Input: 491, 495 (Ind.1990), reh’g denied. Newspaper articles are, by their very nature, hearsay and for that reason are seldom proper evidence to prove any fact except the bare fact of their publication. Feliciano v. State, 467 N.E.2d 748, 749 (Ind. 1984). Therefore, the trial court erred when it admitted the newspaper article into evidence. However, we hold that the error was harmless. Here, Moore’s own testimony indicated that he had been employed within the last two years. Further, during his testimony, Moore invoked his Fifth Amendment right not to answer additional questions. From Moore’s refusal to testify, the court could properly have drawn an adverse inference regarding his financial ability to comply with the support order. See Gash v. Kohm, 476 N.E.2d 910, 913 (Ind.Ct.App.1985) (<HOLDING>), reh’g denied, trans. denied. Due to the Holdings: 0: holding that the privilege against selfincrimination does not prohibit the trier of fact in a civil case from drawing adverse inferences from a witness refusal to testify 1: holding that the fifth amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them 2: holding that although witness may invoke right against selfincrimination in civil proceeding district court may make negative inferences from invocation of right 3: recognizing commonlaw privilege against selfincrimination 4: holding that the drug tax violated the privilege against selfincrimination


Input: A. The City is not indirectly liable for Terry’s and Silverman’s conduct. This case requires us to accommodate the Supreme Court’s mandate in Meritor Savings Bank v. Vinson that federal courts use traditional agency principles when deciding hostile environment sexual harassment cases, but simultaneously “place some limits on the acts of employees for which employers under Title VII are to be held responsible.” 477 U.S. 57, 72, 106 S.Ct. 2399, 2408, 91 L.Ed.2d 49 (1986). Because the Eleventh and all other circuits employ agency principles in the realm of hostile environment sexual harassment, this opinion utilizes the language of traditional agency case law. Under this approach, direct liability and indirect liability are distinct concepts and form the only possible ba (10th Cir.1987)(<HOLDING>); Andrews v. City of Philadelphia, 895 F.2d Holdings: 0: holding in accordance with the restatement that a master may be subject to liability for the torts of his servants acting outside the scope of their employment if the servants conduct violated a nondelegable duty of the master or the servant purported to act on behalf of the principal there was reliance upon the apparent authority or he was aided in accomplishing the tort by the existence of the agency relationship 1: holding that existence of deliberate and informed consent turns on whether it is understood between the employee and his employers that he is to remain in the allegiance of the first employer  or is to be employed in the business and subject to the direction of the temporary employer 2: holding that employer liability could arise under the principles of restatement  2192 if 1 the employer was negligent or reckless or 2 the employee relied on the supervisors apparent authority or 3 the supervisor was aided in his harassment by the existence of the agency relationship 3: recognizing the continuing validity of negligence as a separate basis for employer liability in action in which employee alleged supervisor harassment 4: holding that the plaintiff must establish that a supervisors harassment was within the scope of his employment and that the employer failed to respond adequately and effectively when it learned of the harassment


Input: See Nev. Stat. Rev. §§ 34.800(2) (laches) & 34.810(2) (abuse of writ). We have held that sections 34.800 and 34.810 constitute “independent and adequate state grounds,” which bar federal habeas review, Moran v. McDaniel, 80 F.3d 1261, 1269 (9th Cir.1996) (§ 34.800); Vang v. Nevada, 329 F.3d 1069, 1075 (9th Cir.2003) (§ 34.810), and Davis has not demonstrated that we should reach a different result here. Davis cannot invoke ineffective assistance of counsel as a defense to procedural default, because he failed to raise this defense in state court. Murray v. Carrier, 477 U.S. 478, 488-89 (1986). Thus, Davis was not entitled to challenge the procedural default in an evidentiar stitutional jurisprudence. See Harmelin v. Michigan, 501 U.S. 957, 994-96, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (<HOLDING>). The district court did not violate Davis’s Holdings: 0: recognizing that the right to be present can be waived in noncapital felony federal cases 1: recognizing constitutional right to be present when sentence is imposed 2: holding that district court did not abuse its discretion in denying motion for severance where the allegedly prejudicial evidence would have been admissible in separate trials 3: holding that defendants have a right to be present at voir dire 4: holding that defendants in noncapital trials have no constitutional right to present mitigating evidence in a separate penalty proceeding


Input: final when the mandate issued from the supreme court affirming the judgment on May 24, 1999, and that the two-year time limitation of rule 3.850(b) began to run at that time, thus rendering his January 4, 2002, motion untimely. Snipes argues that the time limitation of the rule did not commence until this court’s affirmance of his sentence on remand became final on January 16, 2001. The unequivocal language of rule 3.850(b) supports Snipes’ contention: A motion to vacate a sentence that exceeds the limits provided by law may be filed at any time. No other motion shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence become final in a noncapital case.... (Emphasis added.) See also Oliver v. State, 734 So.2d 1083 (Fla. 1st DCA 1999) (<HOLDING>). We also note the well-established principle Holdings: 0: recognizing an exception to the twoyear time bar imposed on rule 3850 claims when the claim asserted is based on facts that were unknown to the movant and could not have been discovered through the exercise of due diligence 1: holding that defendants 3850 motion for postconviction relief was procedurally barred as successive where the defendants current rule 3850 motion is one that could have or should have been raised in his first rule 3850 motion 2: holding that the twoyear time limitation of rule 3850 does not commence until the sentence becomes final 3: holding that a court may not change the term of sentence by subsequent amendment after the sentence becomes final 4: holding that rule 3850 motion was not time barred where the order did not place any time limitation on when the defendant would refile his rule 3850 motion


Input: there would be no openings — did not render her search unreasonable. Second, the fact that, once employed by Rite-Aid, Jewell failed to leverage up into a full-time job was not unreasonable, either. It is not surprising that her interim employment — the only job she found— made it difficult to find a different full-time job. Though her burden to find meaningful employment did not suddenly evaporate when she took on part-time work, all that is required is a reasonable effort to search. Jewell satisfied that standard here. See Lundy Packing Co. v. NLRB, 856 F.2d 627, 629-30 (4th Cir.1988). Third, although Jewell “willfully” left her job at Rite-Aid, an unlawfully laid-off employee is not required to accept or remain in less desirable working conditions. See Westin, 758 F.2d at 1129-30 (<HOLDING>). For Jewell to have stayed with Rite-Aid after Holdings: 0: holding that under the first amendment speech can be pursuant to a public employees official job duties even though it is not required by or included in the employees job description or in response to a request by the employer 1: holding that the fact that a waitress quit a comparable job did not toll her backpay liability where the sinks at the new job backed up and flooded when it rained 2: holding that removal of job responsibility did not constitute an adverse employment action because there was no change in the plaintiffs job position grade pay or benefits 3: holding that a change in job duties was not an adverse employment action where the new job duties did not constitute qualitatively inferior work requiring any less skill or knowledge 4: holding that where the employer discontinues a specially created job the employer must offer another suitable job to the claimant or continue total disability payments


Input: comments and one arguably racial remark over the course of the plaintiffs eight years of employment did not constitute pervasive conduct.” Smith v. Northwest Fin. Acceptance, Inc., 129 F.3d 1408, 1414 (10th Cir.1997). By our count, Ms. Hernandez presented evidence of at least a dozen racially offensive comments and jokes over the fourteen months Mr. Lillis supervised her in food services. But “the word ‘pervasive’ is not a counting measure” and the “trier of fact utilizes a broader contextual analysis.” Herrera, 474 F.3d at 680 n. 3. Considering the frequency, content, and context of the derogatory statements, we conclude that Ms. Hernandez established a genuinely disputed issue of fact as to the pervasiveness of the harassment in her work environment. See Smith, 129 F.3d at 1415 (<HOLDING>). The district court, citing Ford v. West, 222 Holdings: 0: holding that plaintiff failed to offer sufficient evidence to support a finding that a similar position existed after his termination 1: holding evidence sufficient to support trial courts finding in aggravation that the offense was planned 2: holding that the evidence presented at a factfinding hearing was sufficient to support the chins finding 3: holding evidence of six sexually derogatory statements over twentythree months some repeated frequently sufficient to support a finding of pervasive harassment 4: holding evidence insufficient to support finding of implied contract


Input: for permanent residence. § 1255(i)(2). An applicant for adjustment of status under § 1255(f) must establish that he is not inadmissible under any provision of the Immigration and Nationality Act (INA) or that he is eligible for a waiver of any applicable ground of inadmissibility. Sattani, 749 F.3d at 371. The INA provides that an alien is ineligible to receive an immigrant visa and is inadmissible if he was unlawfully in this country for more than one year and then “enters or attempts to reenter the United States without being admitted.” INA § 212(a)(9)(C)(i)(I) (codified at 8 U.S.C. § 1182(a)(9)(C)(i)(I)). Such aliens are not entitled to an adjustment of status. Mortera-Cruz v. Gonzales, 409 F.3d 246, 256 (5th Cir.2005); see also In re Briones, 24 I. & N. Dec. 355, 371 (BIA 2007) (<HOLDING>). Verdugo’s assertion that the IJ incorrectly Holdings: 0: holding that a legal determination regarding an aliens eligibility for adjustment of status was not barred by the statute 1: holding that a district court lacks subject matter jurisdiction under the apa to review the denial of an aliens application for adjustment of status where the alien is in removal proceedings 2: recognizing that an alien is ineligible for relief under  212c if he was not actually admissible at the time he received an adjustment of status 3: holding ineligible for adjustment of status alien who was inadmissible due to reentry after prior removal 4: holding that aliens inadmissible under  1182a 9c i i are ineligible for adjustment of status under  1255f


Input: and by rendering a take-nothing judgment in favor of Coastal. Francis contends that disregarding the verdict conflicts with the court’s footnote recited above, that “there is some evidence” that Coastal was negligent and proximately caused Francis’s injuries. Francis’s arguments propose that he may still recover against Coastal under the common law, beyond chapter 95, and thus challenge the trial court’s conclusion that chapter 95 preempts all common-law negligence claims against Coastal under the circumstances of this case and is, therefore, Francis’s exclusive remedy against Coastal. We agree with the trial court that chapter 95 controls this case, is Francis’s exclusive remedy against Coastal, and precludes common-law negligence liability in Coastal. See Fisher, 16 S.W.3d at 201 (<HOLDING>); see also Dyall v. Simpson Pasadena Paper Co., Holdings: 0: holding that chapter 95 controlled liability for injuries arising from failure to provide a safe workplace 1: recognizing a state law tort claim for negligence arising under a duty to provide a safe work environment 2: holding first that injuries sustained during contact sports were foreseeable then deciding that public policy insulated the defendant from liability for those injuries 3: holding that employer has nondelegable duty to provide safe workplace 4: holding that passenger cannot maintain action for breach of implied warranty to provide safe passage


Input: went on to state: We do not want to pretend that the line between action and inaction, between inflicting and failing to prevent the infliction of harm, is clearer than it is. If the state puts a man in a position of danger from private persons and then fails to protect him, it will not be heard to say that its role was merely passive; it is as much an active tortfeasor as if it had thrown him into a snake pit. Id. at 618-619; see also Archie v. City of Racine, 847 F.2d 1211, 1221 (7th Cir.1988) (“When the state puts a person in danger, the Due Process Clause requires the state to protect him to the extent of ameliorating the incremental risk. When a state cuts off sources of private aid, it must provide replacement protection.”); White v. Rochford, 592 F.2d 381, 382 (7th Cir.1979) (<HOLDING>). Bowers, which hinted at the analysis that the Holdings: 0: holding that police officers charge to protect the public differentiated them from the public 1: holding that wisconsin violated equal protection rights of handicapped children by denying them an education at public expense 2: holding a county police civil service board violated officers due process rights by failing to follow its own procedures in their termination proceedings 3: holding inmates in segregation unit without charges being filed against them and without informing them of reasons for such confinement violated inmates due process rights 4: holding that due process clause was violated where police officers  abandoned children and left them in a healthendangering situation  after having arrested their custodian and thereby deprived them of adult protection


Input: the plant site. Acting under CERCLA, the EPA imposed administrative liability, not only on the polluters, but on the insured auto dealerships who had sold the pollutants to the polluters. Id. at 1518. The pollution exclusion contained in the policy at issue in Industrial Indemnity was identical to the one at issue in the present case. The Honorable William Terrell Hodges, United States District Judge, in reviewing issues nearly identical to those raised in this case, held that “sudden has a temporal meaning to it as well as a sense of the unexpected.” 731 F.Supp. at 1520 (citing C.L. Hauthaway & Sons v. American Motorists Ins., 712 F.Supp. 265, 268 (D.Mass.1989) (ordinary and common usage of term “sudden” includes temporal aspect of immediacy, abruptne ., 856 F.2d 31, 34 (6th Cir.1988) (<HOLDING>). Applying the definition of “sudden and Holdings: 0: holding that a single thunderstorm was a sudden and dangerous occurrence 1: holding that negligent construction is not sudden unexpected or unanticipated and does not constitute an accident 2: holding that the indictment was sufficient to satisfy the continuity requirement since it alleged that the defendants conduct occurred over a period of eight years 3: holding that more than a year between the protected activity and the discharge is not close enough to support the causal connection requirement 4: holding that the phrase sudden and accidental is not a synonym for unexpected and unintended and that the discharge of coal dust over an eight year period was not sudden


Input: BIA’s factfinding. The very heart of Petitioners’ claim, that the BIA’s analysis regarding their fears for their daughter’s safety was not “detailed” and failed to “adequately” address the issue, is fundamentally an objection to a factual determination by the BIA and the relative evidentiary weight the agency gave to competing considerations. In fact, the BIA directly addressed Petitioners’ fears for Tashfia’s safety and found that the IJ had “properly considered the relevant factors in the aggregate,” including consideration of Petitioners’ “testimony that they believed their daughter might be kidnapped in Bangladesh, as one of the potential hardship factors.” We have repeatedly held that “[cjloaking [a factual claim] in the garb of legal error does not alter its nature.” Id. at 73 (<HOLDING>); see also Rashad v. Mukasey, 554 F.3d 1, 5 Holdings: 0: holding that it was an abuse of discretion for the bia to fail to consider the merits of a petitioners claim 1: holding that plaintiff stated eighth amendment claim where he alleged exposure to ets causing aggravation of chronic asthma 2: holding that we will not review an issue or claim that was not presented to the bia in the petitioners notice of appeal or brief to the bia even if the bia considered the issue or claim sua sponte 3: holding that the plaintiff alleged sufficient facts in his complaint to state a claim for wrongful discharge where he alleged he was discharged due to his political affiliation and activities 4: holding petitioners claim was factual in nature where he alleged the bia had failed to accord sufficient weight to the seriousness of his sons asthma


Input: response to the jury’s question. See also State v. Humphrey, 13 N.C. App. 138, 142, 184 S.E.2d 902, 904 (1971) (jury charge “must be considered as a whole, . . . with the presumption that the jury did not overlook any portion of it and if, when so construed, it presents the law fairly and correctly, there is no ground for reversal”). Defendant also contends that the court’s answer did not contain any reference to the State’s burden of proving beyond a reasonable doubt that defendant could not have believed D.N.K. had authority to consent to his entry into her home. As the Court emphasized the State’s burden of proof elsewhere in the jury instructions, the failure to re-emphasize that burden here was not error. See State v. Morgan, 359 N.C. 131, 163-64, 604 S.E.2d 886, 906 (2004) (<HOLDING>), cert. denied, — U.S. —, 163 L. Ed. 2d 79, 126 Holdings: 0: holding that the state must prove juvenile delinquency beyond a reasonable doubt 1: holding that even when a jury instruction is defective such a defect is cured when the court provides the jury with the indictment and instructs jurors that the burden of proof rests upon the state to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt 2: holding that a challenged jury instruction did not impermissibly shift the burden of proof when the trial court elsewhere instructed the jury that the state must prove its case beyond a reasonable doubt 3: holding the state failed to meet its burden of showing the erroneous jury instruction was harmless beyond a reasonable doubt where it did not address the issue on appeal 4: holding that if any evidence raising the issue of selfdefense is adduced  the jury must be instructed that the state is required to prove beyond a reasonable doubt that the selfdefense claim does not accord with the facts


Input: duties “if the person ... interferes with a peace officer while the peace officer is performing a duty or exercising authority imposed or granted by law.” Tex. Pen. Code Ann. § 38.15(a)(1). Even if Meek was not obligated to take appellant into custody, he was acting within his discretionary authority to do so when he arrested appellant for not wearing a seatbelt. It is a violation of the Transportation Code to drive while not wearing a seatbelt. Tex TRAnsp. Code Ann. § 545.413 (Vernon 1999). The Transportation Code further provides that “any peace officer may arrest without warrant a person found committing a violation of this subtitle.” Tex. TRAnsp. Code Ann. § 543.001 (Vernon 1999); see also Atwater v. City of Lago Vista, 532 U.S. 318, 121 S.Ct. 1536, 1557, 149 L.Ed.2d 549 (2001) (<HOLDING>). It is uncontested that appellant was not Holdings: 0: holding a fourth amendment terry detention is not a custodial arrest and the use of handcuffs does not automatically convert a temporary detention into a fourth amendment arrest 1: holding that probable cause existed to arrest for a seatbelt violation under state law 2: holding that fourth amendment not violated when officer makes custodial arrest for driving without a seatbelt 3: holding that an arrest made by an officer outside his jurisdiction does not violate the fourth amendment 4: holding that arrest in backyard violated fourth amendment


Input: claims is not at issue in this appeal. 3 . The latter basis for dismissal served to dismiss Zeek’s ADEA claim as well. Also, none of the plaintiffs filed any charge with the EEOC at any time against GM. Accordingly, the district court dismissed plaintiffs’ ADEA claims against GM on this basis rather than on the ground of timeliness. 4 . The district court may have erred in dismissing plaintiffs' § 301 action on the basis of the Release under Rule 12. The defendants attached a copy of the Release to their motion to dismiss, but the plaintiffs had not referred to the Release in their complaint. A motion to dismiss relying on a paper outside the pleadings is generally permissible only where the complaint refers to that paper. Weiner v. Klais & Co., Inc., 108 F.3d 86, 89 (6th Cir. 1997) (<HOLDING>); see also City of Monroe Employees Ret. Sys. Holdings: 0: recognizing dismissal as proper when based on those exhibits submitted by a defendant which can properly be considered as incorporated by reference into the complaint 1: holding that in considering a rule 12b6 motion a court may only rely on the complaint its proper attachments documents incorporated into the complaint by reference and matters of which a court may take judicial notice 2: recognizing that a court is permitted to rely on documents incorporated into the complaint by reference and matters of which a court may take judicial notice 3: holding that a court may rely on documents incorporated into the complaint by reference and matters of which a court may take judicial notice in deciding whether a complaint fails to state a claim upon which relief may be granted 4: holding that a court in deciding a rule 12b6 motion may consider a document that is incorporated by reference into the complaint


Input: because of her disability, and because of the disproportion in the parties’ earning potential. Robert argued that he was entitled to a disproportionate share of the parties’ estate because of the fraud committed by Elaine and her fault in the termination of their marriage. The record demonstrates, however, that the trial court’s disposition of the parties’ estate was not nearly as unequal as Elaine suggests. Each party was awarded the car that was in his or her possession. Elaine was able to keep all of the items that she removed from the house, including the disputed antique china cabinet, and she was able to keep half of the money that was in their joint account at the time that they separated. She was required to return to Robert the flat screen television that he won thro 93 (1888) (<HOLDING>). 2 . The trial court’s findings of fact did Holdings: 0: holding that first husband had no knowledge of his exwifes second marriage until four days before the second marriage was annulled so he was not inconvenienced and alimony was reinstated 1: holding that money invested in voluntary investment plan during marriage was marital property because it was property acquired during marriage 2: holding husband could not have marriage annulled because wife was pregnant by him at time of marriage 3: holding that the law to be applied in determining the validity of  an outofstate marriage is the law of the state in which the marriage occurred 4: recognizing that basis for deportation was aliens misrepresentation about his marriage not the validity of his marriage


Input: the back door the causes of action that would not benefit from the delayed discovery doctrine under Davis. It is unlikely that the supreme court narrowed the delayed discovery doctrine in Davis on November 7, 2002, only to have it subsumed by equitable estoppel on November 27, 2002 in S.A.P. 8 . In Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964), Justice Stewart wrote in a concurring opinion: I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [hard core pornography]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that. 9 . See, e.g., Jaszay v. H.B. Corp., 598 So.2d 112 (Fla. 4th DCA 1992) (<HOLDING>); Glantzis v. State Auto. Mut. Ins. Co., 573 Holdings: 0: holding nursing home estopped from raising statute of limitations defense when it stipulated to sixtyday extension of presuit screening period 1: holding that employer was estopped to assert a statute of limitations defense where the insurer had arranged to have the claimant examined by one of its physicians after the statute of limitations had run 2: holding that the charge was timely when filed within the statute of limitations period even though served after the period 3: holding that defendants may be estopped from raising defense of statute of limitations even though equitable estoppel is not listed in fla stat  95051 4: holding that when the department of insurance acknowledged that it had received an accident report of a claim within the statute of limitations  it was thereafter estopped after the expiration of the statute of limitations to deny receipt of the claim


Input: federal courts that have encountered the FEGLIA preemption issue. Ms. Maretta cites a number of federal decisions that she claims stand for the proposition that FEGLIA preempts state laws providing for constructive trusts and other equitable remedies. In each of these federal cases, however, the plaintiffs asserted their entitlement to the decedent’s FEGLI proceeds through a divorce decree or separation agreement that required the insured to maintain his or her FEGLI policy for their benefit. These courts, employing the Ridgway rationale, held that the divorce decrees at issue directly conflicted with the FEGLIA provision granting an insured the absolute right to designate any beneficiaiy that he or she chooses. Metropolitan Life Ins. Co. v. Zaldivar, 413 F.3d 119, 120 (1st Cir. 2005) (<HOLDING>); Metropolitan Life Ins. Co. v. Christ, 979 Holdings: 0: recognizing that a divorce decree which obligated the divorcing husband to name the children of his first marriage as the irrevocable beneficiaries of an insurance policy precluded him from naming his new wife as a beneficiary entitled to a portion of the insurance benefits 1: holding that the asserted right of the insureds child based on his agreement with his mother during their divorce to name the child as his fegli beneficiary was preempted by feglia 2: holding that feglia preempted a state divorce decree which ordered the insured to maintain his fegli policy for the benefit of his children from his first marriage 3: holding debtor could not discharge that portion of his monthly army retirement benefits awarded to his wife pursuant to a divorce decree 4: recognizing that basis for deportation was aliens misrepresentation about his marriage not the validity of his marriage


Input: for student’s agreement to successfully complete degree requirement, abide by school’s guidelines, and pay tuition, court stated student had to prove existence of contract containing terms upon which she based her suit). The First Court of Appeals held that a school’s catalog constitutes a written contract between the educational institution and the student, where entrance is had under its terms. See University of Tex. H atalog contained express language that “[t]he provisions of this catalog do not constitute a contract, express or implied, between any applicant, student, or faculty member and The University of Texas at Arlington or The University of Texas System,” negating inference of intent by school to be bound its terms, no contract existed); Eiland, 764 S.W.2d at 838 (<HOLDING>). The Laws contend they have tendered Holdings: 0: holding that plaintiffs express contract with the surety company precludes an implied contract with defendant 1: holding that where catalog contained express notice that the provisions of this catalog are subject to change without notice and do not constitute an irrevocable contract between any student  and the university of texas medical school at galveston no enforceable contract existed because express language negated any intent by school to be bound 2: holding that an attorney approval clause in a contract for the sale of real estate was a part of that contract and would have to be satisfied for the underlying contract to be enforceable 3: holding that the law will not imply a contract where there is an existing express contract covering the same subject matter 4: holding that putting implied restrictions on an employmentatwill contract would be inconsistent with the express terms of the contract which allowed for termination at any time


Input: Crowder v. Housing Auth. of City of Atlanta, 990 F.2d 586, 591 (11th Cir.1993) (citing Perry Educ. Ass’n. v. Perry Local Educators’ Ass’n., 460 U.S. 37, 46 n. 7, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983)). As such, “the government may restrict access to limited public fora by content-neutral conditions for the time, place, and manner of access, all of which must be narrowly tailored to serve a significant government interest.” Id. (citing Peory, 460 U.S. at 45-46, 103 S.Ct. 948). There is a significant governmental interest in conducting orderly, efficient meetings of public bodies. Jones, 888 F.2d at 1332. One recognized way to conduct orderly, efficient meetings under Jones is for public bodies, such as a city council, to confine their meetings to specified subject matter. Id. at 1333 (<HOLDING>); see also Kindt v. Santa Monica Rent Control Holdings: 0: holding that public meeting did not satisfy public participation requirement because public did not receive adequate notice 1: holding that bond and miller did not apply because the plaintiff was appointed to the city council by the mayor rather than elected by the public 2: holding that meetings with representatives of various affected parties were insufficient to meet public participation requirement because there was never an opportunity for the public at large to comment on the plan without explaining why such opportunity was necessary 3: holding that removing a speaker from a city council meeting rather than allowing that person to speak during the public comment section of the meeting constituted a unconstitutional restriction on speech 4: holding that the removal of a public speaker by the mayor at a city commission meeting was not a first amendment violation and thus permissible because to deny the presiding officer the authority to regulate irrelevant debate and disruptive behavior at a public meeting  would cause such meetings to drag on interminably and deny others the opportunity to voice their opinions


Input: (citing Phillips Petroleum Co. v. Shutts, 472 U.S. at 821-23, 105 S.Ct. 2965). 48 . See Castano v. American Tobacco Co., 84 F.3d 734, 741 (5th Cir.1996) ("A requirement that a court know which law will apply before making a predominance determination is especially important when there may be differences in state law.”); In re Baycol Products Litigation, 218 F.R.D. 197, 207, 211-12 (D.Minn.2003) (addressing the choice-of-law issue as it pertains to Rule 23(b)(3), and pointing out the how the differences in state law preclude the formation of a medical monitoring class under 23(b)(2)); In re Propulsid, 208 F.R.D. at 145 (addressing the choice-of-law as its own factor, and then applying it to the proposed 23(b)(2) class); In re Paxil Litigation, 212 F.R.D. 539, 544-45 (C.D.Cal. 2003) (<HOLDING>). 49 . Fed. R. Civ. P. 23(b)(3) requires the Holdings: 0: recognizing that the number of class representatives is not significant under rule 23a 1: holding that choiceoflaw issues prevented a manageable class under rule 23a 2: holding that the plaintiffs had not offered sufficient evidence that their claims met the requirements of rule 23a 3: holding that rule 23a requirements must be satisfied as if class were to litigate its claims 4: holding that a proposed class of 40 was a sufficiently large group to satisfy rule 23a


Input: not when the action for fraud was or should have been discovered. Boyle v. GMC, [468 Mich. 226] 661 N.W.2d 557, 558, 559-60 (Mich.2003). Although Khadher was not harmed until September 1, 2007, when the interest rate first changed, his cause of action accrued at closing on July 23, 2004. Consequently, the action expired on July 23, 2010. Khadher also asserts that Trott’s attorneys’ defrauded him by double charging him for attorney’s fees. The May 23, 2011 letter, however, identifies one charge for legal fees and the other for legal costs. Under the terms of the Mortgage, PNC can collect reasonable attorney’s fees and costs incurred in pursuing remedies caused by the borrower’s default. See United Growth Corp. v. Kelly Mortgage & Inv. Co., 86 Mich.App. 82, 272 N.W.2d 340, 344 (1978) (<HOLDING>). Khader does not allege that the fees were Holdings: 0: holding that ic  7910 specifically excludes attorney fees from the scope of power given to the arbitrator to award expenses and fees incurred during arbitration 1: holding in an appeal from a postanswer default judgment that third prong of craddock test required appellant to offer to reimburse appellee for legal expenses he incurred in obtaining default judgment even though most of the fees incurred had not been paid 2: holding that an award for medical expenses is proper when the expenses have been incurred but not paid 3: holding that unit owner was liable for reasonable attorney fees incurred in imposing lien for unpaid association fees 4: holding attorney fees may be allowed for expenses incurred for default


Input: judgment with respect to Cerezo’s Title VII and Law 100 hostile work environment claims is DENIED. Finally, a genuine dispute of material fact exists as to whether Cerezo had obtained proper authorization for his extended vacation period, and, therefore, whether Ferrovial had just cause to terminate his employment. Ferrovial’s motion for summary judgment with respect to Cerezo’s Law 80 claim is therefore DENIED. IT IS SO ORDERED. 1 . Defendant failed to file a reply to plaintiffs opposing statement of uncontested material facts contained in Docket No. 15-1. Because the additional facts alleged in plaintiff's opposition were supported by citations to appropriate record materials, see Goldman, Antonetti, Ferraiuoli, Axtmayer & Hertell v. Medfit Int’l, Inc., 982 F.2d 686 (1st Cir. 1993) (<HOLDING>), those facts are deemed admitted by defendant Holdings: 0: holding that unsworn statements signed under penalty of peijury can be used to oppose a motion for summary judgment 1: holding that affidavits that are conclusory and based on hearsay can not be used to oppose motion for summary judgment 2: holding that a signed but unsworn letter which is not otherwise authenticated is hearsay and should not be considered as evidence in opposition to a motion for summary judgment 3: holding that an unsworn letter is not proper summary judgment proof 4: holding that unsworn statements may not be considered on a motion for summary judgment


Input: is no longer available. We held that the claimant’s quitting his job due to lack of transportation did not justify reinstatement of his benefits because his loss of earning power was unrelated to his disability. In Beattie, the claimant sustained a disabling work-related injury. Subsequently, his benefits were suspended when the claimant returned to work as a church minister for another employer without a wage loss. However, the claimant became uncomfortable with the position and, eventually, quit because of stress and interpersonal problems. Under these circumstances, the court concluded that he was not entitled to reinstatement of total disability benefits. 12 . When an employer that seeks to modify a claimant’s benefits ref ard of Review, 59 Pa.Cmwlth. 627, 430 A.2d 722 (1981) (<HOLDING>). In other words, by instituting the transfer Holdings: 0: holding that a job offer which required a claimant to make a daily round trip commute of 232 miles was unreasonable even though the claimant would be provided with a motel room because this would require the claimant to be away from home at least four nights a week 1: holding trial court order denying states petition for an order of public use and necessity for good cause appearing did not constitute a finding of fact or a conclusion of law 2: holding that claimant must show good cause for failure to submit evidence to alj and appeals council 3: holding that claimant did not establish good cause by showing he was unable to comprehend the determination 4: holding that the necessity either to relocate or commute 80100 miles each way daily constituted good cause for the claimant to decline reassignment


Input: unauthenticated, and failed to identify the authors. Id. Those weaknesses do not exist in Zhang’s affidavits. Nevertheless, we conclude that the BIA did not abuse its discretion in declining to fully credit this evidence. Chen v. Gonzales, 434 F.3d 212, 218 (3d Cir.2005) (noting that only corroboration was a letter from a family member who did not witness incident and who was not subject to cross examination). Moreover, even if the affidavits could be credited, they are insufficient to establish changed country conditions in China. The affidavits’ largely anecdotal descriptions of religious persecution do not demonstrate that conditions had worsened in China for Christians since the time of Zhang’s merits hearing in 2001. See Shardar v. Att’y Gen., 503 F.3d 308, 316 (3d Cir.2007) (<HOLDING>). In addition, we agree that the documentary Holdings: 0: holding that an asylum applicant must make a showing of a particularized threat of persecution 1: holding that to qualify for asylum the fear of future persecution must be based on reasonably specific information showing a real threat to individual persecution not mere assertions of fear of possible persecution or speculative conclusions quoting mapouya 487 f3d at 412 2: holding that to show an objectively reasonable fear of future persecution an applicant must establish that he would be singled out for persecution or that there was a pattern or practice of persecution of similarlysituated individuals 3: holding that to establish asylum eligibility based on future persecution an applicant must show that he or she subjectively fears persecution and that this fear is objectively reasonable 4: holding that alien must show that he faces a particularized threat of persecution


Input: judge continued the polling, and when all of the other jurors responded that they found the defendant guilty, the judge returned to questioning the first juror, who eventually changed her verdict. We held that “to continue the poll in the absence of ... a request [by defense counsel] is error.” 273 A.2d at 845. Finally, in Kendall the first juror revealed during a poll that she had found the defendant not guilty on one of the seven counts at issue. The judge clarified that he was asking about the first co C.1983) (affirming a conviction because “unspoken communicative factors play[ed] a large role” in understanding what a juror meant when she said, “Guilty, I guess”); Ellis v. United States, 395 A.2d 404, 408 (D.C.1978), cert. denied, 442 U.S. 913, 99 S.Ct. 2830, 61 L.Ed.2d 280 (1979) (<HOLDING>). Those cases are distinguishable on their Holdings: 0: holding that it was not reversible error to continue polling the remaining jurors on all counts when the disputed count was later dismissed 1: holding that to compare severity of sentences the proper procedure is first to disregard the sentence originally imposed on the dismissed count and then compare the total remaining sentence imposed on the remaining counts with the petitioners present position 2: holding that states appeal of trial courts dismissal of first count in a four count indictment under cj  12302cl was not ripe until final judgment on the remaining counts pled in the guilty plea and noting that upon imposition of the sentences on the remaining counts the situation  was ripe for the state to appeal or to perfect its earlier attempt to appeal 3: holding that severance was not required when a defendant was charged with five counts of forcible rape two counts of felonious restraint three counts of kidnapping two counts of armed criminal action two counts of forcible sodomy one count of second degree assault one count of first degree robbery and one count of stealing 4: holding that issues underlying all counts were sufficiently intertwined that the separate appeal of the summary judgment counts would complicate the trial of the remaining counts


Input: on a motion for summary disposition. Shepherd Montessori Ctr Milan v Ann Arbor Charter Twp, 486 Mich 311, 317; 783 NW2d 695 (2010). In addition, the proper interpretation of a statute is a question of law that this Court reviews de novo. Eggleston v Bio-Med Applications of Detroit, Inc, 468 Mich 29, 32; 658 NW2d 139 (2003). The proper interpretation of a contract is also a question of law that this Court reviews de novo. Rory v Continental Ins Co, 473 Mich 457, 464; 703 NW 2d 23 (2005). III. ANALYSIS A. POLICIES AS CONTRACTS Insurance policies are contracts and, in the absence of an applicable statute ance policy is not mandated by statute, the rights and limitations of the coverage are entirely contractual and construed without reference to the statute. See Rory, 473 Mich at 465-466 (<HOLDING>). In addition, because insurance policies are Holdings: 0: holding that the plaintiffs asserted legal basis for coverage is irrelevant to the determination of whether the insurance policy provides coverage and instead looking to the facts underlying the claim for coverage 1: holding that policy limits are not a defense to coverage and that policy limits define the amount of coverage 2: holding directors and officers liability policy was property of the estate because the estate was worth more with indemnification coverage than without the coverage 3: holding that because uninsuredmotorist coverage is optional and not mandated by statute the rights and limitations of such coverage are purely contractual and construed without reference to the nofault act 4: holding named driver exclusion eliminating liability coverage as well as um coverage did not contravene um statute because statute required um coverage only if the claimant otherwise qualifies for liability coverage under the policy


Input: by license plate holders such as the one on which plaintiff bruised his knee. “Reasonable care is determined in light of whether or not a particular danger was foreseeable.” Syverson v. Consol. Rail Corp., 19 F.3d 824, 826 (2d Cir.1994) (citing Gallick v. Baltimore & Ohio R.R., 372 U.S. 108, 117, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963)). In Syverson, we allowed a negligence claim to go forward because the employer had received complaints about the alleged hazard and another employee had suffered injury in the past. 19 F.3d at 827. In this case, plaintiff adduced no evidence indicating that CSXT knew or should have known that license plate holders posed a risk to workers or even that one was affixed to the vehicle in question. See Higgins v. Metro-North R.R., 318 F.3d 422, 427 (2d Cir.2003) (<HOLDING>); Gallose v. Long Island R.R., 878 F.2d 80, 85 Holdings: 0: holding that where plaintiff fails to raise issue of timeliness of departments hearing at administrative level the issue is waived on appeal 1: holding that plaintiff who fails to demonstrate employers awareness of any particular threat posed by circumstance at issue cannot prove negligence 2: recognizing the general principle that a party who fails to address an issue has conceded the issue 3: holding that employer is entitled to summary judgment where plaintiff fails to provide evidence necessary to prove at trial that there is disproportionate impact of employers policy on black employees 4: holding issue not properly before the appellate court where appellant fails to demonstrate where in the record an issue was raised in the district court


Input: (1) drinking alcoholic beverages during pregnancy can lead to fetal alcohol syndrome, a condition characterized by mental retardation, prenatal and postnatal growth deficiencies, and facial anomalies; (2) a pregnant woman’s failure to obtain prenatal care or proper nutrition also can affect the status of the newborn child; (3) poor nutrition can cause a variety of birth defects: insufficient prenatal intake of vitamin A can cause eye abnormalities and impaired vision; insufficient doses of vitamin C ór riboflavin can cause premature births; (4) poor prenatal care can lead to insufficient or excessive weight gain, which also- affects the fetus; and (5) some research has suggested that consuming caffeine during pregnancy contributes to low birth weight. Id. One court outside of ou 91) (<HOLDING>); People v. Hardy, 188 Mich.App. 305, 469 Holdings: 0: holding ohios child endangerment statute does not apply to mothers who abuse drugs during pregnancy 1: holding an unborn viable fetus is not a human being under the new mexico child abuse statute and the mothers use of cocaine during pregnancy was not child abuse 2: holding child abuse statute clearly did not apply to fetuses and therefore did not apply to a mother who ingested cocaine during pregnancy 3: holding evidence that mother allowed child to remain in home in which there was violent conduct as evidenced by fathers physical abuse of mother during her pregnancy was factually sufficient to support termination 4: holding evidence that mother allowed child to remain in home in which there was violent conduct as evidenced by fathers physical abuse of mother during her pregnancy was legally sufficient to support termination


Input: appear in their pleadings in the record before us. 20 . Tex.Rev.Civ. Stat. art. 4590i, § 1.03(a)(4) (“ ‘Health care liability claim' means a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract.”) (repealed 2003) (current version at Tex. Civ. Prac. & Rem.Code § 74.001(a)(13)); Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 849-54 (Tex.2005); Earle v. Ratliff, 998 S.W.2d 882, 885 n. 10 (Tex.1999). 21 . Diversicare, 185 S.W.3d at 849 (<HOLDING>). 22 . Garland Cmty. Hosp. v. Rose, 156 S.W.3d Holdings: 0: holding that claim that hospital provided inadequate supervision leading to patients sexual assault by another patient constituted health care liability claim 1: holding that claim against nursing home regarding patients death from spider bite fell within the statutory definition of a health care liability claim 2: holding claim that negligent supervision caused assault was health care liability claim because it was inseparable from the health care and nursing services provided 3: holding that negligent supervision is inseparable from the use of the motor vehicle 4: holding that a negligent misrepresentation claim brought by an independent third party health care provider was not preempted by erisa


Input: 202 (1986). 87 . Little, 37 F.3d at 1075. 88 . Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.1987); Fed. R.Civ.P. 56(c)(2). 89 . Gowland v. Aetna, 143 F.3d 951, 953 (5th Cir.1998) (citing 44 C.F.R. §§ 61.4(b), 61.13(d)). 90 . Id. at 954; Wright v. Allstate Insurance Co., 415 F.3d 384, 387 (5th Cir.2005). 91 . Richardson v. Am. Bankers Ins. Co. of Fla., 279 Fed.Appx. 295, 298 (5th Cir.2008) (citing 44 C.F.R. pt. 61, app. A(l) art. VII(R)). 92 . Copeland v. Federal Emergency Management Agency, 2004 WL 325577 (E.D.La. Feb. 18, 2004) citing Gowland, 143 F.3d at 954. 93 .Kidd v. State Farm Fire & Cas. Co., 392 Fed.Appx. 241, 244 (5th Cir.2010) (citing Marseilles Homeowners Condo. Ass’n, Inc. v. Fid. Nat’l Ins. Co., 542 F.3d 1053, 1055-56 (5th Cir.2008) (per curiam) (<HOLDING>)); 44 C.F.R. § 61, app. (A)(1), arts. VII(J), Holdings: 0: holding that a plaintiff could recover actual damages under the tcpa for loss of credit if the plaintiff submitted sufficient proof of the amount damages requested 1: holding that an injured former employees lawsuit was not barred by res judicata where he never authorized the union to represent his interest in a previous lawsuit over the same benefits 2: holding that despite assurances from the insurance company that the insured could file the pol after femas deadline the insured could not collect because the insured was responsible for timely filing 3: holding that the insured could not maintain a lawsuit for additional federal benefits because he had not submitted a sworn proof of loss 4: holding that proof of loss is not evidence of extent of loss and insured is not precluded from showing his damages were greater than shown in proof of loss


Input: Individual Defendants acted outside the scope of authority because the Complaint alleges wrongful actions,” id. at 395, and that Lockamy and Wood were “not entitled to sovereign immunity because they were merely employees of SCTC and were not ‘tribal officials,’ ” id. at 397. II Two issues are presented for our resolution on appeal: (1) whether the district court correctly concluded that SCTC was entitled to tribal immunity; and (2) whether the court correctly concluded that the Individual Defendants were also entitled to the protection of tribal immunity. SCTC’s Immunity from Suit Indian tribes are “domestic dependent nations” with sovereignty over their members and terr Ed.2d 119 (2007); Ramey Constr. Co. v. Apache Tribe of the Mescalero Reservation, 673 F.2d 315, 320 (10th Cir.1982) (<HOLDING>). While the Supreme Court has expressed Holdings: 0: holding that a casino that functioned as an arm of the tribe enjoyed tribal immunity 1: holding that the tribes housing authority was exempt from the adea a general statute because the tribal entity was not just a business but also functioned as an arm of tribal government by providing housing to tribe members 2: holding that a tribal housing authority established by tribal council pursuant to its powers of selfgovernment was a tribal agency rather than a separate corporate entity created by the tribe 3: recognizing that tribal sovereign immunity extends to agencies and subdivisions of the tribe 4: holding that an inn which was a subentity of the tribe rather than a separate corporate entity enjoyed tribal immunity


Input: of the Developer stating that since the moratorium, the Developer “has been effectively forced to leave its ... property economically idle.” The affidavit appears to be based on consultation with land-use experts, but does not explain who they are, what they considered, or what then-opinions are, and the affidavit also appears to admit that agricultural use of the property is possible, but denies that it is “economically viable.” In our view, this self-serving affidavit without any explanation of the underlying factual basis for its conclusions does not serve to create a material issue of fact that “all reasonable beneficial use” of the property has been deprived by the County’s actions. See Galvan v. City of Albuquerque, 85 N.M. 42, 44-45, 508 P.2d 1339, 1341-42 (Ct.App.1973) (<HOLDING>). Accordingly, summary judgment was properly Holdings: 0: holding that unsupported affidavits setting forth ultimate or conclusory facts and conclusions of law are insufficient to either support or defeat a motion for summary judgment 1: holding that unsupported affidavits setting forth ultimate or conclusoiy facts and conclusions of law are insufficient to either support or defeat a motion for summary judgment 2: holding that summits adoption of the facts set forth in mitchells brief was admissible 3: holding that affidavits must set forth facts admissible in evidence and explain its conclusions 4: holding affidavits must include competent evidence and affidavits are not competent if they fail to show a basis for actual person knowledge or if they state conclusions without the support of evidentiary facts


Input: activities that Congress may regulate as part of its commerce power: First, Congress may regulate the use of the channels of interstate commerce____ Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may only come from intrastate activities .... Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, ... i.e., those activities that substantially affect interstate commerce. Id. at 558-59, 115 S.Ct. at 1629-30 (internal citations omitted). As in Lopez, the first and second categories are not relevant to defendant’s constitutional challenge to the statute. See id. at 559, 115 S.Ct. at 1629 (<HOLDING>). The prohibition on violence for the purpose Holdings: 0: holding the first two categories inapplicable 1: holding confrontation clause inapplicable at sentencing 2: holding frady inapplicable 3: holding the act inapplicable to the united states in its role as employer 4: recognizing first two exceptions


Input: remedies should be excused because he was transferred to another facility. Lindsey does not contend that there were any problems at the new facility that prevented him from filing grievances regarding the incident at the Coastal Bend Detention Center and has not alleged how his transfer otherwise impeded his ability to file a grievance within the required time period. See Dillon, 596 F.3d at 267-68. He furthermore has not shown that he should be excused from exhaustion because he was denied access to an adequate law library. He does not set forth any specific legal materials that were withheld or articulate how a deficient law library or lack of legal resources prevented him from filing a timely grievance. Cf Lewis v. Casey, 518 U.S. 343, 351-54, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (<HOLDING>). Accordingly, Lindsey did not properly exhaust Holdings: 0: holding that an actual injury consists of some specific instance in which an inmate was actually denied access to the courts 1: holding that denial of access to carbon paper and reproduction equipment and denial of facetoface access to other inmates did not deprive an inmate of his right of access to the courts 2: holding that inmates must demonstrate an actual injury 3: recognizing that prisoner alleging inadequate access to courts must show how inadequate access caused actual injury 4: holding that an inmate alleging denial of access to the courts must show an actual injury


Input: as a trust account is necessary to promote the ends of justice. We find particular support for our holding in the rule stated in Turcotte v. Trevino, 499 S.W.2d 705 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n.r.e.), on remand, 544 S.W.2d 463 (Tex.Civ.App.—Corpus Christi 1976), rev’d on other grounds, 564 S.W.2d 682 (Tex.1978). In that case, the Texas Court of Appeals wrote: “Where one having the right to accept or reject a transaction takes and retains benefits thereunder, he ordinarily ratifies the transaction, is bound by it, and cannot avoid its obligation or effect by taking a position inconsistent with it at a later time.” 499 S.W.2d at 712. Although the Texas Supreme Court reversed the Turcotte• decision, it left this basic rule intact. See Turcotte, 564 S.W.2d at 685-86 (<HOLDING>). We believe appellant’s actions fall within Holdings: 0: holding that it is a fundamental rule of law that a person cannot take any beneficial interest under a transaction and then adopt a position even if well founded that would defeat the transaction 1: recognizing step transaction doctrine whereby courts must consider all steps of transaction in light of entire transaction so that substance of transaction will control over form of each step 2: holding that a transaction disregarded for lack of economic substance  a nonvaluationrelated ground  nevertheless may be subject to a valuation misstatement penalty because a transaction that lacks economic substance generally reflects an arrangement in which the basis of the property was misvalued in the context of the transaction and that congress intended to penalize such transactions 3: holding that the transaction must be fair and equitable and in good faith 4: recognizing that a transaction that lacks economic substance generally reflects an arrangement in which the basis of the property was misvalued in the context of the transaction


Input: 333 U.S. 426, 431, 68 S.Ct. 641, 644, 92 L.Ed. 784 (1948)); see also Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1563 (11th Cir.1988) (explaining grant or denial of equitable relief lies in the discretion of the district court). Mandamus, which is an extreme form of equitable relief, “is a writ designed to require an official to perform an act required by law.” See Corn v. City of Lauderdale Lakes, 904 F.2d 585, 587 (11th Cir.1990). Although the writ of mandamus was abolished by Federal Rule of Civil Procedure 81(b), federal courts “may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651 (2000); see also Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1385 (11th Cir.1998) (en banc) (<HOLDING>). Pursuant to their powers under 28 U.S.C. § Holdings: 0: holding failure to exercise discretion is abuse of discretion 1: holding that to grant a writ of mandamus a court in the exercise of its discretion must be satisfied that the writ is appropriate under the circumstances 2: recognizing the writ of mandamus may issue to correct a clear abuse of discretion or the failure to carry out a ministerial task 3: recognizing that the issuance of a writ of mandamus is itself generally a matter of discretion 4: recognizing that laches is a proper ground for refusing to issue a writ of mandamus


Input: in order to obtain or thwart collateral litigation matters, like those contained in motions for discovery sanctions, motions for protective orders, or motions for sanctions under Rule 1-341.” Id. As did the Folder court, we too have reviewed the text of Rule 2—313 (f) and the pertinent meeting minutes of the Rules Committee. We conclude, as did that court, that a decision dispositive of a claim or defense is one intrinsic to the underlying action. Further, the decision must “actually and formally dispose of the claim or defense,” Shelton v. Kirson, 119 Md.App. 325, 330, 705 A.2d 25, 27 (1998). An order denying a motion to quash a subpoena issued by the Commission is not such a decision. See Unnamed Attorney v. Attorney Grievance Comm’n, 303 Md. 473, 480-81, 494 A.2d 940, 943-44 (1985) (<HOLDING>). Rather, the court’s denial of the motion to Holdings: 0: holding that in a noncore proceeding a bankruptcy court may enter final orders with the consent of all the parties to the proceeding 1: holding that a notice of appeal filed in an adversary proceeding could not appeal the main proceeding 2: holding the state may appeal orders of dismissal that have the same effect as orders quashing an information 3: recognizing that notwithstanding the finality of such orders for appeal purposes the underlying investigative proceeding persists 4: holding that finality must be determined in light of the unique nature of bankruptcy procedure and not with blind adherence to the rules of finality


Input: Moore also took steps to try 5 F.2d at 550; RESTATEMENT (SECOND) OF CONTRACTS § 237). To the contrary, Morganti readily conceded that it always maintained sufficient funding for critical path work and that there was never a time when it lacked sufficient funding to proceed. Mr. Menefee, Morganti’s contract administrator, testified that Morganti never allowed its difficulties with getting money for CPC’s and modifications to affect critical path work, and that Morganti always provided funding necessary to pay the subcontractors. In fact, Morganti conceded on summary judgment that the FBOP’s payment errors never delayed Morganti. Thus, money was not the source of its inability to complete the contract work on time. D.W. Sandau Dredging, 96-1 BCA ¶ 28,064, at 140,161-62, 1995 WL 739023 (<HOLDING>). Morganti argues that its ability to perform Holdings: 0: holding that performance may be valid acceptance 1: holding that prior positive performance evaluations are not dispositive as to whether the employer was satisfied with the employees performance by the time of the termination 2: holding that governmentcaused delay in contractor performance violated implied duty not to hinder performance of other party 3: holding that continued performance is relevant to materiality where contractors performance failures were not caused by financial situation 4: holding that complete performance of contract constituted acceptance


Input: was no appeal here — interlocutory or otherwise — relating to the district court’s declaration of mistrial. Therefore, "the action occasioning retrial” must be the declaration of mistrial itself. See United States v. Menzer, 29 F.3d 1223, 1227 (7th Cir.) (noting that, where no party appealed declaration of mistrial, "there is no dispute that following the mistrial ..., the government had seventy days in which to retry the defendant”), cert. denied, 513 U.S. 1002, 115 S.Ct. 515, 130 L.Ed.2d 422 (1994). 4 . Compare United States v. Gambino, 59 F.3d 353, 358 (2d Cir.1995) (stating that "[t]he length of an exclusion for complexity must be ... limited in time”), cert. denied, - U.S. -, 116 S.Ct. 1671, 134 L.Ed.2d 776 (1996), and United States v. Jordan, 915 F.2d 563, 565 (9th Cir.1990) (<HOLDING>) with United States v. Twitty, 107 F.3d 1482, Holdings: 0: holding that speedy trial act requires that an ends of justice continuance be specifically limited in time 1: holding that where a defendant acquiesces in a continuance that time is excluded from the speedy trial calculation 2: holding that an ends of justice continuance may be appropriate where the case is unusual or complex 3: holding that a seven week suspension of the speedy trial clock was warranted under the ends of justice provision where the chief prosecutor was ill and new assistant prosecutors required time to prepare for trial 4: holding that fivemonth openended continuance based on ends of justice did not violate speedy trial act


Input: Id. We agree with the reasoning in these cases. We thus hold that wills should be construed by the law as it existed when the testator died, thereby excluding adopted children as beneficiaries unless the will indicates an intent to include adopted children. In the instant case, the probate court determined that Jenkins did not intend to include his daughters’ adopted children as beneficiaries of his testamentary trust. In making its determination, the probate court considered the law as it existed in 1944, when Jenkins executed his will. At that time, Colorado law presumed that adopted children were not included as beneficiaries unless the testator expressly included the term “adopted children” in the will. See Brunton v. International Trust Co., 114 Colo. 298, 164 P.2d 472 (1945) (<HOLDING>). The law presumes that Jenkins knew the law in Holdings: 0: holding an unborn child is a child for purposes of prosecuting chemical endangerment of a child 1: holding that when a testator makes provision for a child or children of another person an adopted child of the other person is not included unless other language in the will makes it clear that the adopted child was intended to be included 2: holding a fetus is not a child person or individual for purposes of criminal prosecution under the reckless injury to a child statute 3: holding that the trial court had erred in imposing an obligation to pay child support when clear and convincing evidence established that the husband was not the father of the child 4: holding an unborn child is not a child for purposes of criminal prosecution of mistreatment of a child


Input: "include but not limited to” and "etc.” (Def. Opp. at 8:15-9:3; Aug.2000 Mot. at 3:11-16, 8:8-9:11). Defendants’ final argument that the Government was not misled by the non-inclusion of I & M does not impact whether the statement was, nevertheless, false. Rather, if true, this factor would go towards the materiality of the statement or damages. Thus, this argument will be discussed later in section II.D.3 of this Order. 20 . To the extent that Plaintiff bases her claim on 31 U.S.C. § 3729(a)(2), it should be noted that there is a "double falsehood” requirement. See United States ex rel. Franklin v. Parke-Davis, 2003 WL 22048255, *1 (D.Mass. Aug. 22, 2003); see also United States ex rel. Bustamante v. United Way/Crusade of Mercy, Inc., 2000 WL 690250, *4 (N.D.Ill. May 24, 2000) (<HOLDING>). Thus, in addition to the elements of a prima Holdings: 0: holding that the elements of a claim under  3729a2 are 1 that the defendant made used or caused to be made or used a record or statement to get a claim against the united states paid or approved 2 the record or statement and the claim were false or fraudulent and 3 the defendant knew that the record or statement and the claim were false or fraudulent emphasis added 1: holding that both lanham act false advertising claim and a false advertising claim made under section 349 or section 350 require a showing that the advertisement was false or misleading 2: holding that for a section 10b violation the sec must prove that the defendant in connection with the purchase or sale of securities made a materially false statement or omitted a material fact with scienter and that the plaintiffs reliance on the defendants action caused injury to the plaintiff 3: holding that a conviction for an offense involving dishonesty or false statement may be used to impeach the credibility of a defendant who chooses to testify 4: holding that a statement is not prepared in anticipation of litigation unless either the defendant had retained counsel or plaintiffs counsel had notified the defendant or his insurer of his retention before the statement was made emphasis added


Input: of use of the parish properties to determine whether they qualify for tax exemptions under N.J.S.A. 54:4-3.6, and contends that the properties here were insufficiently used for religious worship or religious purposes by the Archdiocese to permit such exemptions. The Archdiocese asserts that such an examination by the court would amount to an impermissible intrusion into the religious activities of the Roman Catholic Church, and thus would violate the Church’s First Amendment protections under the United States Constitution and similar protections under the New Jersey Constitution. N.J. Const., art. I H1Í 3 and 4. I. Inquiry Into Religious Use In determining whether a religious organization is entitled to a tax exemption for its property, the courts in New Jerse 92, 437 A.2d 1291 (1981) (<HOLDING>). The New Jersey Constitution of 1947 also Holdings: 0: holding that denial of tax exemption for vacant lot held by church for no current purpose or any future exempt purpose did not violate first amendment 1: holding that requiring church to make contributions to workers compensation fund opposed by such church did not violate first amendment 2: holding that denial of tax exemption for part of church property that was not necessary for occupancy and enjoyment of church did not violate first amendment 3: holding that irs examination of corporate minute books of a church to determine whether it qualified for tax exemption was not unconstitutional interference with religious affairs of the church under the first amendment 4: holding that tax exemption for church property does not violate establishment clause


Input: state rebuts the defendant’s claim by showing no government inducement. 7 . See e.g., Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646,48 L.Ed.2d 113 (1976); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); State v. Keating, 551 S.W.2d 589, 592-93 (Mo. banc 1977), cert. denied, 434 U.S. 1071, 98 S.Ct. 1255, 55 L.Ed.2d 775 (1978). 8 . See United States v. Anderton, 629 F.2d 1044, 1047-48 n. 3 (5th Cir.1980) (uncontradicted testimony of both defendant and unwitting government agent that the agent pressured de fendant into making bribery payments was insufficient to establish entrapment as a matter of law since “the jury could have rejected their testimony”). 9 . But cf. Sherman v. United States, 356 U.S. 369, 373, 78 S.Ct. 819, 821, 2 L.Ed.2d 848 (1958) (<HOLDING>). DONNELLY, Judge, dissenting. In State v. Holdings: 0: holding that unless an affirmative defense is established as matter of law defendant bears burden of obtaining jury findings necessary to support defense 1: holding that if the undisputed testimony of the prosecutions witnesses establishes or corroborates an entrapment defense entrapment is established as a matter of law 2: holding as a general rule of contract law if no other meaning is reasonable the court shall rule as a matter of law that the meaning is established 3: holding that we must sustain legal sufficiency or noevidence challenge if record shows that evidence conclusively establishes opposite of vital fact and matter is established as matter of law if reasonable people could not differ as to conclusion to be drawn from evidence 4: recognizing that in any criminal trial the credibility of the prosecutions witnesses is central


Input: Id. at 455, 105 S.Ct. at 2104, 85 L.Ed.2d at 466. The Benchimol Court declined to impose an implied obligation to enthusiastically advocate for the recommended sentence under the federal plea bargain rule. Id. at 455, 105 S.Ct. at 2105, 85 L.Ed.2d at 466 ("But our view of Rule 11 ([c]) is that it speaks in terms of what the parties in fact agree to, and does not suggest that such implied-in-law terms as were read into this agreement by the Court of Appeals have any place under the Rule."). By contrast, long after Benchimol was decided in 1985, we reiterated the prosecutor’s obligation under Iowa law is to not only recite the recommended sentence but also indicate that it is " 'worthy of the court’s acceptance.’ ” Bearse, 748 N.W.2d at 216 (quoting Horness, 600 N.W.2d at 299-300 (<HOLDING>)). The Iowa Rule of Criminal Procedure Holdings: 0: recognizing that the nature of the therapistpatient relationship gives rise to a duty  to refrain from  causing emotional or mental harm to the patient 1: recognizing prosecutors implicit obligation to refrain from suggesting more severe sentencing alternatives 2: recognizing a previous reprimand was an aggravating circumstance warranting more severe discipline 3: holding that state prosecutors agreements with defendant not binding on federal prosecutors 4: holding that insurance obligation was primary to indemnity obligation


Input: Persons at 1091; Stephanie I. Splane, Tort Liability of the Mentally III in Negligence Actions, 93 Yale L.J. 153, 157-58, 169 (1983). 18 Ellis, Tort Responsibility of Mentally Disabled Persons at 1084-85; Splane, Tort Liability of the Mentally III at 156 n.20. 19 In Payne v. Milwaukee Sanitarium Found., Inc., 81 Wis. 2d 264, 270, 260 N.W.2d 386 (1977), the court said: It was not too long ago that hospitals for the mentally ill were known as asylums for the insane. Emphasis was (S.C. Ct. App. 1989), rev'd on other grounds, 412 S.E.2d 417 (S.C. 1991) (observing that for subjective standard to apply, the plaintiffs mental capacity must be diminished to a degree that makes the plaintiff totally unable to appreciate danger); Galindo v. TMT Transp., Inc., 733 P.2d 631 (Ariz. Ct. App. 1986) (<HOLDING>); Macon-Bibb County Hosp. Auth. v. Appleton, Holdings: 0: holding that due regard describes a standard between ordinary care and recklessness 1: holding that an injured plaintiff with a diminished mental capacity that does not amount to total insanity can be found contributorily negligent but nonetheless should be held to a subjective standard of care 2: holding that standard of care need not be listed separately in report when same standard applies to each health care provider 3: holding employers to an ordinary prudence standard of care 4: holding that ordinary standard of care determines whether a mentally disabled plaintiff can be contributorily negligent


Input: 195 Cal. App.4th 414, 125 Cal.Rptr.3d 616, 618 (Cal.App.2011), Division 3 of California’s Fourth District Court of Appeal, agreed with Mendez and disagreed with Ramirez, stating that it “perceive[d] no sound basis to distinguish Graham’s reasoning where a term of years beyond the juvenile’s life expectancy is tantamount to an LWOP term.” The California Supreme Court recently granted review of these decisions. See People v. Caballero, 123 Cal.Rptr.3d 575, 250 P.3d 179 (2011), People v. Ramirez, 128 Cal.Rptr.3d 271, 255 P.3d 948 (2011), and People v. Nunez, 128 Cal. Rptr.3d 274, 255 P.3d 951 (2011). Unlike California, Georgia courts are, so far, consistent in their view that Graham is not implicated in a term-of-years sentence. See Adams v. State, 288 Ga. 695, 707 S.E.2d 359 (2011) (<HOLDING>); Middleton v. State, 313 Ga.App. 193, 721 Holdings: 0: holding that stiffer penalties for cocaine base transactions are not grossly disproportionate to the severity of the offense and therefore do not violate eighth amendment 1: holding that probation is not a sentence 2: holding that sentence of mandatory twentyfive years followed by life on probation for aggravated molestation of a fouryearold child does not implicate categorical eighth amendment restriction under graham nor is it grossly disproportionate for particular crime 3: holding that the eighth amendment does not require strict proportionality between crime and sentence but forbids only extreme sentences that are grossly disproportionate to the crime 4: holding that an effective life sentence of fortyfive years for seconddegree forgery was excessive and that a life sentence was cruel and unusual in violation of the eighth amendment


Input: of 210 months’ imprisonment. Under the post -Booker advisory guideline regime, the district court must still consider the applicable guideline range of 188— 235 months, but it may vary from the range if it concludes reasonably that factors set forth in 18 U.S.C. § 3553(a) warrant a different sentence. Even under the mandatory guidelines, however, the district court was able to consider the § 3553(a) factors in determining where within the mandatory range Brooks should be sentenced. That the court elected a sentence of 210 months from within the range of 188 to 235 months gives us confidence that the added flexibility of the post-Booker regime would not have led the district court to impose a more favorable sentence. See United States v. Perez-Ramirez, 415 F.3d 876, 878 (8th Cir.2005) (<HOLDING>). Brooks has not raised any argument, after Holdings: 0: holding that even without booker constitutional error in the district courts application of the guidelines there could be nonconstitutional error where the court applied the guidelines in a mandatory fashion 1: holding that because the district court did not fully use its discretion to depart from the guidelines when determining the proper range or in imposing the term of sentence sentence was 2 months above sentencingrange minimum any booker error was harmless 2: holding that where district court left unused some of its discretion to impose a more favorable sentence nonconstitutional booker error was harmless 3: holding that where a district court clearly indicates that an alternative sentence would be identical to the sentence imposed under the guidelines any error that may attach to a defendants sentence under booker is harmless 4: holding that booker constitutional error was harmless beyond a reasonable doubt because on remand the district court would have given defendant the same sentence


Input: a remand— will the employer finally be able to argue to this Court that the full commission correctly held Bone’s claim was not compensable back in June of 2008. Because I believe the issue of compensability was finally decided by the full commission and the circuit court, sitting in an appellate capacity, could not thwart further appellate review by ordering a remand, I would find the order appealable under section 1-23-390. See Mungo, 383 S.C. at 278, 678 S.E.2d at 829 (“Although the circuit court remanded the issue of the precise damages to be awarded to Claimant, the single commissioner would have no choice but to award some damages to Claimant. Accordingly, the circuit court’s order constitutes a final decision and is appealable.”); Brown, 366 S.C. at 387-88, 622 S.E.2d at 551 (<HOLDING>). Nothing in Charlotte-Meeklenburg impacts this Holdings: 0: holding circuit courts order that apportionment was required was final and appealable even though the court remanded for a determination of the amount of apportionment due 1: holding adjudication order based upon a determination on the merits in juvenile court is a final and appealable order 2: holding that an order was interlocutory in nature despite the trial courts certification of the order as a final appealable judgment 3: holding that superior court erred in reversing trial courts order granting new trial and remanding for a new trial limited to apportionment of damages 4: holding that a rehearing order was not final or appealable


Input: for Indemnity. H. Economic Loss Doctrine Defendant argues that an essential element of each of Plaintiffs tort-based causes of action is an injury or damage proximately caused by Defendant’s tortious conduct. Defendant asserts that for each tort-based cause of action, the economic loss rule bars recovery because Plaintiff has not put forth evidence showing tangible, physical injury to the Wellfield. Under Ohio law, the economic loss rule “prevents recovery in tort of damages for purely economic losses. The well-established general rule is that a plaintiff who has suffered only economic loss due to another’s negligence has not been injured in a manner which is legally cognizable or compensable.” Ashtabula River Corp. Grp. II v. Conrail, Inc., 549 F.Supp.2d 981, 987 (N.D.Ohio 2008) (<HOLDING>). In other words, “indirect economic damages Holdings: 0: holding that even though plaintiffs claim was barred by the cgia because it sounded in tort attorney fees were not appropriate where it was a contract claim that was pleaded and thus a contract claim that was dismissed 1: holding plaintiffs public nuisance claim was barred by the economic loss rule because it wasnt actually a landowner of the site and thus there was no allegation of harm to any property 2: holding that economic loss rule barred claim for breach of fiduciary duty where plaintiffs claim arose solely as a result of the existence of a contract between the parties 3: holding that economic loss rule precludes recovery of economic damages only in the absence of personal injury or property  damage claims 4: holding there was no claim and no basis for a claim of surprise concerning allegation of a former conviction


Input: However, the cases plaintiffs point us to do not support their argument on appeal. First, in most of these cases, the Circuit Courts were focused on the effect of Lingle on their Takings Clause precedent, not their substantive due process case law. See, e.g., Rose Acre Farms, Inc. v. United States, 559 F.3d 1260, 1277-82 (Fed. Cir.2009) (discussing how the Agins inquiry is now obsolete after Lingle and examining Lingle’s effect on regulatory takings cases). Second, the Circuit Courts that did find Lingle affected their substantive due process jurisprudence had earlier precedent holding that all property rights-based substantive due process claims were preempted or supplanted by the Takings Clause. See, e.g., Crown Point Dev., Inc. v. City of Sun Valley, 506 F.3d 851, 852 (9th Cir.2007) (<HOLDING>); see also A Helping Hand, LLC v. Balt. Cnty., Holdings: 0: holding that a foreign citizen with no substantial connections to the us has no claim under the fifth amendments takings clause 1: recognizing  1983 substantive due process claim 2: holding that prior circuit precedent that the fifth amendments takings clause subsumes or preempts substantive due process claims was undermined by lingle 3: holding that when a prisoners deliberate indifference claim is covered by the eighth amendment the substantive due process claims are duplicative and thus the substantive due process claims should be dismissed 4: holding municipalities  are not persons within the meaning of the due process clause of the fifth or fourteenth amendments


Input: incriminating. Id. at 36, 120 S.Ct. 2037. In that case, the production itself communicated a “statement[ ] of fact”; it proved that the documents existed, were authentic, and were in the custody of the producer. Id. at 36,120 S.Ct. 2037 (citation and internal quotation marks omitted). There, the Supreme Court held that the physical production was a violation of the Fifth Amendment because the preparation of the produced documents was the only means through which the government obtained the evidence which led to the indictment. Id. at 42-43,120 S.Ct. 2037. This case, however, is more akin to the physical trait cases. Tattoos which are openly visible on the body are physical traits, as are voice, appearance, and handwriting. See United States v. Bay, 762 F.2d 1314, 1815-16 (9th Cir.1984) (<HOLDING>). Cf. United States v. Williams, 461 F.3d 441, Holdings: 0: holding that a defendant need not take the stand to be able to show the jury the tattoos on his hands which were an openly visible physical characteristic 1: holding that an officer stopped the defendant when he ordered the defendant to take his hand out of his pocket 2: holding that the jury need not be specifically instructed to find whether there is a connection between the defendant the weapon and the crime 3: holding that the failure to inform the defendant of his right to a sixperson jury and the failure to consult the defendant as to his wishes was an error for which a new trial was the only remedy 4: holding that confession was coerced because it was prompted by a credible threat of physical violence where official told defendant that defendant was in danger of physical harm at hands of other inmates and offered to protect defendant in exchange for a confession


Input: since Elkin lacked standing to file a complaint for support, this action must be dismissed. Accordingly, we remand this action to the trial court directing that the order of support be vacated and the complaint for support be dismissed on the basis of lack of standing. We further direct that Mother be reimbursed any monies paid as a result of the existing support order. ¶ 12 We further note that even though Mother has the parental duty of supporting her child “until [her] child reaches 18 or graduates from high school, whichever event occurs later,” Blue v. Blue, 532 Pa. 521, 529, 616 A.2d 628, 633 (1992), she does not have to be subjected to her child dictating how or to whom the support should be allocated. See Oeler by Gross v. Oeler, 527 Pa. 532, 534-36, 594 A.2d 649, 650 (1991) (<HOLDING>). ¶ 13 In the present case, it is clear from Holdings: 0: holding that trial court properly terminated fathers obligation to support his seventeenyearold daughter who refused to live with father but instead chose to reside in her own apartment after her mother moved out of state where daughter offered no justifiable reason for not living with her father daughter only contended that her stepmother was too neat for her and that she wanted to live closer to her friends 1: holding that certifications of parent and child regarding her desire to live with her father were sufficient to warrant a plenary hearing 2: holding that daughter had no express authority to sign arbitration agreement for mother where no power of attorney and daughter did not discuss signing the agreement with her mother 3: holding that the applicant was entitled to asylum based on her fear that her daughter will be forced to undergo female genital mutilation because her fear of  being forced to witness the pain and suffering of her daughter is wellfounded 4: holding that the natural father who was incarcerated failed without justifiable cause to communicate significantly with his daughter and noting that he called his daughter once and that he did not attempt mail communication with her despite his awareness that the adoptive parents were represented by counsel and therefore he could have initiated contact through their counsel or the court to communicate with her


Input: liens on all three tracts. They then brought suit for breach of contract against PSL and foreclosure against Enterprise Bank. The master did not rule on the claims against PSL but entered money judgments against Enterprise Bank. We hold the master had no authority to enter money judgments in the respondents’ foreclosure actions against Enterprise Bank. The procedures for enforcing a mechanic’s lien are provided by statute, see S.C.Code Ann. §§ 29-5-10 to -440 (2007 & Supp.2013), and “must be strictly followed.” Cohen’s Drywall Co. v. Sea Spray Homes, LLC, 374 S.C. 195, 199, 648 S.E.2d 598, 600 (2007). A court cannot depart from the plain language of the statute when enforcing a mechanic’s lien. See Zepsa Constr., Inc v. Randazzo, 357 S.C. 32, 38, 591 S.E.2d 29, 32 (Ct.App.2004) (<HOLDING>); Shelley Constr. Co. v. Sea Garden Homes, Holdings: 0: holding a party was limited to recovery provided for by the strict terms of the mechanics lien statute 1: holding that the lien bond releases the property from the lien but the lien is then secured by the bond 2: recognizing that it has long been the rule that a mechanics lien claim may be waived 3: holding that recovery is limited to actual compensatory damages 4: holding that the phrase provided by law means prescribed or provided by statute


Input: court had no jurisdiction. 22 . See, e.g., Leisnoi, Inc. v. United States, 170 F.3d 1188, 1192 (9th Cir.1999); McMaster v. United States, 177 F.3d 936, 939-40 (11th Cir.1999); Cadorette v. United States, 988 F.2d 215, 223 (1st Cir.1993). Leisnoi’s holding that “a third party’s claim of an interest of the United States can suffice if it clouds the plaintiff's title” is inapplicable here because the Levee District asserts its own title interest; it is not asserting a title interest on behalf of the United States. 170 F.3d at 1192. 23 . - U.S. -, 132 S.Ct. 2199, 183 L.Ed.2d 211 (2012). 24 . 5 U.S.C. § 702. 25 . 28 U.S.C. § 2409a(a)i 26 . Patchak, 132 S.Ct. at 2205. 27 . Id. at 2210. 28 . Id. at 2207 (internal quotations omitted). 29 . See also Block, 461 U.S. at 286, 103 S.Ct. 1811 Holdings: 0: holding that the defendants dominion control and knowledge may be inferred if he had exclusive possession of the premises on which the object was found emphasis added 1: holding that trespass to try title is the method for determining title to  real property 2: holding that congress intended the qta to provide the exclusive means by which adverse claimants could challenge the united states title to real property emphasis added 3: holding that the only method by which an adverse possessor may convey the title asserted by adverse possession is to describe in the instrument of conveyance by means minimally acceptable for conveyancing of realty that which is intended to be conveyed 4: holding that the legal title holders to real property held it in constructive trust for the equitable title holder who was entitled to the real property based on an earlier contract


Input: Court held that, “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348. The issue of retroactivity turns on whether the rule is considered procedural or substantive. While substantive rules are automatically applied retroactively, holdings dictating methods of criminal procedure, such as the Apprendi holding, are presumptively non-retroactive. See Rosario v. United States, No. 00 Civ. 9695, 2001 WL 1006641, at *2 (S.D.N.Y. Aug.30, 2001); Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); see also Bousley v. United States, 523 U.S. 614, 619-20, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (<HOLDING>). A majority of the courts that have considered Holdings: 0: holding that new rules of criminal procedural are generally not retroactive 1: holding that procedural rules are presumptively nonretroactive 2: holding that belowguidelines sentence is presumptively reasonable 3: holding rules of appellate procedure are obviously procedural in nature 4: holding that sentences within the guideline range are presumptively reasonable


Input: 26 L.Ed.2d 586 (1970) (<HOLDING>). He adds that “property exceeding $20” is an Holdings: 0: holding any fact other than a prior conviction that increases the maximum penalty beyond the prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt 1: holding that failure to explain the effect of a term of supervised release was harmless error where term of imprisonment combined with maximum imprisonment for violation of supervised release was still less than statutory maximum 2: holding in a case where the maximum time of imprisonment was extended because an indigent defendant was unable to pay a fine and court costs that a state may not constitutionally imprison beyond the maximum duration fixed by statute a defendant who is financially unable to pay a fine 3: holding that any fact other than a prior conviction may not be used to enhance a defendants sentence beyond the statutory maximum unless it is submitted to a jury and proved beyond a reasonable doubt 4: holding that state may not subject indigent defendants to period of imprisonment beyond statutory maximum


Input: argues that the district court correctly determined from the record that postoperative negligence had not been raised at the trial level, i.e., that the theory of postoperative negligence was neither pled in the complaint nor tried by consent, and, consequently, Aills’ closing argument concerning postoperative negligence was improper. The district court found the statement made by Dr. Boemi’s counsel during the sidebar conference “that opposing counsel’s remarks were improper because of the absence of any basis in the record ‘that postoperative care was negligent’ and ‘that it would have made a difference,’ ” 990 So.2d at 544, to have sufficiently asserted the legal grounds for his objection with the specificity required by law. We rlando v. Birmingham, 539 So.2d 1133, 1135 (Fla.1989) (<HOLDING>). Here, Dr. Boemi’s objection did not Holdings: 0: holding that an appellate court has discretion to consider an issue not argued by the parties 1: holding an issue must be raised to and ruled upon by the trial court to be preserved for appellate review 2: holding an issue not raised to the family court is not preserved for appellate review 3: holding that an appellate court cannot consider an issue that was not preserved for appellate review 4: holding that an issue was not preserved for appellate review because appellants trial objection does not comport with the issue he raised on appeal


Input: — the “subject to” language. In giving deference to the Secretary’s position, the Court held: The Secretary’s approach rejects a wooden requirement of actual deductions, but in their absence it requires a clear and particularized policy — one which “effectively communicates” that deductions will be made under specified circumstances. This avoids the imposition of massive and unanticipated overtime liability ... in situations in which a vague or broadly worded policy is nominally applicable to a whole range of personnel but is not “significantly likely” to be invoked against salaried employees. Id. at 910. The instant case presents an issue that has not been addressed by the Second Ci L.Ed.2d 336 (1995); see also Kuchinskas v. Broward County, 840 F.Supp. 1548, 1553 (S.D.Fla.l993)(<HOLDING>), aff'd, 86 F.3d 1168 (11th Cir.1996), petition Holdings: 0: holding that an initial denial of leave did not constitute materially adverse action because the plaintiff was ultimately allowed to take the leave without any other consequence to her 1: holding that leave banks do not constitute salary and that any reduction to leave banks would not negate an exempt employees status 2: holding that accused was not in custody when told he was not under arrest and was free to leave and did in fact freely leave the interview 3: holding that an employee who did not present evidence that she could have returned to work prior to the expiration of her fmla leave allowance was not entitled to additional leave merely because her employer had not properly provided her with notice that the leave was designated as fmla leave 4: holding that the employees reference to his mental condition did not constitute the requisite notice of an intent to invoke fmla leave


Input: cert. denied, 425 U.S. 974, 96 S.Ct. 2173, 48 L.Ed.2d 798 (1976). See also Buschi v. Kirven, 775 F.2d 1240, 1251-52 (4th Cir.1985) (applying the intracorporate conspiracy doctrine to a Section 1985 conspiracy alleging violation of plaintiffs’ First Amendment and due process rights). See also Doherty, 728 F.2d at 339-40 (applying the intracorpo-rate conspiracy doctrine to a Section 1985(2) case alleging a corporate conspiracy to coerce plaintiff-employee to enter nolo contendere plea to federal bribery charges). For public policy reasons, however, the First and Third Circuits have refused to apply the intracorporate conspiracy doctrine to Section 1985 cases alleging conspiracies to discriminate on the basis of race or sex. See Stathos v. Bowden, 728 F.2d 15, 20-21 (1st Cir.1984) (<HOLDING>). Similarly, the Third Circuit rejected the Holdings: 0: holding the logic of the intracorporate conspiracy doctrine in antitrust cases does not warrant its extension to civil rights cases 1: recognizing that the preponderance of the evidence is the quantum of proof in civil cases 2: holding that the workproduct doctrine applies in criminal cases because its role in assuring the proper functioning of the criminal justice system is even more vital than its role in civil cases 3: holding that the 1992 amendment to article 5 of the maryland declaration of rights permits a six person jury in all cases except criminal cases 4: holding that 60day time limit for notice of appeal in civil cases not 10day limit in criminal cases applies to  2255 proceedings


Input: that "[t]he Supreme Court's analysis of the justifications for access to the criminal courtroom apply as well to the civil trial.” Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1178 (6th Cir.1983) (vacating the lower court's order to seal certain F.T.C. documents filed in the court’s record during a preen-forcement challenge to proposed changes in cigarette testing) (citing Richmond Newspapers, 448 U.S. at 580 n. 17, 100 S.Ct. 2814 (noting that historically civil trials have been presumptively open, but declining to decide whether they enjoy a First Amendment right of access because the issue was not before the Court)), cert. denied, 465 U.S. 1100, 104 S.Ct. 1595, 80 L.Ed.2d 127 (1984). See, e.g., Smith v. United States Dist. Court, 956 F.2d 647, 650 (7th Cir.1992) (<HOLDING>). 23 . Code of Student Conduct, Miami Holdings: 0: holding that the first amendment right of access applies to a summary judgment motion in a civil case 1: recognizing a right of access to civil proceedings 2: holding that a defendant does not have the right to be represented by counsel in postconviction proceedings which are civil proceedings 3: holding that the first amendment secures for the public and the press a right of access to civil proceedings 4: recognizing common law right of access to judicial documents


Input: from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition....” Rules Governing Section 2255 Proceedings for "the United States District Courts, Rule 4. III. DISCUSSION Defendant requests that the Court reconsider his sentence of 46 months incarceration in light of the fact that the Court sentenced Alicia Gaytan to 38 months of incarceration for related charges. The Court finds that Defendant’s request shall be denied for the reasons described herein. Courts have consistently held that the mere fact that a codefendant receives a lesser sentence than defendant is not a basis for granting relief pursuant to 28 U.S.C. § 2255. See generally, e.g., Hilbrich v. United States, 371 F.2d 826 (7th Cir.1967) (<HOLDING>); Montalvo v. United States, 174 F.Supp.2d 10, Holdings: 0: holding that where appellant moved to recuse trial judge from deciding the motion for new trial the judge of the administrative district was required to designate a judge to hear the recusal motion 1: holding that a defendant was not entitled to a relief under section 2255 when he asserted that the sentencing judge who was not the trial judge was influenced by the sentence imposed by the trial judge on a codefendant 2: holding that the defendant is not entitled to be sentenced by the judge who took his plea when the judge made no promise to sentence him 3: holding that the fact that a judge had ruled against the defendant is not a basis for finding the judge prejudiced 4: holding that when the defendant admitted that he pleaded guilty for reasons other than to have the judge who took his plea sentence him the defendant could properly be sentenced by a different judge