Input: to decide complex issues when there is little or no legal authority available. Equally troubling is the majority’s refusal to acknowledge the stock Christy received in TRM as a gift because it was received in exchange for a note receivable. Both of these conclusions are incorrect and unsupported by the record. The majority, like John, too narrowly focus on the term “gift of opportunity” to support its erroneous conclusion that this is marital property. In reality, the record clearly demonstrates that David Sr. gifted Christy and David Jr. the goodwill associated with the |14Tarco businesses. Although goodwill is intangible, this court has recognized that it is an asset that may be transferred or purchased for consideration. See Williams v. Spelic, 311 Ark. 279, 844 S.W.2d 305 (1992) (<HOLDING>). And, here, David Sr., as the majority Holdings: 0: holding that when federal government acquires property through condemnation it must account for state and local property taxes interest and penalties 1: holding that when a business purchases goodwill and a trade name it acquires a valuable property right and that is the right to inform the public that it possesses the experience and skill associated with the previous enterprise 2: recognizing that the right to opening and closing argument is a valuable right and preserving same is a reasonable strategy 3: holding that for an act to be inconsistent with the right to arbitrate and thus constitute a waiver of that right it must repudiate the right of the party who does the act 4: holding that where state law treats goodwill as property business goodwill is a property interest entitled to protection the owner cannot be deprived of it without due process


Input: 389 N.W.2d 686. Thus, a “successful claim under the [PWDCRA] requires a finding that plaintiff is physically limited in a way unrelated to his ability to work.” Kerns v. Dura Mechanical Components, Inc., 242 Mich.App. 1, 17, 618 N.W.2d 56 (2000). Where an employee claims that he was not actually disabled but was perceived as being disabled by his employer, an employer has no duty to provide an accommodation. Workman v. Frito-Lay, Inc., 165 F.3d 460, 467 (6th Cir.1999) (“Under the third prong, ‘regarded as’ having a disability, the defendant correctly contends that a finding on this basis would obviate the Company’s obligation to reasonably accommodate Workman.”). See also Baker v. Windsor Republic Doors, No. 1:06-cv-01 137, 2009 WL 1231035 at *9 (W.D.Tenn. May 1, 2009) (unpublished) (<HOLDING>). Where an employee is unable to demonstrate Holdings: 0: holding that regarded as claim was reasonably related to claim of discrimination on the basis of disability 1: holding that an employee whose disability is related to his ability to perform the duties of his position is not disabled under the act and therefore an employer has no duty to accommodate 2: holding that regarded as claim is reasonably related to claim of discrimination on the basis of disability alleged in eeoc charge 3: holding that regarded as disabled plaintiffs are not entitled to reasonable accommodation 4: holding that the sixth circuits clear statement in workman that a finding of regarded as disability obviates the obligation to reasonably accommodate is binding precedent and upholding jurys finding that defendant was not liable for failing to accommodate a regarded as disabled employee


Input: given full effect. Lanier v. Rains, 229 S.W.3d 656, 661 (Tenn.2007). When the language of a statute is ambiguous in that it is subject to varied interpretations producing contrary results, Walker, 249 S.W.3d at 309, we construe the statute’s meaning by examining “the broader statutory scheme, the history of the legislation, or other sources.” State v. Sherman, 266 S.W.3d 395, 401 (Tenn.2008). However, when the import of a statute is unambiguous, we discern legislative intent “from the natural and ordinary meaning of the statutory language within the context of the entire statute without any forced or subtle construction that would extend or limit the statute’s meaning.” State v. Flemming, 19 S.W.3d 195, 197 (Tenn.2000); see also In re Adoption of A.M.H., 215 S.W.3d 793, 808 (Tenn.2007) (<HOLDING>). We presume that “the General Assembly is Holdings: 0: holding that we must give effect to the plain and ordinary meaning of a statutes language 1: holding that statutory words must be given their ordinary contemporary meaning 2: recognizing that where the statutory language is not ambiguous  the plain and ordinary meaning of the statute must be given effect 3: holding that bribery must be given its ordinary meaning at the time of the enactment of the relevant statute 4: holding that the clear and unambiguous words of an insurance contract should be given their plain and ordinary meaning


Input: and suppressing violations of laws of the United States, “officers may at any time go on board of any vessel subject to the jurisdiction, or to the operation of any law, of the United States, address inquiries to those on board, examine the ship’s documents and papers, and examine, inspect, and search the vessel and use all necessary force to compel compliance.” This statute has been construed to permit the Coast Guard to stop an American vessel in order to conduct “a document and safety inspection on the high seas, even in the absence of a warrant or suspicion of wrongdoing,” United States v. Hilton, 619 F.2d 127, 131 (1st Cir.1980), and to conduct a more intrusive search on the basis of reasonable suspicion, see United States v. Wright-Barker, 784 F.2d 161, 176 (3d Cir.1986) (<HOLDING>), superseded by statute on other grounds as Holdings: 0: holding that forfeiture statute is subject to the fourth amendments prohibitions against unreasonable searches and seizures 1: holding that the fourth amendment proscription against unreasonable searches and seizures was applicable to the states under the fourteenth amendment so that evidence seized in violation of the constitution could no longer be used in state courts 2: holding sbm is not a violation of the defendants fourth amendment right to be free from unreasonable searches and seizures 3: holding that a reasonable suspicion requirement for searches and seizures on the high seas survives fourth amendment scrutiny 4: holding that inmates fourth amendment protection from unreasonable strip searches survives hudson


Input: CURIAM. The issue presented in this appeal is whether William Nelson’s due process and equal protection rights were violated by the fact that the family court intervention action proceede Cir.1983), cert. denied, 464 U.S. 992, 104 S.Ct. 484, 78 L.Ed.2d 681 (1983) (same); Hoover v. Knight, 678 F.2d 578, 581 (5th Cir.1982) (“Many cases have held that parallel criminal and civil trials or investigations do not raise questions of constitutional magnitude with respect to the privilege against self-incrimination.”); Diebold v. Civil Serv. Comm’n of St. Louis County, 611 F.2d 697, 700-01 (8th Cir.1979) (<HOLDING>); Arthurs v. Stern, 560 F.2d 477, 478-80 (1st Holdings: 0: holding that the statement ill take the fifth was an assertion of the fifth amendment privilege 1: holding that various fifth and sixth amendment protections apply to juvenile proceedings 2: holding the same with respect to violations of the fifth amendment 3: holding that both fourth amendment warrant and probable cause and fifth amendment due process requirements apply to civil forfeiture proceedings 4: holding that the fifth amendment presents no obstacle to parallel criminal and administrative proceedings


Input: 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), we may apply the standard of Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). See Orndorff v. Lockhart, 998 F.2d 1426, 1430 (8th Cir.1993). We must proceed under Chapman, however, if the state court did not. Id. The Missouri Supreme Court reviewed the claim for prejudice and concluded that “the jury’s verdict would have been no different if Gray’s out-of-court statement had been excluded.” Richardson, 923 S.W.2d at 312. Although this may have been sufficient to warrant our applying the more deferential Brecht standard of review, we need not determine this question because admission of the statements was harmless even under Chapman. See Barrett v. Acevedo, 169 F.3d 1155, 1164 (8th Cir.1999) (en banc) (<HOLDING>), petition for cert. filed, (U.S. June 7, 1999) Holdings: 0: holding that chapman harmless error review will be conducted when error is tested for harmlessness for the first time on habeas 1: holding that the state court unreasonably applied chapman but that the error was not prejudicial under brecht 2: holding that chapman mandates harmless error analysis of griffin error 3: recognizing that the state court need not explicitly rely on chapman to warrant federal review under brecht but not deciding the issue because the error was also harmless under chapman 4: holding that chapman harmless error analysis is stricter than its rule 52a counterpart


Input: on multiple counts of the same offense arising out of a single episode constitute a double jeopardy violation. See Fogle v. State, 754 So.2d 878 (Fla. 1st DCA 2000); see also Jones v. State, 711 So.2d 633 (Fla. 1st DCA 1998)(double jeopardy prevents multiple convictions for the same offense); U.S. Const, amend. V; Fla. Const, art. I, § 9. Section 775.021(4)(b), Florida Statutes (1999), provides for separate conviction and sentence for each criminal offense committed in the course of one criminal episode or transaction, unless the offenses require identical elements of proof, the offenses are degrees of the same offense, or the offenses are lesser included offenses the elements of which are subsumed by the greater offense. See Grubbs v. State, 769 So.2d 508 (Fla. 5th DCA 2000)(<HOLDING>). In the instant proceeding, Appellant was Holdings: 0: holding that there are no lesser included offenses of second degree felony murder because of the multiple means of committing the offense 1: holding that in the conviction and sentencing for criminal offenses committed in the course of one criminal episode it is the intent of the legislature that there be a separate conviction and sentence for each criminal offense unless one of the offenses is a degree of the other a necessarily included lesser offense subsumed in the other or both offenses are identical 2: holding that when two underlying offenses are charged in an indictment for capital murder the state need only prove one of the two offenses to support the conviction 3: holding that reviewing court in a proper case may modify a judgment of conviction below and affirm it as a conviction of a lesser degree of the offense charged or of a lesser crime included therein where the errors do not affect the conviction of the lesser offense  4: holding that for conduct arising out of the same criminal episode the elements for the offense of unlawful use of a twoway communications device  are subsumed within the soliciting and traveling offenses


Input: Moniz has been subjected to for his complaints about the corrupt and discriminatory towing policy carried out in Monroe County, Michigan.” R. 1 (Compl. at 6) (Page ID # 6). Section 1981 “prohibits intentional race discrimination in the making and enforcing of contracts involving both public and private actors.” Amini v. Oberlin Coll, 440 F.3d 350, 358 (6th Cir.2006); see 42 U.S.C. § 1981. To state a claim under § 1981, a plaintiff must plead, among other things, that “he belongs to an identifiable class of persons who are subject to discrimination based on their race” and that “the defendant intended to discriminate against him on the basis of race.” Amini, 440 F.3d at 358; see Gen. Bldg. Contractors Ass’n, Inc. v. Pennsylvania, 458 U.S. 375, 391, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982) (<HOLDING>). Racial discrimination includes discrimination Holdings: 0: holding that the plaintiffs complaint failed to state a claim for purposeful and unlawful discrimination 1: holding that a violation of  1981 requires purposeful race discrimination 2: holding intentional or purposeful discrimination a necessary element of equal protection violation 3: holding that 42 usc  1981 requires a showing of purposeful discrimination 4: holding that the constitution prohibits a criminal defendant from engaging in purposeful discrimination on the ground of race in the exercise of peremptory challenges


Input: claim because they do not suggest how they have preserved an appeal on Rule 60(b)(3) grounds. The plaintiffs noticed an appeal both of the final judgment and of the denial of their “motion for reconsideration.” Neither appeal encompasses Rule 60(b)(3) relief. The plaintiffs’ “motion for reconsideration” never argued in any understandable fashion for Rule 60(b)(3) relief. Rather, the plaintiffs asked the district court to reheve them from the judgment on account of “excusable neglect,” pursuant to Rule 60(b)(1). Having failed to include any direct request for Rule 60(b)(3) relief in their motion for reconsideration, the plaintiffs have waived any right to ask for such relief on appeal from the denial of that motion. See Larch v. Mansfield Mun. Elec. Dep’t, 272 F.3d 63, 76 (1st Cir.2001) (<HOLDING>). See also Toscano v. Chandris, S.A., 934 F.2d Holdings: 0: holding that failure to raise issue at district court forecloses party from raising same issue on appeal 1: holding that the court bars a party from raising an issue on remand that  was not raised on appeal 2: holding where a party failed to raise an issue clearly implicated in the initial decision of the trial court our mandate  acted to prevent that party from raising this issue on remand 3: holding that failure to raise issue in brief constitutes waiver of appeal of the issue 4: holding that a party may not raise an issue for the first time on appeal


Input: the New York Court of Appeals in Patterson recognized that “extreme emotional disturbance” as contemplated by the statute is a lesser form of mental infirmity than insanity, the court did not hold that all mental infirmities not arising to the level of insanity constitute “extreme emotional disturbance” within the meaning of the statute.” People v. Casassa, 49 N.Y.2d at 677, 427 N.Y.S.2d 769, 404 N.E.2d 1310. Thus, People v. Patterson, 39 N.Y.2d at 302, 383 N.Y.S.2d 573, 347 N.E.2d 898, should not be read “as holding that all mental infirmity, short of insanity, must constitute ‘extreme emotional disturbance’ if such infirmity causes the defendant to become emotionally disturbed and the defendant subjectively believed his disturbance had a reasonable explanation or excuse.” Id. (<HOLDING>). I find it noteworthy that Linnen, in his pro Holdings: 0: holding that an injured plaintiff with a diminished mental capacity that does not amount to total insanity can be found contributorily negligent but nonetheless should be held to a subjective standard of care 1: holding that people v patterson 39 ny2d 288 383 nys2d 573 347 ne2d 898 does not require that reasonableness be tested with a completely subjective standard ie from solely the defendants point of view 2: holding that whether an officers force was reasonable must be analyzed under the reasonableness standard of the fourth amendment 3: holding that the observation of evidence in plain view is not a search for purposes of the fourth amendment and does not require a warrant 4: recognizing a presumption of reasonableness


Input: decide whether the Marines made a reasonable decision in seeking to install the wiring box,” and would oblige the court to evaluate the reasonableness of military decisions. Id. at 411-12. By contrast, in Bum Pit we analyzed a military contractor’s “proximate causation” defense, in which the contractor maintained that the plaintiffs’ alleged injuries were caused by military decisions and conduct. 744 F.3d at 340. After examining the record that the district court considered, we concluded that the contractor’s causation defense would require an examination of the reasonableness of military decisions only if the case ultimately proceeded under the law of a state having a proportional-liability system that assigns liability based on fault. Id. at 340-41; see also Harris, 724 F.3d at 463 (<HOLDING>); Lane, 529 F.3d at 565-67 (concluding that the 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 the basis of liability is negligence and not injury 2: holding that a physicians negligence need only be a proximate cause not the proximate cause of plaintiffs injury 3: recognizing that limitations on the scope of a defendants liability may be analyzed under the rubric of proximate cause 4: holding that the contractors assertion that the military was a proximate cause of the alleged injury did not present a political question under a jointandseveral liability regime and that even if proportional liability applied the plaintiffs could proceed on any damages claim that did not implicate proportional liability


Input: belief that Congress was concerned solely with delays engendered by trips to the courts is belied by the complete absence of language even hinting at, much less trying to handle, the special circumstances associated with such a trip. Intervenors offer another scenario in which, they say, § 4412(b)(2) could actually have an effect, even as interpreted by FERC. If a shipper challenges an existing filed rate under § 13(1), and the Commission has not previously found that rate to be just and reasonable, the shipper may recover reparations for up to two years prior to filing its complaint. See ICA § 16(3) (requiring complaint within two years of action’s accrual). See also Arizona Grocery Co. v. Atchison, Topeka & Santa Fe Railway Co., 284 U.S. 370, 390, 52 S.Ct. 183, 76 L.Ed. 348 (1932) (<HOLDING>); BP W. Coast Products, LLC v. FERC, 374 F.3d Holdings: 0: holding that when a courts statements from the bench conflict with its written order the order controls 1: holding the commissions order reversing an award and remanding the case to the single commissioner to take further testimony was not final and not appealable to the circuit court until the commissions final determination regarding the single commissioners award the court construed the language in a provision of the code that states appeals from the commission to the circuit court shall be under the same terms and conditions as govern appeals in ordinary civil actions  and stated an appeal to the circuit court will not lie from an interlocutory order of the commission unless it affects the merits citation omitted 2: holding that in reviewing a gaming commission decision the court will examine the record to determine if there is any evidence to support the commissions order 3: holding that the commission may not order reparations where a carrier complied with the commissions earlier order declaring its rate to be reasonable 4: holding that court lacked jurisdiction on appeal from injunction because the order was simply an interpretation of an earlier order


Input: of comity. United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); see also W.R. Grace & Co. v. Continental Cas. Co., 896 F.2d 865, 871 (5th Cir.1990) (“Gibbs teaches that federal courts must refrain from unnecessary poaching upon a sovereign state’s jurisprudential turf.”). Particularly when, as here, the Court’s decision would have “widespread ramifications” for an important industry, the Court should refrain from making a needless Erie guess. See, e.g., Jesco Const. Corp. v. NationsBank Corp., 278 F.3d 444, 448 (5th Cir.2001). Federal and state jurisprudence appear to give opposing guidance on the question of whether the VPL applies to perils other than fire. Compare, e.g., Graham v. Milky Way Barge, Inc., 824 F.2d 376, 381 (5th Cir.1987) (<HOLDING>); and In re Consolidated Cos., 185 B.R. 223 Holdings: 0: holding that crossdefault provisions in insurance policies were unenforceable because they would impermissibly restrict the debtors ability to assume some of the policies and reject others 1: holding that an arbitration award involving the appellants challenge to the failure of the insurance company to ensure that he had read and understood a signed waiver and to attach the waiver to the insurance policy as contrary to public policy is not reviewable by the courts because there is no challenge to a provision or term of the policy the appellant never claimed that the waiver or policy language itself was contrary to the public policy of this commonwealth 2: holding that household exclusion clauses in policies of automobile liability insurance are contrary to public policy 3: holding that the language of the statute and the courts duty to apply the statute as written requires the court to interpret the statute to apply when the prisoner is sentenced without regard to the institution where the prisoner is incarcerated after the sentencing 4: holding that the antitechnical language of section 22692 which applies to policies of fire insurance does not apply to a policy covering a capsized jack up vessel operating offshore and noting that biased upon the language of the statute itself the provision would appear to apply to fire policies only


Input: 376 N.J.Super. 163, 168, 869 A.2d 473 (App.Div.), certif. denied, 183 N.J. 592, 874 A.2d 1109 (2005). The offenses at issue here were committed on October 29, 2000, which was before the June 29, 2001, effective date of certain amendments to NERA L. 2001, c. 129, § 1. In State v. Manzie, 335 N.J.Super. 267, 278, 762 A.2d 276 (App.Div.2000), aff'd, 168 N.J. 113, 773 A.2d 659 (2001), we held that the version of NERA in effect prior to the 2001 amendments did not apply to murder in part because murder has its own extensive sentencing scheme. However, manslaughter is not murder. N.J.S.A. 2C:11-4c. Thus, the application of NERA to count two in this case was proper. See State v. Viera, 346 N.J.Super. 198, 206-7, 787 A.2d 256 (App.Div.2001), certif. denied, 174 N.J. 38, 803 A.2d 634 (2002) (<HOLDING>). We are additionally satisfied that the Holdings: 0: holding that the commission on remand can set the effective date of a rate to be the effective date of the original commission activity 1: holding that the date of discrimination is the date on which a decision not to hire a plaintiff becomes effective 2: holding that guidelines did not become effective until adopted by the legislature on july 1 1984 and those who committed their offenses before the effective date must affirmatively elect to be sentenced under the guidelines 3: holding that nera applied to passionprovocation manslaughter committed before the effective date of the nera amendments 4: holding that the fsas more lenient penalties apply to defendants who committed their crimes before the acts effective date but were sentenced after that date


Input: with disciplinary proceedings, we held that the entitlement of a government official to immunity from suit should be decided on a case-by-case basis, “depend[ing] upon the nature of the governmental function being performed.” Id. (“[I]mmunity doctrines protect private actors when they perform important governmental functions.”). Consistent with that approach, we recognized that “courts have not hesitated to extend the doctrine of absolute immunity to private entities engaged in quasi-public adjudicatory and prosecutorial duties.” Id. (emphasis added); see also Sparta Surgical Corp., 159 F.3d at 1214 (affirming dismissal of suit against the NASD for improperly de-list-ing and suspending trading in a stock on the NASDAQ stock market on immunity grounds); Austin Mun. Sec., 757 F.2d at 689 (<HOLDING>); cf. Harms v. Riordan-Bellizi, 223 A.D.2d 624, Holdings: 0: recognizing absolute presidential immunity from damages liability for acts within the o uter perimeter of his official responsibility 1: holding that a state official can be held individually hable under  1983 for acts taken within the scope of his or her official duties 2: holding that social services attorneys were entitled to absolute immunity for actions related to the prosecution of child neglect and delinquency proceedings 3: holding that nasd disciplinary officers are entitled to absolute immunity from further prosecution for civil liability for them actions taken within the outer scope of them official duties 4: holding that the activities of two loan officers acting within the scope of their authority could not subject them to rico liability for conducting the affairs of the alleged enterprisebank


Input: Scotty’s and Ms. Rhodes. That Ms. Rhodes dealt with the Scotty’s closure and further events in a manner serving her own economic interests hardly shows a lack of good faith. To the contrary, that Ms. Rhodes m e not strangers to this transaction. Mr. Rhodes was acting as the attorney and agent for Ms. Rhodes. North Monroe Capital was formed after the deal was struck and took title to the leasehold interest acquired from Scotty’s essentially as Ms. Rhodes’ nominee. This was done for tax reasons and to avoid any claim that the fee and leasehold interests had merged as a matter of law, thus terminating the 26-year lease. A party to a contract cannot tortiously interfere with her own contract. See, e.g., Cedar Hills Props. Corp. v. E. Fed. Corp., 575 So.2d 673, 676-77 (Fla. 1st DCA 1991) (<HOLDING>); see also Richard Bertram, Inc. v. Sterling Holdings: 0: holding that while an agents knowledge is imputed to the principal due to the identity of interests that is presumed when an agent acts within the scope of an agency relation this rule does not operate in the converse and the agent cannot be imputed with the information which its principal has failed to give it 1: holding that leasing agent acting within his capacity and scope as an agent cannot be considered to be a separate entity outside of the contractual relationship which can tortiously interfere with that relationship 2: holding that licensed agent is in privity with principal for purpose of establishing identity of parties record establishes classic employeremployee relationship in which corporation is vicariously liable for conduct of agent 3: holding that both agent and principal will be liable when the agent acts within the scope of his employment but for his own purposes 4: holding that a section 1983 suit against an officer in his or her official capacity is simply another way of pleading an action against an entity of which an officer is an agent


Input: the rating schedule for the next-higher disability ratings. The record reflects that he was advised of the evidence necessary to substantiate the next-higher disability ratings for each of these claims (see e.g., R. at 226-27, 457-69, 493-500, 503-04, 529-42). Accordingly, even if notice was otherwise inadequate, Mr. Coker was not prejudiced. See Mayfield v. Nicholson, 19 Vet.App. 103, 121 (2005) (noting that notice errors can be shown to be nonprejudicial and citing several examples where notice error would not be prejudicial), appeal docketed, No. 05-7157 (Fed. Cir. June 14, 2005); see also 38 U.S.C. § 7261(b)(2); Conway v. Principi, 353 F.3d 1369, 1375 (Fed.Cir. 2004) (Court is required to “take due account of the rule of prejudicial error”); Marciniak v. Brown, 10 Vet.App. 198, 201 (<HOLDING>); Barker v. Brown, 9 Vet.App. 476, 481 Holdings: 0: holding that remand is unnecessary when only one conclusion is supportable on the record 1: holding that remand is unnecessary when it is clear that the same decision would have been reached in the absence of the errors 2: holding that we will not reverse in the absence of prejudice 3: holding that in the absence of demonstrated prejudice remand is unnecessary 4: holding remand unnecessary where outcome is clear as a matter of law


Input: also take this position. See, e.g., Corwin v. Marney, Orton Invs., 788 F.2d 1063, 1066 (5th Cir.1986); SEC v. Seaboard Corp., 677 F.2d 1301, 1308 (9th Cir.1982); Hernandez v. Childers, 736 F.Supp. 903, 909-10 (N.D.Ill.1990); Armbrister v. Roland Int’l Corp., 667 F.Supp. 802, 823 (M.D.Fla.1987); Gutfreund v. Christoph, 658 F.Supp. 1378, 1389 (N.D.Ill.1987); see also Loss, supra, at 990 (stating that, for sections 12(1) and 12(2), “the three-year cutoffs are absolute”). Against this precedent Plaintiffs submitted a single case, a district court case which has since been reversed, with respect to its decision regarding section 12(2). See In re Home-Stake Prod. Co. Sec. Litig., 76 F.R.D. 337 (N.D.Okla.1975), rev’d sub nom. Anixter v. Home-Stake Prod. Co., 939 F.2d 1420 (10th Cir.1991) (<HOLDING>), cert. granted and judgment vacated on other Holdings: 0: holding that both section 122 and rule 10b5 claims are timebarred by section 13 1: holding that options traders may assert rule 10b5 claims 2: holding that even constitutional claims can be timebarred 3: holding only purchasers and sellers of securities can recover under section 10b and rule 10b5 4: holding that statute of limitations for contribution actions found in section 13  204 of the code applies over limitations period for malpractice actions found in section 13  212 of the code where the plaintiffs complaint was based solely on contribution act ill rev stat 1985 ch 70 par 301 et seq section 13  204 is more specific than section 13  212


Input: the case. We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). “An abuse of discretion may be found ... where the [BIA’s] decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner.” Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir.2001) (internal citations omitted). We conclude that the BIA did not abuse its discretion in denying Lin’s motion to reopen where he failed to demonstrate that he was prejudiced by his former counsels’ purportedly ineffective assistance. See Rabiu v. INS, 41 F.3d 879, 882-83 (2d Cir.1994) (<HOLDING>). Indeed, Lin was not prejudiced by his first Holdings: 0: holding that an alien must establish that he was prejudiced by the alleged error in order to prevail on a due process claim 1: recognizing that defendant must show 1 that counsels performance was deficient and 2 that counsels errors prejudiced the defense 2: recognizing that in order to prevail on a claim of ineffective assistance of counsel a movant must show that he was prejudiced by his counsels performance 3: holding that ineffective assistance of counsel constitutes cause for procedural default only if counsels performance was constitutionally ineffective 4: recognizing a constitutional claim for ineffective assistance of counsel


Input: The voluntariness of attendance at the ceremony does not decrease the concern that prayer at the ceremony might still appear to have the stamp of school approval. Despite the defendant’s contention, the voluntariness of the ceremony is not dis-positive of the matter. Graduation is an important event for students. It represents official recognition of the success ful completion of several years of scholastic endeavor and symbolizes transition into a more mature society than was previously available to the students. It is cruel to force any individual to violate his conscience in order to participate in such an important event in the individual’s life. Lemke v. Black, 376 F.Supp. 87, 89-90 (E.D.Wis.1974). See also Jager v. Douglas County School Dist., 862 F.2d 824, 832 (11th Cir.1989) (<HOLDING>) Thus, the court concludes that prayer at the Holdings: 0: holding that adolescent family life act on its face did not violate the establishment clause but remanding for examination of the constitutionality of particular applications 1: holding no violation of federal establishment clause 2: holding that under the supremacy clause a state court could not enforce a prohibition on the unauthorized practice of law against an individual who was permitted to practice law under the rules of a federal court located in the states jurisdiction 3: holding practice of delivering prayers before high school football games unconstitutional court rejected voluntariness argument stating that the establishment clause focuses on the constitutionality of the state action not on the choices made by the complaining individual 4: holding that the presence of a cross on the city insignia did not violate the establishment clause


Input: of Law (Dkt, 961) with the additional argument that Florida's garnishment statutes have no extraterritorial effect. 4 . In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the Eleventh Circuit adopted as binding precedent all decision of the Fifth Circuit issued prior to October 1, 1981. 5 . See also GM Gold & Diamonds, LP v. Fabrege Co., Inc., 489 F.Supp.2d 725, 727 (S.D.Tex.2007) (noting that attachment orders may reach only as far as'the court’s in rem jurisdiction). 6 . See also Baker v. Bennett, 644 So.2d 901, 903 (Ala. 1994) ("Assets not within the jurisdiction of a court issuing a garnishment and not capable of being levied on cannot be reached by the garnishment.”). 7 . See also, e.g., In re Curtina Int'l, 15 B.R. 993, 998 (Bankr.S.D.N.Y.1981) Holdings: 0: holding that the title of the statute did not limit the reach of the statute 1: holding that rule b attachment does not extend to afteracquired property 2: holding that the attachment statute which did not expressly reach property beyond territorial limits of state would not be construed to apply to property outside state 3: holding that a court had the power pursuant to  105a to compel a defendant to deliver her property which was the subject of a bankruptcy proceeding from outside the courts territorial jurisdiction 4: holding that the basis of in rem jurisdiction is the presence of the subject property within the territorial jurisdiction of the forum state


Input: expressly exempt from that procedure and 3) the CBA provides no express alternative means for resolving a contractual dispute under Article 10. Farley disagrees and contends that it is exactly in cases such as this where the agreement lacks a provision for arbitration or some other method for final resolution that relief in federal court is statutorily permitted. The Court agrees. The United States Supreme Court has long recognized that district courts have subject matter jurisdiction in a dispute over an employee’s rights under a collective bargaining agreement in the absence of an agreement for arbitration or some other form of final resolution. 29 U.S.C. § 185(a); see also Local 369, Utility Workers Union of America, AFL-CIO v. Boston Edison Co., 588 F.Supp. 800, 804 (D.Mass.1984)(<HOLDING>), aff'd, 752 F.2d 1 (1st Cir.1984). Generally, Holdings: 0: holding that a credit card company could not introduce an alternative dispute resolution provision through a bill stuffer where nothing in the original agreement mentioned dispute resolution 1: holding that a party attempting to compel arbitration must first establish that the dispute in question falls within the scope of a valid arbitration agreement 2: holding that judicial is review available in the absence of an agreement for arbitration or some other form of final resolution of a dispute 3: holding that judicial review of arbitration awards is narrow in scope 4: holding that the federal arbitration act requires piecemeal resolution when necessary to give effect to an arbitration agreement and mandates enforcement of an arbitration agreement notwithstanding the presence of other persons who are parties to the underlying dispute but not to the arbitration agreement emphasis added


Input: party, or attendee that further instances of particular behavior will be deemed contemptuous before actually charging the offender with contempt. See Pilsbury, 866 F.2d at 26. None of these caveats, however, undermines the fact that a verbal attack can be so unnecessary and so insulting to judicial authority as to constitute, without prior warning, contempt. Marshall’s conduct easily meets that standard. However, we cannot affirm Marshall’s sentence. As the government concedes, a defendant has a right to a jury trial before being sentenced to a prison term of more than six months for criminal contempt. Codispoti v. Pennsylvania, 418 U.S. 506, 512, 516-17, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974); see also Bloom v. Illinois, 391 U.S. 194, 198-200, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968) (<HOLDING>); United States v. Twentieth Century Fox Film Holdings: 0: holding that article 3707 section 3 of the code of criminal procedure requires the trial court to give a defendant opportunity to present evidence regarding punishment after it has found the particular defendant guilty and before punishment is assessed 1: holding that determination of whether prior conviction was punishable by term of imprisonment exceeding one year is governed by law in effect on date of conviction 2: holding that the jury is not to consider the potential punishment which could result from a conviction 3: holding that a civil contempt defendant has a right to a jury trial when the act of contempt was not committed in the presence of the court and when the incarceration is in part punitive 4: holding that defendant has right to trial by jury before conviction of contempt punishable by severe punishment


Input: reiterated their positions and motions. The Court decided to have the jurors redeliberate on those counts and gave a supplemental instruction telling the jury, among other things, that it was desirable to reach a verdict but emphasizing that the jurors should not surrender their convictions and that the verdict must reflect the conscientious judgment of each juror. After delib erating again, the jury returned a guilty verdict against Wrensford on Counts III and IV and against Muller on Count I. The jury was polled again, and- all jurors, including Juror 7, replied "Yes,” that it was their independent verdict, on all counts. App. 2566-70. Wrensford was thus convicted on Counts I-V, and Muller was convicted on Counts I, IV, and V. Wrensford moved for , 589, 591-92 (6th Cir. 1994) (<HOLDING>); United States v. Obasa, 15 F.3d 603, 608 (6th Holdings: 0: holding that where an individual voluntarily goes to the police station to discuss the commission of a crime that person has not been seized within the meaning of the fourth amendment 1: holding that taking an individual who was not suspected of any crime to a police station and into an interview room and detaining her for approximately four hours where it was made clear she was not free to leave violated the fourth amendment 2: holding that accused was not in custody when told he was not under arrest and was free to leave and did in fact freely leave the interview 3: holding that an employee who did not present evidence that she could have returned to work prior to the expiration of her fmla leave allowance was not entitled to additional leave merely because her employer had not properly provided her with notice that the leave was designated as fmla leave 4: holding that a defendant who was told several times he was not under arrest and who never asked to leave during an interview with investigators was not in custody


Input: Immigrant Petition for Alien Relative. At no time did Hamed enter an appearance on behalf of the petitioner in the instant deportation proceedings. . While Scorteanu has averred that he informed Hamed of his pending asylum application and that Hamed had agreed to inquire into the status of petitioner’s asylum case, any statements made by Hamed with respect to the pendency of the deportation proceedings are irrelevant to the petitioner’s claims of exceptional circumstances and lack of notice where Hamed was not petitioner's counsel of record. 3 . The BIA accepted this time frame in its November 9, 2001 dismissal of petitioner’s appeal. 4 . The issue of equitable tolling due to excep-lional circumstances has split the circuits. Compare Anin v. Reno, 188 F.3d 1273, 1278 (11th Cir.1999) (<HOLDING>) with Lopez v. INS, 184 F.3d 1097, 1100 (9th Holdings: 0: holding that exhaustion is mandatory and jurisdictional 1: recognizing that exhaustion is mandatory and jurisdictional 2: holding that  242bc3a sets forth a mandatory and jurisdictional time bar 3: holding that time limit for filing petition for review is mandatory and jurisdictional 4: holding that this time requirement is mandatory and jurisdictional


Input: is sufficiently imminent.” Hedges v. Obama, 724 F.3d 170, 195 (2d Cir. 2013); see also Lyons, 461 U.S. at 107 n.8, 103 S.Ct. 1660 (“It is the reality of the threat ... that is relevant to the standing inquiry, not the plaintiffs subjective apprehensions.”). Courts have broadly rejected claims based on the risk of falling victim to a future terrorist attack, concluding that such harms are impermissibly speculative and so insufficient to confer standing. See, e.g., Tomsha v. Gen. Servs. Admin., No. 15-CV-7326 (AJN), 2016 WL 3538380, at *2-3 (S.D.N.Y. June 21, 2016); Bernstein v. Kerry, 962 F.Supp.2d 122, 127-28 (D.D.C. 2013); People of Colo. ex rel. Suthers v. Gonzales, 558 F.Supp.2d 1158, 1162 (D. Colo. 2007); cf. George v. Islamic Rep. of Iran, 63 Fed.Appx. 917, 918 (7th Cir. 2003) (<HOLDING>). 3. Application to the Cohen Complaint The Holdings: 0: holding in the medical malpractice context that a plaintiff must prove that the alleged negligence more likely than not caused the victims death 1: holding that a plaintiffs belief that a product could fail in the future is not without more a legal injury sufficient to support plaintiffs claim 2: holding plaintiffs who claimed their ability to walk sit stand and sleep was moderately below average were not disabled 3: holding that in order to establish standing a plaintiff must show 1 it has suffered an injury in fact  2 the injury is fairly traceable to the challenged action of the defendant and 3 it is likely as opposed to merely speculative that the injury will be redressed by a favorable decision 4: holding that plaintiffs were no more likely than the average   citizen to be victims of future attacks and so their claimed injury was purely speculative


Input: deficient, and (2) they suffered prejudice, which means that “there is a reasonable probability that, but for counsel’s unprofessional error, the result of the proceeding would have been different.” Id. at 687, 104 S.Ct. 2052. “[C]ounsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case.” Id. at 690,104 S.Ct. 2052. 1. Deficient Performance “[A]n attorney’s failure to present available exculpatory evidence is ordinarily deficient, unless some cogent tactical or other consideration justified it.” Pavel v. Hollins, 261 F.3d 210, 220 (2d Cir.2001) (quoting Griffin v. Warden, 970 F.2d 1355, 1358 (4th Cir.1992)) (internal quotation marks omitted). See also Blackburn v. Foltz, 828 F.2d 1177, 1183 (6th Cir.1987) (<HOLDING>); Towns v. Smith, 395 F.3d 251, 258-61 (6th Holdings: 0: holding that counsels total failure to conduct pretrial discovery constituted ineffective assistance 1: holding that the ineffective assistance of counsel claim for counsels failure to present the preindictment delay issue was without merit because there was no actual prejudice to the supposed alibi defense as the now unavailable witnesses would not have provided the defendant with an alibi for the time when the murder could have occurred 2: holding that failure to properly pursue a potential alibi defense constituted ineffective representation outside the wide range of professionally competent assistance 3: holding the failure to call alibi witnesses promised during opening statement was not ineffective assistance of counsel 4: recognizing in ineffective assistance of counsel claims a presumption that counsels conduct falls within the wide range of reasonable professional assistance


Input: 1 Vet.App. at 593; see also Weaver, 14 Vet.App. at 302. B. Duty to Assist The Board found that VA had fully complied with it’s duty to assist the appellant pursuant to 38 U.S.C. § 5103A. R. at 8. Specifically, the Board determined that further efforts to locate the appellant’s SMRs would be “futile;” that VA had obtained all postservice medical records that the appellant had identified; and that it had given the appellant opportunities to submit any additional evidence that would support his claim. R- at 8-9. The Board did >not address, however, VA’s duty to exercise greater diligence in assisting the . appellant with the development of evidence in support of his claim in the event that his medical records were lost while in VA custody. See Russo v. Brown, 9 Vet.App. 46, 51 (1996) (<HOLDING>); Cuevas v. Principi, 3 Vet.App. 542, 548 Holdings: 0: holding that the boards duty to assist a claimant in developing his claim is heightened in cases in which the appellants smrs are lost or destroyed and includes the obligation to search for alternate medical records 1: holding that vas duty to assist is particularly great in light of the unavailability of the veterans exit examination and full army medical records 2: holding that the courts caselaw establishes a heightened duty to assist when the appellants medical records have been lost or destroyed 3: holding that constitutional right of privacy does not apply to medical records 4: holding that the visitor records at issue here continue to be agency records for purposes of foia even after they are transferred to the white house or ovp and internally destroyed


Input: The time frame given in the Arrest Warrant Affidavit for the exchange of money with the Cl overlaps with the time frame during which Defendant was at his mother’s house. Consequently, the affidavits do not impugn the veracity of the Investigating Officers because they are not inconsistent with what the police claim to have observed. The Defendant also maintains that the Investigating Officers must have lied about the April 19 sale because he was wearing a blue shirt that night, contrary to the facts as reported in the Arrest Warrant Affidavit. When a defendant offers proof of actual inaccuracies that are or should be within police knowledge, he has met his preliminary burden under the first prong of the Franks test. See, e.g., United States v. Stanert, 762 F.2d 775, 780 (9th Cir.1985) (<HOLDING>); Yusuf, 2005 WL 1592928, at *8-5 (holding that Holdings: 0: holding that police officers have a duty to conduct an investigation into the basis of the witness report 1: holding that witness statements in police report inadmissible 2: holding that failure to investigate fully is not evidence of affiants reckless disregard for the truth because questioning of others might have caused a leak in the drug investigation 3: holding that defendant made preliminary showing where the proffered evidence the investigation report contradicted the affiants statements 4: holding that statements made to internal investigator of employer were made in an investigation under this subchapter where investigation was pursuant to a charge filed with eeoc


Input: and they typically involve elements of pressure or inducement.” Id. A certain amount of hyperbole and exaggeration is expected in an election campaign, which is why the responsibility for assessing the relevant facts and deciding whether the union’s conduct interfered with a reasonable employee’s free and fair choice in a representation election lies with the Board. Id. This case is no different. Third and finally, we agree with the Board that, even if Knowles’ statement could somehow be construed as a threat, the statement merely implied that Knowles should not forsake a good relationship with Jones, even if Knowles moved into management, because no one knows what the future may bring. As such, the statement would not coerce a voter or cause a voter to change his or her vote. Cf id. (<HOLDING>). In sum, the Board’s determination that the Holdings: 0: holding union members state law claims for defamation against union preempted 1: holding that a union agent did not engage in coercive conduct when he told employees that they should sign a petition stating they would vote for the union to  separate the men from the boys  2: recognizing that union members interests are adequately represented by the union 3: holding that a union officials comments may be used to infer the object of union activity 4: holding that a rico action by union members was properly dismissed where any financial improprieties occurred with union funds and directly injured solely the union


Input: retroactive application of the statute may still be impermissible if it violates a constitutional provision. See St. Cyr, 533 U.S. at 316,121 S.Ct. 2271 (noting that Congress may enact retrospective laws “within constitutional limits”); see also Landgraf, 511 U.S. at 267, 114 S.Ct. 1483 (noting that “[a]bsent a violation of [a constitutional provision], the potential unfairness of retroactive civil legislation is not a sufficient reason for a court to fail to give a statute its intended scope”). This court has previously determined that the retroactive application of the stop-time rule to proceedings that were currently pending when the IIRIRA was enacted does not violate the due process clause. Gonzalez-Torres, 213 F.3d at 902-03; see also Rojas-Reyes, 235 F.3d at 121— 24 (<HOLDING>). There is no reason to treat the due process Holdings: 0: holding that being placed in removal proceedings rather than deportation proceedings does not violate a petitioners due process rights 1: holding that retroactive application of the stoptime rule to proceedings pending when the iirira was enacted does not violate substantive or procedural due process rights 2: holding no retroactive application 3: holding that doctrine does not violate due process 4: holding retroactive application


Input: if these other types of rehabilitation services fit within the definition of medical services. ABA is a widely accepted therapy that is "firmly supported by decades of research and application and is a well-established treatment modality of autism and other [pervasive developmental disorders].” McHenry, 679 F.Supp.2d at 1237. Based on the text and context of the statute—including the statutory definition of “rehabilitation services” — the Court agrees that ABA therapy fits within the ordinary definition of medical services. Accord Hummel v. Ohio Dep't of Job & Family Servs., 164 Ohio App.3d 776, 844 N.E.2d 360, 366 (2005) (interpreting "medical service” to include ABA therapy under the ordinary definition); KG. ex rel. Garrido v. Dudek, 839 F.Supp.2d 1254, 1276-77 (S.D.Fl. 2011) (<HOLDING>), affirmed in relevant part Garrido v. Dudek, Holdings: 0: holding that aba therapy is a medical service that must be covered under medicaid 1: holding that a state medicaid agency can review the medical necessity of treatment prescribed by a doctor on a casebycase basis 2: holding that a medicaid recipient who was involuntarily removed from private nursing did not have a private right of action under the medicaid statute against a nursing home 3: holding that medical expenses must be proven to be both reasonable and necessary 4: holding that  1396aa8 is enforceable by medicaid recipients under  1983


Input: the clear and unambiguous language of the statute barred his claims for adverse possession, regardless of when the claim may have accrued. Assuming for argument that a plaintiff may base a quiet title claim on a claim of adverse possession that has ripened into title prior to the United States claiming an interest in the property, there are no facts to support such a claim in this case. Admittedly, the district court did not reach this conclusion in its decision because it found that plaintiffs adverse possession claims were barred. Nonetheless, we may “affirm a grant of summary judgment on grounds other than those relied on by the district court when the record contains an adequate and independent basis for that result.” Terra Venture, Inc. v. JDN Real Estate Overland Park, L (1960) (<HOLDING>). Beginning in 1977, plaintiff claims to have Holdings: 0: holding that k no wing possession can be demonstrated by proof of either actual or constructive possession 1: holding that placing of markers on property does not constitute actual possession 2: holding that probation does not constitute a sentence 3: holding that the phrase possession or custody in  5225b requires actual and not merely constructive possession 4: holding that property of a public entity includes having exclusive control and possession of  property


Input: No. 15 at 6.) The Court agrees. The United States is a sovereign nation, and as such, it may not be sued absent consent. See Lehman v. Nakshian, 453 U.S. 156, 160, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981); Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir.1985.) If the United States has not consented to the suit, subject matter jurisdiction is lacking and the complaint must be dismissed. Fed.R.Civ.P. 12(h)(3); United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983); Gilbert, 756 F.2d at 1458. Administrative prerequisites aimed at agency resolution of a claim prior to suit generally are jurisdictional, as the Government’s consent to be sued is premised upon adherence to the prerequisites. See, e.g., Sommatino v. United States, 255 F.3d 704, 708 (9th Cir.2001) (<HOLDING>); Jerves v. United States, 966 F.2d 517, 519 Holdings: 0: holding that exhaustion of administrative remedies is a mandatory prerequisite to a lawsuit under foia 1: holding exhaustion of regulatory administrative process is jurisdictional prerequisite to district court hearing discrimination claim 2: recognizing that exhaustion of state administrative remedies is not a prerequisite to bringing a  1983 action 3: holding that exhaustion of issues is jurisdictional 4: holding that exhaustion is mandatory and jurisdictional


Input: 2510, 2517, 125 L.Ed.2d 74 (1993). ****** For the foregoing reasons, the judgment of the district court is hereby reversed. So Ordered. 1 . In any event, the statutoiy issue is intertwined with the First Amendment concerns. 2 . We note, however, that the Court did not explicitly address whether it ought to decide the constitutional question before addressing the merits of the underlying common law claims in these cases. 3 . We could hardly hold only the appointments of commissioners appointed by a President of the opposite party invalid. 4 . Perhaps the President could challenge the constitutionality of the law by alleging that the statute impinged on his appointment power with respect to a particular nomination. 5 . But see Pillsbury Co. v. F.T.C., 354 F.2d 952, 964-65 (5th Cir.1966) (<HOLDING>). 6 . The Commission actually raises the de Holdings: 0: holding that senate subcommittee proceedings where commissioners were questioned about their conduct in a specific case deprived the defendant corporation of due process 1: holding that although the parking citation that the plaintiff received did not indicate where and how to contest the allegation the plaintiff was not deprived of procedural due process because he received a summons to appear in court via first class mail before he was deprived of any liberty interest 2: holding that a prisoner cannot be deprived of a protected liberty interest in goodtime credits without procedural due process 3: holding that lack of notice of charges in disciplinary proceedings violates the due process clause 4: holding that privileges licenses certificates and franchises qualify as property interests for purposes of procedural due process but that due process only becomes relevant where such property is deprived


Input: “makes it an unlawful employment practice to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... sex.” See 42 U.S.C. § 2000e-2(a)(l); see also Harris v. Forklift, 510 U.S. 17, 20, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). The Supreme Court has interpreted the phrase terms, conditions or privileges of employment broadly, and has stated that it encompasses Congress’ intent to “strike at the entire spectrum of disparate treatment of men and women in employment, which includes requiring people to work in a discriminatory hostile or abusive environment.” Harris, 510 U.S. at 20, 114 S.Ct. 367; see also Burlington Industries v. Ellerth, 524 U.S. 742, 753-754, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (<HOLDING>). That is, Title VII is violated whenever “the Holdings: 0: holding that a viable hostile work environment claim requires an environment that a reasonable person would find hostile or abusive 1: holding that a hostile work environment is a form of discrimination that is actionable under the statute 2: recognizing hostile work environment discrimination in ada context 3: recognizing a hostile work environment claim under section 1983 4: recognizing that a claim of hostile environment sex discrimination is actionable under title vii


Input: she largely ignored obvious signs that her property was being used to grow marijuana plants. The fact that the occupant was Ms. Scott’s son does not relieve her of her duties as a landowner to take all reasonable steps to keep her property free of illegal activities. Such a bond certainly does not automatically entitle her to a jury trial on the question of the reasonableness of her actions. Denying the innocent owner defense to a landowner who failed to investigate thoroughly claims that her son grew drugs on the property, evict her son upon confirmation of those claims, or report such activities to police would be less harsh than what other courts have required of landowners. See, e.g., United States v. Two Parcels of Prop. Located at 19 & 25 Castle St., 31 F.3d 35, 40 (2d Cir.1994) (<HOLDING>); United States v. Sixty Acres in Etowah Holdings: 0: holding that parents who feared drug lord retaliation notified police and pressed their children to enter rehabilitation consented as a matter of law to their childrens drug activity because they did not search the premises for drugs and did not evict their children 1: holding that although parents have a fundamental right to the care and custody of their children they have no fundamental right to allocate support to their children as they see fit 2: recognizing that because the state has cognizable interests in the safety of children in its jurisdiction neglectful parents may be separated from their children 3: holding that the governments interest in the welfare of children embraces not only protecting children from physical abuse but also protecting childrens interest in the privacy and dignity of their homes and in the lawfully exercised authority of their parents 4: recognizing fundamental right of parents to care for their children


Input: Court, we decline Darden’s invitation to expand what the Court intended to be a limited exception to Strickland — that applies only when the defehdant is actually or constructively denied effective assistance of counsel — into a broader, unintended exception.” Darden v. United States, 708 F.3d 1225, 1232 (11th Cir.2013). See also Davenport v. Diguglielmo, 215 Fed.App’x 175 (3d Cir. 2007). “Previous circuit court decisions have elaborated on this distinction between ineffective assistance of counsel and the constructive denial of counsel. Collectively, these decisions reinforce the notion that defense counsel must entirely fail to subject the prosecution’s case to meaningful adversarial testing for the Cronic exception to apply. Gochicoa v. Johnson, 238 F.3d 278, 285 (5th Cir. 2000) (<HOLDING>). Thus, when analyzing an attorney’s decision Holdings: 0: holding that when the defendant receives at least some meaningful assistance he must prove prejudice in order to obtain relief for ineffective assistance of counsel quoting goodwin v johnson 132 f3d 162 176 n 10 5th cir1997 1: holding that an issue of ineffective assistance of counsel is rendered moot when a defendant receives an illegal sentence 2: holding that a defendant must show actual prejudice to succeed on an ineffective assistance of counsel claim 3: recognizing a constitutional claim for ineffective assistance of counsel 4: holding that defendant may raise claim of ineffective assistance of counsel on direct appeal only if ineffective assistance is conclusive from the record


Input: exemption of noncontiguous jurisdictions must be understood to signify, by implication, Congressional approval of any and all egg-labeling requirements in those places regardless whether justified or unjustified by Dormant Commerce Clause considerations. But this seems to us a more extreme reading than either the statutory language or legislative history necessitates. Absent, at least, an affirmatively stated grant of permission to noncontiguous jurisdictions of the United States to require egg-labeling, we are unable to conclude that appellants have met their burden of showing that Congress’ intent to allow Puerto Rico to enact protectionist egg-labeling regulations was “unmistakably clear.” See e.g., Maine v. Taylor, 477 U.S. 131, 139, 106 S.Ct. 2440, 2447-48, 91 L.Ed.2d 110 (1986) (<HOLDING>); South-Central, 467 U.S. at 90, 104 S.Ct. at Holdings: 0: holding that state statutes are exempt from the implied limitations of the commerce clause only when the congressional direction to do so has been unmistakably clear 1: holding that enactment of  13981 exceeded congressional authority under either the commerce clause or section 5 of the fourteenth amendment 2: holding that the statute as applied violates the commerce clause 3: holding that a court of appeals may only do so when an appeal has been raised by an existing party to the case 4: holding that there is no clear congressional intent that firreas statutes of limitations 12 usc  1821e12a  apply only prospectively


Input: Killian’s interaction with the representatives was sufficient to put them on notice of his need for provider network information. Although Mr. Killian used the word “pread-mission” in his deposition when telling the attorneys the purpose of his call, he did not testify that he told the representatives that he was calling for preadmission. His interaction with the representatives included calling the designated number, informing the representative of his location and telling the representative of the needed surgery. 46 . Although Mr. Killian bears the ultimate burden at trial, "[a] party seeking summary judgment bears an initial burden of proving there is 'no material question of fact with respect to an essential element of the non-moving party’s case.' ” MMG Fin. C , 591 (7th Cir.2000) (<HOLDING>). 49 . This is the result reached by the panel. Holdings: 0: holding a fiduciary liable when inadequacies in the plan documents were exacerbated by incorrect and misleading information from its agents 1: recognizing that plan participants should be able to access information about the plan administrators fiduciary duties from the plan administrators counsel 2: holding that one who is named in documents as plan administrator signs documents as plan administrator and assumes discretionary authority in the administration of the pension plan is a fiduciary 3: holding the michigan department of natural resources liable under cercla for remedial actions which exacerbated the contamination at a site 4: holding that plan documents could be considered without converting the motion to one for summary judgment even though the complaint referred only to the plan and not its associated documents


Input: relationship of that conduct to the performance of his official duties.” David v. City & Cnty. of Denver, 101 F.3d 1344, 1353 (10th Cir.1996) (internal citations omitted)(quoting Martinez v. Colon, 54 F.3d 980, 986 (1st Cir.1995)). See Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir.2001) (“Whether a government employee is acting under color of law is not always an easy call, and the color of law analysis inevitably requires that we engage in line drawing.”). Tenth Circuit precedent makes clear that, where a person without state authority or employment could have undertaken the same alleged unconstitutional conduct as that of which the plaintiff complains, the alleged unconstitutional conduct is not under color of state law. See, e.g., Beedle v. Wilson, 422 F.3d at 1074-75 (<HOLDING>); D.T. ex rel. M.T. v. Indep. Sch. Dist. No. 16 Holdings: 0: holding that sanction of removal for nursing home attendant who was found to have hit patient suffering from dementia should be reduced to penalty of sixmonth suspension because act of hitting patient was isolated instance in which patient was aggressor 1: holding that a nurses aide who sexually assaulted a patient while under heavy sedation was not acting under color of state law because as there was no allegation it was the aide who sedated the patient the sexual assault conduct   could have been done by anyone who wandered into the patients room 2: holding that a psychiatrist who sexually assaulted a patient while he was performing  the services for which he was employed such as counseling and therapy did so in the course of his employment 3: holding that fault may not be assessed against a patient in a medical malpractice action in which a patients negligent conduct provides only the occasion for the medical attention care or treatment which is the basis for the action where the defendant doctor was treating the plaintiff patient for injuries sustained in a car accident negligently caused by the plaintiff who was driving while intoxicated 4: holding that a psychiatrist had no duty to detain a patient who killed himself and injured his wife because the patient was outside of the scope of the facilitys range of observation and control even when the psychiatrist agreed to treat the patient the patient had suicidal tendencies and the psychologist took the patient into custody but then later permitted him to leave


Input: that the Agreement satisfies the requirements of Rule 11. Celltex’s motion to compel arbitration was granted by the trial court’s order signed September 22, 2014. On February 12, 2015, the trial court entered an order confirming the arbitration award. On March 16, 2015, Biostar filed a notice of restricted appeal and K-Stemcell filed a notice of appeal from that order. Because both appeals were filed from Trial Court Cause No. 12-DCV-202563, of the 434th District Court of Fort Bend County, Texas, they wei-e assigned Appeal No. 14-15-00234-CV. On appeal, Biostar and K-Stemcell both complain of the order compelling arbitration and the order confirming the arbitration award. Jurisdiction We initially address Celltex’s arguments that we lac App.Houston [14th Dist.] 2007, no pet.) (<HOLDING>); Anderson v. Long, 118 S.W.3d 806, 809-10 Holdings: 0: holding that the appellant waived his claim on appeal because he failed to address that claim in either his application for a coa or his brief on appeal 1: holding that this courts policy is to address on direct appeal only those issues raised by counsel 2: holding that issues were not waived on subsequent appeal when initial appeal was dismissed 3: holding that issues not raised before a district court are waived on appeal 4: holding that appellant did not limit his issues on appeal by gratuitously listing only some of those issues in his notice of appeal


Input: IV hinges on our interpretation of the phrase “term of imprisonment.” This is an issue of first impression for this Court. If Defendant was serving a term of imprisonment at the federal temporary detention facility on August 30, 2007, when he was transferred pursuant to a detainer from federal custody to Gibson County and back to federal custody, then the anti-shuttling provision of Article IV was violated and dismissal of the indictment is required. A split of authority exists as to whether the IAD applies to a convicted and sentenced prisoner who is held in temporary custody pending a transfer to permanent incarceration. See Runck v. State, 497 N.W.2d 74, 81 (N.D.1993) (describing this split of authority and surveying cases from numerous jurisdictions that have reached dif 007) (<HOLDING>); People v. Helmstetter, 914 P.2d 474, 478 Holdings: 0: holding that   3584a allows the district judge to specify the sequence of service of terms of imprisonment only when sentences are imposed at the same time or the other sentence is an undischarged term of imprisonment to which the defendant is already subject  1: holding that limitation period begins to run at the time of the breach 2: holding time begins when the prisoner knows  the important facts not when the prisoner recognizes their legal significance 3: holding that a term of imprisonment begins at the time a prisoner is sentenced 4: holding that the term imprisonment    means any imprisonment in a case involving the presumption of incarceration of njsa 2c441d


Input: Oct. 24, 2013, Exhibit B (Nov. 1, 2011, Agreement between Nolasco and VITELCO). 8 See 5 V.I.C. § 1451. 9 In Banks v. Int'l Rental & Leasing Corp., 55 V.I. 967 (V.I. 2011), the Supreme Court of the Virgin Islands held that, while the Restatements may be persuasive authority in determining the common law, they “no longer constitute binding legal authority in this jurisdiction” because 1 V.I.C. § 4 has been impliedly repealed. Gov’t of the V.I. v. Connor, 60 V.I. 599, 602 (V.I. 2014). As a result, the Court ordered the parties to submit supplemental briefing on the applicable common law in this matter. Defendant submitted a supplemental brief on March 18,2014. Plaintiff also submitted a supplemental brief on March 21,2014, to which Defendant replied on April 3, 2014. 10 60 V.I. at 605 (<HOLDING>). 11 Id. at 604 (noting that the Superior Court Holdings: 0: holding that it may not 1: holding that the superior court may be summarily reversed if it does not perform a banks analysis in the first instance 2: holding that this court must remand to the bia to allow it to address in the first instance an issue that it has not yet considered 3: holding that summary judgment may be reversed when it is based on an error of law 4: holding that this court has discretion to hear arguments presented to it in the first instance provided that it otherwise has jurisdiction over the claim


Input: the jury that Queen’s attorney had, during his closing argument, relied on ambiguous language in the original instruction was a permissible exercise of discretion. Although the supplemental instruction may have undermined defense counsel’s argument, the instruction stated the law properly. We do not reverse judgments for jury instruction errors where “the charge was not misleading and contained an adequate statement of the law.” United States v. United Med. and Surgical Supply Corp., 989 F.2d 1390, 1407 (4th Cir.1993), quoting United States v. Park, 421 U.S. 658, 675, 95 S.Ct. 1903, 1913, 44 L.Ed.2d 489 (1975). Furthermore, the instruction did not refer either to counsel or to counsel’s argument. Instead, the instruction fairly responded to the jury question in a non-pre (4th Cir.1995) (<HOLDING>); United States v. Tanner, 61 F.3d 231, 237 Holdings: 0: holding that extending immunity to contractors under the act would not further the purpose behind the act 1: holding prior act testimony admissible to establish the identity behind an alias 2: holding testimony admissible as showing context of relationship with coconspirator prior to conspiracy 3: holding that in a prosecution for lurking evidence of a prior act of lewdness by defendant was admissible to establish motive 4: holding that the victims prior videotaped testimony from a preliminary hearing was admissible as testimony at trial where the victim was unavailable to testify


Input: Trust Account. IV. We will remand for a proper determination of how the Attorney Trust Account should be apportioned and for an evaluation of Chicago Title’s proposal of a 65%-35% distribution. We recognize matters of interest and other costs are treated in different ways, depending upon the circumstances. Compare In re United States Lines, Inc., 79 B.R. 542, 547-48 (Bankr.S.D.N.Y.1987) (noting that entitlement to accrued interest could inequitably deplete the proceeds available to all creditors when funds cannot be traced) with A. Scott, The Law of Trusts § 207 (1988) (reviewing case law that states that when a trustee commits a breach of trust, he is ordinarily liable for interest); see also Nicholas v. United States, 384 U.S. 678, 687, 86 S.Ct. 1674, 1681, 16 L.Ed.2d 853 (1966) (<HOLDING>). We also note that a pro rata distribution of Holdings: 0: recognizing that potential creditors adjust their interest rates to accommodate their prognosis of the particular debtors chances of rehabilitation 1: holding that parents who feared drug lord retaliation notified police and pressed their children to enter rehabilitation consented as a matter of law to their childrens drug activity because they did not search the premises for drugs and did not evict their children 2: holding that inmates have a property interest in their money 3: holding that the interest of the public  especially the debtor and creditors  could limit compensation to a debtors counsel 4: recognizing governmental interest in rehabilitation


Input: see also Sayne, 418 F.2d at 685 (“Unique rules of ‘wide latitude’ govern reception of evidence in Section 3184 hearings.”). “[P]rocedurally, [this] appears to make for a broad hearing. Substantively, however, the scope of the hearing is very limited as to matters raised by Respondent.” Cervantes Valles, 268 F.Supp.2d at 772 (citing In re Extradition of Contreras, 800 F.Supp. 1462, 1464 (S.D.Tex.1992)). Specifically, under the general rule of non-contradiction in foreign extradition cases, evidence explaining away or completely rebutting the existence of probable cause appears to be the only admissible evidence which Respondent can present at the probable cause hearing. Id. (citing Contreras, 800 F.Supp. at 1464); see Garza v. United States, 180 Fed.Appx. 522, 523 (5th Cir.2006) (<HOLDING>). Although courts have struggled to clarify the Holdings: 0: holding that it was not erroneous for committing court to refuse to admit an affidavit from a private investigator that provided evidence of a witnesss lack of credibility when the affidavit would not have explained away the witnesss testimony but only challenged its credibility 1: holding that under hubbard a trial courts error in excluding bias evidence would be harmless if either 1 despite the exclusion the jury nonetheless had an adequate opportunity to assess the witnesss credibility or 2 the witnesss credibility was not important to the outcome of the trial emphasis added 2: holding that conviction on appeal is not admissible to impeach witnesss credibility 3: holding that a witnesss testimony or an exhibit may not explicitly and directly contain an opinion as to a trial witnesss credibility 4: holding that a trial witnesss testimony as to the credibility of another witness was prejudicial error


Input: this appeal had apparently gone unanswered. The district court, construing Ciempa’s request as a Federal Rule of Civil Procedure 60(b) motion, denied relief, concluding the “fact that [Ciempa’s] request for an administrative appeal out of time was returned unanswered does not ... entitle [him] to relief from the Judgment entered in this action on January 12, 2009, 2009 WL 87787. [Ciempa] had not exhausted administrative remedies when he commenced this action.” R., Doc. 16 at 4. Ciempa now appeals, raising the same claims as he did below. II. Analysis A state prisoner may appeal from the denial of federal habeas relief under 28 U.S.C. § 2241 only if the district court or this court first issues a COA. 28 U.S.C. § 2253(c)(1)(A); see Montez v. McKinna, 208 F.3d 862, 867 (10th Cir.2000) (<HOLDING>). Before granting a COA, we must conclude that Holdings: 0: holding that state prisoners must obtain a coa to appeal denials of 28 usc  2241 petitions 1: holding state prisoners proceeding under  2241 must be granted a coa before their claims can be considered on the merits 2: holding that apprendi does not retroactively apply to  2241 petitions 3: holding that the oneyear statute of limitations set out in 28 usc  2244d applies to  2241 petitions 4: holding  2253clas coa requirement applies to state prisoners proceeding under  2241 when the petition relates to any of the incidents and circumstances of any detention pursuant to state court process


Input: of a convicted person to be conditionally released before the expiration of a valid sentence”); U.S. v. Addonizio, 442 U.S. 178, 188-89, 99 S.Ct. 2235, 2242-43, 60 L.Ed.2d 805 (1979) (Congress has committed decision as to when a convicted defendant should be released to the discretion of the Parole Commission); Tuitt v. Fair, 822 F.2d 166, 180 (1st Cir.), cert. denied, 484 U.S. 945, 108 S.Ct. 333, 98 L.Ed.2d 360 (1987). Does a Parole Commission determination to suspend a discretionary parole date while administrative proceedings to determine indigency are held amount to holding a person in prison because of indigency, at least where administrative proceedings are timely? Some court decisions have suggested that it would. See U.S. v. Estrada de Castillo, 549 F.2d 583, 584 (9th Cir.1976) (<HOLDING>); U.S. v. Mack, 655 F.2d 843, 847 (8th Holdings: 0: holding that the fsas more lenient penalties apply to defendants who committed their crimes before the acts effective date but were sentenced after that date 1: holding that where surety was given until date of forfeiture hearing to produce defendant and defendant was killed by police before that date bond would not be forfeited 2: holding that the date of the federal indictment not the date of the state arrest was the triggering date for the speedytrial act 3: holding that limitations period on employment discrimination claim triggered on date of discharge not on date of discovery of discriminatory intent 4: holding that earlier version of 18 usc  3569 which required defendant to wait 30 days beyond normal release date before seeking discharge of committed fine on basis of indigency was unconstitutional but that administrative regulations would if followed guarantee that question of indigency would be considered before parole release date


Input: Bank v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986)). In its Conclusions of Law, the district court stated and applied the standard exactly as it has been enunciated in Meritor and Harris. 9 . Harris, — U.S. at - - -, 114 S.Ct. at 370-72, 126 L.Ed.2d at 302-03. 10 . See, e.g., Jones v. Flagship Int’l, 793 F.2d 714, 719-20 (5th Cir.1986, cert. denied, 479 U.S. 1065, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987). Harris did not change this requirement. Nash v. Electrospace System, Inc., 9 F.3d 401, 403-04 (5th Cir.1993). 11 . Fed.R.App.P. 38. 12 . E.g., Montgomery v. United States, 933 F.2d 348, 350 (5th Cir.1991) (quoting Coghlan v. Starkey, 852 F.2d 806, 811 (5th Cir.1988)). 13 . 28 U.S.C. § 1927; Caldwell v. Palmetto State Sav. Bank, 811 F.2d 916, 919 (5th Cir.1987) (<HOLDING>). 14 . Cf., Caldwell, 811 F.2d at 919 (holding Holdings: 0: holding that counsels motion was not sufficient where counsel alleged only that counsel and appellants positions had become adverse 1: holding counsel and appellants jointly liable under  1927 and rule 38 2: recognizing rule 3: holding that individual employees are not liable under title vii 4: recognizing wellestablished colorado rule that partners are jointly and severally liable for the wrongs of the partnership


Input: in the United States illegally following an order of deportation, were permitted to have a second and third bite at the apple simply because they managed to marry and have children while evading authorities. This apparent gaming of the system in an effort to avoid deportation is not tolerated by the existing regulatory scheme.”). Furthermore, despite Lin’s submission of various allegedly official Chinese government docu its discretion in concluding that Lin had not provided sufficient evidence that the birth of his U.S. citizen children violated the family planning policy in his area of residence in China, or that the implementation of sanctions resulting from any possible violation would rise to the level of persecution. Cf. Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir.2005) (<HOLDING>). Therefore, we decline to examine Lin’s Holdings: 0: holding that absent solid support in the record a petitioners fear is speculative at best 1: holding that in the absence of solid support in the record for an appli cants assertion that she would be persecuted the bia did not err in denying asylum because her fear was speculative at best 2: holding that in the absence of solid support in the record for an applicants assertion that he will be persecuted his fear is speculative at best 3: holding that absent solid support in the record for the petitioners assertion that he would be subjected to persecution his fear was speculative at best 4: holding that absent solid support in the record for the petitioners assertion that he would be persecuted his fear was speculative at best


Input: see also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). 15 Joiner v. State, 299 Ga. App. 300, 300 (682 SE2d 381) (2009); see also Jackson, 443 U. S. at 319 (III) (B). 16 Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (punctuation omitted). 17 Creecy v. State, 235 Ga. 542, 544 (5) (221 SE2d 17) (1975); accord Ward u. State, 304 Ga. App. 517, 522 (1) (a) (696 SE2d 471) (2010); Harp v. State, 302 Ga. App. 17, 18 (690 SE2d 424) (2010). 18 Ham v. State, 303 Ga. App. 232, 237 (1) (b) (692 SE2d 828) (2010) (punctuationomitted); see McKisic v. State, 238 Ga. 644, 646 (2) (234 SE2d 908) (1977) (“[T]he identity of the person alleged to have been robbed is not an essential element of the crime and need not be proved by di ) (703 SE2d53) (2010) (<HOLDING>); see also Ham, 303 Ga. App. at 237 (1) (b) Holdings: 0: holding evidence was sufficient to support conviction for pfdcf where defendant was arrested immediately outside his residence and an unloaded handgun was found in the residence under the defendants bed and in the same room as the controlled substances and cash 1: holding that there was sufficient evidence of premeditation and deliberation when the defendant previously planned to commit the robbery armed himself with a shotgun and shot the victim during the robbery 2: holding that circumstantial evidence that defendant drove the car and fled the scene after his brother committed robbery was insufficient to sustain defendants conviction absent other evidence of defendants intent to aid in the robbery 3: holding that evidence was sufficient to support convictions for two counts of armed robbery when money was taken from one victims immediate presence at gunpoint and given to second victim and second victim was then forced to surrender the money to defendant at gunpoint 4: holding that evidence defendant approached victim with a handgun while attempting to obtain money from conveniencestore cash register but fled without taking cash was sufficient to support convictions for attempted armed robbery


Input: wash trades involved a total of 14 different broker-dealers. The VCI trades involved eight different firms, while the SEC instituted administrative proceedings against four. See Graham, 1998 WL 823072, at *3 n. 14. 19 . Like the other brokers, the clearing firm was exposed to the risk that funds it advanced might not have been repaid at the time Broumas became insolvent. Although the clearing broker might be able to recover against the introducing firm in the event of nonpayment, it would incur transaction costs in so doing— and there was always the risk that Broumas’ scheme would bankrupt one of the broker-dealers involved. See Richard D. Chema, 1998 WL 820658, at *4-*5. 20 .Cf. Superintendent of Ins. v. Bankers Life & Cas. Co., 404 U.S. 6, 12, 92 S.Ct. 165, 30 L.Ed.2d 128 (1971) (<HOLDING>) (footnote omitted); United States v. Saks, 964 Holdings: 0: holding that travel by an agent of defrauded corporation is imputed to the victim 1: holding that claims of corporation vest in corporation 2: holding that the receiver for a corporation had no standing to sue for inter alia receipt of funds fraudulently obtained fraud and unjust enrichment even though he was appointed on behalf of all the creditors because those were claims of the creditors not of the corporation 3: holding that  10b applies to fraud on corporation by controlling stockholder and that the fact that creditors of the defrauded corporation may be the ultimate victims does not warrant disregard of the corporate entity 4: recognizing that when a corporation is insolvent the trust fund doctrine fundamentally alters the relationship between a corporation its shareholders and its creditors and that corporate or shareholder ratification does not apply to creditors who would be prejudiced thereby


Input: J. Appellant was convicted of felony driving under the influence. The main points of this appeal concern his attack on the use of prior DUI convictions to support the felony charge. The existence of his prior convictions was established by his sworn motion to dismiss admitting the 1974 and 1975 convictions, combined with the copy of his driver’s license record. See State v. Palmore, 510 So.2d 1152, 1153 (Fla. 3d DCA 1987) (<HOLDING>). State v. Pelicane, 729 So.2d 534, 535 (Fla. Holdings: 0: holding that a defendant admits to the psis factual statements about his relevant conduct where he raises no objections to those statements 1: holding that where a defendant expressly manifested his belief in the truth of the statements contained in the motion to dismiss thereby adopting those statements as his own such statements are admissible against the defendant in the states case in chief 2: holding that the sixth amendment confrontation clause was not violated by the admission of hearsay statements under a georgia statute permitting an exception for statements by coconspirators where there was sufficient indicia of reliability supporting the truth of the statements 3: holding that statements elicited from a defendant in violation of his miranda rights could be introduced to impeach that defendants credibility when the jury was instructed that the statements were not to be considered as evidence of his guilt 4: holding rule 16 does not apply to oral statements other than statements of the defendant


Input: Civ. Phac. & Rem. Code AnN. § 37.009. Furthermore, we are unpersuaded by Alma’s argument that the declaratory judgment claim in this case was “pretextual” because there was “no real controversy between the parties with respect to the operation of [the Maintenance Association]” because Alma was no longer involved in the operation of the Maintenance Association at the time of trial. The undisputed fact that Alma no longer operated the Maintenance Association does not render the controversy moot because the Co-Owners’ claim for attorneys’ fees under the Declaratory Judgments Act remained pending, as it related to Alma’s actions regarding the Co-Owners’ voting rights under the property code. See Hansen v. JP Morgan Chase Bank, N.A., 346 S.W.3d 769, 774-75 (Tex.App.Dallas 2011, no pet.) (<HOLDING>). We overrule Alma’s second issue. IV. Holdings: 0: holding that a case under the declaratory judgments act remains a live controversy even if all requests for substantive declaratory relief become moot during the actions pendency as long as a claim for attorneys fees under the act remains pending 1: recognizing that a party can obtain declaratory relief but still not be entitled to an award of attorneys fees under the declaratory judgments act 2: holding plaintiff had no right to recover attorneys fees under declaratory judgments act because declarations requested no greater or different relief than claim for injunctive relief for constitutional violation 3: holding that issues as to whether declaratory relief should be granted had become moot and would be dismissed for lack of jurisdiction but that under hallman the entire appeal was not moot because there still was a live controversy as to whether appellee was entitled to recover attorneys fees under the declaratory judgments act and therefore issues regarding attorneys fees were not moot and would be decided 4: holding attorneys fees waived in lawsuit brought under declaratory judgments act to interpret statute


Input: of injunctive relief sought in this action, based on her allegations of sexual assault alone. 9 . The court notes that the Motion to Dismiss does not raise any argument under Rule 12(b)(6) to dismiss the. "after” claims of Jane Does I-IV and VI-VII, and those claims are not discussed herein. The pending motion is styled as a Motion to Dismiss, rather than a partial motion to dismiss because, as mentioned supra n. 7, the motion also sought' to dismiss the entire action for lack of venue under Rule 12(b)(3), and that request has already been denied. 10 . Indeed, such a holding would comport with Gebser's likening of Title IX funding recipient liability for third-party acts to municipal liability for third party acts under § 1983. See Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir.2013) (<HOLDING>) the existence of an illegal official policy or Holdings: 0: holding that monell v new york city dept of social services 436 us 658 69093 98 sct 2018 203537 56 led2d 611 1978 eliminated respondeat superior liability for private corporations as well as municipalities 1: recognizing the restrictive holding of butz v economou 438 us 478 98 sct 2894 57 led2d 895 1978 as applicable only to actions amounting to constitutional violations 2: holding that in order to show municipal liability for an officers actions under monell v dept of soc servs 436 us 658 694 98 sct 2018 56 led2d 611 1978 a plaintiff must demonstrate one of the following 1 3: recognizing miranda v arizona 384 us 436 468 86 sct 1602 1624 16 led2d 694 1966 4: holding that police must consider the age of a juvenile suspect when determining whether the juvenile is in custody for purposes of miranda warnings see miranda v arizona 384 us 436 86 sct 1602 16 led2d 694 1966


Input: United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989). If the statutory language is ambiguous or unclear, the court may then look to the legislative history for guidance in interpreting its meaning. Id. Courts have been divergent in determining whether the language of § 1322(c)(1) is ambiguous. One line of cases — the majority — has adopted the “gavel rule,” finding that the phrase “sold at a foreclosure sale” refers to a specific event — a sale occurring at a foreclosure auction. The additional phrase “conducted in accordance with applicable nonbankruptcy law” refers merely to the state procedures required to be followed in noticing and holding a foreclosure auction. See, e.g., Cain v. Wells Fargo Bank, NA, 423 F.3d 617, 620 (6th Cir.2005) (<HOLDING>); In re McCarn, 218 B.R. 154, 160-61 (10th Cir. Holdings: 0: holding that a foreclosure sale was not complete under north carolina law until after the tenday statutory period of redemption had expired 1: recognizing the language of  1322c1 as a minimum floor in cutting off the debtors right to cure and permitting the debtor to cure until the deed was delivered to the successful bidder which would complete the sale under new jersey law 2: holding that debtor could not cure and maintain mortgage after foreclosure sale in case decided prior to effective date adding  1322c1 3: holding that  1322c1 is not ambiguous that the debtors cure right terminates on the date of the foreclosure sale regardless of the intricacies of the state foreclosure sale process and refusing to attach significance to the legislative record indicating that more extensive cure rights under state law persevere 4: holding that  1322c1 did not allow debtors to cure home mortgage defaults after a foreclosure sale regardless of state law redemption rights


Input: a general policy matter, federal courts favor arbitration. Lewis v. Epic Sys. Corp., 823 F.3d 1147, 1159 (7th Cir. 2016) (“The [Federal Arbitration Act] contains a general policy favoring arbitration and a liberal federal policy favoring arbitration agreements.”) (internal quotation omitted). But that general preference yields to explicit contrary contractual language. As we explained in Andermann v. Sprint Spectrum L.P., the “federal policy favoring arbitration” was originally formulated to simply “make clear, as had seemed necessary because of judges’ historical hostility to arbitration, that arbitration was no longer to be disfavored.” 785 F.3d 1157, 1159 (7th Cir. 2015). For unambiguous contracts, however, the agreement, as reflected by the document’s explicit terms, controls. Id. (<HOLDING>); see also Granite Rock Co. v. Int’l Bhd. of Holdings: 0: holding that a court must respect the parties disputeresolution preferences as embodied in an arbitration clause 1: holding that in ruling on a motion to compel arbitration a court must consider 1 whether the parties have entered into a valid arbitration agreement 2 whether an arbitrable issue exists and 3 whether the right to arbitration has been waived 2: holding an entire arbitration clause is void and arbitration cannot be compelled where contract contained unconscionable clause and has a nonseverability clause 3: holding parties to an exculpatory clause where the parties intent is clear 4: holding that the best way to harmonize a choice of law clause and an arbitration clause is to apply the substantive case law of the named state to the entire agreement including the arbitration clause


Input: that Ms. Krum would be unable to participate in any vocational retraining in its preparation of the Employability Analysis Report or at any future time. This limitation puts Dr. Pearce’s statement that Ms. Krum could sit for eight hours a day in a different light. And while Hartford emphasizes the number of hours that Ms. Krum could sit, it fails to point out that Dr. Pearce left blank the spaces for how long Ms. Krum could stand or walk in the workplace. Dr. Pearce presumably believed that Ms. Krum would not be able to stand or walk at all due to her breathing difficulties. Other courts have reversed plan administrator decisions for plaintiffs with similar statements from their attending physicians. See, e.g., Spangler v. Lockheed Martin Energy Sys., Inc., 313 F.3d 356 (6th Cir.2002) (<HOLDING>). The court does not intend to suggest that Holdings: 0: holding that plaintiffs inability to stand more than two hours was insufficient as a matter of law to prove that she was disabled 1: holding that a plan administrators decision to deny benefits was arbitrary and capricious even though an attending physician had submitted a form stating the plaintiff could sit for six hours stand for two hours and walk for two hours 2: holding that a heightened arbitrary and capricious standard of review applied to the decision to deny benefits under the erisa plan 3: holding that evidence that plaintiff could walk only four hours a day was insufficient as a matter of law to prove that she was disabled 4: holding that extremely tight handcuffing for nearly fourteen hours that left indentations in plaintiffs arms for over six hours did not amount to excessive force


Input: burdened other employees by requiring them to work parts of a graveyard shift when they otherwise would be off. In contrast, Mr. Espinoza’s testimony indicates that he had to “work in a different cellhouse” to cover for the sergeants, not that he had to report to work when he otherwise would not have to. Id. at 359. He presented no evidence that the sergeants’ absences caused him or any other employee to remain on duty longer or report to duty earlier. We do not suggest that Mr. Espinoza needed to know every detail about the white sergeants’ alleged absences before he could make a reasonable complaint of discrimination. But he needed to know at least some facts that would support an objectively reasonable belief that their absences were similar to his. See Little, 103 F.3d at 960 (<HOLDING>). Such relevant facts could include the reason Holdings: 0: holding that to prevail under  2254 a petitioner must show that the state court applied strickland to the facts of his case in an objectively unreasonable manner 1: holding that a party must at least have a subjective belief that litigation was a real possibility and that belief must have been objectively reasonable 2: holding that a warrant issued by a neutral magistrate creates presumption that officers belief in probable cause was objectively reasonable 3: holding that a plaintiff must show his belief was objectively reasonable in light of the facts and record presented 4: holding that an officers mistaken belief that the defendant was speeding was not an objectively reasonable purpose for a traffic stop


Input: In addition, if certain class members are able to establish a prima facie case of gender discrimination, Allstate’s defenses would vary between class members. For example, if Allstate sought to present evidence that a class member’s job performance was the legitimate, nondiseriminatory reason for her salary or job position, such evidence would differ for each individual class member, Allstate also may be able to raise a statute of limitations defense against some class members but not others, because as explained above, some proposed class members may have been aware of the existence of possible gender discrimination more than 300 days before Ms. Puffer filed her EEOC charge. See note 9, supra; see also Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854, 860-61 (7th Cir.2005) (<HOLDING>). Where, as here, a court would have to examine Holdings: 0: recognizing that under 42 usc  2000e5el a title vii claim is timely where the eeoc charge was filed within 300 days of the alleged unlawful employment practice 1: holding that a title vii cause of action is limited to those discrimination allegations in the complaint that have been under the scrutiny of a formal eeoc complaint 2: holding that plaintiffs eeoc charge alleging sex discrimination did not encompass claim of sexual harassment subsequently asserted in title vii action in federal court because the facts underlying sexual harassment claim could not be inferred from the factual assertions made in the eeoc charge nor would they have been uncovered absent specific allegations to indicate such a cause of action existed 3: holding that statute of limitations barred title vii claim where the plaintiff would have been aware of discrimination more than 300 days before eeoc charge filed 4: holding that the limitations period should be tolled until the plaintiff became aware of the facts necessary to support a charge of discrimination