Input: His hands, everything, was shaking." Haley's mouth was dry and he was licking his lips, stuttering, shuffling his feet, and nervously pacing in circles. Daniel was also extremely nervous and exhibited a facial twitch and shaking hands and neither Dunlap nor Daniels knew their point of destination. Miller informed Haley that he was free to leave and asked him if he had any drugs or anything illegal in the vehicle, and Haley responded, "No. You want to check it out?" Haley asked the officer, "would you want to look at the bags or something?" Lastly, when Haley removed the bags from the trunk of nt officer's ability to distinguish between innocent and suspicious actions. United States v. Wood, 106 F.3d 942, 946 (10th Cir.1997); see also People v. Ratcliff, 778 P.2d 1371, 1379 (Colo.1989) (<HOLDING>). Here, that objectively reasonable suspicion Holdings: 0: holding experts experience knowledge and training is considered in determining reliability 1: holding that a defendants actions while appearing innocent to a casual observer assume added significance when considered in the context of a police officers training and experience in drug enforcement 2: recognizing that officers are entitled to rely on training and experience in forming belief that drug transaction has occurred 3: holding that a police officers opinion that a defendant was most definitely engaged in drug dealing was not proper lay testimony because it was based on the officers specialized training in narcotics and extensive experience in methamphetamine cases 4: holding officer could testify based on his training and experience that a defendants actions were consistent with selling cocaine


Input: and “decreased short term survival” is, in effect, a loss of chance instruction and contrary to Indiana law. We agree. We first note that this instruction again correctly states the § 323 standard of proximate causation. However, this instruction erroneously defines the “harm” as the loss of a chance of survival. This instruction effectively combines the loss of chance doctrine and the § 323 standard. However, these options are alternative and incompatible approaches for imposing liability in cases such as this. The supreme court in Mayhue clearly adopted the § 323 approach in this class of cases while rejecting the loss of chance doctrine. See Mayhue 653 N ed from Cummings’s claim for pain and suffering. See Kolkman v. Falstaff Brewing Corp., 511 N.E.2d 478, 480 (Ind.Ct.App.1987) (<HOLDING>), reh’g denied, trans. denied. Therefore, we Holdings: 0: holding that as a general rule a claim for spousal loss of consortium requires proof of a tortious act that caused the claimants spouse personal injury 1: holding that plaintiffs claim for loss of consortium can proceed even where the injured spouse was contributorily negligent 2: recognizing that loss of consortium is a right of action separate from that of the spouse 3: holding that absent an actionable injury to one spouse the other spouse cannot recover for loss of consortium 4: holding that wifes recovery for loss of consortium should not be reduced by the proportion of negligence attributable to husband because claim for loss of consortium is independent of the damages claim of the injured spouse


Input: noting that the additional materials provided "are submitted only to assist the Court in exercising its discretion in ruling on the Motion to Strike under Rule 14(a)." Third-Party Defendants’ Brief at 9 n. 9. PFM argues that it is really a motion for summary judgment. Since the court is not considering the materials outside the pleadings, the motion should be regarded as one to dismiss. 5 . The Court also declined in both cases to create an implied right to contribution under federal common law. Northwest Airlines, 451 U.S. at 98, 101 S.Ct. at 1584; Texas Indus., 451 U.S. at 646, 101 S.Ct. at 2069. 6 . This conclusion is inconsistent with this court’s earlier decision in Phillips v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 4-81-394, slip op. at 12 (D.Minn. July 27, 1984) (<HOLDING>). The issue of contribution was not fully Holdings: 0: recognizing the right under federal maritime law to contribution or indemnity from another tortfeasor 1: recognizing contribution in the appropriate case 2: recognizing that prior to 1949 when the statute permitting contribution among joint tortfeasors was enacted no right of contribution existed between jointtortfeasors in delaware 3: recognizing right of guarantor to contribution against coguarantors 4: recognizing a right to contribution


Input: the difference between it and the previous provisions in Section 70(a)(5) of the Bankruptcy Act. There is no question that the language has changed. The significance of this change in concept clearly indicates that the reliance of the Debtor on the case of In re Edgar, supra, is misplaced. The Edgar decision involved the interpretation of Section 70(a)(5) of the Bankruptcy Act of 1898, and the present controversy is governed by Section 541(a)(5)(A) of the Bankruptcy Code. Thus, the decision in Edgar no longer represents the controlling law under the Code. In re Kragness, 58 B.R. 939 (Bankr.D.Or.1986); In re Hersloff, 147 B.R. 262 (Bankr.M.D.Fla.1992); In re Gower, 184 B.R. 163 (Bankr.M.D.Fla.1995). In its reasoning, the Kragness Court cites In re Hecht, 54 B.R. 379 (Bankr.S.D.N.Y.1985) (<HOLDING>). The Bankruptcy Court for the Southern Holdings: 0: holding that payments made to a debtor from inter vivos trusts within 180 days of filing the petition are not interests by way of bequest devise or inheritance and are not part of the bankruptcy estate 1: holding inheritance received by debtor more than 180 days after filing but before conversion is property of chapter 7 estate 2: holding noncompete payments were not exempt from the debt ors bankruptcy estate as earnings from postpetition services under  541a6 because the noncompete agreement was inextricably intertwined with the debtors sale of stock that was an includable bankruptcy asset that predated debtors bankruptcy petition 3: holding that income payment debtor received from spendthrift trusts or was entitled to receive by terms of the trusts within 180 days of filing of debtors bankruptcy petition constituted bequests and became property of debt ors estate under  541a5a 4: holding that distributions from an inter vivos trust do not qualify as bequests and  541a5a does not operate to bring such distributions into the bankruptcy estate


Input: she argues that that affidavit demonstrates that Mandeville’s testimony regarding DMV complaints about Bucci is not worthy of belief. It is important to note, however, that San Bento said in his affidavit that he did not recall making any complaints about Bucci and that he found her to be “professional, efficient and competent.” But Mandeville never said that it had been San Bento who had made a complaint to her about Bucci. Indeed, other employees from the DMV, or employees from motor-vehicle departments from other states, may well have complained about Bucci’s performance. When a plaintiff attempts to counter a claim by an employer that it fired an employee for poor performance, it is simply not sufficient for a plaintiff to present evidence that her performance wa (7th Cir.2007) (<HOLDING>). Further, the policy states that there are Holdings: 0: holding that inconsistency in employers reasons for the termination is an indication of pretext 1: holding that the statement in the employers progressive discipline policy that in situations where employee behavior warrants immediate termination the stages of this process do not need to be followed granted the employer unbounded discretion to discharge employees without following the guidelines 2: holding failure to follow progressive discipline does not demonstrate pretext when use of the policy is entirely discretionary 3: holding no pretext for not following progressive discipline where policy contemplated immediate termination for certain offenses 4: holding failure to follow progressive discipline policy does not constitute pretext when employer reserves right to fire atwill employees without notice


Input: disparity exists between the parties, such that one party may be inhibited from preparing or presenting a claim, the trial court should liberally exercise its discretion so as to remove that inhibition and assist the needy party”). In this case, an allowance of attorney fees against an intervening third party, particularly when incurred in a collateral proceeding to enforce a judgment, would do nothing to advance the statutory purpose of equalizing the economic resources between the divorcing parties. {20} We acknowledge that divorce actions may sometimes include parties, other than husband and wife, who join in the action because they assert a right or interest in the subject of the dissolution proceedings. See Greathouse v. Greathouse, 64 N.M. 21, 23, 322 P.2d 1075, 1076 (1958) (<HOLDING>); Ruybalid v. Segura, 107 N.M. 660, 663, 763 Holdings: 0: holding there is no duty to third parties on the part of a premises owner who could not have foreseen the criminal acts of third parties 1: holding the family court has jurisdiction to join third parties when property is alleged to be marital but is owned by a third party 2: recognizing the rights of third parties who were not signatories to a construction contract 3: holding that a plaintiff must allege either an interference with specific third parties or an identifiable class of third persons 4: recognizing that either party to a divorce action may bring in third parties who claim an interest in the property alleged to be community or third parties themselves may intervene and have their rights therein determined


Input: at the time of leasing, and of the continuing supervision of the federal agencies involved over future activities, the agency’s decision in this case that the lease issuance itself was not a major federal action significantly affecting the quality of the human environment was not unreasonable. Id. at 624 (emphasis added). Park County has been overruled to the extent it held that a reasonableness standard of review should be used when reviewing an agency’s decision to not prepare an EIS. In Marsh, 490 U.S. at 385, 109 S.Ct. 1851, the Court held that an agency’s decision to not prepare an EIS or to not supplement an existing EIS should only be reversed when it is arbitrary and capricious. See also Village of Los Ranchos de Albuquerque v. Marsh, 956 F.2d 970, 972-73 (10th Cir.1992) (<HOLDING>). Nevertheless, according to Pen-naco, Park Holdings: 0: holding that where the murder and robbery occurred in one county but the plan was hatched in another county and the body was subsequently returned to that other county both counties had jurisdiction to try the appellant 1: holding that the grant county prosecutor had a statutory duty to be legal advisor to the county clerk even though she was not embroiled in litigation in which the county was the real party in interest 2: recognizing county officers as  those whose general authority and jurisdiction are confined within the limits of the county in which they are appointed who are appointed in and for a particular county and whose duties apply only to that county and through whom the county performs its usual political functions  3: recognizing park county was overruled in part by marsh 4: holding county clerk sued in official capacity was entitled to the immunity the county enjoyed


Input: noted, the misrepresentations were actionable “because they caused him to enter into an agreement whereby he made an unfavorable purchase” and, thus, the claims related to the agreement. Id. The allegations in this case are analogous as Plaintiffs allege that Defendants’ misrepresentations caused Plaintiffs to sign up for HighBeam’s free trial, which necessitated agreeing to the clickwrap agreement. If Plaintiffs had not entered into the Agreement, they would not have sustained any losses. The cases Plaintiffs rely on in which courts held that forum selection clauses did not apply arose from factual scenarios that are easily distinguishable from the case at hand. See Bay State Anesthesia Inc. v. Mallinckrodt, Inc., No. CIV.A. 02-11174RWZ, 2002 WL 31761286, at *1 (D.Mass. Dec. 6, 2002) (<HOLDING>); Pixel Enhancement Labs., Inc. v. McGee, No. Holdings: 0: holding that a forum selection clause was not enforceable against defendants that were not parties to the contract 1: holding that the plaintiffs claims arose from a certain contract because the subject matter of the plaintiffs suit was intertwined with requirements referred to in the contract 2: holding that the plaintiffs claims fell outside the scope of the forum selection clause because they were either not related to the contract such as claims that the defendants made disparaging and untrue statements to plaintiffs customers  or concerned conduct that occurred after the contract was terminated 3: holding that the forum selection clause at issue encompassed both contract and tort claims 4: holding that claims were not related to a license agreement which contained a forum selection clause in part because the bulk of the claims were against a defendant who was not a party to the agreement for breaches of employment contracts which did not contain forum selection clauses and for disclosure of trade secrets


Input: at 324 (noting that “materially adverse employment action requires more than trivial, subjectively perceived incon verbenees.” (citations omitted)). Rather, although the demotion was intended to be temporary, in light of the fact that months went by without Sensing being scheduled for work or contacted regarding the IME that could allow her to return to work, we hold that Sensing has adduced sufficient facts to establish that Outback’s actions were nevertheless “materially adverse.” Id.; Gu v. Boston Police Dept., 312 F.3d 6, 14 (1st Cir.2002) (listing “demotions [and] disadvantageous transfers or assignments” as examples of “material changes” in working conditions); see also Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 71-73, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (<HOLDING>). Finally, having concluded that a reasonable Holdings: 0: holding that assignment of unfavorable class schedules did not constitute an adverse employment action absent evidence of materially adverse consequences 1: holding that suspension with pay was not adverse employment action 2: holding that potentially indefinite suspension of employee from work without pay could constitute materially adverse employment action even where employer awards full backpay for the entire period and that reassignment of responsibilities could constitute materially adverse employment action even absent demotion 3: holding that a suspension with pay may constitute materially adverse action for the purposes of retaliation claims depending on the facts of the case 4: holding that investigatory suspension with pay was not adverse employment action


Input: waterways.” It is well established that “ ‘an expert’s opinion is of no greater probative value than the soundness of his reasons given therefor will warrant.’ ” Surkovich v. Doub, 258 Md. 263, 272, 265 A.2d 447, 451 (1970) (quoting Miller v. Abrahams, 239 Md. 263, 273, 211 A.2d 309, 314 (1965)). An expert opinion “derives its probative force from the facts on which it is predicated, and these must be legally sufficient to sustain the opinion of the expert.” State Health Dep’t v. Walker, 238 Md. 512, 520, 209 A.2d 555, 559 (1965). See also Jones v. State, 343 Md. 448, 682 A.2d 248 (1996) (expert testimony by police officer that he was able to identify crack cocaine by touch was nothing more than a conclusion); Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 625 A.2d 1005 (1993) (<HOLDING>); Wood v. Toyota Motor Corp., 134 Md.App. 512, Holdings: 0: holding that animal studies can be a proper foundation for an experts opinion but that those opinions must be sufficiently supported by the animal studies on which they purport to rely 1: holding that a reliable differential diagnosis alone may provide a valid foundation for a causation opinion even when no epidemiological studies peerreviewed published studies animal studies or laboratory data are offered in support of the opinion 2: holding inadmissible auto reconstruction experts opinion that height of bumper on truck was unreasonably dangerous where height complied with industry standards and no scientific studies or emerging consensus supported opinion 3: holding that an experts opinion must be based on facts in evidence or within his or her knowledge and that the admission of an experts opinion is reviewed for an abuse of discretion 4: holding that an expert opinion on a question of law is inadmissible


Input: the Dominican court did not have subject matter jurisdiction in the Dominican divorce. The Dominican court did not have subject matter jurisdiction because neither Dubie nor Sylvie was a resident or domiciliary of the Dominican Republic at the time the Dominican court granted the Dominican Decree. Hence, the Dominican Decree supposedly dissolving the marriage between Du-bie and Sylvie is void ab initio. Geraldine also claims that the Dominican Decree is not entitled to comity, recognition, or enforcement in Hawai'i. She argues that “a foreign ‘ex parte’ divorce for cause between pe a trial court did not err by refusing to recognize Egyptian divorce decree where neither party was domiciled in Egypt at time decree was issued); Sargent v. Sargent, 225 Pa.Super. 1, 307 A.2d 353, 356 (1973) (<HOLDING>); Clark v. Clark, 192 So.2d 594, 596-97 Holdings: 0: recognizing that an effective waiver is not an absolute bar to appellate review 1: holding that an absolute prerequisite to judicial recognition of an outofstate divorce is that the plaintiff must have resided in the  country for a minimum period of residency and the residency be accompanied by domiciliary intent  2: holding that the plaintiff established a right to a slogan based on evidence of public recognition of its use by the plaintiff 3: holding that prosecutors have absolute immunity 4: holding any fact that increases the mandatory minimum is an element that must be submitted to the jury


Input: rule on at least four occasions since Beam was decided. In Beam/Harper, the Supreme Court rejected the analysis of Sunburst/Chevron in retroactivity determinations for federal constitutional rulings, but the Court did not formally overrule those cases. Nor did the Court suggest that the principles underlying Sunburst/Chevron were unsound for purposes of state court retroactivity analysis. Therefore, I am satisfied that we remain bound by the holding in Mendes. Finally, I also disagree with the majority’s application of the Mendes factors. First, both parties in this case relied exclusively, and justifiably, on the rule established in Adams. Retroactive application of Carl II would undermine the reliance and expectations of the parties. See French, supra note 3, 658 A.2d at 1031-32 (<HOLDING>). Second, because the previous law concerning Holdings: 0: holding that bradley governs whether a statute is to be applied prospectively or retroactively 1: holding that new rule applied purely prospectively primarily because of reliance factor 2: holding that even when legislature only sought to clarify a statutory ambiguity by defining a term the amendment applied prospectively because the clarified intent was not clearly expressed in original version of the statute 3: holding interest rate and conversion factor for future years constant in application of 13313 rule and applying the rule only prospectively 4: holding that reasonable reliance upon the old rule is an important factor supporting prospective application of the new rule


Input: to the arbitration clause is preempted by the Communications Act, the issue of unconscio-nability is not even in play. Moreover, while on appeal Boomer perfunctorily states in a footnote that Ting collaterally estops AT & T from arguing that the Communications Act preempts his state law challenges to the arbitration clause, he fails to support this position with any legal analysis or citation. Therefore he has waived that argument. Rekhi v. Wildwood Indust., Inc., 61 F.3d 1313, 1317 (7th Cir.1995). Finally, even had Boomer not waived this argument, because the issue of preemption involves a pure question of law and because Ting is currently on appeal to the Ninth Circuit, we would still conclude that Ting has no preclusive effect. See, e.g., Chicago Truck Drivers, 125 F.3d at 532-33 (<HOLDING>) (internal quotation omitted). 11 . In Ting, Holdings: 0: holding that the doctrine of collateral estoppel applies when an issue of ultimate fact has necessarily been determined by a valid final judgment 1: holding that collateral estoppel did not bar the defendant from relitigating a pure question of law and noting that that is especially true when the issue is of general interest and has not been resolved by the highest appellate court that can resolve it 2: holding that the court will not consider an issue not raised in the district court unless 1 it involves a pure question of law and refusal to consider it would result in a miscarriage of justice 2 the party raising the issue had no opportunity to do so before the district court 3 the interest of substantial justice is at stake 4 the proper resolution is beyond any doubt or 5 the issue presents significant questions of general impact or great public concern 3: holding that generally the question of waiver and estoppel is a question of fact 4: holding that the defendant though not a party to the prior litigation could assert collateral estoppel defensively to preclude the plaintiff from relitigating factual issues that the plaintiff had previously litigated and lost


Input: faith, excused the wrong two alternates. Because of this mistake, the two alternates from the bottom of the list — that is, the two alternates who should have been excused pursuant to Rule 6(f) — were allowed to stay and serve on the grand jury panel. Under these circumstances, these two alternates should be deemed de facto grand jurors; their participation on the grand jury panel does not invalidate the acts of that panel. Conclus at 193. 4 . Id. 5 . See Supreme Court Order No. 1115. 6 . 783 P.2d 1173, 1177 (Alaska App.1989). 7 . See id. at 1177-78. 8 . See Bobby v. State, 950 P.2d 135, 138 (Alaska App.1997) (the superior court's factual determinations will stand unless the defendant shows them to be clearly erroneous). 9 . See Hampton v. State, 569 P.2d 138, 148-49 (Alaska 1977) (<HOLDING>); Peterson v. State, 562 P.2d 1350, 1366 Holdings: 0: holding right of accused to trial by impartial jury justified postverdict protection of jurors from harassment and did not violate first amendment 1: holding that a criminal defendants right to an impartial jury is guaranteed by article 1 section 9 of the pennsylvania constitution 2: holding that a defendant could not establish stricklands prejudice prong because any erroneous exclusion of an impartial juror was harmless because we have every reason to believe the replacement was also an impartial juror the defendant does not dispute that he was convicted and sentenced by an impartial jury and he presents no reason to think that a jury composed of a slightly different set of impartial jurors would have reached a different verdict 3: holding that the defendants right to an impartial jury was not impaired when there was no common thread or similarity among the group of excluded jurors 4: holding that a defendants claim that a jury was not impartial must focus on the jurors who ultimately sat


Input: (“The most adequate plaintiff shall, subject to the approval of the court, select and retain counsel to represent the class.”). Courts typically do not disturb a lead plaintiffs choice of counsel unless doing so is necessary to protect the interests of the class. See Cavanaugh, 306 F.3d 726, 733 (9th Cir.2002) (“[T]he district court must approve the lead plaintiffs choice of counsel, but Congress gave the lead plaintiff, and not the court, the power to select a lawyer for the class.”). The presumption that a lead plaintiff fulfills the typicality and adequacy requirements can be rebutted by a showing that the plaintiff is in fact not adequate or will be subject to unique defenses. See, e.g., See In re Network Assoc., Inc. Sec. Litig., 76 F.Supp.2d 1017, 1029 (N.D.Cal.1999) (<HOLDING>). 1. The Pension Fund Group The Pension Fund Holdings: 0: holding that a plaintiff cannot avoid the securities fraud exception by pleading mail fraud or wire fraud if the conduct giving rise to those offenses also amounts to securities fraud 1: holding that under oklahoma law a bad faith claim  premised on inadequate investigation must be supported by a showing that material facts were overlooked or that a more thorough investigation would have produced relevant information 2: holding that a government employee has a privacy interest in any file that reports on an investigation that could lead to the employees discipline or censure 3: holding that the sixth circuit like most circuits has not recognized a substantive due process claim based on an inadequate investigation 4: holding presumptive lead plaintiff inadequate due to unrelated fraud investigation


Input: CURIAM. Pursuant to appellee’s proper confession of error, the final order on appeal is reversed and the cause is remanded to the trial court with directions to hold an evi-dentiary hearing on appellant’s motion to vacate. See Johnson v. State, Dep’t of Revenue ex rel. Lamontagne, 973 So.2d 1236, 1239 (Fla. 1st DCA 2008) (<HOLDING>). ROWE, MAKAR, and KELSEY, JJ., Holdings: 0: holding that absent record refutation of allega tions in the motion for relief from judgment allegations which if proven would establish that the judgment is void the trial court must conduct an evidentiary hearing 1: holding that a default judgment was not void because the bankruptcy court that entered the judgment had proper jurisdiction over the party seeking relief 2: holding void judgment must be vacated 3: holding that in ruling on a motion for summary judgment the trial court is limited to the grounds raised in the motion 4: holding that a court considering a request for an evidentiary hearing must take into account the deferential standards of  2254d and a hearing is not required if the record refutes the applicants factual allegations or otherwise precludes habeas relief


Input: what their public officers are doing in the discharge of public duties against the interest of the general public in having the business of government carried on efficiently and without undue interference. Stone, at 681. The Alaska court was quick to point out that this balance does not interfere with any preference for disclosure established by its public records act because the burden is still on the agency to show that the public interest weighs on the side of nondisclosure. Anchorage Daily News, at 591. While we recognize that the public has some degree of interest in disclosure of the evaluations of prosecutors, in light of the potential harm disclosure could cause, we hold that legitimate public concern is lacking in this case. Cf. Stern v. FBI, 737 F.2d 84, 93 (D.C. Cir. 1984) (<HOLDING>). Disclosure could harm the public interest in Holdings: 0: holding that the disclosure is a public disclosure within the meaning of the fca if the the prior public disclosure  contained enough information to enable the government to pursue an investigation against the defendant 1: holding that public interest based only on a general notion of public servant accountability does not necessarily require disclosure 2: recognizing the public interest exception 3: recognizing that public utilities affect the public interest in that they render essential public services to a large number of the general public 4: holding that the only relevant public interest in disclosure is the extent to which disclosure would serve the core purpose of the foia which is contributing significantly to public understanding of the operations or activities of the government


Input: because he has alleged a sincerely held religious belief, so his Free Exercise Clause challenge thus turns on whether the State’s interest in compliance with the Equal Protection Clause is reasonably related to legitimate penological interests. Potential legal liability may constitute a legitimate penological interest under Turner. See Acorn Inv., Inc. v. City of Seattle, 887 F.2d 219, 226 (9th Cir.1989) (indicating that compliance with an ordinance constitutes a “legitimate interest”); Victoria W. v. Larpenter, 369 F.3d 475, 486 (5th Cir.2004)' (noting that the threat of legal liability stemming from prison escapes gave the state a legitimate penological interest in restricting prisoner access to off-site medical care); cf. Goodwin v. Turner, 908 F.2d 1395, 1399 n. 7 (8th Cir.1990) (<HOLDING>). As we discuss in Part V.C, there is a Holdings: 0: holding that because the settlement agreement here specifically did not contain any admission of liability the plaintiff must therefore prove some liability on the part of defendant 1: holding that exculpatory clause in health club membership did not exculpate the facility from liability for a personal injury stemming from the facilitys negligence because the clause did not use the term negligence fault or equivalents 2: holding that to establish tort liability in a negligence action there must be a legal duty on the part of the defendant to plaintiff 3: holding that the state did not have a legitimate penological interest stemming from potential legal liability in part because the grounds for liability were farfetched 4: holding immunity from liability is not jurisdictional


Input: argument. Pursuant to 29 U.S.C. § 626(e)(2), the statute of limitations may be tolled up to one year for the period during which the EEOC attempts compliance with the ADEA’s requirements through conciliation. Therefore, together with the extension for willful violations, conciliation may extend the statute of limitations for a total of four years. O’Rourke v. Continental Casualty Co., 983 F.2d 94, 95 (7th Cir.1993). The conciliation period begins, thereby tolling the filing period, when the EEOC issues a letter of violation. E.E.O.C. v. Barrett, Haentjens & Co., 705 F.Supp. 1065, 1069 (M.D.Pa.1988) (citing the Congressional and Administrative News); U.S. Equal Employment Opportunity Commission v. Francis W. Parker School, 91 C 4674, 1993 WL 106523, at *4 (N.D.Ill. Mar. 24, 1993) (<HOLDING>); but see Equal Employment Opportunity Holdings: 0: holding that the 120day filing period is subject to equitable tolling and addressing circumstances warranting equitable tolling 1: holding that the charge was timely when filed within the statute of limitations period even though served after the period 2: holding that the timely filing of an eeoc charge is subject to waiver estoppel and equitable tolling 3: holding that failure of eeoc to transmit charge to phrc within limitations period was subject to equitable tolling where plaintiff requested crossfiling in the cover letter attached to the eeoc charge on the first page of the charge itself and on an official form used by the eeoc for requests for dualfiling 4: holding that eeoc phone calls served to commence the tolling period


Input: directs us is an amended complaint (the “Second” complaint) that Lynchval filed sometime after the original complaint and sometime before the SASC. This complaint contains the new allegations present in the SASC. But Winklevoss has no proof that it tendered this complaint to Federal, or that Federal knew about it through other means. Moreover, just as the SASC does not “clarify” the original complaint, the Second complaint (which mirrors the SASC in all relevant respects) likewise fails to “clarify” the original complaint. These facts render Winklevoss’ cited authority inapposite. Those cases all involved vague complaints that were clarified by later fact discovery, or that, liberally construed, held the potential for coverage from the very beginning. See Travelers, 974 F.2d at 829 (<HOLDING>); Kufalk, 636 F.Supp. at 311-12 (complaint’s Holdings: 0: holding that unintended damage to a pipeline caused by the defective coating supplied by insureds subsidiary was caused by an occurrence within the meaning of the liability policy 1: holding a manufacturer strictly liable in tort for injury to plaintiff caused by defective power tool 2: holding that the complaints allegations that the lithograde polystyrene sheets supplied by penda were unusable and unacceptable could be read to claim property injury in light of deposition testimony that plaintiff sought compensation for damages caused by the defective sheets 3: holding that a  1983 claim for damages was not prohibited by claim preclusion because the plaintiff could not have sought damages in his prior article 78 proceeding arising out of the same facts 4: recognizing cause of action for products liability in the absence of privity of contract in light of the foreseeable risk of harm caused by defective automobiles


Input: through the courts. {13} Finding that the issue was adequately preserved also complies with the New Mexico appellate courts’ approach to “construe the rules of appellate procedure liberally so that causes on appeal may be determined on their merits.” Danzer v. Prof'l Insurors, Inc., 101 N.M. 178, 180, 679 P.2d 1276, 1278 (1984), (cited with approval in Aken v. Plains Elec. Generation & Transmission Coop., Inc., 2002-NMSC-021, ¶ 10, 132 N.M. 401, 49 P.3d 662 (2002)). {14} Finally, and alternatively, the Rules of Appellate Procedure specifically authorize this Court, at our discretion, to review an issue that was not properly preserved if the issue is of “general public interest.” Rule 12-216(B); see also Pineda v. Grande Drilling Corp., 111 N.M. 536, 539, 807 P.2d 234, 237 (Ct.App.1991) (<HOLDING>); United Salt Corp. v. McKee, 96 N.M. 65, 67, Holdings: 0: holding that when an agency fails to follow the proper procedure under the illinois administrative procedure act for the adoption of rules the rule is invalid 1: holding that the rules governing pleading in a workmens compensation case do not mirror the pennsylvania rules of civil procedure and that pleadings in compensation cases should be liberally construed 2: holding statutory authority of commission to promulgate rules to interpret law does not impose affirmative rulemaking requirement 3: holding that question involving procedure required of workers compensation agency to promulgate valid rules was of general public interest 4: recognizing the inherent common law authority of courts to promulgate rules of practice and procedure


Input: his arrest. Likewise, I agree with Justice Woodall’s rejection of the reliance in the main opinion upon the fact of a subsequent indictment as prima facie evidence of probable cause for an antecedent arrest. As the court in Radvansky v. City of Olmsted Falls, 395 F.3d 291, 307 n. 13 (6th Cir.2005), recently noted: “[N]either the Supreme Court, nor this court, has ever held that a subsequent grand jury indictment can establish probable cause for an earlier arrest. See Rios v. United States, 364 U.S. 253, 261, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960) (evaluating probable cause based on the circumstances at the time of arrest despite the fact that the defendant was later indicted by a federal grand jury); Giordenello v. United States, 357 U.S. 480, 487, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958) (<HOLDING>); United States v. Bowker, 372 F.3d 365, 374 Holdings: 0: holding that the dismissal of an indictment did not negate the presumption of probable cause 1: holding that under fourth amendment standards for determining probable cause for arrest and probable cause for search and seizure are same 2: holding that probable cause is a complete defense to an action for false arrest 3: holding that in the absence of a prior indictment probable cause for arrest is determined by the facts in the sworn complaint 4: holding that there was no probable cause to arrest the plaintiff because the facts of the case amounted to a contract dispute


Input: the power and the intention at a given time to exercise dominion and control over” the gun. See Hadley, 431 F.3d at 507. Because we conclude that the foregoing evidence was sufficient to support the jury’s guilty verdict, we need not resolve the question of whether Newsom’s failure to stop the vehicle promptly, his furnishing of false identification, and his evasiveness in responding to the officer’s questions could also support his conviction. D. Propriety of Newsom’s sentence Newsom was sentenced in December of 2004, a month before Booker was decided. He argues, and the government concedes, that this court’s post-Booker cases require us to vacate his sentence and remand the case to the district court for resentencing. See United States v. Barnett, 398 F.3d 516, 529 (6th Cir.2005) (<HOLDING>). No such evidence has been presented in this Holdings: 0: holding that the mandatory nature of the united states sentencing guidelines resulted in violations of the sixth amendment right to a jury trial and rendering the guidelines advisory 1: recognizing that under the booker remedial regime  the guidelines are no longer mandatory but are only advisory 2: holding that sentencing under the mandatory guidelines regime creates a presumption of prejudice that the government must rebut with clear and specific evidence that the district court would not have  sentenced the defendant to a lower sentence if it had treated the guidelines as advisory 3: holding that the fact that a sentence imposed under the prebooker mandatory guideline regime was at the bottom of the mandatory range is not enough to create a reasonable probability that the defendant would have received a different sentence upon resentencing under an advisory guidelines system 4: holding that even in the absence of a sixth amendment violation the imposition of a sentence under the former mandatory guidelines regime rather than under the advisory regime outlined in booker is plain error


Input: (citation and internal quotation marks omitted)); Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir.1998). 2 . On April 25, 2014, Plaintiff filed another action against various government employees pursuant to 42 U.S.C. § 1983. See Complaint, Bussie v. Government Accountability Office, No. 14-CV-2665 (E.D.N.Y.2014). By Memorandum and Order dated May 23, 2014, the Court denied Plaintiff's request to proceed in forma pauperis and ordered Plaintiff to pay the $400 filing fee in order to proceed with that action. 3 . Plaintiff is advised that even a fee-paid pro se complaint may be dismissed sua sponte if the Court lacks subject matter jurisdiction or if the complaint is frivolous. Fed.R.Civ.P. 12(h)(3); Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir.2000) Holdings: 0: recognizing that a district court may sua sponte dismiss a complaint for failure to serve after notice to the plaintiff 1: holding that the district court had no right to apply the statute of limitations sua sponte because it had been waived 2: holding that a court may sua sponte dismiss pursuant to rule 41b for failure to comply with a court order 3: holding that the district court cannot remand sua sponte for defects in removal procedure 4: holding that a district court may dismiss a frivolous complaint sua sponte notwithstanding the fact that the plaintiff paid the statutory filing fee


Input: F.2d 305, 308 (10th Cir.1981) ("Even where certain matters are clearly within the protected sphere of legitimate public interest, some private facts about an individual may lie outside that sphere.... Because each member of our society at some time engages in an activity that fairly could be characterized as a matter of legitimate public concern, to permit that activity to open the door to the exposure of any truthful secret about that person would render meaningless the tort of public disclosure of private facts."); Doe v. Gangland Prods., Inc., 730 F.3d 946, 959 (9th Cir.2013) ("'The newsworthiness inquiry focuses on the particular fact at issue that was disclosed, not on the general topic of the publication."); Toffoloni v. LFP Publ'g Grp., LLC, 572 F.3d 1201, 1212 (11th Cir.2009) (<HOLDING>). 34 The Virgil court ultimately concluded that Holdings: 0: holding that there must be a legitimate and substantial goal of the measure in question 1: holding that every private fact disclosed in an otherwise truthful newsworthy publication must have some substantial relevance to a matter of legitimate public interest emphasis omitted 2: recognizing that some police records must remain secret and free from public inspection as a matter of public policy 3: holding that parties to contract intend every clause to have some effect 4: holding that speech addressing a private interest within a letter containing matters of public interest was protected and noting that we have emphasized that speech of public importance is only transformed into a matter of private concern when it is motivated solely by the speakers personal interests quotations omitted


Input: § 7201 because there is no affirmative act of evasion or an intent to evade the payment of taxes. Yet, the drug dealer could be prosecuted under § 7206(5) for lying about the "source of funds” because that statute punishes any person who falsifies any document relating to the financial condition of the taxpayer submitted in connection with an offer-in-compromise. See Tr. of 9/17/10 Hr’g at 47-48. 7 . See United States v. Batchelder, 442 U.S. 114, 123-24, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979) (“This Court has long recognized that when an act violates more than one criminal statute, the Government may prosecutes [sic] under either so long as it does not discriminate against any class of defendants.”); United States v. Beacon Brass Co., 344 U.S. 43, 45-46, 73 S.Ct. 77, 97 L.Ed. 61 (1952) (<HOLDING>); United States v. Kenny, 973 F.2d 339, 342-43 Holdings: 0: holding that false statements are constitutionally protected 1: holding state actor could be liable for retaliation for making false statements to plaintiffs employer causing her to be fired 2: holding that defendant could be charged for making false statements to treasury officials under the tax evasion statute or the statute prohibiting false statements to government officials 3: holding that an attorney who made false representations to a court did not violate okla rpc 33 because that rule addresses professional misconduct as an advocate for making false statements to a tribunal not false statements by a lawyer as a witness 4: holding that various law enforcement personnel and judges were victims of the crime of making false statements to a government agency for purposes of  3a12a where the defendant made false statements about the officials to the irs causing the irs to investigate the officials certainly had the effect of making these individuals the defendants victims


Input: P. 26.02(1) placed the initial burden on the Boyd parties to establish that the requested documents contained information relevant to (1) Comdata’s obligations under the Marketing Services Agreement, (2) Comdata’s representations that induced the Boyd parties to approve the assignment of the contracts to Comdata and to sign the Guaranty Agreement, and (3) the Boyd parties’ obligations under the Guaranty Agreement. The Boyd parties have not carried this burden. The rights and obligations of the parties to a written contract are governed by the terms of the contract, Hillsboro Plaza Enters, v. Moon, 860 S.W.2d 45, 47 (Tenn.Ct.App.1993), not by the parties’ statements during their negotiations or drafts of the final contract. Faithful v. Gardner, 799 S.W.2d 232, 235 (Tenn.Ct.App.1990) (<HOLDING>); GRW Enters., Inc. v. Davis, 797 S.W.2d 606, Holdings: 0: recognizing that production of a written insurance policy was unnecessary to prove the existence of the policy because the proof required was proof of the fact of insurance and not of the contents of a writing 1: holding that the existence of a written contract gives rise to the presumption that the parties have reduced their prior agreements to writing 2: holding that failure to appoint second counsel under section 3005 gives rise to an irrebuttable presumption of prejudice 3: holding that the rules of contract law are applicable to plea agreements 4: holding that the existence of a valid contract bars the imposition of a constructive trust because quasicontractual claims such an unjust enrichment are not permitted if a written contract between the parties governs the subject matter of their dispute


Input: decision to address that question. DISCUSSION Applicable Legal Standard Debtors seek approval of all aspects of the merger under Section 363, which provides, in relevant part, that “[t]he trustee, after notice and a hearing, may use, sell, or lease, other than in the ordinary course of business, property of the estate.” 11 U.S.C. § 363(b)(1). Although Section 363 of the Bankruptcy Code does not set forth a standard for determining when it is appropriate for a court to authorize the sale, disposition, or other use of a debtor’s assets, courts in the Second Circuit and elsewhere have required that it be based upon the sound business judgment of the debtor. See Comm. of Unsecured Creditors of LTV Aerospace & Defense Co. v. LTV Corp. (In re Chateaugay Corp.), 973 F.2d 141 (2d Cir.1992) (<HOLDING>); Comm. of Equity Sec. Holders v. Lionel Corp. Holdings: 0: holding that there is no rational reason for the retroactive application of 80173 and the prospective application of 833 1: holding retroactive application 2: holding that a judge reviewing a section 363b application must find from the evidence presented a good business reason to grant such application 3: holding no retroactive application 4: recognizing that application of section 507a7 should be coincidental with application of section 523a5 because of identical language in the two statutes


Input: argues that special circumstances are established in this case by evidence that Ms. Patterson knew that Marquette had the shotgun and knew that he had made a statement about shooting the police. Thus, Finley argues, Ms. Patterson must have known that harm to Finley was imminent. For one to have a duty to warn, however, one must have a reasonable opportunity to warn. See Richard C. Tinney, Liability to Police—Owner or Occupant, 30 A.L.R.4th 81, 97 (1984) (citing Armstrong v. Mailand, 284 N.W.2d 343 (Minn.1979)). Finley offered evidence that Ms. Patterson, although she was over 80 years holding homeowners not liable to member of police SWAT team who was shot by the homeowners’ son while the officer responded in his professional capacity); Chapman v. Craig, 431 N.W.2d 770 (Iowa 1988) (<HOLDING>); Hannah v. Jensen, 298 N.W.2d 52 (Minn.1980) Holdings: 0: holding a landlord liable for injuries sustained in the laundry room of an apartment complex 1: holding tavern owner not liable for injuries sustained when intoxicated patron assaulted a police officer 2: holding that tavern will be held liable for serving alcohol to visibly intoxicated patron who then foreseeably becomes involved in a motor vehicle accident 3: holding proprietor of a tavern was not liable to officer who sustained injuries caused by a patron while the officer was attempting to make an arrest 4: holding that injuries sustained when a bouncer grabbed a bar patron in a  bear hug  to stop a fight did not arise out of the originating fight


Input: ink addressing each other’s contentions, but the dispute about the supplemental affidavit is immaterial to the resolution of this appeal. Even if the second affidavit was legally defective (because it was unsworn and uncertified), the return of service and original affidavit Relational offered were sufficient to discharge its prima facie burden. To make a prima facie showing, the movant must simply produce a return of service identifying the recipient and noting when and where service occurred, thereby providing enough detail so the opposing party knows what evidence he must rebut. See Homer, 415 F.3d at 754 (suggesting a bare-bones return of service lacking an address or a receiving individual might be insufficient to discharge the prima facie burden); cf. Robinson, 223 F.3d at 451-53 (<HOLDING>). Relational’s original return of service and Holdings: 0: holding that an affidavit did not provide probable cause sufficient to validate a warrant where the affidavit stated an incorrect date uncontradicted by any other specific fact in the affidavit 1: recognizing that a default judgment based on improper service is void 2: holding that it was improper for the court to grant a default judgment where the process server stated in his affidavit that he served an unidentified individual 3: holding that an affidavit in opposition to a motion for summary judgment that is not served at least one day before the hearing is barred by the civil practice act from consideration as evidence unless the record discloses the trial court in the exercise of its discretion has allowed the affidavit to be served and considered 4: holding that an individual who is not served cannot be at fault or negligent in allowing a default judgment to be rendered


Input: States ex rel. Sanders v. East Ala. Healthcare Auth., 953 F.Supp. 1404, 1413 (M.D.Ala.1996). Even after having given due weight to the liberal requirements of notice pleading discussed above, the court finds that Morrow’s pleading of fraudulent concealment is inadequate. Morrow’s allegation consists of one sentence and provides no “details of the defendant’s allegedly fraudulent acts, when they occurred, and who engaged in them.” Cooper v. Blue Cross & Blue Shield of Fla., Inc., 19 F.3d 562, 568 (11th Cir.1994) (finding claim that made only general, conclusory allegations of fraud to be inadequate). Some further level of precision, other than a blunderbuss allegation, is necessary. See, e.g., Seville Indus. Mach. Corp. v. Southmost Machinery Corp., 742 F.2d 786, 791 (3d Cir.1984) (<HOLDING>). Furthermore, Morrow does not assert that her Holdings: 0: holding that a complaint satisfied rule 9b because it identified the misrepresentations at issue the specific dates on which they were made and the specific persons responsible for making them 1: holding that a plaintiff satisfied rule 9b by pleading which machines were the subject of alleged fraudulent transactions and the nature and subject of the alleged misrepresentations 2: holding that although plaintiff did not list dates places or times of fraudulent acts he nonetheless adequately satisfied the requirements of rule 9b by incorporating into the complaint a list identifying with great specificity the pieces of machinery that were the subject of the alleged fraud 3: holding that documents affixed to complaint that contained alleged misrepresentations satisfied rule 9b 4: recognizing that where fraud counts incorporate by reference all preceding paragraphs of complaint an examination of the entire complaint is necessary to determine if pleading requirements of rule 9b are satisfied


Input: Mindful of these words, it should be noted that the application of the federal common law developed by the district court in the context of the instant case would not impose any conflicting or undue burdens on plans or plan sponsors. As the ensuing discussion shows, however, the district court has presented a persuasive argument as to why the doctrine of substantial compliance may significantly impact the purposes of ERISA and thus, merit the development of federal common law. 23 . In Singer, we went on to say that the prediction that "use of preempted state commonlaw doctrines to shape a federal common law of ERISA would frustrate Congress's goal of uniformity is unfounded.” Singer, 964 F.2d at 1453. 24 .Citing Wilkie v. Philadelphia Life Ins. Co., 187 S.C. 382, 197 S.E. 375 (1938) (<HOLDING>), and York v. Summer, 195 S.C. 413, 11 S.E.2d Holdings: 0: holding that an insured has substantially complied with the change of beneficiary provisions of a life insurance policy when he has done all that he could to comply with the provisions 1: holding that the claimant committed willful misconduct when she did not return to work at the end of her leave and did not comply with her employers notification policy 2: holding that regardless of the subjective belief of the insured the record established a basis to believe that the insured had committed an act that could give rise to a claim under the policy 3: holding that insured had not substantially complied with the policys change of beneficiary provisions when the hospitalized insured was physically unable to leave her bed and was unable to retrieve the policy from her lock box at the bank to return to the company for endorsement as required by the terms of the policy 4: holding that insured substantially complied with the manner of changing the beneficiary as required by the policy


Input: 1. 36 . See Guard v. P & R Enterprises, Inc., 631 P.2d 1068, 1072 (Alaska 1981). 37 . City of Whittier v. Whittier Fuel & Marine Corp., 577 P.2d 216, 223 (Alaska 1978) (quoting Levene v. City of Salem, 191 Or. 182, 229 P.2d 255, 263 (1951)), disapproved of on other grounds by Native Alaskan Reclamation & Pest Control, Inc. v. United Bank Alaska, 685 P.2d 1211 (Alaska 1984). 38 . 631 P.2d at 1072 (first citing Standard Mach. Co. v. Duncan Shaw Corp., 208 F.2d 61, 64-65 (1st Cir. 1953); Leoni v. Bemis Co., 255 N.W.2d 824, 826 (Minn. 1977); El Fredo Pizza, Inc. v. Roto-Flex Oven Co., 199 Neb. 697, 261 N.W.2d 358, 364 (1978)“; then citing Gen. Elec. Supply Co. v. Mt. Wheeler Power, Inc., 94 Nev. 766, 587 P.2d 1312, 1313 (1978)); see also Sisters of Providence in Wash., 81 P.3d at 1007 (<HOLDING>), 39 . Guard, 631 P.2d at 1072 n.4 (citing Holdings: 0: holding that expert testimony accompanied by the testimony of two doctors with similar practices and defendants preliminary revenue estimates supported a finding of lost profits 1: holding that the admission of expert testimony was prejudicial where the testimony was pervasive 2: holding that the admissibility of expert testimony was governed by state law 3: holding on similar facts that the evidence supported a finding that the plaintiffs subpoenaed testimony was spoken as a private citizen 4: holding expert testimony remedies speculation by the court


Input: § 7430(c)(4)(E)(i) (“A party ... shall be treated as the prevailing party if the liability of the taxpayer pursuant to the judgment in the proceeding ... is equal to or less than the liability of the taxpayer which would have been so determined if the United States had accepted a 'qualified offer of the party!.]”). This statute does not require any minimum amount or define the parameters of a “reasonable” offer, nor does it require that an offer be for a certain percentage of the taxpayer’s purported liability. See I.R.C. § 7430(e)(4)(E)(i). Indeed, the Government has offered no amount with respect to I.R.C § 7430, “fees are incurred when there is a legal obligation to pay them.” Estate of Palumbo, 675 F.3d at 239-40; see also Morrison v. Comm’r, 565 F.3d 658, 662 (9th Cir. 2009) (<HOLDING>). In this case, BASR “incurred” litigation Holdings: 0: holding that each plaintiff is liable for fees if he would have been entitled to his fees if he had prevailed 1: holding that by choosing the words any actual expenses including attorneys fees incurred congress did not intend to remove the discretion of the district court to award fees in cases such as contingent fee or pro bono cases where the client has not actually incurred the obligation to pay her attorneys fees 2: recognizing that the party seeking attorney fees bears the burden of proving entitlement to those fees 3: holding that bank was entitled to attorney fees on appeal when agreement did not prohibit such fees 4: holding that taxpayer incurs attorney fees if he assumes either 1 a noncontingent obligation to repay the fees advanced on his behalf at some later time or 2 a contingent obligation to repay the fees in the event of their eventual recovery


Input: and impeachment material. Judge Tatel authored section I and sections II.D, II.E, II.F, and II.G- on limits on cross-examination, admission of audiotapes, testimony of Detective Rawls, and proof of age. 2 . The government attributed the murder only to White, Hughes and Ballard. Because Ballard pled guilty in the middle of trial, it might seem that the back-up "clear and convincing" finding as to White and Hughes would moot the standard of proof issue. But defendants challenge the court's finding on a factual basis, and it is appropriate for us, in conducting that review, to be clear on the standard that the district court was to apply. Our review of the district court's factual finding, of course, is for clear error. Cf. United States v. Lewis, 921 F.2d 1294, 1301 (D.C.Cir.1990) (<HOLDING>). 3 . To the extent that Thevis endorses Holdings: 0: holding that because of the factbound nature of the inquiry determination of voluntariness of consent to search is reviewed for clear error 1: recognizing that the ultimate question of the voluntariness of consent is one of law 2: holding that findings of fact are reviewed for clear error 3: holding that the evidence raised the issue of voluntariness of consent even though the officers comments were in response to an inquiry by the suspect 4: holding that a district courts determination as to the applicability of a privilege is reviewed for clear error


Input: under the ordinance.” Nevertheless, she claims that her expressive interests were restricted because some people who had been given a notice of trespass could not attend a rally she held on Church Street to oppose the ordinance. Appellants cite the United States Supreme Court’s recent decision, McCullen v. Coakley, _ U.S. _, 134 S. Ct. 2518 (2014), as evidence that Ms. Baird has standing to challenge the ordinance. McCullen dealt with a Massachusetts statute that made it a crime to knowingly stand within thirty-five feet of an entrance or driveway to a reproductive health care facility. Id. at _, 134 S. Ct. at 2525. The Court ruled that the law expressly “restricts access to traditional public fora and is therefore subject to First Amendment scrutiny.” Id. at _, 134 S. Ct. at 252 5) (<HOLDING>). ¶ 16. Appellants next assert that Mr. Carter Holdings: 0: holding that defendant could not assert statutory affirmative defense enacted three years after claim accrued because such would affect vested rights and substantive law 1: holding that state rights are equivalent to federal rights in this area 2: holding that contraceptive providers could assert rights of patients in part because patients rights would otherwise be diluted 3: holding that a litigant may not claim standing to assert the rights of a third party 4: holding that it is well settled that while one tenant in common may acquire homestead rights in the common property the rights so acquired are not superior to the rights and remedies of the other joint owners he can acquire no such rights as will prejudice or in anywise interfere with the rights of the other tenants in common


Input: definition of moral turpitude should be for our purposes, it should be clear that its application as an aggravating factor should occur only where the facts warrant our strongest condemnation. In addition, if fraud is a touchstone, it indicates that a finding of moral turpitude requires this Court to look beyond the sanctionable conduct itself and examine, as well, the intent underlying the behavior in question. ¶ 26. In line with that principle, this Court has said that a finding of moral turpitude requires a determination of “whether a judge’s conduct crosses the line from simple negligence or mistake, to willful conduct which takes advantage of a judge’s position for greed or other inappropriate motives.” Miss. Comm’n on Judicial Performance v. Gordon, 955 So.2d 300, 305 (Miss.2007) (<HOLDING>). Thus, heightened sanctions may be appropriate Holdings: 0: recognizing the longstanding rule that crimes that have fraud as an element are categorically crimes involving moral turpitude and a court may not apply the modified categorical approach if the statute proscribes only conduct that involves moral turpitude 1: holding that robbery under california law categorically qualified as a crime involving moral turpitude and noting precedent in this and other circuits that theft crimes are crimes involving moral turpitude 2: holding that fixing tickets by passing them to the inactive files without requiring the defendants to appear in court and over the objections of the issuing officer constituted moral turpitude 3: recognizing that misdemeanor of passing bad checks totaling 250 constituted crime of moral turpitude 4: 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


Input: consent must be clearly, unequivocally expressed. Edelman, 415 U.S. at 673, 94 S.Ct. at 1360-61. Waivers are narrowly construed and almost never implied. Further, a State’s waiver of Eleventh Amendment immunity in its own courts is not a waiver of its immunity in federal courts. See, e.g., Florida Dept, of Health & Rehab. Serv. v. Florida Nursing Home Assoc., 450 U.S. 147, 150, 101 S.Ct. 1032, 1034-35, 67 L.Ed.2d 132 (1981) (per curiam); Ford Motor Co., 323 U.S. at 464-65, 65 S.Ct. at 350-51; Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 54, 64 S.Ct. 873, 877, 88 L.Ed. 1121 (1944). [I]t is not consonant with our dual system for the federal courts ... to read the consent to embrace federal as well as state courts____ [A] c . 58, 64-67, 109 S.Ct. 2304, 2308-10, 105 L.Ed.2d 45 (1989) (<HOLDING>). Section 1983 provides a federal forum to Holdings: 0: holding that states and state officials acting in their official capacities are not persons subject to liability under  1983 1: holding that the eleventh amendment protects both states and state officials acting in their official capacity from suits brought pursuant to 42 usc  1983 2: holding that neither a state agency nor its officials acting in their official capacities may be sued under section 1983 3: holding that state employees acting in their official capacities are insulated from liability for money damages 4: holding that under authority of will v michigan dept of state police 491 us 58 71 109 sct 2304 105 led2d 45 1989 neither the state nor state public service commission officials acting in their official capacities are persons subject to suit under  1983


Input: order issued in Dormescar TV. 11 . Dormescar did not argue to the IJ or the Board that because he was convicted of counterfeiting in 2007 but was not deemed admitted until the Board issued its September 9, 2008 order, he had not been "convicted of an aggravated felony at any time after admission.” 8 U.S.C. § 1227(a)(2)(A)(iii) (emphasis added). Because Dormescar did not raise that issue before the IJ or the Board, we cannot and do not consider it here. See Sundar v. I.N.S., 328 F.3d 1320, 1323 (11th Cir.2003) ("[W]e lack jurisdiction to consider claims that have not been raised before the BIA.”). Nor did he raise the issue before this Court, which is another reason we do not consider it. See, e.g., Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318-19 (11th Cir.2012) (<HOLDING>); Greenbriar, Ltd. v. City of Alabaster, 881 Holdings: 0: holding that an issue not raised in the trial court cannot be raised for the first time on appeal 1: holding arguments not raised on appeal waived 2: holding that an issue not raised on appeal is waived 3: holding that issues not raised before a district court are waived on appeal 4: holding that where an issue is raised in the district court but raised late and the district court declines to deem the issue waived the issue may be raised on appeal


Input: raised by the district court is the dispositive question of the ease. B. Attenuation Analysis “Under the fruit of the poisonous tree doctrine, all evidence derived from the exploitation of an illegal search or seizure must be suppressed, unless the government shows that there was a break in the chain of events sufficient to refute the inference that the evidence was a product of the constitutional violation.” United States v. Miller, 146 F.3d 274, 279 (5th Cir.1998) (citing Brown v. Illinois, 422 U.S. 590, 597-603, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975)). A failure to knock and announce, leading to an unconstitutional arrest and search, may, if not too attenuated, require suppression of evidence. See Sabbath v. United States, 391 U.S. 585, 586, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968) (<HOLDING>). In resolving attenuation questions, this Holdings: 0: holding that evidence seized pursuant to a warrant based on materially false and misleading information is inadmissible at trial 1: holding that confronting a defendant with unlawfully seized evidence renders a subsequent statement involuntary and therefore inadmissible 2: holding that a warrant lacking a description of items to be seized was not facially invalid and finding in the alternative that even if the warrant were found to be deficient the seized evidence was admissible under the good faith exception 3: holding 15 to 20 seconds was reasonable amount of time for state police officers to wait before entering an apartment to execute a search warrant for drugs after knocking and announcing their presence 4: holding under  3901 that because officers entered without knocking and announcing the subsequent arrest was invalid and the evidence seized inadmissible


Input: wholesale prices, noting that such a rate “is simple to apply, and avoids the need to allocate costs among services.” Local Competition Order ¶ 916. The NCUC set AT & T North Carolina’s discount rate at 21.5% for the residential services at issue here on December 23, 1996. In other words, if AT & T North Carolina sells a service to its residential retail customers for $100 a month, it must sell the same service to dPi and other resellers for $78.50. When AT & T North Carolina offers promotions to attract potential retail customers, and those promotions are available at retail for more than 90 days, AT & T North Carolina must also offer a promotional benefit to resellers, like dPi, who purchase services subject to the promotion. 47 C.F.R. § 51.613(a)(2); Sanford, 494 F.3d at 442 (<HOLDING>). When these promotions take the form of a Holdings: 0: recognizing that 90 per hour is a reasonable rate for a paralegal 1: holding that promotional offerings that exceed 90 days have the effect of changing the actual retail rate to which a wholesale requirement or discount must be applied 2: holding that sjince the consumer cannot obtain the right to occupy the room without paying the retail room rate charged by the otc that retail rate is the taxable amount or rent  where rent means the consideration received for occupancy valued in money 3: holding that the rent charged is the amount that a hotel room occupant paid to the otc not the negotiated wholesale rate 4: holding that with respect to the eaja the local or national market rate for legal services cannot be a special factor used to increase the rate beyond the statutory rate


Input: rule 42(b)(1) and 42(b)(2) certification. LSRC cannot—having failed to move for a continuance, having agreed for the trial court to consider certification under rule 42(b)(1) and 42(b)(2) if LSRC were allowed to file a brief addressing those issues within two weeks of receiving a transcript of the class certification hearing, and having filed such a brief-now assert that the trial court erred by considering certification under rule 42(b)(1) and 42(b)(2). See In re Dep't of Family & Protective Servs., 273 S.W.3d 637, 646 (Tex. 2009) (orig. proceeding) (“The invited error doctrine applies to situations where a party requests the court to make a specific ruling, then complains of that ruling on appeal.”); Keith v. Keith, 221 S.W.3d 156, 164 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (<HOLDING>). We hold that LSRC waived its complaint that Holdings: 0: holding a party may not invite error and then be heard to complain of that error on appeal 1: holding that a party may not raise a claim on appeal that was not presented to the trial court 2: holding that party who asked trial court to take certain action could not complain on appeal that action was wrong 3: recognizing that a party cannot complain on appeal that the trial court considered an issue that that party consented to submit to the trial court 4: holding that a party may not invite error and then be heard to complain of that error on appeal


Input: J. The defendant, Richard Jackson, appeals from the denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850 based on the trial court’s determination that the motion was untimely. ' Because the record before this Court demonstrates that the motion was timely filed within the two-year time limit provided by rule 3.850 based on the “mailbox rule,” we reverse the order denying the defendant’s motion for postconviction relief and remand for consideration on the merits. See Griffin v. Sistuenck, 816 So.2d 600, 601 (Fla.2002) (“Under the mailbox rule, a notice' is deemed filed when it is delivered to prison authorities for mailing.”); Haag v. State, 591 So.2d 614, 617 (Fla.1992) (<HOLDING>); Lawson v. State, 107 So.3d 1228, 1229 (Fla. Holdings: 0: holding that under the mailbox rule the date that a motion is placed into the hands of prison officials for filing is the date that the motion is considered filed 1: holding that under the mailbox rule a pro se inmates document is deemed filed at the moment in time when the inmate loses control over the document by entrusting its further delivery or processing which is usually when the inmate places the document in the hands of prison officials 2: holding the separate document rule violated when the alleged judgment was included with the memorandum and order of the court 3: holding that the date of filing is the time at which a pro se prisoner entrusts the document to prison officials for delivery 4: holding that in connection with a motion to dismiss the court may consider a document not attached to the pleadings where the plaintiffs claim depends on the contents of a document the defendant attaches the document to its motion to dismiss and the parties do not dispute the authenticity of the document even though the plaintiff does not explicitly allege the contents of that document in the complaint


Input: character. See 18 U.S.C. § 3553(a)(1). The district court was within its statutory authority to sentence him to any term between ten years (120 months) and his natural life. 21 U.S.C. § 841(b). It sentenced him to a term of 180 months — a term within the lower half of his Guidelines sentence range. In fact, the court was not prohibited by the applicable Guidelines from sentencing to a term less than 180 months. Nothing in the record establishes a reasonable probability that, had the court considered the guidelines range as advisory rather than mandatory and taken into account any otherwise unconsidered § 3553 factors, it would have imposed a lesser sentence. Rodriguez, 398 F.3d at 1302; compare United States v. Shelton, 400 F.3d 1325, 1332-33, manuscript op. at 15 (11th Cir.2005) (<HOLDING>). Because appellant failed to establish Holdings: 0: holding that sentencing under the mandatory guidelines regime creates a presumption of prejudice that the government must rebut with clear and specific evidence that the district court would not have  sentenced the defendant to a lower sentence if it had treated the guidelines as advisory 1: holding that defendant entitled to resentencing if the sentence imposed under the unconstitutional 1995 sentencing guidelines would constitute an impermissible departure sentence under the 1994 guidelines 2: holding that the sentencing courts expressions that the lowest sentence within the guidelines was too se vere was sufficient to show that the lower court would have imposed a lesser sentence if it had not felt bound by the guidelines thus satisfying plain errors third prong 3: holding that when the trial court sentenced the defendant to prison under the belief that the lowest permissible sentence was a prison term but the lowest permissible sentence under a corrected scoresheet would be a nonprison sanction the court could not say that the same sentence would have been imposed had the trial court had the correct information 4: recognizing that if a guidelines error did not affect the district courts selection of the sentence imposed the sentence should be affirmed


Input: . CAC ¶ 59. 63 . See In re Ibis Tech. Sec. Litig. 422 F.Supp.2d 294, 313 n. 19 (D.Mass.2006) (citing In re Int’l Bus. Mach. Corp. Sec. Litig., 163 F.3d 102, 107 (2d Cir.1998) (“A defendant, however, is liable only for those statements made during the class period.”)). The court also discards Defendant Tobin’s April 11, 2001, statement on identical grounds. 64 . CAC ¶ 68 65 . Medinol Ltd. v. Boston Scientific Corp., intended to provide shareholders with an avenue for relief against executives for alleged illegal practices or corporate mismanagement...." Id. at 586 (quoting Galati v. Commerce Bancorp, Inc., No. 04-3252, 2005 WL 3797764, at *8 (D.N.J. Nov.7, 2005) (unpublished)); 77 . See Ballan v. Wilfred Am. Educ. Corp., 720 F.Supp. 241, 249 (E.D.N.Y.1989) (internal quotations omitted) (<HOLDING>). In that case, the Defendants were indicted, Holdings: 0: holding that defendants failure to anticipate future events did not constitute securities fraud 1: holding that the juvenile defendants who voluntarily left their homes in the middle of night to ride to the police department in patrol cars and who were told they were not under arrest were not in custody 2: holding that defendants were not in control and therefore were not supervisors and not subject to liability under  1983 3: holding that allegations that defendants designed and implemented improper accounting practices failed to state claim for securities fraud in absence of allegations of particular facts demonstrating how defendants knew of scheme at time they made their statements of compliance that they knew the financial statements overrepresented the companys true earnings or that they were aware of a gaap violation 4: holding in securities fraud case that defendants who were the subject of criminal investigation were not bound to predict the likelihood that they would be indicted but were required to disclose material facts that would potentially endanger the companys future financial performance


Input: provided to Medved for editorial purposes. See Gottlieb, 84 F.3d at 518. As for Myskina’s other common law claims, it is settled that the only judicially recognized relief in New York for violations of a right to privacy or publicity are the protections afforded against the commercial misappropriation of a person’s name or picture, as set forth in Sections 50 and 51. There is no independent common law cause of action in the right to privacy or publicity. See e.g., Pirone v. MacMillan, Inc., 894 F.2d 579, 586 (2d Cir.1990) (“New York courts have indicated clearly that the Civil Rights Law preempts any common law right of publicity action. ...”); Arrington, 55 N.Y.2d at 439, 449 N.Y.S.2d 941, 434 N.E.2d 1319; Grodin v. Liberty Cable, 244 A.D.2d 153, 154, 664 N.Y.S.2d 276 (1st Dep’t 1997) (<HOLDING>). Under New York law, common law unjust Holdings: 0: holding that a preliminary injunction was a reasonable means of preserving the status quo and was of the same character as the ultimate relief sought when a few but not all of the causes of action in the complaint were of an equitable nature including causes of action for unjust enrichment and imposition of constructive trust 1: holding that there is no cause of action in california for unjust enrichment 2: holding that where a prior agreement fixed the salary of the plaintiff plaintiff could not seek to recover for his services on a theory of unjust enrichment 3: holding that it was error not to dismiss plaintiffs causes of action for negligence and unjust enrichment there being no commonlaw right of privacy in new york where the plaintiff brought an action to recover damages for the unauthorized reuse of his image and voice in a television commercial 4: holding that erisa does not permit a plaintiff to assert an independent federal common law cause of action such as unjust enrichment to enforce the terms of an erisa plan thus to the extent plaintiffs third cause of action for unjust enrichment is brought pursuant to a federal common law right it must be dismissed


Input: § 155 (1979). 32 . Id. at cmt. b. See also Restatement (Second) of Contracts, ch. 6, introductory note at 379 (“Where, however, because of a mistake of both parties as to expression the writing fails to express an agreement that they have reached previously, the appropriate relief ordinarily takes the form of reformation of the writing to make it conform to their intention.”). 33 . Restatement (Second) of Contracts § 158(2). See also Restatement (Second) of Contracts, ch. 6, introductory note at 381 ("The rules governing [mistake] have traditionally been marked by flexibility and have conferred considerable discretion on the court.”). 34 . Restatement (Second) of Contracts § 158 cmt. c. 35 . See, e.g., Ellingstad v. State, Dep't of Natural Res., 979 P.2d 1000, 1008 (Alaska 1999) (<HOLDING>). See also Rego v. Decker, 482 P.2d 834, 837 n. Holdings: 0: holding that contract terms themselves will be controlling when they establish the parties common meaning so that a reasonable person in the position of either party would have no expectations inconsistent with the contract language 1: holding that parties to contract have an implied obligation to put forth a good faith effort to fulfill the conditions of the contract 2: recognizing that courts will not add terms to a contract about which the contract is silent 3: holding for purposes of contract clause analysis a statute can be said to impair a contract when it alters the reasonable expectations of the contracting parties 4: holding that where contract silent court may supply reasonable term to fulfill parties expectations


Input: PER CURIAM. Grant Leon Turner appeals his convictions and sentence for possession of a firearm by a convicted felon and retaliating against a witness, victim or informant. On appeal, he argues that (1) the district court erred in publishing to the jury a transcript of a recording admitted into evidence and (2) the district court violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by sentencing him as an armed career criminal under 18 U.S.C. § 924(e) (1994) even though the issue of his prior convictions was not submitted to the jury. We ons that qualify the defendant for an armed career criminal sentence need not be charged in the indictment and proved beyond a reasonable doubt. United States v. Sterling, 283 F.3d 216, 220 (4th Cir.2002) (<HOLDING>). We decline Turner’s invitation to reconsider Holdings: 0: holding that where a sentence was enhanced under 18 usc  924e for prior convictions absent statutory language authorizing collateral attacks defendant could not challenge prior conviction except for gideon error 1: holding that apprendi did not affect enhanced sentence under  924e 2: holding that use under  924e requires active employment 3: holding that the fact of prior convictions under  924e need not be charged in an indictment and proven to a jury and also that the government need not charge in an indictment and prove to a jury that a defendants prior conviction constitutes a violent felony under  924e 4: holding apprendi is not retroactive


Input: Lester and had received an automobile ride to her house in the mid-morning of the day of the murder; on the way, he purchased a bottle of wine. Late in the afternoon, Reid was observed walking from the direction of Lester’s house, drunk and covered in blood. The blood on Reid’s clothing was later determined to be consistent with Lester’s DNA. Reid’s fingerprints were found in blood on the telephone in Lester’s bedroom, his saliva was found on a cigarette butt left in the room, and his handwriting was found on pieces of paper in the house. Reid, who claimed to have no memory of Lester’s murder, subsequently entered an Alford plea to one count each of capital murder, attempted rape, and attempted robbery. See North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (<HOLDING>). After a sentencing hearing, the trial judge Holdings: 0: holding that district courts failure to advise defendant of right to plead not guilty and right against selfincrimination were implicit in the courts discussion of the rights he would lose if he pleaded guilty 1: holding that counsel did not admit the defendant was guilty of a crime when counsel noted that if the evidence established the commission of any crime that crime was voluntary manslaughter not murder 2: holding that the applicant had not demonstrated the government was unable or unwilling to control the perpetrators where he contended that the police failed to investigate his reports but admitted that he did not give the police the names of any suspects because he did not know any specific names and his wife testified that the police investigated the complaints but were ultimately unable to solve the crimes 3: holding that a request for an instruction on entrapment should be refused even if there is evidence to support the defense if the defendant has denied under oath the acts constituting the crime that is charged 4: holding that a defendant may plead guilty even if he is unwilling or unable to admit his participation in the acts constituting the crime


Input: legal remedy. Riverwoods, L.L.C. v. County of Charleston, 349 S.C. 378, 563 S.E.2d 651 (2002); City of Rock Hill v. Thompson, 349 S.C. 197, 563 S.E.2d 101 (2002); Exparte Littlefield, 343 S.C. 212, 540 S.E.2d 81 (2000); Redmond v. Lexington County Sch. Dist. No. 4, 314 S.C. 431, 445 S.E.2d 441 (1994). Upon the filing of a petition for a writ of habeas corpus, the Clerk of Court should verify the document contains a case caption, a proper county designation, and the signature of the filing party, and should forward a copy of the petition to the Attorney General’s Office. S.C. Clerk of Court Manual § 6.24. Because petitioner failed to name the Clerk of Court as a party or serve his petition for a writ of mandamus on her, he may not seek mandamus relief as to her. Thompson, supra (<HOLDING>). Moreover, the 2004 habeas petition became Holdings: 0: holding the completely fully fairly element is met if the party against whom preclusion is sought had adequate notice and an opportunity to be heard on the issue 1: holding party seeking disqualification waives attorneyclient privilege as to the court so the court may assess the contents of allegedly confidential information and the party may present the information either in a hearing out of the presence of the party against whom confidentiality is to be protected or in camera inspection 2: holding a party seeking mandamus must serve the party against whom relief is sought 3: holding that an arbitration agreement enforceable against party who signed the agreement even where the other party did not sign it because generally it is enough that the party against whom the contract is sought to be enforced signs it 4: holding that the party against whom collateral estoppel is asserted must have been a party to the prior action


Input: but the plaintiffs have alleged no facts that would bring their claim within the exception. See id. (describing a “limited exception to the general rule” where employees of a corporate employer have an independent personal stake and “stand to benefit from conspiring with the corporation to restrain trade”). Plaintiffs’ complaint fails to state a claim under § 1. Section 13a, which is a section of the Robinson-Patman Act, prohibits the sale of goods “at unreasonably low prices for the pui’pose of destroying competition or eliminating a competitor.” 15 U.S.C. § 13a. However, plaintiffs may not bring a civil claim under § 13a because it is reserved for criminal enforcement by the Department of Justice. See Safeway Stores v. Vance, 355 U.S. 389, 389-90, 78 S.Ct. 358, 2 L.Ed.2d 350 (1958) (<HOLDING>); Thomas V. Vakerics, Antitrust Basics § 8.10 Holdings: 0: recognizing that no private right of action exists for subsection a violations 1: holding that no civil action exists for sales at unreasonably low prices under  13a 2: holding that no private right of action exists 3: holding that a private right of action exists 4: holding that no independent commonlaw duty exists on the part of an employer to preserve evidence for an employees potential civil action against third parties


Input: Second, the court found that the “movement” heard in the mobile home during the raid provided an exigent circumstance that justified the officers’ forcible entry. In contrast to the panel opinion, I find these “attenuation” questions to be the dispositive issues before this court, but, on the facts presented, conclude that the district court erred in its determination. As the panel is in agreement that there was a constitutional violation from the officers’ attempt at entry, the predicate for the district court’s reasonableness argument falls away. The district court held that “if the attempt is never significant, the forty-five second period between announcement and actual entry is plainly reasonable under Jones.” See United States v. Jones, 133 F.3d 358, 361-62 (5th Cir.1998) (<HOLDING>). In other words, if there was no Holdings: 0: holding that after properly knocking and announcing officers need only wait fifteen to twenty seconds before entering 1: holding that reasonable accommodation does not require the employer to wait indefinitely for the plaintiffs medical conditions to be corrected 2: holding that an officers decision to shoot within a reaction time of 272 seconds was reasonable even if hindsight showed that the officer could have escaped unharmed 3: holding that an employer need not wait indefinitely for  medical conditions to be corrected 4: holding that the statements of a scared to death declarant whispering help me to police officers twenty hours after being assaulted were excited utterances


Input: 489, 505-06 (S.D.N.Y. 1999). Airborne argues that, as a courier service, its activities are analogous to those of the U.S. Postal Service, and that the court’s inquiry should, therefore, focus on the same considerations that would apply in determining whether immunity is available to the government mail service. Airborne, however, is not being sued in this case for its activities in delivering mail. Rather, plaintiffs have sued Airborne for being a private actor enlisted by law enforcement to make an allegedly unlawful arrest. It is this latter, functional description of Airborne’s role in the circumstances that precipitated this action that defines the relevant class of private actors for the purposes of determining whether qualified immunity is available to Airborne. Cf. id. (<HOLDING>). Although it is presumably common place for Holdings: 0: holding in  1983 action against board of directors of state racing commission that availability of qualified immunity would be determined on basis of board members status as corporate officers not their status as parties engaged in horse racing 1: holding that where approval of the board of directors was not formally requested a demand would have been futile for it could hardly be expected that if approval of the board of directors were sought defendant who controlled 50 of the board would have authorized the action against himself 2: recognizing absolute immunity for attorneys and board members of the texas medical board 3: recognizing absolute immunity for board members and the director of the mississippi state board of nursing 4: holding that petitioners status as school board members does not permit them to step into the shoes of the school board and invoke its right to appeal


Input: The Appellants contend that the accident report was not listed as an exhibit because the Appellee had admitted liability. The accident report became imperative only as rebuttal to the Appellee’s claims of insignificant damage resulting from the accident. Under these circumstances, and consistent with our conclusions regarding the severity of the lower court’s sanction for discovery violations on the issue of introduction of medical bills, we conclude that the trial court also abused its discretion and committed reversible error by excluding the accident report. The report was of “a critical nature, so that there is no reasonable assurance that the jury would have reached the same conclusion had the evidence been admitted.” Adams v. Fuqua Indus., Inc., 820 F.2d 271, 273 (8th Cir.1987) (<HOLDING>). IV. Conclusion Based upon the foregoing, we Holdings: 0: holding exclusion was harmless error 1: holding the exclusion of cumulative evidence was not prejudicial error 2: holding in all cases that where the evidence of guilt was sufficient any error in the exclusion of lastminute evidence and testimony was harmless error 3: holding that accident report was necessary to presentation of case and exclusion was in error 4: holding exclusion was not ambiguous


Input: on the part of D & J to use electricity safely and that this independent duty arises out of the agreement to purchase the electricity. We view this testimony as describing nothing more than the general duty that every member of society owes to every other member — the duty not to harm him through tortious acts. Such a general duty does not support a right of indemnity in a case where the would-be indemnitor is an “employer” covered by the workmen’s compensation law. Hysell v. Iowa Pub. Serv. Co., 534 F.2d 775, 783 (8th Cir.1976) (quoting Western Casualty & Sur. Co. v. Grolier, Inc., 501 F.2d 434, 438 (8th Cir.1974)). The testimony does not describe a duty that is of a “specific, defined nature” which would support a claim of indemnity against an employer. See Hysell, 534 F.2d at 782 (<HOLDING>); see also Iowa Power & Light Co. v. Abild Holdings: 0: holding that no independent commonlaw duty exists on the part of an employer to preserve evidence for an employees potential civil action against third parties 1: holding that such a duty exists 2: holding that the failure to act in good faith  does not amount to an independent tort the breach of the implied duty under the ucc gives rise only to a cause of action for breach of contract 3: holding that jailers had no independent duty to investigate 4: holding that an employer through its employees did not breach an independent duty to power company not to come in contact with power companys transmission lines because such a duty is a general duty not an independent one


Input: (1983). “If the statute contains an express preemption clause, the task of statutory construction must in the first instance focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ preemptive intent,” CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). The ICCTA, effective January 1, 1996, abolished the Interstate Commerce Commission and created the Surface Transportation Board. 49 U.S.C. § 10101 et seq. Section 10501(b) provides: “(b) The jurisdiction of the [Surface Transportation] Board over— “(1) transportation by rail earners, and the remedies provided in this part with respect to rates, classifications, rules (including car service, interchange, and other o , 297 F.Supp.2d 326, 334 (D.Maine 2003)(<HOLDING>); Guckenberg v. Wisconsin Cent. Ltd., 178 Holdings: 0: holding that the iccta preempted statelaw nuisance claim with respect to operation of side track 1: holding that the iccta preempted statelaw nuisance claim with regard to railway traffic 2: holding that the iccta preempted statelaw negligence and nuisance claims intended to interfere with railroads operation of switchyard 3: holding that the iccta preempted statelaw tortiousinterference claim 4: holding that the iccta preempted statelaw claims alleging tortious interference and seeking punitive damages


Input: that “[i]f these two elements were deemed sufficient to constitute the enumerated offense of kidnapping, then dissimilar state kidnapping offenses would be treated identically for purposes of the [crime of violence] enhancement,” which “would be inconsistent with the Sentencing Guideline’s goals of uniformity and predictability.” Id.' “A two-element definition of kidnapping would sweep more broadly than the generic, contemporary meaning of the crime.” Id. In order -to qualify as an enumerated offense of kidnapping, the statute must contain “[additional aggravating elements, such as the second and fourth elements identified in Gonzalez-Ramirez, or the specified purpose requirements of the MPC definition.” Id.; accord United States v. Najera-Mendoza, 683 F.3d 627, 630 (5th Cir.2012) (<HOLDING>). As previously set forth, the Florida statute Holdings: 0: holding on plainerror review an oklahoma statute for assault and battery was equivalent to the enumerated offense 1: holding that various versions of the statute qualify as an exemption 3 statute 2: holding that the oklahoma wiretap statute like the federal statute authorizes wiretaps within the territorial jurisdiction where the contents were first heard 3: holding that attempted burglary is a violent felony under the armed career criminal act because like the enumerated crimes it creates significant risks of bodily injury or confrontation that might result in bodily injury emphasis added 4: holding that the oklahoma statute like the california statute did not qualify as an enumerated offense because it lacked the elements of substantial interference with the victims liberty and risk of bodily injury


Input: function, its proper course was to require an additional labeling statement. But, as explained below, this argument is rejected because the agency can only require additional labeling when an intended use “is not identified in the proposed labeling,” 21 U.S.C. § 360c(i)(l)(E), whereas here the agency found the CS device to have a new intended use identified in the proposed labeling. 8 . Ivy suggests that the FDA should have limited itself only to the Indications for Use, "which is the only document that is actually attached to the substantial equivalence detenmination.” (Dkt. No. 62, at 43). But the company failed to address Supreme Court precedent contradicting this argument and cited by the agency. See Kordel v. United States, 335 U.S. 345, 349, 69 S.Ct. 106, 93 L.Ed. 52 (1948) (<HOLDING>). 9 . Ivy claims that Dr. Shuren came to his Holdings: 0: holding that when an agency is charged with administering a statute part of the authority it receives is the power to give reasonable content to the statutes textual ambiguities 1: holding that a substantive due process challenge is unavailable where there is an explicit textual source of constitutional protection 2: holding that it is not 3: holding no physical attachment one to the other is necessaryf it is the textual relationship that is significant 4: holding that for material accompanying a device no physical attachment is necessary it is the textual relationship that is significant


Input: and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification. The trial judge admitted the passports, over Kea’s objection, holding that he did not accept the passports as official documents of the United States or a foreign government, but as notations concerning arrivals and departures. However, the notations of arrivals and departures were purportedly made by an agent of the Turkish government. The stamps should have been accompanied by a final certificate in accordance with Mississippi Rule of Evidence 902(3). See Overseas Trust Bank Ltd. v. Poon, 181 A.D.2d 762, 763, 581 N.Y.S.2d 92 (1992) (<HOLDING>). ¶ 16. The passports should not have been Holdings: 0: holding that upon remand if the trial court determined that the testimony in a newly discovered evidence claim was reliable the trial court must review that new evidence as well as brady claims that were previously rejected in a prior postconviction motion because the evidence was equally accessible to the defense and there was no reasonable probability that the result of the trial would have been different had the evidence been disclosed 1: holding that a passport is not competent evidence to prove the defendant was not in thailand absent proof by thai authorities that if the defendant had entered or exited thailand an entry would have been placed on his passport 2: holding that joinder in or consent to the removal petition must be accomplished by only those defendants 1 who have been served and 2 whom the removing defendants actually knew or should have known had been served 3: holding that it was not error for the trial judge to refuse to admit the passport as evidence that defendant could not have been served with process in new york because she had been in hong kong the defendant offered no attestation or testimonial authentication by the hong kong authorities who had affixed the stamps on her passport 4: holding that default judgment could not be rendered after the defendant had served plaintiff with a copy of a motion to dismiss that had not then been filed