Input: claim under the ADA, we reject Russell’s disparate treatment argument vis-a-vis her sex discrimination claim under Title VII. As explained above, in accordance with facts not genuinely disputed, we cannot reasonably infer that the infractions committed by Drew and Evans were of comparable seriousness to Russell’s. C. Retaliation claim Finally, Russell argues that the District Court erred in holding that she failed to exhaust her administrative remedies with respect to her retaliation claim. She contends that her retaliation claim is reasonably related to, or grows out of, the substance of her allegations in the administrative charge and therefore was sufficiently exhausted. Brief for Appellant at 55-57 (citing, e.g., Stuart v. Gen. Motors Corp., 217 F.3d 621, 631 (8th Cir. 2000) (<HOLDING>)). In support of this argument, Russell Holdings: 0: holding that claimant exhausted administrative remedies only as to the complaints made in the original charge and factually related claims that reasonably could be expected to grow out of the administrative investigation of that charge 1: holding that regarded as claim is reasonably related to claim of discrimination on the basis of disability alleged in eeoc charge 2: recognizing that a claim is administratively exhausted if it is specifically stated in grows out of or is reasonably related to the substance of the allegations in an administrative charge or complaint 3: holding individual employee may assert unexhausted retaliation claim if the later claim is reasonably related to the allegations in the employees timely filed charge 4: holding sexual harassment claim was not like or related to retaliation allegations and therefore was outside the scope of the administrative charge


Input: has “jurisdiction to render judgment on an action by an interested party objecting to ... a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.” 28 U.S.C. § 1491(b)(1) (2012). A party is an “interested party” with standing to bring suit under' 28 U.S.C. § 1491(b)(1) if the party “is an actual or prospective bidder whose direct economic interest would be affected by the award of the contract.” Orion Tech., Inc. v. United States, 704 F.3d 1344, 1348 (Fed.Cir.2013). A bidder has a direct economic interest if the alleged errors in the procurement caused it to suffer a competitive injury or prejudice. Myers Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366, 1370 (Fed.Cir.2002) (<HOLDING>). In a post-award bid protest, the protestor Holdings: 0: holding that an antitrust injury is a necessary element of a  2 claim 1: holding that actual prejudice is not a necessary element of an insurers untimely notice defense 2: holding that an assertion of prejudice is not a showing of prejudice 3: recognizing that allegation of state action is a necessary element of a  1983 claim 4: holding that prejudice or injury is a necessary element of standing


Input: by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: James Hampton Williams, II, was convicted by a jury on several counts related to his participation in a large-scale, ten-year long conspiracy to distribute cocaine and cocaine base, and was sentenced to life in prison. Specifically, Williams was convicted of one count of conspiracy to distribute five kilograms or more of cocaine and fifty grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2006); one count of conspiracy to launder money, in violation of 18 U.S.C. § 1956 (2006); one count of cocaine distribution, in violation of 21 U.S.C. § 841(a) 27 S.Ct. 2456, 2465-66, 168 L.Ed.2d 203 (2007) (<HOLDING>); United States v. Benkahla, 530 F.3d 300, 312 Holdings: 0: holding that if a jury is to be provided the defendant at capital sentencing regardless of whether the sixth amendment requires it the jury must stand impartial and indifferent to the extent commanded by the sixth amendment 1: recognizing that its sixth amendment cases do not automatically forbid a sentencing court to take account of factual matters not determined by a jury and to increase the sentence in consequence 2: holding that there is no sixth amendment right to jury sentencing 3: holding that the fact of a prior conviction for sentencing purposes need not be proved to a jury or admitted by defendant to satisfy the sixth amendment 4: holding federal sentencing guidelines are subject to jury trial requirements of sixth amendment


Input: rise to a recovery under state law even in the absence of the FDCA.” Id. Courts have struggled with applying the Supreme Court’s preemption rulings to cases involving the Infuse device. Though they uniformly agree that the PMA process imposes requirements on the Infuse device, both the second step of the Riegel analysis and the scope of Buckman have prompted disagreement. This Court’s view is that some of these cases have read Riegel and Buckman — especially Buck-man — too broadly, see, e.g., Caplinger v. Medtronic, Inc., 921 F.Supp.2d 1206, 1219 (W.D.Okla.2013) (finding that fraud claims are impliedly preempted by Buckman because “even the concept of ‘off-label use’ is a creature of the FDCA”), while others have read Riegel too narrowly, see, e.g., Ramirez, 961 F.Supp.2d at 988-92 (<HOLDING>). At least one court has read Riegel and Holdings: 0: holding that riegels shield drops if plaintiff alleges offlabel promotion and that most claims including design defect claims evade preemption 1: recognizing presumption against preemption presumption is properly applied to state law design defect claims against manufacturer of pacemaker fda premarket approval of device did not require preemption 2: holding that a plaintiffs claims arise under the statute that provides the federal cause of action he or she alleges 3: holding that carmark act preempted state law claims including those for liability for payment of claims 4: holding that claims including constitutional claims must be asserted in trial court to be raised on appeal


Input: (including changing leadership and terminating some employees) and then merged with PA’s Information Technology Infrastructure group. (Moynihan Dep. at 78-79, 130-131.). At that point, the record shows that Mr. Moynihan put Patrick Kelly, the Head of the Information Technology Infrastructure practice, in charge of implementing the RIF, see Moynihan Dep. at 130-131, and Mr. Kelly testified that he decided to include Ms. Barnett in the RIF because her trade practice did not fit with the Transportation Group’s practice. (Kelly Dep. at 223-224.). The court finds that PA has produced sufficient evidence to indicate a legitimate, nondiscriminatory reason for terminating Ms. Barnett. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 259-260, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (<HOLDING>). The burden is now on Ms. Barnett to produce Holdings: 0: holding that an order was final for these identical reasons 1: holding that in producing nondiscriminatory reasons for its challenged action the employer is not obligated to support these reasons with objective evidence sufficient to satisfy the preponderance of the evidence standard 2: holding that the plaintiffs evidence of pretext was insufficient because the plaintiff failed to present evidence that the employer did not honestly believe its proffered reasons for its action 3: holding that plaintiff need only point to sufficient evidence to support an inference that the employer did not act for its proffered nondiscriminatory reasons 4: holding that the proper standard of proof is preponderance of the evidence


Input: evidence was sufficient to support Rawlins’s convictions for first-degree aggravated rape and child abuse. However, the Superior Court committed constitutional error in permitting the People to read the prior testimony of J.J. and Melendez into the record at Rawlins’s second trial because the Superior Court erred in finding that they were unavailable for purposes of the Confrontation Clause. Further, this Court cannot hold that this error was harmless since the People failed to file a brief in this case, thus failing to meet its burden of showing that the error was harmless beyond a reasonable doubt. Therefore, we vacate the Superior Court’s January 16, 2014 judgment and remand for a new trial. 2 See Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) (<HOLDING>). 3 Prior to reading JJ.’s and Melendez’s Holdings: 0: holding that testimonial hearsay statements of a witness who does not appear at trial are inadmissible under the confrontation clause of the sixth amendment unless the witness is unavailable to testify and the defendant has had a prior opportunity to crossexamine the witness 1: holding that testimonial evidence is admissible only if the declarant is unavailable and the defendant had a prior opportunity to crossexamine the declarant 2: holding that the confrontation clause bars admission of testimonial statements of a witness who did not appear at trial unless the witness was unavailable to testify and the defendant had a prior opportunity for crossexamination 3: holding that the admission of testimonial statements against a defendant is unconstitutional when the declarant does not appear at trial unless the declarant is unavailable and the defendant had a prior opportunity for crossexamination 4: holding that an absent witnesss statements are admissible under the confrontation clause only where the declarant is unavailable and only where the defendant   had a prior opportunity to crossexamine


Input: interest that might justify contribution limits-the interest in preventing "circumvention of contribution limits designed to combat the corrupting influence of large contributions to candidates." 533 U.S. at 456 n. 18, 121 S.Ct. 2351; see also id. at 456, 121 S.Ct. 2351; [Federal Election Commission v.] Beaumont, 589 U.S. [146] at 155, 128 S.Ct. [2200] at 2207 [156 L.Ed.2d 179 (20083) ("[Rlecent cases have recognized that restricting contributions by various organizations hedges against their use as conduits for 'cireumvention of [valid] contribution limits. " (quoting Colorado Republican II, 533 U.S. at 456 & n. 18, 121 S.Ct. 2851) (second alteration in original)); Cal. Med. Ass'n [v. Federal Election Commission], 458 U.S. [182] at 197-99, 101 S.Ct. 2712 [69 L.Ed.2d 567 (1981)] (<HOLDING>); Buckley, 424 U.S. at 35-36, 88, 96 S.Ct. 612. Holdings: 0: holding that congress intended the qta to provide the exclusive means by which adverse claimants could challenge the united states title to real property emphasis added 1: holding that limits on contributions to multicandidate committees are an appropriate means by which congress could seek to protect the integrity of the contribution restrictions upheld by this court in buckley 2: recognizing the right of a former spouse to seek contribution for payment of community debts not allocated by the divorce decree 3: recognizing contribution in the appropriate case 4: recognizing a right to contribution


Input: jurisdiction the federal courts apply federal law as to matters of procedure”). As a result, any differences in procedural rules are irrelevant to the instant case. For this reason, we decline to consider the procedural discrepancies highlighted by appellants in our determination of whether the issues in the present appeal are identical to the issues presented in Canady I. Appellants additionally argue that there is no identity of issues because the state law claims covered a different time period than the federal law claims. We find this argument unpersuasive. The difference in time periods does not affect the underlying nature of the claims at issue, and therefore the difference in time periods is irrelevant in determining whether the issues were identical. See Xiong, 195 F.3d at 427 (<HOLDING>). Because appellants do not assert any Holdings: 0: holding that denial of class certification is not a judgment for purposes of the antiinjunction act while the underlying litigation remains pending 1: holding that difference in claims alleging the same violations over different time periods are immaterial in determining identity of issues for purposes of applying the relitigation exception to the antiinjunction act 2: holding that evidence of the same name and that the former conviction was in same city and same court as the present case and the fact that the defendant did not offer any testimony to rebut the prima facie evidence of identity was sufficient to establish identity 3: holding that evidence of the same unusual name with the same address in the same city for the same offense of selling liquor in the same judicial district was sufficient to establish identity 4: holding that denial of class certification in stillpending federal action lacked sufficient finality to invoke relitigation exception to antiinjunction act


Input: as to preclude presentation of the merits of the case should not be assessed absent a party’s flagrant bad faith or counsel’s callous disregard for the responsibilities of discovery under the rules.” Id. (emphasis added). Furthermore, in Spevack v. Klein, 385 U.S. 511, 515, 87 S.Ct. 625, 628, 17 L.Ed.2d 574 (1967), the United States Supreme Court determined that a penalty may be anything that makes the assertion of a constitutional right costly. If used properly, the privilege against self-incrimination is not a proper basis for a death-penalty sanction. The Texas Supreme Court has had occasion to revisit TransAmerican, and continues to insist that death-penalty sanctions are inappropriate absent a finding of bad faith. See Otis Elevator Co. v. Parmelee, 850 S.W.2d 179, 181 (Tex.1993) (<HOLDING>); Remington Arms Co., Inc. v. Caldwell, 850 Holdings: 0: holding that without a demonstration of bad faith on the part of the attorney in question sanctions pursuant to this statute are inappropriate 1: holding deathpenalty sanctions inappropriate where party inadvertently failed to comply with courts order and nothing in the record  even approaches the flagrant bad faith or abuse necessary for the imposition of such sanctions 2: holding that where party had reasonable grounds to believe conduct was in compliance with the district courts order imposition of sanctions was not warranted and constituted an abuse of discretion 3: holding deathpenalty sanctions inappropriate where plaintiff refused to name coworkers who used drugs and was late in answering interrogatories because of attorneys illness because there was no indication of bad faith 4: holding that the imposition of sanctions is reviewed for abuse of discretion


Input: form or ceremony was necessary for dedication of land, and that title to land dedicated to public use inured to the benefit of the donee, i.e., the City of New Orleans). Similarly, Plaintiffs admit that “there is no doubt .the Beauregard Equestrian Monument is inside City Park,” R. Doc. 139-3 at 3, and there is also “no question that the property of City Park ... has always belonged to the City, of New Orleans.” See City of New Orleans v. State, 443 So.2d 562, 570 (La. 1983). Similarly, the Jefferson Davis Monument is located in the neutral ground of Jefferson Davis Parkway, which is also public property. See La. Civ. Code art. 450. Finally, State ex rel. Singelmann v. Morrison makes clear that the City has authority to remove the Monuments. 57 So.2d 238, 244 (La. Ct. App. 1952) (<HOLDING>). In all, the City owns the. property upon Holdings: 0: holding that city attorneys promise in an oral settlement agreement for city to annex and rezone land was within the legal authority of the city of joliet to accomplish and were not absolutely void acts per se therefore city could be estopped from avoiding enforcement of contract 1: holding that the city of new orleans had the right to permit erection on public property of a privatelyfunded memorial to the memory of mother cabrini 2: holding that city rules governing taxicab rides to destinations outside of the city are not invalid merely because they incidentally embrace activities outside of the city 3: holding that a private association could not erect a memorial on public property without consent of the governing authority that the location manner and design of statues is within the discretion of the governing authorities of the city of new orleans and that the city of new orleans can require removal of monuments located on public property 4: holding in the context of a case involving the availability for public inspection of criminal docket books that files in the possession of the clerk of the criminal court of the city of new york are public records which may be fully examined by any person unless the papers have been sealed from public scrutiny by the court or by the terms of a statute


Input: the confidential informant was a buyer or recipient because the enhancement applies with respect to the undercover officer who was undisputedly a buyer and recipient. JULIA SMITH GIBBONS, Circuit Judge, concurring. I concur in full in Parts I — III of the opinion. With respect to Part TV, I would caution against deciding this case on the rationale utilized in the majority court opinion. "While the opinion correctly states that the individual’s possession of the firearm in question need not be actually unlawful, it overlooks the fact that the defendant must have had knowledge or reason to believe that the individual to whom the firearm was transferred had certain prior convictions or is under a criminal justice sentence. See United States v. Asante, 782 F.3d 639, 643-44 (11th Cir.2015) (<HOLDING>); United States v. Howard, 539 Fed.Appx. 904, Holdings: 0: holding that the defendants actions fell under the unlawful possession prong where the defendant transferred at least one firearm to a known felon 1: holding that the government must prove the defendant knew of the features of the firearm that brought it within the scope of the act 2: holding that the government failed to prove the defendants actions fell under the unlawful possession prong bjecause the government failed to present any evidence that the defendant knew that his conduct would result in a firearm being transferred to an individual falling under the narrow guidelines definition of an individual in unlawful possession 3: holding that both the unlawful possession and unlawful use prongs were met and noting that the firearm transferred to the individual was not registered making the individuals possession of it necessarily unlawful 4: holding that the government was required to prove that the defendant lacked a license to possess a firearm but not that the defendant possessed the firearm for any duration of time


Input: term of the probation, the trial court should be able to weigh that violation in its reevaluation of whether the defendant should be or should have been granted probation.... Once a defendant has been sentenced, the court may revoke or modify probation, upon a proper showing of a violation, at any time before the completion of the probationary period. Gardner v. State, 678 N.E.2d 398, 401 (Ind.Ct.App.1997) (internal citations and footnote omitted). Pugh claims the trial court abused its discretion by revoking her probation because her only probation violation was drinking vodka. Courts of this state have held on numerous occasions that the use of alcohol or drugs was sufficient to support the trial court's revocation of probation. See, e.g., Cox v. State, 706 N.E.2d 547, 552 (Ind.1999) (<HOLDING>), reh'g denied; Crump, 740 N.E.2d at 573 Holdings: 0: holding probation revocation is not a stage of a criminal prosecution 1: holding trial court did not abuse its discretion in revoking defendants probation when urinalysis tested positive for use of morphine 2: holding that standard for revocation of probation is preponderance of the evidence 3: holding defendant cannot establish prejudice merely by alleging court held probation revocation hearing after defendants period of probation expired 4: holding defendants positive urinalysis test for marijuana use was sufficient to support revocation of defendants probation


Input: mere anxiety or annoyance. Because of our ruling in Lopez, which was well argued before the trial court in this case, I would hold that the court erred in its application of the emotional distress prong of the stalking statute to the findings in this case. 127 In reviewing the trial court's application of the second element of the stalking statute to the facts in this case, the findings support the trial court's conclusion that Bayles knew or should have known that his conduct would cause emotional distress to Bailey. However, the court did not specifically find, in support of this element, that plaintiff suffered from more than anxiety and annoyance, perhaps because plaintiff put on no objective evidence thereof. CJ Hansen v. Mountain Fuel Supply Co., 858 P.2d 970, 973-75 (Utah 1993) (<HOLDING>); White v. Blackburn, 787 P.2d 1315, 1317-18 Holdings: 0: holding that emotional distress requires a showing of either physical symptoms or mental illness 1: holding that employee could not state a claim for negligent infliction of emotional distress under fela without a showing of physical impact 2: holding that title 42 usc  1997ee requires proof of a physical injury before a prisoner can recover for emotional or mental distress and that verbal abuse is not actionable under section 1983 3: holding in a fcra case that plaintiffs may not rely on mere  conclusory statements  rather they must  sufficiently articulate  true demonstrable emotional distress  including the factual context in which the emotional distress arose evidence corroborating the testimony of the plaintiff the nexus between the conduct of the defendant and the emotional distress the degree of such mental distress mitigating circumstances if any physical injuries suffered due to the emotional distress medical attention resulting from the emotional duress psychiatric or psychological treatment and the loss of income if any 4: holding that under south dakota law compensation for negligent infliction of emotional distress requires manifestation of physical symptoms and intentional infliction of emotional distress requires an extreme disabling emotional response


Input: failing to “properly investigate any avenues of defense” — other claims, such as the claim that counsel failed to move to suppress the drugs and failed to contact the owners of the building, present issues upon which the District Court could have proceeded. Furthermore, some of Mercer’s other claims, such as the claim that the prosecution had bribed Yians and Hart, are not the type of claims that Mercer could realistically support at this stage of the proceedings; while Mercer may well fail to meet his burden of proof on these claims, he alleged sufficient facts to withstand summary dismissal. Therefore, we believe that the District Court should consider anew the various grounds for relief, and dismiss only those grounds that are truly vague and conclusory. See Thomas, 221 F.3d at 437 (<HOLDING>). Accordingly, we will summarily vacate the Holdings: 0: holding that appellate court should overturn a district courts denial of a motion to amend a complaint only if the district court has abused its discretion 1: holding that the trial court had abused its discretion in dismissing the case without allowing appellants an opportunity to amend 2: holding that district court had not abused its discretion in denying plaintiffs motion to amend complaint 3: holding that the district court erred in summarily dismissing a  1983 complaint that should have been brought as a habeas petition 4: holding that the district court abused its discretion by summarily dismissing all 26 grounds in a  2255 motion where only certain claims were vague and conclusory


Input: as to whether there was contact between the bus and Requester’s vehicle, the adjuster nonetheless reviewed them as part of the noncriminal investigation into Requester’s claim against the Authority. The plain language of the noncriminal investigation exemption is also instructive. As Section 708(b)(17)(ii) of the RTKL provides, a record is exempt when it relates to a noncriminal investigation and includes “investigative materials.” The noncriminal investigation at issue (1) commenced when Requester filed a property damage claim with the Authority involving one of its buses; (2) was conducted pursuant to the Authority’s self-insurance right and power; and (3) was tantamount to a systematic or searching inquiry and/or a detailed examination. Dep’t of Health, 4 A.3d at 810-811 (<HOLDING>). Accordingly, the recordings, which the Holdings: 0: holding that a section 1983 suit against an officer in his or her official capacity is simply another way of pleading an action against an entity of which an officer is an agent 1: holding that an investigation means a systematic or searching inquiry a detailed examination or an official probe 2: holding that based upon means similar to or supported by 3: holding that after a reasonable investigation an insurer must promptly settle a claim for the value or within the range assigned to the claim as a result of its investigation 4: holding that punitive damages are not recoverable against a state official sued in his or her official capacity


Input: could constitute objective indicia of Israel’s knowledge of the underlying felony that the State was alleging that he committed. At best, the record reveals that Israel suspected that the underlying felony alleged was Terroristic Threatening in the First Degree and made arguments based on that suspicion in his motion to dismiss; such suspicion does not rise to the lev ulars was supplied by the State and there is nothing in the record to suggest that any materials provided in response to Israel’s discovery requests identified the underlying felony alleged as part of the HRS § 134-6(a) charge. Moreover, the State cannot rely on the mere possibility that the underlying felony might have been revealed by a bill of particulars or via discovery. Cf. Robins, 66 Haw. at 316, 660 P.2d at 42 (<HOLDING>). Therefore, we hold that the State failed to Holdings: 0: holding that discovery under the federal rules of civil procedure is broad in scope and freely permitted 1: recognizing that the scope of issues in interlocutory appeals is limited 2: recognizing that the facts that a bill of particulars is discretionary with the judge pursuant to hrpp rule 7a and that other discovery rules are limited in scope might prevent a defendant from discovering the states position 3: recognizing that while summary judgment is improper if the nonmovant is not afforded a sufficient opportunity for discovery it is the nonmovants responsibility to inform the district court of the need for discovery by filing an affidavit pursuant to rule 56f of the federal rules of civil procedure or filing a motion requesting additional discovery 4: holding that a discovery exception to a statute of limitation applies only to the discovery of facts not discovery of the law


Input: rationale that an em ployer’s duty to provide a safe work place is inseparable from its general duties as an employer. See, e.g., Royster v. Montanez, 134 Cal. App.3d 362, 184 Cal. Rptr. 560 (1982); Holzworth v. Fuller, 122 N.H. 643, 448 A.2d 394 (1982); Gore v. Amoco Production Co., 616 S.W.2d 289 (Tex.Civ.App.1981); Stone v. United States Steel Corp., 384 So.2d 17 (Ala.1980). We conclude that this case falls within the latter category of cases, where application of the doctrine would undermine the policy sought to be achieved by the Workers’ Compensation Law. Therefore, we refuse to apply the doctrine here and affirm the entry of summary judgment in favor of Atlantic Federal on the wrongful death claims. See Doe v. St. Michael’s Medical Center, 184 N.J. Super. 1, 445 A.2d 40 (1982) (<HOLDING>); see also Katchis v. Miami Heart Institute, Holdings: 0: holding that a plaintiff can show that she is qualified by presenting credible evidence that she continued to possess the objective qualifications she held when she was hired 1: holding that defendant had reasonable expectation of privacy in a hotel room rented by relatives when he had a key to the room and permission to use the room at will 2: holding that a hotel guest has a legitimate expectation of privacy in his room during the period of time for which the room is rented 3: holding that workers compensation statute barred suit of medical technologist who was allegedly raped and robbed in dormitory room which she rented from the hospital at which she was employed 4: recognizing that at least for certain purposes a hospital room is fully under the control of the medical staff yet for other purposes it is the patients room  because patient understands that nurses doctors food handlers and others enter and exit hospital room in accordance with medical need and hospital routine


Input: of any position at the Inco plant, let alone those that were vacant or otherwise available to Plaintiff at the limited time in question. Kentucky law simply does not require the placement of a disabled worker in a job where he poses a hazard to himself or others as a form of reasonable accommodation. Blanton’s primary argument on appeal is that there still remain material issues of fact that preclude summary judgment. We are not persuaded. First, although Blanton was not estopped from pursuing his claim by reason of his representations of total disability to the Workers’ Compensation Commission and the Social Security Administration, what he related about his inability to work at the pertinent time was an important factor in the grant of summary judgment. See Blanton, 123 F.3d at 917 (<HOLDING>). Blanton had been a long-time faithful, Holdings: 0: holding that previous sworn statements made by a plaintiff in his request for disability benefits is a material factor for the court to consider in determining whether he is entitled to ada relief 1: holding if a plaintiff claiming discrimination under the ada demonstrates that his or her disability played a motivating role in the employment decision the plaintiff is entitled to relief 2: holding that although disability benefits cannot be included as part of the marital estate a court may consider the waiver of retirement pension benefits in favor of disability benefits in determining whether there has been a material change in circumstances which would justify modification of an alimony award to a former spouse who was previously awarded a fixed percentage of the retirement pension benefits 3: holding without applying the doctrine of judicial estoppel that the plaintiff who made sworn statements of total disability in a social security disability application and then testified at her deposition that she was not totally disabled failed to raise a genuine issue of material fact as to whether she was a qualified individual with a disability within the meaning of the ada 4: holding that whether a person has a disability under the ada is an individualized inquiry


Input: a moving party may succeed on summary judgment. See id. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. See Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999); Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993). Rather, t d injury is likely to be redressed by a favorable decision of this court. See Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (1992); Tozzi v. U.S. Dep’t of Health and Human Servs., 271 F.3d 301 (D.C.Cir.2001) (recognizing that upgrade classification change from “reasonably anticipated” to “known” carcinogen caused some economic injury that could be redressed by reversing the classification). An organization has standing only if it meets a separate three-prong test. See Truckers United for Safety v. Mead, 251 F.3d 183 (D.C.Cir.2001) (<HOLDING>). Such standing exists where the organization’s Holdings: 0: holding that plaintiffs lacked standing to sue 1: holding that employers have standing to sue 2: holding the homeowners association had standing to sue under the theory of promissory estoppel 3: holding that a motor carriers association has standing to sue on behalf of its members for department of transportations alleged abuses of agency authority 4: holding noncustodial father did not have standing to sue on his daughters behalf


Input: 318, 66 S.Ct. 154; see Helicopteros Nacionales, 466 U.S. at 414, 104 S.Ct. 1868 (“Even when the cause of action does not arise out of or relate to the foreign corporation’s activities in the forum State, due process is not offended by a State’s subjecting the corporation to its in personam jurisdiction when there are sufficient contacts between the State and the foreign corporation.”). ¶ 15 International Shoe and the cases immediately following it addressed only in personam jurisdiction. Thus, the sole constitutional issue when a state sought to exercise either in rem or quasi in rem jurisdiction continued to be the one posed by Pennoyer: Was the relevant property within the jurisdiction of the state? See, e.g., Hanson v. Denckla, 357 U.S. 235, 246, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958) (<HOLDING>). The hoary doe trine of Harris v. Balk, 198 Holdings: 0: holding that the basis of in rem jurisdiction is the presence of the subject property within the territorial jurisdiction of the forum state 1: holding that where prior state court had in rem jurisdiction district court could maintain in personam jurisdiction and simply deny requests for conflicting in rem relief because district court is fully capable of preventing inappropriate conversion of the suit to a proceeding truly in rem 2: holding that an action quasi in rem requires a seizure of property within the jurisdiction of the court or its equivalent 3: holding that in a quasi in rem action a district court does not have jurisdiction over the res when that property is not physically within the same state as the court 4: holding that a party cannot waive in rem jurisdiction under florida law and a court proceeding pursuant to in rem jurisdiction must actually possess in rem jurisdiction over the property that is the subject of the matter


Input: assertion of jurisdiction over all co-conspirators, residents and nonresidents, based upon their involvement in a conspiracy which occurred within the forum. Under the conspiracy theory, the plaintiff must: (1) make a prima facie factual showing of a conspiracy (i.e., point to evidence showing the existence of the conspiracy and the defendant’s knowing participation in that conspiracy); (2) allege specific facts warranting the inference that the defendant was a member of the conspiracy; and (3) show that the defendant’s co-conspirator committed a tor-tious act pursuant to the conspiracy in the forum. Kohler Co. v. Kohler International, Ltd., 196 F.Supp.2d 690 (N.D.III.2002). See also American Land Program, Inc. v. Bo-naventura Uitgevers Maatschappij, N.V., 710 F.2d 1449 (10th Cir.1983) (<HOLDING>). In this case, Plaintiff alleges as a “fourth Holdings: 0: recognizing requirement that defendant conspired to commit an overt act in state in furtherance of the conspiracy 1: holding that a conspiracy is an agreement to commit an illegal act into which the defendant knowingly and voluntary enters and which is manifested by an overt act 2: holding criminal conspiracy is sustained where the commonwealth establishes the defendant entered into an agreement to commit or aid in an unlawful act with another person with a shared criminal intent and an overt act was done in furtherance of the conspiracy a coconspirator may commit the overt act and conspirators are liable for acts of the coconspirators committed in furtherance of the conspiracy 3: holding that telephone conversations and meetings were overt acts in furtherance of a drug conspiracy 4: holding that in a conspiracy case venue lies where the conspiracy agreement was formed or in any jurisdiction where an overt act in furtherance of the conspiracy was committed by any of the conspirators


Input: 298 S.W.3d at 638 (citations omitted). 34 . Robinson, 923 S.W.2d at 557. 35 . Id. (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590, 113 S.Ct. 2786, 2795, 125 L.Ed.2d 469 (1993)). 36 . Nichols, 379 S.W.3d at 381-82 (citations omitted). 37 . Sw. Country Enters., Inc. v. Lucky Lady Oil Co., 991 S.W.2d 490, 493 (Tex.App.-Fort Worth 1999, pet. denied). 38 . Id. 39 . Id. 40 . Id. 41 . Id. at 493-94; see also Tex.R.App. P. 33.1(a)(1)(B), 33.2; Tex.R. Evid. 103(a)(2). 42 . Sw. Country Enters., 991 S.W.2d at 494. 43 . Enbridge Pipelines (E.Tex.j LP. v. Avinger Timber, LLC, 386 S.W.3d 256, 262 (Tex.2012) (citing Robinson, 923 S.W.2d at 558; Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.19 W.2d 147, 150 (Tex.App.-Houston [1st Dist.] 1983, no writ) (<HOLDING>). 54 . See Gen. Motors v. Burry, 203 S.W.3d Holdings: 0: holding that trial court properly excluded doctors testimony that some of plaintiffs symptoms could be associated with alcoholism or alcohol withdrawal when no competent evidence indicated plaintiff was alcoholic or suffered from alcohol withdrawal 1: holding that delay resulting from defense counsels withdrawal based upon a conflict of interest was properly excluded from 180day time period 2: holding that the fourth amendment is implicated by the withdrawal of blood to test its alcohol content 3: holding a trial courts decision involving withdrawal or discharge of counsel is subject to review for abuse of discretion 4: holding that the trial court was authorized to conclude that probable cause supported an arrest for dui when evidence showed that the officer detected the odor of alcohol coming from the defendants vehicle the defendant admitted to having consumed alcohol her breath tested positive for the presence of alcohol her speech was slurred and her eyes were red and watery and she failed the oneleg stand field sobriety test


Input: property to the seller. Consequently, buyers argue that the February 24, 2013 transfer by the seller to Scenic View Farms, a de facto partnership, was not only unnecessary, but in fact transferred title to the property to Albert Misciagna and Peter Martin, and acted to frustrate, if not prevent, the transfer of good and marketable title to the property by seller to buyers as required by the agreement. In reviewing this history, we agree with the buyers’ assessment of the law, but disagree that seller acted in bad faith, finding instead that seller’s reliance on the advice of counsel was in good faith, albeit in error. “A deed that purports to convey real estate to a nonexistent corporation has no effect.” Borough of Elizabeth v. Aim Sher Corporation, 462 A.2d 811, 812 (Pa. Super. 1983) (<HOLDING>)', see also Lester Associates v. Commonwealth, Holdings: 0: holding that any property in which the taxpayer has any right title or interest is subject to foreclosure proceeding including property in which others claim an interest so long as all persons having liens or claiming any interest in the property are joined as parties to the suit 1: holding that because no claims had been filed against the debtor existence of entity coverage did not make proceeds property of the estate 2: holding that magistrate judge had jurisdiction to enter default judgment in an in rem forfeiture action even though property owner had not consented to it because 28 usc  636c1 only requires the consent of the parties and the property owner having failed to comply with the applicable filing requirements was not a party 3: holding that the superior court had no jurisdiction over the division of marital property when the district court had properly invoked jurisdiction over the property 4: holding that where an owner of property deeded the property to a corporation which had not been incorporated no articles of incorporation having been filed and which did not have any de facto existence before the filing of articles of incorporation over a year later the transfer was void ab initio


Input: 238 (stating that "the argument by a trial counsel must be viewed within the context of the entire court-martial. The focus of our inquiry should not be on words in isolation, but on the argument as 'viewed in context.’ ”) (citations omitted). 16 . United States v. Fletcher, 62 M.J. 175, 179 (C.A.A.F.2005) (citations omitted). 17 . See Carter, 61 M.J. at 33; see, e.g., Gilley, 56 M.J. at 120-21 (citing Robinson, 485 U.S. at 32, 108 S.Ct. 864). 18 . See, e.g., United States v. Young, 470 U.S. 1, 11-12, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (stating that "[¡Inappropriate prosecutorial comments, standing alone, [do] not justify a reviewing court to reverse a criminal conviction obtained in an otherwise fair proceeding”). 19 . See United States v. Carpenter, 51 M.J. 393, 396 (C.A.A.F.1999) (<HOLDING>). 20 . Appellant also alleged various claims of Holdings: 0: holding that the governments failure to argue harmless error results in a waiver of the argument 1: holding argument not waived for failure to object where party previously raised argument and district court considered and rejected it 2: holding that the appellant waived an argument listed only in his summary of the argument 3: holding that in light of the appellants failure to object to the prosecutions rebuttal argument against him any error in the prosecutions argument was harmless 4: holding the error harmless in light of the overwhelming evidence of guilt


Input: passed over for promotions. See Dkt. No. 6 at ¶ 11. Although Plaintiff does not expressly provide the allegations contained in this internal discrimination complaint, it is clear that he was alleging that he was passed over in retaliation for his advocacy in opposition to the Roman Catholic Church’s handling of sexual abuse cases and in support of sexual abuse victims. Moreover, a second possible “protected activity” occurred on April 6, 2011 when he reported to Defendant OASAS’ Affirmative Action manager and Human Resources that Defendant Felter subjected Mm “to harassment and public ridicule” in front of co-workers. See id. at ¶ 14. Although Plaintiff may have felt that he •was the subject of retaliation, the amended complaint makes clear that Pl 11 F.Supp.2d 481, 488 (S.D.N.Y.2002) (<HOLDING>). Based on the foregoing, the Court finds that Holdings: 0: holding that many actions taken by an employer though unfavorable to an employee do not constitute a basis for discrimination because they do not qualify as an ultimate employment decision 1: holding that relief granted under title vii is against the employer not individual employees whose actions constituted a violation of title vii emphasis in original 2: holding that complaints regarding violation of employer policies unrelated to impermissible discrimination do not fall within the scope of title vii and therefore do not qualify for protection under the statute 3: holding individual defendants are not an employer within meaning of title vii 4: holding the employees complaints must give adequate notice to the employer that the employee is complaining of conduct prohibited by title vii


Input: take much to establish probable cause”). Given everything that Raisbeck knew at the time of the arrest, it was reasonable for him to believe that Miller had sold 2317, 76 L.Ed.2d 527 (1983) (same). The phone calls that Detective Raisbeck had overheard and the surveillance of the restaurant provided even more corroboration. Although the detectives had not witnessed Miller do or say anything overtly incriminating on the day of the controlled buy, his actions were suspicious when considered in context. For example, Miller entered the restaurant with no apparent legitimate purpose only moments after Nicole had told him she “needed a hundred,” a phrase Raisbeck interpreted as a request to purchase $100 worth of crack cocaine. See United States v. Burnside, 588 F.3d 511, 518 (7th Cir. 2009) (<HOLDING>); United States v. Funches, 327 F.3d 582, 586 Holdings: 0: holding that while some conduct consistent with drug activity may not arouse suspicion in an average citizen an officers training and experience of how drug crimes are committed may provide the officer with a different perspective and should factor into the rubric when determining the reasonableness of the officers suspicion 1: holding that a police officers opinion that a defendant was most definitely engaged in drug dealing was not proper lay testimony because it was based on the officers specialized training in narcotics and extensive experience in methamphetamine cases 2: recognizing officers qualification to offer nonscientific expert opinion of intoxication based on training and experience 3: recognizing that officers are entitled to rely on training and experience in forming belief that drug transaction has occurred 4: holding experts experience knowledge and training is considered in determining reliability


Input: was not a deadly weapon, its context in appellant’s brief demonstrates that it is being asserted only to support the contention that the complainant did not suffer a serious bodily injury. 4 . See, e.g., Prystash v. State, 3 S.W.3d 522, 527 (Tex.Crim.App.1999). This is true even if the trial judge failed to give a reason or gave a wrong reason for the ruling. See id. 5 . Appellant’s expert made no assessment of the extent or magnitude of the injuries to the complainant’s mouth. Therefore, even if the relevant injury were confined to that solely resulting from the impact of the bottle, the expert provided no evidence that the complainant had not suffered serious injury in the form of disfigurement or impairment. 6 . See also Hamel v. State, 916 S.W.2d 491, 493 (Tex.Crim.App.1996) (<HOLDING>); Riddle v. State, 888 S.W.2d 1, 6-7 (Tex.Crim. Holdings: 0: holding that the driver of a car who had permission to use the car had standing to challenge its search 1: holding that deadly force was unreasonable where according to the plaintiffs version of facts the decedent possessed a gun but was not pointing it at the officers and was not facing the officers when they shot him 2: holding that officers positioning himself next to his patrol car with gun drawn and then firing was a discretionary use of deadly force 3: holding that instruction on use of deadly force was not required where there was no evidence that decedent had attempted to assault appellant appellant could not retreat or that decedent was armed 4: holding that instruction on use of deadly force was required where appellant was aware of the decedents violent history decedent had a gun in his car and appellant used force only after decedent had made an attempt to approach his car


Input: After reviewing the transcript of the suppression hearing, we conclude that the record amply supports the district court’s finding that this encounter between Cunningham and the officers was a consensual police-citizen encounter that does not trigger Fourth Amendment scrutiny. See id. at 310 (listing factors appropriate for consideration in reviewing whether a seizure has occurred). Cunningham also challenges the district court’s finding that he voluntarily consented to the search of the vehicle. We conclude, however, that the facts of the encounter between Cunningham and the officers confirm that Cunningham consented to the search of the vehicle and that such consent was voluntarily given. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (<HOLDING>); United States v. Lattimore, 87 F.3d 647, 650 Holdings: 0: holding that in determining the voluntariness of a waiver of miranda rights a court must evaluate the totality of the circumstances 1: holding threat to obtain a search warrant if individual does not consent to a search is just one factor in deciding whether the totality of the circumstances supports a voluntary consent finding 2: holding that the government bears the burden of proving voluntary consent under the totality of the circumstances 3: recognizing that the ultimate question of the voluntariness of consent is one of law 4: recognizing that consent is an exception to the warrant requirement and that voluntariness of consent depends on the totality of the circumstances


Input: part; DISMISSED in part. * This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. 1 . See Lara-Chacon v. Ashcroft, 345 F.3d 1148, 1151 (9th Cir.2003) (stating that we review de novo "whether a conviction under state law is a deportable offense”); 8 U.S.C. § 1227(a)(2)(B)(i) (stating that an alien is removable if he "has been convicted of a violation of (or a conspiracy or attempt to violate) any law ... relating to a controlled substance ..., other than a single offense involving possession for one’s own use of 30 grams or less of marijuana”). 2 . See 21 U.S.C. § 802(6), § 812 sched. 111(a)(3) (providing that methamphetamine is a controlled substance). 3 . See United States v. Velasco-Medina, 305 F.3d 839, 852-53 (9th Cir.2002) (<HOLDING>). 4 . See 8 U.S.C. § 1252(a)(2)(B)(i) Holdings: 0: holding that defendant was entitled to withdraw guilty plea upon habeas corpus proceedings where he pled guilty in exchange for an illegal sentence 1: holding that the abstract of judgment may not sufficiently establish that the defendant pled guilty to a specific crime when the only other document provided was the charge which simply contained the generic broad statutory language 2: holding that a defendant must demonstrate that he would not have pled guilty but for the error 3: holding circuit court had subject matter jurisdiction to accept a guilty plea where defendant was not indicted for the charge to which he pled guilty but signed a sentencing sheet which established defendant was notified of the charge to which he pled guilty 4: holding that in conjunction an information with a narrow charge and an abstract of judgment indicating that a defendant pled guilty to that charge prove the precise elements of the offense to which the defendant pled guilty


Input: 274, 280 (1969). 2 . Federal Rule of Criminal Procedure 11(b)(1)(e) specifically requires an advisement of the defendant’s right to compel the attendance of witnesses. 3 . SDCL 23A-27-6 provides: The report of a presentence investigation shall contain any prior criminal record of the defendant and such information about his characteristics, his financial condition, and the circumstances affecting his behavior as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant, and such other information as may be required by the court. 4 . It is important to note that this is not a case where a defendant sought to contest the factual allegations contained in a presentence report. See Hansen v. Kjellsen, 2002 SD 1, ¶ 11, 638 N.W.2d 548, 552 (<HOLDING>); State v. Jensen, 1998 SD 52, ¶ 58, 579 N.W.2d Holdings: 0: recognizing the right of a defendant to comment upon the failure of the state to produce evidence 1: recognizing the defense has a right to comment on the presentence report and may introduce evidence 2: holding that if the government fails to object to the presentence report the district courts reliance on the report is reviewed for plain error 3: holding that the information contained in a presentence report is reliable because it is based upon the presentence officers research of the records contact with relevant agencies and the gathering of information which is required to be included in a presentence report 4: holding that the district court erred in requiring the defense to disclose a report which the defense did not intend to introduce into evidence and which was merely designed to aid in the crossexamination of a witness for the state


Input: The defendant argued that the victim consented to the beating because the two had an agreement that if the victim “consumed any alcoholic beverages (and/or became intoxicated), [defendant] would punish her by physically assaulting her.” Id. Appropriately, the court held unequivocally that “no one has the right to beat another[,] even though that person may ask for it.” Id. at 31. Accordingly, we hold that consent is not a defense to a charge of assault with significa Dec. 221, 623 N.E.2d 811, 814 (1993) ("[W]e are inclined to agree with the commentators and a number of our sister States who found consent not to be a defense to a battery based on injurious touching.”). 5 . Helton v. State, 624 N.E.2d 499, 514-15 (Ind.Ct.App.1993); see also Jaske v. State, 539 N.E.2d 14, 18 (Ind.1989) (<HOLDING>); cf. Durr v. State, 722 So.2d 134, 135 Holdings: 0: holding that consent is not a defense to the charge of second degree assault where the assault occurred in the context of a prison fight between inmates 1: holding that consent to participate in the initiation into a prison gang is not a defense to the charge of battery 2: holding that assumption of the risk is not an available defense for civil battery 3: holding that battery is an inherently included offense of aggravated battery 4: holding that in pennsylvania lack of informed consent claims utilize a battery standard that is a physician commits battery where the patient does not consent to the procedure on his person thus constituting a harmful or offensive contact


Input: Justice v. Miller, 51 S.W.3d 583 (Tex.2001), an inmate was treated for nausea and severe headaches by the administration of various medications and other treatments before he was diagnosed with meningitis and died of that illness. Id. at 585. His widow claimed that his death was caused by the misuse of tangible property because the staff improperly administered medication and misused certain medical equipment. Id. The supreme court noted: There cannot be waiver of sovereign immunity in every ease in which medical treatment is provided by a public facility. Doctors in state medical facilities use some form of tangible personal property nearly every time they treat a patient. If there is waiver in all of those cases, the waiver of im 77, 380-82 (Tex.App.-Corpus Christi 2004, no pet.) (<HOLDING>); Ward, 280 S.W.3d at 356 (holding that alleged Holdings: 0: holding that contractors who constructed a large machine to employers specifications cannot be liable to injuries caused to employee as a result of the absence of certain safety features 1: holding that printouts from a breath test machine are not hearsay but rather the mechanicallygenerated reports automatically created by the machine they do not constitute outofcourt statements by any person or the conclusion of a third party not before the court   internal citations omitted 2: holding that state trade secret law could not protect vending machine mechanism where machine was sold to third party 3: holding that a machine that allegedly eliminated lumps from womens breasts was governed by the ffdca even though the fda did not require the use of such a machine 4: holding that allegations that injuries were caused by misuse of ekg machine did not fall within waiver provisions of ttca because plaintiff had not made affirmative allegation that ekg machine was incorrectly used or that its results were erroneous and reasoning that misuse of information produced by ekg machine caused injuries rather than device itself


Input: immediate vesting of such rights in the donee.”). Until the donor has absolutely and irrevocably divested herself of the title, dominion, and control of the subject of the gift, she has the power to revoke the gift. Edwards, 38 S.W.3d at 197; see also Troxel, 201 S.W.3d at 296 (“All dominion and control over the property must be released by the owner.”). The donee does not have ownership of the subject of the gift until complete ownership has been transferred from the donor to the donee. Edwards, 38 S.W.3d at 197. An inter vivos gift must be absolute and not open for future reconsideration. Soto v. First Gibraltar Bank, FSB San Antonio, 868 S.W.2d 400, 403 (Tex.App.-San Antonio 1993, writ ref'd); see also Dorman v. Arnold, 932 S.W.2d 225, 228 (Tex.App.-Texarkana 1996, no writ) (<HOLDING>); Woodworth v. Cortez, 660 S.W.2d 561, 564 Holdings: 0: holding that as matter of law present donative intent not shown because donor intended for property to remain his until his death 1: holding that the doctrine of ademption seeks to give effect to a testators probable intent by presuming he intended to extinguish a specific gift of property when he disposed of that property prior to his death 2: holding the respondent  implicitly exercised his right to withdraw his voluntary departure request and instead  elected to remain to pursue his motion 3: holding that the district court did not err as a matter of law in issuing a discovery order because a death row habeas petitioner had shown good cause for seeking discovery 4: holding that the defendant did not invoke his right to counsel because his statement i wanna call my lawyer when read in context did not represent a request to terminate the interrogation until his counsel was present


Input: state provide him with a free transcript of the separate trial of a codefendant, the defendant must show that that transcript will be valuable to him. “In the present case, defendant did not show in the trial court and does not show on appeal how the transcript of the Audison trial would have assisted in trial preparation or impeaching witnesses. Therefore, we hold that the trial court did not err in denying defendant’s motion for the production of portions of the Audison trial transcript. 126 Mich.App. at 766-69, 337 N.W.2d at 917-18. Thus, where a defendant requested a transcript of a proceeding involving a codefendant, to which he was not a party, a number of jurisdictions have required a showing of particularized need. See People v. Russell, 7 Ill.App. 3d 850, 289 N.E.2d 106 (1972) (<HOLDING>). Similarly, in State v. Tison, 129 Ariz. 526, Holdings: 0: holding that the defendant was entitled to counsel when the offense for which he was tried could result in the imposition of a jail sentence 1: holding that the defendant may not state one ground at trial and another on appeal 2: holding that a defendant was entitled to a transcript of the trial of codefendants who were tried together and convicted where one of the convictions was reversed on the ground of reasonable doubt 3: holding that where there were two possible grounds to revoke defendants probation and only one ground was relied on to revoke his probation defendant was not entitled to jailtime credit when he was later convicted on the offense that constituted the other ground it did not matter that the authorities learned about the ground for revocation while investigating the offense for which he was convicted sjection 558031 requires only that custody be related to the offense on which credit is sought because his custody was not related to the convicted offense he did not get any credit 4: recognizing that a defendant may not raise one ground for objection at trial and argue a different ground on appeal


Input: Inc., 64 F.Supp.2d 1156, 1164 (M.D.Ala.1999) (finding that the plaintiffs were entitled to recover $115.00 in actual damages for correspondence and travel and finding genuine issue of material fact as to whether the plaintiffs suffered actual damages in the amount of time taken away from work to prepare correspondence and travel to pick up registered mail); John-stone v. Bank of America, N.A, 173 F.Supp.2d 809, 816 (N.D.Ill.2001) (finding that plaintiff could recover for loss of time and inconvenience provided that she could establish actual pecuniary loss); Cortez v. Keystone Bank, Inc., No. 98-2457, 2000 WL 536666, *12 (E.D.Pa. May 2, 2000) (acknowledging that if the loan servicer failed to make appropriate corrections within 60 days after receiving a 2d 809, 815 (N.D.Ill.2001) (<HOLDING>); Wright v. Litton Loan Servicing LP., No. Holdings: 0: holding that under privacy act federal government waived its sovereign immunity with respect to actual damages but not with respect to damages for mental or emotional distress 1: holding that plaintiffs respa claim failed as a matter of law where it did not allege actual damages 2: holding that even emotional damages could constitute actual damages for purposes of  2605f1a 3: holding that a plaintiff can seek statutory damages even in the absence of actual damages 4: holding that actual damages under respa included emotional damages


Input: “look[ed] into this Court’s computer.” Id. at 5-6. To prevail under Rule 60(b)(2), “the movant must demonstrate that: (1) the newly discovered evidence is of facts that existed at the time of trial or other disposi tive proceeding; (2) the party seeking relief was justifiably ignorant of the evidence despite due diligence; (3) the evidence is admissible and is of such importance that it probably would have changed the outcome; and (4) the evidence is not merely cumulative or impeaching.” Duckworth v. U.S. ex rel. Locke, 808 F.Supp.2d 210, 216 (D.D.C.2011). Here, Walsh argues that his allegations have been confirmed by Edward Snowden. However, information that merely confirms Walsh’s assertions is not new information for the purposes of Rule 60(b)(2). See Duckworth, 808 F.Supp.2d at 216 (<HOLDING>). Rule 60(b) is not “a vehicle for presenting Holdings: 0: holding error in admission of evidence is harmless when it was merely cumulative to other evidence in the record 1: holding that new evidence must be evidence that is not merely cumulative 2: holding impeachment evidence was not merely cumulative where the withheld evidence was of a different character than evidence already known to the defense 3: holding that to justify a new trial based upon newly discovered evidence 1 the evidence must have been discovered after trial 2 the failure to discover this evidence must not be attributable to a lack of due diligence on the part of the movant 3 the evidence must not be merely cumulative or impeaching 4 the evidence must be material and 5 the evidence must be likely to produce an acquittal if a new trial is granted 4: holding that material submitted by appellant that is cumulative of evidence previously of record is not new


Input: [¶ 19] When potential destruction of evidence is the alleged exigent circumstance, officers must provide some particularized basis for their suspicion. See Herrick I, 1997 ND 155, ¶ 23, 567 N.W.2d 336 (stating no evidence was presented, other than the possible existence of drugs and an explained belief defendant would dispose of evidence if forewarned); cf. State v. Jones, 358 N.J.Super. 420, 818 A.2d 392 (2003) (observing “[pjolice must articulate some reason that the destruction of evidence is more than a hypothetical possibility”). In Richards, the United States Supreme Court held, “[when] police could know the drugs being searched for were of a type or in a location that made them impossible to destroy quickly ... asserted governmental interest in pr , 629 N.W.2d 613, 623 (2001) (<HOLDING>); United States v. Johnson, 267 F.3d 498, 501 Holdings: 0: holding that the threat of imminent destruction of evidence of criminal activity created an exigent circumstance 1: holding that initial consent was not withdrawn where the undercover officer momentarily stepped out to obtain help from other officers located in the room across the hall in making the arrest 2: holding exigent circumstances existed because bathroom in hotel room was next to hallway door where the narcotics could have been particularly flushed and the suspected drug was crackcocaine which makes it not impossible that drugs were easily disposable 3: holding exigent circumstances found because detailed affidavit alleged drug transactions were conducted near the bathroom for quick disposal of the evidence 4: holding exigent circumstances demonstrated because officers knew defendant stored drugs in room across from the bathroom making destruction particularly easy


Input: There was no further communication between the parties until Ryerson filed this lawsuit on June 10, 2009. Meanwhile, the EMC action settled pursuant to a 2002 agreement that provided EMC with an 8.5 million dollar “post-closing price adjustment to the Stock Purchase Agreement ... reflecting a change in the purchase price paid by EMC to Ryerson for the purchase and sale of IEMC.” The settlement was later reported in Ryerson’s 2003 Form 10-K as a “selling price adjustment to the 1998 sale of [IEMC].” FIC moves for summary judgment, citing Seventh Circuit precedent, arguing that the 8.5 million dollar “price adjustment” was restitution for ill-gotten gains and therefore not an insurable “loss” under Illinois law. Level 3 Comms. v. Federal Ins. Co., 272 F.3d 908, 910-11 (7th Cir.2001)(<HOLDING>)(citing cases). In response to FIC’s motion, Holdings: 0: holding breach of best execution duty is a material misrepresentation in connection with the purchase or sale of the securities 1: holding that a policyholder does not incur an insurable loss when it is compelled to return allegedly illgotten gains in connection with the purchase or sale of a company 2: holding that slusa preempts claims which allege a material misrepresentation or omission in connection with the purchase or sale of securities whether or not that allegation is an element of or otherwise necessary to the putative state claim 3: holding that slusas in connection with prong extends to misrepresentations that are material to the purchase or sale of a covered security 4: holding that a claim arises from the purchase or sale of a security only if there is an allegation of fraud in the purchase sale or issuance of the  instrument


Input: his left arm to the bar on the right side of his body. (Pelayo Dep. Tr. at 204-05, 207.) 2 . The PA defendants have not relied on the numerous cases that have found some administrative intrusions to be reasonable where the Government sought to prevent hazardous conditions. See Bd. of Ed. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822, 828, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002) (quoting Treasury Emps. v. Von Raab, 489 U.S. 656, 667-68, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989) (internal quotation marks omitted)); see, e.g., Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 455, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990) (upholding brief stops at a sobriety checkpoint); United States v. Martinez-Fuerte, 428 U.S. 543, 566-67, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976) (<HOLDING>). 3 . The alleged liability of the PA is based Holdings: 0: holding that officers may consistent with the fourth amendment conduct a brief investigatory stop when they have a reasonable articulable suspicion that criminal activity is afoot 1: holding that the federal action at issue must be authorized 2: holding that the fourth amendment applies to searches conducted by public school officials and noting it would be anomalous to say that the individual and his private property are fully protected by the fourth amendment only when the individual is suspected of criminal behavior 3: holding random traffic stops for license and registration checks are contrary to fourth amendment 4: holding that stops for brief questioning about immigration status at the border rou tinely conducted at permanent checkpoints are consistent with the fourth amendment and need not be authorized by warrant


Input: of two deliberately high hurdles by showing either (i) “newly discovered evidence that ... establishes] by clear and convincing evidence” that the defendant was not guilty, or (ii) a "new rule of constitutional law” from the Supreme Court to be applied retroactively that invalidates the criminal conviction. 28 U.S.C. § 2255. 2 . Because we hold that Harris is not entitled to relief under Rule 60(b)(6) for his counsel’s failure on habeas to raise the alleged constitutional failures of his appellate counsel, we decline to reach the merits of his ineffective appellate assistance claim or of his claim that the district court erred in 1994 when it calculated his prison sentence. 3 . Rodwell v. Pepe, 324 F.3d 66, 70-71 (1st Cir.), cert. denied, - U.S. -, 124 S.Ct. 224, 157 L.Ed.2d 134 (2003) (<HOLDING>); United States v. Winestock, 340 F.3d 200, Holdings: 0: holding that where state procedural rule was mandatory and unwaivable and where government filed motion to dismiss habeas petition based solely on noncompliance with this procedural rule which state court granted without explanation decision appeared to rest primarily on state law 1: holding that a coa is required to appeal the denial of a rule 60b motion from a judgment in a  2254 proceeding 2: holding that a rule 60b motion ordinarily should be treated as a successive habeas petition but declining to adopt a bright line rule equating all rule 60b motions with successive habeas petitions 3: holding that a rule 60b motion to reopen a habeas denial is barred when its factual predicate deals primarily with the constitutionality of the underlying state conviction or sentence but is permissible when it deals primarily with some irregularity or procedural defect of the habeas proceeding itself 4: holding that appeal from denial of rule 60b motion raised for review only the district courts order of denial and not the underlying judgment itself


Input: against an unreasonably excessive use of deadly force in the form of Quando, a police canine. Even excluding the question of whether the police dog constituted deadly force, a jury well could find that, given the circumstances, the totality of force used— four blasts of pepper spray, slamming Smith down onto the porch, dragging him off the porch face down, ordering the ca nine to attack him three times, and the resultant dog bites and physical assaults on his body — was unreasonable. We have indeed held on past occasions that the use of lesser force could be unreasonable in the particular circumstances. See Santos, 287 F.3d at 853-54 (shoving can amount to excessive force when it is unreasonable); Headwaters Forest Defense v. County of Humboldt, 276 F.3d 1125, 1130-31 (9th Cir.2002) (<HOLDING>); Watkins v. City of Oakland, 145 F.3d 1087, Holdings: 0: holding that forcibly removing nonviolent plaintiff from her car could be excessive force 1: holding that two bursts of pepper spray to stop fighting in a cell was not considered excessive force and did not violate prisoners eighth amendment rights 2: holding that the use of pepper spray on nonviolent protestors was excessive force 3: holding that otherwise acceptable use of pepper spray became excessive when arrestee was offering no further active resistance 4: holding that bystander prisoners who were exposed to pepper spray when prison officials dispensed spray across their pod area to break up a fight were not subjected to excessive force


Input: as the best or most efficient way to perform its duties under the Act. * . It is thus largely irrelevant that, as asserted by the insurers, “[f]ive of the 15 states adopting the 1995 Model UPA in some form have also recently enacted DMF legislation,” explicitly imposing a duty to search that database. A similar enactment in West Virginia, as made evident by our holding today, would unnecessarily tread upon the insurers’ prerogative to decide how they will comply ■with the Act. The insurers, however, persuaded the circuit court to surmise' that “[s]uch legislation would be redundant or unnecessary if a duty to search already existed in the UPAs adopted by these states.” Cf. United Ins. Co. of Am. v. Commw., Dep’t of Ins., No. 2013-CA-000612-MR, 2014 WL 3973160 (Ky.Ct.App. Aug. 15, 2014) (<HOLDING>).. Were we to assume, however, that the Holdings: 0: holding that the commission on remand can set the effective date of a rate to be the effective date of the original commission activity 1: holding oneyear statute of limitations applies only to children born after the statutes effective date of september 1 1975 2: holding that the date of discrimination is the date on which a decision not to hire a plaintiff becomes effective 3: holding that procedural or remedial statutes may not be applied to pending suits at the time they become effective if doing so would destroy or impair rights that vested before the statutes effective date 4: holding that duty to  search dmf imposed by new model legislation applied only to policies issued after statutes effective date of january 1 2013


Input: by a criminal defendant or by his counsel for the sole propose of aiding the accused and his counsel in the preparation of his defense”). Appropriately, the attorney-client privilege “extends to interpreters, and to clerks and agents employed by the attorney ... in the business committed to his [or her] charge . . . .” Goddard v. Gardner, 28 Conn. 172, 175 (1859); see id., 175-76 (while recognizing privilege extends to certain court personnel and agents of attorney, court refused to extend privilege to protect communication overheard by attorney’s son, where son was “in no way connected with the case or with the parties” and had “no interest in, or connection with, the professional business of the attorney”); see also Pagano v. Ippoliti, 245 Conn. 640, 650 n.12, 716 A.2d 848 (1998) (<HOLDING>). B In the present case, the parties do not Holdings: 0: holding that agency is provable only by principals conduct and not by subjective beliefs of those dealing with alleged agent 1: holding that the lack of evidence of the alleged principals control over the alleged agent precludes the finding of an agency relationship 2: recognizing that statements made by agent on behalf of principal to principals attorney may be protected by principals attorneyclient privilege 3: holding that a principal is bound by a contract entered into by the principals agent on her behalf if the agent had authority to bind the principal 4: holding that it is the principals conduct attitude and knowledge that determines whether an agent had apparent authority


Input: marginal value to Perry of his participation in the instant case; perhaps as in Fusco, it was offered to undermine any insinuation that Perry had received funds for his participation in this case alone; or finally, perhaps the prosecution wanted to counter defense counsel’s specific insinuation that Perry would benefit merely by accusing people. We simply do not know. Given these possibilities, the ambiguity in the case law, and the context of the present testimony, we cannot say that admission of the evidence constituted plain error. We conclude by emphasizing that, to satisfy the plain error standard, Smith must show that the alleged error “affected] substantial rights,” that is, “affected the outcome of the district court proceedings.” Olano, 507 U.S. at 734, 113 S.Ct. 1770 (<HOLDING>). Moreover, “‘[t]he plain error exception to Holdings: 0: holding that the substantial rights inquiry of federal rule of criminal procedure 52b mirrors rule 52as harmless error inquiry except that the burden in the former falls on the defendant to show prejudice 1: holding that the relevant time of inquiry is the date of the filing of the complaint 2: holding that a district court cannot invoke its inherent authority to circumvent the harmlesserror inquiry required by rule 52a of the federal rules of criminal procedure 3: holding that the affecting substantial rights language of rule 52b means that the error must have been prejudicial it must have affected the outcome of the district court proceedings 4: holding that burden is on government to show that error in failure to provide notice is harmless


Input: an appropriate sanction. 4 . This Court may not exercise sua sponte review when the Commission on Judicial Conduct recommends censure alone. R. Comm’n Judicial Conduct 29(a) ("A recommendation of censure shall be final unless the judge or disciplinary counsel files a petition to modify or reject the recommendation as provided in paragraph (c). ”). This Court does have the authority to review ”[a]ll other recommendations for formal sanctions” on its own motion. Id. In addition to censure, the Commission recommended that Judge MeVay pay a fine, which it viewed as a formal sanction under Rule 18(e). We therefore exercise sua sponte review of the entire recommendation, as the reviewable sanction is insepa-rabie from censure. Cf. In re Bemis, 189 Ariz. 119, 122, 938 P.2d 1120, 1123 (1997) (<HOLDING>). 5 . Rule 5 provides in part the following: Holdings: 0: holding that the court had no power to sanction conduct that occurred in an arbitration 1: recognizing that an order of restitution  is available as a freestanding sanction to be imposed alone or in combination with other sanctions 2: holding that a postjudgment contempt sanction for refusal to obey orders whether it is characterized as a civil or a criminal sanction is immediately appealable as a final order under  1291 3: holding in an attorney discipline case that because a probation order a normally nonreviewable sanction was recommended in conjunction with a censure a reviewable sanction this court could review both sanctions as they were inseparable 4: holding that monetary sanction was not supportable as a compensatory civil contempt sanction because there was no proof of the amount of loss


Input: and assistance to be provided to claimants by VA, are not retroactively applicable to proceedings that were complete before VA and were on appeal to this Court or the Federal Circuit when the VCAA was enacted.” Stephens v. Principi, 16 Vet.App. 191, 193 (2002) (per curiam order) (citing Bernklau, 291 F.3d at 803-06). Here, the VCAA was enacted after the September 14, 2000, BVA decision on appeal but during the 120-day period within which the appellant could file a timely NOA, see 38 U.S.C. § 7266(a). Because, as of the November 9, 2000, enactment of the VCAA, the 120-day judicial-appeal period had not yet expired and the appellant had not filed an NOA, the claims denied by the September 2000 BVA decision were still pending before VA. See Teten v. West, 13 Vet.App. 560, 563 (2000) (<HOLDING>). Thus, the proceedings were not “complete Holdings: 0: holding that because veteran had never before submitted due process issue to bva he had not exhausted his administrative remedies and court declined to address merits of that claim 1: holding that because debtor retained control of property a transfer had not yet occurred 2: holding that the appellant had not changed his residence from his registered address despite the fact that the house had never had electricity service during the time that he had lived there 3: holding that veterans claim had remained pending before va at time of his death because 120day judicialappeal period had not yet expired and he had not filed noa 4: holding the practice of requiring borrower to certify at closing the threeday period had expired and the transaction had not been rescinded has the serious potential for actual harm


Input: operates a CTH I facility, the kind of setting DDSN has determined would constitute the least restrictive environment for Doe. We therefore affirm, but on different grounds, the district court’s dismissal of Doe’s freedom of choice claim. See Eisenberg v. Wachovia Bank, N.A., 301 F.3d 220, 222 (4th Cir.2002) (observing that we “can affirm on any basis fairly supported by the record”). C. Because Doe’s freedom of choice claim fails as matter of law, we do not find it necessary to decide whether § 1396a(a)(23) confers a private right on individuals that may be enforced under § 1983. Even assuming Doe may proceed under § 1983 to enforce § 1396a(a)(23), Appellees are entitled to summary judgment on Doe’s claim. Cf. Burks v. Lasker, 441 U.S. 471, 475-76, 99 S.Ct. 1831, 60 L.Ed.2d 404 (1979) (<HOLDING>). IV. For the foregoing reasons, we affirm the Holdings: 0: holding it is a question of fact 1: recognizing that the critical question is whether any present violation exists 2: recognizing that whether a duty exists is a question of law for the courts 3: holding that generally the question of waiver and estoppel is a question of fact 4: holding that the question whether a cause of action exists is not a question of jurisdiction and therefore may be assumed without being decided


Input: claim on June 21, 2012, the claim was effectively denied on August 28, 2008, when the administrator failed to act on the claim within three months after presentment. See 15 V.I.C. § 421 (directing the executor or administrator to make distributions in three-month intervals). Therefore, Ottley’s claim had ripened by the time the Superior Court dismissed it. The Superior Court’s dismissal of the action on the claim for reimbursement after it had ripened was pointless as Ottley could have promptly refiled the action. Rohn v. People, 57 V.I. 637, 642 n.4 (V.I. 2012) (observing that “subsequent events may ripen a prematurely filed appeal” (quoting Harvey v. Christopher, 55 V.I. 565, 571 (2009)); see Alejandro-Ortiz v. Puerto Rico Elec. Power Auth., 872 F. Supp. 2d 133, 136 (D.P.R. 2012) (<HOLDING>). Because Ottley could have immediately refiled Holdings: 0: holding that appellants could have amended as of right after they received the motion to dismiss and prior to the trial courts decision 1: holding that 120 days notice was satisfied by 30 days work plus 90 days pay 2: holding that because the plaintiff had not perfected service within 120 days of filing the complaint the complaint was subject to mandatory dismissal 3: holding that the court lacks jurisdiction where a complaint was filed more than 30 days after the filing of the summons 4: holding that courts decision to dismiss the action because it was prematurely filed was pointless because the matter automatically ripened after 90 days and plaintiff could just refile complaint


Input: the members considered in finding the appellant’s conduct was prejudicial to good order and discipline and service discrediting constituted the aggravating factors that took this case out of the wholly private setting envisioned in Lawrence. “[W]here, as here, the predicate sexual conduct is criminal because of some additional factor (in this case, the violation of clauses 1 and 2 of Article 134, UCMJ), the burden of demonstrating that such conduct should nonetheless be constitutionally protected rests with the defense at trial.” Goings, 72 M.J. at 207 (citation omitted). The appellant’s argument that the military judge was required to instruct on the Mar-cum factors pursuant to United States v. Castellano also fails under the circumstances of this case. 72 M.J. 217, 221 (C.A.A.F.2013) (<HOLDING>); see also United States v. Howard, 72 M.J. 406 Holdings: 0: holding that the presence of one intensity factor may be sufficient to deem the action significant in certain circumstances 1: holding that no one factor is determinative and the weakness of  one factor may be overborne by the strength of the others 2: holding that no one factor is determinative and the weakness of one factor may be overborne by the strength of the others 3: holding in cases where but for the presence of a marcum factor the act of consensual sodomy would not be subject to criminal sanction the trier of fact must determine whether a marcum factor exists 4: holding that while a district court determination about whether an act is reasonable usually is considered to be a legal conclusion that djetermining the weight to be accorded to each factor in reaching the ultimate finding as to the existence of conditions is the special province of the trier of fact


Input: the Miles court did note with respect to the Jones Act that it “sailed in occupied waters ... and was not free to expand remedies at will simply because it might work to the benefit of seamen and those dependent upon them”, id., 498 U.S. at -, 111 S.Ct. at 327. As defendants here correctly point out, however, the impact of the considered and settled decision in Miles is to render it anomalous to award the nondependent survivor of a nonseaman a recovery which is patently denied to the nondependent beneficiary of a well-deserving seaman. In effect, to allow plaintiffs to recover wrongful death damages here simply because their son was not a Jones Act seaman would ironically, and improperly, leave the relatives of seamen as a less-favored class under admiralty. Cf. Truehart, supra at 937 (<HOLDING>); cf. also Whittaker, supra at 773. Finally, Holdings: 0: holding that wrongful death actions asserted under admiralty jurisdiction lie under general maritime law for death caused by violation of maritime duties and are not limited to standards of liability created by state law 1: holding that admiralty jurisdiction extends to maritime insurance contracts 2: holding that because the general maritime law is its most generous to seamen the wards of admiralty it would refuse to craft for nonseamens survivors a remedy not available to seamens survivors 3: holding that general maritime law preempts state law 4: recognizing loss of society damages as remedy available under general maritime law


Input: years was not disqualifying and the Board’s recommendation that the applicant be re-admitted to the Bar); Florida Bd. of Bar Exam’rs re Papy, 901 So.2d 870, 872 (Fla.2005) (approving the Board’s recommendation that the applicant be denied re-admission to the Bar in part because of his failure to timely file and pay income taxes); Florida Bd. of Bar Exam’rs re M.A.R., 755 So.2d 89, 92-93 (Fla.2000) (approving the Board’s recommendation that the applicant be denied admission to the Bar in part because of his failure to timely file and pay income taxes); Florida Bar v. Nedick, 603 So.2d 502, 503 (Fla.1992) (ordering disbarment for evading or defeating tax in violation of federal law and conviction of tax evasion); Florida Bd. of Bar Exam’rs in re H.H.S., 373 So.2d 890, 892 (Fla.1979) (<HOLDING>). Compliance with the requirements of all tax Holdings: 0: holding that the alleged conduct constituting violations of the uipa and the regulations can be considered in determining whether the insurer acted in bad faith under section 8371 1: holding that in determining whether there has been a substantial contribution pursuant to section 503b3d the applicable test is whether the efforts of the applicant resulted in an actual and demonstrable benefit to the debt ors estate and the creditors 2: holding that a failure to file tax returns may properly be considered in determining whether the applicant has met the standards of conduct and fitness required under the rules 3: holding that the district court erred in not determining whether the amount in controversy necessary to create diversity jurisdiction was met at the time of removal 4: holding that conduct contained in dismissed counts may be considered by a district court in determining whether to depart from the applicable guideline range


Input: complies with the § 1315(d) notice provision of publication in the Federal Register, Heraeus could receive a windfall because the lower ... rate would apply to the [post-revocation] merchandise even though Heraeus knew of Customs’ change in classification three years earlier.”). Nevertheless, Jewelpak contends that it need not show actual prejudice by reason of the failure to publish because § 1315(d) requires only that it show “prejudice to the importing public in general, and destruction of the uniformity that section recognizes.” We disagree, for such a position is without support in the statute and plainly flouts the rule in Heraeus-Amersil, as well as analogous precedents from this and other courts of appeal. See id. at 1582; cf., e.g., Splane v. West, 216 F.3d 1058 (Fed.Cir.2000) (<HOLDING>); Cargill, Inc. v. United States, 173 F.3d 323, Holdings: 0: holding a medical opinion to be not significantly probative where the opinion was contrary to other substantial record evidence 1: holding that a legal opinion issued by the general counsel for the department of veterans affairs was not defective as applied to petitioner for faffing to comply with the publication requirement of foia because petitioner had actual notice of the opinion 2: holding that the state court ruling was objectively unreasonable where prosecution failed to present sufficient evidence that the petitioner murdered a known drug dealer although the state established that the petitioner planned to rob drug dealers for drugs or money the victim was a known drug dealer who kept drugs in his freezer and that freezer was open and empty after the homicide the petitioner and the victim had engaged in drug transactions in the past the petitioner had a motive because he had seen the victim make a pass at the petitioners girlfriend and the petitioner had possessed and once purchased the murder weapon and a similar gun was seen in his home two weeks before the murder evidence placing the petitioner at the scene was conspicuously absent leaving only a reasonable speculation that the petitioner was present 3: holding that because the petitioner failed in the petition to set forth facts known to petitioner or state that petitioner has no knowledge of facts regarding the name and address of any judicially appointed guardian or person or agency awarded custody of the child by a court and failed to attach the existing custody order to the petition it was facially defective and did not confer subject matter jurisdiction upon the trial court 4: holding that rule 27 is not appropriate where the petitioner seeks discovery of unknown information that the petitioner hopes will assist it in the future when the petitioner applies for judicial relief


Input: false promise is a fraudulent misrepresentation which can be actionable as fraud_ ... Plaintiff argued to the jury that Capital City ... never intended to allow plaintiff to abide by the terms of the agreement, but intended to foreclose on the property from .the beginning. The 'Court finds that this theory fits comfortably within the law regarding promissory fraud. Capital .City contends that D.C. law recognizes a cause of action for promissory misrepresentation only when the promise is neither memorialized as an explicit contract term (e.g., an undertaking to provide $42,000 on a date certain) nor implied by law in the contract (e.g., the obligation to act with good faith); in other words, the misrepresentation must be a collateral statement of d 1251, 1253-54, 1259 (D.C.Cir.1979) (<HOLDING>). Some time ago, we observed in a footnote that Holdings: 0: holding party in breach could not maintain suit for breach of contract 1: holding that a cause of action for breach of contract accrues at the time of the breach 2: holding immaterial breach did not constitute breach of contract 3: holding that breach of collateral promise was actionable 4: holding negligent misrepresentation must be of existing fact not breach of future promise


Input: Marchal v. Webb, 859 S.W.2d 408, 412 (Tex.App.—Houston [1st Dist.] 1993, writ denied). Once the movant has established a right to summary judgment, the burden shifts to the nonmovant. Marchal, 859 S.W.2d at 412. The nonmov-ant must respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Marchal, 859 S.W.2d at 412. In reviewing the summary judgment, we must indulge every reasonable inference in favor of the nonmovant and resolve any doubts in its favor, and we will assume all the evidence favorable to the nonm tract principles. Vanguard Underwriters Ins. Co. v. Smith derwriting Ass’n., 73 A.D.2d 605, 422 N.Y.S.2d 123, 123 (N.Y.App.Div.1979) (<HOLDING>). Because we find Perrot-ta breached the terms Holdings: 0: holding that an administrative agency is not subject to a contempt proceeding for failure to comply with an order 1: holding the failure of the insureds to submit to an euo a condition precedent to sustaining a suit on the insurance policy required abatement of the suit 2: holding that insureds failure to list his brother as a member of the household was a material misrepresentation that provided the insurance company with grounds to rescind the policy 3: holding insureds failure to comply with notice provision in insurance policy resulted in no coverage for a newly acquired car 4: holding insureds failure to comply with terms of policy requiring him to sign and return an euo was a material breach


Input: of the statute as a whole. The government’s argument that simple assault applies only to the “assault prong” of § 111(a)(1) makes little sense when considering § 111(a)(2), which punishes one who “assaults or intimidates” a former federal officer. If simple assault did not apply to the remainder of § 111(a)(1), we would be left with two unavailing alternatives before us: either simple assault does not apply to § 111(a)(2) at all; or that the simple assault provision applies only to the word “assault” of §§ 111(a)(1) and (a)(2). The former does little to carry out the purpose of the statute because it would afford greater protection to those without pr ontext of § 111, the definition of simple assault is conduct in violation of § 111(a) ....”) (emphasis added); Ramirez, 233 F.3d at 322 (<HOLDING>) (emphasis in original). Of the remaining cases Holdings: 0: holding that statute which defined sexual contact as any touching of the anus breast or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person was not vague 1: holding that punching another person is a statutory assault 2: holding that crime definition and penalty powers are essential legislative functions that cannot constitutionally be delegated by the utah legislature to any other person or body 3: holding statutory definition of all other cases assault to be any physical contact which by which a person forcibly assaults resists impedes intimidates or interferes with  4: holding that a broad statutory definition of a term that was inconsistent with the terms plain meaning did not affect the terms definition in other contexts


Input: a fixed meaning of the term seaman. The regulations emphasize flexibility, indicating that the term’s meaning is governed by the context in which it is used and the purpose of the statute in which it is found. Id. § 783.29(c). Similarly, we must evaluate an employee’s duties based upon the character of the work he actually performs and not on what it is called or the place where it is performed. Id. § 783.33. As we have recognized, the FLSA as a whole is pervaded by the idea that what each employee actually does determines its application to him. Walling v. W.D. Haden Co., 153 F.2d 196, 199 (5th Cir.1946). Accordingly, the application of the seaman exemption generally depends on the facts in each case. See McLaughlin v. Bos. Harbor Cruise Lines, Inc., 419 F.3d 47, 51-52 (1st Cir.2005) (<HOLDING>). III. With this framework guiding us, we will Holdings: 0: holding that objection was timely even though objection was not made until after question was answered 1: recognizing application of the doctrines may involve a fact question for the jury but not finding such a question in the case before it 2: recognizing that application of the seaman exemption is a factintensive question that can be answered in many cases only after a trial 3: holding that prejudice from a question that violated doyle was cured by immediately sustaining objection before the question was answered 4: recognizing that the right to be present can be waived in noncapital felony federal cases


Input: an express preemption provision, implied preemption principles should not be used to decide the preemptive scope of a statute in which Congress provided an express preemption provision. Cipollone, — U.S. at -, 112 S.Ct. at 2618. See also Freightliner, — U.S. at -, 115 S.Ct. at 1488. Second, Smith is factually distinguishable from the instant case because it considered the preemptive scope of the MDA’s Class II regulations on a state regulatory statute. Smith, 651 F.2d at 1022 (citing Fla.Stat. §§ 468.135(7); 468.136(l)-(2)). Third and most importantly, the result in Smith relies on the fact “that the Florida statute does not relate ‘to a matter included in a federal requirement applicable to a device.’ ” Smith, 651 F.2d at 1025 (quoting 21 U.S.C.A. § 360k(a)(2)). See also id. at 1024 (<HOLDING>). In other words, Smith found that the state Holdings: 0: holding the state law claims were not preempted 1: holding that the legislature intends different meanings when it uses different terms in a statute 2: holding that it is not 3: holding that  4681357 is not preempted because it addresses a different concern than does the mda 4: holding that the plaintiffs had relied on illinois law because they could have filed in a different forum having a different statute of limitations


Input: presented for summary judgment purposes.” Id. at 1020. Additionally, our conclusion resulted from construing the evidence in the light most favorable to the Plaintiff-Appellant. Id. at 1020-21. “We review the district court’s refusal to take judicial notice of proffered materials for an abuse of discretion.” Crawford v. Countrywide Home Loans, Inc., 647 F.3d 642, 649 (7th Cir.2011). Here, we easily conclude that the district court did not abuse its discretion in refusing to take judicial notice of the HPL contract. The district court correctly concluded that Plaintiff-Appellant’s legal argument was not the proper kind of fact that may be judicially noticed under Federal Rule of Evidence 201(b). See Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1081 (7th Cir.1997) (<HOLDING>) (citation and quotation marks omitted). HPL’s Holdings: 0: holding trial court order denying states petition for an order of public use and necessity for good cause appearing did not constitute a finding of fact or a conclusion of law 1: holding that a bankruptcy courts sale order is a final order for res judicata purposes 2: holding that in order for a fact to be judicially noticed indisputability is a prerequisite 3: holding it is a question of fact 4: holding that the point on appeal and the objection in the trial court must be the same in order for it to be preserved for appeal