Input: Moore’s Federal Practice § 110.05 (3d ed.1997). The court must take all allegations in the complaint as true, unless contradicted by the defendants’ affidavits. See 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 2d § 1352 (1990 & Supp.1999). When an allegation is so challenged “[a] court may examine facts outside the complaint to determine whether venue is proper. The court must draw all reasonable inferences and resolve all factual conflicts in favor of the plaintiff.” Id. (citations omitted). If the defendants prevail on their Rule 12(b)(3) motion, the court has the power to dismiss or transfer the case to any district in which it could have been brought. See 28 U.S.C. § 1406(a); see also Minnette v. Time Warner, 997 F.2d 1023, 1026 (2d Cir.1993) (<HOLDING>). III. Standing Defendants argue that the Holdings: 0: holding that the decision to transfer rests within the sound discretion of the district court 1: holding that the decision to transfer rests within the sound discretion of the court 2: holding that the decision whether to grant a continuance lies in the sound discretion of the trial court and will not be disturbed absent an abuse of discretion 3: holding that whether dismissal or transfer is appropriate lies within the sound discretion of the district court 4: holding that the decision whether to grant a continuance lies in the sound discretion of the trial court and will not bedisturbed absent an abuse of discretion


Input: with bench trials. Because the plaintiffs raised the issue in their pretrial submissions and because the court believes the correct question here is whether the evidence presented at trial establishes that the defendant S.R.O.s are entitled to qualified immunity, it rejects the defendant S.R.O.S argument that the plaintiffs abandoned the issue. 37 . Citing Headwaters Forest Def. v. Cnty. of Humboldt, 276 F.3d 1125, 1129-30 (9th Cir.2002); Park v. Shiflett, 250 F.3d 843, 852-53 (4th Cir.2001); LaLonde v. Cnty. of Riverside, 204 F.3d 947, 961 (9th Cir.2000); Adams v. Metiva, 31 F.3d 375, 386 (6th Cir.1994). 38 . Citing Jackson v. City of Bremerton, 268 F.3d 646, 652-53 (9th Cir.2001); Wagner v. Bay City, 227 F.3d 316, 324 (5th Cir.200 0, 276, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988) (<HOLDING>); Fraser, 478 U.S. at 686, 106 S.Ct. 3159 Holdings: 0: holding that the board of education violated a school teachers first amendment rights by dismissing him because he had criticized the board in a letter to the local newspaper 1: holding that a principal did not impinge students first amendment rights by censoring articles in a high school newspaper 2: holding that school district policy requiring that students obtain the review and approval of school officials prior to distributing any written material violated free speech rights of students 3: holding that a teacher was unjustified in censoring an article in the school newspaper because it was inconceivable that the use of the word damn one time in the article would have caused material and substantial interference with school activities 4: holding that school officials may not limit the first amendment rights of students and teachers to freedom of speech and expression


Input: 221-22, 52 N.W.2d 458, 465 (1952). In Mack, 292 N.W.2d at 768-69, 772, we added an additional consideration to the Frye analysis in deciding that testimony developed through the aid of hypnosis was inadmissible. Although citing the Frye general acceptance standard, our primary concern in Mack was with the unreliability of memories produced while under hypnosis. See Mack, 292 N.W.2d at 768-69. As a result, the test for admissibility of novel scientific evidence in Minnesota developed into the two-prong Frye-Mack standard. First, a novel scientific technique must be generally accepted in the relevant scientific community, and second, the particular evidence derived from that test must have a foundation that is scientifically reliable. See State v. Anderson, 379 N.W.2d 70, 79 (Minn.1985) (<HOLDING>); see also State v. Jobe, 486 N.W.2d 407, Holdings: 0: holding that calculations done by applying product rule were generally accepted in relevant scientific community 1: holding under the restrictive frye test that pcrstr testing is generally accepted in the relevant scientific community 2: holding that product rule method of dna statistical evidence is now generally accepted in the relevant scientific community 3: holding that graphology is accorded a low measure of scientific reliability in predicting character or state of mind and is not generally accepted in the scientific fields of psychology and psychiatry 4: holding that expert opinion based on scientific technique is inadmissible unless technique is generally accepted as reliable in relevant scientific community


Input: was within the seope of Dr. Faust's protec-tible interest. Id. However, we concluded that the portion of the covenant prohibiting Dr. Norlund from acting as an opto-metric liaison or medical optometrist with any ophthalmologist in specified counties was overbroad because that provision was beyond the seope of Dr. Faust's protectible in venant's provision that a radio dise jockey would "not engage in activities" at certain radio stations listed in the covenant was over-broad because it would have prevented the employee from being employed in any capacity by any radio station listed in the covenant and "extended far beyond" the former employer's legitimate interest in the employee as an on-air personality); Burk v. Heritage Food Serv. Equip., Inc., 737 N.E.2d 803, 812 (Ind.Ct.App.2000) (<HOLDING>); Frederick v. Prof'l Bldg. Maint. Indus. Inc., Holdings: 0: holding that any acts in which employee engaged with intent to woo plaintiffs wife away from him during business meetings and trips simply had no connection to business of employer 1: holding that the covenants clause prohibiting the employee from being employed  with any corporation  which competes with or otherwise engages in any business of the employer was overbroad because it prohibited the employee from working for a competitor in any capacity 2: holding that monitoring telephone calls is in the ordinary course of business where the employer has reason to suspect an employee of disclosing confidential information to business competitor 3: holding that existence of deliberate and informed consent turns on whether it is understood between the employee and his employers that he is to remain in the allegiance of the first employer  or is to be employed in the business and subject to the direction of the temporary employer 4: holding that injunction prohibiting doctor from seeing any patients from medical practice that formerly employed him as provided for in covenant not to compete was not overbroad and should not have been limited to only those patients he treated while employed by practice


Input: garage is part of the home. The former Fifth Circuit has held the same. In United States v. Sokolow, the former Fifth Circuit held that a police officer’s warrantless search of the defendant’s garage to record the serial numbers of air-conditioning units the officer suspected were stolen violated the Fourth Amendment. 450 F.2d 324, 325 (5th Cir. 1971). Applying the same legal analysis as it would had the officer entered any other part of the defendant’s home without a warrant, the court held that there were no exigent circumstances to justify the warrantless entry of the garage because the air-conditioning units could not have been disposed of easily and other officers were maintaining surveillance on the premises. Id.; see also Kauz v. United States, 95 F.2d 473, 474 (5th Cir.1938) (<HOLDING>). In the present case, it is undisputed that Holdings: 0: holding that a drugdetection dog sniff outside a garage door at a home was not a search under the fourth amendment 1: holding that a dog sniff outside the defendants door in his apartment building was not a search within the meaning of the fourth amendment so long as the police were lawfully present in the hallway when the search occurred 2: holding that a warrantless search of garbage located within the curtilage of the defendants home violated his fourth amendment rights 3: holding that warrantless search as probation condition was a valid limitation to the defendants fourth amendment rights when defendant asserted the condition was not reasonably related to rehabilitation 4: holding that a warrantless search of a garage that was part of the same building as the defendants living quarters violated the fourth amendment


Input: nothing to segregate. Indeed, finding of fact 13 indicates that the trial court believed that some fees were reasonable and necessary. See Finding of Fact 13 (stating “the majority of those fees [requested by Ah’ Routing] were not related to the defense of [the Theft Act] claim”). Further, if the trial court had decided that “$0” was a reasonable and necessary fee for the trial work regardless of the segregation issue, it would not have stated in conclusion of law 7 that the only reason for an appeal as to attorney’s fees is the segregation issue. Under Texas law, if the trial court and a party seeking attorney’s fees disagree over the applicability o erman, 133 S.W.3d 262, 268 (Tex.2004); Gill Sav. Ass’n v. Chair King, Inc., 783 S.W.2d 674, 680 (Tex.App.-Houston [14th Dist.] 1989) (<HOLDING>), modified on other grounds, 797 S.W.2d 31 Holdings: 0: holding that the public harm requirement applies to fraudulent inducement claims because the fraud claims arise from related contract claims 1: holding claimant did not have to segregate fees between fraud and contract claims because both claims were based on the same set of facts and circumstances 2: holding that successful swornaccount plaintiff did not have to segregate its attorneys fees for prosecuting its claim from its fees for defending a dtpa counterclaim because the claims arose out of the same transaction and were so interrelated that their prosecution or defense entailed proof or denial of essentially the same facts 3: holding that court may not accept claims of fraud based on speculation 4: holding that because plaintiffs claims were presented as a single claim based on the same facts and based on the same alleged damages multiple awards would be duplicative


Input: that he validly waived his Miranda rights because he was not aware of the nature of the constitutional rights he was abandoning. Specifically, Garibay contends that he did not understand Agent Burke’s recitation of his rights in English because his primary language is Spanish and he has a low verbal IQ. Upon review of the record, we conclude that the prosecution did not meet its burden of proving that Garibay knowingly and intelligently waived his Miranda rights. See Connelly, 479 U.S. at 168, 107 S.Ct. at 522. In determining whether a defendant knowingly and intelligently waived his Miranda rights, we consider, as one factor, any language difficulties encountered by the defendant during custodial interrogation. See United States v. Heredia-Fernandez, 756 F.2d 1412, 1415 (9th Cir.1985) (<HOLDING>). In finding that Garibay was proficient in Holdings: 0: holding miranda inapplicable because defendant not in custody 1: recognizing that defendant may waive miranda rights 2: holding that smith who was 15 years old could waive his miranda rights and his right to have an attorney or parent present during questioning by police 3: holding that language difficulties may impair the ability of a person in custody to waive his miranda  rights in a free and aware manner 4: holding that juveniles may waive constitutional rights


Input: avoidance proceedings with respect to the Debtor's prepetition transfers to his family. After it became clear that the amount of the allowed claims exceeded the Debtor’s ability to fund the plan, the Debtor acquiesced to reconversion of the case to chapter 7. However, the fact that the rehabilitation effort was unsuccessful does not dictate the conclusion that the attempt was made in bad faith. 13 . At the hearing, the Debtor testified that his income is consistent with the disclosures in Amended Schedule I. However, I find that the Debtor understated his expenses in Amended Schedule J and that his monthly living expenses for himself and his dependent family members exceed the disclosed household monthly income of $2,245.00. 14 . In re Hall, 15 B.R. 913, 917 (9th Cir. BAP 1981) (<HOLDING>) (cited with approval in In re Ditter, 13 Holdings: 0: holding the plain legal prejudice test applies to voluntary dismissal under the code 1: holding appeal improper since the dismissal was voluntary 2: holding that a plaintiffs voluntary dismissal of his claims with prejudice constituted a final order that was appealable 3: holding that a voluntary dismissal moots a case 4: holding that 12 os  100 applies to cases where dismissal was voluntary and without prejudice


Input: de novo on appeal. See Kincaid, 147 N.C. App. at 97, 555 S.E.2d at 297. The Fourth Amendment protects the right of individuals to be free from “unreasonable searches and seizures.” U.S. Const, amend. IV. This protection is applicable to the states through the Due Process Clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655, 6 L. Ed. 2d 1081, 1090 (1961). The right to be free from unreasonable searches and seizures applies to seizures of the person, includ was a suspicious person described as a Hispanic male. There was no approximate age, height, weight or other physical characteristics given as part of the description, nor was there a description of any specific clothing worn by the suspicious person. Cf. State v. Lovin, 339 N.C. 695, 703-04, 454 S.E.2d 229, 234 (1995) (<HOLDING>); State v. Jordan, 120 N.C. App. 364, 367-68, Holdings: 0: holding reasonable suspicion is based on totality of circumstances 1: holding circumstances supporting reasonable suspicion included a description of a suspicious person with a lot of hair a gold watch and large frame glasses 2: holding that inquiry notice exists where a reasonable investor of ordinary intelligence would have discovered the suspicious information and recognized it as suspicious 3: holding that passenger conduct can be a factor supporting reasonable suspicion 4: holding circumstances supporting reasonable suspicion to make a stop included that the defendant was on a comer on which recent multiple drugrelated arrests had been made


Input: insurance plans.” See Congressional Budget Office, Updated Estimates of the Effects of the Insurance Coverage Provisions of the Affordable Care Act, 7 (April 2014), https://www.cbo.gov/ sites/defauli/files/45231-ACA_Estimates. pdf. The CBO report, however, addresses the Transitional Reinsurance Program only in passing, and even then — with an eye toward, the program’s revenue estimates and effects on insurance premiums — not on whether governmental plans qualify as “group health plans,” In fact, the CBO report .never states that the reinsurance contribution does not also fall on non-Federal governmental plans. And in any event,-the CBO does not and cannot authoritatively interpret federal statutes. See Ameritech Corp. v. McCann, 403 F.3d 908, 913 (7th Cir.2005) (Easterbrook, J.) (<HOLDING>). 2. “Governmental Plans” Constitute a Type of Holdings: 0: recognizing that an advisory opinion is one that offers an opinion on a moot issue 1: holding that evidence that the petitioner had a political opinion that he expressed it to his persecutors and that they threatened him only after he expressed his opinion compelled the conclusion that the threats were connected to his political opinion and not only to his failure to provide money in response to demands from the persecutors that predated his expression of his political opinion 2: holding that a prqvision from the electronic communications privacy act applied to the states irrespective of cbo opinion to the contrary although the congressional budget office expressed an opinion that the 1986 law would not impose new costs on states this view  on which congress did not vote and the president did not sign  cannot alter the meaning of enacted statutes 3: recognizing that an agency cannot impose additional conditions on the united states consent to be sued unless congress expressly delegates this authority 4: holding a medical opinion to be not significantly probative where the opinion was contrary to other substantial record evidence


Input: Reversed and remanded for a new trial. LEVINE, J., and GREENHAWT, SUSAN F., Associate Judge, concur. 1 . "Larry” was not called as a witness by either party. [2] 2. For the purposes of paragraph (b), the term “child molestation” includes lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age. § 90.404(2)(b)2. 3 . We note that the remoteness factor would be less significant when the sexual abuse is generational or intrafamilial, and if the prior incidents were similar to the current act. See State v. Maestas, 224 N.W.2d 248, 251 (Iowa 1974) (concluding intrafamilial nature of pri- or abuse coupled with similarity of the prior acts rendered six- and ten-year-old incidents admissible); Bryson v. State, 210 Ga.App. 642, 437 S.E.2d 352, 355 (1993) (<HOLDING>); State v. Cichon, 458 N.W.2d 730, 734 Holdings: 0: holding that a petitioner had not been prejudiced by his counsels failure to present child abuse evidence and noting that several decades had elapsed between the murder and the abuse 1: holding thirtyoneyear lapse between abuse of daughter and granddaughter did not render prior abuse evidence inadmissible per se 2: holding defendants prior conviction for assault related to sexual abuse of a minor even though it did not require an act of sexual abuse because it required intent to commit sexual abuse  and such a mens rea demonstrate the offense was one relating to sexual abuse 3: holding that the fouching for the purposes of abuse language in section 1834014 means touching for the purposes of sexual abuse not abuse in general 4: holding evidence of outofstate instances of abuse admissible in child sexual abuse case to show intent opportunity and relationship between defendant and victim


Input: occurred). 22 . See Leighton, 1990 WL 84704, at *2-3; In re Beatrice Companies, Inc., 1987 WL 36708, at *2-3. 23 . As noted by the dissenting justice, the Defendants objected to Lapiner’s intervention based on his failure to own Isrameo stock at the time of the wrongdoing alleged in the derivative action, but the Defendants did not object to the trial court’s consideration of Lapiner’s objections. 24 . See Tex. Bus. Orgs.Code Ann. § 21.552. 25 . See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445-46 (Tex. 1993) (stating that standing is a component of subject-matter jurisdiction and that lack of standing may be raised for the first time on appeal); Schwartzott v. Etheridge Property Management, 403 S.W.3d 488, 498 n. 4 (Tex.App.-Houston [14th Dist.] 2013, no pet.) (<HOLDING>); Trojacek v. Estate of Kveton, No. Holdings: 0: holding that lack of justiciable interest resulted in lack of standing to pursue claim and that lack of standing deprived the trial court of jurisdiction to act 1: recognizing fundamental error as an exception to the general rule of preservation 2: recognizing exception to preservation rules for fundamental error that is highly prejudicial 3: holding that if these preservation requirements are met any error in the denial of a challenge for cause is reversible error 4: holding that preservation of error in the trial court is not necessary as to lack of standing


Input: policy not to fire employees except for good cause. Plaintiff bases his implied contract claim solely on evidence that the drug policy was posted, that he probably read it, that IBP restricted itself by the policy, and that IBP led employees to believe that it does not fire them except for cause. IBP argues that plaintiff has presented insufficient evidence of contractual negotiations or other circumstances which would tend to make clear the intent of the parties to change the at-will nature of the employment relationship. According to IBP, the fact that IBP unilaterally adopted a drug/alcohol policy and has a general practice of adhering to it does not transform the policy into a binding contract of employment. E.g., Berry v. General Motors Corp., 838 F.Supp. 1479, 1492 (D.Kan.1993) (<HOLDING>), aff'd, 56 F.3d 1233 (10th Cir.1995). In Holdings: 0: recognizing distinct difference between policy which given employer might adopt and sincerely intend to follow and normally does follow and binding contractual duty 1: recognizing difference between tolling and equitable estoppel 2: holding that failure to follow mandatory provision of statute renders the act void whereas failure to follow directory provision does not 3: recognizing that jurors are presumed to follow instructions 4: holding that a jury is presumed to follow the trial courts instructions


Input: that provides some substantiation for and does not merely reiterate what is said in the pleadings.” Gibb v. Scott, 958 F.2d 814, 816 (8th Cir.1992) (citation omitted). Statements of counsel at oral argument raising new facts not alleged in the pleadings constitute “matters outside the pleadings” and, if considered by the district court, require treatment of a Rule 12(b)(6) motion to dismiss as one for summary judgment. See, e.g., Smith v. Local No. 25, Sheet Metal Workers International Ass’n, 500 F.2d 741, 744 (5th Cir.1974) (treating a Rule 12(b)(6) dismissal order as automatically converted into summary judgment because district court relied on materials outside the pleadings, including oral argument); Judge v. Johnston Warren Lines, Inc. [Ltd.], 205 F.Supp. 700, 702 (D.Mass.1962) (<HOLDING>). Hamm v. Rhone-Poulenc Rorer Pharms., Inc. 187 Holdings: 0: holding that a rule 12b6 motion is only converted to a motion for summary judgment when a court accepts and considers matters outside of the pleadings 1: holding that where a court considering a rule 12b6 motion relies on matters outside the pleading the motion must be treated as a rule 56 motion for summary judgment 2: holding that a rule 12b6 motion to dismiss should be treated as a motion for summary judgment when plaintiffs counsel relied upon facts outside the four corners of the complaint during oral argument of the motion 3: holding that motion to dismiss cannot be treated as summary judgment 4: holding that by considering matters outside of the pleadings the trial court converted a rule 12b6 motion to dismiss into a summary judgment motion


Input: minimize liability. Indeed, defense counsel would be remiss not to demand that the plaintiff waive statutory attorney’s fees. A lawyer who proposes to have his client pay more than is necessary to end litigation has failed to fulfill his fundamental duty zealously to represent the best interests of his client. Because waiver of fees does not affect the plaintiff, a settlement offer is not made less attractive to the plaintiff if it includes a demand that statutory fees be waived. Thus, in the future, we must expect settlement offers routinely to contain demands for waivers of statutory fees. The cumulative effect this practice will have on the civil rights bar is evident. It does not denigrate the high ideals that motivate many civil rights practitione Co., 338 U. S. 263, 266 (1949) (<HOLDING>); Wilko v. Swan, 346 U. S. 427, 434-438 (1953) Holdings: 0: recognizing that  1404a allows for the transfer of federal employers liability act suits 1: holding right to liquidated damages under fair labor standards act nonwaivable 2: holding that there was no federal subject matter jurisdiction under the private cause of action provision of the act 3: holding venue provision of federal employers liability act nonwaivable 4: holding that if a modification petition is filed in a county where venue is appropriate it is improper to transfer the venue to another county merely because venue also would have been proper in the other county however once an enforcement proceeding is undertaken in an appropriate venue venue is improper in a different county over a subsequently filed petition to modify the decree which was the subject of the enforcement proceedings


Input: Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Rylander v. State, 101 S.W.3d 107, 109-10 (Tex.Crim.App.2003). The appellant must first demonstrate trial counsel’s performance was deficient because it fell below an objective standard of reasonableness. Id. (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). He must then show that “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. McCallum claims his counsel’s performance was deficient because he failed to object properly to the admission of evidence regarding McCallum’s membership in the Aryan Brotherhood. Counsel is not ineffective for failing to object to admissible evidence. See Ex parte White, 160 S.W.3d 46, 53 (Tex.Crim.App.2004) (<HOLDING>). We have determined this evidence was Holdings: 0: holding ineffective assistance of counsel claim for failure to object to prosecutors comments cognizable in postconviction motion since court unable to review on appeal because trial counsel failed to preserve error 1: holding that to demonstrate a claim of ineffective assistance of counsel petition must establish that the alleged error was prejudicial in fact 2: holding that to establish ineffective assistance of counsel for failure to object during trial appellant must show trial court would have committed error in overruling objection 3: holding that failure to object to admissible evidence was not ineffective assistance of counsel 4: holding that for an ineffective assistance of counsel claim to be established a defendant must show that but for counsels error the outcome of his proceedings would have been different


Input: forfeiture was not received. 18 U.S.C. § 983(e). This is the exclusive remedy after pursuing the administrative path for setting aside a forfeiture decision by the Office of the Solicitor. Id. In this case, the district court properly held that plaintiffs’ CAFRA claim is barred from judicial review. Plaintiffs received proper notice of the proposed forfeitures. Plaintiffs chose to pursue an administrative path and filed petitions for remission and petitions for supplemental remission. These petitions were reviewed by the Office of the Solicitor and denied. Because plaintiffs chose to pursue administrative remedies, they waived the opportunity for judicial forfeiture proceedings. See 50 C.F.R. § 12.24(a) (expressly providing that remedies are exclusive); Malladi Drugs, 552 F.3d at 889 (<HOLDING>); Cole v. United States (In re $844,520), 136 Holdings: 0: holding that if adequate administrative remedies are available it is improper to seek relief in court before those remedies are exhausted 1: holding that the remedies are exclusive 2: holding plaintiffs were not foreclosed from pursuing ucc remedies outside of written warranty because warranty notice provision did not specify that the remedies provided were exclusive of any other remedy 3: holding that remedies provided in the bankruptcy code for enforcing a chapter 11 plan of reorganization are not exclusive 4: holding that the act provides the exclusive procedures and remedies for common law causes of action based on allegations of deception fraud and misrepresentation


Input: we cannot say that § 1396r-5(e)(2)(C) has a “plain meaning” that mandates a resource-first approach. The MCCA does not set out a definition of income as that term is used in subsection (e)(2)(c). Further, unlike the district court, we do not read subsections (b), (d)(e) and'(f) as imparting a plain meaning that prohibits the transfer of income pre-eligibility, such that transferred income cannot be included in the community spouse’s income as that term is used in subsection (e)(2)(C). Instead, we believe that subsection (e)(2)(C)’s reference to “income” is ambiguous at best. Indeed, the differing views of the various courts and agencies that have interpreted subsection (e)(2)(C) provide a strong indication that the subsection is ambiguous. Compare, e.g., Gruber, 647 N.E.2d at 861 (<HOLDING>), and Kimnach, 645 N.E.2d at 825 (same), with Holdings: 0: holding that mcca mandates resourcefirst ap proach in implementing subsection e2c 1: holding that to sustain a conviction under subsection 1a of oregons seconddegree assault statute the state needs to prove only that defendant was aware of the assaultive nature of his conduct and that his conduct in fact caused the victim serious physical injury 2: holding that subsection 13la does not apply if the information is not of a personal nature 3: holding that a court should be more hesitant in accepting ab2 suit which contains significant individual issues than it would under subsection 23b3 4: holding that  1226e does not purport to foreclose challenges to  1226c itself as opposed to decisions implementing that subsection


Input: available utilities and absence of nearby off-site amenities also contributed to his conclusion of the inappropriateness of this site for Mount Laurel II development. Distance from water and sewerage connections, or lack of frontage on a public street, or location in the conservation area individually is not enough to preclude the granting of a compliance remedy. However, the High Debi Hills tract is a full mile away from the nearest existing water and sewer point of connection. The method of access over the 500 foot distance separating the tract from Campgaw Road is uncertain. And, most importantly, Court ordered Mount Laurel II development should be located in growth areas, not conservation districts. See Orgo Farms and Greenhouses v. Colts Neck Tp., 192 N.J.Super. 599 (Law Div.1983) (<HOLDING>). Here, substantial compliance can be achieved Holdings: 0: holding that it may be decided as a matter of law 1: recognizing that what is a reasonable area is a factual matter to be determined in each noncompete case 2: holding that a matter of law that is assumed but not discussed is not authoritative 3: holding that the availability of the icrp is but one factor to be considered in determining undue hardship but it is not determinative 4: holding availability of a builders remedy in a limited growth area is not foreclosed as a matter of law but will be sparingly granted


Input: which may result in any discharge into navigable waters,” a state certificate must be obtained. 33 U.S.C. § 1341(a)(1). The primary issue is whether the reference to “any discharge into navigable waters” under § 401 is limited to point sources. “Point source” is defined under the CWA as any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include return flows from irrigated agriculture. 33 U.S.C. § 1362(14). The term “discharge,” when used without qualification in the CWA, includes a discharge of a pollutant, and a disc .Wyo.1990) (<HOLDING>); Chemehuevi Indian Tribe v. California St. Bd. Holdings: 0: holding use of word may generally indicates permissive rather than mandatory intent 1: holding that the word void is not sufficient 2: holding that the word includes instead of means indicates that what follows is a nonexclusive list that can be enlarged 3: holding the word carry includes the carrying of a firearm in a vehicle 4: holding that the use of the word or in a statute indicates that any of the listed alternative methods will suffice


Input: ¶ 67), regularly evaluates the performance of agency nurses, PI. Statement ¶ 28; Def. Counterstatement ¶ 28, and could prohibit an agency nurse from continuing to work at Bellevue if it believed she had committed a major violation of some rule or if it was otherwise dissatisfied with the nurse’s performance, Def. Counterstatement ¶¶ 29, 70. From all the foregoing, it is obvious that no evidentiary dispute remains that is material to the determination here in issue but that, rather, consideration of the undisputed “circumstances of the whole activity viewed in light of economic reality” demonstrates that Bellevue exercised functional control over plaintiff and was her joint employer. Cf. Amamare v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 611 F.Supp. 344, 349 (S.D.N.Y.1984) (<HOLDING>). Defendants’ fallback arguments are that, even Holdings: 0: holding that there is no individual liability under title vii 1: holding that under title vii a temporary employee was employed by both her temp agency and the business at which she worked on a temporary basis 2: holding that a title vii plaintiff could not hold coworkers liable in their individual capacities under title vii 3: holding that individual employees are not liable under title vii 4: holding that disclosure was required where the current employer permitted the paralegal to work on the same litigation she had worked for at her prior firm even after becoming aware that she had previously worked on the case


Input: records should be treated as testimonial. A reliability-based approach to public records is harmonious with both the purpose of the Confrontation Clause right and the modern realities associated with proving the content of routinely maintained motor vehicle records. C. Conclusion [¶ 26] We thus conclude that our decision in Tayman remains valid precedent and should control our decision in this case. As in Tayman, the Secretary of State’s certificate authenticated and summarized routine motor vehicle records that were not primarily maintained for use as evidence in criminal prosecutions. Further, the certificat 41-42 (1st Cir.2006) (concluding that warrants of deportation were nontestimonial hearsay); see also United States v. Ballesteros-Selinger, 454 F.3d 973, 975 (9th Cir.2006) (<HOLDING>); United States v. Valdez-Maltos, 443 F.3d 910, Holdings: 0: holding that a deportation proceeding commenced after an order to show cause issued 1: holding that a warrant issued by a judge lacking authority violated defendants fourth amendment rights 2: holding part performance of an oral agreement necessary to take the oral agreement out of the statute of frauds must be consistent only  with the existence of the alleged oral contract 3: holding that a memorandum of oral decision issued by an immigration judge at a deportation hearing was nontestimonial 4: holding that an order or judgment issued by a disqualified judge is void but not because the court lacked jurisdiction


Input: could be expected to go (e.g., walkways, driveways, porches) * * *.” 1 W. LaFave, Search and Seizure § 2.3(f) at 412 (1987). Thirdly, it appears that defendant was using his residence also as a commercial outlet for drugs and that his customers typically walked near the garbage on the way to the back entrance, facts that further suggest a diminished expectation of privacy by petitioner in the area where the garbage was placed. In Dunn, the Court stated that it was “especially significant” that the police possessed objective data indicating that the barn was not being used for intimate activities of the home but was being used in the unlawful manufacture of elicit drugs. 107 S.Ct. at 1139-1140; cf., Dow Chemical Co. v. United States, — U.S.-, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986) (<HOLDING>). All these factors combine to persuade us that Holdings: 0: holding that for purposes of aerial surveillance using sophisticated equipment the open areas of an industrial or business complex are not analogous to the curtilage of a dwelling but falls somewhere between open fields and curtilage 1: holding canine sniff of an unattended vehicle parked outside the curtilage of defendants home was not a search within the meaning of the fourth amendment 2: holding that a warrantless search of garbage located within the curtilage of the defendants home violated his fourth amendment rights 3: holding that aerial observation of a greenhouse within the curtilage from a helicopter passing at an altitude of four hundred feet did not violate owners reasonable expectation of privacy 4: holding that defendant lacked reasonable expectation of privacy in garbage located outside curtilage of home


Input: As noted in the Advisory Committee notes to Rule 41(e) of the Federal Rules of Criminal Procedure, the district court has jurisdiction to hear motions “to compel [the] return of property obtained by an illegal search and seizure.” Fed. R.Crim.P. 41(e) advisory committee’s note. Moreover, the Third Circuit has found that its district courts have jurisdiction over third party motions for the return of property, see United States v. Frank, 763 F.2d 551, 552 (3d Cir.1985) (stating that the district court had jurisdiction to entertain a third party motion to determine who had entitlement to evidence after the criminal prosecution concluded), and that such jurisdiction exists even after the termination of the criminal proceedings, see United States v. McGlory, 202 F.3d 664, 670 (3d Cir.2000) (<HOLDING>); Bein, 214 F.3d at 411 (finding that “[a] Holdings: 0: holding that the district court and this court had subject matter jurisdiction over the defendants motion for modification of sentence based on amendment 706 even though the defendant filed the motion before march 3 2008 because the district court ruled on the motion after that date 1: holding that motion for reconsideration would be construed not as a rule 60b motion but rather as an unauthorized successive motion under  2255 which the district court may have been without jurisdiction to consider 2: holding that rule 41e motion for return of seized property is treated as a civil equitable proceeding when criminal proceedings against moving party are not yet pending 3: holding that a district court has jurisdiction to consider  a rule 41e motion  filed after criminal proceedings had been completed 4: holding that a district court has jurisdiction to entertain a rule 41e motion for the return of property before a criminal prosecution has begun believing such a motion to be in effect a civil action


Input: the district court. Barnard’s psychological problems were not diagnosed until five years after the date last insured. Barnard also argues that the ALJ erred in rejecting a treating physician’s conclusions drawn nine months after the date last insured. We disagree. An ALJ should ordinarily give great weight to a treating physician’s findings in disability cases. See Batson, 359 F.3d at 1195 (citing Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir.2001)). When these findings conflict with the opinion of other doctors, however, the ALJ may reject the testimony so long as he provides “specific and legitimate reasons that are supported by substantial evidence.” See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) ; see also Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir.1995) (<HOLDING>). The ALJ pointed to inconsistencies in the Holdings: 0: holding that the alj must make findings setting forth specific and legitimate reasons that are supported by substantial evidence in order to reject the contradicted opinion of a treating physician 1: holding that where a treating physicians opinion is contradicted by a consulting physician the alj must explain on the record the reasons for rejecting the opinion of the treating physician 2: holding that clear and convincing reasons are not required to reject contradicted conclusions of a treating physician 3: holding that errors such as failing to provide clear and convincing reasons for discrediting a claimants subjective complaints rejecting a treating physicians opinion in favor of a nontreating physicians opinion without providing clear and convincing reasons and erring in assessing the claimants residual functioning capacity are fundamental 4: holding that despite the lack of a statutory requirement that severe child abuse be shown by clear and convincing evidence due to the consequences of such a finding the clear and convincing standard must be applied


Input: a plan to “modify the rights of holders of secured claims.” A hen is a property right, see Nobelman, 508 U.S. at 328-29, 113 S.Ct. at 2109-10, and the obvious implication of Nobelman — an implication made express in Justice Stevens’ concurrence — is that hen-stripping is permissible except in the case of home mortgages in Chapter 13, see id. at 332, 113 S.Ct. at 2111 (Stevens, J., concurring). Section 1227(c) also has a hen-stripping effect, vesting property in the debtor “free and clear of any claim or interest of any creditor provided for by the plan” unless the plan or the order confirming the plan specifies otherwise. 11 U.S.C. § 1227(c) (1994). The FSA was undoubtedly “provided for by the plan,” and a hen is a “claim or interest.” See Johnson, 501 U.S. at 84, 111 S.Ct. at 2154 (<HOLDING>); 11 U.S.C. § 101(37) (1994) (defining “lien” Holdings: 0: holding that a claim is not moot where there is a viable damages claim 1: holding that an embezzlement claim is not a personal injury tort claim 2: holding claim is cognizable 3: holding that a negligence claim is not a personal injury tort claim 4: holding that an in rem hen is a claim


Input: Requiring Indemnification Before Access to Public Streets and Sidewalks Is Unconstitutional On appeal Plain Dealer also challenges the constitutionality of Section 901.-181(c)(5) of the Lakewood Codified Ordinance requiring that “permittees” indemnify and insure the City as a condition to gaining access to its public streets and sidewalks. We believe this provision also violates the First Amendment. The district court held that since the City is liable under Ohio Revised Code Section 723.01 for the failure to maintain the streets, sidewalks, and publicways, it should not be exposed to additional liability without indemnification by any private commercial use on such City owned property. The district court cites Haverlack v. Portage Homes, Inc., 2 Ohio St.3d 26, 442 N.E.2d 749 (1982) (<HOLDING>); Dickerhoof v. City of Canton, 6 Ohio St.3d Holdings: 0: recognizing a claim of sovereign immunity raises a jurisdictional defense 1: holding that as a general rule interlocutory trial court orders rejecting defenses of common law sovereign immunity governmental immunity public official immunity statutory immunity or any other type of immunity are not appealable under the maryland collateral order doctrine 2: holding that the defense of sovereign immunity is not available in the absence of a statute providing immunity to a municipal corporation in a negligence action 3: holding that the sovereign immunity defense may be raised for the first time on appeal 4: holding that the alien tort statute itself is not a waiver of sovereign immunity


Input: prosequi the case, which motion was granted. The defendant challenged the decision, and the Court observed that the “express language of the statute commits a finding of good cause to the discretion of the trial court.” Id. Noting that the basis for the motion was, in part, the failure of the Commonwealth to adequately prepare its case, the Court stated that, where such lack of preparation was coupled with factors beyond the Commonwealth’s control, it “does not demonstrate bad faith on the Commonwealth’s part. Nor does the decision of the Commonwealth to seek a nolle prosequi rise to the level of oppressive tactics amounting to prosecutorial misconduct in this instance.” (emphasis added). Id. at 584, 520 S.E.2d at 830, see United States v. Wallace, 848 F.2d 1464, 1468 (9th Cir. 1988) (<HOLDING>). These Virginia cases make clear that the Holdings: 0: recognizing that fundamental consideration in assessing the propriety of a prosecutors motion to dismiss is whether the motion is made in good faith 1: holding that the standard for a motion for judgment on the pleadings is the same as the standard for a motion to dismiss 2: recognizing that a clients interest in delay itself is not entitled to weight in assessing the propriety of a lawyers tactics on behalf of the client 3: holding that the trial court did not violate due process in considering the defendants motion to dismiss because the defendant had corrected its error in not serving its motion to dismiss on the plaintiff and because the plaintiff had received adequate time to consider and respond to the arguments made in the motion 4: holding that presumption is applicable in motion to dismiss context


Input: that the appellant was being advised to limit his strenuous activity. Finally, the appellant’s argument that, pursuant to 38 C.F.R. § 4.21, he “is not required to demonstrate that he meets all criteria for the next higher rating” lacks merit. Reply Br. at 3. He asserts that he “unquestionably satisfies two of the three criteria for the 40-percent rating.” Id. at 3. In light of the conjunctive “and” in the criteria for a 40% disability rating under DC 7913, all criteria must be met to establish entitlement to a 40% rating. See, e.g., Watson v. Dep’t of the Navy, 262 F.3d 1292, 1299 (Fed.Cir.2001) (noting that inclusion of conjunctive “and” clearly indicates that all three criteria in 5 C.F.R. §§ 831.902 and 842.802 must be demonstrated); Heuer v. Brown, 7 Vet.App. 379, 385 (1995) (<HOLDING>); Malone v. Gober, 10 Vet.App. 539 (1997) Holdings: 0: holding that the statutory criteria for designation of an area of critical state concern  are constitutionally defective because they reposit in an agency the fundamental legislative task of determining which geo graphic areas and resources are in greatest need of protection 1: holding that criteria expressed in the conjunctive are connected by and 2: holding that arguments that are not raised or that are not accompanied by factual and legal support are deemed waived 3: holding that views expressed by other courts on the merits and in particular a string of losses together with the actual merits of the governments litigating position are central to issue of whether position was substantially justified 4: recognizing that russell rejected a remedy that was neither expressed nor implied in the plan but that plaintiff claimed was implicit in the erisa statute


Input: after hearing testimony from K.J. and K.S.'s mother. As a result of this violation of probation, on June 18, 2003, the juvenile court granted wardship of K.S. to the- DOC for a recommended period of six months. K.S. now appeals. Analysis K.S.'s argument is that the juvenile court never. properly obtained jurisdiction during the entirety of these proceedings because it failed to strictly follow the statutory prerequisites for obtaining jurisdiction at the time of the original delinquency filing in May 2002. . Indiana courts have held for many years that strict compliance with the statutory prerequisites for obtaining jurisdiction at the commencement of delinquency proceedings is required of juvenile courts. See, eg., Shupe v. Bell, 127 Ind.App. 292, 300-01, 141 N.RE.2d 351, 355 (1957) (<HOLDING>) (emphasis added). The statutes governing the Holdings: 0: holding that judicial review is not available of the governments certification under 18 usc  5032  as required to initiate a juvenile delinquency proceeding that inter alia an appropriate court of a state  does not have available programs and services adequate for the needs of juveniles 1: holding juvenile court under statutes then in effect could not acquire jurisdiction in delinquency proceeding in the absence of a delinquency petition filed by the probation officer under an order of the court authorizing the same 2: holding that a delinquency proceeding places a juvenile in jeopardy for purposes of the double jeopardy clause 3: holding that youth in juvenile delinquency proceeding was not entitled to a jury trial on the issue of restitution under ors 419c450 4: holding that the order of the juvenile court authorizing the filing of a delinquency petition is one of the essential documents needed when considering a challenge to juvenile jurisdiction


Input: saving it for when new counsel began representing Lance, was appropriate, because this form of Sixth Amendment claim does not involve the potential conflict of interest inherent where a lawyer accuses himself or herself of having made unprofessional choices. See id. at 87, n. 13 (noting, but declining to address, the possibility that a trial court’s denial of expert funds might raise Sixth Amendment concerns, in addition to due process concerns, that could be considered on direct appeal); Strickland, supra, 466 U. S. at 686 (noting that there are Sixth Amendment claims regarding governmental interference with the right to counsel that are distinct from claims regarding trial counsel’s own deficient performance). Compare Glover v. State, 266 Ga. 183, 183-185 (2) (465 SE2d 659) (1996) (<HOLDING>). Having been timely raised, the claim was Holdings: 0: holding that a claim including a constitutional claim must have been asserted to the trial court to be raised on appeal 1: holding that a claim alleging that trial counsel himself or herself acted outside of the bounds of professional competence must be raised at the earliest practicable moment 2: holding that the defense of lack of venue must be made at the earliest opportunity to plead or it is waived 3: recognizing claim of ineffective assistance of trial counsel usually must be raised in collateral proceeding 4: holding that a disqualification motion must be sought at the earliest possible moment after obtaining knowledge of facts demonstrating the basis for such a claim


Input: The government insists that the U.S. Attorney’s mere certification that the evidence is substantial proof of a material fact is sufficient to establish our jurisdiction. However, we “require[] more than the prosecutor’s bare certification that the conditions enumerated in section 3731 exist.” Adrian, 978 F.2d at 490. Rather, “before we may assume jurisdiction, the government must demonstrate that the evidence ... [is] substantial proof of a fact material to the prosecution.” Id. at 491 (emphasis added); see also id. at 490 (rejecting government’s argument that § 3731 “permits an appeal whenever the government certifies to the district court that the evidence is ‘substantial proof of a material fact,’ regardless of the truth of that certification”); see also Loud Hawk, 628 F.2d at 1150 (<HOLDING>). Consequently, in order to satisfy its Holdings: 0: holding as a matter of law that when condition precedent clear on the face of the insurance policy had not been met before insolvency trustee had no cause of action because none had accrued before bankruptcy 1: holding that the objection had been sufficiently timely when the defense waited until the governments rebuttal to object to a statement made during the governments closing statement 2: holding that any right claimant might have had to receive certain information prior to statutes amendment was not vested because his lawsuit had not been resolved 3: holding  3731 not satisfied as to certain counts notwithstanding the governments protests to the contrary because substantial proof of material fact condition had not been met 4: holding that the governments argument that the iad did not apply because the prisoner had not been assigned to a permanent facility was not persuasive in light of the supreme courts holding in bozeman


Input: otherwise time-barred proceedings when “a litigant’s failure to meet a legally mandated deadline unavoidably arose from circumstances beyond that litigant’s control.” Graham-Humphreys v. Memphis Brooks Museum of Art, 209 F.3d 552, 560-61 (6th Cir.2000). “Although equitable tolling is used sparingly by federal courts,” this court does grant such relief in appropriate circum stances. Johnson v. Hudson, 421 Fed.Appx. 568, 571 (6th Cir.2011). “[A] petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland, 130 S.Ct. at 2562 (internal quotations omitted); see also Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745, 749-50 (6th Cir.2011) (<HOLDING>). In determining whether a petitioner meets Holdings: 0: holding that denial of an independent chemical test after defendant refused to submit to a policeadministered test did not violate due process 1: holding that jurisdiction exists if either the pluralitys test or kennedys test is met 2: holding that a defendants right to an independent blood alcohol test means the right to a test that is not subject to government manipulation 3: holding that holland test did not subsume but replaced prior equitabletolling test from andrews v orr 851 f2d 146 151 6th cir1988 4: recognizing that other courts have found the type of test reliable but finding that this particular urinalysis test was unreliable since the lab did not perform a backup test or identify lab test results and state left questions about how probationers diabetes affected the results


Input: 13 plan. See 11 U.S.C. § 1325(a) (the protection of automatic stay is not listed as a requirement for confirmation of a Chapter 13 plan). The plain language of § 1325(a) mandates confirmation if Debtors meet the nine requirements set forth therein. Congress did not mandate the dismissal of a case or the denial of confirmation if the automatic stay terminated prior to confirmation pursuant to § 362(c)(3) or (4) and therefore the Court finds that the termination of the automatic stay does not necessarily deprive a debtor of the right to continue under Chapter 13, obtain confirmation of a plan, and ultimately obtain a discharge if the debtor complies with the terms of the plan. See United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) (<HOLDING>). In addition to the ability of a debt- or to Holdings: 0: holding that circuit courts failure to apply statute according to its clear and unambiguous terms amounted to failure to apply clearly established law 1: holding that courts should not substitute their judgment for that of the directors of a corporation  2: recognizing court must enforce unambiguous contract according to its terms 3: holding that when a statutes terms are clear and unambiguous on their face there is no room for statutory construction and a court must apply the statute according to its literal meaning 4: holding that when the language of a statute is clear courts should not substitute their judgment for that of congress and should enforce the statute according to its terms


Input: real party in interest in [the Contract Action] wherein the Debtor is r § 8127(a) is relevant. See Clark v. Rameker, — U.S.—, 134 S.Ct. 2242, 2244 n. 1, 189 L.Ed.2d 157 (2014) ("Under [11 U.S.C.] § 522, debtors may elect to claim exemptions either under federal law, see § 522(b)(2), or state law, see § 522(b)(3).”); cf. Bosack, 454 B.R. at 630, 633-35 (considering whether commissions earned pre-petition were exempt under § 8127(a) where the debt- or "elected to take the exemptions available to him under 11 U.S.C. § 522(b)(3), that is essentially Pennsylvania state exemptions and the property that he owns with his nondebtor wife as a tenant by the entirety”). The Court also notes it is not at all clear Segal's interpretation of Pennsylvania law is correct. See Bosack, 454 B.R. at 633 (<HOLDING>). 19 . Segal also argues the Bankruptcy Court Holdings: 0: holding  8127a has no application when an individual works for another as an independent contractor because in such event the person or entity for whom such individual works is not indeed cannot be such individuals employer 1: recognizing such an exception 2: holding that a government agency seeking to enforce a prior order regarding prepetition acts of a debt or is not bound by a confirmed plan a if such agency fails to participate in the confirmation of such plan b if the obligations that such agency seeks to impose upon such debtor do not constitute claims c notwithstanding that such plan purports to treat such debtors obligations to such agency and d since it thus is not a named entity within  1141a 3: holding that the determination of whether an individual is an independent contractor lies in the common law and not under an express provision of the act 4: holding that fca retaliation claim must fail as against defendants sued in their individual capacities because such individuals were not employers


Input: a fee award in this case on the basis of the lodestar approach is what amount, if any, should be excluded because Isacs was dismissed for want of personal jurisdiction and Standard Tallow prevailed on a summary judgment motion. It is well-established that hours expended with respect to defendants who have been dismissed from an action are generally not compensable. See Rode v. Dellarciprete, 892 F.2d 1177, 1185 (3d Cir.1990); see also Washington v. Philadelphia County Court of Common Pleas, 89 F.3d 1031, 1044 (3d Cir.1996) (stating that a court must deduct hours spent on claims that are “distinct in all respects from” the successful claims); Baughman v. Wilson Freight Forwarding Co., 583 F.2d 1208, 1214 (3d Cir.1978); Hall v. Harleysville Ins. Co., 943 F.Supp. 536, 542 (E.D.Pa.1996) (<HOLDING>); Finch v. Hercules Inc., 941 F.Supp. 1395, Holdings: 0: holding that a court must deduct time exclusively devoted to the defendants without liability 1: holding that liability under  2966 cannot attach without first finding employer liability for discrimination under nyhrl 2: holding that the relevant time is the time of the employment decision 3: holding that like other affirmative defenses to liability immunity from liability must be pleaded or else it is waived 4: 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


Input: a grudge against Bous-man or someone who provided the information in exchange for some concession on charges pending against the informant. The question that now arises is what effect the State’s failure to comply with section 810.5(4) has on the nontestimonial identification order. We think the omission of any facts from which the court could assess the informant’s credibility and the reliability of the informant’s information precluded issuance of the order for statutory and constitutional reasons. The statutory requirement that the affidavit “shall set forth particular facts bearing on the informant’s reliability” and “the means by which the information was obtained” is mandatory. Iowa Code § 810.5(4); see State v. Iowa Dist Ct. for Black Hawk County, 472 N.W.2d 621, 624 (Iowa 1991) (<HOLDING>). This requirement ensures that a Holdings: 0: holding that search of backpack constituted a search of defendants person and was not authorized by search warrant for premises 1: holding that use of the word shall in search warrant statute imposed a duty that was obligatory not optional 2: holding warrant valid where search warrant application affidavit was signed and probable cause existed for issuance of warrant 3: holding that an arrest warrant  without a search warrant  does not permit law enforcement authorities to enter a third partys home to legally search for the subject of the arrest warrant 4: holding that because evidence supporting search warrant was illegally obtained evidence recovered by executing warrant was fruit of the illegal search


Input: we accept the designation of K.S.A. § 79-3321 as a criminal statute. Because Stephan was acting to enforce a criminal law under a federal grant of criminal jurisdiction, we believe that Stephan possessed jurisdiction to execute the warrants at Kaul’s store. A further distinction with Oklahoma Tax Commission and Colville is that those cases involved a state’s attempt to tax an Indian tribe, while in the present case the state asserted authority to tax an individual who is not a member of the tribe where her store is located. The Supreme Court has recognized a distinction between Indians and nonmember Indians in several contexts, and has for most practical purposes treated nonmember Indians in the same manner as non-Indians. See, for example, Colville, 447 U.S. at 161, 100 S.Ct. at 2085 (<HOLDING>); Duro v. Reina, 495 U.S. 676, 688, 110 S.Ct. Holdings: 0: holding that indian tribes lack tribal jurisdiction over crimes committed by nonmember indians within the tribes reservation 1: recognizing the inherent power of indian tribes  to exercise criminal jurisdiction over all indians 2: holding over 3: holding that states taxing jurisdiction over nonmember indians is equivalent to states taxing jurisdiction over nonindians 4: holding federal legislation conferring jurisdiction on federal courts to try nonindians for offenses committed in indian country had implicitly preempted tribal criminal jurisdiction over nonindians


Input: findings. Furthermore, although Jin’s brief identifies the requirements for raising an ineffective assistance of counsel claim, as described in In re Lozada, 19 I. & N. Dec. 637 (BIA 1988), there is no assertion or evidence suggesting that Jin complied with these requirements. Jin has also failed to show any error in the agency’s determination that she did not prove past persecution or a probability of future harm as required for withholding of removal or CAT relief. The record establishes that Jin assisted a North Korean refugee, was detained for 15 days, and fined 4,000 RMB. At no time was Jin physically harmed or threatened by authorities. These allegations are insufficient to establish past persecution. See Jian Qiu Liu v. Holder, 632 F.3d 820, 822 (2d Cir.2011) (per curiam) (<HOLDING>); Ivanishvili v. U.S. DOJ, 433 F.3d 332, 341 Holdings: 0: holding that where no factual dispute is raised no hearing is required 1: holding that plaintiff had no claim under fmla because she had suffered no diminution in income and incurred no costs as a result of alleged violation 2: holding that petitioner had established persecution even though he had not been physically harmed and received only an indirect threat relayed by a neighbor 3: holding that plaintiff had no standing because he had no intention of seeking further medical advice or treatment from defendant 4: holding that petitioner failed to establish persecution where he suffered only minor bruising from an altercation with family planning officials which required no formal medical attention and had no lasting physical effect


Input: compensate one for the time value of money.”). 170 . We have addressed the costs of delay only in the context of a judgment, rather than a sanctions award, holding in Shaw that a government entity with sovereign immunity cannot be held liable for "claims grounded on the belated receipt of funds, even when characterized as compensation for delay.” 478 U.S. at 322, 106 S.Ct. 2957. Although we have not addressed a court’s sanction award for the costs of delay, the Supreme Court and the Seventh Circuit have in awarding fees under Rule 11 and other statutory provisions for fees. In Missouri v. Jenkins, the Supreme Court held that when awarding attorne (1994) (quoting Franchise Tax Bd. v. United States Postal Serv., 467 U.S. 512, 520, 104 S.Ct. 2549, 81 L.Ed.2d 1, 496 N.W.2d 459, 467 (1993) Holdings: 0: holding that fdic is immune against interest 1: holding that titere is a significant distinction between fdic in its corporate capacity and its receivership capacity where fdic acts as a receiver it is not immune from prejudgment interest 2: holding that a receiver was immune from a suit alleging defamation conversion and embezzlement arising out of the course of administering the receivership 3: holding that the plaintiffs were entitled to discovery to determine whether the defendant intended to be bound in his personal andor corporate capacity where the agreement contained certain personal guarantees by the defendant but where the defendant signed the agreement only in a corporate capacity with no signature blocks provided for signing in a personally capacity 4: holding that the acts of a corporate officer done in his or her official capacity are acts of the corporation


Input: and unambiguously sets forth an agreement requiring the congregation and its members to submit “controversies] thereafter arising” between them to binding arbitration before a Beth Din of Orthodox Jewish rabbis. The absence of the word “arbitration” from Article II, Section 12 is of no legal significance. See McDonnell Douglas Fin. Corp. v. Pennsylvania Power & Light Co., 858 F.2d 825, 830 (2d Cir.1988) (stating that the absence of the word “arbitration” in a contract is “irrelevant” under the federal arbitration act where the parties clearly intend to submit disputes to their chosen instrument for definitive resolution); Powderly v. Metrabyte Corp., 866 F.Supp. 39, 42 (D.Mass.1994) (same). See generally Hercules & Co. v. Beltway Carpet Serv., Inc., 592 A.2d 1069, 1072-73 (D.C.1991) (<HOLDING>). Nor is there a requirement in the District of Holdings: 0: holding that state courts in construing and interpreting state law are not bound by the decisions of federal courts 1: holding that the california false claims act cfca is pattemed on similar federal legislation and in construing the cfca it is appropriate to look to precedent construing the equivalent federal false claims act 2: holding that federal court decisions construing and applying the federal arbitration act may be regarded as persuasive authority in construing and applying corresponding provisions of our local arbitration act 3: holding that an aaa arbitration was a private proceeding and therefore that a decision by the arbitrator pursuant to the federal arbitration act did not constitute state action 4: holding that rookerfeldman precludes jurisdiction over a federal lawsuit to compel arbitration under the federal arbitration act because the action was inextricably intertwined with the plaintiffs failed statelaw action to compel arbitration under the louisiana arbitration act


Input: not in terms of what the individual can exact from the government.’ ” Northwest Indian Cemetery, 485 U.S. at 451, 108 S.Ct. 1319 (1988) (quoting Sherbert, 374 U.S. at 412, 83 S.Ct. 1790 (Douglas, J., concurring)); Roy, 476 U.S. at 700, 106 S.Ct. 2147. Contrary to the Borough’s position, however, the principle of Lukumi and Fraternal Order of Police-that government cannot discriminate between religiously motivated conduct and comparable secularly motivated conduct in a manner that devalues religious reasons for acting-applies not only when a coercive law or regulation prohibits religious conduct, but also when government denies religious adherents access to publicly available money or property. See Sherbert v. Verner, 374 U.S. 398, 404-05, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) (<HOLDING>); Davey v. Locke, 299 F.3d 748, 753-54 (9th Holdings: 0: holding that free exercise clause prohibits state from devaluing religious reasons for seeking unemployment benefits 1: holding  1001 prosecution for false statements in unemployment benefits not precluded by unemployment benefits statute specifically addressing topic 2: holding that religious exercise is any exercise of religion whether or not compelled by or central to a system of religious belief and that the use building or conversion of real property for the purpose of religious exercise shall be considered  religious exercise 3: holding that religionneutral law that is generally applicable does not violate free exercise clause despite incidental effect on religious practice 4: recognizing a religious institutions right to free exercise of religion


Input: Cir.1983) (“Cash basis taxpayers are required to include items of income in the taxable year in which such item is actually or constructively received.”) (citations omitted). Thus, by “matching” the time at which India Music could deduct its accounts payable owed to HRI with the time at which HRI could include those payments as income, the Commissioner’s § 267(a)(2) disallowance effectively changed India Music’s accounting method for its account payable deduction in the 2004 taxable year from an accrual basis to a cash basis. That is, the Commissioner effected a change in India Music’s treatment of a material item in 2004 by postponing the proper time for taking its account payable deduction. See Summit Sheet Metal Co., T.C. Memo 1996-563, 72 T.C.M. (CCH) 1606, 1996 WL 740748, at *11 (<HOLDING>). Accordingly, the disallowance constituted a Holdings: 0: holding a 12b5 defense is waived if it is not made in a rule 12 motion or if it is not included in a responsive pleading 1: holding that an error is plain if it is clear or obvious 2: holding that it is not 3: holding that an issue is preserved for appeal where the issue was sufficiently raised for the court to rule on it   4: holding that an item is material  if the time for including it in income or deducting it is at issue


Input: merits or his affirmative defense of insanity in these cireumstances. The Sixth Amendment right to a trial by jury requires "criminal convie-tions to rest upon a jury determination that the defendant is guilty of every element of the erime with which he is charged, beyond a reasonable doubt." People v. Hill, 934 P.2d 821, 827 (Colo.1997) (quoting U.S. v. Gaudin, 515 U.S. 506, 510, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995)). However, a judgment of NGRI does not constitute a conviction; rather, it operates as an acquittal of the charged offenses. See Jacobs v. Carmel, 869 P.2d 207, 209 (Colo.1994) (stating that a person committed after a finding of insanity "will not actually have been convicted of the crime charged"); see also Parks v. Dist. Court, 180 Colo. 202, 503 P.2d 1029, 1033 (1972) (<HOLDING>). € 19 Prior to the change in procedure under Holdings: 0: holding that insanity is a complete defense to the criminal charge 1: holding that a defendants insanity due to voluntary intoxication is not a defense 2: holding that defense counsel was not constitutionally ineffective for presenting a diminished capacity defense as opposed to a defense of legal insanity 3: recognizing a criminal defendants right to present a complete defense 4: holding that denigrating insanity defense was inappropriate


Input: in light of the Matter of Y-L-, 24 I. & N. Dec. 151. On the second evaluation of Petitioners’ claim, the BIA held that “the Immigration Judge followed the framework of Matter of Y-L-, supra, to determine that the respondents knowingly made frivolous asylum applications.” We agree. The IJ was not required to hold another hearing on remand, as the record was sufficiently developed to apply Matter of Y-L- to the facts of the case. The BIA did not abuse its discretion in denying either of Petitioners’ requests to reopen. Hamazaspyan v. Holder, 590 F.3d 744, 747 (9th Cir.2009). Under an abuse of discretion standard, Petitioners failed to establish changed country conditions warranting reopening. 8 U.S.C. § 1229a(c)(7)(C)(ii); see also Shin v. Mukasey, 547 F.3d 1019, 1025 (9th Cir.2008) (<HOLDING>) (citing to Matter of Coelho, 20 I. & N. Dec. Holdings: 0: holding that to reopen a case an alien must show that the new evidence would likely change the result 1: holding that a showing of a change in circumstances that is or is likely to be beneficial to the child may also warrant a change in custody 2: holding that an alien must show error and substantial prejudice in order to prevail on a due process claim 3: holding that the alien in that case had not established such circumstances 4: holding that to justify a new trial based upon newly discovered evidence 1 the evidence must have been discovered after trial 2 the failure to discover this evidence must not be attributable to a lack of due diligence on the part of the movant 3 the evidence must not be merely cumulative or impeaching 4 the evidence must be material and 5 the evidence must be likely to produce an acquittal if a new trial is granted


Input: disciplinary adjudication and expunge his record if he suffers no harm from the procedural error. Elkin, 969 F.2d at 54. Allowing a federal court to impose such sanctions would undermine the public interest in the proper enforcement of prison disciplinary rules and, therefore, is not justified. Id. Here, the Petitioner fails to identify how he was prejudiced in his ability to provide a defense by the alleged failure to receive advance written notice of the charges. Thus, he has failed to show that he was denied due process. Second, even if Plaintiff received no due process protections prior to his placement in DC custody, he can show no violation because he received regular periodic reviews by the Program Review Committee (PRC). See Shoats v. Horn, 213 F.3d 140 (3d Cir.2000) (<HOLDING>). Specifically, DC-ADM 801 concerning inmate Holdings: 0: holding that due process requires that a hearing be held within a reasonable time after confinement to administrative segregation and finding that five days plainly satisfied this requirement 1: holding that an inmate stated a claim under the due process clause when guards had placed her in a cell with a dangerous inmate 2: holding that periodic review by prc of status of prisoner held in administrative confinement for eight years afforded all due process to which inmate was entitled 3: holding that a prisoner is entitled to due process prior to being transferred to a mental hospital 4: holding that punitive conditions of pretrial confinement implicate due process


Input: 13 New Jersey courts have used res gestae as an evidentiary doctrine since 1819. See Ogden v. Gibbons, 5 N.J.L. 612, 631-32 (Sup.Ct.1819) (admitting hearsay evidence as res gestae of charged trespass because evidence was necessary to establish motive); Den v. Vancleve, 5 N.J.L. 695, 758 (Sup.Ct.1819) (explaining res gestae as exception to rule against hearsay). 14 Res gestae also has been cited as the explanation for admitting relevant evidence. See, e.g., State v. Deegan, 133 N.J.L. 263, 44 A.2d 104 (E. & A.1945) (permitting photographs of decedent and family to be admitted as res gestae); State v. Weiner, 101 N.J.L. 46, 49, 127 A. 582 (Sup.Ct.1925) (admitting as res gestae evidence of skid marks at accident scene); State v. Hill, 65 N.J.L. 626, 632, 47 A. 814 (E. & A.1900) (<HOLDING>). 15 See Long, supra, 173 N.J. at 166, 801 A.2d Holdings: 0: holding that even in separate trial other crimes evidence would not have been admissible and identification testimony would have been admissible 1: holding that hearsay evidence may be considered on summary judgment if the same evidence would be admissible in another form at trial 2: holding that evidence in an inadmissible form may be considered at the summary judgment stage as long as the evidence is submitted in an admissible form at trial 3: holding that coats presence in room at time of murder would be admissible as res gestae 4: recognizing that a 11 evidence must be relevant to be admissible


Input: very issue, but the district court denied that intervention. Enterprise chose not to appeal that decision. Thus, the validity of Landmark's prejudgment attachment never was in issue in the Landmark lawsuit. 2 . We have no doubt that the validity of Landmark's prejudgment attachment would be an issue in a priority dispute between Landmark and Enterprise. Nevertheless, neither the Enterprise lawsuit nor the Landmark lawsuit is a priority dispute involving the validity of a prejudgment attachment. 3 . Landmark opposed the district court's consolidation below. Landmark, however, could not appeal the consolidation because the district court held in favor of Landmark on the merits. See Public Serv. Comm'n v. Brashear Freight Lines, 306 U.S. 204, 206, 59 S.Ct. 480, 481, 83 L.Ed. 608 (1939) (<HOLDING>). Landmark, however, has raised this issue as a Holdings: 0: holding neither party was prevailing party where appeal and crossappeal were dismissed 1: holding that a defendant is the prevailing party within the meaning of statutory provisions awarding attorneys fees to the prevailing party even when the plaintiff voluntarily dismisses the action 2: holding that prevailing party has no standing to appeal 3: holding that the party prevailing on the significant issues in the litigation is the party that should be considered the prevailing party for attorneys fees 4: holding a party has no standing to appeal unless he or she is an aggrieved party an individual who is not a parent in the eyes of the law has no legal interest in the child and therefore has no standing to appeal


Input: 580, 587 (Tex.App.-Houston [1st Dist.] 1997, no pet.). A conclusory statement is one that does not provide the underlying facts to support the conclusion. Paragon Gen. Contractors, 227 S.W.3d at 883; Rizkallah, 952 S.W.2d at 587. A conclusory statement can be either a legal conclusion or factual conclusion. See Rizkallah, 952 S.W.2d at 587. Harrison’s averments arguably concerned only two of the representations on which Methodist relied to support its breaeh-of-warranty action: “Zurich had experienced and expert personnel to handle all claims”; and “Zurich would provide a customized claims program that would control Methodist’s loss costs.” Even if Harrison’s affidavit was some evidence Zurich breached these warranties, his aver-m s “opinion.” See Ryland Group, Inc., 924 S.W.2d at 122 (<HOLDING>). Accordingly, Harrison’s averments were Holdings: 0: holding that interested partys affidavit opposed to motion for summary judgment and governments deposition to explore facts asserted in affidavit do not constitute distinct proceedings 1: holding that facts alleged in an employees affidavit were insufficient to raise an issue of fact for the purposes of defeating a summary judgment where the affidavit contradicted the employees earlier deposition statements 2: holding that affidavit in support of summary judgment may not be based upon factual conclusion or conclusions of law 3: recognizing that an interested witnesss affidavit reciting he estimates or believes cer tain facts to be true will not support summary judgment 4: holding that a court may not consider hearsay contained in an affidavit when ruling on a summary judgment motion


Input: that the examiner conducted a physical examination of Mr. Johnson; reviewed the claims file and medical records to include x-rays taken in 1977, 1993, 1999, and 2004; opined that Mr. Johnson’s developmental abnormalities did not undergo any degenerative change between 1977 and 2004; opined that there were no other abnormalities other than his longstanding developmental abnormalities (which would also negate the question of any “superimposed” disability); and opined that Mr. Johnson’s current back disability was not related to his eligible service. In sum, the record reflects that the July 2005 VA medical examiner based his opinion on Mr. Johnson’s history and his medical records, and the examiner explained the basis for his opinion. See D’Aries v. Peake, 22 Vet.App. 97, 104 (2008) (<HOLDING>); see also Green v. Derwinski, 1 Vet.App. 121, Holdings: 0: holding that review of medical history during an examination assisted doctors medical conclusions 1: holding that experts medical opinion constituted no evidence because it was based upon speculation and surmise rather than reasonable medical probability 2: holding that an aljs own medical analysis which is contrary to medical evidence is invalid 3: holding that a medical opinion is adequate where it is based upon the veterans medical history examinations and the also describes the disability in sufficient detail 4: holding that the mother can be deemed to have waived the physicianpatient privilege only with respect to the medical history and records pertaining to the period when the plaintiff was in utero during which time there could be no severance of the infants prenatal history from his mothers medical history


Input: cases involving the custody, care, and control of children is divided between the District Court and Probate Court. Pursuant to 19-A M.R.S. § 103 (2015), the District Court has “original” jurisdiction over cases involving parental rights, but the Probate Court has exclusive jurisdiction to appoint guardians for minors pursuant to 18-A M.R.S. § 5-102(a) (2015). More and more frequently, family litigation causes these two court systems to exercise concurrent jurisdiction, and the “marriage” caused by this concurrent jurisdiction is very rocky. Although 19-A M.R.S. § 1654 (2015) confers on the Probate Court concurrent jurisdiction to award parental rights and responsibilities “[i]f the father and mother of a minor child are living apart,” see Marin v. Marin, 2002 ME 88, ¶ 7, 797 A.2d 1265 (<HOLDING>), in actuality, the Probate Courts deal with Holdings: 0: holding in termination of parental rights case that trial court erred in taking judicial notice of evidence before him in guardianship hearing in same case 1: recognizing that the probate court may determine issues of parental rights and responsibilities as they relate to the guardianship proceeding in which they arose 2: recognizing that a court is not limited in what it may consider in determining whether parental rights should be terminated 3: recognizing this substantial interest in context of termination of parental rights 4: holding that a respondent in a termination of parental rights proceeding may not file a counterclaim


Input: the burden of proving the mitigating role in the offense by a preponderance of the evidence. Id. at 939. “A trial court’s choice between ‘two permissible views of the evidence’ is the very essence of the clear error standard of review.” Id. at 945. The district court does not need to make specific subsidiary factual findings, and, as long as the record supports the decision and the district court resolves any disputed factual issues, a final determination is sufficient. Id. at 939-40. The burden is on the defendant to offer evidence at sentencing on an issue that would reduce his offense level, and if he fails to do so, and other evidence does not demonstrate entitlement, we will affirm the district court finding. See United States v. Wilson, 884 F.2d 1355, 1356-57 (11th Cir.1989) (<HOLDING>). Under U.S.S.G. § 3B1.2, the district court Holdings: 0: holding that where the defendant pleaded guilty subsequently denied his guilt and attempted to withdraw his plea and then attempted to minimize the significance of his statements at sentencing by averring that he accepted responsibility for the amount that me and the government have agreed to and offering a statement accepting responsibility  were insufficient to demonstrate acceptance of responsibility 1: holding that defendant was not entitled to reduction for acceptance of responsibility where he failed to fully account for the proceeds of his crime and attempted to delay a longscheduled hearing based on an incredible claim of innocence 2: holding defendant failed to meet burden for acceptance of responsibility reduction where he objected in the psi but only made arguments at sentencing without offering evidence 3: holding that factual findings set forth in the psi not objected to by a defendant are deemed admitted 4: holding that because the defendant did not object to the factual recitations in the psi he effectively admitted the facts in the psi


Input: by an alien against whom deportation proceedings are pending: “no person shall be naturalized against whom there is outstanding a final finding of deportability pursuant to a warrant of arrest ...; and no petition for naturalization shall be considered by the Attorney General if there is pending against the petitioner a deportation proceeding pursuant to a warrant of arrest.” 8 U.S.C. § 1429 (emphasis added). INS argues that under the revised naturalization scheme, section 1429 operates to divest district courts of the jurisdiction section 1421(c) provides to review administrative denials of naturalization applications: This is somewhat of a novel issue, and the few courts that have addressed the question have disagreed. Compare Mosleh v. Strapp, 992 F.Supp. 874, 876 (N.D.Tex.1998) (<HOLDING>) with Gatcliffe v. Reno, 23 F.Supp.2d 581, Holdings: 0: holding agency action is final where there are no deportation proceedings pending in which the decision might be reopened or challenged 1: holding that federal district courts lack jurisdiction to review a final state court decision in a particular case 2: holding that section 1429 does not divest district court of jurisdiction when deportation proceedings are pending 3: holding that district courts lack jurisdiction to review denied applications when deportation proceedings are pending 4: holding the district court did not have jurisdiction to review denial of adjustment of status where removal proceedings are pending


Input: The three-judge panel found that, in addition to complying with federal and state law, the General Assembly desired to create districts “more competitive for” the majority party. The panel noted the “undisputed” fact that in North Carolina “racial identification correlates highly with political affiliation.” The desire to create districts more competitive for the majority party had to occur within the requirements of the state constitution’s Whole County Provision. Thus, while the three-judge panel noted the General Assembly’s desire “to equalize population among the districts,” for state redistricting purposes, this finding must be viewed in the context of the Whole County Provision, which recognizes political subdivisions. See Stephenson I, 355 N.C. at 366, 562 S.E.2d at 386 (<HOLDING>). In light of the Whole County Provision, Holdings: 0: holding that despite district courts restriction on crossexamination of government witness concerning the sentencing benefits he would earn through testifying for the government it did not violate defendants confrontation rights because of defense counsels effective impeachment of the government witnesses credibility and sentence reduction 1: holding that amtrak is an agency of the government  for purposes of the constitutional obligations of government 2: recognizing the importance of the county to our system of government and that it is through counties mainly that the powers of government reach and operate directly upon the people quoting white v commrs of chowan cty 90 nc 437 438 1884 3: holding that whether error in failing to ask a question about bias in favor of law enforcement testimony requires reversal hinges on such factors as the importance of the government agents testimony to the case as a whole the extent to which the question concerning the venire persons attitude toward government agents is covered in other questions  the extent to which the credibility of the government agentwitness is put into issue and the extent to which the testimony of the government agent is corroborated by nonagent witnesses internal quotation marks and citation omitted 4: recognizing the importance of the employers knowledge of the disability


Input: (2001). 1 16 To the contrary, D-Mil cites Williams v. Cont'l Constr., Corp., 1984 OK 887, 34 P.2d 254 and title 52, sections 2 , 3 , 7 , and 26 , of the Oklahoma Statutes, contending that, under Williams, because it has complied with Oklahoma's general corporation laws and accepted the Oklahoma Corporation Commission's rules, regulations and applicable statutes, D-Mil is entitled to exercise eminent domain across Landowner's land to market gas from a well it operates. And, no statute requires D-Mil to be specifically designated as or become a "pipeline company." We disagree. 17 D-Mil correctly notes that a pipeline company is not expressly required to be named as such. See eg. Mo.-Kan.-Tex.R. Co. v. State, 1985 OK 108, 11 85, 712 P.2d 40, 46; French v. Ayres, 1949 OK 88, 207 P.2d 308 (<HOLDING>). Under title 52, a company's business name is Holdings: 0: holding that service is not avoided by service on a partys attorney as service on an attorney is ineffective unless he has been authorized to accept such service 1: holding that claims of corporation vest in corporation 2: holding that directors of a whollyowned corporation could consider the interests of the parent company as well as the interests of their corporation because there was only one substantive interest to be protected 3: holding public service corporation obligated to furnish service to each patron at same price charged to other patrons for substantially similar service 4: recognizing a pipeline company as a public service corporation even though it was not expressly named as such


Input: conferred upon the commissioners court by law. Commissioners Court of Titus County, 940 S.W.2d at 80; Ector County, 843 S.W.2d at 479. Therefore, it is beyond dispute that the district court’s jurisdiction includes appellate jurisdiction and general supervisory control over the county commissioners court, and that jurisdiction can only be invoked under the circumstances just described. The issue squarely before us is how that jurisdiction is invoked. Invoking the Distr ex.App.-E1 Paso 1993, no writ) (noting that a formal action or suit must be filed in order for district court to exercise its superviso ry control over the commissioners court); Atlantic Richfield Co. v. Liberty-Danville Fresh Water Supply District No. 1, 506 S.W.2d 931, 934 (Tex.Civ.App.-Tyler 1974, writ refd n.r.e.) (<HOLDING>); J.R. Phillips Investment Company v. Road Holdings: 0: holding that a plenary suit is required to invoke the district courts supervisory control over the commissioners court 1: recognizing the supervisory power of appellate courts 2: recognizing plenary power of district court to alter interlocutory orders 3: holding that while town counsel had final supervisory authority over the hiring and firing of employees in plaintiffs position it did not have supervisory authority over the mayors constructive discharge of plaintiff 4: holding that the supervisory control of the district court may be exercised through its equitable jurisdiction


Input: and dissenting). However, Tenn. R.App. P. 13(b) recognizes that exceptions can be made in appropriate circumstances. A challenge to the validity of a contract based on public policy grounds is one such exception. One authoritative text has recognized that the issue of whether a contract is contrary to public policy is an issue that trial and appellate courts may raise sua sponte. 15 Grace McLane Giesel, Corbin on Contracts § 79.6, at 27, 32 (rev. ed. 2003) (“Corbin on Contracts ”); see also Restatement (Second) of Contracts, ch. 8, topic 1, at 5 (1981). We have also previously reached the same conclusion. Reaves Lumber Co. v. Cain-Hurley Lumber Co., 152 Tenn. 339, 344, 279 S.W. 257, 258 (1926) (quoting Cary-Lombard Lumber Co. v. Thomas, 92 Tenn. 587, 594, 22 S.W. 743, 745 (1893) (<HOLDING>)). We take no issue with the intermediate Holdings: 0: holding that courts are not bound to decide any particular jurisdictional question before any other 1: holding that when a contract is unambiguous the court will enforce the plain meaning of the contract as the intention of the parties 2: holding that we will not grant relief unless the indictment is so obviously defective as not to charge the offense alleged by any reasonable construction 3: recognizing that courts will not add terms to a contract about which the contract is silent 4: holding that the courts will deny any relief upon any illegal contract  whenever the illegality is made to appear


Input: Such That Plaintiffs Action is Not Barred The amendments which the Kentucky legislature made to the blue sky statute on June 21, 2001, do not alter the conclusion that plaintiffs claims are barred by the statute of limitations found in the blue sky statute. The plaintiff argues that, even if the three year statute of limitations found in Kentucky’s blue sky statute is applicable to the present action, the June 21, 2001, amendments to the blue sky law extend the statute of limitations so that this action was not untimely filed. In the June 21, 2001, amendments, the legislature changed the timing of when an action under the blue sky statute accrues from the date of the contract of sale to a discovery rule. Cf Cali-Ken Petroleum Co. v. Miller, 815 F.Supp. 216, 219 (W.D.Ky.1993) (<HOLDING>). The new discovery rule provides that “[n]o Holdings: 0: holding that the time of accrual under the thenexisting version of kentuckys blue sky statute was the date of sale because the legislature had intentionally omitted a discovery rule 1: holding that discovery accrual rule applies to causes of action under michigan law for fraud 2: holding that a discovery exception to a statute of limitation applies only to the discovery of facts not discovery of the law 3: holding that the cause of action accrued on the date of sale 4: holding that the date of sale for an installment contract was the date of contract formation not the date of the last payment due


Input: (2005). Here, two issues affect which version of the statute is applied. First, we determine whether the district court correctly used the version of the statute in effect on the commencement date of White’s action rather than the version in effect on her injury date. Second, we consider whether N.D.C.C. § 28-01-46 should be applied retroactively. A [¶ 9] The district court applied the version of N.D.C.C. § 28-01-46 in ef- feet on the commencement date of White’s action. The court relied upon Larson, stating: “[In Larson t]here was no reference to the date or time of the alleged negligent act, but rather, the Supreme Court referred to the date the action was commenced. “Here, this action was commenced in February of 2006. The applicable statute in effect in February of 2006 was t ) (<HOLDING>). [¶ 11] Unless amendments to N.D.C.C. § Holdings: 0: holding the correct date to use when determining the controlling statute is date upon which the claim arose 1: holding that the statute does not begin to run until at least a demand has been made upon the government but determining that the facts of that case made it unnecessary to choose between the date of demand and the date of actual payment as the triggering date for the running of the statute of limitations 2: holding the petition date is the appropriate date to value the collateral when the debtors intend to remain in the home 3: holding that the date of discrimination is the date on which a decision not to hire a plaintiff becomes effective 4: holding that the date of the federal indictment not the date of the state arrest was the triggering date for the speedytrial act


Input: conviction had not been included in his criminal history, he would have been in criminal history category II instead of category III. Id. Robinson claimed in his § 2255 petition that he received ineffective assistance of counsel because his attorney did not object to what he alleges was double counting in his sentence calculation that was contrary to U.S.S.G. § 4A1.2(a)(l). The district court ruled that the difference in the sentence Robinson would have received in category II was not significant enough to establish ineffective assistance of counsel. On appeal we determined that the maximum difference of 32 months between category II and category III failed to meet the constitutional standard of prejudice. Both we and the district court were in error. See Glover, 121 S .Ct. at 701 (<HOLDING>). Because both the district court and we Holdings: 0: holding petitioner has the burden of proof under the strickland test 1: holding that there is no baseline or quantifiable increase in a defendants sentence that must be shown to establish prejudice under strickland 2: holding that in defining the reasonable probability language in strickland with more precision substantial possibility describes the prejudice standard in strickland 3: holding that any reduction in sentence constitutes substantial prejudice for purposes of strickland analysis 4: holding that it is error to engraft onto the prejudice branch of the strickland test a requirement that any increase in a sentence must meet a standard of significance


Input: argues that the district court already had adjusted his punishment by sentencing him under U.S.S.G. § 2A2.1 (first degree murder) instead of U.S.S.G. § 2A2.2 (aggravated assault). The Sentencing Reform Act of 1984 provides that a district court may depart from the sentencing range set by the Sentencing Guidelines only when it finds that “there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” 18 U.S.C. § 3558(b). Here, the district court departed upward because criminal history category VI, which requires only 13 criminal history points, did not adequately reflect Defendant’s 25 criminal history points. United States v. Osborne, 948 F.2d 210, 212 (6th Cir.1991) (<HOLDING>). Review of a sentence that departs from the Holdings: 0: holding that when a defendant qualifies as a career felon it is not necessary to ascertain the defendants criminal history category because the sentencing guidelines mandate a criminal history category of vi 1: holding that the district court did not abuse its discretion by imposing an upward variance after finding that the defendants criminal history category of i understated the seriousness of his criminal history 2: holding that 24 criminal history points was so high that even placement in category vi did not adequately reflect the seriousness of the defendants criminal past 3: holding a court may consider a defendants criminal history even if that history is included in the defendants criminal history category 4: holding that request for departure in sentencing based on a criminal history category that overstated defendants record violated plea agreement that prohibited departure requests but did not stipulate to a specific criminal history category