Input: existed for injuries sustained when claimant stepped on a brick while exiting the car); cf. Parker v. Atlanta Cas. Co. 157 Ga.App. 539, 278 S.E.2d 119, 120 (1981) (finding that PIP coverage was not available when claimant stepped on grease when alighting from car only because policy excluded conduct within the course of business of repairing or servicing vehicles unless conduct also involved “actual operation of a motor vehicle as a vehicle on business premises”). 11 . See Allstate Ins. Co. v. Howe, 31 Conn.App. 132, 623 A.2d 1031, 1034 (1993) (finding that UIM coverage existed for injuries sustained when claimant was grasping door handle pri- or to being struck); State Farm Mut. Auto. Ins. Co. v. Vaughn, 253 Ga.App. 217, 558 S.E.2d os., 368 Pa.Super. 159, 533 A.2d 765, 767-68 (1987) (<HOLDING>); Whitmire v. Nationwide Mut. Ins. Co., 254 Holdings: 0: holding that the defendant abandoned the car he was driving thus relinquishing any reasonable expectation of privacy to the contents of the car when he jumped out of the stillmoving car and fled on foot during a high speed chase with police 1: holding that liability insurance covered the injuries sustained when claimant exited car and was struck by a live wire since the claimant was still occupying the vehicle 2: holding that the factfinder may conclude that recovery is not likely when the car is left on street with keys in the car 3: holding um policy provider was the proper source of loss benefits for injuries sustained when claimants car was struck while he was seated in his car with his left foot still on the ground 4: holding that even if an officers stop of a defendant who was on foot was unlawful the search of a parked car was justified by a different officer observing a gun magazine in plain view in the car


Input: Parties then desiring to appeal shall observe the appropriate federal rules of procedure applicable to a judgment of the district court.... [Mjotions directed to the district court shall not require it to act as an appellate court. Rather, the motions that we envision are those in the nature of proceedings under Federal Rule of Civil Procedure 59(e).... Id. at 68-69. Although this case did not involve a final judgment on appeal from a state court, it does involve an interlocutory judgment from which leave to appeal could have been obtained in state court and that is now appealable as of right in federal court. Thus, we find that the policies underlying the supervisory rule laid down in Nemberg apply here. 9 . See Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 810 (9th Cir.1963) (<HOLDING>). 10 . Compare ACLU v. Black Horse Pike Reg'l Holdings: 0: holding that the defendant is not entitled to be sentenced by the judge who took his plea when the judge made no promise to sentence him 1: holding that the rule preventing one judge of a district court from overruling a decision by another judge of the same court except under exceptional circumstances should be followed in the third circuit 2: holding that a defendant was not entitled to a relief under section 2255 when he asserted that the sentencing judge who was not the trial judge was influenced by the sentence imposed by the trial judge on a codefendant 3: holding that in absence of changed circumstances and except there be some other most cogent reason when judge makes or denies interlocutory order and when appeal lies as of right from such order it should not be reconsidered even by judge who made the order much less by another judge 4: holding that order denying motion to vacate restitution order should be reversed where trial judge failed to inform defendant of right to appeal


Input: offense shall not be admitted as evidence in the trial of a subsequent civil action arising out of the same accident or occurrence.” ORS § 41.905. But the Oregon statutes do not otherwise distinguish between guilty and no contest pleas as to misdemeanors versus felonies. Second, Snyder contends that because the term “building” in Oregon’s second degree burglary statute, ORS § 164.215, is defined broadly, this court cannot presume the word “building” is intended in its ordinary sense. This is true under a categorical approach. Under Oregon law, a building, “in addition to its ordinary meaning includes any booth, vehicle, boat, aircraft or other structure adapted for overnight accommodation of persons or for carrying on business therein.” ORS § 164.205(1). See also Mayer, 560 F.3d at 959 (<HOLDING>) (brackets in original); State v. Keys, 244 Or. Holdings: 0: holding that iowa burglary is not categorical burglary as the elements of iowa burglary law are broader than those of generic burglary 1: holding that possession of burglary tools is an offense separate from burglary 2: holding that burglary is violent felony 3: holding that virginia burglary statute comes within definition of generic burglary 4: holding that first degree burglary under oregon law is broader than the definition of generic burglary because the statute does not limit burglary to buildings or structures but also includes nonstructures such as booths vehicles boats and aircraft that are regularly or intermittently used as lodgings


Input: we cannot glean much from that fact given that a State can waive its Eleventh Amendment protection. Finally, we note that every other court of appeals to have decided the question has held that the Takings Clause does not override the Eleventh Amendment. See Seven Up Pete Venture v. Schweitzer, 523 F.3d 948, 954 (9th Cir.2008) (“[W]e conclude that the constitutionally grounded self-executing nature of the Takings Clause does not alter the conventional application of the Eleventh Amendment”); DLX, Inc. v. Kentucky, 381 F.3d 511, 526 (6th Cir.2004) (“Treating DLX’s claim as a self-executing reverse condemnation claim, ... we conclude that the Eleventh Amendment’s grant of immunity protects Kentucky from that claim ... ”); Harbert Int’l, Inc. v. James, 157 F.3d 1271, 1279 (11th Cir.1998) (<HOLDING>); John G. & Marie Stella Kenedy Mem’l Found, v. Holdings: 0: holding that eleventh amendment bars federal suits against state courts 1: recognizing that section 1983 claims against a state agency are barred by the eleventh amendment 2: holding that a takings claim was barred under the eleventh amendment where state courts provided a means of redress for such claims 3: recognizing that claims against a state under  1981 are barred by the eleventh amendment 4: recognizing that section 1981 claims against a state agency are barred by the eleventh amendment


Input: Troy v. City of Hampton, 756 F.2d 1000, 1002 (4th Cir.) (back pay under Veteran’s Reemployment Rights Act is equitable), cert. denied, 474 U.S. 864, 106 S.Ct. 182, 88 L.Ed.2d 151 (1985); Sheets v. Johnson, 805 F.2d 767, 774-75 (8th Cir.1986) (awarding equitable back pay for interim between termination in violation of due process and the required hearing), rev’d on other grounds, 816 F.2d 1213 (8th Cir.1987) (en banc); McGhee v. Draper, 639 F.2d 639, 646 (10th Cir.1981) (same); Gurmankin v. Costanzo, 626 F.2d 1115, 1122 (3d Cir.1980) (awarding equitable back pay in action under 42 U.S.C. § 1983 to victim of discrimination on the basis of blindness), cert. denied, 450 U.S. 923, 101 S.Ct. 1375, 67 L.Ed.2d 352 (1981); McFerren v. County Board of Educ., 455 F.2d 199, 203-04 (6th Cir.) (<HOLDING>), cert. denied, 407 U.S. 934, 92 S.Ct. 2461, 32 Holdings: 0: holding that an award of back pay is an issue for the court 1: recognizing equitable nature of back pay award under age discrimination in employment act 2: holding there was no jury trial right where court ordered reinstatement and back pay to teachers fired after desegregation order in discrimination case back pay is equitable 3: holding in an adea case that when after acquired evidence of employee wrongdoing cut off accrual of back pay reinstatement or the award of front pay was inappropriate 4: holding that back pay was an integral part of title vips equitable remedies and that therefore no right to jury trial existed


Input: the existence of some quantity of some controlled substance is proven to the jury, the Government had to prove the precise drug type and quantity only before the sentencing judge and then only by a preponderance of the evidence. See United States v. Monk, 15 F.3d 25, 27 (2d Cir.1994). Apprendi held that consistent with the Sixth and Fourteenth Amendments of our Constitution, a defendant is entitled to a jury finding on each element of a crime that increases his or her maximum statutory sentence. In the case of § 841 prosecutions occurring after Apprendi, the Government unquestionably must prove the drug type and quantity beyond a reasonable doubt before a jury in order to obtain a correspondingly enhanced sentence. See United States v. Vazquez, 271 F.3d 93, 96 (3d Cir.2001) (en banc) (<HOLDING>). The critical question here is whether this Holdings: 0: holding that drug quantity is an element of an offense under 21 usc  841 1: holding that postapprendi drug quantity is an element of the offense to be proven to jury 2: holding that where the indictment charged drug quantity but drug quantity was not submitted to the jury the district court erred in using drug quantity to increase the penalty beyond the twentyyear maximum of  841b1c 3: holding that statutory maximum is twenty years when drug quantity is not charged as element of offense and found by jury beyond a reasonable doubt 4: holding that when the indictment charges that a certain minimum quantity of drugs is involved in the offense proof of that quantity is a fourth element of the offense


Input: of its case. See Dunn v. State Farm Fire & Casualty Co., 927 F.2d 869, 872 (5th Cir.1991). If the nonmoving party fails to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof, the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. In assessing the proof, the “evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255, 106 S.Ct. 2505. C. Limitations The parties do not dispute, and the Court has no reason to question, that Texas law governs this dispute. See Dkt. Nos. 24 & 32. See also 28 U.S.C. § 1332 (diversity jurisdiction); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) (<HOLDING>). Under Texas law, a party alleging the Holdings: 0: holding that a federal court in diversity jurisdiction must apply state substantive law 1: holding that in diversity cases federal courts are to apply state substantive law and federal procedural law 2: holding that state substantive rules of decision apply in federal diversity cases 3: holding that in a diversity action a federal court must apply the law of the forum state 4: holding that federal courts sitting in diversity shall apply state substantive law


Input: to pay arbitral fees simply to begin arbitration — a conclusion which could seriously discourage the driver from attempting to vindicate his or her rights as a putative employee in any forum. The Court cannot sanction such a result. See Iskanian, 59 Cal.4th at 382-83, 173 Cal.Rptr.3d 289 (explaining public policy is frustrated where individuals cannot effectively litigate claims related to their unwaivable statutory rights). Uber next argues that drivers are not responsible for paying arbitration fees under the 2013 Agreement because the contract expressly states that “in all cases where required by law, Uber will pay the Arbitrator’s and arbitration fees,” and Uber understands Armendariz to require that employers cover its employees’ arbitration fees. See Armendariz, 24 Cal.4th at 113 (<HOLDING>). As should be obvious from the Court’s Holdings: 0: holding the party seeking to invalidate an arbitration agreement because of prohibitive arbitration fees bears the burden of proof and the possibility of such party incurring prohibitive costs is too speculative to invalidate an arbitration agreement where the record reveals only that the agreement is silent on the subject of arbitration costs 1: holding that the federal arbitration act requires piecemeal resolution when necessary to give effect to an arbitration agreement and mandates enforcement of an arbitration agreement notwithstanding the presence of other persons who are parties to the underlying dispute but not to the arbitration agreement emphasis added 2: holding that where the arbitration agreement was silent on feesplitting and the costs imposed upon the plaintiff by the aaa were not prohibitive the plaintiff had presented little evidence to indicate that arbitration would be prohibitively expensive and the fees and costs of arbitration did not render the arbitration scheme unconscionable 3: holding that where an arbitration agreement between an employer and employee does not specifically provide for the handling of arbitration costs california courts should interpret the arbitration agreement  as providing  that the employer must bear the arbitration forum costs 4: holding that proposed invalidation of the entire arbitration agreement even if the court were convinced that the plaintiff could not afford to pay for the arbitration proceedings was unnecessarily radical because the court could instead simply nullify the fee provisions of the arbitration agreement and force the defendant employer to bear the expense of arbitration


Input: violated Herring’s right to privacy by disclosing information regarding his HIV status to his sister and his employer. Our threshold question, therefore, is whether there is a constitutional right to privacy that protects information concerning a person’s health from being disclosed to others by government officials. Keenan contends that there is no clear right to privacy in the non-disclosure of such personal information because the Supreme Court has never directly held that such a right exists. This circuit, however, has repeatedly interpreted the Supreme Court’s decision in Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977), as creating a right to privacy in the non-disclosure of personal information. See e.g., Slayton v. Willingham, 726 F.2d 631, 635 (10th Cir.1984) (<HOLDING>); Mangels v. Pena, 789 F.2d 836, 839 (10th Holdings: 0: holding that the supreme court explicitly recognized the constitutional right to privacy in whalen v roe 1: holding that every citizen has a constitutional right of privacy in his or her medical records 2: holding right to testify was federal constitutional right 3: recognizing a constitutional right of privacy in mental health records 4: holding that constitutional right of privacy does not apply to medical records


Input: States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) (noting that when “Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion” (quotation omitted)). The debtors’ interpretation of the phrase of “allowed secured claim” is also based on the faulty premise that § 506(a) generally defines the term “allowed se cured claim.” Section 506(a) provides a method for the judicial valuation of an allowed secured claim; it does not provide a definition of the phrase “allowed secured claim” applicable to other provisions of the Bankruptcy Code. See Dewsnup v. Timm, 502 U.S. 410, 417, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992) (<HOLDING>). In addition, nothing in § 1325(a)(5) suggests Holdings: 0: holding that the meaning of allowed secured claim in  506a does not determine the meaning of allowed secured claim in  506d 1: holding that the words allowed secured claim in  506d refer to a claim that is secured by a lien and allowed under  502 2: holding that if claim is not an allowed secured claim pursuant to section 506a by its terms section 1325a5b is inapplicable 3: holding that section 506d does not permit the strip down of a partially secured lien 4: holding that if  506 does not apply to an allowed claim such claim cannot become a secured claim


Input: after subtracting a subrogated medical expense claim. 5 The negligence theory of the case was submitted to the jury by way of the standard pattern jur . Ind. 1995) (finding that one's failure to wear a helmet could be relevant in calculating damages); Warfel v. Cheney, 758 P.2d 1326 (Ariz. Ct. App. 1988) (recognizing a common law duty to wear a helmet while on a motorcycle); Halvorson v. Voeller, 336 N.W.2d 118 (N.D. 1983). See e.g., cases disallowing the helmet defense: Dare v. Sobule, 674 P.2d 960 (Colo. 1984) and Lawrence v. Taylor, 8 P.3d 607 (Colo. Ct. App. 2000) (disallowing evidence of the plaintiffs failure to wear a helmet while on a motorcycle in order to prove the plaintiffs negligence or failure to mitigate damages); Kealoha v. County of Hawaii, 844 P.2d 620 (Haw. 1993) (<HOLDING>); Rogers v. Frush, 262 A.2d 549 (Md. 1970) Holdings: 0: holding that under ohio law fraud claim failed because there was no evidence of reliance 1: holding that because there was no common law duty to wear a helmet evidence showing that the plaintiff failed to wear one was properly excluded 2: holding where there is no duty to defend there is no duty to indemnify 3: holding there was no evidence to support the existence of any alleged fiduciary duty 4: holding that no fiduciary duty existed between the plaintiff and defendant because there was no evidence that the parties agreed that defendant would be acting primarily for the benefit of the plaintiffs


Input: months and a maximum of life imprisonment. See id. Thus, Apprendi is not applicable because Parrado’s sentence has not been enhanced under either of the standards set forth in Norris or Guevara. IV. Parrado’s Plea Agreement A. Parrado’s Contention that the Plea was neither Knowing nor Voluntary Parrado contends that his guilty plea was not voluntarily or knowingly entered because of an interveni d voluntarily entered because there was no error in the “Court Advice” delivered at his plea allocution. See United States v. Vonn, — U.S. -, 122 S.Ct. 1043, 1046, 152 L.Ed.2d 90 (2002) (ruling that Rule 11 is used to ensure the knowing and voluntary nature of a plea); United States v. Maher, 108 F.3d 1513, 1520 (2d Cir.1997) (quoting United States v. Parkins, 25 F.3d 114, 117 (2d Cir.1994)) (<HOLDING>). Although Parrado has made no other complaint Holdings: 0: holding that a district court could constitutionally impose rule 11 sanctions in a case in which was later determined that the court lacked subject matter jurisdiction 1: holding that the district court must strictly comply with rule 11 so that it can be determined whether the plea is knowingly and voluntarily entered 2: holding that the constitutional level of punitive damages is not a finding of fact that must be determined by the jury it may be determined de novo by the court 3: holding that a district court may impose sanctions for abuse of judicial process pursuant to rule 11 even after it is determined that the court lacked subject matter jurisdiction over the plaintiffs claims 4: holding that a counsels oral statements at a plea hearing  that the plea being entered was conditional  did not satisfy the rule 11 writing requirement


Input: negligence to project’s construction workers). The record lacks evidence that Oncor engaged in any negligent activity contemporaneous with Murillo’s injury at the job-site, or controlled the details of Murillo’s work, or had a hand in salvaging cable, or authorized entry into the transformers it operated within its electrical easement, or represented to anyone the status of its transformer as de-energized. Without such evidence, Oncor’s duty was, at most, that of an occupier of the premises. As a premises defendant, Oncor was entitled to standard jury instructions that would have defined the scope of Oncor’s duty to Murillo in light of the warnings to those who came near its energized transformers and the efforts Oncor made to keep its premises safe. See Brooks, 336 S.W.2d at 603 (<HOLDING>); compare Tex. Dep’t of Transp. v. Ramming, 861 Holdings: 0: holding that where electricity supplier had its employees on construction site from time to time in connection with supplying temporary electricity any knowledge suppliers employees had of building construction was incidental to supplying electricity thus construction worker who was injured when he contacted live highvoltage electrical transmission lines wholly failed to establish any reason why electricity supplier should have foreseen injury and no duty arises to act to prevent such unanticipated injury 1: holding that electrical supplier owed no duty in general negligence to construction worker injured by contact with live highvoltage electrical transmission lines on construction site 2: holding that the trial court erred by granting summary judgment to the contractor where genuine issues of material fact existed regarding a duty to an injured construction worker 3: holding that an employer through its employees did not breach an independent duty to power company not to come in contact with power companys transmission lines because such a duty is a general duty not an independent one 4: holding costs of providing power during construction delay were direct damages because contract provision specified that owner would provide electricity to construction site


Input: is liable. The Comments to The Restatement (Second) of Torts § 920A (1979) provide in pertinent part: a. Payments by or for defendant. If a tort defendant makes a payment toward his tort liability, it of course has the effect of reducing that liability. This is also true of payments made under an insurance policy that is maintained by the defendant, whether made under a liability provision or without regard to liability, as under a medical-payments clause Essentially, money paid out pursuant to 51 O.S.2011 §§ 158(E) & 162(D) on behalf of a tortfeasor State or political subdivision-or an employee-by the tortfeasor's own insurer, is not a collateral source, and therefore may be credited against the liability of those entities. See Overturff v. Hart, 1975 OK 13, ¶¶ 12-13, 531 P.2d 1035 (<HOLDING>). Title 51 0.S8.2011 §§ 158(E) & 162(D) do not Holdings: 0: holding agent liable for fire damage after his customer requested a new policy to replace one cancelled by the insurer and the agent neither procured such a replacement policy nor alerted the customer to this failure by returning the unearned portion of the premium from the original policy 1: holding that plaintiff could recover medical fees not actually paid by the insurance company pursuant to an insurance contract 2: holding that where plaintiff brought claim for fire loss after allegedly being compensated by its insurer defendant could not claim benefit from insurance because proceeds came to the plaintiff from a collateral source wholly independent of the defendant and which as to him was res inter alios acta  3: holding funds received by plaintiff from an insurance policy that was procured by the defendant and for which a premium was paid are not a collateral source 4: holding that no binding insurance contract took effect because the initial premium was not paid


Input: 93 A, § 9, if his rights are adversely affected or if he suffers “injury” because of another party’s breach of his statutory duty. Id. In this context, “injury” simply refers to “the invasion of any legally protected interest of another.” Leardi v. Brown, 394 Mass. 151, 159 (1985), quoting Restatement (Second) of Torts § 7 (1965). The text of G. L. c. 93A, § 9 (1), and our interpretation in Van Dyke are both clear affirmations of third-party rights, and we cannot accept Utica’s argument that only insureds are owed a duty of fair dealing when it comes to an insurer’s settlement practices. See S. Young, Chapter 93A and the Insurance Industry § 14.04, Chapter 93A Rights and Remedies (Mass. Continuing Legal Educ. 1996 & Supp. 1996). See also Flattery v. Gregory, 397 Mass. 143, 150 (1986) (<HOLDING>). The duty of fair dealing in insurance Holdings: 0: holding that household exclusion clauses in policies of automobile liability insurance are contrary to public policy 1: holding that thirdparty claimants are intended beneficiaries under optional automobile liability insurance policies 2: holding that badfaith claims under  8371 arise under insurance policies 3: holding that variable insurance policies are covered securities under slusa 4: recognizing noncontracting parties rights as thirdparty beneficiaries of an insurance contract


Input: major parties in Presidential elections since 1860, Congress may by law attempt to assure that this pattern will endure forever.” Id. at 298-94, 96 S.Ct. 612. c. Unlike Subtitle H, the CEP is Alleged to Burden the Political Opportunity of Minor Parties, Primarily in One-Party-Dominant Legislative Districts It is immediately apparent from the face of the statute itself that the CEP’s qualifying criteria make it substantially more difficult for minor party candidates to receive public funds than major party candidates. In fact, plaintiffs allege that the criteria, as a practical matter, all but categorically exclude them from receiving public funds. As the Supreme Court held in Buckley, however, an exclusion from public funds is not necessarily unconstitutional. Id. at 102, 96 S.Ct. 612 (<HOLDING>). The relevant question here is thus not Holdings: 0: holding that the public interest factor was not implicated in a noncompete case because the specific action at issue would not help or harm the public and the public interest factor is generally considered within the confines of disputes involving governmental agencies or programs rather than in the adjudication of private controversies 1: holding that parties can stipulate that they were both parties to a contract and thus the real parties in interest even when one party did not sign the contract 2: holding that the achievements of minor political parties were accomplished without the help of public funds thus the limited participation or nonparticipation of nonmajor parties or candidates in public funding does not unconstitutionally disadvantage them 3: holding that public meeting did not satisfy public participation requirement because public did not receive adequate notice 4: holding that service and notice in a technical sense are incidental where the main purpose of obtaining the appearance of parties and their participation is accomplished


Input: the existence of purposeful discrimination suggested by a defendant’s pri-ma facie case; rather, the question is whether a defendant’s proof, when weighed against the prosecutor’s offered “race-neutral” reasons, is strong enough to persuade the trier-of-fact that such discriminatory intent is present. Any other approach would violate the principle that the ultimate burden of proving racially motivated strikes in violation of Batson rests with the opponent of the strike. See State v. Green, 94-0887 at p. 29, 655 So.2d at 290. While defendant correctly observes that Carroll White, who served on the jury, had a seventh grade education as did Bradley, the fact that White was accepted by the state and Bradley was excused by the state does not ir.1989), (writ denied, 560 So.2d 20 (La.1990) (<HOLDING>). After carefully reviewing the entire record Holdings: 0: recognizing that the drafters of  1981 were not concerned with practices that were facially neutral 1: holding that a reason cannot be proved to be a pretext for discrimination  unless it is shown both that the reason was false and that discrimination was the real reason 2: holding that an employee may establish that the legitimate reason for an employment decision offered by an employer is pretextual by showing by a preponderance of the evidence either that the discrim inatory reason was the true reason motivating the employers conduct or that the profferred legitimate reason was false 3: recognizing a veniremans failure to make eye contact with the prosecutor as a racially neutral reason 4: recognizing a veniremans inattentiveness as a racially neutral reason


Input: discuss what occurred at the Grant trial — a trial that was terminated early because a settlement was reached. Moreover, Colleton, Dr. Meacher, and Meacher P.A. expressly denied any negligence or fault resulting from Grant’s medical treatment as part of the settlement agreement. As noted above, the stipulations are not accompanied by a transcript of the Grant trial and thus provide an incomplete picture of that trial. We believe these stipulations were akin to stipulations as to the law. Therefore, the circuit court was not required to accept these stipulations as conclusive proof that Dr. Meacher was liable for causing Grant’s injuries, or as conclusive proof that Colleton was not liable. See Greenville Cnty. Fair Ass’n v. Christenberry, 198 S.C. 338, 345, 17 S.E.2d 857, 859 (1941) (<HOLDING>); McDuffie v. McDuffie, 308 S.C. 401, 409-10, Holdings: 0: holding that arbitration award is binding on the parties 1: recognizing that decisions of lower federal courts interpreting federal law are not binding on state courts 2: holding that a stipulation as to the law is generally not binding upon the courts 3: holding that the confrontation clause of the sixth amendment is applicable to the states and therefore the us supreme courts interpretation of the provision is binding upon this court 4: recognizing the supreme courts interpretation of the federal feloninpossession statute as binding


Input: that he still bore scars from these wounds and submitted doctors’ reports confirming the injuries to his wrist and back. When Plesea attempted to report the episode to the police, he was mockingly-told to seek relief in Strasbourg, which is the seat of the European Court of Human Rights. Plesea further testified that later that year, in August, the police detained him for his religious activities in his home city of Ploiesti. The police physically abused him and threatened him with arrest if he did not cease proselytizing. The Pleseas subsequently left Romania. The cumulative evidence in the record, if we assume it is credible, compels the conclusion that Plesea suffered past persecution on account of his religious beliefs. See Korablina v. INS, 158 F.3d 1038, 1045 (9th Cir.1998) (<HOLDING>). The police officers’ mockery and their Holdings: 0: holding that to constitute persecution harm must be more than harassment 1: holding that harassment threats and one beating did not constitute persecution 2: holding that material alterations in the applicants account of persecution are sufficient to support an adverse credibility finding 3: holding that a petitioners unwillingness to return must be based upon persecution or a wellfounded fear of persecution on account of race religion nationality membership in a particular social group or political opinion   4: holding that facts compelled finding of persecution where record showed cumulative specific instances of violence and harassment on account of religion


Input: Trooper Madison identified multiple instances in which Jones displayed unsafe driving behavior consistent with a person being intoxicated including nearly hitting Trooper Madison’s police car, weaving and twice crossing the center line, passing in a no-passing zone, and nearly hitting parked vehicles parked on the shoulder of the road. Trooper Madison noted that he smelled alcohol when he encountered Jones, that Jones’s eyes were red and bloodshot, that Jones fumbled with his license and could not locate his registration, that when Jones exited his vehicle he displayed a lack of balance, that Jones staggered as he walked and leaned against his vehicle to steady himself, and that Jones failed three field sobriety tests. See Timberlake v. State, 690 N.E.2d 243, 255 (Ind.1997) (<HOLDING>), reh’g denied. II. The second issue is whether Holdings: 0: holding that sentencing error is harmless if the error did not affect the district courts selection of the sentence imposed 1: holding that it is error for court of appeals to reverse trial courts ruling that had not been objected to at the trial court level 2: holding that we will not reverse in the absence of prejudice 3: holding that even if a trial court errs in a ruling on the admissibility of evidence we will reverse only if the error is inconsistent with substantial justice and that the error was harmless 4: recognizing that harmless error review applies when the court errs in the guidelines calculation


Input: discovers that he or she has been injured.” Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385-86 & n. 5 (3d Cir.1994) (observing that the rule’s origins lie in products liability and medical malpractice cases, but that the rule has been subsequently applied to employment discrimination cases). As the Court previously observed, Plaintiff alleges that he was removed from his position as HOCALJ on June 4, 2010, see Am. Compl. ¶ 62, and “Plaintiff avers that defendant Bede informed him of the removal on June 4, 2010.” See Bridges, 2014 WL 1281158, at *16; Am. Compl. ¶ 75; Am. Compl. Ex., at 106a, ECF No, 30-2. Because Plaintiff discovered his alleged injury on the same day the alleged injury occurred, the discovery rule has no role to play. See Oshiver, 38 F.3d at 1386-87 (<HOLDING>). Thus, the Court did not err in failing to Holdings: 0: holding that threatening employee to mind her own business investigating her videotaping her without her permission and forcing her to take polygraph could not be considered adverse employment actions because they had no effect on conditions of employment 1: holding the pro se plaintiff has no breach of contract or wrongful discharge claim against defendant employer where the employer wrongfully characterized her discharge as for cause but remanding to trial court to consider whether the pro se plaintiff suffered some other compensable injury if the employer as alleged intentionally mischaracterized the plaintiffs discharge in order to reduce its unemployment contributions 2: holding that where the plaintiff discovered the injury on the very datedefendant informed her of her discharge the discovery rule offered no relief in relation to the timeliness of the filing of her discriminatory discharge claim 3: holding that a plaintiff who pled in her complaint that her law firm actively misled her in support of her request for application of the discovery rule had sufficiently pled the application of the doctrine 4: holding that where the immediate cause or motivating factor of a discharge is the employees assertion of statutory rights the discharge is discriminatory under section 215a3 whether or not grounds for other discharge exist


Input: 1148 (1957)) (emphasis added). 86 . Id. (emphasis added). 87 . In addition, one could broadly argue that the concern of constitutional avoidance should apply to the Supreme Court’s ruling. While normally applied to statutes its reasoning can be readily applied to the situation before this Court — determining whether the Supreme Court's ruling will render unconstitutional a large or a small number of proceedings defined by Congress as core, see, e.g., Gonzales v. Carhart, 550 U.S. 124, 153, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007) (" '[T]he elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.' ” (citations omitted)); Almendarez-Torres v. United States, 523 U.S. 224, 237, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (<HOLDING>); United States v. Jin Fuey Moy, 241 U.S. 394, Holdings: 0: holding that the workers compensation act is to be liberally construed and reasonable doubts as to construction are to be resolved in favor of coverage 1: holding that a statute should not be construed so as to invalidate other parts of the same statute 2: holding that a statute is certainly not so plainly unconstitutional that the failure of the trial court  to hold it so can be regarded as a plain error or a culpable neglect of judicial duty internal citation omitted 3: holding that a statute must be construed if fairly possible so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score citations omitted 4: holding that a statute must be construed so that no part of the statute is rendered surplusage or superfluous internal quotation marks and citation omitted


Input: court ruled that Tyrone “is bound by the 1989 judgment.” In his appeal to this Court, Tyrone poses three questions for review, which we have rephrased: I. Did the trial court err as a matter of law in ruling that the 1989 paternity judgment could not be vacated except upon a finding of fraud, mistake, irregularity, or clerical error? II. Did the trial court err as a matter of law or fact in denying his request for blood or genetic testing under F.L. § 5-1029? III. Were the trial court’s findings of waiver and lack of ordinary diligence legally incorrect and/or clearly erroneous? DISCUSSION I. Timing of Appeal Although not raised by the parties, we first address the jurisdictional question whether this appeal was timely filed. Newman v. Reilly, 314 Md. 364, 387-88, 550 A.2d 959 (1988)(<HOLDING>). The circuit court’s memorandum opinion and Holdings: 0: holding that timeliness of filing of notice of appeal is a jurisdictional issue 1: holding time for filing notice of appeal under rule 8002 is jurisdictional 2: holding that where plaintiff fails to raise issue of timeliness of departments hearing at administrative level the issue is waived on appeal 3: holding that an appellee who fails to file any documents in response to timeliness show cause order or order deeming appeal timely may not relitigate issue of timeliness in appellate brief because a timely notice of appeal is a claimsprocessing rule rather than a jurisdictional requirement 4: holding that the filing of an opening brief within the time period for filing a notice of appeal could constitute notice of appeal


Input: v. Singletary, 683 So.2d 109, 112 (Fla.1996). In affirming the trial court, the Simmons court found that the first prong was clearly met. See 753 So.2d at 763. However, the second prong was not met because “the statute does not alter the definition of criminal conduct and does nof constitute punishment.” Id. We noted that we had previously found section 943.0435 to be regulatory and “[rjegulatory statutes do not constitute punishment.” Id. (citation omitted). See Walker v. State, 718 So.2d 217, 218 (Fla. 4th DCA 1998) (“The sexual predator designation ‘is neither a sentence nor a punishment but simply a status resulting from the conviction of' certain crimes.’ ”) (quoting Fletcher v. State, 699 So.2d 346, 347 (Fla. 5th DCA 1997)); Ortega v. State, 712 So.2d 833, 834 (Fla. 4th DCA 1998) (<HOLDING>); State, Dep’t of Corrections v. Goad, 754 Holdings: 0: holding application of successor statute regarding registration of sexual predator was regulatory and not an ex post facto violation 1: holding that the alaska sex offender registration act did not violate the ex post facto clause 2: holding that a rape shield statute was not ex post facto when it barred evidence of a prior sexual relationship that was admissible before enactment of the statute 3: holding that the ex post facto clause  has no application to deportation 4: holding that state work release regulation was not an ex post facto law


Input: (Tenn. Crim. App. 1987); 7 Tenn. Prac. Pattern Jury Instr. T.P.I.-Crim. 42.04 (18th ed. 2014). It is apparent, then, that the significance of a witness’ demeanor , most cases will allow a successor judge to evaluate the weight of the evidence because most eases will not depend so heavily upon witness demeanor alone as the determining factor of witness credibility. We reiterate that most components of witness credibility may be determined from the record. Stated another way, the argument that a successor judge is unable to rule as the thirteenth juror presumes that the witnesses’ demeanor on the stand was so significant in and of itself as to raise a concern that the jury’s verdict was a “miscarriage of justice.” We are not persuaded to adopt this approach. See Willis, 373 S.E.2d at 81 (<HOLDING>). Accordingly, we hold that a successor judge Holdings: 0: holding that it is the exclusive province of the judge in nonjury trials to assess the credibility of witnesses and to assign weight to their testimony 1: recognizing that the argument that the nature of the witnesses testimony and their relationship to each other in this case itself creates an issue of fact as to its credibility is not legally sound 2: recognizing that in any criminal trial the credibility of the prosecutions witnesses is central 3: holding that this court will not substitute its judgment for that of the administrative fact finder who heard the testimony and was in a position to evaluate the credibility of witnesses because evidence is weighed by the administrative agency and not by the courts 4: holding that the postconviction court is the sole judge of the weight of the evidence and the credibility of witnesses


Input: (Emphasis in original.) 2 . Although the federal collateral order doctrine is not applied in our state courts, we believe the reasoning of these cases is sound. 3 . Two factors, the right to a fair hearing and need for witness cooperation, are not relevant because the divorce proceeding has ended. Another factor, the impact on sensitive child custody issues, is not implicated. Justice PLEICONES, concurring in part, dissenting in part. I concur in the majority’s conclusion that the order of the family court unsealing the divorce record is immediately appealable, but only because this is a final judgment of the family court. As the majority observes, “No further action is required in the family court to determine the parties’ rights... apital Corp., 317 Ark. 238, 878 S.W.2d 708 (1994) (<HOLDING>) (internal quotation omitted). Because the Holdings: 0: holding that ajlthough the decision we review is that of declining to unseal the records the issue is whether the records should have been sealed in the first place and the one who seeks to overcome the expectation of access bears the burden of establishing the requisite important state interest 1: recognizing that the defendant bears the burden of establishing that plain error was prejudicial 2: holding that when state law prohibited discovery of records of a medical review committee the district court should have determined whether the records came within the statutes coverage and if so whether the right of access nevertheless outweighed the public policy expressed by state law 3: holding that if the court determines that the papers and records should be kept confidential the burden to show good cause would be upon the party requesting to unseal or open the documents 4: holding that the defendant bears the burden of demonstrating that the action should be transferred


Input: CURIAM: Eugene Dwight Hunt pled guilty, pursuant to a written plea agreement, to possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g) (2000), and was sentenced to a fifteen-year minimum sentence because he was found to be an armed career criminal under 18 U.S.C. § 924(e)(1) (West Supp.2005). On appeal, Hunt argues that the district court erred by sentencing him as an armed career criminal in violation of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), because this judicially-imposed sentencing enhancement was neither found by a jury nor admitted by him. We affirm. Hunt’s argument is foreclosed by two of our recent decisions. See United States v. Thompson, 421 F.3d 278, 282-84 (4th Cir.) (<HOLDING>), petition for cert, filed (Oct. 25, 2005) (No. Holdings: 0: holding that all facts that would enhance the defendants sentence above the statutory maximum must be found by a jury 1: holding that the fact of prior convictions under  924e need not be charged in an indictment and proven to a jury and also that the government need not charge in an indictment and prove to a jury that a defendants prior conviction constitutes a violent felony under  924e 2: holding that district court may enhance sentence based on fact of prior convictions under  924e regardless of whether admitted by defendant or found by jury 3: holding that sixth amendment not violated when sentence enhanced based on prior convictions that were not charged in indictment or admitted by defendant 4: holding that this court reviews a booker issue de novo where the defendant objected in the district court to sentence enhancements based on facts not found by a jury nor admitted by the defendant


Input: as constitutional “property” if the person can be deemed “entitled” to them. 2 Donald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure § 17.5, at 628 (2d ed. 1992). Applying these principles, we find no merit in Harrell’s claim that the Board’s failure to provide him a hearing before suspending him violated due process. He was suspended on January 17, 1990, and he continued to receive his salary until his employment ceased after the hearing on March 12, 1990. His contract and Section 22-10-17 (establishing standards and procedures for discharge of certified school employees) afforded him only the right to be fully compensated; he had no right to occupy the office of superintendent. See Royster v. Board of Trustees, 774 F.2d 618, 621 (4th Cir.1985) (<HOLDING>), cert. denied, 475 U.S. 1121, 106 S.Ct. 1638, Holdings: 0: holding in an employment discrimination case that the continued employment of the plaintiffs rival in a position previously held by the plaintiff did not constitute a systemic violation 1: holding that former municipal judge did not have property interest in continued employment 2: holding that property interest in continued expectation of public employment does not include right to actually occupy position 3: holding that faa does not occupy entire field of arbitration 4: holding that the defendant did not deprive the plaintiff of a property interest in his continued employment because the plaintiff voluntarily resigned when he refused to report to work after being transferred to a new position


Input: III. DISCUSSION We divide our discussion into two parts. First, we explain that Florida law permitted the Board to delegate to Adams authority to bind it to arbitrate disputes under the consulting contract. Second, we explain that Adams possessed implied actual authority to bind the Board to arbitrate disputes under the consulting contract. A. Florida Law Permitted the Board to Delegate to Adams the Authority to Bind the Board to Arbitration Under the Consulting Contract. Citigroup contends that ordinary principles of administrative law permit the Board to delegate to Adams, its agent, the authority to bind the Board to arbitrate disputes under the consulting contract. The Board disagrees, and advances a related argument that the Florida Sunshine Law, Fla 1, 479 (7th Cir.1986) (<HOLDING>). Delray Beach municipal law does not prohibit Holdings: 0: holding that the district court was authorized to remand the proceedings to the board where the board failed to make required findings 1: holding that the attempt to remove  a director by written consent of the board is invalid 2: holding employment contracts of former executive director of township community mental health board ultra vires and void ab initio though board members had staggered terms of appointment because the contracts extended beyond the term of the township supervisor in office at the time of the execution of the contracts and the board was appointed by the supervisor 3: holding that state law affirmatively required full board to approve employment contracts so superintendent modification was invalid 4: holding that at will contracts of employment are subject to tortious interference with contracts claims


Input: by liability for filing fees.' ” Jackson v. Stinnett, 102 F.3d 132, 136-37 (5th Cir.1996). Accord Williams v. Roberts, 116 F.3d 1126, 1127-28 (5th Cir.1997). 11 . See docket entry nos. 6 and 7. 12 . See docket entry no. 9. 13 . See docket entry no. 11. 14 . Plaintiff has filed several motions requesting that this Court, the Magistrate Judge, or both waive the PLRA’s IPFF requirement or otherwise excuse plaintiff from paying the statutorily-mandated IPFF. See docket entry nos, 13, 16, 19, 20, 24, and 26. This Court and the Magistrate Judge denied all of those motions. See docket entry nos. 15, 17, 18, 21, and 25. 15 g that unverified pleadings and unauthenticated documents did not constitute proper summary judgment evidence); and Duplantis v. Shell Offshore, Inc., 948 F.2d at 192, (<HOLDING>). 67 . See Isquith v. Middle South Utilities, Holdings: 0: holding that affidavits that are conclusory and based on hearsay can not be used to oppose motion for summary judgment 1: holding courts review motion for summary judgment in light most favorable to nonmovant 2: holding that summary judgment was appropriate when no reasonable factfinder could have found for the nonmovant 3: holding that a nonmovant could not oppose a summary judgment motion with an unauthenticated letter 4: holding that unauthenticated documents cannot be considered at summary judgment


Input: his second motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Based upon the trial court’s thorough order and record attachments, we affirm finding that the claims raised could have been raised in the defendant’s first motion for postconviction relief, and are, therefore, procedurally barred, see Fla. R. Crim. P. 3.850(f)(“A second or successive motion may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the movant or the attorney to assert those grounds in a prior motion constituted an abuse of the procedure governed by these rules.”); Moore v. State, 820 So.2d 199 (Fla.2002)(<HOLDING>); Scrambling v. State, 919 So.2d 671 (Fla. 5th Holdings: 0: holding that if there is any issue of fact which remains upon a motion for summary judgment the motion must be denied 1: holding that a successive 3850 motion can be denied on the ground that it is an abuse of process if there is no reason why the issue could not have been raised in a previous motion 2: holding that defendants 3850 motion for postconviction relief was procedurally barred as successive where the defendants current rule 3850 motion is one that could have or should have been raised in his first rule 3850 motion 3: holding an issue not preserved when one ground is raised to the trial court and another ground is raised on appeal 4: holding that the trial court may not grant summary judgment on a ground not raised in the motion


Input: Cardiovascular as shielding continuations-in-part from narrowing disavowals made in parent applications. Our precedent holds to the contrary, indicating that an interpretation asserted in the prosecution of a parent application can also affect continuation applications, Elkay, 192 F.3d at 980, 52 USPQ2d at 1114, continuation-in-part applications, Wang Labs., Inc. v. Am. Online Inc., 197 F.3d 1377, 1384, 53 USPQ2d 1161, 1165 (Fed.Cir.1999) (“[T]his subject matter is common to the continuation-in-part application, and argument concerning the [prior art] reference was correctly viewed as applying to the common subject matter.”), and even related continuation-in-part applications arising from the same parent, Jonsson v. Stanley Works, 903 F.2d 812, 818, 14 USPQ2d 1863, 1869 (Fed.Cir.1990) (<HOLDING>). Consequently, that the '678 patent is a Holdings: 0: holding that claim 22 which depends from nonexistent claim 38 could be corrected because the error in the dependency was evident based on the face of the patent and that the correct antecedent claim was apparent from the prosecution history 1: holding that when two patents issued from continuationinpart appliea tions derived from one original application the prosecution history of a claim limitation in the first patent to issue was properly applied to the same claim limitation in the second patent to issue 2: holding that in context of patent claim at issue if means only if 3: holding that in order to understand patent claims a court can take instruction from the other claims the specification and the prosecution history 4: holding that the complaint placed the defendant on notice when it alleged ownership of the asserted patent named the individual defendants cited the patents that are allegedly infringed described the means by which the defendants allegedly infringed the patents and pointed to specific sections of the patent law invoked


Input: operations” test and other federal choice-of-law requirements are fulfilled. See Guerra v. Selsdon Mar. Corp., 711 So.2d 1298, 1298 (Fla.Ct.App.1998) (“Even if ... the action is properly maintainable under the Jones Act on the principle adopted in [Rhoditis], the trial court correctly concluded that forum non conveniens is applicable to such an action in the Florida state courts ....”) (internal citations omitted); see also perations” requirement fulfilled where record reflected that the defendants maintained offices in Florida and New York, operated cruise ships out of two ports in Florida and elsewhere in the U.S., offered special rates to customers in the Continental United States, and employed shipping agents and a doctor in Ft. Lauderdale, Florida); cf. Cooper, 575 F.3d at 1178 (<HOLDING>); Membreño v. Costa Crociere S.p.A., 425 F.3d Holdings: 0: holding that us are accorded wide latitude in calendar management and the court will not micromanage their scheduling decisions any more than when it reviews such decisions by district judges 1: holding base of operations requirement fulfilled where defendant kept its largest office in new york was 95 owned by a us domiciliary who had lived in the united states for twentyfive years and derived its entire income from shipping cargo to or from the united states 2: holding that the courts jurisdiction is limited to the appeal of final board decisions that are adverse to the claimant 3: holding that the puc does not have the authority to regulate or control the management decisions of a utility absent a finding that the management decision would adversely affect the public 4: holding base of operations requirement unmet absent information demonstrating that the us is where the defendants operations occur management decisions are made or revenues are generated


Input: October 14, 1996, at A NEWS. 20 . Id. 21 . Bruce Mohl, Student Credit Cards: A visa to Big-debt Land, San Diego Union-Tribune, October 10, 1996, at LIFESTYLE. 22 . Consumer Bankruptcy News, Consumer Bankruptcies Continue to Set Record Pace, July 3, 1997. 23 . Faulkner & Gray, Inc., Fending Off the Personal Bankruptcy Plague, Bank Technology News, March 1, 1997. 24 . Id. 25 . Faulkner & Gray, Inc., Fending Off the Personal Bankruptcy Plagu 985). 87 . 11 U.S.C. § 523(a)(2)(C). 88 . Id. See also Citibank South Dakota, N.A. v. Eashai (In re Eashai), 87 F.3d 1082, 1092 (9th Cir.1996). 89 . Sears Roebuck and Co. v. Hernandez (In re Hernandez), 208 B.R. 872, 881 n. 17 (Bankr.W.D.Tex.1997). See also AT&T Universal Card Serv. v. Acker (In re Acker), 207 B.R. 12, 16 (Bankr.M.D.Fla.1997) (<HOLDING>); First Card Serv., Inc. v. Kitzmiller (In re Holdings: 0: recognizing presumption 1: holding that a presumption of fraud eliminates the need to prove reliance 2: holding that plaintiffs were entitled to the ute citizens presumption of reliance 3: recognizing a rebuttable presumption of reliance in rule 10b5 4: holding that plaintiff failed to prove reasonable reliance on a false statement


Input: Miller’s awareness of problems other companies had experienced with their silage bag manufacturers nor the fact that Miller contemplated sending Hyplast’s bags to an independent lab for testing is sufficient “to show whether a reasonable person, in similar circumstances to Miller, would have conducted such an independent lab analysis or adopted some other quality control measure.” J.A. 2612. In its reply brief, Farrar simply argues that the district court erred in concluding that Farrar failed to create a jury issue with this theory without addressing, or even acknowledging, the basis for the district court’s ruling. See Appellants’ reply brief at 25-29. Thus, Farrar’s argument is waived for this reason as well. See Eriline Co. S.A. v. Johnson, 440 F.3d 648, 653 n. 7 (4th Cir.2006) (<HOLDING>). III. Farrar next maintains that the district Holdings: 0: holding that the appellant developed his argument sufficiently to raise the issue for appellate review 1: holding that conclusorily assigning error without providing supporting argument is insufficient to raise issue 2: holding that mere conclusion of affiant without some supporting facts are insufficient to raise fact issue necessary to preclude summary judgment 3: holding that random mention of an issue without elaboration or supporting authority is insufficient to raise issue for appellate courts consideration 4: holding that government lost right to raise lack of expectation of privacy argument on appeal when it failed to raise argument below


Input: high among the interests in our jurisprudential system is that of finality of judgments. It has become almost a judicial commonplace to say that litigation must end somewhere, and we reiterate our firm belief that courts should not casually permit the relitigation of litigated issues out of a friendliness to claims of unfortunate failures to put in one’s best case. 563 F.2d at 33. Turning to the prevailing doctrine, it should be no surprise that for a movant’s case to succeed, the material offered in support of his Rule 60(b)(6) motion must be “highly convincing.” Id. For example, it is well established that a supervening change in decisional law on its own is insufficient to afford relief under Rule 60(b)(6). See id.; Batts v. Tow-Motor Forklift Co., 66 F.3d 743, 749 (5th Cir.1995) (<HOLDING>). In fact, absent a sufficient showing of Holdings: 0: holding that the state law violated equal protection principles 1: holding the best interest of the child standard does not violate federal constitutional principles 2: holding that changes in decisional law based on constitutional principles are not of themselves extraordinary circumstances sufficient to justify rule 60b6 relief 3: recognizing that postoffense rehabilitative efforts while normally not grounds for departure may support departure in extraordinary circumstances and noting that the totality of the circumstances may justify a departure where a single circumstance is not alone sufficient 4: holding in review of a downward departure that an extraordinary reduction must be supported by extraordinary circumstances


Input: longer than eight consecutive years. 15 . A member who has not been nominated for a second term is not disqualified from serving as a holdover under the plain language of HRS § 26-34(b), as the member continues to occupy a status of being eligible for nomination and confirmation, whereas the Senate’s rejection of a member’s nomination for a second term renders the member ineligible, and therefore disqualified for membership under subsection (a). 16 . This court has stated that under HRS § 26-34, "the governor would be entitled to at least a reasonable time after a term expires to nominate a qualified person to a board or commission.” Life of the Land v. Burns, 59 Haw. 244, 251, 580 P.2d 405, 410 (1978). See Hanabusa v. Lingle, 119 Hawai'i 341, 351, 198 P.3d 604, 614 (2008) (per curiam) (<HOLDING>). 17 . The Senate's discussion of the amendment Holdings: 0: holding that where the law is unsettled at the time of trial but settled by the time of appeal the plainness of the error should be judged by the law at the time of appeal 1: holding that the university of californias board of regents is shielded from suit under the eleventh amendment 2: holding that governors duty to nominate and appoint members of the board of regents of the university of hawaii is subject to a reasonable time standard judged by the totality of the circumstances 3: holding that communications between the university of colorados counsel and former employees of the university concerning activities during their period of employment may be protected by the attorneyclient privilege under the rationale presented in upjohn but holding that the university waived the privilege by disclosing the documents 4: holding that the legislature which created the state board of education has the power to abolish modify and control it and therefore had the power to do away with the prerequisite that the senate affirm the governors appointments of all commissioners serving on the board


Input: Cir.1978))). Loop-Net challenges the reasonableness of hours claimed and rates charged by CoStar’s counsel as well as the amount of their expenses. 1. Reasonable Billing Rate “To inform and assist the court in the exercise of its discretion, the burden is on the fee applicant to produce satisfactory evidence ... that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” See Blum, 465 U.S. at 896 n. 11, 104 S.Ct. 1541. A rate determined in this way is normally deemed reasonable, and is referred to as the prevailing market rate. Id. Evidence of the prevailing market rate usually takes the form of affidavits from other counsel attesting to their rates or the prev (10th Cir.1987) (<HOLDING>). CoStar requests the following rates for its Holdings: 0: holding that a district judge may rely on his own knowledge of private firm hourly rates in the community in determining the prevailing market rate 1: holding that the district court should have looked to prevailing rates in the area 2: holding that absent other evidence of prevailing market rates the district judge may establish a reasonable rate based on his familiarity with the prevailing rates in the area 3: holding that the fee applicant must produce specific evidence of the prevailing market rates in the relevant community for the type of work for which he seeks an award 4: recognizing that rates awarded in other cases do not set the prevailing market rateonly the market can do that


Input: v. Duncan, 779 F.2d 1421, 1424 (9th Cir.1986). What is most important for case-dispositive sanctions is whether the misconduct “threaten[s] to interfere with the rightful decision of the case.” Valley Engineers Inc. v. Elec. Eng’g Co., 158 F.3d 1051, 1057 (9th Cir.1998). Accordingly, “[dismissal is appropriate where a pattern of deception and discovery abuse [make] it impossible for the district court to conduct a trial with any reasonable assurance that the truth would be available.” Id. (citing Anheuser-Busch, Inc. v. Natural Beverage Distributors, 69 F.3d 337, 352 (9th Cir.1995)); see Oil States Skagit Smatco, 664 at 79 (affirming district court’s determination that dismissal was the only appropriate sanction where a plaintiff lied at deposition); Arnold, 2012 WL 3276979 at *15 (<HOLDING>); Knapp v. Convergys Corp., 209 F.R.D. 439, 443 Holdings: 0: holding that lesser sanctions would not be appropriate where a plaintiff repeatedly lied at deposition and refused to comply with discovery obligations 1: holding default was the appropriate remedy for failure to comply with numerous court orders and discovery requests 2: holding if a deposition is taken for discovery only  not for use at trial the deposition is not a stage of trial for which the defendant must be present 3: holding that dismissal for failure to comply with discovery orders is on the merits 4: holding that under new york law a dismissal for failure to comply with discovery obligations is not a judgment on the merits and does not bar a subsequent suit involving the same parties and issues


Input: that “a large percentage of his income comes from doing examinations and giving testimony for defendants and insurance companies and that more than approximately 90% of his opinions are contrary to the opinions of the physicians who actually treat the patients.” (Paper No. 24 at p. 4). It is true that Rule 35 confers on the moAÚng party no absolute right to choose the examiner, and that the Court has the authority to reject an examiner proposed by a party upon a sufficient shoAving of bias or prejudice. See 8A Charles A. Wright et al., Federal Practice and Procedure § 2234.2, at 486; cf. Main v. Tony L. Sheston-Luxor Cab Co., 249 Iowa 973, 89 N.W.2d 865 (1958) (rejecting physician who was also a client of defendant’s attorney); Adkins v. Eitel, 2 Ohio App.2d 46, 206 N.E.2d 573 (1965) (<HOLDING>). In this case, however, even assuming the Holdings: 0: holding that a district court may preclude a defendant from invoking the adviceofcounsel defense when he refused to answer questions regarding relevant communications with counsel 1: holding district court did not abuse its discretion by allowing government to ask leading questions of eightyearold witness reluctant to testify regarding sexual abuse 2: holding failure to object to conditioning instructions waived error arising from the jurys failure to answer question when answer could not be implied and that lack of objection waived right to new trial to have jury answer questions 3: holding that an inmates eighth amendment legal claims were straightforward and that the district court did not abuse its discretion by refusing to appoint counsel 4: holding an abuse of discretion by trial court to appoint physician when attorney refused four times to answer questions regarding his business relationship avith the doctor


Input: to recover further response costs.” 42 U.S.C. § 9613(g)(2). The question posited here is whether, under section 113(g)(2), a plaintiff can seek a declaratory judgment, as distinct from contribution or indemnification, without first incurring response costs. Because no party has cited any Supreme Court, First Circuit or District of Massachusetts case addressing this issue, the court has looked to case law from other jurisdictions. The clear answer derived therefrom is that the incurrence of response costs is a prerequisite to declaratory r In re Dant & Russell); Marriott Corp. v. Simkins Indus., Inc., 825 F.Supp. 1575, 1582 n. 14 (S.D.Fla.1993) (allowing declaratory judgment “[bjecause an expenditure has been made”); Bowen Eng’g v. Estate of Reeve, 799 F.Supp. 467, 476 (D.N.J.1992) (<HOLDING>), aff'd, 19 F.3d 642 (3d Cir.1994); United Holdings: 0: holding that the proper remedy for future response costs is not a present lumpsum payment of anticipated expenses but instead a declaratory judgment award dividing future response costs among prps 1: holding that the declaratory judgment act is remedial only and the party seeking declaratory relief must have an underlying cause of action 2: holding that response costs can be necessary even though the agency that required cleanup never approved the response actions taken 3: holding that declaratory relief only appropriate once some expenditure has been made toward necessary response costs 4: holding that investigatory costs are considered costs of response under cercla


Input: 7:08-CV-211-FL, 2010 WL 4484447 (E.D.N.C. Oct. 25, 2010). 6 . In providing guidance to lower courts as to what might constitute a watershed procedural rule falling within the second Teague exception, the Supreme Court has referred only to the rule of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), which held that state courts must provide counsel for indigent criminal defendants. Indeed, the Gideon decision "alter[ed] our understanding of the bedrock procedural elements essential to the fairness of a proceeding.” Beard, 542 U.S. at 418, 124 S.Ct. 2504 (internal quotation marks and citation omitted). The new procedural rule announced in Padilla, in contrast, "has none of the primacy and centrality of the rule adopted in Gideon." Id. at 420, 124 S.Ct. 2504 (<HOLDING>). 7 . Petitioner, for her part, states in a Holdings: 0: holding that plaintiffs have standing to pursue facial challenge to alleged prior restraint without the necessity of first applying for and being denied a permit citing city of lakewood v plain dealer publishing co 486 us 750 108 sct 2138 100 led2d 771 1988 1: holding that simmons announced a new rule and retrospective application of the rule was barred by teague 2: recognizing that the rule announced in mills v maryland 486 us 367 108 sct 1860 100 led2d 384 1988 that the eighth amendment prohibits any barrier to the sentencers consideration of mitigating evidence was not a watershed procedural rule falling within the second teague exception 3: holding that the rule announced in mills v maryland 486 us 367 108 sct 1860 100 led2d 384 1988 doesnt apply retroactively on collateral review 4: holding that united states v gaudin 515 us 506 115 sct 2310 132 led2d 444 1995 which shifted the determination of materiality in a prosecution under 18 usc  1001 from the judge to the jury was not a watershed rule justifying retroactive collateral review under teague


Input: Barnes was registered as Hebrew Israelite and not Jewish, he was not given kosher meals. Barnes wrote letters and filed a grievance requesting kosher meals, and on June 23, 2004, the Central Office Review Committee granted the grievance, concluding that it was “appropriate” for inmates self-identifying as Hebrew Israelites to be given Kosher meals. Barnes began receiving kosher meals shortly thereafter. Hence, while Barnes was first denied kosher meals in accordance with Southport policy because he had not registered as Jewish, the decision was reversed by central DOCS authorities after Barnes complained. While it was clearly established in 2004 that inmates had the right to a diet consistent with their religious beliefs, see Kahane v. Carlson, 527 F.2d 492, 495-96 (2d Cir.1975) (<HOLDING>); Bass v. Coughlin, 976 F.2d 98, 99 (2d Holdings: 0: holding orthodox jewish inmates are entitled to a kosher diet 1: holding orthodox jewish inmate was entitled to kosher meals 2: holding that a detention officers alleged negligent conduct of failing to medically screen an inmate who later committed suicide in a holding cell  in violation of the police departments policies  was not the proximate cause of the inmates death when there was no evidence that the inmate would have been unable to kill himself if he had been medically screened and any claim that the inmate would have presented as suicidal in such screening was purely speculative 3: holding that an inmate stated a claim under the due process clause when guards had placed her in a cell with a dangerous inmate 4: holding that prison official could not deny inmate kosher meals based on rabbis determination that inmate was not jewish under judaic law


Input: they nevertheless were the bases for the upward departure for which Garrison was prepared by the notice in the revised PSR. 31 . Sentencing Guidelines policy statements are binding on federal courts as interpretive guides to the , meaning of an applicable guideline. Williams v. United States, 503 U.S. 193, 200-01, 112 S.Ct 1112, 1119, 117 L.Ed.2d 341 (1992); Stinson, 508 U.S. at 42, 113 S.Ct. at 1917. 32 . The district court's factual findings concerning the § 5E1.2(d) factors in determining a fine is reviewed under the clearly erroneous standard and is to be distinguished from our abuse-of-discretion review of the district court’s decision to depart upward. See Long, 122 F.3d at 1366; Lombardo, 35 F.3d at 527; see also United States v. Rowland, 906 F.2d 621, 623 (11th Cir.1990) (<HOLDING>). 33 . As the PSR recommended, the district Holdings: 0: recognizing that because a district courts determination of the appropriate fine involves factual issues including the defendants ability to pay the fine imposedthe district courts calculation of the fine is entitled to deference and can be reversed on appeal only for clear error 1: holding that court not required to find ability to pay before imposing criminal fine 2: holding that the failure to impose a mandatory fine requires that the matter be remanded for imposition of that fine 3: holding that where the language of the statute required the imposition of both confinement of which a portion could not be suspended and a fine the court had the ability to impose a fine and then suspend it 4: holding that when a fine is paid there is a full satisfaction of one of the alternative penalties of the law and that the fine cannot be reimbursed in order to punish the defendant instead with imprisonment


Input: considering Thompson filed his Statement within 21 days of the order, his Statement is timely. 3 . There is no dispute section 6309.2 is applicable. Section 6309.2, as amended throughout the years, is applicable to Philadelphia, the only city of the first class in the Commonwealth of Pennsylvania. See Commonwealth v. Henley, 909 A.2d 352, 362 (Pa.Super.2006) (en banc) (citing the Historical and Statutory Notes following section 6309.2). See also Appellant’s Brief at 12. 4 . As also explained below, Thompson does not contend the police did not have the authority to immobilize the vehicle. Instead Thompson argues the police, under the circumstances, did not have the authority to tow the vehicle before the expiration of the 24-hour immobilization period. 5 . See Henley, 909 A.2d at 364 (<HOLDING>) 6 . Regardless of whether Thompson actually Holdings: 0: recognizing that police perform a community caretaking function separate and apart from the enforcement of criminal statutes 1: recognizing that the community caretaking exception is distinct from the emergency aid or emergency assistance exception to the fourth amendment warrant requirement 2: holding that section 63092 coexists with the traditional community caretaking functions of the police 3: recognizing that the community caretaking function as an exception and enunciating a test for its application 4: recognizing the community caretaking exception but holding it inapplicable to justify the police action at issue


Input: that the judge’s comments in any way influenced (or even could have influenced) the jury. As such, the trial judge’s comments did not violate OCGA § 17-8-57. Additionally, the trial court committed no error by allowing the State to reopen the case to establish venue. Judgment affirmed. Barnes, P. J., and Blackwell, J., concur. 1 Additionally, Davenport was found guilty of driving under the influence of methamphetamine and two counts of improper lane change, although he does not challenge those convictions on appeal. 2 We note that any inconsistencies in the jury’s verdicts between the co-defendants have no bearing on our review of the appellants’ claims because the inconsistent-verdict rule has been abolished in Georgia. See Parker v. Mooneyham, 256 Ga. 334, 335 (349 SE2d 182) (1986) (<HOLDING>), overruled on other grounds by State v. Holdings: 0: holding that cjonsistency in the verdict is not necessary and refusing to allow inconsistent verdicts to be upset by speculation or inquiry into the possibility of compromise or mistake on the part of the jury 1: holding that trial judge should have granted new trial rather than judgment notwithstanding the verdict because the judge could not know in what order the jury reached its inconsistent verdicts 2: holding that the principles applicable to inconsistent verdicts against one defendant are applicable to inconsistent verdicts between codefendants 3: holding that joint trials promote efficiency and serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts 4: holding rule applicable to witness


Input: Christopher S. Martinez appeals pro se from the dist ev. Adv. Op. 34, 302 P.3d 1103, 1106 (2013) (describing requirements of quiet title action under Nevada law); Edelstein v. Bank of N.Y. Mellon, 128 Nev. Adv. Op. 48, 286 P.3d 249, 257-60 (2012) (en banc) (<HOLDING>); J.A. Jones Const. Co. v. Lehrer McGovern Holdings: 0: recognizing in a materially similar situation the authority of mortgage electronic registration system inc to assign both the note and deed of trust on behalf of the original lender and the lenders successors and assigns 1: recognizing that the right to seek reformation of a deed is limited to the original parties to the deed and their successors in title 2: holding that when note and deed of trust were null and void and of no legal effect because of forgery assignee of note and deed of trust nevertheless had equitable lien upon property for value of construction work for which note and deed of trust were given 3: holding that mers is capable of being a valid beneficiary of a deed of trust and that while entitlement to enforce both the deed of trust and the promissory note is required to foreclose nothing requires those documents to be unified from the point of inception of the loan 4: holding that the putative noteholder lacked standing to foreclose because mers lacked authority to assign the note though it arguably had authority to assign the mortgage


Input: was postponed until after the ruling on the merits, this does not mean that we may simply assume that they have standing to raise challenges to the statute on behalf of any members of the putative class. For example, because Willey has not established that he is a professional gambler, he lacks standing to raise the as-applied constitutional claims of professional gamblers notwithstanding that this case has been filed as a class action. In order to represent a class, the petitioners must be part of that class, possessing the same interest and suffering the same injury as the class members. Even the cases cited by the petitioners in support of their argument are, in fact, fully consistent with this rule. See Kinney v. Metro Global Media, Inc., 170 F. Supp. 2d 173, 181 (D.R.I. 2001) (<HOLDING>); Gen. Elec. Co., 154 N.H. at 463 (holding that Holdings: 0: holding that it is error to certify class when named class representatives are not members of the class they purport to represent 1: recognizing a narrow class of cases in which the termination of the class representatives claim for relief does not moot the claims of the class members 2: holding that the filing of a class action by a class representative without standing tolls the period of limitations with regard to all asserted members of the class and that the amendment of the complaint by the addition of a class member with standing relates back to the original complaint 3: holding that putative class members are not parties to an action prior to class certification 4: holding that putative class representatives had standing to represent the class even when they owned stock for only part of lengthy class period because they alleged a common course of conduct to defraud over that entire period including the period during which they owned stock


Input: Hansen’s release does not bar her claims against Ford. Ford counters that adoption of a specific identity rule ignores the unambiguous language of the release and ignores the intentions of the parties. Ford also argues that adoption of the specific identity rule would deprive the settling defendant of important rights, including contribution rights and the right to be free from further litigation. Finally, Ford argues that Perea correctly concluded that releases should be interpreted according to general contract law principles and thus urges us to affirm the trial court’s entry of summary judgment. Those courts adopting the flat bar rule hold that language such as “all other nt number of courts, however, have opted for the specific identity rule. See, e.g., Young, 455 P.2d at 893 (<HOLDING>); Moore v. Missouri Pac. R.R., 299 Ark. 232, Holdings: 0: holding that a release of unknown claims has no effect in the absence of evidence apart from the words of the release 1: holding that release must specifically name or otherwise specifically identify the persons to be discharged 2: holding that in order to fulfill legislative intent to abolish commonlaw release rule general release must specifically identify parties to be released 3: holding that release discharges only persons named in or sufficiently described by terms of release 4: holding that release discharges only those tortfeasors specifically named in the release agreement


Input: County v. Breedlove, No. 11-03-00356-CV, 2004 WL 2549146, at *2 (Tex.App.-Eastland Nov. 4, 2004, no pet. h.). 9 . Within section 101.021(1)(A), "use” means “to put or [to] bring into action or service; to employ for or [to] apply to a given purpose,” and "operation” means a "doing or performing of a practical work.” LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex.1992) (quoting Mount Pleasant Indep. Sch. Dist. v. Estate of Lindburg, 766 S.W.2d 208, 211 (Tex.1989)). Ballard does not explain how failing to secure a detainee within a vehicle constitutes the "put[ting] or bring[ing] into action” of, or the "doing or performing of a practical work” with, the vehicle itself. See id. But cf. Finnigan v. Blanco County, 670 S.W.2d 313, 316 (Tex.App.-Austin 1984, no writ) (<HOLDING>). However, given our disposition, we need not Holdings: 0: holding mr contrisciane was occupying his insured vehicle when he was struck and killed by an uninsured vehicle after leaving his car to walk over to patrol car with his drivers information as directed by police officer 1: holding that the defendants possession of contraband in a jail was not the result of a voluntary act on his part because officers brought him into the jail under arrest 2: holding that officers exiting and leaving patrol car running beside jail near jail escapee who then commandeered car was use of vehicle within meaning of ttcas motorvehicle waiver 3: holding that the evidence was insufficient to prove the offense of supplying contraband to a jail because the defendant was not in possession of the drugs when he was taken to jail where the arresting officer entered the jail with the drugs 4: holding that injury of plaintiff  who was detained in negligently parked patrol car that along with another patrol car was struck by thirdparty vehicle  did not arise out of use or operation of patrol car within meaning of ttcas motorvehicle waiver rather patrol car merely furnished condition that made injury possible


Input: relief at the time of the hearing. Because Lopez-Velasquez has not established that his deportation order was invalid, his motion to dismiss his § 1326 indictment was improperly granted. For the foregoing reasons, we reverse the district court’s order granting the motion to dismiss the indictment. REVERSED AND REMANDED. 1 . The other category was a general amnesty program for aliens who had resided continuously in the United States since 1982. 8 U.S.C. § 1255a. 2 . Although we and the Second Circuit have held that an IJ's failure to inform an alien of possible eligibility for discretionary relief constitutes a due process violation, most other circuits have adopted a more limited interpretation of the IJ’s duty to inform. See United States v. Copeland, 376 F.3d 61, 70-73 (2d Cir.2004) (<HOLDING>). But see United States v. Santiago-Ochoa, 447 Holdings: 0: holding that doctrine does not violate due process 1: holding that the ijs failure to inform alien that he is eligible for relief from deportation constitutes due process violation where alien establishes prejudice 2: holding that failure to advise an alien of possible forms of relief may violate due process 3: holding that an alien must show error and substantial prejudice in order to prevail on a due process claim 4: holding that the ijs failure to inform alien that he was eligible for relief from deportation constitutes a due process violation if alien establishes prejudice


Input: v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), is not applied to hybrid cases except those involving unemployment compensation); see also MoConnell, 57 U. Chi. L. Rev. at 1127-28 (noting that “ ‘compelling interest’ standard is a misnomer” for hybrid rights claims but that Court outlined standard of review entails “heightened scrutiny”). The Tenth Circuit clearly agrees that the proper scrutiny for review of a hybrid rights claim is a heightened one. See Swanson, 135 F.3d at 699. However, because the Swanson court determined that the Plaintiffs did not have a colorable hybrid claim, it did not apply any heightened standard of scrutiny test and did not detail which heightened standard test discussed by the Smith Court would actually apply. See Swanson, 135 F.3d at 700 (<HOLDING>). Swanson does offer guidance, however, on the Holdings: 0: holding that where no colorable claim can be construed from a complaint it should be dismissed 1: holding that we could not review an aliens colorable due process claim that an ij was not impartial because the alien raised the claim for the first time on appeal 2: recognizing that appellate counsel is under no duty to raise every colorable claim suggested by a client 3: holding that this is not a hybridrights case because plaintiffs demonstrated no colorable claim of infringement on the constitutional right 4: holding that there is no constitutional right to appeal a criminal conviction


Input: conviction and resentencing for a lesser-included offense, where the jury had not been instructed on that lesser offense at trial. The Court of Appeals below answered in the affirmative and remanded for resentencing on the lesser-included offense of attempt to commit the eight violations of the WQA. Villa, 2003-NMCA-142, ¶ 45, 134 N.M. 679, 82 P.3d 46. The Court of Appeals held that an appellate court may remand for resentencing for a lesser offense on which the jury was not instructed, provided the following conditions are met: (1) there is a failure of proof of one element of the greater offense; (2) the evidence is sufficient to sustain all the elements of the lesser offense; (3) the lesser offense is included in the greater; and (4) no undue prejudice to the de 2d 862, 869 (1992) (<HOLDING>). Significantly, the trial courts in both Holdings: 0: holding the interests of justice would not be served by remanding for new trial on the offense of seconddegree murder 1: holding that first and seconddegree intentional murder verdicts are consistent with a felony murder verdict because lack of intent is not an element of seconddegree felony murder 2: holding that although premeditation is outside the heartland of seconddegree murder guideline upward departure from seconddegree murder guideline based on premeditation was improper because commission considered the defendants state of mind in assigning a higher base offense level to firstdegree murder than to seconddegree murder 3: holding on rehearing that the interests of justice would be better served by remanding for new trial on the offenses of seconddegree murder and voluntary manslaughter 4: holding jury instruction on lesser included offense of attempted voluntary manslaughter by act which required finding of intent to kill constituted fundamental error and required reversal of defendants conviction for seconddegree murder


Input: the administrative claim. Plaintiff maintains that it was not until early September of 1998 that she became aware that Defendant had decided to recruit substantially younger employees instead of her. Moreover, Plaintiff claims that her lack of diligence in discovering the true reason for her dismissal was hindered by Defendant’s alleged misrepresentations concerning the possibility of future employment. Thus, Plaintiff argues that the limitations period should be tolled until she became aware of the alleged facts that led to her termination due to Defendant’s misrepresentations. In support of this argument, Plaintiff cites a line of Fifth Circuit Court of Ap peals cases standing for the above-stated proposition. Reeb v. Economic Opportunity Atlanta Inc., 516 F.2d 924 (5th Cir.1975) (<HOLDING>); Coke v. General Adjustment Bureau Inc., 640 Holdings: 0: holding that the charge was timely when filed within the statute of limitations period even though served after the period 1: holding that the limitations period should be tolled because plaintiff was told in his severance report that he might be reinstated 2: holding that the limitations period should be tolled until the plaintiff became aware of the facts necessary to support a charge of discrimination 3: holding that the statute of limitations should be tolled until both the motion for ifp and the motion for counsel are ruled upon 4: holding that the limitations period is not tolled while a federal habeas petition is pending


Input: the district court’s ruling for plain error. United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). To establish plain error, Huether must show an error that is plain and that affects his substantial rights. United States v. Mireles, 617 F.3d 1009, 1012 (8th Cir.2010). But even where plain error is found, Huether will not automatically prevail as we will remedy the error only if it “seriously affects the fairness, integrity or public reputation of judicial proceedings.” United States v. Robertson, 606 F.3d 943, 950 (8th Cir.2010) (quoting United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). Huether’s Confrontation Clause arguments rely mainly on Bullcoming v. New Mexico, - U.S. -, 131 S.Ct. 2705, 2716, 180 L.Ed.2d 610 (2011) (<HOLDING>) and Melendez-Diaz v. Massachusetts, 557 U.S. Holdings: 0: holding that waiver of the privilege against compulsory selfincrimination the right to a trial by jury and the right to confront ones accusers cannot be presumed from a silent record 1: holding that the admission of a pretrial confession of a nontestifying codefendant that incriminates the defendant violates that defendants right to confront witnesses even if a limiting instruction is given 2: holding defendant had right to confront analyst who certified bloodalcohol report 3: holding that the defendant conceded the accuracy of his prior convictions in his psi report by failing to object to the report 4: holding that the defendants right of confrontation was not abridged where an agent discarded a handwritten draft of a report after the report had been typed


Input: shows that he attempted to prevent her from transferring. The evidence shows that Captain Baldwin refused to allow Appellee to review the memorandum explaining her denial to participate in the sign-up. Had Captain Baldwin allowed Appellee to do so, she might have been able to resign her current position and participate in the sign-up. The manner in which Captain Baldwin prevented Appellee’s transfer left the reasonable impression with Appellee that Captain Baldwin would not allow her to transfer to a different unit. Appellant acknowledges that one factor that can go to prove a constructive discharge is when the employer badgers, harasses, or humiliates an employee in order to encourage the employee’s resignation. Barrow v. New Orleans Steamship Ass’n, 10 F.3d 292, 297 (5th Cir.1994) (<HOLDING>). The evidence shows that Captain Baldwin knew Holdings: 0: holding that in order to sustain an action for constructive discharge the plaintiff must show that the conduct resulting in the resignation violated a virginia public policy embodied in an existing statute 1: recognizing constructive discharge where employer rather than acting directly deliberately makes employees working conditions so intolerable that a reasonable employee would be forced into involuntary resignation 2: holding that there are seven factors a fact finder looks at to determine whether a constructive discharge occurred one of which is badgering harassment or humiliation by the employer calculated to encourage the employees resignation 3: holding that a constructive discharge would constitute a tangible employment action and prevent the employer from utilizing the affirmative defense to vicarious employer liability for sexual harassment 4: holding that the mere fact of discrimination sans aggravating factors would not sustain a constructive discharge action


Input: of law are reviewed de novo. Andreu ex rel. Andreu v. Sec’y of Health & Human Servs., 569 F.3d 1367, 1373 (Fed. Cir. 2009). The special master’s findings of fact are reviewed for clear error. Id., see also Broekel-schen v. Sec’y of Health & Human Servs., 618 F.3d 1339, 1345 (Fed. Cir. 2010) (“We uphold the special master’s findings of fact unless they are arbitrary or capricious.”) (citation omitted). In addition, a special master’s findings regarding the probative value of the evidence and the credibility of witnesses will not be disturbed so long as they are “supported by substantial evidence.” Doe v. Sec’y of Health & Human Servs., 601 F.3d 1349, 1355 (Fed. Cir. 2010) (citation omitted); see also Burns v. Sec’y of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (<HOLDING>). This “level of deference is especially apt in Holdings: 0: holding that the jury is the judge of the weight and credibility given to witness testimony 1: holding that the decision of whether to accord greater weight to contemporaneous medical records or later given testimony is uniquely within the purview of the special master 2: holding that the weight and credibility to be given to the opinions of expert witnesses is uniquely within the province of the fact finder  in this instance the trial court citation omitted 3: holding that reviewing court should accord deference to special masters decision and may not substitute its own judgment for that of the special master 4: holding the question of whether an accomplice is credible and the weight to be given to the testimony are issues for the jury to determine


Input: the theft to the police. The BIA determined that Cervantes had failed to establish past persecution based on his membership in a particular social group. Cervantes has failed to brief sufficiently that he was persecuted on the basis of his membership in a particular social group. Pursuant to Rule 28(a)(8)(A) of the Federal Rules of Appellate Procedure, an appellant’s argument must contain the reasons for the requested relief with citation to the authorities, statutes, and parts of the record on which he relies. Cervantes’s brief fails to meet this standard, as it contains only speculative and conclusional assertions relating to past persecution; he makes no argument relating to his membership in a particular social group. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir.2003) (<HOLDING>). Furthermore, Cervantes’s conclusional Holdings: 0: holding issues not adequately briefed on appeal are abandoned 1: holding that issues not briefed on appeal are deemed abandoned 2: holding that issues not briefed are deemed abandoned 3: recognizing that arguments not briefed on appeal are waived 4: holding that arguments not briefed are abandoned


Input: the two parties, and whether the nonsignatory re 441 (7th Cir.2012) (reasoning that “[w]ere it not for judicial willingness in appropriate circumstances to enforce forum selection clauses against [nonparties], such clauses often could easily be evaded”). Skóld alleges that S.A. is the owner of Inc., the successor-in-interest to Col-lagenex (the original signatory). Compl. ¶ 8. He also alleges that S.A. has received a direct benefit from the agreement: according to the Complaint, S.A. has “taken the fruits of the Skóld-Collagenex contract — the trademark and related goodwill associated with the Restoraderm® name— and used those assets in the marketing and sale of its Cetaphil® products.” PL’s S.A. Opp’n at 8. See Synthes, Inc. v. Emerge Med., Inc., 887 F.Supp.2d 598, 607 (E.D.Pa.2012) (<HOLDING>). He further alleges that S.A. has “registered Holdings: 0: recognizing that a forum selection clause also applies to a nonsignatory third party where the third partys conduct is closely related to the contractual relationship or the contractual dispute and where the third party enjoys financial benefit from the contract 1: holding that a third party has authority to consent to a search if the third party is a coinhabitant 2: holding that sovereign immunity also applies to cross claims and third party claims 3: holding defendant assumed risk that third party would consent to search of storage locker where defendant instructed third party to rent locker under third partys name and allowed third party to keep possession of lease papers and to occasionally retain the keys 4: holding no right to recover for economic loss resulting from defendants injury to a third party with whom plaintiff has contractual business relationship


Input: the Commission to divide Newark and Jersey City into no more than two districts each, and could not be ignored unless it would have been impossible to comply with both federal and state requirements. See Scrimminger, supra, 60 N.J. at 489, 291 A.2d at 137-38. Although I acknowledge that the provision has been breached in practice in the past, without objection from either political party, it is this Court’s duty when presented squarely with the question of the provision’s enforceability to answer that legal question of constitutional significance cognizant of, but not foreclosed by, what went before. The unambiguous language is entitled to enforcement by this Court unless there is a contradictory requirement of higher law. See, e.g., Stephenson v. Bartlett, 582 S.E.2d 247 (N.C.2003) (<HOLDING>) challengers of redistricting plan proved that Holdings: 0: recognizing that a redistricting plan can be driven at least to some extent by partisan interests 1: holding courts attempt to recognize actual jury verdict was improper in wake of landgraf but affirming judgment on basis of courts own findings of fact and conclusions of law 2: recognizing frequent use of respect for municipal boundaries as criteria in evaluating redistricting plan 3: holding that state appropriation to ports authority violated constitutional prohibition against state debt and other constitutional provisions 4: holding that redistricting plan violated state constitutional mandate and thus affirming trial courts findings that 1