order failed to comply with rule 58 appellants notice of appeal cannot be considered late 1: holding that class claims that fail to meet the requirements of rule 23 may be properly dismissed by granting a rule 12b6 motion 2: holding that when the lower court has clearly evidenced its intent and the opposing party has not objected to the absence of a separate judgment the requirements of rule 58 are waived 3: holding that a district courts marginal order granting summary judgment did not meet the strict requirements of rule 58 because a party may reasonably be confused as to the standing of its ease when a decision is rendered in such an informal manner 4: holding that a portion of a district courts summary judgment order that determines which facts a party may or may not be able to prove at trial is not appealable


Input: it reveals information not exposed to the public, we note preliminarily that the Government points to not a single actual example of visual surveillance that will be affected by our holding the use of the GPS in this case was a search. No doubt the reason is that practical considerations prevent visual surveillance from lasting very long. Continuous human surveillance for a week would require all the time and expense of several police officers, while comparable photographic surveillance would require a net of video cameras so dense and so widespread as to catch a person’s every movement, plus the manpower to piece the photographs together. Of course, as this case and some of the GPS cases in other courts illustrate, e.g., Weaver, 12 N.Y.3d at 447, 459, 882 N.Y.S.2d 357, 909 N.E.2d 1195 (<HOLDING>); Jackson, 76 P.3d at 223 (holding use of GPS Holdings: 0: holding that the use of a corset spring device was public although the use was by its nature not visible to the general public 1: holding warrantless gps tracking of vehicle for several days generating highly accurate record of the trackers whereabouts throughout its period of operation unjustified 2: holding in light of knotts that lower court did not abuse its discretion in cutting short testimony about use of gps device appellant did not cite knotts in his briefs or affirmatively argue use of device was a search 3: holding locomotive was not in use when it was parked on a repair track for inspection was in a blue flag area and had not yet been released for use following the inspection 4: holding use of gps device to track suspect for 65 days was search


Input: devoid of any evidence that APHIS made determinations that the field tests at issue involved either “new species or organisms or novel modifications that raise[d] new issues.” Likewise, there is no evidence that APHIS considered whether the field tests, notwithstanding the initial application of the “confined field release” exemption, “may have [had] the potential to affect ‘significantly’ the quality of the ‘human environment.’ ” This absence manifests arbitrary and capricious agency action which is inconsistent with the terms used in APHIS’s own regulations, and which violates NEPA. Ctr. for Food Safety, 451 F.Supp.2d at 1183-86 (reviewing similar field test permits and reaching the same conclusion); see also Back Country Horsemen of Am. v. Johanns, 424 F.Supp.2d 89, 99 (D.D.C.2006) (<HOLDING>). The record contains substantial evidence that Holdings: 0: recognizing that an agencys interpretation of the scope of its own categorical exclusions is given controlling weight unless plainly erroneous or inconsistent with the terms used in the regulation quoting alaska ctr for envt v us forest serv 189 f3d 851 857 9th cir1999 1: holding that an agencys interpretation of its own regulations is controlling unless plainly erroneous or inconsistent with the regulation citation and quotation marks excluded 2: holding that deference is owed to an agencys interpretation of its own categorical exclusion regulations so long as that interpretation is not plainly erroneous or inconsistent with the regulation 3: holding that courts should defer to agencys interpretation of its own regulations if not plainly erroneous or inconsistent with the regulation 4: holding that a secretarys interpretation of a departments regulation is controlling unless plainly erroneous or inconsistent with the regulation


Input: communications were similar. Each communicated its desires and opinions to a governmental entity with regulatory authority to take action affecting the property. Like SARA in relation to San Antonio, the TWDB made its opinion known to the Corps but had no authority to take the action affecting the owner’s property rights. SARA further sought a cooperation agreement between it and San Antonio. As Westgate’s focus on direct action implies, causation is an issue to be considered by Courts in takings cases. This is not the first time courts have addressed causation in a takings action. In 1941, we held that the “true test” is whether the State’s intentional acts “were the proximate cause of the taking or damaging of such property.” State v. Hale, 136 Tex. 29, 146 S.W.2d 731, 737 (1941) (<HOLDING>); see Roberson v. City of Austin, 157 S.W.3d Holdings: 0: holding the installation of catv facilities on plaintiffs property to be a physical taking 1: holding that invasion of an identifiable customers account is not a necessary element proof under the statute 2: holding that under delaware law the policys definition of personal injury as wrongful entry or eviction or other invasion of the right of private occupancy applies only to damages incurred as a result of an invasion of an interest in real property 3: holding that a direct physical invasion of the property was not necessary under the 1876 constitution for a taking to occur 4: holding intent as an essential element to an invasion of privacy by intrusion and not listing intent as a required element of invasion of privacy by publication


Input: example, at a status hearing on November 7, 2004, which was only approximately one week before the evidentiary hearing, Over-ton’s counsel made no argument that the ordered DNA testing had not yet been completed. This is consistent with the State’s argument that Overton withdrew his motion for a continuance at a status hearing on October 29, 2004. Moreover, even if the ordered DNA testing had not been completed, there was no undue prejudice to Overton. Overton has not asserted any reason why DNA testing of the crime scene swabs will produce different results than the other DNA testing, which linked Overton to the scene. Overton’s argument that DNA testing of these crime scene swabs would have changed the outcome is purely speculative. See Martin v. State, 455 So.2d 370, 372 (Fla.1984) (<HOLDING>). Overton’s claim that the trial court’s denial Holdings: 0: holding that the defendant could not establish prejudice for trial counsels failure to hire an expert when the experts testimony would not have changed the nature of the states evidence 1: holding the defendants claim that he was denied the right to testify was appropriate for direct review when the record was adequately developed to permit full consideration of the defendants claim the pertinent facts were undisputed a pcr hearing was not necessary to resolve a factual dispute and would not aid in the application of the law and the defendants claim was presented not as an ineffective assistance of counsel claim but rather as an error committed by the trial court in excluding the defendants testimony which was not an appropriate basis for an ineffective assistance of counsel claim 2: holding that there was no brady violation because the exculpatory effect of the disputed documents was merely speculative 3: holding that the trial court committed no abuse of discretion in denying the appointment of the defendants requested expert as there was no undue prejudice to the defendant because the defendants claim on the predicted effect of the experts testimony was purely speculative 4: holding that trial court did not abuse its discretion in denying defendants motion to dismiss on de minimis grounds where his expert witness testimony was inadmissible


Input: results in a work-related “injury” or not — are entitled to a maximum of 100% of their back pay, as long as that sum does not lead to double recovery. Duplicative benefits must be deducted, as the district court did here. We reach the same conclusion on a second, independent ground. As we have noted above, relief under Title VII in the form of back pay is purely “equitable” in nature. See supra pp. 514-15. By contrast, relief under FECA consists of “compensation” (i.e., damages) defined as a per centage of the employee’s monthly salary. Because the exclusivity provisions of FECA are limited solely to other forms of “compensation,” they are simply not applicable to the types of “equitable” relief authorized by Title VII. See, e.g., Smith v. Barton, 914 F.2d 1380, 1337 (9th Cir.1990) (<HOLDING>), cert. denied, 501 U.S. 1217, 111 S.Ct. 2825, Holdings: 0: holding that compensatory time used by plaintiff police officers can be deducted from award of back pay 1: holding that exhaustion is required under the plra even if the plaintiff seeks only money damages and money damages are not available as relief 2: holding that compensatory money damages are generally distinct from equitable forms of relief such as injunctions or back pay 3: holding that money damages do not qualify as equitable relief within the meaning of  1132a3 4: holding that equitable relief under  502a3 does not include compensatory and punitive damages


Input: disorderly persons offenses, however, may be submitted to the jury in criminal trials as lesser-included offenses, despite the general jurisdiction of the municipal court in such matters. See N.J.S.A. 2C:l-8(e); R. 3:15-3. See also, e.g., DeLuca, supra, 108 N.J. at 111, 527 A.2d 1355 (stating that “Superior Court may assert jurisdiction over non-indietable offenses when they are lesser included offenses of the indictables” for purpose of submitting disorderly persons charges to jury); State v. Braxton, 330 N.J.Super. 561, 563, 568, 750 A.2d 185 (App.Div.2000) (affirming conviction where defendant was acquitted of charged aggravated assault and convicted of lesser-included offense of disorderly persons simple assault); State v. Green, 318 N.J.Super. 361, 375, 724 A.2d 254 (App.Div.1999) (<HOLDING>), aff'd, 163 N.J. 140, 747 A.2d 1234 (2000); Holdings: 0: holding that simple possession is not a lesserincluded offense of distribution of a controlled substance 1: holding military judge did not err by considering appellants admissions concerning the elements of the lesserincluded offense of aggravated assault in determining appellant was guilty of the greater offense of attempted premeditated murder 2: holding that counsel was deficient when he failed to object to error in jury charge referring to aggravated assault when the charge was assault on a public servant 3: holding that failure to give lesserincluded charge of simple assault as lesserincluded offense of aggravated assault on police officer was reversible error 4: holding that had trial counsel requested charge on lesserincluded offense of child molestation to charged offense of aggravated child molestation trial court would have been required to give the charge on the lesserincluded offense when defendant testified that during incident in question he was hugging the victims stomach not performing oral sex


Input: that eight major oil companies were violating the Federal Trade Commission Act was not final agency action. See id. at 246, 101 S.Ct. 488. The Court reasoned that the FTC’s averment of “reason to believe” 'that the oil companies were violating the FTCA was “not a definitive statement of position [but instead] represented] a threshold determination that further inquiry [was] warranted and that a complaint should initiate proceedings.” Id. at 241, 101 S.Ct. 488. The Court then determined that, because the issuance of the complaint served only to initiate the proceedings by which a definitive agency position could become known, the complaint had no legal force or practical effect that was comparable to the regulation at issue in Abbott Laboratories, 387 U.S. at 151-53, 87 S.Ct. 1507 (<HOLDING>). See Standard Oil, 449 U.S. at 241-43, 101 Holdings: 0: holding if immunity is raised as a basis in the motion for summary adjudication a substantial right is affected and the denial is immediately appealable 1: holding that the denial of a motion to remand is interlocutory and not immediately appealable 2: holding that summons issued nearly seven months after the show cause order was entered was not issued immediately as required by statute 3: holding that regulations issued by commissioner of food and drugs were ripe for review because they were definitive immediately effective and directly and immediately affected petitioners daily business activities 4: holding that plaintiffs had standing because they were directly affected by the laws and practices against which their complaints were directed


Input: exist and the factual basis for each such claim.”). 20 See OCGA § 9-11-9.1 (e) (“If a plaintiff files an affidavit which is allegedly defective, and the defendant to whom it pertains alleges, with specificity, by motion to dismiss filed on or before the close of discovery, that said affidavit is defective, the plaintiff’s complaint shall be subject to dismissal for failure to state a claim____”); OCGA § 9-11-56 (c) (“The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law; but nothing in this Code section shall be const 6, 8 (658 SE2d 792) (2008) (<HOLDING>). 24 Kaminer, 282 Ga. at 834 (1) (citation Holdings: 0: holding that knowing but failing to communicate a correct diagnosis may constitute a separate act of negligence 1: holding that there was no evidence in the record to support appellants contention that the doctor committed a separate act of negligence by continuing to prescribe coumadin and that the doctors alleged failure to correct any previous negligence does not constitute additional acts of negligence 2: holding that the basis of liability is negligence and not injury 3: holding that ordinary negligence and gross negligence are not separate causes of action 4: holding that negligence does not violate the due process clause but reserving the question whether gross negligence does


Input: a repository of other contraband, courts are “entitled to draw reasonable inferences about where evidence is likely to be kept, based on the nature of the evidence and the type of offense.” United States v. Whitner, 219 F.3d 289, 296 (3rd Cir.2000) (quoting United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir.1986)). Drag dealers typically need a place to store and utilize not only the drags that they distribute but such items as scales, packaging materials, ledgers and cash. The magistrate considering the warrant application could reasonably infer that such evidence probably would be found at Stevens’ home. Numerous courts have upheld a finding of probable cause for a search warrant in similar circumstances. See, e.g., United States v. Hodge, 246 F.3d 301, 305-07 (3rd Cir.2001) (<HOLDING>); United States v. Feliz, 182 F.3d 82, 86-88 Holdings: 0: recognizing the absence of drug paraphernalia suggestive of personal use as evidence of an intent to distribute 1: holding magistrate could infer that evidence of drugs or paraphernalia would be located in experienced drug dealers home 2: holding that guns were properly admitted to  prove intent to distribute drugs because it has uniformly been recognized that substantial dealers in narcotics possess firearms and that such weapons are as much tools of the trade as more commonly recognized drug paraphernalia 3: holding that a reputation for sobriety from drugs and alcohol is pertinent to the charge of possession of drug paraphernalia because intent to use is an element of the offense 4: holding evidence of plastic jeweler bags together with drug ledger amount of drugs and lack of paraphernalia to consume drugs was sufficient to support jurys finding of intent to distribute and absence of money and digital scales was not outcome determinative in light of other evidence


Input: any fixed improvement or any project, whether or not fixed, involving construction, alteration, removal or repair for the public use of the United States or its allies, including but not limited to projects or operations under service contracts and projects in connection with the national defense or with war activities, dredging, harbor improvements, dams, roadways, and housing, as well as preparatory and ancillary work in connection therewith at the site or on the project 42 U.S.C. § 1651(b)(1). Courts have found that public work generally consists of “work constituting government-related construction projects, work connected with the national defense, or employment under a service contract supporting either activity.” Univ. of Rochester v. Hartman, 618 F.2d 170, 176 (2d Cir.1980) (<HOLDING>); Makris v. Spensieri Painting, 669 F.Supp.2d Holdings: 0: holding that a professor who suffered a fatal fall collecting soil samples in antarctica was not engaged in public work within the meaning of the dba 1: holding that the complaint stated a claim under the flsa where it alleged that parties were an employer and employees within meaning of act and that the defendantemployers operation constitutes an enterprise engaged in commerce  within the meaning of  the act 2: holding that a plaintiff analogous to ms salyer who did not work in private homes did not fall within the companionship services exemption 3: holding that a state is not a person within the meaning of  1983 4: holding that if a provision of the dba specifically modifies a provision of the lhwca the dba provision controls in a dba case


Input: had filed both lawsuits. See id. at 359-60 (citing to two family law cases, Evans v. Evans, 186 S.W.2d 277 (Tex.Civ.App.-San Antonio 1945, no writ) and Mills v. Howard, 228 S.W.2d 906 (Tex.Civ.App.-Amarillo 1950, no writ)). 3 . Because the United States Supreme Court has held that contravention of a strong public policy is an exception to enforcement of a forum selection clause, M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972), appellees’ showing that Florida would apply Florida rather than Texas law to the non-compete agreement also supports the enjoining of the proceeding in the parties’ contractually selected forum of Florida. See also Holeman v. Nat’l Business Inst., Inc., 94 S.W.3d 91, 99 (Tex.App.-Houston [14th Dist.] 2002, pet. denied) (<HOLDING>). 4 . Regarding Autonation’s claim that the Holdings: 0: holding that jurisdiction existed over two georgia residents who leased a machine from a texas resident because they 1 solicited and negotiated the lease agreement by two telephone calls to texas 2 sent correspondence and payments by mail to texas 3 paid for the transfer of the machine from texas and 4 caused their insurance agent to contact the texas resident in texas to arrange coverage for the machine 1: holding that where the entity was incorporated in texas and the shareholders reside in texas and the bankruptcy case is pending in texas texas law  not arizona law  should be applied 2: holding that jurisdiction existed over nonresident printing customer despite the fact that texas printer solicited the business in alabama and nonresident sent no personnel to texas because nonresident placed additional orders from which it expected to profit sent payments to texas sent and received printing materials to and from texas paid for shipping of printed goods from texas and sent payments to texas the transactions were governed by texas law and substantial part of performance occurred in texas 3: holding misrepresentation made by outofstate defendant to texas plaintiff who relied on it in texas satisfied requirement for jurisdiction under longarm statute based on commission of a tort in part in texas 4: holding that appellant failed to establish abuse of discretion in dismissal of texas suit in which appellant failed to show georgia would refuse to apply texas law


Input: do not object to the final judgment to engage in yet another round of costly and time consuming litigation. As the Second Circuit has observed, “in making the choice between the possibility of harm to the late-arriving prospective intervenors as against the possible harm to parties who have participated diligently during the pertinent portions of this litigation, it does not strike us as unjust that intervention on the part of the late-arrivers must yield under all of the circumstances herein.” Yonkers Bd. of Ed., 801 F.2d at 596. II. Motion for an Extension of Time to Appeal Intervenors’ failure to establish their standing is fatal to their motion for an extension of time to file an appeal. Official Comm. of Unsecured Creditors of World-Com, Inc. v. SEC, 467 F.3d 73, 77 (2d Cir. 2006) (<HOLDING>). Even assuming intervenors had met their Holdings: 0: holding that article iii standing is not a prerequisite to intervention 1: holding that standing is an essential and unchanging part of the easeorcontroversy requirement of article iii 2: holding that standing is component of subjectmatter jurisdiction 3: holding that article iii standing is necessary for intervention 4: recognizing that standing is an essential component of our appellate jurisdiction and permitting party to appeal only after determining that they had met the requirements of article iii standing


Input: a specific individual to qualify as a “means of identification” under 18 U.S.C. § 1028A. We review properly preserved questions of statutory interpretation de novo. United States v. Krawczak, 331 F.3d 1302, 1305 (11th Cir.2003). However, where a defendant fails to present the issue to the district court, like Wilson in this case, we review only for plain error. United States v. Smith, 459 F.3d 1276, 1282-83 (11th Cir.2006). As discussed below, we find no error, much less plain error. This Court has not previously resolved this specific issue in a published opinion, and there appears to be some conflict in the circuits on whether the use of someone’s name qualifies as a “means of identification” under 18 U.S.C. § 1028A. Compare United States v. Mitchell, 518 F.3d 230 (4th Cir.2008) (<HOLDING>), with United States v. Blixt, 548 F.3d 882 Holdings: 0: recognizing the principle that gives precedence to the terms of the more specific statute where a general statute and a specific statute speak to the same concern 1: holding a bare name alone was not sufficient to identify the specific individual as required under the statute 2: holding that release must specifically name or otherwise specifically identify the persons to be discharged 3: holding that at a bare minimum the district court was required to provide a pro se prisoner with fair notice of the summary judgment rule requirements 4: holding that specific statutes create exceptions to general statutes therefore if a provision of a specific statute is inconsistent with one in a general statute on the same subject the specific statute controls


Input: an application. United States v. Errera, 616 F.Supp. 1145, 1149 (D.Md.1985) (citations omitted); see Illinois v. Gates, 462 U.S. 213, 237-38, 103 S.Ct. 2817, 2331-32, 76 L.Ed.2d 527 (1983). There is no magic formula for evidence of intent to flee. The issuing judge must simply determine whether the affidavit supporting the wiretap application under § 2516(l)(i), when read as a whole, establishes probable cause to believe that the missing individual is purposely evading the authorities out of fear that he will otherwise be prosecuted for an enumerated crime. Moreover, the Court notes that determinations by an issuing judge are accorded substantial deference upon a subsequent suppression motion. United States v. Brone, 792 F.2d 1504, 1506 (9th Cir. 1986); see Errera, 616 F.Supp. at 1149 (<HOLDING>). The function of this Court, which is Holdings: 0: holding that although jury found officer not to have had probable cause for arrest officer was entitled to immunity because law was not clearly established as to circumstances in which officer found himself 1: holding that the validity of an administrative order is properly before the court when it has been directly placed in issue 2: holding that failure to follow state law requiring issuing judge to record testimony did not affect validity of warrant 3: holding a warrantless arrest by a law officer is reasonable under the fourth amendment where there is probable cause to believe that a criminal offense has been or is being committed 4: holding that where electronic surveillance has been authorized by a judicial officer the fact that the issuing judge found probable cause is itself a substantial factor tending to uphold the validity of the order issued


Input: inside of the containers. Because Coro’s failure to alert was inconclusive on the essential question of whether the package contained illegal narcotics and because the facts set forth in the search warrant affidavit otherwise were sufficient to establish probable cause, there was a substantial basis for the issuing court’s determination of probable cause. {34} Lastly, Defendant claims that, pursuant to Nyce, our inquiry must be “particularly exacting” because Defendant’s conduct was “equally consistent with legal activity.” See Nyce, 2006-NMSC-026, ¶ 14, 139 N.M. 647, 137 P.3d 587 (purchasing tincture of iodine and hydrogen peroxide at multiple stores in a hurried manner is equally consistent with lawful activity); State v. Anderson, 107 N.M. 165, 169, 754 P.2d 542, 546 (Ct.App. 1988) (<HOLDING>). We disagree. As we acknowledged in Nyce, Holdings: 0: holding that merely traveling with drug dealers did not create probable cause at time of defendants arrest 1: holding that facts consistent with a drug courier profile are insufficient in themselves to establish probable cause because they are generally descriptive of hundreds of innocent persons traveling through new mexico on the interstate every day 2: holding that factors which by themselves were quite consistent with innocent travel collectively amounted to reasonable suspicion 3: holding that unknowing drug courier testimony was admissible in a complex drug importation case 4: holding that federal agents had probable cause to search defendants truck for drugs and contraband even though defendants conduct was consistent with innocent behavior


Input: see also id. at 580 (Kavanaugh, J.,- concurring) (“[Bjeing called the n-word by a supervisor — as Ayissi-Etoh alleges happened to him — suffices by itself to; establish a racially hostile work environment.”). But the severity of a supervisor’s use of “probably the most offensive word in English,” id. (Kavanaugh, J., concurring) (internal quotation marks omitted), is far greater than a somewhat bizarre. and ambiguous, albeit offensive, question allegedly posed by a supervisor in response to a complaint about an unambiguously non-racial workplace display. Rather, Ms. Stiger’s-'offen-sive question is more akin to the sort of derogatory remarks that courts in this Circuit have deemed non-actionable in the past. See, e.g., Freedman v. MCI Telecomms. Corp., 255 F.3d 840, 848 (D.C. Cir. 2001) (<HOLDING>); Neuren v. Adduci, Mastriani, Meeks & Schill, Holdings: 0: holding that a supervisor was not similarly situated to another supervisor with the same title where the former could not perform the latters duties 1: holding that there was nohostile work environment where a supervisor after negotiating with another supervisor for a printer told a jewish employee soon im going to be the only one at this terminal wearing a yarmulka 2: holding that a supervisor who approached an employees desk with a workissued gun and said im going to screw you up contributed to a hostile work environment 3: holding plaintiffs supervisor subject to suit 4: holding that comments not directed at plaintiff including a supervisor who called another worker the nword were relevant to the evaluation of hostile work environment claim


Input: Nevertheless, the next day Hilliard informed the commission about Wilkinson's refusal to clean the safe. 6 . See note 9, infra. 7 . See note 1, supra. 8 . It should be noted that defendants’ legal position is that "[a]s a limited term appointee [Wilkinson] has no due process or other right to re-appointment * * *" and that "[n]o cause is required to disapprove an appointment." Thus, defendants have argued on appeal that Wilkinson’s appropriate remedy was an appeal to the Personnel Appeal Board (PAB). But if the 1994 amendments truly had converted Wilkinson to a limited-term, non-classified employee, as defendants contend, then the PAB would have lacked jurisdiction to hear his appeal. See Rhode Island Board of Governors for Higher Education v. Newman, 688 A.2d 1300, 1303 (R.I.1997) (<HOLDING>). 9 . The 1978 version of G.L.1956 § 12-1.2-6 Holdings: 0: holding that the pab has no jurisdiction over nonclassified employees who are subject to the exclusive control of the commissioner of higher education     1: holding the circuit court has exclusive jurisdiction over condemnation proceedings 2: holding that the state law of preclusion must be followed even when federal jurisdiction over the subject matter of a claim is exclusive 3: holding that the information must establish that the court has jurisdiction over both the subject matter and the parties 4: recognizing that only void judgments are subject to collateral attack and that a judgment is void only when court had no jurisdiction of the parties or property no jurisdiction of the subject matter no jurisdiction to enter the particular judgment or no capacity to act


Input: Refining and Marketing Co., supra, this court held that defendant Getty’s failure to promote Cuffy and its alleged breach of an EEOC Settlement Agreement in 1981 were insufficiently related to Getty’s suspension of Cuffy in 1984 to constitute a continuing violation: Moreover, the discriminatory nature of each act is not of itself sufficient to demonstrate the necessary relationship. There is simply no intrinsic connection between these events, other than the involvement of the defendant, to show that they are part of a pattern of discrimination. These acts are best understood as “isolated instances of discrimination,” and insufficient to support a continuing violation theory. Cuffy, 648 F.Supp. at 810; see also Bronze Shields, Inc. v. N.J. Dept. of Civil Serv., 667 F.2d at 1080-1084 (<HOLDING>). In this case, Carr alleges two discrete Holdings: 0: holding that the plaintiffs causes of action were preempted because their claims were premised on the existence of an erisa plan 1: holding that if undisclosed evidence might have affected the disposition of the summary judgment motion the plaintiffs chose not to disclose the basis of their claim and they did so at their own risk 2: holding that plaintiffs could not relitigate their claim that they were entitled to vsf benefits and that while plaintiffs could have raised additional claims in one or more of the foregoing actions they opted not to do so and they are barred by res judicata from doing so now 3: holding that neglect was not excusable where the defendants did not do all that they were required to do after they received the summons and complaint in that they did not contact a lawyer or make any other arrangements with respect to their defense 4: holding that continued use of an eligibility roster for hiring did not constitute an ongoing violation so as to preserve plaintiffs claims after they learned their names were excluded from the roster


Input: statute of limitations argument nor their argument that the willfulness claim lacks specificity argument is well-taken. There are, however, alternative grounds on which COUNT IV must be dismissed. B. Lack of Personal Liability under the FMLA as to Mr. Dods Personal liability for violations of Federal employment laws generally has been rejected (unless the defendant engaged in “nondelegable acts” like harassment). The term “employer” in the FMLA should be construed consistently with the way that term has been construed in Title VII cases (and in cases under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et. seq.). See Frizzell v. Southwest Motor Freight, Inc., 906 F.Supp. 441 (E.D.Tenn.1995) (<HOLDING>). Ms. Carter urges, instead, that the court Holdings: 0: holding that a civil rights plaintiff failed to state a claim upon which relief can be granted under fmla against individual individual is not employer subject to liability under the act 1: holding that fmla permits individual liability for public officials 2: holding no individual liability under the adea 3: holding individual defendants subject to suit 4: holding that fmla does not impose individual liability


Input: review" to the rule 11 violations in this case. In the absence of express language in any of our cases holding that harmless error review does not apply to preserved claims of rule l1(e) violations, the State nevertheless urges us to apply harmless error review of preserved rule 11 violations because "it does so in nearly every other context," because "other states do so," or because it is good public policy. We decline to do so. T76 First, the State argues that because we apply harmless error in other contexts, we should also apply harmless error to a preserved rule 11(e) claim of error. In support of its argument, the State cites to cases involving the question of whether a trial court's error affected the outcome of a trial. See, eg., State v. Bales, 675 P.2d 578, 576 (Utah 1983) (<HOLDING>); State v. Chapman, 655 P.2d 1119, 1125 (Utah Holdings: 0: holding that error from the erroneous admission of evidence was harmless in light of the overwhelming evidence of the defendants guilt 1: holding that the trial courts erroneous admission of an experts opinion that the defendant was guilty was harmless where the prosecution produced overwhelming evidence of guilt 2: holding that erroneous instruction that flight from the scene of the crime implied guilt was harmless because there was other evidence to sustain a conviction 3: recognizing that if there is evidence upon which one may reasonably infer an element of the crime the evidence is sufficient to sustain that element and where reasonable minds could differ the evidence is sufficient to sustain a conviction 4: holding that mcbrides presence at and flight from the scene was insufficient to sustain his conviction where the state failed to present any evidence that established mcbrides intent that the victim be shot or that he committed an act in furtherance of the shooting


Input: bills that [she had with her that day] that would indicate whether or not [the] property was occupied back in 2006.” Id. at 16. She also admitted that she did not produce her 2007 utility bills, although the defendant had requested such documents prior to the examination. Id. at 17; see also Def.’s Mot., Ex. 6 (Aug. 14, 2007 Letter Requesting Documents). In light of the evidence cited by the defendants (of which these are only a few examples), a reasonable juror could conclude that the plaintiff breached the insurance policy by not carrying out her duties as the insured party, thereby rendering the policy void. See Claflin, 110 U.S. at 96-97, 3 S.Ct. 507 (ruling that providing false statements during the purchase of a property was a breach of the policy); Taubman, 160 F.2d at 162 (<HOLDING>); Stover, 658 F.Supp. at 160 (concluding that Holdings: 0: holding that an insured partys refusal to produce requested documents constituted a breach of the insurance contract 1: holding insurer did not have to cover insured for a breach of contract because it was not an accident 2: holding that party may not recover damages for breach of contract where its own bad faith caused the other partys breach 3: holding that an insurance contract between the parties and a breach thereof by the defendant is an element of a bad faith refusal claim 4: recognizing that the elements of a claim for breach of contract are 1 existence of a valid contract and 2 breach of the terms of that contract


Input: a bag of marijuana and an audiotape recording of the drug transaction, on which the defendant’s voice was identified. 85 S.W.3d at 462. In addition, a videotape recording was made of the informant’s actions as he entered the defendant’s car. Id. This evidence was held to sufficiently connect the defendant with the crime. Id. Likewise, in Jefferson, an officer testified that he searched the informant, placed an audio recording device on her and turned it on, observed the informant enter a house to make a drug transaction, turned the device off when she returned and introduced the recording into evidence and identified the defendant’s voice on the recording. This evidence was held sufficient to corroborate the informant’s testimony. 99 S.W.3d at 792; see also Brown, 159 S.W.3d at 708-11 (<HOLDING>); Dennis v. State, 151 S.W.3d 745, 749 Holdings: 0: holding that ownership of vehicle and presence at scene of crash sufficiently corroborated appellants statement 1: holding testimony of officer and narcotics investigator who both witnessed drug transaction coupled with audio recording of transaction constituted sufficient corroboration 2: holding that a controlled buy at a particular home provided probable cause for the search of that residence 3: holding informants testimony corroborated by evidence consisting of defendants presence at scene coupled with cash found in his pocket carrying serial numbers matching those provided to informant for controlled buy and videotape of transaction included conversation of defendant regarding prior drug sale 4: holding that affidavit officer submitted to state court judge coupled with officers sworn testimony before that judge regarding informants controlled drug purchases at defendants residence sufficed to establish probable cause


Input: back condition that prevents the individual from performing any heavy labor job would be substantially limited in the major life activity of working because the individual’s impairment eliminates his or her ability to perform a class of jobs.” Id. Despite the broad nature of this example, the Court finds Whitfield also has not met her burden of proving she is substantially limited in the major life activity of work. While the record contains evidence of Whitfield’s medical limitations, there exists nothing connecting those limitations to ability to perform other jobs in the community. The general statement in the Interpretive Guidelines about back injuries, in isolation, cannot boost Whitfield over the summary judgment hurdle. Cf. McKay v. Toyota Motor Mfg., 110 F.3d 369 (6th Cir.1997) (<HOLDING>); Bolton v. Scrivner, Inc., 36 F.3d 939 (10th Holdings: 0: holding that a trained computer technicians carpal tunnel syndrome did not render him disabled under the ada because he could still function as a computer repair technician 1: holding as a matter of law that a twentyfive pound lifting limitation does not constitute a significant restriction on ones ability to lift work or perform any other major life activity 2: holding as a matter of law that a permanent twentyfive pound lifting restriction does not constitute a significant restriction on ones ability to lift work or perform any other major life activity 3: holding plaintiff with carpal tunnel syndrome who could not perform heavy lifting failed to meet burden of establishing substantial limitation in major life activity of work 4: holding as a matter of law that a twentyfive pound lifting limitation particularly when compared to an average persons abilities  does not constitute a significant restriction on ones ability to lift work or perform any other major life activity


Input: nascent cause of action. True enough. But federal FOIA jurisprudence leaves no doubt that a lawyer’s request for information must plainly spell out the representative capacity and the identity of the client before that client can bring a FOIA action in her own name. When an attorney files a FOIA request on behalf of a client, the attorney is the one to whom courts have granted standing to sue. See Constangy, Brooks & Smith, by Bridgesmith ex rel. Teledyne Indus., Inc. v. NLRB, 851 F.2d 839, 840 n. 1 (6th Cir.1988) (noting that the plaintiff, a law firm, had standing to request the FOIA documents on behalf of its client); see also Burka v. U.S. Dep’t of Health & Human Servs., 142 F.3d 1286, 1291 (D.C.Cir.1998); Unigard Ins. Co. v. Dep’t of Treasury, 997 F.Supp. 1339, 1341 (S.D.Cal.1997) (<HOLDING>) In Three Forks Ranch Corp. v. Bureau of Land Holdings: 0: holding that when attorney representing unigard submitted a foia request in his own name unigard lacked standing because its name did not appear on the request itself 1: holding that the united states court of appeals for veterans claims abused its discretion denying a request for supplemental attorney fees when plaintiff successfully defended part of his eaja fee request 2: holding that an officers request for a citizens identification by itself did not amount to a seizure 3: holding that the ij did not abuse his discretion in denying request for further continuance where the ij granted previous request 4: holding that the filed rate doctrine barred request for damages but did not preclude request for injunction and civil penalties


Input: primarily on an assessment of credibility. Purkett, 514 U.S. at -, 115 S.Ct. at 1772, 131 L.Ed.2d at 840. The explanations given were race-neutral. The decisive question is whether counsel’s race-neutral explanation will be believed by the trial court. Hernandez, 500 U.S. at 364, 111 S.Ct. at 1869, 114 L.Ed.2d at 409; State v. Wilhite, 858 S.W.2d 293, 296 (Mo.App.1993). The trial court accepted the explanations. We have examined the explanations and the circumstances which appear in the record. It is clear from the findings that the trial court viewed the plausibility of the state’s explanations in light of the totality of the facts and circumstances of the ease, as Parker requires. Parker, 836 S.W.2d at 934, 939. See also Purkett, 514 U.S. at -, 115 S.Ct. at 1771, 131 L.Ed.2d at 839 (<HOLDING>). The trial court took a permissible view of Holdings: 0: holding that the absence of legitimate income supports the finding of probable cause in a forfeiture action 1: holding that the record supports the trial judges implicit finding of nonpretextuality 2: holding that a courts determination to discount the testimony of the defendants expert witnesses was a proper exercise of his discretion in weighing the demeanor credibility and persuasiveness of the evidence when ruling on a motion for a new trial 3: holding that the persuasiveness of the justification becomes relevant in the third batson step where a trial judge may find lack of persuasiveness supports a finding of pretext 4: recognizing that the dc circuit has stated that by attempting to evaluate the credibility of opposing experts and the persuasiveness of  competing studies the district court conflates the questions of the admissibility of expert testimony and the weight appropriately to be accorded such testimony by a factfinder


Input: the pretrial deadlines, treated the deadlines as statutes of limitations, “chiseled in concrete,” and therefore sanctionable if violated. Scheduling orders are clearly valuable tools for promoting the efficient management of a trial court’s docket. However, as the Maryland Court of Special Appeals recognized in Maddox: [T]he imposition of a sanction that precludes a material witness from testifying, and, consequently, effectively dismisses a potentially meritorious claim without a trial, should be reserved for egregious violations of the court’s scheduling order, and should be supported by evidence of willful or contemptuous or otherwise opprobrious behavior on the part of the party or counsel. 921 A.2d at 922. See also Revco, D.S., Inc. v. Cooper, 873 S.W.2d 391, 397 (Tex.App.1994) (<HOLDING>). Based on our review of the record and the Holdings: 0: holding that the defendants discovery requests were untimely because they were not served in time for the responses to be due before the discovery deadline 1: holding that a discovery exception to a statute of limitation applies only to the discovery of facts not discovery of the law 2: recognizing trial courts decision on discovery issues implies a finding that requested discovery was not reasonably available 3: holding that discovery sanctions so severe they prevent a trial on the merits are warranted only where the record reflects a partys flagrant bad faith or counsels callous disregard for the discovery rales 4: holding that district court did not abuse its discretion by denying motion to extend discovery where no effort was made to explain why the requested discovery could not have taken place within the original discovery period