Input: Supply, plaintiff in its complaint and in its motion for summary judgment before the bankruptcy court vigorously contended that the financing statements comported with the statutory requirements and constituted the “first and best lien” on EAI of NC’s assets. Plaintiff asserted that the statutory and case law established that: {¶ 15} “[I]nadvertent omission [in plaintiffs financing statements] is not seriously misleading and does not render the Financing Statements invalid because: a) the mere omission of the words ‘of North Carolina’ when the addresses of EAI and EAI of NC are the same and the two are related companies does not result in a misleading error; and b) the coversheets specifically refer the reader to the attached Security Agreement for the signature 3 UCC Rep.Serv. 719 (<HOLDING>). {¶ 18} Plaintiff prevailed and the bankruptcy Holdings: 0: holding a forged signature constitutes the use of that persons name and thus qualifies as a means of identification under the statute 1: recognizing as a matter of federal law that an action to redress injuries to a corporation cannot be maintained by a shareholder in his own name but must be brought in the name of the corporation 2: holding decrees identification of person by name was sufficiently specific for purposes of thirdparty beneficiary status 3: holding to be sufficient the incorrect identification of debtor as platt fur co instead of the correct name of henry platt 4: holding that an action brought in the name of a person adjudicated as incapacitated instead of in the name of her guardian cannot be corrected as a misnomer


Input: have passed into the hands of bona fide creditors or purchasers for value, as long as any debts of the corporation are unpaid, the holders of the assets take them charged with a trust in favor of the creditors”); Rice v. City of Columbia, 143 S.C. 516, 141 S.E. 705, 712 (1928) (“[T]he very moment a corporation, banking or other, reaches the point of insolvency (presumptively, as a matter of course, to the knowledge of the managing agents of the corporation), certainly in the immediate prospect of dissolution and bankruptcy, its assets become impressed with a solemn trust to be distributed ratably among its creditors, subject, of course, to liens; and the managing agents become the administrators of that trust.”); see also Stewart v. Ficken, 151 S.C. 424, 149 S.E. 164, 165 (1929) (<HOLDING>); Cumberland Wood Prods., Inc. v. Bennett, 308 Holdings: 0: recognizing the right of a creditor to sue a corporate director for breach of fiduciary duty 1: holding that a plaintiff seeking individual relief under erisa  502a3 under a breach of fiduciary duty theory did not have a cause of action when the alleged breach of fiduciary duty was a failure to distribute benefits in accordance with the plan 2: holding that breach of fiduciary duty claim was preempted by fehba 3: holding a cause of action for breach of fiduciary duty will not lie where the claim of breach is dependent upon the existence of a contractual relationship between the parties 4: holding that missouri law applied to the plaintiffs breach of fiduciary duty claim because it is corporate law that defines the contours of that duty


Input: 26, 2003), both of which are now final. Id. As for the Promissory Notes, they are not valid, because the Certificates of Assessment do not indicate that the original notes were accepted as payment. Id. at 3. Although Plaintiffs claimed to have “corrected” the Promissory Notes, correction is “neither apparent from an examination of the notes nor does it remedy their primary defect — they are not drawn on a legitimate domestic financial institution.” Id. Even if the Promissory Notes were valid, “jurisdiction prerequisites must be satisfied at the time the complaint is filed ... so [Plaintiffs’ post factum payment would not cure their failure to satisfy the full-payment rule.” Id.; see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 571 n. 4, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (<HOLDING>). Finally, Plaintiffs’ contention that Holdings: 0: holding that res judicata applies when the question of jurisdiction is raised and determined 1: holding that whether an action would have a conceivable effect on the bankrupt estate is determined at the time a lawsuit is filed 2: holding that the plaintiff cannot defeat federal jurisdiction by reducing his claim for damages after removal because the amount in controversy is determined by looking at the complaint when filed 3: holding that the court had discretion to allow substitution of plaintiffs to satisfy diversity jurisdiction requirements in order to give the court jurisdiction where no jurisdiction existed when the complaint was filed 4: holding that jurisdiction is determined at the time the complaint is filed and postfiling events cannot create jurisdiction


Input: court’s decision is procedurally sound, then we will consider the substantive reasonableness of the sentence imposed, applying an abuse-of-discretion standard.” Id. at 855 (quoting United States v. Braggs, 511 F.3d 808, 812 (8th Cir.2008)). The district court correctly interpreted and applied the sentencing guidelines. The guidelines provide: “Where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence.” U.S.S.G. § 5Gl.l(b). The district court thus properly determined the mandatory minimum sentence of 120 months was the guidelines sentence, and thus the appropriate point from which to depart downward. See United States v. Auld, 321 F.3d 861, 867 (9th Cir.2003) (<HOLDING>); United States v. Stewart, 306 F.3d 295, Holdings: 0: holding that even if the minimum mandatory exceeds the statutory maximum the court must impose the minimum mandatory 1: holding the mandatory minimum sentence to be constitutionally applicable to respondent 2: holding that a sentence was based on a mandatory statutory minimum sentence even though it was lowered under another statute 3: holding where the statutory minimum sentence exceeds the guidelines sentence a substantialassistance downward departure begins at the mandatory minimum sentence 4: holding that a sentence below a statutory minimum based on the filing of a substantial assistance motion did not eliminate the otherwise applicable mandatory minimum for purposes of sentence modification under  3582c2


Input: had the error not occurred.”); Bryant v. Shinseki, 23 Vet.App. 488, 498 (2010) (per curiam) (“[T]he assessment of prejudice generally is case specific, demonstrated by the appellant and based on the record.”); see also Hensley v. West, 212 F.3d 1255, 1263 (Fed.Cir.2000) (“[A]ppellate tribunals are not appropriate fora for initial fact finding.”). Accordingly, because the Board erred by failing to provide Mrs. Reliford with the opportunity to waive substitution and prejudiced her by failing to adjudicate her accrued-benefits claim against the proper factual background, the Board decision on appeal will be set aside and remanded for adjudication of Mrs. Reliford’s claim based on the file as it existed at the time of her husband’s death. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (<HOLDING>); see also Bernard v. Brown, 4 Vet.App. 384, Holdings: 0: holding that remand is the appropriate remedy where the board has incorrectly applied the law failed to provide an adequate statement of reasons or bases for its determinations or where the record is otherwise inadequate 1: holding that remand is the appropriate remedy where inter alia the board has incorrectly applied the law 2: holding that the district court was authorized to remand the proceedings to the board where the board failed to make required findings 3: holding that remand is appropriate where the board has incorrectly applied the law failed to provide an adequate statement of reasons or bases for its determinations or where the record is otherwise inadequate 4: holding that where issues were not considered by the bia remand is appropriate


Input: in a consistent and uniform manner subject to State criteria and oversight.” N.R. § l-1801(b)(2). When the State Critical Area Program was adopted, a local jurisdiction could choose whether to adopt a local program. If it did not, the State Critical Area Commission was directed to adopt a program for that jurisdiction. In either event, the program had to comply with the criteria in N.R. § 8-1808. See N.R. §§ 8-1809 and 8-1810. Section 8-1808(d) sets forth the requirements for granting a variance from the critical area requirements. Those requirements include a finding that a failure to grant a variance would result in unwarranted hardship to the applicant. Prior to 2002, the Court of Appeals decided Belvoir Farms Homeowners Ass’n, Inc. v. North, 355 Md. 259, 734 A.2d 227 (1999) (<HOLDING>); White v. North, 356 Md. 31, 736 A.2d 1072 Holdings: 0: holding that the unwarranted hardship standard was less restrictive than the constitutional taking standard and meant the denial of the reasonable and significant use of the property 1: holding that even if the standard for waiver is clear the standard was not met 2: recognizing that the federal pleading standard is a less stringent standard than the delaware pleading standard 3: recognizing a new sandin standard under which there is no liberty interest and no constitutional violation  if the sandin atypical and significant hardship standard is not met 4: holding that the standard of proof for dischargeability actions is the preponderance of the evidence standard


Input: and was exceedingly reluctant to reach any agreement that the tribes considered acceptable. But the gravamen of Coyote Valley’s amended complaint is that the Davis Administration, rather than the Wilson Administration, has refused to negotiate in good faith; and it is against the Davis Administration that Coyote Valley seeks injunctive relief. On the record before us, it appears that the Davis Administration has actively negotiated with Indians tribes, including Coyote Valley, concerning class III gaming, and that it has negotiated despite the absence of any legal obligation to do so. Until Proposition 1A was ratified in March of 2000, the State had no obligation to negotiate with Coyote Valley over the types of class III games covered in the Davis Compact. See Rumsey, 64 F.3d 1250 (<HOLDING>). Moreover, at the time Coyote Valley filed its Holdings: 0: recognizing a narrow class of cases in which the termination of the class representatives claim for relief does not moot the claims of the class members 1: holding that the phrase such gaming in igra does not include all class iii gaming 2: holding that the filing of a class action by a class representative without standing tolls the period of limitations with regard to all asserted members of the class and that the amendment of the complaint by the addition of a class member with standing relates back to the original complaint 3: holding that person in 42 usc  1983 does not include states 4: recognizing that the phrase does not include every service rendered to debtor


Input: Second Circuit Court of Appeals and held that a state criminal restitution order is non-dischargeable under Section 523(a)(7) of the Bankruptcy Code. The Court stated that Section 523(a)(7) “create[d] a broad exception for all penal sanctions, whether they be denominated fines, penalties, or forfeitures,” and protected traditional criminal fines sufficiently to allow restitution orders to be included within the exception. Id. at 51, 107 S.Ct. at 362, 93 L.Ed.2d at 230. In the Court’s view, federal bankruptcy proceedings should not be used to cir 1993) (concluding that order of restitution imposed as part of a criminal sentence was non-dischargeable in bankruptcy); Cabla v. State, 6 S.W.3d 543, 551 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1092, 120 S.Ct. 1730, 146 L.Ed.2d 650 (2000) (<HOLDING>). Garnett seeks to distinguish her case from Holdings: 0: holding that the eleventh amendment does not bar a bankruptcy court from issuing a money judgment against a state under the bankruptcy code 1: holding that apprendi does not apply to state capital sentencing schemes where judges are required to find certain aggravating circumstances before imposing a death sentence 2: holding that the bankruptcy code does not interfere with criminal sentencing schemes 3: holding only that although a party cannot interfere with its own contract a supervisor who is not an officer of a plaintiffs employer is not a party to the plaintiffs employment contract and therefore can interfere with it 4: holding that apprendi does not apply to capital sentencing schemes


Input: 1141, 119 S.Ct. 1032, 143 L.Ed.2d 41 (1999). Federal common law deprives me of the power to grant such relief, absent the consent of the Circuit Court of the 15th Judicial Circuit for Palm Beach County, Florida. As Mr. Freeman fairly argues, the relief sought by the trustee in these three counts could disadvantage the other creditors of PRSI. Thus, it will be up to the appointing court for the PRSI receiver to determine whether the relief sought by the trustee in counts five through seven should be heard in this court. Rather than dismiss those three counts at this time, however, I shall stay temporarily any determination of those three claims and grant the trustee a limited opportunity to obtain state court leave to proceed. See Matter of NNLC Corp., 136 B.R. 611 (Bankr.D.Conn.1992) (<HOLDING>); see also Matter of Linton, 136 F.3d at 545 Holdings: 0: holding that exhaustion of administrative remedies is a mandatory prerequisite to a lawsuit under foia 1: holding that an adversary proceeding against a bank receiver is stayed pending exhaustion of administrative remedies 2: holding that proper exhaustion of administrative remedies is necessary under section 1997ea 3: holding that while an original bankruptcy proceeding where the state is not named as a defendant is not a suit an adversary proceeding directly against the state would be 4: recognizing that exhaustion of state administrative remedies is not a prerequisite to bringing a  1983 action


Input: like the determination that inoculation against biological or chemical attack is warranted, Minns, 155 F.3d at 451 (emphasis added), or the determination of what constitutes appropriate “defense of national borders.” Tiffany, 931 F.2d at 278. This case simply does not involve the exercise of “professional military discretion.” As the Third Circuit held in rejecting the argument that the discretionary function exception barred a negligence claim against the government for the conduct of a Navy employee: This case is not about a national security concern, but rather a mundane, administrative, garden-variety, housekeeping problem that is about as far removed from the policies applicable to the Navy’s mission as it is possible to get. Gotha v. United States, 115 F.3d 176, 181 (3d Cir.1997) (<HOLDING>). These words are equally applicable here. The Holdings: 0: holding discretionary function exception is no shield to claim of negligence in failing to provide handrails or adequate lighting on footpath 1: holding asserted negligence in failure to provide adequate lighting or warning in federally controlled parking lot not shielded by discretionary function exception 2: holding that the discretionary function exception may apply in the absence of a conscious decision  3: recognizing a discretionary function exception to that waiver 4: holding that an agent acting outside his delegated authority is not protected by the discretionary function exception


Input: 28 U.S.C. § 2201, provides: In a case of actual controversy within its jurisdiction ... any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. (Emphasis added). Thus, the very terms of the Act and its subsequent interpretation by the courts have made the exercise of declaratory judgment jurisdiction discretionary. See Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 126, 88 S.Ct. 733, 746-47, 19 L.Ed.2d 936 (1968); Public Service Comm’n, 344 U.S. at 241, 73 S.Ct. at 239; Intermedics Infusaid, Inc. v. Regents of the University of Minnesota, 804 F.2d 129, 134-35, 231 USPQ 653, 657-58 (Fed.Cir.1986) (<HOLDING>). The reason for giving this discretion to the Holdings: 0: holding trial court did not abuse its discretion by ruling based only on affidavits 1: holding that district court did not abuse its discretion in reconsidering a prior interlocutory ruling 2: holding that the district court did not abuse its discretion in its ruling whether to proceed with a declaratory judgment action 3: holding that district court did not abuse its discretion in striking fact statements that did not comply with the local rules 4: holding that a district court did not abuse its discretion in excluding the testimony of a witness that was not highly probative


Input: summary judgment is granted as to Plaintiffs’ ordinary negligence claims because there is no genuine issue of material fact as to whether the Vanhorns were volunteers acting for a nonprofit organization within the scope of their responsibilities. A. Volunteers “Volunteer” is defined as “an individual performing services for a nonprofit organization or a governmental entity who does not receive [] compensation (other than reasonable reimbursement or allowance for expenses actually incurred) [] or [] any other thing of value in lieu of compensation, in excess of $500 per year[.]” 42 U.S.C. § 14505(6). An individual generally qualifies as a “volunteer” if he is not compensated. Segway, Inc. v. Special Olympics Conn., Inc., 2015 WL 1244509, **7-8 (Conn.Super. Feb. 23, 2015) (unpublished) (<HOLDING>); McGeorge v. Town of Hamden, 2012 WL 1434904, Holdings: 0: holding that there was a genuine issue of material fact precluding summary judgment 1: holding no issue of material fact as to whether defendant was volunteer because he received no compensation 2: holding that a plaintiff had no injury in fact and consequently no standing when it had no enforceable contract right against the defendant 3: holding no prejudice occurred because no new information was presented on the material matter in dispute 4: holding that there was a triable issue of fact whether a defendant who applied a sprayon fireproofing material was an agent for the manufacturer of the material and thus whether plaintiff is in privity with the manufacturer


Input: Chief Justice. AltaPointe Health Systems, Inc. (“AHS”), appeals from an order entered by Judge Don Davis of the Mobile County Probate Court denying its petition for an award of expert-witness fees in civil-commitment proceedings. This case presents a matter of first impression: Whether a publicly funded organization is entitled to expert-witness fees for an employee who gives expert testimony at involuntary civil-commitment hearings. I. Facts and Procedural History The board of directors of AHS, the community mental-health agency for Mobile County and Washington County, is appointed by the governing bodies that authorize and fund it. See § 22-51-1 et seq., Ala.Code 1975; Ex parte Greater Mobile-Washington Cnty. Mental Health-Mental Retardation Bd., Inc., 940 So.2d 990, 1005 (Ala.2006) (<HOLDING>). An AHS employee provides expert-witness Holdings: 0: holding that an action naming a state entity as a defendant did not constitute an action against the state because the state entity was sued in its capacity as receiver 1: holding that the state police is a state agency 2: holding a state agency as an arm of the state cannot constitute a person under  1983 because it is a sovereign entity 3: holding that if property is not property1 of the public entity then the public entity cannot be subject to suit under the dangerous condition waiver 4: holding that ahs although a public corporation  21512 alacode 1975 is an independent entity rather than a state agency


Input: statute governing failure to appear. Defendant in this case was. Issue Five: Trial Court’s Finding, by a Preponderance of the Evidence, That Arizona Conviction Was a Felony Conviction Was Not Error {34} Defendant challenges the State’s proof of one of his prior convictions, contending that it must be proved beyond a reasonable doubt under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and asserting that there was insufficient evidence under any standard to show a prior felony conviction. Apprendi, by its express terms, does not apply to prior convictions. See id. at 490, 120 S.Ct. 2348 (indicating that holding applies to facts “[o]ther than the fact of a prior conviction”); see also United States v. Pacheco-Zepeda, 234 F.3d 411, 414-15 (9th Cir.2001) (<HOLDING>). {35} The standard of proof applicable to the Holdings: 0: holding that almendareztorres v united states 523 us 224 118 sct 1219 140 led2d 350 1998 in which supreme court held it unnecessary to prove prior convictions beyond a reasonable doubt is narrow exception to apprendi 1: holding that almendareztorres v united states 523 us 224 118 s ct 1219 140 l ed 2d 350 1998 expressly held that a prior conviction need not be proved to a jury and the united states supreme court has not held otherwise since 2: holding that we are bound to follow almendareztorres v united states 523 us 224 118 sct 1219 140 led2d 350 1998 even though it has been called into question unless it is explicitly overruled by the supreme court 3: holding that the supreme courts holding in almendareztorres v united states 523 us 224 118 sct 1219 140 led2d 350 1998 that the government need not allege in its indictment and need not prove beyond a reasonable doubt that a defendant had prior convictions for a district court to use those convictions for purposes of enhancing a sentence remains binding precedent 4: holding that almendareztorres v united states 523 us 224 118 sct 1219 140 led2d 350 1998 remains good law and rejecting the contention that prior convictions must be admitted by the defendant or found by the jury


Input: decision, however broad it may seem, is actually quite narrow in two respects. First, our decision holds only that Sheriff Arpaio lacks standing to challenge DACA and DAPA, not that those programs are categorically shielded from suit. Indeed, those programs are currently subject to challenge in a number of other circuits. See Texas, 787 F.3d at 747-55 (upholding Texas’ standing to challenge DAPA based on the costs of providing drivers licenses to DAPA beneficiaries); Ariz. DREAM Act Coal. v. Brewer, No. 15-15307, 81 F.3d 795, 2015 WL 300376 (9th Cir.2015) (ordering the parties, and inviting the federal government, to file briefs discussing whether DACA violates the separation of powers or the Take Care Clause of the Constitution); cf. Crane v. Johnson, 783 F.3d 244, 252 (5th Cir.2015) (<HOLDING>). Second, today’s decision does not take issue Holdings: 0: holding that the plaintiff had failed to produce sufficient evidence to establish constructive notice because the plaintiff did not present any evidence to establish that the oil was on the floor for any length of time 1: holding that a school was not a state actor even though it had to comply with many state regulations to be eligible for state funding and almost all of its students had been referred to it by the state 2: holding that the state police is a state agency 3: recognizing the right of a defendant to comment upon the failure of the state to produce evidence 4: holding mississippi lacked standing to challenge daca because the state failed to submit   evidence that any daca eligible immigrants resided in the state or produce evidence of costs it would incur if some dacaapproved immigrants came to the state


Input: as “the jury had sufficient information to appraise the bias and motives of the witness” and to draw inferences about the witness’s reliability. Id. (citation and quotation marks omitted); United States v. McCullough, 631 F.3d 783, 790 (5th Cir.2011) (“A defendant’s Confrontation Clause rights are satisfied when defense counsel is permitted to expose to the jury the facts from which the jurors ... could appropriately draw inferences relating to the reliability of the witness.” (citation and internal quotation marks omitted)). To this end, we have previously held that a defendant’s Sixth Amendment confrontation right is satisfied even when the district court limits cross-examination to basic information concerning a witness’s prior convictions. See, e.g., McCullough, 631 F.3d at 791 (<HOLDING>); United States v. Restivo, 8 F.3d 274, 278 Holdings: 0: holding that crossexamination about whether witness previously provided false information clearly was admissible as probative of the witnesss veracity 1: holding that the quashing of a defendants subpoena for a prosecution witnesss complete immigration file did not violate the defendants confrontation rights where the defendants crossexamination enabled the jury sufficiently to assess the witnesss credibility 2: holding no confrontation right violation where the district court limited crossexamination to basic information about the witnesss convictions and prohibited inter alia descriptions of the witnesss conduct during the incidents leading to his convictions emphasis added 3: recognizing that even evidence of a defendants and a witnesss prior bad acts was admissible to show inter alia the defendants familiarity with the witness 4: holding that testimony supporting the witnesss character for truthfulness was improperly admitted on redirect examination because there was no attack on the witnesss credibility or character during crossexamination


Input: the FIS engages in international diplomatic relations, see Amended Complaint, para. 34-36. At this time, the Court believes that it is premature to determine whether the FIS actually constitutes a de facto state for the purposes of jurisdiction under the TVPA. The de facto state doctrine requires the Court to make factual findings regarding the activities of the FIS. At this stage, the record contains only the bare allegations of the Plaintiffs. To make the requisite factual findings, the Court will await the further development of the record. 3. Jurisdiction Under 28 U.S.C. § 1331 Because the ATCA supplies jurisdiction in this ease, the Court will not reach the issue of whether 28 U.S.C. § 1331 provides an independent basis for subject matter jurisdiction. See Karadzic, 70 F.3d at 246 (<HOLDING>). D. Justiciability Defendant Haddam claims Holdings: 0: recognizing the possibility that 28 usc  1331 supplies jurisdiction for violations of international law but not reaching the ultimate merits of the issue 1: holding that subject matter jurisdiction to review department of the interior decisions voiding mining claims is conferred by 28 usc  1331 2: holding that  ijinguistic consistency  required that the same arising under test be applied to the jurisdictional statute for patent claims 28 usc  1338a as is used for the general federal jurisdiction statute 28 usc  1331 3: holding that statutes conferring general jurisdiction including 28 usc  1331 do not waive sovereign immunity 4: holding that 28 usc  1331 does not constitute a waiver of sovereign immunity


Input: v. Hodari D., 499 U.S. 621, 623, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (determining that while the police officers lacked a reasonable suspicion to stop the defendant, the evidence was nevertheless admissible because the defendant had abandoned the drugs prior to his seizure). A panel of this court recently determined that abandoned property is subject to lawful seizure without a warrant. Wilson v. State, 825 N.E.2d 49, 51 (Ind.Ct.App.2005). Hence, such property is not subject to Fourth Amendment protection. Miller v. State, 498 N.E.2d 53, 55 (Ind.Ct.App.1986), trans. denied. By the same token, if property is abandoned after a citizen is improperly detained, the evidence is not admissible Wilson, 825 N.E.2d at 51; see also State v. Pease, 531 N.E.2d 1207, 1211-12 (Ind.Ct.App.1988) (<HOLDING>). And the seizure of an individual does not Holdings: 0: holding extraneous evidence that defendant was using drugs admissible under rule 404b because evidence not offered to show that defendant was drug user and was using drugs at the time of the offense but to rebut the defense of consensual sex 1: holding that the trial courts damages award was against the manifest weight of the evidence because it was based upon inadmissible evidence 2: holding that evidence obtained by improper search or seizure is inadmissible 3: holding that evidence was insufficient to prove a conspiracy where the evidence did not show that individuals who sold drugs to the defendant knew that the drugs were meant to be resold 4: holding that because an improper frisk forced the defendant to abandon drugs that evidence was inadmissible


Input: (citations omitted). B. Here, the district court denied Oleson’s motion to amend because the motion to amend was filed after the district court denied Oleson’s underlying § 2255 motion. Apparently, the district court believed that a Rule 15(a) motion cannot, as a matter of law, be brought after a § 2255 habeas motion is denied. To date, this Circuit has not recognized that principle as a rule of law. Rather, we have emphasized that Rule 15 seeks to ensure that cases are . decided on thei because it was filed more than one year after the June 15, 1995 entry of judgment, and more than one year after the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) became effective on April 24, 1996. See 28 U.S.C. § 2255; see also United States v. Craycraft, 167 F.3d 451, 456 (8th Cir.1999) (<HOLDING>). Nor do other exceptions to the § 2255 statute Holdings: 0: holding that in california the oneyear statute applies to a  1983 action 1: holding that the aedpa oneyear statute of limitations applies to amendments to  2255 motions 2: holding that the untimely petition in that case tolled the aedpa statute of limitations 3: holding that a district court has the authority to raise the aedpa statute of limitations on its own motion 4: holding that the aedpa statute of limitations is not jurisdictional


Input: § 924(c) offense. The fifth and final step in the Rybicki analysis, requires the district court to decide whether a departure, based on these appropriately classified factors, is, in fact, warranted and reasonable under the circumstances. 96 F.3d at 758; see also United States v. Terry, 142 F.3d 702, 707 (4th Cir.1998). We review the ultimate departure decision for abuse of discretion, and any factual determinations underlying this decision for clear error. Rybicki, 96 F.3d at 758. We find no abuse of discretion in the district court’s decision to depart upward from a sixty-month sentence on count three to a sentence of 262 months. We agree with the district court that Scott Brooks’s culpability in the death of Lock-lear and the physical injury of Floyd is at the 3 (10th Cir.2001) (<HOLDING>). Furthermore, the extent of the departure was Holdings: 0: holding that defendant should be resentenced where district court imposed a sentence under an erroneously calculated guidelines range  even where the sentence imposed fell within the correct range 1: holding that the defendants sentence did not violate apprendi where the actual sentence imposed did not exceed the maximum penalty corresponding to the quantity of drugs for which the defendant acknowledged responsibility nor was the sentence at the bottom end of a higher statutory range of penalties 2: recognizing that if a guidelines error did not affect the district courts selection of the sentence imposed the sentence should be affirmed 3: holding that an increased sentence may be imposed for harms that were a reasonably foreseeable consequence of the defendants conduct even where the defendant did not directly cause the specific harm 4: holding that where a district court clearly indicates that an alternative sentence would be identical to the sentence imposed under the guidelines any error that may attach to a defendants sentence under booker is harmless


Input: factual offense. For the foregoing reasons, and based upon the circumstances of this case, the Court finds that Alston was not deprived of the Fifth Amendment’s protection against Double Jeopardy. The Appellate Division’s affir-mance of Alston’s conviction on one count of first degree rape was neither an incorrect, nor an unreasonable application of clearly established Supreme Court double jeopardy jurisprudence. CONCLUSION For the foregoing reasons, petitioner Bernard Alston’s request for a writ of habeas corpus is denied and the petition is dismissed. Because petitioner has failed to make a substantial showing of a denial of a constitutional right, I decline to issue a certificate of appealability. See 28 U.S.C. § 2253(c)(1); Lozada v. United States, 107 F.3d 1011, 1013 (2d Cir.1997) (<HOLDING>). IT IS SO ORDERED. 1 . People v. Sandoval, 34 Holdings: 0: holding that under 28 usc  2253c1 certificate of appealability may issue only if the applicant has made a substantial showing of the denial of a constitutional right 1: holding that order denying relief under fedrcivp 60b in a habeas setting is the final order in a habeas corpus proceeding subject to the certificate of appealability requirement of 28 usc  2253c1a 2000 2: holding that a certificate of appealability issued without meeting the substantial showing of the denial of a constitutional right requirement nonetheless suffices to confer appellate jurisdiction quoting 28 usc  2253c2 3: holding that if the court denies a habeas petition on procedural grounds the certificate of appealability must show that jurists of reason would find debatable two issues 1 that the district court was correct in its procedural ruling and 2 that the applicant has established a valid constitutional violation emphasis in original 4: holding that appellate jurisdiction is limited to the issues contained in the certificate of appealability


Input: applied to appellant’s motion for partial summary judgment. Thus, because appellant’s negligence claims fail as a matter of law, it was proper for the court to deny appellant’s summary judgment motion, and his second assignment of error is overruled. Judgment affirmed. Cooney, P.J., and McMonagle, J., concur. 1 . For at least 11 years prior to Merrill Lynch's involvement, Lesinski managed the trust as a representative of Everen Securities, Inc. In July 1999, he began working for Merrill Lynch. 2 . Appellant also commenced an arbitration proceeding against Lesinski and Merrill Lynch, pursuant to the National Association of Securities Dealers Dispute Resolution, seeking recovery for the same losses. 3 . See, e.g., Stevens v. Natl. City Bank (1989), 45 Ohio St.3d 276, 281, 544 N.E.2d 612 (<HOLDING>); Natl. City Bank v. Noble, Cuyahoga App. No. Holdings: 0: holding that a constructive trust had arisen on a third partys house due to her use of trust assets which had been diverted by the paca trustee to pay the mortgage and finding that the trust beneficiary plaintiffs are entitled to a lien on the property in the amount of the diverted funds 1: holding that a trustee is under a duty to the beneficiaries to distribute the risk of loss within the trust by prudent diversification limiting the proportion of the total assets which are invested in any one stock or class of securities 2: holding that although a trustee is not required to watch the ticker as a speculator would    the question of the quality of judgment in holding or disposing of trust assets    coupled with evidence of failure to review or monitor the trust estate and refusal to meet with cotrustees presents a jury question on whether or not the trustee breached his duty 3: holding that the settlor could divest the beneficiaries of their vested interests only by completely revoking the trust because she had limited her ability to eliminate the beneficiaries interests by including language in the trust stating that the interests of the beneficiaries  shall continue until this trust is revoked or terminated internal quotation marks omitted 4: holding that trust beneficiaries have no authority to maintain an action as third party beneficiaries of contracts between the trustee and agents of the trustee concerning the internal affairs of the trust


Input: that they had no duty to defend against Starks’s suit. Id. at 1127. But Starks was never “acquitted,” and it is not entirely clear whether he was “exonerated” when his convictions were vacated and a retrial ordered or only when the prosecutor dismissed the charges. Northfield Insurance appears to address this question, saying that “[i]f the prosecution was abandoned for reasons of Starks’s innocence, then May 15, 2012 [when the aggravated sexual assault charges were dismissed nolle prosequi ], is the trigger date for his malicious prosecution claim.” 701 F.3d at 1131-32. By “malicious prosecution claim,” the Seventh Circuit meant Starks’s malicious prosecution, wrongful prosecution, and due process claims, which it was discussing collectively. Id. at 1130; see Brooks, 578 F.3d at 579 (<HOLDING>) (quoting Snodderly v. R.U.F.F. Drug Holdings: 0: 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  1: holding the same for malicious prosecution 2: holding that malicious prosecution claim accrues when underlying prosecution is terminated 3: holding that section 1983 claims alleging due process violations stemming from malicious prosecution are unavailable when a state malicious prosecution action exists 4: holding that the statute applies also to malicious prosecution actions


Input: rule does not dispose of the case sub judien, however, because Sherwood originally made a motion for judgment at the close of its own evidence, not at the close of its opponent’s evidence. The rationale for holding that merely "renewing” a motion for judgment does not preserve the issue for appeal is that the original motion for judgment is withdrawn once the party making the motion presents evidence. Smith v. Carr, 189 Md. 338, 56 A.2d 151 (1947); Md. Rule 2-519(c). Because Sherwood had already presented its evidence when it initially moved for judgment, and because it is evident that the reasons for the motion were clear to the trial judge, the issue is preserved. Hartford does not contend otherwise. See Laubach v. Franklin Square Hospital, 79 Md. App. 203, 216, 556 A.2d 682 (1989) (<HOLDING>) (citing Sergeant Co. v. Pickett, 283 Md. 284, Holdings: 0: holding that arguments not presented to the district court in response to a motion for summary judgment are waived 1: holding plaintiffs reference to and attachment of franchise agreement excerpts in opposition to defendants motion did not convert motion to dismiss to motion for summary judgment because plaintiff did not introduce support for arguments beyond the allegations in the complaint 2: holding that a motion to reconsider is not a second opportunity for the losing party to make its strongest case to rehash arguments or to dress up arguments that previously failed 3: holding that information contained in affidavits and depositions submitted as attachments to a memorandum were properly before the trial court and appellate court for purposes of a motion for summary judgment 4: holding that reference to memorandum previously submitted to court laying out with particularity arguments in support of motion preserves issue


Input: Injuries” as a defense and presented expert witnesses who asserted: (1) the collision was one of low impact; and (2) that there was no me (1989) (finding the trial court abused its discretion in excluding the testimony of a neuropsychologist that a motorist’s behavioral changes were caused by either a combination of post-traumatic stress disorder and chronic pain syndrome or an organic affective disorder secondary to a mild brain injury — the appellate court stating the dispositive issue was whether the testimony would supply specialized knowledge that would assist the jury in determining a fact in issue). Finally, we find exclusion of the evidence was not harmless error as there was no equivalent testimony presented to this effect. Cf. Bernard v. Lott, 666 So.2d 702 (La.Ct.App.1995) (<HOLDING>). Accordingly, we hold the trial court erred in Holdings: 0: holding that because the warden and medical treatment director lacked medical expertise they cannot be liable for the medical staffs diagnostic decision not to refer plaintiff to a doctor to treat his shoulder injury 1: holding the exclusion of a neuropsychologists opinion regarding whether the plaintiff suffered a brain injury on the basis she was not a medical doctor was harmless error because additional medical experts testified about how the results of the neuropsychologists testing supported a finding of a brain injury 2: holding that because the tendered expert witness was a licensed psychologist and not a medical doctor he was not qualified to state an expert medical opinion regarding the cause of johns injury 3: holding that experts medical opinion constituted no evidence because it was based upon speculation and surmise rather than reasonable medical probability 4: holding that erroneous admission of hearsay medical notes was harmless error when doctor testified and was subject to crossexamination


Input: “allege facts that affirmatively demonstrate the court’s jurisdiction to hear the cause.” See Tex. Ass’n. of Bus., 852 S.W.2d at 446. The purpose of a plea to the jurisdiction is to establish a reason why the merits of the plaintiffs claim should not be reached. See Bland Indep. Sch. Dist, 34 S.W.3d at 554. However, “a court deciding a plea to the jurisdiction is not required to look solely to the pleadings but may consider evidence and must do so wh of immunity from liability by the defendant, and thus fails to state a cause of action upon which the relief sought can be granted, and his claim cannot be repled to state a cause of action, the trial court should not permit repleading but should dismiss the suit. See Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 378 (Tex.2006) (<HOLDING>); see also Brantley, 365 S.W.3d at 94 (stating Holdings: 0: holding that in the context of the federal tort claims act claims dismissed on sovereign immunity grounds are not dismissed for lack of jurisdiction but for the existence of a defense 1: holding that the defendants were entitled to qualified immunity where the plaintiff failed to demonstrate that speech was public concern 2: holding that where plaintiff reata failed to demonstrate waiver of citys immunity from liability under tort claims act plaintiffs claims were properly dismissed and plaintiff was not entitled to replead 3: holding that equitable considerations did not toll the statute of limitations under the tort claims act where plaintiffs conduct was not in strict compliance with congressional waiver of immunity 4: holding plaintiff must make some showing that an act giving rise to civil liability actually occurred finding plaintiff entitled to conduct discovery to learn identity of defendant where plaintiff offered evidence sufficient to demonstrate defendants committed an unlawful act


Input: were not alleged in the indictment, whether he was an organizer or leader should not have been submitted to the jury. Because the jury concluded beyond a reasonable doubt that Soreide was an organizer or leader, and because Soreide was sentenced to 236 months imprisonment, which was below the statutory maximum of 20 years imprisonment, the district court did not unconstitutionally amend the indictment by enhancing Soreide’s sentence based on his role as an organizer or leader. As to Soreide’s argument that the district court failed to make the necessary findings under 18 U.S.C. § 3553(a), we have held that a sentencing court is not obligated to specifically address and analyze on the record every factor set forth in § 3553(a). United States v. Scott, 426 F.3d 1324, 1329 (11th Cir.2005) (<HOLDING>). We find that the district court adequately Holdings: 0: holding that a district court does not have to state on the record that it considered every  3553a factor 1: recognizing that many of the  3553a factors are already incorporated into any guidelines determination and the  3553a factors can themselves overlap 2: holding that nothing in booker or elsewhere requires the district court to state on the record that it has explicitly considered each of the  3553a factors or to discuss each of the  3553a factors 3: holding that to establish reasonableness of a sentence a district court need not explicitly discuss every  3553a factor on the record 4: holding a sentencing court is not obligated to expressly weigh on the record each of the factors set out in  3553a


Input: Court’s] jurisprudence” and that a “burden of production” is placed on the party seeking to rebut the presumption of regularity). Moreover, under settled Virginia law, “[p]rior convictions may be proved by any competent evidence.” Perez v. Commonwealth, 274 Va. 724, 730, 652 S.E.2d 95, 98 (2007) (emphasis added) (citing Palmer v. Commonwealth, 269 Va. 203, 207, 609 S.E.2d 308, 310 (2005)); see also Wilson v. Commonwealth, 40 Va.App. 250, 254, 578 S.E.2d 831, 833 (2003). Evidence is competent for purposes of proving a prior conviction when that evidence requires “[n]o conjecture or surmise ... to reach [the] conclusion” that the defendant had indeed been convicted of the predicate offense or offenses. Perez, 274 Va. at 730, 652 S.E.2d at 98; cf. Palmer, 269 Va. at 207, 609 S.E.2d at 310 (<HOLDING>); Overbey v. Commonwealth, 271 Va. 231, 234, Holdings: 0: holding that a court may not engage in conjecture or surmise in determining the offense for which a defendant was convicted 1: holding that a nonmovant cannot defeat a motion for summary judgment merely  on the basis of conjecture or surmise 2: holding a finding of fact by the commission may not be based upon surmise conjecture or speculation but must be founded on evidence of sufficient substance to afford a reasonable basis for it 3: holding that a factual finding must be supported by more than mere surmise or suspicion 4: holding a claimant must prove entitlement to benefits by the preponderance of the evidence which is not sustained by mere surmise or conjecture


Input: the aims of issue preclusion: to promote finality and judicial economy and to prevent inconsistent judicial decisions and endless litigation. Defendants next argue that our reasoning in Scherzinger II does not control here because this case involves the board’s authority to investigate dismissals, while Scherzinger II involved only the board’s authority to order the Scherzinger II custodians’ reinstatement. That distinction misses the point of issue preclusion. Issue preclusion not only prevents a tribunal from deciding an issue that has already been decided, it also prevents a party, and those in privity with that party, from relitigating an issue that was already decided. See Skeen v. Dept. of Human Resources, 171 Or App 557, 560, 17 P3d 526 (2000), rev den, 332 Or 316 (2001) (<HOLDING>); Evangelical Lutheran Good Samaritan Soc. v. Holdings: 0: holding that a prior administrative decision actually decided ultimate factual issues that are essential to plaintiffs present claims and that issue preclusion therefore bars the relitigation of those issues 1: holding that courts should consider the merits of the litigants claims the nature of the factual issues the litigants ability to present his claims and the complexity of the legal issues 2: holding that representation issues are matters relegated to the board representation issues may not be decided by contract and thus may not be decided by an arbitrator 3: holding issue preclusion bars section 1983 plaintiff from relitigating fourth amendment issue decided in state court criminal proceeding 4: holding that the doctrine of collateral estoppel bars readjudication of issues when 1 the prior suit resulted in judgment on the merits 2 identical issues are involved 3 the issue was actually litigated 4 the issue was actually determined and 5 the determination was necessary to the resulting judgment


Input: at 2048, 36 L.Ed.2d at 863. Thus, our concern when presented with a search-and-seizure claim in the context of contractual consent is that the consent promised under the contract be voluntary. Cf. id. at 227, 93 S.Ct. at 2047-48, 36 L.Ed.2d at 862-63. Generally, contract terms are considered to be consensual or voluntary for the same basic reason that courts normally enforce contracts. Conceptually, courts enforce contracts because they are a product of the free will of the parties who, within limits, are permitted to def 82, 738 P.2d 336, 341 (1987) (“A probationer, unlike a parolee, consents to the waiver of his Fourth Amendment rights in exchange for the opportunity to avoid service of a state prison term.”); People v. Mason, 5 Cal.3d 759, 97 Cal.Rptr. 302, 488 P.2d 630, 634 (1971) (<HOLDING>); Allen v. State, 258 Ga. 424, 369 S.E.2d 909, Holdings: 0: holding condition of probation requiring probationer to consent at any time to a warrantless search by a law enforcement officer was unconstitutional 1: holding probationer may waive claims to privacy by agreeing in advance to permit searches at any time 2: holding that qatar did not by agreeing to arbitrate in france waive its sovereign immunity under  1605a1 3: holding probationer prospectively consents to searches by signing probation agreement 4: holding the defendant waived any claim of error by both failing to object at trial and affirmatively agreeing to a limited closure


Input: 540 F.Supp.2d 1322, 1345 (N.D.Ga.2007). [ 49 Thus, we must review the facts underlying each of CDC's remaining claims to determine the extent to which each claim is based on misappropriation of information. A. Breach of Fiduciary Duty 150 The trial court rejected CDC's breach of fiduciary duty claim on the ground that CDC failed to demonstrate a genuine issue of material fact as to whether Carsey owed CDC a fiduciary duty. The trial court did not address the issue of whether CDC's breach of fiduciary duty claim was preempted by the UTSA. However, Carsey argued below, and continues to argue on appeal, that CDC's breach of fiduciary claim is preempted by the UTSA. "[An appellate court may affirm the judgment appealed from if it is sustainable on any l 4, 904 A.2d 652, 668 (2006) (<HOLDING>). 1153 We therefore affirm the trial court's Holdings: 0: holding copyright act preempted photographers misappropriation claim when claim did not have extra element such as breach of fiduciary duty 1: holding that utsa preempted a breach of fiduciary duty claim because it was solely dependent upon misappropriationoftradesecret facts 2: holding that utsa preempted a breach of fiduciary duty claim because the factual allegations supporting that claim involved only the misappropriation of  information 3: holding that utsa preempted a breach of fiduciary duty claim because it was completely dependent on the facts concerning misappropriation of trade secrets 4: holding that breach of fiduciary duty claim was preempted by fehba


Input: 750, 752 (2d Cir. 1949). There is elaboration and analysis of this point in Terrio v. McDonough, 16 Mass. App. Ct. 163, 165-169 (1983). 7 The equipment is spoken of as a “mogul,” possibly using that term in a sense derived from a dictionary meaning of a mogul as a locomotive used for hauling heavy trains. 8 Such a case as Hamilton Die Cast, Inc. v. United States Fid. & Guar. Co., 508 F.2d 417, 419-420 (7th Cir. 1975), cited by Continental, turning on “property damage,” requires discriminating reading because the term was defined differently in the policy there at bar. A more-or-less standardized form of 1966 was succeeded by a form of 1973. Tinker, supra at 218, 232-235; 1 Long, supra at §§ 11.01, 11.10. See Guerin Contractors, Inc. v. Bituminous Cas. Co., 5 Ark. App. 229, 236 (1982) (<HOLDING>). 9 “Occurrence” was defined in the policy as Holdings: 0: holding that the definition of operating deficits is not ambiguous despite the absence of a definition of the phrase in the contract 1: holding that termite damage does not fall within the meaning of property damage in the policy because the alleged misrepresentations did not cause the damage the termites did 2: 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 3: recognizing the increased breadth of the definition of property damage introduced in the more recent form of policy 4: holding that in a suit on a property damage insurance policy in which liability is not disputed but in which the amount of damage is disputed the amount is unliquidated


Input: appellant’s counsel affirmatively stated that she had no objection to the amendment and that appellant waived the ten-day notice afforded at the defendant’s request under article 28.10 of the code of criminal procedure. See Tex.Code CRiM. PROC. Ann. art. 28.10(a) (Vernon 1989). An indictment may not be amended on the day of trial. See State v. Murk, 815 S.W.2d 556, 558 (Tex.Crim.App.1991). But in order to preserve the error for appeal, a defendant must object; otherwise, the error is forfeited. Id.; Hoitt v. State, 30 S.W.3d 670, 674 (Tex.App.-Texarkana 2000, pet. refd); Briones v. State, No. 2-04-00250-CR, 2005 WL 1120018, at *2 (Tex.App.-Fort Worth May 12, 2005, no pet.) (mem.op.) (not designated for publication); see also Hernandez v. State, 127 S.W.3d 768, 772 (Tex.Crim.App.2004) (<HOLDING>); Garrett v. State, 161 S.W.3d 664, 669 Holdings: 0: holding if the state does not allege in the charging document the tolling of the statute in an otherwise sufficient information or indictment a defendant may by his actions waive this defense 1: recognizing that article 2810c provides that indictment or information may not be amended over defendants objection as to form or substance if indictment or information charges defendant with additional or different offense or if substantial rights of defendant are prejudiced 2: holding initial indictment which was subsequently found to be invalid tolled the thirtyday period and superseding indictment alleging different charges based on same fraudulent acts as earlier indictment was therefore timely 3: holding that defects errors and irregularities of either form or substance in an indictment or information must be raised by pretrial objection or are waived in postconviction proceedings indictment that failed to allege year of alleged offense contained a substantive defect but because defendant failed to object to this defect pretrial he could not raise it in a postconviction proceeding 4: holding that an indictment gave sufficient notice when the indictment charged the elements of the offense


Input: of retaliation Bell must first present evidence establishing a prima facie case — she has failed to do so. Specifically, Bell has not, and cannot demonstrate that she was terminated because of the EEOC claim she filed. Bell contends that the fact that her termination came seven months after her EEOC claim provides evidence of the causal connection. Mere timing alone is insufficient in this instance to satisfy the causation element of the prima facie case. B Even were a prima facie case established, Bell has failed to adequately refute the Bank’s legitimate non-discriminatory reason for its actions. Bank of America contends that it eliminated Bell and Barnhart’s positions due to restructuring in the corporation. See E.E.O.C. v. Tex. Instruments, Inc., 100 F.3d 1173, 1181 (5th Cir.1996) (<HOLDING>). Thus it falls to Bell to demonstrate that Holdings: 0: holding that drugrelated misconduct is a legitimate nondiscriminatory reason for termination 1: recognizing that an employers decision to eliminate a position is a legitimate nondiscriminatory reason for terminating a position or employee 2: holding that an employee may establish that the legitimate reason for an employment decision offered by an employer is pretextual by showing by a preponderance of the evidence either that the discrim inatory reason was the true reason motivating the employers conduct or that the profferred legitimate reason was false 3: recognizing that even a personal grudge can constitute a legitimate nondiscriminatory reason for an adverse employment decision 4: holding that temporal proximity is insufficient in and of itself to establish that the employers nondiscriminatory reason for discharging an employee was in fact pretextual


Input: D.C.Code Ann. § 32-505 (providing medical review committee records a qualified privilege from discovery); Fla.Stat.ch. 766.101(5) & 395.0191(8) (1993) (stating that "the investigations, proceedings, and records of the [medical review committee] shall not be subject to discovery or introduction into evidence”); Ga.Code Ann. § 31-7-143 (1998) ("the proceedings and records of medical review committees shall not be subject to discovery or introduction into evidence in any civil action”); Ill.Comp.Stat.Ann. § 5/8— 2101 (West 1992) (stating records of medical committees intended to reduce morbidity and mortality are privileged); Md.Health Occ. CodeAnn § 14-501 (1991 & 1994 Supp.) (providing that records of medical review committees are not discoverable); Tenn Code Ann. § 63-6-219 (1997) (<HOLDING>); Tex Health & Safety Code Ann. § 161.032(a) Holdings: 0: recognizing confidentiality essential to function of medical peer review committees and to improvement of health care and protecting the records of such committees from discovery 1: holding that hospitals may be found liable for conspiring with members of medical staff and that evidence of pretextual sham peer review proceedings presented jury question whether hospitals conspired with peer review committees in violation of sherman act 2: recognizing an individuals right of privacy in the content of health records and noting that health records are the property of the health care entity maintaining them 3: recognizing an overwhelming public interest in promoting improvement in health care through the mechanism of physician peer review 4: holding that the state privilege should not apply when the peer review records sought directly related to the allegations challenging the peer review process


Input: relief, because it was filed almost five years after Dearman pled guilty. See Miss. Code Ann. § 99-39-5(2) (Rev. 2015) (a motion for post-conviction relief must be filed within three years after the entry of a judgment of conviction based on a guilty plea). The court also noted that the underlying statute of limitations issue was discussed on the record at Dearman’s plea hearing. At her plea hearing, Dear-man’s attorney acknowledged that the prosecution was not barred by the statute of limitations because a warrant was issued for her arrest within about six weeks of the offense. See Miss. Code Ann. § 99-1-7 (Rev. 2015) (“A prosecution may be commenced, within the meaning of Section 99-1-5 by the issuance of a warrant .... ”); see also Conerly v. State, 607 So.2d 1153, 1158 (Miss. 1992) (<HOLDING>). ¶ 3. The circuit court correctly ruled that Holdings: 0: holding that a valid guilty plea waives a statute of limitations defense 1: holding that the defendants guilty plea was valid where the district court carefully questioned the defendant about whether he understood the consequences of his guilty plea 2: holding statute of limitations is not jurisdictional and can be waived by a voluntary plea of guilty 3: holding entry of guilty plea waives challenges to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea  emphasis added 4: holding entry of a guilty plea waives all nonjurisdictional issues


Input: Court may not dismiss the Plaintiff’s Complaint absent a showing of exceptional circumstances. See, e.g., Herbstein, 743 F.Supp. at 188 (finding Argentine case was at preliminary stage where formal investigation into possible misappropriation had just begun and there had not yet been any determination of actual wrongdoing). The Defendant by the Swiss District Court regarding Pablo’s liability on Ms. Madanes’ contractual claim would not dispose of the RICO claims in this action. For example, determining that Pablo is guilty on the contractual claim does not answer the question of whether he managed an international conspiracy; nor does a finding of innocence necessarily mean that no such conspiracy existed, especially among the other Defendants. See id.; Herbstein, 743 F.Supp. at 188 (<HOLDING>). The principal cases upon which the Defendants Holdings: 0: holding that utsa preempted a breach of fiduciary duty claim because the factual allegations supporting that claim involved only the misappropriation of  information 1: holding that claim of misappropriation was distinguishable from claim of fraudulent inducement even though underlying facts were same 2: holding that suit arose from alleged fraudulent transfer of real property located in texas even though the allegedly fraudulent assignment occurred in california 3: holding that plaintiffs were entitled to a jury trial on claim of breach of fiduciary duty where underlying claim was a common law negligence action 4: holding that even if utah law recognized tort of misappropriation such a claim would be preempted by copyright act


Input: indicates “[a] deliberate- and contumacious disregard of the court’s authority[,] ... bad faith, or a willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness.” Mercer, 443 So.2d at 946 (citations omitted). In the instant cause, the trial court dismissed Bonilla’s first lawsuit with prejudice because Bonilla failed to attend several court-ordered depositions. Contrary to the trial court’s ruling, the record in this case does not contain sufficient evidence to indicate that Bonilla exhibited the sort of wilful disregard for the court’s orders which would support the sanction of dismissal, either with or without prejudice. In addition, throughout the time that Bonilla was unavailable for deposition, Apollo had been able DCA 1979) (<HOLDING>). Consequently, because the record supports Holdings: 0: holding that sanction of dismissal was warranted when plaintiff had failed to appear for deposition on multiple occasions and following plaintiffs failure to comply with orders of the court including an order that plaintiff make medical records available to the defendant 1: holding that dismissal with leave to amend is not a final order 2: holding that dismissal for failure to comply with discovery orders is on the merits 3: holding that dismissal is appropriate where failure to comply with courts orders prejudiced the defendants and burdened both the courts docket and the public interest in speedy litigation and the district court considered less drastic sanctions and warned the plaintiff before dismissal 4: holding that dismissal is not warranted where the plaintiff was unable to attend courtordered depositions because the military would not grant him leave time to comply with the courts orders


Input: addressed only Dr. Keszler’s conduct and did not mention SADI or implicate its behavior. Id. at 671. The supreme court rejected this argument, holding that “[w]hen a party’s alleged health care liability is purely vicarious, a report that adequately implicates the actions of that party’s agents or employees is sufficient.” Id. at 671-72. Although Gardner involved a corporation rather than a professional association, we conclude that its reasoning is equally applicable here. Therefore, we reject OGA’s assertion, at least concerning “purely vicarious” liability claims, that Dr. Brewer’s expert reports concerning Drs. Jacobs and Gunn did not sufficiently implicate OGA. See id.; Ctr. for Neurological Disorders, P.A. v. George, 261 S.W.3d 285, 295 (Tex.App.-Fort Worth 2008, pet. denied) (<HOLDING>). Here, OGA did not object to Dr. Brewer’s Holdings: 0: holding that no expert reports specifically addressing conduct of professional corporation and professional association were required when plaintiffs alleged only vicarious liability based on medical negligence of entities physicians explaining that the entities conduct is not measured by a medical standard of care but rather their liability was solely vicarious 1: holding that a professional owes no duty to third persons unless the professional had actual knowledge that those persons would rely on his rendering of professional services 2: holding that expert report that sufficiently addressed certain claims against doctor employed by professional association was sufficient as to claims against professional association based on doctors negligence because the doctors negligence is imputed to the association under the professional association act 3: holding a condominium association had no duty to a woman who had committed suicide after the association removed the womans dog because while the association knew the dog was essential to the womans will to live the association had no authority to prevent the womans suicide 4: recognizing contributory negligence as a defense to professional malpractice claims


Input: or the lodestar method in calculating fee awards. See Rawlings, 9 F.3d at 516-17; Cardizem, 218 F.R.D. at 532. However, the Sixth Circuit has observed a “trend towards adoption of a percentage of the fund method in [common fund] cases.” Rawlings, 9 F.3d at 515; In re Sulzer Orthopedics, Inc., 398 F.3d 778, 780 (6th Cir.2005); see also § 21D(a)(6) of the PSLRA, 15 U.S.C. § 78u-4(a)(6) (“Total attorneys’ fees and expenses award by the court to counsel for the plaintiff class shall not exceed a reasonable percentage of the amount of any damages and prejudgment interest actually paid to the class.”) As the court observed in Fournier v. PFS Invs., 997 F.Supp. 828 (E.D.Mich.1998): The lodestar warding 30% fee); Rio Hair, 1996 U.S. Dist. LEXIS 20440 at *56, 1996 WL 780512at *18 (<HOLDING>); In re Visteon Corp. ERISA Litig., No. Holdings: 0: recognizing the range of discretion of the trial judge 1: recognizing that the acceptable range of fee awards is 20 to 50 of the common fund 2: holding that attorneys fee award in a common fund case must be  reasonable under the circumstances 3: recognizing that class counsels request for a 10 common fund award is well below the typical 2030 fee awards in class actions 4: recognizing that unit owners own the common elements in fee as tenants in common


Input: Appeals, 677 A.2d 350 (Pa.Cmwlth.1996); City of Lancaster v. Lancaster County, 143 Pa.Cmwlth. 476, 599 A.2d 289 (1991). 33 . Although two appellee briefs were filed, one on behalf of the Pierce plaintiffs and one on behalf of the Clifton plaintiffs, we will present their arguments collectively. 34 . Although not directly addressing the contours of a facial challenge, we have addressed the differences between facial and as-applied challenges in a number of scenarios, often for procedural purposes. See, e.g., Phila. Entm't & Dev. Partners v. City of Philadelphia, 594 Pa. 468, 937 A.2d 385, 392 n. 7 (2007) ("[A]s-applied challenges require application of the ordinance to be ripe, facial challenges are different, and ripe upon mere enactment of the ordinance.”); Beattie, 907 A.2d at 527-29 (<HOLDING>); Lehman v. Pa. State Police, 576 Pa. 365, 839 Holdings: 0: holding that court can exercise equity jurisdiction over taxpayers challenge that property assessment system is unconstitutional facially or asapplied 1: holding in the context of an asapplied challenge that when a defendant admits guilt of a substantive crime he cannot reverse course on appeal and claim the criminal statute is unconstitutional 2: recognizing that categorical constitutional challenge was fundamentally similar to asapplied constitutional challenge initially raised on appeal 3: holding that declaring statute facially unconstitutional deprives trial court of subjectmatter jurisdiction 4: holding section 61132b2c facially unconstitutional


Input: Frederick Schauer, Categories and the First Amendment: A Play in Three Acts, 34 Vand.L.Rev. 265, 267-82 (1981), cited in R.A.V., — U.S. at -, 112 S.Ct. at 2563 (Stevens, J., concurring in the result). Congress has passed numerous laws that proscribe threats. See, e.g., 18 U.S.C. § 871 (threats against the president and successors to the presidency); id. § 876 (threats by mail to injure or kidnap); id. § 1513 (retaliatory threats against informants and witnesses); id. § 115 (threats to assault, kidnap, or murder federal officials). These statutes have been consistently upheld as constitutional, despite the fact that they criminalize utterances because of their expressive content. See Watts v. United States, 394 U.S. 705, 707-08, 89 S.Ct. 1399, 1400-01, 22 L.Ed.2d 664 (1969) (per curiam) (<HOLDING>); United States v. Varani, 435 F.2d 758, 762 Holdings: 0: holding that threats to inflict financial or personal harm are not true threats where no ones personal safety is threatened 1: holding that threats and fighting words are removed  from the scope of the first amendment 2: holding that the first amendment does not protect true threats against the president 3: holding that where the first amendment does not protect a certain activity there can be no first amendment right of association to engage in that activity 4: holding first amendment does not protect nonexpressive conduct


Input: the corporation and hardly ever harm it.” Post at 893. But the dissent offers no support for this broad proposition, and we do not agree that this is a valid assumption. The dissent confuses the corporation’s interests with the individual interests of its majority shareholders. But a corporate officer or director’s duty is to the corporation and its shareholders collectively, not any individual shareholder or subgroup of shareholders, even if that subgroup represents a majority of the ownership. See, e.g., Redmon, 202 S.W.3d at 233; Somers, 295 S.W.3d at 11; Lindley, 349 S.W.3d at 124; Hoggett, 971 S.W.2d at 488. We do not determine the best interest of the corporation by examining only the interest of its majority shareholder^). See Holloway v. Skinner, 898 S.W.2d 793, 797 (Tex.1995) (<HOLDING>). Refusal to pay dividends, paying majority Holdings: 0: holding majority shareholder liable when he used his control of the board for the malicious purpose of  preventing dividends and otherwise lowering the value  of the stock of the minority shareholders 1: holding that a corporate officer acting in his or her official capacity could not tortiously interfere with a corporate contract because corporations act only through their officers and agents 2: holding that corporate officer and majority shareholder could be held liable for acting in a manner that served his interests at the expense of the other shareholders because his interests and the corporations were not necessarily aligned 3: holding that majority shareholders had legitimate business reasons for terminating a shareholder which included the reason that the shareholder was not working well with other employees 4: recognizing distinction between corporate officer acting on behalf of himself and corporate officer acting on behalf of his corporation


Input: the examination room during the questioning of Ms. Rodriguez certainly did not undermine the fairness or the validity of the trial. He was able to see and hear the entire interrogation of Carmen Rodriguez, and his attorney was present in the examination room. There is no indication in the record that the petitioner was impeded from consulting with counsel either before or after the examination. Accordingly, his exclusion from the examination room, assuming it was an error, is subject to harmless error analysis. See Feliciano, 223 F.3d at 112 (conducting portion of voir dire outside hearing of defendants subject to harmless error analysis where defendants present during entire jury selection process and were provided with opportunity to consult with counsel); Yarborough, 101 F.3d at 898 (<HOLDING>); Vilella, 49 F.Supp.2d at 238 (colloquy Holdings: 0: holding that defendants who do not object to jury instructions at trial are subject to a plain error standard of review on appeal 1: holding trial errors are subject to a harmless error analysis 2: holding that the omission of an element is subject to harmless error analysis 3: holding brief hearing not part of trial proper in defendants absence subject to harmless error standard 4: holding that where defendants counsel objected to the trial judges evidentiary rulings in evidentiary hearing but did not object to the defendants absence any claim of error due to defendants absence had been waived


Input: court’s holding in Reese indicates that escape is a continuing offense. A review of cases in other jurisdictions shows support for this characterization of the escape crime. Escape is considered a continuing offense by those courts — including the United States Supreme Court — that require an escapee to immediately submit to the authorities after an escape before the escapee can rely on a necessity defense to an escape charge. See United States v. Bailey, 444 U.S. 394, 413, 100 S.Ct. 624, 636, 62 L.Ed.2d 575, 592 (1980) (“[W]e think it clear beyond peradventure that escape from federal custody ... is a continuing offense and that an escapee can be held liable for failure to return to custody as well as for his initial departure.”); Wells v. State, 687 P.2d 346, 350 (Alaska Ct.App.1984) (<HOLDING>); Harbin v. State, 581 So.2d 1263, 1266 Holdings: 0: holding that in light of our recognition that escape presents a continuing threat of violence until the escapee is safely returned to custody we hold that for purposes of  2k21b5 every escape is sufficiently continuing such that possession of a gun subsequent to the initial departure from custody can qualify as being in connection with the escape 1: holding that because a  1326 violation constitutes a continuing offense venue may lie in any district in which the continuing conduct occurred 2: holding that necessity defense to escape did not require defendant to turn herself in and that escape is not a continuing offense 3: holding that failure to appear is also a continuing offense 4: holding that because the necessity defense requires a defendant to turn himself in escape is a continuing offense


Input: Unlawful use of handgun in commission of crime.—Any person who shall use a handgun in the commission of any felony or any crime of violence as defined in § 441 of this article, shall be guilty of a separate misdemeanor and on conviction thereof shall, in addition to any other sentence imposed by virtue of commission of said felony or misdemeanor ... be sentenced to the Maryland Division of Correction[.] Md. Code (1957, 1982 Repl. Vol., Supp. 1982), Art. 27, § 36B(d). It is manifest that the General Assembly intended that a separate sentence be imposed upon any person convicted of a violation of Section 36B(d), “in addition to any other sentence imposed by virtue of commission of said felony or misdemeanor.” Id.; see, e.g., Whack v. State, 288 Md. 137, 145-49, 416 A.2d 265 (1980) (<HOLDING>), cert. denied, 450 U.S. 990, 101 S.Ct. 1688, Holdings: 0: holding that separate sentences may be imposed for a violation of section 36bd and the predicate offense where both convictions were the result of the same act so long as the charges are brought in a single trial 1: holding that the jurisdictional bar applies as long as an alien is removable regardless of whether the predicate offense was the reason for removal 2: holding that notwithstanding code  182231s application to successive trials conviction of both the completed substantive offense and the underlying conspiracy are permitted in virginia provided the convictions occurred as here in a single trial 3: holding that state may charge separately for the same offense but the convictions for more than one of the offenses cannot stand 4: holding each act of shooting from a vehicle constituted a separate and distinct crime explaining where completed offense has occurred a separate charge may be brought for a repetition of the same conduct


Input: an attorney’s duty to provide adequate representation does not encompass the duty to foresee and protect a client from his own possible suicidal tendencies. Citing a string of cases which rigidly follow McPeake, common carrier defendant COLTS urges us to come to the same conclusion regarding COLTS responsibility to suicide decedent George Hudalc. Pennsylvania state courts and federal courts applying Pennsylvania law appear to have consistently relied on the McPeake decision. See Ferris v. Cleveland, Civil Action No. 3:10-1302, 2012 WL 2564782 (M.D. Pa. 2012) (granting a motion in limine that excluded testimony of a neuropsychologist to identify the causal relationship between a motor vehicle accident and the decedents suicide); Puza v. Carbon County, 586 F.Supp.2d 271 (M.D. Pa. 2007) (<HOLDING>); Cooper v. Frankford Health Care System, Inc., Holdings: 0: holding that federal courts have statutory habeas jurisdiction over petitions filed by guantanamo detainees 1: holding that prison conditions are those aspects of prison life affecting the entire prison population 2: holding that prison guards who are employees of a private prison management firm are not entitled to a qualified immunity from suit brought by prisoners under  1983 3: recognizing that prison regulations designed to provide security are not only legitimate but are central to all other correctional goals 4: holding that architects who designed prison were not liable for pretrial detainees suicide


Input: 154 F.3d 1129, 1132 (10th Cir.1998) (quotations and citations omitted). As a general rule, the grids may not be used conclusively if the claimant has nonexertional impairments that limit the ability to do the full range of work within a classification. See Thompson v. Sullivan, 987 F.2d 1482, 1488 (10th Cir.1993); see also 20 C.F .R. § 404.1569a(c)(2) (stating that “[i]f your impairment(s) and related symptoms, such as pain, only affect your ability to perform the nonexertional aspects of work-related activities, the [grids] do not direct factual conclusions of disabled or not disabled”). However, they may be used to direct a conclusion if the claimant’s nonexertional impairments do not significantly reduce the underlying job base. See Evans v. Chater, 55 F.3d 530, 532 (10th Cir.1995) (<HOLDING>). This is because only significant Holdings: 0: holding that the record should contain evidence that the employee had demonstrated an ability to perform adequately 1: holding that under pwdcra the inability to perform a particular job does not constitute a substantial limitation instead the impairment must significantly restrict an individuals ability to perform at least a wide range of jobs 2: recognizing the majority rule 3: holding that the ability to perform a substantial majority of work in rfc assessment suffices for purposes of grids 4: holding that application of the grids is inappropriate if a claimant suffers from nonexertional impairments which diminish his or her ability to perform a full range of work


Input: as a debtor-in-possession. The Debtor has stated that he delegated to Mr. Kaplan the responsibility for preparing his financial disclosures on behalf of his estate. Transcript 8/28/2012, 54:3-56:7; Audio recording dated 10/15/2012 @ 12:47 pm, Bky. No. 12-11063MDC; Audio recording dated 10/15/2012 @ 3:14 pm, Bky. No. 12-11063MDC. Mr. Kaplan is indubitably providing accounting services necessary for the administration of the Debtor’s estate. See, e.g., In re Renaissance Residential of Countryside, LLC, 423 B.R. 848, 860-61 (Bankr.N.D.Ill.2010). However, from this Court’s review of the record extant at the time of its decision to appoint a trustee, it did not appear that Mr. Kap-lan was an employee of the Debtor. See, e.g., F/S AirLease II, Inc. v. Simon, 844 F.2d 99, 108 (3d Cir.1988) (<HOLDING>). Rather, it appeared that Mr. Kaplan was an Holdings: 0: holding confirmation vested property in the debtor and therefore properly of the estate was not liable for postconfirmation taxes incurred by debtor 1: recognizing  327b not applicable because party was not employed by the debtor 2: holding that the creditors committee could not sue third party aidersandabettors because the participation of the sole shareholder and decisionmaker of the debtor rendered the debtor a participant 3: holding debtor could include property because the bank accepted payments directly from the debtor and had previously allowed the debtor to cure default 4: recognizing that if a debtor did not satisfy section 109e and if it was jurisdictional the court could not convert debtors case because it would have no authority whatever over debtor


Input: (1997) (during a chase, officers saw passenger open vehicle door and drop a Crown Royal bag, typically used to contain illegal drugs, out of vehicle). 38 . The Supreme Court recently reaffirmed that, where reasonable suspicion does' exist, ”[o]ur decisions make clear that questions concerning a suspect’s identity are a routine and accepted part of many Terry stops.” Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt County, 542 U.S. 177, 186-88, 124 S.Ct. 2451, 2458-59, 159 L.Ed.2d 292 (2004) (citing United States v. Hensley, 469 U.S. 221, 229, 105 S.Ct. 675, 680, 83 L.Ed.2d 604 (1985)). ’’[I]f there are articulable facts supporting a reasonable suspicion that a person has committed a criminal offense, that person may be stopped in order to identify him, to question h (Colo.2002) (<HOLDING>); People v. Gonzalez, 204 Ill.2d 220, 273 Holdings: 0: holding that questioning of passengers on bus including asking for drivers licenses and tickets constituted consensual encounter and passengers were free to decline to answer questions 1: holding that request of passenger in vehicle lawfully stopped for traffic infraction for her identification was consensual encounter where there was no evidence that defendant was intimidated or forced to comply with request 2: holding that if random suspicionless questioning of bus passengers for inspection of identification and tickets was consensual encounter it was not a violation of passengers fourth amendment rights 3: holding officers request for passengers identification during stop constituted lawful consensual encounter 4: holding that an encounter was consensual where the defendant was comfortable during the encounter chose not to leave and acquiesced to the officers request to answer questions


Input: Judge. In this medical malpractice action, Raymond Santa Lucia appeals from the cost judgment rendered after a jury verdict in his favor. He first contends the trial court abused its discretion in excluding from the cost judgment fees for Lawrence Forman and Dr. Hartley Mellish, the experts who provided testimony on the specific economic losses he incurred as a result of his injuries. The appellees properly concede Santa Lucia is entitled to recover these fees to the extent he can establish the fees were reasonable and necessary. See Payne v. Spier, 562 So.2d 440, 441 (Fla. 4th DCA 1990) (<HOLDING>). Santa Lucia also argues the trial court erred Holdings: 0: holding the expert witnesses were protected by witness immunity to ensure expert objectivity 1: holding expert testimony was based on reasonable medical probability where there were multiple possible causes and expert testified that one cause was more probable than the others 2: holding that the plaintiff was entitled to recover reasonable expert fees for a rehabilitation expert and economist 3: recognizing that the need for the expert was so great that the decision to preclude the expert effectively amounted to dismissal of case 4: holding that an expert that had provided consulting services to the defendant relating to the litigation was not precluded from serving as an expert for the plaintiff


Input: for possession of thirty-five pounds of marijuana at an unspecified time in the past. We question whether this one-time possession charge constitutes an “extensive history” or “trafficking.” Compare NMSA 1978, § 30-31-20(A)(3) and (B) (2006) (defining trafficking as possession of “a controlled substance enumerated in Schedule I or II that is a narcotic drug; ... a controlled substance analog of a controlled substance enumerated in Schedule I or II that is a narcotic drug; or . . . methamphetamine, its salts, isomers and salts of isomers” with intent to distribute and stating that such trafficking is punishable as a first or second degree felony), with § 30-31-22(A)(1)(a) and (b) (defining possession with intent to distribute marijuana in an amount less than one hundred 6th Cir. 1990) (<HOLDING>). {24} The State cites to State v. Lara, 110 Holdings: 0: holding that officers were not justified in conducting a protective sweep of the suspects garage and backyard incident to his arrest for possession of marijuana in the back yard because the government pointed to no specific articulable facts suggesting that someone else was on the premises who posed a danger to the officers 1: holding that the officers were justified in conducting a protective sweep incident to the defendants arrest on outstanding warrants because the officers had information that the defendant was suspected of running a methamphetamine operation on the premises other people were living there and assisting the defendant and at the time the sweep began the defendant had not yet been located 2: holding that the protective sweep incident to the defendants arrest in front of his house on suspicion of murder was not justified because the evidence that an accomplice was involved in the murder did not equate to evidence that someone would be hiding out in the defendants house a month after the crime occurred and at the time of the arrest the officers were not chasing the defendant from a crime scene 3: holding that officers were not justified in conducting a protective sweep incident to the defendants arrest despite the defendants alleged involvement with narcotics and possession of weapons because the defendant did not resist and there was no noise or other evidence suggesting anyone else was present in the house 4: holding that the officers were entitled to conduct a protective sweep because they located the defendant in the house there were other people present and the defendant was actively trying to conceal drags


Input: or none at all." Id. at 110, 69 S.Ct. 463 (citing Central Lumber Co. v. South Dakota, 226 U.S. 157, 160, 33 S.Ct. 66, 57 L.Ed. 164 (1912)). 52 . In support of this conclusion, the Court referenced the following precedent: (1) Penn Central Transp. Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978) (reaffirming prior holdings that local governments may enact legislation intended to maintain the character and aesthetics of a municipality.); (2) Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974) (upholding an ordinance that restricted land use to one-family dwellings on the grounds that a city's police powers encompass maintaining esthetics and societal values.); (3) Berman v. Parker, 348 U.S. 26, 33, 75 S.Ct. 98, 99 L.Ed. 27 (1954) (<HOLDING>) 53 . (Pl.’s Mem. in Supp. of Mot. for Summ. Holdings: 0: holding that it is within the power of the legislature to determine that the community should be beautiful as well as healthy spacious as well as clean wellbalanced as well as carefully patrolled 1: holding that the fourth amendment protects property as well as privacy 2: holding that plaintiff bears burden of production as well as persuasion 3: holding that the state as well as the defendant has a right to rely on compliance with rule 16 4: holding that medical evidence as to nexus to service expressed as very well might have been although not conclusive suffices to well ground claim


Input: affairs that did not include the regulatory scheme, and therefore, Defendant cannot claim any adverse impact to his investment expectations. Loveladies Harbor Inc. v. United States, 28 F.3d 1171, 1177 (Fed.Cir.1994). With respect to the final factor concerning the “character of the government action,” the Court concludes that this factor weighs against a conclusion that the Government’s regulation in this case amounts to a taking. In considering the character of the government action, courts consider (1) the extent to which the action is retroactive, and (2) whether the action targets a particular individual. In this case, the Act is not being applied retroactively, and Defendant has not demonstrated that he is being singled out for application of the Act. See Brace, 72 Fed.Cl. at 356 (<HOLDING>). Accordingly, the Court concludes that Holdings: 0: recognizing that an owners opinion testimony on the value of his property cannot be based on naked conjecture or solely speculative factors 1: recognizing the potential for discrimination by local officials among similarly situated property owners who are underrepresented in the general population 2: holding that all property owners affected by a residential use permit are necessary parties 3: recognizing that individuals are generally not similarly situated when different decision makers are involved in the respective disciplinary action 4: recognizing that act and wetlands regulations are generally applicable to all similarly situated property owners and cannot be viewed as being directed solely at the plaintiffs


Input: issues relating to denial of due process because of prosecutorial misconduct and a Sixth Amendment violation of being denied counsel during pre-trial proceedings were not properly raised below); White v. State, 324 Md. 626, 640, 598 A.2d 187, 194 (1991) (citing Md. Rule 8-131(a) in holding that a claim that the defendants were deprived of their constitutional right to present witnesses in their defense was not properly before the Court because the argument was not made to the trial court); In re John H., 293 Md. 295, 303, 443 A.2d 594, 598 (1982) (citing Rule 885, a predecessor of Md. Rule 8-131(a), not reaching the issue of whether a statute was constitutional because the issue of constitutionality of the statute was not argued to the trial judge n. 2, 772 A.2d 1260, 1266 n. 2 (2001) (<HOLDING>). Rule 8-131(a) states: “RULE 8-131. SCOPE OF Holdings: 0: holding that claims based on an alleged violation of double jeopardy constitute fundamental error which absent a knowing and voluntary waiver may be raised for the first time on appeal 1: holding that claims which were not presented to the motion court cannot be raised for the first time on appeal 2: recognizing in dicta the court of special appeals howell holding that double jeopardy claims may not be raised for the first time on appeal 3: holding that an issue not raised in the trial court cannot be raised for the first time on appeal 4: recognizing the general rule that a court of appeals will not consider an issue raised for the first time on appeal


Input: prove the truth of the matter asserted in the statement constitutes inadmissible hearsay). Therefore, the district court was under no obligation to independently evaluate the articles and studies upon which Mr. Firstenberg’s experts relied in reaching their conclusions. See Wilde v. Westland Dev. Co., 2010-NMCA-085, ¶ 28, 148 N.M. 627, 241 P.3d 628 (stating that the district court may not consider inadmissible hearsay in deciding a summary judgment motion). {29} Rather, to the extent that Mr. Firstenberg wished to rely upon the contents of the articles and studies to demonstrate general causation, it was incumbent upon him to establish, via his experts, that the articles constituted reliable scientific authority. See Baerwald v. Flores, 1997-NMCA-002, ¶ 18, 122 N.M. 679, 930 P.2d 816 (<HOLDING>); see also Andrews, 2011-NMCA-032, ¶ 9 Holdings: 0: holding that the trial court may rely on the testimony of an expert even if the expert did not interview the mother daughter or nonocs service providers 1: holding that an expert witnesss testimony on an ultimate issue was admissible recognizing that the expert did not specifically testify that the defendant was guilty or that as a matter of law the facts satisfied the applicable legal standard 2: recognizing that an expert may rely on an article because it is the expert who determines based on study and experience whether the article is reliable 3: holding that an expert opinion on a question of law is inadmissible 4: holding that the court may consider an article not attached to the complaint in determining whether to dismiss the complaint because the article was integral to and explicitly relied on in the complaint and because the plaintiffs did not challenge its authenticity


Input: 179, 183, 86 P.3d 139 (2004), our Supreme Court held that the 2002 amendments to the SRA require that sentencing courts include previously “washed out” prior convictions in calculating a defendant’s offender score at sentencing for crimes committed on or after June 13, 2002. Since Winings committed his crime on March 24, 2003, the sentencing court properly included his previously “washed out” convictions. ¶43 A majority of the panel having determined that the following portion of the opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered. ¶44 Affirmed. Quinn-Brintnall, C.J., and Houghton, J., concur. 1 The minute orders (one minute order pertains to the first degree burglary counts P.3d 269 (2001) (<HOLDING>). And in State v. Royse, 66 Wn.2d 552, 555-57, Holdings: 0: holding that the nature and circumstances of the charged offenses and the weight of the evidence against the defendant of  3142g1 and 2 are best assessed in the charging district 1: holding that failure to identify the defendant in the information is an omission of an essential element because the primary purpose of the charging document is to inform the defendant of the nature of the accusations brought against him 2: holding that failure to identify the victim where the charge was interfering with domestic violence reporting is an omission of an essential element because the crime must be committed against a family or household member 3: holding if the state does not allege in the charging document the tolling of the statute in an otherwise sufficient information or indictment a defendant may by his actions waive this defense 4: holding that the omission of an element is subject to harmless error analysis


Input: the same reasons set forth in the District Court’s opinion, we reject Bailey-El’s contention that personal jurisdiction exists with respect to the USP Lee defendants. As the District Court correctly noted, there is no provision for nationwide sendee of process under 28 U.S.C. § 1915(d) and none of the USP Lee defendants has sufficient “minimum contacts” with New Jersey to confer personal jurisdiction. The District Court for the District of Columbia dismissed Bailey-El’s complaint against Harrell Watts, the National Inmate Appeals Administrator for the BOP, holding that Watts enjoyed quasi-judicial immunity. Bailey-El argues that the Dis trict Court should have conducted a qualified immunity analysis under Cleavinger v. Saxner, 474 U.S. 193, 206-07, 106 S.Ct. 496, 88 L.Ed.2d 507 (1985) (<HOLDING>). We need not decide whether the doctrine of Holdings: 0: holding that prison disciplinary hearing committee members are entitled to qualified immunity 1: holding that even if the prison disciplinary committee failed to follow a state administrative regulation requiring the committee to convene within eight calendar days after commission of prison offense or its discovery the noncompliance did not of itself violate due process 2: holding that defendants are not entitled to qualified immunity 3: holding that a prison disciplinary committee violated inmates rights to procedural due process by refusing to call their witnesses even though the disciplinary hearing took place in the aftermath of a riot and the resulting disciplinary caseload was ex tremely heavy 4: holding that prison guards who are employees of a private prison management firm are not entitled to a qualified immunity from suit brought by prisoners under  1983


Input: the late arraignment or from any defect in the arraignment colloquy itself. Therefore, he has shown no violation of Idaho Criminal Rule 10 and no deprivation of due process in the arraignment that was conducted. Herrera also asserts that the district court erred by allowing the late filing of the amended information. His appellate argument implies that until the day of trial, he was entirely unaware that the amended information containing a persistent violator al legation had been filed by the prosecutor without leave of court. In the proceedings below, defense counsel never expressly said that he had not informed Herrera of the sentence enhancement allegation in the amended information that had been improperly filed months earlier. Herrera neverthel P.3d 397, 399-400 (Ct.App.2008) (<HOLDING>). Herrera has shown no trial prejudice Holdings: 0: holding that the defendants due process rights were violated when the trial judge singled out the only defense witness and indicated to that witness that he expected the witness to he and would personally ensure that the witness was prosecuted for perjury and thereby effectively drove that witness off the stand 1: holding that the state courts determination that the petitioner could not show prejudice because he did not allege that the witness was available to testify was a reasonable application of federal law to the facts of the case 2: holding that the governments late disclosure of a statement by a government witness did not require reversal under the jencks act where the defendants were allowed a second chance to crossexamine the witness 3: holding that reversal for late disclosure of a states witness requires trial prejudice and defendants claim that he turned down an attractive plea offer because he thought the state could not prove its case without the witness does not demonstrate prejudice 4: holding that prejudice existed when an attorney was both the trial counsel and a necessary witness