Input: awards arising from LCAs than from reviews of CBA determinations. In Cooper Natural Resources, the arbitrator ignored the LCA, relying solely on the CBA. The court in that case was not faced with an issue like that in the present case, where the arbitrator interpreted a provision of the LCA and a party challenged the arbitrator’s interpretation. Thus, Cooper Natural Resources does not support Continental’s position that a more searching review of an arbitrator’s interpretation of an LCA is mandated. Second, none of the authorities relied upon by the court in Cooper Natural Resources support a “no deference” standard of review for awards arising from LCAs. In Tootsie Roll Indus., Inc. v. Local Union No. 1, Bakery, Confectionery & Tobacco Workers’ Int’l Union, 832 F.2d 81 (7th Cir.1987) (<HOLDING>), the court applied the same standard of review Holdings: 0: holding that a court reviewing an arbitrators award in an act 111 grievance arbitration involves questions regarding 1 the jurisdiction of the arbitrator 2 the regularity of the proceedings 3 an excess of the arbitrators powers and 4 deprivation of constitutional rights 1: holding that an arbitrators award should have been vacated 2: recognizing that prevailing party has remedies available at common law to enforce arbitrators award 3: holding that arbitrators award will be vacated if    mistaken as to applicable law 4: holding that arbitrators award of temporary interim equitable relief can be confirmed


Input: (1941) (internal citations omitted). “The parties agree that the plaintiffs are citizens of North Carolina and defendants Whitehead and Aden are citizens of Virginia. The parties also agree that TRI was incorporated in Virginia and TRINC was incorporated in North Carolina.” (Appellant’s Br. at 11-12.) For purposes of diversity jurisdiction, “a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.” 28 U.S.C.A. § 1332(c)(1). The district court held that TRINC’s North Carolina citizenship did not destroy complete diversity because TRINC was a “sham” defendant under the doctrine of fraudulent joinder. See Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97, 42 S.Ct. 35, 66 L.Ed. 144 (1921) (<HOLDING>). As Hugger and Settle “acknowledge that there Holdings: 0: holding that the right of removal cannot be defeated by a fraudulent joinder of a resident defendant having no real connection with the controversy 1: holding the connection is an element 2: holding that the basis for joinder of crimes must be alleged in the charging instrument by alleging the basis for joinder in the language of the joinder statute or by alleging facts sufficient to establish compliance with the joinder statute 3: holding that trespass requires only proof of interference with right of possession of real property 4: holding that forfeiture of real property may be adjudicated before the seizure occurs because real property cannot abscond


Input: X-Rite thus acted upon a questionable interpretation of Michigan law without first having ascertained whether representation by Vandeveer Garzia would involve a substantial likelihood of prejudice to its interests. X-Rite, 748 F.Supp. at 1228 (footnote omitted); see also Twin City Fire Ins. Co., 336 F.Supp.2d at 621-22. As in X-Rite, the defendants in this case proceeded under the same questionable interpretation of South Carolina law. The insurance companies, in contrast, adhered to settled principles under South Carolina law regarding their right and duty to defend by providing counsel (i.e., Robert McKenzie) to represent the defendants for all claims filed against them, despite the reservation of rights. See, e.g., Allstate Ins. Co. v. Wilson, 259 S.C. 586, 193 S.E.2d 527, 530 (1972)(<HOLDING>); Allstate Ins. Co. v. Best, 728 F.Supp. 1263, Holdings: 0: holding that under georgia law a holder of a master insurance policy is an agent of the insurance company and not the insurer 1: holding that insurance company operating under a reservation of rights had the right and the duty to control the defense until such time as it was determined that it had no liability insurance coverage 2: holding that even if an insurance broker is the agent of the insurance company for purposes of soliciting and procuring the policy that would not necessarily make the broker the agent of the insurance company for the purpose of receiving notice of suits and claims 3: holding that insurance providers would be allocated defense costs according to the period of time they provided coverage and the insured would be allocated defense costs according to the period of time it had no insurance coverage 4: holding the insurance company discharged its fiduciary duty when it established the retained asset account in accordance with the insurance policy


Input: of constitutional violations in immigration proceedings, see Ram v. INS, 243 F.3d 510, 516 (9th Cir.2001), and we dismiss in part and deny in part the petition for review. We lack jurisdiction to consider Vega Sanchez’s challenge to the IJ’s discretionary determination that he failed to demonstrate exceptional and extremely unusual hardship to his qualifying relatives. See 8 U.S.C. § 1252(a)(2)(B)(i); Romero-Torres v. Ashcroft, 327 F.3d 887, 892 (9th Cir. 2003); Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1144 (9th Cir.2002). Vega Sanchez contends the IJ violated his due process rights by using a boilerplate decision. The IJ’s decision indicates she gave Vega Sanchez’s application the required individual determination. Cf. Paramasamy v. Ashcroft, 295 F.3d 1047, 1050-52 (9th Cir.2002) (<HOLDING>). The IJ set forth the facts as testified to by Holdings: 0: holding an ijs boilerplate demeanor findings failed to provide an adequate basis for this court to conduct its review 1: holding the trial court must make findings adequate to support a closure 2: holding that substantive review is adequate 3: holding that this court was unable to reach alleged errors where pro se appellant did not provide an adequate record 4: holding that an issue is waived when a party fails to provide adequate citation to authority


Input: from that before the court in 1997. In essence, the argument is that a change in factual circumstances after the prior determination bars the application of collateral estoppel here. 2. Changed Circumstances Courts appear to waiver in considering whether “changed circumstances” vitiates the application of the “identical issue” element of collateral estoppel, or whether it presents an equitable exception to the application of collateral estoppel, even if the “issue” to be determined is the same. Compare Anspach ex rel. Anspach v. City of Philadelphia, 380 Fed. Appx. 180, 184 (3d Cir.2010) (using “identity of issues” terminology) and Hawksbill Sea Turtle v. Fed. Emergency Mgmt. Agency, 126 F.3d 461, 477 (3d Cir.1997) (same) with Leventry v. Price, 319 F.Supp.2d 562, 568 (W.D.Pa.2004) (<HOLDING>) and Ramallo Bros. Printing, Inc. v. El Dia, Holdings: 0: holding that collateral estoppel applies to  1983 claims 1: recognizing the doctrine of collateral estoppel in agency proceedings 2: holding that res judicata and collateral estoppel apply to arbitration award 3: holding collateral estoppel elements met considering changed circumstances in the context of an exception to the general rule of collateral estoppel 4: holding that the debtor has the burden of showing that collateral estoppel applies


Input: 170 Colo. 465, 468 P.2d 305 (1969). Thus, even assuming Jenkins intended to include legally adopted children when he referred to his daughters’ children in his 1944 will, he could not have intended to include equitably adopted children. The probate court found that Jenkins’ use of the terms “children, her lawful issue” and “child or children” in his will created latent ambiguity and the court thus resorted to extrinsic evidence to determine whether Jenkins intended to include adopted children as beneficiaries of his testamentary trust. Where evidence extrinsic to the will is considered, our standard of review is whether the probate court’s decision was clearly erroneous or completely unsupported by the evidence. See, e.g., M.D.C./Wood, Inc. v. Mortimer, 866 P.2d 1380, 1382 (Colo.1994) (<HOLDING>); Colorado River Water Conservation Dist. v. Holdings: 0: holding that appellate court in affirming trial courts decision may rely in part on a ground not presented to trial court 1: holding that appellate court may only review issues actually presented to and considered by the trial court 2: holding in a case considering whether the trial court should have conducted a competency hearing sua sponte that an appellate court may only consider those facts which were before the court when the trial commenced 3: holding that appellate court may judicially notice its own records 4: holding that only when facts are presented to the trial court by uncontested documentary evidence may an appellate court draw its own conclusions


Input: Moreover, although the Burberry Check mark does not include an equestrian knight, it is undisputed that Burberry has obtained trademark protection for an equestrian knight mark, and that it often sells handbags and other goods displaying a combination of the two marks. It is also undisputed that Appellants used their mark on handbags — the same category of goods on which Burberry used its marks. The district court was therefore correct to afford the jury the opportunity to view the government’s evidence and form an independent conclusion regarding whether Appellants’ plaid design was substantially indistinguishable from the Burberry Check mark and whether the inclusion of the equestrian knight figure made any difference. See United States v. Yi, 460 F.3d 623, 629 n. 4 (5th Cir.2006)(<HOLDING>). And this evidence was sufficient to support Holdings: 0: holding that when determining prejudice under the objective test relevant considerations include 1 whether the extrinsic evidence was received by the jury and the manner in which it was received 2 whether it was available to the jury for a lengthy period of time 3 whether it was discussed and considered extensively by the jury 4 whether it was introduced before a jury verdict was reached and if so at what point during the deliberations and 5 whether it was reasonably likely to affect the verdict considering the strength of the governments case and whether the governments case outweighed any possible prejudice caused by the extrinsic evidence 1: holding that it was for the jury to determine whether a battery that used the signature duracell copper top and black body was a counterfeit even though the text on the counterfeit battery read dinacell 2: holding that the trial court must determine whether there was ever an agreement when the party resisting arbitration alleged that its signature was a forgery 3: holding that the jury must determine whether the partys conduct was reasonable under the cireumstances 4: holding the excluded testimony was relevant to whether a signature was that of a deceased party and since a statement regarding the issue was the only testimony that could be given by the witness no offer to prove was necessary because the substance of the evidence was apparent from the context of the question asked


Input: provide “bare facts” instead of demonstrating that an offender’s guilty plea was based on that conduct. Huerta-Guevara v. Ashcroft, 321 F.3d 883, 888 (9th Cir.2003). It therefore appears that this Court cannot consider Plaintiffs admission in his Amended Complaint and deposition that he was married to Colette Fisher at the time of the 1997 incident under the modified categorical approach. Hayes indicates, however, that it is unnecessary to examine the elements of the predicate offense when analyzing whether that offense was “committed by a person who has a specified domestic relationship with the victim.” Rather, courts may look at the facts underlying the conviction to determine whether the “domestic relationship” requirement is satisfied. See Hayes, 555 U.S. at 421, 129 S.Ct. 1079 (<HOLDING>) (emphasis added). Under Hayes, the question of 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 the harmed victim need not be the victim of the offense of conviction 2: holding that it suffices that a prior conviction   was in fact for an offense  committed by the defendant against a spouse or other domestic victim 3: holding that argument regarding victim of prior offense was improper 4: holding that for sentencing purposes the government does not need to allege a defendants prior conviction or prove the fact of a prior conviction where that fact is not an element of the present crime


Input: schemes. See State v. Hoskins, 199 Ariz. 127, 14 P.3d 997 (2000), cert. denied, — U.S.-, 122 S.Ct. 386, 151 L.Ed.2d 294 (2001) (the Arizona Supreme Court followed the United States Supreme Court’s holding in Walton in denying a claim that the Arizona death penalty law was unconstitutional because it eliminated jury consideration in the sentencing process); People v. Anderson, 25 Cal.4th 543, 601, 106 Cal.Rptr.2d 575, 22 P.3d 347, 386 (2001) (the California Supreme Court rejected the argument that the California death penalty statute was unconstitutional because it did not require “(3) findings that aggravation outweighs mitigation beyond a reasonable doubt, or (4) findings that death is the appropriate penalty beyond a reasonable doubt”); Weeks v. State, 761 A.2d 804 (Del.2000) (<HOLDING>); Mills v. Moore, 786 So.2d 532, 536-37 Holdings: 0: holding that apprendi does not apply retroactively 1: holding that apprendi does not apply to capital sentencing schemes 2: holding apprendi does not apply to consecutive sentencing 3: holding that apprendi does not apply on collateral review 4: holding that apprendi does not apply to state capital sentencing schemes where judges are required to find certain aggravating circumstances before imposing a death sentence


Input: “immunity questions should be resolved as early as possible.” The State, in its answer, concedes that, although § 13A-3-23 creates an immunity defense, Watters is unable to demonstrate a clear legal right to the requested relief because, it says, the Code section includes no procedure requiring a pretrial hearing. Thus, according to the State, the trial court’s order stating its intent to consider Watters’s immunity defense “in due course” is sufficient and Watters’s petition is due to be denied. We cannot agree. Both the State and Watters acknowledge in their pleadings to this Court that the Court of Criminal Appeals, subsequent to the issuance of its order in this case, has issued opinions relevant to the issue before us. See Malone v. State, 203 So.3d 126, 131 (Ala. Crim. App. 2016) (<HOLDING>); Harrison v. State, 203 So.3d 126, 131 (Ala. Holdings: 0: holding that where use of reasonable nondeadly force causes death defendant entitled to instruction on selfdefense 1: holding that the defendant was entitled to a pretrial evidentiary hearing on his claim of immunity based on selfdefense 2: holding an evidentiary hearing on the applicability of equitable estoppel 3: holding that petitioner was not entitled to an evidentiary hearing under section 2254e2 on whether his trial counsel was ineffective in failing to seek a fitness hearing 4: holding that defendant may be entitled to selfdefense instruction even though he did not testify


Input: 13 L.Ed.2d 233 (1964); Teamsters Local 115 v. NLRB, 640 F.2d 392, 399 (D.C.Cir.1981), cert. denied, 454 U.S. 827, 102 S.Ct. 119, 70 L.Ed.2d 102 (1981); cf. National Treasury Employees Union v. Federal Labor Relations Authority, 910 F.2d 964, 966-68 (D.C.Cir.1990) (en banc) (emphasizing the extreme deference due agency remedial decisions). Even remedial decisions must, however, follow announced policies and procedures. United Food & Commercial Workers Int’l Union v. NLRB, 852 F.2d 1344, 1347 (D.C.Cir.1988). The Local correctly points out that, in accordance with the American Rule, attorney’s fees generally are not awarded in Board proceedings. Summit Valley Indus. Inc. v. United Bhd. of Carpenters & Joiners of America, 456 U.S. 717, 721-23, 102 S.Ct. 2112, 2114-15, 72 L.Ed.2d 511 (1982) (<HOLDING>). It contends that attorney’s fees would be Holdings: 0: holding ports authority was not an employer subject to the jurisdiction of the national labor relations board 1: holding that former employees state law claim of fraud brought against his former employer was preempted by labor management relations act 2: holding that labor management relations act  303 which authorizes recovery of damages for employers injured by an unfair labor practice does not provide authorization for awarding attorneys fees for board proceedings 3: holding that a district court may have jurisdiction over action taken by the national labor relations board despite an express statutory finality provision when the agency has acted in excess of its delegated powers and contrary to a specific prohibition in the national labor relations act 4: holding that the but for test applied in a mixed motive case under the national labor relations act


Input: the rules and regulations for determining fitness of locomotives. Napier v. Atl. Coast Line R.R. Co., 272 U.S. 605, 612, 47 S.Ct. 207, 209, 71 L.Ed. 432, 438-39 (1926). This, therefore, excludes state regulation of safety appliances, parts and appurtenances of locomotives. Id. at 613, 47 S.Ct. 207. The United States Supreme Court has indicated that in passing FLIA, Congress intended the Act to occupy the entire field of regulating locomotive equipment. Id. at 611, 47 S.Ct. 207. ¶ 74. While it is clear that FLIA preempts any state regulation of locomotive design, a majority of courts have also found that FLIA preempts common law actions against locomotive operators and locomotive manufacturers. See, e.g., In re W. Va. Asbestos Litigation, 215 W.Va. 39, 592 S.E.2d 818, 822 (2003) (<HOLDING>); General Motors Corp. v. Kilgore, 853 So.2d Holdings: 0: holding misrepresentation claim to be preempted 1: holding that in a personal injury action against a railroad a report containing the conclusions of a hearing examiner of the public utilities commission regarding an alleged hazardous railroad crossing was obvious hearsay 2: holding breachofcontract claim was preempted 3: holding asbestos claim against railroad preempted by the flia 4: holding employees negligence claim against his employer was preempted by the lmra


Input: v. Ohio, 392 U.S. 1, 24-25, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). The Supreme Court, in Schmerber v. California, addressed this issue directly and found that the compelled administration of a blood test falls within the reach and protections of the Fourth Amendment. 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Any forced extraction of blood, therefore, invades one’s expectation of privacy in bodily integrity, and its reasonableness must be adjudged under a Fourth Amendment analysis. In addition, when blood is extracted and analyzed to reveal information derived from one’s DNA, a second intrusion into one’s expectation of privacy occurs. See Skinner, 489 U.S. at 616, 109 S.Ct. 1402; Ferguson v. City of Charleston, 532 U.S. 67, 76, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001) (<HOLDING>). In Skinner, the Supreme Court held that the Holdings: 0: holding that a warrant to obtain a blood sample was valid despite a reference to a urine sample in the addendum to the affidavit because the minor inconsistency did not seriously undermine the information underlying the probable cause determination 1: holding that a physician employed by the government who drew a blood sample from the defendant for medical not investigatory purposes did not conduct a search under the fourth amendment 2: holding that a test of a urine sample implicates the fourth amendment 3: recognizing problems with generalizing from an extremely limited sample when a broader sample  can be readily obtained and when no showing of the representativeness of the sample is made 4: holding blood sample does not constitute compelled testimony


Input: fat from a fee application.’ ” Id. (quoting Hensley, 461 U.S. at 434, 103 S.Ct. 1933; N.Y. Ass’n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1146 (2d Cir.1983)); see also Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir.1994) (“We do not require that .the court set forth item-by-item findings concerning what may be countless objections to individual billing items.”). Barbu, 2015 WL 778325, at *5. In addition to eliminating unnecessary hours, courts may -reduce the number of hours when presented with time entries that are lack sufficient specificity to permit reasoned review. Id.; see also Annuity, Pension, Welfare & Training Funds of Int’l Union of Operating Engineers Local 14-14B, AFL-CIO v. Integrated Structures Corp., 2013 WL 4095651, at *12 (E.D.N.Y. Aug. 13, 2013) (<HOLDING>). ■ Counsel claims that it expended a total of Holdings: 0: holding that federal courts must apply state substantive law in diversity cases 1: holding factor b is not unconstitutionally vague 2: holding that courts must apply acrosstheboard reductions for vague entries 3: holding that vague conclusory statements are insufficient 4: holding vague allegations of bias insufficient


Input: concealment and notes the Court has said that fraudulent concealment in health care liability claims estops a health-care provider from relying on limitations to bar a plaintiffs claim. Shah v. Moss, 67 S.W.3d 836, 841 (Tex.2001); see also Borderlon v. Peck, 661 S.W.2d 907, 908-09 (Tex.1983). Thus, he notes, we have recognized exceptions to section 74.251’s two-year statute of limitations in limited circumstances even though several of our decisions have characterized the two-year statute of limitations as “absolute.” See Diaz v. Westphal, 941 S.W.2d 96, 99 (Tex.1997) (“We have repeatedly held that section 10.01 [74.251’s predecessor] establishes an absolute two-year statute of limitation for health care liability claims....”); Bala v. Maxwell, 909 S.W.2d 889, 892-93 (Tex.1995) (<HOLDING>); see also In re USAA, 307 S.W.3d 299, 310-11 Holdings: 0: holding that under such unique circumstances the five 5 year statute of limitations controls 1: holding that section 1001 controls over the limitations provision of the wrongful death statute 2: holding that materiality necessary element of section 1001 3: recognizing that a specific statute controls over a general one 4: holding that when a statute and a guideline conflict the statute controls


Input: were executed. The record therefore contains no evidence establishing what the original parties to the transaction anticipated at contract inception concerning QDS’s “cost of performing under the [L]ease [A]greement[s] if the option is not exercised.” UCC § 1-201(37)(x) (West 2002). Without this evidence, the Court is unable to make the statutory calculation required under New § l-201(37)’s Option Price/Performance Cost Test. See APB Online, 259 B.R. at 819-20 (declining to consider affidavit testimony because affiant did not “participate[] in the lease transactions or the computation of the option prices” and holding that the “record is insufficient to permit [the court] to conclude ... that the ... option price was or was not nominal”); Edison Bros. Stores, 207 B.R. at 811-12 (<HOLDING>); Zaleha, 159 B.R. at 585-86 (“Debtor’s Holdings: 0: holding that the debtor in possession could utilize the strongarm powers of the trustee to avoid an unperfected security interest even though the debtor knew of the interest prior to bankruptcy because the two are distinct entities and the debtor in possessions responsibility is to preserve the estates assets for the benefit of the creditors 1: holding that motor vehicle to be retained by chapter 13 debtor should be valued at the price the debtor could get for it in a free and open market ie its fair market value 2: holding that debtor failed to meet its burden of proving lease should be recharacterized as a disguised security agreement because the record before the court provides no credible evidence as to the projected fair market of the leased equipment on the dates the debtor will be entitled to exercise the purchase options 3: holding that court cannot make a finding of nominality without some concrete information regarding the anticipated fair market value of the leased equipment at the time the purchase option is to be exercised emphasis added 4: holding that since motor vehicle contract between the debtor and fifth third bank was a lease and not a security agreement the debtor was required to treat fifth third banks claim in his chapter 13 plan as a lease and not as a secured debt which meant that the debtor could not obligate fifth third bank to finance the purchase of his vehicle


Input: to avoid punishment for running away — did amount to an “all or nothing” defense. Accordingly, Pepe-Frazier has failed to establish that he received ineffective assistance of counsel in this regard. (c) Failure to object to the sentence for aggravated child molestation. Pepe-Frazier contends that his trial counsel rendered ineffective assistance by failing to challenge his sentence for aggravated child molestation (652 SE2d 501) (2007) (finding a “rare case” of gross disproportionality in holding that 10-year sentence for commission of consensual oral sex between 17-year-old defendant and 15-year-old victim constituted cruel and unusual punishment, given General Assembly’s recent sweeping change in the punishment for consensual teenage oral sex). 42 See Jones, 290 Ga. at 676 (3) (<HOLDING>). 43 OCGA § 17-10-2 (a) (2). 44 See Blue v. Holdings: 0: holding that the failure of defense counsel to object to erroneous punishment charge authorizing an illegal sentence is ineffective assistance of counsel 1: holding cruel and unusual punishment complaint not preserved 2: holding that there was no ineffective assistance due to appellate counsels failure to challenge the trial courts denial of the motion to change venue because the defendant failed to show actual prejudice 3: holding that what constitutes cruel and unusual punishment is a question of law 4: holding that defendant failed to establish that he received ineffective assistance of counsel by counsels failure to challenge sentence as equating to cruel and unusual punishment


Input: sold two copies of the video to residents of Puerto Rico through the mail, and 2) Defendant sold 20 subscriptions to its magazine in Puerto Rico, in which they advertised the sale of the video. Defendant argues that LNE’s sale of two videos in Puerto Rico — one of which was purchased by Plaintiff Aníbal Agos-to — cannot logically be considered the legal or “proximate” cause of Plaintiffs’ alleged injuries since they were not a substantial factor in the sequence of events that led to the claimed injury. See Wilson v. Bradlees of New England, Inc., 250 F.3d 10, 17 (1st Cir.2001) (defendant’s actions will be considered the “proximate cause” of the alleged harm only if it was “a substantial factor in bringing about the harm.”); Merritt v. Shuttle, Inc., 13 F.Supp.2d 371, 378 (E.D.N.Y.1998) (<HOLDING>). As alleged in the Complaint, the overwhelming Holdings: 0: holding that television station was not subject to personal jurisdiction in  new york under that states longarm statute since libel claim did not arise from defendants delivery of mail orders to new york 1: holding that contract signed in new york by promisor from florida and partially performed in florida was governed by new york law because it was executed in new york 2: holding that outofstate defendants transmittal into new york of ceaseanddesist letter to new york plaintiff for purported trademark infringement was insufficient to create jurisdiction over defendant in a new york declaratory judgment action 3: holding that for purposes of longarm jurisdiction because plaintiff was employed in new york the original event causing his injury occurred in new york 4: holding jurisdiction over nonresident defendant existed where note was payable in new york contained new york choice of law clause and proceeds were used to finance new york limited partnership


Input: the United States Supreme Court’s holding in Winstar). For these reasons, the Government’s November 17, 2003 Motion for Reconsideration concerning the authority of the FSLIC and FHLBB to enter contracts is denied. The second basis for reconsideration concerns the effect of Transohio Savings Bank v. Director, OTS, 967 F.2d 598, 620 (D.C.Cir.1992), a decision that the Government argues bars plaintiffs’ contract claims in this case. See 11/17/03 Gov’t Mot. to Reconsider at 1; see also id. at 6-10. As a threshold matter, the Government waived the defense of collateral estoppel by not asserting it in the September 22, 1999 Answer or raising this issue in any motion or brief prior to seeking reconsideration. See Arizona v. California, 530 U.S. 392, 410, 120 S.Ct. 2304, 147 L.Ed.2d 374 (2000) (<HOLDING>); see also RCFC 8(c), 12(b). In addition, since Holdings: 0: holding that an affirmative defense is ordinarily lost if not timely raised 1: holding that the exclusivity of workers compensation is an affirmative statutory defense which must be timely raised or it is waived 2: holding that fair use is an affirmative defense 3: holding mmpa is an affirmative defense to be raised at trial 4: holding that the statute of limitations in a criminal case is a nonjurisdictional affirmative defense that is waived if not raised in the trial court


Input: equated to the making of a new contract. Rather, we give effect to the terms of the agreements themselves and conclude that they were executed once, in 1984, and that the original agreements continued to be in force until John Deere attempted to exercise its rights under the 120 notice provision in 2007. See 11 Williston on Cont of one party, John Deere, to terminate the contract without cause on 120 days notice. Applying the Act would effectively extend the dealer agreements indefinitely unless John Deere can meet the terms of the Act’s good cause provision. We conclude that this would substantially impair the contractual relationship between John Deere and Reliable Tractor and would violate the Contracts Clause. See Morgan v. Kemper Ins. Cos., 754 F.2d 145, 147-48 (4th Cir.1985) (<HOLDING>); Garris v. Hanover Ins. Co., 630 F.2d 1001, Holdings: 0: holding that the employer was not the insurers agent 1: holding retroactive application 2: holding that a retroactive application of a statute impairing an insurers contractual right to terminate an agent without cause violated the contract clause 3: recognizing that the application of a retroactive amendment is discretionary 4: holding no retroactive application


Input: 593-94, the mandatory nature of our current rule was clarified in January 2005 when preexisting versions in the Kentucky civil and criminal rules, versions leaving the sequestration of witnesses largely to the trial court’s discretion, were rescinded, and KRE 615 was established as the controlling rule in our courts. Because, under the current rule, a court may decline a party’s request to sequester a particular witness only if one of the rule’s three express exemptions applies, the rule creates a strong presumption in favor of sequestration. Cf. United States v. Jackson, 60 F.3d 128, 135 (2nd Cir. 1995) (discussing the nearly identical federal rule). Moreover, the party opposing the presumption bears the burden of showing that one of the exemptions applies. Hatfield, 250 S.W.3d at 595 (<HOLDING>); Opus 3 Ltd., 91 F.3d at 628 (noting that “the Holdings: 0: holding that a trial court errs by exempting a witness from sequestration absent the requisite showing 1: holding that evidence of a threat to a witness by the defendant is relevant as showing an attempt to prevent a witness from testifying and avoid punishment for the crime 2: recognizing that  an ordinary witness may decline to answer only after making the requisite showing of the danger of selfincrimination  3: holding that the jury could have reasonably inferred the requisite intent to induce the witness to lie or testify falsely from the defendants statements to the witness 4: holding that a trial court did not abuse its discretion by denying a motion to exclude testimony of a witness for an alleged sequestration violation where no impermissible harmonization of testimony could be inferred from the witnesss reading of the newspaper in the absence of any evidence that this testimony was based on what he read


Input: court earlier determined that "Trooper Swets['s] contact with [Haar] was not the product of a traffic stop.” Conclusions of Law ¶ 3 (emphasis added). 2 . The circuit court also erred in reasoning that a number of cases have concluded that canine sniffs not incident to a traffic stop are subject to the same rules as sniffs conducted incident to a traffic stop. The circuit court’s cited cases all involved canine sniffs that were either incident to a traffic stop or involved parked and unattended cars in public places where the defendant had no expectation of privacy. None of the court's cited cases involved what is alleged here: an investigatory detention of persons or property performed to conduct a canine sniff. See e.g. United States v. Engles, 481 F.3d 1243, 1245 (10th Cir.2007) (<HOLDING>); United States v. Friend, 50 F.3d 548, 551-52 Holdings: 0: holding no fourth amendment violation when police initiated a canine sniff of a trailer attached to a pickup truck that was parked and unattended on a public street 1: holding that canine sniff not a search under the fourth amendment 2: holding canine sniff of a vehicle validly stopped for a headlight violation was not unreasonable given that the driver was being issued a ticket at the time a second officer arrived on the scene and ran the drug dog around the vehicle 3: holding that a canine sniff is a search for purposes of the fourth amendment 4: holding dog sniff of a vehicle parked on a public street did not violate the fourth amendment when canine sniff was conducted after the driver was validly stopped and arrested for driving on a suspended license


Input: and asked for a lawyer based on “her practice” and the notations on the jacket. (Tr. at 141.) This supposition, which does not account for the possibility of clerical mistakes in a busy prosecutor’s office, is in contrast to the specific, uniform recollections of Officers Argila, McCarthy and Fogarty, who each testified in detail about Garcia’s receipt and subsequent waiver of his Miranda rights, and the drafting and ratification of his statement. (Tr. at 33-39, 98-101, 128-29.) As this Court has no reason to doubt the credibility of the three officers in this case, their specific recollections trump ADA Coyne’s bare assumption that the criminal file jacket accurately represents her conversation with Officer Fogarty. See United States v. Martinez, 634 F.Supp. 1144, 1147 (S.D.N.Y.1986)(<HOLDING>); see also United States v. Patterson, No. 02 Holdings: 0: holding that although defendants voluntarily given initial statement was inadmissible because of miranda violation subsequent statement made after careful miranda warnings were given and waiver was obtained was admissible 1: recognizing a public safety exception to the requirement that miranda warnings be given in order to use a suspects statement as evidence against him at trial 2: holding that in the absence of police coercion a subsequent administration of miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement 3: holding that in absence of a jurat the fact that the statement was sworn to may be shown by other evidence 4: holding that police officers sworn affidavit that miranda warnings were given was held sufficient to deny suppression of defendants postarrest statement in the absence of properlysupported statement by defendant to the contrary


Input: receive a downward departure for providing substantial assistance to the government. The sentencing court did just that. It did not consider McFarlane’s extensive drug dealing history in setting his guideline range of 60 to 71 months, but did consider that history in determining whether to grant a downward departure and how much of a departure to grant. The court granted the government’s motion for a downward departure, but limited the extent of the departure based in part on McFarlane’s extensive drug dealing history. Thus, the terms of McFarlane’s cooperation agreement, and correspondingly his constitutional rights, were not violated when he received at least a ten-month downward departure, based partly on testimony he gave at his code-fendants’ trial. See Luloff, 15 F.3d at 766 (<HOLDING>); Nyhuis, 8 F.3d at 742 (holding that the Holdings: 0: holding that qualified immunity is not merely immunity from damages but also immunity from suit 1: holding trial court improperly granted dismissal on ground of immunity because the defendant had qualified statutory immunity rather than absolute immunity 2: holding that an immunity agreement limited to title 21 drug offenses was not violated when the defendant was charged with unlawfully possessing a gun a nondrug offense based on testimony provided pursuant to the immunity agreement 3: holding that in the absence of explicit language to the contrary an informal immunity agreement confers the minimum immunity required by the constitution 4: holding that dismissal pursuant to a plea to the jurisdiction based on sovereign immunity is with prejudice


Input: event, it is apparent that the Debtor believed that there was some urgency to the delivery of the transcripts and her counsel communicated her concerns to Penn’s counsel. 8 .While the parties have stipulated that such a written policy exists, the written policy itself wa S.D.Tex. Apr.27, 2005) (concluding that denial of transcript to chapter 13 debtor because of outstanding student loans was a violation of the automatic stay); Loyola Univ. v. McClarty, 234 B.R. 386 (E.D.La.1999) (university’s act of withholding chapter 13 debtor’s transcript violated automatic stay); In re Scroggins, 209 B.R. 727, 730 (Bankr.D.Ariz.1997) (act of parochial school withholding transcript of chapter 13 debtor's minor child violated the automatic stay); In re Carson, 150 B.R. 228, 231 (Bankr.E.D.Mo.1993) (<HOLDING>); In re Gustafson, 111 B.R. 282, 288 (9th Holdings: 0: holding that debt collector violated fdcpa when it held debtor liable for court costs that had not yet been awarded 1: holding that state university violated 11 usc  362 and 525 by withholding debtors transcript where debt was dischargeable 2: holding that college violated stay by not delivering transcript to chapter 7 debtor when debt had not yet been determined dischargeable 3: holding that university violated the automatic stay by withholding chapter 7 debtors transcripts because the debts were not yet determined nondischargeable 4: holding  525 applies only where debt dischargeable


Input: We have jurisdiction under 28 U.S.C. § 1291, and we affirm. At sentencing, the district court applied a two-level increase of the offense level for possession of a firearm under U.S.S.G. § 2Dl.l(b)(l). Lemar contends the two-level increase was not warranted because there was no evidence indicating he or any of his co-conspirators possessed a firearm during the commission of their offenses. We review for clear error the district court’s finding that the defendant possessed a firearm during the commission of a narcotics offense. See United States v. Willis, 899 F.2d 873, 874 (9th Cir.1990). A criminal defendant can be held accountable for a firearm possessed by a co-conspirator, if the possession was reasonably foreseeable to the defendant as part of the criminal activity. See id. at 875 (<HOLDING>). Lemar testified at sentencing that during Holdings: 0: holding that prior possession of a firearm is admissible to show knowledge in a prosecution for knowingly possessing a similar weapon 1: holding that the statute qualifies as an exemption 3 statute 2: holding that the enhancement applied where the defendant possessed a firearm in connection with possessing methamphetamine 3: holding that actual knowledge of a coconspirator possessing a firearm qualifies as foreseeability 4: holding plaintiff can prove foreseeability by showing the defendant had actual or constructive knowledge of the assailants violent nature


Input: statement from the defendant that he would have accepted the plea if he were better advised); Underwood v. Clark, 939 F.2d 473, 476 (7th Cir.1991) (requiring some substantiation of petitioner’s claim outside of the petition itself before the claim acquires “sufficient credibility to warrant a further investment of judicial resources in determining the truth of the claim.”); Ellzey v. United States, 210 F.Supp.2d 1046, 1051 (C.D.Ill.2002) (citing Toro v. Fairman, 940 F.2d 1065 (7th Cir.1991)) (self-serving affidavit, albeit made under penalty of perjury, is insufficient to warrant an evidentiary hearing without additional objective evidence to support the alleged facts, especially when the government disputes those facts); Paters v. United States, 159 F.3d 1043, 1047 (7th Cir.1998) (<HOLDING>); Engelen v. United States, 68 F.3d 238, 240-41 Holdings: 0: holding that the injunction did not constitute a claim 1: holding that  1326b is a penalty provision and does not constitute a separate crime 2: holding that a petitioners declaration in support of his claim signed under penalty of perjury does not constitute objective evidence under toro 3: holding that the sentencing guideline governing perjury cases section 2j13 applies to perjury committed in civil as well as criminal proceedings 4: holding that a preprinted probablecause form sent to the magistrate judge which requires a signed statement by the declarant under penalty of perjury that the statements that follow are true satisfies the fourth amendment


Input: second day of trial, after AUE had, the City contends, elected its damages remedy by moving for summary judgment on liability on a breach of contract theory. We review questions of law de novo, see L-3 Commc’ns Corp. v. OSI Sys., Inc., 607 F.3d 24, 27-28 (2d Cir.2010), and conclude that the City’s arguments lack merit. First, although summary judgment is generally treated as the procedural equivalent of a trial, see S.J. Capelin Assocs., Inc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 341, 357 N.Y.S.2d 478, 313 N.E.2d 776 (1974), AUE’s motion for summary judgment addressed liability alone. Hence, to the extent the motion was the equivalent of a trial for these purposes, it did not address damages or rescission at all. Cf. Reilly v. Natwest Markets Grp. Inc., 181 F.3d 253, 263 (2d Cir.1999) (<HOLDING>). AUE cannot be deemed to have elected its Holdings: 0: holding quantum meruit unavailable to remedy invalid contract 1: holding that where plaintiff did not seek to rescind a contract and only sought quantum meruit recovery after a jury had determined an enforceable contract existed plaintiff was limited to recovery under the contract 2: holding supreme court had jurisdiction to find facts in accordance with its own view of the preponderance of evidence in subcontractors action against project owner seeking recovery under equitable doctrine of quantum meruit rather than recovery based on contract 3: holding that the evidence was insufficient for the statute of limitations to bar recovery of a quantum meruit cause of action 4: holding that a discharged firms recovery is limited to quantum meruit


Input: reduction and determining his criminal history category of III, together with a total offense level of 25, resulted in a Guidelines range of seventy to eighty-seven months. It also noted his seventy-month sentence, together with the consecutive firearm sentence of sixty months, resulted in a total sentence of 130 months. Two years later, Congress enacted the Fair Sentencing Act of 2010, which reduced the statutory mandatory minimum sentencing penalties for crack cocaine by significantly reducing the prior crack/powder ratio but which did not apply retroactively to defendants previously sentenced under the prior existing mandatory minimum sentencing statutes. See Pub.L. No. 111-220, 124 Stat. 2372 (Aug. 3, 2010). See also United States v. Lewis, 625 F.3d 1224, 1228 (10th Cir.2010) (<HOLDING>), cert. denied, — U.S.-, 131 S.Ct. 1790, 179 Holdings: 0: holding that a sentence was based on a mandatory statutory minimum sentence even though it was lowered under another statute 1: holding statutory reduction in mandatory minimum penalty based on new ratio is not retroactive 2: holding that even if the minimum mandatory exceeds the statutory maximum the court must impose the minimum mandatory 3: holding that the act is not retroactive 4: holding that the act is retroactive


Input: consent to a search cannot form any part of the basis for reasonable suspicion." Wood, 106 F.3d at 946; see United States v. Dozal, 173 F.3d 787, 794 (10th Cir.1999). Haley's conduct in relue-tantly agreeing to a search of the luggage and refusing to consent to a search of the car is not a cireumstance supporting reasonable suspicion. See United States v. Hunnicutt, 135 F.3d 1345 (10th Cir.1998)("Any other rule would make a mockery of the reasonable suspicion and probable cause requirements, as well as the consent doctrine. These legal principles would be considerably less effective if citizens' insistence that searches and seizures be conducted in conformity with constitutional norms could create the suspicion or cause that renders their consent unnecessary."); Karnes, 62 F.3d at 495 (<HOLDING>); United States v. Carter, 985 F.2d 1095, 1097 Holdings: 0: holding that the fact that defendant granted consent to police to search some items and then refused to give consent to additional searches cannot support a finding of reasonable suspicion 1: holding that refusal to consent to search cannot support a finding of reasonable suspicion 2: holding that consent searches do not require probable cause to justify the search of a home 3: holding the drivers refusal to consent to search of automobile did not give rise to reasonable suspicion that vehicle contained narcotics 4: holding that it was objectively reasonable for the police to conclude that the general consent to search the respondents car included consent to search a bag within that car


Input: We certify direct conflict with Richardson v. Holdings: 0: holding that probation is not a sentence 1: holding that minnesota stay of imposition is sentence for purposes of federal sentencing guidelines even if no term of probation was imposed 2: holding that it is sufficient grounds to revoke a probation if only one condition of the probation is broken 3: holding that probation does not constitute a sentence 4: holding that probation is a sentence for habitualization purposes


Input: 896 F.2d 605, 609 (1st Cir.1990). The Third Circuit has held that a defendant’s offer of proof which contains only a conclusory statement alleging falsity does not satisfy the “offer of proof’ requirement of Franks. United States v. Harvey, 2 F.3d 1318, 1328 (3d Cir.1993). Further, the Fifth Circuit in Williams v. Kunze, 806 F.2d 594 (5th Cir.1986), similarly held that a Franks hearing is not mandated where the record is devoid of a sworn statement supporting the defendant’s allegations of falsity. Id. at 599. The Tenth Circuit has stated that a defendant’s allegations of falsity alone do not meet the preliminary burden placed on the defendant under Franks. United States v. Ross, 920 F.2d 1530, 1533 (10th Cir.1990). The Ninth Circuit has even held that the productio Cir.1990) (<HOLDING>); United States v. Zambrano, 841 F.2d 1320, Holdings: 0: holding that the court could not conclude that the plaintiffs deposition testimony was so contradictory of the statements contained in plaintiffs affidavit as to foreclose the affidavits use for summary judgment purposes 1: holding that the defendants offer of the affiants sworn testimony to establish falsity of the warrant affidavit did not amount to a substantial preliminary showing of falsity under franks 2: holding that the government cannot rely upon affidavits not attached to the warrant itself to satisfy the particularity requirement 3: holding that because the information omitted from the affidavit was immaterial to the investigation there was no error in denying defendants motion for a franks hearing 4: holding that the defendants allegations that the warrant affidavit contained falsified information did not satisfy franks even though the defendants offer of proof consisted of twentynine 29 affidavits


Input: 7 .We also note that the burden on the government was not insignificant. Kennedy was seeking $18,000 merely to enable Arthur Anderson to assess how much money it then would need to conduct the audit that Kennedy requested. R.O.A. Supp.Vol. 14 (order of 5/4/93 at 5). 8 . In this regard, we distinguish the cases in which the denial of an expert psychiatrist was deemed a due process violation. Those cases recognized that when the defendant's mental state is an important issue and is seriously in question, and when obtaining an accurate assessment of that mental state is uniquely dependant on psychological expertise, an expert psychiatrist indeed becomes a basic and integral tool to presenting an adequate defense. See, e.g., Ake, 470 U.S. at 74, 80-83, 105 S.Ct. at 1091-92, 1094-96 (<HOLDING>); United States v. Sloan, 776 F.2d 926, 928-29 Holdings: 0: holding that due process entitled indigent defendant to psychiatrist to present insanity defense and crossexamine state psychiatrists because of the tremendous reliance jurors place on psychiatric testimony where there is often no single accurate psychiatric conclusion on legal insanity 1: recognizing a settled insanity defense where use of intoxicants were deemed to produce insanity either permanent or intermittent at the time of the offense 2: holding that a defendants insanity due to voluntary intoxication is not a defense 3: holding that due process entitled indigent defendant to psychiatrist to present defense of lack of capacity to form specific intent and to crossexamine governments psychiatrist on this point 4: holding that insanity is a complete defense to the criminal charge


Input: 1880, 1888 (Fed.Cir.1998). III Turning first to the summary judgment that claims 1 and 3 of the '880 patent were not infringed, we commence our plenary review of that ruling by determining the proper scope of the claims at issue. TurboCare Div. of Demag Delaval Turbomachinery Corp. v. Gen. Elec. Co., 264 F.3d 1111, 1120, 60 USPQ2d 1017, 1024 (Fed. Cir.2001). Claims 1 and 3 of the '880 patent require a “means for causing said at least one laser beam to strike the periphery of the energy zone for visibly outlining said entire energy zone.” The parties agree that those claims at issue are in means-plus-function format and therefore invoke the provisions of 35 U.S.C. § 112, ¶ 6. See Wenger Mfg., Inc. v. Coating Mach. Sys., Inc., 239 F.3d 1225, 1232, 57 USPQ2d 1679, 1684 (Fed.Cir.2001) (<HOLDING>). Section 112, paragraph 6, allows a paten-tee Holdings: 0: holding that if a document falls within the scope of the public records statute then the presumption favoring disclosure applies 1: holding that person as defined in njsa 112 does not include the state based on the fact that 1 the definition of person indicates that such term includes the state when it is used to designate the owner of property which may be the subject of an offense and 2 state and municipality are separately defined in njsa 112 2: holding that as to the scope of court review substantial evidence is a stringent limitation 3: holding that a claim was not indefinite for using the term selector because it was a standard component and its structure was well known in the art 4: holding that claim limitation using the term means for and not reciting any structure presumptively falls within the scope of  112  6


Input: To establish that the Customer List is entitled to trade secret protection until the trial on the merits, TMC must show a probability of success in proving that the Customer List is entitled to trade secret protection. 28. TMC did not show a probability of success in proving that the Customer List is entitled to trade secret protection pending trial on the merits because of 1) the extent to which the Customer List was known by employees and others involved in the business, 2) the lack of measures taken by AICE to guard the secrecy of the Customer List, and 3) the ease or difficulty with which the Customer List could be properly acquired or duplicated by others. (Emphasis added.) TMC does not challenge specific findings of fact. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex.1986) (<HOLDING>); Aldine Indep. Sch. Dist. v. Ogg, 122 S.W.3d Holdings: 0: holding that judgment on the pleadings will not be granted unless the movant clearly establishes that there are no material issues of fact and that he or she is entitled to judgment as a matter of law 1: holding that findings of fact are conclusive if supported by clear and convincing competent evidence even where the evidence might support contrary findings 2: holding that unless an affirmative defense is established as matter of law defendant bears burden of obtaining jury findings necessary to support defense 3: holding that motion to dismiss should not  be granted unless the moving party has established that there is no material issue of fact to resolve and that it is entitled to judgment in its favor as a matter of law 4: holding unchallenged findings of fact are binding unless contrary is established as matter of law or there is no evidence to support finding


Input: appeals did not present any analysis, it is clear that the court made a choice of law decision. This Court presumes that the court of appeals followed the directive of the Supreme Court despite the absence of any explicit discussion on the threshold choice of law issue. 41 . The Fifth Circuit does not cite authority to justify this part of its holding. Defendants attempt to distinguish Griffin because there are no funds on deposit withthis Court (or in any court) for any of the Plaintiffs. Other Texas cases establish, however, that the policy proceeds do not have to be located in Texas for the insurable interest doctrine to apply. The doctrine serves to protect the lives of Texas citizens irrespective of the vagaries of the location of the policy proceeds. See Cheeves, 28 S.W. at 275 (<HOLDING>); Tamez, 999 S.W.2d at 15 ("[I]t is against Holdings: 0: recognizing the public interest exception 1: holding that the primary justification of insurable interest doctrine was that the public has an interest that no inducement shall be offered to one man to take the life of another 2: holding in 1894 that it is against the public policy of this state to allow any one who has no insurable interest to be the owner of a policy of insurance upon the life of a human being 3: holding that insurable interest doctrine does not entitle deceased insureds estate to a reformation of the insurance contract but a constructive trust on the policy proceeds 4: holding that the primary and overarching consideration in custody determination is the best interest of the child


Input: conclude” that the IJ and the BIA ruled erroneously. See INA § 242(b)(4)(B), 8 U.S.C. § 1252(b)(4)(B); 8 U.S.C. § 1101(a)(42)(A). As Thap has not established that there was any past persecution, there is no presumption that he would be subject to persecution upon returning to Cambodia such that the burden of rebutting that presumption would shift to the government. Therefore, the court finds that Thap cannot establish a clear probability of persecution in Cambodia on the basis of any past persecution to which Thap or his family were subject. We next examine whether Thap can prove that there is a future threat of persecution based on a protected ground should he return to Cambodia. Almuhtaseb, 453 F.3d at 750 (citations omitted); Knezevic v. Ashcroft, 367 F.3d 1206, 1214 (9th Cir.2004) (<HOLDING>); 8 C.F.R. § 1208.16(b). Again, Thap has not Holdings: 0: holding that the asylum standard for past persecution or wellfounded fear of future persecution is lower than the clear probability standard to show eligibility for withholding of removal 1: holding that absent a pattern of persecution linked to the applicant persecution of family members is insufficient to demonstrate a wellfounded fear of persecution 2: holding that a wellfounded fear requires petitioner to show more than a generalized or random possibility of persecution 3: holding that general crime conditions are not a stated ground for a wellfounded fear of future persecution 4: holding that such a report provided substantial evidence to support the conclusion that petitioner failed to demonstrate a wellfounded fear of future persecution


Input: When no definite term is set forth in a contract, the contract is terminable at will. Maddaloni v. Western Mass. Bus Lines, Inc., 386 Mass. 877, 879, 438 N.E.2d 351 (1982); Simons v. American Dry Ginger Ale Co., 335 Mass. at 524-25, 140 N.E.2d 649; Fall River Housing Joint Tenants Council, Inc. v. Fall River Housing Auth., 15 Mass.App.Ct. 992, 994, 448 N.E.2d 70 (1983) and cases cited. Mass Cash does not dispute the lack of dura-tional term in the contract, but it seeks to fit its contract into the category of cases which hold that where a contract contemplates the achievement of a definite end, but is silent as to its duration, a reasonable time is implied based on all relevant evidence. See, e.g., Thermo Electron Corp. v. Schiavone Construction Co., 958 F.2d 1158, 1164 (1st Cir.1992) (<HOLDING>); Bushkin Assoc., Inc. v. Raytheon Co., 815 Holdings: 0: holding that an allegation as to the time of the offense is not an essential element of the offense charged in the indictment and within reasonable time limits proof of any date before the return of the indictment and within the statute of limitations is sufficient 1: holding that statutorilyrequired settlement of corporate net income taxes must be performed within the prescribed time limits 2: holding that the relevant time is the time of the employment decision 3: holding that for a suit to be brought in the venue in which the contract was to be performed the contract must expressly state where the performance of the contract was to occur 4: holding contract to sell a project which contained no time limits was to be performed within a reasonable time as determined by the court based on all the evidence


Input: facility; (iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and (iv) the type of operation or operations of the covered entity, including the composition, structure and functions of the workforce of such entity.” 42 U.S.C. § 12111(10)(B). JC Penney challenges Bukta’s proposed accommodation, arguing that a part time schedule imposes an undue hardship on its business by eliminating the essential job requirement of attendance. Essential function means the fundamental duties of the position. 29 C.F.R. § 1630.2(n)(l). Attendance can be an essential job function. See Brenneman v. MedCentral Health System, 366 F.3d 412 (6th Cir.2004) (<HOLDING>); Gantt v. Wilson Sporting Goods Co., 143 F.3d Holdings: 0: holding that attendance can be an essential function of a position and that excessive absenteeism rendered an employee unqualified for such a position 1: holding governments position unreasonable where government advanced no legal authority for its position and applicable principle of law was long settled 2: recognizing that an employers decision to eliminate a position is a legitimate nondiscriminatory reason for terminating a position or employee 3: holding that attendance is a minimum function of any job 4: holding attendance problem was a legitimate basis for an employers termination of an employee


Input: 541, 551, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999) (“Our prior decisions have made clear that a jurisdiction may engage in constitutional political gerrymandering, even if it so happens that the most 'loyal Democrats happen' to be black Democrats and even if the State were conscious of that fact.”); Miller v. Johnson, 515 U.S. 900, 914, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995) (“[R]edistricting in most cases will implicate a political calculus in which various interests compete for recognition .... ”); Gaffney, 412 U.S. at 753, 93 S.Ct. 2321 (“Politics and political considerations are inseparable from dis-tricting and apportionment.”); see also Cooper v. Harris, — U.S. —, 137 S.Ct. 1455, 1488, 197 L.Ed.2d 837 (2017) (Alito, J., concurring in the judgment in part and dissenting in part) (<HOLDING>); Whitford v. Gill, 218 F.Supp.3d 837, 934-35 Holdings: 0: holding that case was justiciable when at least some of the appellants have a sufficient personal stake  in its adjudication 1: holding that convictions under  111 require at least some form of assault 2: recognizing the constitutionality of at least some amount of political gerrymandering 3: holding that persecution was on account of political opinion because petitioners prosecutorial investigation into acts of political corruption was by its very nature political 4: holding illinois wage law only applied where at least some work was performed within the state


Input: him, and likewise did not list himself as a party on appeal in his client’s notice. Moreover, Jones's brief in this action was filed on January 11, 2006, which was over two months after the final judgment was entered and well after the deadline for filing a notice of appeal had expired. See Fed. R.App. P. 4(a)(1)(A). Accordingly, we DISMISS the appeal as to the entry of sanctions. 2 . Jones was terminated in May 2003, but did not file a claim with the EEOC until July 2004, which was well after expiration of the 180-day limitation period enumerated in Title VII. See 42 U.S.C. § 2005e-5(e)(l); 42 U.S.C. § 12117(a). And he made no argument in favor of equitable tolling of the limitation period. Cf. Forehand v. Fla. State Hosp. at Chattahoochee, 89 F.3d 1562, 1570 n. 17 (11th Cir.1996) Holdings: 0: holding that the timely filing of a discrimination charge with the eeoc is not a jurisdictional prerequisite but a requirement that like a statute of limitations is subject to waiver estoppel and equitable tolling 1: holding that the filing deadline under title vii is not a jurisdictional prerequisite to suit in federal court but a requirement that like a statute of limitations is subject to waiver estoppel and equitable tolling 2: holding that the timely filing of a discrimination charge with the equal employment opportunity commission is a requirement like a statute of limitations that is subject to waiver estoppel and equitable tolling 3: holding that the 120day filing period is subject to equitable tolling and addressing circumstances warranting equitable tolling 4: holding that the timely filing of an eeoc charge is subject to waiver estoppel and equitable tolling


Input: the waiver of his constitutional rights, and signed the written admonishments only after reviewing the documents with his attorney. In addition, appellant waived his right to a jury trial and understood that once sentences were pronounced, he would not have the opportunity to plea “not guilty” or contest the charges. Appellant’s new counsel filed a motion to withdraw his pleas of guilty and pleas of true prior to the PSI hearing. Appellant stated he had felt pressured by his former attorney to enter the pleas. At the PSI hearing, the trial court allowed argument on this motion. The trial court, exercising its discretion, denied the motion. There is no evidence in the record to show an abuse of discretion by the trial court. See DeVary v. State, 615 S.W.2d 739, 740 (Tex.Crim.App.1981) (<HOLDING>); Stancliff v. State, 852 S.W.2d 639, 640-41 Holdings: 0: holding that the district court did not abuse its discretion in denying the defendants request for severance because the district court nullified any prejudicial error when it repeatedly admonished the jury throughout the trial to consider the evidence only against the defendant to whom it related and at the end of trial gave the jury instructions that admonished the jury to consider separately each offense and evidence in support of each offense 1: holding trial court did not abuse its discretion by ruling based only on affidavits 2: holding that the trial judges failure to admonish the appellant regarding the range of punishment was harmless because the record was replete with statements by the parties concerning the punishment range and because there was nothing in the record to indicate that the appellant was unaware of the range of punishment 3: holding the trial court did not abuse its discretion although the defendant had been admonished incorrectly on the punishment range 4: recognizing the range of discretion of the trial judge


Input: In that case, jurisdiction existed when the case was filed and the question was whether the amended complaint subsequently divested the court of jurisdiction; here, plaintiffs argue the inverse. Id. Similarly, several other cases relied on by plaintiffs relate to amended rather than supplemental complaints, and thus are not on point. 4 . Recent cases bring into question whether the statutory limitations implicated in these cases are truly jurisdictional or are "nonjuris-dictional ‘claim-processing rules.’” See Gonzalez v. Thaler, - U.S. -, 132 S.Ct. 641, 648, 181 L.Ed.2d 619 (2012) (noting that in the past, the Court was less than meticulous in rendering statutory language jurisdictional); Henderson ex rel. Henderson v. Shinseki, - U.S. -, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011) (<HOLDING>); Reed Elsevier, Inc. v. Muchnick, — U.S. -, Holdings: 0: holding that the federal expert witness compensation rules are in direct conflict with the state rules even when the state rules allow for a greater recovery 1: holding that a 120day filing deadline for seeking review by the us court of appeals for veterans claims was a claimprocessing rule that lacked jurisdictional attributes 2: holding that the 120day filing deadline at issue was ajmong the types of rules that should not be described as jurisdictional but rather claim processing rules 3: holding that the 180day filing deadline is jurisdictional and mandatory 4: holding that an agency filing deadline set forth in a regulation as a rule of administrative convenience is not jurisdictional


Input: is admissible). The designated evidence submitted in the present ease revealed that the personal injuries suffered by Rainwater in the accident caused severe pain and prevented him from working resulting in severe depression and an addiction to pain medication. Shortly before the suicide, Rainwater called 911, strangled and beat his former spouse, and tried to set the house on fire. After being arrested, Rainwater beat his head and hands on the door of his cell until police subdued him with foam. After that, Rainwater hanged himself in his cell. The resolution of the present case hinges upon determinations of proximate cause and decedent’s state of mind, matters which ordinarily must be decided by the jury and not by way of summary judgment motion. See McKinney, 597 N.E.2d at 1005-06 (<HOLDING>); Nelson, 634 N.E.2d at 512 (holding that issue Holdings: 0: holding that courts should require very little evidence to survive summary judgment in a discrimination case because the ultimate question is one that can be resolved only through a searching inquiry  one that is most appropriately conducted by the factfinder upon a full record 1: holding that credibility determinations should not be resolved at the summary judgment stage 2: holding that issue of whether death was proximately caused by intervenihg and superseding cause was not appropriately resolved by summary judgment 3: holding that whether pleadings fail to state a cause of action may not be resolved by summary judgment 4: holding that the issue of defendants actual knowledge should not be resolved on summary judgment but should be left to the trier of fact


Input: the issue of whether a grace period, i.e., a period between the recognition of the right to obtain a marriage license and a couples' obligation to do so, might otherwise be warranted. Additionally, because marriage was .available to same-sex couples at the time of Mr. Sapp’s death, the Court does not address the parties’ respective arguments regarding the earlier availability of domestic partnership. 7 . The terms “lawful” and "valid” aré nearly synonymous in this context, and cases "tend[ ] . to use the latter term in enunciating the doctrine.” Vryonis, 202 Cal. App. 3d at 723, 248 Cal.Rptr. 807 (citations omitted). "Although ' in many situations there is little practical difference between lawful and valid," the use of the latter term "may engender confusion” in some contexts. Id (<HOLDING>). "The putative marriage doctrine protects the Holdings: 0: holding that the belief in a valid religious marriage is insufficient to come within the doctrine 1: holding that the test for good faith is the actual belief of the party and not the reasonableness of that belief 2: holding that the law to be applied in determining the validity of  an outofstate marriage is the law of the state in which the marriage occurred 3: recognizing doctrine 4: recognizing that basis for deportation was aliens misrepresentation about his marriage not the validity of his marriage


Input: judicial review of merely discretionary decisions,” and citing Yang v. INS, 109 F.3d 1185, 1195 (7th Cir.1997)). Because IIRI-RA expressly preclud .2d 1434, 1435 (9th Cir.1986) (affirming district court’s denial of preliminary injunction that would interfere with Attorney General’s discretionary power to choose facility where deportable aliens were detained in absence of proof of actual deprivation of statutory right to counsel or denial of due process). Thus, the complaint does not allege that an actual or continuing constitutional violation had occurred that could be remedied by judicial action. We emphasize, however, that our holding in this case has no application to constitutional habeas claims brought pursuant to 28 U.S.C. § 2241. See Jurado-Gutier-rez, 190 F.3d at 1145-47 (<HOLDING>). While the immigration statutes may not Holdings: 0: holding that iirira does not bar us from staying removal orders pending resolution of petitions for review 1: holding that review under  2241 still available notwithstanding express language in iirira barring review by any court of final orders of removal for aliens deportable by reason of having committed a criminal offense and distinguishing between direct and collateral review 2: holding that the real id act gave us jurisdiction to review a criminal aliens petition for review of an order of removal raising a question of law 3: holding that noncriminal aliens could seek review of the agencys orders through either a petition for review or a  2241 petition 4: holding that iirira  309c4g repealed this courts jurisdiction over petitions for review filed by aliens who are deportable for having committed enumerated criminal offenses but did not repeal 28 usc  2241


Input: the Perry factors, namely, whether the statute puts the public on notice by clearly defining the required conduct. See Perry, 973 S.W.2d at 309. Of all the considerations set forth in Perry, we believe this factor is the most relevant to the statute at issue in this case because a statute which defines a violation in conditional terms is less likely to support the application of negligence per se than one which provides an absolute, and thus more definite, standard of care. Accordingly, we must determine whether the standard of conduct found in section 61(a) was defined with sufficient clarity to impose tort liability for a violation of that statute. See Perry, 973 S.W.2d at 309. Although article 6701d, entitled “Uniform Act Regulating Traff .App. — Houston [14th Dist.] 1972, no writ) (<HOLDING>); Hemphill v. Meyers, 469 S.W.2d 327, 328 Holdings: 0: holding that whether a driver safely entered an intersection as per section 71c depends upon whether he acted prudently 1: holding that whether a driver operated his vehicle on an improved shoulder in safety as per section 54a depends upon whether he acted reasonably under the common law 2: recognizing that whether a consumer survey should be admitted depends among other things on whether the questions are leading or suggestive  3: holding whether these explanations are reasonable or not depends upon matters that the jury must decide including witness eredibility 4: holding that whether a driver yielded the right of way as per section 74 depends upon whether he acted negligently or unreasonably


Input: as follows: 980.07 Periodic examination; report. (1) If a person has been committed under s. 980.06 and has not been discharged under s. 980.09, the department shall conduct an examination of his or her mental condition within 6 months after an initial commitment under s. 980.06 and again thereafter at least once each 12 months for the purpose of determining whether the person has made sufficient progress for the court to consider whether the person should he placed on supervised release or discharged. At the time of a reexamination under this section, the person who has been committed may retain or seek to have the court appoint an examiner as provided under s. 980.03 (4). See State ex rel. Marberry v. Macht, 2003 WI 79, ¶ 15, 262 Wis. 2d 720, 665 N.W.2d 155 (Sykes, J., lead opinion) (<HOLDING>). 12 Wisconsin Stat. § 980.07(2) provides as Holdings: 0: holding inter alia that wis stat  980071 allows a ch 980 committee to retain an independent examiner 1: holding that time limits in wis stat  980071 are mandatory 2: holding that the time limits in the equal access to justice act are jurisdictional 3: holding that time limits in title vii are not jurisdictional but are instead like statutes of limitations 4: holding that a requesting party may immediately bring an enforcement action if an open records law request is denied and that such actions are exempt from the notice provisions of wis stat  893801


Input: beyond that normally present in first-degree murder.” Brown, 315 N.C. at 65, 337 S.E.2d at 827. State v. Gibbs, 335 N.C. 1, 61-62, 436 S.E.2d 321, 356 (1993), cert. denied, 512 U.S. 1246, 129 L. Ed. 2d 881 (1994). In this case the evidence, when viewed in the light most favorable to the State, reveals that this murder falls within the scope of each of the above categories. First, the evidence permits the inference that the killing was physically agonizing to the victim. After shooting the victim four times, defendant repeatedly kicked and pistol-whipped the helpless victim. The victim was conscious and in extreme pain for at least fifteen minutes after the shooting and assault, attempting to talk despite his broken jaw and wounded tongue. See Brown, 315 N.C. at 67, 337 S.E.2d at 828 (<HOLDING>). Further, the evidence permits the inference Holdings: 0: holding that evidence that the victim was conscious for fifteen minutes after being shot six times supports a finding that the victim suffered great physical pain prior to death 1: holding that where the dying victim remained conscious for fifteen minutes the evidence was sufficient to show that the victim knew that he was dying but was helpless to prevent it 2: holding the harmed victim need not be the victim of the offense of conviction 3: holding that the witnesss prior statement that the victim was lying flat on his back when he was shot impermissibly contradicted the witnesss trial testimony that the victim was on top of another individual at that time 4: holding evidence of serious physical injury insufficient where victim was shot in right cheek but did not have to have surgery and victim denied having any longterm effects from the shooting


Input: Morales, 98 S.W.3d 343, 348 (Tex.App.-Corpus Christi 2003, pet. denied). The answer to the question of whether prejudgment interest may be calculated on attorneys’ fees that have been paid prior to judgment, as in this case, is less than clear, with our sister courts splitting on the issue, and the supreme court remaining silent. The Dallas Court of Appeals has expressly held that .under no circumstances may prejudgment interest be recovered on attorneys’ fees. See Carbona v. CH Med., Inc., 266 S.W.3d 675, 688 (Tex.App.-Dallas 2008, no pet.). However, other courts have taken a less rigid view and have allowed a trial court to award prejudgment interest on attorneys’ fees paid prior to judgment. See Nova Cas. Co. v. Turner Const. Co., 335 S.W.3d 698, 706 (Tex.App.-Houston 2011, no pet.) (<HOLDING>); Williams v. Colthurst, 253 S.W.3d 353, 362 Holdings: 0: holding that district court did not abuse its discretion in awarding prejudgment interest at the colorado statutory rate of 8 percent 1: holding trial court erred in awarding attorneys fees to physicians in absence of any evidence of attorneys fees 2: holding in patent litigation that district court did not abuse its discretion by awarding simple rather than compound prejudgment interest 3: holding that the trial court did not abuse its discretion in awarding prejudgment interest on attorneys fees paid prior to the entry of judgment 4: holding in adea action that district court did not abuse its discretion by awarding compound rather than simple prejudgment interest


Input: (refusing to challenge the agency’s standards for determining which applicant is more qualified). Therefore, this argument also fails to rebut the defendant’s legitimate non-retaliatory reason. Finally, the plaintiff attempts to rebut the defendant’s non-retaliatory reason by arguing that it is insufficient on its face because the defendant caused her inability to work through the agency’s discriminatory practices. Compl. ¶ 13. The result of the plaintiffs hostile work environment is instructive on this point: if “the complained of conduct in this case does not rise to the level” of a hostile work environment, the plaintiffs argument fails to adequately rebut the defendant’s non-discriminatory reason. Peda v. Am. Home Prods. Corp., 214 F.Supp.2d 1007, 1020 (N.D.Iowa 2002) (<HOLDING>). Because the plaintiff could still succeed on Holdings: 0: holding that the allegations of plaintiffs coemployees of sexual harassment by manager were irrelevant to plaintiffs hostile work environment claim absent evidence that plaintiff was contemporaneously aware of the alleged harassment 1: holding that the plaintiffs argument that the defendant caused plaintiffs inability to return to work cannot hold water because the socalled causation was insufficient to rise to the level of actionable harassment 2: holding that a defendants notice of prior harassment against victims other than the plaintiff can give rise to title ix liability so long as the defendant possessed enough knowledge of the harassment that it could reasonably have responded with remedial measures to address the kind of harassment upon which the plaintiffs legal claim is based 3: holding that a hostile work environment was sufficient to constitute constructive discharge because the harassment was expressed by the plaintiffs supervisor and the offending language was not only used in the plaintiffs presence but was directed at him 4: holding that counsels failure to advise the defendant of the collateral consequences of a guilty plea cannot rise to the level of constitutionally ineffective assistance


Input: plain at the time of appellate review. See Pirani, 406 F.3d at 550. To satisfy the third Olano factor, Paz must prove by a preponderance of the evidence that there exists “a reasonable probability that he would have received a more favorable sentence with the Booker error eliminated by making the Guidelines advisory.” Id. at 551. Paz cannot demonstrate that there exists. a reasonable probability that the district court would have imposed a more favorable sentence under an advisory guidelines system. First, the district court, in its discretion, chose to depart upward because Paz’s criminal history category substantially under-represented the seriousness of his criminal history and the likelihood he would commit other crimes. See United States v. Sayre, 400 F.3d 599, 601 (8th Cir.2005) (<HOLDING>). Second, not only did the district court Holdings: 0: holding guidelines to be only advisory 1: holding that the cocaine guidelines  are advisory only 2: holding that the district court which had considered the guidelines but found an upward variant sentence necessary given the defendants previous violations did not abuse its discretion when it imposed a 24month sentence instead of a guidelines range sentence of 3 to 9 months incarceration 3: holding that the district court did not violate the defendants right to due process when it departed upward to life imprisonment pursuant to  5k221 because his sentence was within the maximum set forth in the united states code for the offense of conviction 4: recognizing the futility of remanding a sentence for the application of advisory guidelines where the district court had previously departed upward


Input: contract. Additionally, under SES’s subcontract, SES declared that “it ha[d] investigated all pertinent conditions relative to the performance of the work contained in this Agreement, knowing the character, quantities and sources of materials to be used in performing the work, [and] the labor conditions prevalent in the area in which the work is to be performed.” SES does not seek the difference between the 00812 rate and the 00813 rate as damages. Cf. Morrison-Hardeman-Perini-Leavell v. United States, 183 Ct.Cl. 938, 392 F.2d 988, 997 (1968) (noting that contractor can recover against government, where government directed contractor to pay, both retroactively and in future, new higher minimum prevailin Servs., L.P., 317 S.W.3d 431, 456 (Tex.App.-Houston [1st Dist.] 2010, pet. filed) (<HOLDING>). We reject SES’s reliance on these cases. Holdings: 0: recognizing a defense immunizing federal contractors from liability where the contractor has conformed its behavior to precise government specifications and if necessary has warned the government of risks posed by those specifications 1: holding that where owner and contractor frequently discussed progress of construction project and advancement of money by owner to contractor and contractor misappropriated some of the money debt was not excepted from discharge under bankruptcy code  523a2 because owner did not show that contractor had intent not to perform when the agreement was made 2: holding that contractor was not precluded from recovering damages against owner for defective specifications stated in contract notwithstanding lumpsum and prebid investigation provisions in contract because owner made positive assurances concerning reliability of said specifications 3: holding that the government could not charge contractor excess cost of relet contract where the governments specifications were impossible to meet government changed the specifications but did not change the price to be paid original contractor refused to perform and new contractor was paid more to meet new specifications 4: holding original contractor not liable for additional cost of relet contract where significant changes were made to the construction specifications


Input: 1, 40, 748 A.2d 1, cert. denied, 359 Md. 335, 753 A.2d 1032 (2000). Thus, even if the issue were preserved for review, we would discern no reversible error. Nor do we see reversible error in the prosecutor’s reaction, in the jury’s presence, to the objection when it came. At the bench conference that followed, counsel for appellant Varela objected to the prosecutor’s “giving his theory of expert testimony in front of the jury.” The court admonished the prosecutor to desist from making such statements in front of the jury. No further relief was requested by any appellant. In the absence of a request for relief, either in the form of a curative instruction or a mistrial, appellants have nothing about which to complain. See Lamb v. State, 141 Md.App. 610, 644-45, 786 A.2d 783 (2001) (<HOLDING>). In any event, we are hard pressed to find Holdings: 0: holding harmless an inadmissible comment as prejudicial effect was removed by district courts curative instruction 1: holding that where an objection is sustained and curative instruction given and no further relief such as a mistrial additional curative instruction or striking of the offending comment is requested there is nothing for the appellate court to review 2: holding that no issue is preserved for appellate review if the objecting party accepts the judges ruling and does not contemporaneously make an additional objection to sufficiency of the curative charge or move for a mistrial 3: holding that when an objection is overruled failing to request curative instructions or a mistrial does not result in waiver 4: holding that when no objection was made to jury instruction evidence to support finding based on instruction should be assessed in light of the instruction given


Input: add one point to an offender score if it finds by a preponderance of evidence that the defendant was under community custody when he committed the current offense. Former RCW 9.94A.525(19) (2007); State v. Jones, 159 Wn.2d 231, 239 n.7, 241, 149 P.3d 636 (2006), cert. denied, 549 U.S. 1354 (2007). Here, the State correctly concedes that no evidence supported this finding. Accordingly, we remand for resentencing. C. Same Criminal Conduct ¶28 Jackson further argues that the sentencing court erred when it declined to hold that his DUI and reckless driving convictions were the same criminal conduct under RCW 9.94A.525(5)(a)(i). He did not raise this issue at the sentencing court and has waived the right to appeal it. In re Pers. Restraint of Shale, 160 Wn.2d 489, 496, 158 P.3d 588 (2007) (<HOLDING>). D. Remedy ¶29 The remaining concern is the Holdings: 0: holding that defendant failed to raise a constitutional issue at trial and thus failed to preserve the issue for appellate review 1: holding the issue of standing is waived if not asserted at the district court level 2: holding that defendant failed to raise a constitutional issue at trial and thus waived appellate review of that issue 3: holding that the defendant waived the issue on appeal when he failed to contemporaneously object to the admission of such evidence at trial 4: holding that issue waived when the defendant failed to ask the court to make a discretionary call of any factual dispute regarding the issue of same criminal conduct and he did not contest the issue at the trial level


Input: discovering their wrongdoing. Davis was not a case where the plaintiff recognized a basis for a lawsuit but was persuaded to forego enforcing her right until after the statute of limitations expired. The policy underlying equitable estoppel would certainly justify its application to the fiduciary relationship allegedly abused in Davis. However, S.A.P. should not be read to let in thro d 1049 (Fla. 4th DCA 1991) (determining insurer equitably estopped from raising statute of limitations defense, when it agreed to appellant's demand to arbitrate, and had helped to pick arbitrators before five-year period for claim proceeding to arbitration ended); Baptist Hosp. of Miami, Inc. v. Carter, 658 So.2d 560 (Fla. 3d DCA 1995), abrogated by May v. Ill. Nat’l Ins. Co., 771 So.2d 1143 (Fla.2000) (<HOLDING>); Alachua County v. Cheshire, 603 So.2d 1334 Holdings: 0: holding estate of decedent estopped where widow affirmatively told hospital that estate had no assets and would not be probated where decadents estate in fact did have assets to pay unpaid medical bills 1: holding that for estate tax purposes property is to be valued as it exists in the hands of the estate 2: holding that the decedents estate had standing because the traditional requirement that the plaintiff show an injury in fact that is fairly traceable to the conduct of the defendant is met by the allegation in the complaint that the defendants actions resulted in the diminishment of the assets of the estate 3: holding that a legal malpractice claim arising from errors by an attorney in rendering estateplanning services is properly brought by the personal representative of the estate when excess estate taxes are paid by the estate in contravention of the decedents intended estate plan 4: holding that the debtors false statements about the location of assets of the estate were material to the proceedings


Input: guest was precluded when insured’s promise to maintain insurance on home insured was not currently occupying showed insured’s intent that insurance was to benefit guest living in home), citing Alaska Ins. Co. v. RCA Alaska Commun., 623 P.2d 1216 (Alaska 1981) (commercial tenant was implied coinsured for limited purpose of defeating insurer’s subrogation claim when lease provision required landlord to obtain and keep in effect insurance on premises). Although an insurance company has the right to recover against a wrongdoer whose conduct has subjected the insurance company to liability, no right of subrogation can arise in favor of an insurer against its own insured. Jindra v. Clayton, 247 Neb. 597, 529 N.W.2d 523 (1995). See, also, Fellmer v. Gruber, 261 N.W.2d 173 (Iowa 1978) (<HOLDING>); Housing Inv. Corp. v. Carris, 389 So. 2d 689 Holdings: 0: holding that contractual privity between the buyer and seller was not necessary for a cfa claim 1: holding that seller carried insurance for benefit of buyer and held proceeds in trust for buyer when seller agreed to maintain insurance until possession date but bam burned before buyer took possession 2: holding that breach occurred when seller told buyer that seller would do no more to rectify alleged warranty violation 3: holding that a seller could enforce an arbitration provision against a buyer even though only the buyer had signed the provision 4: holding that broker who represents seller cannot represent buyer in purchase of property from seller without sellers knowledge and consent


Input: because, whereas the latter is necessarily satisfied out of, and thus constitutes a property interest in, marital property, the former is not satisfied out of, and thus cannot constitute a property interest in, marital property — instead, the former will be satisfied out of property that either no longer constitutes, or never constituted, marital property. The Court notes that its holding regarding the dichotomy that exists between in kind relief and equalization relief vis-a-vis the classification of a pre-petition equitable distribution right is not all that novel since at least one other court has also found such a dichotomy to exist, see In re Emelity, 251 B.R. 151, 154-157 (Bankr.S.D.Cal.2000), although such court’s analysis differs from this Court’s in other regards, see Id. (<HOLDING>). Also, so as to compare this Court’s decision Holdings: 0: holding that when a creditor files a proof of claim the bankruptcy court has core jurisdiction to determine that claim even if it was a prepetition contract claim arising under state law 1: holding that every prepetition debt is discharged subject to the provisions of  523 2: holding that creditors cannot allow postpetition funds to be automatically applied to a prepetition indebtedness absent some positive indication that debtors indeed intend to voluntarily assume their prepetition debts 3: holding that a prepetition equitable distribution right to equalization relief constitutes a discharged prepetition claim and distinguishing while agreeing with in re marriage of seligman 14 calapp4th 300 18 calrptr2d 209 214215 1993 wherein it was held that a prepetition equitable distribution right to in kind relief does not constitute a prepetition claim 4: holding that provision in prepetition agreement which precluded sale of assets by debtor was not a bar to a sale under section 363 because prepetition agreements purporting to in terfere with a debtors rights under the bankruptcy code are not enforceable


Input: provision will include Buyer, Seller and Broker, will be awarded reasonable attorneys’ fees costs and expenses. However, as Regency pointed out, it is not a party to the Contract. According to the language of the Contract, the “prevailing party” only pertains to the “Buyer, Seller, or Broker.” P.C.D.’s reliance on authority enlarging the meaning of the word “party” is misplaced because the courts in those cases are referring to parties to a lawsuit, not parties to a contract. See, e.g., Lage v. Blanco, 521 So.2d 299, 300 (3d DCA Fla. 1988). The fact that Regency may have had some rights arising from the Contract due to its status as first lienholder does not make Regency a formal party to the Contract. See, Gwen Fearing Real Estate, Inc. v. Wilson, 430 So.2d 589, 591 (4th DCA Fla.1983)(<HOLDING>). Likewise, seeking its own affirmative relief Holdings: 0: holding defendant liable for attorneys fees when the guaranty contract at issue provided for the payment of collection costs and expenses 1: holding that broker whose contract called for commission on sale of property was not entitled to commission on transfer of property to partnership in which owner had an interest and that because broker was not entitled to commission under terms of his contract he also could not recover against a third person on theory of tortious interference with that contract 2: holding defendant waived request for fees pursuant to contract provision by only generally referring to fees in the answer and not citing the contract 3: holding that when neither real estate brokers licensing statute nor its legislative history indicated that legislature intended unenforeeability of unlicensed brokers commission agreement broker was entitled to retain commission paid 4: holding broker not a party to a purchase contract and therefore not liable for attorneys fees even though provision providing for payment of the brokers commission was contained in the contract


Input: v. Cont'l Cas. Co., 732 A.2d 1236, 1248 (Pa.Super.1999). As such, JNOV is only proper where, when viewing the evidence in the light most favorable to the verdict winner, the facts are so clear that reasonable minds could not disagree that the verdict was improper. Burton-Lister, 798 A.2d at 236. “JNOV ... may not be employed to invade the province of the jury.... Thus, where the jury has been presented with conflicting evidence, a motion for JNOV should be denied.” Rohm & Haas Co., 732 A.2d at 1248 (internal citations omitted). Initially, we observe that Tube City presents no argument in support of its claim that the trial court should have entered JNOV on the negligent misrepresentation count, and so we will not consider it. See Owens v. Mazzei, 847 A.2d 700, 705-06 (Pa.Super.2004) (<HOLDING>). With regard to fraud, Tube City argues that Holdings: 0: holding that the petitioners failure to address an issue in the argument portion of his opening brief waived the issue 1: holding that the superior court will not address an issue presented in the statement of questions involved where no corresponding analysis is included in the brief 2: holding that issues   not explicitly raised in the statement of questions involved are  waived 3: holding that this court will not address the merits of an issue presented for the first time in a reply brief 4: holding that issue not explicitly raised in appellants statement of the questions involved is waived


Input: Japan was not satisfied. 15 . In Byrd, the defense counsel "did not reveal the name of the individual officer, nor turn over log books, as had been requested by plaintiff's counsel.” See the case cited supra note 11. In fact, the defense counsel in Byrd did not comply with the plaintiff's repeated requests and disclose the name of the new defendant until after the limitations period ran. Id. 16 . The Court concluded that Enron failed to establish that relief was warranted under Cornwell. The Cornwell court held that when a plaintiff possessed information related to an added defendant's identity and its involvement in the alleged transactions, there is no mistake in identity and the failure to have named that new defendant is considered “a matter of choice.” Cornwell, 23 F.3d at 705 (<HOLDING>). In reaching its conclusion, the Cornwell Holdings: 0: holding that threatening employee to mind her own business investigating her videotaping her without her permission and forcing her to take polygraph could not be considered adverse employment actions because they had no effect on conditions of employment 1: holding that plaintiffs motion to amend her complaint to add her husband as a defendant did not relate back because her failure to sue her husband was not due to misnomer or mistake involving the identity of the proper party but because the law at the time of the complaint did not allow one spouse to sue another in tort 2: holding that the plaintiffs second complaint did not relate back to her first complaint because her second complaint was not an amendment to her first complaint but rather a separate filing 3: holding that cornwell was not required to sue them and her failure to do so in the original complaint in light of her obvious knowledge and the detailed nature of that pleadings exhibit must be considered a matter of choice not mistake 4: holding in a case where a pro se plaintiff changed the date on which she allegedly received a right to sue letter between her complaint and her amended complaint that although her modification of the crucial detail of the receipt date was problematic to say the least the proper response was not to strike or dismiss an amended complaint based solely on contradictory statements or those inconsistent with prior pleadings