Input: that the victim was killed in the parking lot and that he staged her death to look like a sexual assault, the grass which was clutched in the victim’s hand tells another tale — one where she was still struggling for life at the edge of the pond after being sexually assaulted. The jury recommended the death penalty by a vote of twelve to zero. The trial court found such a punishment was appropriate after considering all the evidence and properly weighing the aggravators against the miti-gators. Specifically, the court found four aggravating factors, one statutory miti-gator, and numerous nonstatutory miti-gators. Upon review, we find that the circumstances of this case are similar to other cases in which we have upheld the death penalty. See Orme v. State, 677 So.2d 258, 263 (Fla.1996) (<HOLDING>); Schwab v. State, 636 So.2d 3, 7 (Fla.1994) Holdings: 0: holding the death sentence proportional for the firstdegree murder conviction where the aggravators included prior violent felony conviction and hac 1: holding death sentence proportionate where defendant murdered wife and children and trial court found three aggravators previous capital felony ccp and hac and two statutory mitigators extreme disturbance and no prior criminal history 2: holding the death sentence proportional for the sexual battery beating and strangulation of victim where there were three statutory aggravators hac pecuniary gain and sexual battery and both statutory mental mitigators 3: holding that the defendant could be convicted of sexual battery a lesser crime not included in the offense for which he was indicted where the defendant requested that sexual battery be submitted to the jury 4: holding the death sentence proportional for the firstdegree murder conviction where only the hac aggravator was found


Input: fair trial.”), if Ms. Battles had obtained the information upon which she presently grounds her Brady claim before the trial commenced (or, indeed, sometime before the trial ended), she would have been obliged to voice her concerns about that potentially suppressed information then. Compare United States v. Warhop, 732 F.2d 775, 777 (10th Cir.1984) (“While we strongly disapprove of delayed disclosure of Brady materials, that alone is not always grounds for reversal. ‘As long as ultimate disclosure is made before it is too late for the defendant] to make use of any benefits of the evidence, Due Process is satisfied.’ ” (alteration in original) (quoting United States v. Ziperstein, 601 F.2d 281, 291 (7th Cir.1979))), with United States v. Scarborough, 128 F.3d 1373, 1376 (10th Cir.1997) (<HOLDING>). In such a circumstance, Ms. Battles’s failure Holdings: 0: holding prosecutor has affirmative duty to disclose material exculpatory evidence 1: holding that a lie by defendant to government regarding his past criminal history was exculpatory material under brady 2: holding that record must show that evidence is exculpatory for defendant to establish brady violation 3: holding that the prosecution must disclose to the defense all exculpatory evidence known to the state or in its possession 4: holding that revelation of exculpatory material just prior to the end of trial which led the defense to move  to dismiss the case  for violating brady did not warrant reversal when following the recess defense counsel extensively crossexamined the witness possessing the purportedly exculpatory information regarding the tardilydisclosed evidence  and used the exculpatory material to strong effect in his closing argument


Input: that City bears the burden of demonstrating that the City Council’s decision is supported by substantial evidence. (See City Motion at 13; AirTouch Opp’n at 18.) The Court accepts that stipulation, and accordingly will assign the burden of proof in § 332(c)(7)(B)(iii) on the City. c. Analysis AirTouch argues that as a matter of law there was no substantial evidence to support the City’s decision because the record consists primarily of the “substantiated” testimony of residents whose testimony was based on their experiences with Nex-tel. There is a split in authority, and no Ninth Circuit authority, on whether a telecommunications zoning decision can be based on constituent testimony alone. Compare AT & T Wireless PCS v. City Council of Virginia Beach, 155 F.3d 423, 430 (4th Cir.1998) (<HOLDING>); with Cellular Telephone Co. v. Town of Oyster Holdings: 0: holding that an order compelling arbitration is not appealable because it is not listed in the uaa statute and because it is not final 1: holding that the bia does not abuse its discretion by giving summary consideration to evidence presented in a motion to reopen particularly when dealing with evidence which the bia is asked to repeatedly consider 2: holding order compelling arbitration is unappealable 3: holding that it is proper for a legislature and its members to consider constituent testimony as particularly compelling forms of evidence 4: holding that the government interest in preventing crime is compelling


Input: P.2d 934 (Alaska 1994); Maricopa Cnty., 136 Ariz. 528, 667 P.2d 228 (App.1983); In re Interest of Bird Head, 213 Neb. 741, 331 N.W.2d 785 (1983). I would hold that good cause exists to deviate from the adoptive placement preferences of section 1915(a). Baby Girl has resided with Appellant rated a desire and willingness to introduce Baby Girl to her Indian culture. Section 1917 permits an adopted Indian child to receive information on his or her “tribal affiliation ... and ... such other information as may be necessary to protect any rights flowing from the individual’s tribal relationship” upon reaching the age of eighteen. 25 U.S.C. § 1917. Thus, I am persuaded that Baby Girl will have a knowledge of and appreciation for her cultural heritage. See In re Robert T., 246 Cal.Rptr. at 176 (<HOLDING>). In light of the totality of the evidence, Holdings: 0: holding that where a patient is in possession of his faculties and in such physical health as to be able to consult about his condition and where no emergency exists making it impracticable to confer with him his consent is a prerequisite to a surgical operation by his physician 1: holding that the native american childs best interests were to remain with his adoptive parents since they have bonded well and have encouraged him to learn about and visit his cultural roots 2: holding the respondent  implicitly exercised his right to withdraw his voluntary departure request and instead  elected to remain to pursue his motion 3: holding that a suspects statements to the police to the effect that his constitution will protect him that the police have nothing along with his negative response to a police question whether he had anything to say about what he was being arrested for followed by his question who said i did this did not amount to a clear invocation of the right to remain silent under davis 4: holding that a parents rights must yield to the childs right to have proper parenting and fulfillment of his or her potential in a permanent healthy safe environment a parent cannot protect his parental rights by merely stating that he does not wish to have his rights terminated internal citations omitted


Input: was pursuant to a settlement agreement, not an IEP team decision. Outside of settlement, AACPS maintains, it has no authority to place students in non-approved schools. The parents refute all of these contentions. Although the ALJ did not reach this issue, we note that the weight of the evidence, both testimonial and documentary, supports AACPS’s contentions, as does the caselaw and the statute itself. See, e.g., 20 U.S.C.A. § 1412(a)(10)(B) (providing that when public agencies place children in private schools, “the State educational agency shall determine whether such schools and facilities meet standards that apply to State educational agencies”); Carter v. Florence County Sch. Dist. Four, 950 F.2d 156, 162 (4th Cir.1991), aff'd, 510 U.S. 7, 14, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993) (<HOLDING>). In sum, the record fully supports the ALJ’s Holdings: 0: holding that though the school districts plan was adequate the parents were still entitled to tuition reimbursement under the pendency provision 1: holding that the unilateral placement of a student by the parents in an unapproved school is not by itself a bar to tuition reimbursement but public schools may not place students in unapproved schools 2: holding that schools have no duty under the due process clause to protect students from assaults by other students even where the school knew or should have known of the danger presented 3: holding that a students private school tuition should be reimbursed where parent did not unilaterally place student in private school because the school district tacitly consented to the private school attendance before proposing a different placement 4: holding that a federallyfunded program in which public school teachers provided remedial education to disadvantaged children in parochial schools as well as public schools did not violate the establishment clause


Input: In this case, Dr. Sklaroffs report concluded: “[H]ad [Sanders] been provided episodic follow-up gastroscopic evaluations, the lesion would have been detected at an earlier moment in its natural history ... when it would have been amenable to surgical cure.” The district court noted that it is unclear whether by stating that “the lesion would have been detected” (emphasis added), Dr. Sklaroff was suggesting that the 2003 mass did not itself become cancerous. But even assuming, as the Estate urges, that the mass detected in 2003 later became cancerous, Dr. Sklaroffs assertion that the lesion “would have been amenable to surgical cure” does not establish the probability of a better outcome nor take that probability out of the realm of conjecture. See Estate of Gibson, 91 So.3d at 625 (<HOLDING>) (citation omitted); Hubbard, 954 So.2d at 964; Holdings: 0: holding that testimony taken as a whole must establish reasonable medical certainty that the negligence caused the injuries at issue 1: holding that while a foundation for an inference of negligence under the doctrine of res ipsa loquitur may be based on the testimony of an expert witness the experts testimony must establish that the occurrence indicates the probability of negligence 2: holding in the medical malpractice context that a plaintiff must prove that the alleged negligence more likely than not caused the victims death 3: holding expert testimony provided no evidence as to causation since testimony was not based upon reasonable medical probability 4: holding that expert medical testimony was not necessary to establish negligence where surgeon left a needle in the patients body but stating that proof of proximate cause requires some expert testimony in medical malpractice cases


Input: likely to do so than the Act. By contrast, the Act allows firearm counseling to continue, so it is not directly regulating medical conduct or declaring a certain form of treatment bad medicine. At the same time, the Act directly bans asking irrelevant questioning about firearms — even, indeed especially, those questions having nothing to do with medical conduct. The Act thus directly targets questioning and only incidentally advances whatever medical interests might be served by a law eliminating irrelevant questions about firearms from the doctor’s office. The burden on speech is direct. The benefit to medical care is, at best, incidental and indirect. The Supreme Court has explicitly recognized that States cannot advance their interests in this way. See Sorrell, 131 S.Ct. at 2670 (<HOLDING>). In an attempt to salvage its claim that the Holdings: 0: recognizing that the first amendment prohibits laws where the state seeks to achieve its policy objectives through the indirect means of restraining certain speech by certain speakers 1: holding that where the first amendment does not protect a certain activity there can be no first amendment right of association to engage in that activity 2: recognizing derivative standing if the bankruptcy court determines that certain conditions exist and certain prerequisites are met 3: holding that prosecutor free to comment on defendants failure to call certain witnesses or present certain testimony 4: holding that an ordinance granting greater first amendment rights to speakers who support the human services objectives of the city was impermissibly contentbased


Input: any court in a civil, criminal, or other matter without the consent of the defendant.”). 9 . KRS 533.256(1). 10 . The provisions permit programs that are "authorized by the Kentucky Supreme Court and providing for the pretrial diversion of misdemeanants,” KRS 533.262(2), e.g., those implemented in district court pursuant to CR 8.04. The statute also contains "grandfather” language permitting pretrial diversion programs in place as of July 15, 1998 to “continue for the purpose of supervising persons granted pretrial diversion prior to July 15, 1998, however no new pers ding that Court of Appeals properly denied petition for writ directing trial court to exclude certain evidence because "evidentiary errors may be corrected on appeal.”); St. Clair v. Roark, Ky., 10 S.W.3d 482, 485 (2000) (<HOLDING>); Cavender v. Miller, Ky., 984 S.W.2d 848, 849 Holdings: 0: holding that to grant a writ of mandamus a court in the exercise of its discretion must be satisfied that the writ is appropriate under the circumstances 1: holding it is settled that the supreme court may consider questions raised on the first appeal after which the court denied a petition for a writ of certiorari as well as those that were before the court of appeals upon the second appeal after which the court granted a petition for a writ of certiorari internal quotation marks omitted 2: holding that although double jeopardy is an appropriate subject for a writ of prohibition the court in which the petition is filed may in its discretion  decline to address the merits of the petition on grounds that there is an adequate remedy by appeal 3: holding no appeal permitted from dismissal of writ petition 4: recognizing the specific need for an appropriate double jeopardy review when an appeal is taken by the state from a lower courts dismissal of the criminal charges


Input: would leave the district court judge with unfettered discretion to set interest rates on judgments, which was most likely not the intent of the legislature, and which is at variance with the common law. At common law, no interest was allowed, and it is only permissible when authorized by statute. See Paradise Homes v. Central Surety, 84 Nev. 109, 116, 437 P.2d 78, 83 (1968); see also Wilson v. Pacific Maxon, Inc., 100 Nev. 479, 483, 686 P.2d 235, 237 (1984) (“As we have explained, the statutory interest rate was seven percent (7%). The judgment entered below, therefore, must be modified to provide for prejudgment interest at the rate of seven percent (7%) instead of twelve percent (12%).”). Statutes in derogation of the common ng Fiberglass Corporation, 616 So. 2d 645, 647 (La. 1993) (<HOLDING>). We reject this argument based on a plain Holdings: 0: holding that courier and messenger costs are not taxable costs 1: holding that investigatory costs are considered costs of response under cercla 2: holding that mediation costs are not compensable 3: holding that costs are not fixed until judgment is entered and interest can only run on costs when due 4: recognizing that detariffmg would result in some increased administrative costs but anticipating those costs to be initial and fixed costs only resulting from the shift to a detariffed environment  such as the cost of developing short standard contracts


Input: Illinois and Florida to his declaration of intent to reside in Florida indefinitely, the court will need to determine what weight to give to the declaration. See Prakash v. American University et al., 727 F.2d 1174, 1181 (D.C.Cir.1984). This determination, as it depends upon the credibility of the declaration and Hicks’s credibility as a witness, is difficult to make solely on the basis of a paper record. See Sapperstein, 188 F.3d at 856 (questioning credibility determinations based solely on affidavits in determining subject matter jurisdiction); see also Mendiola v. Schomig, 224 F.3d 589, 598 n. 4 (7th Cir.2000) (Rovner, J., dissenting) (noting that credibility assessments from a paper record are unreliable); Medeco Security Locks, Inc. v. Swiderek, 680 F.2d 37, 38 (7th Cir.1981) (<HOLDING>); United States v. Cortina, 630 F.2d 1207, 1214 Holdings: 0: recognizing that the district court is not bound by its prior factual findings determined in a preliminary injunction hearing 1: holding that a hearing must be held to determine credibility in preliminary injunction cases 2: recognizing the inappropriateness of a preliminary injunction where credibility determinations must be made but granting a preliminary injunction because the legal and factual issues have been sufficiently illuminated 3: holding that when the district court applies the wrong preliminary injunction standard this court may review the record to determine whether the injunction is justified 4: holding that plaintiffs were not entitled to a preliminary injunction


Input: may permit a doctor to exercise judgment in choosing among several courses of treatment. “The error-of-judgment rule . . . stems in part from the recognition that if there is more than one acceptable treatment option, then the selection of any one of them is not negligence. Thus, a doctor is not liable for untoward results if he or she used reasonable care in selecting one of those options.” Rogers v. Meridan Park Hospital, 772 P.2d 929, 930-31 (Or. 1989). In this case, the defendants assert that in the course of treating Mrs. Francoeur, Dr. Piper had multiple options from which to choose, each of which met the standard of care, and the fact that the option he chose resulted in Mrs. Francoeur’s amputation does not, standing alone, constitute negligence. The defendant argues that 995) (<HOLDING>); Deyo v. Kinley, 565 A.2d 1286, 1292-93 (Vt. Holdings: 0: holding that a plaintiff must show that a defendant did not have an honest good faith belief in marking its products 1: holding that an insurers violation of covenant of good faith and fair dealing was actionable under the consumer protection act 2: holding term good faith in iowa code section 23272 rests on a defendants subjective honest belief 3: holding good faith and honest error in judgment instructions erroneously imply only badfaith and dishonest deviations actionable 4: holding that the transaction must be fair and equitable and in good faith


Input: Waggoner received was to compensate him for traveling from Texarkana to Shreveport, It reasoned that $10 of the $50 per diem was intended to pay for his “actual travel expense” and the remaining $40 was to “compensate the employees for their travel time.” The Commission also noted that “the per diem was intended to bear a rational relationship to the actual cost of the employee’s transportation costs from Texarkana to the company’s various work sites,” The “compensated travel” concept has not been fully developed or discussed in the case law. As a general rule, however, this exception applies when an employee’s compensation covers' the time going back and forth from work or an allowance is made for the cost of transportation. Chicot Mem’l Hasp., 9 Ark. App. at 20, 652 S.W.2d at 632 (<HOLDING>). The compensated-travel exception has also Holdings: 0: holding where the employer supplies less than the actual expense of travel exception would apply only if the reimbursement bore a reasonable relation to the actual expense of travel or was for a substantial part of it 1: holding the defendant responsible for the greater of the actual or intended loss 2: holding a plaintiff failed to show an actual injury to challenge an epa rule when the plaintiff alleged he would not have purchased a piece of property or would have paid  less because the plaintiffs allegations showed only that the property was worth less to him not that the property was in fact worth less 3: holding that apprendi does not apply where the defendant was sentenced to less than the statutory maximum 4: holding that because the hospital had no actual or constructive notice that the parties were separated at the time services were rendered the separation exception did not apply


Input: courts have typically focused upon the right of the employer to control its annual budgetary and discretionary functions as well as the absence of an employee’s right to the continued existence of a particular means or method of compensation. In Keeling v. City of Grand Junction, 689 P.2d 679 (Colo.App.1984), for instance, the court found that an educational incentive pay program for police officers and firefighters did not create a contractual obligation. Id. at 680. The Court held that “plaintiffs do not have a vested contractual right in the continuance of a particular rate or method of compensation” and observed that “succeeding city councils are not bound by the legislative acts of their predecessors....” Id.; see also Schulz v. City of Longmont, 465 F.3d 433, 443 (10th Cir.2006) (<HOLDING>); Colo. Springs Fire Fighters Ass’n v. City of Holdings: 0: holding that obligation to pay pension benefits gave rise to a constructive trust relationship and obligation was not discharged in bankruptcy 1: holding that a determination by the trial court of a clear and definite amount for support is necessary in establishing a partys ability to pay and in enforcing the obligation in future proceedings 2: holding that promises city made to pay annual step increases did not result in contractual obligation and municipalities retain ability to change compensation and benefits provided to employees 3: holding even in context of employee manual that policy which included agreement to provide annual salary increase of five percent did not constitute contract between city and employees and distinction between atwill employees and public employees was not dispositive in this context 4: holding that employers insurer who provided workers compensation benefits to employee but did not consent to employees settlement with thirdparty tortfeasor may maintain an action for payments that become payable in the future


Input: experience with the state’s criminal justice system. See Garcia, 358 N.C. at 397, 597 S.E.2d at 737. When first approached by Officer Robb, defendant was told he was being detained until detectives arrived but that he was not under arrest. When he was again advised by the detectives upon their arrival that he was not under arrest, defendant voluntarily agreed to accompany them to the police station, affirmatively telling them he was “anxious” to talk with them and answer their questions. Defendant was never restrained from the time of his initial encounter with Detectives Copeland and Taylor until the door of the investigation room was locked after defendant admitted stabbing the victim. Until then, defendant was frequently left alone in the interview room with th 2d 178, 185-87 (1992) (<HOLDING>). Although defendant focuses on his inability Holdings: 0: holding that a defendant who voluntarily rode to the station with officers in a police car waited in a lobby with unlocked external doors and was told more than once he was not under arrest was not in custody 1: holding that appellants complaint on appeal that the environment was coercive did not change the fact that he was not in custody when he voluntarily went to the police station was told several times he could leave and did leave after the interrogation 2: holding on direct review that defendant was not in custody when he was interviewed by law enforcement officers in a parked police vehicle which was unmarked and unlocked 3: holding on habeas review that defendant was not in custody for miranda purposes and reciting among other facts that defendant was transported to a police station for questioning in an unmarked police car which was not equipped with a shield inside the car 4: holding that a defendant who was told several times he was not under arrest and who never asked to leave during an interview with investigators was not in custody


Input: 1737 Corp. must show that the transfers were consistent with the parties’ prior practices. See Savage & Assocs. v. Mandl (In re Teligent, Inc.), 380 B.R. 324, 340 (Bankr.S.D.N.Y.2008). Its counsel represented at oral argument that the defendant no longer employs Insignia/ESG as its property manager, and it may be very difficult to muster the documentary and testimonial evidence needed to mount a defense after so many years. City of Yonkers, 2008 WL 5272722, at *6 (“To permit an extension of the service period now, sua sponte, more than four years after the complaint was filed, would require defendants to defend a lawsuit based on actions taken more than seven years ago.”); Rice v. Univ. of N.D. Sch. of Med. & Health Scis., No. 2:07-cv-11, 2008 WL 5145482, at *4 (D.N.D. Dec. 8, 2008) (<HOLDING>). Savage is responsible for the long delay, and Holdings: 0: holding recusal not required where case involved a family whom district judge had known personally seven or eight years earlier 1: recognizing the prejudice of an extension to a defendant who would be required to litigate events that occurred more than eight years earlier 2: holding that the indictment was sufficient to satisfy the continuity requirement since it alleged that the defendants conduct occurred over a period of eight years 3: holding that a delay of more than eight years attributable to the normal workings of the appellate process in addressing a pretrial appeal is reasonable 4: holding that more than notice to a defendant is required


Input: the amended sworn notice of claim. The parties have not yet presented their case to the screening panel or conducted any discovery. Frame promptly filed the amended sworn notice of claim, within four months of the original filing. Frame has not yet sought to file a complaint for professional negligence, and the now-sworn notice provides the Hospital with a basis for a perjury action against Frame. [¶ 19] Further, permitting an amended notice of claim to cure the defect caused by the unsworn notice is consistent with the purposes of the MHSA. An amendment that cures a technical defect fulfills the statutory objectives of deciding claims on their merits and encouraging the early withdrawal of meritless claims. See 24 M.R.S. § 2851(1); see also Dutil v. Burns, 1997 ME 1, ¶ 5, 687 A.2d 639 (<HOLDING>). Permitting Frame to assert her claim under Holdings: 0: recognizing that dismissal of claim for a failure to comply with the statutory prerequisites for maintaining an action for professional negligence  is akin to a dismissal for insufficient service of process or lack of subject matter jurisdiction and does not serve as an adjudication of the merits 1: holding that under federal law the dismissal of a claim as timebarred is adjudication of merits for purposes of res judicata 2: holding dismissal for failure to comply with rule 8 was dismissal of entire action which was appealable final order 3: holding after we found standing following a district courts dismissal for lack of subject matter jurisdiction that the merits will be for the district court to decide on remand 4: holding that dismissal for failure to comply with discovery orders is on the merits


Input: F.2d 306, 309 (11th Cir.1993) (rejecting the argument that the common law D’Oench doctrine is limited by a specific asset requirement). Other circuits are in agreement on this issue. See, e.g., Inn at Saratoga Assocs. v. FDIC, 60 F.3d 78, 82 (2d Cir.1995) (rejecting the argument that the D’Oench doctrine is limited by an “asset” requirement, because such a requirement “would undercut an important purpose of that doctrine — allowing the FDIC to rely on a bank’s records when insuring the bank”); Brookside Assocs. v. Rifkin, 49 F.3d 490, 496 (9th Cir.1995) (“[W]e hold that the common-law [D’Oench \ doctrine applies to bar suit even when the RTC does not acquire a specific asset whose value is affected by the alleged secret agreement.”); Jackson v. FDIC, 981 F.2d 730, 734-35 (5th Cir.1992) (<HOLDING>); Timberland Design, Inc. v. First Serv. Bank Holdings: 0: holding that the doench doctrine protects the fdic even where the fdic does not have an interest in an asset 1: holding that no complete innocence exception to the doench doctrine exists 2: holding that claims that do not diminish or defeat the fdics interest in any specific asset are nevertheless doench barred in light of the established purpose of the doench  doctrine to protect the fdics reliance on the banks records 3: holding that defendant defrauded fdic when actions diluted value of fdics security interest thereby being likely to frustrate and impair the fdics ability to realize the benefit of the interest 4: holding that  1823e applies only when the fdics interest in a specific asset would be impaired by the alleged secret agreement


Input: to inquire about the proceeding; Johnson assured her things were progressing. On September 13, 2008, Neef observed that Johnson no longer appeared to work in his Newton, Iowa law office. Neef attempted to contact Johnson on numerous occasions, including visiting his former law office, calling repeatedly, and visiting Johnson’s home. When Neef left a message on Johnson’s cell phone informing him she was starting fraud charges and contacting the Iow to engage in dishonesty, fraud, deceit, or misrepresentation) because he told Neef things were progressing when he had not even filed the bankruptcy petition, assured Neef he would file right away when reached by her, and once again failed to file. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Wagner, 768 N.W.2d 279, 286-87 (Iowa 2009) (<HOLDING>). We reject the commission’s recommendation to Holdings: 0: holding that it was appropriate for the district court to refer to the documents attached to the motion to dismiss since the documents were referred to in the complaint 1: holding that pursuant to the best evidence rule trial testimony relying on documents was inadmissible without submission of such documents or an explanation as to why the documents were unavailable 2: holding repeated claims by attorney to client that documents were forthcoming constituted misrepresentations in violation of rule 3284c when the documents were not actually ready 3: holding that unauthenticated documents may be considered in support of a motion for summary judgment where the documents were not objected to or their authenticity disputed 4: holding that settlement documents were admissible under both section 90408 and federal rule of evidence 408 because the documents were offered not to establish liability but to establish violation of consumer credit laws


Input: possession is sufficient.” Payton, 159 F.3d at 56. And we have explained that a defendant is subject to a two-level enhancement under § 2Dl.l(b)(l) for possession of a dangerous weapon if he “constructively possessed the weapon by having. dominion ... or control over the item itself, or dominion over the premises where the item [was] located.” United States v. Ortega, 94 F.3d 764, 768 (2d Cir.1996) (internal quotation marks omitted); see also United States v. Pellegrini, 929 F.2d 55, 56 (2d Cir.1991) (per curiam). We see no reason why, for purposes of the safety valve, possession would not similarly include constructive possession, at least where the defendant keeps the weapon under his personal dominion and control. See United States v. Bolka, 355 F.3d 909, 915-16 (6th Cir.2004) (<HOLDING>). The safety valve was intended to prevent Holdings: 0: holding that defendant was not entitled to safetyvalve relief where evidence showed that he kept three firearms in the home where he sold and manufactured methamphetamine 1: holding that a defendant had constructive possession over firearms located in a residence where he lived and kept his personal effects 2: holding that a convicted felon is not entitled to return of firearms or to have firearms held in trust by third party 3: holding that a convicted felon is not entitled to have firearms returned held in trust or sold for his profit 4: 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


Input: States v. Saniti, 604 F.2d 603, 604 (9th Cir.1979), cert. denied, 444 U.S. 969, 100 S.Ct. 461, 62 L.Ed.2d 384 (1979). Relevant factors for a court to consider when examining whether a marria ivilege excepts premarital events from protection. See Clark, supra (criticizing hyper-factual inquiries necessitated by sham marriage exception to privilege; employing joint-participants exception and acts-prior-to-marriage exception to affirm trial court’s finding that privilege did not apply to spouses who co-conspired to steal money from savings and loan; husband could not invoke spousal testimony privilege to avoid testifying against his wife at her criminal trial); United States v. Van Drunen, 501 F.2d 1393 (7th Cir.1974), cert. denied, 419 U.S. 1091, 95 S.Ct. 684, 42 L.Ed.2d 684 (1974) (<HOLDING>); In re Grand Jury Subpoena of [Witness], supra Holdings: 0: holding that the victims prior videotaped testimony from a preliminary hearing was admissible as testimony at trial where the victim was unavailable to testify 1: holding a proffer of testimony is required to preserve the issue of whether testimony was properly excluded by the trial judge and an appellate court will not consider error alleged in the exclusion of testimony unless the record on appeal shows fairly what the excluded testimony would have been 2: holding that the admission of expert testimony was prejudicial where the testimony was pervasive 3: holding that testimony at trial in violation of defendants constitutional confrontation right was harmless beyond a reasonable doubt because the testimony was cumulative 4: holding exclusion of testimony from defendants wife at defendants trial was not required under spousal testimony privilege where both spouses participated in unlawful enterprise of transporting illegal aliens and wifes testimony concerned matters prior to their marriage


Input: even if dispute would be futile, because the FDCPA requires that notice be given, that the debtor be informed of his or her rights to dispute and obtain validation of the debt, and a proper notice of dispute triggers the debt collector’s obligation to obtain and provide the debtor with validation, including a copy of a judgment, I cannot say that plaintiff has failed to state a claim. See 15 U.S.C. § 1692g. 4 . Circuits are split on whether applying the unsophisticated consumer standard to collection notices and letters under the FDCPA is a matter of law for judges to decide or a question of fact better left to juries. Compare Johnson v. Revenue Mgmt. Corp., 169 F.3d 1057, 1060 (7th Cir.1999); Kistner v. Law Offices of Michael P. Margelefsky, LLC, 518 F.3d 433, 440-41 (6th Cir.2008) (<HOLDING>) with Russell v. Equifax A.R.S., 74 F.3d 30, Holdings: 0: holding that actual apportionment of damages is a question of fact 1: holding that estoppel was a question of fact 2: holding that generally the question of waiver and estoppel is a question of fact 3: holding violation of cpr is a question of law not fact 4: holding it is a question of fact


Input: to obtain an inheritance or a share under a partnership agreement. So defined, the factor provides clear guidance. Aggravating circumstances must provide a ‘“meaningful basis for distinguishing the few cases in which [death] is imposed from the many cases in which it is not.’ ” Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859, 883 (1976) (opinion of Stewart, Powell, and Stevens, JJ.) (quoting Furman v. Georgia, 408 U.S. 238, 313, 92 S.Ct. 2726, 2764, 33 L.Ed.2d 346, 392 (1972) (White, J., concurring)). In Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), the Supreme Court struck down an aggravating circumstance so vaguely worded that it failed to perform this narrowing function. See also Ramseur, supra, 106 N.J. at 199-200, 524 A.2d 188 (<HOLDING>). We find no vagueness in the factor on its Holdings: 0: holding residual clause of acca void for vagueness 1: holding a law is void for vagueness when it offers no standard of conduct that was possible to know emphasis added 2: holding that va code  182603 is not void for vagueness 3: holding c4c factor void for vagueness unless limiting construction was given 4: holding that   750170 is not void for vagueness nor constitutionally infirm for overbreadth


Input: the CHINS determinations. Thus, we remand for the trial court to make proper findings and conclusions in support of its judgment. Affirmed in part and remanded with instructions. MATHIAS, J., and BRADFORD, J., concur. 1 . The parties do not indicate, nor could we find in the Appendices, when the children were first placed with Father during the course of the CHINS proceedings. 2 . The allegation was based on a local newspaper article, which reported that Father's attorney had been named as the Logansport city attorney and the GAL had been named as the deputy city attorney. 3 . On April 11, 2007, the trial court entered its "Order Terminating Wardship.” Appellant’s App. at 126. But that order does not render the appeal moot. See Roark v. Roark, 551 N.E.2d 865, 868 (Ind.Ct.App.1990) (<HOLDING>). 4 . Mother also alleges, in passing, that the Holdings: 0: recognizing that the determination is an equitable one 1: holding that the fact that the sale may not be fully consummated does not prevent a determination that the appeal is moot because section 363m does not require the purchaser to take irreversible steps consummating the sale before the absence of a stay will render an appeal moot 2: holding that when the consequences of the conviction are not severe and imminent an appeal is moot when the judgment is voluntarily satisfied 3: holding an appeal from a chins determination after termination of the chins case is not moot because of the potentially devastating consequences of a chins determination 4: holding expired domestic violence restraining order not moot because of collateral legal consequences such as consideration in custody determination and nonlegal collateral consequences such as reputational harm


Input: assigned the claim, and the collection service sought to have the judgment registered in Missouri. In the Missouri action, Burgess filed a motion for summary judgment, asserting that the South Dakota judgment was only against Dako and could not have an effect against him personally. The trial court in Mis sition that he had been doing business under variations of the name of “Tri-State Seed Company” since about 1985. He admitted that he had entered into the contract, offered as part of exhibit 1, with Toulousaine. The name on the contract with Toulousaine was “Tri-State Seed & Grain.” The address of “Tri-State Seed & Grain” is Olson’s home address. He admitted that he intended to cover this seed contract by purchasing seed from Palen. The stationery he 49, 560 N.Y.S.2d 269 (1990) (<HOLDING>); Rink v. NPN, Inc., 419 N.W.2d 194 (N.D. 1988) Holdings: 0: holding entitys failure to register assumed name did not affect entitys capacity to defend suit or impair validity of any contract 1: holding that private individual could not bring a claim to remove a judges name from the roll of attorneys 2: holding that negligent breach of a duty assumed in a contract does not give rise to a separate tort claim 3: holding that an atwill employee may bring a cause of action under section 1981 4: holding that one who deals with a business entity under an assumed name may bring an action against it under the assumed name


Input: a party seeking modification of a foreign child-support order must register that order in the manner prescribed by the UIFSA. The father argues that § 30-3A-613, Ala.Code 1975, applied to the 2005 action and relieved him of the duty of registering the foreign support judgment. However, § 30-3A-613(a) provides: “If all of the parties who are individuals reside in this state and the child does not reside in the issuing state, a court of this state has jurisdiction to enforce and to modify the issuing state’s child-support order in a proceeding to register that order” (Emphasis added.) We acknowledge that the mother and the father resided in Alabama in 2005 and that the children had left Missouri so that § S0-SA-613(a) applies, see Mathews v. Mathews, 368 Ark. 252, 244 S.W.3d 660 (2006) (<HOLDING>); however, under that statute, the trial court Holdings: 0: holding that in modification proceeding trial court should have adjusted child support based on substantial timesharing even though the father had earlier agreed to pay child support without such an adjustment trial court found that circumstances had changed based on fathers reduction in income 1: holding that arkansass version of the uifsa applied to registration and modification of foreign childsupport order even though father mother and child resided in state 2: holding that court could permit grandparent or other person having substantial past contact with child to intervene in pending sapcr even though original suit requesting possessory conservatorship could not be filed by grandparent or other person and further holding that stepgrandmother had standing to intervene to seek managing conservatorship of child under section 102004b and section 1020039 where natural mother abandoned child after birth parents were divorced natural father remarried father had custody of child after father died child lived first with stepmother then with stepgrandmother and mother first sought custody when child was eleven years old 3: holding that the trial courts attempt at modification of a utah child support order which was registered in south dakota was nullified due to lack of subject matter jurisdiction pursuant to uifsa 4: holding that a child was not barred by a former statute of limitations applicable to actions to establish the existence of a father and child relationship when the current action was to establish the nonexistence of a father and child relationship and the presumed father no longer persisted in maintaining paternity


Input: have obtained approval from the state Public Utilities Commission to ship goods on behalf of the military at reduced rates. In the present case, on the other hand, there is nothing that Temple can do to enable it to permit the military to conduct on-campus interviews. Quite to the contrary, given the Order, Temple is barred from cooperating with the military unless and until the United States changes its employment policy with respect to homosexuals. Under these circumstances, we believe that the Commission has no more right to enforce the Ordinance against Temple than did the Town of Windsor to enforce its building permit regulations against the contractor hired to construct a top-secret federal research facility. See United States v. Town of Windsor, 765 F.2d 16, 19 (2d Cir.1985) (<HOLDING>). C. The Commission also argues that the Holdings: 0: holding that order mandating disclosure of classified information to habeas petitioners counsel was an important issue entirely separate from the merits of this case 1: holding that the town of windsor cannot enforce its buildingpermit requirements against contractor hired to build addition to nuclear facility because the impact of the local regulation would fall directly on the government and result in classified information being disclosed and a classified area being opened to town officials 2: holding that in a military criminal trial the governments use of classified information without permitting the defendant or his lawyers to view the information did not violate the defendants due process rights 3: holding that a district court need not inquire into the veracity of a classified affidavit unless the information it provides is insufficient or contradicted by the record or there is evidence of bad faith on behalf of the agency 4: holding that a variable annuity is properly classified as a security


Input: firearms in Razzano were pursuant to a department policy rather than in connection with a court order. Razzano, 765 F.Supp.2d at 185. 7 . To the extent that the Defendants instead refer to Panzella's state-law claims, those claims cannot serve as a basis of jurisdiction, This is because the Defendants did not seek immunity from suit on those claims, and hence cannot seek an interlocutory appeal from the denial of immunity. 8 . The County also argues that its adherence to New York law regarding the treatment of the firearms did not constitute a "policy” as required for a county to be liable under 42 U.S.C. § 1983 pursuant to Monell v. Department of Social Services, 436 U.S, 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). See Vives v. N.Y.C., 524 F.3d 346, 353-56, 358 (2d Cir. 2008) (<HOLDING>). Leaving aside the fact that we are here Holdings: 0: holding that a city manager was the final policymaker for purposes of section 1983 liability because of provisions in the norfolk city code requiring that all orders rules and regulations applicable to the entire police department must be approved by the city manager other than some police standard operating procedures 1: holding that a jurys finding that a city had delegated its final policymaking authority in the area of law enforcement to a city police chief was supported by the evidence and warranted imposing liability upon the city 2: holding that citys enforcement of the entire state penal code would not constitute a city policy because the city was required to follow state law 3: holding that a city may be held liable on account of the unconstitutional conduct of city officials only if the citys policy or custom played a part in the violation 4: holding that city attorneys promise in an oral settlement agreement for city to annex and rezone land was within the legal authority of the city of joliet to accomplish and were not absolutely void acts per se therefore city could be estopped from avoiding enforcement of contract


Input: plaintiffs interests.” Obstfeld, 621 F.Supp.2d at 93-94 (quoting ZB Holdings, 144 F.R.D. at 45). “[A]ntagonism has generally not been found where the corporation does not, would not, or cannot express opposition to the initiation of the lawsuit.” Id. at 94 (quoting Netwolves Corp. v. Sullivan, No. 00-cv-8943 (AGS), 2001 WL 492463, at *6 (S.D.N.Y. May 9, 2001)); see also Net-wolves, 2001 WL 492463, at *7 (“[A] corporation that cannot act, a deadlocked corporation, is not considered ‘actively antagonistic’ to a lawsuit, within the meaning of Sperling and Swanson, because the corporation has not refused to sue, and will not clearly refuse to sue if it becomes able to render a decision.”); Cohen v. Heussinger, No. 89-cv-6941, 1994 WL 240378, at *2 (S.D.N.Y. May 26, 1994) (So-tomayor, J.) (<HOLDING>); Sonn, on Behalf of WLS Assocs. v. Korein, No. Holdings: 0: holding that even assuming that the court recognized the allegaert exception that it would not apply where a firm that previously represented a corporation then represented a former director and officer of the corporation against the corporation because the duty of loyalty that the firm owes the corporation would go unprotected where the firm switches sides against its former client 1: holding that the actual amount of capital employed in the state by a foreign corporation was to be based on the property of the corporation that was within the state and that was used in business transacted within the state 2: holding that corporation and sole owner of corporation were separate legal entities and corporation was not party to contract signed by owner in individual capacity 3: holding that claims of corporation vest in corporation 4: holding that case did not fall within the boundaries of the sperling exception because plaintiff and defendant were coequal owners of the corporation and the proposed complaint does not allege that defendant controlled the corporation


Input: be varied by legislative action. Id. As the Florida Supreme Court stated in Ammer-man: [T]the term may be defined in different statutes or for different purposes. See 73 C.J.S. Property s. 2, p. 152. For example, Fla. Stat., s. 421.03(12), F.S.A. defines ‘real property' for the purposes of the housing authorities law; Fla. Stat., s. 475.01(11), F.S.A. defines ‘real property’ for the purposes of the real estate license law; Fla. Stat., s. 713.01(14), F.S.A. defines ‘real property for the purposes of the mechanics lien law. These definitions vary, because the statutory definitions usually apply only to the term as used in the particular statutory provision. Id. (emphasis added). We have recognized this legal principle. Miami Country Day Sch. v. Bakst, 641 So.2d 467, 469 (Fla. 3d DCA 1994)(<HOLDING>). Applying this principle, the brothers argue Holdings: 0: holding that section 7750214b2 florida statutes 1993 prohibited conviction for fraud by person authorized to provide goods or services and grand theft based on the same facts 1: holding section 82705 florida statutes 1993 unconstitutional and certifying the question as one of great public importance 2: holding that a police department is not a person within the meaning of section 1983 3: holding that florida courts would apply florida law to contracts insuring real property located within the state 4: holding that a houseboat in a fixed location connected to a dock was a dwelling house within the meaning of section 22205 of the florida statutes 1993 defining when certain homesteads located on leased properties are entitled to protection from forced sale under article x section 4a


Input: refers to conduct which is inherently base, vile, or depraved, contrary to the accepted rules of morality and duties owed between man and man, either one’s fellow man or society in general.” Id. (internal quotation marks omitted). “[F]or an offense to involve moral turpitude, it must require a reprehensible or despicable act” — one “that is inherently wrong, or malum in se, rather than conduct deemed wrong only because of a statutory proscription, malum prohibitum.” Id. at 921 (italics omitted). “A crime of moral turpitude, moreover, necessarily involves an evil intent or maliciousness in carrying out the reprehensible act.” Id. at 921-22. The BIA has long viewed prostitution-related crimes as morally turpitudinous. See, e.g., Matter of Lambert, 11 I. & N. Dec. 340, 342 (BIA 1965) (<HOLDING>); Matter of A— , 5 I. & N. Dec. 546, 549 (BIA Holdings: 0: holding that summary convictions of crimes involving dishonesty could be used to impeach the credibility of a witness 1: holding that funds were unavailable for attachment under section 1610 because they were never used for or designated for use in commercial activity 2: holding that evidence of a defendants prior criminal convictions could be introduced for the purpose of sentence enhancement if the jury was instructed that the evidence could not be used for the purposes of determining guilt 3: holding that renting rooms with knowledge that the rooms were to be used for the purpose of lewdness assignation or prostitution were for crimes involving moral turpitude 4: holding that absent clear congressional intent a defendant charged with transporting two women in interstate commerce at the same time could be charged with only one violation of the mann act which criminalized transporting any woman in interstate commerce for the purpose of prostitution or debauchery or for any other immoral purpose


Input: NRCP 8(c) does not speak directly to whether a federal law granting immunity from liability qualifies as an affirmative defense, the question then becomes whether the Act falls within NRCP 8(c)’s catchall provision. See NRCP 8(c). This court recently instructed lower courts and litigants on what defenses must be affirmatively pleaded under NRCP 8(c)’s catchall provision, stating, “Allegations must be pleaded as affirmative defenses if they raise ‘new facts and arguments that, if true, will defeat the plaintiff’s . . . claim, even if all allegations in the complaint are true.”’ Clark Cty. Sch. Dist. v. Richardson Constr., 123 Nev. 382, 393, 168 P.3d 87, 94 (2007) (alteration in original) (internal quotations omitted) (quoting Saks v. Franklin Covey Co., 316 F.3d 337, 350 (2d Cir. 2003) (<HOLDING>)). Although CCSD and Phillips argue that Holdings: 0: holding that fair use is an affirmative defense 1: recognizing that federal preemption is affirmative defense as to which defendant has burden of proof 2: holding that when erisas preemptive effect results in change of applicable law rather than choice of forum preemption is an affirmative defense that must be set forth in defendants answer or it is waived 3: holding that erisas preemption of state contract claims in a benefitsdue action is an affirmative defense subject to waiver 4: holding that erisa preemption is an affirmative defense where erisas preemptive effect would result only in a change of the applicable law and would not subject the claim to exclusive federal jurisdiction


Input: omitted). “[C]onclusions of law drawn from the fundings of fact are . . . reviewable de novo.” Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 15, 356 S.E.2d 599, 601 (1987) (citations omitted). “A law enforcement officer may stop and briefly detain a vehicle and its occupants if the officer has reasonable, articulable suspicion that criminal activity may be afoot.” State v. Jackson, 199 N.C. App. 236, 241, 681 S.E.2d 492, 496 (2009) (citation omitted). However, an officer’s determination regarding potential criminal activity must be objectively reasonable, and an officer’s mistaken belief that a defendant has committed a traffic violation is not an objectively reasonable justification for a traffic stop. See State v. McLamb, 186 N.C. App. 124, 127-28, 649 S.E.2d 902, 904 (2007) (<HOLDING>). A passenger in a vehicle which is stopped by Holdings: 0: holding the fact that officers belief proved to be mistaken does not negate a finding of probable cause 1: holding that an officers mistaken belief that the defendant was speeding was not an objectively reasonable purpose for a traffic stop 2: holding that where the defendant obtained a nondefaulted debt under the mistaken belief that the debt was in default and where the defendants subsequent collection activities were based on that mistaken belief the defendant was a debt collector for purposes of the fdcpa 3: holding questions about a drivers purpose for traveling were reasonably related to a traffic stop for speeding 4: holding that a plaintiff must show his belief was objectively reasonable in light of the facts and record presented


Input: which reported a total drawdown of 639,312 tons over the three-year period 2009-2011, for an average of 213,104 annually, which is much closer to the 2010 Dynamic Report than the SEC filings. Id. ¶ 47(g). These two sets of facts are mostly ignored by defendants, who instead train their fire on what they label the “only allegation in this regard,” which is that “some unnamed ‘Henan L & R Dept Staff supposedly said that noncompliance with' Chinese mining regulations would create ‘significant risks, liabilities, and penalties.’ ” Defs.’ Mem. 9 (citing Am. Compl. ¶¶ 29, 30.). Defendants argue that under the test of Novak v. Kasaks, 216 F.3d 300 (2d Cir.2000), this confidential witness is insufficiently identified to support an inference of personal knowledge. See Novak, 216 F.3d at 314 (<HOLDING>). But even if defendants are correct that the Holdings: 0: holding that a fraudulent transfer complaint need only set forth the facts with sufficient particularity to apprise the defendant fairly of the charges made against him 1: holding that in the absence of public disclosure the court need not address whether relator was original source of the information 2: holding that a person violates  10b and rule 10b5 when he misappropriates confidential information  in breach of a duty owed to the source of the information 3: holding that fraud claims were wrongfully dismissed for insufficient particularity as they provided sufficient notice of the facts of the alleged misconduct 4: holding that confidential sources need not be named provided they are described in the complaint with sufficient particularity to support the probability that a person in the position occupied by the source would possess the information alleged


Input: is determined by comparing the defendant’s state of mind in committing the extrinsic and charged acts. United States v. Zapata, 139 F.3d 1355, 1358 (11th Cir.1998) (per curiam). Although the age of a prior offense may depreciate its probity, we have refrained from adopting a bright-line rule regarding temporal proximity, because remoteness analyses are so fact-specific “that a generally applicable litmus test would be of dubious value.” Matthews, 431 F.3d at 1311 (citation and internal quotation marks omitted). An appellant bears a heavy burden in establishing an abuse of the judge’s “broad discretion” in determining if a prior offense is too old to be probative. Id. (citation and internal quotation marks omitted); see also United States v. Lampley, 68 F.3d 1296, 1300 (11th Cir.1995) (<HOLDING>). A district judge’s limiting instruction can Holdings: 0: holding that district court did not err in determining that cocaine base was crack cocaine based on chemical analysis identifying cocaine base together with competent lay testimony bridging the evidentiary gap between cocaine base and crack cocaine and refusing to require showing of smokeability ie water solubility or melting point for purposes of establishing crack cocaine under the guidelines since smokeability distinguishes cocaine base from powder cocaine not from crack 1: holding that insufficient evidence supported the defendants conviction for possession of cocaine when officers executed a warrant on a small oneroom apartment and found large quantities of crackcocaine in plain view although the defendant supplied police with a false name when they questioned him at the apartment there was no evidence that the defendant had drugs on his person or that he had ever used cocaine 2: holding that prior convictions for possession of cocaine and marijuana are admissible to impeach defendant 3: holding that a reasonable jury could have concluded based on repeated references to the substance as cocaine and testimony from witnesses who had used the substances which they believed to be cocaine that substance was cocaine 4: holding in a prosecution for a large cocaine deal the district judge did not abuse his discretion when he admitted evidence that the defendant had participated in small marijuana deals approximately 15 years before the charged cocaine offenses


Input: of the judgment of a court of the United States rendered or filed within the state may be filed in the office of the clerk of any county and upon such filing the clerk shall docket the judgment in the same manner and with the same effect as a judgment entered in the supreme court within the county.”); N.Y. CPLR § 5402 ("The clerk shall treat the foreign judgment in the same manner as a judgment of the supreme court of this state. A judgment so filed has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating, or staying as a judgment of the supreme court of this state and may be enforced or satisfied in like manner.”). 105 . Cf. Bradford-Scott Data Corp., Inc. v. Physician Computer Network, Inc., 128 F.3d 504, 506 (7th Cir.1997) (<HOLDING>). 106 . See Appellant Br. at 16 (“In this, the Holdings: 0: holding that the district court was not divested of subject matter jurisdiction upon the dismissal of the plaintiffs federal claims 1: holding that the fourth circuit had jurisdiction to hear an appeal from a south carolina district courts order denying a motion to compel arbitration even though the district court also transferred the case to a georgia district court 2: holding that filing of appeal to federal circuit divests this court of jurisdiction to consider motion to stay court order pending appeal 3: holding that since district court of appeal properly found that the trial court lacked jurisdiction to rule on a 3850 motion during the pendency of a direct appeal the district court of appeal should have vacated the order rather than affirming on the merits 4: holding that notice of appeal of district court opinion denying arbitration stay divested district court of jurisdiction to continue proceedings until the appeal was complete


Input: that the error was plain, and (3) that the plain error affected his substantial rights.” United States v. Dazey, 403 F.3d 1147, 1174 (10th Cir.2005). “If all these conditions are met, a court reviewing the error may exercise discretion to correct it if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. ‘We conduct this analysis ‘less rigidly when reviewing a potential constitutional error.’ ” Id. (citing United States v. James, 257 F.3d 1173, 1182 (10th Cir.2001)). “It is well-established that a prosecutor may use a defendant’s pre-arrest silence to impeach the defendant’s credibility.” United States v. Chimal, 976 F.2d 608, 611 (10th Cir.1992) (citing Jenkins v. Anderson, 447 U.S. 231, 238, 240, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980) (<HOLDING>)). In the present case, the prosecutor Holdings: 0: holding that substantive use of prearrest silence is contrary to fifth amendment 1: holding references to a defendants lack of remorse violate the fifth eighth and fourteenth amendments 2: holding that impeachment by use of prearrest silence does not violate fifth or fourteenth amendments 3: holding that the government can use prearrest silence for impeachment purposes against a defendant because no government action induced the silence 4: holding that state constitution prohibits substantive use of prearrest silence


Input: 172. Le Doux’ filings qualify as purported returns because she prepared them on official Form 1040s and signed them. See Form 1040 U.S. Individual Income Tax Return 1997; Form 1040 U.S. Individual Income Tax Return 1988. Le Doux admits in an attachment to these filings that she intended the IRS to treat them as tax returns: “I Vera Le Doux, am submitting these as part of my ... income tax returns.” Form 1040 U.S. Individual Income Tax Return 1997, at 3; Form 1040 U.S. Individual Income Tax Return 1988, at 3. Le Doux failed to provide information upon which the IRS could judge the return’s correctness. Le Doux’ returns contain zeros, not the financial information the IRS needs to judge the correctness of her return. See Bradley v. United States, 817 F.2d 1400, 1403-1404 (9th Cir.1987) (<HOLDING>); Hoffman v. United States, 209 F.Supp.2d 1089, Holdings: 0: holding that argument offered in defense of decision below had been waived when not raised below 1: holding blank return did not provide sufficient information despite taxpayers income being below the filing threshold 2: holding that intentional failure to file an information return is not a willful filing 3: holding that   1252d1 bars the consideration of bases for relief that were not raised below and of general issues that were not raised below but not of specific subsidiary legal arguments or arguments by extension that were not made below 4: holding that arguments not raised below are waived for appeal


Input: thirty years later or to the impact that a second power line within the same corridor might have on the remaining property. ¶ 24. Where — as here — a new use is consistent with the general nature of an existing easement, the burdened estate may nevertheless be entitled to compensation if it is more onerous than originally contemplated. See, e.g., Minot v. United States, 546 F.2d 378, 381 (Ct. Cl. 1976) (recognizing that, where local power agency installed higher and wider transmission towers in place of existing line within easement owned by United States, power agency could be “held to account for an inverse condemnation” in overburdening plaintiffs’ property, although there was no basis for holding United States liable); Grimes v. Va. Elec. & Power Co., 96 S.E.2d 713, 714 (N.C. 1957) (<HOLDING>); City of Sweetwater v. McEntyre, 232 S.W.2d Holdings: 0: holding that placement of additional lines and crossarms on existing power poles by second power company imposed additional burden on easement entitling landowner to compensation 1: holding that unless that power is restricted by the principal an agent under a california statutory healthcare power of attorney has the power to execute applicable admission forms including arbitration agreements 2: holding that an additional remedy does not constitute an additional requirement 3: recognizing a distinction between the power of a federal court to hear statelaw claims and the discretionary exercise of that power 4: holding that the owners of the dominant estate had the right to build utility poles along side of a road easement


Input: claim that neither of these prongs was satisfied. With regard to the first prong, the Defendants contend that the jury did not have a legally sufficient basis to find, by clear and convincing evidence, that the Defendants were objectively reckless. In order to support this contention, the Defendants point to both their non-infringement defense and the invalidity defense of obviousness. The existence of an objective risk of infringement is “determined by the record developed in the infringement proceeding.” Id. The objective prong is not established when the accused infringer puts forward a reasonable defense to infringement, even if the jury ultimately reaches a verdict of infringement. See Spine Solutions, Inc. v. Medtronic Sofamor Danek USA, Inc., 620 F.3d 1305, 1319 (Fed.Cir.2010) (<HOLDING>); DePuy Spine, Inc. v. Medtronic Sofamor Danek, Holdings: 0: holding that contributory trademark infringement requires some predicate act of infringement 1: holding that knowledge of the patent is required for willful infringement 2: holding that the objective prong of willfulness was not met where a defendants defenses were reasonable 3: holding that alleged infringer waived privilege with respect to all documents pertaining to the infringement of the patent 4: holding that the objective prong for willful infringement is generally not met where an accused infringer relies on a reasonable defense to a charge of infringement


Input: the type of error that typically justifies remand. Id. at 1217; see Huffman, 194 F.3d at 1077-79 (defendant’s failure to file notice of removal within the thirty-day period necessitated remand upon plaintiffs motion); see also Cornwall v. Robinson, 654 F.2d 685, 686-87 (10th Cir.1981) (finding that remand was appropriate when the notice was defective because a co-defendant had not joined the notice of removal). Last, the court found that the sole objective sought by Congress when it amended the removal statutes was to force the parties to raise objections promptly so procedural defects cannot later be used to prejudice the other party in court. Yellow, 406 F.Supp.2d at 1219. The defendant in Yello elers Cas. & Surety Co. of Am., No. 05-144, 2005 WL 1653629, at *4 (D.Or. July 6, 2005) (<HOLDING>); Lorensen v. Jenney Mfg. Co., 158 F.Supp. 928, Holdings: 0: holding that a defendants failure to attach process to its notice of removal was not fatal and did not require remand 1: holding that failure to allege plaintiffs citizenship in notice of removal amounted to defect in removal procedure under former version of 28 usc  1447c 2: holding that the defendants motion to amend their notice of removal was proper due to plaintiffs waived objections to the sufficiency of the notice of removal by failing to seek remand within thirty days of removal 3: holding that any defect in removal procedure must be cured within the 30day removal period or it is fatal to the removal and defendants failure to attach exhibits to the notice of removal within that time required remand 4: holding that the defendants filing of a notice of removal before being served by plaintiffs did not render removal defective


Input: have found its way to the floor as a result of the actions by" husband appellant or wife appellant. There is no evidence from which the jury might reach a conclusion as to the cause of the presence of the grape in the aisle, and jurors may not be permitted to reach conclusion based upon guess or conjecture. Nor can we accept appellant’s argument to the effect that the display of non-packaged grapes on a counter some seven feet from the bags and across an aisle from the scale constitutes negligence in and of itself, since every reasonable effort was made to keep the passageway clean. Id., 419 Pa. at 234, 213 A.2d at 610. Similarly, in the present case, appellant has presented no evidence as to the cause of the presence of the grape on the floor. In addition, negligence is 481 (1990) (<HOLDING>); but see Liles v. Balmer, 389 Pa.Super. 451, Holdings: 0: holding that district court should not have granted summary judgment solely on basis that motion for summary judgment was not opposed 1: holding that improper use of a summary chart was harmless because the evidence was merely cumulative and there was overwhelming evidence of the charged crime 2: holding summary judgment order was not a final judgment because it did not dispose of the defendants claim for attorneys fees 3: holding that summary judgment was not improper merely because there was a possibility that literature not yet produced would support the claim 4: holding that district court should not have granted summary judgment solely on basis that a motion for summary judgment was not opposed


Input: (2008) (“There is no absolute rule by which to determine what contracts are against public policy, but each case must be determined from all the circumstances thereof, the courts declaring a contract void for such reason only where it is clearly contrary to the public interests .... ”)). In making such a determination in this case, the Court must consider competing pu 300, 319-20 (2d Cir.2009) (refusing to enforce a class action waiver in an arbitration agreement as against public policy “because to ... [enforce it] would grant [the defendant] de facto immunity from antitrust liability by removing plaintiffs’ only reasonably feasible means of recovery,” while affirming the arbitrability of antitrust claims more widely); Redel’s Inc. v. Gen. Elec. Co., 498 F.2d 95, 98-99 (5th Cir.1974) (<HOLDING>); Fox Midwest Theatres, Inc. v. Means, 221 F.2d Holdings: 0: holding that a general release of all claims did not operate by its terms to bar prospective antitrust claims nor could it in view of public policy 1: holding that despite release language discharging defendant from claims upon or by reason of any matter cause or thing whatsoever from the beginning of the world to the day of these presents release did not bar any claims accruing after the date of execution 2: holding that a plaintiff may not assert claims based on statements she did not view 3: holding that certain claims could not be a class issue in part because the complaint did not mention the claims 4: holding that release which barred all claims from the beginning of the world to the day of the date of these presents included all claims which had matured at the time of its execution


Input: Facts. On December 13, 2004, the court held a status conference. On December 23, 2004, the Government filed a Reply to DCI’s Response to the Government’s Cross-Motion for Summary Judgment. On January 7, 2005, the parties filed a proposed Scheduling Order. The court held status conferences on January 11, 2005 and on January 18, 2005. On January 18, 2005, the court entered a Scheduling Order for fact discovery and expert discovery and established a trial date to commence on November 14, 2005. On July 29, 2005, the court issued a Memorandum Opinion and Order denying DCFs October 7, 2004 Motion for Partial Summary Judgment and denying the Government’s November 18, 2004 Cross-Motion for Summary Judgment. See Die Casters Int'l, Inc. v. United States, 67 Fed.Cl. 362 (Fed.Cl. 2005) (<HOLDING>). The Memorandum Opinion and Order confirmed Holdings: 0: holding summary judgment was not warranted because material facts were in dispute 1: holding summary judgment for the employer was warranted because the only evidence in support of plaintiffs claims was solomons own testimony 2: holding that summary judgment is not appropriate if there is a genuine dispute about a material fact 3: holding in the alternative that summary judgment was warranted on abuse of process claim because defendants established probable cause to prosecute plaintiffs 4: holding that if no material facts are placed in dispute this court must determine whether the circuit court correctly entered summary judgment as a matter of law citations omitted


Input: injunction and that the injunction was not validly issued under Boys Markets, see id. at 12-13. There, injunctive relief could not be justified “on either ground — to enforce a contract or support arbitration — let alone both.” Id. at 12. That an order staying arbitration could not be in support of arbitration was self-evident. Id. The company argued that there was no contract requiring arbitration and that it could not be forced into arbitration. Id. In addition to vacating overly broad injunctive relief and injunctive relief that did not advance the arbitral process, this court has also reversed grants of Boys Markets injunctive relief for failure to meet the traditional four-part equitable test. See Anheuser-Busch, Inc. v. Teamsters Local No. 633, 511 F.2d 1097, 1100 (1st Cir.1975) (<HOLDING>). Neither the Supreme Court nor this court has Holdings: 0: holding that the insured failed to meet its burden where the insurer had reserved its rights to assert coverage defenses 1: holding that the statutory restrictions relative to an employers affirmative defenses where the employer elects not to operate under the respective workers compensation law cannot extend so as to deprive the employer of being able to require the plaintiffemployee to establish a case of negligence against the employer 2: holding that the balance of relative harms to the parties showed employer did not meet its burden 3: holding employer satisfied its burden of production 4: holding the state failed to meet its burden of showing the erroneous jury instruction was harmless beyond a reasonable doubt where it did not address the issue on appeal


Input: Section 2 of this article is void to the extent of the conflict.”). 10 . 29U.S.C. § 1144(b)(2)(B). 11 . See generally FMC Corp. v. Holliday, 498 U.S. 52, 61, 111 S.Ct. 403, 112 L.Ed.2d 356 (1990) ("[E]mployee benefit plans that are insured are subject to indirect state insurance regulation. An insurance company that insures a plan remains an insurer for purposes of state laws ‘purporting to regulate insurance’ after application of the deemer clause. The insurance company is therefore not relieved from state insurance regulation. The ERISA plan is consequently bound by state insurance regulations insofar as they apply to the plan’s insurer."). 12 . UNUM Life Ins. Co. of Am. v. Ward, 526 U.S. 358, 376 n. 7, 119 S.Ct. 1380, 143 L.Ed.2d 462 (1999); see also id. at 372-73, 119 S.Ct. 1380 Holdings: 0: holding that insurers failure to deny existence of insurance coverage under policy at issue was to admit that coverage existed 1: holding evidence including that insurer only charged life insurance premium that would ordinarily apply to onehalf the amount of coverage actually permitted by policy as written did not warrant retroactive reformation of policy to reduce coverage amount because it did not demonstrate mistake on insureds part and insurance company did not present evidence on what parties agreed to before the policy was issued 2: holding that when an insurer denies coverage on grounds unrelated to late notice a strong presumption arises that the insurer has not suffered prejudice from the late notice 3: holding that an insurance company which chose not to defend its insured could not later deny coverage by asserting the legally obligated to pay provision in the policy after the insured reached a settlement where the injured party agreed to collect only against insurance proceeds 4: holding that a california commonlaw requirement that insurers show prejudice before they may deny coverage because of late notice regulated insurance and was saved from preemption the insurance company that issued a group disability policy as an insured employee benefit plan could not rely on the notice provisions to deny coverage unless there was prejudice


Input: Corp. Act Ann. art. 5.10(B)(2) (Vernon 1997); Mudgett v. Paxson Mach. Co., 709 S.W.2d 755, 758-59 (Tex.App.1986); see also McKee v. American Transfer & Storage, 946 F.Supp. 485, 487 (N.D.Tex.1996). But see Western Resources Life Ins. Co. v. Gerhardt, 553 S.W.2d 783, 786 (Tex.Civ.App.1977) (noting exceptions for merger, consolidation, and fraud). 8 . See, e.g., Palmer G. Lewis Co. v. ARCO Chemical Co., 904 P.2d 1221, 1227 (Alaska 1995) ("When choice of law issues arise, we commonly refer to the Restatement (Second) of Conflicts for guidance."). 9 . See Restatement (Second) of Conflict of Laws § 145 cmt. d (1971) (''The courts have long recognized that they are not bound to decide all issues under the local law of a single state."); Ruiz v. Blentech Corp., 89 F.3d 320, 324 (7th Cir.1996) (<HOLDING>). 10 . See Black's Law Dictionary 448 (7th Holdings: 0: holding that an issue is preserved for appeal where the issue was sufficiently raised for the court to rule on it   1: holding that issue in motion for rehearing is waived if original brief is not sufficient to acquaint the court with the issue and does not present an argument that would allow the court to decide the issue 2: holding that a federal court is obliged to determine its own jurisdiction for each case 3: holding that under the second restatement test a court therefore conducts a separate choiceoflaw analysis for each issue in a case attempting to determine which state has the most significant contacts with that issue 4: holding that the issue of waiver requires an analysis of the specific facts in each case


Input: him without the consent of the other partners from any transaction connected with the formation, conduct, or liquidation of the partnership or from any use by him of its property. He claims that the words “hold as trustee” establish an express trust, that all partners are trustees for the rest of the partnership, and that a partner is therefore a fiduciary within the meaning of the act. However, under this statute, the trust arises only when the partner derives profits without consent of the partnership; it is the sort of trust ex maleficio not included within the purview of § 523(a)(4). See Davis, 293 U.S. at 333, 55 S.Ct. at 153-54; Teichman v. Teichman (In re Teichman), 774 F.2d 1395, 1399 (9th Cir.1985). But see Holmes v. Kraus (In re Kraus), 37 B.R. 126, 130 (Bkcy E.D.Mich.1984) (<HOLDING>). Montana has an identical code section to Holdings: 0: holding that the plaintiff bears the burden when relying on the discovery rule 1: holding that when language is exactly the same in two statutory provisions the meaning of that language is also identical 2: holding that identical language in montana postconviction relief statute bars application of laches 3: holding that the law of michigan rather than the forum applied to manufacturers claim of attorneyclient privilege in a products liability suit because the communication took place in michigan and therefore michigan had most significant relationship to communication 4: holding that partners are fiduciaries for the purpose of  523a4 relying on michigan statute with identical language


Input: Hugo De La Cruz, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal from an immigration judge’s (“IJ”) denial of his motion to reopen removal proceedings conducted in absentia due to ineffective assistance of counsel. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review the denial of a motion to reopen for abuse of discretion. See Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We deny the petition for review. The BIA did not abuse its discretion in denying De La Cruz’s motion to reopen based on ineffective assistance of counsel as untimely, because De La Cruz had knowledge of the alleged ineffective assistance for over a year before he filed his motion to reopen. See id. at 897-98 (<HOLDING>). PETITION FOR REVIEW DENIED. ** This Holdings: 0: holding that in order to warrant equitable tolling alien claiming ineffective assistance of counsel must demonstrate due diligence in pursuing the case during the period the alien seeks to toll internal quotation marks omitted 1: recognizing a constitutional claim for ineffective assistance of counsel 2: holding that defendant may raise claim of ineffective assistance of counsel on direct appeal only if ineffective assistance is conclusive from the record 3: holding that a petitioner must act with due diligence when pursuing an ineffective assistance of counsel claim to benefit from equitable tolling of deadlines 4: holding that this court  recognizes equitable tolling  on motions to reopen  during periods when a petitioner is prevented from filing because of deception fraud or error as long as the petitioner acts with due diligence


Input: County, 839 F.2d 225, 226-27 (4th Cir.1988) (quoting Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976)). Here, the plaintiff does refer to state law, Va.Code Ann. § 2.1-116.1 et seq. (Michie 1995 & Supp.2000) (the “Law-Enforcement Officers’ Procedural Guarantees” statute), as the basis of his property interest in continued employment. While this state law provides the plaintiff with such an interest, see Kersey v. Shipley, 673 F.2d 730, 732 (4th Cir.1982), it also “provides for more process than what the Constitution would otherwise require.” Riccio v. County of Fairfax, 907 F.2d 1459, 1467 (4th Cir.1990) (emphasis in original). For this reason, the specific procedures it establishes need not be complied with fully to satisfy federal due process. See id. at 1468 (<HOLDING>) Rather, to determine whether due process has Holdings: 0: holding that even if the plaintiff had asserted a cause of action under the virginia wrongful death act against the city police officers the police officers would be entitled to sovereign immunity 1: holding in virginia county police officers  1983 action against ms department and various county officials that the departments violation of the law enforcement officers procedural guarantees does not necessarily compel a finding of a due process violation 2: holding the evidence supported the police officers failure to follow the directives in the montgomery county police departments field operations manual 3: holding that county and district attorneys are officers within the judicial department 4: recognizing county officers as  those whose general authority and jurisdiction are confined within the limits of the county in which they are appointed who are appointed in and for a particular county and whose duties apply only to that county and through whom the county performs its usual political functions


Input: colloquy, the colloquy is reviewed for plain error. United States v. Martinez, 277 F.3d 517, 524-27 (4th Cir.2002); United States v. General, 278 F.3d 389, 393 (4th Cir.2002). To demonstrate plain error, a defendant must show that: (1) there was an error; (2) the error was plain; and (3) the error affected his “substantial rights.” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). A defendant’s substantial rights are affected if we determine that the error “influenced the defendant’s decision to plead guilty and impaired his ability to evaluate with eyes open the direct attendant risks of accepting criminal responsibility.” United States v. Goins, 51 F.3d 400, 402-03 (4th Cir.1995) (internal quotation marks omitted); see also Martinez, 277 F.3d at 532 (<HOLDING>). Neither counsel nor Farley identify any Holdings: 0: holding that in conjunction an information with a narrow charge and an abstract of judgment indicating that a defendant pled guilty to that charge prove the precise elements of the offense to which the defendant pled guilty 1: holding circuit court had subject matter jurisdiction to accept a guilty plea where defendant was not indicted for the charge to which he pled guilty but signed a sentencing sheet which established defendant was notified of the charge to which he pled guilty 2: holding that a defendant must show reasonable probability that but for the error he would not have entered the plea 3: holding that a defendant must demonstrate that he would not have pled guilty but for the error 4: holding trial court had broad discretion to disbelieve defendants claim he would not have pled guilty but for counsels error


Input: that the evidence was not relevant, made no determination as to whether it was constitutionally impermissible. It was therefore incumbent on Perry, in objecting to the admission of evidence about her lack of remorse, to raise the issue of due process to the trial court in order to preserve this objection for direct appeal. AFFIRMED. HOWARD and BEATTY, JJ., concur. 1 . Because oral argument would not aid the court in resolving the issue on appeal, we decide this case without oral argument pursuant to Rule 215, SCACR. 2 . Perry cites the following authorities in support of her argument: Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (concerning references to a defendant’s silence after receiving Miranda warnings); State v. Reid, 324 S.C. 74, 476 S.E.2d 695 (1996) (<HOLDING>); State v. Johnson, 293 S.C. 321, 360 S.E.2d Holdings: 0: holding that impeachment by use of prearrest silence does not violate fifth or fourteenth amendments 1: holding references to a defendants lack of remorse violate the fifth eighth and fourteenth amendments 2: holding that the fifth amendments protection against selfincrimination is applicable to the states through the fourteenth amendment 3: holding that execution of juveniles violates the eighth and fourteenth amendments 4: holding that complete ban on smoking in county jail does not violate eighth or fourteenth amendments


Input: wit: that DHS improperly denied his naturalization application, that the removal proceedings were invalid, that DHS’s arrest and detention of him were unlawful, that DHS officials retaliated against him based First Amendment protected activity, that he should be readmitted to the United States and naturalized, and that his underlying conviction is unconstitutional. See, e.g., Abiodun, 2012 WL 3844912, at *24 (describing litigation history). Indeed, the Government here has filed a motion to dismiss that restates many, if not all, of the arguments it raised in Abiodun’s prior suits. Compare, e.g., Mot. to Dismiss, ECF No. 9, at 10-11 (Heck v. Humphrey bars Abiodun’s claims under 42 U.S.C. § 1983) with Abiodun v. United States, No. 07cv1713, 2007 WL 2782542, at *1 (D.Colo. Sept. 20, 2007) (<HOLDING>). Analysis An individual’s right to access to Holdings: 0: holding that heck v humphrey bars abioduns claims under the ftca 1: holding that a prisoners claim under the ftca based on being imprisoned for an extra ten days did not call into question the conviction or sentence and was not barred by heck 2: holding that the plaintiffs ftca claims failed because the fbi agents were privileged to use reasonable force under texas law 3: holding that state sovereign immunity bars state constitutional claims 4: holding that determination of timely filing of complaint under ftca was independent of the merits of plaintiffs ftca claim


Input: Cir.2009) (quoting Schlaifer Nance, 194 F.3d at 333). Because “ ‘the trial court [imposing sanctions] may act as accuser, fact finder and sentencing judge’ ” all in one, Schlaifer Nance, 194 F.3d at 334(quoting Mackler Prods., Inc. v. Cohen, 146 F.3d 126, 128 (2d Cir.1998)), our review of such an order is “ ‘more exacting than under the ordinary abuse-of-discretion standard.’ ” Wolters Kluwer, 564 F.3d at 113-14 (quoting Perez v. Danbury Hosp., 347 F.3d 419, 423 (2d Cir.2003)). “In order to impose sanctions pursuant to its inherent power, a district court must find that: (1) the challenged claim was without a colorable basis and (2) the claim was brought in bad faith, i.e., motivated by improper purposes such as harassment or delay.” Schlaifer Nance, 194 F.3d at 336; see also id. at 337(<HOLDING>) (internal citations omitted). Although both Holdings: 0: holding it appropriate to grant a motion to dismiss a discrimination claim where claim is not supported by factual allegations 1: holding that a claim is entirely without color when it lacks any legal or factual basis conversely a claim is colorable when it has some legal and factual support considered in light of the reasonable beliefs of the individual making the claim 2: holding a complaint sufficiently raises a claim even if it points to no legal theory or even if it points to the wrong legal theory as a basis for that claim 3: holding that failure to develop a legal argument supporting a claim results in waiver of the claim 4: holding that if the alleged retaliatory action occurs before the initial eeoc charge is filed a plaintiff must exhaust his administrative remedies as to that claim by including factual information in the charge that discloses the factual basis for the retaliation claim


Input: second suit must be identical with the prior action in four respects: 1) the parties must be the same or in privity; 2) the subject matter must be identical; 3) the capacity or character of persons for or against whom the claim is made must be the same; and 4) the same cause of action must be involved in both suits. Id. Petitioner does not dispute that the above elements are met, but instead argues that an exception to res judicata is applicable in the present case. We agree. {16} Res judicata does not apply where “issues or matters are not determined or are reserved for future adjudication or litigation.” State ex rel. Bliss v. Casarez, 52 N.M. 406, 408, 200 P.2d 369, 370 (1948) (internal quotation marks and citation omitted); see Apodaca, 2003-NMCA-085, ¶ 85, 134 N.M. 77, 73 P.3d 215 (<HOLDING>). According to Petitioner, the “1999 Order was Holdings: 0: recognizing that res judicata does not apply unless the facts and evidence necessary to maintain suit are the same in both actions 1: holding that the doctrine of res judicata applies to deportation proceedings 2: holding that the doctrine of res judicata is applicable to defenses that could have been raised in a prior action 3: holding second action barred by res judicata because plaintiff asserted identical claims and jurisdictional grounds as the first action 4: recognizing the express reservation of the plaintiffs right to maintain a second action as an exception to the doctrine of res judicata


Input: S.Ct. 2254, 96 L.Ed.2d 64 (1987) (laying out a four factor test for determining reasonableness in the prison context). This is so because the constitutional rights of prisoners — limited by the fact of incarceration itself and by valid penological objectives— must be balanced against the recognition that it is prison authorities who are best equipped to make difficult decisions regarding prison administration. See Ali v. Dixon, 912 F.2d 86, 89 (4th Cir.1990). 7 . Following Blagman's request on December 30, 1998, defendant White advised him that services could be held on Tuesday, Wednesday, Thursday, 991) ("the mere calendar recognition of a holiday would [not] have the effect of endorsing the religion.”); Florey v. Sioux Falls School District, 619 F.2d 1311, 1317 & n. 5 (8th Cir.1980) (<HOLDING>). 14 . See, e.g., Allegheny v. American Civil Holdings: 0: holding that much of the art literature and music associated with traditional holidays particularly christmas has acquired a significance which is no longer confined to the religious sphere of life 1: holding that recklessness even for fiduciaries is no longer sufficient 2: holding that a ruling of the trial court to which no error has been assigned becomes the law of the case and is not subject to review by the court of appeals 3: holding notice no longer required even for traditional departures 4: holding that because plaintiff no longer has available administrative remedies his action must be dismissed with prejudice


Input: her liable for tortious interference. Therefore, Defendants’ motion to dismiss Counts III and V are granted. Under New York law, a claim for tortious interference requires “the existence of a valid contract between plaintiff and a third party, defendant’s knowledge of the contract, defendant’s intentional procurement of the third-party’s breach of the contract without justification, actual breach of the contract, and damages resulting therefrom.” Lama Holding Co. v. Smith Barney Inc. et. al., 88 N.Y.2d 413, 424, 646 N.Y.S.2d 76, 668 N.E.2d 1370 (1996). Where the defendants have an economic interest in the contract, however, alleging the above elements is insufficient. See White Plains Coat & Apron Co., Inc. v. Cintas Corp., 8 N.Y.3d 422, 426, 835 N.Y.S.2d 530, 867 N.E.2d 381 (2007) (<HOLDING>) (footnotes omitted). The plaintiff must also Holdings: 0: holding that economic interest defense is available inter alia where defendants were significant stockholders in the breaching partys business where defendant and the breaching party had a parentsubsidiary relationship where defendant was the breaching partys creditor and where the defendant had a managerial contract with the breaching party at the time defendant induced the breach of contract with plaintiff 1: holding in response to plaintiffs arguments that defendants had conspired with the alleged breaching party that the absence of a contractual relationship between the parties requires dismissal of the section 301 claim 2: holding that jurys verdict for the defendant in a breach of contract action did not establish the absence of breach because the jury was instructed that it could find for the defendant if it concluded that the defendant had not breached the contract or if the defendant proved an affirmative defense 3: holding merely that to the extent a breaching party claims that the appropriate measure of damages is the difference between the contract price and the market price it holds the burden of proving that there is in fact an available market for the goods in issue 4: holding that the measure of damages for breaching a building construction contract is ordinarily such sum as is required to make the building conform to the contract


Input: an opportunity to be heard at a meaningful time and in a meaningful manner.” State ex rel. Children, Youth & Families Dep't v. Maria C., 2004-NMCA-083, ¶ 26, 136 N.M. 53, 94 P.3d 796 (internal quotation marks and citation omitted). In New Mexico, because we recognize a fundamental liberty interest in the right to custody of one’s child, parents have a due process right to meaningfully participate in a hearing for the termination of their parental rights. State ex rel. Children, Youth & Families Dep't v. Ruth Anne E., 1999-NMCA-035, ¶ 25, 126 N.M. 670, 974 P.2d 164. Generally, parents also have a right to receive effective notice and have an opportunity to participate at the permanency stage of an abuse and neglect adjudication involving their child. See Maria C., 2004-NMCA-083, ¶ 34 (<HOLDING>). However, a parent’s right to be present at a Holdings: 0: holding that generally parents have a due process right to participate in a permanency hearing because the opportunity to defend against charges of abuse and neglect may prevent a termination of parental rights 1: holding that foster parents have standing to intervene to seek termination of parental rights 2: recognizing that the department is required to present clear and convincing evidence to support termination of a parents parental rights 3: holding that a fathers failure to resolve his drug addiction as required by the permanency plan constituted grounds for termination of his parental rights 4: holding that the due process clause of the alaska constitution guarantees the right to effective counsel in proceedings for the termination of parental rights


Input: years leading up to the lawsuit, and that such contacts can be considered collectively). 2. Forum Selection Clause Under Florida law — which is the minority view — “a contractual choice of forum clause designating Florida as the forum cannot serve as the sole basis for asserting in personam jurisdiction over an objecting, non-resident defendant.” McRae v. J.D./M.D., Inc., 511 So.2d 540, 544 (Fla.1987) (emphasis added). Such a clause may, however, be considered as a factor that weighs in favor of exercising personal jurisdiction over a nonresident defendant where other grounds exist to exercise such jurisdiction. See Armaly v. Practice Mgmt. Assocs., 533 So.2d 920, 922 (Fla. 2d DCA 1988); see also Desai Patel Sharma, Ltd v. Don Bell Indus., Inc., 729 So.2d 453, 454 (Fla. 5th DCA 1999) (<HOLDING>). Here, in addition to the contacts described Holdings: 0: holding that nonresident defendants failure to make payments in florida coupled with forum selection clause sufficient for court to exercise personal jurisdiction over nonresident defendant 1: holding that court did not have personal jurisdiction over nonresident defendant where defendant assignee received patents from assignor over whom court had personal jurisdiction in part because the unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum state 2: holding that court did not have personal jurisdiction over nonresident defendant because plaintiff failed to show that defendant was assignee of assignor over whom court had personal jurisdiction 3: holding no personal jurisdiction over nonresident guarantor 4: holding that a choice of law provision is not sufficient to confer personal jurisdiction over a nonresident defendant