Input: explains: "One who supplies a chattel to others to use for any purpose is under a duty to exercise reasonable care to inform them of its dangerous character ... if, but only if, he has no reason to expect that those for whose use the chattel is supplied will discover its condition and realize the danger involved.” 12 . The Court notes for the sake of clarity that, with respect to allegedly inadequate warnings, maritime law recognizes both strict product liability causes of action (i.e., defective warning or defective design) and 1184 (D.N.J.1984) (also holding that defense may only be raised in context of negligent failure to warn claims); O’Neal, 10 F.3d at 251 (citing Kennedy v. Mobay Corp., 325 Md. 385, 601 A.2d 123 (Md.1992), aff'g 84 Md.App. 397, 579 A.2d 1191 (Md.App.1990)) (<HOLDING>); Johnson, 43 Cal.4th at 71, 74 Cal.Rptr.3d Holdings: 0: holding defense applicable to both types of claims 1: recognizing distinction between two types of waiver 2: holding that plaintiff who filed administrative charge for racial harassment and discrimination could add claim for retaliation because some of the same facts supported both types of claims 3: recognizing that legal expenses incurred can be characterized as both deductible and nondeductible when the litigation is rooted in situations giving rise to both types of expenditures 4: holding rule applicable to witness


Input: were not relevant to the negligence claim set forth in the original complaint; the focus had shifted from whether the floor was improperly maintained so that it became wet and slippery to whether the materials used to build the floor and the way in which it was constructed met applicable safety standards. See also Chambers v. Seghetti, 107 Md.App. at 539, 668 A.2d 1006 (observing that an amended complaint stating claim for negligent entrustment did not relate back to original complaint stating claim for negligent operation of vehicle, because the amended complaint relied upon “distinctly different operative facts from those supporting the claims contained in [the] initial complaint.”); Alexander & Alexander, Inc. v. B. Dixon Evander & Assocs., 88 Md.App. 672, 689-91, 596 A.2d 687 (1991)(<HOLDING>); University Nursing Home, Inc. v. R.B. Brown & Holdings: 0: recognizing that the elements of a claim for breach of contract are 1 existence of a valid contract and 2 breach of the terms of that contract 1: holding a lien is a claim against property  here a surety bond and breach of contract is a claim against a person thus the lien proceeding did not dispose of the breach of contract action 2: holding that trial court erred by dismissing breach of contract claim because appellee made promises to perform specific acts in contract the breach of which would give rise to a breach of contract action 3: holding that breach of contract claim related back to misrepresentation claim because operative facts upon which the breach of contract claim was based were contained in the misrepresentation counts of the original complaint 4: holding that a breach of contract claim against one defendant related back to interference with contract claim against that defendant and breach of contract claim against second defendant because it was based on same set of operative facts


Input: v. INS, 452 F.3d 154, 156-57 (2d Cir.2006), the BIA properly found that Babalola failed to comply with the threshold requirements set forth in In re Lozada, 19 I. & N. Dec. 637, 639 (B.I.A. 1988). Specifically, Babalola failed to include with her motion “a statement as to whether [she] filed a complaint with any disciplinary authority regarding counsel’s conduct and, if a complaint was not filed, an explanation for not doing so.” Twum v. INS, 411 F.3d 54, 59 (2d Cir.2005) (citing In re Lozada, 19 I. & N. Dec. at 639). We have previously noted that “an alien who has failed to comply substantially with the Lozada requirements in her motion to reopen before the BIA forfeits her ineffective assistance of counsel claim.” Jian Yun Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 47 (2d Cir.2005) (<HOLDING>); cf. Esposito v. INS, 987 F.2d 108, 111 (2d Holdings: 0: holding that failing to substantially comply with the matter of lozada requirements in a motion to reopen before the bia forfeits an ineffective assistance claim in this court 1: holding that the petitioner was not entitled to claim ineffective assistance because she did not comply with the lozada requirements and made no effort to explain her lack of compliance 2: holding that failure to comply with the hozada requirements is not fatal where the alleged ineffective assistance is plain on the face of the administrative record 3: holding that the petitioners failure to comply with the lozada requirements results in a forfei ture of his ineffectiveassistanceofcounsel claim 4: recognizing that while slavish adherence to matter of lozada is not required when an alien does not comply with those requirements in any respect the ineffective assistance of counsel claim is forfeited


Input: therefore, must be assessed by looking to the period of time during which these activities occurred, not by focusing on the actual date of Medina’s resignation. An employer need not ignore failing, preleave performance if that performance gives it reason to terminate an employee, or, in this case, to criticize an employee’s performance and reconfigure her territories. See, e.g., Kohls v. Beverly Enterprises Wisconsin, Inc., 259 F.3d 799, 807 (7th Cir.2001) (“Beverly has asserted that Kohls’ deficiencies were the reason for her termination and that she would have been terminated regardless of her [maternity] leave, and Kohls has not presented sufficient evidence for a fact finder to conclude otherwise”); Armstrong v. Systems Unlimited, Inc., 75 Fed.Appx. 550 (8th Cir.2003) (Unpub.Disp.) (<HOLDING>). The question, however, is whether in this Holdings: 0: holding that an employee who did not present evidence that she could have returned to work prior to the expiration of her fmla leave allowance was not entitled to additional leave merely because her employer had not properly provided her with notice that the leave was designated as fmla leave 1: holding that a plaintiff can show that she is qualified by presenting credible evidence that she continued to possess the objective qualifications she held when she was hired 2: holding that discharging an employee because she was on maternity leave would violate that poli cy 3: holding that a plaintiff could not show that she engaged in protected activity because she did not present evidence that she informed her employer that her complaints were based on race or age discrimination 4: holding that an employer was justified in demoting plaintiff after she returned from maternity leave because plaintiff could not rebut the employers evidence that she was having performance problems before she went on leave and that additional performance problems were discovered while she was on leave


Input: App. 816, 825 (9) (665 SE2d 898) (2008). See generally Alden v. Maine, 527 U. S. 706, 713 (I), 715 (I) (B) (119 SC 2240, 144 LE2d 636) (1999) (“[A]s the [federal] Constitution’s structure, and its history, and the authoritative interpretations by this Court make clear, the States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today .... The generation that designed and adopted our federal system considered immunity from private suits central to sovereign dignity. When the Constitution was ratified, it was well established in English law that the Crown c 109, 110 (611 SE2d 762) (2005) (same); see also Baskin v. Ga. Dep’t of Corrs., 272 Ga. App. 355, 358 (2) (612 SE2d 565) (2005) (<HOLDING>). 11 Williams v. Ga. Dep’t of Human Res., 272 Holdings: 0: holding that plaintiffs were entitled to vacate final order of dismissal as void when they did not receive the motion for dismissal or notice of the hearing on the order until after the dismissal was entered 1: holding that the double jeopardy clause did not bar charging the defendant with both receipt and possession of child pornography where the defendant was charged with possessing a set of files that did not form the basis for a separate receipt count 2: holding that dismissal without prejudice was appropriate where a plaintiff failed to name each of the persons alleged to have violated the appropriate standard of care 3: holding that dismissal of a breach of contract claim was proper in light of the plaintiffs failure to recite or attach a copy of the contract 4: holding that dismissal was appropriate when plaintiff did not attach the required receipt from the department of administrative services


Input: regarding Marks’s malingering. Because the State disclosed Dr. Arambula’s opinions, Marks could reasonably have anticipated the need to rebut Dr. Arambula’s testimony later at trial. See Orkin Exterminating Co. v. Williamson, 785 S.W.2d 905, 910-11 (Tex.App.-Austin 1990, writ denied). In general, rebuttal witnesses, whose use reasonably could have been anticipated, are not exempt from the scope of the discovery rules. Moore v. Mem’l Hermann Hosp. Sys., Inc., 140 S.W.3d 870, 875 (Tex.App.-Houston [14th Dist.] 2004, no pet.); Am. Bank of Waco v. Waco Airmotive, Inc., 818 S.W.2d 168, 177 (Tex.App.-Waco 1991, writ denied); Walsh v. Mullane, 725 S.W.2d 263, 264-65 (Tex.App.-Houston [1st Dist.] 1986, writ ref'd n.r.e.); but see Aluminum Co. of Am. v. Bullock, 870 S.W.2d 2, 4 (Tex.1994) (<HOLDING>). Rule 103 of the Rules of Evidence placed the Holdings: 0: holding that the trial court had erred by excluding the expert testimony of a doctor 1: holding expert testimony remedies speculation by the court 2: holding trial court properly permitted party to use undesignated expert to rebut a material and unanticipated change in testimony of the opposing partys expert 3: holding that fire expert should not have been sequestered where opposing expert testified to facts and theories not revealed prior to trial 4: holding trial court acted within its discretion in excluding expert testimony


Input: of the equal protection provisions of the United States Constitution, Title VI of the Civil Rights Act of 1964 (specifically, 42 U.S.C.A. § 2000d) and the injunction and decree in the Sinajini case. The Equal Protection Clause of the Fourteenth Amendment provides that “[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. It was meant to prevent state actors from discriminating against persons based on their race or national origin. See Shaw v. Reno, — U.S. -, -, 113 S.Ct. 2816, 2824, 125 L.Ed.2d 511 (1993); 3 Ronald D. Rotunda & John E. Nowak, supra, § 18.5 at 67. Official action that distinguishes between individuals on racial grounds falls within the core of , 97 S.Ct. 1395, 1399-1400, 51 L.Ed.2d 701 (1977) (<HOLDING>); Fisher v. District Court, 424 U.S. 382, Holdings: 0: holding transfer rule did not violate federal equal protection 1: holding that the cap does not violate equal protection 2: holding that federal criminal statutes subjecting native americans to federal prosecution did not violate equal protection even though they arguably lessened the burden the prosecution would have had under state law 3: holding that doctrine does not violate equal protection 4: holding that a 30year sentence imposed under 18 usc  2241c did not violate a defendantnative americans equal protection rights


Input: c. 225, § 1. If the court does not give the warning in the required form, and it is later shown that the plea and conviction may have one of the enumerated immigration consequences, the court, on motion, “shall vacate the judgment.” Ibid. 4 The statute requires that the defendant also show that he may face immigration consequences. See Commonwealth v. Berthold, 441 Mass. 183, 185 (2004). There is no question in this case that the defendant is at risk of deportation. 5 The defendant cites Sacco, supra, for the proposition that amendments to the power to grant a new trial are jurisdictional. At the time of the Sacco and Vanzetti trial, the court’s authority to hear a motion for new trial in a criminal case was considered jurisdictional. See Rollins, supra at 430, 433-434, and cases cited (<HOLDING>). In Sacco, the Commonwealth argued that the Holdings: 0: holding that the title of the statute did not limit the reach of the statute 1: holding that jurisdiction to hear a motion for new trial was granted by statute and could be exercised solely in accordance with the terms of the statute 2: recognizing the principle that gives precedence to the terms of the more specific statute where a general statute and a specific statute speak to the same concern 3: holding that trial court erred by granting a directed verdict on statute of limitations defense and remanding for a new trial on the statute of limitations only 4: holding that although a statute regarding sentencing for firsttime drug offenders was plain obvious and unambiguous in its terms construing the statute by its plain language would be inconsistent with contrary to and illogical in light of the legislatures intent in enacting the statute


Input: distribution in exchange for their membership interests and, therefore, the distribution could not have been a policyholder dividend. The Court rejects this reasoning. From the record submitted on this motion, the Court cannot discern any statement by either party that the policyholders did not receive their entire equity share. In fact, it appears that UNUM alleges in this litigation that the policyholders received something more than their equity share, but certainly not less. Thus, the Government has failed to demonstrate to this Court that any conversion plan found to be fair and equitable under the Maine insurance code must necessarily not constitute a policyholder dividend trader federal tax law. 12 . See Teledyne Industries, Inc. v. N.L.R.B., 911 F.2d 1214, 1218 (6th Cir.1990) (<HOLDING>). 13 . The Superintendent's affidavit provides, Holdings: 0: holding that federal law applies because judicial estoppel relates to protection of the integrity of the federal judicial process 1: holding that plaintiff could not establish a prima facie case of discrimination because she was unable to present evidence that she was qualified for the position 2: holding the order is only reviewable if actually considered by the district court 3: holding that a zoning estoppel plaintiff must show that he or she has been given assurances of some form by the county that his or her proposed construction met zoning requirements and that he or she had a right lo rely on such assurances 4: holding that in order for judicial estoppel to operate the first court must actually adopt the litigants position that he or she now contradicts


Input: no requirement that Plaintiff seek a determination of the good faith of the settlement under California Code of Civil Procedure section 877.6. Thus, the failure to do so does not support summary judgment in favor of Roto-Rooter. b. Allocation of settlement Roto-Rooter argues that Plaintiff is not entitled to indemnification because it failed to allocate the settlement not only as to the negligence claims, but also as to economic and noneconomic damages. Where the "settling parties have failed to allocate, the trial court must allocate in the manner which is most advantageous to the nonsettling party." Dillingham Construction v. Nadel Partnership, 64 Cal.App.4th 264, 287, 75 Cal.Rptr.2d 207 (1998); see also Knox v. County of Los Angeles, 109 Cal.App.3d 825, 835, 167 Cal.Rptr. 463 (1980) (<HOLDING>). The testimony of an attorney for the party Holdings: 0: holding that the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination 1: holding that reversible error was committed when the court could not determine that the instruction given by the trial justice was sufficient to remove the taint of the statement and such doubt was to be resolved in favor of the defendant 2: holding that the plaintiff has the burden of proving an agreed allocation in a settlement as between the claims in which joint tortfeasor status was alleged so the court could determine the appropriate setoff amount to be applied against a money judgment entered in the plaintiffs favor after trial against a nonsettling defendant and remanding for further proceedings to determine the setoff amount 3: holding that a settlement agreement in which the plaintiff agreed to drop all claims against the defendants in exchange for a specific sum of money was enforceable despite the fact that the agreement did not specify whether the plaintiffs promise would take the legal form of a release or a covenant not to sue 4: holding that joint tortfeasor defendant does not get setoff equal to amount of recovery injured plaintiff receives from carrier of his uninsured motorist coverage


Input: direct discrimination. 2. Indirect Discrimination Under the McDonnell Douglas burden shifting approach, in order to establish a prima facie case for gender discrimination, the plaintiff must demonstrate that: (1) she is a member of a protected class; (2) she was performing her job to her employer’s legitimate expectations; (3) that in spite of her meeting the legitimate expectations of her employer, she suffered an adverse employment action; and (4) that she was treated less favorably than similarly situated male employees. See, e.g., Bragg v. Navistar Int’l Transp. Corp., 164 F.3d 373, 376 (7th Cir.1998); Randle, 876 F.2d at 570-71. Markel meets the first prong of the test because she is a member of a protected class. However, the district court found that Markel did not mee r.2000) (<HOLDING>); Conley, 215 F.3d at 712 (requiring village Holdings: 0: holding that denial of a bonus was not an adverse employment action 1: holding that termination is an adverse employment action 2: holding that a lateral transfer without a loss in benefits does not constitute an adverse employment action 3: holding that the loss of a telephone and cubicle were too trivial to amount to an adverse employment action 4: holding that an unrealized risk of future adverse action even if formalized is too ephemeral to constitute an adverse employment action


Input: and INA § 240A(d)(2). IIR-IRA § 309(c)(5)(A) clearly applies both provisions of INA § 240A(d) to OSCs served before April 1, 1997, and, while Ram did not address INA § 240A(d)(2) specifically, its analysis applies squarely to petitioners’ argument. Therefore, we find that the IJ did not err in applying IIRI-RA’s ninety-day statutory bar under the IIRIRA transitional rules. Petitioners next contend that the IJ erred in applying IIRIRA’s transitional rules at the June 9, 1999 hearing, as opposed to the law that existed before the April 1, 1997 effective date of IIRIRA. Petitioners do not dispute the general proposition that the transitional rules apply in cases initiated before but decided after IIRIRA’s effective date. See, e.g., Astrero v. INS, 104 F.3d 264, 266 (9th Cir.1996) (<HOLDING>). Rather, they argue that they are entitled not Holdings: 0: holding retroactive application of the act to prosecution that was pending before the effective date of the act was precluded because the act is prospective 1: holding that because the removal proceeding began after april 1 1997 iirira governed 2: holding that iiriras effective date is april 1 1997 3: holding that because iirira  309 would not become effective before april 1 1997 retroactive application of ina 240a could not take effect before that date 4: holding that prisoners whose convictions became final on or before april 24 1996 must file their  2255 motions before april 24 1997


Input: this case is a “negative easement” because it prevents the owner of land subject to the easement “from doing something, such as building an obstruction.” Black’s Law Dictionary 550 (8th ed. 2004). As happened in this case, a land owner may impose a restrictive covenant as a condition of the sale of all or a portion of his property. See, e.g., McKay v. Townson, 528 So.2d 977 (Fla. 2d DCA 1988) (upholding a restrictive covenant on lake property, reserving the use of the lake to the predecessor in interest). Here, although the parties’ properties were originally owned by a common owner, Mr. Spivey, their subsequent sales were not subject to a general scheme or plan of development subjecting them to mutual restrictions. Cf. Hagan v. Sabal Palms, Inc., 186 So.2d 302, 307 (Fla. 2d DCA 1966) (<HOLDING>). “A ‘general building scheme’ may be defined Holdings: 0: holding that wjhere the owner of a tract of land subdivides it and sells distinct parcels thereof to separate grantees imposing restrictions on its use pursuant to a general plan of development or improvement such restrictions may be enforced by any grantee against any other grantee either on the theory that there is a mutuality of covenant and consideration or on the ground that mutual negative equitable easements are created 1: holding that property owner could not argue it had no notice of deed restrictions simply because guidelines were unclear when owner acknowledged having copy of such restrictions 2: recognizing that the acceptance by the grantee of a deed poll signed and sealed by the grantor containing covenants to be performed by the grantee binds the latter to the performance of these covenants as effectually as if he had executed the instrument quotations and citation omitted 3: holding that contrary to restrictions regarding use a unit owner may not be deprived of his interest in a substantial portion of the general common elements without his consent 4: holding that property owners who are aware of deed restrictions and accompanying guidelines are considered to be on notice of such restrictions despite believing that guidelines are unclear and inapplicable


Input: 380 B.R. 753, 758 n. 5 (Bankr. S.D.Ohio 2008); Drown v. ESB (In re Farley), 387 B.R. 751 (Bankr.S.D.Ohio 2008) (granting summary judgment in favor of defendants on trustee's attempt to avoid their security interests using the strong-arm power). 4 . See Doc. 40 in Adv. Pro. No. 07-2915. 5 . On May 13, 2009, Aurora, Charter One, Citimortgage, Colony, MERS, Option One and Wells Fargo filed a combined supplemental brief. On May 16, 2009, the Trustees filed their initial supplemental brief. See Doc. 36 in Adv. Pro. No. 08-2085. On May 27, 2009, AWL, Countrywide, MERS and the SBA filed a supplemental brief. See Doc. 37 in Adv. Pro. No. 08-2085. 6 . See Rieser v. Dinsmore & Shohl, LLP (In re Troutman Enters., Inc.), 356 B.R. 786 (table), 2007 WL 205640 at *10 (6th Cir. BAP Jan. 26, 2007) (<HOLDING>); Consol. Partners Inv. Co. v. Lake, 152 B.R. Holdings: 0: holding that the fourteenth amendment only applies to state action 1: holding the confrontation clause applies only to testimonial statements 2: holding that fourteenth amendment only applies to state action 3: holding that  1146a applies only to transfers under the plan occurring after the date of confirmation 4: holding that   544 applies to prepetition transfers only


Input: Carter, 936 P.2d at 345. This procedural bar will be adequate if (1) trial and appellate counsel differ and (2) the claim can be resolved solely on consideration of the record. English v. Cody, 146 F.3d 1257, 1264 (10th Cir.1998). In this case, it appears trial and appellate counsel did not differ. Although trial counsel David Autry’s name is not on the direct appeal brief, he indicat ed in an affidavit filed with the habeas petition that he was in fact assigned to write part of that brief. Fed. Dist. Ct. R. vol. 3, doc. lo, app. H at 4. Trial counsel’s assistance with the brief, along with appellate counsel’s failure to raise any ineffective assistance of trial counsel issues on direct appeal, suggests named appellate counsel was in an awkward position. Cf. McCracken, 268 F.3d at 977 (<HOLDING>); Smallwood v. Gibson, 191 F.3d 1257, 1270 Holdings: 0: recognizing that the defendant whose trial counsel represented him on motion for new trial had no opportunity to raise an ineffective assistance of counsel claim prior to appeal and remanding the case for a hearing solely on this issue 1: holding that petitioner did not procedurally default his ineffective assistance of counsel claim by failing to raise it on direct appeal 2: recognizing the right to counsel on appeal 3: holding that res judicata does not bar a defendant from raising a claim of ineffective assistance of trial counsel for the first time in a postcollateral proceeding if the defendant was represented by the same counsel at trial and on direct appeal or if an actual conflict of interest enjoined appellate counsel from raising a claim of ineffective assistance of trial counsel on direct appeal 4: recognizing first english requirement was not met where trial counsel represented petitioner on direct appeal


Input: bad character or propensity of the accused. See Wright v. State, 19 So.3d 277, 291-92 (Fla.2009) (“[C]ollateral-crime evidence, such as bad acts not included in the charged offenses, is admissible when relevant to prove a material fact in issue, but is inadmissible when the evidence is relevant solely to prove bad character or propensity.”); see also Czubak, 570 So.2d at 928; Castro v. State, 547 So.2d 111, 114-15 (Fla.1989). In fact, this Court has consistently held that the erroneous admission of irrelevant collateral crimes evidence “is presumed harmful error because of the danger that a jury will take the bad character or propensity to crime thus demonstrated as evidence of guilt.” Robertson, 829 So.2d at 913-14 (quoting Castro, 547 So.2d at 115); see also Czubak, 570 So.2d at 928 (<HOLDING>). In addition, even assuming evidence that Holdings: 0: holding that where court informed jurors that the defendant had escaped from custody the trial judge acted within his judicial capacity and did not testify  1: holding that a district court may not rely on a charging document without first establishing that the crime charged was the same crime for which the defendant was convicted 2: holding that counsel did not admit the defendant was guilty of a crime when counsel noted that if the evidence established the commission of any crime that crime was voluntary manslaughter not murder 3: holding that collateral crime evidence that defendant was an escaped convict was presumptively harmful 4: holding it is fundamental error to convict a defendant of crime not charged and which is not a lesser included offense of the charged crime


Input: the statute would not necessarily constitute an unlawful prior restraint, so long as it is narrowly tailored, based on a continuing course of repetitive speech, and granted only after a final adjudication on the merits that the speech is unprotected); Lothschuetz v. Carpenter, 898 F.2d 1200 (6th Cir.1990) (upholding injunction enjoining statements that had been found to be false and libelous); Hill, 325 S.W.3d at 309 (adopting modern rule that defamatory speech may be enjoined after trial court’s final determination by a preponderance of the evidence that the speech at issue is false, and on the condition that the injunction is narrowly tailored to limit the prohibited speech to that which has been judicially determined to be false); Balboa Island, 57 Cal.Rptr.3d 320, 156 P.3d at 349 (<HOLDING>); Advanced Training Sys., Inc. v. Caswell Holdings: 0: holding plaintiffs must plead alleged defamatory statements with precision 1: holding that the court may issue an injunction prohibiting a defendant from repeating statements determined at trial to be defamatory 2: holding that the constitutional level of punitive damages is not a finding of fact that must be determined by the jury it may be determined de novo by the court 3: holding that defendant could not be liable for distributing defamatory statements unless it knew or had reason to know of statements 4: holding that statements in personnel files that would otherwise be defamatory are privileged


Input: as exempt on such list is exempt.” 11. U.S.C. § 522(1). Pursuant to Fed. R. Bankr. P. 4003(b)(1), a party in interest who disputes the debtor’s exemption claims must generally file an objection “within 30 days after t D.Mass.2013) (explaining that the court did “not read either [!Taylor ] or [Schwab ] to prohibit its review of a claimed exemption ... after the expiration of the objection deadline” but in the context of evaluating a motion to avoid a judicial lien after a Massachusetts statute providing an exemption claimed by the debtors had been amended to no longer expressly extend to the property at issue). When Ms. Gervais filed schedule C accompanying her chapter 7 petition, she put the trustee and all interested parties on notice that she was (1) claiming an exemption i 989) (<HOLDING>). But it is too late for the trustee to assert Holdings: 0: holding the real estate sale proceeds 1: holding that a debtors  522d1 exemption was invalid when the debtor exempted proceeds from the prepetition sale of the debtors marital home which were paid to a judgment creditor with an attachment on the debtors interest in the home 2: holding that a debtors entitlement to an exemption under  522d1 is determined as of the filing date of  a bankruptcy petition 3: holding that provision in prepetition agreement which precluded sale of assets by debtor was not a bar to a sale under section 363 because prepetition agreements purporting to in terfere with a debtors rights under the bankruptcy code are not enforceable 4: holding that debtors could not exempt under  522d1 proceeds from the prepetition sale of their home


Input: at liberty to do so. See People v. Novotny, 2014 CO 18, ¶ 26, 320 P.3d 1194 (The supreme court "alone can overrule [its] prior precedents concerning matters of state law."); see also Rodrigues de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989) ("If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions."). Consequently, we cannot conclude that the district court erred in using the Robertson "reasonable exercise of police power" test to assess the validity of H.B. 13-1224, Cf. People v. Sandoval, 2016 COA 14, 1 25, - P.3d - (<HOLDING>). C. The Application of the Standard «28 We Holdings: 0: holding that an exercise by the state of its police power is presumed to be valid when it is challenged under the due process clause of the fourteenth amendment 1: holding that federal constitution does not permit state to use prearrest silence to imply guilt and characterizing the states argument to the contrary as nothing short of incredible 2: holding that the exercise of judicial power under article iii of the united states constitution requires an actual case or controversy 3: holding that article ii section 18 of the state constitution does not protect an individuals right to possess a short shotgun for selfdefense because the states prohibition of short shotguns is a reasonable exercise of its police power 4: holding that because the due process clause in the federal constitution is applicable to the states under the fourteenth amendment the right is also guaranteed to defendants pursuant to the identical provision in article i section 5 of the hawaii constitution


Input: some reservation about whether the evidence here was “unequivocal,” see McCartney v. Fletcher, 11 App. D.C. 1, 19 (1897) (noting that the “mere making of the deeds, or directing them to be made to the grantee, would certainly not be sufficient” part performance to take a parol agreement out of the Statute of Frauds), we need not decide that question because we agree with the trial court’s determination that the Statute of Frauds should never bar the imposition of a constructive trust. See Tauber v. District of Columbia, 511 A.2d 23, 27 n. 11 (D.C.1986). Express trusts are created when the settlor manifests an intent to place trust property in the hands of the trustee for the benefit of another, and the settlor must use written words to express her intention d 1157, 1160 n. 2 (1981) (<HOLDING>); cf. Edwards v. Woods, 385 A.2d 780, 784 n. 5 Holdings: 0: holding the statute of frauds  does not apply to constructive trusts which are implied by operation of law 1: holding that officers not required to give implied consent warnings where statute did not apply 2: holding that the plaintiffs claims under  22a452 were barred by the statute of limitations but declining to decide which statute to apply 3: recognizing theory of constructive possession 4: holding defendants perceived demotion from change of duties does not constitute constructive discharge as a matter of law


Input: second-hand clothing while buying herself new clothes, Vettel spends little quality time with R.J., and Vettel infrequently washes R.J.’s clothing. [¶ 26] There is no dispute Vettel remarried and relocated with R.J. from Jamestown to Bismarck and these facts may constitute a material change in circumstances. See Dietz, 2007 ND 84, ¶ 13, 733 N.W.2d 225. However, to establish a prima facie case, Jensen had to provide competent evidentiary facts showing these changes compel a change in residential responsibility because they adversely affect the child. See Blotske, 487 N.W.2d at 609; Alvarez, 524 N.W.2d at 589. Most of Jensen’s significant allegations are conclusory or lack firsthand knowledge and may not be considered as competent evidence. See Thompson, 2012 ND 15, ¶ 6, 809 N.W.2d 331 (<HOLDING>). Although Jensen has provided multiple Holdings: 0: holding that the verdict must be sustained if there is any competent evidence to support the verdict 1: holding that affidavits must set forth facts admissible in evidence and explain its conclusions 2: holding that district court properly refused to rely on affidavits to the extent that they contained only legal conclusions 3: holding affidavits must include competent evidence and affidavits are not competent if they fail to show a basis for actual person knowledge or if they state conclusions without the support of evidentiary facts 4: holding that unsupported affidavits setting forth ultimate or conclusory facts and conclusions of law are insufficient to either support or defeat a motion for summary judgment


Input: its proceedings, vindicate its authority, and effectuate its decrees.”). Venue is proper pursuant to 28 U.S.C. §§ 1408 and 1409. B. McKool Smith is entitled to recover a fraction of the fees requested in the Fee Statements as sanctions against the Plaintiffs. This Court has the inherent authority to impose sanctions in order to regulate the practice of attorneys and litigants appearing before it. Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991). The Court should limit the amount of the sanction to what is sufficient to determine if they are reasonable and necessary. See, e.g., Cadle Co. v. Pratt (In re Pratt), No. 3:06-CV-257-L, 2007 WL 824117, at *8 (N.D.Tex. March 16, 2007), aff'd in part and dismissed in part, 524 F.3d 580, 583-84 (5th Cir.2008) (<HOLDING>). Consistent with this authority, the Court Holdings: 0: holding that the trial court did not abuse its discretion in awarding prejudgment interest on attorneys fees paid prior to the entry of judgment 1: holding that district court abused its discretion in refusing to include in its attorneys fees award the depositionrelated travel expenses incurred by prevailing plaintiffs counsel in an adea case 2: holding that the bankruptcy court abused its discretion in awarding opposing counsels attorneys fees and expenses as sanctions without affording the sanctioned party the right to examine question or provide argument against the claimed fees and expenses 3: holding that at a minimumthe court should weigh the cost of the claimed fees and expenses against the benefits conferred upon the estate 4: holding trial court erred in awarding attorneys fees to physicians in absence of any evidence of attorneys fees


Input: v. Kitsap County, 59 Wn. App. 177, 180, 797 P.2d 516 (1990). 14 See Marley v. Dep't of Labor & Indus., 125 Wn.2d 533, 541, 886 P.2d 189 (1994). 15 CR 60(b). We note that “irregularity in obtaining the order” is one of several bases for a motion to vacate a voidable order, whereas “procedural irregularity” in the due process discussion describes all potentially voidable orders. 16 Moody, 137 Wn.2d at 988 (“There are a number of reasons why married couples decide to petition for legal separation rather than dissolution. These could include religious concerns, emotional unpreparedness for dissolution, and financial considerations such as continuation of employment or social security benefits.”). 17 RCW 26.09.175(2); see In re Marriage of McLean, 132 Wn.2d 301, 306, 937 P.2d 602 (1997) (<HOLDING>). 18 50 Wn. App. 633, 637, 749 P.2d 754 (1988). Holdings: 0: holding notice of balance due satisfies notice and demand requirements 1: holding such service satisfies due process 2: holding that a predeprivation opportunity to be heard satisfies the due process clause 3: 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 4: holding that a preponderanceoftheevidence standard with respect to sentencing matters satisfies due process requirements


Input: specific, cogent reasons for questioning Hasan’s credibility, including discrepancies between Hasan’s asylum application and testimony relating to the source and extent of Hasan’s persecution and fear of future persecution. Because these discrepancies go to the heart of Hasan’s asylum claim, the IJ’s adverse credibility determination is supported by substantial evidence. See Malhi v. INS, 336 F.3d 989, 992-93 (9th Cir.2003). By failing to qualify for asylum, Hasan necessarily fails to satisfy the more stringent standard for withholding of removal. Id. at 993. Because Hasan failed to exhaust his administrative remedies as to any claim under the Convention Against Torture, we dismiss the petition with regard to that claim. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004) (<HOLDING>). Pursuant to Desta v. Ashcroft, 365 F.3d 741 Holdings: 0: holding that this court lacks jurisdiction to review claims that have not been raised before the bia 1: holding that the court lacks jurisdiction to review legal arguments not raised before the bia 2: holding that  1252 generally bars us for lack of sub jectmatter jurisdiction from reaching the merits of a legal claim not presented in administrative proceedings below 3: holding that this court lacks jurisdiction to review decisions of the bia refusing to reopen immigration proceedings sua sponte 4: holding that this court lacks jurisdiction to review a legal claim not presented in administrative proceedings below


Input: Id. Mere inequality in bargaining power is an insufficient basis to invalidate an arbitration agreement: Gilmer v. Inter state!Johnson Lane Corp., 500 U.S. 20, 33, 111 S.Ct. 1647, 1655, 114 L.Ed.2d 26 (1991). It is undisputed Ottman is an experienced broker who has worked in the securities industry for years and has executed several U-4 registration agreements. In the course of the arbitration, Ottman was required to pay a non-refimdable filing fee of $500, a hearing fee of $600, and a forum fee of $1,800. We conclude the U-4 registration agreement at issue does not constitute a “contract of adhesion” because Ottman is a sophisticated individual dealing in a sophisticated industry, and the arbitration process placed no disproportionate burden on him. See Brown, 664 F.Supp. at 974 (<HOLDING>); Battle v. Prudential Ins. Co. of Am., 973 Holdings: 0: holding securities industry arbitration clause not a contract of adhesion where record shows employee sophisticated individual dealing in sophisticated industry employee not coerced to sign u4 registration agreement and no disproportionate burden placed on employee pursuant to clause 1: holding county employee with unenforceable contract was atwill employee 2: holding that employee may claim contract created based on employer promise of severance pay to employee 3: holding unconscionable under california law employment contract compelling arbitration of claims employee most likely to bring against employer but not claims employer most likely to bring against employee and requiring first 125 of arbitration fees to be paid by employee 4: holding that absent a law or collective bargaining agreement a municipal employee is an employee atwill


Input: than the offense level calculation under § 2D1.1. See Moore, 541 F.3d at 1327. Lewis is therefore precluded from receiving a reduction in his sentence, and we affirm the district court’s denial of his § 3582 motion on this issue. See U.S.S.G. § lB1.10(a)(2)(B). Moreover, to the extent that Lewis raises an Equal Protection claim regarding the application of Amendment 706, jurisdiction to resentence a defendant is limited to certain motions by the Bureau of Prisons, a Rule 35 motion by the government, or a Guidelines amendment that lowers the sentencing range of the defendant. 18 U.S.C. § 3582(c). Because an alleged Equal Protection violation is none of those, § 3582 is not an appropriate vehicle for raising such a challenge. See United States v. Bravo, 203 F.3d 778, 782 (11th Cir.2000) (<HOLDING>). Accordingly, we affirm the district court. Holdings: 0: holding that the court did not have jurisdiction to consider an argument not presented to the board in a motion for reconsideration 1: holding that where it was clear that the court of appeals had limited the issues on resentencing to the one issue raised in the defendants first appeal the district court did not err in declining to consider other issues raised by the defendant on remand 2: holding that the district court properly declined to consider an eighth amendment argument because section 3582c does not grant jurisdiction to consider extraneous resentencing issues 3: holding this court does not consider issues not supported by propositions of law authority or argument 4: holding that resentencing should consider all sentencing arguments and remanding for court to consider defendants argument for downward departure based on postconviction rehabilitation


Input: rebuttal witnesses after having noted, presumably, the news story in the email chain, the subjects of McDonald’s and Miller’s testimony discussed in the news story appear unrelated to the subjects to which Penny and Richardson testified on rebuttal. Thus, nothing Penny and Richardson may have learned from the news story about the prior testimony of McDonald or Miller resulted in the “artificial harmo ny of testimony that prevents the trier of fact from truly weighing all the testimony[, or] ... the outright manufacture of testimony,” which Md. Rule 5-615 is intended to prevent. Redditt v. State, 337 Md. 621, 629, 655 A.2d 390, 394 (1995) (quoting Hurley v. State, 6 Md.App. 348, 351-52, 251 A.2d 241, 244 (1969)); see also Erman v. State, 49 Md.App. 605, 624, 434 A.2d 1030, 1042 (1981) (<HOLDING>). The hearing judge’s response that nothing Holdings: 0: holding it was not an abuse of discretion to exclude testimony 1: holding that the district court did not abuse its discretion in denying motion for new trial based on newly discovered evidence where the evidence would serve only to impeach  testimony 2: holding that the district court did not abuse its discretion in limiting testimony to only one witness where additional witnesses would have provided the same testimony 3: holding that trial court did not abuse its discretion in denying defendants motion to dismiss on de minimis grounds where his expert witness testimony was inadmissible 4: holding that a trial court did not abuse its discretion by denying a motion to exclude testimony of a witness for an alleged sequestration violation where no impermissible harmonization of testimony could be inferred from the witnesss reading of the newspaper in the absence of any evidence that this testimony was based on what he read


Input: that the indictment and the record provide Patterson with sufficient protection from the risk that he will be placed in jeopardy a second time for the same conduct for which he was convicted, given the specificity with which the government identified at trial the members and goals of the drug conspiracies, the conspiracies’ geographic scopes, the drugs distributed in the conspiracies, and the conspiracies’ termination dates. See also United States v. Young, 862 F.2d 815, 819 (10th Cir.1988) (“[Kjeeping in mind that reference may be had to the entire record in a subsequent proceeding, the indictment is sufficient to protect the defendant against double jeopardy.” (citing Russell, 369 U.S. at 763, 82 S.Ct. 1038)); United States v. Pease, 240 F.3d 938, 942-43 (11th Cir.2001) (per curium) (<HOLDING>). This claim therefore fails. G. Evidence Used Holdings: 0: holding that an indictment charging a cocaine distribution conspiracy with a start date unknown to the grand jury was sufficiently specific to allow the defendant to plead double jeopardy if charged again for the same conduct 1: holding that an indictment that referred to wholesale quantities of cocaine and cocaine base was sufficiently broad to include the specific quantities of drugs actually found by the jury 2: recognizing that an indictment must contain the elements of the offense charged fairly inform a defendant of the charge and enable the defendant to plead double jeopardy as a defense in a future prosecution for the same offense 3: holding that a plea to an indictment charging a 28member conspiracy involving possession with intent to distribute or distribution of 30 kilograms of cocaine did not relieve the government of proving at sentencing the amount attributable to the defendant 4: holding that the double jeopardy clause did not bar charging the defendant with both receipt and possession of child pornography where the defendant was charged with possessing a set of files that did not form the basis for a separate receipt count


Input: court’s disqualification of one of defendant’s attorneys where “a potential conflict of interest existed *** which may have precluded [the attorney] from properly cross-examining certain witnesses the State indicated it may call at trial”); People v. Thomas, 131 Ill. 2d 104, 111, 545 N.E.2d 654, 657 (1989) (stating that defendant need not show prejudice under the per se rule where his attorney had “an actual or possible conflict of professional interests”); People v. Franklin, 75 Ill. 2d 173, 176, 387 N.E.2d 685, 686 (1979) (noting that the per se rule provides that “where defense counsel is involved in an actual or potential conflict of interest, it is unnecessary for the defendant to establish actual prejudice”); People v. Kester, 66 Ill. 2d 162, 167-68, 361 N.E.2d 569, 572 (1977) (<HOLDING>). Here, at the time the issue was brought Holdings: 0: holding that there was a valid waiver of defendants right to conflictfree representation despite the courts failure to inform the defendant of the existence of a potential conflict of interest since the defendant was well aware of the factual basis which created the conflict 1: holding that a potential conflict was present necessitating reversal of defendants conviction 2: holding that even a potential conflict can justify disqualification 3: recognizing conflict 4: recognizing the conflict


Input: acts for the substantive RICO violation alleged in count one, or overt acts to support the conspiracy charged in count two. The jury specifically found, however, that Sanchez participated in two other conspiracies — the conspiracy to murder Turs-cak, and a conspiracy to distribute narcotics' — which independently constituted both predicate acts for the substantive count and overt acts for the conspiracy count. Therefore, even if the district court had struck Torvisco’s testimony about the uncharged conspiracies, it is certain that the jury would still have convicted Sanchez on the relevant counts. Moreover, to the extent that Torvisco’s testimony may have had an impact on the jury’s consideration of the other counts with which Sanchez was ch . 21 (9th Cir.1988) (amended opinion) (<HOLDING>). XII. Sentencing Challenges Appellants Holdings: 0: holding that errors not rising to level of plain error are to be considered in assessing cumulative error 1: holding error was structural because of the difficulty of assessing the effect of the error 2: holding that cumulative  effect of multiple errors worked to deprive defendant of fair trial although  some errors standing alone would be subject to plain error review and others might be harmless 3: holding that it was reversible error for the trial court to consider cumulative error in assessing claims of ineffective assistance of counsel 4: holding that any error was harmless and thus not plain error


Input: 352 N.E.2d 203, 205-06 (1976). Reed notes that the federal Due Process Clause also requires a defendant be convicted “upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); see Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Accordingly, he contends that the SJC’s decision to allow the conviction to stand violated the clearly established federal law as to due process. See 28 U.S.C. § 2254(d)(1). The Commonwealth replies that Reed did not present sufficient evidence to justify a jury charge of self-defense, and that therefore the trial court was correct. See Commonwealth v. Carrion, 407 Mass. 263, 269, 552 N.E.2d 558, 562 (1990) (<HOLDING>). The Commonwealth insists that the Holdings: 0: holding that the decision to allow attorney fees rests with the trial judge and that decision may only be reversed for an abuse of discretion 1: holding that defendant may be entitled to selfdefense instruction even though he did not testify 2: holding that defendant properly raised selfdefense but passing on the applicable burden of proof for establishing selfdefense in a voluntary manslaughter prosecution in the virgin islands 3: holding the defendant sufficiently raised a selfdefense justification in a murder prosecution while thoroughly evaluating selfdefense burden of proof jurisprudence but declining to address applicable burden of proof for raising selfdefense in the virgin islands 4: holding that a judge may exclude selfdefense if the facts support such a decision


Input: government also had to prove that Mousavi had a specific understanding of the ITR’s licensing requirements. 2 Using the correct definition of “willfully,” we now must determine whether, taking the evidence in the light most favorable to the government, any rational juror could conclude that Mousavi knew that his conduct was unlawful. A rational juror could conclude that the evidence showed that Mousavi knew that his agreement with Al Mal, and his subsequent provision of services under that agreement, was unlawful. The evidence showed that Mousavi concealed his income from Al Mai from the government on his tax returns, and the Supreme Court has recognized such evidence of concealment as sufficient to indicate knowledge of unlawfulness. See Bryan, 524 U.S. at 189 & n. 8, 118 S.Ct. 1939 (<HOLDING>). Furthermore, evidence viewed in the light Holdings: 0: holding that the same types of evidence used to prove a title vii claim also may be used to prove a  1983 claim 1: holding that undisclosed evidence of witnesss prior perjury was material despite availability of other types of impeachment material 2: holding that the plaintiff must prove that management level employees had actual or constructive knowledge about the existence of a sexually  hostile environment and failed to take prompt and adequate remedial action 3: holding that the knowledge requisite to knowing violation of a statute is factual knowledge as distinguished from knowledge of the law 4: holding evidence of types of concealment unquestionably adequate to prove bryans knowledge of unlawfulness


Input: the district court properly applied the McConnell factors. The district court aptly determined that the proposed testimony lacked the requisite “substance” to generate prejudice. R., Vol. II, Doc. 322, at 2 (Order Den. Pursley’s and Wardell’s Renewed Mot. to Sever, dated Dec. 5, 2005). The testimony consisted, in its entirety, of two statements. We address the exculpatory “substance” vel non of each statement. The first statement simply memorialized a legal conclusion disavowing culpability — -that neither coconspirator “conspire[d]” with Mr. Wardell or Mr. Pursley. R., Vol. II, Doc. 316, at 5, 6. Under our precedent, this conclusory assertion of innocence lacks the requisite exculpatory value to require severance. See United States v. Rogers, 925 F.2d 1285, 1287-88 (10th Cir.1991) (<HOLDING>); McConnell, 749 F.2d at 1445-46 (noting that Holdings: 0: holding that when the testimony relating each of the statements by codefendants was admissible against at least one of the codefendants the statements were not rendered inadmissible because each statement would be hearsay as to the other two defendants 1: holding that a reasonable jury could have concluded based on repeated references to the substance as cocaine and testimony from witnesses who had used the substances which they believed to be cocaine that substance was cocaine 2: holding that a codefendants prior statements made at his guilty plea hearing were not admissible to corroborate his trial testimony because the witnesss guilty plea hearing did not predate any improper motive he may have had to testify against the defendant 3: holding that codefendants purported testimony that defendant did not sell cocaine or handle weapons at codefendants apartment lacked substance because it amounted to little more than his assertion that defendant had no involvement in the charged crimes 4: holding that testimony regarding a little pistol defendant carried was inadmissible where nothing in the record linked the little pistol to the gun used in the crimes charged


Input: Corp., 794 S.W.2d at 4. Misidentification arises when two separate legal entities actually exist and a plaintiff mistakenly sues the entity with a name similar to that of the correct entity. Chilkewitz, 22 S.W.3d at 828; Enserch Corp., 794 S.W.2d at 5. In such a case, the plaintiff has sued the wrong party and limitations is not tolled. Enserch Corp., 794 S.W.2d at 5. It would be difficult to justify a set of rules that extended limitations when a plaintiff intentionally named a fictitious defendant, but barred an action when a plaintiff misidentified the defendant. See Grantham, 683 So.2d at 542. In either case, the true defendant was not notified of the action before limitations expired. See id.; cf. James v. Gru.ma Corp., 129 S.W.3d 755, 761 (Tex.App.-Fort Worth 2004, pet. denied) (<HOLDING>); see also Pierson, 959 S.W.2d at 347 (stating Holdings: 0: holding that the government had not produced evidence that the defendant intended to influence an official proceeding because the evidence showed only that he intended to influence the state civil proceedings that he had brought against his insurance agency 1: recognizing primary reason that limitations is tolled in cases of misnomer is that the party intended to be sued has been served and put on notice that he is the intended defendant 2: holding that it is not enough that the defendant has acted with an intent that is tortious malicious or even criminal or that he has intended to inflict emotional distress the conduct itself must be extreme and outrageous 3: recognizing that when a state employee is sued in his official capacity the state is the real party in interest and as a result the eleventh amendment is implicated 4: holding that to establish estoppel defense to copyright infringement defendant must prove inter alia that plaintiff intended that its conduct would be acted on or so acted that defendant has a right to believe that it was so intended


Input: the burden to the creditor to prove its claim by a preponderance of the evidence). This Court will now consider whether the Trust met its burden with regard to participation liability and alter ego liability. B. Participation Liability Participation liability is a separate and distinct basis of liability from alter ego liability. See Wicks v. Milzoco Builders, Inc., 503 Pa. 614, 621, 470 A.2d 86 (1983) (explaining difference between alter-ego liability and participation liability). To establish participation liability, the Trust must establish (1) the existence of tortious conduct and (2) knowing participation in or personal direction of the tortious conduct by Richard. See USTAAD Systems, Inc. v. iCAP Intern. Corp., Civ. No. 09-1149, 2010 WL 2838593, at *5 (M.D.Pa. Jul. 16, 2010) (<HOLDING>); Alpart v. General Land Partners, Inc., 574 Holdings: 0: recognizing that to maintain unjust enrichment claim against a corporate officer the claimant must show the officer actually participated in the misconduct 1: recognizing distinction between corporate officer acting on behalf of himself and corporate officer acting on behalf of his corporation 2: recognizing affirmative duty of a police officer to prevent the violation of constitutional rights by another officer 3: recognizing the need for a nexus or causal connection between the claim against the officer and onces official corporate capacity 4: holding that grand jury testimony of officer and inhouse counsel for corporate defendant was properly admitted as admission against the corporate defendant


Input: if lacking power to control.” Id. at 140, 65 S.Ct. 161. 33 . Dhuka, 716 F.3d at 156. 34 . 24 I. & N. Dec. 324 (BIA 2007). 35 . See 8 C.F.R. § 1003.1(g) ("By majority vote of the permanent Board members, selected decisions of the Board rendered by a three-member panel or by the Board en banc may be designated to serve as precedents in all proceedings involving the same issue or issues.”); BIA Practice Manual ch. 1.4(d)(i) ("Published decisions are binding on the parties to the decision. Published decisions also constitute precedent that binds the Board, the Immigration Courts, and DHS.”). 36 . 8U.S.C. § 1159. 37 . 23 I. & N. Dec. 836 (BIA 2005). 38 . Id. at 840, 842. Summarizing the refugee adjustment process set forth in In re Jean, on which Nguyen relies, the BIA in I Cir.2006) (<HOLDING>), overruled on other grounds by Arobelidze v. Holdings: 0: holding that an alien who illegally reenters this country is not eligible for adjustment of status because the reinstatement provision controls 1: holding that a motion to reopen to apply for an adjustment of status based on an unadjudicated visa petition filed by a united states citizen or lawful permanent resident spouse must be denied 2: holding that refugees who have already acquired lpr status are ineligible for a  209c waiver in light of the language in that adjustment of status can be granted to an alien who has not acquired permanent resident status 3: holding that an alien who adjusted status from refugee to lawful permanent resident no longer qualified as a refugee and was thus no longer eligible to apply for a waiver of inadmissibility in connection with an adjustment of status under  209 4: holding that adjustment of status was permitted even if deportable alien had entered the country as a lawful permanent resident


Input: police promptly located that gun. For purposes of determining whether the officers had probable cause, the pertinent issue is what Mr. Torres said to the officers at the t up identification should have been suppressed becau 2006) (same where defendant was handcuffed and surrounded by “at least ten police officers and numerous police vehicles”) (internal quotation marks omitted). Relying on trial testimony, Mr. Wade argues that the show-up in this case was particularly suggestive because Officer Garcia knew the eyewitness, who worked as a maintenance man in the area where Officer Garcia used to live. We hold, however, that Officer Garcia’s passing familiarity with the eyewitness did not render the identification procedure unduly suggestive. Cf., e.g., Singletary, 383 A.2d at 1068-69 (<HOLDING>) (internal quotation marks omitted). IV. Mr. Holdings: 0: holding that a showup identification was not impermissibly suggestive where it took place immediately after the unlawful conduct and was necessary to avoid arresting the wrong person 1: holding that a showup identification was valid even though the suspect was handcuffed 2: holding that showup identification proce dure was not unduly suggestive where officer said to eyewitness we got two guys in the car similar to the ones you told us about 3: holding that showup identification procedure was not unduly suggestive where defendant was handcuffed and placed under police spotlight 4: holding no abuse of discretion to exclude expert eyewitness identification testimony where governments case relied on more than eyewitness identification


Input: or damage. Brown v. National Home Ins. Co., 239 S.C. 488, 123 S.E. (2d) 850 (1962). There is at least an implication in some of our case law that damages of a pecuniary nature must be demonstrated where special damages are required. See, e.g., Brown, supra. The resulting system presently in place in South Carolina allows, depending on the circumstances, either: (1) presumed damages; or (2) narrowly defined “special damages.” In my view, a less rigid scheme is required by the Supreme Court decisions. Whether our present rules should be retained is thus open to question, but is an issue not presented for our decision here. 3 In light of Gertz, many of our cases stand, in my judgment, overruled or modified. See Merritt v. Great Atlantic & Pacific Tea Co., 179 S.C. 474, 184 S.E. 145 (1936) (<HOLDING>); Jones v. Garner, 250 S.C. 479, 158 S.E. (2d) Holdings: 0: recognizing distinction between actual and per se conflicts of interest 1: holding that in a slanderous or libelous per se context actual damages need not ever be proved 2: holding that citys policy need not be unconstitutional per se but need only cause a constitutional violation 3: holding that false statements impugning honesty of county commissioners in transacting public business were libelous per se 4: recognizing that slander per se is actionable without a showing of actual or special damages


Input: whether to require Laos to post the security was a decision committed to its discretion and it “would decline to exercise that discretion.” Id. at 229 n.12. On appeal, Petitioners 'argue that the FSIA posed no bar to requiring security from Laos and that the District Court should have so required to protect Petitioners’ “rights” pending resolution of Laos’s motion to vacate the August 2011 judgment. Appellants’ Br. 86. The District Court made clear that even if the FSIA did not preclude it from entering such an order, it would decline in its discretion to do so. We identify no abuse of discretion in that decision and therefore do not address whether the FSIA would bar the District Court from ordering Laos to post security here. See McCarthy v. S.E.C., 406 F.3d 179, 186 (2d Cir. 2005) (<HOLDING>). Accordingly, we affirm the District Court’s Holdings: 0: holding that an appellate court can review a district courts decision to remand when that decision rests upon a ground not authorized by statute 1: recognizing that the district court did not reach the merits 2: holding an issue not preserved when one ground is raised to the trial court and another ground is raised on appeal 3: holding that a court need not reach  challenges when an independent ground for a decision remains unchallenged 4: holding that when trial court found two alternate independent and sufficient grounds for voiding realestate contract this court would not review alleged error regarding first ground when trial courts judgment could be affirmed on second ground which appellant did not address


Input: same company and that profits from both flow directly into the pockets of the same principal does not overcome this critical deficiency in its pleadings. (See Pl.’s Mem. of Law in Opp. to Def. Re-Source US’s Mot. to Dismiss 6, 8.) Even if Re-Source U.S. may have been aware of the UK suit and participated in it to a certain extent, such as providing testifying witnesses, as Plaintiff argues, that would not make Re-Source U.S. a party to the suit and would not change the court’s legal analysis. (See Pl.’s Mem. of Law in Opp. to Def. Re-Source US’s Mot. to Dismiss 7.) Moreover, basic principles of comity require that this court not engage in relit-igating the UK action or delve into that foreign action’s underlying merits. Cf. Tronagun Corp. v. Mizerock, 820 F.Supp. 225, 227 (W.D.Pa.1993) (<HOLDING>). The scope of the UK court’s judgment must be Holdings: 0: holding that the analogous 42 pacs  4306 is procedural in nature and does not empower pennsylvania to reopen the sisterstate judgment 1: holding that a motion to reopen seeking only to apply for a form of relief which was unavailable to the movant at the time of the hearing  is subject to the regulatory requirements governing motions to reopen 2: holding that the declaratory judgment act is a procedural device 3: holding law of case doctrine is procedural and does not go to jurisdiction of court 4: recognizing that the declaratory judgment act is procedural in nature and not an extension of federal court jurisdiction


Input: is more akin to the crime of harboring a fugitive than it is to wire fraud. Cf. Bowens, 224 F.3d at 309-10 and Ebersole, 411 F.3d at 525-527. Similarly to the offense of harboring a fugitive in Bowens, there are not multiple conduct elements involved in misusing a passport, much less essential conduct elements. Instead, the one and only essential conduct element contained in 18 U.S.C. § 1544 is the actual misuse of a passport: here, its presentation to authorities in Florida. Moreover, contrary to argument of the United States, it is not enough for venue purposes that some other action (i.e., obtaining the passport) is a logically necessary predicate to the offense—even if that predicate action is also criminal. See United States v. Villarini, 238 F.3d 530, 532 (4th Cir. 2001) (<HOLDING>). Bowens and Villarini teach that venue is Holdings: 0: holding that inmates have a property interest in their money 1: recognizing that an action will lie for conversion of money when its identification is possible and there is an obligation to deliver the specific money in question or otherwise particularly treat the specific money 2: recognizing money laundering as a predicate act under rico 3: holding that defendants state conviction for carrying a concealed weapon was not part of the instant federal money laundering offense even though the concealed weapon was found at the time of defendants arrest for attempting to carry out money laundering scheme 4: holding that venue did not he in virginia for money laundering that occurred in florida de spite the fact that the money was embezzled in virginia


Input: venue provision as permissive. See, e.g., Smiga v. Dean Witter Reynolds, Inc., 766 F.2d 698 (2d Cir.1985), cert. denied, 475 U.S. 1067, 106 S.Ct. 1381, 89 L.Ed.2d 607 (1986) (permissive); In Re VMS Securities Litigation, 21 F.3d 139 (7th Cir.1994) (permissive); but see Sunshine Beauty Supplies, Inc. v. United States District Court for the Central District of California, 872 F.2d 310, 312 (9th Cir.1989) (mandatory). Additionally, two district courts within this circuit, excluding the court in the decision below, have had occasion to interpret section nine; both have held that it confers permissive, rather than mandatory, venue on district courts with the requisite subject matter and personal jurisdiction. U.S. for Kirchdorfer v. Aegis/Zublin Joint Venture, 869 F.Supp. 387 (E.D.Va.1994) (<HOLDING>); Amalgamated Clothing and Textile Workers Holdings: 0: holding that counterpart section of missouri uniform act confers jurisdiction on circuit courts of that state to enter judgment on an award and concluding that circuit court had no jurisdiction to act where the parties agreement provided for arbitration in new york and not missouri 1: holding that arbitration award is binding on the parties 2: holding that section nine does not limit confirmation of an award to the district court in the district of arbitration and confirmed a new york arbitration over whose parties the court had personal jurisdiction 3: recognizing forum selection clause providing that no such claim shall be commenced prosecuted or continued in any forum other than the courts of the state of new york located in the city and county of new york or in the united states district court for the southern district of new york as clear and unambiguous expression of parties selection of exclusive forum in affirming district courts dismissal of action commenced in united states district court for the district of new jersey 4: recognizing that an action at common law can be maintained on an arbitration award rendered under the parties submission that does not comply with the arbitration statute


Input: argues (inconsistently) that Dr. Steinert opined that he could either stand for up to two hours or walk for up to two hours in a standard eight hour workday. See id. at 4. Dr. Steinhert’s report instead indicates that Mr. Freeman self-reported more severe limitations on his ability to walk and stand, which Dr. Steinert declined to credit. See A.R. 245. She opined that Mr. Freeman could walk for up to two hours and stand for up to two hours in an eight hour workday. See A.R. at 248. 3 . We are not persuaded by Mr. Freeman's argument that the ALJ engaged in “sit and squirm” jurisprudence. The record reveals that the ALJ did not substitute her own judg ment regarding Mr. Freeman's condition for that of the medical experts. See Freeman v. Schweiker, 681 F.2d 727, 731 (11th Cir.1982) (<HOLDING>). 4 . Mr. Freeman’s argument that the AU did Holdings: 0: holding that an aljs decision to discount a subjective claim of drowsiness was supported by substantial evidence where the alj noted among other things that the claimant did not appear drowsy at the hearing 1: recognizing that the alj has an obligation to investigate a claim not presented in the application for benefits when testimony at the hearing places him on notice of the need for further inquiry 2: holding the record which included the opinion of several physicians was sufficient for the alj to arrive at a decision 3: holding the alj may discredit complaints of claimant where inconsistencies appear in record 4: holding that the alj may not engage in sit and squirm jurisprudence by subjectively arriving at an index of traits which he expects the claimant to manifest at the hearing


Input: date might result in appropriate sanctions, including dismissal. Moreover, Wrubleski neither explained in the tax court, nor on appeal, why he did not appear at his scheduled trial date, or why he could not have presented evidence at that time. Although Wrubleski filed a pretrial document labeled “praecipe for judicial notice of pending settlement and petition for stay,” in which he requested the court to stay the proceedings pending a settlement between the parties, as discussed below, he presented no evidence showing that a “binding settlement agreement” existed. Thus, similar to Freedson, we conclude that the district court did not abuse its discretion in dismissing Wrubleski’s petition. See Freedson, 565 F.2d at 955; see also Loren v. Sasser, 309 F.3d 1296, 1304 (11th Cir. 2002) (<HOLDING>). Even if we were to conclude that the tax Holdings: 0: holding that although pro se briefs are liberally construed even pro se litigants must brief arguments in order to preserve them 1: recognizing that although pro se litigants are not entitled to greater rights than represented litigants due process principles permit the imposition of a procedural bar only after consideration of the pro se litigants reasonable expectations about what had occurred 2: holding that although a pro se litigants pleadings are construed liberally a pro se litigant must still follow the same rules that govern other litigants including the requirement of constructing and supporting arguments with legal authority 3: holding that pro se litigants must follow the kentucky rules of civil procedure 4: holding that although pro se litigants are entitled to liberal construction of their pleadings pro se litigants must follow procedural rules


Input: risk” in order to trigger the protections of Exemption 7(C). 13 . Plaintiff also brings a claim under the APA based upon the same alleged conduct by the FBI, and seeking the same relief. However, "the APA only allows review where there exists 'no other adequate remedy in a court.’ ” Ctr. Platte Natural Res. Dist. v. U.S. Dep’t of Agric., 643 F.3d 1142, 1148 (8th Cir.2011) (quoting 5 U.S.C. § 704). When, as here, the FOIA provides an alternate adequate remedy, a plaintiff is precluded from seeking relief directly under the APA’s judicial review provisions. 5 U.S.C. § 704 ("Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.”); see also Rimmer v. Holder, 700 F.3d 246, 262 (6th Cir.2012) (<HOLDING>); Nat’l Sec. Counselors v. CIA, 898 F.Supp.2d Holdings: 0: holding that when a court of appeals has jurisdiction on interlocutory appeal the scope of appellate review is not limited to the precise question certified by the district court because the district courts order not the certified question is brought before the court 1: holding the court has the inherent authority to enter an order of confidentiality 2: holding that because the district court has authority under the foia to order production of the unredacted documents plaintiff seeks the foia clearly provides an alternate adequate remedy in court and thus triggers  704s bar on claims brought under the apa 3: holding that transfer of possession to the archives did not affect the documents status under the foia because the court was confident that congress did not intend to expose  material to foia simply because the material had been deposited with the archives 4: holding that while a magistrate lacked the authority to enter an order granting a motion to correct error and thus that the order was defective for failing to contain the judges signature or another indication it was approved or adopted by the trial court the city waived any challenge to the validity of the order by failing to make a timely objection and observing that the indiana supreme court has long held that defects in the authority of a court officer as opposed to the jurisdiction of the trial court itself to enter a final order will be waived if not raised through a timely objection and more recently this court has applied the same principle to civil proceedings and clarified that any objection to the authority of an adjudicative officer must be raised at the first instance the irregularity occurs or at least within such time as the tribunal is able to remedy the defect


Input: to define the scope of the instant exclusion in the abstract, applying the exclusion to real property in eases such as the instant one is far from easy. Houses and buildings can be divided into so many parts that attempting to determine which part or parts are the subject of the insured’s operations can produce several reasonable conclusions. For example, the “particular part of the real property on which [the insured] is performing operations” could mean, as Columbia Mutual contends, “the entire area of real property that Schauf is scheduled to work.” Under this interpretation, any damage the insured causes to property in the area in which he was contracted to work would be excluded from coverage. See William Crawford, Inc. v. Travelers Ins. Co., 838 F.Supp. 157, 158-59 (S.D.N.Y.1993) (<HOLDING>); see also Jet Line Serv. v. American Employers Holdings: 0: holding that predecessor particular part exclusion barred coverage for damage insured caused to well as it was lowering gun to depth at which insured was to use gun to perforate well 1: holding that predecessor particular part exclusion barred coverage for damage to a switchboard upon which insured was adding circuit breakers 2: holding a personal profit exclusion applicable to an insured corporation where the purpose of the exclusion was to exclude coverage when the insured received profits to which the insured was not legally entitled 3: holding that a similar exclusion denies coverage for property damage to the particular part of the real property that is the subject of the insureds work at the time of the damage if the damage arises out of those operations 4: holding that particular part exclusion barred coverage for damage to entire apartment insured was renovating even though insured was working only on one part of apartment at time of damage


Input: “1) that she [or he] belongs to a protected group; 2) that she [or he] was subject to unwelcome sexual harassment; 3) that the harassment was based on sex; 4) that the harassment was sufficiently severe or pervasive so as to alter the conditions of her [or his] education and create an abusive educational environment; and 5) that some basis for institutional liability has been established.” Kinman v. Omaha Public Sch. Dist., 94 F.3d 463, 467-68 (8th Cir.1996); Seamons v. Snow, 84 F.3d 1226, 1232 (10th Cir.1996) (same); Brown v. Hot, Sexy & Safer Prods., Inc., 68 F.3d 525, 540 (1st Cir.1995), cert. denied, 516 U.S. 1159, 116 S.Ct. 1044, 134 L.Ed.2d 191 (1996) (same); Nicole M. v. Martinez Unified Sch. Dist., 964 F.Supp. 1369, 1376 (N.D.Cal.1997) (same); see also Doe, 103 F.3d at 515 (<HOLDING>); Oona, R.S. v. McCaffrey, 122 F.3d 1207, 1210 Holdings: 0: holding that a claim for retaliation does not lie under title ix 1: recognizing that a claim of hostile environment sex discrimination is actionable under title vii 2: recognizing that most other courts apply title vii principles to title ix cases but refusing to apply title viis knew or should have known standard to a title ix claim 3: holding that the elements of a hostile environment claim under title vii equally apply under title ix 4: recognizing that the elements of title vii sexually hostile work environment claims apply to icra sexually hostile work environment claims


Input: in complex cases, productive attorney discussions and strategy sessions, negotiations, routine activities such as making telephone calls and reading mail related to the case, monitoring and enforcing the favorable judgment, and even preparing and litigating the request for attorneys’ fees. See City of Riverside v. Rivera, 477 U.S. 561, 573 n. 6, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986) (allowing compensation for productive attorney discussions and strategy conferences); Webb v. Board of Ed., 471 U.S. 234, 243, 105 S.Ct. 1923, 85 L.Ed.2d 233 (1985) (allowing compensation for pre-litigation services in preparation of suit); Cruz v. Hauck, 762 F.2d 1230, 1233-34 (5th Cir.1985) (allowing compensation for preparing and litigating fee request); Adams v. Mathis, 752 F.2d 553, 554 (11th Cir.1985) (<HOLDING>); New York State Assoc. for Retarded Children Holdings: 0: recognizing the natural consequences flowing from a compensable injury absent an independent intervening cause are compensable as well as the aggravation of a preexisting condition infirmity or disease by a workrelated injury 1: holding that measures to enforce judgment are compensable 2: holding that the district court lacked authority to enforce a foreign judgment where the plaintiff filed only an affidavit describing the foreign judgment and not a certified copy of the judgment itself in the first instance 3: holding that court had continuing jurisdiction to enforce judgment requiring payment of future medical expenses 4: holding that psychological conditions resulting from workrelated trauma are compensable


Input: ability to prove his claim of malicious prosecution, and each offers different reasons as to why. We will address Howard’s claims against each deputy separately. A. Deputy Highsmith Deputy Highsmith contends that Howard can prove neither a violation of his Fourth Amendment rights nor that Deputy Highsmith was the legal cause of his prosecution. We disagree. Viewing the facts in the light most favorable to Howard, Deputy Highsmith violated Howard’s Fourth Amendments rights by filing a false incident report that led to Howard’s arrest and prosecution. See Jones v. Cannon, 174 F.3d 1271, 1285 (11th Cir.1999) (“[T]he Constitution prohibits a police officer from knowingly making false statements in an arrest affidavit about the probable cause for an arrest....”); Riley, 104 F.3d at 1253 (<HOLDING>). Though Deputy Highsmith insists that Howard Holdings: 0: holding the same for malicious prosecution 1: holding that section 1983 claims alleging due process violations stemming from malicious prosecution are unavailable when a state malicious prosecution action exists 2: holding that no  1983 malicious prosecution claims exist after albright 3: holding that a  1983 due process claim that essentially contests the fairness of the plaintiffs prosecution  is  similar to his malicious prosecution claim and claims resembling malicious prosecution do not accrue until the prosecution has terminated in the plaintiffs favor  4: holding in the context of a plaintiffs  1983 and state law malicious prosecution claims against police officers that fabricating incriminating evidence violates constitutional rights


Input: goods, services, or new credit, or release by a transferee of property previously transferred to such transferee in a transaction that is neither void nor voidable by the debtor or the trustee under any applicable law, including proceeds of such property, but does not include an obligation substituted for an existing obligation. 11 U.S.C. § 547(a)(2). Before new value can be determined, a court must measure “the value given to the debtor in determining the extent to which the trustee may void a contemporaneous exchange.” Sulmeyer v. Suzuki (In re Grand Chevrolet, Inc.), 25 F.3d 728, 733 (9th Cir.1994) (quoting Milchem, Inc. v. Fredman (In re Nucorp Energy, Inc.), 902 F.2d 729, 733 (9th Cir.1990)); see also Creditors’ Committee v. Spada (In re Spada), 903 F.2d 971, 976-77 (3d Cir.1990) (<HOLDING>). New value is measured at the time of the Holdings: 0: holding the measure of damages is the difference between the value of the automobile prior to the upset and its value when prepared and presented to the plaintiff for acceptance 1: holding that under 11 usc  547c4 a later payment in exchange for new value only deprives the defendant of the new value defense if the later payment is an otherwise unavoidable transfer 2: holding that a party invoking a  547c1 defense must prove the specific measure of the new value given to the debtor in exchange for what was received 3: holding that defendant must prove when the services were rendered to establish that the new value exception applies 4: holding that the proper measure of damages was the present value of all unaccrued payments that the plaintiff would have received if the contract had been performed


Input: fact-finding for purposes of sentencing guidelines enhancements, provided that it is done with the understanding that the guidelines are applied in an advisory fashion. United States v. Ameri, 412 F.3d 893, 899 (8th Cir.2005). Because the record establishes that the guidelines were applied in an advisory manner, such fact-finding was permissible. In addition, the Appellants argue that the district court could not increase their advisory sentencing guidelines ranges on the basis of acquitted conduct. This argument also fails. Even post-Booker, for purposes of calculating the advisory guidelines range, the district court may find by a preponderance of the evidence facts regarding conduct for which the defendant was acquitted. United States v. Radtke, 415 F.3d 826, 844 (8th Cir.2005) (<HOLDING>). As the record indicates that there was ample Holdings: 0: holding that the district court determines the amount of loss under the preponderance of the evidence standard 1: holding that there was no prejudice where had the district court allowed the moving party the proper opportunity to respond the evidence would have been properly in front of the district court 2: holding that a district court may find acquitted conduct by a preponderance of the evidence 3: holding that in determining whether the district court had correctly calculated fraud loss the jurys acquittal  establishes only that there was reasonable doubt as to the defendants involvement with such conduct and the district court was still free indeed obliged to consider whether his involvement had been proved by a preponderance of the evidence 4: holding that the district court was permitted to find conduct that had been acquitted by the jury when determining the defendants sentence


Input: out-of-state marriage recognized in other states (i.e. Texas). In dealing with the issue of out-of-state same-sex marriage recognition, the Supreme Court in Windsor held that by treating state-sanctioned same-sex married couples differently than state-sanctioned opposite-sex married couples, Section 3 of DOMA violated basic due process principles applicable to the federal government. 133 S.Ct. at 2693. In this case, the Court must decide whether a state can do what the federal government cannot — discriminate against state-sanctioned same-sex couples and deny them the benefits conferred by marriage. The Court in Windsor did not clarify whether out-of-state marriage recognition implicated a fundamental right, but held that it was a right protected under the Constitution. See id. at 2696 (<HOLDING>). Therefore, in reviewing Plaintiffs’ due Holdings: 0: holding that entitlement to benefits is a property interest protected by the due process clause of the fifth amendment to the united states constitution 1: holding the same with respect to violations of the fifth amendment 2: holding doma was unconstitutional as a deprivation of liberty of the person protected by the fifth amendment 3: holding that the statement ill take the fifth was an assertion of the fifth amendment privilege 4: holding that merely declining to rehire a person did not constitute defamation for deprivation of liberty interest purposes absent any charges against the good name or reputation of that person


Input: at five of the six controlled purchases of crack cocaine; the amount sold by Leonard Sapp in the controlled buys was 48.7 grams. See Presentence Investí- gation Report, ¶ 10-17, 21. In addition, while executing the search warrant for the house where Leonard Sapp resided, the Government seized 20.8 more grams of crack cocaine. Presentence Investigation Report, ¶ 21. We conclude that it was reasonably foreseeable to Leonard Sapp that the conspiracy encompassed sales of crack cocaine of at least 50 grams. Because the district court’s factual findings support reasonable foreseeability, the error committed by the district court did not prejudice Leonard Sapp’s substantial rights and the district court did not plainly err. See United States v. Novaton, 271 F.3d 968, 1015 (11th Cir.2001) (<HOLDING>). V. CONCLUSION The convictions and sentences Holdings: 0: holding that where the district courts sentencing decision was amply supported by the evidence and the defendant thus received a sentence merited by the evidence the defendant could not show the error affected his substantial rights 1: holding that the defendants substantial rights were not affected by a sentencing guidelines enhancement even in the absence of a specific finding by the district court because the evidence amply supported the enhancement 2: holding that a district court may not impose a sentencing enhancement based on conduct of which the jury acquitted the defendant 3: holding that because the district courts error resulted in the imposition of a sentence substantially greater than the maximum otherwise permitted under the sentencing guidelines the error affected the defendants substantial rights and the fairness of the judicial proceedings 4: holding that the district court lacked authority to revisit the application of the career offender enhancement in a  3582 motion because that enhancement was not affected by a retroactive amendment


Input: The State is within the powers reserved to it to refuse to enter into such agreements and so to declare by statute. [Id. at 1077.] Following the lead of these two cases, the federal courts have cons (noting that deputy sheriffs had “no constitutional right to mandatory collective bargaining”), affd., 723 F.2A 918 (11th Cir.1983), cert. denied, 466 U.S. 959, 104 S.Ct. 2171, 80 L.Ed.2d 555 (1984) (citations omitted); Winston-Salem/Forsyth County Unit of the N.C. Ass’n of Educators v. Phillips, 381 F.Supp. 644, 646 (M.D.N.C.1974) (“[T]he Constitution does not mandate that anyone, either the government or private parties, be compelled to talk to or contract with an organization.”); Newport News Fire Fighters Ass’n Local 794. v. City of Newport News, Va., 339 F.Supp. 13, 17 (E.D.Va.1972) (<HOLDING>). Thus, the First Amendment does not give Holdings: 0: holding that an employer cannot enter into an individual contract if it would result in a diminution of the employers obligations in matters covered by the collective bargaining agreement 1: holding that collective bargaining agreements cannot compel the arbitration of statutory rights 2: holding that a city cannot be required to enter into collective bargaining sessions with an association of its employees 3: holding that antidiscrimination rights under title vii cannot be waived by a collective bargaining agreement 4: holding that employer overstepped its role when it refused to enter into written collective bargaining agreement because it believed unions entering the deal would violate union constitution


Input: in order to gain consent to enter the premises when, in fact, his real reason is to search inside for evidence of a crime, we find that this deception under the circumstances is so unfair as to be coercive and renders the consent invalid. *** This police conduct offends the fourth amendment and is fundamentally unfair when compared with the need for effective police investigation.” Daugherty, 161 Ill. App. 3d at 400. While Daugherty appears to be the only Illinois case invalidating consent on the ground that it was obtained through trickery, defendant also likens his case to those that invalidated consent on the ground that the police had misrepresented the defendants’ rights. See Bumper v. North Carolina, 391 U.S. 543, 549-50, 20 L. Ed. 2d 797, 802-03, 88 S. Ct. 1788, 1791-92 (1968) (<HOLDING>); People v. Casazza, 144 Ill. 2d 414, 418, 424 Holdings: 0: holding consent involuntary when police told defendants grandmother they had a search warrant and she allowed them to enter and search 1: holding that absent consent or exigent circumstances law enforcement officers cannot legally search for the subject of an arrest warrant in the home of a third party without first obtaining a search warrant 2: holding that consent was freely and voluntarily given despite officers advisement that the police could get a search warrant if consent was not given 3: holding that a search warrant is invalid if not based on an affidavit 4: holding consent invalid when given under coercive circumstances in which police misrepresented that they had a warrant to search the home


Input: relief, the appellate review centers on an examination of whether the evidence of record supports the PCRA court's ruling and whether such ruling is free from legal error. See Commonwealth v. Carpenter, 555 Pa. 434, 445, 725 A.2d 154, 159-60 (1999). 3 . This Court has allowed appeal in Commonwealth v. Schofield, 580 Pa. 4, 858 A.2d 1157 (2004), to reconsider Lord's strict waiver rule. Unless and until the Court modifies Lord’s holding, however, it remains controlling law. 4 . See also Johnson v. Champion, 288 F.3d 1215, 1230 (10th Cir.2002) (explaining that "the negligent failure to perfect an appeal ‘amount[s] to a complete denial of assistance of counsel during a critical stage’ of the criminal proceedings” (citation omitted)); McHale v. United States, 175 F.3d 115, 119 (2d Cir.1999) (<HOLDING>); Jones v. Cowley, 28 F.3d 1067, 1073 (10th Holdings: 0: holding that prejudice should be presumed where counsel filed notice of appeal but failed to perfect the direct appeal 1: recognizing the right to counsel on appeal 2: holding that trial counsel owes a criminal defendant a duty to file a notice of appeal regardless of whether the attorney was retained for the appeal or not 3: holding that to prove ineffectiveness where defendant rejected plea offer upon advice of counsel defendant must show he would have accepted the offer had counsel advised correctly the state would not have withdrawn its offer the court would have accepted the offer and the resulting sentence would have been less severe 4: holding that where counsel has failed to file or perfect an appeal despite the defendants request it is clear that the defendant need not demonstrate that but for the ineffectiveness of counsel such an appeal would have succeeded or even would have merit


Input: the parties, we find only one to have merit. The trial court properly considered the Husband’s police pension plan as a marital asset, but erred in its valuation for the purpose of equitable distribution. The only evidence of the value of the police pension plan related to actual cash contributions. No evidence of its present value was presented. We therefore reverse and remand for a proper calculation of the Husband’s police pension plan, utilizing the concept of present value. Since reconsideration of the value of this asset will likely affect the overall equitable distribution plan, we also remand with instructions to re-consider the equitable distribution of the parties’ marital assets in light of the changed valuation. See Dal Ponte v. Dal Ponte, 692 So.2d 283 (Fla. 1st DCA 1997)(<HOLDING>). We affirm in all other respects. However, Holdings: 0: holding that if the market value of an asset can be ascertained the decree should account for the change in value between the date of the decree and the timely execution of the distribution plan in the decree the distribution based on value at the distribution date 1: holding that where trial court erred in applying established law to the facts of the case it must be reversed and remanded for a new hearing to give the trial court an opportunity to address the issue 2: holding that where the trial court awarded the former husband the value of his pension plan but failed to calculate the present value of the plan case must be reversed and remanded for redetermination of equitable distribution 3: holding that the defendant withheld pension benefits in breach of the plan 4: holding that a fixed system of distribution is applicable where no present value can be established


Input: of Columbia. It is especially important in cases involving allegations of copyright, infringement using an IP address that the plaintiff demonstrate a good faith basis to believe a putative defendant may be a District of Columbia resident or that the injury occurred in the District of Columbia. See Nu Image, Inc. v. Doe, 799 F.Supp.2d 34, 39-40 (D.D.C.2011). In AF Holdings LLC the Court of Appeals for the District of Columbia Circuit found that geolocation services which “enable anyone to estimate the location of Internet users based on their IP addresses” are “sufficiently accurate to provide at least some basis for determining whether a particular subscriber might live in the District of Columbia.” AF Holdings LLC, 752 F.3d at 996; see also Nu Image, Inc., 799 F.Supp.2d at 41 (<HOLDING>). III. DISCUSSION Upon consideration of the Holdings: 0: holding that the fourteenth amendment does not apply to the district of columbia 1: holding that under the law of the district of columbia the filing of a complaint does not toll the statute of limitations on a counterclaim 2: holding that district court lacked power to decide personal jurisdiction issue already decided by district of columbia superior court 3: holding that the federal district court had no subject matter jurisdiction to review the courts denial of a particular application for admission to the district of columbia bar 4: holding that the plaintiff has a good faith basis to believe a putative defendant may be a district of columbia resident if a geolocation service places his her ip address within the district of columbia or within a city located within 30 miles of the district of columbia


Input: and deferring on issue). Although the other circuits are arguably split on the question, Taylor, 119 F.3d at 630, it appears that the majority hold that the use of keys solely to test locks does not violate the Fourth Amendment. United States v. Salgado, 250 F.3d 438, 455-57 (6th Cir.2001); United States v. Concepcion, 942 F.2d 1170, 1173 (7th Cir.1991) (“Although the owner of a lock has a privacy interest in a keyhole-enough to make the inspection of that lock a ‘search’-the privacy interest is so small that the officers do no need probable cause to inspect it. Because agents are entitled to learn a suspects’s address without probable cause, the use of the key to accomplish that objective did not violate the fourth amendment.”); United States v. Lyons, 898 F.2d 210, 213 (1st Cir.1990) (<HOLDING>). Absent any controlling authority to the Holdings: 0: holding that mere insertion of key was not a search or at least not an unreasonable search protected by the fourth amendment 1: holding that strip search incident to arrest was not per se unreasonable but holding that search was performed in an unreasonable manner when conducted in view of the public 2: holding that search of backpack constituted a search of defendants person and was not authorized by search warrant for premises 3: holding that insertion of a crowbar into the door of a suspects house by officers before they announced their presence constitutes an unreasonable search 4: holding that the insertion of a key into the door of a car to see if it fit constituted the beginning of a search because there is a reasonable expectation of privacy