Input: that betokens a significant deprivation of freedom, “such that [an] innocent person could reasonably have believed that he [or she] was not free to go and that he [or she] was being taken into custody indefinitely,” Kraus v. County of Pierce, 793 F.2d 1105, 1109 (9th Cir.1986). See also Delmondo, 54 Haw. at 557, 512 P.2d at 554 (observing that officer “took custody of the defendant and his cohort by obliging them to leave the toilet stall, stand against a wall, and generally to remain subject to his directions” and holding that “[t]his type of action, despite the absence of the magic words (‘I place you under arrest’ etc.), is an arrest, where the defendant clearly understands that he [or she] is not free to go”); State v. Crowder, 1 Haw.App. 60, 64-65, 613 P.2d 909, 912-13 (1980) (<HOLDING>). Cf. State v. Groves, 65 Haw. 104, 649 P.2d Holdings: 0: holding that defendant had the right to refuse to answer questions put to him by police officer who had called him 1: holding that suspect was not in custody when officer handcuffed him for officer safety while transporting him to police station 2: holding that the defendant was placed in official detention when two police officers approached him and told him that he was under arrest as the defendant could not reasonably have believed that he was free to leave 3: holding that defendant was arrested  when the police officer took physical custody of him by grabbing his arm and returned him to the hotel for detention there 4: holding that defendant was in custody when police questioned him in his bedroom late at night


Input: See also Kontrick v. Ryan, 540 U.S. 443, 455, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004). 23 . The Court and the parties agree that this Court lacks jurisdiction under section 1442 pertinent part: "A 'governmental unit' includes the following: United States; State; Commonwealth; District; Territory; municipality; foreign state; department, agency, or instrumentality of the United States ... a State, a Commonwealth, a District, a Territory, a municipality, or a foreign state; or other foreign or domestic government...." Id. 29 . Cal. Gov’t Code § 16271(d). 30 . See Jared Eigerman, "California Counties: Second-Rate Localities or Ready-Made Regional Governments?,” 26 Hastings Const. L.Q. 621, 670 (1999) ("Eigerman, California Counties”) ("Califo de Fajardo v. Mora, 805 F.2d 440 (1st Cir.1986) (<HOLDING>); In re Sampson, 17 B.R. 528, 531 Holdings: 0: recognizing that the regulatory scheme created by the ina is so pervasive as to be consistent with the exclusive federal power over immigration 1: holding that a commission is a body with special and limited power and it can only exercise the power expressly or impliedly granted to it and any reasonable doubt of existence of any power must be resolved against the exercise thereof 2: recognizing a distinction between the power of a federal court to hear statelaw claims and the discretionary exercise of that power 3: holding that the states allegation that the congressional act at issue that went beyond the power of congress and impinged on that of the state  did not suffice as a basis for invoking an exercise of judicial power 4: holding that a breach of contract action by the department of health for the commonwealth of puerto rico did not qualify as an exercise of police or regulatory power even if related to the departments general regulatory power


Input: whether or not there was an unlawful warrantless entry into Cummings’ home, but this allegation was not raised in the counts recited in the complaint, and this Court sees no need to expand upon issues which were not raised. On appeal, Defendants cite to the magistrate judge’s statement and argue that this Court should not entertain on appeal Cummings’ claim for unlawful entry. We disagree. As an initial matter, the magistrate judge’s decision not to address the claim is irrelevant to the question of whether this Court may address it on appeal. We apply a “course of the proceedings” test to determine whether defendants in a § 1983 action have received notice of the plaintiffs claims where the complaint is ambiguous. Moore v. City of Harriman, 272 F.3d 769, 772 (6th Cir. 2001) (en banc) (<HOLDING>). Here, regardless of the fact that Cummings Holdings: 0: holding a complaint against a public official or employee must explicitly state it as being brought against the person in the persons individual capacity or else the complaint will be construed as suing the person only in the persons official capacity 1: holding that a plaintiff who wishes to sue a state official in his personal capacity must so specify in her complaint so that if a plaintiffs complaint is silent about the capacity in which she is suing the defendant we interpret the complaint as including only officialcapacity claims 2: recognizing that when a state employee is sued in his official capacity the state is the real party in interest and as a result the eleventh amendment is implicated 3: holding that a state officer sued in his individual capacity may be held personally liable for damages under 42 usc  1983 based upon actions taken in his official capacity 4: holding that failure to explicitly state in complaint whether a defendant is being sued in his or her individual capacity is not fatal if the course of the proceedings otherwise indicate that the defendant received sufficient notice


Input: suits for the purpose of finality and appealability. We first adopted this rule in Hebel v. Ebersole, 543 F.2d 14 (7th Cir.1976), when we held that, because the claims resolved by the district court and those remaining in that court had been severed pursuant to Rule 21, that court’s judgment was “final and properly appealable.” Id. at 17. This rule enjoys continued vitality. See Rice v. Sunrise Express, Inc., 209 F.3d 1008, 1014 n. 8 (7th Cir.2000) (“If the district court severed [the claims against the successor corporation] under Rule 21, then it created two separate actions, each capable of reaching final judgment and being appealed.”). The district court clearly and unambiguously classified its severance order as one “pursuant to Federal Rule of Civil Procedure 21.” R.168 at 1, 7 (<HOLDING>). Nevertheless, because “the district court Holdings: 0: holding that the separate and distinct claims of two or more plaintiffs cannot be aggregated to establish jurisdiction 1: holding that because the trials of the individual claims may expose issues of systemic violation that would cause the district court to reconsider its decision to dismiss plaintiffs claims against the state defendants in their entirety severance under rule 21 was inappropriate instead construing the district courts order as an order for separate trials under rule 42b such that the individual claims may not be appealed until a final judgment has been rendered in the entire action 2: holding the indemnification claims to be severable under rule 21 from the primary liability inquiry 3: holding that because they are distinct and separate it had broad discretion  under rule 21 to sever the plaintiffs claims against riverboat from what remained of the plaintiffs claims against showboat 4: holding that a refusal to separate out time spent on distinct claims is within the trial courts discretion if the claims are so factually imbricated  as to make separate treatment of the constituent attorney time inappropriate


Input: some ambiguity in the cases discussed above concerning exactly what müst be “dealt with” by a Chaptér 11 plan under section 1141(c). The Penrod court suggests that the hen that is to be voided must be dealt with. It states: “[U]nless the plan of reorganization, or the order confirming the plan, says that a hen is preserved, it is extinguished by the confirmation. This is provided, we emphasize, that the holder of the hen participated in the reorganization. If he did not, his lien, would not be ‘property dealt with by the plan,’ and so the section would not apply.” Penrod, 50 F.3d at 463 (emphasis added). Penrod has been interpreted to require that the lien itself be dealt with in the plan. See 260 Gregory LLC v. Black Hawk/Central City Sanitation Dist., 77 P.3d 841, 845 (Colo.App.2003) (<HOLDING>); Coffin v. Malvern Fed. Savings Bank, 189 B.R. Holdings: 0: holding that a plan provision stating that the summary plan description and summaries of material modifications  are hereby incorporated by reference and constitute a part of the plan acted to incorporate into the plan a limitations provision found only in the summary plan description 1: holding that because the spd at issue stated that it is made part of the group policy its terms were sufficient to find that the plan conferred discretion on the plan administrator 2: holding that the lien at issue was not extinguished by silence in the plan as to its survival unless it is dealt with by the plan by a provision for the payment of or securing of the claim 3: holding that professionals who advised the plan were not fiduciaries because they had no decision making authority over the plan or plan assets also noting that the power to act for the plan is essential to status as a fiduciary 4: holding that a payment is under the plan when the debt is provided for in the plan


Input: the privilege [against self-incrimination] and the legitimate demands of government to compel citizens to testify.' It is through immunity statutes supplanting the privilege that Legislatures have attempted to ease such tensions." Attorney General v. Colleton, 387 Mass. 790, 444 N.E.2d 915, 918 (1982) (citation omitted). 6 . 3 Whinery, supra note 4, § 43.56; see also City of Hollywood v. Washington, 384 So.2d 1315, 1319 (Fla.Dist.Ct.App.1980) ("Immunity from prosecution is a creature of statute."). Professor Whinery cites Texas as an example of a jurisdic tion where immunity is not statutory; instead, it is "derived from the so-called inherent power of prosecuting attorneys." 3 Whinery, supra note 4, § 43.56 & n. 6. 7 . Accord Hunter v. State, 63 Okl.Cr. 24, 31, 72 P.2d 399, 402 (1937) (<HOLDING>); Eden v. State, 54 Okl.Cr. 265, 267, 21 P.2d Holdings: 0: holding that in order to state a claim for ineffective assistance of counsel based on the failure to call a witness to testify the claimant must allege 1 the identity of the potential witness 2 that the witness was available to testify at trial 3 the substance of the witnesss testimony and 4 an explanation of how the omission of the testimony prejudiced the case 1: holding that promises made by the prosecution to a witness in exchange for that witness testimony relate directly to the credibility of the witness 2: holding that before immunity under the provision at okla const art ii  27 can be given a witness such witness must have testified under an agreement made with the prosecuting attorney approved by the court or such witness must have claimed the privilege of silence which was by the court denied and such witness must have been compelled by the court to so testify  3: holding that the trial courts admonition of a witness even though detailed and strongly stated did not coerce the witness because the court did not threaten or badger the witness and the court provided the witness with her own counsel to ensure that the decision was voluntary 4: recognizing that informing the jury that testifying witness has agreed to cooperate with the government is a doubleedged sword as the existence of such agreement may suggest either that the witness will testify in accordance with the governments wishes regardless of the truth or that the witness will not he under threat of revocation of the agreement should the witness commit perjury


Input: the Board found to be- — • (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or (D) without observance of procedure required by law; and (4) in the case of a finding of material fact made in reaching a decision in a case before the Department with respect to benefits under laws administered by the Secretary, hold unlawful and set aside such finding if the finding is clearly erroneous. (b) In making the determinations under subsection (a) of this section, the Court shall take due account of the rule of prejudicial error. (c) In no event shall findings of fact made by the Se (<HOLDING>); Akles v. Derwinski 1 Vet.App. 118, 121 Holdings: 0: holding that a reviewing court is not to substitute its decision for that of the board 1: holding that agency is bound by its regulations 2: holding that va must follow its own regulations 3: holding that an agencys interpretation of its own regulations is entitled to deference 4: holding that the board is not free to ignore its own regulations


Input: as the “stigma or disability” test, “a protectable liberty interest is implicated if the government alters the employee’s status and such a change ‘foreclose^] his freedom to take advantage of other employment opportunities by either (a) automatically excluding him from a definite range of employment opportunities with the government or (b) broadly precluding him from continuing his chosen career.’ ” Id. (quoting M.K. 196 F.Supp.2d at 15) (citing O’Donnell, 148 F.3d at 1140). If the plaintiff proves that “the government has infringed upon [his] protected liberty interest under either test, the person has a due process, right to notice and an opportunity to refute the charges against him and to clear his name.” Id. (citing Doe v. U.S. Dep’t of Justice, 753 F.2d 1092, 1102 (D.C.Cir.1985) (<HOLDING>)). As this Court previously held when it Holdings: 0: holding that statutory impediment to employment caused by inclusion on state child abuse registry implicates liberty interest 1: holding that former municipal judge did not have property interest in continued employment 2: holding that because a fifth amendment liberty interest claim implicates an interest in ones postemployment reputation rather than any right to continued employment the wellsettled remedy is a nameclearing hearing 3: holding that spouses homestead interest was not abandoned because right to possession continued 4: holding that property interest in continued expectation of public employment does not include right to actually occupy position


Input: apparent lack of candor it reflects. 21 . Indeed, even Judge Smith is forced to examine the strength of the federal interest here in explaining why abstention was proper. In his opinion, Judge Smith, agrees that the comparative weight of the federal interest here does not support a finding of preemption. Nevertheless, he concludes that the district court should have abstained even though, given the required preemption analysis, there was nothing left to abstain from. 22 . First, there was a pending administrative enforcement proceeding before the New Jersey Department of Environmental Protection, for which New Jersey law provides Hi Tech with a right to a hearing and a right to judicial review. N.J. Stat. Ann. §§ 52:14B-1 to 52:14B-24; Zahl v. Harper, 282 F.3d 204, 209 (3d Cir.2002) (<HOLDING>). Second, "there is a well-recognized Holdings: 0: holding that judicial review of final agency action under the administrative procedure act  provides the proper procedure to challenge the sufficiency of an eis 1: holding that similar proceedings under the new jersey administrative procedure act are clearly judicial in nature and therefore meet the first part of the younger  test 2: holding that judicial review of decisions of military correction boards is review of the administrative record conducted under the administrative procedure act 3: recognizing israel had no interest in denying its citizens the substantive advantages of new jersey defamation law in new jersey residents claims for defamation published in new jersey 4: holding purposeful and deliberate omission on enactment of new jersey sales and use tax of exemption found in new york counterpart act which served as the model for new jersey act


Input: Court upheld the trial court’s decision to refrain from delivering the instruction requested by the defendant and to utilize the pattern jury instructions concerning the weight and credibility of the evidence and the necessity for the jury to find beyond a reasonable doubt that the defendant was the perpetrator of the crime charged before returning a guilty verdict on the grounds that the instructions actually delivered by the trial court adequately informed the jury about the factors that should be considered in evaluating the credibility of eyewitness identification testimony. Id. at 753, 412 S.E.2d at 49. An examination of the Supreme Court’s decisions in Green and Dodd, coupled with our similar decision in State v. Summey, 109 N.C. App. 518, 525-26, 428 S.E.2d 245, 249-50 (1993) (<HOLDING>), reveals that this Court and the Supreme Court Holdings: 0: holding that the trial court did not err by failing to instruct the jury to consider certain additional factors in evaluating the validity of eyewitness identification testimony 1: holding admissible expert testimony concerning factors that may impair eyewitness identification and rejecting that concerning a particular eyewitness credibility and the statistical probability of eyewitness misidentification 2: holding no abuse of discretion to exclude expert eyewitness identification testimony where governments case relied on more than eyewitness identification 3: holding that it was improper for the trial court to instruct the jury that it could not consider the states failure to videotape the defendant 4: holding that trial court did not err


Input: Act, 29 U.S.C. § 794, and the Court looks to the statute for jurisdiction over Kinneary’s claim. Ridge contends that the Rehabilitation Act does not provide for a private right of action against the United States when it acts in its capacity as a regulator. Although the Second Circuit has not yet addressed this particular issue, several of its sister circuits have found that no such private right of action exists under the Rehabilitation Act. See Cousins v. Secretary of United States DOT, 880 F.2d 603 (1st Cir.1989) (finding that the Rehabilitation act does not create a private right of action against the federal government acting in its role as a regulator); see also Clark v. Skinner, 937 F.2d 123 (4th Cir.1991) (same); Salvador v. Bennett, 800 F.2d 97, 99 (7th Cir.1986) (<HOLDING>). The Court agrees with the rationale expressed Holdings: 0: holding that the rehabilitation act does not create a private right of action against the secretary of transportation where the apa provides an adequate remedy 1: holding that the rehabilitation act does not create a private right of action against the secretary of education acting in his role as an administrator 2: holding rehabilitation act applicable 3: recognizing private right of action 4: holding that section 4625bc does not create a private right of action for money damages


Input: ordered the sentences to run consecutively. Appellant raises two issues on appeal, only one of which merits discussion. Appellant contends that the trial court erred in entering judgment and sentence on both the offense of DUI manslaughter and the offense of driving while license suspended and carelessly or negligently causing the death of another human being, claiming that the legislature did not intend to punish a single death under two different statutes. We agree. In Houser v. State, 474 So.2d 1193 (Fla.1985), the supreme court indicated that, before the courts would be obligated to convict and sentence for two crimes arising from a single death, the legislature would need to express a clear intent to treat the two crimes as two separate offenses. Houser, 474 So.2d at 1196-1197 (<HOLDING>). Since the advent of Houser, the legislature Holdings: 0: recognizing that dui manslaughter and vehicular homicide are two separate crimes neither being a lesser included offense of the other but holding that a single death cannot support convictions for both crimes 1: holding that vehicular homicide involving criminal negligence is not a crime of violence under begay 2: holding that for purposes of double jeopardy analysis firstdegree felony murder and aggravated manslaughter are degree variants or aggravated forms of the core offense of homicide 3: holding that under the particular facts alleged in the indictment vehicular homicide was a lesser offense included in the murder charge 4: holding that dwi manslaughter and vehicular homicide are different forms of the same offense


Input: Rolm from selling those parts to an ISO, and (4) Rolm forbid Rolm Resale from selling parts to an ISO. As for forbidding customers from reselling ordered parts, ISO II expressly found this conduct unilateral. See ISO II, 203 F.3d at 1324, 1329 (noting that Xerox employed a scheme insuring that parts were not resold or otherwise used in machines not owned by the entity ordering the part, but nonetheless finding that the scheme did not run afoul of Xerox’s unilateral right not to deal patented and copyrighted works). Likewise, a manufacturer imposing upon a distributor a policy circumscribing with whom that distributor may deal is not involved in a concerted action for purposes of antitrust law. See Tarrant Service Agency, Inc. v. American Standard, Inc., 12 F.3d 609, 617 (6th Cir.1993) (<HOLDING>), cert. denied, 512 U.S. 1221, 114 S.Ct. 2709, Holdings: 0: holding that xeroxs policy of prohibiting its majorityowned european affiliate from selling parts was within scope of intellectual property grant 1: holding that a general contractors right to forbid the work from being performed in a dangerous manner and the fact that he would have stopped the work and required protective equipment had he seen the employee of the independent contractor not using such equipment merely showed the possibility of control not actual control 2: holding that manufacturer of hvac equipment acted unilaterally where it prohibited independentlyowned and companyowned distributors of its parts from selling to independent repair companies 3: holding in a case of first impression that an insurers provision to repair or replace a vehicle or its parts with like kind and quality requires that the insurer pay for diminution in value 4: holding that a contract was implied where the special employer allowed the claimant to come onto its premises use its equipment and participate in its show under its direction


Input: by guards concerning the security status of prisoners are not statements designed to elicit an incriminating response. Id. Compton’s question was reasonable and relevant to maintaining order in the prison and protecting Kemp. Similarly, Kemp’s statements to Jackson were the product of ordinary, everyday interaction between guard and prisoner. Because Kemp was not interrogated by Compton and Jackson, the admission of his statements did not violate Miranda and his rights under art. 2, § 24 of the Arizona Constitution. Kemp’s assertion that his Sixth Amendment Massiah rights were violated fails for the same reason his Miranda claim fails: the guards did not seek to elicit incriminating evidence from him. Kuhlmann v. Wilson, 477 U.S. 436, 459, 106 S.Ct. 2616, 2630, 91 L.Ed.2d 364 (1986) (<HOLDING>). Kemp’s admissions therefore were properly Holdings: 0: holding that an interrogation occurs when there is express questioning or any words or actions on the part of the police other than those normally attendant to arrest and custody that the police should know are reasonably likely to elicit an incriminating response from the suspect 1: holding that merely because questioning was designed to produce incriminating responses took place at the police station and occurred only after the defendant was identified as a suspect did not trigger miranda 2: holding that a comment made by one police officer to another in the presence of the accused expressing concern that handicapped children might come across a shotgun is not a statement designed to elicit an incriminating response 3: recognizing routine booking question exception observing that the underlying rationale for the exception is that routine booking questions do not constitute interrogation because they do not normally elicit incriminating responses and holding that where questions regarding normally routine biographical information are designed to elicit incriminating information the questioning constitutes interrogation subject to the strictures of miranda   citations omitted 4: holding that the defendant must demonstrate that the police and their informant took some action beyond merely listening that was designed deliberately to elicit incriminating remarks


Input: 464 So.2d 1189, 1191 (Fla.1985), the subordinate factors in complex areas such as taxation should be left to the appropriate agency having expertise and flexibility. Otherwise, the legislature would be forced to remain in perpetual session and devote a large portion of its time to regulation. Id. In re Advisory Opinion, 509 So.2d at 311-12. In other words, subordinate functions like those at issue here “may be transferred by the legislature to permit administration of legislative policy by an agency with the expertise and flexibility needed to deal with complex and fluid conditions.” Microtel, 464 So.2d at 1191. Establishing the subject alternative cost recovery mechanisms is simply not a “fundamental legislative task” like the one at issue in Cross Key Waterways, 372 So.2d at 919 (<HOLDING>). In sum, we find that section 366.93 is not Holdings: 0: recognizing that state agencies which are independent of the state are citizens of the state 1: holding that when congress has implicitly delegated legislative authority to an agency a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency 2: holding that determining legislative intent is a question of law 3: holding that when there are conflicting expert reports an agencys determination is due deferenceespecially in areas of agency expertise 4: holding that the statutory criteria for designation of an area of critical state concern  are constitutionally defective because they reposit in an agency the fundamental legislative task of determining which geo graphic areas and resources are in greatest need of protection


Input: Twin City merely asserts that “Sun’s proposed lower level depositions will reveal what Twin City already knows — Sun’s executives played an integral and unique role in the settlement process, and their depositions cannot be avoided.” [DE 210, p. 7]. Twin City also fails to carry its burden of showing that the information it seeks to ob tain through deposing Leder and Krouse cannot be obtained from any other source. In certain cases, even when a high-ranking official of a corporation does have direct knowledge of the facts, it is inappropriate to compel his or her deposition without first deposing lesser-ranking employees who have more direct knowledge of the facts at issue. Stelor Productions, Inc. v. Google, Inc., No. 05-80387-CIV, 2008 WL 4218107, at *4 (S.D.Fla. Sept. 15, 2008) (<HOLDING>). Twin City has not yet deposed any other Holdings: 0: holding that the right of access to government information or sources of information within the governments control is not mandated by the first or fourteenth amendments 1: holding that although plaintiff claimed that googles two top executives did have direct unique and personal knowledge of the facts at issue it made sense to require plaintiff to seek the information from other sources first 2: holding that the plaintiff was precluded from raising the issue for the first time on appeal 3: holding that the failure of an affidavit to be made on personal knowledge or specify how the affiant had personal knowledge of the facts asserted is a defect in substance and need not be objected to at trial to be a ground for reversal 4: holding that a plaintiff does not have to possess actual knowledge of all the relevant facts in order for the cause of action to accrue


Input: which concerns use of rights-of-way for utilities, allows a municipality to impose an occupancy fee on the use of its rights-of-way. Reasoning that the legislature had not given authority to a county to impose such a fee, the trial court concluded that Broward County lacked such authority. It also found that under state law, the county is preempted from imposing such a fee. Upon finding the county’s annual occupancy fee invalid, the trial court declared the entire ordinance void and unenforceable. Broward County argues that because it is a charter county it is vested with municipal powers. It thus has authority to charge telecommunications companies for use of their rights-of-way and such authority was not preempted by state law. We agree. See Palm Beach County, 819 So.2d at 877-78 (<HOLDING>). Based on the foregoing, we reverse the trial Holdings: 0: holding that state law fraud on the fda claims were impliedly preempted by the food drug and cosmetic act 1: holding the state law claims were not preempted 2: holding that the plaintiffs state law claims are preempted by federal law 3: holding that a charter county may assess a fee pursuant to florida statute section 3374013 and is not expressly or impliedly preempted by federal or state law 4: recognizing that section 76872 is substantive law even though the state statute was preempted by federal civil rights law


Input: brief and the appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value. See Fed. R.App. P. 32.1; 10th Cir. R. 32.1. 1 . We ordinarily lack jurisdiction to review the dismissal of a complaint without prejudice. But we have jurisdiction here because the district court dismissed the entire action, not just the complaint. See B. Willis, C.P.A., Inc. v. BNSF Ry. Corp., 531 F.3d 1282, 1296 n. 15 (10th Cir.2008) Holdings: 0: holding dismissal for failure to comply with rule 8 was dismissal of entire action which was appealable final order 1: holding dismissal without prejudice to refile a facially sufficient motion is a nonappealable nonfinal order 2: holding that plaintiffs were entitled to vacate final order of dismissal as void when they did not receive the motion for dismissal or notice of the hearing on the order until after the dismissal was entered 3: holding that an order that determines only the right to attorneys fees without setting the amount is a nonappealable nonfinal order 4: holding that the dismissal of a complaint ordinarily is a nonfinal nonappealable order since amendment generally is available while dismissal of the entire action ordinarily is final


Input: date of injury, employees who continue to be exposed to hazardous occupational noise are not obligated to give notice prior to filing a claim petition, while employees who cease to be exposed must give notice within 120 days of cessation of the exposure. While Crompton argues that this result is without foundation in reason or law, the Court notes that Socha II is a plurality opinion with limited prece-dential value as only three of six participating justices agreed that Section 306(c)(8)(ix) should determine the date of injury for purposes of Section 311’s notice requirement. In Socha I, however, this Court specifically rejected the argument that Section 306(c)(8)(ix) should determine the date of injury in hearing loss cases for purposes of the notice requirements. See Socha I (<HOLDING>). It is noteworthy that although a majority of Holdings: 0: holding that the states personal injury statutes of limitation should be applied for claims under section 1983 1: holding that alien need not receive actual notice for due process requirements to be satisfied 2: holding that the requirements of title iii apply and must be satisfied 3: holding that the date of death is relevant date of inquiry for the applicability of section 541a5a 4: holding that definition of date of injury in section 306c8ix is intended to be utilized for calculating benefits not for determining whether section 311 notice requirements were satisfied


Input: the stop under the reasonableness standard. Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996). Under Terry v. Ohio, the determination of whether an investigative detention is reasonable is a two-pronged inquiry: whether the officer’s action was justified at its inception and whether it was reasonably related in scope to the circumstances which justified the interference in the first place. 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). This determination is a factual one and is made and reviewed by considering the totality of the circumstances existing throughout the detention. Loesch v. State, 958 S.W.2d 830, 832 (Tex.Crim.App.1997); 523789, at *1, 4 (TexApp.-Austin Dec. 6, 2006, no pet.) (mem.op.) (not designated for publication) (<HOLDING>). In the Hartman case, an officer stopped Holdings: 0: holding fiveto fifteenminute delay in dwi investigation primarily so that another officer could bring a video camera to the scene was reasonable because delay furthered legitimate law enforcement purposes 1: holding that delay while awaiting arrival of dwi enforcement officer even though officer who initiated the stop was qualified to perform dwi investigation was for legitimate law enforcement purposes because dwi officer brought greater expertise to scene and could complete dwi investigation more rapidly 2: holding approximately twentyminute delay in dwi investigation primarily to await arrival of dwi enforcement officer was reasonable because delay furthered reasonable law enforcement purposes 3: holding delay in dwi investigation primarily for arrival of rookie officer for purpose of training was reasonable because delay furthered legitimate law enforcement purposes 4: holding that delay while awaiting arrival of dwi enforcement officer was for legitimate law enforcement purposes because dwi officer was more experienced and could complete dwi investigation faster


Input: 445 (2007). Even assuming the District Court erred procedurally when it applied the downward departure to the 262- to 327-month range instead of to the statutory maximum, see U.S.S.G. § 5G1.1 & cmt., its arguably erroneous calculation would be “precisely the kind of ‘garden variety’ claim of error contemplated by [an] appellate waiver,” United States v. Castro, 704 F.3d 125, 141-42 (3d Cir.2013) (quotation marks omitted). See United States v. Corso, 549 F.3d 921, 931 (3d Cir.2008) (“[A]llow[ing] alleged errors in computing a defendant’s sentence to render a waiver unlawful would nullify the waiver based on the very sort of claim it was intended to waive.” (second alteration in original) (quotation marks omitted)); see also United States v. Price, 558 F.3d 270, 283-84 (3d Cir.2009) (<HOLDING>); United States v. Mabry, 536 F.3d 231, 243 (3d Holdings: 0: holding we would find an abuse of discretion if the district court had granted the downward adjustment 1: holding that a defendant who denied involvement of codefendant during codefendants trial had intentionally misled law enforcement officers and should not receive a downward adjustment for acceptance of responsibility 2: holding that adjustment for acceptance of responsibility is appropriate where the district court rebuffed a defendants attempts to plead guilty 3: holding that a defendant should not receive an acceptance of responsibility adjustment when there is contradicting obstructive conduct 4: holding that there was no miscarriage of justice where the defendant claimed that the government abused its discretion by refusing to request a threelevel downward adjustment for acceptance of responsibility


Input: officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant a finding that a breach of the peace is imminent or the public safety is threatened.” Ecker, 311 So.2d at 109 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968)). See also Williams v. State, 674 So.2d 885 (Fla. 2d DCA 1996). “Moreover, failure to provide identification is not an element of the charged offense. While the statute gives the suspect an opportunity to explain his presence and conduct, the criminal conduct must be completed prior to any action by police officers.” E.B. v. State, 537 So.2d 148 (Fla. 2d DCA 1989) (citations omitted). See also R.D.W. v. State, 659 So.2d 1193 (Fla. 2d DCA 1995)(<HOLDING>). In the present case, assuming that sitting Holdings: 0: holding that a domestic relationship must exist as part of the facts giving rise to the predicate offense but it need not be an element of the prior offense 1: holding any fact other than prior conviction that increases statutory mandatory minimum is element of offense that must be submitted to jury and found beyond reasonable doubt 2: holding that in determining whether a prior conviction is a violent felony a court generally must look only to the fact of conviction and the statutory definition of the prior offense 3: holding that counsel was not ineffective in failing to request a charge on the lesserincluded offense when the evidence showed either the commission of the completed offense as charged or the commission of no offense such that the defendant was not entitled to a charge on the lesser offense 4: holding that offense of loitering and prowling must be completed prior to any police action


Input: events of the distant past. Barker, 407 U.S. at 532 (“Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown”). The Supreme Court, however, has stressed that “if witnesses die or disappear during a delay, the prejudice is obvious.” Barker, 407 U.S. at 532. Francis has not argued, nor has he suggested, that his defense has been prejudiced in any way. There is no evidence any of his potential witnesses died, suffered memory loss, or are otherwise unavailable to testify. Accordingly, the Court finds that Francis has failed to demonstrate that the delay in this case impaired his ability to defend himself in this criminal proceeding. See United States v. Cain, 671 F.3d 271, 297 (2d Cir. 2012) (opining that preju (8th Cir. 2009) (<HOLDING>). The delay between Francis’ arrest and the Holdings: 0: holding that a twoyear postindictment delay presumptively prejudicial 1: holding that a sixyear delay caused by negligence weighed heavily against the government 2: holding threeyear delay without mitigating circumstances was unreasonable 3: holding that the delay is presumptively prejudicial does not necessarily mean the first factor weighs against the state but requires further consideration of the extent of the delay beyond this period 4: holding threeyear delay between indictment and arraignment caused by the serious negligence of the government presumptively prejudicial


Input: of the suit clearly manifest the proper alignment of the dispute”). 20 . Put another way, the requisite antagonism between the stockholder and the management of a corporation is present "where the dominant officers and directors are guilty of fraud or misdeeds.” Smith, 354 U.S. at 95, 77 S.Ct. 1112. 21 . Specifically, the Separation Agreement provides, in pertinent part, that "Wife grants Husband an irrevocable proxy for all of her shares in the Gyms which proxy shall provide him with full irrevocable management authority-” 22 . In support of her position, Hildebrand argues unpersuasively that the corporation was deadlocked at the time the complaint was filed, and thus, that the requisite antagonism is not present. See, e.g., Duffey v. Wheeler, 820 F.2d 1161, 1163 (11th Cir.1987) (<HOLDING>); Gibson, 780 F.Supp. at 375 (recognizing that Holdings: 0: recognizing that when the corporations management or its shareholders are deadlocked with respect to a particular issue courts have realigned such corporations as party plaintiffs 1: holding that a corporations principal place of business for determining diversity jurisdiction under 28 usc  1332c1 is the nerve center meaning the corporations headquarters or the place where a corporations officers direct control and coordinate the corporations activities 2: holding that while a state statute granted a foreign corporation the rights and privileges enjoyed by domestic corporations it did not transform such corporations into domestic or resident corporations 3: recognizing a similar exception to its rule with respect to corporations 4: recognizing a cause of action against a corporations directors brought by a creditor for the fraudulent misrepresentation of the corporations financial condition


Input: even date, this Court grants the Plaintiffs Motion for Summary Judgment. 1 . 11 U.S.C. § 523(a)(6) reads in relevant part: "(a) A discharge under section 727 ... of this title does not discharge an individual debtor from any debt- ... (6) for willful and malicious injury by the debtor to ano his injuries. The Debtor states the amount of the Claim representing lost wages and medical bills to be approximately $6,352.76. At the hearing, Debtor’s counsel conceded that the Claim included about $2,000.00 in damages the Act would not cover, namely Gomes’ pain and suffering. 6 . 28 U.S.C. § 1738 provides in pertinent part that judicial "proceedings of any court of any ... State ... shall have the same full faith and credit in every court within the United State 131, 136 (9th Cir. BAP 2000); (<HOLDING>); Harry Ritchie's Jewelers, Inc. v. Chlebowski Holdings: 0: holding that where a defendant acknowledged awareness of the consequences of his plea agreement counsels erroneous explanation of the consequences was not prejudicial 1: holding not only that court had no obligation to predict consequences but also that court could not have predicted consequences 2: holding that an attorney is required to advise a defendant of the direct consequences of a plea and will not be found ineffective for failing to advise of collateral consequences of the plea 3: recognizing that any witness has the right to refuse to be interviewed if he so desires and is not under or subject to legal process 4: holding that unless the actor desires to cause consequences of his act or  believes that the consequences are substantially certain to result from it  he has not committed a wilful and malicious injury as defined under  523a6 citing to restatement second of torts  8a 1964 internal citations omitted


Input: whether a claimant’s injury arose out of employment). An injury that occurs after the employment relationship ends, however, is generally not compensable under the NUA. See Law Offices of Barry Levinson v. Milko, 124 Nev. 355, 184 P.3d 378 (2008). Other courts have recognized exceptions to this general rule. See, e.g., Peterson v. Moran, 245 P.2d 540 (Cal. Ct. App. 1952) (reversing a tort judgment for an employee who was assaulted as he left the workplace immediately after being discharged); Ardoin v. Cleco Power, L.L.C., 38 So. 3d 264, 266 (La. 2010) (providing that an employee is within the course and scope of employment if his “injury occurs during the reasonable period of time for winding up his affairs”); Zygmuntowicz v. American Steel & Wire Co., 134 N.E. 385, 386-87 (Mass. 1922) (<HOLDING>); Anderson v. Hotel Cataract, 17 N.W.2d 913, Holdings: 0: holding intentional assault by coworker to be outside the course and scope of employment 1: holding that a sexual assault on a female employee was of a personal nature and not directed against the employee as part of the employment relationship 2: holding that an assault that occurred immediately after the employee was discharged was in the course of the employment 3: holding that an obstructionofjustice enhancement was appropriate based on the defendants assault on a witness after trial and rejecting the defendants argument that because the assault occurred after trial it could not impact the prosecution of his case 4: holding that injury incurred when employee returned to retrieve paycheck six days after employment had been terminated occurred in course of employment


Input: the Legislature when that intent is clear. State v. D.A., supra, 191 N.J. at 164, 923 A.2d 217. By holding that Chapter 91’s appeal-preclusion provision does not apply to non-income-producing properties, we give effect to the statute’s clear language. We recognize, however, that the Legislature may hereafter amend the statute to provide practical consequences to non-responding owners of non-income-producing properties. Finally, we note that a property owner, when failing to respond to a Chapter 91 request, runs the risk that the property will ultimately be found to be income-producing. In such a case, the taxpayer’s appeal would properly be limited under Ocean Pines, supra, 112 N.J. at 11, 547 A.2d 691. See Alfred Conhagen, Inc. v. S. Plainfield Boro., 16 N.J. Tax 470, 474 (App.Div.) (<HOLDING>), certif. denied, 151 N.J. 74, 697 A.2d 546 Holdings: 0: holding that plaintiff was limited to ocean pines reasonableness hearing when plaintiffs property had formerly been incomeproducing and plaintiff had failed to respond to a chapter 91 request notifying the assessor of the change in his propertys status 1: holding so where the plaintiff alleged that the defendant had colluded to claim falsely that the plaintiffs physician had informed the claims adjuster that the plaintiff had been released to work and where the plaintiff was later discharged from employment and denied workers compensation benefits 2: holding that the ada plaintiff was unable to perform essential functions of job when the plaintiffs psychotherapist had told the employer that the plaintiff was unable to work in any position when the plaintiff did not disagree with that point and when the plaintiff in response to a request for admission conceded that she was no longer able to work 3: holding that because plaintiff could not establish which portions of the tapes had been played in court plaintiff failed to meet his burden 4: holding that plaintiff was not entitled to a presumption of nominal damages when she had failed to request them


Input: that it could not be held liable in negligence because plaintiff was seeking solely economic damages. Defendant argued that the Moorman doctrine, as articulated in Moorman Manufacturing Co. v. National Tank Co., 91 Ill. 2d 69 (1982), precludes recovery of such economic damages under a tort theory. Plaintiff responded that the implied warranty of habitability has never been limited to only builder-vendors, and that the policies underlying the warranty apply equally well to builders. Plaintiff further argued that the “sudden or dangerous occurrence” exception to the Moorman doctrine applies in this case because the water damage to the building resulted from the September 2008 storms, relying on Mars, Inc. v. Heritage Builders of Effingham, Inc., 327 Ill. App. 3d 346 (4th Dist. 2002) (<HOLDING>). The trial court granted defendant’s motion to Holdings: 0: holding that there was no coverage because there was no occurrence within the meaning of the policy because defective workmanship does not constitute an accident or an occurrence under a commercial general liability policy 1: holding that a single thunderstorm was a sudden and dangerous occurrence 2: holding the payment of benefits at the occurrence of a single event an indicium of lack of an administrative scheme 3: holding that insurer who after being told of occurrence contacted insureds attorney for information should have issued reservation of rights letter within a reasonable time after  it was informed of the occurrence 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: and parliament of England in lands under tide waters, and that the owner of land bounded by a navigable river within the ebb and flow of the tide had no private title or right in the shore below high-water mark ...” Shively v. Bowlby, 152 U.S. 1, 20-21, 14 S.Ct. 548, 38 L.Ed. 331 (1894). As stated above, Plaintiff admitted at trial that the State did not grant any rights or property to any previous owner of the 175 Ellis Street property. Furthermore, Plaintiffs own expert witness testified that errors in deeds are common, and that some of Plaintiffs own deeds contained errors. In light of the fact that no external proof exists that the foreshore was granted to the Plaintiff, I find that title to the 175 Ellis Street foreshore remains in the State. C. Proof of Ownership of the Fo 1895) (<HOLDING>); see also Evans v. City of Johnstown, 96 Holdings: 0: recognizing private right of action 1: holding that the involvement of the police in executing the courtordered search without more does not convert the private defendants abuse of state law into conduct attributable to the state for purposes of  1983 liability and because yanaki and moss allege nothing more than private misuse of state laws their compliant fails to satisfy the first part of the color of law test 2: holding that grants from parliament and the crown for purely private purposes are ineffective 3: holding that the conclusion is inevitable that the parliament and the crown together were not competent to grant to a private corporation for private purposes the seacoast around the island below the shore line without violating established principles of law 4: holding that the government is liable under the ftca in the same respect as a private person under the law of the place where the act occurred


Input: courts applying Johnson provide some direction. For instance, the United States Court of Appeals for the Sixth Cireuit held that an officer's single question about the possession of firearms or drugs "did not render the traffic stop [for a minor infraction] an unreasonable seizure under the Fourth Amendment." United States v. Everett, 601 F.3d 484, 496 (6th Cir.2010). The Court reasoned that "[It cannot be said that this single question ... constituted a definitive abandonment of the prosecution of the traffic stop in favor of a sustained investigation into drug or firearm offenses. Nor did this single question, taking [only] seconds, constitute the bulk of the interaction...." Id. at 495 (footnote omitted); see also United States v. Dixie, 382 Fed.Appx. 517, 519-20 (7th Cir.2010) (<HOLDING>). 132 Similarly, the United States Court of Holdings: 0: holding that the delay of approximately two minutes that occurred prior to the police officer developing reasonable suspicion to further investigate the defendants identity was de minimis and did not unreasonably extend the duration of the traffic stop 1: holding that it was impermissible for an officer to question a driver about matters unrelated to the traffic stop after the officer had fulfilled the purpose of the stop by issuing a written warning to the driver 2: holding that defendant was unreasonably seized under fourth amendment when officer detained him to ask questions unrelated in scope to the reasons that justified the initial traffic stop 3: holding that a threeminute delay between the completion of a traffic citation and the retrieval of a drug dog did not impermissibly extend the detention at a traffic stop 4: holding that an officers single unrelated question regarding weapons that took only seconds did not unreasonably extend traffic stop


Input: and remanded for resentencing on his remaining convictions. See United States v. Argento, No. 95-50337, 1996 WL 471358 (9th Cir. Aug. 19, 1996) (unpublished memorandum disposition). Subsequently, Argento filed this § 2255 motion, contending that he received constitutionally deficient counsel at re-sentencing because counsel failed to request a downward departure based on his post-sentence rehabilitation. It appears that despite United States v. Gomez-Padilla, 972 F.2d 284 (9th Cir.1992), post-offense rehabilitation could arguably have formed a permissible basis for a downward departure at the time of Argento’s re-sentencing in April 1997 because it was not a prohibited factor under the Sentencing Guidelines. See Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) (<HOLDING>). On the record before us, therefore, we are Holdings: 0: holding that despite the defendants status as the sole supporter of his wife and three children the district court erred when it gave a downward departure for familial obligations because departure downward in sentencing is not justified for family reasons except in unusual circumstances 1: holding same rule applied and required resentencing within the guidelines when trial judge failed to supply written reasons for downward departure 2: holding that only factors specifically prohibited by the sentencing guidelines cannot form the basis for a downward departure 3: holding that a district courts statement that there was no basis for a downward departure did not indicate that it believed it lacked authority 4: holding that defendants diminished capacity while grounds for departure from the guidelines sentencing range is not grounds for departure below the minimum sentence set by congress


Input: Association.... ” (Doc. 18-12 at 20.) The AAA rules provide that “[pjarties to an arbitration under these rules shall be deemed to have consented that judgment upon the arbitration award may be entered in any federal or state court having jurisdiction thereof.” R-48(c), AAA Commercial Arbitration Rules & Mediation Procedures (available at www.adr.org) (last visited April 30, 2013). Based on these provisions, the parties agreed that — upon a timely application — a judgment of the court can be entered on the November 16, 2012 arbitration award. Defendant has timely applied. Unless plaintiff demonstrates that the award should be vacated, the court must affirm the award and enter judgment accordingly. 9 U.S.C. § 9; see also Youngs v. Am. Nutrition, Inc., 537 F.3d 1135, 1141 (10th Cir.2008) (<HOLDING>). Plaintiff argues that the award should be Holdings: 0: holding that the burden of proving a violation of the idea lies on the party seeking relief during the administrative process 1: holding merely that the evidence was sufficient to support the award of attorneys fees 2: holding that the burden rests upon the party seeking benefits to prove the injury sustained was the result of an accident arising out of and in the course of employment and the rule of liberal construction is not a substitute for the claimants burden of establishing his claim by a preponderance of the evidence 3: holding that the party seeking to vacate the award has the burden of providing the court with the evidence to support its arguments 4: holding the appellate court must presume adequate evidence to support the award when appellant sought to vacate the award based on gross mistake with no transcript of the arbitration proceedings


Input: Solanki does not challenge this aspect of the IJ’s ruling; therefore, we do not address it. 5 . Because we will deny the petition on other grounds, we assume without deciding that Solanki’s injuries resulting from the robberies, along with the threat to his life, were sufficiently severe to constitute persecution. However, we note that this Court has previously held that "[s]imple robbery, in isolation, while unfortunate and troubling, does not seem to [constitute persecution].... [T]wo isolated criminal acts, perpetrated by unknown assailants, which resulted only in the theft of some personal property and a minor injury, is not sufficiently severe to be considered persecution.” Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir.2005); see also DeSouza v. INS, 999 F.2d 1156, 1159 (7th Cir.1993)(<HOLDING>). 6 . We further note that even if Solanki had Holdings: 0: holding that the robberies of patel a kenyan citizen of indian descent by kenyans of african descent were simply indicative of resentment towards patel due to his wealth as the immigration judge found the incidents of robbery are attributable to class tensions and patels affluence rather than to persecution 1: holding that plaintiff who alleged discrimination on the basis of his mexicanamerican descent had stated a valid claim under section 1981 2: holding that to constitute persecution harm must be more than harassment 3: holding that private racial discrimination and harassment of a kenyan citizen of indian descent does not establish persecution 4: holding by implication that plaintiff a brownskinned person of east indian descent had stated a proper claim under section 1981


Input: findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704. 7 . Burley was awarded WC benefits pursuant to section 306. (Burley's brief at 8.) 8 . The word fault, as used in this section, “connotes an act to which blame, censure, impropriety, shortcoming or culpability attaches. To find 'fault,' there must be some finding by the [UC] referee or Unemployment Compensation Board of Review concerning claimant’s state of mind.” Teitell v. Unemployment Compensation Board of Review, 118 Pa.Cmwlth. 406, 546 A.2d 706, 710 (1988) (citations omitted). 9 . Although this issue is not before us, it is probable that Burley is not at fault. See Celia v. Unemployment Compensation Board of Review, 34 Pa.Cmwlth. 532, 383 A.2d 1318 (1978) (<HOLDING>). Thus, Burley would not be hable to repay the Holdings: 0: holding that a claimants failure to list an impairment either in her application for disability benefits or through her testimony disposes of the claim because the alj was under no obligation to investigate a claim not presented at the time of the application for benefits and not offered at the hearing as a basis for disability 1: holding that the mere application for other benefits is not fault 2: holding that disability benefits are not retirementtype benefits 3: holding plaintiff not at fault in accepting a lump sum social security benefit a second time observing that the agencys fault finding might be appropriate if plaintiff were an accountant 4: holding pursuant to former title 39 that termination for fault did not constitute grounds for discontinuing benefits


Input: See Bowden v. State, 588 So.2d 225, 228 (Fla.1991) (stating that “pattern of striking black venire members need not be demonstrated before a trial court’s duty to conduct an inquiry into the State’s reasons for the excusal of the minority member is triggered”). The failure to conduct a Neil inquiry is reversible error requiring remand for a new trial. See Johans, 613 So.2d at 1322. Thus, we reverse Vasquez’s convictions for grand theft and obtaining a vehicle with intent to defraud and remand for a new trial. We also agree with Vasquez’s argument that concurrent convictions are prohibited for grand theft of the Tahoe and obtaining the Tahoe with intent to defraud based on the same transaction. See State v. Thompson, 607 So.2d 422 (Fla.1992), adopting, 585 So.2d 492 (Fla. 5th DCA1991) (<HOLDING>); State v. McDonald, 690 So.2d 1317 (Fla. 2d Holdings: 0: holding that mens rea required for possession of a controlled substance is knowledge that defendant possessed a controlled substance 1: holding that the legislature amended section 8120142d florida statutes now renumbered as section 8120143c in 1992 to omit habitual offender penalties for the crime of felony petit theft 2: holding that section 893131 of the florida statutes is  a controlled substance offense under ussg  4b12b 3: holding that section 7750214b2 florida statutes 1993 prohibited conviction for fraud by person authorized to provide goods or services and grand theft based on the same facts 4: holding that section 7750214b florida statutes 1989 barred concurrent prosecution for fraudulent sale of a counterfeit controlled substance and felony petit theft based on the same transaction


Input: decisionmakers from treating differently persons who are in all relevant respects alike.’ ”) (emphasis added) (quoting Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992)), cert. denied, - U.S. -, 118 S.Ct. 1812, 140 L.Ed.2d 950 (1998). Second, even assuming that the differences between New York City’s school system and those in other jurisdictions were immaterial, plaintiffs have failed to produce any evidence to show that the legislature’s disparate treatment lacked a rational basis. The state legislature is presumed to act constitutionally, and it is a plaintiffs burden to prove otherwise. See Butts v. City of New York, 779 F.2d 141, 147 (2d Cir.1985); cf. New York State Club Ass’n v. City of New York, 487 U.S. 1, 11, 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988) (<HOLDING>) (quoting Members of City Council of Los Holdings: 0: holding that a plaintiff must show that a statute  could never be applied in a valid manner  to prevail in a facial attack on its validity 1: holding that an alien must show error and substantial prejudice in order to prevail on a due process claim 2: holding that to prevail under  2254 a petitioner must show that the state court applied strickland to the facts of his case in an objectively unreasonable manner 3: holding petitioner must show prejudice to prevail on due process claim 4: holding that plaintiff could not prevail as a thirdparty beneficiary where contract was not valid


Input: addition, the City’s zoning ordinance does not affect existing adult use establishments, as Plaintiffs current business is not considered an adult use and Le Sex Shoppe, the only present adult business in the City, is not required to relocate. Thus, the City’s ordinance is different from those invalidated because they fail to provide a reasonable opportunity for adult businesses to operate. See Young v. American Mini Theatres, Inc., 427 U.S. 50, 71 n. 35, 96 S.Ct. 2440, 2453 n. 35, 49 L.Ed.2d 310 (1976) (upholding adult business zoning ordinances in part because the district court found that ‘“[t]he Ordinances do not affect the operation of existing establishments but only the location of new ones.’ ”); Walnut Properties, Inc. v. City of Whittier, 861 F.2d 1102, 1109-10 (9th Cir.1988) (<HOLDING>); Alexander v. City of Minneapolis, 698 F.2d Holdings: 0: holding that the plaintiffs due process challenge to a city ordinance was barred because it was inextricably intertwined with a statecourt ruling that plaintiff lacked standing to challenge the ordinance 1: holding city ordinance preempted by state law because ordinance prohibited act specifically allowed under state law 2: holding certain plaintiffs did not have standing to attack ordinance governing sexually oriented businesses where the record did not reveal that any one of these plaintiffs was subject to the ordinance even though the city attorney conceded at oral argument before the supreme court that one or two of them had had their licenses denied under the ordinance 3: holding that ordinance concentrating adult businesses in one area with 1000 foot separation requirement violated first amendment because ordinance would force the only existing adult theater in the city to close at its present location with no definite prospect of a place to relocate 4: holding that a city could not apply its rent control ordinance in conflict with tribal ordinance to nonindians on reservation trust land


Input: to a wholesaler/distributor who then packs them with goods; 4. sold in an environment of sale that features the goods packed in the jar and not the jar itself; 5. used to commercially convey foodstuffs, beverages, oils, meat extracts, etc.; 6. capable of being used in the hot packing process; and 7. recognized in the trade as used primarily to pack and convey goods to a consumer who then discards the container after this initial use. T.D. 96-7, 30 Customs Bulletin at 32-33, 61 Fed. Reg. at 224. The Government urges that HQRL 962378 “complied with the standards set forth” in T.D. 96-7, and is therefore entitled to deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944) (Def.’s Post Trial Mem. at 10); see Rocknel Fastener, Inc. v. United States, 267 F.3d 1354, 1357 (Fed. Cir. 2001) (<HOLDING>). In Rocknel, the Court of Appeals for the Holdings: 0: holding that the directors litigating position was not entitled to chevron deference but did warrant skidmore respect on certain issues where the arguments were persuasive and the agencys manual and practice had for some time consistently advanced a reasonable position 1: holding skidmore deference is appropriate where customs classification decision revealed customs thorough analysis 2: holding that the courts conclusion that transfer was appropriate is to be accorded great deference 3: holding that deference to an agency interpretation is not appropriate where a statute is administered by more than one agency 4: holding that while legislative findings are due deference that cannot foreclose a courts constitutional analysis


Input: in the military). Finally, the Defendant cites United States v. Stromick, 710 F.Supp. 613 (D.Md.1989), and Schwab, 724 F.Supp. at 511, in support of his Application for Expungement. In Stromick, the court recognized that a petitioner whose conviction had been set aside might be entitled to ex-pungement if he could demonstrate the denial of “specific job opportunities.” Stromick, 710 F.Supp. at 614. Subsequently, in Schiuab, the court cited Strom-ick for the proposition that the denial of employment opportunities may warrant expungement. As the government properly notes, however, the Schwab court’s reliance upon Stromick appears to be misplaced, because the conviction at issue in Schwab had not been set aside. See United States v. Gillock, 771 F.Supp. 904, 908 (W.D.Tenn.1991) (<HOLDING>). For these reasons, the Court finds the Holdings: 0: recognizing fundamental distinction between firstparty and thirdparty situations and imposing fiduciary duty upon insurer to protect its insureds interest in thirdparty situations 1: recognizing the distinction between stromick and schwab and also noting that the examples of potential grounds for expungement stated in stromick are theoretical examples of situations that were never applied 2: recognizing this distinction 3: recognizing distinction between tolling and estoppel 4: holding the regulations enumerated examples are nonexclusive and merely illustrative of situations where redcircling is appropriate


Input: strain, or terror in anticipation of being shot as evidenced by her efforts to force the truck off the road and run from Kopsho. The fact that the ag-gravator was not ultimately proven to the jury beyond a reasonable doubt does not mean there was insufficient evidence to allow the jury to consider the factor. Henry v. State, 649 So.2d 1366, 1369 (Fla.1994) (citing Bowden v. State, 588 So.2d 225, 231 (Fla.1991)). The trial judge did not err in instructing the jury on HAC. Proportionality To ensure uniformity of sentencing in death pen olding death penalty proportionate after finding the HAC aggravating factor and one statutory mitigator of significant weight, no significant history of prior criminal conduct, and eight nonstatu-tory mitigating factors); Zakrzewski, 717 So.2d 488 (<HOLDING>); Lemon v. State, 456 So.2d 885, 888 (Fla.1984) Holdings: 0: holding death sentence proportionate where defendant murdered wife and children and trial court found three aggravators previous capital felony ccp and hac and two statutory mitigators extreme disturbance and no prior criminal history 1: holding the death sentence proportional for the firstdegree murder conviction where the aggravators included prior violent felony conviction and hac 2: holding death penalty proportionate where the trial court found ccp and three other aggravators and twentynine nonstatutory mitigators 3: holding death sentence proportionate where defendant murdered exgirlfriends daughter and court upheld four aggravating circumstances ccp hac murder committed while engaged in a kidnapping and previous capital felony and four nonstatutory mitigating circumstances mental illness at time of crime good father would die in prison if given life sentence and no disciplinary problems in prison 4: holding the death sentence proportional for the sexual battery beating and strangulation of victim where there were three statutory aggravators hac pecuniary gain and sexual battery and both statutory mental mitigators


Input: concerning liability and not be required to incur all of the expenses of litigation to conclusion before being entitled to seek subrogation. To hold otherwise would be to discourage settlements and to promote litigation, a concept which should be discouraged by the courts. We believe it is not inappropriate to hold that one who is sued for alleged negligence and who, in an effort to save his property, including the expenditure of attorney’s fees, enters into a reasonable settlement is not a volunteer and is entitled to seek reimbursement under the doctrine of equitable subrogation. 588 So.2d 909, 918 (Fla. 3d DCA 1989) (quoting Rawson v. City of Omaha, 212 Neb. 159, 322 N.W.2d 381, 385 (1982)); see also Suntrust Bank v. Riverside Nat’l Bank, 792 So.2d 1222, 1225 (Fla. 4th DCA 2001) (<HOLDING>). To argue that it should not be barred from Holdings: 0: holding that a grant of equitable relief requires diligence by the claimant 1: recognizing equitable subrogation 2: holding that under the doctrine of equitable subrogation equity will grant relief where a mortgage is satisfied by mistake and no rights of third parties have intervened if the mistaken action was reasonable 3: holding the doctrine applied in a case of mistake 4: recognizing the equitable maxim that once equity has jurisdiction it will grant complete relief


Input: for example, the plaintiffs’ property had been subjected to frequent overflights by B-36 jets from a nearby military installation for several years. The plaintiffs conceded that those flights substantially interfered with the use and enjoyment of their property, and also conceded that any takings claim based on those flights was thus barred under the six-year statute of limitations. The plaintiffs further argued, however, that the introduction of B-52s and KC-135s on the base, and their frequent low-altitude flights over the property, resulted in a second taking. The Court of Claims agreed, holding that overflights by the larger and substantially louder B-52s and KC-135s rendered the plaintiffs’ property uninhabitable. See also Branning v. United States, 654 F.2d 88, 101 (Ct.Cl.1981) (<HOLDING>); Avery v. United States, 330 F.2d 640, 642 Holdings: 0: holding that the introduction of new aircraft and them use for field mirror landing practice resulted in the taking of a second avigation easement 1: holding that the introduction of larger heavier noisier aircraft can constitute a fifth amendment taking of an additional easement even though the new aircraft do not violate the boundaries of the initial easement 2: recognizing that an easement may entitle the easement owner to do acts which were not for the easement would constitute a nuisance 3: holding that one who possesses deeded easement need not use the easement to maintain his title and easement cannot be extinguished from nonuser alone 4: holding that an easement agreement and an unrecorded easement plan created an easement


Input: with the standard of care in order to be granted summary judgment, they have met that burden controlling. The defendants put on evidence from a number of experienced biking participants that this race was carefully run in accordance with the standard of care they have come to expect in mountain-bike races. Once the testimony of plaintiffs’ expert Sean Collinsworth is excluded, as we hold later was appropriate, plaintiffs put on no conflicting evidence from any witness qualified to articulate a proper standard of care for a mountain bike race. Further, under Utah law, it would probably be unnecessaiy for defendants to present expert testimony to establish compliance with the standard of care in this case. Compare Collins v. Utah State Dev. Ctr., 992 P.2d 492, 494-95 (Utah Ct.App.1999) (<HOLDING>), and Schreiter v. Wasatch Manor, Inc., 871 Holdings: 0: holding that expert testimony was not necessary in case involving claim that a center working with the developmentally disabled was negligent for allowing a resident to ride a swing without any safety devices designed to ensure that she would not fall off 1: holding that the admission of expert testimony was prejudicial where the testimony was pervasive 2: holding that expert testimony is unnecessary where the case is not a case in which lay jurors would be unable to grasp the issues without expert assistance 3: holding that expert testimony was not necessary in a case involving allegations that a senior living center was negligent for failing to install a fire sprinkler system 4: holding that plaintiff was not required to produce expert testimony to establish a claim that the vessels lack of railings or other safety devices rendered it unseaworthy


Input: child where the “parent has voluntarily permitted the child to remain continuously in the custody of others in their home, and has,taken little interest in it, thereby substituting such others in his own place, so that they stand in loco parentis to the child, and continuing this condition of affairs for so long a time that the love and affection of the child and the foster parents have become mutually engaged, to the extent that a severance of this relationship would tear the heart of the child, and mar his happiness”). On several occasions, the United States Supreme Court has held that a state law inadequately protected a parent’s due-process interest in the companionship, custody, care, and control of his child. See, e.g., Santosky v. Kramer, 455 U.S. 745, 71 L. Ed. 2d 599 (1982) (<HOLDING>); Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. Holdings: 0: holding that due process allows parental rights to be terminated only upon clear and convincing evidence of unfitness 1: holding that the standard of proof for dischargeability actions is the preponderance of the evidence standard 2: holding that the clear and convincing standard provides appropriate due process in cases involving parental rights 3: holding that the proper standard of proof is preponderance of the evidence 4: holding that in a proceeding to terminate parental rights the preponderance of the evidence standard of proof violates the due process clause and that due process requires at least a clear and convincing evidence standard


Input: who had previously violated section 1012.315, there is nothing demonstrating an intent to retroactively strip teachers of their certification for having previously committed and disclosed violations of section 1012.315. Id. With respect to the second prong, the Commission’s retroactive application of section 1012.795(l)(n) is unconstitutional. Even where the Legislature has expressly stated that a statute will apply retroactively, reviewing courts must reject such an application if the statute impairs a vested right, creates a new obligation, or imposes a new penalty. See State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55, 61 (Fla.1995); see also Metro. Dade County, 737 So.2d at 499 (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 270, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994)) (<HOLDING>). Here, it is undisputed that, at the time Mr. Holdings: 0: recognizing that the application of a retroactive amendment is discretionary 1: holding retroactive application 2: holding that when an agency changes its policy with retroactive effect a reviewing court must determine the reasonableness of the new interpretation and whether application of the new policy to a party who relied on the old is so unfair as to be arbitrary and capricious 3: holding the central focus of an inquiry into the retroactive application of the statute is whether doing so attaches new legal consequences to events completed before its enactment 4: holding no retroactive application


Input: Moreover, the evidence shows that solicitation of the towers was part of that effort and that, “but for” the RICO conspiracy, Cianci and Corrente would not have acquired any interest in the $250,000 collected from the towers. Consequently, their interests in that sum are subject to forfeiture under subsection (a)(1). B. Forfeiture Under § 1968(a)(2) Subsection (a)(2) provides for forfeiture of a defendant’s “interest in ... any enterprise” that the defendant “established, operated, controlled, conducted, or participated in the conduct of, in violation of section 1962.” 18 U.S.C. § 1963(a)(2)(A) (emphasis added). The forfeiture provision of (a)(2)(A) is especially severe because it makes a defendant’s entire interest in an enterprise subject to forfeiture. Angiulo, 897 F.2d at 1211-12 (<HOLDING>). Furthermore, unlike (a)(1), it does not Holdings: 0: holding that fourteenth amendment only applies to state action 1: holding that the fourteenth amendment only applies to state action 2: holding that the rule applies for purposes of habeas corpus under section 2254 3: holding that rule of proportionality applies only under a1 and what is now a2d 4: holding that by its terms rule 50 applies only to jury trials


Input: of whether the County also possesses statutory authority to condemn the same property. We therefore reverse the decision of the court of appeals insofar as it held that CDOT lacked statutory authority to condemn the disputed parcels pursuant to section 43-1-208(3), and remand for further proceedings consistent with this opinion. II. Analysis We have long held that in Colorado the power of eminent domain lies dormant in the state until the legislature speaks. Potashnik v. Pub. Serv. Co., 126 Colo. 98, 101, 247 P.2d 137, 138 (1952). Accordingly, a party may not condemn private property without demonstrating that the taking has been statutorily authorized, either expressly or implicitly. See State Dep’t of Highways v. Denver and Rio Grande W. R.R. Co., 789 P.2d 1088, 1092 (Colo.1990) (<HOLDING>). Thus, in order for the Petitioners to condemn Holdings: 0: holding that the department of highways did not have statutory authority to condemn a private way of necessity over railroad tracks on behalf of a landlocked ranch operator 1: recognizing a selfevaluative privilege to railroad companys investigation of an accident in light of the publics stake in the improvement of railroad safety 2: holding that department does not have independent authority to impose device in absence of court order 3: holding that director of police department does not have final policymaking authority in miamidade county despite having some discretionary authority 4: holding over


Input: Hall and explained that Hall’s conduct in committing murder — his lack of emotion, connection to drug trafficking and willingness to kill for hire — justified such a severe punishment. Even if the offense level in § 2A1.1(a) does not fit every murder, Hall has not shown that it fails to fit this murder. As a result, the district court did not abuse its discretion in relying upon the base offense level in § 2A1.1(a) to determine Hall’s appropriate sentence. AFFIRMED. 1 . Both the probation office and the district court applied the 2007 edition of the United States Sentencing Guidelines Manual to determine Hall’s advisory sentencing range. 2 . The other circuits addressing this question have done so with similar results. See United States v. Bauer, 626 F.3d 406, 409 (8th Cir. 2010) (<HOLDING>); United States v. Rogers, 521 F.3d 5, 12 (1st Holdings: 0: holding that  5g13c applied because the defendants case involved multiple undischarged terms of imprisonment only one of which was used to enhance his instant sentence 1: holding that because the defendant was not imprisoned  incarcerated in a penal institution  when he was sentenced  he was not subject to an undischarged term of imprisonment and could not invoke  5g13 2: holding that the concurrent sentencing requirement of  5g13b  is only triggered when there is an undischarged term of imprisonment at the time of sentencing 3: holding that   3584a allows the district judge to specify the sequence of service of terms of imprisonment only when sentences are imposed at the same time or the other sentence is an undischarged term of imprisonment to which the defendant is already subject  4: holding that  5gl3b does not apply when the undischarged term of imprisonment results from multiple offenses only some of which were taken into account in determining the defendants offense level


Input: Court has done, is to sanction arbitrary sentencing, and to make anything but perfunctory appellate review of sentencing impossible. The only way, therefore, to expand the scope of allowable discretion while maintaining a functional capital punishment system is to circumscribe the substance and procedure of appellate review. See id. at 127; Special Project, “Capital Punishm lackmun, J., dissenting) (“The Court’s conclusion that we should allow the State to adopt capital punishment schemes that depend on appellate factfinding because ‘it is by no means apparent that appellate factfinding will always be inadequate’ ... turns on its head the heightened concern with reliability ...” required in capital punishment cases); Heath v. Alabama, 474 U.S. 82, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985) (<HOLDING>); id. at-, 106 S.Ct. at 444, 88 L.Ed.2d at Holdings: 0: holding that double jeopardy clause does not prohibit imposition of death sentence in alabama despite life sentence in georgia in murdertrial arising from same homicide 1: holding that the imposition of a life sentence on a juvenile does not violate the holding of roper 2: holding that graham which prohibited the imposition of a life without parole sentence on a juvenile offender who did not commit homicide does not apply to a lengthy termofyears sentence that might constitute a de facto life sentence 3: holding that imposition of a habitual offender sentence on remand after the trial courts pronouncement of a nonhabitual sentence in the original proceeding does not violate double jeopardy 4: holding that if a trial court has rejected death as a possible sentence double jeopardy bars the state from seeking the death penalty at resentencing even where rejection of the death sentence was based on a legal error


Input: while student disciplinary proceedings may resemble a criminal trial in some limited respects and while certain university rule and regulation violations may also constitute criminal behavior, student disciplinary proceedings do not present matters for adjudication by a court of law. See First Amendment Coalition v. Judicial Inquiry and Review Board, 784 F.2d 467, 471-77 (3d Cir.1986) (en banc) (denying right of access to judicial disciplinary proceedings and records unless the records subsequently are filed in a court of law); Jessup v. Luther, 277 F.3d 926, 928-29 (7th Cir.2002) (noting that settlement agreements and arbitrations are private documents subject to a right of access only when filed in the court record); United States v. El-Sayegh, 131 F.3d 158, 162-63 (D.C.Cir.1997) (<HOLDING>). Therefore, we decline to evaluate student Holdings: 0: recognizing that first amendment provides qualified right of access to judicial documents 1: recognizing common law right of access to judicial documents 2: holding that there is no first amendment right of access to presentence reports 3: holding that there is no right of public access to documents considered in civil discovery motions 4: holding that there is no first amendment or common law right of access to documents which played no role in a judicial decision


Input: Discrimination) (July 22, 2008))). We consider this argument, too, although the EEOC’s Compliance Manual “is not entitled to special deference.” EEOC v. TriCore Reference Labs., 849 F,3d 929, 939 (10th Cir. 2017). 7 . Sturgill held that "[w]hat is reasonable depends on the totality of the circumstances and therefore might, or might not, require elimination of a particular, fact-specific conflict.” 512 F.3d at 1030. The First Circuit has cited Sturgill and this standard. See Sanchez-Rodriguez v. AT&T Mobility Puerto Rico, Inc., 673 F.3d 1, 12 (1st Cir. 2012). In addition, the Fourth Circuit, as previously mentioned, has rejected the "elimination” standard. See Firestone Fibers & Textiles, 515 F.3d at 313. 8 . See also Baker v. Home Depot, Inc., 445 F.3d 541, 547-48 (2d Cir. 2006) (<HOLDING>); Cooper, 15 F.3d at 1379 (6th Cir.) (same); Holdings: 0: holding scheduling employee for later shift on sunday so he could attend church did not eliminate conflict with his second religious practice of not working at all on sunday his sabbath 1: 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 2: holding that denial of inmates request for bread and peanut butter so that he could prepare his sunday meals in his cell on saturday  thereby avoiding preparing food or benefitting from the preparation of food by others on the sabbath  violated prisoners free exercise rights 3: holding that defendant was not resident of his mothers household even though his drivers license listed his mothers address and he received mail there because he expressed a belief that his residence was in a different location than his mothers home he rented and occupied his own residence and he testified that he was only living with his mother after expiration of his lease until he could find another place to live 4: 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


Input: no evidence of fingerprints linked him to the firearm; and appellant testified he leaned forward in his seat to buckle his seatbelt. Although these are circumstances that do not link appellant to the weapon, other circumstances show that he knowingly possessed the firearm. The firearm was located within inches of appellant’s legs, in easy reach, in a place where he was seen reaching as he leaned forward in the seat. The gesture appeared to the officers as though appellant was putting something beneath the seat. The officers stated that appellant was nervous and seemed as though he wanted to flee from the officers. These circumstances are sufficient for the jury to infer that appellant knowingly possessed the firearm that was found near his feet. See Hernandez, 538 S.W.2d at 131 (<HOLDING>). Appellant contends the determination that the Holdings: 0: holding that absence of certain affirmative links is not evidence of appellants innocence to be weighed against the evidence tending to connect appellant to the contraband 1: holding that new evidence is evidence not previously of record and not merely cumulative of other evidence 2: holding that the corroborating evidence need not be medical evidence if the appellant explains why medical evidence is not available 3: holding that the type of evidence which has been admitted as material as tending to prove a reasonable probability of change includes    the actual amendment of the ordinance subsequent to the taking 4: holding that on appeal an appellate court does not have the right to weigh the evidence and decide the issue on the basis of its weight the courts duty goes no further than to determine whether the record contains any evidence tending to support the finding


Input: or state law or regulation” under § 40:2175.6(H). See Abbott Labs., 387 U.S. at 153, 87 S.Ct. 1507; see also Texas, 497 F.3d at 499 (“If [plaintiff] cannot challenge the [procedures [at issue] in this lawsuit, [it] is forced to choose one of two undesirable options: participate in an allegedly invalid process that eliminates a [previously available] procedural safeguard ..., or eschew the process with the hope of invalidating it in the future[] ____”). Pre-enforcement facial challenges seeking declaratory and injunctive relief have long proceeded as an accepted means for abortion providers and their patients to challenge the constitutionality of regulations touching on the abortion right. See, e.g., Sabri v. United States, 541 U.S. 600, 609— 10, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004) (<HOLDING>). Pre-enforcement review prevents potentially Holdings: 0: holding that apprendi v new jersey 530 us 466 120 sct 2348 147 led2d 435 2000 was not violated where the sentence did not exceed the applicable statutory maximum 1: holding that  851 factfinding falls within the prior conviction exception set out in apprendi v new jersey 530 us 466 490 120 sct 2348 147 led2d 435 2000 2: holding that apprendi v new jersey 530 us 466 120 sct 2348 147 led2d 435 2000 did not overrule almendareztorres v united states 523 us 224 118 sct 1219 140 led2d 350 1998 3: holding that almendareztorres remains binding despite apprendi v new jersey 530 us 466 120 sct 2348 147 led2d 435 2000 4: recognizing the validity of preenforcement facial attacks in only a few settings including abortion based on the strength of specific reasons weighty enough to overcome the supreme courts wellfounded reticence to entertain such attacks generally citing stenberg v carhart 530 us 914 938946 120 sct 2597 147 led2d 743 2000


Input: under a “contract of employment, or a collective bargaining agreement, an agreement has yet been made to arbitrate the dispute.” Id. at 885. The court stated that to “decide otherwise, we would have to hold that Gilmer has no effect at all and that [Gardner-Denver ] is still the law that statutory claims cannot be the subject of required arbitration.” Id. at 882. 2. Plaintiffs ADEA and ADA Claims are not Barred by the CBA Defendants argue that Plaintiffs federal statutory claims are barred by the mandatory arbitration clause of the CBA. Defendants contend that the “Gilmer and Austin decisions represent the current thinking on the arbitration of statutory claims.” (Defs. Reply p. 5). In opposition to Defendants’ motion, Plaintiff cites Pryner v. Tractor Supply Co., 109 F.3d at 354 (<HOLDING>). Defendants dismiss Gardner-Denver and Pryner Holdings: 0: holding that collective bargaining agreements cannot compel the arbitration of statutory rights 1: holding that arbitration pursuant to collective bargaining agreement is not res judicata and cannot collaterally estop a civil rights claim 2: holding that the claim accrued after the employer denied a request for arbitration as untimely under the collective bargaining agreement 3: holding that agreements other than fullfledged collective bargaining agreements may be contracts within the meaning of  301 4: holding that antidiscrimination rights under title vii cannot be waived by a collective bargaining agreement


Input: fluid in the bucket could not emit an odor without being triggered, and the truck occupants had no reason to use ether at that point because they lacked anhydrous ammonia — an essential ingredient in the methamphetamine manufacturing process — and ether would be used only after the ammonia. Wilson also argues that even if he or VanHouden had sprayed the aerosol cans in the car for no reason, the truck’s windows had been open so the odor would have dissipated before the deputy could possibly have smelled it. While Wilson’s assertions would lend plausibility to a finding that the deputy did not smell ether, they do not suffice to convince us that the district court’s finding to the contrary was clearly erroneous. Moreover, we do not agree that the odor of ether was the Cir.1985) (<HOLDING>). The deputy’s request to move the vest was Holdings: 0: holding the odor of an etherlike substance in combination with other circumstances gave officers probable cause to search a vehicle 1: holding that the court of appeals properly concluded that the odor of marijuana emanating from defendants vehicle constituted probable cause to search the vehicle 2: holding that the smell of marijuana gave the police probable cause to search the vehicle 3: holding that although pcp has no odor because streetlevel pcp is mixed with other substances that have a distinct odor an officers recognition of that odor was sufficient to establish probable cause 4: holding that the odor of marijuana gave officers probable cause to believe members of a group possessed marijuana and therefore a search of each person present was proper


Input: probable cause to arrest in light of whether the facts proved a crime as defined by state law). “To determine whether an officer had probable cause to arrest an individual, we examine the events leading up to the arrest, and then decide ‘whether these historical facts, viewed from the standpoint of an objectively reasonable officer, amount to’ probable cause.” Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 800, 157 L.Ed.2d 769 (2003) (quoting Ornelas, 517 U.S. at 696, 116 S.Ct. at 1661). “If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.” Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S.Ct. 1536, 1557, 149 L.Ed.2d 549 (2001) (<HOLDING>), quoted with approval in Joyce v. Holdings: 0: holding that under fourth amendment standards for determining probable cause for arrest and probable cause for search and seizure are same 1: holding that probable cause existed to arrest for trespassing under state law 2: holding that probable cause existed to arrest for a seatbelt violation under state law 3: holding that fourth amendment not violated when officer makes custodial arrest for driving without a seatbelt 4: holding that probable cause existed to arrest for driving on a suspended license under state law


Input: to an evidentiary error under KRE 103(e)). Reversing the Fourth Circuit, the Supreme Court remanded for reinstatement of the sentences on grounds that the unpreserved Apprendi error did not meet the requirements for plain error.] While the language of RCr 10.26 and Federal Rule of Criminal Procedure 52(b) differ substantially, and recognizing that this Court is not obligated to follow Cotton, we nevertheless believe it to be a valuable guide in the application of our palpable error rule. To discover manifest injustice, a reviewing court must plumb the depths of the proceeding, as was done in Cotton, to determine whether the defect in the proceeding was shocking or jurisprudentially intolerable. Martin, 207 S.W.3d at 3-4. See also Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky.2009) (<HOLDING>) the error was clear or plain under existing Holdings: 0: holding that palpable error relief is not available unless three conditions are present 1 1: holding that equitable relief under rico is available only to the government 2: holding that claims for equitable relief under  502a3 are only available when a plaintiff has no other relief under erisa 3: holding that damages are not relief that is available under the idea 4: holding that relief under rule 60b6 is not available unless the other clauses 1 through 5 are inapplicable


Input: following provision: [I]f [Husband] increases his VA Benefits and it reduces his Military Retirement, that this election by [Husband] shall not affect [Wife’s] right to a monthly sum equal to [Wife’s] portion of [Husband’s] disposable retired pay as provided for herein and reduction to the Military Retirement Pension now due and owing as a result of the election of [Husband] to receive the VA benefits, shall not reduce [Wife’s] monthly sum as-set forth herein. The Trial Court also provided that it would retain “jurisdiction to supervise and enforce” the payment of retirement pay and benefits. ¶ 4 Husband filed a motion for new trial on November 18, 2002, alleging that the Trial Court’s order is contrary to law because the decree (1) unlawfully provides that Wife will be entitle n.2001) (<HOLDING>). ¶9 In Troxell v. Troxell, 2001 OK CIV APP 96, Holdings: 0: holding debtor could not discharge that portion of his monthly army retirement benefits awarded to his wife pursuant to a divorce decree 1: holding that although a spouse may have had a right to apportion military retirement benefits at one time the act requires the spouse to assert that right before entry of a finalized divorce decree or waive the right to the benefits 2: holding that the trial court had authority to enforce a marital property settlement agreement that had not been incorporated into the parties final divorce decree 3: holding that a wife obtained a vested interest in her portion of the retirement benefits as of the date of the divorce decree and any act of the military spouse that unilaterally decreases the nonmilitary spouses vested interest is an impermissible modification of a division of marital property and a violation of the final decree of divorce 4: holding that the trial judge had the power to incorporate a settlement agreement in a decree following the entry of a decree of divorce


Input: test. See Chambers, 883 S.W.2d at 656. And it is that balancing test that controls the outcome of this case. This test weighs the need to immediately apprehend the suspect against the risk posed to the public by continuing the pursuit. See id. On the need side of the ledger, courts consider “the urgency of the circumstances requiring police intervention.” Wadewitz, 951 S.W.2d at 467. Courts evaluate the urgency of the circumstances by considering “factors such as the seriousness of the crime or accident to which the officer responds, whether the officer’s immediate presence is necessary to prevent injury or loss of life or to apprehend a suspect, and what alternative courses of action, if any, are available to achieve a comparable result.” Id.; see also Clark, 38 S.W.3d at 582 (<HOLDING>). On the risk side of the ledger, courts Holdings: 0: holding that rule 4k2 does apply to admiralty cases 1: recognizing same factors 2: holding wadewitz factors apply to police pursuit cases 3: holding that the exception does not apply to osha inspection cases 4: holding that alleyne does not apply to cases on collateral review