Input: § 516.16; and (4) A symbol or letter in its records denoting that the Plaintiffs were regarded as section 7(i) exempt commissioned salespeople, as required by 29 C.F.R. § 516.16. Although the Plaintiffs may be correct that the Defendant failed to comply with the DOL’s recording requirements, such a failure would not result in a finding that the retail-service exemption is inapplicable. Rather, this Court has determined that, when an employer fails to comply with the DOL’s recording requirements, the Court should simply issue an injunction requiring the employer to comply with those requirements in the future. Reich v. Cole Enter., Inc., 901 F.Supp. 255, 260 (S.D.Ohio 1993), aff'd, 62 F.3d 775 (6th Cir.1995); see Brennan v. Valley Towing Co., Inc., 515 F.2d 100, 111-12 (9th Cir.1975) (<HOLDING>). Accordingly, even though the Defendant may Holdings: 0: recognizing that when the employer had failed to comply with the reporting requirements of 29 cfr  5162 an order requiring prospective compliance was proper but that additional sanctions for the past violation were not necessary 1: holding deathpenalty sanctions inappropriate where party inadvertently failed to comply with courts order and nothing in the record  even approaches the flagrant bad faith or abuse necessary for the imposition of such sanctions 2: holding that substantial compliance with the requirements for maintaining nonimmigrant student status under 8 cfr  2142f does not constitute substantial compliance with the requirements for obtaining an extension of stay under 8 cfr  2141c 3: holding sanctions order not final where the amount of sanctions had not yet been determined 4: holding that where party had reasonable grounds to believe conduct was in compliance with the district courts order imposition of sanctions was not warranted and constituted an abuse of discretion


Input: the complaint. Gregorian, 871 F.2d at 1523; Pena, 770 F.2d at 815. Hammer contends that he first learned of the complaint approximately two years after it was filed. The bankruptcy court concluded that appellees effected service when they sent, by first class mail, a summons and complaint to Hammer at the address listed on his bankruptcy petition. Service in this fashion is expressly authorized by Bankruptcy Rule 7004(b)(9). Hammer initiated these proceedings by filing his petition, and it was his responsibility to apprise the bankruptcy court of his forwarding address. See Pena, 770 F.2d at 815 (affirming default judgment where defendant foreign corporation failed to provide correct address to state licensing authority); see also In re Muzquiz, 122 B.R. 56, 59 (Bkrtcy.S.D.Tex.1990) (<HOLDING>). Hammer was properly served under the Holdings: 0: holding that rule 415f worked to cure deficiencies in service of process in action to enforce a judgment lien on real estate where service was provided at debtors last residential address known to lienholder because address was used during underlying lawsuit lienholders attorney checked county record to verify address information debtor did receive summons and residential address was on the former situs of debtors business 1: holding that the appellant had not changed his residence from his registered address despite the fact that the house had never had electricity service during the time that he had lived there 2: holding trial court abused its discretion by not extending the time for service where the statute of limitations had run and where service had been achieved at the time of the hearing on the motion to dismiss 3: holding service not defective where debtor had failed to notify court of his new address 4: holding service of process defective when the return receipt is not signed by the addressee


Input: the maximum allowed homestead exemption by that amount. See, e.g., In re Stanley, 2010 WL 2103441 at *1 n. 1 (Bankr. M.D.N.C. May 20, 2010) (finding that a debt- or’s available wildcard exemption was limited to any available amount not claimed under a homestead exemption). 15 . As a result of the court’s amendment of Provision A to reflect a combined homestead exemption of $60,000.00, this figure is also incorrect. 16 ."The exemptions provided in The Bankruptcy Code, 11 U.S.C. § 522(d), are not applicable to residents of [North Carolina], The exemptions provided by this Article and by other statutory or common law of this State shall apply for purposes of The Bankruptcy Code, 11 U.S.C. § 522(b).” N.C. Gen.Stat. § lC-1601(f). See In re Connor, 419 B.R. 304, 306 (Bankr.E,D.N.C.2009) (<HOLDING>); In re Cain, 235 B.R. 812, 815 Holdings: 0: holding that a foreign subsidiary that is not registered to do business in north carolina has no place of business employees or bank accounts in north carolina does not design manufacture or advertise its products in north carolina and does not solicit business in north carolina cannot be subject to personal jurisdiction in north carolina even if some of the companys products do enter north carolina through the stream of commerce 1: holding that north carolina has jurisdiction over a claim arising from an accident in mississippi because the original offer of employment was accepted over the telephone while the employee was in north carolina 2: holding that because north carolina has opted out of the exemptions provided under 11 usc  522d the exemptions available for bankruptcy debtors in north carolina depend upon the law of north carolina 3: holding that a debtor is required to claim any exemptions under north carolina law because north carolina is an opt out state under 11 usc  522b 4: holding that north carolina court lacked personal jurisdiction over illinois bank even though some of its customers resided in north carolina and loan proceeds were used in north carolina


Input: that the district court erred in enhancing their sentence based upon a conviction subsequent to another conviction found in the same proceedings. The Smith court rejected the defendants’ argument that Apprendi required that the jury make specific findings as to whether the multiple counts qualified as subsequent offenses under § 924(c)(1)(C). Id. The Smith court averred that “[bjecause Ap-prendi does not apply to increases of the mandatory minimum, Harris, Deal, and McMillan preclude the Appellants’ argument.” Id. at 349; McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986) (upholding a statute that permitted a sentencing court to find facts that raised the mandatory minimum sentence); Harris v. United States, 536 U.S. 545,122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (<HOLDING>). We cannot hold that Deal has been overruled Holdings: 0: holding that apprendi does not apply retroactively in florida in postconviction proceedings to cases that were final on direct review at the time of the apprendi decision 1: holding that decision in penn survives lehmann 2: holding that where a conviction survives an apprendi challenge under plain error review a sentence appropriate for that conviction also survives 3: holding that the decision in mcmillan survives apprendi 4: holding that the apprendi decision is not applicable on collateral review


Input: argues that, even if he was delivered to the State of California under Article 14, UCMJ, the issuance of a military discharge certificate (Form DD-214) while he was still in civilian custody vitiated the article, thereby terminating military jurisdiction over him. The cases cited by the petitioner in support of his argument are inapposite. They address the issue of jurisdiction in the context of an accused awaiting trial on pending charges before a court-martial. In this case, jurisdiction over the petitioner had already attached before issuance of his dishonorable discharge certificate; it continues through sentence and punishment. Rule for Courts-Martial 202(c)(1), Manual for Courts-Martial, United States (1995 ed.). See also Coleman v. Tennessee, 97 U.S. 509, 24 L.Ed. 1118 (1878)(<HOLDING>). The issuance of the discharge certificate Holdings: 0: holding that the carrying out of an execution after the first execution attempt had failed did not amount to cruel and unusual punishment 1: holding that an attack on the computation and execution of a sentence must come in the form of a  2241 petition 2: holding that principle of continuing jurisdiction permitted execution of military sentence despite lapse of many years and appellants severance of all connection with the military 3: holding that  2255 is unavailable to attack execution of sentence 4: holding that a sentence structured with three years incarceration suspended and eight years of sex offender probation was a true split sentence


Input: examining radiologist, determined that an x-ray of the claimant’s left knee was normal. (Tr. 547), that Dr. Chaplynsky stated that an x-ray of the lumbar spine showed no evidence of fracture or malalignment, and that Dr. Saluja observed that an MRI of the lumbar spine was normal. (Tr. 547). As will be explained below, the Court finds that Third Circuit precedent does not mandate substantial weight to be given to VA disability determinations, the ALJ gave sufficient consideration to Plaintiffs VA disability rating, and the weight accorded to the VA rating is supported by substantial evidence. i. VA Disability Compensation The VA disability rating process is substantively different from the social security disability determinations. See e.g., Bowyer v. Brown, 7 Vet.App. 549, 552 (1995) (<HOLDING>); Hannington v. Sun Life & Health Ins. Co., 711 Holdings: 0: holding that an evidentiary hearing is not required prior to the termination of social security disability benefits 1: holding that a social security disability determination is a legal proceeding 2: holding social security disability payments and military disability payments are separate property after dissolution of marriage 3: recognizing that there are significant differences in the definition of disability under the social security and va systems 4: holding parent entitled to credit for any social security disability benefits paid to child as a result of parents disability


Input: 435 U.S. 313, 319, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978), and Congress exercised its authority to regulate and define the government of the Virgin Islands through the Organic Act, originally passed in 1936, and substantially revised in 1954 (when it became known as the Revised Organic Act (“ROA”)). See 48 U.S.C. § 1541 et seq. The keystone of the government’s argument is that while the ROA lists the specific provisions of the United States Constitution that are applicable to the Virgin Islands, it omits any mention of the Eleventh Amendment. The United States argues that the deliberate omission of the Eleventh Amendment expresses Congress’s intent to exclude the Virgin Islands from the protections afforded by that Amendment. See Gov’t of V.I. v. Bryan, 818 F.2d 1069, 1072 (3d Cir.1987) (<HOLDING>). The GVI counters with cases such as Harris v. Holdings: 0: recognizing that any attributes of sovereignty the virgin islands has derive from the revised organic act 1: holding that amendment to bankruptcy act was unconstitutional because it infringed upon state sovereignty 2: recognizing that virgin islands supreme court would essentially have the final word on the interpretation of local virgin islands law 3: recognizing the virgin islands legislature as the sovereign author of local jurisdictional law including section 39c even before passage of the 1984 amendments to the revised organic act sometimes referred to as the virgin islands constitution 4: recognizing that palmyra is under united states sovereignty


Input: by a prosecution witness, that there was a third individual involved in the October 8 robbery — specifically, a second individual riding in the van. Notably, counsel observed that the jury had "all the instructions on aiding and abetting,” and he did not accept the court’s invitation to comment further on the court’s proposed response. 6 . Under the Government’s theory of the case, Hopson appeared on the scene of the crime as the driver of the getaway van. 7 . We agree that the Government adduced sufficient evidence to satisfy the jurisdictional element as presently interpreted by this court. For example, Sanese's owner testified that Sánese uses money from its vending machines to purchase a variety of out-of-state goods. See United States v. Smith, 182 F.3d 452, 456 (6th Cir.1999) (<HOLDING>). 8 . We note that Hopson apparently failed to Holdings: 0: holding that because the victims which were robbed of money by the defendant did substantial business in beer wine and tobacco products virtually none of which originated in the state where the victims did business the government had demonstrated a de minimis effect on interstate commerce 1: holding that the requisite effect on interstate commerce for a 18 usc  1951 conviction is demonstrated by inter alia evidence that restaurant robbed by defendant had often purchased food products from outofstate vendors and that the money taken by defendant would have been used to buy more food products 2: holding that dairy products that originated outside of texas and shipped to texas then stopped in dallas were part of a continuous movement in interstate commerce the truck drivers who delivered the products locally in texas were engaged in interstate commerce for purpose of the motor carrier act exemption 3: holding that the government can satisfy the hobbs act interstate commerce requirement by showing that the robbery resulted in the closure of a business engaged in interstate commerce 4: holding that the offense of sexual battery requires the state prove the victims lack of consent regardless of the victims age and charge the jury on the same


Input: to include all his arguments in one petition. Therefore, we cannot expect that he would have known that the effect of the delay, over which he had no control, would be the loss of his ability to file a petition at all. The facts of this case constitute one of the rare occasions in which equitable tolling under AEDPA is appropriate. The court chose to accommodate the government’s delay in providing King with the voir dire transcripts by issuing a modified scheduling order and in doing so equitably tolled the statute of limitations, given the circumstances of this case. See In re Maughan, 340 F.3d 337, 344 (6th Cir.2003) (ordering time to file extended until the adverse party produced missing documents); Glamer v. United States Dep’t of Veterans Admin., 30 F.3d 697, 701 (6th Cir.1994) (<HOLDING>). Otherwise, the government could prevent any Holdings: 0: holding under the federal tort claims act that plaintiff armed with the facts about the harm done to him is obligated to protect himself by seeking advice in the medical and legal community and to excuse him from promptly doing so by postponing the accrual of his claim would undermine the purpose of the limitations statute 1: holding that because the va failed in a legal duty to glarner by not providing him with the proper form his claim under the federal torts claim act was equitably tolled 2: holding statute of limitations should not be equitably tolled for taxpayer who filed a refund claim after the applicable statute of limitations 3: holding that  2401b of the ftca can be equitably tolled 4: holding that because the pro se plaintiff failed to raise a claim under the rehabilitation act we would not consider this claim for the first time on appeal


Input: or applying these statutes, Cable One argues classifying it as a telecommunications company under A.R.S. § 42-14401 is contrary to these authorities. We reject this argument. These authorities concern regulation, not taxation. ¶ 47 Although Congress and the FCC have imposed various regulations on VoIP providers and have preempted a variety of efforts by the states to regulate VoIP providers, neither Congress nor the FCC has taken any action to preempt state taxation of VoIP providers. See generally Internet Tax Freedom Act Amendments Act of 2007, Pub. L. No. 110-108, 121 Stat. 1024 (excluding voice services utilizing Internet protocol for which there is a charge from moratorium barring state taxes on “Internet access”); In re Vonage Holdings Corp., 19 F.C.C.R. 22404, ¶ 1 (2004) (<HOLDING>), aff'd, Minn. Pub. Utils. Comm’n. v. F.C.C., Holdings: 0: holding that state laws must yield to federal law when the former poses a substantial threat to federal laws ability to accomplish its mission 1: holding federal law preempts state regulation of voip provider but expressing no opinion on applicability of state laws generally governing such companies including laws concerning taxation 2: holding that the flsa preempts certain state law claims 3: holding that general maritime law preempts state law 4: holding that in interpreting a contract we look to the conflict of laws rules of  the forum state  to determine which states laws will be controlling


Input: Ford Motor refused. The parties thereafter appeared before the Policy Board, which affirmed the notice of termination, effective 30 days thereafter. Lanham Ford then filed suit in the Prince George’s County Circuit Court, following which the case arrived here. Lan-ham Ford complains that Ford Motor provided it with insufficient due process prior to and during the hearing before the Policy Board and asks this Court to grant it a new hearing with additional due process rights. III. In its Motion to Remand, Lanham Ford argues that Ford Motor has failed to present prima facie evidence that the amount in controversy satisfies the $75,000 jurisdictional threshold for federal jurisdiction. See 28 U.S.C. § 1332(a); see also Lupo v. Human Affairs Int’l, Inc., 28 F.3d 269, 273-4 (2d Cir.1994) (<HOLDING>). It reiterates the argument that the object of Holdings: 0: holding that the burden is on the party seeking to exercise jurisdiction by clearly alleging facts sufficient to establish jurisdiction 1: holding that the burden is on defendant as the party invoking removal jurisdiction to establish the existence of a sufficient amount in controversy 2: holding that the burden is on the defendants to establish the existence of absolute legislative immunity 3: holding that the district court erred in not determining whether the amount in controversy necessary to create diversity jurisdiction was met at the time of removal 4: holding that the burden is on the plaintiff to allege facts sufficient to establish jurisdiction


Input: complaint. See also Chandler v. City of Dallas, 2 F.3d 1385, 1393 (5th Cir.1993) (“An employer’s belief that an employee is unable to perform one task with an adequate safety margin does not establish per se that the employer regards the employee as having a substantial limitation on his ability to work in general.”), cert. denied, — U.S. -, 114 S.Ct. 1386, 128 L.Ed.2d 61 (1994); Partlow v. Runyon, 826 F.Supp. 40, 43-44 (D.N.H.1993) (quoting Forrisi v. Bowen, 794 F.2d 931, 933 (4th Cir.1986) (“ ‘An employer does not necessarily regard an employee as handicapped [under the Rehabilitation Act] simply by finding the employee to be incapable of satisfying the singular demands of a particular job.’ ”)). See also, Horton v. Delta Air Lines, Inc., 1993 WL 356894 *4 (N.D.Cal. Sept. 3, 1993) (<HOLDING>). B. Is Plaintiff a “Qualified Individual with Holdings: 0: holding that plaintiffs evidence showing that defendant refused to allow her to work as flight attendant because of her weight failed to demonstrate that defendant perceived her as substantially limited in any major life activity 1: holding that evidence of discussions with a supervisor regarding a health condition submission of various doctors notes to a former supervisor hospitalization and the occurrence of several telephone calls reporting her hospitalization was insufficient to show a record of disability because the plaintiff failed to demonstrate that her impairment substantially limited a major life activity 2: holding that plaintiffs attempt to amend her allegations through opposition would not be allowed inasmuch as complaint did not identify any major life activity that had been jeopardized due to her alleged mental impairment 3: holding that evidence that defendant provided plaintiff with certain accommodations for her condition was insufficient to establish that defendant regarded her as disabled for purposes of ada absent showing that the defendant maintained any misperceptions about her condition 4: holding that plaintiffs claim that she was disabled because her major life activity of breathing was substantially limited by her respiratory condition would provide a basis for protection under the ada


Input: cannot be materially distinguished. The officers initiated the search of this automobile without consent or probable cause. Only under the proper circumstances may an automobile be validly searched as a search incident to arrest. Miller v. State, 373 So.2d 1004, 1006 (Miss.1979). This ease did not present the proper circumstances constituting a valid search incident to arrest. Without relying on hindsight, the analysis does reach the point where the officers allegedly smelled marijuana since they were unlawfully in the automobile in the first place. Townsend was away from the car when arrested, and the car was closed up for towing. He had no access whatsoever to the car at the time of the search. See New York v. Belton, 453 U.S. 454, 461, 101 S.Ct. 2860, 2864-65, 69 L.Ed.2d 768 (1981) (<HOLDING>). The majority has essentially looked at the Holdings: 0: holding that after making an arrest of the driver of a vehicle the police may search the passenger compartment of the vehicle 1: holding that search of golf bag was not legal as search incident to arrest because it was not in passenger compartment of vehicle or otherwise within arrestees immediate control 2: recognizing that permissive search of car compartment incident to arrest is based on the fact that compartment is within reach of the arrestee 3: holding police incident to arrest of occupant of automobile may search entire passenger compartment of vehicle 4: holding that although search of passenger compartment was legal search of trunk was not


Input: judgment entry makes clear that what the district court did was properly, albeit belatedly, decide questions of law on the basis of undisputed facts. The interpretation of an insurance policy presents a question of law for the court, not the jury, to decide. See, e.g., Diocese of Winona v. Interstate Fire & Casualty Co., 89 F.3d 1386, 1392 (8th Cir.1996); Marren v. Mutual Life Insurance Co., 84 F.3d 1068, 1070 (8th Cir.1996). Although the district court should have recognized appellants’ right to a jury trial, the district court correctly decided that it, and not the jury, was the decision-maker on the issue of contract interpretation, even though it effected that decision by improperly declaring the jury advisory. See, e.g., Alexander v. Gerhardt Enterprises, Inc., 40 F.3d at 191-93 (<HOLDING>); United States v. Williams, 441 F.2d 637, 645 Holdings: 0: holding that a trial courts judgment must comply with the statutory requirement that the judgment contain written findings of fact and conclusions of law 1: holding that court is not required to state findings of fact and conclusions of law when denying  3582 motion 2: holding that the trial courts oral expression in open court of its future intention to render a judgment was not itself a judgment but rather the trial courts written findings of fact and conclusions of law were its judgment 3: holding courts attempt to recognize actual jury verdict was improper in wake of landgraf but affirming judgment on basis of courts own findings of fact and conclusions of law 4: holding that motion accepting judgment but requesting findings of fact and conclusions of law was not directed against the judgment


Input: on the merits, and it is undisputed that he was in no way involved in the condemnation proceedings that were conducted in the state court action. The parties agree that the declaration of taking was not filed against Koschoff until July 1, 2010 — a full fifteen years after the conclusion of the other plaintiffs’ condemnation proceedings. Both claim and issue preclusion require that the parties in a prior and latter suit be identical or in privity to each other. See Chada v. Chada, 756 A.2d 39, 42-43 (Pa.Super.2000) (res judicata requires identity of persons and parties to both actions; an issue may be precluded if the party against whom it was asserted was a party or in privity with a party in the prior case). Koschoff was n, 460 U.S. 462, 476, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983) (<HOLDING>). Specifically, the doctrine prevents “cases Holdings: 0: holding that district court lacked power to decide personal jurisdiction issue already decided by district of columbia superior court 1: holding that the federal district court lacked subject matter jurisdiction to review plaintiffs complaint to the extent they sought review  of the district of columbia court of appeals denial of their petitions 2: recognizing district court application of the same rule 3: holding that the federal district court had no subject matter jurisdiction to review the courts denial of a particular application for admission to the district of columbia bar 4: holding that federal district court lacked subjectmatter jurisdiction to review the decision of a district of columbia high court determining application of a local rule to the case before it


Input: 2005). 2 . This court has not prohibited the filing of successive motions under rule 3.800(b)(2) so long as the motions are filed prior to thé initial brief. Generally, we try to accommodate counsels’ efforts to resolve sentencing issues for defendants while they still have legal representation. There is a point, however, where such motions can become an abuse of the system. In this case, all of the issues raised in .the second motion could have been discovered in time to be filed with the initial motion. 3 .We note that in Conroy we stated that the period could be extended for good cause, but not after it had expired. 933 So.2d at 687. 4 . We are aware that some existing case law has reviewed similar issues under rule 3.800(b). See Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006) (<HOLDING>). 5 . We note that although Mr. Griffin's cost Holdings: 0: holding the constitutional issue was not preserved and thus declining to issue an advisory opinion 1: holding that the issue of the applicability of section 8211 of the real property article to the facts of the case had not been preserved for appellate review where the issue was raised for the first time in the appellants motion to alter or amend the judgment under rule 2534 2: holding that an issue is preserved for appeal where the issue was sufficiently raised for the court to rule on it   3: holding a crime and time letter admissible where issue was preserved by motion under rule 3800b 4: holding under former circuit court rule 76 the denial of the defendants directed verdict motion was not preserved for appeal where he failed to renew the motion after presenting evidence


Input: inquiry, then, the Board had no reason to consider the absence of enforcement. Finally, Guardsmark argues that the Board erred, by failing to consider the chain-of-command rule’s purpose, namely “to establish a method for efficiently reporting problems and having problems resolved- [in order .to] maintain an orderly work progression and resolve problems in a prompt manner.” Guardsmark’s Opening Br. 15. Although efficient resolution of disputes - may well represent a valid business purpose, Guardsmark never argued, neither here nor before the Board, that this purpose represents a special circumstance necessary to employee discipline or company production. Cf. Stanford Hosp.; 325 F.3d at 338 (citing Beth Israel Hosp. v. NLRB, 437 U.S. 483, 492-93, 98 S.Ct. 2463, 57 L.Ed.2d 370 (1978)) (<HOLDING>). Nor did the company argue, as it must to Holdings: 0: holding that the federal expert witness compensation rules are in direct conflict with the state rules even when the state rules allow for a greater recovery 1: holding that even in a public forum the government may impose reasonable restrictions on the time place or manner of protected speech provided the restrictions are justified without reference to the content of the regulated speech that they are narrowly tailored to serve a significant governmental interest and that they leave open ample alternative channels for communication of the information 2: holding that in the context of solicitation rules such circumstances are required to justify restrictions on solicitation during nonworking time 3: holding that a quick look analysis was inappropriate for restrictions imposed by professional association of dentists on member advertising where the likelihood of noncompetitive effects of restrictions were not obvious and restrictions could plausibly be thought to have procompetitive effect on competition 4: holding that reasoning which would justify the arrest by the search and at the same time justify the search by the arrest  will not do


Input: a claim under § 1500, the claim pending in another court must arise from the same operative facts, and must seek the same relief.” Id. Because the claim in the district court sought "distinctly different” relief than the claim in this court, this court was not divested of jurisdiction under § 1500. Id. at 1554. 11 . Because the court finds that plaintiffs did not have a claim “pending” in the federal district court for the District of Massachusetts when they filed in this court, the court need not address whether their “claims” are the same in both courts for the purposes of § 1500. Cases in this court that have involved later-filed district court actions have not been dismissed for lack of jurisdiction under § 1500 even if both claims were the same. See Hardwick, 72 F.3d at 885 (<HOLDING>); Teegarden, 42 Fed.Cl. at 255 n. 3 ("The court Holdings: 0: holding that notice of appeal did not divest the district court of jurisdiction at the time it was filed because a motion for reconsideration was pending 1: holding that the district court did not have jurisdiction and remanding the matter to state court 2: holding that the laterfiled district court action did not divest this court of jurisdiction even though the court below had found that there was no material difference in the operative facts in the two actions and were the same claims for the purposes of  1500 3: holding that summary judgment on one claim that reduced amount in controversy below statutory minimum did not divest court of jurisdiction 4: holding that a 19day difference between the filings of the state court and federal court actions was immaterial given the absence of progress in the statecourt action and the substantial proceedings that had occurred in the federal court action


Input: viewed with caution, considering the incentives to lie in order to avoid punishment or to shift blame to another person. Id. (citing Blake v. State, 971 S.W.2d 451, 454 (Tex.Crim.App.1998)); Cantelon, 85 S.W.3d at 460 (noting same policy served by article 38.141 regarding informants); see Burton v. State, 442 S.W.2d 354, 357 (Tex.Crim.App.1969) (approving instruction). When the State relies upon testimony that is required by statute to be corroborated, it is error for the trial court not to instruct the jury that the defendant cannot be convicted on such testimony unless there is other evidence tending to connect the defendant with the offense and that evidence showing only the commission of the offense is insufficient. See, e.g., Herron v. State, 86 S.W.3d 621, 631 (Tex.Crim.App.2002) (<HOLDING>); Saunders, 817 S.W.2d at 690 (same); Holdings: 0: holding that failure to instruct the jury that accomplice testimony must be carefully scrutinized weighed with great care and received with caution was plain and reversible error 1: holding failure to instruct jury on requirement of corroboration of informants testimony is error 2: holding that the district courts failure to instruct the jury as to the proper standard of proof constituted plain error 3: holding failure to instruct jury as to requirement of corroboration of accomplice witness testimony was error 4: holding that the failure to properly instruct the jury on the burden of proof required a new trial


Input: property be abruptly and unexpectedly plucked from the embrace of the person, not from that person’s figurative biosphere,” and reversed a conviction where the victim’s purse was sitting on the bench beside her when it was taken. Here, Thomas argues that the jury instruction allowed the jury to convict if the property was taken from “the custody of the victim.” Thomas did not object to the instruction, however, and thus is entitled to relief only if the instruction can be said to constitute fundamental error. An erroneous instruction rises to the level of fundamental error where “the error in the instruction relate[s] to an element of the crime that is a contested issue.” Caldwell v. State, 920 So.2d 727, 731 (Fla. 5th DCA 2006); see also Reed v. State, 837 So.2d 366, 369 (Fla.2002) (<HOLDING>) (quoting Stewart v. State, 420 So.2d 862, 863 Holdings: 0: holding that failure to submit an element of the offense to the jury is subject to harmless error analysis 1: holding that a jury instruction directing the verdict on one element deprived defendant of the right to a jury determination on every element of the charged offense and thus constituted structural error 2: holding that failure to give proper instruction regarding disputed element of crime charged was fundamental error requiring reversal and stating that fundamental error is not subject to harmless error review 3: holding jury instruction that inaccurately defines element of crime is fundamental error if the inaccurately defined  element is disputed and the inaccurate definition is pertinent or material to what the jury must consider in order to convict  4: holding that the trial court committed fundamental error in not instructing the jury on the knowledge element of the offense of resisting an officer without violence when that element was in dispute at trial


Input: Rule 56 motion. Therefore, summary judgment in granted in favor of the Defendants as to the allegations of inequitable conduct. Summary judgment is denied as to the allegations of prior art and prior sales insofar as they repeat the allegations on that issue which are set forth in Court I of the Amended Complaint. 4. Count V: Defamation And Trade Libel The Plaintiffs cannot recover on their claim that the Defendants disparaged the Plaintiffs or the Plaintiffs’ products through knowingly false accusations of infringement unless the accusations of infringement were false. See El Greco Leather Prod. Co. v. Shoe World, Inc., 623 F.Supp. 1038, 1043-44 (E.D.N.Y.1985), rev’d on other grounds, 806 F.2d 392 (2d Cir.1986), cert. denied, 484 U.S. 817, 108 S.Ct. 71, 98 L.Ed.2d 34 (1987) (<HOLDING>). Moreover, under the law of New York, the Holdings: 0: holding that police report of witnesss statement was inadmissible because witness had not adopted report as accurate when matter was fresh in his memory 1: holding that a cause of action on the theory of strict liability may be properly pled by alleging 1 the manufacturers relationship to the product in question 2 the unreasonably dangerous condition of the product and 3 the existence of a proximate causal connection between the condition of the product and the plaintiffs injury 2: holding that investigative report regarding potential premises liability claim was protected work product 3: holding that an action for breach of implied warranty of merchantability under the uniform commercial code is a product liability action within the meaning of the products liability act if as here the action is for injury to person or property resulting from a sale of a product 4: holding that nyciv rights l  74 forbids liability for the publication of a substantially accurate report of any judicial proceeding and this provision applies to an action for product disparagement


Input: performance on the contract, potential errors in the work performed, and the ultimate breach of contract where MLS stopped all performance. Since the breach of contract stems from the performance or lack of performance of professional services, the proper statute of limitations is KRS 413.245. II. Gardiner’s cause of action has accrued and is time barred Cross-appellant, WHF asserts that even if the proper statute of limitations is KRS 413.245, the action is not time barred because the action against MLS has not yet accrued. In particular WHF asks this Court to hold that damages would not accrue until the damages are “fixed and nonspeculative.” Alagia, Day, Trautwein & Smith v. Broadbent, 882 S.W.2d 121, 126 (Ky.1994). See also Meade County Bank v. Wheatley, 910 S.W.2d 233 (Ky.1995) (<HOLDING>). Such a standard would toll the statute of Holdings: 0: holding that for setoff purposes    a debt is due when the bank has the power to deem the debt due not when the bank actually exercises that power 1: holding that damages were not fixed until a bank actually sold certain property and the deficiency between the price of the house and debt owed was apparent 2: holding that an entity engaged in collection activity on a defaulted debt acquired from another is a debt collector under the fdcpa even though it may actually be owed the debt 3: holding that vehicle debt imposed on debtor by divorce court was debt owed to or recoverable by financing bank not exwife so not a domestic support obligation 4: holding that the measure of damages for the breach of a contract of sale where no fraud is shown is the difference between the contract price and the market price of the goods on the date of the breach


Input: James’s wife, Kellie James, about a statement from his former wife, Glenda Kyser: “Isn’t it true ma’am that Glenda Kyser told you, warned you when you got together with Mr. James that you better watch out for any kids that you have because of sexual abuse?” ROA, Vol. I at 26 (quoting transcript from second trial). Ms. James denied having that conversation with Ms. Kyser. Id. Mr. James argued in his petition that because “Ms. Kyser was not at trial for [him] to confront or cross-examine in open court,” the prosecutor’s question violated his Confrontation Clause rights. Id. The district court determined the prosecutor’s question was not testimonial and therefore did not implicate the Confrontation Clause. See Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (<HOLDING>). The district court concluded appellate Holdings: 0: holding that testimonial statements are subject to the requirements of the confrontation clause even if they are otherwise admissible under the hearsay exception for excited utterances 1: holding of crawford applies only to testimonial hearsay 2: holding that any confrontation right is found in the fourteenth amendments due process clause not the confrontation clause of the sixth amendment 3: holding that the confrontation clause applies only to trials and not to sentencing hearings 4: holding the confrontation clause applies only to testimonial statements


Input: NODs. Respondent’s Br. 16; see 38 C.F.R. § 3.109(b) (1990). Procedurally, however, the government’s main argument is that “AG in actuality challenges the June 1985 RO decision regarding the finality of the April 1983 RO decision,” Respondent’s Br. 10-11, and that AG can only challenge the 1985 decision through a CUE claim as a result of that decision’s finality. The government further states that “AG had an opportunity to directly appeal the June 1985 determination and argue the applicability of the equitable tolling doctrine ... but he did not do so and that decision also became final.” Id. at 11. Thus, according to the government, a challenge to the 1983 determination would instead have to be brought as a CUE claim. See Cook v. Pnncipi, 318 F.3d 1334, 1337 (Fed.Cir.2002) (en banc) (<HOLDING>). The government is right that AG did not Holdings: 0: holding that pursuant to 38 usc  5109a a final ro decision may be revised upon a showing of cue 1: holding that a claim before an ro remains pending until a final decision is rendered 2: holding that prior ro decision that had not become final was not subject to cue collateral attack 3: holding vcaa inapplicable to claim that ro decision contained cue 4: holding that cue existed in ro decision that had reduced veterans benefits where court found that it is evident that cue existed therein


Input: (quoting DeVetter v. Principal Mut. Life Ins. Co., 516 N.W.2d 792, 794 (Iowa 1994)). The plaintiffs assert section 516A.1 evidences a public policy that all automobile insurance policies include UIM coverage unless rejected by the named insured. The public policy underlying the UIM statute is not so broad, however. As we have discussed, this court has consistently recognized that section 516A.1 requires UIM coverage only for persons “who are protected by the liability coverage.” Hornick, 511 N.W.2d at 373. Here, Scott is not protected by the liability coverage, and therefore, chapter 516A does not require that he be protected by the UIM coverage. Consequently, the public policy of chapter 516A is not thwarted by enforcement of the named driver exclusion. Cf. Lopez, 890 P.2d at 196 (<HOLDING>); Gheae v. Founders Ins. Co., 854 N.E.2d 419, Holdings: 0: holding location of named driver exclusion in endorsement did not make it ambiguous exclusion applied to all coverage afforded by the policy including the um coverage 1: holding named driver exclusion eliminating liability coverage as well as um coverage did not contravene um statute because statute required um coverage only if the claimant otherwise qualifies for liability coverage under the policy 2: holding public policy of um statute not violated by exclusion of um coverage for passenger of vehicle driven by excluded driver 3: holding nearly identical named driver exclusion was plain and unambiguous and excluded claim brought under um coverage 4: holding that waiver of um coverage was ineffective under south carolina law because insurer did not adequately advise insured party about um coverage


Input: are “other than a constituent element of a ‘criminal prosecution,’ ” the Court has held that certain constitutional protections afforded in the context of a criminal prosecution (e.g., Fifth Amendment protections of the Double Jeopardy Clause, the Sixth Amendment’s right to counsel, etc.) are inapplicable in proceedings before a grand jury. See id., at 49, 112 S.Ct. 1735 (citing cases). In light of those holdings, and recognizing the historical function of the grand jury as an independent investigatory body which acts as a buffer between the citizenry and government, the Court has been reluctant to measure the enforceability of grand jury subpoenas against the same standards applicable to search warrants. See, e.g., Hale v. Henkel, 201 U.S. 43, 76, 26 S.Ct. 370, 50 L.Ed. 652 (1906) (<HOLDING>); United States v. Calandra, 414 U.S. 338, 346, Holdings: 0: holding that a grand jury subpoena seeking a voice exemplar did not implicate fourth amendment rights but suggesting that even if it had at most the government would have been required to demonstrate that the grand jury subpoena was reasonable 1: holding that while a grand jury subpoena for the production of books and papers may implicate the fourth amendment when presented with a challenge to such a subpoena a court need only determine whether the request is far too sweeping in its terms to be regarded as reasonable 2: holding that taxpayer who is the target but not the recipient of an administrative subpoena pursuant to 26 usc  7602 may challenge the subpoena 3: holding that the term timely should be read in conjunction with 45c2b that requires a party subject to a subpoena to object to a subpoena duces tecum within 14 days of service of the subpoena 4: holding that because a grand jury subpoena issued through normal channels is presumed to be reasonable  the burden of showing unreasonableness must be on the subpoena recipient who seeks to avoid compliance but recognizing that a court may be justified under some circumstances in requiring the government to reveal the general subject of the grand jurys investigation before requiring the challenging party to carry its burden of persuasion


Input: the experts must share the same board certification as the defendant physician to testify as to the standard of care at issue. In the present case, it is uncontested that neither expert shares the board certification with the defendant physician, Dr. Nix. Dr. Zenilman and Dr. Vaccaro are not board certified family physicians; Dr. Zenilman is a board certified infectious disease physician (internal medicine with a subspecialty board certification in infectious diseases.) Dr. Vaccaro is a board certified orthopedic neurosurgeon. Since it is uncontested that the experts do not share the same board certification as Dr. Nix, they must fall under exception (e) to qualify under the MCARE Act to provide standard of care testimony. See, Anderson v. McAfoos, 618 Pa. 478, n.5 (Pa. 2012)(<HOLDING>). At this stage in the proceedings, the court Holdings: 0: recognizing subsection e as the sole exception to the boardcertification requirement 1: recognizing exception 2: recognizing the rule and the exception but holding facts did not support claim to exception 3: recognizing the searchincidenttoarrest exception to the warrant requirement 4: recognizing such an exception


Input: time, is essentially moot. The whole issue of whether the Bankruptcy Court was acting without Jurisdiction in entering the Amended Final Judgment of Default hinges on the inclusion of the “execution issue” language that was included in the Amended Final Judgment of Default. The purpose of such language was to enable Appellee to enforce the judgment. However, at this time, Appellee is not in a position to execute upon or otherwise enforce its rights under the judgment because this Court, in Appeal Number 93-939-CIV-T-17B, set aside the Bankruptcy Court’s damage determination and remanded the case for an evi-dentiary hearing on damages. Such hearing has yet to take place and until is does this issue is essentially moot. See Mills v. Green, 159 U.S. 651, 16 S.Ct. 132, 40 L.Ed. 293 (1895) (<HOLDING>). CONCLUSION This Court has carefully reviewed Holdings: 0: holding that when an appellate court determines that it lacks jurisdiction the only thing it can do is dismiss the appeal 1: holding that an appeal is properly dismissed as moot when an appellate court lacks power to provide an effective remedy for the appellant should it find in his favor 2: holding that an appeal is not moot so long as the appellate court can fashion relief that is both effective and equitable internal quotation marks omitted alteration in original 3: holding that the appellant had an adequate remedy by appeal for his discovery violation allegations 4: recognizing that an effective waiver is not an absolute bar to appellate review


Input: or discrimination .... ” Id. at 49.60.215. The plain tiffs in this case argue that the “task or function” inquiry “directly or indirectly” resulted in discrimination. Pi’s Comp., docket no. 1, p. 20. Washington state courts have noted that state law relating to disability discrimination substantially parallels federal law, and courts should look to interpretations of federal anti-discrimination laws, including the ADA, when applying the WLAD. See Matthews v. NCAA, 179 F.Supp.2d 1209, 1229 (E.D.Wash.2001); see MacSuga v. County of Spokane, 97 Wash.App. 435, 442, 983 P.2d 1167 (1999) (commenting in dicta that the WLAD and ADA “have the same purpose” and state courts therefore may look to federal cases for guidance); see also Kees v. Wallenstein, 161 F.3d 1196, 1199 (9th Cir.1998) (<HOLDING>). The plaintiffs did not address the issue of Holdings: 0: holding that claims under the adea and the nyshrl are subject to the same analysis 1: holding that courts should employ the same analysis to evaluate claims under the ada and the wlad 2: holding the same 3: holding that the same standards apply to claims under the ada and under the rehabilitation act 4: recognizing the same analysis applies under the wlad and title vii


Input: as respondent [sic] superior.” It is clear from Sanderson’s complaint and it can not be seriously disputed that Sander-son’s claims against the defendants are for actions taken in their official capacities. [¶ 11] For purposes of valid service of process, suing state officials solely in their official capacities, as opposed to suing them in their individual or personal capacities, is tantamount to suing the State itself. See Livingood v. Meece, 477 N.W.2d 183, 189 (N.D.1991); see also N.D.C.C. § 32-12.2-03(1) (stating an action for an injury proximately caused by alleged negligence, wrongful act, or omission of state employee occurring within the scope of the employee’s employment must be brought against the State). Cf. Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir.1999) (<HOLDING>); Artis v. Francis Howell North Band Booster Holdings: 0: holding that punitive damages are not recoverable against a state official sued in his or her official capacity 1: holding that a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the officials office 2: holding a complaint against a public official or employee must explicitly state it as being brought against the person in the persons individual capacity or else the complaint will be construed as suing the person only in the persons official capacity 3: holding that a plaintiff who wishes to sue a state official in his personal capacity must so specify in her complaint so that if a plaintiffs complaint is silent about the capacity in which she is suing the defendant we interpret the complaint as including only officialcapacity claims 4: holding that a suit against a state official in his or her official capacity is a suit against the state itself and not cognizable under  1983


Input: letter “affects the internal membership decisions” of HC HCEA from admitting desired members and controlling the content of its recruiting speech, but the record shows that HCEA did not adjust its recruiting methods, much less turn away willing members, in response to the Board’s letter. While we must “give deference to an association’s view of what would impair its expression,” Boy Scouts, 530 U.S. at 653, 120 S.Ct. 2446, we agree with the district court that “such deference has its limits.” Thus, we need not accept HCEA’s claim of impairment when it has failed to demonstrate how the Board’s letter either disrupts its ability to associate or substantially weakens its message by imposing restrictions on association. See U.S. Citizens Ass’n v. Sebelius, 705 F.3d 588, 600 (6th Cir.2013) (<HOLDING>). Because the Board’s letter did not Holdings: 0: holding that the hospital failed to show how it was harmed by failure to verify the rule to show cause 1: holding that exclusion of religious groups from universitys open forum policy violated the first amendment 2: holding that for purposes of statutory construction expression of one thing is the exclusion of the other 3: recognizing that a court must afford deference to a groups view of what impairs its expression yet finding that the plaintiffs failed to show how the affordable care acts individual mandate significantly burdened the groups expression 4: holding since the sidewalk is a nonpublic forum the regulation must be reasonable and not an effort to suppress expression merely because public officials oppose the speakers view


Input: above the “Physician’s Signature” line. The court agrees with defendants that Dr. Eisenstein, as limited partner of the Centre, through which he delivers medical services, signed the lien in connection with a debt owed to the Centre. Therefore, this exclusion applies. Defendants also argue that the “common ownership” language in § 1692a(6)(B) excludes Dr. Eisenstein from “debt collector” status. Kang responds that this section is inapplicable because the Centre is not a limited partnership and Dr. Eisenstein is not a limited partner of a medical provider. However, Kang admits in his Rule 12M Response that Dr. Eisenstein is a partner of the Cen-tre. Courts have broadly interpreted both FDCPA exclusions. See Meads v. Citicorp Credit Servs., Inc., 686 F.Supp. 330, 331 (S.D.Ga.1988) (<HOLDING>). Based on the language of the FDCPA, many Holdings: 0: holding that two citicorp affiliates were not debt collectors under fdcpa because they were corporate affiliates of creditors parent corporation 1: holding that the name under which a debt collector is licensed to do business is the debt collectors true name for purposes of the fdcpa 2: holding that fdcpa was intended to protect consumers from communications initiated by debt collectors not consumers 3: holding the de minimis flow of products between the parent and its foreign affiliates ranging from 01 to 6 indicated a lack of corporate unity 4: holding stay would not extend to separate legal entities such as corporate affiliates partners in debtor partnerships or to codefendants in pending litigation


Input: consistent with this opinion. 1 . West 2000. 2 . West 2000. 3 . Emphasis added. 4 . Emphasis added. 5 . Neither the bankruptcy court nor the district court addressed future costs; they are not at issue here. 6 . In re Soileau, 488 F.3d 302, 305 (5th Cir.2007) (citing In re Berryman Prods. Inc., 159 F.3d 941, 943 (5th Cir.1998)). 7 . 11 U.S.C. § 523(a)(7). 8 . 260 F.3d 400, 403 (5th Cir.2001) (quoting Black’s Law Dictionary 1133 (6th ed.1990); Black’s Law Dictionary 1153 (7th ed.1999)). 9 . See, e.g., Pa. Dep’t of Pub. Welfare v. Davenport, 495 U.S. 552, 565, 110 S.Ct. 2126, 109 L.Ed.2d 588 (1990) (Blackmun, J., dissenting) (“When analyzing a bankruptcy statute, the Court, of course, looks to its plain language.”); Kelly v. Robinson, 479 U.S. 36, 43, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986) (<HOLDING>). 10 . Kelly, 479 U.S. at 48 n. 9, 107 S.Ct. Holdings: 0: recognizing that this courts construction of a statute becomes as much apart of the statute as the words of the statute itself and that change is a matter that addresses itself to the general assembly not this court 1: holding that the starting point in every case involving construction of a statute is the language itself  quoting blue chip stamps v manor drug stores 421 us 723 756 95 sct 1917 44 led2d 539 1975 powell j concurring 2: holding that if the language of the statute is clear and unambiguous a court must derive legislative intent from the words used without involving rules of construction or speculating as to what the legislature intended 3: holding that review of the construction of a sentencing statute is de novo 4: holding principle of statutory construction is to give effect to every clause and word of a statute


Input: 29, 2003. In the default judgment, the court indicated that it had conducted a hearing on the motion for default judgment on December 16, and was aware of Hogan’s motions to dismiss and opposition to the motion for default judgment. Nevertheless, the court entered judgment against Hogan in the amount of $111,422.50. Hogan correctly argues that the lower court erred in entering a final default judgment against him where the complaint failed to allege any allegations against him, much less allege a cause of action. In Becerra v. Equity Imports, Inc., 551 So.2d 486 (Fla. 3d DCA 1989), the court held that the failure to state a cause of action is a fatal pleading deficiency not curable by a default judgment. See also Bd. of Regents v. Stinson-Head, Inc., 504 So.2d 1374 (Fla. 4th DCA 1987) (<HOLDING>). Both of these cases contain quotes from Holdings: 0: holding that a default judgment was not void because the bankruptcy court that entered the judgment had proper jurisdiction over the party seeking relief 1: holding that failure to move for judgment after verdict entitled party only to a new trial not a judgment in its favor 2: holding that a motion to dismiss or for summary judgment precluded default judgment 3: holding that any doubt as to the propriety of granting relief must be resolved in favor of the party when the party is not responsible for the error that caused the default judgment 4: holding that party obtaining a default judgment is only entitled to the relief prayed for in complaint


Input: in the March order. The district court in fact denied Liberty’s Motion to Enforce the March order “given the non-specific language” thereof, and thus recognized that the March order, in invalidating the DPS as an offset against a dealer’s claimed retail rate, did not preclude Ford from requiring a dealer to substantiate its claimed retail rate. Slip op. at l. This court repeatedly has refused to uphold orders entered as sanctions based on conduct that did not violate a clear, specific mandate. See, e.g., Harris v. City of Philadelphia, 47 F.3d 1342, 1352 (3d Cir.1995) (reversing imposition of sanctions where decree sought to be enforced lacked “an unambiguous provision” prohibiting the conduct at issue); Louis W. Epstein Family Partnership v. Kmart Corp., 13 F.3d 762, 771 (3d Cir.1994) (<HOLDING>); Eavenson, Auchmuty & Greenwald v. Holtzman, Holdings: 0: holding that bjroad nonspecific language in an order does not give a party fair notice of what conduct will risk contempt and thus cannot support imposition of sanctions 1: holding that while imposition of the most serious sanctions such as witness exclusion triggers a burnet analysis imposition of lesser sanctions like monetary compensation does not 2: holding that due process requires notice and an opportunity to respond before imposition of rule 11 sanctions 3: holding that where party had reasonable grounds to believe conduct was in compliance with the district courts order imposition of sanctions was not warranted and constituted an abuse of discretion 4: holding that the imposition of sanctions is reviewed for abuse of discretion


Input: declared “that privileges, in general, are not favored in the law and therefore should be strictly construed.” Moretti v. Lowe, 592 A.2d 855, 857 (R.I.1991) (citing Jordan v. Court of Appeals for the Fourth Supreme Judicial District, 701 S.W.2d 644, 647 (Tex.1985)). Mindful that the primary function of the judicial process indisputably is truth-seeking, we have “declared that privileges do not aid the quest for truth, the core function of the adversary process[.]” Pastore v. Samson, 900 A.2d 1067, oviding for privileges “must not be used as a shield to obstruct proper discovery of relevant information[.]” Moretti, 592 A.2d at 858 (emphasis added). A party may not hide behind confidentiality to avoid disclosure of unfavorable evidence. See State v. Guido, 698 A.2d 729, 734 (R.I.1997) (<HOLDING>); see also In re Doe, 717 A.2d 1129, 1135 Holdings: 0: holding letter that came into evidence without objection may be used to establish any material fact 1: holding that a statute providing for confidentiality of medical records may not be used to shield relevant and material evidence from legal process 2: holding that constitutional right of privacy does not apply to medical records 3: recognizing records material to selfdefense claim outweigh victims interest in confidentiality 4: recognizing a corporations legal rights to confidentiality and privilege


Input: rights in denying his motion to reopen. “The decision to grant or deny a motion to reopen ... is within the discretion of the Board....” 8 C.F.R. § 1003.2(a). Thus, we generally review the BIA’s denial of -.a motion to reopen for an abuse of discretion. See Infanzon v. Ashcroft, 386 F.3d 1359, 1362 (10th Cir.2004). The Attorney General contends that we lack jurisdiction to review most Mr. Rodriguez-Reyes’s claims, and the remaining claims are without merit. We agree. A. This Court has no Jurisdiction to Review the BIA’s Removal Order First, we have no jurisdiction to review Mr. Rodriguez-Reyes’s claims related to the BIA’s order affirming the IJ’s denial of his application for cancellation of removal, because he failed to file a timely petition for review of that order. See id. at 1361 (<HOLDING>). We therefore dismiss the petition for review Holdings: 0: holding that we will not review portions of an ijs ruling that are not adopted by the bia 1: holding the bia did not err in affirming the ijs denial of a continuance request where there was no prima facie approvable visa petition pending and alien had not applied for status adjustment 2: holding that the requirement that an alien appeal a removal order within 30 days is jurisdictional 3: holding that review of questions not raised to the bia is barred 4: holding appellate court lacked jurisdiction to review bia order affirming ijs denial of asylum because alien did not file petition for review within 30 days of bia order as required by 8 usc  1252b1


Input: effectively vindicate the alleged harm. On this point, the government argues that the true harm from disqualification is grounded in separation of powers. It points out that Congress has mandated that the United States Attorney for each district represent the government in all cases occurring within that district. See 28 U-S-C. § 547. Further, although not noted by the government, the Constitution grants the Executive the power to “take care that the laws are faithfully executed.” U.S. Const, art. II, § 3. Although caselaw is admittedly vague on the exact scope of this power, it is clear that this constitutional provision vests the Executive with substantial discretion in choosing when and how to prosecute cases. See, e.g., United States v. Andersen, 940 F.2d 593, 596 (10th Cir.1991) (<HOLDING>); United States v. Cox, 342 F.2d 167, 171 (5th Holdings: 0: recognizing that prosecutors are vested with wide discretion in determining how and when to file criminal charges 1: holding the tca vests court with authority to grant mandamus relief 2: holding the constitution vests the federal government with exclusive authority over relations with indian tribes 3: recognizing that oath taken to honor state constitution makes it the justices duty to apply the state constitution when it does not conflict with the federal constitution 4: holding that the constitution vests prosecutors with significant discretion in choosing when and how to prosecute


Input: time in their reply brief). The BIA did not violate petitioners’ due process rights. It is undisputed that the BIA mailed its decision to petitioners’ attorney of record, that he received it, and that petitioners failed to inform the BIA of their change of address. Further, the record shows that the IJ told petitioners that they were required to inform the agency if they changed their address and that he gave them the change of address form. We lack jurisdiction to consider petitioners’ remaining contentions because they arise from the agency’s underlying decision to deny cancellation of removal. Petitioners failed to seek review of that decision within the 30-day time limit prescribed by 8 U.S.C. § 1252(b)(1). See Stone v. INS, 514 U.S. 386, 405, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995) (<HOLDING>). DENIED in part, DISMISSED in part. *** This Holdings: 0: holding that this time requirement is mandatory and jurisdictional 1: holding that a time limit for filing a complaint as a creditor in bankruptcy proceedings is not jurisdictional 2: holding that time limit for filing petition for review is mandatory and jurisdictional 3: holding that the time limit for filing a petition for review of a final order of deportation is jurisdictional 4: holding that the statutory time limit for filing a petition for review is mandatory and jurisdictional and therefore not subject to equitable lolling


Input: regarding the Rolling Stone article (Demand No. 16). On January 12, 2016, the court held a hearing on the motion to compel. The motion has been fully briefed and is ripe for disposition. Discussion The Federal Rules of Civil Procedure provide that a party “may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case[.]” Fed.R.Civ.P. 26(b)(1). “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Id. Moreover, the discovery rules are to be accorded broad and liberal construction. Herbert v. Lando, 441 U.S. 153, 177, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979); see also Care-First of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 402 (4th Cir.2003) (<HOLDING>). If a party fails to produce requested Holdings: 0: holding that while as a general matter discovery should be freely permitted  j jurisdictional discovery is justified only if the plaintiff reasonably demonstrates that it can supplement its jurisdictional allegations through discovery 1: holding that subsequently enacted federal statutes trump the rules of civil procedure 2: recognizing that while summary judgment is improper if the nonmovant is not afforded a sufficient opportunity for discovery it is the nonmovants responsibility to inform the district court of the need for discovery by filing an affidavit pursuant to rule 56f of the federal rules of civil procedure or filing a motion requesting additional discovery 3: holding discovery rules apply to civil forfeiture proceedings 4: holding that discovery under the federal rules of civil procedure is broad in scope and freely permitted


Input: U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953). Under Lauritzen, according to Hawkspere, United States law governs. B. “[W]here the parties specify in their contractual agreement which law will apply, admiralty courts will generally give effect to that choice.” Chan v. Soc’y Expeditions, Inc., 123 F.3d 1287, 1297 (9th Cir.1997) (enforcing choice-of-law clause in marine passenger ticket). “In the absence of a contractual choice-of-law clause, federal courts sitting in admiralty apply federal maritime choice-of-law principles derived from the Supreme Court’s decision in Lau-ritzen ... and its progeny.” Id.; see Sundance Cruises Corp. v. The Am. Bureau of Shipping, 7 F.3d 1077, 1081 (2d Cir.1993); see also The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972) (<HOLDING>); Richards v. Lloyd’s of London, 135 F.3d 1289, Holdings: 0: holding that courts should enforce a choiceoflaw clause when it is part of a freely negotiated private international agreement 1: holding that the trial courts denial of appellants motion to enforce settlement agreement constituted an important issue 2: holding that the union owes its representatives a duty to enforce the terms of the negotiated collective bargaining agreement 3: holding that a court may only enforce a settlement agreement if it constitutes an enforceable contract 4: holding that trial court is without authority to modify a settlement agreement but may enforce and interpret it


Input: of appeal, Davis learned that neither McCulley nor his sister would be able to pay for the appeal. In his motion, Davis further states that he advised McCulley in writing that he would not represent him on appeal and advised him how to file a pro se appeal. Davis notes further |sthat McCul-ley filed his own notice of appeal and indicated to him that he would pursue the appeal himself. Davis further states that he did not attempt to lodge the record and does not know how the record arrived at the clerk’s office. Nonetheless, Davis states that he does not want McCulley to lose his right to appeal and further states that if the motion for rule on clerk is granted, he intends to file a motion for leave to withdraw. The majority cites Sanders v. State, 329 Ark. 363, 952 S.W.2d 133 (1997) (<HOLDING>), for the proposition that, when an attorney Holdings: 0: holding limited in lupo v lineberger 313 ark 315 317 855 sw2d 293 294 1993 1: holding limited by hammon v state 347 ark 267 66 sw3d 853 2002 2: holding a writ was appropriate when the authorization was not limited as to time and not limited to specific healthcare providers 3: recognizing a state agencys powers are limited to 1 4: holding that lien avoidance under  522f is not limited by state exemptions


Input: See also Matter of Schultz Mfg. Fabricating Co., 956 F.2d 686, 689 (7th Cir.1992) (finding no district court jurisdiction in the absence of a timely notice of appeal from the bankruptcy court). of appeal within 10 dismissing the peti- But the order refusing to convert the Chapter 7 proceedings from New York into the Chapter 13 proceedings in Illinois was not a final order. It did not bring the Illinois Chapter 13 petition to an end; virtually the entire dispute remained, involving the same parties and the same issues. Even though the concept of finality is relaxed in the bankruptcy context, see In re Jartran, Inc., 886 F.2d 859, 861-62 (7th Cir.1989), this order was interlocutory in the purest sense of the word. See Caldwell-Baker Co. v. Parsons, 392 F.3d 886, 888 (7th Cir.2004) (<HOLDING>). See also In re Young, 237 F.3d 1168, 1172-73 Holdings: 0: holding that a bankruptcy court order denying a trustees claim to immunity was final and appealable under the collateral order doctrine 1: holding that where an adversary proceeding continues the order  is no more a final decision than an order denying summary judgment or denying a request for additional discovery the litigation proceeds and the issue will be reviewed if it turns out to make a difference to an order that is independently appealable 2: holding an order denying a motion for summary judgment is interlocutory and not appealable 3: recognizing that an order denying a motion to modify a family court order where the motion is based on changed factual or legal circumstances is appealable as a special order after final judgment 4: holding that order denying representation to class of future claimants in bankruptcy proceeding is equivalent to denial of request to intervene and order denying right to intervene is appealable final order


Input: by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” See Universal Underwriters Ins. Co. v. Thompson, 776 So.2d 81 (Ala.2000). In that case, a copy of a garage-liability policy was attached to the complaint, and the defendant filed a motion for a judgment on the pleadings. This Court stated that the fact that the garage-liability policy was attached to the complaint and considered by the trial court did not require that Thompson's motion for a judgment on the pleadings be converted to a motion for a summary judgment, citing Wilson v. First Union National Bank of Georgia, 716 So.2d 722, 726 (Ala.Civ.App.1998)(<HOLDING>). JOHNSTONE, Justice (concurring in the Holdings: 0: holding that the trial courts consideration of documents attached to the complaint whose identity and authenticity were not in dispute did not require conversion of a motion to dismiss into a motion for a summaiy judgment 1: 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 2: holding that it was appropriate for the district court to refer to the documents attached to the motion to dismiss since the documents were referred to in the complaint 3: holding that unauthenticated documents may be considered in support of a motion for summary judgment where the documents were not objected to or their authenticity disputed 4: holding that the courts denial of either a motion to dismiss or a motion for summary judgment is not a final judgment and is not reviewable


Input: maximum. The sentences imposed by the district court were below the statutory maximum and within the range prescribed by the Guidelines for the quantity of drugs the court determined to have been involved in the appellants’ crime. Even under pre-Booker law, defendants faced the possibility of sentences anywhere within the applicable statutory range. Id. (internal citation omitted). We therefore found nothing improper in the application of Booker to cases pending on direct review and joined the First, Fifth, Seventh, Ninth, and Eleventh Circuits in so holding. See id. (collecting cases). The instant appeal raises the same issue in a slightly different context. That is, Fairclough claims that the District Court (as 005) (same); United States v. Lata, 415 F.3d 107, 110-13 (1st Cir.2005) (<HOLDING>). Because Fairclough’s ex post facto argument Holdings: 0: holding that use of the guidelines in effect at time of sentencing does not violate ex post facto clause after booker 1: holding that retroactive application of advisory sentencing guidelines violated ex post facto clause because guidelines increased minimum sentencing range 2: holding that parole guidelines are subject to the ex post facto clause 3: holding that retroactive application of advisory sentencing guidelines violated ex post facto clause because guidelines created sufficient risk of increased sentencing range 4: holding that district court did not violate ex post facto clause in sentencing defendant above guidelines maximum where district court assumed guidelines to be advisory prebooker


Input: the officer to personal jurisdiction where the officer “is a ‘primary participant’ in the alleged wrongdoing” or “had ‘control of, and direct participation in the alleged activities.’ ” Matsunoki Group, Inc., 2009 WL 1033818 at *3-4 (citing Wolf Designs, Inc. v. DHR Co., 322 F.Supp.2d 1065, 1072 (C.D.Cal.2004), in turn citing Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1021 (9th Cir.1985)); see also Wyatt Technology Corp. v. Smithson, No. CV 05-1309 WMB (RZx), 2005 WL 6132329, *6 (C.D.Cal. Aug. 30, 2005) (“[I]f the agent is ... ‘actively and personally involved in the conduct giving rise to the claim,’ he may be subject to jurisdiction in the plaintiff[’]s forum state,” quoting Balance Dynamics Corp. v. Schmitt Industries, Inc., 204 F.3d 683, 698 (6th Cir.2000) (<HOLDING>)); accord Balance Dynamics Corp., 204 F.3d at Holdings: 0: holding defendants could not be guilty as parties when the state failed to show they knew the criminality of the conduct they assisted 1: holding that request for attorneys fees and damages to attached property in a motion to dissolve a writ of attachment  said to be totally unnecessary to the inquiry of the jurisdiction  constituted a submission by defendant to the exercise of jurisdiction over it personally by the court 2: 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 3: holding that the court could exercise jurisdiction over corporate officers who actively and personally involved themselves in conduct violating the lanham act notwithstanding the fact that the defendants acted as agents when they did so 4: holding corporate officers and board members liable where they were actively engaged in the management supervision and oversight of the corporations affairs


Input: with the practice both parties followed previously.” Id. at 499. Moreover, in regard to the general practice in the industry regarding the time of payment, the transferee “introduced testimony ... that it is ‘common’ in the tracking industry — even when 30-day payment terms are required by contract — for payments ‘to be made over a 30-day period’ (i.e., after 30 days from the date of invoice) and that it is ‘[v]ery common’ in the industry ‘that people pass the 30 day period.’ ” Id Thus, the Eighth Circuit apparently did not require proof that particular industry members consistently paid late. See also Tolona Pizza, 3 F.3d at 1033 (finding that the evidence showed that “payment within 30 days is within the outer limits of normal industry practices”); U.S.A Inns, 9 F.3d at 684-85 (<HOLDING>). A similar approach was posited in Holdings: 0: holding that the transferee provided sufficient evidence that its transfer comported with industry standards the transferee proved that probably eight to ten percent of its accounts were on a similar pay schedule as the debtors and that working with delinquent customers as long as some type of payment was forthcoming was common industry practice 1: holding that the commission reasonably interpreted the statute as requiring it to assess the condition of the industry as a whole 2: holding a party to be an initial transferee because she was given legal title to the funds 3: holding that a trustee is not required to avoid the initial transfer from the initial transferee before seeking to avoid it and recover from subsequent transferees and noting that this conclusion is consistent with case law that has disallowed automatic recovery from a subsequent transferee following the avoidance of an initial transfer through a stipulated judgment or default when the transferee had not been a party to the underlying avoidance proceeding 4: holding that a trustee may settle with an initial transferee and still pursue recovery against a subsequent transferee but notwithstanding the trustee will still be required to prove that the transfers  were fraudulent and improper in connection with its suit against the subsequent transferee because the trustees settlement with the initial transferee did not involve any determination on the merits as to the initial transfers and in this way the subsequent transferee will be afforded its due process rights to contest the avoidability of these initial transfers


Input: Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Texas, Washington, West Virginia, and Wisconsin. See Mfrs. & Merchants Mut. Ins. Co. v. Harvey, 330 S.C. 152, 498 S.E.2d 222, 226 n. 1 (1998). 9 . See O’Rear v. B.H., 69 So.3d 106 (Ala.2011) (doctor allegedly molested his minor patient); Horace Mann Ins. Co. v. D.A.C., 710 So.2d 1274 (Ala.Civ.App.1998) (teacher allegedly molested one of his minor students); see also D.B.C. v. Pierson, 2014 WL 2155017 (N.D.Ala. 2014) (adults who owned modeling agency photographed and published sexual 68 (M.D.Fla. 1989) (under Florida law, 15 year old’s intent inferred); Allstate Ins. Co. v. Roelfs, 698 F.Supp. 815 (D.Alaska 1987) (16 year old’s intent inferred); West Virginia Fire & Cas. Co. v. Stanley, 216 W.Va. 40, 602 S.E.2d 483, 493 (2004) (<HOLDING>); Cuervo v. Cincinnati Ins. Co., 76 Ohio St.3d Holdings: 0: holding that employers intent may be inferred through circumstantial evidence 1: holding that the rule applies regardless of the comparative fault of the employer versus the employee 2: holding intent may be inferred from large amount of marijuana 3: holding that inferred intent rule applies regardless of the age of the actor 4: holding intent may be inferred from all facts and circumstances


Input: The defendant also argues that this appeal raises an issue of first impression for the appellate courts of this state, namely, whether a court has jurisdiction over a motion for contempt after a once delinquent obligor comes into compliance before a hearing. We note, however, that this court addressed a strikingly similar argument in Rocque v. Design Land Developers of Milford, Inc., 82 Conn. App. 361,844 A.2d 882 (2004). In Rocque, the defendant had argued that “the court had no jurisdiction to consider the motion [for contempt] because the defendant, at the time [of the hearing], was in compliance. In its memorandum of decision, the [trial] court ‘emphatically’ disagreed, stating that ‘[t]he court has continuing jurisdiction to enforce its orders an onn. 725, 737, 444 A.2d 196 (1982) (<HOLDING>). Although the trial court found the Holdings: 0: recognizing the inherent power of the courts to issue warrants 1: recognizing inherent power of courts of appeals 2: recognizing a trial courts inherent authority to dismiss a cause of action with prejudice for violations of court orders 3: holding that the inherent power of the district court includes the power  to santion attorneys for  violations of court orders or other conduct which interferes with the courts power to manage its calendar and the courtroom   4: recognizing the inherent power of the court to coerce compliance with its orders


Input: 6 Section 7 of the NLRA provides that “[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations.” 29 U.S.C. § 157. It also broadly protects the right of employees to “ ‘engage in other concerted activities for the purpose of collective bargaining.’ ” Teamsters Local Union No. 117 v. Dep’t of Corr., 179 Wn. App. 110, 119, 317 P.3d 511 (2014) (quoting 29 U.S.C. § 157). Picketing intended to induce an emp & Joiners of Am., Local 25, 430 U.S. 290, 304-05, 97 S. Ct. 1056, 51 L. Ed. 2d 338 (1977) (no federal preemption of an action for intentional infliction of emotional distress although the conduct was arguably an unfair labor practice); Linn v. United Plant Guard Workers of Am., Local 114, 383 U.S. 53, 61, 86 S. Ct. 657, 15 L. Ed. 2d 582 (1966) (<HOLDING>). 9 The NLRA permits the NLRB to seek a federal Holdings: 0: holding that state jurisdiction over claims by union members against employer for false arrest false imprisonment and malicious prosecution were not preempted under garmon 1: holding that false statements in a labor dispute that were injurious to employers reputation were not preempted 2: holding that false arrest and false imprisonment claim were not duplicative 3: holding the state law claims were not preempted 4: holding that false statements are constitutionally protected


Input: see United States v. Gomez-Perez, 215 F.3d 315, 319 (2d Cir. 2000). We have considered Lisi’s remaining arguments and conclude that they are without merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED in part and the appeal is DISMISSED in part. 1 . Lisi also argues Aat he received ineffective assistance of counsel from Touger in connection with Ae motion to withdraw his guilty plea, because Touger failed to submit evidence that he was prejudiced by ineffective assistance on Ae part of Zelin. But any such claim would depend on the existence of such evidence, none of which appears in the present record. Accordingly, any such claim would have to be made by a petition pursuant to 28 U.S.C. § 2255. See Billy-Eko v. United States, 8 F.3d 111, 114 (2d Cir. 1993) Holdings: 0: holding aat ineffective assistance claims are appropriately brought in  2255 petitions  because resolution of such claims often re quires consideration of matters outside the record on direct appeal 1: holding that ineffective assistance of counsel claims should be brought in collateral proceedings not on direct appeal 2: holding ineffective assistance of counsel claims may be decided on direct appeal where the district court has developed a record on the ineffectiveness issue 3: holding that defendant may raise claim of ineffective assistance of counsel on direct appeal only if ineffective assistance is conclusive from the record 4: holding that because ohio law required ineffectiveassistanceofcounsel claims be raised in an application to reopen the direct appeal of the criminal case such claims were part of the direct appeal entitling defendant to the assistance of counsel


Input: personnel salaries by 2087, the number of working hours in a year. Def.’s Statement at 2-3. The court finds this manner of calculating an hourly rate both reasonable and appropriate. The total number of hours spent and the number of personnel used by defendant, however, were not reasonable. As outlined in this court’s previous order of sanctions, Austin’s misbehavior began with his response to Defendant’s Motion for Summary Judgment, filed July 21,1994, and ended with the completion of trial on June 14,1995. Persyn, 35 Fed.Cl. at 711, 713. All fees and costs incurred by defendant before and after this time period shall be excluded from the sanction because the costs were not incurred as a direct result of Austin’s offensive pleading and misconduct. See Hendrix, 971 F.2d at 400-01 (<HOLDING>). Thus, work-hours spent by defendant outside Holdings: 0: recognizing that failure to hold a hearing constitutes ah abuse of discretion only where there is evidence that the jury was subjected to influence by outside sources 1: holding that dismissal of indictment was abuse of discretion when delay attributable to the government was twelve months 2: holding that a trial court should calculate an employers contribution due for the third partys future payments by using affidavits and other evidence to determine a lump sum amount and reduce the amount to its present value as of the date of the contribution judgment 3: holding that approximating the amount of the injured partys expenses attributable to attorney misconduct using a cutoff date was not ah abuse of discretion 4: holding failure to exercise discretion is abuse of discretion


Input: Id. at 526, 104 S.Ct. 3194 (emphasis added). In reaching this conclusion, the Hudson Court cited Bell with approval and at no point overruled Bell’s holding or analysis. Moreover, Hudson does not stand alone. It is one of a pair of opinions issued the same day on the constitutionality of cell searches. In the other case, Block v. Rutherford, 468 U.S. 576, 1 2 (6th Cir.1988) (ruling Hudson inapplicable in a strip search case because it “dealt with the search of a cell as opposed to the search of an individual”); Forbes v. Trigg, 976 F.2d 308, 312 (7th Cir.1992) (stating that “prison inmates retain protected privacy rights in their bodies, although these rights do not extend to their surroundings” and citing Hudson and Bell); Thompson v. Souza, 111 F.3d 694, 699 (9th Cir.1997) (<HOLDING>); Dunn v. White, 880 F.2d 1188, 1191 (10th Cir. Holdings: 0: holding that even after hudson the prisoners privacy interest in the integrity of his own person is still preserved under bell 1: holding that hudson overruled bells assumption and abrogated convicted prisoners fourth amendment rights 2: holding that government has obligation to provide for health needs of incarcerated prisoners 3: holding that governments asserted interest in protecting the privacy of arrestees is substantial under central hudson 4: holding that incarcerated prisoners have fourth amendmentprotected privacy interests after hudson and despite hudsons broad language


Input: Barman, D.O., and Richard I. Malamut, M.D.), a Crozer-Chester nurse (Nora Marden, R.N.), Joan K. Richards, the president of Crozer-Chester, and John and Jane Doe, a physician and an attorney, respectively. Because our analysis is the same for all of the defendants, we will refer to them collectively as "defendants.” 3 . Defendants set forth many arguments for why we should dismiss Dr. Klavan’s state law claims; however, because of our determination that the defendants are not state actors and our decision to decline to exercise supplemental jurisdiction over Dr. Klavan s state law claims, we will not address those arguments. 4 . The Supreme Court's 1982 “Lugar trilogy” guides our “state action” inquiry. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) (<HOLDING>); Rendell-Baker v. Kohn, 457 U.S. 830, 102 Holdings: 0: holding that a state agency created under state law was a state actor 1: holding that the state police is a state agency 2: holding that a creditors joint participation with the state in a prejudgment attachment transformed the creditor into a state actor for the debtors  1983 claims challenging the validity of the state statutes but not for the creditors alleged misuse of the statutes because that conduct could not be attributed to the state 3: holding that private misuse of a state statute does not describe conduct that can be attributed to the state 4: holding that the creditor did not satisfy the foregoing requirement because it was trying to exercise the avoidance power for itself as a sole creditor not for the benefit of the debtors estate or the creditors as a whole


Input: try to read into this brief footnote more than is warranted. In light of the complexity and confusion in the law on this issue, it is hard to believe that this somewhat Delphic footnote will bear the weight which Defendants place on it. 71 . It is noteworthy that cases involving the FTC’s determinations of materiality are consistent with the Court's finding here, even though such cases are brought pursuant to the FTC Act rather than the RICO statute. As a general rule, deceptive advertising or claims permit an inference "that the deception will constitute a material factor in a purchaser’s decision to buy.” FTC v. Colgate-Palmolive Co., 380 U.S. 374, 391-92, 85 S.Ct. 1035, 13 L.Ed.2d 904 (1965); see also FTC v. Brown & Williamson Tobacco Corp., 778 F.2d 35, 40-43 (D.C.Cir.1985) (<HOLDING>); FTC v. Wilcox, 926 F.Supp. 1091, 1098 Holdings: 0: holding that there must be a causal connection between an insureds advertising and an alleged injury to trigger coverage for an advertising injury 1: holding that deceptive advertising touting defendants low tar cigarettes created an inherent tendency to deceive consumers and was material 2: holding that a plaintiff in a lanham act trademark violation action must demonstrate that the defendants violation tended to deceive consumers 3: holding that federal law did not preempt commonlaw fraud claim against cigarette manufacturer based on advertising of light cigarettes 4: holding under new york law the issue of whether plaintiffs and class members would have purchased the product had they known an allegedly deceptive advertising claim was false can be established with common proof


Input: and article I, section 8 to determine if different results might be achieved under the two constitutions because the case only concerns the relatively humble inquiry of whether an alleged grant of consent for police to conduct war-rantless, suspicionless searches pursuant to a parole agreement is voluntary in the constitutional magnitude of the word “voluntary.” Thus, our decision hinges on the meaning and spirit of consent to justify the government’s intrusion without regard to the constitution. Moreover, consent is an exception to the requirements of both the Iowa and Federal Constitutions, and it would be inconsistent with our judicial role under the circumstances to eschew our state constitution and interpret the issue under the Federal Constitution unless 2d 339, 341 (1998) (<HOLDING>). Some courts have concluded probationers do Holdings: 0: holding that consentsearch provision of a probation agreement was voluntary even though defendant would have been sent to prison if he rejected it 1: holding that defendants testimony that he did not see a provision in the agreement because the plaintiffcounterparty failed to direct him to the provision was insufficient as a matter of law to establish fraud and defendant was therefore bound to the terms of the provision 2: holding probationer voluntarily accepted consentsearch provision by accepting probation 3: holding defendants agreement to consentsearch provision not coerced merely because it was one of two undesirable options 4: holding consentsearch provision in parole agreement was coerced and involuntary


Input: have been exhausted. By the same token, the federal habeas tolling provision should not be invoked except when a federal claim remains unexhausted in state court. Tolling is the complement of the exhaustion requirement. We hold, therefore, that a state petition for post-conviction or other collateral review must present a federally cognizable claim for it to toll the statute of limitations pursuant to 28 U.S.C. § 2244(d)(2). Austin’s post-conviction complaint regarding the missing language of his indictment failed to satisfy this requirement. However, his second complaint in the state post-conviction proceeding, regarding ineffective assistance of appellate counsel, does raise a federal constitutional claim. See Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985) (<HOLDING>). But, as noted above, it was filed in the Holdings: 0: holding the sixth amendment right to effective assistance extends to a criminal defendants first appeal as of right 1: holding that the sixth amendment right to counsel embodies the right to effective assistance of counsel 2: recognizing that a criminal defendants right to counsel is the right to the effective assistance of counsel 3: holding that defendants are entitled to effective assistance of appellate counsel on their first appeal as of right 4: recognizing that the sixth amendment guarantees the right to effective assistance of counsel


Input: can prove no set of facts in support of his claim which would entitle him to relief.” 355 U.S. at 45-46, 78 S.Ct. 99. Heeding this mandate, some prevailing case law inclined to the pleading leniency Conley demanded. In securities fraud cases, despite the particularity required by Fed.R.Civ.P. 9(b) for averments constituting the circumstances of the fraud asserted and the scienter requirement Hochfelder propounded, some courts permitted generalized pleadings or relaxed specificity of the requisite fraudulent intent to survive motions to dismiss, relying for authority on the language of Rule 9(b) itself, which provides that “malice, intent, knowledge, and other condition of mind, may be averred generally”. See In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1547 (9th Cir.1994) (en banc) (<HOLDING>); see also Cosmas, 886 F.2d at 12 (noting that Holdings: 0: holding that court may satisfy factual basis requirement by examining presentence report 1: holding that plaintiff may satisfy the state of mind pleading requirement simply by saying that scienter existed 2: holding the pslra standard for pleading scienter is more stringent than the second circuits standard prior to the act and that motive and opportunity is not an independent basis to show defendants had scienter 3: holding that financial gain from compensation for professional services is not a sufficient motive for purposes of pleading scienter 4: holding that petitioners allegation that it is the owner of adjoining property does not satisfy the pleading requirement


Input: to consider all three factors of volume, price, and impact.” Id. at 115 (emphasis added). Second, the report indicates that, when “determining the effect of [LTFV] imports on the domestic industry,” the Commission must ask whether the imports “are materially injuring the domestic industry!,]” id. at 116 (emphasis added), supporting the requirement of a material contribution to the overall harm by the LTFV imports themselves. The Senate Report to the Trade Agreements Act of 1979 also states that the “law does not * * * contemplate that the effects from [LTFV] imports be weighed against the effects associated with other factors].]” S. Rep. No. 96-249, 96th Cong., 1st Sess. at 74 (1979). See also Citrosuco Paulista v. United States, 12 CIT 1196, 1228, 704 F. Supp. 1075, 1101 (1988)(<HOLDING>); Metallverken Nederland B.V. v. United States, Holdings: 0: holding that fair use is an affirmative defense 1: holding that injury to broker through loss of commission was not antitrust injury 2: holding that the exclusion from category of compensable injuries of an injury resulting directly or indirectly from idiopathic causes is in the nature of an affirmative defense to employer and that it was not the claimants burden to prove an injury was not idiopathic but instead the employers burden to prove that it was 3: holding that a failure to advise even when the defendant has an affirmative obligation to do so is not the same as engaging in affirmative misconduct  4: holding that the commission may not weigh causes and an affirmative injury determination is warranted if ltfv imports contribute even minimally


Input: (6th Cir.1986), cert. denied sub nom. Wood v. McMackin, 479 U.S. 1036, 107 S.Ct. 889, 93 L.Ed.2d 842 (1987); Watters v. Hubbard, 725 F.2d 381, 383 (6th Cir.), cert. denied, 469 U.S. 837, 105 S.Ct. 133, 83 L.Ed.2d 74 (1984). A. Accidental Homicide Petitioner alleges that the trial court deprived him of his rights to due process of law.and a fair trial by giving incomplete and misleading instructions on accidental homicide. Specifically, petitioner contends that the trial judge did not explain the elements of accidental homicide and removed the concept of innocence in excusable homicide by instructing on negligent, not accidental, homicide. Respondent argues that petitioner is precluded from raising this claim. The Court agrees. Petitioner raised this claim on direct appeal. The Michig ) (<HOLDING>). Petitioner therefore is barred from raising Holdings: 0: holding that the federal habeas corpus court could reach the merits of a due process claim even though there was no contemporaneous objection in state court trial where the state habeas corpus court reached the merits rather than rely on the procedural default defense 1: holding that if the state court addresses both the procedural default and the merits of a federal claim in the alternative a federal court should apply the state procedural bar and decline to reach the merits of the claim 2: holding that the cause and prejudice standard applies when a state court relies on the procedural default but also discusses the merits 3: holding that aedpa only applies where the state court adjudicated the constitutional issue on the merits 4: holding that a federal court may excuse a state habeas petitioners procedural default if the petitioner can show cause for the failure to raise the claim and prejudice resulting from such failure