Input: predicate acts to consider, the jury was legally obligated to acquit on Counts One and Two. See id. at 3-4 (“[A]cquittal was compelled as a matter of law once the jury reported its inability to find any unanimously proven predicate acts.”). There is a serious problem with Gotti’s interpretation of PJI 2.78. Acts as to which the jury cannot reach a unanimous verdict must be disregarded in deciding two things — whether defendant is or is not guilty of racketeering. The drafters of PJI 2.78 were therefore not foreclosing a hung jury when they used the word “disregard.” Rather, the word choice is intended to ensure jury compliance with the unanimity rule required by Richardson that has since been engrafted onto substantive RICO violations. See Richardson, 526 U.S. at 824, 119 S.Ct. 1707 (<HOLDING>). Furthermore, Gotti’s interpretation flies in Holdings: 0: holding that the jury in a continuing criminal enterprise case must unanimously agree not only that defendant committed some continuing series of violations but also must agree as to which violations make up that continuing series 1: holding that failure to appear is also a continuing offense 2: holding that because a  1326 violation constitutes a continuing offense venue may lie in any district in which the continuing conduct occurred 3: holding that the doctrine may only be predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct 4: holding that insurer had a continuing duty to defend


Input: pre-trial motion to suppress. We reverse the trial court’s judgment and remand the cause for a new trial without addressing the merits of Robuck’s complaints. In its brief, the State notes that a division in authority exists among the courts of appeal regarding whether nonjurisdictional defects, such as the denial of a motion to suppress, are waived by application of the Helms rule in misdemeanor cases where the defendant enters a plea of guilty or nolo contendere without a plea bargain. Compare Lynch v. State, 903 S.W.2d 115 (Tex.App.— Fort Worth 1995, no pet.)(applying Helms rule), and Studer v. State, 757 S.W.2d 107, 109 n. 1 (Tex.App.—Dallas 1988)(same), aff'd, 799 S.W.2d 263 (Tex.Crim.App.1990), ivith Salazar v. State, 773 S.W.2d 34, 35 (Tex.App.—Houston [14th Dist.] 1989, no pet.)(<HOLDING>), and Yates v. State, 759 S.W.2d 949, 949-50 Holdings: 0: holding that similar agreement allowed the defendant to appeal the denial of his motion to suppress 1: holding that a legal conclusion on a motion to suppress is reviewed de novo 2: holding that when a court has given a party a full and fair opportunity to litigate a motion to suppress and then  has decided the motion on the merits the party may be estopped from bringing the same motion in subsequent litigation 3: holding that it is clear that hearsay evidence is admissible in a hearing on a motion to suppress 4: holding merits of complaint regarding motion to suppress addressable based on inapplicability of rule 40b1


Input: a third party. As noted, there is no identifiable third party in this case. The transfers are thus properly viewed as either benefiting the Fund or benefiting Bear Stearns. In either case, reliance by Bear Stearns on the mere conduit concept is unavailing. More importantly, once the funds were deposited, and as long as short positions were open, Bear Stearns did not have to respond to directions from the Fund. Indeed, so long as there were open short positions, Bear Stearns was not required to return the money to the Fund and was also able to initiate affirmative measures with respect to the funds. Thus, Bear Stearns’s position is simply not parallel to the traditional bank cases. See Malloy v. Citizens Bank of Sapulpa (In re First Security Mortgage Co.), 33 F.3d 42, 43 (10th Cir.1994) (<HOLDING>); see also In re Chase & Sanborn, 848 F.2d at Holdings: 0: holding a party to be an initial transferee because she was given legal title to the funds 1: holding that theft by taking conviction was supported by evidence of unlawful taking rather than unlawful appropriation of funds where defendant who was given an electronic banking card encoded with the account number of another customer withdrew funds from bank account knowing that she was obtaining funds which did not belong to her and which she had no right to receive 2: holding that bank was not an initial transferee where transferor exercised complete discretion regarding deposits to and disbursements from the account and he was entitled to possession of all account funds upon demand 3: holding that language in a merrill lynch customer account agreement that the plaintiff signed upon opening the first account  providing for arbitration of any controversy  arising out of its business  applied to the disputed second account even though the plaintiff did not sign a separate customer account agreement for the second account 4: holding that where bank account titled in the names of two married persons a presumption arises that both hold the funds in the account as a tenancy by the entirety


Input: property of the estate and whether they are exempt, the Court will not be able to determine whether any plan filed by Judy Jack is feasible and capable of confirmation. Additionally, Violet Jack’s involvement in this case is based upon her asserted child support lien which she asserts is superior to any interest that Judy Jack’s estate may have in the remaining payments; therefore, this is a core proceeding under 28 U.S.C. § 158(b)(2)(E). Finally, venue is proper pursuant to 28 U.S.C. § 1409(a). B. Samuel Jack’s Capacity to Contract A person does not possess the mental capacity to enter into a contract if he lacks sufficient mind and memory to understand the nature and consequences of the act and the business being transacted. Mandell & Wright v. Thomas, 441 5.W.2d 841, 845 (Tex.1969) (<HOLDING>) (citing Missouri Pacific Ry. Co. v. Brazil, 72 Holdings: 0: holding that the district court did not err in failing to address the defendant personally to determine whether she understood the rights she was waiving by admitting that she violated the conditions of her probation 1: holding that a party has mental capacity if she appreciated the effect of what she was doing and understood the nature and consequences of her acts and the business she was transacting 2: 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 3: holding that the plaintiff made out a prima facie case of age discrimination based upon a showing that she was a member of the protected group she was qualified and capable of doing her job she was discharged and that her manager called her old woman thus evincing agebased animus sufficient to demonstrate discriminatory intent 4: holding appellant produced no evidence that when she made her complaints to management she ever mentioned that she felt she was being treated unfairly due to her race or sex


Input: the extension, modification, or reversal of existing law or the establishment of new law,” or includes factual contentions that do not have evidentiary support. Pursuant to Fed.R.CivP. 11, “the court may award to the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion.” Both the Federal Rule and Super. Ct. Dom. Rel. R. 11 state that sanctions may include a monetary amount to cover the “expenses” that have been “incurred” by the opposing party, including “reasonable ... attorney’s fees” or “a reasonable attorney’s fee.” Based on the language of Fed.R.C regarding similar provisions allowing for sanctions. See Alpert, Goldberg, Butler, Norton & Weiss, P.C. v. Quinn, 410 N.J.Super. 510, 983 A.2d 604, 623-26 (App.Div.2009) (<HOLDING>); Musaelian v. Adams, 45 Cal.4th 512, 87 Holdings: 0: holding attorneys fees not available to pro se attorney litigant in a federal freedom of information act action 1: holding that under rule 13 of the texas rules of civil procedure which precludes bringing a groundless suit for purposes of harassment a pro se attorney litigant is not entitled to attorneys fees because an attorneyclient relationship was the predicate for that particular sanction 2: holding that new jersey rule patterned on fed r civ p 11 precludes a pro se attorney litigant from receiving attorneys fees because such fees are not actually incurred 3: holding that a pro se litigant who is an attorney is not entitled to fees under  1988 4: holding that by choosing the words any actual expenses including attorneys fees incurred congress did not intend to remove the discretion of the district court to award fees in cases such as contingent fee or pro bono cases where the client has not actually incurred the obligation to pay her attorneys fees


Input: of PILT. We conclude a genuine issue of material fact exists with respect to an explicit warranty of future performance. The existence of such a warranty, however, would not automatically make Marvin’s claim timely. Assuming that a future warranty is present, Marvin’s breach of warranty claim accrued when Marvin learned or should have learned of the breach, see Minn.Stat. § 336.2-725(2), and expires four years thence, see id. § 336.2-725(1). “[T]he statute of limitations begins to run ‘when the plaintiff discovers or should have discovered the defendant’s refusal or inability to maintain the goods as warranted’ ” WatPro, 491 N.W.2d at 6 (quoting Smith v. Union Supply Co., 675 P.2d 333, 335 (Colo.Ct.App.1983)); accord Anderson v. Crestliner, Inc., 564 N.W.2d 218, 223 (Minn.Ct.App.1997) (<HOLDING>). There is evidence in the record that Marvin Holdings: 0: holding that seller carried insurance for benefit of buyer and held proceeds in trust for buyer when seller agreed to maintain insurance until possession date but bam burned before buyer took possession 1: holding that breach occurred when seller told buyer that seller would do no more to rectify alleged warranty violation 2: holding that a person who obtains drugs from a seller is not an accomplice of the seller 3: holding that broker who represents seller cannot represent buyer in purchase of property from seller without sellers knowledge and consent 4: holding that a seller could enforce an arbitration provision against a buyer even though only the buyer had signed the provision


Input: that in custody disputes, “the fundamental issue is the best interest of the child.” In a custody contest between two biological parents, “the burden of proof is shared equally by the contestants.... ” Yet, where the custody dispute is between a biological parent and a third party, the burden of proof is not evenly balanced. In such instances, “the parents have a ‘prima facie right to custody,’ which will be forfeited only if ‘convincing reasons’ appear that the child’s best interest will be served by an award to the third party. Thus, even before the proceedings start, the eviden-tiary scale is tipped, and tipped hard, to the [biological] parents’ side.” Id. at 339, 744 A.2d at 1258 (2000) (citations and quotations omitted); see also T.B. v. L.R.M., 753 A.2d 873 (Pa.Super.2000) (<HOLDING>) aff'd, 567 Pa. 222, 786 A.2d 913 (2001). ¶ 8 Holdings: 0: recognizing confusion caused by prima facie language 1: holding that a prima facie case is subject to independent review 2: holding that although husband and wife were both fit and proper persons to have custody of the child custody in a dissolution action should have been awarded to wife the biological parent in light of blood test showing that husband was not the childs biological father 3: holding district court did not abuse discretion in ruling moving party failed to make prima facie case to modify custody 4: holding that biological parents have a prima facie right to custody over third persons


Input: of the False Identification Crime Control Act of 1982, supports this understanding. The . Report contemplates that [t]he intent to use unlawfully is the intent to use (i.e., present, display, certify, or otherwise give currency to) the identification document in any manner so that it would be accepted as identification in- a manner that violates a federal, state or local - law, or is part of the . making of a misrepresentation that violates a law. H.R.Rep. No. 97-802, at 10 (1982), reprinted in 1982 U.S.C.C.A.N. 3519, 3529. . In this way, any intentional unlawful use or transfer of multiple identification documents whose purpose is to identify individuals to government authorities would inherently be intended to deceive the government in some way. See Serrato-Soto, 570 F.3d at 690 (<HOLDING>). The BIA’s analysis in Matter of Serna further Holdings: 0: holding that a defendants use of a persons name and social security number without permission constituted the use of a means of identification without lawful authority 1: recognizing willful failure to appear as an essential element of the bailjumping offense 2: holding that where a statute requires knowing or willful use of an altered or counterfeit social security number the offense in the ordinary case involves dishonesty as an essential element 3: holding that an allegation as to the time of the offense is not an essential element of the offense charged in the indictment and within reasonable time limits proof of any date before the return of the indictment and within the statute of limitations is sufficient 4: holding a social security number is not private


Input: it, for example, by informing the jury that as a matter of law, he was not responsible for CWs death. See, e.g., Lucas v. United States, 102 A.3d 270, 279 (D.C.2014) (“ ‘[I]m-proper prosecutorial comments are looked upon with special disfavor when they appear in the rebuttal because at that point defense counsel has no opportunity to contest or ciar ify what the prosecutor has said.’ ” (quoting Anthony v. United States, 935 A.2d 275, 284 (D.C.2007))). The lack of a limiting instruction also compounded the effect of the prosecutor’s comment. Specifically, the court failed to instruct the jurors that CW’s death should not be considered as evidence of Nofoa’s guilt in the terroristic threatening and kidnapping ease. Cf. State v. Murray, 116 Hawai'i 3, 19, 169 P.3d 955, 971 (2007) (<HOLDING>); State v. Cordeiro, 99 Hawai'i 390, 416, 56 Holdings: 0: holding that in admitting evidence the failure of the trial court to give a limiting instruction sua sponte is not reversible error 1: holding that a trial court errs when it fails to give a limiting instruction properly requested by a party 2: holding that failure to give a limiting instruction for 404b evidence is not plain error 3: holding the potential for undue prejudice is so great that failure to give a limiting instruction with regard to prior convictions results in error even if the defendant has not requested one citing evans v cowan 506 f2d 1248 1249 6th cir1974 4: recognizing that a limiting instruction has the potential to cure any prejudice from the erroneous admission of evidence


Input: Billboard Act then in effect directed that “the erection and maintenance of outdoor advertising in areas adjacent to the interstate and primary highway systems [shall] be regulated in accordance with sections 226.500 to 226.600 and rules and regulations promulgated by the state highways and transportation commission.” Whiteco’s applications were for four new billboards in locations that were subject to the Missouri Billboard Act. The City could not have relied on ordinance number 13191 in 1994 to lawfully deny Whiteco’s applications. Existing precedent established that municipal ordinances banning all outdoor advertising signs were preempted by the Missouri Billboard Act. See Nat’l Advert. Co. v. Missouri State Highway & Transp. Comm’n, 862 S.W.2d 953, 955-56 (Mo. App. E.D. 1993) (<HOLDING>). National Advertising did not expressly Holdings: 0: holding city ordinance preempted by state law because ordinance prohibited act specifically allowed under state law 1: holding that a complete prohibition on outdoor advertising signs imposed by a municipal ordinance is preempted by the missouri billboard act 2: holding that when a judicial office is created by legislative act or municipal ordinance  the office is regarded as a de facto office until the act or ordinance is declared invalid 3: holding that municipal ordinance was preempted by frsa and void under supremacy clause 4: holding that a courts order invalidating part of a city billboard ordinance did not moot a claim for damages arising from that invalidated portion of the ordinance


Input: her individual capacity. In Miller v. Maxwell’s Intern. Inc., 991 F.2d 583 (1993), the Ninth Circuit Court of Appeals held that there was no individual liability under the ADEA. The court explained that the statutory scheme of the ADEA itself indicates that Congress did not intend to impose individual liability on employees. The ADEA limits liability to employers with 20 or more employees, 29 U.S.C.A. § 630(b), in part because Congress did not want to burden small entities with the costs associated with litigating discrimination suits. Surely Congress would not wish to impose the same civil liability on individual employees that it decided to remove from small entities with limited resources. Id. at 587. See also Birkbeck v. Marvel Lighting Corporation, 30 F.3d 507, 510 (4th Cir.1994) (<HOLDING>). This conclusion is supported by the law of Holdings: 0: holding that there is no individual liability under law 44 1: holding that individual employees are not proper defendants in adea lawsuits 2: holding no individual liability under the adea 3: holding that there is no individual liability under title vii 4: holding that there is no disparate impact claim under the adea


Input: services. Dr. Ostrer, on the other hand, maintains that he could have proceeded with his BRCA-related clinical activities without taking a license from Myriad. This assertion is based on his belief that the patents Myriad claims cover such activities are invalid because genes are patent-ineligible products of nature. Acting on his belief, Ostrer seeks in this lawsuit a declaration of his right to undertake NfiCA-related clinical activities without a license. Accordingly, Myriad and Dr. Ostrer have taken adverse legal positions regarding whether or not Ostrer can engage in BRCA genetic testing without infringing any valid claim to “isolated” BRCA DNAs or methods of “analyzing” or “comparing” BRCA sequences, as recited in Myriad’s patents. See Aetna Life, 300 U.S. at 242, 57 S.Ct. 461 (<HOLDING>). Dr. Ostrer has also alleged a controversy of Holdings: 0: holding an endorsement to an existing insurance policy which added a new vehicle did not create a new contract of insurance but was merged with and became a part of the original policy 1: holding that failure to pay obligations under a contract is a material breach as a matter of law when parties explicitly state in the contract that failure to pay warrants termination 2: holding that parties can stipulate that they were both parties to a contract and thus the real parties in interest even when one party did not sign the contract 3: holding declaratory judgment jurisdiction existed when the parties had taken adverse positions with respect to their existing obligations on an insurance contract 4: holding the same with respect to an apartment


Input: two of the three physicians or (b) Local 68’s standing to sue the physicians. The argument regarding personal jurisdiction fails immediately. Assuming arguendo that the New Jersey state court had no personal jurisdiction over two of the physi dans, AstraZeneca does not dispute that one of the non-consenting physicians, Antoun, is a resident of and has offices located in New Jersey. (Conapl. ¶ 94.) Moreover, “personal jurisdiction is an individual liberty right and is therefore waivable,” and neither of the other two physician defendants, Berkman and Hopkins, have moved to dismiss based on personal jurisdiction. McBee v. Delica Co., Ltd., 417 F.3d 107, 127 (1st Cir.2005) (citation omitted); see also Seguros Comercial Am. v. Am. President Lines, Ltd., 934 F.Supp. 243, 245 (S.D.Tex.1996) (<HOLDING>). AstraZeneca’s argument regarding standing Holdings: 0: holding that removal proceedings are in the nature of process and defects in the removal procedures are waivable 1: holding that removal based on fraudulent joinder was not timely where it occurred more than thirty days after the removing defendants learned of facts showing that a nondiverse codefendant was fraudulently joined 2: holding that removal was untimely where the removing defendant could have ascertained from the face of a complaint that certain nondiverse codefendants were fraudulently joined but did not seek removal based on fraudulent joinder until after the state court granted a motion to strike the plaintiffs allegations against the diversitydefeating codefendants 3: holding that defects in service of process must be raised in preliminary objections 4: holding that removing defendant could not establish fraudulent joinder based on waivable defenses of lack of personal jurisdiction or defects in service of process available only to joined defendants


Input: and not contradicted by external evidence, there can almost never be a finding of clear error.” United States v. Igbonwa, 120 F.3d 437, 441 (3d Cir.1997). As a result, the District Court did not clearly err when it found that the window was tint-free. Nor did the District Court err in concluding that the officers had a reasonable suspicion to stop Davis. The officers observed odd behavior through the front window—an exchange, shocked expressions, and tossing motions. Davis and Blackshear rapidly left the car and began walking away, the latter failing to close the car door. And the activity took place in a high-crime area. The officers thus had a reasonable suspicion that a crime might be afoot. See Terry, 392 U.S. at 30, 88 S.Ct. 1868; Wardlow, 528 U.S. at 124, 120 S.Ct. 673 (<HOLDING>); see also United States v. Bonner, 363 F.3d Holdings: 0: recognizing presence in a high crime area unprovoked flight and nervous evasive behavior as factors supporting a reasonable suspicion 1: holding that nervous evasive behavior is a pertinent factor in determining reasonable suspicion 2: holding nervous behavior and inconsistent story justified reasonable suspicion and subsequent search 3: holding that nervous evasive behavior such as flight is a relevant factor in an examination of reasonable suspicion 4: holding that in a high crime area unprovoked headlong flight from police can form the basis for reasonable suspicion under terry


Input: by our procedural rules. In the forty years since those decisions, Texas courts have consistently recognized and reaffirmed the existence of the fundamental-error doctrine. Because there is no statute defining the principle, we tend to agree with the commentator who noted that “[tjhere is no single satisfactory definition of the phrase, nor can one easily analyze the cases for prognostic purposes.” Kronzer, supra, § 9.2, at 205. In reviewing our caselaw, however, we are able to distill two types of error that our courts have consistently recognized are subject to fundamental-error review. First, and most commonly, we apply fundamental-error review when a jurisdictional defect exists in the case. See, e.g., Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 445-46 (Tex.1993) (<HOLDING>); New York Underwriters Ins. Co. v. Sanchez, Holdings: 0: holding that issues raised for the first time on appeal will not be considered 1: holding that an issue not raised in the trial court cannot be raised for the first time on appeal 2: holding that court will not consider issue raised for first time on appeal 3: holding that an issue raised for the first time on appeal will not be considered by this court 4: holding that standing is a jurisdictional issue that can be raised for the first time on appeal


Input: discretion by failing to give adequate consideration to the Defendant’s financial circumstances, the uncertainty of the degree and duration of her support network, and the realities of her earnings versus her expenses.” The State countered that “Rule 3(b) ... does not permit direct appeal of a trial court’s disposition of a motion to modify the terms of probation.” The Court of Criminal Appeals agreed with the State that Rule 3(b) does not specifically provide that a defendant may appeal a trial court’s decision regarding modification of probation conditions. We agree as well. Unlike civil litigants, who have an appeal as of right from any final judgment, parties in criminal cases do not always have an appeal as of right under the Rules o 4 WL 50788, *3 (Tenn.Crim.App. Jan.12, 2004) (<HOLDING>). In Adler, this Court examined whether parties Holdings: 0: holding that denial of the petitioners motion for credit for time at liberty was not appealable under rule 3 or through a commonlaw writ of certiorari 1: recognizing the right to petition for writ of certiorari as a form of appellate review 2: holding review of district court order imposing sanctions is by application for issuance of a writ of certiorari 3: holding that the oneyear period begins to run after the time for filing a petition for a writ of certiorari has expired 4: holding that the defendant did not have an appeal as of right or grounds for a commonlaw writ of certiorari to review a trial courts denial of sentencing credits


Input: opportunity to do so, the court deprived Taylor a meaningful opportunity to prove bias. The majority distinguishes Herndon on the basis that here “the district court asked all of the jurors about the extent to which they were aware of the reported remark.” Maj. Op. 350. This characterization of the facts omits the critical fact that the court did not question Juror One (and only Juror One) whether she could contin trict court must provide the defendant a meaningful opportunity to prove [juror bias]”); United States v. Walker, 1 F.3d 423, 431 (6th Cir.1993) (“By denying the reasonable request to inquire into the jurors’ states of mind, the defendants were deprived of the opportunity to meet their burden of proving actual juror bias----”); see also Remmer, 347 U.S. at 230, 74 S.Ct. 450 (<HOLDING>). The majority correctly obseryes that Taylor Holdings: 0: holding that to determine whether a statement was voluntary the court must consider the totality of all the surrounding circumstances  both the characteristics of the accused and the details of the interrogation and decide  whether a defendants will was overborne by the circumstances surrounding the giving of a confession 1: holding that although this court affords broad discretion to the district court in determining the type of investigation necessary to determine juror bias the district court must provide the defendant a meaningful opportunity to prove the same 2: holding that because parties elected to bring the case to the appellate court in the first instance the appeal could not then be dismissed just to confer jurisdiction upon the district court to determine the issues 3: holding that it was permissible to ask whether a juror would consider death sentence if juror determined aggravating circumstances outweighed mitigating circumstances 4: holding that the district court should determine the circumstances the impact thereof upon the juror and whether or not it was prejudicial in a hearing with all interested parties permitted to participate


Input: it. The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected.... Mullane, 339 U.S. at 315, 70 S.Ct. 652. The Court held that publication notice could not satisfy due process where the names and addresses of the beneficiaries were known. Id. at 320, 70 S.Ct. 652. Nevertheless, this due process right does not require actual notice to each party intended to be bound by the adjudication of a representative action. See id. at 313-14, 70 S.Ct. 652 (“A construction of the Due Process Clause which would place impossible or impracticable obstacles in the way could not be justified.”); accord In re Integra Realty Res., Inc., 262 F.3d 1089, 1110-11 (10th Cir. 2001) (“Integra I ”) (<HOLDING>). For due process purposes, rather than looking Holdings: 0: holding that in the rule 23 class action context named plaintiff may appeal a denial of class certification even if his or her individual claims had been satisfied through the entry of judgment 1: holding rule 23 and due process requisites satisfied where the record indicated that only seventyseven percent of class members actually received notice of the settlement 2: recognizing that the essential requisites of procedural due process are notice and meaningful opportunity to be heard 3: holding that under present rule settlement class must meet all rule 23 requirements and expressing concern about dangers of overrewarding attorneys and undereompensating class members 4: holding that entry of settlement decree without notice to putative class members violated the due process rights of the class members


Input: a notice “specifically stating the taxpayer’s liability and the basis for the liability;” a FPAA is “sufficient notice” of tax liability to allow the interest to start accruing again. Pl. Reply at 12-13 (citing I.R.C. § 5404(g)(1)(A); Treas. Reg. § 301.6404-4(a)(7)(ii)). In addition, either the issuance of the FPAA or the Government’s Answer commenced the “qualified offer period.” Pl. Reply at 13-15. Treasury Regulation § 301.7430-3(c)(3) treats a FPAA as a “notice of deficiency” that serves to start the “qualified offer period.” See Treas. Reg. § 301.7430-3(c)(3). For this reason, the United States Court of Appeals for the Fifth Circuit has held that a FPAA is the “functional equivalent of a notice of deficiency,” Sealy Power, Ltd. v. Comm’r, 46 F.3d 382, 385-85 (5th Cir. 1995) (<HOLDING>). Alternatively, the Government’s August 10, Holdings: 0: holding that where notice of deficiency fails adequately to describe the basis on which the commissioner relies for his deficiency determination burden shifts to the commissioner to prove the accuracy of the deficiency determination 1: holding that a fpaa is the functional equivalent of a notice of deficiency because it serves to afford affected taxpayers that the commissioner has made a final administrative determination of their liability for particular tax years 2: holding that a prefiling notification letter from the internal revenue service was not a notice of deficiency and therefore the tax court had no jurisdiction over the taxpayers petition 3: holding that a second deficiency notice issued for a taxable year was valid where it determined a deficiency in a different type of tax than did the earlier deficiency notice 4: holding that the statute of limitations began to run when the plaintiff first received notice of an alleged deficiency from the irs not when he received a final determination of tax liability


Input: organization. A two-level upward adjustment for Ortiz’s role in the offense, therefore, is not warranted. 2. “Safety Valve” Adjustment Ortiz argues that because he is not a manager or supervisor, he qualifies for a two-level decrease in his offense level. In order to receive this downward adjustment, a defendant must have a pre-adjustment offense level of at least 26 and meet the “safety valve” criteria set forth in U.S.S.G. § 5C1.2. See U.S.S.G. § 2Dl.l(b)(6). However, section 5C1.2 only applies to certain enumerated drug offenses: it does not apply to one of the offenses to which Ortiz pled guilty, distribution of a controlled substance within 1000 feet of a school in violation of 21 U.S.C. § 860. See U.S.S.G. § 5C1.2; cf. United States v. McQuilkin, 78 F.3d 105, 108-09 (3d Cir.1996) (<HOLDING>). Accordingly, Ortiz cannot receive a two-level Holdings: 0: holding lopez was inapplicable to the language prior conviction for a felony drug offense in 21 usc  841b1a because felony drug offense was defined in 21 usc  80244 as an offense that is punishable by imprisonment for more than one year under any law of the united states or of a state 1: holding that a district court is not authorized to sentence a defendant below the statutory minimum unless the government filed a substantial assistance motion pursuant to 18 usc  3553e and ussg  5k11 or the defendant falls within the safetyvalve of 18 usc  3553f 2: holding that relief under 18 usc  3553f the statutory safety valve provision is not available to defendants convicted of a violation of 21 usc  860 because that offense is excluded from the list of offenses to which the statutory safety valve applies 3: holding that it was error to subject the defendant to a twolevel enhancement under ussg  2d12 which addresses inter alia drug trafficking near a protected location when the defendant was neither convicted of nor stipulated to a violation of 21 usc  860 which penalizes drug offenses committed near schools 4: holding that drug quantity is an element of an offense under 21 usc  841


Input: have been submitted by the Board. We do not deem it unreasonable or contrary to Legislative intent for PERC to have concluded that the withholding was not based on an evaluation of the Principal’s performance. We agree with PERC’s observation that an arbitrator can determine whether the Principal’s inability to work warranted withholding his increment. Cf. N.J.S.A. 18A:30-2.1(a) & (b) (leave taken pursuant to work related injury constitutes satisfactory service for purposes of increment adjustment). In any event, in the present circumstances, the arbitrator should not be bound by PERC’s conclusion that the action was for disciplinary purposes in the ordinary sense of imposing discipline on the Principal. Cf. Scotch Plains-Fanwood Bd. of Educ., supra, 139 N.J. at 158, 651 A.2d 1018 (<HOLDING>). The arbitrator’s inquiry should focus on the Holdings: 0: holding that arbitrator was bound by perc determination that board acted for disciplinary reasons where board failed to appeal that determination 1: recognizing absolute immunity for attorneys and board members of the texas medical board 2: holding that an appeal to an agency review board would be futile because the board lacked authority to invalidate ordinance as requested 3: holding that the board did not abuse its discretion by dismissing an untimely appeal where the appellant failed to respond to a board order to show cause 4: holding that the district court was authorized to remand the proceedings to the board where the board failed to make required findings


Input: Collectively, Drs. Dionee and Zacharia’s conclusions, the “functional capacity evaluation,” and Hartford’s “employability analysis report” supported the decision that Maninger was no longer totally disabled. This evidence provided a reasonable basis for Hartford’s decision. AFFIRMED. * This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. 1 . See Nord v. Black & Decker Disability Plan, 356 F.3d 1008, 1009-10 (9th Cir.2004) (citing standard of review); Alford v. DCH Group Long-Term Disability Plan, 311 F.3d 955, 957 (9th Cir.2002). 2 . See Nord, 356 F.3d at 1009-10. 3 . Id. at 1010. 4 . Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834, 123 S.Ct. 1965, 155 L.Ed.2d 1034 (2003) (<HOLDING>). 5 . Jordan v. Northrop Grumman Corp. Welfare Holdings: 0: holding that erisa does not require plan administrators to give special deference to treating physicians opinions although administrators may not arbitrarily refuse to credit them 1: holding that courts have no warrant to require administrators automatically to accord special weight to the opinions of a claimants physician 2: holding that the decision of whether to accord greater weight to contemporaneous medical records or later given testimony is uniquely within the purview of the special master 3: holding that erisa does not require plan administrators to give special deference to treating physicians opinions 4: holding that reviewing court should accord deference to special masters decision and may not substitute its own judgment for that of the special master


Input: F.2d 1287, 1296 (D.C.Cir. 1980)); see also Time, Inc. v. Firestone, 424 U.S. 448, 454, 96 S.Ct. 958, 47 LEd.2d 154 (1976). [7] 7. Lerman v. Flynt Distrib. Co., 745 F.2d 123, 136-37 (2d Cir.1984) (relying on Gertz, 418 U.S. at 351-52, 94 S.Ct. 2997; Time, Inc., 424 U.S. at 454-55, 96 S.Ct. 958; Wolston v. Reader's Digest Ass'n, 443 U.S. 157, 166, 99 S.Ct. 2701, 61 L.Ed.2d 450 (1979); Hutchinson v. Proxmire, 443 U.S. 111, 135-36, 99 S.Ct. 2675, 61 LEd.2d 411 (1979)). 8 . 47 Code of Federal Regulations (CFR.) 73.1202 (2004) provides that All written comments and suggestions received from the public by licensees of commercial AM, FM, TV and Class A TV broadcast stations regarding operation of their station shall be maintained in the local public 187 F.Supp.2d 605, 609, 612 (S.D.W.Va.2002) (<HOLDING>) (quoting Suriano v. Gaughan, 198 W.Va. 339, Holdings: 0: holding that a defendant was not entitled to the affirmative defense where the evidence did not support his contention that he did not aid in the homicidal act 1: holding that evidence that the petitioner had a political opinion that he expressed it to his persecutors and that they threatened him only after he expressed his opinion compelled the conclusion that the threats were connected to his political opinion and not only to his failure to provide money in response to demands from the persecutors that predated his expression of his political opinion 2: holding that the district court did not err in continuing the trial without defendant when the trial had commenced in defendants presence he vigorously expressed his desire to be absent he was given ample opportunity to change his mind despite the disturbance he had created he had competent counsel and he knew of his right to be present 3: holding that campaign volunteer who had expressed support for one of candidates political positions in television advertisement and who also posed for photographs with candidate did not become limitedpurpose public figure because his actions were not sufficiently significant and because he did not assume a position that  propelled him to the forefront of the campaign 4: holding that firefighter who was expelled from volunteer fire company could not bring declaratory action seeking declaratory judgment that provision under which he was expelled was overbroad because he had not alleged with sufficiently credible facts that the challenged provision would be applied against him in the future


Input: not permit a defendant to bring counterclaims that would not independently qualify for summary process. See N.Y. C.P.L.R. § 3213:17; Friends Lumber Inc. v. Cornell Dev. Corp., 243 A.D.2d 886, 888, 663 N.Y.S.2d 327, 330 (3d Dep’t 1997). According to the district court, Wireless’s allegations did not so qualify. The court therefore concluded that Wireless could not have asserted its counterclaims in a state proceeding governed by § 3213. But § 3213 is a procedural rule, and when this case was removed to federal court, the regime of the Federal Rules replaced that of § 3213. See Fed.R.Civ.P. 81(e) (“These rules apply to civil actions removed to the United States district courts from the state courts and govern procedure after removal.”); TPO Inc. v. FDIC, 487 F.2d 131, 133 (3d Cir.1973) (<HOLDING>). Cf. Sage Realty v. Insurance Co. of N. Am., Holdings: 0: holding  after summary process was sought under  3213 and the ease was removed to federal court  that the bringing of counterclaims was governed by the federal rules not cplr  3213 1: holding that the burden is upon the state under the applicable federal rules of evidence 2: holding that after removal of diversity case to federal court the federal court may grant summary judgment notwithstanding earlier denial of summary judgment motion by state court 3: holding that a federal court with diversity jurisdiction must apply the choiceoflaw rules of the state in which the federal court sits 4: recognizing privilege under federal rules


Input: 1. The MTCA argues that intervention at this stage is untimely and would prejudice them because the case is in an advanced stage. The mere passage of time, however, does not render an application untimely. Bank of America Nat. Trust and Sav. Ass’n v. Hotel Rittenhouse Associates, 844 F.2d 1050, 1056 (3d Cir.1988); Wright & Miller, supra, § 1916 at 425-26. While four years had elapsed before the Seipels filed their motion to intervene, the critical inquiry is: what proceedings of substance on the merits have occurred? See In re Fine Paper Antitrust Litigation, 695 F.2d at 500 (“a motion to intervene after an entry of a decree should be denied except in extraordinary circumstances.”) (emphasis added). Cf. Hicks v. Miranda, 422 U.S. 332, 349, 95 S.Ct. 2281, 2292, 45 L.Ed.2d 223 (1975) (<HOLDING>). This is because the stage of the proceeding Holdings: 0: recognizing that the longstanding public policy against federal court interference with state court proceedings generally requires federal courts to abstain from involvement in state criminal proceedings 1: holding that where state criminal proceedings are begun against the federal plaintiffs after the federal complaint is filed but before any proceedings of substance on the merits have taken place in the federal court the principles of younger v harris should apply in full force 2: holding that probation revocation proceedings are clearly not criminal proceedings 3: holding that declaratory relief is improper when a prosecution involving the challenged state statute is pending in state court at the time the federal suit is initiated and the same principles that govern the propriety of federal injunctions of state criminal proceedings govern the issuance of federal declaratory judgments in connection with such proceedings 4: holding that where state criminal proceedings are begun against the federal plaintiffsafter the federal complaint is filed but before any proceedings of substance on the merits have taken place  the principles of younger v harris 401 us 37 91 sct 746 27 led2d 669 1971  apply in full force


Input: standing argument is that (1) under the current financial standards certain suppliers would be ruled ineligible for the DME Bidding Process, but (2) proper notice-and-comment rulemaking would have altered the standards used by the Secretary, and (3) under the new financial standards those suppliers would be found eligible. Similarly, the argument concerning harm to beneficiaries is that (1) under the current financial standards the Medicare beneficiary would obtain a rate and quality of care that (2) would be altered by new financial standards (whatever they might be) and (3) would lead to higher costs or lower-quality services. These highly attenuated scenarios are insufficient to confer Article I II standing. See Jacobrown v. United States, 764 F.Supp.2d 221, 227 (D.D.C.2011) (<HOLDING>) (quoting Winpisinger v. Watson, 628 F.2d 133, Holdings: 0: holding that the threat of injury was not speculative because the plaintiffs had been previously charged under the challenged statute 1: holding that district court did not have jurisdiction over any claims that could not exist independently of a contract 2: holding that in order to establish standing a plaintiff must show 1 it has suffered an injury in fact  2 the injury is fairly traceable to the challenged action of the defendant and 3 it is likely as opposed to merely speculative that the injury will be redressed by a favorable decision 3: holding that in order to establish standing the prospect of obtaining relief from the injury as a result of a favorable ruling must not be too speculative 4: holding that standing does not exist where the court would have to accept a number of very speculative inferences and assumptions in any endeavor to connect the alleged injury with the challenged conduct


Input: 303 by the transfer of an illiquid promissory security that gave the creditor no more than it already had-its proportionate share of an interest in the debtor’s assets. The Alleged Debtor also observes that the Eden Rock Petitioners brought a lawsuit in New York State court, individually and derivatively, against Stillwater, Gerova and certain of their principals, and that judgment has never been entered for the Eden Rock Petitioners against Stillwa-ter. The fact that litigation is ongoing related “to a petitioning creditor’s claim is insufficient to rebut its prima facie validity.” See In re VitaminSpice, 472 B.R. 282, 293 (Bankr.E.D.Pa.2012), citing In re Red Rock Rig 101, Ltd., 397 B.R. 545 (10th Cir. BAP 2008); see also In re AMC Investors, LLC, 406 B.R. 478, 486 (Bankr.D.Del.2009) (<HOLDING>). Moreover, the Eden Rock lawsuit asserted Holdings: 0: recognizing that if a creditors claim is subject to a bona fide dispute that creditor lacks standing to file an involuntary petition 1: holding that there is no requirement that a petitioning creditor obtain a statecourt judgment in order to have standing to file an involuntary petition under  303 of the bankruptcy code 2: holding that creditor lacked appellate standing to appeal order of bankruptcy court absent permission of bankruptcy court 3: holding that tjhere is no requirement in the bankruptcy code that a debtor must prove that a plan is confirmable in order to file a petition 4: holding that creditor did not have actual knowledge of the bankruptcy filing where the debtor informed creditor of the possibility that a bankruptcy case would be filed


Input: argument that an explanation based on a juror’s perceived “snippiness” toward or perceived inappropriate looks at the prosecutor, or on a juror’s perceived better rapport with opposing counsel, is not legally cognizable as a race-neutral explanation in the context of a Batson challenge. As we observed in Smith, “concern about a juror’s rapport with opposing counsel can be a legitimate, race-neutral basis for a peremptory strike.” 966 A.2d at 384 n. 27 (citing Majid v. Portuondo, 428 F.3d 112, 117, 131 (2d Cir.2005)); see also United States v. Rodriguez, 178 Fed.Appx. 152, 156 (3d Cir.2006) (reasoning that prosecutor’s explanations about his perception of jurors’ lack of eye contact were sufficient at Batson step two); United States v. Cordova, 186 Fed.Appx. 742, 744 (9th Cir.2006) (<HOLDING>). It bears reiterating that “explanations based Holdings: 0: holding that trial court abused its discretion in failing to make a proper inquiry of jurors andor failing to strike jurors for cause after jurors explicitly expressed bias 1: holding trial court did not err by permitting evidence that defendant molested another child three years before the victim 2: holding that the trial court did not err by granting defendants motion for summary judgment 3: holding that trial court did not plainly err by permitting prosecutors strike for proffered reason of jurors negative body language and eye contact 4: holding that trial court did not err


Input: ... [and (2) ] immediately recognizes the object[ ] discovered as evidence of wrongdoing.’” ” State v. Otwell, 733 So.2d 950, 953 (Ala.Crim.App.1999) (quoting Smith v. State, 472 So.2d 677, 682-83 (Ala.Crim.App.1984), quoting in turn Herrin v. State, 349 So.2d 103 (Ala.Crim.App.1977)). See also Otwell, 733 So.2d at 953 (recognizing that there is no requirement under the plain-view doctrine that the officer come upon the evidence inadvertently). Here, there is no dispute that Cpl. Wells lawfully stopped Moore for running a stop sign. See Perry, 66 So.3d at 294 (explaining the law-enforcement officers may lawfully stop the driver of a vehicle for a traffic violation). Once Moore was lawfully stopped, Cpl. Wells properly ordered him to get out of the vehicle. See Mimms, 434 U.S. at 111 (<HOLDING>); Perry, 66 So.3d at 294 (same). After Moore Holdings: 0: holding that a police officer may as a matter of course order the driver of a lawfully stopped car to exit his vehicle 1: holding that once a vehicle has been lawfully stopped an officer may order the driver out of the vehicle without violating the fourth amendment 2: holding that once a motor vehicle has been lawfully detained for a traffic violation the police officers may order the driver to get out of the vehicle without violating the fourth amendments proscription of unreasonable searches and seizures 3: holding that when lawenforcement officers have legally stopped the driver of a vehicle they may consistent with the fourth amendment order a driver out of the ear for any reason or for no reason 4: holding that the fourth amendment does not require lawenforcement officers to have a reason for ordering a driver who has been lawfully stopped to get out of the vehicle


Input: ¶47 The principles set forth in section 344 of the Restatement are consistent with Washington precedent. Washington courts have long recognized that the special relationship between a business owner and its invitees triggers a duty on the part of the owner to protect invitees from harm arising from the foreseeable conduct of third parties. See Niece, 131 Wn.2d at 44 (quoting Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217, 228, 802 P.2d 1360 (1991) (citing Prosser and Keeton on The Law of Torts 383 (W. Page Keeton ed., 5th ed. 1984))); Hutchins, 116 Wn.2d at 223-24 (noting that “the usual case where a duty may be found to protect others from third party criminal assault involves a business and its invitee”); Passovoy v. Nordstrom, Inc., 52 Wn. App. 166, 172-73, 758 P.2d 524 (1988) (<HOLDING>); Miller v. Staton, 58 Wn.2d 879, 883, 365 P.2d Holdings: 0: holding that a store owner has a duty to protect invitees from foreseeable criminal acts 1: holding that duty to protect from criminal acts does not arise in the absence of a foreseeable risk of harm 2: holding a business owner must protect invitees against injury caused by third persons 3: holding a business owes a duty to protect invitees from reasonably foreseeable harm by third persons 4: holding that a residential landlord has no duty to protect invitees from foreseeable criminal acts


Input: this case, however, Pigs Gun Club was not a class action. That distinction is significant because interpreting the notice of claim provision to require identification of every potential plaintiff in a class action lawsuit would nullify our class action rule, which provides that “[o]ne or more members of a class may sue or be sued as representative parties on behalf of all.” Utah R. Civ. P. 23(a) (emphasis added). Nothing in the Immunity Act suggests that the State declined to waive immunity from class action lawsuits. Accordingly, we hold that a claim providing notice of a possible class action lawsuit satisfies the requirements of the Immunity Act if it is filed by a class representative on behalf of potential class members. Cf. Moreno v. Bd. of Educ., 926 P.2d 886, 892 (Utah 1996) (<HOLDING>). The notice of claim in this ease met that Holdings: 0: holding that an adversary defendant was not a person aggrieved even though creditor committee acting on behalf of the estate had already filed claims against him 1: holding ftca jurisdictional requirements satisfied in wrongful death action by substituting husband in his individual capacity who had filed timely administrative claim for husband in his capacity as personal representative of decedents estate who had not filed claim and could not bring wrongful death action under state law 2: holding that a wrongful death claim related back to a personal injury claim in an automobile accident case where the wrongful death claim  arose from the same transaction or occurrence as the original complaint and the defendant was advised of the essential facts necessary to prepare his defense even with the added claim 3: holding that the notice of claim filed by a guardian in a wrongful death action even though erroneously filed on the guardians own behalf was sufficient to preserve the parents claim because the guardian was legally authorized to file a claim on behalf of the parent 4: holding that a public administrator was not entitled to attorneys fees in a claim against the estate of a former guardian where the case was not one where attorneys fees were authorized and there was no evidence to support the award


Input: explained, this ease has never been framed to solidify a foundation to support such necessary, broad-scale assessment. We do observe that there is a weakness in PHS and its amici’s particular emphasis on the DOC’s responsibility to provide a safe work environment, since it seems apparent that the Department may rely upon the prison medical companies with which its contracts as an integral component of the agency’s institutional safety planning. The argument for imposition of a duty carries more force relative to the contractual obligations of the prison healthcare company itself, rather than the independent obligations of its individual staff members arising out of physician-patient relationships. Cf. Guy, 501 Pa. at 58-63, 459 A.2d at 750-53 (opinion of the Court, in relevant part) (<HOLDING>). See generally Brief for Amicus Pa. Med. Soc’y Holdings: 0: holding that the attorneyclient privilege protects a clients identity only in limited circumstances where disclosure would convey the substance of a confidential professional communication 1: holding that there is no right to a meaningful attorneyclient relationship 2: holding that plaintiff was not the prevailing party for purposes of awarding attorneys fees even where the court retained jurisdiction to enforce the terms of a settlement agreement because there was insufficient judicial sanctioning of the alteration of the parties legal relationship 3: recognizing that a defendant physicians own practice was at least some evidence of the standard of care and concluding that the case was properly submitted to the jury notwithstanding the plaintiffs failure to call an independent expert on the standard of care 4: recognizing limited thirdparty rights in the context of an attorneyclient professional relationship where the plaintiff was the intended beneficiary of the prevailing standard of care


Input: Homes, Inc., 202 B.R. 260, 261 (Bankr.S.D.Ohio 1996) (observing that the final decree does not adjudicate any rights between the parties and is more of an administrative step to allow the clerk’s office to dispose of the fully administered case file). On the other hand, a confirmation order incorporates the terms of a chapter 11 plan, orders the performance of the critical promises the debtor made vis a vis its financial reorganization, fixes the rights and obligations of the debtor to each class of creditors, and articulates the essential agreements governing the relationship between the parties in interest and the reorganized debtor. It is generally regarded as the final court determination in a chapter 11 case. See 11 U.S.C. § 1141; In re Layo, 460 F.3d 289, 293-94 (2d Cir.2006) (<HOLDING>); In re American Preferred Prescription, Inc., Holdings: 0: holding that a bankruptcy courts sale order is a final order for res judicata purposes 1: holding that a bankruptcy courts order confirming a plan of reorganization constitutes a final judgment with res judicata effect binding the parties by its terms 2: holding that an unappealed contempt order by a bankruptcy court is a final judgment on the merits for res judicata purposes 3: holding that res judicata did not apply where a trial courts order was not a final judgment 4: holding that an unappealed order is a final judgment on the merits for res judicata purposes


Input: of fact. However, aside from there being no questions of fact concerning this issue, the 5th Circuit has established that when a trial court’s power to hear a case is questioned with regard to subject matter jurisdiction, it is proper for the trial court to weigh the evidence to determine its power to hear the case. MDPhysicians, 957 F.2d at 180. III. Conclusion ERISA does not govern this case. A self-employed physician, licensed to practice in Texas, is not an employee of the TMA or any of the insurance agencies. The TMA is not Dr. Path’s employer, but rather a “professional association which was established by and for the benefit .of physicians who are licensed to practice” in the state of Texas. See McCaslin v. Blue Cross and Blue Shield, 779 F.Supp. 1312, 1316-1317 (N.D.Ala.1991) (<HOLDING>). ERISA only regulates those plans established Holdings: 0: holding that expert report that sufficiently addressed certain claims against doctor employed by professional association was sufficient as to claims against professional association based on doctors negligence because the doctors negligence is imputed to the association under the professional association act 1: holding that erisa does not preempt the plaintiffs claim that the erisa plan administrator is liable for medical malpractice where the plaintiff premised the claim solely on state law and did not invoke the erisa plan 2: holding erisa did not apply when doctor was not employee of the medical association of the state of alabama 3: holding that the tolling provision of  91141 did not apply when the plaintiff knew that medical negligence may have contributed to her husbands death but asserted that she did not know the identity of the doctor who treated him 4: holding that a question of fact existed regarding whether the hospital held the doctor out as its agent if the hospital provided the doctor without explicitly informing the patient that the doctor was not its employee


Input: and third methods of proof under Russell lead to the same conclusion as the first method of proof: that the employee is unable to work in any capacity. The first method establishes that the employee is medically incapable of working, while the second and third methods focus on the vocational component of disability. Under those two methods, an employee is deemed totally disabled because even though the employee may be medically capable of performing work, employers nonetheless will not hire the employee. See White, 167 N.C. App. at 673, 606 S.E.2d at 399-400 (affirming award of total disability for closed period based on the Commission’s finding that the plaintiff, during that period, made unsuccessful efforts to find suitable work); Bridwell, 149 N.C. App. at 343-44, 561 S.E.2d at 302 (<HOLDING>). I can find no basis upon which to distinguish Holdings: 0: holding that even though the medical evidence did not support the commissions findings that the plaintiff was restricted from any and all employment the award of total disability should be affirmed based on findings that the plaintiff had unsuccessfully sought suitable employment 1: holding the findings of fact required to support an alimony award are sufficient if findings of fact have been made on the ultimate facts at issue in the case and the findings of fact show the trial court properly applied the law in the case 2: holding that findings of fact are conclusive if supported by clear and convincing competent evidence even where the evidence might support contrary findings 3: holding that a reviewing court has the power to reject the findings and conclusions of the trial court where the findings are not supported by the evidence 4: holding that a proper determination of the questions of law  cannot be made in the absence of suitable findings


Input: to issue Sole-Source Solicitation No. F45613-03-Q-A068 and Contract No. FA4620-04-D-A003 to Waste Management — Washington. Based on this record, there is no question that Blue Dot was prejudiced by the Air Force’s decision and that it has standing to bring this action. See Impresa, 238 F.3d at 1334. C. Relevant Standards Of Review. 1. In Bid Protest Cases. Bid protest actions are reviewed under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (“APA”), which provides that: The reviewing court shall — ... hold unlawful and set aside agency action, findings, and conclusions found to be — ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.] 5 U.S.C. § 706(2)(A); see also NVT Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed.Cir.2004) (<HOLDING>); Galen Med. Assocs., Inc. v. United States, Holdings: 0: holding that an agencys decision is to be set aside only if it is arbitrary capricious an abuse of discretion or otherwise not in accordance with law  1: recognizing that a court may reverse the pelrbs actions where those actions are arbitrary capricious or an abuse of discretion    not supported by substantial evidence on the record taken as a whole or otherwise not in accordance with law 2: holding that cis rejection of visa renewal application was not arbitrary capricious an abuse of discretion or otherwise not in accordance with law 3: holding that judicial review of an administrative agencys decision is limited solely to whether given the relevant standard and facts the agencys decision was arbitrary illegal capricious or unreasonable 4: recognizing a nonstatutory basis for setting aside an arbitration award if it is arbitrary and capricious


Input: territory” during the policy period; and (2) Arising out of the conduct of your business, excluding advertising, publishing, broadcasting or telecasting done by or for you. c. This insurance applies to “advertising injury” only if caused by an offense committed: (1) In the "coverage territory” during the policy period; and (2) In the course of advertising your goods, products or services. 2. Exclusions This insurance does not apply to: a. "Personal injury” or "advertising injury:” (2) Arising out of oral or written publication of material wh after notice of a claim would, however, constitute a waiver of the provision insofar as post-notification attorneys' fees are concerned. Cf. United States Fidelity & Guar. Co. v. National Paving & Contracting Co., 228 Md. 40, La.Ct.App. 1989) (<HOLDING>). The Peavey and Rovira courts agree that the Holdings: 0: recognizing that an insurers obligation to pay for prenotification legal expenses is concomitant with its right to control the defense and that a contrary result would require the insurer to pay for those defense costs which it had no opportunity to control 1: holding that delayed notice relieves insurer of obligation to pay defense costs if it was actually prejudiced by delay 2: holding that the insurer was not estopped from asserting a policy defense not contained in its reservation of rights letter where the delay was not unreasonable and the insured was not prejudiced 3: holding that an insurer can deny benefits based on late notice by the insured only when the insurer is prejudiced by the delay 4: holding that insurer must pay for defense after it declined to provide a defense and coverage was found to exist


Input: The court examined the history of amendments to the DUI statute and concluded that the Legislature’s addition of § 1201(e) at the same time it amended § 1201(a) to include subsections (a)(l)-(3), see 1973, No. 79, § 1, reflected a legislative concern with preventing multiple convictions based on the different ways the State could prove the operator was impaired. On this basis, the court concluded that § 3323(e) does not bar conviction of two counts of BWI/Fatal. ¶ 55. We need not resolve whether the court’s interpretation of the Legislature’s intent in enacting § 3323(e) is correct because multiple convictions are prohibited for a violation of § 3323(a), even without reliance on § 3323(e), in accordance with our holding in State v. LaBounty, 2005 VT 124, ¶ 10, 179 Vt. 199, 892 A.2d 203 (<HOLDING>). As we explained in interpreting a similar Holdings: 0: holding that to grant a new trial the error must be more than harmless 1: holding that it was plain error for trial court to allow more than one conviction of grossly negligent operation of a vehicle where more than one person was injured 2: recognizing that cjlearly buie requires more than ignorance or a constant assumption that more than one person is present in a residence 3: holding that more than notice to a defendant is required 4: holding a defendant may not be convicted of more than one count of dissemination of matter harmful to minors based on one occurrence even if there was more than one victim


Input: between the two markets was due in part to different levels of trade. Commerce found the data insufficient to provide a basis for the claimed adjustments because Böwe did not submit data for its own sales to distributors in the home market. To require Böwe to submit data for sales to distributors in the home market, however, is to preclude Böwe from ever obtaining a level of trade adjustment because it does not sell to any distributors in the home market. Consequently, such a requirement renders Böwe powerless to produce evidence to satisfy the burden of proof that Commerce has laid down for these adjustments in this case. This requirement is not in the regulation; nor does Commerce provide a reasoned basis for it. See NEC Home Elecs. v. United States, 54 F.3d 736, 745 (Fed.Cir.1995) (<HOLDING>); American Permac, Inc. v. United States, 12 Holdings: 0: holding that burden imposed to prove a level of trade adjustment was unreasonable because party could under no practical circumstances meet the burden 1: holding that the party challenging a tax deed has the burden to prove its invalidity 2: recognizing burden 3: holding that the government could not meet its burden under harmless error analysis because the record indicated that district court would have imposed shorter sentencing under advisory guidelines scheme 4: holding that the burden is on the plaintiff


Input: teams and therefore proeompetitive because they enhance public interest in intercollegiate athletics” and suggested that rules establishing eligibility requirements of student-athletes were such controls, while rules limiting television broadcasts were not. See id. at 117, 104 S.Ct. at 2969. While the parties have not cited any opinion addressing the particular bylaw at issue here, and we have found none, other courts have held that the NCAA’s “no-draft” and “no-agent” rules, which disqualify a-student-athlete from further intercollegiate competition if the student-athlete enters a professional draft or contacts an agent, are reasonable because they are procompetitive. See McCormack, 845 F.2d at 1343; Banks v. National Collegiate Athletic Ass’n, 977 F.2d 1081, 1087-94 (7th Cir.1992) (<HOLDING>); Gaines, 746 F.Supp. at 746; Jones, 392 Holdings: 0: holding professional rules do not provide basis for civil liability 1: holding that ncaas nodraft and noagent rules do not have an anticompetitive impact on a discernable market 2: recognizing that rates awarded in other cases do not set the prevailing market rateonly the market can do that 3: recognizing implied duty to market 4: holding elements of attempted monopolization claim under  2 of sherman act are intent anticompetitive conduct and dangerous probability of success in a relevant market


Input: Alleged Negligence Regarding Chock Straps and Lighting Plaintiff also contends that his workplace was unsafe because (a) the Nissan vehicle that allegedly injured him was “over-restrained,” such that it inched forward when plaintiff removed the chock straps securing it, Appellant’s Br. at 28, and (b) it was too dark for him to see the license plate holder. The district court noted that these claims “need not be considered” because plaintiff raised them for the first time in opposition to summary judgment. Hr’g Tr. at 16. We agree with the district court. See Greenidge v. Allstate Ins. Co., 446 F.3d 356, 361 (2d Cir.2006) (declining to reach merits of argument raised for first time in opposition to summary judgment); Syracuse Broad. Corp. v. Newhouse, 236 F.2d 522, 525 (2d Cir.1956) (<HOLDING>); see also 5 Charles Alan Wright & Arthur R. Holdings: 0: holding argument not raised in opening brief but raised for the first time in reply brief was waived 1: holding that an argument raised for the first time in response to defendants motion to dismiss instead of in an amended complaint was not properly raised before the district court and would not be considered on appeal 2: holding that claims raised for the first time in an opposition to a motion for summary judgment are not properly before a court 3: holding that arguments not raised in opposition to a motion for summary judgment are waived 4: holding that district court was justified in brushfing aside further argument not alleged in complaint but raised for first time in opposition to summary judgment


Input: 368 (1997). Here, Policyholders have not shown that Westchester made any material representation regarding the coverage of the policy. In the absence of an express request for a certain type of coverage, the mere issuance of an insurance policy does not constitute a representation that the policy covers everything the insured expects. Although the Supreme Court of Illinois has recognized that an insurer may make a tacit representation regarding the scope of coverage when it sells a policy that lacks any value whatsoever, see Glazewski, 91 Ill.Dec. 628, 483 N.E.2d at 1266, it has refused to extend this rule to cases where the policy does in fact have some value. See Charles Hester Enterprises, Inc. v. Ill. Founders Ins. Co., 114 Ill.2d 278, 102 Ill.Dec. 306, 499 N.E.2d 1319, 1325 (1986) (<HOLDING>); see also Friesz ex rel. Friesz v. Farm & City Holdings: 0: recognizing cause of action 1: holding misrepresentation must at least be partial cause of plaintiffs injury 2: recognizing the cause of action 3: holding that plaintiffs failed to state a cause of action for tacit misrepresentation where the policy had some value 4: holding that misrepresentation was essential to plaintiffs claim


Input: the proposed amended judgment offered by Valley Oak, the'trial court stated, “Baratta is correct that this order still doesn’t comply with what I think the second district is looking for or any appellate court, and that is some findings of fact.” Nevertheless, the trial court signed the proposed amended judgment as presented and attached certain portions of the transcript of the prior evidentiary hearing. Baratta now seeks review of this amended judgment for attorney’s fees and costs. In Rowe, the supreme court adopted the federal lodestar .approach for determining a reasonable attorney’s fee under a prevailing party attorney’s fee statute or contractual provision. Rowe, 472 So.2d at 1146; Freedom Sav. & Loan Ass’n v. Biltmore Constr. Co., 510 So.2d 1141, 1142 (Fla. 2d DCA 1987) (<HOLDING>). In doing so, the court recognized that while Holdings: 0: holding that the party prevailing on the significant issues in the litigation is the party that should be considered the prevailing party for attorneys fees 1: holding that the prevailing market rate can be established with reference to information concerning recent fee awards by courts in comparable cases 2: holding that a defendant is the prevailing party within the meaning of statutory provisions awarding attorneys fees to the prevailing party even when the plaintiff voluntarily dismisses the action 3: holding that prevailing party has no standing to appeal 4: holding that rowe applied to both statutory and contractual prevailing party fee awards


Input: make reasonable inferences from the facts he knew. Those parts of the demonstration for which Detective Reynolds lacked personal knowledge were admissible as lay opinion because they were reasonable inferences from those facts he did know by personal knowledge. TEX. R. EVID. 701. Under Rule 701, a witness, even a lay witness, may make reasonable inferences from the evidence. Detective Reynolds, as a lay witness, was entitled reasonably to infer how the crime occurred based on those facts he knew. See Osbourn v. State, 92 S.W.3d 531, 535 (Tex.Crim.App.2002) (stating that a witness’s testimony can include opinions, beliefs, or inferences as long as they are drawn from his or her own experiences or observations); Ventroy v. State, 917 S.W.2d 419, 422 (Tex.App.San Antonio 1996, pet. ref d) (<HOLDING>); Reece v. State, 878 S.W.2d 320, 325 Holdings: 0: holding officers testimony about the common use of vise grips to assist in stealing cars was admissible opinion testimony by a lay witness 1: holding that lay opinion testimony on the technical subject of asbestos in the workplace was inadmissible when the witness failed to demonstrate sufficient personal experience or technical knowledge to qualify him to offer an opinion 2: holding that witnesss opinion of a persons reaction to hearing a statement was admissible lay testimony based on personal observation 3: holding officers testimony about point of impact automobiles direction of travel and other opinions about crime scene was admissible as both lay opinion and expert testimony in trial for attempted murder of victim struck by automobile when based on personal knowledge and experience 4: holding that it was error to allow a police officer who was admitted as a lay witness after a prosecution motion to admit him as an expert was denied for lack of timeliness to give testimony as to a matter about which he had no personal knowledge


Input: be narrowly confined to its specifically enumerated areas of review. Commonwealth v. Judge, 591 Pa. 126, 916 A.2d 511, 520 (2007). Such narrow construction would be inconsistent with the legislative intent to channel post-conviction claims into the PCRA’s framework, id., and would instead create a bifurcated system of post-conviction review where some post-conviction claims are cognizable under the PCRA while others are not. Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564, 569-70 (1999). Instead, this Court has broadly interpreted the PCRA eligibility requirements as including within its ambit claims such as this one, regardless of the “truth-determining process” language that Appellee invokes from Section 9543(a) (2) (i). See Commonwealth v. Liebel, 573 Pa. 375, 825 A.2d 630 (2003) (<HOLDING>); Commonwealth ex. rel. Dadario v. Goldberg, Holdings: 0: holding claim is cognizable 1: holding that while batson claim was waived derivative claim that counsel was ineffective for failing to raise the batson claim is cognizable under the pcra 2: holding that claim alleging counsels ineffectiveness during the plea bargaining process is cognizable under the pcra 3: holding that claim challenging counsels effectiveness for failing to file a petition for allowance of appeal is cognizable under pcra 4: holding claim is not cognizable


Input: authorized.” As quoted, this language implies that because Vincent’s and Mackey’s decision was “deliberate, considered, or planned,” an inquiry into whether the practice was authorized is irrelevant. This proposition, however, is unsound. First, Piatt’s holding is the far narrower proposition that alleging challenged conduct to be a “matter of consistent policy” is sufficient to withstand attack on Parratt grounds. 773 F.2d at 1034. As alleged, the conduct in Piatt was authorized by state policy, 773 F.2d at 1034; therefore, Parratt does not apply to the conduct, whether deliberate or not. The language quoted by the majority is thus clearly dicta. Even more importantly, the dicta in Piatt is directly contrary to the Supreme Court’s holding in Hudson, 468 U.S. at 533, 104 S.Ct. at 3203 (<HOLDING>). We should follow the Supreme Court. 2. The Holdings: 0: holding parratt does not apply where an officer acts pursuant to established procedures 1: holding that 1 even if some conduct is not actionable as securities fraud that conduct cannot support a civil rico claim if it was also undertaken in connection with the purchase of a security and 2 conduct in maintaining ponzi scheme was conduct undertaken in connection with the purchase or sale of securities 2: holding that parratt does apply to intentional conduct if the conduct is unauthorized 3: holding that uncharged conduct may be considered at sentencing when that conduct is proven by a preponderance of the evidence 4: holding that the ada amendments act does not apply to preamendment conduct


Input: under the Jencks Act for a copy of the FBI 302 Report. The government refused on the ground that the report was not a “statement” within the meaning of the Act. Without conducting an in camera review of the document, the district court declined to require its production, finding, “[A]ll I can do is go by the law, and I just don’t think this is a Jencks Act statement.” We review the district court’s finding for clear error. See United States v. Boyd, 53 F.3d 631, 634 (4th Cir.), cert. denied, - U.S. -, 116 S.Ct. 322, 133 L.Ed.2d 223 (1995); United States v. Smith, 31 F.3d 1294, 1301 (4th Cir.1994), cert. denied, - U.S. -, 115 S.Ct. 1170, 130 L.Ed.2d 1124 (1995). In response to the Supreme Court’s decision in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957) (<HOLDING>), Congress enacted the Jencks Act, which Holdings: 0: holding a failure to object to a witnesses testimony while the witness was on the stand justified overruling a motion for a mistrial made several witnesses later 1: holding that whether error in failing to ask a question about bias in favor of law enforcement testimony requires reversal hinges on such factors as the importance of the government agents testimony to the case as a whole the extent to which the question concerning the venire persons attitude toward government agents is covered in other questions  the extent to which the credibility of the government agentwitness is put into issue and the extent to which the testimony of the government agent is corroborated by nonagent witnesses internal quotation marks and citation omitted 2: holding that material for witnesses need not be produced to defendant where the witnesses were not called as government witnesses at trial 3: holding that despite district courts restriction on crossexamination of government witness concerning the sentencing benefits he would earn through testifying for the government it did not violate defendants confrontation rights because of defense counsels effective impeachment of the government witnesses credibility and sentence reduction 4: holding that criminal defendants are entitled to obtain for impeachment purposes statements made by government witnesses to government agents that relate to the subject matter of the witnesses direct testimony


Input: value * * * of one-half the share of said farm,” court held that the term “in fee simple” clearly and conclusively imported the testator’s intent to grant a fee simple estate in the grandson.) See, also, Widows’ Home v. Lippardt (1904), 70 Ohio St. 261, 71 N.E. 770, paragraph two of the syllabus, (where will provided “I give and bequeath to my beloved wife all my estate, * * * in fee simple * * *; that after the death of my wife, if there is anything remaining of my personal or real estate it shall be distributed in the following manner * * court held that the wife had the power to sell the real estate and “a deed making such a conveyance, good as against the widow, is good against the second devisees”); Koval v. Koval (C.P.1966), 8 Ohio Misc. 206, 208, 37 O.O.2d 265, 221 N.E.2d 490 (<HOLDING>). But, see, Panzero v. Panzero (Feb. 3, 1989), 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 it is difficult to imagine any language more forceful than the words absolutely and in fee simple to bestow complete ownership upon zella koval and where a fee simple in real property or the equivalent in personal property is given an attempted gift over of any property remaining after the designated persons death is of no effect 2: holding that trial court erred by granting surviving spouse fee simple title to estates exempt property 3: holding that plaintiffs may have a property interest in real property 4: holding that a company which knew when it issued a policy that the insureds interest in the insured property was less than fee simple could not rely upon a provision rendering the policy void if the insureds interest was less than fee simple


Input: in increasing premiums for minority stockholders in merger freeze-outs, compared to tender offer freezeouts effected without special committees); James F. Cotter, Anil Shivdasani, & Marc Zenner, Do Independent Directors Enhance Target Shareholder Wealth During Tender Offers?, 43 J. of Fin. Econ. 195 (1997) (finding that, in the context of a tender offer, the presence of an independent board increases the tender offer bid premium and overall stockholder gains). 45 .Such an approach might also provide incentives for a controlling stockholder to proceed by means of a tender offer to the minority stockholders, and thus potentially avoid the need to actively negotiate with a special committee. See generally In re Siliconix Inc. S’holders Litig., 2001 WL 716787 (Del. Ch. June 19, 2001) (<HOLDING>); but see In re Cox Commc’ns, Inc. S’holders Holdings: 0: holding that the use of fund assets to fend off a hostile tender offer since made without sufficient inquiry into the facts constitutes a violation of the fiduciary standards under erisa 1: holding under its reading of solomon v pathe commcns corp 672 a2d 35 del1996 and other similar cases that a goingprivate tender transaction made by way of a tender offer is not subject to entire fairness review 2: recognizing further that the offer of proof allows the aggrieved party to present a proper record for review on appeal and in the absence of such an offer error may not be preserved 3: holding that rule 14e3 by its terms does not require that the offender know or have reason to know that the information relates to a tender offer 4: holding that rule of proportionality applies only under a1 and what is now a2d


Input: granted and are subject to dismissal under Rule 12(b)(6). III. SUMMARY For the preceding reasons, the Court: 1) DISMISSES Plaintiffs’ RICO claims because they fail to state claims for which relief may be granted, and because the WDCA reverse-preempts those claims under the McCarran-FergusonAct; and 2) DISMISSES Plaintiffs’ state-law claims of intentional infliction of emotional distress against Defendants for failure to state claims for which relief may be granted. SO ORDERED. 1 . While Cass urt deferred to the state administrative agency’s primary jurisdiction only on the ground that the Eñe doctrine would compel such deferral. See 73 C.J.S. Public Administrative Law and Procedure § 72; Virginia Imports, Inc. v. Kirin Brewery of Am., LLC, 296 F.Supp.2d 691, 698, 698 n. 1 (E.D.Va.2003) (<HOLDING>). 3 . While Cassens contends that the Holdings: 0: holding that the state police is a state agency 1: holding that a federal court in diversity jurisdiction must apply state substantive law 2: holding that federal courts sitting in diversity should apply state law that determines the outcome of the case 3: holding that federal courts sitting in diversity shall apply state substantive law 4: holding that in a diversityjurisdiction case involving only state claims the primaryjurisdiction doctrine does not apply in favor of a state agency as compared to a federal agency and holding that even if the doctrine were to apply a federal district court sitting in diversity would defer to a state agencys primary jurisdiction only if state courts would so defer


Input: does not argue that the Court should determine an award of compensatory education. Instead, Ms. Lopez requests only “that this Court remand this case to the Office of Dispute Resolution so that the hearing officer may award compensatory education.” Pl.’s Mem. at 5. The District “does not object to a remand.” Def.’s Mem. at 3; see id. at 9; see also Pl.’s Reply at 1 (noting the “District’s acquiescence to Ms. Lopez’s proposed remand”). The parties thus agree that remand is appropriate in this case. The D.C. Circuit has held that a district court may remand for the purposes of considering an award of compensatory education following a finding that a child was denied a FAPE. See Reid, 401 F.3d at 526; see also Branham ex rel. Branham v. Gov’t of D.C., 427 F.3d 7, 13 (D.C.Cir.2005) (<HOLDING>). District courts in this circuit fre quently Holdings: 0: holding that reid permits the district court either to take supplemental evidence or to return the case to the hearing officer 1: recognizing that a lower court cannot change the law of the case as decided by the highest court hearing a case 2: holding a district courts application of supplemental jurisdiction is a doctrine of discretion not of plaintiffs right 3: holding that the doctrine of incorporation by reference permits the court to consider documents on a motion to dismiss that are crucial or essential to the plaintiffs claims 4: holding that a district court retained supplemental jurisdiction over the plaintiffs statelaw claims after dismissing the plaintiffs federal claims and did not abuse its discretion by declining to remand the case to state court


Input: issue presented in this case: that the allowance of a rule 30A (k) deposition does not necessarily require the quashing of a subpoena to the deposed witness as being unreasonable or oppressive. We think the drafters of the rule would not have imposed such a drastic limitation on the important right of parties to call witnesses of their own choosing without explicit language or comment. Certainly in adopting the rule this court did not so intend. Additionally, it should be kept in mind that the judge’s order restricted the defendants’ right of cross-examination, a right which has long been recognized in both civil and criminal cases. See Alford v. United States, 282 U.S. 687, 691-692 (1931); The Ottawa, 70 U.S. (3 Wall.) 268, 271 (1865). See also Fuller v. Rice, 4 Gray 343, 344 (1855) (<HOLDING>); McCormick, Evidence § 19 (3d ed. 1984). Holdings: 0: recognizing a right to contribution 1: recognizing the right to counsel on appeal 2: holding no right to crossexamine in grand jury proceedings 3: holding right to be fundamental 4: recognizing right to crossexamine a deponent fully otherwise deposition should not be admitted


Input: that although the rule “does not require the producing party to engage in a post-production review to determine whether any protected communication or information has been produced by mistake,” the “rule does require the producing party to follow up on any obvious indications that a protected communication or information has been produced inadvertently.” For example, when a privileged document is used at a deposition, and the privilege holder fails to object immediately, courts have found the privilege to be waived. Nguyen v. Excel Corp., 197 F.3d 200, 206 (5th Cir.1999); Brandon v. D.R. Horton, Inc., No. 07-CV-1256, 2008 WL 2096883, at *3 (S.D.Cal. May 16, 2008) (listing cases); cf. Clarke v. J.P. Morgan Chase & Co., No. 08-CV-02400, 2009 WL 970940, at *6 (S.D.N.Y. Apr. 10, 2009) (<HOLDING>). Of course, the burden of proving that Holdings: 0: holding that failure to timely assert attorneyclient privilege constitutes waiver 1: holding that a one month delay is acceptable 2: holding that a six month delay was unreasonable 3: holding that voluntary testimony before a grand jury did not waive the privilege at trial because it is settled that a waiver of the fifth amendment privilege is limited to the particular proceeding in which the waiver occurs 4: holding twomonth delay in asserting privilege including failure to assert privilege at a deposition weighed in favor of finding waiver and describing cases in which waiver was found after delay ranging from six days to one month


Input: rights independent of that agreement, including state-law contract rights, so long as the contract relied upon is not a collective-bargaining agreement.” 482 U.S. at 396, 107 S.Ct. at 2431. An employer may then allege that plaintiffs state law claims are preempted, but must do so in state court. Id. at 397, 107 S.Ct. at 2432. Even if the employer proves that plaintiffs claims are preempted, this “does not establish that they are removable to federal court.” Id. at 398, 107 S.Ct. at 2432 (state law claims for breach of individual employment contracts made while plaintiffs were not members of bargaining unit did not arise under federal law and were not removable). Accord, Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 413 n. 12, 108 S.Ct. 1877, 1885 n. 12, 100 L.Ed.2d 410 (1988) (<HOLDING>). This distinction between jurisdictional Holdings: 0: holding section 301 preempted plaintiffs claim for tortious interference with contract because that claim would require interpretation of a collective bargaining agreement 1: holding that plaintiffs retaliatory discharge claim was not completely preempted and noting that state court on remand would have to apply federal law to remaining issues requiring interpretation of collective bargaining agreement 2: holding that the present controversy concerns the plaintiffs rights under state and federal statutes which exist independently of the collective bargaining agreement and do not require interpretation of that agreement 3: holding that plaintiffs retaliatory discharge claim under michigan law was not preempted because the statelaw tort of retaliatory discharge creates rights independent of those established by the collective bargaining agreement further holding that discrimination claim was not preempted even though the employer was likely to rely on provisions of the cba in its defense 4: holding state law claim preempted by  301 of labor management relations act only if application of state law requires interpretation of collective bargaining agreement


Input: exclusion. Absent such an indication, this court will not intervene to rewrite the contract. Despite the opinion of the Washington Supreme Court in Kent, this court is satisfied that diesel fuel, regardless of the way it is “discharged,” “dispersed,” or “released,” is within the definition of pollutants in the insurance policy at issue. As to defendants’ argument that the policy provision “is intended to protect against outside pollutants and waste cleanup, not the effects of a pest control cleanup,” this court is satisfied that the unambiguous language of the policy excludes all pollutants and does not exclude pollutants based on their source or location. See Damar Inc. v. United States Fire Insurance Co., 856 F.Supp. 679, 682-83 (N.D.Ga.1993), aff'd, 21 F.3d 1126 (11th Cir.1994), (<HOLDING>) Even though the court is disturbed by the Holdings: 0: holding as unambiguous under iowa law the insurance policys exclusion of coverage to any obligation of the insured to indemnify another because of damages arising out of  a bodily injury to any employee of the insured arising out of and in the course of his employment by the insured 1: holding it was not an abuse of discretion to exclude testimony 2: holding that intentional acts do not exclude coverage under the occurrence language unless the injury was expected or intended 3: holding that under georgia law similar language was virtually absolute and noting that it intended to exclude liability coverage for all liabilities arising out of pollution 4: holding claim for injuries arising out of use of truck and not from negligent supervision excluded from coverage by auto exclusion in commercial general liability policy no claim that language in policy was ambiguous or unclear


Input: the elevator maintenance, repair, and inspection exercised the appropriate care in keeping the elevators in safe operating condition. A. Liability for Delegation of a Non-delegable Duty The United States exercised its discretion to carry out its responsibilities for maintaining the elevators at the VA Medical Center by contracting with Otis and Bayline. “[T]he law is clear that the government may delegate its safety responsibilities to independent contractors in the absence of federal laws or policies restricting it from doing so.” Andrews v. United States, 121 F.3d 1430, 1440-41 (11th Cir.1997) (citations omitted); Moore, 2014 WL 949985, at *5 (citing Cochran v. United States, 38 F.Supp.2d, 986, 992-93 (N.D.Fla.1998)); see also Feyers v. United States, 749 F.2d 1222 (6th Cir.1984) (<HOLDING>); Dingler v. United States, No. 1:06-cv-181, Holdings: 0: holding that causes of action for employers misrepresentation and breach of contract to replacement workers are not preempted 1: holding that an agencys determination on a workers compensation claim was entitled to deference 2: holding the government was entitled to delegate responsibility for safety of rail yard workers to their private employers 3: holding that employee must prove that the sole reason for their discharge was their filing of a workers compensation claim to prevail on a claim of wrongful discharge under marylands workers compensation act 4: holding that an agency may not delegate its public duties to private entities


Input: the law (and we need not pass upon that issue), it was the duty of the town clerk — not Attorney Brule — to record and index the notice of intent in accordance with the General Laws. See Gerardi, 414 A.2d at 476 (noting that the town clerk is "bound to comply with the applicable [recording] statutes”). 7 .Mr. Beauregard argues that the motion justice erred when he ruled that there was “no dispute concerning the lack of [Attorney Brule's] malice.” Because we are affirming the grant of summary judgment based on the fact that Mr. Beauregard failed to show that the attorney defendants made a false statement about Mr. Beauregard’s ownership of the property which he wished to develop, we need not address the malice issue. See Lavoie v. North East Knitting, Inc., 918 A.2d 225, 228 (R.I.2007) Holdings: 0: holding we may affirm on any grounds supported by the record even those not relied upon by the district court 1: recognizing that this court may affirm summary judgment on grounds other than those relied upon by the motion justice 2: holding that this court may affirm a grant of summary judgment on any ground appearing in the record regardless of whether the circuit court relied on it 3: holding that the supreme court can affirm a trial justices decision on grounds other than those stated by the trial justice 4: recognizing that appellate court may affirm result on reasons different from those on which lower court relied


Input: District of Columbia embodies “a preference for the testimony of treating physicians over doctors retained for litigation purposes,” the hearing examiner nonetheless “may choose to credit the testimony of a non-treating physician over a treating physician.” Short v. District of Columbia Dep’t of Employment Servs., 723 A.2d 845, 851 (D.C.1998). Particularly is that so if “the contradicting medical evidence from the employer was from a doctor who examined” the claimant, King v. W.C.A.B. (Wendell H. Stone Co.), 132 Pa. Cmwlth. 292, 572 A.2d 845, 846 (1990) (cited in Stewart v. District of Columbia Dep’t of Employment Sens., 606 A.2d 1350, 1353 (D.C.1992)), and, in any case, the hearing examiner must explain his decision to credit the one opinion over the other. See Short, supra, at 851 (<HOLDING>). Although an agency as finder of fact Holdings: 0: recognizing examiners right to discredit treating physicians opinion but remanding for explanation where examiner did not mention opinions of those physicians 1: holding that the district court did not have jurisdiction and remanding the matter to state court 2: holding that challenge to vietnam war did not necessarily raise political question and remanding 3: holding that treating a defendants failure to appear as a waiver not only of the right to be present but of the right to have a hearing on the motion was error 4: recognizing substantial body of authority from other states and the federal courts holding that fatiguerelated injuries can be compensable in some circumstances but remanding case for explanation why contrary precedent within jurisdiction was not followed


Input: 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Unfortunately, the Appellants’ attempt to establish that their decision to terminate Wright did not violate a clearly established right wholly misunderstands the limited nature of our interlocutory review. The Appellants contend that their decision to terminate Wright was based on HUD’s audit report, which suggested, at best, that he was a poor manager, and, at worst, that he was guilty of potentially criminal conflicts of interest. They further contend that their reliance on the report, whether or not mistaken, was not unreasonable under the circumstances. They conclude, therefore, that because Wright “cannot demonstrate that the individual Defendants were ‘p L.Ed.2d 348 (1981); Patrick v. Miller, 953 F.2d 1240, 1249-50 (10th Cir.1992) (<HOLDING>). Whether the Appellants’ decision to terminate Holdings: 0: holding that an atwill employee may sue under  1981 for racially discriminatory termination 1: holding that plaintiff is entitled to assert claim of retaliatory transfer under  1981 2: holding that six cited cases were sufficient to inform a reasonable government official in 1988 that racially based retaliatory actions may violate the employees rights as enumerated in  1981 3: holding that employees retaliatory discharge based on employees election to public office did not violate public policy 4: holding that retaliatory discharge demotion or other adverse employment claims state a cause of action under  1981