Input: it was “of such a fundamental nature as to render the proceeding itself irregular and invalid.” Chapel v. United States, 21 M.J. 687, 689 (A.C.M.R.1985)(citing United States v. Morgan, 346 U.S. 502, 505-13, 74 S.Ct. 247, 98 L.Ed. 248 (1954)). The petitioner now seeks the issuance of a writ of error coram nobis on the grounds that he was denied effective assistance of appellate counsel during our initial review of his ease. He alleges that his appellate counsel was ineffective because his counsel never contacted him. Applying the standard established in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) to this case, we can test such a claim for prejudice. United States v. Curtis, 44 M.J. 106, 164 (1996); cf. United States v. Howard, 47 M.J. 104 (1997)(<HOLDING>). The appellant argues that he was prejudiced Holdings: 0: holding that defendants failure to obtain counsel despite opportunities to do so implied a waiver of counsel 1: holding that an invocation of the advice of counsel defense waives the attorneyclient privilege 2: holding that the failure of defense counsel to call a corroborating witness resulted in prejudice to the defendant 3: holding that failure of substitute defense counsel to establish attorneyclient relationship with accused before responding to staff judge advocates recommendation must be tested for prejudice to obtain relief 4: holding that there is no right to a meaningful attorneyclient relationship


Input: seize ammunition boxes that contained linked ammunition rounds or large-capacity magazines. See Doc. 63, Ex. I (authorizing search for “a large capacity feeding device that consists of ammunition, linked together by belt and links”). Based on his testimony that the green ammunition box was empty, Ex. C at 157, Plaintiffs contention seems to be that the box was outside the scope of the warrant because it did not contain any ammunition or magazines, though nowhere does he clearly articulate such an argument. Regardless of whether a reasonable juror would credit such a “hyper-technical” interpretation of the warrant, it is also the case that the “plain view” exception allowed the seizure of the ammunition box as probative evidence. Cf. Walczyk v. Rio, 496 F.3d 139, 160 n. 21 (2d Cir.2007) (<HOLDING>); United States v. Cooper, 19 F.3d 1154, 1163 Holdings: 0: holding warrant was overbroad when probable cause existed to search for a pistol but warrant permitted search and seizure of all firearms and ammunition 1: holding that there was no fourth amendment seizure where delivery of package was not delayed because it is the extent of the interference with the defendants possessory interest in the property that determines whether a seizure has occurred 2: holding seizure of evidence in plain view reasonable under fourth amendment 3: holding that a seizure was lawful under the plain view doctrine where there was probable cause to associate the property with criminal activity 4: holding that seizure of ammunition gun clips and related firearm paraphernalia was permitted under plainview doctrine where warrant simply authorized seizure of firearms


Input: the trial court ultimately awarded Landlord some $56,000.00 in attorney’s fees for the eviction proceedings. Pool and Spa has separately appealed that judgment to this Court in case number 3D 16-840. We express no opinion as to the merits of that appeal. 4 . While not important to our disposition of this cáse, we note that, in the negligence count of Landlord’s complaint, Landlord does, indeed, assert entitlement to fees by incorporating the fee entitlement paragraph found in the general allegations of the complaint. 5 . The 2012 version of rule 1.442(c), governing the form and content of proposals, required proposals to "identify the claim or claims the proposal is attempting to resolve.” Fla. R. Civ. P. 1.442(c)(2)(B). 6 . See Lyons v. Chamoun, 96 So.3d 456, 458 (Fla. 4th DCA 2012) (<HOLDING>); but see Russell Post Props., Inc. v. Leaders Holdings: 0: holding merely that the evidence was sufficient to support the award of attorneys fees 1: holding sanctions order was too general to support award 2: holding a defense based on a contractual waiver and release of liability did not permit the award of attorneys fees in a negligence action 3: holding that a proposal for settlement that provided plaintiff execute a full release but did not attach release to its proposal was too ambiguous to support an award of attorneys fees 4: holding that an award of attorneys fees under supreme court rule 38 precursor to rule 222 did not preempt an award of attorneys fees to which one is otherwise entitled and thus appellant could seek an award of attorneys fees pursuant to section 1577300 which permits an award of fees for a party prevailing in an action against a state agency


Input: this category. Plaintiffs also present a new claim about SGI’s first quarter shortfall. Plaintiffs have pushed the start of the class period back from October 19, 1995, to September 13, 1995, and now contend that defendants knew of the problems described above early enough that they should have disclosed them prior to announcing the first quarter shortfall in October. Plaintiffs concede, however, that SGI’s first quarter results were “at the low end of expectations.” (FAC ¶ 8.) The eompa ny’s first quarter revenues of $595 million were only five percent below market expectations of forty to forty-five percent growth (revenues in the range of $628-650 million). This shortfall is immaterial as a matter of law. See In re Convergent Techs. Secs. Litig., 948 F.2d 507, 514 (9th Cir.1991) (<HOLDING>). For this reason, plaintiffs claims regarding Holdings: 0: holding that revenues ten percent below target are not actionable 1: holding that an actionable  20a claim must be preceded by an actionable primary violation under  10b 2: holding that arguments not raised below are waived for appeal 3: holding that   1252d1 bars the consideration of bases for relief that were not raised below and of general issues that were not raised below but not of specific subsidiary legal arguments or arguments by extension that were not made below 4: holding that argument offered in defense of decision below had been waived when not raised below


Input: review on this issue. Or if a new trial is necessary, it may be granted by the trial court without subjecting both the litigants and the courts to the expense and delay inherent in appellate review. Third, appellate courts will be free to more expeditiously dispose of the issues properly preserved for appeal. Finally, the exception requirement will remove the advantage formerly enjoyed by the unprepared trial lawyer who looked to the appellate court to compensate for his trial omissions. Id. at 116-17 (footnotes and citations omitted). This Court subsequently expanded the rule of Dilliplaine to apply to situations where an objection was made timely at trial but the remedy sought on appeal was not requested of the trial judge. See Tagnani v. Lew, 493 Pa. 371, 426 A.2d 595, 597 (1981) (<HOLDING>). This Court has also applied the Holdings: 0: holding that claims not raised in a timely postconviction motion are waived 1: holding that issues not raised in the trial court may not be raised later on appeal 2: holding that an issue not raised in the trial court cannot be raised for the first time on appeal 3: holding no legitimate basis for distinction may be found between the situation where the claim is not timely raised and where the remedy sought was not timely pursued 4: holding that heirs at law of testatrix were not necessary parties to action where trust fails cy pres is inapplicable and the will contained a residuary clause and finding no basis to distinguish between the situation where the trust does or does not become operative


Input: of the provision to his situation. This is in part due to judicial economy, and in part due to the need for a well developed record including appropriate findings of fact in order for a court to decide whether a particular provision had been applied to specific facts. Federal Trade Commission v. Standard Oil Co. of California, 449 U.S. [232], 239-245, 101 S.Ct. [488], 493-496, 66 L.Ed.2d 416. Id. at 488. Courts have applied this general rule when dealing with arbitration under 29 U.S.C. § 1401. See Terson Company, Inc. v. Bakery Drivers and Salesmen Local 194, 739 F.2d 118, 121 (3d Cir.1984) (The basis of Terson’s as applied challenge is not apparent from the published decision.); Republic Industries, Inc. v. Central Pennsylvania Teamsters Pension Fund, 693 F.2d 290, 296 (3d Cir.1982) (<HOLDING>); See also, Republic Industries, Inc. v. Holdings: 0: holding that in deciding on a facial constitutional challenge it is improper to consider only limited hypothetical applications 1: recognizing that courts should exercise judicial restraint in a facial challenge 2: holding that exhaustion of arbitration procedure is not necessary before the district court could consider a facial constitutional challenge 3: holding that taxpayer was still required to go through tax refund procedure despite facial constitutional challenge to state intangibles tax 4: holding a new constitutional challenge not raised in district court was not properly before court of appeals


Input: number removed, obliterated, or altered and has, at any time, been shipped or transported in interstate or foreign commerce.” 18 U.S.C. § 922(k). The Court finds defendant’s arguments to be unavailing for the following reasons. First, as defendant admits, the First Circuit Court of Appeals has previously held that “§ 922 is a constitutional exercise of Congress’s Commerce Clause powers.” United States v. Teleguz, 492 F.3d 80, 86-87 (1st Cir.2007); see also United States v. Diaz-Martinez, 71 F.3d 946, 953 (1st Cir.1995). The Teleguz decision, decided in the aftermath of three Supreme Court cases that defendant has referenced in his motion, upheld section 922(k) against similar constitutional challenges. Cf. United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (<HOLDING>); Jones v. United States, 529 U.S. 848, 120 Holdings: 0: holding that gunfree school zones act of 1990 which proscribed possession of a firearm within 1000 feet of a school exceeded congressional authority under commerce clause because it reached conduct that did not substantially affect or have a meaningful connection with interstate commerce 1: holding the limitations to congresss commerce clause authority recognized in lopez have no effect on the establishment of the interstate commerce element of the hobbs act 2: holding that statute which prohibited gun possession near a school zone exceeded congresss authority under the commerce clause because the statute did not regulate activity that had a substantial effect on interstate commerce 3: holding that housing discrimination has a substantial effect on interstate commerce 4: holding that the gunfree school zone act exceeds congresss authority to regulate commerce


Input: shows that Koch did not render services to “another” under its vetting program, the purpose of which was an internal determination whether a vessel should be taken under charter. Brown’s deposition testimony described the vetting of the Marine Atlantic and made clear that during it no inspection of the vessel was done as part of the analysis. Brown Dep. Ex. E at pp. 38-43. Furthermore, Koch emphasizes, Saudi fails to cite a single case in which a time charterer of a vessel was held liable based on § 324A. All cases cited by Saudi are distinguishable from this one, Koch urges, and are not decided under general maritime law; he discusses two in detail: United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 821, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984)(<HOLDING>); and Merklin v. United States, 788 F.2d 172 Holdings: 0: holding that the government cannot waive or forfeit an argument that the discretionary function exception to the federal tort claims act ftca should apply 1: holding that the discretionary function exception to the federal tort claims act precluded tort actions based on the alleged negligence of the federal aviation administration in failing to check certain thing in the process of certificating the aircraft for use in commercial aviation 2: holding that the faas alleged negligence in failing to check certain specific items in the course of certificating a specific aircraft as part of a spotcheck program involved calculated risks but fell squarely within the discretionary function exception 3: holding that the contract claims of a passenger who was denied service for failing to produce identification were preempted because the carrier relied on its right under federal law to deny service and on its duty to follow a security directive from the federal aviation administration 4: holding that actions against the faa for its alleged negligence in certificating aircraft for use in commercial aviation are barred by the discretionary function exception of the federal tort claims act id at 821 104 sct 2755 because the faas decisions as to the manner of enforcing regulations is plainly a discretionary activity id at 819 21 104 sct 2755


Input: are split on the issue of whether claims under the Texas Insurance Code survive the decedent. See Launius v. Allstate Ins. Co., Civ. No. 3:06-CV-0579-B, 2007 WL 1135347, at *3 (N.D.Tex. April 17, 2007) (collecting Texas cases and noting disagreement on issue of survivability). As a named beneficiary of Mr. Kersh’s life insurance policy, however, Plaintiffs claim is direct; issues of assign-ability are inapposite. See Williams v. Certain Underwriters at Lloyd’s of London, 398 Fed.Appx. 44, 47 (5th Cir.2010) (citations omitted) (“A plaintiff has standing to sue under an insurance policy if the plaintiff is a named insured or an additional named insured or if the plaintiff is an intended third-party beneficiary of the policy.”); Mendoza v. Am. Nat. Ins. Co., 932 S.W.2d 605 (Tex.App.1996) (<HOLDING>). Accordingly, the Court rejects Defendants’ Holdings: 0: holding that an insurer who brought a declaratory judgment action and out of an abundance of caution named the injured party as an additional defendant 1 must have thought the injured party had some potential interest in the insurance policy and 2 had tacitly conceded the injured partys standing to appeal by not contesting the appeal on the ground of lack of standing 1: holding that insureds widow as beneficiary of life insurance policy had standing as an injured person under the insurance code 2: holding that an agent breaches its duty to use reasonable care and diligence in procuring insurance when it fails to provide an insurance policy that covers the contents of the insureds business as the insured had requested 3: holding that under minnesota law an insurance policy or provision not filed with the commissioner of insurance is unenforceable 4: holding change of beneficiary effective where city employee listed a new beneficiary for his group life insurance policy in an employee personal data form next to the words designated beneficiary even though this did not comply with the policy terms


Input: not, either explicitly or implicitly/ limit or abolish the power of the General Assembly in any other area where we have previously found its jurisdiction to be plenary,” see id. at 935-86, the separation of powers amendments reinforced the judiciary’s previously recognized plenary powers, including the power to regulate the practice of law. See State v. Germane, 971 A.2d 555, 590 (R.I.2009) (separation of powers doctrine prohibits “unwarranted legislative invasion of the judicial power”). Accordingly, this Court has the authority, as it has had since its inception, to promulgate and enforce rules of conduct and procedure for the regulation of attorneys, as well as to exercise necessary mea (same); Donatelli Building Co. v. Cranston Loan Co., 87 R.I. 293, 297, 140 A.2d 705, 707 (1958) (<HOLDING>); see also Taylor v. Illinois, 484 U.S. 400, Holdings: 0: recognizing the federal courts ability to impose inherent power sanctions on parties 1: recognizing the inherent power of courts to ensure an adversarial proceeding 2: recognizing courts inherent power to issue subpoenas 3: recognizing the inherent power of the courts to issue warrants 4: recognizing inherent power of courts of appeals


Input: and classifying contempt as a Class A felony is that it raises the issue of a potential Eighth Amendment challenge. Love, 449 F.3d at 1158 (Barkett, J., concurring). The concurrence in Love correctly noted that “where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.” Id., quoting Jones v. United States, 529 U.S. 848, 857, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000). The Court is mindful that it should always avoid a constitutionally questionable construction, because the presumption is that the laws as passed by Congress are constitutional. However, after careful reflection, the Court finds that the ta , 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (<HOLDING>) (brackets and quotation omitted). As the Holdings: 0: holding that sentence of mandatory twentyfive years followed by life on probation for aggravated molestation of a fouryearold child does not implicate categorical eighth amendment restriction under graham nor is it grossly disproportionate for particular crime 1: holding that the eighth amendment does not require strict proportionality between crime and sentence but forbids only extreme sentences that are grossly disproportionate to the crime 2: holding that stiffer penalties for cocaine base transactions are not grossly disproportionate to the severity of the offense and therefore do not violate eighth amendment 3: holding that the eighth amendment does not require comparative proportionality review by an appellate court 4: holding that although proportionality review is an additional safeguard against arbitrarily imposed death sentences neither precedent including gregg nor the eighth amendment mandates proportionality review in every case


Input: participation in airport ownership and operation in most other parts of the world”); Zane O. Gresham & Brian Busey, “Do As I Say and Not As I Do”—United States Behind in Airport Privatization, 17 Air. & Space Law. 12,' 13-14 (2002) (describing airport privatization internationally and experimentation with airport privatization in the United States). And, even domestically, Congress has enacted a “pilot program” for privatization of airports. See 49 U.S.C. § 47134. Moreover, the Supreme Court and other federal appellate courts have recognized the inherently competitive and commercial nature of airport operations. See Int’l Soc’y for Krishna Consciousness, 505 U S. at 682, 112 S.Ct. 2701; see also Four T’s, Inc. v. Little Rock Mun. Airport Comm’n, 108 F.3d 909, 912-13 (8th Cir. 1997) (<HOLDING>). Airports also compete against private modes Holdings: 0: holding in response to a commerce clause challenge that a city that operated an airport was acting as a participant in the market for airport rental car services 1: holding that owners of an airport failed to meet their burden of showing that their skydiving business was an accessory use to the airport 2: holding that one plaintiff bringing negligence and wantonness claim against car rental company for failing to remove rental car from stolen car list could not recover mental anguish damages because he was never at risk of physical harm but that fact question existed as to whether other plaintiff was at risk of physical harm when police pulled weapon on him 3: holding that the state of maryland was a participant in the market of purchasing junk car hulks through a bounty system 4: holding that the city of boston was acting as a market participant when it contracted for public works construction


Input: terms and conditions of his probation. The Court finds that Mr. Redman has not learned his lesson from his earlier period of incarceration. He continues to break the law by using these illegal controlled substances. The Court further finds Mr. Redman is a detriment to society and that it is in the best interest of the public that he be kept out of society. The Court finds the defendant to be a public menace who should not be on probation. Because nothing new had transpired in the period following the trial court’s ruling on the probation revocation petition, it stands to reason that there would be no additional findings of fact or legal rulings required, other than the granting or denial of the Rule 35 motion itself. See Syl. Pt. 4, in part, Head, 198 W.Va. at 299, 480 S.E.2d at 508 (<HOLDING>). In making its ruling of August 3, 2001, Holdings: 0: holding that the court may only consider the discrete acts that occurred within the appropriate time period 1: holding that the threeday grace period in fed rcivp 6e does not apply to motions for a new trial under fedrcivp 59 in part because the time period for filing those motions begins to run from entry of judgment 2: holding that when considering west virginia rules of criminal procedure 35b motions circuit courts generally should consider only those events that occur within the 120day filing period 3: holding that a forfeiture action is timely so long as at least an administrative action is filed within the 120day statutory period 4: holding that new rules of criminal procedural are generally not retroactive


Input: City as early as June 29, 2000. Nevertheless, Cedar Professional asserts that the one-year notice period in the Act, see Utah Code Ann. § 63-30-13, did not commence until it discovered facts to support a direct negligence claim against Cedar City. We disagree. ¶ 14 Cedar Professional was not entitled to wait until it knew all of the facts supporting its negligence claim against Cedar City. It is enough that Cedar Professional was “aware that the governmental entity’s action or inaction ha[d] resulted in some kind of harm to its interests.” Bank One Utah, N.A v. West Jordan City, 2002 UT App 271,¶ 12, 54 P.3d 135. Further, this is not a case where the claimant was unaware that the governmental entity had harmed its interest. See Vincent v. Salt Lake County, 583 P.2d 105, 107 (Utah 1978) (<HOLDING>). Whether Cedar City had hoped to conceal its Holdings: 0: holding that the oneyear limit under the act was tolled until the plaintiff learned despite the defendants contrary representations that the defendants storm drain was the cause of damage 1: holding where reasonable difference of opinion as to whether the defendants act was the or a proximate cause of the injury the matter is for the jury to decide 2: holding where the plaintiff presented evidence which demonstrates that the terms alleged by the defendants to be indefinite were in fact sufficiently well delineated to all parties the entry of judgment notwithstanding the verdict in favor of the defendants was inappropriate despite the fact that the defendants contested the plaintiffs evidence concerning the manner in which the relevant contractual language should be construed 3: holding that the statute of limitations did not commence  despite the filing of a prior complaint against another physician  until the defendants deposition made the plaintiff aware of the defendants involvement in the decedents death where the plaintiff failed to discover the defendants involvement because of the defendants misstatement concealment or fraud 4: holding that the date on which the plaintiff learned of the defendants denial of tenure not the date on which the plaintiff became unemployed was when the statute of limitations began to run


Input: attempted second-degree murder, a crime one step removed ft’om the necessarily lesser included offense of attempted manslaughter. Jones filed an appeal that was perfected on July 30, 2013. On April 8, 2010, the Florida Supreme Court determined that the standard jury instruction for manslaughter by act was incorrect CA 2005) (determining that appellant’s counsel’s failure to request supplemental briefing on a favorable appellate decision from another district court constituted ineffective assistance of counsel); McCann v. Moore, 763 So.2d 556, 556-57 (Fla. 4th DCA 2000) (finding that counsel had ample time to call favorable decision from another district to court’s attention, but failed to do so, so belated appeal granted); Ford v. Singletary, 689 So.2d 392, 392-93 (Fla. 3d DCA 1997) (<HOLDING>); Whatley v. State, 679 So.2d 1269, 1270 (Fla. Holdings: 0: holding that the strickland test applies to claims  that counsel was constitutionally ineffective for failing to file a notice of appeal 1: holding counsel ineffective for failing to investigate and present mitigating evidence 2: holding that counsel was ineffective for failing to bring new supreme court decision to courts attention when it expressly applied to pipeline eases 3: holding trial counsel was not ineffective for failing to pursue a meritless issue 4: holding that where trial counsel was not ineffective appellate counsel was not ineffective for failing to raise claim of ineffectiveness of trial counsel


Input: his organizational role at all. Instead, it concluded that the enhancement should not apply because Washington did not present a recidivism risk or danger to the public, two of the factors the Sentencing Commission has indicated underlie the role enhancement. See § 3B1.1 cmt. background. Al though sentencing courts may draw upon background commentary to inform their analysis, they must begin with the plain language of the guidelines. See United States v. Cruz-Gramajo, 570 F.3d 1162, 1167, 1168 n. 4 (9th Cir.2009). As with the enhancement for obstruction of justice, if the court determines that the factual predicate for the enhancement under § 3B1.1 has been established, application of the enhancement is mandatory. See, e.g., United States v. Ancheta, 38 F.3d 1114, 1118 (9th Cir.1994) (<HOLDING>). When imposing a sentence, the court may, of Holdings: 0: holding that a defendant met the third prong of plain error analysis demonstrating prejudice resulting from a booker error where the sentencing judge made several statements indicating the mandatory guideline sentence was very very severe and sentenced the defendant at the low end of the guideline range 1: holding that where the commentary to a guideline is at odds with another provision of the guidelines the guideline prevails 2: holding that once a guideline provisions criteria have been met the enhancement is mandatory not discretionary 3: holding that the statute is mandatory 4: holding that because it is not strictly necessary under the statute for a victim to fear death the guideline enhancement is not coterminous with the basic offense conduct


Input: power to regulate the channels and instrumentalities of commerce includes the power to prohibit their use for harmful purposes, even if the targeted harm itself occurs outside the flow of commerce and is purely local in nature.”), cert. denied, 546 U.S. 829, 126 S.Ct. 368, 163 L.Ed.2d 77 (2005); United States v. Hornaday, 392 F.3d 1306, 1311 (11th Cir.2004)("Congress clearly has the power to regulate the internet, as it does other instrumentalities and channels of interstate commerce, and to prohibit its use for harmful or immoral purposes regardless of whether those purposes would have a primarily intrastate impact.”), cert. denied, 545 U.S. 1134, 125 S.Ct. 2951, 162 L.Ed.2d 877 (2005); see also United States v. Maxwell, 446 F.3d 1210, 1217-18 (11th Cir.2006) (emphasis added) Holdings: 0: holding it is within congresss authority to regulate all intrastate possession of child pornography not just that which has traveled in interstate commerce or has been produced using materials that have traveled in interstate commerce applying gonzales v raich 545 us 1 125 sct 2195 162 led2d 1 2005 1: recognizing that congress had the power to regulate boxcars that traveled exclusively intrastate because of their inherent mobility and connection to interstate commerce it is no objection to such an exertion of commerce clause power that the dangers intended to be avoided arise in whole or in part out of matters connected with intrastate commerce 2: holding that statute which prohibited gun possession near a school zone exceeded congresss authority under the commerce clause because the statute did not regulate activity that had a substantial effect on interstate commerce 3: recognizing scarborough holding that commerce nexus satisfied upon showing that possessed firearm had traveled at some time in interstate commerce 4: holding that the feloninpossessionofafirearm statute only requires a showing that the firearm at one time traveled through interstate commerce


Input: “An operator emerging from an alley, driveway, or building in a business or residence district shall ... stop the vehicle before moving on a sidewalk or the sidewalk area extending across an alley or driveway.” Tex. Transp. Code Ann. § 545.256(1) (Vernon 1999). Though the testimony reflected that there was no sidewalk crossing in front of the entrance or exit from the alley to the street, Ferguson testified that there was a curb that was “broken by the alleyway so that cars” could enter and exit the alley or pedestrians could walk across. Though Throneberry refuted the contention, the State argued that the “improved area [where] ... pedestrians walk” constituted a “sidewalk area” pursuant to section 545.256(1). The jury could reasonably have agreed with the S -Dallas 1992, no pet.) (<HOLDING>); Harris v. State, 713 S.W.2d 773, 775 Holdings: 0: holding that accelerating a car so that it screeched and fishtailed a bit was sufficient for offense 1: holding that where evidence was sufficient for attempted murder it was necessarily sufficient for aggravated assault which is a lesser included offense 2: holding that accelerating a car so that its tires spun when a light turned from red to green was sufficient 3: holding that there was probable cause for arrest where officers knew defendants had recently been with suspected drug dealer officers saw defendants car being maneuvered so as to indicate that surveillance had been detected and when officers approached car defendant attempted to place package under car and then pulled the package back inside the car and closed and locked the car door 4: holding that accelerating a car so that it threw gravel on police car was enough to satisfy exhibition of speed violation


Input: F.3d at 204. The categorical approach focuses on “the intrinsic nature of the offense rather than on the factual circumstances surrounding any particular violation.” Id. at 204 (“[T]he singular circumstances of an individual petitioner’s crimes should not be considered, and only the minimum criminal conduct necessary to sustain a conviction under a given statute is relevant[.]” (quoting Michel v. INS, 206 F.3d 253, 270 (2d Cir.2000) (Calabresi, J., dissenting)) (internal quotation marks omitted)). Where, however, a criminal statute encompasses diverse classes of criminal acts — some of which would categorically be grounds for removal and others of which would not — we have held that such statutes can be considered “divisible” statutes. See Kuhali v. Reno, 266 F.3d 93, 106 (2d Cir.2001) (<HOLDING>); Sui, 250 F.3d at 118 (holding that a statute Holdings: 0: holding that the language of the statute and the courts duty to apply the statute as written requires the court to interpret the statute to apply when the prisoner is sentenced without regard to the institution where the prisoner is incarcerated after the sentencing 1: holding that a federal statute prohibiting the export of certain classes of firearms and ammunition was divisible because violation of the statute with regard to firearms would be a removable offense while violation of the statute with regard to ammunition might not be 2: holding that without such a showing the government may only charge the defendant with one violation of  922g1  regardless of the actual quantity of firearms involved 3: holding that the title of the statute did not limit the reach of the statute 4: holding that under rico plaintiff must prove an injury because of violation of statute


Input: the police, and (3) the trial court improperly denied the defendant’s request to poll the jury upon return of the verdict. We affirm the judgment of the trial court. The jury reasonably could have found the following facts. The victim, who at the time of the incidents giving rise to these convictions was twelve years old, is a female with mild mental retardation. In 1993, the victim was introduced to the defendant, who at that time was twenty-six years old. Sometime in early September, 1993, the victim accepted an automobile ride from the defendant. The defendant drove the victim to a sparsely furnished vacant apartment in Waterbury and, over the victim’s protestations, had sexual intercourse with her. The defenda A.2d 1078 (1995), cert. denied, 237 Conn. 921, 676 A.2d 1376 (1996) (<HOLDING>). Because the constancy of accusation doctrine Holdings: 0: holding that doctrine does not violate equal protection 1: holding that doctrine does not violate due process 2: holding that the defendant bears the burden of proof and that such a disposition does not violate the due process clause 3: holding that negligent inaction by a jail officer does not violate due process 4: holding that doctrine does not violate right of confrontation


Input: the reasons described above, Shkreli has not established past persecution and therefore his claim for humanitarian asylum also fails. E. Withholding of Removal and Protection Under the CAT The IJ also denied Shkreli’s claims for withholding of removal and protection under the CAT. Shkreli, however, has not challenged these portions of the IJ’s decision before the BIA or this Court. We therefore lack jurisdiction to consider whether the IJ erred as to either issue since Shkreli did not exhaust his administrative remedies by presenting them to the BIA. See 8 U.S.C. § 1252(d)(1); Liti, 411 F. 3d at 641. Further, even if they were not jurisdictionally barred, Shkreli’s failure to raise them before this Court constitutes a waiver. United States v. Layne, 192 F.3d 556, 566-67 (6th Cir.1999) (<HOLDING>). III. CONCLUSION For the foregoing reasons, we Holdings: 0: holding that arguments not raised in district court are waived 1: holding that arguments not raised by a party in its open ing brief are deemed waived 2: holding that arguments that are not raised or that are not accompanied by factual and legal support are deemed waived 3: holding that arguments not raised before the trial court are waived 4: holding that arguments not raised below are waived for appeal


Input: inappropriate in a pre-enforcement challenge to an abortion regulation. As this court has recognized, the Supreme Court has flexibly applied justiciability doctrines in abortion cases. See Margaret S. v. Edwards, 794 F.2d 994, 997 (5th Cir.1986) (noting that “the Supreme Court has visibly relaxed its traditional standing principles in deciding abortion cases” (citing Roe, 410 U.S. at 123-29, 93 S.Ct. 705; Doe, 410 U.S. at 187-89, 93 S.Ct. 739)); accord Okpalobi, 244 F.3d at 427-28; see also, e.g., Singleton v. Wulff, 428 U.S. 106, 118, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (“conclud[ing] that it generally is appropriate to allow a physician to assert the rights of women patients as against governmental interference with the abortion decision”); Roe, 410 U.S. at 125, 93 S.Ct. 705 (<HOLDING>); cf. Sabri, 541 U.S. at 609-10, 124 S.Ct. 1941 Holdings: 0: holding that challenge to expired fiveyear npdes permits originally issued eight years earlier was capable of repetition yet evading review 1: holding ease not moot when challenged administrative order expired because icc proceedings are continuing and their consideration ought not be defeated by short term orders capable of repetition yet evading review 2: holding that a party may not invoke the capable of repetition yet evading review exception where its failure to obtain prompt relief has prevented judicial review 3: holding that we have no difficulty concluding that challenge to expired fiveyear npdes permit was capable of repetition yet evading review 4: recognizing a mootness exception for abortion litigation because pregnancy  truly could be capable of repetition yet evading review


Input: the Notice procedure purports to set the rights and obligations attendant to submitting a refund claim. The legal consequences flowing therefrom are substantial: no less than the loss of the right to file a refund suit in court should a claimant fail to abide by the Notice procedure. See I.R.C. § 7422(a) (precluding a refund suit where taxpayer has not filed a prior refund claim with the IRS consistent with IRS regulations). As a back-up argument, the defendant proposes that “an adequate remedy already exists under the time-honored, tax-refund-suit procedure.” Def.’s Mot. at 15. The cases cited for this proposition are inapposite because they discuss the Anti-Injunction Act rather than the APA. See South Carolina v. Regan, 465 U.S. 367, 374-76, 104 S.Ct. 1107, 79 L.Ed.2d 372 (1984) (<HOLDING>); Bob Jones Univ. v. Simon, 416 U.S. 725, 746, Holdings: 0: holding that the statutory bar set by the antiinjunction act cannot be avoiding by directing the injunction solely to a party as distinguished from the state court 1: holding federal injunction countermanding a state court injunction did not violate antiinjunction act 2: holding the antiinjunction act  does not bar an injunction of a state court proceeding which purports to exercise jurisdiction over a removed case 3: holding the antiinjunction provision inapplicable to a states challenge to the constitutionality of a federal tax exemption provision  103a of the code which exempts from a taxpayers gross income the interest earned on the obligations of any state as amended by  310b1 of the tax equity and fiscal responsibility act of 1982 96 stat 596 because the antiinjunction provision was not intended to bar an action where    congress has not provided the plaintiff with an alternative legal way to challenge the validity of a tax 4: holding that the antiinjunction act did not bar south carolinas intergovernmental immunity challenge against tax equity and fiscal responsibility act of 1982


Input: in the antitrust sense of the word”); Carl Schenck, A.G. v. Nortron Corp., 713 F.2d 782, n. 3 (Fed.Cir.1983) (“It is but an obfuscation to refer to a patent as 'the patent monopoly’ ... ”); Nick-ola v. Peterson, 580 F.2d 898, n. 25 (6th Cir.1978) (“The patent right, solely that of excluding others, is the fundamental element of all human rights called ‘property.’ The statutory, and therefore proper, characterization is not 'patent monopoly,’ but ‘patent property.’ ”)). 3 . See also Ernest Bainbridge Lipscomb III, Lipscomb’s Walker on Patents, Licenses § 20:30, p. 121 (3d ed. 1987) (a licensee may challenge the validity of a patent but royalties must be paid to retain the license, citing Wamer-Jenkinson ); cf. Foster v. Hallco Manufacturing Co., Inc., 947 F.2d 469 (Fed.Cir.1991) (<HOLDING>): Rochelle Cooper Dreyfus, Dethroning Lear: Holdings: 0: holding that lear does not abrogate general principles of res judicata or the res judicata effect of a consent decree regarding patent validity 1: holding that res judicata applies when the question of jurisdiction is raised and determined 2: holding that res judicata applies in deportation proceedings 3: holding that res judicata did not apply where a trial courts order was not a final judgment 4: holding that the doctrine of res judicata applies to deportation proceedings


Input: Del. Oct. 16, 2009), aff'd, 418 Fed.Appx. 142 (3d Cir. 2011), cert. denied, 564 U.S. 1026, 131 S.Ct. 3038, 180 L.Ed.2d 858 (2011). The Moore court stated in part, Moore did take the stand and respond to questions from his attorney after his requests to proceed pro se. But by contrast with McKaskle, no presumption of acquiescence attaches to that representation by counsel, because Moore was never permitted to proceed pro se. Without having ruled on Moore’s two requests for self-representation, the trial judge told Moore’s attorney to call the next witness and Moore was called to testify. It would be wholly unreasonable to require Moore, in order to preserve his requests to proceed pro se, to refuse the trial L.Ed.2d 274 (1990); Beverly v. State, 349 Md. 106, 707 A,2d 91, 97-98 (1998) (<HOLDING>). In sum, a "clear choice between two Holdings: 0: holding defendant whose plea of guilty was improperly denied by trial court did not waive issue on appeal after conviction because he was faced with coercive choice 1: holding that a highly relevant factor concerning whether there was a breach of duty to consult about appeal is whether the conviction follows a trial or a guilty plea both because a guilty plea reduces the seope of potentially appealable issues and because such a plea may indicate that the defendant seeks an end to judicial proceedings 2: holding that a defendants guilty plea was unconditional where the guilty plea was not in writing and the government did not consent to it being conditional 3: holding that the defendants guilty plea was valid where the district court carefully questioned the defendant about whether he understood the consequences of his guilty plea 4: holding that since the statute does not provide for appeal of issues related to a motion to dismiss after entry of a guilty plea the defendant who raised only that issue had no right to appeal


Input: Mercer v. Dillon, 19 USCMA 264, 41 CMR 264. Since Schlomann’s convictions became final in 1967 this limited retroactivity does not benefit him. 4 . The opinion of the Court of Military Appeals, United States v. Schlomann, supra, and that of the Board of Review do not discuss these issues. The record and information before us do not otherwise show whether these issues were raised prior to these habeas proceedings at a state cannot deny a jury trial in serious criminal cases announced in Duncan v. Louisiana, 391 U.S. 194, 88 S.Ct. 1444, 20 L.Ed.2d 491 and the rule that there is a right to a jury trial for serious contempts announced in Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522, not to be retroactive) ; Stovall v. Denno, 388 U.S. 293, 89 S.Ct. 1967, 18 L.Ed.2d 1199 (<HOLDING>) ; Johnson v. New Jersey, supra (holding the Holdings: 0: holding the right to assistance of counsel as announced in gideon v wainwright 372 us 335 83 sct 792 9 led2d 799 to be retroactive 1: holding that although walker v birmingham 388 us 307 87 sct 1824 18 led2d 1210 1967 upheld a rule that barred collateral challenges of contempt citations appellant nevertheless could challenge his contempt citation on habeas because california elected not to adopt a collateral bar rule 2: holding the rule that an accused has a right to counsel at any critical confrontation announced in united states v wade 388 us 218 87 sct 1926 18 led2d 1149 and gilbert v california 388 us 263 87 sct 1951 18 led2d 1178 not to be retroactive 3: holding that the supreme courts interpretation of 18 usc  924c1 in bailey v united states 516 us 137 116 sct 501 133 led2d 472 1995 has retroactive application to cases on collateral review 4: holding that counsel must be appointed to indigents for purposes of appeal as announced in douglas v california 372 us 353 83 sct 814 9 led2d 811 to be retroactive


Input: Defendant contends that Plaintiff has offered no basis for recognizing a federal common law claim under these circumstances and requests Plaintiffs claim be dismissed. Plaintiff responds that the Sixth Circuit has expressly recognized “a common law cause of action in restitution to prevent unjust enrichment” in the context of ERISA pension benefit plans. Whitworth Bros. Storage Co. v. Cent. States Se. & Sw. Areas Pension Fund, 982 F.2d 1006, 1018 (6th Cir.1993). The Complaint alleges that by redirecting the divisible surplus under the Contracts from the Plan to itself, Defendant breached trust and fiduciary principles, and enriched itself at the Plan’s expense. Compl. ¶¶ 1, 109-16; see Provident Life & Accid. Ins. Co. v. Waller, 906 F.2d 985, 993-94 (4th Cir.1990) (<HOLDING>). ERISA also incorporates the law of trusts Holdings: 0: holding that equitable restitution is available but that legal restitution is not 1: holding that privilege applies in similar factual circumstances 2: holding that no discovery is permissible in similar circumstances 3: holding that plaintiff in erisa action was entitled to restitution under similar circumstances 4: holding so under circumstances similar to the present ones


Input: and as explicitly set forth in the statute itself, the personnel policy exception is not applicable in those situations where the governmental defendant owes an independent legal duty to the injured party. Likewise, our Supreme Court has held that “the discretionary function exception [under K.S.A. 75-6104(e)] is not applicable in those situations where a legal duty exists, either by case law or by statute, which the governmental agency must follow.” Barrett v. U.S.D. No. 259, 272 Kan. 250, 263, 32 P.3d 1156 (2001); see Nero v. Kansas State University, 253 Kan. 567, 585, 861 P.2d 768 (1993) (“If there is a clearly defined mandatory duty or guideline, the discretionary function exception is not applicable.”); see also Cansler v. State, 234 Kan. 554, 570, 675 P.2d 57 (1984) (<HOLDING>). Notably, we already have determined that Holdings: 0: holding that the fourth amendment violation alleged by plaintiff also suffices to establish the breach of a duty of care under california law 1: holding that plaintiffs did not plead fraud where the complaint only alleged a breach of fiduciary duty 2: holding that the law imposes on every person who enters upon an active course of conduct the positive duty to exercise ordinary care to protect others from harm and calls a violation of that duty negligence  that a complete binding contract between the parties is not a prerequisite to a duty to use due care in ones actions     and that architects may be held liable for a breach of the duty of care and breach of contract that results in foreseeable injury economic or otherwise 3: holding that after jury findings of dual breach unchallenged finding that defendants breach was not excused based on prior material breach of plaintiff constituted implicit finding that there was no material breach by plaintiff 4: holding that discretionary immunity does not apply where plaintiff alleged facts that if true constituted a breach of states duty of reasonable care


Input: initial BVA decision is abated by that motion for reconsideration ... [and a] new 120-day period begins to run on the date on which the BVA mails to the claimant notice of its denial of the motion to reconsider”. Rosier, supra. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) then held in Linville that 38 C.F.R. § 20.305(a) (1998), which establishes a postmark rule for the date of Department of Veterans Affairs (VA) receipt of certain written documents (including a presumption that the postmark date was “five days prior to the date of receipt of the document by” VA if “the postmark is not of record”), must be applied to the filing of a motion for reconsideration with the BVA. Linville, 165 F.3d at 1385-86, reversing Linville v. West, 11 Vet.App. 60 (1998 (en banc)) (<HOLDING>). In view of the foregoing, because the Holdings: 0: recognizing that equitable tolling doctrines may toll the time period for filing 1: holding that the charge was timely when filed within the statute of limitations period even though served after the period 2: holding that equitable estoppel and equitable tolling cannot apply to extend the 120day noa filing period set forth in 38 usc  7266a 3: holding that noa that was received after 120day noa period but that was postmarked within that period did not toll noa period 4: holding that a forfeiture action is timely so long as at least an administrative action is filed within the 120day statutory period


Input: knowingly and voluntarily waived his right to counsel. The case was based upon the sixth amendment right to assistance of counsel prior to being convicted and punished by imprisonment. -In Indiana, it is also a requirement that a defendant be found to have knowingly, intelligently, and voluntarily waived his right to assistance of counsel prior to proceeding pro se in a criminal trial See Dowell v. State (1990), Ind.App., 557 N.E.2d 1063. Post-conviction relief is not generally regarded as a criminal proceeding, however. Baum v. State (1989), Ind., 533 N.E.2d 1200. Our supreme court has stated: "The right to counsel in post-conviction proceedings is guaranteed by neither the Sixth Amendment of the United States Constitution nor art. 1, § 18 of the Constitution of Indiana." Id. at 1201 (<HOLDING>). See also Medlock v. State (1989), Ind.App., Holdings: 0: holding that ineffectiveness of postconviction counsel could establish cause to reopen judgment but ineffectiveness of postconviction appellate counsel could not 1: holding that a ground for relief not pled in a motion for postconviction relief is waived and cannot be raised on appeal 2: holding that misadvice of counsel as to the length of a sentence is a basis for postconviction relief if not refuted by the record 3: holding statute of limitations for filing petition for postconviction relief not tolled by general savings statute tolling limited to reasons enumerated in state postconviction relief act 4: holding the constitutional standards for judging the performance of counsel need not be employed at the postconviction relief level


Input: MT 316, ¶ 11, 324 Mont. 30, 101 P.3d 301. ¶21 We review a district court’s M. R. Civ. P. 56(f) ruling for an abuse of discretion. Rosenthal v. Co. of Madison, 2007 MT 277, ¶ 23, 339 Mont. 419, 170 P.3d 493. DISCUSSION ¶22 1. Whether the District Court erred in concluding as a matter of law that Bridgman’s FELA claims are barred by the applicable statute of limitations. ¶23 FELA requires an injured railroad employee to commence a claim for injury within three years from the date the cause of action accrued. 45 U.S.C. §56. The Act does not define when an injury accrues, but case law distinguishes the standard based upon whether the injury was an accident from a one-time occurrence or an occupational disease accumulating over time. See Urie v. Thompson, 337 U.S. 163, 69 S. Ct. 1018 (1949) (<HOLDING>). Claims based upon medical injury accrue when Holdings: 0: holding that claims which were not presented to the motion court cannot be raised for the first time on appeal 1: holding that claims raised by appellant for first time in motion for new trial were untimely and therefore waived 2: recognizing occupational disease claims under fela for the first time 3: recognizing the collateral order doctrine for the first time 4: holding that claims raised for the first time in an opposition to a motion for summary judgment are not properly before a court


Input: United States v. MMR Corp. 954 F.2d 1040, 1045 (5th Cir.1992). Therefore, the district court judge did not abuse his discretion in not recusing himself for alleged bias. See United States v. Anderson, 160 F.3d 231, 233 (5th Cir.1998). Because the appeal lacks arguable merit and is therefore frivolous, Cooper’s motion for leave to proceed IFP on appeal should be denied, and his appeal should be dismissed as frivolous. See Baugh, 117 F.3d at 202 n. 24; Howard, 707 F.2d at 220; 5th Cir. R. 42.2. IFP MOTION DENIED; APPEAL DISMISSED. * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. 1 . See Ballard v. Burton, 444 F.3d 391, 401 & n. 7 (5th Cir.2006) Holdings: 0: holding official comments to the code are persuasive but not controlling authority 1: holding that unpublished opinions are of persuasive value at best and not precedential 2: recognizing federal authority on standing to be persuasive 3: recognizing that unpublished decisions issued after january 1 1996 are not controlling precedent but may be considered persuasive authority 4: recognizing that although federal precedent was not binding it was persuasive authority


Input: the survivor of them shall not revoke or modify the will, the parties implicitly agree that the survivor of them will abide by the testamentary intent embodied in the joint will and not dispose of estate property in a manner which is contrary to that intent. Robison v. Graham, 799 P.2d 610 (Okla. 1990). In the present case, the joint will executed by decedent and her husband includes the material provisions of a contract to devise and a contract not to revoke. Specifically, the will provides that decedent and her husband understand and agree that the provisions of the will are binding upon each and upon the survivor. The consideration supporting the contract is the agreement of each to devise his or her respective estate according to the terms of the will. See Concordia College, supra (<HOLDING>). The controversy raised by the parties Holdings: 0: holding that promises made by the prosecution to a witness in exchange for that witness testimony relate directly to the credibility of the witness 1: holding that a remote tippee must know that original exchange was given in exchange for benefit 2: holding that exchange of mutual promises to devise is sufficient valid consideration 3: recognizing lack of consideration as an affirmative defense to a release that is valid on its face 4: holding that offer of atwill employment is valid consideration to support an arbitration agreement


Input: (a lesser included offense), and possession of a firearm during the commission of a crime of violence or dangerous offense. Trial Tr. 27 (Feb. 9, 2009 a.m.). It also instructed that self-defense could be a defense to the federal offense of possession of a firearm or ammunition by a person previously convicted of a felony, but only "if you find that the defendant came into possession of a firearm or ammunition during the actual exercise of actual self-defense.” Id. at 26. 2 . Purvis does not dispute the instruction that, ”[i]f you find that the defendant was the aggressor or if he provoked the conflict himself, he cannot rely upon the right of self-defense to justify his use of force.” Trial Tr. 28 (Feb. 9, 2009 a.m.). See generally Rorie v. United States, 882 A.2d 763, 775 (D.C.2005) (<HOLDING>); United States v. Grover, 485 F.2d 1039, 1042 Holdings: 0: holding that defendant may be entitled to selfdefense instruction even though he did not testify 1: holding that defendant was not entitled to entrapment instruction when there was insufficient evidence to support such an instruction 2: holding that this instruction is appropriately given when there is both evidence of selfdefense and evidence that the defendant provoked the aggression from which he was defending himself 3: holding that when both parties agree that the facts of the case entitled defendant to a selfdefense instruction failing to so instruct the jury was error 4: holding that both involuntary manslaughter and selfdefense instructions are proper when there is evidence that the killing was accidental


Input: recklessness in th reme Court has made clear, it is not only the content of the speech that is important, but the context and circumstances in which the language was used that must also be examined. FCC v. Pacifica Found., 438 U.S. 726, 744-45 (1978). This was not solely the use of one profane word spoken in an effort to register disagreement or protest. It was an unprovoked, aggressive, and abusive tirade aimed personally at Foster in her workplace. The object was not, as the dissent notes, to register her protest at being removed from Our Place without any food, but rather to injure, insult, and accuse Foster of sleeping with her ex-husband and spreading venereal disease. Such behavior falls well outside free speech protection. See In re S.J.N-K., 647 N.W.2d 707, 712 (S.D. 2002) (<HOLDING>); James M., 806 P.2d at 1066-67 (ruling Holdings: 0: holding that when protected speech is inextricable from unprotected speech the court will treat the entire message as protected 1: holding that a city could not use past conduct to enjoin future protected speech 2: holding that students repeated yelling fuck you and use of accompanying obscene gestures amounted to an ongoing aggression that fell outside protected free speech 3: holding that school district policy requiring that students obtain the review and approval of school officials prior to distributing any written material violated free speech rights of students 4: holding that after the district court determined that the plaintiffs speech was protected the court was required to inform the jury of its ruling that knapps speech was constitutionally protected


Input: environmental catastrophes); Morton Int’l, Inc. v. Gen. Accident Ins. Co. of Am., 134 N.J. 1, 629 A.2d 831, 848-55, 875 (1993) (refusing to enforce a literal reading of the pollution exclusion, in part because of evidence that the exclusion was intended to apply only to large-scale environmental disasters). 9 . See also Essex Ins. Co., Inc. v. Berkshire Envtl. Consultants, Inc., No. A. 99-30280, 2002 WL 226172, at *4 (D.Mass. Feb. 7, 2002) (concluding “that the pollution exclusion does not apply because the underlying complaints do not allege that the injuries and deaths resulted from traditional environmental pollution, i.e. hazards discharged onto land, the atmosphere, or a body of water”); West Am. Ins. Co. v. Tufco Flooring East, Inc., 104 N.C.App. 312, 409 S.E.2d 692, 699 (1991) (<HOLDING>), overruled, on other grounds by Gaston Cnty. Holdings: 0: holding that the confrontation clause is applicable to the states through the fourteenth amendment 1: holding that the penalty is applicable 2: holding that the release of carbon monoxide into an apartment is not the type of environmental pollution contemplated by the pollution exclusion clause 3: holding that a discharge into the environment is necessary for the total pollution clause to be applicable 4: holding that the discharge of paint chips into soil was covered by the pollution exclusion because it polluted the environment but that the presence of lead paint in a household would not be so covered


Input: against him in violation of Fed.R.Evid. 702 and the standards set forth in Daubert v. Merrell Dow Pharm., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). See Straker’s Mem., ECF # 700, at 39-49, 66-68. He argues that, under Daubert, one of the factors in determining the admissibility of expert testimony concerning a particularized scientific technique is “ ‘the technique’s known or potential rate of error,’ ” and Schilens’ testimony failed to satisfy this factor because she did not articulate a rate of error. Id. at 66-68 (quoting Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786). This is the same argument he made immediately following Schilens’ testimony in his motion to strike expert testimony, which was rejected by Order dated June 29, 2009. See ECF # 568 (filed June 29, 2009) (<HOLDING>). In response, the government argues that the Holdings: 0: holding that there are no grounds under daubert or fedrevid 702 to doubt the reliability of schilenss testimony 1: recognizing under fre 702 that there is no clear line dividing testimony based on scientific knowledge from testimony based on technical or other specialized knowledge holding that a single flexible test for reliability applies to all expert testimony 2: holding that the general principles of rule 702 recognized by the daubert decision are applicable to other species of expert testimony 3: holding that under fedrevid 702 expert testimony must be reliable to be admissible 4: holding that daubert sought only to clarify the standard for evaluating scientific knowledge under rule 702


Input: in that provision. I, however, focus on the phrase “upon consideration of,” which I believe has the same meaning and effect as “consider.” We have recognized that a statute requiring a government official to “consider” certain factors “implies] wide areas of judgment and therefore of discretion.” Carolina Tobacco Co. v. Bureau of Customs and Border Prot., 402 F.3d 1345, 1350 (Fed.Cir.2005) (citing Sec’y of Agric. v. Cent. Roig Refining Co., 338 U.S. 604, 611-14, 70 S.Ct. 403, 94 L.Ed. 381 (1950)). In Carolina Tobacco, we added that “[i]n considering the factors, the port director may give them whatever weight he deems appropriate; he may conclude that particular factors should be given no weight whatsoever.” Id.; cf. Brehmer v. Fed. Aviation Admin., 294 F.3d 1344, 1348 (Fed.Cir.2002) (<HOLDING>). Indeed, in Central Roig the Supreme Court Holdings: 0: holding that an employee may sue for breach of a collective bargaining agreement without the union 1: holding that oral agreement made in connection with reinstatement should be treated as part of collective bargaining agreement 2: holding that proof of discrimination offered by the plaintiff was insufficient to support a punitive damages award in light of the employers belief that its actions were required by a collective bargaining agreement 3: holding that a job transfer provided as a reasonable accommodation under the rehabilitation act did not conflict with a collective bargaining agreement when the agreement included a provision authorizing transfers and requiring a seniority preference in transfers ejxcept in the most unusual of circumstances 4: holding that the administration complied with a provision of the collective bargaining agreement requiring it to give consideration to nondisciplinary measures in certain circumstances when it considered the possibility of additional training but concluded that in light of the failure of the prior retraining to improve brehmers performance additional retraining would be ineffective


Input: relative interests of the involved states, Mississippi’s only interest is in ensuring that the Mississippi plaintiffs are adequately compensated. It has little or no interest in protecting the nonresident Dreyfus. For its part, Dreyfus argues that New York has “no interest in seeing its rules imposed to the disadvantage of one of its residents in a foreign forum.” That plainly is not the case. New York has an undeniable interest in its rule of joint and several liability for economic damages where the defendant is a New York domiciliary, because New York has an interest “ ‘in assuring that its domiciliaries perform their duties and obligations.’ ” See Clawans v. United States, 75 F.Supp.2d 368, 373 (quoting Mueller v. Parke Davis, 252 N.J.Super. 347, 354, 599 A.2d 950 (App. Div.1991) (<HOLDING>)). The cases recognizing the interest of the Holdings: 0: holding purposeful and deliberate omission on enactment of new jersey sales and use tax of exemption found in new york counterpart act which served as the model for new jersey act 1: recognizing that alabama had no interest in denying its residents the procedural and substantive advantages afforded under new jerseys product liability and consumer fraud statutes but not alabamas for claims against a new jersey manufacturer 2: recognizing that pennsylvania had no interest in denying its residents the greater damages available under new jersey consumer fraud statutes for claims against a new jersey seller 3: recognizing new jerseys interest in deterrence of tortious misconduct as a relevant factor in choice of law decisions applicable where two of defendants were new jersey residents from whom damages were sought for their negligent acts in new jersey 4: recognizing israel had no interest in denying its citizens the substantive advantages of new jersey defamation law in new jersey residents claims for defamation published in new jersey


Input: State’s objections immediately followed each comment, and the trial judge issued his curative instructions after sustaining those objections. Moreover, even if the jury did disregard additional testimony, it is unlikely that Defendant suffered prejudice as a result, because much of his testimony had no relevance to the two incidents that led to the charges against him. In addition, we think the judge maintained appropriate judicial decorum throughout the proceedings. Defendant asserts that “[b]y the time the court excused the jury for its final reprimand, it was clear that the judge was angry with Mr. Fike.” On a cold record, we cannot evaluate whether or not the judge appeared angry. See Bendorf v. Volkswagenwerk Aktiengeselischaft, 90 N.M. 414, 418, 564 P.2d 619, 623 (Ct.App.1977) (<HOLDING>). After listening to tapes of the proceedings, Holdings: 0: recognizing difficulty of evaluating judges demeanor upon appellate review 1: holding that bankruptcy judges are not bound by appellate ruhngs of single district judges even those from their own district 2: recognizing difficulty in proving conspiracy 3: holding that an appellate court cannot consider an issue that was not preserved for appellate review 4: holding failure to timely object to magistrate judges recommendation waives appellate review of factual and legal questions


Input: a defendant’s HIV-positive status as a ground for departure and that in all cases from other circuits where an HIV-positive defendant received a downward departure under § 5H1.4, the defendant was not only HIV-positive but also had “full-blown AIDS” or “advanced AIDS.” It was at this point in the proceedings that the district court interrupted the prosecutor and accused him of maliciously endangering the defendant. Under this unique set of circumstances, the fact that the prosecutor did not fully state his objection does not render the objection inadequate. See Fed.R.CRImP. 51 (“If a party does not have an opportunity to object to a ruling or order, the absence of an objection does not later prejudice that party.”); United States v. Bernal, 814 F.2d 175, 182-83 (5th Cir.1987) (<HOLDING>). Having concluded that the government Holdings: 0: holding that plaintiffs objection to an r  r was not specific enough to constitute an adequate objection under  fedrcivp 72b 1: holding that objection was timely even though objection was not made until after question was answered 2: holding that parties waived any choice of law objection by not raising an objection 3: holding that an objection was adequate when the judge cut short the objection and the defendant was not afforded the opportunity to explain his objection fully 4: holding that where defense counsel made a timely objection and it was overruled by the trial court a further request for a mistrial was unnecessary and futile since the reasons for the objection were apparent and the trial courts denial of the objection indicated its belief the jury could properly hear the matter which was the subject of the objection


Input: evidence merely indicates harm to its commercial interests, rather than harm to competition. The cases upon which Sunrelies are materially distinguishable and appear to be inapposite to Microsoft’s distribution of extended Java programming tools and present licensing efforts. Unlike Atlantic Refining, Texaco and Brown Shoe, Sun submits insufficient evidence suggesting that Microsoft continues to use its economic power to coerce software developers or other relevant entities in a manner restricting competition in a relevant market. See Atlantic Refining, 85 S.Ct. at 1506-07 (proscribing use of dominant economic power over gas station retailers to coerce them into buying tires, batteries and accessories from one source); Texaco, 89 S.Ct. at 431-33 (same); Brown Shoe, 86 S.Ct. at 1503 (<HOLDING>). Rather, Microsoft essentially altered the Holdings: 0: holding that the certificate of purchase is not a claim because it does not represent a right to payment 1: holding that although purchase of securities on margin does not seem to present source of unfair competition both plain meaning of statute and congressional intent support imposition of ubit on this type of income 2: holding government could be liable for breach of a contractual obligation to purchase insurance for plaintiff 3: holding that ftc was within its power to declare as an unfair method of competition the payment of valuable consideration to shoe retailers to secure a contractual promise  not to purchase conflicting lines of shoes 4: holding subsequent purchasers can stand in the shoes of the original owner with respect to a variance provided that the claimed hardship does not arise out of the purchase


Input: above reasons, PBS Inc.’s motion to substitute is GRANTED; CHF’s motion to dismiss is DENIED; CHF’s motion for summary judgment is DENIED; and PBS Inc.’s motion for leave to file an amended complaint is DENIED. SO ORDERED. 1 . The Court also denied CHF's motion for summary judgment of invalidity for indefiniteness of the '651 patent and denied PBS Inc.’s cross-motion for partial summary judgment of infringement. Park B. Smith, 2008 WL 650339 at *6-7. 2 . PBS Inc. did not describe itself as an “exclusive licensee” until after the parties had completed briefing on PBS Inc.'s Rule 17(a) motion and CHF’s motion to dismiss. (See August 2010 Smith Decl. at ¶ 3.) 3 . At least one circuit has taken the approach CHF proposes. See Zurich Ins. Co. v. Logitrans, Inc., 297 F.3d 528 (6th Cir.2002) (<HOLDING>). As one commentator aptly notes in discussing Holdings: 0: holding that because article iii standing is jurisdictional it must be decided before other legal issues 1: holding that the court lacked jurisdiction to consider the appeal because it was filed before the final order awarding attorneys fees 2: holding that where it was discovered just before trial that it was plaintiffs sister company not the plaintiff that had incurred the injury and thus plaintiff lacked article iii standing the district court was without jurisdiction to consider a rule 17a motion to substitute 3: recognizing that while in a diversity case a federal court may not address the plaintiffs claim unless the plaintiff has standing to sue under state law the plaintiff must also meet article iii standing requirements 4: holding that federal courts may not consider other issues before resolving standing an article iii jurisdictional matter


Input: established two methods for resolving disputes between the states. Petty v. Tennessee-Missouri Bridge Comm’n, 359 U.S. 275, 278 n. 5, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959) (assuming a commission created by an interstate compact had Eleventh Amendment immunity, such immunity was waived by the compact itself). The first method is the original jurisdiction conferred upon the Supreme Court by the Constitution to resolve disputes between the states. Id. (citing U.S. Const. art. III., § 2). “The other is the compact _” Id. (citation omitted). As for the first method, we know that when the Supreme Court exercises its original jurisdiction there is no sovereign immunity and the Eleventh Amendment does not apply. Texas v. New Mexico, 482 U.S. 124, 130, 107 S.Ct. 2279, 96 L.Ed.2d 105 (1987) (<HOLDING>). As the Supreme Court said, “[i]n proper Holdings: 0: holding the bad faith rationale inapplicable given that the defendants acted in good faith in appealing the case and in raising defenses to the plaintiffs claims 1: holding that a bad faith claim is a tort 2: holding that monetary relief could be awarded against new mexico because it acted in bad faith by failing to deliver water called for by a compact 3: holding that an insurer acted in bad faith by failing to keep the insured informed of settlement negotiations 4: holding that if the town acted in bad faith in negotiations and litigation which prevented construction then the plaintiffs on remand cannot be deemed to have lost any rights to vest that they would have been able to exercise in the absence of bad faith


Input: not shown that this finding was clearly 'erroneous and, absent any violation of Rule 2014, the Bankruptcy Court did not abuse its discretion in approving the fee application. Kennedy also contends that Bankruptcy Court erred in 2006 in approving Skadden as bankruptcy counsel because it was not disinterested, as required by 11 U.S.C. § 327. But any challenge to the Bankruptcy Court’s initial approval of Skadden is not properly before us because Kennedy never appealed the retention order or previously identified the order as an issue for this appeal. Shareholders v. Sound Radio, Inc., 109 F.3d 873, 879 (3d Cir.1997) (“The failure to file a timely notice of appeal creates a jurisdictional defect barring appellate review.”); F/S Airlease II, Inc. v. Simon, 844 F.2d 99, 104 (3d Cir.1988) (<HOLDING>). Kennedy asserts that we have jurisdiction Holdings: 0: holding that an appeal challenging a bankruptcy court order approving a foreclosure sale became moot upon dismissal of the underlying bankruptcy case 1: holding bankruptcy court order approving retention of a law firm retroactively was appealable order 2: holding that a bankruptcy court order denying a trustees claim to immunity was final and appealable under the collateral order doctrine 3: holding adjudication order based upon a determination on the merits in juvenile court is a final and appealable order 4: holding that a bankruptcy court order appointing a chapter 11 trustee constitutes a final order appealable to the eleventh circuit court of appeals


Input: Appellate Division, Fourth Department continued to affirm definitions of “reasonable doubt” which referred to a “moral certainty,” the court finds that Mercer’s trial counsel’s representation did not fall “below an objective standard of reasonableness.” United States v. Aiello, supra, at 532. As such, there is no need to consider whether “but for counsel’s ... errors, the result of the proceeding would have been different.” Id. It follows that Mercer’s appellate counsel did not err in failing to assert as a ground for direct appeal in 1987 Mercer’s trial counsel’s failure to object to the reasonable doubt jury charge. If trial counsel’s conduct was not ineffective, a fortiori, neither can appellate counsel’s conduct be ineffective. See Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.1994) (<HOLDING>); See United States v. Gallo-Lopez, 931 F.Supp. Holdings: 0: holding that appellate counsel is not required to raise meritless issues on appeal 1: holding that defendant may raise claim of ineffective assistance of counsel on direct appeal only if ineffective assistance is conclusive from the record 2: holding that an ineffective assistance of counsel claim must be raised on direct appeal when the facts supporting the claim are presented on the face of the record 3: holding that when a claim of ineffective assistance of appellate counsel is based on failure to raise viable issues on direct appeal the district court must examine the trial court record to determine whether appellate counsel failed to present significant and obvious issues on appeal and citing gray v greer 800 f2d 644 646 7th cir1986 4: holding no ineffective assistance of appellate counsel claim for failure to raise as basis for appeal of conviction ineffective assistance of trial counsel where basis for the latter claim was inadequate


Input: to abate fee awards under AS 09.60.010(c)(1) if "the full imposition of the award would inflict a substantial and undue hardship ... upon the taxpaying constituents of [a] public entity." We decline the voters' invitation to conclude from the record that the imposition of full fees will not impose an undue hardship on the Borough or its taxpayers. The Borough may raise the hardship defense on remand. 37 . See AS 09.60.010(c) (stating provision applies "[in a civil action or appeal") (emphasis added). 38 . We note that the voters are not entitled to an attorney fees award for work done solely on claims against the Borough that did not concern the voters' constitutional rights to vote. See AS 09.60.010(c)(1). 39 . Cf. Fox v. Vice, _ U.S. _, 131 S.Ct. 2205, 2215, 180 L.Ed.2d 45 (2011) (<HOLDING>). And we note that any attorney fees awarded Holdings: 0: holding that the district court abused its discretion by telling the jury about the right of a prevailing plaintiff to attorney fees under 42 usc  1988 1: recognizing absolute immunity to suits under 42 usc  1988 2: holding that attorneys fees awards are available under  1988 for frivolous actions 3: holding that a case awarding fees under 42 usc  1988 has no application in a private claim for attorneys fees sounding in mississippi contract law 4: holding defendant may receive only the portion of his fees under 42 usc  1988 that he would not have paid but for the frivolous claim


Input: State v. Gillette, 102 N.M. 695, 705, 699 P.2d 626, 636 (Ct.App.1985) (UJIs pertaining to attempted murder may be modified to fit evidence presented at trial and theory on which the defendant’s culpability rests). Because the crime of attempt to commit a felony requires a specific intent to commit the underlying felony, see NMSA 1978, § 30-28-1 (1978); UJI 14-2801; Johnson, 103 N.M. at 369, 707 P.2d at 1179, and in this case the underlying felony involved the killing of Granados, Rogers, or both, a conviction for attempted second degree murder cannot be sustained on a finding that Defendant merely “knew that his acts created a strong probability of death or great bodily harm},]” UJI 14-211 NMRA 1998. In order to convey that the attempt must be committed wi 817 P.2d 1196, 1203-05 (1991) (<HOLDING>). B. Change of Venue {18} Defendant’s trial Holdings: 0: holding that reversal of conviction for felony murder was required where jury failed to find the defendant guilty of the underlying felony as essential element of the felony murder offense 1: holding that 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: recognizing intent requirement for first degree felony murder without deciding whether this requirement affects holding in price 3: holding that a conviction of first degree felony murder based on the predicate felony of robbery does not establish the pecuniary gain aggravator set forth in  13703f5 with respect to the murder 4: holding that the crime of attempted first degree felony murder does not exist


Input: Colorado, the situs of the property, is the law of the contract.” Id. at 123, 33 S.Ct. 69. The Court disagreed, holding that the contract was “strictly personal,” and “[i]t in no way affects the land or- seeks any remedy against it.” Id. It relied on Polson v. Stewart, 167 Mass. 211, 45 N.E. 737 (1897), in which the court had explained: It is true that the laws of other states cannot render valid conveyances of property within our borders which our laws say are void, for the plain reason that we have exclusive power over the res. But the same reason inverted establishes that the lex rei sitae cannot control personal covenants, not purporting to be conveyances between persons outside the jurisdiction, although concerning a thing within it .Y.S.2d 622, 628 (Sup. Ct. New York County 1962) (<HOLDING>). Applying New York’s contract conflict-of-law Holdings: 0: holding that subsequent to a judicial sale the report of the sale must be made to and ratified by the court before a deed for the property is given by the trustee to the purchaser 1: holding that plaintiff lacked standing after foreclosure sale to set aside the sale arid reinstate her right to redeem property based upon arguments that events surrounding the closing of the sale were improper 2: holding that the new jersey real estate licensing act is applicable to the sale of a company through a stock sale 3: holding in the analogous context of choiceoflaw in relation to the sale of personal property that compensation for arranging the sale is assessed apart from underlying sale 4: holding that where property subject to the irss timely filed lien is sold during a nonjudicial sale and the irs is not given notice of the sale the sale of the property is made subject to and without disturbing the lien


Input: contract relating to the division of the marital estate made between the divorced individuals before or after the marriage, divorce, or annulment.” SDCL 29A-2-804(b). Storsve argues that the retirement plan expressly designated himself as the beneficiary; therefore, the first exception applies. [¶ 14.] However, were we to adopt Storsve’s position that the beneficiary designation alone meets the “express terms of a governing instrument” exception, SDCL 29A-2-804 would never apply because every governing instrument contains this provision, and it is this provision that prompts the necessity of the statute. Thus, a beneficiary designation itself is not sufficient to invoke the express terms exception. See also Lincoln Benefit Life Co. v. Heitz, 468 F.Supp.2d 1062, 1066, 1069 (D.Minn.2007) (<HOLDING>). [¶ 15.] We hereby interpret the statute to Holdings: 0: recognizing that a property settlement and divorce decree which provided for a certain party to be named the irrevocable beneficiary of a life insurance policy was valid and enforceable against anyone subsequently named as a beneficiary 1: holding change of beneficiary effective where city employee listed a new beneficiary for his group life insurance policy in an employee personal data form next to the words designated beneficiary even though this did not comply with the policy terms 2: holding that insureds widow as beneficiary of life insurance policy had standing as an injured person under the insurance code 3: holding that a contract beneficiary may be liable in restitution where the beneficiary by his conduct induces the conferral of the benefit 4: recognizing the same express terms exception found in south dakotas redesignation statute and holding that the beneficiary designation automatically revoked upon divorce despite the life insurance policys designation of the former spouse as the beneficiary


Input: stated: “These definitions are taken largely from the New York Revised Penal Law.” Commission to Revise the Criminal Statutes, Connecticut Penal Code Comments (1969) p. 25. Indeed, the relevant portion of the definition of sexual intercourse in P.A. 828 tracks the New York counterpart exactly. See N.Y. Penal Law § 130.00 (1) (McKinney 1967). The definition found in N.Y. Penal Law § 130.00 (1), in turn, originally derived from § 280 of the New York Penal Code of 1881. Therefore, because our statute was modeled after the New York statute, we find the interpretation of the phrase “penetration, however slight” by the New York Court of Appeals to be particularly persuasive in construing the equivalent language in § 53a-65. See State v. Havi-can, 213 Conn. 593, 601, 569 A.2d 1089 (1990) (<HOLDING>). Our conclusion that the “common-law Holdings: 0: recognizing that code is speech 1: holding that citys enforcement of the entire state penal code would not constitute a city policy because the city was required to follow state law 2: holding that contract signed in new york by promisor from florida and partially performed in florida was governed by new york law because it was executed in new york 3: holding connecticut law applied where contract negotiations took place in new york and texas agreement was signed by one party in texas forwarded to the other partys headquarters in connecticut and last act necessary to complete the contract ie the signing by the last party was performed in connecticut 4: recognizing that because  the drafters of the connecticut penal code relied heavily upon    the penal code of new york  it is appropriate to look to new york statutory and case law for guidance in interpreting connecticut penal code


Input: depression, while Mr. Minor was her supervisor. (Id., at 138). Even if the Court accepts that Ms. Spinks requested time off, that action alone does not constitute a protected activity. Engaging in a protected activity requires complaining of some sort of discrimination that is covered by the TCHRA. Azubuike v. Fiesta Mart, 970 S.W.2d 60, 65 (Tex.App.-Houston 1998) (finding that the content of plaintiffs let ters would support an inference that he was engaging in a protected activity, ie. complaining of discrimination, particularly where plaintiffs race, color or national origin are not even identified in the letters). A vague charge of discrimination will not invoke protection under the statute. See Booker v. Brown & Williamson Tobacco Co., Inc., 879 F.2d 1304, 1313 (6th Cir.1989) (<HOLDING>). In Ulrich v. Exxon Co. the court determined Holdings: 0: holding vague allegations of bias insufficient 1: holding that each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable unlawful employment practice  for which an administrative charge must be filed 2: holding that the conduct complained of must be an unlawful employment practice under title vii 3: holding vague charge of discrimination in an internal letter or memorandum is insufficient to constitute opposition to an unlawful employment practice 4: holding that an employee must do more than make a vague charge of discrimination and that an employee who sent a letter complaining that charges against him were the product of ethnocentrism did not engage in protected activity under title vii


Input: a general release containing “all other persons” language are deemed as a matter of law to have expressed their intent to discharge all potential tortfeasors. Flat bar courts thus look only to the four comers of the release document and to adhere to the flat bar rule. As between the remaining two approaches — the intent rule and the specific identity rule — the intent rule has been adopted by a bare majority of courts. See, e.g., McInnis v. Harley-Davidson Motor Co., 625 F.Supp. 943, 956-57 (D.R.I.1986) (predicting Rhode Island would adopt intent rule); General Motors Corp. v. Superior Court, 12 Cal.App.4th 435, 15 Cal.Rptr.2d 622, 625-27 (1993) (applying traditional rules of contract construction and determining that terms of release were facially unambiguous); Neves, 769 P.2d at 1053 (<HOLDING>); Sims, 623 A.2d at 1001-02 (holding that Holdings: 0: holding that extrinsic evidence of the parties course of conduct may be considered where the contract language is ambiguous 1: holding that extrinsic evidence admissible to determine intent of parties 2: holding that a court may consider extrinsic evidence to determine whether a contract is ambiguous 3: holding that court must determine intent of parties by reference to language of release turning to extrinsic evidence only when it determines as a matter of law that terms are ambiguous 4: holding that parol evidence is admissible to determine intent of parties


Input: who proctored the mini-block exam and observed Amaya set forth their observations in detail in separate written statements, and Amaya presented statistical and other evidence to support his explanation that the professors’ observations and their inferences based on their observations were incorrect. The statements of the professors who observed Amaya and the analysis and other evidence presented by Amaya were carefully considered by the members of the SPC. The designated evidence shows that there was at least some evidence in support of the decision of the SPC and Dean Brater that Amaya cheated on the mini-block exam, and we cannot conclude that the decision to dismiss Amaya from IUSM was not based upon substantial evidence or was arbitrary or capricious. See Reilly, 666 N.E.2d at 446 (<HOLDING>). Accordingly, the trial court did not err in Holdings: 0: holding that if no evidence was presented to support the prevailing party there is no evidence upon which to apply the substantial evidence test and therefore the capricious disregard standard applies 1: holding that the professors observations of cheating behavior by reilly combined with the statistical analysis of the test results constitutes at least some evidence in support of the committees conclusion that reilly cheated on her final exam and that bjecause the committees determination is supported by the evidence we cannot conclude that the decision to expel reilly was arbitrary or capricious 2: holding that even when there is a conflict of evidence before the commission and the evidence was such that the commission could have reasonably reached a contrary decision the commissions decision was not arbitrary and capricious 3: holding that evaluations submitted after the committees final decision cannot be considered in determining whether the decision was arbitrary and capricious 4: holding that the commissions choice to regulate  527 groups by determining whether they qualified as political action committees on a casebycase basis was neither arbitrary nor capricious


Input: five years in conformity with the terms of the Distributor Agreement. Several references are made to a “distributor agreement” in CT Miami’s financial statements and emails, and many of these references are accompanied by apparent quotes or paraphrases from the Distributor Agreement. These undisputed facts raise a nearly insurmountable presumption that the Distributor Agreement is a binding agreement and that, the arbitration clause is therefore valid. First, a document exe cuted by the party against whom the contract is sought to be enforced is presumptively valid even in the absence of the enforcing party’s signature where the events surrounding the contract’s execution support a valid contract. Dodge of Winter Park, Inc. v. Morley, 756 So.2d 1085, 1085-86 (Fla. 5th DCA 2000) (<HOLDING>); see also Gateway Cable T.V., Inc. v. Vikoa Holdings: 0: holding an arbitration clause contained in confirmations sent to buyer by seller was part of parties course of dealing and therefore part of the contract after buyer had repeated opportunities to object to the clause and had failed to do so 1: holding that seller carried insurance for benefit of buyer and held proceeds in trust for buyer when seller agreed to maintain insurance until possession date but bam burned before buyer took possession 2: holding that where buyer had opportunity to inspect goods and failed to inform seller in timely manner of defects buyer deemed to have accepted goods pursuant to  672606 3: holding that a seller could enforce an arbitration provision against a buyer even though only the buyer had signed the provision 4: holding that an agreement on the one side to sell and on the other to buy does not constitute a conspiracy even if the buyer intends to resell the drugs so long as the buyer and seller do not have an agreement to further distribute the drugs


Input: in order to determine disability. It is not. Objective medical examination findings are also necessary to support the diagnosis.”). Also, the Guide states that if an employee does not return to work at the end of the approved period for absence, additional objective medical evidence is required to support the treatment provider’s recommendation that disability benefits continue. Id. Despite these clear requests for detailed information concerning her ability to work, including a mental status examination, Ms. Atkins never provided the needed information or indicated that a formal mental status examination could not be obtained or that her level of functionality could not be ascertained. Instead, she provided only brief and conclusory medical information. Cf. Kimber, 196 F.3d at 1099 (<HOLDING>). Dr. Shadid’s responses to the questions on Holdings: 0: holding evidence of a 13 permanent partial disability insufficient to establish disability for purposes of ada 1: holding that documents filed with rule 12b6 motion to dismiss are not judicial documents because they do not play any role in the adjudicative process 2: holding in context of application for social security benefits factfinder need not accept a treating physicians opinion which is brief and conclusory in form with little in the way of clinical findings to support its conclusion 3: holding med ical documents provided insufficient evidence of disability because they did not contain supporting clinical data for conclusion reached 4: holding that pursuant to the best evidence rule trial testimony relying on documents was inadmissible without submission of such documents or an explanation as to why the documents were unavailable


Input: that may be drawn therefrom, provide a substantial basis for determining that there is probable cause to believe that a search will uncover evidence of wrongdoing. {30} We clarify that the substantial basis standard of review is more deferential than the de novo review applied to questions of law, but less deferential than the substantial evidence standard applied to questions of fact. See State v. Koen, 152 P.3d 1148, 1151 n. 6 (Alaska 2007). Furthermore, we emphasize that the substantial basis standard is not tantamount to rubber-stamping the decision of the issuing court and does not preclude the reviewing court from conducting a meaningful analysis of whether the search warrant was supported by probable cause. Cf State v. Alberico, 116 N.M. 156, 170, 861 P.2d 192, 206 (1993) (<HOLDING>). Indeed, “when an application for a search Holdings: 0: holding that appellate courts should review district court determinations of the adequacy of damage awards under an abuse of discretion standard 1: holding that the appropriate standard of review is abuse of discretion 2: holding that mere fact that trial court may decide discretionary matter differently from appellate court does not demonstrate abuse of discretion 3: holding that the abuse of discretion standard does not prevent an appellate court from conducting a meaningful analysis 4: holding that the standard of review for an award of statutory damages is even more deferential than an abuse of discretion standard


Input: they fell, we will be permitting a claimant to recover for injuries resulting from idiopathic causes. [Respondent’s Brief, p. 9] We disagree. Section 287.020.3(3) does indeed provide that “[a]n injury resulting directly or indirectly from idiopathic causes is not compensable.” However, as we have already noted, a claimant’s burden to establish a compensa-ble injury is limited to establishing that the injury arose out of and in the course of employment, which requires proof only of the two criteria set forth at section 287.020.3(2)(a) and (b). Johme, 366 S.W.3d at 509. Once these criteria are established, any claim that an injury is nonetheless not compensable is in the nature of an affirmative defense. See, e.g., Crumpler v. Wal-Mart Assocs., Inc., 286 S.W.3d 270, 273 (Mo.App.S.D.2009) (<HOLDING>); see also Taylor v. Contract Freighters, Inc, Holdings: 0: holding exclusion was harmless error 1: holding that the erroneous omission of a justification defense was harmless where counsel did not invoke the defense during either voir dire or opening statements and where the defense did not appear to be the primary focus of the defensive theory at trial 2: holding that defense counsel opened the door to the prosecutions questioning of the defendant about prior convictions when defense counsel asked a prosecution witness whether he was aware that the defendant was  a convicted felon 3: holding that claimant was aware prior to her hearing of employers theory of defense that claimants injury was idiopathic rendering it harmless error that the defense was not pled by the employer 4: holding that trial error in a civil case which went to the very heart of the defendants defense and was central to his defense could not be deemed harmless in the absence of any steps by the district court to mitigate the effects of the error


Input: 548 U.S. 140, 144, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006). The government must “honor” a defendant’s Sixth Amendment right to counsel: This means more than simply that the State cannot prevent the accused from obtaining the assistance of counsel. The Sixth Amendment also imposes on the State an affirmative obligation to respect and preserve the accused’s choice to seek this assistance.... [A]t the very least, the prosecutor and police have an affirmative obligation not to act in a manner that circumvents and thereby dilutes the protection afforded by the right to counsel. Maine v. Moulton, 474 U.S. 159, 170-71, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985). This is intuitive: the right to counsel in an adversarial legal system would mean little if defense counse Ct. 1330, 47 L.Ed.2d 592 (1976) (<HOLDING>). Defendants-Appellees do not say that they Holdings: 0: holding admission of preliminary hearing testimony did not violate the sixth amendment where defendants motive during crossexamination was the same as at trial 1: holding that a trial courts order that defendant not consult with his attorney during an overnight recess during trial violated the sixth amendment 2: holding that a criminal defendant has a sixth amendment right to counsel at trial 3: holding that an essential interest specific to the defendant is required to physically restrain a defendant during his trial 4: holding that defendants sixth amendment right to trial by a jury was not violated by district courts reliance on his prior convictions for purposes of sentencing as career offender


Input: There are, however, issues pertaining to the abrogation of 11th Amendment immunity as to the Title VII claims, 42 U.S.C. § 2000e et seq. See Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). Nevertheless, these issues have become moot since the Court finds that all claims against the Commonwealth shall be dismissed on the grounds that Plaintiff lacks standing to bring suit against it. 4 . Furthermore, the PBA is authorized to implement projects for modernization and reconstruction of public housing in agreement with the Public Housing Administration. 1991 Op. Sec. Jus. No. 39. 5 . Nevertheless, the Court is mindful that this factor alone may not necessarily be disposi-tive of the issue at hand. See e.g. Kashani, 813 F.2d at 847 (<HOLDING>); Krieger v. Trane Co., 765 F.Supp. 756, 759 Holdings: 0: holding that entitys formal designation as separate from state for some purposes is inconclusive of autonomy 1: holding that when the state prosecutes and obtains a conviction on separate charges as to which the rule of merger does not apply the state is entitled as a matter of law to a conviction and a separate sentence on each charge 2: holding that court enforcement of a settlement agreement is not state action for constitutional purposes 3: holding that plaintiffs claim for loss of consortium is separate and distinct from spouses malpractice claim for purposes of applying insurance policy limitations 4: holding that an entity may qualify as a state agency for some purposes while being classified as a local agency for other purposes