Input: and operation of workmen’s compensation. If an employer and employee are covered by the Act, all their rights and remedies are defined exclusively by the Act. § 52-1-9, N.M.S.A.1978. As between the employer and the employee, all other common law and statutory actions are barred by the Act. Id., 94 N.M. at 61, 607 P.2d at 599. The reasoning of the Michigan Court in Beauchamp is inconsistent with the language of Section 52-1-9 and prior decisions of both our Supreme Court and this Court. Moreover, following the decision in Beau-champ, the Michigan Legislature amended its statute so as to legislatively reject the “substantial-certainty standard” recognized by the Illinois Court. See Copass v. Illinois Power Co., 211 Ill.App.3d 205, 155 Ill.Dec. 600, 604-05, 569 N.E.2d 1211, 1215-16 (1991) (<HOLDING>). Plaintiff also argues that since the Holdings: 0: holding that the employee must at least provide his employer with enough information for the employer to be put on notice that the fmla is a consideration 1: holding that glc 152 15 provides that the only party immune from suit under the statute is the direct employer a special employer is not immune because the special employer is not liable for the payment of workers compensation and there was no agreement between the direct employer and the special employer that the special employer would be liable for the payment of such compensation 2: holding that the modern view respecting actionable intentional misconduct by the employer is that it must be alleged and proved that the employer acted deliberately with the specific intent to injure the employee 3: holding that when an employer intentionally engages in misconduct knowing it is substantially certain to cause serious injury or death to employees and an employee is injured or killed by that misconduct the employee may pursue a civil action against his employer and also pursue benefits under the workers compensation act 4: holding that an employee could not establish pretext when the employer in good faith believed that the employee engaged in misconduct regardless whether the employee in fact engaged in the misconduct


Input: or extreme hardship. 1. Prudential Has the Right to Finality of the Litigation The Court must consider the potential impact that late opt-outs would have on the Settlement. Prudential maintains that to ensure the finality the Settlement was intended to achieve, it is necessary for the Court to enforce the opt-out deadline. See In re Gypsum Antitrust Cases, 565 F.2d 1123, 1127-28 (9th Cir.1977) (emphasizing that in managing a large class settlement consisting of nearly one-half million people, ‘“a cutoff date [for claims] is essential and at some point the matter must be terminated’ ”) (citation omitted). The impetus for defendants to settle class action suits is finality of the litigation. See, e.g., O’Brien v. Nat’l Property Analysts Partners, 739 F.Supp. 896, 900 (S.D.N.Y. 1990) (<HOLDING>). Therefore, to grant leave for an extension of Holdings: 0: holding that courts should consider the merits of the litigants claims the nature of the factual issues the litigants ability to present his claims and the complexity of the legal issues 1: recognizing a strong policy preference in favor of arbitration 2: recognizing that a court must balance the policy in favor of hearing a litigants claims on the merits with the policy in favor of finality 3: holding that where the issue is one of arbitrability the federal presumption in favor of arbitration shifts to favor a court determination 4: recognizing policy of this court to favor complete coverage when interpreting insurance contracts


Input: the Government. We are not convinced the Payment in Lieu of Taxes Act is a money-mandating statute. It authorizes payments to local governments according to a formula, but neither the statute nor applicable regulations suggest or imply remedies for local governments that receive less than their full allotments under the formula if Congress does not appropriate sufficient funds. Language in the case law speaking of “fair inferences” of a right to recover and readings of statutes that are “reasonably amenable” to money damages, suggest that the standards may lean slightly in a claimant’s favor. However, we cannot read this statute to mandate compensation or to imply that money damages would be due' in these circumstances. Cf. Britell v. United States, 372 F.3d 1370, 1378 (Fed.Cir.2004) (<HOLDING>); Mitchell v. United States, 229 Ct.Cl. 1, 664 Holdings: 0: holding that mandatory language such as will pay or shall pay creates the necessary moneymandate for tucker act purposes 1: holding that the term shall is mandatory for purposes of statutory construction when the statute is unambiguous 2: holding that shall language in rule 702h conveys a mandatory act 3: holding that a states use of the word shall is mandatory language 4: recognizing that shall will and must are all mandatory terms


Input: hearing before the district court, Tinsley v. Borg, 895 F.2d 520, 530 (9th Cir.1990), and we lack jurisdiction to consider the defaulted claims on appeal, Davis v. Woodford, 333 F.3d 982, 1007 (9th Cir.2003). The trial court’s decision to combine the guilt and penalty phases of Davis’s trial was neither “contrary to, [n]or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” Andrade, 538 U.S. at 71. Under Nevada law, separate sentencing proceedings are only required in death penalty cases. McCabe v. State, 98 Nev. 604, 607, 655 P.2d 536 (1982) (interpreting Nev.Rev. Stat. §§ 175.522 & 175.544); see also Confederated Tribes and Bands of the Yakima Nation v. County of Yakima, 903 F.2d 1207, 1210 (9th Cir.1990) (<HOLDING>). This standard satisfies the Supreme Court’s Holdings: 0: holding that federal courts must accept the decision of the states highest court even if it is an erroneous one 1: holding that when applying state law a federal court is bound to follow the highest court in the state 2: holding that federal courts may not substitute them reading of a state statute for that of the states highest court 3: holding that when there is no ruling by the states highest court it is the duty of the federal court to determine as best it can what the highest court of the state would decide 4: holding that when applying state law this court follows the decision of the highest state court or in the absence of such a decision and any indication that the highest court would rule differently the decisions of the states intermediate courts


Input: of Holmes’ lmes and since in denying RICO standing to parties who suffer derivative or passed-on injuries. As we explained in County of Oakland v. City of Detroit, 866 F.2d 839, 851 (6th Cir.1989), a case involving antitrust and RICO claims, “[t]he doctrine of privity of contract ... was in its heyday in 1890,” when Congress enacted the Sherman Act, and the Supreme Court “stated a truth with which lawyers practicing in 1890 would have been totally comfortable when it said that ‘[t]he general tendency of the law, in regard to damages at least, is not to go beyond the first step.’ ” Id. at 851 (quoting S. Pac. Co. v. Darnell-Taenzer Lumber Co., 245 U.S. 531, 533, 38 S.Ct. 186, 62 L.Ed. 451 (1918) (Holmes, J.)); see also Perry v. Am. Tobacco Co., Inc., 324 F.3d 845, 849 (6th Cir.2003) (<HOLDING>); Pik-Coal Co. v. Big Rivers Elec. Corp., 200 Holdings: 0: holding that a union lacked standing to sue for injuries passed on to it by intermediaries 1: recognizing that detariffmg would result in some increased administrative costs but anticipating those costs to be initial and fixed costs only resulting from the shift to a detariffed environment  such as the cost of developing short standard contracts 2: holding that an indirect purchaser lacked standing under the antitrust laws to sue for overcharges passed on to them by intermediaries 3: holding that policy holders lacked standing under rico to sue tobacco companies for increased costs of insurance passed on to them as a result of the increased costs of treating smokingrelated illnesses 4: holding that plaintiffs lacked standing to sue


Input: why the court does not find King persuasive in this matter. First, the King decision was partially based on a Third Circuit holding defining hostile work environment claims as a ‘single cause of action’; there is no such analogous holding by the Eighth Circuit Court of Appeals. See id. Second, the improper quid pro quo claim in King was against parties that appear to not have even been mentioned in the plaintiff’s EEOC charge; here Soto alleges quid pro quo harassment at the hands of Tanner, the primary perpetrator mentioned in her charge. Id. at 164. The Eighth Circuit Court of Appeals has found various Title VII claims unexhausted as not ‘reasonably related’ to the allegations in the administrative charge. See, e.g., Russell v. TG Missouri Corp., 340 F.3d 735, 747-48 (8th Cir.2003) (<HOLDING>); Dorsey, 278 F.3d at 838 (finding “claims for Holdings: 0: holding that retaliation claim was reasonably related to prior sex discrimination claim 1: holding plaintiff did not exhaust his retaliation claim where his eeoc charge made no mention of retaliation 2: holding that a claim of retaliation for filing eeoc charges is cognizable under  1981 3: holding retaliation claim not reasonably related to discrimination charges where eeoc complaint set forth retaliation as a motive for plaintiffs termination and not as a motive for plaintiffs overtime assignments 4: holding court did not have jurisdiction to hear plaintiffs retaliation claim where plaintiff did not check the retaliation box or describe anything that indicates such a claim in the eeoc complaint


Input: independently fatal.” 197 F.3d at 1310. We concluded, despite the horrific nature of the crime, and the repeated stabbings, that a reasonable jury might find adequate provocation, heat of passion resulting from fear and terror, causation and immediacy, so as to warrant a first-degree manslaughter instruction. Id. at 1309. To correct the error of the denial of the requested lesser-included offense instruction, we reversed and ordered a new trial. Id. (citing Williams v. State, 513 P.2d 335, 337, 338-39 (Okla.Crim.App.1973) (when defendant shot his wife eight times at close range, and when defendant testified that “I just went blank and just stood there just pumping that gun,” the OCCA ordered a new trial, holding that “[t]he lack of a premeditated design to effect death should p.2000) (<HOLDING>); Boyd v. State, 839 P.2d 1363, 1367-68 Holdings: 0: holding the harmed victim need not be the victim of the offense of conviction 1: holding that instructions on depraved mind murder were correctly refused when the defendant shot the victim a second time in the chest at close range 2: holding that evidence the victim tried to keep defendant from fleeing the scene of a crime and defendant killed victim in order to escape supported the finding that murder was committed to avoid arrest 3: holding that instructions on depraved mind murder were correctly refused when the defendant entered a restaurant with intent to rob its occupants with a firearm stood directly in front of the victim raised the firearm demanded money and fatally shot the victim in the back of the chest when the victim tried to defend himself 4: holding that when defendant drove to a transmission shop where the victim worked pushed the victim to the ground and shot him twice at close range the evidence did not support a lesserincluded offense instruction on seconddegree depraved mind murder


Input: where the creditor lacked the required notice, once the complaint deadline passes without extension, a court can do nothing to alter the nondischargeability of a bona fide fraud claim. The other line of decisions, which includes In re Thompson, has favored allowing the debtor to reopen the case (In re Thompson, 152 B.R. at 26), at least when the debtor has acted in good faith and the creditors will not be prejudiced. See, e.g., In re Candelaria, 121 B.R. 140, 142, 144 (E.D.N.Y. 1990). Although one reason cited for allowing this is the desire for accuracy in the debtor’s schedules (In re Candelaria, 121 B.R. at 142), the idea that newly scheduled creditors should have a limited time to file section 523(c)(1) complaints is a common thread in these cases. See In re Walker, 195 B.R. at 208 (<HOLDING>); In re Maddox, 62 B.R. 510, 514 (Bankr. Holdings: 0: holding filing of motion for reconsideration does not toll the 30day deadline for filing petition for review 1: holding that the 180day filing deadline is jurisdictional and mandatory 2: holding that in this context the filing deadline is tantamount to a statute of limitations 3: holding that it had the power to set a 90day deadline for the filing of section 523c1 complaints in reopened cases 4: holding that an agency filing deadline set forth in a regulation as a rule of administrative convenience is not jurisdictional


Input: 615, 629 (5th Cir.2000) (stating that an adverse employment action includes employment decisions on hiring, granting leave, discharging, promoting, and compensating). 21 . See Mota, 261 F.3d at 519; Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 684 (5th Cir.2001). 22 . See Grizzle v. Travelers Health Network, 14 F.3d 261, 268 (5th Cir.1994) (upholding a judgment not withstanding the verdict and observing that no evidence existed of a hostile reaction to the plaintiff's protected activity). 23 . See Shirley v. Chrysler First, Inc., 970 F.2d 39, 43 (5th Cir.1992) (finding that the passage of 14 months between the filing of an EEOC charge and employee's discharge was insufficient proof against retaliation claim). 24 . See Meiners v. Univ. of Kan., 359 F.3d 1222, 1231 (10th Cir.2004) (<HOLDING>); Fabela v. Socorro Ind. Sch. Dist., 329 F.3d Holdings: 0: holding that three and onehalf months between the filing of an eeoc charge and the adverse employment action was insufficient by itself to establish causation 1: holding that the more than three month gap between the plaintiffs eeoc complaint and the allegedly adverse action was insufficient to show causation 2: holding that sufficient evidence of causation existed where adverse employment action occurred less than three months after the protected activity 3: holding one and onehalf months establishes causation while three months is too long and does not 4: holding that by itself three and onehalf months was insufficient to prove causation


Input: The court determines that no reasonable juror following the law could conclude that Rollins’ comments are because of Plaintiffs race, and thus, Plaintiff has not stated a claim for racial harassment, (emphasis in original). We disagree. The evidence proved a slew of vulgar and harassing comments that continued over a period of years established genuine issues of material fact exist concerning whether the harassment she suffered was based on race, specifically the race of the man with whom she was romantically involved. A reasonable jury could have concluded that Rollins’ comments were about that interracial relationship, and harassment based on an interracial relationship is forbidden under Title VII. Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 890-92 (11th Cir. 1986) (<HOLDING>). Tomczyk presented enough evidence to permit a Holdings: 0: holding that a plaintiff can prove illegal retaliation under   1981 in the same manner as he establishes retaliation under title vii 1: holding that an attorneys letters constitute protected conduct under title vii 2: holding that participation in an interracial relationship places a plaintiff in a protected class under title vii and  1981 3: holding that a title vii plaintiff could not hold coworkers liable in their individual capacities under title vii 4: holding that title vii precludes a claim under section 1981 for racial discrimination against a federal employee


Input: purpose was to force a purchase of his stock at an unreasonable price.” Id., 223 Pa. at 198, 72 A. at 553-54. The Supreme Court affirmed the order which had compelled the corporation to arrange for an inspection of its books by the stockholder: Realtor as a stockholder has without question the right to inspect the books of the company, at a proper time, and in a proper way, even though his only object is to ascertain whether the business has been properly conducted. Such a right is necessary for the protection of stockholders. The Realtor seeks at the present time merely for information. It may be that as a result of his examination of the books and of the records his suspicions will be shown to be groundless. Id. See also Taylor v. Eden Cementery Co., 337 Pa. 203, 10 A.2d 573 (1940) (<HOLDING>). In Klein v. Scranton Life Insurance Co., 139 Holdings: 0: recognizing principle but concluding that there was no evidence that debtor was in fact a shareholder of the corporation or that the corporate formalities had been disregarded 1: holding that even where no attorneyclient relationship exists between a shareholder and the corporate attorney this does not necessarily mean that the law firm had no fiduciary duty to the shareholder and observing that instances in which the corporation attorneys stand in a fiduciary relationship to individual shareholders are obviously more likely to arise where the number of shareholders is small in such cases it is not really a matter of the courts piercing the corporate entity 2: recognizing that a shareholder seeking to examine corporate books is vitally concerned with the salaries paid to officers because exorbitant salaries decrease the net proceeds earned by the corporation thus reducing the return from the initial investment in the stock 3: holding that the funds in the privatelyheld corporations account belonged to the corporation not to the individuals who owned the corporation and expressly stating that directors officers and shareholders of a corporation do not have standing to claim an ownership interest in corporate property in their individual capacities they must state a claim in the corporate name 4: holding that resident shareholder of s corporation is eligible for tax credit for taxes paid by corporation in another state and noting that this conclusion is consistent with the internal revenue code which provides that shareholders of an s corporation are entitled to a foreign tax credit for their share of foreign income tax paid by an s corporation


Input: done, occasioned, or incurred, without the privity or knowledge of such owner or owners, shall not (except in cases of personal injury) ... exceed the amount or value of the interest of such owner in such vessel, and her freight then pending. 46 App. U.S.C. § 183, revised at 46 U.S.C. § 30505 et seq. 13 . We note that on another occasion, in United States v. Nassau Marine Corp., 778 F.2d 1111, 1114 (5th Cir.1985), this Court stated in dicta that "non-negligent shipowners may be entitled to limit their liability under [the Limitation Act]." We of course are not bound by dicta, and in any event Nassau Marine was decided before the enactment of the 1986 amendments to the Wreck Act. 14 . See Reg'l Rail Reorganization Act Cases, . 419 U.S. 102, 134, 95 S.Ct. 335, 42 L.Ed ir. 1991) (<HOLDING>); United States v. CF Indus., Inc., 542 F.Supp. Holdings: 0: holding that the limitation act does not apply to claims brought under the park system resource protection act 1: holding that the limitation act does not apply to claims brought under the oil pollution act 2: holding that the limitation act does not apply to claims brought under the transalaska pipeline authorization act 3: holding that the same standards apply to claims under the ada and under the rehabilitation act 4: holding that the limitation act does not apply to claims brought under the clean water act


Input: “pending” status for the period between when the lower court issued its decision and the higher court takes up or dismisses the appeal. But the record in Hernandez-Alberto’s case includes no indication that Hernandez-Alberto failed to satisfy any appellate procedural requirements in appealing the trial court’s competency determination and its dismissal of his postconviction petition. Until the Florida trial court dismissed his petition with prejudice, Hemandez-Alber-to could not appeal those issues and resolve his postconviction proceedings. See, e.g., Christner v. State, 984 So.2d 561, 562 (Fla. 2d DCA 2008) (“[A]n unfavorable ruling on one or more postconviction claims with leave to amend is not an appealable, final order.”); Howard v. State, 976 So.2d 635, 636 (Fla. 5th DCA 2008) (<HOLDING>). And AEDPA insists that we respect these Holdings: 0: holding such denial to be an immediately appealable collateral final order 1: holding that denial of a postconviction motion without prejudice and with leave to amend is not a final appealable order 2: holding that dismissal with leave to amend is not a final order 3: holding that a district courts dismissal that expressly grants leave to amend is not final and that a final judgment must be obtained before such a case becomes appealable 4: holding that when a district court expressly grants leave to amend it is plain that the order is not final


Input: Warrants shall issue, but upon probable cause, supported by Oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized.” 4 . I note that the Supreme Court, in the border patrol checkpoint cases, has held that stops, hence seizures, were reasonable without the articulation of reasonable suspicion, when the stops were evenly enforced for every automobile that passed through the checkpoint, were minimally intrusive and there was a compelling need for those stops to stem the overwhelming 1ide of entry of illegal aliens into the country. United States v. Martinez-Fuerte, 428 U.S. 543, 562, 96 S.Ct. 3074, 3085, 49 L.Ed.2d 1116, 1131-33 (1976) (recognizing that "traffic-checking S. 873, 884, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607, 618 (1975) (<HOLDING>). 5 . Although not involving a search, at best Holdings: 0: holding that to justify detention of a criminal suspect the police officer must be able to point to specific and articulable facts which taken together with rational inferences from those facts reasonably warrant that intrusion 1: holding that although roving patrols in which officers stop and question motorists about their resident status may be conducted without probable cause such stops must at least show that the stopping officer is aware of specific articulable facts together with rational inferences from those facts that reasonably warrant suspicion that a vehicle contains illegal aliens who may be illegally in the country 2: holding that for a terry stop to be considered valid from its inception the police officer must be able to point to specific and articulable facts which taken together with rational inferences from those facts reasonably warrant that intrusion  quoting terry 392 us at 21 88 sct at 1880 3: holding that an investigatory stop must be supported by specific and articulable facts which taken together with rational inferences from those facts reasonably warrant that intrusion 4: holding that search of the passenger compartment of an automobile limited to those areas in which a weapon may be placed or hidden is permissible if the police officer possesses a reasonable belief based on specific and articulable facts which taken together with the rational inferences from those facts reasonably warrant the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons


Input: counsel at the guilt phase as a motion to expand the certificate of appealability. See Ninth Circuit Rule 22-l(e). We previously provided the State an opportunity to brief the issue and now grant Gallegos’s motion. 15 . Contrary to the State’s contention, Gallegos did not procedurally default his claims that Clark was ineffective for failing adequately to consult an independent expert and for failing adequately to prepare to cross-examine Dr. Bolduc. Gallegos presented these claims in his supplemental petition for post-conviction relief. A copy of that petition was included in an appendix to his petition for review to the Arizona Supreme Court, which “is sufficient to present the issue[s] in a full and fair manner to the state courts.” Scott v. Schriro, 567 F.3d 573, 582 (9th Cir.2009) (<HOLDING>) (citing Insyxiengmay v. Morgan, 403 F.3d 657, Holdings: 0: holding a petitioner accomplished a full and fair presentation of his claims because they were included in a copy of the amended petition for postconviction relief which was attached in the appendix of his petition for review to the arizona supreme court 1: holding that untimely petition for postconviction petition divests trial court of jurisdiction 2: holding that even where postconviction petitioner reserved the option to file an amended petition in his opening petition simply filing an amended petition is insufficient to request leave to file an amended petition a motion for leave to file an amended petition was required before it was necessary for the district judge to consider the amended petition 3: holding that the oneyear statute of limitations was not tolled during the pendency of petition for certiorari to the united states supreme court seeking review of denial of state postconviction relief 4: holding that because the defendants challenge to his sentence implicated his plea agreement the defendants request must be construed as a petition for postconviction relief


Input: between the defendants’ negligence and the harm caused” by April 5, 2005, at the latest. The plaintiffs argument regarding fiduciary tolling is also unavailing. The plaintiff contends that the defendants were fiduciaries who breached their duty to disclose their errors. The plaintiff alleges that the defendants withheld from him their accounting errors in 1998 and 1999, failed to inform him of the nature of the IRS examination, and refused to cooperate with him or his counsel during the tax court proceedings. He argues that the defendants’ failure to disclose these alleged breaches of duty tolls the limitation period. Assuming, without deciding, that the defendants acted in a fiduciary capacity, but see Sorenson v. H & R Block, Inc., 107 Fed. Appx. 227, 230-31 (1st Cir. 2004) (<HOLDING>); Block v. Razorfish, Inc., 121 F. Supp. 2d Holdings: 0: recognizing special trust and confidence that must exist between attorney and client citations omitted 1: holding that under massachusetts law agency or fiduciary relationship did not exist between tax preparer and its client 2: holding that relationship between executor and estates beneficiaries is one that gives rise to fiduciary duty as matter of law 3: holding that broker owed no fiduciary duty to client as a matter of law 4: holding that agreements established agency relationship


Input: rendered his videotaped statement involuntary. Appellant testified at the suppression hearing that he was kept in a cold cell for ten hours without a blanket, food, or water. However, Investigator Jody Johnson testified that he did not recall Appellant complaining on the day of the interview about the conditions of the jail or saying that he was cold or hungry. And Investigator Hilliard testified that he interviewed Appellant approximately four hours after he was arrested. Given this conflicting testimony, the volun-tariness of Appellant’s videotaped statement involved the trial court’s evaluation of credibility and demeanor. See Stewart v. State, No. 04-08-00274-CR, 2009 WL 2183397, at *6 (Tex.App.-San Antonio July 21, 2009, pet. refd) (mem. op., not designated for publication) (<HOLDING>). Deferring as we must to the trial court’s Holdings: 0: holding that trial court did not err 1: holding trial court did not err by finding oral statements voluntarily given when trial court heard conflicting evidence concerning the appellants alleged deprivation of food water medication or bathroom access over the course of twelve hours 2: holding trial court did not err in failing to conduct a hearing on motion for reinstatement when appellants failed to call to the trial courts attention the need for a hearing 3: holding that the trial court did not err by granting defendants motion for summary judgment 4: holding the trial court is required to make a determination on impairment of access prior to trial


Input: 551 U.S. at 251, 127 S.Ct. at 2403. The Supreme Court never mentioned the use of deadly force, hostages, innocent bystanders, or any other facts that are remotely similar to the case at bar. Therefore, even if the Supreme Court intended Brendlin to apply to the events that took place in this case, it could not have provided Officer Black with fair notice that a seizure was taking place and thus cannot be used to satisfy the requirement that the law be clearly established. See Coffin v. Brandau, 642 F.3d 999, 1015 (11th Cir.2011). Meanwhile, this court in Vaughan certainly clearly established that if a passenger-suspect is shot by a bullet intended to stop his fleeing during a chase with police officers, then he is seized for purposes of Fourth Amendment analysis. 343 F.3d at 1329 (<HOLDING>) (emphasis added). However, this court just as Holdings: 0: holding an officer may order a passenger to get out of a car during a traffic stop and may frisk a passenger for weapons if the officer reasonably suspects the passenger is armed and dangerous 1: holding a seizure occurs when a passenger of a car is hit by a bullet that is meant to stop him 2: holding that no seizure occurred where shots were fired at a truck but did not hit the suspect because they failed to produce a stop 3: holding that a passenger has standing to challenge a stops constitutionality because the passenger is seized from the moment a car is stopped 4: holding no seizure occurred when after defendant began to walk away officer directed him to stop


Input: J.). Section 405(h) was enacted in 1939, as part of the Social Security Act (“SSA”). As written, it barred jurisdiction under 28 U.S.C. § 41. At that time, 28 U.S.C. § 41 contained virtually all the important grants of subject-matter jurisdiction to the district courts, including federal-question, diversity, and bankruptcy. See 28 U.S.C. § 41(19) (1940) (repealed) (granting jurisdiction over “all matters and proceedings in bankruptcy”). In 1948, however, Congress re-codified Title 28 and separated § 41’s twenty-eight subsections into new sections 1331 through 1359. This caused no substantive change in the coverage of the SSA’s jurisdictional bar; courts simply referred to § 41 as it existed in 1939. See Weinberger v. Salfi, 422 U.S. 749, 756 n. 3, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975) (<HOLDING>). In 1976, however, only one year after the Holdings: 0: holding that section 1406a grants district courts power to transfer cases even where personal jurisdiction is lacking 1: holding that provision requiring exhaustion within two years of injury was not jurisdictional and was subject to tolling 2: holding that section 311034 does not make section 890041 jurisdictional 3: holding that section 1144 is a jurisdictional limitation 4: holding twentyseven years after title 28s recodification that  405hs reference to  41 continued to capture all jurisdictional grants formerly housed within that section


Input: have reasonable latitude to fashion closing arguments.” United States v. Molina, 934 F.2d 1440, 1445 (9th Cir.1991). As a result, it is “neither unusual nor improper for a prosecutor to voice doubt about the veracity of a defendant who has taken the stand.” United States v. Birges, 723 F.2d 666, 672 (9th Cir.1984). Indeed, we have found that, in “instances of flatly contradictory testimony on important issues ... it [is] proper for the government to argue that the jury ought not to believe the [defendant’s] version.” Molina, 934 F.2d at 1445. Thus, the prosecution may refer to a defendant as a liar if it is “commenting on the evidence and asking the jury to draw reasonable inferences.” Garcia-Guizar, 160 F.3d at 520; see also United States v. Rude, 88 F.3d 1538, 1548 (9th Cir.1996) (<HOLDING>). In this case, the prosecutor referred to Holdings: 0: holding that the defendants objection was untimely when he waited until the end of the prosecutors closing argument to raise it 1: holding that prosecutors use of the words lie lies or lied more than ninety times was not improper when viewed in the context of the monthlong trial 2: holding that the trial court did not abuse its discretion by failing to intervene ex mero motu to prevent closing argument by the prosecutor that the defendant lied during his testimony 3: holding that solicitors statement during closing that defense witnesses have lied was merely a question which was submitted to the jury for its determination when it made its findings and returned its verdict 4: holding that a prosecutors use of the words lie lies or lied over 90 times when referring to the defendants in its closing argument was within the boundaries of proper  summations


Input: been sleeping, he was clad in boxer shorts. Generally, the court is faced with a situation where a person has initially consented to a police search and later claims that the consent was actually coerced. The court must then consider the situation, and the coercive factors present, when determining the validity of the consent. But here, Mr. Newsom testified at the suppression hearing and, as pointed out by the district court, never claimed that his consent was coerced. Instead, he testified that he consented to the search because he had nothing to hide. In light of Mr. New-som’s own testimony, it is impossible to conclude that the district court committed clear error in finding that his consent was not coerced. See United States v. Griffith, 584 F.3d 1004, 1011 (10th Cir.2009) (<HOLDING>). Mr. McKinney also briefly argues that, even Holdings: 0: holding that we review a district courts refusal to apply ussg  5c12 for clear error because it is a factual finding 1: holding that we must have a definite and firm conviction that a mistake has been committed before reversing a factual finding for clear error internal quotation omitted 2: holding that apprendi error is harmless if the court finds beyond a reasonable doubt that the result would have been the same absent the error internal quotation marks and citation omitted 3: holding that we review for clear error the bankruptcy courts factual findings 4: holding that we will overturn the factual findings of the district court only where we have a definite and firm conviction that a mistake has been committed


Input: Brown did not promise or misrepresent anything, and made no threats to secure Vargas-Miranda’s further cooperation or his consent. The officer merely asked if there were any drugs in the vehicle, and when Vargas-Miranda denied possession of drugs, asked, “You care if I look and see?,” his accompanying hand gestures further conveying the meaning of his question. Vargas-Miranda was not under arrest. His drivers license and the vehicle insurance card had been returned. Vargas-Miranda and Lopez-Mendoza watched the search and neither defendant asked or indicated that the search should be stopped. Under the totality of these circumstances, I conclude Vargas-Miranda voluntarily consented to the search of the Dodge Magnum. See e.g., United States v. Carrate, 122 F.3d 666, 670 (8th Cir.1997)(<HOLDING>) Although Vargas-Miranda claims he withdrew his Holdings: 0: holding the defendant voluntarily consented to the search where despite his limited ability to speak english and the troopers failure to use a written consent form or advise the defendant of his right to refuse consent the defendant understood and appropriately answered the troopers questions had been detained for only a short amount of time before consenting was not threatened or physically intimidated and no promises or misrepresentations were made was not under arrest when he consented was on a public interstate and he stood idly by while the troopers searched his car never indicating that he objected to the search 1: holding the defendant voluntarily consented to a search of his bedroom based upon evidence that defendant 1 did not contest the fact that he had voluntarily given verbal consent to the search 2 did not appear to be nervous or scared and was cooperative with the officers 3 led officers to his bedroom and 4 was present for the search and did not indicate at any time that he wished to revoke his consent 2: holding that the defendant voluntarily consented to a search and the patdown of his person did not exceed the scope of his consent which included a search of the groin area 3: holding that because the individual was being illegally detained when he consented to the search of his luggage that  consent was tainted by the illegality 4: holding that defendants consent to search his person while on board an interstate bus was voluntary even though the police did not tell the defendant of his right to refuse consent


Input: Colonial Bank, N.A., 2008 WL 4790122 at *4 (M.D.Fla. Nov. 3, 2008) (stating that the economic loss rule does not apply when the parties accept tort remedies in their contract); PNC Bank, N.A. v. Colonial Bank, N.A., 2008 WL 2917639 at *2-3 (M.D.Fla. July 24, 2008). Next, it must be determined whether the economic loss rule bars the County’s claim for breach of fiduciary duty. In Moransais v. Heathman, 744 So.2d 973 (Fla.1999), the Florida Supreme Court found that the economic loss rule does not bar actions for breach of fiduciary duty even when there is an underlying contract between the parties. Id. at 983-84; see also Invo v. Somerset Venturer, Inc., 751 So.2d 1263, 1267 (Fla. 3d DCA 2000); First Equity Corp. of Fla., Inc. v. Watkins, 1999 WL 542639 at *1 (Fla. 3d DCA July 28, 1999) (<HOLDING>). Although contrary precedent does exist, “[i]f Holdings: 0: holding that a claim arises from the purchase or sale of a security only if there is an allegation of fraud in the purchase sale or issuance of the  instrument 1: holding that claims for erisa violations arose from the purchase or sale of debtors securities 2: holding that a claim for breach of a provision in a merger agreement arises from the purchase or sale of the debtors securities 3: holding breach of best execution duty is a material misrepresentation in connection with the purchase or sale of the securities 4: holding that an independent fiduciary duty arises from a brokers purchase and sale of securities


Input: language, the legislative history shows that Congress enacted the EM-TALA not to improve the overall standard of medical care, but to ensure that hospitals do not refuse essential emergency care because of a patient’s inability to pay.”). The EMTALA prohibits participating hospitals from taking adverse action “against any hospital employee because the employee reports a violation” of the EMTALA. 42 U.S.C. § 1395dd(i). Here Plaintiff claims that Defendants retaliated, against him for reporting Kapiolani’s alleged violation of the EMTALA’s requirements for an “Appropriate Transfer” under 42 U.S.C. § 1395dd(c)(2). (PL’s Opp. 9-11). However, the transfer requirements established by 42 U.S.C. § 1395dd(c)(2) must be triggered. See James v. Sunrise Hospital, 86 F.3d 885, 889 (9th Cir.1996) (<HOLDING>). For the EMTALA’s transfer provisions to Holdings: 0: holding that review of medical history during an examination assisted doctors medical conclusions 1: holding that statements made by a child who was brought to an emergency room by her mother were admissible when the child knew a doctor would conduct a medical exam the physician explained he was a doctor and he asked questions about medical history and performed a physical examination of the child 2: holding that the transfer restrictions of 42 usc  1395ddc apply only when an individual comes to the emergency room and after an appropriate medical screening examination the hospital determines that the individual has an emergency medical condition  3: recognizing emergency exception 4: holding a victims statements to emergency room doctor not testimonial where the purpose of the examination was for medical diagnosis and treatment


Input: like Ms. Rotolante, the FINRA Rules do not define the term, leading to varying interpretations. The Fourth Circuit has defined “customer” for purposes of FINRA Rule 12200 as “one, not a broker or a dealer, who purchases commodities or services from a FINRA member in the course of the member’s business activities insofar as those activities are regulated by FINRA— namely investment banking and securities business activities.” Carilion Clinic, 706 F.3d at 325; see Goldman, Sachs & Co., 747 F.3d at 738-39 (adopting Carilion Clinic definition of “customer”). This definition comports with other courts’ decisions addressing the meaning of the term “customer” under FINRA Rule 12200. See, e.g., Citigroup Global Markets, Inc. v. Abbar, No. 13-2172, 2014 WL 3765867, at *6 (2d Cir. Aug. 1, 2014) (<HOLDING>). The Eighth Circuit construed “customer” to Holdings: 0: holding that a nasd member is required to arbitrate claims brought by the customer of an associated person 1: recognizing that plaintiff who is not actually disabled may still be a member of third protected class 2: holding that a mortgage or modification of a mortgage is not a good or a service under the dtpa 3: holding that plaintiff who was iranian is a member of a protected class 4: holding that finra customer is one who while not broker or dealer either purchases good or service from finra member or has account with finra member


Input: conservator of appellant’s child, D.E.S., and appellant was appointed possessory conservator. Appellant did not challenge that part of the judgment in her points on appeal filed with her motion for new trial. See Tex. Fam.Code Ann. § 263.405(b) (Vernon 2002) (requiring party intending to appeal such an order to file statement of points on appeal within 15 days after order is signed). In addition, appellant’s rights to her child, L.G.V., were terminated in a separate suit, and that appeal was assigned to the Court of Appeals for the First District of Texas. On February 12, 2004, the decree terminating appellant’s rights to L.G.V. was affirmed. See In re L.G.V. a/k/a L.G., a child, No. 01-03-00591-CV, 2004 WL 253312 (Tex.App.-Houston [1st Dist.] February 12, 2004, no pet. h.) (mem.op.) (<HOLDING>). 2 . See J.K. v. Lee County, 668 So.2d 813, Holdings: 0: holding there are no grounds to appeal when defendant receives the remedy he requested from the trial court 1: holding no arguable grounds for appeal were present 2: holding that where specific grounds for an objection are stated at trial all other grounds are waived and will not be considered for the first time on appeal 3: holding that summary judgment must be affirmed where multiple grounds are asserted and the appellant does not attack all grounds on appeal 4: recognizing an appellee may assert additional independent grounds for affirmance of the judgment even if it does not file a notice of appeal as long as such grounds were raised in appellees motion for summary judgment


Input: The record reveals that the jury was sufficiently concerned that the foreperson “already ha[d] [his] mind made up” regarding defendant’s guilt or innocence to request instructions from the trial court and to elect another foreperson. In response to the jury’s request for guidance, the trial court summoned only the foreperson and provided him with instructions on and off the record that it did not provide to the rest of the jury. The trial court instructed only the foreperson that jurors needed to resolve the issue in the jury room. The trial court’s failure to similarly instruct the remaining jurors may have given them the impression that the trial court had resolved the matter, foreclosing further debate on this issue during deliberations. Further, following the t d 362, 363-64 (1990) (<HOLDING>). The record in the present case does not Holdings: 0: holding that the burden of proving that the employee did not make reasonable efforts is on the defendant 1: holding the state failed to meet its burden of showing the erroneous jury instruction was harmless beyond a reasonable doubt where it did not address the issue on appeal 2: holding that the state cannot demonstrate harmless error where the substance of the trial courts conversation with an excused juror was not revealed by the transcript or reconstructed at trial 3: holding that the state could not meet its burden of proving harmless error where the record did not reveal the substance of the trial courts unrecorded conversations with prospective jurors 4: holding that the state failed to meet its burden when the record failed to show that the jurors would or would not be available after a weeks continuance


Input: in this court in Canady I. As a result, we hold that the relitigation exception may be warranted in this case, even though the merits of the case were never reached in Canady I. In examining the third criterion of the federal res judicata inquiry, we consider whether both the Saunders cases and the Canady I litigation involved the same parties and the same cause of action. It is undisputed that the eighteen Saunders defendants also were named as defendants in Canady I. Therefore, the parties are undeniably the same in both cases. Further, we agree with the district court that the Saunders cases involved the same cause of action as the Canady I litigation. “The same cause of action framed in terms of a new legal theory is still the same cause of action.” NAACP I, 125 F.3d at 1174 (<HOLDING>) (citing United States v. Gurley, 43 F.3d 1188, Holdings: 0: holding that for res judicata purposes the cause of action is the same when substantially the same evidence would support a recovery in both actions 1: holding that a state law claim mirroring a fair housing act claim had res judicata effect because it sought to redress the same wrong in both actions 2: recognizing that res judicata does not apply unless the facts and evidence necessary to maintain suit are the same in both actions 3: holding that a claim is barred by res judicata if it arises out of the same nucleus of operative facts as the prior claim 4: holding that when the basic wrongful acts pleaded in all actions appear to be the same state and federal law claims constitute the same cause of action for res judicata purposes


Input: and implied warranty claims is that Defendants made representations that the Products were proven to be effective weight-loss supplements and were safe. However, according to the FAC, the Products were not effective and were unsafe. Even if any of the Plaintiffs lost weight while taking the drug, it cannot be assumed that the weight loss was due to the Products’ effectiveness since in a study commissioned by Iovate, the subjects using Hydroxycut actually lost less weight than the placebo group. Furthermore, even if Plaintiffs did not suffer any physical injury, the FAC alleges that the product is not safe for consumption. Therefore, Plaintiffs allege that they did not get what they paid for and have sufficiently alleged breach of warranty. See In re Bayer, 701 F.Supp.2d at 383-84 (<HOLDING>); Rikos, 782 F.Supp.2d at 541-42, 2011 WL Holdings: 0: recognizing products liability and products actions based on negligence as part of the general maritime law 1: holding that fifra preempts breach of warranty claims based on labeling 2: holding that plaintiffs had stated a claim for breach of warranty by alleging that the combination products could not fulfill the promises bayer made on the labeling and that bayer had falsely implied that the combination products had been fdaapproved 3: holding that an implied warranty of merchantability does not create a labeling requirement different from or in addition to those mandated by fifra because the implied warranty of merchantability arises from the sale itself not from a state labeling regulation citation omitted 4: holding plaintiff had to commence his breach of implied warranty action under the dtpa within two years because tjhis special statute of limitations denies plaintiffs alternative proposal of entitlement to recover for breach of the common law implied warranty


Input: likely to result in his or her harm. By contrast, the acts of merely extending a plain invitation, or making a neutral offer to another person, which are unaccompanied by any inducement intended or designed to increase the probability that the person will accept, do not, in their most common understanding, constitute endeavors to “lure.” See American Heritage Dictionary, supra, at 675 (principally defining the verb “invite” as “[t]o request the presence”) and Webster’s Third International, supra, at 1566 (primarily construing the verb “offer” as “to present for acceptance or rejection”). Such acts simply do not involve the additional and extra element of powerful persuasion designed to influence the person to take action, which is the sine qua non of a lure. See Adamo, 637 A.2d at 307 (<HOLDING>). Therefore, as the legislature specifically Holdings: 0: holding that an offer to compromise is generally not admissible as an admission 1: holding an unaccepted settlement offer or offer of judgment does not moot a plaintiffs case emphasis added 2: holding that a written offer accepted by parol may constitute a sufficient memorandum of the contract provided the person making the offer is the party to be charged 3: holding that an offer to donate cannot be an offer to sell 4: holding that a simple offer of a ride by a friend or neighbor does not constitute a lure as that term is usually defined as the offer is not accompanied by an inducement such as a promise of pleasure an enticement or prospect of financial gain


Input: her with an elevator key. (Pl.’s Mot. 19-20.) II. DISCUSSION A. Legal Standard 1. Mandatory Preliminary Injunction A plaintiff seeking a preliminary injunction must establish that: (1) she is likely to succeed on the merits; (2) she is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in her favor; and (4) an injunction is in the public interest. Winter v. Natural Res. Def. Council, 555 U.S. 7, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008). In the Ninth Circuit, preliminary injunction is also appropriate if the plaintiff can show that “serious questions going to the merits were raised and the balance of hardship tips sharply towards the plaintiff’s favor.” Alliance for the Wild Rockies v. Cottrell, 622 F.3d 1045, 1052 (9th Cir.2010) (<HOLDING>) (citation omitted). A mandatory injunction, Holdings: 0: recognizing a challenge to jurisdiction as a viable claim 1: recognizing sentencing manipulation as a viable defense 2: holding that a defendants attorney can waive the defendants sixth amendment confrontation right so long as the defendant does not dissent from his attorneys decision and so long as it can be said that the attorneys decision was a legitimate trial tactic or part of a prudent trial strategy 3: holding that so long as a complaint provides notice plaintiff can recover under any theory supported by the evidence 4: holding that the sliding scale test remains viable so long as plaintiff can satisfy other factors contained in winter


Input: benefits requires us to decide first whether the person was employed at the time of the separation and therefore in a position to quit. The supreme court has recognized the unique nature of employment through a temporary-labor service. These businesses are “labor brokers engaged in the business of s 895 (Minn.App.2000) (“Once each assignment is completed, the employment relationship ends because there is neither a guarantee of future assignments nor any employer obligation to provide them.”). In contrast, an employee who refuses to complete an accepted assignment quits. McDonnell v. Anytime Temps., 349 N.W.2d 339, 341 (Minn.App .1984) (affirming disqualification of woman who worked one day of two-week assignment and refused to complete it); see also Mbong, 608 N.W.2d at 895 & n. 2 (<HOLDING>). The record supports the ULJ’s finding that Holdings: 0: recognizing distinction between tolling and estoppel 1: recognizing distinction between two types of waiver 2: recognizing this distinction 3: recognizing distinction between smith and mcdonnell 4: recognizing distinction between sole power and sovereignty


Input: scheme, it is possible for a defendant convicted of a Class I felony to be sentenced to up to fifteen months imprisonment. See N.C. Gen.Stat. § 15A-1340.17(d) (2005). I relied on the reasoning in Harp, that “if any defendant charged with that crime could receive a sentence of more than one year,” then the offense is punishable by imprisonment for more than one year. Harp, 406 F.3d at 246 (citing United States v. Jones, 195 F.3d 205, 206-07 (4th Cir.1999)). Although the Harp and Jones decisions did not construe § 802(44), I found these cases to be persuasive because they interpreted similar language in other sentencing contexts. In addition, there was a nonprecedential Fourth Circuit opinion on point. See United States v. Curry, 213 Fed.Appx. 181, 181 (4th Cir.2007) (unpublished) (<HOLDING>). Thereafter, with Iberson facing a mandatory Holdings: 0: holding that reversal of conviction for felony murder was required where jury failed to find the defendant guilty of the underlying felony as essential element of the felony murder offense 1: holding that a prior nonarizona conviction to be used as a prior felony conviction under the statute must both be for an offense that would constitute a felony in arizona and be classified as a felony in the other jurisdiction 2: holding that for purposes of applying enhanced penalty in  841b1a felony drug offense includes any crime punishable by more than one year of imprisonment regardless of whether it is classified as a felony or a misdemeanor 3: holding that harp foreclosed any claim that north carolina conviction for felony pos session of cocaine did not qualify as a felony drug offense for purposes of applying the enhanced penalty under  841b 4: holding that drug felony under state law can constitute an aggravated felony for federal sentencing guidelines purposes even if the same conduct would not constitute a felony under federal law


Input: nothing has been taken, and thus the claimant cannot maintain a takings claim. See Am. Pelagic Fishing Co., L.P. v. United States, 379 F.3d 1363, 1372 (Fed. Cir. 2004). In general, “[v]alid contracts are property, whether the obligor be a private individual, a municipality, a state, or the United States.” Lynch v. United States, 292 U.S. 571, 579, 54 S.Ct. 840, 78 L.Ed. 1434 (1934); see U.S. Tr. Co. of N.Y. v. New Jersey, 431 U.S. 1, 19 n.16, 97 S.Ct. 1505, 52 L.Ed.2d 92 (1977) (“Contract rights are a form of property and as such may be taken for a public purpose provided that just compensation is paid.”); A&D Auto Sales, Inc. v. United States, 748 F.3d 1142, 1152 (Fed. Cir. 2014); see also United States v. Petty Motor Co., 327 U.S. 372, 380-81, 66 S.Ct. 596, 90 L.Ed. 729 (1946) (<HOLDING>). Mr. Piszel’s employment contract with Freddie Holdings: 0: holding option to renew in lease that provided for rental amount to be negotiated but not to exceed specified amount too vague and indefinite to be enforceable 1: holding that plaintiff was entitled to compensation for governments taking of option to renew a lease 2: holding that governments lease of former railroad easement to state for conversion to trail was a taking 3: holding that under an option requiring renewal at the expiration of the lease the lessee was required to exercise the option on or before the last day of the lease 4: holding that an option to renew at the expiration of the original lease was effectively exercised because the lessees holding over without express notification of renewal was deemed an election to renew the lease


Input: trial. During his direct examination by the government, McFarlane testified about his extensive drug dealings and his affiliation with the Jamaican Waterhouse Posse. During cross-examination, McFarlane admitted to selling 400 to 500 kilograms of cocaine. McFarlane and the government believe that McFarlane’s Fifth Amendment privilege against compelled self-incrimination was violated when tates v. Monia, 317 U.S. 424, 427, 63 S.Ct. 409, 87 L.Ed. 376 (1943), and the [Supreme] Court has insisted that the ‘constitutional guarantee is only that the witness not be compelled to give self-incriminating testimony.’ United States v. Washington, 431 U.S. 181, 188, 97 S.Ct. 1814, 52 L.Ed.2d 238 (1977).” McKune v. Lile, 536 U.S. 24, 122 S.Ct. 2017, 2026, 153 L.Ed.2d 47 (2002) (plurality opinion) (<HOLDING>). The Fifth Amendment privilege against Holdings: 0: holding that policy requiring strip searches of prisoners prior to transfer did not violate fourth amendment 1: holding that routine monitoring and recording of the calls of convicted prisoners does not violate the prisoners fourth amendment rights 2: holding that prison did not violate prisoners fifth amendment rights when it changed the prisoners privilege status level and moved him to a maximumsecurity facility when he refused to participate in a sexual abuse treatment program during which he would have been required to admit all prior improper sexual activities without any guaranty of immunity 3: 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 4: holding that a prison official can violate a prisoners eighth amendment rights by failing to intervene


Input: the substance of a declarant’s hearsay statements (e.g., physical evidence of sexu al abuse). Wright, 497 U.S. at 819, 110 S.Ct. 3139 (emphasis added). Although Wright did not decide whether courts may consider noncorroborating evidence that refutes the substance of a declarant’s statements (e.g., physical evidence contradicting an accuser’s abuse allegations), see Swan v. Peterson, 6 F.3d 1373, 1381 (9th Cir.1993) — an issue not before us here— the Court’s reasoning strongly suggests that courts must at least consider any circumstances surrounding the making of an out-of-court statement that challenge the statement’s trustworthiness (e.g., inconsistencies, motives to fabricate). See Wright, 497 U.S. at 825-27, 110 S.Ct. 3139; Webb v. Lewis, 44 F.3d 1387, 1392 (9th Cir.1994) (<HOLDING>); Swan, 6 F.3d at 1381 n. 7 (reasoning in dicta Holdings: 0: holding that an objection on hearsay grounds did not preserve for appeal an exception to the hearsay rule that was not specifically raised 1: holding that wright does not forbid recourse to other evidence that confirms the presumptive unreliability of the hearsay 2: holding that immunized testimony which merely confirms information previously known to government agents from independent sources does not preclude prosecution 3: holding that the defendants objection did not suggest that the objected to statement was hearsay and therefore concluding that the defendant waived appellate review of the hearsay argument 4: holding that the district court did not err in relying on hearsay evidence where the government offered reasons why its hearsay evidence had indicia of reliability and the court considered the reliability of the evidence in deciding the weight to give the hearsay evidence


Input: to replicate at the appellate level by examining only the transcripts of the various proceedings.”), aff'd, 548 Fed.Appx. 717 (2d Cir.2013); United States v. Barret, No. 10-CR-809, 2012 WL 3229291, at *33 (E.D.N.Y. Aug. 6, 2012) (construing defendant’s post-trial, pre-sentence “allegations of ineffective assistance of counsel as a basis for his motion for a new trial pursuant to Rule 33”); United States v. Biear, No. 09-CR-1185, 2012 WL 946964, at *4 (S.D.N.Y. Mar. 20, 2012) (“[I]f a defendant wishes to have the district court decide [ineffective-assistance-of-trial-eounsel} issues prior to sentencing, then his proper course is to file a timely motion for a new trial under Rule 33....”); United States v. Buczek, No. 09-CR-121, 2010 WL 4451668, at *2 n. 1 (W.D.N.Y. Nov. 4, 2010) (<HOLDING>), aff'd, 457 Fed.Appx. 22 (2d Cir.2012). Here, Holdings: 0: recognizing a constitutional claim for ineffective assistance of counsel 1: holding that defendant may raise claim of ineffective assistance of counsel on direct appeal only if ineffective assistance is conclusive from the record 2: holding that consideration of defendants ineffective assistance of counsel claim at the posttrial preconviction stage was permissible 3: holding no ineffective assistance of appellate counsel claim for failure to raise as basis for appeal of conviction ineffective assistance of trial counsel where basis for the latter claim was inadequate 4: holding that to the extent defendants claim is one of ineffective assistance of counsel it is not cognizable on direct appeal and rule 2915 is the exclusive procedure by which a claim of ineffective assistance of counsel can be advanced


Input: Instead, the evidence shows that Appellee’s only explanation for the denial was from Captain Baldwin. Appellee could have reasonably assumed that Captain Baldwin, as her superior in the DWI unit, had some say in her request to participate in the sign-up. In fact, in order for Appellee to resign her position in the DWI unit, Captain Baldwin would have had to approve it. Appellee could further have reasonably assumed that Captain Baldwin prevented her transfer due to the Harkrider report. Captain Baldwin’s statement could go to show that he was harassing Appellee because of the Harkrider report. We hold that there is some evidence to show that Captain Baldwin might have used the FOB sign-up to retaliate against Appellee for making the Harkrider report. See Cazarez, 937 S.W.2d at 450 (<HOLDING>). Having found that legally sufficient evidence Holdings: 0: recognizing the cause of action 1: holding that termination is an adverse employment action 2: holding that sufficient evidence of causation existed where adverse employment action occurred less than two months after protected activity 3: holding that circumstantial evidence that the stated reason for an adverse employment action was false can be evidence of causation in a whistleblower cause of action 4: holding that even an incorrect belief that an employees performance is inadequate can be a legitimate reason for an adverse employment action


Input: suits are illustrative of the type of determination which, under accepted common-law principle, should not be held conclusive in later cases. Because of the rela e entitled to some preclusive effect in a later civil action, here there is not a precise “identity of issues” in the former and latter matters, required for application of collateral estoppel. Wilder v. Thomas, 854 F.2d 605, 617 (2d Cir.1998) (“In New York collateral estoppel is a flexible doctrine which can never be rigidly or mechanically applied. Nevertheless, the requirement of identity of issues, unlike the requirement of identity of parties, is an absolute requirement.”) (citations and quotation marks omitted). In traffic court, the relevant question is whether plaintiff committed a S.Ct. 645, 58 L.Ed.2d 552 (1979) (<HOLDING>). The harried determination of a New York Holdings: 0: holding that an unconstitutional act of congress has no legal effect 1: holding that equitable determinationcan have collateral estoppel effect in subsequent legal action 2: holding that a void decree has no legal effect 3: recognizing that the determination is an equitable one 4: holding equitable determination can have collateralestoppel effect in a subsequent legal action without violating seventh amendment


Input: over the preliminaiy hearing. 5 . The transcription of CW’s recorded interview was not completed until after the preliminary hearing. 6 . We need not reach the question of whether defense counsel opened the door during his closing argument. Even assuming the "opening the door” doctrine would be applicable in this context, the remedy of introducing CW's death was inappropriate. 7 . Prior to closing arguments, the circuit court did instruct the jury that arguments of counsel were not evidence. However, given the generic nature of the instruction and that the court provided no specific instruction in relation to the prosecutor commenting on CW’s death, the court's instruction failed to mitigate the prejudice to Nofoa. See State v. Rogan, 91 Hawai'i 405, 415, 984 P.2d 1231, 1241 (1999) (<HOLDING>); State v. Marsh, 68 Haw. 659, 661, 728 P.2d Holdings: 0: holding prejudicial effect of prosecutors comment not rendered harmless by courts general instruction that the arguments of counsel are not evidence 1: holding that prosecutors direct comments on a defendants failure to testify were not cured by subsequent inclusion in the jury charge of an instruction regarding the defendants right not to testify 2: holding that allegedly inflammatory and prejudicial arguments by one defendants counsel did not have an impermissible effect on the trial of another defendant 3: holding that trial judges admonition of the jury to disregard prosecutors comments on the defendants failure to testify did not cure the error 4: holding instruction to jury that counsels arguments were not evidence did not negatej the prejudicial effect of the prosecutors inflammatory comments


Input: under Pennsylvania law is to determine whether a conflict exists between the laws of the competing states. Wilson v. Transp. Ins. Co., 889 A.2d 563, 570 (Pa.Super.2005), quoting Ratti v. Wheeling Pittsburgh Steel Corp., 758 A.2d 695, 702 (Pa.Super.2000), appeal denied, 567 Pa. 715, 785 A.2d 90 (2001). If no conflict exists, further analysis is unnecessary. Id. If a conflict is found, it must be determined which state has the greater interest in the application of its law. Id. Weighing these interests requires a further determination as to which state had the most significant contacts or relationships with the insurance contract. Id., citing Nationwide Ins. Co. v. West, 807 A.2d 916, 921 (Pa.Super.2002), citing in turn Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964) (<HOLDING>). We will refer to this rubric as the Griffith Holdings: 0: holding that party waived an objection to choice of law 1: holding that disputed questions of fact and all ambiguities in state law must be resolved in favor of the nonmoving party 2: recognizing the tally of cases deciding the issue is greatly in favor of applying article 2 3: holding that under texas choice of law principles contractual choice of law provisions are generally upheld 4: holding the strict lex loci delicti rule is abandoned in favor of applying a flexible approach to choice of law questions


Input: or future grievance that has been or may be filed with the Master under the injunctive judgment and decree issued by the Court on November 7, 1979. In addition, this Decree is not intended to affect, limit or in any way resolve any pending or future claim or charge of racial discrimination against Local 542 ... that could not have been raised in this litigation. Thus, the plain language of the Decree was not intended to limit claims for monetary damages arising after its entry and based on charges of racially discriminatory conduct. These plaintiffs were not included among those who had their damage claims resolved through the Decree and accordingly are not, and cannot be, barred from bringing their present claims. See, e.g., Harris v. Pernsley, 755 F.2d 338, 342-43 (3d Cir.1985) (<HOLDING>); Black Grievance Comm. v. Philadelphia Elec. Holdings: 0: holding that subsequent action barred by res judicata where party had full and fair opportunity to present case before zoning board 1: holding that res judicata did not preclude the subsequent filing of an action which was a permissive claim in a prior action 2: holding that where no member of present plaintiff class had cause of action at time prior judgment was entered claim cannot be barred by res judicata 3: holding second action barred by res judicata because plaintiff asserted identical claims and jurisdictional grounds as the first action 4: recognizing cause of action by class member against class counsel for negligence in providing notice


Input: Board was going to consider each case “anew.” (Enterprise J.A. 467; Huntington J.A. 1808). Both Enterprise and Huntington objected to the Board’s consideration of their respective cases on the basis that, absent a remand from this court, the Board lacked jurisdiction. On October 2, 2014, a properly constituted Board issued a decision in Enterprise’s case, and a similarly constituted Board issued a decision in Huntington’s case on October 3, 2014. The Board rejected Enterprise’s and Huntington’s arguments that the Board lacked jurisdiction to issue its decisions. The Board reasoned that our prior decision clearly contemplated further Board action and that such further action was consistent with the Eighth Cir-' cuit’s decision in NLRB v. Whitesell Corp., 638 F.3d 883, 889 (8th Cir.2011) (<HOLDING>). On the merits, the Board adopted the Holdings: 0: holding that the court of appeals lacked jurisdiction to consider whether the board had erred in finding that certain picketing was lawful because no party had raised the issue to the board either during the initial proceedings or on motion for reconsideration 1: holding that the district court was authorized to remand the proceedings to the board where the board failed to make required findings 2: holding that because there was no quorum of validly appointed board members the nlrb lacked authority to act and the enforcement order was therefore void ab initio  3: holding that the court did not have jurisdiction to consider an argument not presented to the board in a motion for reconsideration 4: holding that the denial of enforcement on the basis that the board lacked a proper quorum did not deprive the board of jurisdiction to consider the case anew


Input: which he concluded she was totally disabled, the court accords little weight to [the doctor’s] assessment.”). Flanagan v. Metropolitan Life Ins., 2006 WL 2571878, at *4 (N.D.Okla.2006), affirmed, 251 Fed.Appx. 484, 488-89 (10th Cir.2007) (finding “no appropriate clinical evidence to establish a disability” where the only testing referenced was an x-ray and MRI which allegedly showed mild disk degeneration but no bulging, neither of her physicians could account for her subjective complaints of pain, and one physician confirmed that there was no significant disk disease). In such cases, mere statements by physicians do not constitute objective evidence sufficient to show disability Flanagan, 251 Fed.Appx. 484, 488-89, citing Kimber v. Thiokol Corp., 196 F.3d 1092, 1099 (10th Cir.1999) (<HOLDING>) Plaintiffs claim of disability focuses on her Holdings: 0: holding that a rational plan administrator could reject a doctors report when there was no accompanying clinical data to support the conclusion 1: holding that one who is named in documents as plan administrator signs documents as plan administrator and assumes discretionary authority in the administration of the pension plan is a fiduciary 2: holding abuse of discretion review is appropriate when erisa plan grants discretion to the plan administrator 3: holding that because no plan document granted discretion to the plan administrator and because the fiduciaries had not expressly delegated their discretionary authority to the plan administrator the district court properly employed the de novo standard of review 4: holding that it was error for a plan administrator to require the claimant to submit clinical findings to support his diagnosis of chronic fatigue syndrome when the plan did not require such evidence


Input: a criminal case involving the forfeiture of such property....”). Third, the cases cited by the Watts Petitioners for the argument that the government may only take by forfeiture property that is owned by Dupree are outdated or distinguishable from this case. To start, United States v. Gilbert, 244 F.3d 888 (11th Cir.2001), and United States v. O’Dell, 247 F.3d 655 (6th Cir.2001), are both premised upon a version of the Federal Rules of Criminal Procedure which predated the enactment of Rule 32.2 in 2000. Under then-Rule 31(e), which no longer exists, some courts, including Gilbert and O’Dell, required the jury to return a special verdict “as to the extent of the interest of the property” to be forfeited by a criminal defendant. See Fed.R.Crim.P. 31(e) (1994); Gilbert, 244 F.3d at 923 (<HOLDING>); see O’Dell, 247 F.3d at 680 (“[W]e must Holdings: 0: holding that jurys verdict was fatally deficient where jury did not find the extent of the interest or property subject to forfeiture if any pursuant to rule 31e 1: holding that jurys verdict for the defendant in a breach of contract action did not establish the absence of breach because the jury was instructed that it could find for the defendant if it concluded that the defendant had not breached the contract or if the defendant proved an affirmative defense 2: holding that a motion denying summary judgment will not be reviewed on appeal from a jury verdict where sufficient evidence supports the jurys verdict 3: holding that scope of property subject to forfeiture is defined by the instrument creating an interest in the property 4: holding that where the meaning of the jurys verdict was not clear in light of the trial courts jury instructions the court of appeals erred in directing entry of judgment for respondent the case should have been remanded to the trial judge who was in the best position to pass upon the question of a new trial in light of the evidence his charge to the jury and the jurys verdict


Input: concerning predicate facts material to the qualified immunity issue, the defendant is not entitled to summary judgment on that ground.” Pace v. City of Des Moines, 201 F.3d 1050, 1056 (8th Cir.2000). II. With regards to the incident occurring on August 26, 1996, Officer Gregg Wes-temeyer (Westemeyer), Brown, McBride, and Richardson contend that the district court should have granted them immunity on appellees’ Fourth Amendment, First Amendment, and due process claims. A. Fourth Amendment In connection to a Fourth Amendment false arrest claim, the relevant inquiry is whether the officers had probable cause to arrest Larry Smithson. See Baker v. McCollan, 443 U.S. 137, 142, 99 S.Ct. 2689, 2693-94, 61 L.Ed.2d 433 (1979); Hannah v. City of Overland, Mo., 795 F.2d 1385, 1389 (8th Cir.1986) (<HOLDING>). Probable cause exists if “the totality of Holdings: 0: holding that there is no  1983 cause of action for false arrest unless the arresting officer lacked probable cause 1: recognizing the defense of good faith and probable cause in  1983 case involving unconstitutional warrantless arrest 2: holding that warrantless arrest based on probable cause did not violate the fourth amendment 3: holding  1983 action lies for warrantless arrest without probable cause 4: holding that in a  1983 action issue of probable cause is for the jury


Input: verdicts in similar cases, and considering other relevant factors, we conclude that the $100,000 punitive damages award is not excessive. VIII. Constitutional Challenge CEC also raises an additional issue for the first time on appeal: It asserts that the retaliatory discharge provision of the Workmen’s Compensation Act is unconstitutional. We must first determine whether this issue is properly before this Court. “In order for this Court to review the constitutionality of a legislative act, the appellant must have raised that issue in a court below that had jurisdiction to adjudicate that issue.” Docena Fire District v. Rucker, 564 So.2d 422, 424 (Ala.1990) (citing Wallace v. State, 507 So.2d 466 (Ala. 1987)). See also Campbell v. Alabama Power Co., 567 So.2d 1222, 1225 (Ala.1990) (<HOLDING>); Chatman v. City of Prichard, 431 So.2d 532, Holdings: 0: holding that personaljurisdiction challenges not raised in trial court may not be raised for first time on appeal 1: holding that issues not raised before a district court are waived on appeal 2: holding that issues raised for the first time on appeal will not be considered 3: holding that issues not raised in the trial court may not be raised later on appeal 4: holding that an issue not raised in the trial court cannot be raised for the first time on appeal


Input: of Crawford, the victim’s testimony before the grand jury is testimonial in nature. See id. (‘Whatever else the term covers, it applies at a minimum to prior testimony ... before a grand jury[J”). Thus, the grand jury testimony is inadmissible absent a finding that Defendant forfeited his confrontation rights. {49} We also hold that the statement taken by Lewandowski at the police station is testimonial because it was given in response to a “police i 2d 130, 133 (2005) (“[S]tatements made in response to police questioning after the scene was secure and the victim had assured the officer she did not want emergency medical attention were made in response to investigatory interrogation. As such, they were testimonial per se.”); State v. Walker, 129 Wash.App. 258, 118 P.3d 935, 940 (2005) (<HOLDING>). {51} In this ease, the State acknowledges Holdings: 0: holding appellate argument that statement violated rule 404b was improper because it was the defendant who elicited the statement at trial 1: holding witnesss formal signed written statement given at the police station one hour after the crime following structured police questioning was testimonial 2: holding victims statement testimonial where it was elicited in response to structured police questioning pursuant to a police investigation 3: holding testimonial statements to include those involving a declarants knowing responses to structured questioning in an investigative environment 4: holding that postmmmda statement knowingly given in response to structured police questioning was testimonial


Input: 5(a) of the FTC Act. A. Deceptive Acts (Count I) Section 5(a) of the FTC Act prohibits “unfair or deceptive acts or practices in or affecting commerce” and empowers the FTC to prevent such acts or practices. 15 U.S.C. § 45(a)(1), (2). An act or practice is deceptive if (1) there is a representation, omission, or practice, (2) that is likely to mislead consumers acting reasonably under the circumstances, and (3) the representation, omission, or practice is material. FTC v. Pantron I Corp., 33 F.3d 1088, 1095 (9th Cir.1994), cert. denied, 514 U.S. 1083, 115 S.Ct. 1794, 131 L.Ed.2d 722 (1995). District courts consider the overall, common sense “net impression” of the representation or act as a whole to determine whether it is misleading. See FTC v. Gill, 265 F.3d 944, 956 (9th Cir.2001) (<HOLDING>); FTC v. Stefanchik, 559 F.3d 924, 928 (9th Holdings: 0: holding that a defamation claim cannot be sustained for truthful information in a credit report even if the information reported supports misleading inferences 1: holding that the furnishing of misleading information cannot support a claim for negligent misrepresentation the information must be false 2: recognizing that plan administrators have an obligation to convey complete and accurate information material to the beneficiarys circumstances 3: holding that defendant failed to counter the ftcs substantial showing that he made statements and created an overall net impression of a misleading representation regarding the ability to remove negative information from consumers credit report even if the information was accurate complete and not obsolete 4: recognizing that when a beneficiary requests information from an erisa fiduciary who is aware of the beneficiarys status and situation the fiduciary has an obligation to convey complete and accurate information material to the beneficiarys circumstance even if that requires conveying information about which the beneficiary did not specifically inquire


Input: 12(b)(6), claiming the FDCPA requires a plaintiff to plead that the debt collector had actual knowledge of the plaintiffs representation. We affirm the district court’s dismissal of Schmitt’s complaint without prejudice and hold that a plaintiff must plead actual knowledge under the FDCPA in order to state a claim upon which relief may be granted. The theory of implied knowledge contradicts established agency law, which dictates that while the knowledge of the agent is imputed to the principal, the converse is not true. See S.O.G.-San Ore-Gardner v. Mo. Pac. R.R. Co., 658 F.2d 562, 567 (8th Cir.1981) (stating that an agent cannot be imputed with information which the principal failed to disclose); Siharath v. Citifinancial Servs. (In re: Siharath), 285 B.R. 299, 304 (Bankr.D.Minn.2002) (<HOLDING>); Waswick v. Stutsman County Bank (In re: Holdings: 0: holding that both agent and principal will be liable when the agent acts within the scope of his employment but for his own purposes 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 while an agents knowledge is imputed to the principal due to the identity of interests that is presumed when an agent acts within the scope of an agency relation this rule does not operate in the converse and the agent cannot be imputed with the information which its principal has failed to give it 3: holding that the principal is liable for an agents acts committed within the scope of the agents employment 4: holding that where an agent is guilty of independent fraud for his benefit knowledge of the fraud is not imputed to the principal


Input: and Landry v. La. Citizens Prop. Ins. Corp., No. 85571, slip op. (La. 15th Jud. Dist. Ct., Vermillion Parish, Jan. 4, 2007), the court found that the homeowners were entitled to the full face value of the policies when their property was rendered a total loss by covered and excluded perils. 28 . See State v. Williams, 830 So.2d 984, 986 (La.2002) (“[u]npublished opinions and/or writ grants with orders should not be 'cited, quoted or referred to,’ and therefore will not be considered by this Court” (citation omitted)); Primrose Operating Co. v. Nat’l Am. Ins. Co., 382 F.3d 546, 565 (5th Cir.2004) (opinions that are non-precedential under state law "do not factor into this court’s Erie guess.”). 29 . See Fla. Farm Bureau Cas. Ins. Co. v. Cox, 943 So.2d 823 (Fla.Dist.Ct.App.2006) (<HOLDING>); Mierzwa v. Fla. Windstorm Underwriting Ass’n, Holdings: 0: holding that damage to realty was not excluded from coverage if such damage resulted from subsidence caused by something other than soil condition despite homeowners experts description of the damage as settling 1: holding that property damage occurred when homeowners noticed damage not when house was improperly constructed 2: holding that the vpl requires an insurer to pay the full value of the policy only when a covered peril causes a total loss 3: holding that insurer owed homeowners full amount of policy when they suffered a total loss in not insignificant part as the result of windstorm damage although an excluded peril water contributed to the damage 4: holding that the damage to a home resulting from the entrance of hail a covered loss and water into the basement of the house after a severe storm was not covered by the policy because the concurrent causation clause excluded water damage


Input: period, we further conclude that the Panel properly recognized that the estate “extracted nearly all of the economic value available from the land” during that time, and determine that the Bankruptcy Court’s computation method was inappropriate in this case because the reasonable rental value of the farmland was not constant during the entire lease term. Thus, we hold that the Bankruptcy Court’s calculation unjustly enriched the bankruptcy estate by not recognizing that the majority of the land’s economic benefit attached to the growing season. See In re Dant & Russell, Inc., 853 F.2d 700, 707 (9th Cir.1988) (trustee’s liability for actual use and occupancy is founded upon equitable principle of preventing unjust enrichment); cf. In re Longua, 58 B.R. 503, 504-06 (Bankr.W.D.Wis.1986) (<HOLDING>). Accordingly, we remand to the Bankruptcy Holdings: 0: holding the aggregate value of the land and its improvements is the controlling value 1: holding that there was no evidence of market value where owners testimony affirmatively showed that it was based on personal value 2: recognizing two lines of eases regarding calculation of administrative claims for rent  one based on reasonable value of portion of demised premises actually used and occupied and one on the reasonable value without regard to amount of space used holding that landlords were entitled to full rental payments not warehouse value of premises until lease assumed or rejected 3: holding determination of property value in case to decide if assessed value was excessive is not a liquidated demand where only evidence of property value was the conclusory allegation of value in plaintiffs unsworn petition 4: holding lessor entitled to full months rent when rent due on first of month and lease rejected on second


Input: 1438 (9th Cir.1995) (“It follows that statements impugning the integrity of a judge may not be punished unless they are capable of being proved true or false....”) And no such conclusion would be possible here. Contrary to the Virgin Islands Supreme Court’s characterization, Kendall’s remarks cannot be reasonably interpreted as "blatantly accusing], without proof, the Justices ... of gross dereliction of their sworn duties and of committing illegal acts.’’ Kendall's statements were nothing more than “rhetorical hyperbole” using language in a "loose, figurative sense” and therefore cannot be interpreted as asserting actual facts about the Justices. Nat’l Ass’n of Letter Carriers v. Austin, 418 U.S. 264, 284-85, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974); see also id. at 286, 94 S.Ct. 2770 (<HOLDING>); Greenbelt Coop. Publ'g Ass’n v. Bresler, 398 Holdings: 0: holding union members state law claims for defamation against union preempted 1: holding that a description of a public figures negotiating position as blackmail could not be construed as charging the plaintiff with committing a crime 2: recognizing that union members interests are adequately represented by the union 3: holding that a union officials comments may be used to infer the object of union activity 4: holding that a union newsletters description of a scab as a traitor could not be construed as a factual assertion


Input: 548. In this case, however, Officer Luthy waited five days after the search of Defendant's trash container to seek a search warrant. Thus, we must determine whether the passing of that five days rendered the evidence obtained during the search of Defendant's garbage stale. "Staleness issues usually arise when a significant lapse of time occurs between the discovery of information suggesting that evidence of the crime can be found at a particular locale and the magistrate's finding of probable cause or the execution of the warrant." State v. Thurman, 846 P.2d 1256, 1260 (Utah 1993) (concluding that evidence of the defendant's motive to commit murder not stale) (citing State v. Hansen, 732 P.2d 127, 131 (Utah 1987) (per curiam); State v. Stromberg, 783 P.2d 54, 56-57 (Utah Ct.App.1989) (<HOLDING>)). Furthermore, "[a] mere passage of time does Holdings: 0: holding prior use of one type of drug is not relevant to establish use of another type of drug on a different occasion 1: holding that the gang evidence was too stale to establish probable cause for a search warrant 2: holding that informants personal observation of drug use by defendant six weeks prior to warrant not stale where affidavit included facts consistent with protracted and continuous use 3: holding that affidavit was stale and thus failed to establish probable cause to support wiretap 4: holding corroboration is not a necessity where confidential informants reliability was well established and his tip was based on direct personal observation of criminal activity


Input: its nationals from suing Japan for wrongs committed against them individually constituted a taking of their private causes of action for a public purpose or use without just compensation, in violation of the Fifth Amendment. Whether the United States might have other defenses for such an act deriving from its powers as a nation-state is not before us. The sole issue on appeal is whether the six-year statute of limitations bars these plaintiffs from recovering against the United States for the alleged wrong: if the statute applies to bar causes of action such as this one that are not brought until after six years from its accrual, and if the entry into force of the treaty in 1952 is the event that violated plaintiffs’ rights and marks the accrual of the cause of action, then pla r.1996) (<HOLDING>); Kunkes v. United States, 78 F.3d 1549 Holdings: 0: holding that the government must prove the facts used in sentencing by a preponderance of the evidence 1: holding that a cause of action for an unconstitutional taking accrues at the time the taking occurs 2: holding that government placement of groundwater monitoring wells was a taking 3: holding that government freshwater diversion project was not a taking of leased waterbottom lands used for oyster propagation 4: holding that the federal government was liable for a taking of property where city of burlington acted under federal authority


Input: the indistinctiveness of the trade dress. See id. at 1536. First, Merisant has established that its mark has acquired secondary meaning, for it is undisputed that Equal and NutraSweet have devoted substantial resources to the advertising and promotion of Equal, and that as a consequence, the NutraSweet trademarks and trade dress are well known to the purchasing public throughout the United States. Also undisputed is the fact that sweeteners bearing the Equal and NutraSweet trademarks and the Equal trade dress have been and are now recognized by the public and in the food industry as originating from a single source. See Remcraft Lighting Products, Inc. v. Maxim Lighting, Inc., 706 F.Supp. 855, 858 (S.D.Fla.1989) (citing Isaly Company v. Kraft, Inc., 619 F.Supp. 983, 990 (M.D.Fla.1985) (<HOLDING>)). See also Brooks Shoe Manufacturing Company, Holdings: 0: holding that the ordinary concept of use as applied in determining the existence of a nonconforming use must yield to the realities of the business in question and the nature of its operations 1: holding limited use of a mark did not constitute prior use in commerce sufficient to establish rights in the mark 2: holding that the court must consider the adequacy of the inquiry into the conflict the extent of the conflict and the timeliness of the motion 3: holding that the trier of fact must consider the length of time and manner of use of trade dress the nature and extent of its use and efforts made in order to promote a conscious connection in the publics mind between the mark and the particular source of origin 4: recognizing the need to balance the states interest in fulfilling its responsibilities to the public the extent to which the speech in question involves a matter of public concern and the manner time place and context of the speech


Input: 1190 (Ind.Ct.App.1982)) (internal-quotation marks omitted). But it is also a “blunt ... instrument,” see Waterfield Mortg. Co., Inc. v. O’Connor, 172 Ind.App. 673, 680, 361 N.E.2d 924, 927 (1977), by which “the non-prevailing party is prevented from having his day in court,” Ayres v. Indian Heights Volunteer Fire Dept., Inc., 493 N.E.2d 1229, 1234 (Ind.1986). We have therefore cautioned that summary judg ment “is not a summary trial,” id. (internal quotation marks omitted); and the Court of Appeals has often rightly observed that it “is not appropriate merely because the non-movant appears unlikely to prevail at trial.” Tucher v. Brothers Auto Salvage Yard, Inc., 564 N.E.2d 560, 564 (Ind.Ct.App.1991), trans. denied; see also LaCava v. LaCava, 907 N.E.2d 154, 166 n. 9 (Ind.Ct.App.2009) (<HOLDING>). In essence, Indiana consciously errs on the Holdings: 0: recognizing that in order to prevail on a claim of ineffective assistance of counsel a movant must show that he was prejudiced by his counsels performance 1: holding that plaintiff who provides evidence of acts more severe than a lack of due care may withstand summary judgment motion on a failure to protect claim 2: holding that unsubstantiated representations will not withstand summary judgment 3: holding that because plaintiff failed to advance evidence rebutting motion for summary judgment alongside a concession in their interrogatory response the district court did not err in granting defendants motion for summary judgment 4: recognizing that the decedents claim should withstand summary judgment despite counsels concession  that he will be unlikely to prevail at trial


Input: N.A., 691 F.2d 1039, 1052-53 (2d Cir.1982). Competition comes at the time loans are made; cooperation in an effort to collect as much as possible of the amounts due under competitively determined contracts is not the sort of activity with which the antitrust laws are concerned. Moreover, businesses are entitled under the Noerr-Pennington doctrine to act jointly when presenting requests to courts and agencies. See Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961); United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). Collective renegotiation succeeds only if the court approves. See California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972) (<HOLDING>). On top of all this comes § 1110(a)(1), which Holdings: 0: holding that the eleventh amendment applies in  1981 litigation 1: holding that the doctrine of res judicata applies to deportation proceedings 2: holding that the doctrine of issue preclusion applies in removal proceedings 3: holding that the noerrpennington doctrine applies to collective presentations in litigation 4: recognizing doctrine


Input: of the public and the defendants in a speedy trial.” Id. at 1269 (brackets omitted) (quoting 18 U.S.C. § 3161(h)(7)(A)). Defendant’s case was joined with those of several codefendants, and there were ongoing investigations in Arizona and Texas. Id. Where defendants are properly joined for trial, as here, the case’s complexity necessarily must be assessed with reference to the joint trial. United States v. Daychild, 357 F.3d 1082, 1091 (9th Cir. 2004). This case involved voluminous discovery, a large number of counts, several defendants, ongoing investigations in other districts, and potential witnesses from other countries. We have upheld “ends of justice” continuances because of complexity in similar circumstances. See, e.g., United States v. Dota, 33 F.3d 1179, 1183 (9th Cir.1994) (<HOLDING>); United States v. Butz, 982 F.2d 1378, 1381 Holdings: 0: holding that the time granted to prepare pretrial motions is not automatically excludable under  3161h1 but may be excluded only when a court grants a continuance based on appropriate findings under  3161h7 1: holding that where specific grounds for an objection are stated at trial all other grounds are waived and will not be considered for the first time on appeal 2: holding denial of continuance to be an abuse of discretion 3: holding that speedy trial act requires that an ends of justice continuance be specifically limited in time 4: holding that an endsofjustice continuance may be justified on grounds that one side needs more time to prepare for trial


Input: 1 . Grayson v. AT & T Corp., 15 A.3d 219, 238 (D.C.2011); see also Sandwick v. District of Columbia, 21 A.3d 997, 1000 (D.C.2011) (agreeing that “a mental element must be read into the statute” since it was " ‘inconceivable that the legislature intended that punishment would be imposed for failure to follow the course of conduct outlined, if the operator of the vehicle was ignorant of the happening of an accident’ ”). 2 . In Holly v. United States, 464 F.2d 796 (D.C.Cir.1972), the U.S. Court of Appeals for the D.C. Circuit reversed McClough. on other grounds, notwithstanding the fact that, pursuant to the District of Columbia Court Reorganization Act of 1970, decisions of the District of Columbia Court of Appeals were no longer subject to review by the D.C. Circuit. Id. at 798 (<HOLDING>); see also id. at 799 (Tamm, J., concurring) Holdings: 0: holding that provision of dccode  221515a 1967 that made criminal liability for presence in an establishment where illicit narcotics were administered or dispensed turn on a defendants ability to give a good account of himself was unconstitutionally vague 1: holding that essentially equivalent is unconstitutionally vague 2: holding that restriction on government employee speech was unconstitutionally vague 3: holding factor b is not unconstitutionally vague 4: holding that attorney disciplinary rule was unconstitutionally vague as applied


Input: jurisdiction. But we conclude that two of Mr. Umoh’s issues fall within the jurisdictional grant of § 1252(a)(2)(D). First, although we may review “questions of law,” we have construed that term to include only “a narrow category of issues regarding statutory construction.” Diallo v. Gonzales, 447 F.3d 1274, 1282 (10th Cir.2006) (quotation omitted). Mr. Umoh’s contention that the BIA applied the wrong standard in determining the extent of hardship to his family under § 1182(h)(1)(B) raises a question of statutory construction and we have jurisdiction to determine “whether the BIA applied the correct legal standard in making its determination.” Brue v. Gonzales, 464 F.3d 1227, 1232 (10th Cir.2006). We also have jurisdiction to review his constitutional claim regarding the agency’s 005) (<HOLDING>). Standard of Review We review Mr. Umoh’s Holdings: 0: recognizing that categorical constitutional challenge was fundamentally similar to asapplied constitutional challenge initially raised on appeal 1: holding argument that ij incorrectly weighed and ignored evidence not properly viewed as constitutional challenge 2: holding a new constitutional challenge not raised in district court was not properly before court of appeals 3: holding that a constitutional challenge to a statute is not properly preserved for appellate review if as here it is not presented to the trial court and is raised for the first time on appeal 4: holding that when reviewing a challenge to the sufficiency of the evidence all evidence is viewed in the light most favorable to the government