Input: days: Any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges. If an individual has been charged with a felony in a district in which no grand jury has been in session during such thirty-day period, the period of time for filing of the indictment shall be extended an additional thirty days. 18 U.S.C. § 3161(b). 4 . The indictments, though, need not allege identical facts. As Perez demonstrates, minor variations in the facts alleged in the indictments will not prevent an initial indictment from tolling the STA clock. Perez, 217 F.3d at 328; see also United States v. Mitchell, 723 F.2d 1040, 1044-45 (1st Cir.1983) (<HOLDING>). We express no opinion on the permissible Holdings: 0: holding that trial court has no power to allow party to amend motion for new trial more than thirty days after trial court signed the final judgment and that denial of amended motion for new trial filed more than thirty days after judgment preserved nothing for appellate review 1: holding that a subsequent indictment does not restart the thirtyday speedy trial clock but rather tolled it when the original indictment was dismissed the thirtyday period again continued to run it did not begin anew the second indictment was then filed before the thirtyday period expired therefore the filing of the second indictment even though filed after thirty days following defendants arrest did not violate his rights under the speedy trial act 2: holding that when initial indictment was filed within the thirtyday period a superseding indictment filed outside the thirtyday window which did not change the original charges did not violate the speedy trial act 3: holding that additional facts in superseding indictment filed more than thirty days after arrest did not violate sta 4: holding that the dismissal of an indictment before trial and institution of a superseding indictment does not trigger double jeopardy


Input: Judgment A summary judgment motion must be granted if there is “no genuine issue as to any material fact,” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), not, as Appellant states, “if there are any genuine issues of fact.” “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In considering the motion for summary judgment, the district court properly relied on the state trial transcript and not solely on Walker’s Rule 56 pleadings. See Covalt v. Carey Canada, Inc., 950 F.2d 481, 485 (7th Cir.1991) (<HOLDING>); Fed.R.Civ.P. 56(c). We review a grant of Holdings: 0: holding district court not required to uncover disputed facts when considering summary judgment motion 1: holding that the entire record may be examined when considering a summary judgment motion 2: holding that by considering matters outside of the pleadings the trial court converted a rule 12b6 motion to dismiss into a summary judgment motion 3: holding district court did not err by considering a contract central to the dispute without converting the motion to a motion for summary judgment 4: holding that where a court considering a rule 12b6 motion relies on matters outside the pleading the motion must be treated as a rule 56 motion for summary judgment


Input: sold, handled, distributed or disposed of by you....” Section V, 15.a. The court was unable to locate any Indiana or Seventh Circuit case law dealing with the definition of “product” as that term is used in CGL insurance policies, and, in fact, neither party in this case cites any case that specifically defines the term. The Ninth Circuit offers some assistance in the case of Hydro Systems, Inc. v. Continental Ins. Co., 929 F.2d 472 (9th Cir.1991), wherein the court wrote: Several courts have examined the meaning of the term “product” as it relates to product hazard exceptions. The majority of courts “define ‘products’ as goods or services which the insured deals in as his stock or trade.” CPS Chem. Co. Inc. v. Continental Ins. Co., 199 N.J.Super. 558, 489 A.2d 1265, 1270 (1984) (<HOLDING>); see also Paxton-Mitchell Co. v. Royal Indemn. Holdings: 0: holding that it was not an abuse of discretion to enjoin some products but not others 1: holding that industrial wastes were not products under a products hazard exception because they were not intended for consumption sale or use by others  2: holding that i4i was not required to prove that its specific customers stopped using i4is products because they switched to the infringing word products 3: recognizing that substantial change is a defense to a products liability claim 4: recognizing products liability and products actions based on negligence as part of the general maritime law


Input: was affected. We disagree. Evidence in the record must support a finding that Anagnos's failure to use a turn signal affected other traffic. See City of Milwaukee v. Johnston, 21 Wis. 2d 411, 413, 124 N.W.2d 690 (1963). Given that the deputy was in the far right-hand turn lane, we cannot see how he was affected by Anagnos's failure to use a turn signal in the left lane. Furthermore, there is nothing in the record to indicate that there were any other vehicles on the highway that could have been affected by Anagnos's left turn. We affirm the circuit court's decision that Anagnos did not violate § 346.34(l)(b), and therefore hold that the deputy did not have probable cause to stop Anagnos for a traffic violation. See State v. Longcore, 226 Wis. 2d 1, 9, 594 N.W.2d 412 (Ct. App. 1999) (<HOLDING>), affd by an equally divided court, 2000 WI 23, Holdings: 0: holding that there is no probable cause when an officer makes a stop based on a mistake of law 1: holding that an officer has reasonable suspicion to conduct traffic stop even when his suspicion that a law has been violated is based on a reasonable mistake of law 2: holding this framework applies whether the traffic stop is based on probable cause or reasonable suspicion 3: holding that there is no  1983 cause of action for false arrest unless the arresting officer lacked probable cause 4: holding that a conclusion that reasonable suspicion supported the stop of a vehicle was subsumed within the trial courts ruling that the officer had probable cause for the stop


Input: criminal sense. The district court agreed and granted the motion, reasoning that “the website was obviously directed at a younger audience and contained loose, figurative, slang language such that a reasonable person would not believe ESPN was actually accusing Plaintiffs of being involved in criminal activity.” The Knievels moved to alter or amend the judgment pursuant to Fed.R.Civ.P. 59(e), but the motion was denied. The Knievels then noticed this appeal. They contend that the Montana Constitu tion guarantees them a jury trial on their defamation claim, and that the district court erred as a matter of law when it dismissed the action. II. We review the district court’s grant of a motion to dismiss de novo. Cervantes v. United States, 330 F.3d 1186, 1187 (9t 38 P.2d 580, 586 (1943) (<HOLDING>), overruled on other grounds by State v. Holdings: 0: holding that court may not use extrinsic evidence unless contract language is ambiguous 1: holding that notwithstanding the ambiguous language of the montana constitution it is for the court and not the jury to pass upon demurrers to the complaint 2: holding that extrinsic evidence of the parties course of conduct may be considered where the contract language is ambiguous 3: holding that rules of contract construction are to be applied where the language used is ambiguous 4: recognizing that where the statutory language is not ambiguous  the plain and ordinary meaning of the statute must be given effect


Input: charged with this offense only after he expressed his desire, during plea negotiations, to go to trial on the conspiracy charge. Ogman offers no authority, however, and we are aware of none, that would permit a district court in these circumstances to not consider all offenses to which a defendant pleads guilty when calculating a sentence. Ogman voluntarily pled guilty to both crimes with which he was legitimately charged. Thus, the district court reasonably considered both convictions in calculating his sentence. See United States v. Stanley, 928 F.2d 575, 582 (2d Cir.1991) (“[T]he fact that a charge was used in plea bargaining does not mean that the penalty mandated by statute does not apply.”); see also Bordenkircher v. Hayes, 434 U.S. 357, 365, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) (<HOLDING>). Second, Ogman argues that the district court Holdings: 0: holding that the defendant could not be liable for malicious prosecution where the plaintiff presented no evidence suggesting that defendants conspired with influenced or even participated in the prosecutors decision to bring charges against him 1: holding that more than notice to a defendant is required 2: holding that a defendant who is allowed to withdraw his plea must either withdraw his plea to all charges or to none when his plea to all charges was part of an agreement with the state 3: holding that the speedy trial clock for state charges did not begin to run when the defendant was taken into custody by federal authorities on federal charges but rather when he was indicted for the state charges 4: holding that a prosecutors threat to bring more serious charges to induce a plea bargain no more than openly presented the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution


Input: Officer at Brunswick. 3 .Affidavit of Ray Shurling, Operations Officer at Brunswick. 4 . In addition, as noted previously, pedestal fans are located in each of the housing units. Smoking is prohibited in the library, dining hall, gymnasium and medical department. Furthermore, inmates in the general population are afforded recreational opportunities and are confined to their housing units only during count or after knockdown in the evening. 5 . While the record in this case indicates that officials at the Brunswick facility are adequately accommodating both smokers and nonsmokers, the physical plants of other prisons may not permit such an accommodation. In such circumstances, a total ban on smoking may be appropriate. See Doughty v. Bd. of County Comm'rs, 731 F.Supp. 423 (D.Colo.1989) (<HOLDING>); Elliott v. Bd. of County Comm'rs, 796 P.2d 71 Holdings: 0: holding that negligent inaction by a jail officer does not violate due process 1: holding references to a defendants lack of remorse violate the fifth eighth and fourteenth amendments 2: holding that impeachment by use of prearrest silence does not violate fifth or fourteenth amendments 3: holding that complete ban on smoking in county jail does not violate eighth or fourteenth amendments 4: holding that execution of juveniles violates the eighth and fourteenth amendments


Input: not appear to have any connection to a willing buyer’s estimate of the price he would -pay for the property. The contribution by these costs to the property’s value is speculative. To the extent the inclusion of such costs in the valuation is an attempt , to collect - reimbursement for Defendant’s prior investment in the property, the costs are impermissible, as the Fifth Amendment does not guarantee the landowner ■ a -return on his investment. [United States ex rel. & for Use of TVA v. Powelson, 319 U.S. 266, 285, 63 S.Ct. 1047, 87 L.Ed. 1390 (1943)]. United States v. 15,478 Square Feet of Land, more or less, situate in the City of Norfolk, VA, 2011 WL 2471586, at *6 (E.D.Va. June 20, 2011); see also Crosby v. Pickaway Cnty. Gen. Health Dist., 303 Fed.Appx. 251, 262-63 (6th Cir.2008) (<HOLDING>). Further, none of the experts, including Holdings: 0: holding that plaintiffs may have a property interest in real property 1: holding that general authorization to service real estate loans included claims regarding fees for prepayment of mortgage loans 2: holding that landowners could not recover consequential damages due to delay or for the interest on incurred construction loans utilities insurance and real estate taxes for the period after county agency allegedly effected a regulatory taking by revoking permits previously granted to install sewage system on property 3: holding petitioner could not deduct real estate taxes imposed on property he did not own because these taxes were not imposed on him 4: holding that a tax appeal on real property is a lien on the real estate and not a personal obligation of the landowner


Input: the time of filing. See Quality Fabrication, 2003 Ct. Int’l Trade LEXIS 27, at *2. Miller did so because she was affirmatively instructed by government officials that the DOL website was the appropriate source of information. See id. at *13. Miller subsequently emailed her regional Labor office to inquire about her petition. See id. at *2. Two days later, Miller received an email response from Labor stating “ ‘these things take time.’ ” Id. Miller, however, pursued this action pro-actively in that she contacted: (1) two local Representatives from Congress; (2) the State of Pennsylvania Department of Labor Trade Adjustment Representative; (3) a state legislator; and (4) Labor’s NAFTA-TAA office located in Washington, D.C. See id. at *2-*4. In addition to these extens LEXIS 27 at *2 — *5 (<HOLDING>). Plaintiffs, acting in a reasonably prudent Holdings: 0: holding that the plaintiffs extensive efforts to inquire as to the status of the relevant naftataa petition were sufficient to satisfy the due diligence standard 1: holding that an applicant who fails to satisfy the lower standard of proof for asylum necessarily fails to satisfy the more stringent standard for withholding of removal 2: holding that foresight not retrospect is the standard of diligence 3: holding that defendant dentists were not entitled to summary judgment in malpractice actions commenced more than two years after the relevant dental procedures where factual questions remained as to the plaintiffs diligence 4: holding that affidavit submitted to the court after the plaintiffs motion to remand was sufficient to cure the defect in the removal petition


Input: counsel for indigent defendants at trial, Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and during their first appeal as of right, Douglas, 372 U.S. at 358, 83 S.Ct. 814, but refusing to extend that right to discretionary appeals. Wainwright v. Toma, 455 U.S. 586, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982); Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974). No reasonable jurist, even in light of the dicta in Evitts, could have interpreted these cases as requiring the kind of relief that Pursell now seeks. Granted, there are cases imposing general requirements on states when they venture into areas where they are not constitutionally required to tread. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 262, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (<HOLDING>). These cases were adequately summarized in Holdings: 0: holding that a state tort claim is a species of property protected by the due process clause 1: holding that the eighth amendment applies only after the state has secured a formal adjudication of guilt in accordance with the due process of law 2: holding that jury trial in civil cases is not so fundamental to the american system of justice as to be required of state courts by due process 3: recognizing that plaintiff can bring action under due process clause of state constitution 4: holding that although state is not required to operate welfare program it must do so in accordance with the due process clause


Input: as to the rights of the parties thereto and their privies.” Stewart v. SunTrust Mtg., 331 Ga. App. 635, 638 (3) (770 SE2d 892) (2015) (punctuation omitted). Further, “[a] lender owes a borrower a duty to exercise a power of sale in a security deed fairly, which includes complying with statutory and contractual notice requirements.” Thompson-El v. Bank of America, 327 Ga. App. 309, 310-311 (2) (759 SE2d 49) (2014). In her complaint, James asserts that BANA breached the terms of the security deed by failing to provide proper notice of default and her right to cure as mandated by Paragraph 22 of that deed. These allegations are sufficient to support a breach of contract claim, and the trial court erred in dismissing it. See Babalola v. HSBC Bank, USA, 324 Ga. App. at 755 (2) (b) (<HOLDING>); see also Stewart v. SunTrust Mtg., 331 Ga. Holdings: 0: holding that breach of contract claim related back to misrepresentation claim because operative facts upon which the breach of contract claim was based were contained in the misrepresentation counts of the original complaint 1: holding that complaint alleging that creditors failed to comply with the notice provisions contained in the security deed stated a claim for breach of contract 2: holding that party must comply with notice and cure provisions before seeking remedy for default under contract 3: recognizing that the elements of a claim for breach of contract are 1 existence of a valid contract and 2 breach of the terms of that contract 4: holding that plaintiff stated a claim for breach of contract when it alleged the government failed to purchase insurance for plaintiff as agreed by contract


Input: supplemental jurisdictio y action premised on alleged bad faith termination from IAI “cannot be maintained against parties with whom no employment relationship existed — i.e., the named defendants other than IAI.” Rothmeier contends that respondents breached fiduciary duties owed to him by terminating him from the partnerships in bad faith. However, the partners here acted pursuant to (1) the IAI Venture I partnership agreement, which provided for automatic termination of Rothmeier’s partnership interest upon his termination from IAI and (2) the IAI Venture II partnership agreement, which provided for termination of a partner’s interest at the sole discretion of the other partners. Neither agreement abrogates the fiduciary character of the partnerships. See Appletree, 494 N.W.2d at 893 (<HOLDING>). Moreover, under Delaware law, a partner Holdings: 0: holding that a statutorilyimposed fiduciary obligation created an express trust fiduciary relationship for purposes of  523a4 1: holding that partners have a fiduciary relationship and are held to high standards of integrity in their dealings with each other 2: holding that partners may not agree to eliminate the fiduciary character of their relationship 3: holding that general partners must notify limited partners of partnership opportunity to purchase adjacent property but not addressing whether  9404 requires affirmative consent of partners after such notice 4: holding that the relationship of partners is of a fiduciary character and imposes upon them the obligation to exercise good faith and integrity in their dealings


Input: Castle, 913 S.W.2d 627, 633 (Tex. App.—Dallas 1995, writ denied). Rule 263 requires that the parties submit the agreed statement to the clerk and that the court certify it. However, even when the parties fail to conform to the technical requirements of the rule, an appellate court may treat the case as one involving an agreed statement of facts under rule 263 if the record indicates that the trial court heard the case on stipulated facts. See Kessler, 932 S.W.2d at 736 (finding no statement of facts necessary for review where order stated that the court considered only the motion before it, the attached exhibits, the brief in response, and the arguments of counsel); Lambda Const. Co. v. Chamberlin Waterproofing and Roofing Sys., 784 S.W.2d 122, 125 (Tex.App.—Austin 1990, writ denied) (<HOLDING>). In the present case, the trial court’s final Holdings: 0: holding fact issue existed regarding foreseeability of murder at restaurant where police records indicated history of crime in the area 1: holding that no fiduciary duty existed between the plaintiff and defendant because there was no evidence that the parties agreed that defendant would be acting primarily for the benefit of the plaintiffs 2: holding that no issue of material fact existed as to the reasonableness of an employers response where the offending employee was promptly suspended and fired 3: holding case tried on stipulated facts where order indicated that the parties agreed during telephone hearing with the court that no material issue of fact existed 4: holding order nonfinal where parties agreed to reserva tion on issue ripe for adjudication and tried by parties


Input: appellant) must include at least one of three statements in his notice of appeal. The three statements are: 1) that the appeal involves a jurisdictional defect, 2) that the substance of the appeal was raised below by written motion and ruled upon by the court, or 3) that the trial court granted permission to appeal. Tex.R.App. P. 25.2(b)(3). Moreover, it is the inclusion of these statements which vests us with jurisdiction over the appeal. Should they be omitted, we are restricted to considering only those points averring jurisdictional defects or impugning the voluntariness of the initial plea. Flowers v. State, 935 S.W.2d 131, 134 (Tex.Crim.App.1996) (involving the predecessor to the current rule of appellate procedure); see Watson v. State, 924 S.W.2d 711, 714-15 (Tex.Crim.App.1996) (<HOLDING>). As previously mentioned, appellant pled Holdings: 0: recognizing that an appellants obligation to timely perfect her appeal from the general sessions court is mandatory  and if it is not complied with the circuit court has no jurisdiction 1: recognizing that exception to requirement of timely filing of notice of appeal exists in cases where defendant either was not told of right to appeal or was not furnished attorney to exercise those rights or was furnished attorney for that purpose who failed to perfect and complete appeal 2: holding that prejudice should be presumed where counsel filed notice of appeal but failed to perfect the direct appeal 3: holding that the rule also applies to those attempting to perfect an appeal after their community supervision is revoked and they are adjudicated guilty 4: holding that a notice of appeal filed when an appeal bond is required to perfect is a bona fide attempt to invoke appellate jurisdiction and that the court of appeals dismissal was improper without first affording an opportunity to correct the defective perfection of appeal


Input: and one count of conspiring to structure, they faced a combined maximum fine of $1,000,000. Because the amount the Strelskis were required to forfeit — a total of $140,630 — is well below the $1,000,000 statutory maximum, there is a strong presumption that the forfeiture is constitutional. 817 N.E. 29th Drive, Wilton Manors, Fla., 175 F.3d at 1309. The maximum fine authorized for the Strelskis under the sentencing guidelines is $50,000 each, resulting in a combined total fine of $100,000. Although the forfeiture amount exceeds the maximum fine under the guidelines, it is still “near the permissible range of fines under the sentencing guidelines,” which means that it is almost certainly not excessive. See United States v. 127 & j.29 Hall St., 74 F.3d 1165,1172-73 (11th Cir.1996) (<HOLDING>). The Strelskis contend that the fine is Holdings: 0: holding that forfeiture of property valued at 65000 was not excessive where the maximum fine under the sentencing guidelines was 40000 1: holding defendant sentenced to term equal to maximum guidelines sentence under improperly calculated sentencing guidelines scoresheet was not entitled to be resentenced because defendant was habitualized such that sentencing guidelines score sheet was irrelevant and the sentence imposed was not illegal 2: holding statutory maximum for prior conviction is the potential maximum sentence defined by the applicable state criminal statute not the maximum sentence which could have been imposed against the particular defendant  according to the states sentencing guidelines 3: holding that forfeiture of property valued at 150000 was excessive where the maximum statutory fine was 20000 4: holding that forfeiture of 357144 in currency was excessive where the maximum statutory fine was 250000 and the maximum fine under the sentencing guidelines was 5000


Input: of a complaint involving an indispensable party). As a result, the Court dismisses without prejudice plaintiffs’ claims under the TCA related to Verizon’s alleged wrongdoing. See generally Direct Energy Marketing Ltd. v. Duke/Louis Dreyfus LLC, 50 Fed.Appx. 469, 473 (2d Cir.2002) (noting that the proper procedure is to dismiss the claims without prejudice to allow plaintiff to renew its claims in another tribunal). (vi) Extensive Delay, Shifting Rules and Negligence In their final mash of TCA claims, plaintiffs paint a tale of egregious delay, deliberately shifting regulatory sands and gross administrative negligence. These factors, plaintiffs argue, created the types of barriers to entry that the TCA was intended to prevent. The City protests that the d 1160, 1176 (9th Cir.2001) (<HOLDING>). Here, plaintiffs allege both a six to eight Holdings: 0: holding no retroactive application 1: holding retroactive application 2: recognizing district court application of the same rule 3: holding that the combination of lengthy application process burdensome application and unfettered discretion violates the tca 4: holding that there is no rational reason for the retroactive application of 80173 and the prospective application of 833


Input: into Samuels' record would have informed Wright of the prior plea agreement. The facts of this case suggest otherwise. The prosecutor announced that Samuels would be a surprise rebuttal witness without prior notice to Wright. This was an insufficient amount of time for counsel to adequately prepare in time for trial. And in this time frame, it would have been unfair to require Wright to learn about the existence of all documentary evidence related to Samuels. See Gershman, supra, at 696. 70 . Cf. Leka v. Portuondo, 257 F.3d 89, 103 (2d Cir.2001) (finding a Brady violation where the government's disclosure prevented any "opportunity for a responsible lawyer to use the information with some degree of calculation and forethought”). 71 . See Giglio, 405 U.S. at 153-54, 92 S.Ct. 763 (<HOLDING>); People v. Steadman, 82 N.Y.2d 1, 603 N.Y.S.2d Holdings: 0: holding evidence not to be material within the meaning of brady when the evidence did not eliminate the defendant as the perpetrator 1: holding that the prosecutors nondisclosure of material evidence affecting a witnesss credibility which goes uncorrected falls within the requirements of brady 2: holding that a prosecutors comment that a witnesss cooperation had convicted 23 other people impermissibly bolstered witnesss credibility through evidence outside the record 3: holding impeachment evidence falls within the brady rule 4: holding that nondisclosure of evidence undermining eyewitness identifications of the defendant by what the state identified as its two best witnesses was material under brady


Input: by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews, 424 U.S. at 335, 96 S.Ct. at 903; accord Zinermon, 494 U.S. at 127, 110 S.Ct. at 984; Cleveland Bd. of Education v. Loudermill, 470 U.S. 532, 542-43, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985). The Court has also applied the Mathews balancing test to the adequacy of notice. See Memphis Light, Gas and Water Div. v. Craft, 436 U.S. 1, 14 & n. 15, 98 S.Ct. 1554, 1563 & n. 15, 56 L.Ed.2d 30 (1978) (<HOLDING>); Goss v. Lopez, 419 U.S. 565, 579, 95 S.Ct. Holdings: 0: holding that its flexible approach to due process taking account of private interests the potential for reducing erroneous deprivations and the costs of procedures needed to reduce errors applies to evaluations of notice as well as the procedures at a hearing 1: holding that procedures adopted by the state to guide its parole release determinations are not themselves liberty interests entitled to constitutional due process protection 2: holding that a court should consider the private interests of the parties including their convenience and the convenience of potential witnesses as well as other publicinterest concerns such as systemic integrity and fairness which come under the rubric of interests of justice  3: holding that procedures that were available to the employees after the implementation of the rif guideline provided such protection of their rights that the absence of a pretermination hearing alone was not violative of due process 4: holding california postdeprivation recovery procedures satisfy due process despite lack of notice to claimant of recovery procedures


Input: United States, 480 F.2d 1036, 1039 (5th Cir.1973). In fact, it is impossible for the “the validity of the underlying conviction, and, indeed, of the sentence itself’ to be at issue in a Rule 35(b) proceeding. Id.; see also United States v. White, 251 Fed.Appx. 658, 659 (11th Cir.2007) (“Contrary to White’s assertion, Rule 35(b), by its own terms, provides for a reduction of a sentence, not the vacating of a sentence and a resentencing.”). If the validity of the underlying conviction or sentence cannot be at issue in a Rule 35(b) proceeding, it makes no sense to say that a Rule 35(b) reduction constitutes a genuine “resentencing” that gives rise to a new “judgment” that imprisons the § 2255 movant. See Berman v. United States, 302 U.S. 211, 212-14, 58 S.Ct. 164, 166, 82 L.Ed. 204 (1937) (<HOLDING>). Instead, a defendant imprisoned by a sentence Holdings: 0: holding that once a sentence is imposed it is a valid final judgment until it is reversed or vacated 1: holding that a sentence is not imposed until judgment enters for purposes of rule 35c 2: holding that a district court judgment is not a final judgment appealable by the defendant unless it includes the final adjudication and the final sentence 3: recognizing that a criminal prosecution is not complete until a sentence has been imposed 4: holding that it is not


Input: the IML are not within the control of the state. Under the IML, appropriations are made to the Department’s instructional material fund, created by the state treasurer. Section 22-P5-5(A). Disbursements from the instructional material fund are made “by warrant of the department of finance and administration upon vouchers issued by” the Department. Section 22-15-6. The Department makes payment to an in-state depository for instructional material distributed to private schools as agents for their students. Sections22-15-7(B), -9(E). No funds are appropriated, to any private school. The mere indirect or incidental benefit to the private schools does not violate Article IV, Section 31. Cf. State ex rel. Interstate Stream Comm’n v. Reynolds, 1963-NMSC-023, ¶ 17, 71 N.M. 389, 378 P.2d 622 (<HOLDING>). Plaintiffs rely on Harrington v. Atteberry, Holdings: 0: holding that imposition of government fees did not violate exempt status of religious organization 1: holding that the contracts clause article i section 10 clause 1 to the united states constitution does not apply to the actions of the federal government 2: holding that a nonprofit organization lacked standing under unruh because its civil rights had not been personally violated and it failed to show that any of its members would suffer injury 3: holding that the death penalty does not violate the prohibition against cruel punishments set forth in article 1 section 13 of the pennsylvania constitution 4: holding that incidental benefits to a nonprofit organization from appropriations made to the state engineer with absolute control of the expenditure does not violate article iv section 31


Input: the case so that the court can make the necessary factual findings. United States v. Rowland, 906 F.2d 621, 624 (11th Cir. 1990). Here, the court reviewed and adopted the PSI, but then found that employment opportunities in prison and after release would enable McCorvey to pay a fine in the amount of $800. McCorvey has offered nothing to show his inability to pay this small amount. As the court noted, McCorvey is only 48 years old, has a college education, and has no medical conditions that would prevent him from being able to work while incarcerated and after release. Thus, it appears that the court sufficiently considered the necessary factors before imposing a fine. McCorvey has offered nothing other than the PSI’s findings of his outstanding debt as evidence of his Cir.2002) (<HOLDING>). 4 . Rule 403 provides, "[a]lthough relevant, Holdings: 0: holding that to apply the firearm enhancement the firearm need only reflect the context of the defendants possession and the defendants ability to use the firearm to promote the controlled substance offense 1: holding that to enhance a sentence because of the defendants use of a firearm the jury must find the defendant guilty of a crime involving a firearm or otherwise specifically find that a firearm was used 2: holding that the application of the enhancement for using a firearm in connection with another felony offense is proper only if there is a clear connection between the firearm that was used in the other offense and the one that was used in the offense of conviction 3: holding that in a prosecution for possession of a firearm by a convicted felon defendants assault with the firearm the evening before the charged offense was necessary to complete the story and prove that brown possessed the gun 4: holding that an enhancement for an express threat of death may not be applied to the sentence for robbery when the threat is related to the use of the firearm and the defendant has a  924c sentence for the same firearm


Input: N.W.2d 406, 407 (1969) (“[A] conviction can rest on the uncorroborated testimony of a single credible witness.”). Although Had-gu contends that Owens’ reliability is questionable, that credibility was attacked on cross-examination, and it is the “exclusive function of the jury” to judge the credibility of witnesses. Dale v. State, 535 N.W.2d 619, 623 (Minn.1995). The jury convicted Hadgu despite attacks on Owens’ credibility, and this court must assume the jury believed Owens. Moore, 438 N.W.2d at 108. Hadgu also contends the police failed to use available means to verify and corroborate Owens’ testimony. But there is no requirement that the state corroborate Owens’ testimony because he was not an accomplice to Hadgu. See State v. Swyningan, 304 Minn. 552, 556, 229 N.W.2d 29, 32 (1975) (<HOLDING>). There is merit in Hadgu’s contention that Holdings: 0: holding that breach occurred when seller told buyer that seller would do no more to rectify alleged warranty violation 1: holding that the seller of a business implicitly transferred a property right in the firms good will to the buyer and that the seller could not then impair that right by actively soliciting the customers of his former business 2: holding that a person who obtains drugs from a seller is not an accomplice of the seller 3: holding that broker who represents seller cannot represent buyer in purchase of property from seller without sellers knowledge and consent 4: holding that purchaser could rescind contract where seller failed to disclose a fact  the flooding of the subject real estate  that seller knew purchaser would regard as material


Input: examine and challenge all factual information upon which the court based his sentence." Id. ¶ 9 It is proper for the trial court to impose restitution at sentencing unless defendant objects to its imposition and requests a full hearing on the amount at that time. See Utah Code Ann. § 76-3-201(4)(e) (1999); State v. Stayer, 706 P.2d 611, 612 (Utah 1985) (per curiam). In this regard, Utah Code Ann. § 76-8-201(4)(e) (1999) states: "If the defendant objects to the imposition, amount, or distribution of the restitution, the court shall at the time of sentencing allow the defendant a full hearing on the issue." Id. (emphasis added). Thus, the statute is clear-any request for a full restitution hearing must be made at or before sentencing. Cf. Monson v. Carver, 928 P.2d 1017, 1029 (Utah 1996) (<HOLDING>); State v. Haga, 954 P.2d 1284, 1289 (Utah Holdings: 0: holding defendant entitled to full restitution hearing where he requested it at sentencing 1: holding trial court without jurisdiction to impose additional restitution because more than 60 days had passed between the sentencing hearing and the second restitution hearing 2: holding no restitution hearing is mandated when defendant did not object to order of restitution or request a hearing 3: holding that where the government has not presented evidence at the hearing concerning the appropriate amount of restitution    the imposition of the restitution order constitutes plain error 4: holding that equitable restitution is available but that legal restitution is not


Input: with the said [victim’s] personal liberty____” We have implied that kidnapping is a crime of violence under U.S.S.G. § 4B1.2(1)(ii) because it involves a “serious potential risk of physical injury to the ... kidnapped person.” United States v. Lonczak, 993 F.2d 180, 182-83 (9th Cir.1993). In an analogous context, we explicitly held that “kidnapping entails a ‘serious potential risk of physical injury’ to the victim, making the offense a ‘violent felony1.... ” United States v. Sherbondy, 865 F.2d 996, 1009 (9th Cir.1988). That holding has been followed by other circuits which have determined that kidnapping is a “crime of violence” because it, by its very nature, involves a substantial risk of physical violence. See United States v. Kaplansky, 42 F.3d 320, 324-25 (6th Cir.1994) (<HOLDING>); United States v. Salemi 26 F.3d 1084, 1086 Holdings: 0: holding that the potential for violence against the victim is an inherent aspect of the crime of kidnapping under 18 usc  924 1: holding that kidnapping is a crime of violence which involves a serious potential risk of injury under 18 usc  924 2: holding that bank robbery by force and violence or intimidation under 18 usc  2113a is a crime of violence 3: holding that sexual assault of a child qualified as crime of violence under 18 usc  16 4: holding that kidnapping is a crime of violence which necessarily involves the threatened use of physical force under 18 usc  924


Input: brief, Northlake argues that the trial court in the First Petition lacked subject matter jurisdiction because Northlake had not exhausted its administrative remedies. Our supreme court has held that “the exhaustion of administrative remedies under [the Administrative Orders and Procedures Act] is a procedural error and does not implicate the trial court’s subject matter jurisdiction.” First Am. Title Ins. Co. v. Robertson, 19 N.E.3d 757, 760 (Ind.2014), amended on reh’g, 27 N.E.3d 768 (Ind.2015). Moreover, Northlake argued in the First Petition that it was not required to exhaust its administrative remedies because it would suffer irreparable harm while the administrative appeal was finalized. See, e.g., State Bd. of Tax Comm’rs v. Ispat Inland, Inc., 784 N.E.2d 477, 483 (Ind.2003) (<HOLDING>). Northlake cannot now argue that the trial Holdings: 0: holding that a party may gain judicial review without exhausting its administrative remedies where pursuit of administrative remedies would be futile where strict compliance would cause irreparable harm and where the applicable statute is alleged to be void on its face 1: holding that statute of limitations is tolled by pursuit of internal union remedies even where those remedies are ultimately determined to be futile 2: holding that a plaintiff may not avoid exhausting the administrative remedies by requesting money damages 3: holding that irreparable harm is presumed where discharged employee has exhausted her administrative remedies and proceeds under a civil rights statute 4: holding that a procedural default in exhausting administrative remedies bars relief in federal court


Input: that the trial court should have treated his petition as a motion filed under Rule 3.800. We agree in part. The first issue raised in the petition alleged trial court error in the jury instruction. Because this issue could have been raised on appeal, the claim was not cognizable in a postconviction motion. See Waterfield v. State, 1 So.3d 235, 237 (Fla. 4th DCA 2008). The second issue, however, alleged a discrepancy between the written sentence and the sentence that was orally imposed. In particular, Barrett alleged that the court never orally imposed a habitual felony offender (HFO) designation. Because this type of discrepancy can be challenged in a Rule 3.800(a) motion, we i’everse and remand with direction to treat the claim as such. See State v. Akins, 69 So.3d 261, 268 (Fla.2011) (<HOLDING>). Affirmed in part; Reversed in part and Holdings: 0: holding that modification of judgment and sentence to reflect an hfo designation that was not orally pronounced at sentencing violated double jeopardy and constituted an illegal sentence 1: holding that if the record does not reflect that the sentence was pronounced in the defendants presence there is no sentence and the court is without jurisdiction to entertain an appeal 2: holding that a sentence not in compliance with the mandatory provisions of a sentencing statute was illegal and appealable 3: holding that a court is free to change an orally pronounced sentence until a written judgment is filed 4: holding that designation is neither a sentence nor a punishment


Input: United States ex rel. Sherman v. Carter, 353 U.S. 210, 216, 77 S.Ct. 793, 1 L.Ed.2d 776 (1957) (internal quotations and citation omitted). It is well established that a pay-when-paid clause in the circumstances at bar does not foreclose a subcontractor’s right to bring suit for payment under the Miller Act against a general contractor and its surety. See United States ex rel. Walton Tech., Inc. v. Weststar Eng’g, Inc., 290 F.3d 1199, 1209 (9th Cir.2002) (“A subcontractor that has performed as agreed need not await the Government’s payment of the contractor before initiating an action under the Miller Act against the contractor or the surety.”); see also United States ex rel. T.M.S. Mech. Contractors, Inc. v. Millers Mut. Fire Ins. Co. of Tex., 942 F.2d 946, 949 n. 6 (5th Cir.1991) (<HOLDING>); United States ex rel. McKenney’s, Inc. v. Holdings: 0: holding that the protection of the double jeopardy clause does not preclude a defendant from being charged under a statute  defining as the criminal offense a discrete act after a prior conviction or acquittal of a distinguishable discrete act that is a separate violation of the statute 1: holding that a mandatory arbitration clause does not preclude litigating a federal statutory claim 2: holding that the absence of a formal injunction does not preclude the plaintiff from recovering costs and attorney fees under mcl 152714 3: holding that a paywhenpaid clause does not preclude a subcontractor from recovering under the miller act 4: holding that exemption under the ada does not preclude liability under the rehabilitation act


Input: course did not materially alter the terms and conditions of plaintiffs employment and therefore plaintiff could not recover under Title VII for such conduct). “To hold otherwise would be to expand the definition of ‘adverse employment action’ to include events such as disciplinary filings, supervisor’s reprimands, and even poor performance by the employee — anything which might jeopardize employment in the future. Such expansion is unwarranted.” Mattern, 104 F.3d at 708 (emphasis in original). Similarly, Reno’s other asserted incidents of retaliation are equally lacking in consequence. Humiliation experienced by Reno as a result of Moorer’s derogatory comments does not constitute an ultimate employment decision. See Spring v. Sheboygan Area Sch. Dist., 865 F.2d 883, 886 (7th Cir.1989) (<HOLDING>). Neither does Moorer’s unfulfilled threats to Holdings: 0: holding that in the first amendment employment context harassing speech must constitute constructive adverse employment action to be actionable 1: holding that termination is an adverse employment action 2: holding that cancellation of benefit to honor plaintiff in retaliation for filing an age discrimination complaint constitutes adverse employment action because of public humiliation involved 3: holding that conduct causing public humiliation was not an actionable adverse employment action because public perceptions were not a term or condition of employment of the plaintiffs employment 4: holding that denial of a bonus was not an adverse employment action


Input: term, or may so limit the application of any unconscionable term as to avoid any unconscionable result. Restatement (Second) of Pres. Comm’n, 652 N.W.2d 742, 749 (S.D.2002)); see also Johnson v. Rapid City Softball Ass’n, 514 N.W.2d 693, 697 (S.D.1994) (“A release is not fairly made and is invalid if the nature of the instrument was misrepresented or there was other fraudulent or overreaching conduct.”); Ryan v. Weiner, 610 A.2d 1377, 1382 (Del.Ch.1992) (“It is generally held that the unconseionability test involves the question of whether the provision amounts to a taking of an unfair advantage by one party over the other.” (quoting Jones Constr. Co. v. City of Dover, 372 A.2d 540, 552 (Del.Sup.1977))); Graham v. State Farm Mut. Auto. Ins. Co., 565 A.2d 908, 912 (Del.1989) (<HOLDING>). There was no reasonable manner for Holdings: 0: holding that a court will not notice error which has been invited by the party seeking to take advantage thereof on appeal 1: holding that a contracting party cannot be allowed to use his own breach to gain an advantage by impairing the rights that the contract confers on the other party 2: recognizing that before ordering disqualification the trial court should determine whether one party has obtained an unfair advantage over the other which can only be alleviated by removal of the attorney citations omitted 3: holding evidence insufficient to support finding of implied contract 4: holding that to support a finding of unconscionability a court must find that the party with superior bargaining power used it to take unfair advantage of his weaker counterpart


Input: could not have meant what it unmistakably said.” Id. (quoting Sutherland Statutory Construction § 45:12, at 105-07). In Sherwinr-Williams, we declined to apply the absurd results doctrine, even though the outcome under the plain language of the statute — allowing a retailer to claim a manufacturer’s tax credit — appeared counterintuitive. Id. at 427-28. We emphasized “we will not ignore clear legislative l 8, 331 (2011) (noting defendants convicted of a felony receive sentencing credit for time subjected to electronic and home monitoring pretrial). Most courts have held electronic monitoring and home supervision does not satisfy the “custodial” or related requirements of their state sentencing credit statutes. See, e.g., Matthew v. State, 152 P.3d 469, 473 (Alaska Ct.App.2007) (<HOLDING>); Bush v. Arkansas, 338 Ark. 772, 2 S.W.3d 761, Holdings: 0: holding electronic home monitoring is not time spent in custody because there is a difference in restrictions between electronic home monitoring and jail 1: holding confinement to home and work through electronic supervision does not equate to custody 2: holding that home confinement may not be credited toward official detention 3: holding that electronic home monitoring constitutes confinement under the sra 4: holding as a matter of law pretrial electronic monitoring and home confinement merits sentencing credit under its statute


Input: we consider five factors: (1) the nature and seriousness of the statement; (2) whether defense counsel invited it; (3) whether the district court sufficiently instructed the jury to disregard it; (4) whether defense counsel had the opportunity to respond to the improper statement; and (5) whether the weight of the evidence was against the defendant. See Rodriguez v. Peters, 63 F.3d 546, 558 (7th Cir.1995); United States v. Johnson-Dix, 54 F.3d 1295, 1304 (7th Cir.1995). First, we consider the prosecution’s comment on the weight of the evidence to be less damaging than other forms of impermissible argument. Typically, in vouching situations, the prosecution has attempted to bolster a witness’s credibility by introducing facts that were not in evidence. See Cheska, 202 F.3d at 950-52 (<HOLDING>); Johnson-Dix, 54 F.3d at 1304 (finding Holdings: 0: holding that the prosecutions failure to disclose information regarding a witnesss past cooperation with law enforcement did not constitute a brady violation in light of other impeachment evidence in the record including testimony regarding the witnesss extensive drug use and past cooperation with the dea 1: holding that conviction on appeal is not admissible to impeach witnesss credibility 2: holding that a witnesss testimony or an exhibit may not explicitly and directly contain an opinion as to a trial witnesss credibility 3: holding that a prosecutors comment that a witnesss cooperation had convicted 23 other people impermissibly bolstered witnesss credibility through evidence outside the record 4: holding that a trial witnesss testimony as to the credibility of another witness was prejudicial error


Input: Brian Zahn appeals pro se from the district court’s judgment for defendant following a bench tri 1080, 1093 (9th Cir.2001) (<HOLDING>); Coons v. Sec’y of U.S. Dep’t of Treasury, 383 Holdings: 0: holding title vii analysis applies in ada case 1: holding consortium claim unavailable under title vii and ada 2: holding that a title vii plaintiff could not hold coworkers liable in their individual capacities under title vii 3: recognizing that the ada is interpreted in a manner similar to title vii 4: recognizing the same analysis applies under the wlad and title vii


Input: cause for a valid arrest), and, as discussed above, nothing — including Judge Nelson’s order — affected this belief. The BCDC Ap-pellees’ knowledge of Judge Nelson’s order cannot, as Mr. Reed would have it, be equated with a knowledge of an unlawful detention. 2. One-Hour Delay in Release Mr. Reed also suggests he has claims pursuant to § 1983 and the New Mexico Tort Claims Act because, after Judge Murdoch ordered his release, a BCDC employee detained him one hour longer than the other prisoners for being a “sniffler.” As a preliminary matter, we note that none of the BCDC Appellees was involved in the delay. Consequently, Mr. Reed has no § 1983 claims against the BCDC Appellees, regardless of the lawfulness of the detention. See Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir.1997) (<HOLDING>). As for claims of false imprisonment, neither Holdings: 0: holding that section 1983 action requires a showing of defendants personal participation in alleged constitutional violation 1: holding that denial of a grievance by itself without any connection to the violation of constitutional rights alleged by plaintiff does not establish personal participation under  1983 2: holding that individual liability under  1983 must be based on personal involvement in the alleged constitutional violation 3: holding that liability in a  1983 action must be predicated on personal involvement not on the basis of respondeat superior 4: holding that a constitutional violation by a subordinate is a predicate for supervisory liability under  1983


Input: without mentioning sentencing — stated that there are “additional allegations in the indictment, which will be addressed, if necessary, in the verdict .... These are allegations that the defendant committed the offense while brandishing a dangerous weapon; that the defendant physically restrained a person to facilitate his escape; and that the defendant took property valued at more than ten thousand dollars.” Before and after reading the indictment, the district court admonished the prospective jurors that the indictment itself was not evidence and could not be used to infer guilt. After a two-day trial, the district court instructed the jury as to the robbery charge, and submitted a special verdict form for each of the sentencing allegations. The court cautioned that (8th Cir.2001) (<HOLDING>); Burket v. Angelone, 208 F.3d 172, 200 (4th Holdings: 0: holding denial of involvement in crime is not assertion of right to remain silent 1: holding that during police interrogation right to remain silent must be invoked unambiguously 2: holding that evidence of a defendants invocation of the right to remain silent ordinarily is not admissible at the defendants criminal trial 3: holding that an accused must unambiguously invoke the right to remain silent 4: recognizing that davis was concerned only with the right to counsel and not the right to remain silent


Input: need not accommodate a disability by foregoing an ‘esse 1995) (under Rehabilitation Act, employee with excessive absences related to claimed disability was not qualified individual). “Gross attendance problems can prevent a disabled person from being qualified for a position even when the attendance problem is related in whole or in part to the disability.” 1 H.H. PerRitt, Jr., Amerioans With Disabilities Act Handbook, § 3.06[E] at 124 (4th ed.2003). In fact, “[n]umerous federal courts have held that disabled employees cannot establish that they can sufficiently perform the essential functions of a job without showing they can maintain a regular and reliable level of attendance at that job.” Kennedy v. Applause, Inc., No. CV 94-5344 SVW(GHKX), 1994 WL 740765 (C.D.Cal. December 6, 1994) (<HOLDING>). It is undisputed that P & G’s Medical Account Holdings: 0: holding that inability to maintain regular and reliable level of attendance defeated plaintiffs qualification for the job 1: holding that removal of job responsibility did not constitute an adverse employment action because there was no change in the plaintiffs job position grade pay or benefits 2: holding ones satisfactory performance of duties leading to a promotion does establish a plaintiffs qualification for a job 3: holding that attendance is a minimum function of any job 4: 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


Input: § 1252. Whether a conviction is a crime involving moral turpitude (“CIMT”) is a question of law we review de novo. Espino-Castillo v. Holder, 770 F.3d 861, 863 (9th Cir. 2014). We deny the petition for review. The BIA did not err in determining that Paz-Valadez’s conviction for knowingly possessing a false identification document with intent to defraud the United States under 18 U.S.C. § 1028(a)(4) is categorically a CIMT because “intent ... to defraud” is an element of the crime. See Blanco v. Mukasey, 518 F.3d 714, 719 (9th Cir. 2008) (“A crime involves fraudulent conduct, and thus is a [CIMT], if intent to defraud is either explicit in the statutory definition of the crime or implicit in the nature of the crime.” (internal quotation marks omitted)); Espino-Castillo, 770 F.3d at 864 (<HOLDING>). Paz-Valadez’s argument that his conviction is Holdings: 0: recognizing the longstanding rule that crimes that have fraud as an element are categorically crimes involving moral turpitude and a court may not apply the modified categorical approach if the statute proscribes only conduct that involves moral turpitude 1: holding that a district court cannot use the psrs factual statements when applying the modified categorical approach 2: recognizing that a court may not apply the modified categorical approach if the statute proscribes only conduct that involves moral turpitude internal quotation marks omitted 3: holding that we need not remand to the bia so that it may apply the categorical approach 4: holding that an intentional battery that involves the use of a deadly weapon constitutes a crime of moral turpitude


Input: claim. Mr. Stevens appealed to this court. Discussion Our review of Veterans Court decisions is limited by statute. Under 38 U.S.C. § 7292(a), we may review “the validity of a decision of the [Veterans] Court on a rule of law or of any statute or regulation ... or any interpretation thereof (other than a determination as to a factual matter) that was relied on by the Court in making the decision.” Unless the appeal presents a constitutional issue, we “may not review (A) a challenge to a factual determination, or (B) a challenge to a law ed record can be considered “an accurate account” of his service in the military. The question of whether the record is accurate is also a factual matter, outside the jurisdiction of this court. See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed.Cir.2010) (<HOLDING>). Third, Mr. Stevens “requests]” that this Holdings: 0: holding that a challenge to the proper weight of the evidence is a question of fact outside this courts jurisdiction 1: holding that constitutional right of privacy does not apply to medical records 2: holding that records of personal phone calls made by staff employees of the house of representatives fall outside the current definition of public records and were properly redacted 3: holding that records relating to a student court were not education records 4: holding that a claim that medical records were falsified was a factual question outside of the courts jurisdiction


Input: 1. The majority’s proposition that the Commission does not exercise a function that “appertains to” the judicial branch is simply wrong. As this Court stated in Young: The Judicial Conduct Commission plays a highly important, albeit not a determinative, role in the administration of judicial discipline by investigating and conducting confidential hearings regarding complaints against justices and judges. Consequently, the Commission exercises a type of judicial authority and operates within the judicial branch. Original op. ¶ 84. We also pointed out in Young that other jurisdictions “have also held judicial conduct commissions with similar authority to be within the judicial branch.” Id. ¶ 85 (citing Whitehead v. Nevada Comm’n on Judicial Discipline, 110 Nev. 874, 878 P.2d 913 (1994) (<HOLDING>)). ¶47 The majority denigrates the important Holdings: 0: holding executive branch prosecution of disciplinary charges against judge before commission violated separation of powers clause in nevada constitution 1: holding that lack of notice of charges in disciplinary proceedings violates the due process clause 2: recognizing separation of powers doctrine 3: holding that where the conviction was final the disciplinary commission was not authorized to assume the roles of both an accusatory tribunal and the ultimate determiner of guilt and that the separation of responsibility between the disciplinary board and the disciplinary commission provides constitutional due process 4: holding that the presidential privilege is inextricably rooted in the separation of powers under the constitution


Input: the government. By calling the Prince a thief, so the argument goes, Zoar-ab expressed a political opinion that identified him as a threat to the government for which he was and fears will be persecuted. The IJ rejected the argument, characterizing the matter as a personal business dispute, not a political matter. The IJ’s conclusion is supported by substantial evidence. Zoarab was clearly acting as an angry investor, not a political dissident, when he and his cousin-in-law sought to confront the Prince. Asylum is not available to an alien who fears retribution solely over personal matters. Matter of Y-G, 20 I & N Dec. 794, 799 (BIA 1994) (explaining that a love quarrel with a Haitian soldier was a “purely personal matter”); see also Matter of Pierre, 15 I & N Dec. 461, 463 (BIA 1971) (<HOLDING>). Courts have routinely rejected asylum Holdings: 0: recognizing that purely personal retribution is of course not persecution on account of political opinion but holding that when the alleged government cor ruption is inextricably intertwined with governmental operation the exposure and prosecution of such an abuse of public trust is necessarily political 1: holding that mayor is a high public official 2: holding that a fear of retribution from a husband a high political official was a strictly personal matter 3: recognizing that purely personal retribution is of course not persecution on account of political opinion but holding that when the alleged government corruption is inextricably intertwined with governmental operation the exposure and prosecution of such an abuse of public trust is necessarily political 4: holding that persecution was on account of political opinion because petitioners prosecutorial investigation into acts of political corruption was by its very nature political


Input: a more favorable sentence under the advisory sentencing guidelines regime mandated by Booker."), cert. denied, - U.S. -, 126 S.Ct. 266, 163 L.Ed.2d 239 (2005); United States v. Ameline, 409 F.3d 1073, 1074 (9th Cir.2005)(en banc) (”[R]emand to the district court is appropriate for the purpose of ascertaining whether the sentence imposed would have been materially different had the district court known that the sentencing guidelines were advisory.”); United States v. Gonzalez-Huerta, 403 F.3d 727, 738 (10th Cir.2005)(en banc) ("[T]he District Court’s mandatory application of the Guidelines was not 'particularly egregious’ or a 'miscarriage of justice.’ ”), cert. denied, - U.S. -, 126 S.Ct. 495, 163 L.Ed.2d 375 (2005); United States v. Rodriguez, 398 F.3d 1291, 1306 (11th Cir.2005) (<HOLDING>), reh’g denied, 406 F.3d 1261 (11th Cir.2005), Holdings: 0: holding that an appellant bears the burden of demonstrating error on appeal 1: holding that the defendant bears the burden under plainerror review 2: recognizing that the defendant bears the burden of establishing that plain error was prejudicial 3: holding that the defendant necessarily bears the burden of satisfying the third prong of the plain error test 4: holding the burden is on the defendant to demonstrate the error satisfies each prong of the plain error test


Input: 996 F.2d 1025, 1030 (10th Cir.1993). In Castaldo v. Denver Public Schools, 276 Fed.Appx. 839 (10th Cir.2008), the Tenth Circuit found that the district court did not abuse its discretion when it chose not to apply equitable tolling to the plaintiffs EEOC charge when the plaintiff alleged: (i) that his employer did not post notices regarding the filing of EEOC charges; (ii) that he was too incapacitated by his shoulder injuries to file an EEOC charge; and (iii) that he was proceeding pro se. See 276 FedAppx. at 841. The Tenth Circuit found no error in the district court’s conclusion that the failure to post EEOC notices was not a sufficient justification for equitable tolling. See 276 Fed.Appx. at 841. See also Wilkerson v. Siegfried Ins. Agency, Inc., 683 F.2d 344, 347 (10th Cir.1982)(<HOLDING>). The district court noted that the plaintiff Holdings: 0: holding that a person must file a claim under the civil rights act within three years of the date his or her cause of action accrues 1: holding that if good cause does not exist the court has the discretion to either dismiss the action without prejudice or direct that service be effected within a specified time 2: holding that a failure to file an appeal is within the scope of the waiver because the failure does not undermine the validity of the plea or waiver 3: holding that the simple failure to post  notices without intent to actively mislead the plaintiff respecting the cause of action does not extend the time within which a claimant must file his or her discrimination charge 4: recognizing the cause of action


Input: appellant testified that he did not intend to shoot anyone and that he brought the gun with him in the hope that he could scare the group surrounding the car and get them away from Gonzalez. He also testified that he brought the gun with him to confront the group because he “thought it was the only way [he] could get [the group] away from Ryan.” He stated that when he brought the gun, he hoped to “[s]care [the group] to leave.... ” We conclude that the record contains some evidence that appellant’s purpose in threatening to use deadly force was “limited to creating an apprehension that he will use deadly force if necessary.” See id. Thus, because some evidence supports this defensive issue, we hold that appellant was entitled to a section 9.04 instruction. See Brown, 955 S.W.2d at 279 (<HOLDING>); see also Shaw, 243 S.W.3d at 658 (holding Holdings: 0: holding that the jury need not agree on the theory supporting the conviction if there is sufficient evidence to support either theory 1: holding that a jury verdict will be sustained on any reasonable theory based on the evidence 2: holding that defensive theory must be submitted to jury when theory is raised by evidence from any source 3: holding that it is a partys duty to request a jury instruction submitting its defensive theory to the jury 4: holding summary judgment appropriate when the facts in evidence supported another plausible theory not the plaintiffs theory of the case


Input: with the choice of relying on consent by a third party or securing a warrant, should secure a warrant and must therefore accept the risk of error should they instead choose to rely on consent. II Our prior cases discussing searches based on third-party consent have never suggested that such searches are “reasonable.” In United States v. Matlock, this Court upheld a warrantless search conducted pursuant to the consent of a third party who was living with the defendant. The Court rejected the defendant’s challenge to the search, stating that a person who permits others to have “joint access or control for most purposes . . . assume[s] the risk that [such persons] might permit the common area to be searched.” 415 U. S., at 171, n. 7; see also Frazier v. Cupp, 394 U. S. 731, 740 (1969) (<HOLDING>). As the Court’s assumption-of-risk analysis Holdings: 0: holding that the opening of a makeup bag was justified when a woman had grabbed the bag when the officer turned away had resisted it being taken from her the bag felt heavy her companion had been armed the previous day and the officer and individual were alone 1: holding that defendant who left a duffel bag at anothers house and allowed joint use of the bag assumed the risk that the person would allow someone else to look inside 2: holding the opening and inventory of a shoulder bag was reasonable despite the possible alternative of securing the bag as a whole 3: holding that the owner of a shoulder bag located on the front seat of his girlfriends car had a legitimate expectation of privacy in the bag and its contents 4: holding that where a defendant left his duffel bag at his cousins house and authorized the cousin to use the bag the cousin clearly had authority to consent to its search


Input: of the Board of Immigration Appeals’ (“BIA”) order summarily affirming an immigration judge’s (“IJ”) order denying his motion to reopen proceedings in which he was removed in absentia. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion, Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir.2004), amended by 404 F.3d 1105 (2005), and we deny the petition for review in part and dismiss it in part. The IJ did not abuse her discretion in denying Lopez’s motion to reopen because the record indicates that Lopez’s hearing notice was mailed to his address of record and he did not provide a sworn affidavit containing information to rebut the presumption of delivery created by regular mail. See 8 U.S.C. § 1229(a)(1); Salta v. INS, 314 F.3d 1076, 1079 (9th Cir.2002) (<HOLDING>). Lopez’s contention that the BIA erred by Holdings: 0: recognizing presumption of effective service by regular mail 1: holding that the bia had imposed a new standardof proof by requiring the alien to provide substantial evidence to overcome a presumption of effective mail delivery 2: holding that notice to an alien at the most recent address provided by the alien is legally sufficient 3: holding that a sworn affidavit that neither the alien nor another responsible party residing at his address received the notice will generally rebut the presumption of delivery created by regular mail 4: holding that the admission in evidence of a certifying document from the secretary of state that its history records indicated that notice of suspension was sent by regular mail to the defendant did not violate the confrontation clause


Input: evidence of impairment of ability to drive due to the influence of alcohol. Alternatively, if chemical testing was performed in accordance with the statute, the crime may be proved by forensic evidence that the defendant’s alcohol concentration exceeded the statutory percentage. Idaho v. Andrus, 118 Idaho 711, 800 P.2d 107, 109 (1990). Here, neither Loader nor Ojeda were subjected to any chemical testing to determine their blood alcohol content at the time of the accident. As a result, Wood must prove Loader was intoxicated for purposes of the Idaho statute by “evidence showing consumption of alcohol and some discernible impairment related to the motorist’s ability to drive.” State v. Bronnenberg, 124 Idaho 67, 856 P.2d 104, 107 (Idaho App.1993); Andrus, 800 P.2d at 110-11 (<HOLDING>). Only Loader and Browning testified in person Holdings: 0: holding that medical expenses must be proven to be both reasonable and necessary 1: holding that reliance must be proven by some evidence 2: holding that uncharged conduct may be considered at sentencing when that conduct is proven by a preponderance of the evidence 3: holding that impairment must be noticeable or perceptible proven by observations of some type of ascertainable conduct or effect and relate to the ability to drive 4: holding all exceptions to discharge under  523a must be proven by a preponderance of the evidence


Input: McDonough has failed to produce evidence to show that she was substantially limited in the major life activity of walking. Walking is considered a major life activity. See 29 C.F.R. § 1630.2(i) (2011). However, it is undisputed that McDonough could walk continuously for one hour a day and intermittently for four hours a day. Moreover, McDonough spent two hours a day delivering mail, walking fifteen to twenty minutes non-stop. She also walked up and down the stairs in her home. For exercise, she would walk to a nearby lake and she even went to the gym a couple of times each week to take part in a water walking therapy class. As a matter of law, this evidence does not support McDonough’s disability claim. See, e.g., Neal v. Kraft Foods Global, Inc., 379 Fed.Appx. 632, 634 (9th Cir.2010) (<HOLDING>); see also Turner v. The Saloon, Ltd., 595 F.3d Holdings: 0: holding that trial court was not required to conclude that wife was disabled for alimony purposes where she testified about her disability and offered documentation of her social security disability benefits but where she produced no medical testimony and where other evidence indicated that she was otherwise active and did not stay in bed all day as she claimed 1: holding that a plan administrators decision to deny benefits was arbitrary and capricious even though an attending physician had submitted a form stating the plaintiff could sit for six hours stand for two hours and walk for two hours 2: holding that evidence that plaintiff could walk only four hours a day was insufficient as a matter of law to prove that she was disabled 3: holding that plaintiffs inability to stand more than two hours was insufficient as a matter of law to prove that she was disabled 4: holding that notice provided by plaintiff that alleged she  was injured  as result of fall was insufficient as matter of law and precluded invocation of savings clause


Input: modification to the statute in the thirty years since funeral expenses were made available. C As a rule, a claim for punitive damages may lie only where there is a valid underlying cause of action. Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 45, 477 A.2d 1224 (1984). In a negligence action, the maintenance of a valid claim requires the plaintiff to show a breach of duty and resulting damage. Ibid, (citing Stanley Co. v. Hercules Powder Co., 16 N.J. 295, 315, 108 A.2d 616 (1954) (other citations omitted)). In this case, Coastal stipulated negligence and causation, leaving only the issue of damages for the jury’s determination. Coastal argues that because pain and suffering comprise the sole compensable inju Starkenburg v. Montana, 282 Mont. 1, 934 P.2d 1018, 1031 (1997) (<HOLDING>); Tirrell v. Navistar Int’l, Inc., 248 Holdings: 0: holding punitive damages unavailable for survival claims under general maritime law 1: recognizing cause of action 2: recognizing that substantive issue of liability may be litigated in the same action for wrongful death and survival actions 3: holding the plaintiffs action was one for wrongful death and not survival where damages listed in complaint were identical to damages listed in the wrongful death act 4: holding that plaintiff in survival action bears burden of proving that death was not instantaneous although a few seconds survival constitutes sufficient amount of time to vest accrual of cause of action


Input: and the cases that court relied on. Chenoweth offered a string cite of cases it relied on in supporting its proposition that the judgment was void or irregular. Further into the opinion, the court states in obvious reference to its string cite that “the final judgment rendered against the garnishee was void or irregular (depending upon which opinion is followed) _” Chenoweth, 342 S.W.2d at 502. Upon reviewing these cases and subsequent ones, we find that Missouri courts have become accustomed to using the terms “void” and “irregular” seemingly interchangeably (Shanks and Butler), or at the very least have failed to draw a meaningful distinction between the two terms in situations similar to the facts of the present case. See, e.g., Roberts v. Meek, 45 S.W.2d 537, 538 (Mo.App.1931) (<HOLDING>); Gilbert v. Malan, 231 Mo.App. 469, 100 S.W.2d Holdings: 0: holding the judgment premature citing one case holding the judgment void and another holding the judgment irregular 1: holding void judgment must be vacated 2: holding that district court had subjectmatter jurisdiction and yet that judgment void for lack of jurisdiction to render the particular judgment 3: holding that a default judgment was not void because the bankruptcy court that entered the judgment had proper jurisdiction over the party seeking relief 4: holding that a premature notice of appeal from an interlocutory summary judgment was deemed effective when the trial court granted a severance and rendered the summary judgment final


Input: full hearing as to the underlying felony conviction itself). Because the prior conviction was established in a proceeding cloaked with due process, the rights to adequate notice and a fair adjudication have already been satisfied. See Apprendi, 530 U.S. at 488, 147 L. Ed. 2d at 453-54, 120 S. Ct. at 2362; see also Jones v. United States, 526 U.S. 227, 249, 143 L. Ed. 2d 311, 329-30, 119 S. Ct. 1215, 1227 (1999). Moreover, where the previous conviction is acknowledged, it represents an objective fact that is not subject to dispute, and concerns about the need for additional due process protections in a subsequent proceeding are mitigated. See Apprendi, 530 U.S. at 488, 147 L. Ed. 2d at 453-54, 120 S. Ct. at 2361-62; People v. Watson, 322 Ill. App. 3d 164, 167-68, 749 N.E.2d 1078 (2001) (<HOLDING>). In this case, however, the triggering Holdings: 0: holding that undisputed matters of public record are proper subjects for judicial notice 1: holding that courts may take judicial notice of sec filings that are matters of public record 2: recognizing that a court may rely on matters of which a court may take judicial notice 3: recognizing that a court may take judicial notice of court filings and other matters of public record 4: holding that the existence of prior convictions are typically matters of public record of which the trial court can take judicial notice without violating the defendants right to due process


Input: that increase in prejudice to the defendant as they diminish in v biting all expert testimony — including all "consistent with” testimony — except for purposes of rehabilitation on rebuttal by requiring the testimony to be narrowly tailored to an identifiable symptom from which the complainant suffers. See, e.g., People v. Nelson, 203 Ill.App.3d 1038, 149 Ill.Dec. 161, 561 N.E.2d 439, 444 (1990) ("At this time, we choose to limit the admissibility of such testimony to rebuttal after the victim’s credibility has first been attacked.”); see also People v. Bowker, 203 Cal.App.3d 385, 249 Cal.Rptr. 886, 891 (1988) (requiring that the testimony is “targeted to a specific ‘myth’ or 'misconception' suggested by the evidence”); People v. Beckley, 434 Mich. 691, 456 N.W.2d 391, 399 (1990) (<HOLDING>). CADY, Chief Justice (dissenting). I Holdings: 0: holding evidence of outofstate instances of abuse admissible in child sexual abuse case to show intent opportunity and relationship between defendant and victim 1: holding evidence of past uncharged sexual encounters admissible in child sexual abuse case to show relationship between defendant and alleged victim 2: holding defendants prior conviction for assault related to sexual abuse of a minor even though it did not require an act of sexual abuse because it required intent to commit sexual abuse  and such a mens rea demonstrate the offense was one relating to sexual abuse 3: holding that proper foundation existed for qualified experts testimony regarding child sexual abuse accommodation syndrome where expert had extensive training and experience with sexually abused children expert testified regarding the characteristics of the syndrome and its recognition by specific agencies and defense counsel rigorously crossexamined witness concerning the basis of her knowledge of the victims conduct 4: holding that only those aspects of child sexual abuse accommodation syndrome which specifically relate to the particular behaviors which become an issue in the case are admissible


Input: millions of dollars in revenue each year. Throughout its arguments on nonobviousness, Western Union places significant emphasis on the fact that both parties evaluated the Orlandi Valuta system that existed at the time of the invention and decided to develop their own new and improved systems. We agree with MoneyGram that the district court erred in its analysis of secondary considerations of obviousness and in its heavy reliance on them in denying MoneyGram’s JMOL of obviousness. We find the evidence of secondary considerations irrelevant in supporting the jury verdict of nonobviousness. Our case law clearly requires that the patentee must establish a nexus between the evidence of commercial success and the patented invention. See In re Huang, 100 F.3d 135, 140 (Fed.Cir.1996) (<HOLDING>) (emphasis added); In re GPAC Inc., 57 F.3d Holdings: 0: holding that the computer readable code claimed in claim 6 the product claim was a part or component of that invention 1: holding a determination that an invention was onsale within the meaning of the statute requires that a sale be operable the complete invention claimed be embodied in or obvious from the device offered for sale and the sale or offer be primarily for profit rather than for experimental purposes 2: holding that the one challenging the patent must in part show that the subject matter of the sale or offer to sell fully anticipated the claimed invention or would have rendered it obvious by its addition to the prior art 3: holding that the proponent must offer proof that the sales were a direct result of the unique characteristics of the claimed invention  4: recognizing that courts must be careful not to allow hindsight reconstruction of references to reach the claimed invention without any explanation as to how or why the references would be combined to produce the claimed invention


Input: violations of the FDCPA. D. Attorneys’Fees and Costs Since Plaintiff successfully demonstrated that Absolute violated the FDCPA, she is entitled to “costs of the action, together with a reasonable attorney’s fee.” 15 U.S.C. § 1692k(a)(3). As a result, the undersigned turns to Plaintiffs request for attorney’s fees and costs. 1. Attorneys’ Fees “The starting point in fashioning an award of attorney’s fees is to multiply the number of hours reasonably expended by a reasonable hourly rate.” Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994); Hepsen v. J.C. Christensen and Assocs., Inc., No. 10-12231, 2010 WL 3329836 (11th Cir. Aug.25, 2010) (calculating attorneys’ fees under FDCPA using lodestar); Moton v. Nathan & Nathan, P. C., 297 Fed.Appx. 930, 931-32 (11th Cir. 2008) (<HOLDING>). The product of the reasonable hourly rate and Holdings: 0: holding trial court erred in awarding attorneys fees to physicians in absence of any evidence of attorneys fees 1: recognizing that a school district must be a prevailing party in order to be entitled to attorneys fees under the idea 2: holding that back rent is debt under the fdcpa 3: holding that lodestar analysis must be used to calculate attorneys fees under the fdcpa 4: holding that unsegregated attorneys fees must be remanded


Input: (further quotation omitted). Mr. Camp argues that the ALJ improperly determined that his mental impairments were not severe, despite evidence to the contrary. Our review of the administrative record raised one concern: Mr. Camp’s Global Assessment of Functioning (GAF) score of 50. A GAF score of 41-50 indicates “[sjerious symptoms ... OR any serious impairment in social, occupational, or school functioning.” American Psychiatric Assoc., Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed.2000). But the mental health evaluator did not indicate that Mr. Camp’s GAF score impaired his ability to work. The score, without evidence that it impaired Mr. Camp’s ability to work, does not establish an impairment. Cf Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 241 (6th Cir.2002) (<HOLDING>). Mr. Camp also asserts that the ALJ Holdings: 0: holding that this court could not affirm the aljs finding of gross misconduct because the alj failed to make findings on every material contested issue of fact 1: holding that perjured testimony standing alone does not constitute fraud upon the court 2: holding that a complaints reference to a guilty plea does not make the transcript of the plea proffer integral to the complaint 3: holding aljs failure to reference the gaf score in the rfc standing alone does not make the rfc inaccurate 4: holding that threats standing alone generally do not constitute past persecution


Input: Conversely, if the lender increases the interest rate in a manner not previously disclosed, the rate increase would constitute a new transaction subjecting it to new disclosure requirements. In Key Sav. Bank, F.S.B. v. Dean, 695 So.2d 808, 810 (Fla. 4th DCA 1997), we held that “increases in interest rates are not considered ‘new transactions’ when a creditor gives prior disclosure that rates are subject to change, the conditions of the changes, and the limits of any possible change.” We further stated that “If [the lender] properly disclosed the variable-rate information, then each rate change would be just a subsequent occurrence.” Id. at 810; accord Hubbard v. Fidelity Federal Bank, 824 F.Supp. 909, 918 (C.D.Cal.1993), ajfd in part and rev’d in part, 91 F.3d 75 (9th Cir.1996) (<HOLDING>). It is not merely the initial “mis-disclosure” Holdings: 0: holding that once a rate is filed with the appropriate agency except for review of the agencys orders the courts can assume no right to a different rate on that ground that in its opinion it is the only or the more reasonable rate 1: holding that under the filed rate doctrine a question regarding reasonable rates should be addressed to the department of insurance and that the rate plaintiff was charged is conclusively presumed reasonable under the filed rate doctrine 2: holding that with respect to the eaja the local or national market rate for legal services cannot be a special factor used to increase the rate beyond the statutory rate 3: holding that the proper rate for prejudgment interest is the rate fixed by the parties in a contract 4: holding under 12 cfr part 226 supp i  20a1984  a lender is obligated to provide new disclosures if the variable rate feature was not properly disclosed in accordance with regulation z and the lender 1 increases the rate based on a variable rate feature that was not previously disclosed or 2 adds a variablerate feature to the obligationemphasis added


Input: blood alcohol content); Toler v. State, 623 So.2d 408, 411 (Ala.Crim.App.1993) (refusing to instruct on intoxication even though the defendant had “way too much to drink” and “could not remember some things that occurred”). Petitioner was indeed drunk on the night the crimes were committed, but “[generally, voluntary drunkenness is no defense to a criminal charge.... [T]he degree of intoxication which must be demonstrated to exonerate a defendant is great.” State v. Gover, 267 Md. 602, 606-07, 298 A.2d 378, 381 (1973). Petitioner simply cannot point to evidence sufficient to satisfy that standard, leaving us with no basis to hold that the trial court abused its discretion in refusing to give the instruction. See Dickey v. State, 404 Md. 187, 199, 203-04, 946 A.2d 444, 451, 454 (2008) (<HOLDING>); Perry v. State, 344 Md. 204, 242, 686 A.2d Holdings: 0: holding that a trial judge is obliged to give a correct jury instruction notwithstanding that request for instruction was technically erroneous if the evidence generates the subject matter of the jury instruction 1: holding that the defendant could not appeal a jury instruction where he did not object to the challenged instruction but in fact requested it and stated he was satisfied with it 2: holding that the requested instruction did not state the applicable law and the trial court was not required to grant it citing rule 4  325c 3: holding that issue of inadequate jury instruction was waived because the instruction given was the one expressly requested by defense counsel 4: holding that the requested instruction was not required under rule 4325c because even assuming that the requested instruction was a correct statement of law the trial judge exercised his discretion properly


Input: to continue a defendant’s supervised release after a violation rather than revoke the release term). It immediately invited defense counsel to speak about whether there should be a revocation, and there is no error in the court deciding that LeBoeuf s violations and conduct as testified by Hernandez warranted revocation and imprisonment as opposed to a continuance on release. Furthermore, the district court’s other remarks during the hearing show that its various references to “punishment” did not invoke § 3553(a)(2)(A). The court explained that the 24-month sentence it imposed “adequately addresses the factors the Court should consider,” and also that those factors were not reflected in the advisory guideline range. The court’s references to the factors that “ 00 (6th Cir.2007) (<HOLDING>). Therefore, any error by the district court Holdings: 0: holding that district court may consider  3553a2a and noting circuit split on the issue 1: recognizing split among district courts 2: recognizing circuit split 3: recognizing a split of authority on this issue 4: recognizing split


Input: non-diverse agents, holding that where “[the principal’s] liability, like that of the two employees, was, in effect, predicated upon the alleged [misconduct] of the latter, the showing manifestly went to the merits of the action as an entirety, and not to the joinder.” 232 U.S. at 153, 34 S.Ct. 278. Likewise, in Hauck this Court refused to find fraudulent joinder on the basis of evidence equally dispositive of the liability of a diverse principal and its non-diverse agent, given that “any resolution of [the agent’s] liability necessarily operates to discharge the liability of [the principal] as well because ... the liability of [the principal] in this case is, at least in part, derivative of that of its agent.” 2006 WL 1 . 4:03CV0034-P-B, 2004 WL 555250, at *2 (N.D.Miss. Mar.15, 2004) (<HOLDING>); Polk v. Lifescan, Inc., No. Civ A. Holdings: 0: holding that the liability of a principal or master to a third person based upon respondeat superior is purely derivative and thus a judgment on the merits for or against the agent or servant is res judicata visavis the principal or master though he was not a party to the action 1: holding that a principal is not hable for the actions of an agent when these actions exceed the agents authority and the thirdparty has knowledge that the agent does not have the authority asserted 2: holding that a principal is bound by a contract entered into by the principals agent on her behalf if the agent had authority to bind the principal 3: holding that the common claims or defenses test applies to a claim of fraudulent joinder asserted by a diverse principal as to a nondiverse agent because a finding of fraudulent joinder as to the agent necessarily involves a decision on the merits as to the principal given the doctrine of respondeat superior 4: holding that an agent owes a fiduciary duty to his principal


Input: amphetamine, the government had to show that Mendoza distributed amphetamine to a third party, that he did so knowingly and intentionally, and that he knew he was distributing a controlled substance.”); United States v. King, 356 F.3d 774, 779 (7th Cir.2004) (noting that the Government had to prove that the defen dant distributed methamphetamine knowingly or intentionally, knowing that substance was a controlled substance). 2 . See United States v. Mallett, 496 F.3d 798, 801-02 (7th Cir.2007) (concluding that evidence of a drug sale eight months before the charged conduct was properly admitted to show intent and knowledge in a prosecution for maintaining a crack distribution place and for possession with intent to distribute); United States v. Hurn, 496 F.3d 784, 787-88 (7th Cir.2007) (<HOLDING>); see also United States v. Blount, 502 F.3d Holdings: 0: holding that prior drug trafficking conviction was admissible to prove intent to distribute 1: holding that evidence of a 10yearold drug conviction was properly admitted to show intent in a prosecution for possession with intent to distribute 2: holding that a prior conviction for possession with intent to distribute cocaine is admissible under rule 609 3: holding no unfair prejudice from admission of conviction for possession of 50 to 200 pounds of marijuana with intent to distribute as evidence of intent to distribute cocaine 4: holding that evidence that defendants had participated in several prior drug transactions was properly admitted to establish defendants intent to distribute narcotics


Input: does impose various duties upon those operating motor vehicles in this state, not every violation of article 6701d constitutes negligence as a matter of law. Caughman v. Glaze, 412 S.W.2d 357, 362 (Tex.Civ.App. — San Antonio 1967, writ refd n.r.e.). On a number of occasions, Texas courts have held that violations of particular sections found in article 6701d did not constitute negligence per se. These courts have held that, because a breach of these particular sections was conditioned upon proof that the defendant failed to act “safely,” “with safety,” or “prudently,” these sections imposed upon the complainant the burden of proving that his opponent acted reasonably. See Cudworth v. South Texas Paisano Constr. Co., 705 S.W.2d 315, 317 (Tex.App. — San Antonio 1986, writ refd n.r.e.) (<HOLDING>); Renfroe v. Ramsey, 477 S.W.2d 648, 650 Holdings: 0: holding that the issue is not whether officer subjectively feared suspect but whether a reasonably prudent person would justifiably believe that his safety or that of others was in danger 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: holding that the inquiry into whether an employee was acting within the scope of his employment depends on the respondeat superior law of the state in which the tort occurred 3: holding that whether a driver safely entered an intersection as per section 71c depends upon whether he acted prudently 4: holding that whether a driver yielded the right of way as per section 74 depends upon whether he acted negligently or unreasonably


Input: Appeals held, "Viewing the evidence'-in the light most favorable to the State, the evidence shows that L_M_was compelled to participate in incestuous intercourse with appellant through the use of force, threats and undue influence. Thus, L_M_is -not an accomplice Id. Under previous cases interpreting the standard adopted in Mercer and followed in Botin, it is doubtful that evidence of threats alone would have been sufficient to overcome the Bolin presumption that the victim, in Brown was an accomplice. See Trejo v. State, 135 Tex.Crim. 39, 117 S.W.2d 115, 115 (Tex. Crim. App. 1938]) (Court of Criminal Appeals held "[w]e are unable to reach the conclusion that the witness was not an accomplice” despite testimony by complaining witness that her father “had sexual int 2d 1038, 1039 (1934) (<HOLDING>). Accordingly, by ruling that the defendant's Holdings: 0: holding that indirect use of force constituted robbery when defendant tried to push a jewelry case lid open while the victim tried to hold it shut 1: holding that consent was freely and voluntarily given despite officers advisement that the police could get a search warrant if consent was not given 2: holding that complaining witness was an accomplice as a matter of law despite her testimony that i didnt consent to it  when i had intercourse with my father i tried to get away but i couldnt do it i tried to get loose from him  i tried to get up and hit him but that didnt do no good he was so much stouter than i was was insufficient to establish that she was not an accomplice 3: holding that complaining witnesss passive submission to her fathers act of carnal intercourse with her without her consent and that she failed to outcry or resist because she was frightened were insufficient to show she was not an accomplice 4: holding evidence insufficient when record contained expert testimony but no real evidence that proposed patient ever tried to hurt herself or others or that her condition was deteriorating to point where she might do so


Input: this court of jurisdiction to hear the matter.”) (internal quotation marks and cithtions omitted)/ The purpose of the exhaustion requirement is to avoid our court’s premature interference with' the agency’s processes. See Liu v. Waters, 55 F.3d 421, 424 (9th Cir.1995). We have made an exception to the exhaustion requirement for constitutional challenges,to statutes and to the administrative rules of procedure. See Rashtabadi v. INS, 23 F.3d 1562, 1567 (9th Cir.1994) (noting that because the BIA has no jurisdiction to adjudicate constitutional issues, the general rule requiring exhaustion does not preclude petitioners from raising constitutional challenges to the Immigration and Naturalization Act or to the INS’s procedures); see also Ali v. Ashcroft, 346 F.3d 873, 878 (9th Cir.2003) (<HOLDING>); Falcon Carriche v. Ashcroft, 350 F.3d 845, Holdings: 0: holding that pro se petitioners need not raise issues in ins terms but may raise them as they may have understood them 1: holding that once the court of appeals recognized that the claims of the absent parties were not frivolous as part of the rule 19b inquiry it was error for the court of appeals to address them on their merits when the required entities had been granted sovereign immunity and explaining that the courts consideration of the merits was itself an infringement on foreign sovereign immunity 2: holding that court of appeals statutory jurisdiction over final orders of removal extends to reinstatement orders 3: holding that where petitioners did not simply challenge the validity of their orders of removal but had questioned whether the statute grants the ins authority to remove them to a country that cannot accept them the court of appeals retains jurisdiction 4: recognizing that jurors have the right to reject that part of the evidence believed by them to be untrue and to accept that found by them to be true


Input: by ERISA (MTD at 24-25); again, for the reasons given in the preceding section, the Court rejects that contention. The elements of a DTPA claim are (1) the plaintiff is a consumer; (2) the defendant committed a false, misleading, or deceptive act; and (3) the act caused the consumer’s damages. Tex. Bus. & Com.Code Ann. §§ 17.45(4), 17.50(a); see also Brown & Brown of Tex., Inc. v. Omni Metals, Inc., 317 S.W.3d 361, 387 (Tex.App.2010) (“Under the DTPA, a consumer may bring an action when he has relied to his detriment on a false or misleading representation, and the reliance is a producing cause of damages.”). The question of consumer status under the DTPA is question of law for the court to decide. Lukasik v. San Antonio Blue Haven Pools, Inc., 21 S.W.3d 394, 40 , (5th Cir.1992) (<HOLDING>). Because Plaintiff was an intended third-party Holdings: 0: holding where condemnation of a temporary easement in an airport parking garage was primarily designed for economic benefit to gain control of the garage at a discounted price the taking was not for public use and therefore was an unconstitutional taking 1: holding that defendants adult son who was living on defendants property had equal control over use of premises and had authority to consent to a search 2: holding that son of woman who bought garage door opener was a consumer because primary purpose of the purchase and installation into home was to benefit son 3: holding that an attached garage is part of the home for payton purposes even when the garage door is open 4: holding that son had no homestead interest in property even though he resided upon it with his fathers consent because son had neither title nor a present right to possess land nor right to demand partition from father who was his cotenant