Input: conduct) for evidentiary purposes to determine whether a person suffers from a mental abnormality ... and also poses a threat to the public.” 521 U.S. at 370, 117 S.Ct. 2072. We are also unpersuaded by the proposition that a law like chapter 980 should be regarded as criminal for purposes of Public Law 280 because, as the Wisconsin Supreme Court put it, it is “enveloped on both sides” by criminal conduct. In re Burgess, 665 N.W.2d at 132. In fact, that is not necessarily the case. Although chapter 980 certainly applies to persons like Burgess who have been convicted of sexually violent offenses, it also applies to individuals who “ha[ve] been found not guilty of or not responsible for a sexually violent offense by reason of insanity or mental dis 103 S.Ct. 3043, 77 L.Ed.2d 694(1983) (<HOLDING>). In the final analysis, if this case turned Holdings: 0: holding that the state has a compelling interest in protecting the citizens of minnesota from those who pose a severe threat to their health and safety citation omitted internal quotation marks omitted 1: holding that a statute must be construed so that no part of the statute is rendered surplusage or superfluous internal quotation marks and citation omitted 2: recognizing that the declaratory judgment act is only procedural and does not create substantive rights internal quotation marks and citations omitted 3: holding that sentencing criminals in part based on criminal history is rationally related to a legitimate government interest 4: recognizing that the statutory scheme for commitment of insane criminals is  a regulatory prophylactic statute based on a legitimate governmental interest in protecting society and rehabilitating mental patients internal quotation marks omitted


Input: to look to post-death events, on the grounds that Jacobs involved a contingent claim. Id. at 1256. Since our decision in Propstra, we have not expressly departed from, nor expanded, our holding in that case. We have similarly not departed from our view of the distinction between certain and enforceable claims and contingent or disputed claims. For example, in Estate of Van Home, this court applied the holding in Propstra to value an undisputed and non-contingent pre-death spousal support order as of the date of the decedent’s death. Estate of Van Horne, 720 F.2d at 1115-16. We, along with the tax court whose opinion we were reviewing, continued to distinguish certain and enforceable claims from disputed and contingent claims. Id.; Estate of Van Horne v. Comm’r, 78 T.C. 728, 735 (1982) (<HOLDING>). Indeed, in Estate of Van Home, we rejected Holdings: 0: recognizing distinction between tolling and estoppel 1: recognizing distinction between sole power and sovereignty 2: recognizing distinction between a certain and enforceable claim and a potential unmatured contingent or contested claim 3: recognizing this distinction 4: recognizing distinction between smith and mcdonnell


Input: in rule 11(e), good cause was shown. Subsection (F) requires a defendant to not only show that a trial court failed to strictly comply with rule 11, but that this error affected the defendant's "substantial rights." This heightened requirement clearly "disapproves of a practice" this court arguably has sanctioned before. Because the current standard fundamentally alters a defendant's rights, we decline to retroactively apply the current formulation of rule 11 to Mr. Lovell. 4. The Application of Harmless Error Review in Other Contexts Does Not Persuade Us to Extend Harmless Error Review to Rule 11(e) Violations 175 As a final argument, the State urges that "even if the 2005 amendment [adding subsection (F)] does not apply to [Mr.] Lo-vell, this Court ... [should] apply harmless e 2) (<HOLDING>); State v. Hutchison, 655 P.2d 635, 636 (Utah Holdings: 0: holding that the sixth amendment confrontation clause violation in that case was harmless beyond a reasonable doubt and therefore did not require the conviction to be overturned 1: holding that confrontation clause violation was not harmless beyond a reasonable doubt in part because it concerned the limitation of crossexamination of the prosecutions key witness 2: holding that testimony at trial in violation of defendants constitutional confrontation right was harmless beyond a reasonable doubt because the testimony was cumulative 3: holding confrontation clause violation was harmless beyond a reasonable doubt and thus upholding firstdegree murder conviction 4: holding that trial court must determine whether fifth amendment violation was harmless beyond a reasonable doubt


Input: doc. no. 82, p. 5 (citing United States v. Stulock, 308 F.3d 922, 925 (8th Cir.2002))). However, as this opinion only briefly mentions the district court’s definition of possession of child pornography, and does not discuss in any detail whether that definition was correct, see Stulock, 308 F.3d at 925, this opinion is not relevant to the Court’s analysis above. 6 . For example, in United States v. Tucker, 305 F.3d 1193 (10th Cir.2002), the Tenth Circuit found that because defendant knew his internet browser stored temporary internet files, "he knowingly acquired and possessed” images of child pornography "each time he intentionally sought out and viewed child pornography” on the internet. Tucker, 305 F.3d at 1205. 7 . See United States v. Smith, 459 F.3d 1276, 1287 (11th Cir.2006) (<HOLDING>). 8 . Although Defendant contends that this Holdings: 0: holding that to satisfy the element of specific intent to defraud needed to convict for mail fraud the government must show that the defendant knowingly made a material misrepresentation or knowingly omitted a material fact for the purpose of inducing the victim of the fraud to part with property or undertake some action that he would not otherwise do absent the misrepresentation or omission 1: holding that unless otherwise directed by the statute the term knowingly merely requires proof of knowledge of the facts that constitute the offense 2: holding that inferred intent rule applies regardless of the age of the actor 3: holding that the scienter requirement extends to both the sexually explicit nature of the material and to the age of the performers 4: holding that the term knowingly under  2252a applies to both the nature of the material and the age of the children depicted


Input: Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 135-38, 81 S.Ct. 523, 528-30, 5 L.Ed.2d 464, 470-71 (1961). Utilizing that conceptual basis, the first group of SLAPP statutes shares several essential features. They generally include a legislative declaration that a public participant who has exercised his or her free speech right, sometimes in a statutorily defined manner, enjoys immunity. See, e.g., Cal.Civ.Proc.Code § 425.16(b)(1) (2009); Ga.Code Ann. § 9-11-11.1 (2009); R.I. Gen. Laws § 9-33-2(a) (2009); Tenn.Code Ann. § 4-21-1001, -1003(a) (2009). They often also declare that the protections will be limited to matters in which the speaker has not spoken in reckless disregard for the truth or falsity of the assertions, see, e.g., 27 Pa. Cons.Stat. § 8302(b) (2008) (<HOLDING>), or has not “caused actual injury,” Mass. Ann. Holdings: 0: holding that the doctrine of sovereign immunity barred a claim for money damages against the librarian of congress in his official capacity because immunity had not been waived and the exceptions to immunity did not apply 1: recognizing three exceptions to atwill doctrine 2: recognizing two exceptions to eleventh amendment bar 3: recognizing first two exceptions 4: recognizing exceptions to immunity


Input: While some courts have condemned the “sit and squirm” test, the Seventh Circuit has repeatedly endorsed the role of observation in credibility determinations. Powers, 207 F.3d at 436. The ALJ’s observation as to whether the claimant is suffering from pain consistent with his testimony is one of the factors that may contribute to a credibility determination. Id. Based on the foregoing, this Court finds that the facts and observations noted by the ALJ provide support for the ALJ’s credibility determination. Thus, even if portions of the record support Ulloa’s credibility, we cannot conclude that the ALJ’s credibility determination was patently wrong. Accordingly, we will not remand on this basis. Powers, 207 F.3d at 435; see also, Edwards v. Sullivan, 985 F.2d 334, 338 (7th Cir.1993) (<HOLDING>). CONCLUSION For the reasons set forth above, Holdings: 0: holding trial court has jurisdiction to reconsider new trial order as long as case is pending 1: holding that credibility determinations are for the jury 2: holding that this court may reconsider an erroneous ruling as long as the appeal is current 3: holding that in determining the propriety of summary judgment credibility determinations may not be made  4: recognizing that a reviewing court should not reconsider credibility determinations made by the alj as long as they find some support in the record


Input: “[T]he sentencing court must consider the relevant factors and provide a reasoned and renewable basis for its decision to impose a fine.” Id. at 968. In this case, the record makes clear that the district court spent considerable time properly considering the relevant factors. The court followed the PSR’s factual findings, questioned Mr. Gellene concerning his current financial situation, and then asked Mr. Gellene and his attorney to meet over lunch with the probation officer who prepared the presentence report in order to provide to the court “a little detail about where all this money went in the last six years.” Sent. Tr. 69. The probation officer’s notes from that discussion became a supplement to the PSR — a supplement created by both parties. See Bauer, 129 F.3d at 969 (<HOLDING>). The court reviewed the material and Holdings: 0: recognizing the right of a defendant to comment upon the failure of the state to produce evidence 1: holding the trial courts subsequently corrected instruction that the jury must find the defendant personally committed the offenses in order to convict the defendant on those charges did not prejudice the defendant 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 that even though defendant stated he did not read and discuss psr with his counsel he could not show any error that affected his substantial rights 4: recognizing that the defendant approved the supplement to the psr


Input: originally arose from the doctrine that consent to treatment is only meaningful if the patient understands the risks and alternatives of the treatment. This same term has been assigned to the doctrine which places a duty on physicians to disclose information as to the alternatives and risks of a particular treatment. See Canterbury, 464 F.2d at 780 n.15. The doctrine of informed consent comes from the common law and stems from the fundamental notion of the right to bodily integrity: "[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body;..." Schloendorff v. Society of New York Hospital, 105 N.E. 92, 93 (N.Y.1914), overruled on other grounds. See also In Matter of Guardianship of L.W., 167 Wis. 2d 53, 68, 482 N.W.2d 60 (1992) (<HOLDING>). Consent to treatment is only meaningful if it Holdings: 0: recognizing the right to waive a jury trial 1: recognizing a right to contribution 2: recognizing private right of action 3: recognizing the right to selfdetermination 4: recognizing the right to counsel on appeal


Input: Some of Cruikshank’s objections on appeal appear meritorious, even though the record does not show they were presented to the trial court. For example, Cruikshank contends on appeal the trial court improperly excluded statements as hearsay when, in fact, they were not hearsay because the statements were admissions by a party opponent. But these complaints are not timely. “As a prerequisite to presenting a complaint for appellate review, the record must show that: (1) the complaint was made to the trial court by a timely request, objection, or motion....” Tex.R.App. P. 33.1(a). We review the trial court’s decision to exclude evidence under an abuse of discretion standard. City of Brownsville v. Alvarado, 897 S.W.2d 750, 7 2d 702, 705 (Tex.App.-Houston [1st Dist.] 1996, writ denied) (<HOLDING>); Brooks v. Sherry Lane Nat. Bank, 788 S.W.2d Holdings: 0: holding that appellants waived any claim of error as to the portion of the lower courts ruling that they did not expressly challenge on appeal 1: holding that a party waived its objections on appeal to an affidavit presented in support of a motion for summary judgment by failing to raise its objections to the trial court 2: holding appellants failure to serve their notice of appeal of the circuit courts judgment within the statutory period necessitated dismissal of their appeal for want of jurisdiction 3: holding that appellants failure to obtain a ruling at the trial level even on a constitutional issue precluded review on appeal 4: holding that because appellants never requested opportunity to amend summary judgment responses appellants could not complain on appeal of trial courts ruling sustaining objections and special exceptions to their affidavit


Input: relying on Rule 21, the Third Circuit has acknowledged that a portion of an action against certain defendants may be severed and transferred to another district. See Cottman, 36 F.3d at 296. In situations where the claims against one or more defendants are severed because of improper venue, a district court may then transfer the severed claims to another district pursuant to § 1404(a) or § 1406(a). See Cottman, 36 F.3d at 296; Carver v. Knox County, Tenn., 887 F.2d 1287, 1293 (6th Cir.1989) (severing certain claims and transferring to another district); City of Virginia Beach, Va. v. Roanoke River Basin Assoc., 776 F.2d 484, 489 (4th Cir.1985); In re Fine Paper Antitrust Litig., 685 F.2d 810, 819 (3d Cir.1982), cert. denied, 459 U.S. 1156, 103 S.Ct. 801, 74 L.Ed.2d 1003 (1983) (<HOLDING>); Wyndham Assocs., 398 F.2d at 618-19; Magee v. Holdings: 0: recognizing cause of action 1: holding that the failure of three defendants to object to venue did not waive a fourth defendants objection and therefore affirming the trial courts decision to transfer venue 2: recognizing the cause of action 3: recognizing that venue defects as to a party whose portion of the action has been severed do not bar transfer of the remainder of the action 4: holding that because the circuit court did not have subjectmatter jurisdiction over the unlawfuldetainer action the district courts unauthorized transfer of the action could not transfer jurisdiction over that action to the circuit court


Input: 967. We now formally adopt a valuation on the Abbati test to guide a trial court’s discretion in determining whether dismissal of charges is appropriate. {20} A majority of state courts grant discretion to a trial court to dismiss charges after successive retrials, citing principles such as “fundamental fairness,” “fair play,” and “substantial justice.” See United States v. Ingram, 412 F.Supp. 384, 385 (D.C.1976) (considering dismissal a “matter of fair play”); State v. Moriwake, 65 Haw. 47, 647 P.2d 705, 712 (1982) (deriving authority from principles of fundamental fairness); Sivels v. State, 741 N.E.2d 1197, 1201 (Ind.2001) (citing fundamental fairness and substantial justice); Abbati 493 A.2d at 517 (relying on fundamental fairness); State v. Witt, 572 S.W.2d 913, 917 (Tenn.1978) (<HOLDING>); State v. Sauve, 164 Vt. 134, 666 A.2d 1164, Holdings: 0: holding the court has the inherent authority to enter an order of confidentiality 1: holding that no deliberate prosecutorial misconduct existed after the first trial ended in a hung jury 2: holding trial court has inherent authority to terminate prosecution after mistrials when probability of another hung jury is great 3: recognizing that in the united states it has been held that a court has the inherent power to change venue without reliance on constitutional or statutory authority when necessary to assure a fair trial 4: recognizing a trial courts inherent authority to dismiss a cause of action with prejudice for violations of court orders


Input: they are not offered by the parties.” Presley, — U.S. at-, 130 S.Ct. at 724, 175 L.Ed.2d at 681. We distinguish, however, defense counsel’s option to advocate a less restrictive alternative from defense counsel’s failure to request a voir dire of the witness. We reject the Court of Special Appeals’ assertion that Longus conceded to the State’s proffer by failing to request a voir dire examination of the witness. Presenting evidence in support of the State’s overriding interest in closure is the State’s burden. Waller, 467 U.S. at 48,104 S.Ct. at 2216, 81 L.Ed.2d at 39. The defense is not required to ask the State to meet its burden, and the defense’s failure to request a voir dire examination of the witness does not waive or reduce the State’s burden. See Tinsley, 868 A.2d at 883-84 (<HOLDING>). Findings on the Record In this case, Longus Holdings: 0: holding that because the appellant did not present to the administrative agency the argument it raised before this court the issue was not preserved and holding that even if preserved the argument failed 1: recognizing that the specific argument regarding an issue must be made in the trial court to preserve that issue for appellate review 2: holding that although tinsley did not make a specific argument about overbreadth of the closure at trial objecting to the closure put the prosecutor and the trial court on notice of his basic claim that the order of exclusion was not justified and preserved the issue for review 3: holding that issue is preserved if the objections at the trial were sufficiently specific to notify the trial court at the time of the nature and character of the objections and the reasons for them 4: holding the issue of recusal of the trial judge to be preserved for appellate review must be raised in the trial court


Input: Moore, who also sought to withdraw his guilty plea, Pro Se Mot. to Withdraw Guilty Plea (Doc. No. 119)—and the Court granted the defendants’ motions to withdraw their pleas on April 11, 2016. Orders that Defs.’ Mots, to Withdraw Guilty Pleas are Granted (Doc. Nos. 134 and 135). At the defense’s request, the Court also granted a continuance to prepare for trial, which then commenced on September 26, 2016. See Report of Speedy Trial Delay (Doc. No. 136); Min. Entry (Doc. No. 184). The delays in these proceedings are virtually all attributable to the defendants. The government never requested any continuances, with the sole exception of a joint request with Wilson for additional time to brief the Hodge issue. See Order Granting Extension of Time (Doc. No. 106). The defenda th Cir. 1978) (<HOLDING>). The defense argues much of the delay was Holdings: 0: holding that although defendant is not entitled to appeal from his guilty plea as a matter of right his arguments challenging the factual basis for his guilty plea are reviewable pursuant to a petition for writ of certiorari 1: holding that the defendants guilty plea was valid where the district court carefully questioned the defendant about whether he understood the consequences of his guilty plea 2: holding that defendant was responsible for the delay from the withdrawal of his guilty plea 3: holding that the defendant has the burden of proving a fair and just reason for withdrawal of a guilty plea 4: holding that a criminal defendant must provide a fair and just reason to support withdrawal of his guilty plea even when that plea has not yet been accepted by the district court


Input: earnings of the injured employee in the employment in which he was working at the time of the injury[.]” “Results fair and just, within the meaning of G.S. 97-2[], consist of such ‘average weekly wages’ as will most nearly approximate the amount which the injured employee would be earning were it not for the injury, in the employment in which he was working at the time of his injury.” Liles v. Electric Co., 244 N.C. 653, 660, 94 S.E.2d 790, 796 (1956) (emphasis omitted). In interpreting “average weekly wages” pursuant to N.C. Gen. Stat. § 97-2(5), it is clear from our case law that a plaintiff cannot aggregate or combine his wages from more than one employment in calculating his compensation rate. See McAninch v. Buncombe County Schools, 347 N.C. 126, 134, 489 S.E.2d 375, 380 (1997) (<HOLDING>); see also Barnhardt v. Cab Co., 266 N.C. 419, Holdings: 0: holding that inmates have no constitutionally protected interest in the wages earned while in prison 1: holding under indiana law that profits are not wages and neither is a fraction of profits wages and so a bonus that is based on the performance of a plant rather than on the time or determinable output of the employee is not wages either 2: holding that the definition of average weekly wages and the range of alternatives set forth in the five methods of computing such wages as specified in the first two paragraphs of ncgs  9725 do not allow the inclusion of wages or income earned in employment or work other than that in which the employee was injured 3: holding that a plaintiff cannot assert a statutory claim for wages under the labor law if he has no enforceable contractual right to those wages 4: holding that garnishment of wages is a deprivation


Input: scholarship endowments for the benefit of students attending only DePaul, NIU, and Loyola, despite Vrba’s intention expressed in article V(C)(2) that trust assets be used to award scholarships to students attending all universities, both public and private. We consider each of these arguments in turn. In response to National City’s argument that the amendment improperly terminated the Scholarship Trust, the majority defendants do not appear to contest that they were without authority to terminate the Scholarship Trust prior to the 50-year term specified in article V(C)(3) of Vrba’s will. Indeed, we note that our supreme court has previously held that trustees cannot utilize a general power of amendment to alter a fixed date of termination provided in a trust. See Olson, 399 Ill. at 242 (<HOLDING>). The majority defendants instead assert that Holdings: 0: holding that dismissal with leave to amend should be granted even if no request to amend was made 1: holding the district court is not required to grant a plaintiff leave to amend his complaint sua sponte when the plaintiff who is represented by counsel never filed a motion to amend nor requested leave to amend before the district court 2: recognizing court has authority to modify agreement to cure any unreasonable provision as to duration or scope 3: holding that courts may not alter waive or amend the filing deadline 4: holding that a trust provision granting a trustee the power to alter amend or modify the trust agreement was never intended to confer authority to amend the trust agreement in so vital a part as to extend the period of its duration


Input: (emphasis added). 13 . The Court notes that plaintiff has adduced no evidence that his request for a three day overlap with a substitute teacher was ever communicated to the District. Plaintiffs evidence demonstrates only that his insurance provider, Madison National, received the request. Def.’s Material Facts ¶ 62. 14 . The fact that Holler responded to plaintiffs request for assistance with his needy students by offering to help plaintiff conduct visits with other teachers who had the same students is further evidence that the District understood plaintiff as requesting assistance due to the needs of his students, not his medical inability to manage them. Act claim, while not citing Soda); Rea-Car, Inc. v. PNM Const., Inc., No. 90-7540, 1991 WL 87215, at *2 (E.D.Pa. May 21, 1991) Holdings: 0: holding that promissory estoppel is applicable only in the absence of an enforceable contract 1: recognizing cause of action for equitable estoppel under erisa 2: recognizing difference between tolling and equitable estoppel 3: holding an evidentiary hearing on the applicability of equitable estoppel 4: holding that equitable estoppel is applicable to a suit under the miller act while not citing soda


Input: months; and even after it took some action, Acosta continued to sexually harass Costilla into 1995? IV. Does official immunity bar Costilla’s claims? V. Did the district court err when it granted the state summary judgment on Costilla’s intentional and negligent infliction of emotional distress claims? ANALYSIS I. The threshold issue presented by this case, and one of first impression in this court, is whether the Minnesota Human Rights Act (MHRA) allows an employee to bring an action against her employer for sexual harassment when the harassing party is a non-employee. The district court did not question the validity of the cause of action. We determine that the MHRA, under certain circumstances, requires an employer to protect its employees from non-employe 024, 1028 (D.Nev.1992) (<HOLDING>); Magnuson v. Peak Technical Servs., Inc., 808 Holdings: 0: holding that employer who failed to take remedial action could be held liable for sexual harassment of employee by subcontractors employees 1: holding that an employer must remedy situation of sexual harassment 2: holding school district strictly hable for sexual harassment by its employees 3: holding employer could be hable for sexual harassment of employees by nonemployees including employers customers 4: holding employer may be hable for sexual harassment of employee by independent contractor


Input: did not wish to make a statement in his own behalf, and was sentenced to a term of 30 years to life imprisonment, the trial judge commenting that the crime was about as senseless and cold blooded as one can imagine. No question is now raised concerning the factual basis for the plea of guilty or the possibility of a defense. Defendant argues, relying primarily upon language in People v. Hessenauer (1970), 45 Ill. 2d 63, that he is entitled to a new sentencing hearing because he was not again advised by the court at his sentencing hearing of his right to counsel. The appellate court, noting that the opinions of that court were in conflict, agreed. 98 Ill. App. 3d 71; compare People v. Taylor (4th Dist. 1975), 31 Ill. App. 3d 987, and People v. Miles (5th Dist. 1974), 20 Ill. App. 3d 131 (<HOLDING>), with People v. Kious (5th Dist. 1979), 77 Holdings: 0: holding that sentencing is a critical stage of criminal proceedings and the offer of counsel must be renewed at each critical stage where the defendant appears without counsel 1: holding that posttrial motion for new trial is critical stage requiring counsel or valid waiver 2: holding that at resentencing the district court was entitled to assume that the waiver was still in effect and was not required to again advise defendant of his right to counsel where defendant had waived counsel at the plea stage 3: holding that the filing of a motion for a new trial is a critical stage of the prosecution and that an indigent defendant is constitutionally entitled to the assistance of counsel at that stage 4: holding that a valid waiver of counsel at an early stage of the proceeding does not continue in effect through a subsequent stage


Input: of Agreement subjected Dr. Wojewski to more control by RCRH than most doctors and perhaps rendered him the most controlled doctor in America. The district court rejected this argument based on Cilecek v. Inova Health System Services, 115 F.3d 256, 262 (4th Cir.1997), which states that “[bjecause of the overarching demands of the medical profession, the tension in professional control between doctors and hospitals for medical services rendered at hospitals is not, we believe, a reliable indicator of whether the doctor is an employee or an independent contractor at the hospital.” As noted by the district court and by appellees, several other circuits have held that a doctor who loses hospital privileges is an independent contractor. Shah v. Deaconess Hosp., 355 F.3d 496 (6th Cir.2004) (<HOLDING>); Vakharia v. Swedish Covenant Hosp., 190 F.3d Holdings: 0: holding that title vii of the civil rights act of 1964 provides the exclusive remedy for claims of employment discrimination by federal agencies 1: holding that surgeon with surgical privileges was not an employee of hospital and thus could not bring suit under either the age discrimination in employment act or title vii of the civil rights act of 1964 2: holding that physician was an independent contractor and thus could not sue hospital under title vii of the civil rights act of 1964 3: holding that physician with staff privileges is not an employee and thus cannot bring claim under title vii of 1964 civil rights act 4: holding that congress intended for idea to be interpreted consistent with fee provisions of statutes such as title vii of the civil rights act of 1964


Input: or former spouse can be as much for “support” for dischargeability purposes under § 523(a)(5) as payments owing directly to a former spouse. Leibowitz v. County of Orange (In re Leibowitz), 217 F.3d 799, 803 (9th Cir.2000). Accord Falk & Siemer, LLP v. Maddigan (In re Maddigan), 312 F.3d 589, 593 (2d Cir.2002) (stating the fact that a debt is payable to a third party does not prevent classification of that debt as nondis-chargeable under § 523(a)(5)); Williams v. Kemp (In re Kemp), 232 F.3d 652, 653 (8th Cir.2000) (stating that it is the nature of the debt, not the identity of the payee, that determines the debt's nondischargeability under § 523(a)(5)); Miller v. Gentry (In re Miller), 55 F.3d 1487, 1490 (10th Cir.1995), cert. denied, 516 U.S. 916, 116 S.Ct. 305, 133 L.Ed.2d 210 (1995) (<HOLDING>); Long v. Calhoun (In re Calhoun), 715 F.2d Holdings: 0: holding that courtappointed guardian ad litem for child in child custody dispute did not act under color of state law 1: holding that debts for a guardian ad litem and a psychologist were nondischargeable under  523a5 because the emphasis is to be placed on the determination of whether a debt is in the nature of support rather than on the identity of the payee 2: holding that guardian ad litem and psychologist fees incurred in child custody proceedings and ordered to be paid directly to the guardian ad litem and psychologist were nondischargeable under  523a5 3: holding the district court properly allowed guardian ad litem fees to be taxed as costs 4: holding that legal fees for a childs guardian ad litem in a custody proceeding were clearly for the ehilds benefit and support and as such were nondischargeable under  523a5


Input: of his “character for truthfulness.” See Rule 608(b) (permitting cross-examination on specific instances of misconduct “if probative of truthfulness or untruthfulness”). And the district court could have contained the prejudicial effect of the material, as well as any possible confusion of the issues, by limiting its introduction to the essential facts necessary to reveal Allen’s character for truthfulness. Moreover, the material would not have been needlessly cumulative. The fact that Allen might have had a motive to testify against Kohring in order to gain leniency as to his corruption charges does not mean that evidence of a different bias or motive would be cumulative. See, e.g., Horton v. Mayle, 408 F.3d 570, 579 (9th Cir.2005) (citing Napue, 360 U.S. at 270, 79 S.Ct. 1173 (<HOLDING>)); Banks v. Dretke, 540 U.S. 668, 702-03, 124 Holdings: 0: holding that evidence of judicial bias does not satisfy section 2244b2b because it does not add to or subtract from the evidence of  guilt 1: recognizing that the value of brady evidence must be evaluated in light of the other evidence admitted at trial 2: holding that some evidence of bias does not dimmish the value of other evidence describing a different source of bias 3: holding that new evidence is evidence not previously of record and not merely cumulative of other evidence 4: holding that evidence that defense witnesses were members of the same organization of tax protesters as defendant was properly admitted to show bias


Input: also United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). Moreover, “[i]f the adverse party does not [file an opposition], summary judgment, if appropriate, shall be entered against the adverse party.” Fed.R.Civ.P. 56(e) (emphasis added). The First Circuit Court of Appeals has made clear that failure to timely oppose a motion for summary judgment, does not, in itself, justify entry of summary judgment against the party; therefore, a District Court is “obliged to consider the motion on the merits, in light of the record as constituted, in order to determine whether judgment would be legally appropriate.” Kelly v. United States, 924 F.2d 355, 358 (1st Cir.1991); see also Lopez v. Corporacion Azucarera de Puerto Rico, 938 F.2d 1510, 1517 (1st Cir.1991) (<HOLDING>). In the case of failure to oppose a motion for Holdings: 0: holding that the trial court did not err by granting defendants motion for summary judgment 1: holding that summary judgment motion itself must expressly present reasons entitling movant to summary judgment 2: holding that in a traditional motion for summary judgment the burden shifts to the nonmovant to raise a fact issue after the movant has facially established its right to judgment as a matter of law 3: holding that before granting an unopposed summary judgment motion the court must inquire whether the moving party has met its burden to demonstrate undisputed facts entitling it to summary judgment as a matter of law 4: recognizing that the burden on summary judgment shifts to the nonmoving party once the moving party has met its initial responsibility of showing the absence of a triable issue of fact and that the moving party is entitled to summary judgment if the nonmoving party fails to make a sufficient showing on an essential element of the case


Input: novo. See United States v. Alber, 56 F.3d 1106, 1109 (9th Cir.1995). Whether the trial court’s colloquy with the defendant satisfies the requirements of Rule 11 is also reviewed de novo. See United States v. Smith, 60 F.3d 595, 597 n. 1 (9th Cir.1995). Technical failure to comply with Rule 11 is not reversible error unless it affects the defendant’s substantial rights. See Fed.R.Crim.P. 11(h). The record demonstrates that the district court complied with Rule 11 in accepting Aguilar-Muniz’s plea. The court advised Aguilar-Muniz of the elements of both charges against him. As to the charge of using a telephone to facilitate a conspiracy to manufacture drugs, the court advised Aguilar-Muniz of the definition of a conspiracy. Cf. United States v. Bruce, 976 F.2d 552, 559-60 (9th Cir.1992) (<HOLDING>). The court informed Aguilar-Muniz of the Holdings: 0: holding that eonclusory allegations that plaintiffs were unaware of the conspiracy is insufficient 1: holding that the filing of notice without motion is insufficient 2: holding that the notion of enterprise conspiracy has largely rendered the old distinction between single conspiracy and multiple conspiracy irrelevant to rico conspiracy charges 3: holding that conclusory allegation of conspiracy without supporting factual averments insufficient to state claim 4: holding that cursoryrecitation of conspiracy charge without definition of the legal term is insufficient


Input: the club, an area over which Swordfish purportedly had no control, the majority avoids Appellant’s argument that Swordfish had a duty to provide reasonable security measures in the common areas outside the nightclub, which were under Swordfish’s control, and that the failure to do so allowed the assailant to return to the club and injure Appellant. That Appellant was shot inside the club relates to causation, which in my opinion, is not here a proper element of negligence on which to base summary judgment. I agree with Appellant that a commercial landlord, under circumstances here appearing, has a duty to reasonably protect invitees from foreseeable criminal acts in areas under the landlord’s control. Compare Cramer v. Balcor Prop. Mgmt., Inc., 312 S.C. 440, 441 S.E.2d 317 (1994) (<HOLDING>), with Bullard v. Ehrhardt, 283 S.C. 557, 559, Holdings: 0: holding that a residential landlord has no duty to protect invitees from foreseeable criminal acts 1: holding that a store owner has a duty to protect invitees from foreseeable criminal acts 2: holding landowner had duty to provide security in parking lot to protect its invitees from criminal acts of third parties 3: holding a business owes a duty to protect invitees from reasonably foreseeable harm by third persons 4: holding that duty to protect from criminal acts does not arise in the absence of a foreseeable risk of harm


Input: was under Mr. Wallace’s management). Plaintiff does not deny making this request, although he stated that he did not even want to work in the same building as Mr. Wallace, because he still saw him daily, although Mr. Wallace did not speak to him. Def.’s Mot., Ex. A, Jones Dep. at 107, 110. Furthermore, it is undisputed that once Mr. Wallace was permanently transferred, plaintiff was brought back to the stock room to work, and plaintiffs temporary reassignment did not result in the lost of grade level or pay. Id. at 132; Def.’s Mot., Ex. E, Gaskins’ Decl. ¶ 4. These circumstances do not permit the Court to conclude that plaintiffs temporary assignment to the building services department amounted to an adverse employment action. See Brodetski v. Duffey, 141 F.Supp.2d 35, 45 (D.D.C.2001) (<HOLDING>) (citation omitted). More significantly, Holdings: 0: holding in the only seventh circuit case addressing prejudice in the context of failure to notice that an employee was not prejudiced because she benefitted from a reduced schedule of leave for more than a yeara schedule she wanted to keep 1: holding that change in work schedule and assigning less desirable job duties did not constitute a tangible employment action 2: holding that change of schedule video surveillance and disciplinary warnings were not material adverse actions sufficient to sustain retaliation claim 3: holding that defendants decision to change the office schedule without allowing plaintiff leave to alter his personal schedule did not constitute an adverse action although plaintiff alleged that because of the schedule revisions he was forced to come in two hours early for his shift a mere inconvenience is not sufficiently adverse to sustain a prima facie case 4: holding that a change in work schedule and request that an employee perform two additional tasks did not rise to the level of an adverse employment action


Input: a case like State v. Hampton, 152 Or App 742, 954 P2d 1267 (1998), in which a total delay of nearly two years consisted primarily of a 19-month delay that was caused entirely by the court’s inattention to a motion that it had taken under advisement. Here, as in Myers, there was a continuing dialogue between the court and the parties — including numerous scheduling and status conferences — at least every five months, and, as set out above, much of the delay was the result of the kind of “routine scheduling delays that are always present.” Myers, 225 Or App at 677. However, under the “Sta was required where eight months of delay out of a total of 11.5 months attributable to the state was due to simple neglect); cf. State v. Doak, 235 Or App 351, 231 P3d 1181, rev den, 349 Or 171 (2010) (<HOLDING>); State v. Lee, 234 Or App 383, 391-92, 228 P3d Holdings: 0: holding that trial delay for dna testing was attributable to the state but was mere negligence 1: holding that dismissal was required where overall length of prosecution was 16 months state was responsible for 13 months of delay and six months of that delay was due to simple neglect 2: holding that the district court did not abuse its discretion in declining to apply laches where the only prejudice shown by the government was attributable to its own delay rather than to that of the movant 3: holding that dismissal of indictment was abuse of discretion when delay attributable to the government was twelve months 4: holding that dismissal was not required where entire 13month delay attributable to state was reasonably explained


Input: See Utah Code Ann, § 80-8-83(9) (LexisNex-is 2018) (allowing the court to "make alterations in the parent-time schedule to reasonably accommodate the distance between the parties"). Thus, the district court did not err when it failed to require a showing of material change in circumstances to alter the parties' parent-time arrangement,. {12 We next decide whether the district court abused its discretion in concluding that exercising standard parent-time with Mother at her home in Moab was in the children's best interests. {13 The Utah Supreme Court has long recognized that "[t]rial courts have continuing jurisdiction to consider motions to modify dealing with ... visitation rights." Kallas v. Kallas, 614 P.2d 641, 645 (Utah 1980); see also Utah Code Ann. § 30-3-5(3) (LexisNexis 2013) (<HOLDING>). We also note that it "is the trial court's Holdings: 0: holding an unborn child is not a child for purposes of criminal prosecution of mistreatment of a child 1: holding an unborn child is a child for purposes of prosecuting chemical endangerment of a child 2: holding judges and attorneys in eriminal contempt for permitting father to attack collaterally mothers eustody of child through sham child in need of services action 3: recognizing a district courts continuing jurisdiction over child eustody and child maintenance determinations 4: recognizing continuing harm from defendants knowing possession of child pornography


Input: suffered a denial of equal pay with every check she received.”); Ashley v. Boyle’s Famous Corned Beef Co., 66 F.3d 164, 168 (8th Cir.1995) (en banc) ("Ashley's Title VII pay claim is timely because she received allegedly discriminatory paychecks within 300 days prior to the filing of her administrative charge.”) ng violations” doctrine, variously defined, e.g., Calloway, 986 F.2d at 448-49; Cardenas, 269 F.3d at 258, while others expressly rejected that label, e.g., Gandy v. Sullivan County, Tenn., 24 F.3d 861, 864-65 (6th Cir.1994) (EPA claim). Some restricted the damages recoverable to the pay lost as a result of paychecks received within the timely-filing period, e.g., Brinkley-Obu, 36 F.3d at 346, n. 22; Ashley, 66 F.3d at 167-68, whil d Cir.1998) (unpublished table decision) (<HOLDING>). 18 . Moreover, the employee is limited to Holdings: 0: holding that the charge was timely when filed within the statute of limitations period even though served after the period 1: holding that texas twoyear statute of limitations applied to suit alleging racial discrimination under 42 usc  1981 2: recognizing that under illinois law parties are free to contract for a time period within which a suit may be brought  which is less than the general statute of limitation period applicable to written contracts 3: holding in a  1981 case that under bazemore each discriminatory paycheck constituted a new violation for which suit could be brought within the statute of limitations period beginning with its occurrence 4: holding that under bazemore the continued application of a discriminatory compensation scheme is itself an actionable violation and that the plaintiffs could therefore be made whole for those paychecks received during the applicable limitations period


Input: the district court committed error because it failed to apply the clear and convincing evidence standard. We also conclude that this error was “plain,” because “the application of an incorrect standard of proof to enhancements with disproportionate impact [is] error that is plain.” Jordan, 256 F.3d at 930. Next, we must determine whether the error affected McLaughlin’s substantial rights. “The error must have been prejudicial: It must have affected the outcome of the district court proceedings.” Id. (citation omitted). The PSR provided clear and convincing evidence supporting the enhancement for actual loss and the enhancement for a scheme involving more than minimal planning or a scheme to defraud more than one victim. See United States v. Romero-Rendon, 220 F.3d at 1163 & n. 4 (<HOLDING>). Therefore, no prejudice was suffered by these Holdings: 0: recognizing that the department is required to present clear and convincing evidence to support termination of a parents parental rights 1: holding that an admission from the promisor that he lacked intent to form a contract by his promise could provide clear and convincing evidence sufficient to support a jury verdict in favor of a plaintiff on a promissory fraud claim 2: holding that an uncontroverted psr alone can provide clear and convincing evidence to support a sentence enhancement 3: holding that despite the lack of a statutory requirement that severe child abuse be shown by clear and convincing evidence due to the consequences of such a finding the clear and convincing standard must be applied 4: holding that fraud on the court must be supported by clear unequivocal and convincing evidence


Input: would have been treated as final in federal practice and stating that “this Court is not compelled to apply a jurisdictional rule of the federal courts merely because the motion for a stay of [court] proceedings [pending arbitration] in this instance was filed pursuant to the [FAA]”). Other similar decisions are: McClellan v. Barrath Constr. Co., 725 S.W.2d 656, 658 (Mo.Ct.App.1987) (applying Missouri law in holding order compelling arbitration unappealable because “[although 9 U.S.C. § 2 creates substantive rights to be enforced in state courts, the procedural provisions of the [FAA] are not binding on state courts ... provided applicable state procedures do not defeat the rights granted by Congress”); Bush v. Paragon Property, Inc., 165 Or.App. 700, 997 P.2d 882, 887-88 (2000) (<HOLDING>); Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, Holdings: 0: holding an appeal may be taken from an order denying a motion to compel arbitration 1: holding order denying arbitration appealable under texas law and stating that although the faa also permits a party to appeal from an interlocutory order denying a request to compel arbitration federal procedure does not apply in texas courts even when texas courts apply the federal act footnote omitted 2: holding that faa does not require appellate review of order interlocutory under state law denying motion to compel arbitration and overruling prior decision finding such a requirement 3: holding an order denying a motion for summary judgment is interlocutory and not appealable 4: holding that where appellants preliminary objections both in nature of demurrer and in nature of motion to compel arbitration were denied appellate review is limited to that portion of the courts order which denied the motion to compel arbitration the other issues are not ripe for review


Input: principles may be applicable.” Id. at 283-84, 103 S.Ct. 1081. The ACLU contends that cell tower dumps violate reasonable expectations of privacy “because they involve just th[is] sort of ‘dragnet type’ surveillance of hundreds or thousands of innocent people.” (Wessler 5/20/14 Letter at 13). I cannot agree that the Government’s application here raises the spectre of “wholesale surveillance” suggested in Knotts and some of the cases following it. Such concerns center on the possibility of the Government tracking an individual’s (or a number of individuals’) every movement over a period of time. See Knotts, 460 U.S. at 284, 103 S.Ct. 1081 (mentioning “twenty-four hour surveillance of any citizen of this country”); United States v. Katzin, 732 F.3d 187, 191-92, 205 (3d Cir. 2013) (<HOLDING>), vacated on grant of reh’g en banc, 2013 WL Holdings: 0: holding that by enacting the more specific homicide by vehicle statute the legislature intended to preempt the subject matter of unintended homicides resulting from the operation of a motor vehicle 1: holding automobile exeeption did not apply to warrantless search of vehicle where vehicle was not readily mobile because the vehicle was legally parked in parking lot occupants of vehicle were seated on a bench in the playground near the parking lot police officers surrounded the vehicle and the driver of the vehicle was handcuffed for safety purposes 2: holding use of gps device to track suspect for 65 days was search 3: holding that delay of several hours after the vehicle was seized was reasonable 4: holding warrantless gps tracking of vehicle for several days generating highly accurate record of the trackers whereabouts throughout its period of operation unjustified


Input: and any other person otherwise entitled to recover damages from the United States or the instrumentality because of the injury or death in a direct judicial proceeding, in a civil action, or in admiralty, or by an administrative or judicial proceeding under a workmen’s compensation statute or under a Federal tort liability statute. 5 U.S.C. § 8116(c) (emphasis added). 11 . Section 8128(b) provides: The action of the Secretary or his designee in allowing or denying a payment under this subchapter is— (1) final and conclusive for all purposes and with respect to all questions of law and fact; and (2) not subject to review by another official of the United States or by a court by mandamus or otherwise. 5 U.S.C. § 8128(b). But cf. United States v. Sforza, 326 F.3d 107, 111-15 (2d Cir.2003) (<HOLDING>). 12 . The Secretary must determine that the Holdings: 0: holding that disability benefits are not retirementtype benefits 1: holding that the claims court has no jurisdiction under the tucker act over claims to social security benefits 2: holding that a state agency is not a person subject to suit under federal false claims act 3: holding that section 8128b does not deprive courts of jurisdiction over governments false claims act suit seeking recoupment of fraudulently obtained disability benefits 4: holding that the provisions of the false claims act allowing suit imposing liability on any person who presented false claims to the federal government did not allow suits against state governments


Input: Health Systems (1st Dist. 1996), 674 N.E.2d 888, 221 Ill. Dec. 94 (rejecting implied private action for patients' families under the Health Care Surrogate Act); Parra v. Tarasco, Inc. (1st Dist. 1992), 230 Ill. App. 3d 819, 595 N.E.2d 1186, 172 Ill. Dec. 516 (rejecting implied private action under the Choke-Saving Methods Act); Davis v. Dunne (1st Dist. 1989), 189 Ill. App. 3d 739, 545 N.E.2d 539, 136 Ill. Dec. 1015 (rejecting implied private action under the Civil Service Act); Lane v. Fabert (4th Dist. 1989) 178 Ill. App. 3d 698, 533 N.E.2d 546, 127 Ill. Dec. 674 (rejecting implied private action under the Pawnbrokers Act); Anzinger v. Illinois State Medical Inter-Ins Exchange (1st Dist. 1986), 144 Ill. App. 3d 719, 494 N.E.2d 655, 98 Ill p. 3d 412, 484 N.E.2d 473, 91 Ill. Dec. 914 Holdings: 0: recognizing implied private action under the school code as to chapter 1 funds 1: recognizing implied private action under federal safety appliance act 2: recognizing implied private action under the xray retention act 3: recognizing implied private action under the plat act rejecting implied private action under the national flood insurance act of 1968 4: recognizing implied private action under the collection agency act


Input: 551, 570, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972); " 'Nor does property lose its private character merely because the public is generally invited to use it for designated purposes"" Wilhoite, 640 N.E.2d at 387. Donovan argues that Wilhoite is distinguishable, in that the patron in Wilkhoite simply wanted to shop at the mall, involving an activity and premises not subject to comprehensive regulations. According to Donovan, the common law has been supplanted in this instance, because in 1993 our Indiana Legislature chose to legalize and regulate riverboat gambling, a formerly-prohibited activity. "Historically, the State of Indiana has prohibited gambling." Am. Legion Post No. 113 v. State, 656 N.E.2d 1190, 1192 (Ind.Ct.App.1995) (citing State v. Nixon, 270 Ind. 192, 384 N.E.2d 152 (1979) (<HOLDING>)), trams. denied. However, in 1988, the Indiana Holdings: 0: holding political discharges were unconstitutional 1: holding that an unconstitutional act of congress has no legal effect 2: holding mere deviation unconstitutional 3: holding section 61137 unconstitutional on its face 4: holding that parimutuel wagering on horse races was unconstitutional


Input: Under section 353(1) of the PHS Act, an individual who is convicted of intentionally violating any CLIA requirements may be imprisoned or fined.”). UMMC contends that since there is no proof of an intentional violation, plaintiffs’ claim fails. Plaintiffs respond that the issue is not whether or not “its supervisor ... intentionally violate[d] CLIA,” but rather is whether plaintiffs’ reporting “of what may have been criminally illegal conduct” was a motivating factor in the decision to terminate their employment. In fact, however, the issue is precisely that identified by defendant. The Fifth Circuit held in Wheeler v. BL Development Corp., that McArn applies only where the conduct reported is “actually ... criminal in nature.” 415 F.3d 399, 402-04 (5th Cir.2005). See id. at 404 (<HOLDING>). An employee’s good faith effort in reporting Holdings: 0: holding that money seized from a bank account must be traceable to illegal activity in order to be subject to forfeiture even if account previously contained proceeds of illegal activity 1: holding that because the activity reported did not constitute any form of criminally illegal activity  mcarns narrow public policy exception is not applicable in this instance 2: holding that raising a complaint about a violation of an internal policy is not considered protected activity 3: holding that countersurveillance driving is a fact indicative of illegal activity 4: holding the right to record police activity on public property was not clearly established


Input: waste and, indeed, South Dakota law even contemplates that regional waste disposal facilities mil accept waste from outside South Dakota. The Court notes that the referral process could not affect out-of-state waste entering any South Dakota waste disposal facility that disposed of up to 200,000 tons of waste annually because legislative approval is not required for such facilities. However, any facility which desired to dispose of over 200,000 tons of waste annually, whether that waste originated in South Dakota or outside th ainst interstate commerce in prae tical effect, the fact that the Referendum also precluded SDDS from disposing of instate garbage would not prevent the Referendum from being invalid. See Fort Gratiot Sanitary Landfill, Inc., — U.S. at -, 112 S.Ct. at 2024-25 (<HOLDING>); Southeast Arkansas Landfill, Inc., 981 F.2d Holdings: 0: holding that dormant commerce clause complaint by instate resident against municipality failed on merits because challenged rule regulated evenhandedly and did not burden interstate commerce 1: holding that merely because some instate outofcounty waste would also be discriminated against does not render the law valid under the commerce clause 2: holding that ordinance requiring all municipal solid waste generated within county to be delivered to a particular facility discriminated against interstate commerce 3: holding that an arkansas statute discriminated against interstate commerce by banning the importation of most outofstate waste even though a small amount of outofstate waste was allowed into arkansas under the statute 4: holding that a new jersey statute prohibiting the importation of waste materials into the state violated the negative commerce clause


Input: supported in the record. See, e.g., Brown v. St. Louis Police Department, 691 F.2d 393 (8th Cir.1982), cert. denied, 461 U.S. 908, 103 S.Ct. 1882, 76 L.Ed.2d 812 (1983) (appellate court may affirm a judgment on any ground supported by the record). Despite Stafford’s failure to formally plead a claim under section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185, the district court interpreted the pleadings as clearly raising a “hybrid” section 301 claim. Stafford concurred in the interpretation. See Stafford v. Ford Motor Company, No. 3-84-1239, slip op. at 4 n. 1 (D.Minn. April 4, 1985). The Supreme Court has held that the six month statute of limitations found in section 1 Steamship Clerks, Freight Handlers, Express and Station Employees, 782 F.2d 674 (7th Cir.1986) (<HOLDING>). Prior to the Supreme Court’s decision in Holdings: 0: holding that hybrid section 301 action could not be maintained until plaintiff could fairly allege that the union refused to process his grievance 1: holding that timeliness of section 301 hybrid claim against union is measured from the date the internal union appeals procedure is exhausted or broken down 2: holding that a knew or should have known standard applies to triggering of statute of limitations for action against union in hybrid  301 action 3: holding that the limitations period in section 1640e runs from the date of consummation of the transaction 4: holding that statute of limitations on section 301 claim runs from point internal union appeals process is exhausted


Input: chapter 31, relating to sexual offenses], not otherwise admissible by statute or rule of evidence, is admissible in evidence in any criminal or civil proceeding if: (1) the court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability; and (2) the child either: (i) testifies at the proceeding; or (ii) is unavailable as a witness. 42 Pa.C.S.A. § 5985.1(a). Here, where A.D. was unavailable for cross-examination, the TYHA would permit the admission of her out-of-court statements under the indicia of reliability standard. As set forth above, the United States Supreme Court rejected the indicia of reliability standard in Crawford. See Crawford, 541 U.S. at 61, 124 S.Ct. 1354 (<HOLDING>). As required by Crawford, a Confrontation Holdings: 0: holding that the sixth amendment right of confrontation applies to all three phases of the capital trial and that the admission of  hearsay statements of codefendants in the penalty phase violated the confrontation clause 1: recognizing that admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation 2: holding that any confrontation right is found in the fourteenth amendments due process clause not the confrontation clause of the sixth amendment 3: holding the confrontation clause applies only to testimonial statements 4: holding that doctrine does not violate right of confrontation


Input: use of the money of others on the promise of profits.” Howey, 328 U.S. at 299, 66 S.Ct. at 1103; Stone, 8 F.3d at 1085 (quoting Howey); Securities and Exchange Comm’n v. R.G. Reynolds Enter., Inc., 952 F.2d 1125, 1130 (9th Cir.1991). Furthermore, in defining securities, substance governs form, and the substance of an investment contract is a security-like interest in a “common enterprise” that, through the efforts of the promoter or others, is expected to generate profits for the security holder, either for direct distribution or as an increase in the value of the investment. Howey, 328 U.S. at 298-99, 66 S.Ct. at 1102-03; United Housing Found, v. Forman, 421 U.S. 837, 852-53, 95 S.Ct. 2051, 2060-61, 44 L.Ed.2d 621 (1975); Rodriguez v. Banco Cent. Corp., 990 F.2d 7, 10 (1st Cir.1993) (<HOLDING>). a. Investment of money Courts rarely tarry Holdings: 0: holding that animal husbandry operations were included in the definition of farm even if the animals do not touch the ground graze on the land or feed from crops grown on the land and holding that land used to support buildings used in the production of agricultural products is a productive use of the land 1: holding that in action by property owner to recover land taken by eminent domain current titleholder to land might be necessary party if district court were to restore land to plaintiff 2: holding that land sales contracts were not securities because they involved no investment in an enterprise even if land was bought on expectation that development of the area would increase the value of the land 3: holding that even though the complaint sought money damages and land was actually recovered the attorneys lien attached to the land 4: holding that if respondents suit is one for permanent damages to the land the measure of damages is the decreased value of the land


Input: Minn.Stat. § 609.1095 (2000). Appellant argues that his prior felonies do not constitute a “pattern of criminal conduct” and that the district court abused its discretion by sentencing him as a career offender. A pattern is the organizing principle or relationship binding certain things, in this case incidents of criminal conduct, together. Such a “pattern of criminal conduct” may be demonstrated by proof of criminal conduct similar, but not identical, in motive, purpose, results, participants, victims or other shared characteristics. State v. Gorman, 546 N.W.2d 5, 9 (Minn.1996). A pattern of property crimes can satisfy the statute and there is no time limit for which convictions may be used to show a pattern of criminal conduct. State v. Worthy, 583 N.W.2d 270, 280 (Minn.1998) (<HOLDING>). Appellant’s current conviction is for auto Holdings: 0: holding that a defendants prior conviction for possession of a controlled substance and felon in possession of a firearm helped support probable cause to search his motel room for evidence of burglary 1: holding that mere possession of a dangerous weapon is insufficient to support a charge of robbery with a dangerous weapon 2: holding that a defendant with prior felony convictions including possession of a dangerous weapon possession of a controlled substance receiving stolen property and attempted burglary was properly sentenced as a career offender 3: holding the imposition of a maximum sentence of life imprisonment was not excessive for conviction of possession of cocaine where defendant was adjudged to be a fourth felony offender with prior convictions for manslaughter two prior convictions for possession of cocaine and numerous arrests for drug offenses possession of a firearm by a felon aggravated battery and armed robbery 4: holding that employees convictions for burglary possession of controlled substance public intoxication possession of marijuana unlawful carrying of weapon and evading arrest did not make his sexual assault of child foreseeable


Input: expense. See Nemeth v Abonmarche Dev, Inc, 457 Mich 16, 47; 576 NW2d 641 (1998) (CAVANAGH, J., concurring in part and dissenting in part). The result of the majority’s decision is that the ability of private citizens to bring OMA complaints will, in all likelihood, be severely curtailed. To penalize private citizens and, consequently, t ; 593 NW2d 649 (1999) (expressly rejecting the notion that a failure to either grant injunctive relief or order future compliance with the OMA precludes an award of costs and attorney fees, reasoning that a finding that the OMA was violated constitutes declaratory relief, which is sufficient to entitle the plaintiff to an award of costs and attorney fees under MCL 15.271(4)); Nicholas v Meridian Charter Twp Bd, 239 Mich App 525, 535; 609 NW2d 574 (2000) (<HOLDING>); Kitchen v Ferndale City Council, 253 Mich App Holdings: 0: holding that where the question to be resolved in the declaratory judgment action will be decided in a pending action it is inappropriate to grant a declaratory judgment 1: holding that the absence of a formal injunction does not preclude the plaintiff from recovering costs and attorney fees under mcl 152714 2: holding that the legal remedy of declaratory relief is adequate to trigger an award of attorney fees and costs under mcl 152714 3: holding that a declaratory judgment entitles a plaintiff to actual attorney fees and costs under mcl 152714 despite the fact that the trial court found it unnecessary to grant an injunction given defendants decision to amend the notice provision after plaintiffs filed the present suit 4: holding the district court is not required to grant a plaintiff leave to amend his complaint sua sponte when the plaintiff who is represented by counsel never filed a motion to amend nor requested leave to amend before the district court


Input: exception in Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)(“We conclude, then, that a federal court’s examination of whether a factor can ever be an appropriate basis for departure is limited to determining whether the Commission has proscribed, as a categorical matter, consideration of the factor. If the answer is no — as it will be most of the time — the sentencing court must determine whether the factor, as occurring in the particular circumstances, takes the case outside the heartland of the applicable Guideline.”) Moreover, what little case law there is on the subject makes clear that district courts can depart downward on the basis of factors relating to immigration-related factors. See, e.g., United States v. Farouil, 124 F.3d 838 (7th Cir.1997)(<HOLDING>); United States v. Charry Cubillos, 91 F.3d Holdings: 0: holding that deportable alien status is not a ground for departing downward 1: holding that the district court could consider increased sentence severity resulting from deportable alien status 2: holding that the district court cannot be faulted for failing sua sponte to also address whether the defendants deportable status would affect the severity of his sentence 3: holding that defendants status as a deportable alien could be considered by the district court at sentencing 4: holding that departure based on deportable alien status was prohibited


Input: within three months to revoke the license. Although plaintiff’s license was renewed during the pendency of the first proceeding before the ZBA, the mistaken issuance of a license in violation of an ordinance does not result in application of estoppel against the City. (See City of Chicago v. Unit One Corp. (1991), 218 Ill. App. 3d 242, 246, 578 N.E.2d 194, 197-98.) Moreover, since plaintiff was aware that his operation of the auto repair shop was in jeopardy when he received the renewal notice, he should have been on notice that the renewal was in error, or at least that it was contingent upon the ZBA’s ruling. As the City points out, if it were estopped from enforcing the ordinance because of a mistakenly issued or renewed l 5 Ill. App. 3d 109, 111, 113, 282 N.E.2d 739, 740, 742 (<HOLDING>). Accordingly, neither the oral assurances of a Holdings: 0: holding that allegations that the city arbitrarily applied a zoning ordinance were insufficient to state a substantive due process claim and stating in dicta that the decision would be the same even if the city had knowingly enforced the invalid zoning ordinance in bad faith a badfaith violation of state law remains only a violation of state law 1: holding that because the board of aldermen only decided whether to grant a variance under the zoning ordinance the superior court erred by determining the question of the constitutionality of the zoning ordinance which was never raised or considered by the board of aldermen 2: holding seniorhousing zoning ordinance invalid as applied 3: holding that religious corporation which owned property had standing to challenge zoning ordinance 4: holding that the city was not estopped from enforcing a zoning ordinance when a zoning department employee mistakenly stamped the plaintiffs application for a license to operate a laundromat to indicate compliance with the ordinance


Input: in determining the preclusive effects of a state court judgment.” Marrese v. Am. Acad, of Orthopaedic Surgeons, 470 U.S. 373, 381, 105 S.Ct. 1327, 1332, 84 L.Ed.2d 274 (1985) (cita tions omitted). Similarly, the Full Faith and Credit Clause requires recognizing state courts to determine the preclusive effect of a judgment in accordance with the rendering state's preclusion law. Kremer v. Chem. Const. Corp., 456 U.S. 461, 466, 102 S.Ct. 1883, 1889, 72 L.Ed.2d 262 (1982). 81 .We have observed that Florida courts abide a similarly stringent actually decided requirement: [P]reclusive effect is not given to issues which could have, but may not have, been decided in an earlier lawsuit between the parties. See, e.g., Acadia Partners, L.P. v. Tompkins, 673 So.2d 487, 488-89 (Fla. 5th DCA 1996) (<HOLDING>); Allstate Ins. Co. v. A.D.H., Inc., 397 So.2d Holdings: 0: holding party in breach could not maintain suit for breach of contract 1: holding that a cause of action for breach of contract accrues at the time of the breach 2: holding that a breach of contract claim against one defendant related back to interference with contract claim against that defendant and breach of contract claim against second defendant because it was based on same set of operative facts 3: recognizing that the elements of a claim for breach of contract are 1 existence of a valid contract and 2 breach of the terms of that contract 4: 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


Input: amend the judgment, it stated: [Kleenco’s counsel] has a point in that there are certain amount of expenses that should be deducted from the 5-50[sic]. This amount seems to be rather minuscule. The best this Court can estimate is approximately a dollar a day, or perhaps $30 at best. Viewing, however, that this is a fairly new vehicle, the use of its truck, United is only entitled to nominal loss of use damages because it failed to prove the associated costs which should have been deducted from the rental amount awarded. Ferreira, 44 Haw. at 576, 356 P.2d at 656 (“To authorize a recovery of more than nominal damages, facts must exist and be shown by the evidence which afford a basis for measuring the plaintiffs loss with reasonable certainty.”); Omura, 78 Hawai'i at 418, 894 P.2d at 115 (<HOLDING>). V. Lastly, Kleenco contends that the court Holdings: 0: holding that when plaintiff has proven injury but has failed to prove the amount of damages the plaintiff is only entitled to nominal damages 1: holding that the right to nominal damages was waived in a breach of duty action when plaintiff failed to raise the issue of nominal damages until after the verdict 2: holding that plaintiff was not entitled to a presumption of nominal damages when she had failed to request them 3: holding that a plaintiff who proves a cause of action under  1981 may recover punitive damages where the plaintiff is entitled to an award of compensatory damages even if nominal 4: holding that even though the plaintiff failed to prove that he suffered a meaningful injury he was nevertheless entitled to nominal damages for the defendants violation of his first amendment rights


Input: malicious, or fail[ed] to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” Id. In this consolidated appeal, Reberger disputes the validity of two of the three strikes relied upon by the district court, as well as the conclusion that he has not satisfactorily alleged that he is in imminent danger of serious physical injury. We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm. 1. The district court properly counted Reberger v. Offender Management Division, No. 3:12-cv-00293 as a strike, notwithstanding the fact that Reberger’s appeal of Offender Management was still pending at the time the district court denied him IFP status. See Coleman v. Tollefson, — U.S. -, 135 S.Ct. 1769, 1763, 191 L.Ed.2d 803 (2015) (<HOLDING>). 2. The district court properly counted Holdings: 0: holding that in considering dismissal of an appeal the court should exercise discretion to determine whether dismissal is appropriate in the circumstances presented by the case 1: holding that a prior dismissal on one of  1915gs enumerated grounds counts as a strike even if the dismissal is the subject of an ongoing appeal 2: holding district court dismissal of plaintiffs present action did not constitute prior action  and thus did not count as third strike 3: holding that plaintiffs were entitled to vacate final order of dismissal as void when they did not receive the motion for dismissal or notice of the hearing on the order until after the dismissal was entered 4: holding that a prior dismissal on a statutorily enumerated ground counts as a strike even if the dismissal is the subject of an appeal


Input: the practice of plea bargaining. Other Supreme Court cases sanction by implication a prosecutorial promise of leniency in exchange for truthful testimony. See Delaware v. Van Arsdall, 475 U.S. 673, 679-80, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (concluding that court’s refusal to allow defendant to question witness about dismissed charge violated Sixth Amendment right to confrontation); Roberts v. United States, 445 U.S. 552, 558, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980) (affirming sentence due in part to defendant’s refusal to cooperate with government in spite of being offered “favorable disposition of his case”); id. at 568, 100 S.Ct. 1358 (Marshall, J., dissenting) (expressly upholding plea bargaining process); Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (<HOLDING>). Circuit courts have been more explicit in Holdings: 0: holding prosecutions failure to disclose promise of leniency to witness provided in exchange for that witnesss testimony violated due process 1: holding that the fact that a prosecutor afforded favorable treatment to a government witness standing alone does not establish the existence of an underlying promise of leniency in exchange for testimony 2: holding that promises made by the prosecution to a witness in exchange for that witness testimony relate directly to the credibility of the witness 3: holding as brady violation prosecutions failure to disclose to defense that prosecution had agreed not to prosecute key witness in exchange for his testimony at trial 4: holding that prosecutions duty to present all material evidence to the jury was not fulfilled when it became known the government failed to disclose an alleged promise of leniency made to its key witness in return for his testimony


Input: *3 (Ky.Ct.App. Aug. 5, 2011). Greywolf held that, to toll the statute, a defendant’s concealment “must hide the plaintiffs cause of action in such a manner that it cannot be discovered by the exercise of ordinary diligence.” Ibid. The court held that media reports implicating the diocese put the plaintiff on constructive notice of its negligent hiring and entrustment, and that the plaintiff could not “remain oblivious to a cause of action when information was available that it existed” media reports are commonly held to end any period of fraudulent concealment. Ibid.; see also Moyers v. Roman Catholic Bishop, No. 2004-CA-001886-MR, 2005 WL 3116116, at *3 (Ky.Ct.App. Nov. 23, 2005); Azerot v. Roman Catholic Bishop, No. 2004-CA-000666-MR, 2005 WL 2899483, at *1 (Ky.Ct.App. Nov. 4, 2005) (<HOLDING>). Further retreating from per se findings of Holdings: 0: holding that private defendants were not entitled to qualified immunity but remanding for a determination of whether they were liable as government actors 1: holding that evidence of the defendants intimate relationship with the victims as well as the similarity of the manner and time frame of the commission of the sexualabuse offenses established that evidence from each victim supported the trial courts denial of appellants motion to sever 2: holding that an organization whose members are injured may represent those members even where the organization itself cannot show injury 3: holding that once the scene was secure exigent circumstances no longer existed and the police were required to obtain a search warrant 4: holding that sexualabuse victims were no longer entitled to tolling once widespread publicity revealed affiliations between the abuser and the organization they sought to hold liable


Input: did not ask for any relief in regard to this matter in her answer brief, or within her pleadings at trial. The case of Dehler v. Dehler, 648 So.2d 819, 821 (Fla. 4th DCA 1995), involved a dissolution of marriage where the final judgment failed to explain the status of any medical insurance which may have been reasonably available for the child, as required by Florida statutes. In that situation, this court held that, although the trial court was not presented with the issue, the issue needed to be decided. • The case was remanded so that the trial court could inquire into the availability of medical insurance and allocate responsibility for the child’s reasonable medical expenses between the two parties. See id. at 821; see also Zucker v. Zucker, 672 So.2d 604 (Fla. 4th DCA 1996) (<HOLDING>). Likewise, we must remand to the trial court Holdings: 0: holding that parents claims of outrage and negligent handling of a body were not subject to the medical malpractice statutes because hospital personnel did not engage in any medical skill or judgment in the disposition of the childs remains 1: holding that a state is required to provide medical care to incarcerated individuals 2: holding that state medical director of prison medical services corporation was not final policymaker 3: holding that charging fees for medical services did not violate the eighth amendment where prisoner did not allege denial of medical care 4: holding that remand was required due to fact that final judgment of dissolution did not contain any provision addressing status of any medical insurance for parties child or general responsibility for childs medical care


Input: 1983 case that defendant’s conduct violated his constitutional rights. Baker v. McCollan, 443 U.S. at 140, 99 S.Ct. at 2692, 61 L.Ed.2d at 439. Once it appeared that plaintiff was arrested pursuant to a facially-valid warrant, plaintiff also had the burden to satisfy the Franks standards for impeaching the documents underlying the warrant itself. State v. Groff, 323 N.W.2d at 211 (defendants attempting to impeach search warrant affidavit “failed to sustain their burden of proof under Franks”). The cases plaintiff has cited were concerned with the burden of proof on a different issue — a public official’s “defense of good faith and probable cause” which can give rise to qualified immunity. Pierson v. Ray, 386 U.S. 547, 555-57, 87 S.Ct. 1213, 1218-19, 18 L.Ed.2d 288, 295-96 (1967) (<HOLDING>); Dellums v. Powell, 566 F.2d 167, 176 Holdings: 0: holding that the defense of good faith and probable cause is available to officers in common law actions for false arrest and imprisonment as well as in actions brought pursuant to section 1983 1: holding that warrantless arrest based on probable cause did not violate the fourth amendment 2: recognizing the defense of good faith and probable cause in  1983 case involving unconstitutional warrantless arrest 3: holding  1983 action lies for warrantless arrest without probable cause 4: holding that the existence of probable cause is a complete defense to a  1983 claim alleging false arrest


Input: defense and/or indemnification for claims involving the conduct of law enforcement officers. Officer Gutierrez concedes that he is not a “law enforcement officer” within the meaning' of the TCA; however, he argues that he fits within another of the enumerated definitions of “public employee.” For the reasons that follow, while we agree that Officer Gutierrez is not a “law enforcement officer” within the meaning and definitions of the TCA, we disagree that he meets any alternate definition of a “public employee.” Officer Gutierrez Is Not a “Law Enforcement Officer” of a “Governmental Entity .M. 47, 897 P.2d 234 (concluding that district attorneys and staff were not “law enforcement officers’’); Dunn v. State ex rel. Taxation & Revenue Dep't, 1993-NMCA-059, ¶ 11, 116 N.M. 1, 859 P.2d 469 (<HOLDING>). {12} Here, Officer Gutierrez agrees that he Holdings: 0: holding that the decisions of administrative agencies of the state described by article vi section 29 of the constitution of new mexico include regulations adopted by a board emphasis added internal quotation marks and citations omitted 1: holding that the state has a compelling interest in protecting the citizens of minnesota from those who pose a severe threat to their health and safety citation omitted internal quotation marks omitted 2: holding the deprivation of the inmates property interest in his mail is not a cognizable constitutional injury given the availability of adequate state postdeprivation remedies under new york law internal quotation marks omitted 3: recognizing that the nsa qualifies as a withholding statute under exemption 3 because it refers to particular types of matters that are to be withheld internal quotation marks and citations omitted 4: holding that the director of the new mexico m otor v ehicle department who has statutory authority to make arrests was not a law enforcement officer because the vast majority of his time and effort are involved in administrative matters internal quotation marks omitted


Input: States v. Simmons, 374 F.3d 313, 319 (5th Cir.2004). They are, however, entitled to a jury instruction that “correctly reflect[s] the issues and the law.” See United States v. McKinney, 53 F.3d 664, 676 (5th Cir.1995). The instruction here did not meet that standard — the jury was left to decide the case bereft of a legal rule announced by the Supreme Court in a case that altered the landscape of federal tax prosecutions. Moreover, by including but failing to explain the full breadth of Cheek’s good-faith defense, the district court’s jury instruction risked implying — in direct conflict with Cheek — that the Montgomerys could not be acquitted on the basis of good faith unless their views were objectively reasonable. See United States v. Morris, 20 F.3d 1111, 1118 (11th Cir.1994) (<HOLDING>). That is because good faith is often equated Holdings: 0: holding that appellants fourteenth amendment due process claim did not require reversal where they failed to show that they were prejudiced 1: holding that a jury instruction compromised the appellants goodfaith argument because it did not make clear that a goodfaith belief by the appellants that they were complying with the tax laws whether or not objectively reasonable negates the specific intent element 2: holding in a tax fraud case that a goodfaith instruction was unnecessary because the trial judge adequately instructed the jury on willfulness 3: holding good faith jury instruction is not necessary when the court has given an adequate specific intent instruction 4: holding that plaintiffs did not have standing because they did not sue the party with the clear ability to act


Input: the Waterway, plaintiffs have not shown that they were aware of such a policy before they filed suit. Without such a showing, the existence of the policy is irrelevant. Unless plaintiffs refrained from suing based on their knowledge of the Corps’ bank protection policy, the substance of the policy — or any fluctuations thereto — could not possibly be a justification for their delay in bringing suit. That is not to say, however, that plaintiffs’ vague awareness of some nebulous Corps policy would automatically postpone the accrual of their claims. A promise of bank protection by the Corps would have to be specifically directed toward plaintiffs and sufficiently definite in detail to justify their failure to bring suit. See Applegate v. United States, 25 F.3d 1579, 1583-84 (Fed.Cir.1994) (<HOLDING>). In any event, the court need not decide Holdings: 0: holding that the uccs fouryear statute of limitations provision which barred an action by the plaintiff did not bar a thirdparty contribution and indemnity claim 1: holding that statute of limitations did not bar action where erosion process was gradual and government promised relief by enacting legislation authorizing construction of sand transfer plant 2: holding that the evidence was insufficient for the statute of limitations to bar recovery of a quantum meruit cause of action 3: holding that equitable estoppel may bar a partys assertion of a statute of limitations 4: holding that dismissal of prior action in louisiana federal court on the grounds of the statute of limitations bar subsequent action filed in minnesota federal district court


Input: Kawa must show “an invasion of a legally protected interest that is sufficiently concrete and particularized rather than abstract and indefinite.” Ga. State Conference of NAACP Branches v. Cox, 183 F.3d 1259, 1262 (11th Cir.1999). “The interest must consist of obtaining compensation for, or preventing, the violation of a legally protected right.” Vt. Agency of Natural Res., 529 U.S. at 772, 120 S.Ct. at 1862. The allegations in Kawa’s complaint do not state such a concrete and particularized injury. Although Kawa asserts it would have waited to research its ACA obligations, Kawa has not alleged that its ACA research is objectively worth less, or that Kawa has been actually harmed in a concrete way. See GrassRoots Recycling Network, Inc. v. E.P.A., 429 F.3d 1109, 1112 (D.C.Cir.2005) (<HOLDING>). Therefore, as set out in its complaint, Holdings: 0: holding that plaintiffs may have a property interest in real property 1: holding directors and officers liability policy was not property of the estate because it did not increase or decrease the worth of the bankruptcy estate 2: holding that the plaintiffs sufficiently alleged injury under the ucl fal and clra by asserting that the product they received was worth less than what they paid for it owing to defendants misleading labels 3: 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 4: holding the fourth element asks if but for the defendants actions the plaintiff would have been in a less harmful position


Input: and inadequate notice of claim was ineffective to toll the statute of limitations. [¶ 33] I do not disagree that this result can be perceived as harsh. The approach and analysis undertaken in the Edelman case arguably allows a more flexible and forgiving result. However, in Paradis, this Court had the opportunity to fashion a flexible and forgiving approach, but declined to do so. [¶ 34] If the Legislature had determined that the holding of Paradis was too harsh, it could have expressly uncoupled the notice and oath requirements when it amended the Act. See, e.g., Stockly v. Doil, 2005 ME 47, ¶14, 870 A.2d 1208 (“The Legislature is presumed to be aware of the state of the law and decisions of this Court when it passes an act.”); Taylor v. Town of Orono, 585 A.2d 807, 808-809 (Me.1991) (<HOLDING>); Townsend v. Me. Bureau of Pub. Safety, 404 Holdings: 0: holding that defective notice can be excused if there is substantial compliance with the maine tort claims 1: holding that because record did not contain notice of appeal in compliance with rule 3 there was no appellate jurisdiction and appeal must be dismissed 2: holding that substantial compliance is sufficient to satisfy the notice requirements of sdcl 3212 and 3 3: holding that waiver of federal tort claims act sovereign immunity is conditioned upon strict compliance with exhaustion requirement 4: holding that substantial compliance with notice is sufficient


Input: Trust Co., 220 F.Supp.2d 560, 564-65 (S.D.W.Va.2002) (compiling factors). The first factor, that of case-by-case analysis and employer discretion, favors the finding that the SAP is an ERISA plan. Before an employee will be paid severance benefits under the SAP, Defendant must determine, as to each employee, the employee’s (1) reason for leaving the company (for cause or no cause, voluntarily or involuntarily); (2) employment status (full-time or part-time); (3) length of service in years; and (4) weekly pay. (Pl.’s Mem. Law Opp’n Mot. Dismiss or, in the Alternative, to Make More Definite and Certain Ex. 1.) While most of these determinations require no managerial discretion, simply mathematical calculations, see, e.g., Tinoco v. Marine Chartering Co., 311 F.3d 617, 622 (5th Cir.2002) (<HOLDING>), courts across the country have held the Holdings: 0: holding calculating severance benefits based upon age years of service and pay required no discretion 1: holding that adea plaintiff had failed to make a prima facie case of age discrimination when he was replaced by someone only two years younger and within the protected age group and there was no other evidence of age discriminatory motive 2: holding that severance pay policy was part of employment contract 3: holding that a plan providing severance pay for reduction in work force simply did not contemplate the effect of a sale of a business on the availability of severance pay 4: holding that employee may claim contract created based on employer promise of severance pay to employee


Input: proof under the Guidelines requires only that the government establish relevant conduct by a preponderance of the evidence, see United States v. Kroledge, 201 F.3d 900, 908-09 (7th Cir.2000), a standard that supports a rebutta-ble presumption that all sales during the conspiracy were affected by the illegal agreement. See SKW Metals II, 195 F.3d at 93-94. (Newman, J., concurring) (requiring defendant prove that one or more sales were not affected by the conspiracy). Courts frequently require defendants to prove affirmative defenses by a preponderance of the evidence, see, e.g., United States v. Hunte, 196 F.3d 687, 693 (7th Cir.1999) (requiring defendant to prove basis for a downward departure by a preponderance of the evidence); United States v. Wicks, 132 F.3d 383, 389 (7th Cir.1997) (<HOLDING>). Evidence of the “rare circumstance” of a Holdings: 0: recognizing that sentencing facts are based on the evidence and testimony presented at sentencing under a preponderance of the evidence standard 1: holding that the government must prove the facts used in sentencing by a preponderance of the evidence 2: holding at trial a criminal defendant has the burden to prove his insanity by a preponderance of the evidence 3: holding that a defendant must prove an affirmative defense at sentencing stage by a preponderance of evidence 4: recognizing that mitigation of damages is an affirmative defense a party must plead and prove


Input: that Defendant suggests that the proceedings on remand constituted a separate case, we reject the argument. See State v. Belgarde, 62 Wash. App. 684, 815 P.2d 812, 816-17 (1991) (observing that a defendant’s retrial, following reversal of an earlier conviction, constituted further proceedings in the same case as opposed to new proceedings or a new case). {18} Our reported decisions indicate that, in cases such as this where a new trial is conducted on remand, “whether the original judge would reasonably be expected ... to have substantial difficulty in putting out of his or her mind previously-expressed views or findings,” is to be taken into consideration. State v. Ricky G., 110 N.M. 646, 649, 798 P.2d 596, 599 (Ct.App.1990) (internal quotation marks and citation omitted) Cir.1983) (<HOLDING>); In re S.G., 91 P.3d 443, 447 Holdings: 0: holding that it was not reversible error to fail to answer the jurys question where the trial judge was presiding over closing arguments in a codefendants case when the question was asked and the jury reached a result before the judge could confer with the parties 1: holding that the judges stated belief that the defendant was guilty did not disqualify the judge from presiding on remand 2: holding that judge presiding at trial may not testify in that trial as witness 3: holding that trial judge was not required to rule on motion to disqualify which was never served on judge as required by florida rule of judicial administration 2330c 4: holding that the test for good faith is the actual belief of the party and not the reasonableness of that belief


Input: respect to the adjudication, denial, or payment of benefit claims under (i) the Sunflower Self-Insured Medical Plan; (ii) any ERISA plan allegedly created by the Consent Judgment ...; or (iii) the NRECA Medical Plan from which Ms. Spires benefits were paid at the time this dispute arose” (Doc. 48 at 22). Because the consent judgment is not a "plan, fund, or program” under ERISA, Spires’ ERISA claim fails and the court expresses no opinion on whether NRECA was appropriately named as a defendant under ERISA. Likewise, the court's ruling also renders unnecessary any consideration of defendants' argument that Spires' ERISA claim is barred for failure to exhaust all of the administrative remedies available to her. See Held v. Mfrs. Hanover Leasing Corp., 912 F.2d 1197, 1206 (10th Cir.1990) (<HOLDING>). 5 . The fact that Spires did not rely on the Holdings: 0: recognizing that exhaustion of state administrative remedies is not required as a prerequisite to bringing an action pursuant to  1983 1: holding exhaustion of administrative remedies not required prior to bringing statutory claim under erisa 2: recognizing that exhaustion of state administrative remedies is not a prerequisite to bringing a  1983 action 3: holding that exhaustion of administrative remedies is a mandatory prerequisite to a lawsuit under foia 4: holding that exhaustion of administrative ie company or planprovided remedies is an implicit prerequisite to seeking judicial relief pursuant to erisa


Input: decision to award child support, including the financial resources of the parents, the physical and emotional needs of the children, the educational needs of the parents and children, and any other factor that it finds relevant. See id. § 4106(f)(2); 15 V.S.A. § 659. Indeed, OCS may decline altogether to enforce a support obligation if, in its discretion, it determines that such an action would not be in the best interests of the affected child. See 33 V.S.A. § 4106(f)(2). Thus, OCS enforcement actions on behalf of ANFC recipients are broadly discretionary, and serve a variety of state policies and interests wholly apart from the collection of debts. Its duties, in sum, are uniquely governmental and find no private analog in our common law. See LaFond, 167 Vt. at 409, 708 A.2d at 920 (<HOLDING>). Accordingly, the action against OCS is barred Holdings: 0: holding that licensing and inspection of daycare facilities are inherently governmental functions which find no private analog or duty of care in our common law 1: recognizing private right of action 2: holding that duty of county and inspector under statute and ordinance to ensure safety of playground equipment at a daycare center was owed to public generally and could not be the basis for a negligence cause of action brought by a parent of an injured child 3: holding that absence of private analog to states licensing and regulation of daycare facilities barred negligence action 4: holding cause of action for negligence against manufacturer of defective buses was barred by the economic loss rule notwithstanding absence of privity


Input: see also Kinnard v. United States, 313 F.3d 933, 935 (6th Cir.2002) (explaining that, when analyzing whether a defendant was prejudiced by his attorney’s performance, “it is necessary to determine if the proceeding was fundamentally unfair or unreliable; a court should not focus the analysis on the outcome”) (citing Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993)). Whether an error actually prejudiced a defendant is weighed against the “totality of the evidence before the judge or jury.” Strickland, 466 U.S. at 695, 104 S.Ct. 2052. A verdict “only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.” Id. at 696, 104 S.Ct. 2052; see also Odem v. Hopkins, 382 F.3d 846, 851-52 (8th Cir.2004) (<HOLDING>); United States v. Bavers, 787 F.2d 1022, 1030 Holdings: 0: holding improperly admitted evidence was harmless error given the overwhelming evidence of guilt 1: holding stricklands prejudice prong was not met because of overwhelming evidence of guilt 2: holding the error harmless in light of the overwhelming evidence of guilt 3: holding that prejudice was not shown where there was overwhelming evidence of guilt 4: holding that trial courts witness interrogation did not cause defendant prejudice when there was already overwhelming evidence showing defendants guilt


Input: (3) whether the loss was an “accident” is determined by the intent of the insured and Ludy did not intend to sustain the loss of its property, thus, the loss occurred as result of an accident on Ludy’s part, and (4) the contract should be strictly construed against Florists since it failed to identify any covered causes of loss on the Causes of Loss Form. Doc. #45 (Ludy’s Mem. Opp’n) at 13-15; Doc. # 48 (Ludy’s Mem. Supp.) at 8-10. c. Analysis The basic requirement for coverage under the Legal Liability form is that the insured sustain a loss as a result of “direct physical loss or damage.” Neither party points to case law that either supports or contradicts the proposition that funds deposited into a bank account, such as th 5, 2005 U.S. Dist. LEXIS 24183 (N.D.Ohio Oct. 19, 2005) (<HOLDING>). Accordingly, funds deposited into a bank Holdings: 0: recognizing that exempt property ceases to be property of the estate 1: recognizing that property not subject to physical seizure such as mutual fund shares are intangible property 2: recognizing limited partnership interest as intangible personal property 3: holding that plaintiffs may have a property interest in real property 4: holding that property includes every intangible benefit and prerogative susceptible of possession or disposition