Input: risk of harm. The depressions in the walkway had been there since it was constructed more than eighteen years ago. Yet, there was no evidence of other falls attributable to this condition. Nor was there evidence of any complaints about this condition. Dietz argues that her own deposition testimony regarding the circumstances of her fall, while not conclusive evidence, constitutes sufficient evidence of the unreasonable risk of harm to defeat summary judgment. We disagree. Standing alone, Dietz’s testimony does no more than create a mere surmise or suspicion of an unreasonable risk of harm. We conclude Dietz failed to bring forth evidence to raise a genuine issue of material fact regarding the existence of a condition posing an unreasonable risk of harm. See Brinson, 228 S.W.3d at 163 (<HOLDING>). We, therefore, hold the trial court properly Holdings: 0: holding evidence insufficient to support conviction for possession when none of the defendants had any proprietary interest nor previous association with the premises and there was no evidence of how long the defendants had been on the premises prior to the arrival of the police 1: holding evidence insufficient to support conviction when none of the defendants had any proprietary interest nor previous association with the premises and there was no evidence of how long the defendants had been on the premises prior to the arrival of the police 2: holding premises owner had no duty to protect when the risk the police officer was subjected to was one inherent in that occupation 3: holding that negligence in premises defect context generally means failure to use ordinary care to reduce or eliminate unreasonable risk of harm created by premises condition about which owner or occupier of land is aware 4: holding the trial court properly granted summary judgment in favor of the premises owner when the evidence showed no one had been injured by the condition in question and the premises owner had received no complaints about the condition in question during a tenyear period


Input: elements of the crime. Second, Manuel claims that there was insufficient evidence to convict him of felony murder because the jury could not have concluded beyond a reasonable doubt that Peterson was shot “in the perpetration of’ or “in the flight from the perpetration of’ the underlying felony of attempted sale of a controlled substance. Point One Manuel complains that Instruction No. 5, the verdict director for felony murder, failed to submit all of the essential elements of the crime. The State proffered the verdict director for felony murder, and Manuel’s counsel stated that he had no objection to the instruction. Manuel' thus concedes that his allegation of error regarding the instruction is not preserved for appellate review. State v. Vaughn, 11 S.W.3d 98, 105 (Mo.App.W.D. 2000) (<HOLDING>). He nonetheless requests that we review the Holdings: 0: holding that failure to object in a timely fashion to a magistrate judges report and recommendation generally constitutes a waiver of the defaulting partys right to appeal provided that the parties received clear notice of the consequences of their failure to object 1: holding that failure to brief an argument constitutes waiver 2: holding failure to brief argument constitutes waiver 3: holding that neither failure to object to an instruction nor an express statement of no objection to an instruction waive plain error review pursuant to rule 3020 4: holding that the failure to object to an instruction constitutes a waiver of error


Input: can be little doubt that, as a general matter, alien defendants considering whether to enter into a plea agreement are acutely aware of the immigration consequences of their convictions. Id. at 321-22, 121 S.Ct. 2271 (some internal quotation marks and citations omitted). B Since St. Cyr, lower courts have split over two questions essential to this case: whether reliance must be established objectively, subjectively, or even at all, and whether petitioners who proceed to trial have suffered retroactive effects under § 304(b) of IIRIRA. Following the Third, Fourth, and Sixth ■ Circuits, we .2000) (Alien must have “actually and reasonably relied” on availability of relief for IIRIRA’s repeal of § 212(c) to have retroactive effect); Brooks v. Ashcroft, 283 F.3d 1268, 1274 (11th Cir.2002) (<HOLDING>). As discussed in Section II.C below, a Holdings: 0: holding that the repeal of  212c was not impermissibly retroactive because unlike st cyr petitioner did not so choose to rely upon the agreed upon terms of a plea and because his case did not present the same concerns of quid pro quo benefit for an exchange between a defendant and the government 1: holding that a defendant did not waive his right to be present at an ex parte encounter between the judge and juror because he was not present at the time of the communication and therefore had no opportunity to object when the error was committed 2: holding that the government did not present sufficient evidence to support a guilty verdict in a  2251 case because the government did not provide evidence to prove that the defendant intended to create a visual depiction of the sexual conduct 3: holding that the fine print terms at the bottom of an invoice imposing attorney fees were not terms upon which the parties agreed and therefore did not become part of the contract 4: holding because legislature knew how to include terms within statutory definition and did not do so statutory definition did not include terms in light of the terms contemporaneous inclusion of the same terms in a separate provision


Input: case-by-case appraisal aimed at determining whether a particular sentence, when rendered, could fairly be said to have been based on the guidelines. See, e.g., United States v. Garcia, 606 F.3d 209, 214 (5th Cir.2010) (per curiam); United States v. Franklin, 600 F.3d 893, 896 (7th Cir.2010). One court of appeals, reading the language of section 3582(c)(2) broadly, has held that a district court has authority to reduce a sentence imposed pursuant to a C-type plea agreement. See United States v. Cobb, 584 F.3d 979, 985 (10th Cir.2009). We begin our analysis with the elementary proposition that a court, within wide limits, should interpret a plea agreement according to principles of contract law. United States v. Ortiz-Santiago, 211 F.3d 146, 151 (1st Cir.2000); cf. Teeter, 257 F.3d at 28 (<HOLDING>). Once a defendant knowingly and voluntarily Holdings: 0: recognizing certain limits to this analogy 1: recognizing this presumption 2: recognizing this method 3: recognizing this distinction 4: recognizing this rule


Input: to the Court of Appeals on direct review) violated ex post facto principles when it retroactively applied the remedial holding of Booker at his sentencing. We hereby reject this claim for the same reasons stated in Vaughn. In short, there was no ex post facto problem with the District Court’s application of the remedial holding of Booker at sentencing because Fairclough had fair warning that his conduct was criminal, that enhancements or upward departures could be applied to his sentence under the Guidelines based on judicial fact-findings, and that he could be sentenced as high as the statutory maximum of ten (10) years. See Vaughn, 430 F.3d at 524. We see no need to adopt a different rule in this context. See United States v. Austin, 432 F.3d 598, 2005 WL 3317773 (5th Cir.2005) (<HOLDING>); United States v. Cross, 430 F.3d 406 (7th Holdings: 0: holding that revocation of medical license does not violate the ex post facto clause 1: holding that the ex post facto clause  has no application to deportation 2: 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 3: holding that district court did not violate ex post facto clause in applying remedial holding of booker at sentencing 4: holding that use of the guidelines in effect at time of sentencing does not violate ex post facto clause after booker


Input: degradation and that Toyobo’s manufacturing process was not functioning properly); ¶ 67 (alleging that Toyobo omitted from report on Zylon degradation in extreme conditions data reflecting degradation in non-extreme conditions).) These misrepresentations tainted all of the vest manufacturers’ claims for payment from the government, as the government has alleged that “the Zylon fiber [Toyobo] sold for use in Zylon body armor was defective and degraded more quickly than Toyobo and the Zylon Vest Manufacturers represented[,]” and “[a]s a result ..., the United States paid for defective Zylon body armor.” (Id. ¶ 1.) Thus, the complaint states a § 3729(a)(1) claim under a fraudulent inducement theory. See Honeywell, 798 F.Supp.2d at 22, 2011 WL 2672624, at *6; Westrick, 685 F.Supp.2d at 137 (<HOLDING>). The government has set out in detail the Holdings: 0: holding the government was required by law to correct a defendants misrepresentations at a sentencing hearing and doing so did not violate the plea agreement 1: holding that government pled sufficiently an fca claim by alleging that defendants misrepresentations about zylon degradation induced the government to pay claims for payment 2: holding that an assignment was recognized by the government because the government issued a check made payable to the assignee as payment under the contract 3: holding that the government can use prearrest silence for impeachment purposes against a defendant because no government action induced the silence 4: holding that the term claim was not limited to claims submitted for payments due and owing from the government but included claims for favorable action by the government upon applications for loans


Input: between the allegations of the complaint, and the focus of Sure-Snap’s plan of reorganization. Id. at 874-75. Further, all such allegations could have and should have been raised in determining the lender’s claim. By providing for the validity and amount of the lender’s claim in the plan, the debtor was barred by res judicata from relitigating the issue post-confirmation. Id.; accord, D & K Properties Crystal Lake v. Mutual Life Ins. Co. of New York, 1996 WL 224517 at *3 (N.D.Ill.1996), aff'd, 112 F.3d 257, 259 (7th Cir.1997) (parties agreed that elements of res judicata had been satisfied and in the Confirmation Order, the Court found that Defendant had not acted in bad faith in proposing a plan or in resetting the interest rate); Eubanks v. F.D.I.C., 977 F.2d 166 (5th Cir.1992) (<HOLDING>); Matter of Howe, 913 F.2d 1138 (5th Cir.1990) Holdings: 0: holding that the doctrine of res judicata applies to deportation proceedings 1: holding that lender liability claims are noncore and thus not barred by res judicata effect of bankruptcy proceedings 2: holding that lear does not abrogate general principles of res judicata or the res judicata effect of a consent decree regarding patent validity 3: holding that the lender liability claims of the debtor are precluded by res judicata 4: holding that res judicata applies in deportation proceedings


Input: them a constitutional duty of care. See Doe v. New York City Dep’t of Social Servs., 649 F.2d 134, 141-42 (2d Cir.1981); Nicini v. Morra, 212 F.3d 798, 808 (3d Cir.2000) (en banc); Meador v. Cabinet for Human Res., 902 F.2d 474, 475-76 (6th Cir.1990); Norfleet v. Ark. Dep’t of Human Servs., 989 F.2d 289, 293 (8th Cir.1993); Yvonne L. v. N.M. Dep’t of Human Servs., 959 F.2d 883, 890-93 (10th Cir.1992); Taylor v. Ledbetter, 818 F.2d 791, 796 (11th Cir.1987) (en bane); see also Hernandez v. Tex. Dep’t of Protective and Regulatory Servs., 380 F.3d 872, 880 (5th Cir.2004) (assuming such a duty); K.H. v. Morgan, 914 F.2d 846, 851-52 (7th Cir.1990) (only reaching duty to place, not duty to monitor). But see Milburn v. Anne Arundel County Dep’t of Soc. Servs., 871 F.2d 474, 476 (4th Cir.1989) (<HOLDING>). Like such children, Tron not only looked to Holdings: 0: holding that natural parents could not lose parental rights to foster parents where the foster agreement contemplates a surrender of custody for only a temporary period of time 1: holding that a state had no affirmative duty to a child placed voluntarily by his parents into foster care since he was in the custody of his foster parents who were not state actors rather than in the states custody 2: recognizing emotional bond between foster parents and child although ultimately determining foster parents did not have rights of parents in dependency action under chapter 2644 rcw 3: recognizing that foster parents do not have a constitutionally protected liberty interest in a continued relationship with their foster child 4: holding foster parents not liable for willful act of their foster child


Input: could conceivably have made efforts to conceal Moore’s scar, this practice might itself have undermined the reliability of the identification by artificially altering Moore’s facial features. In any event, we need not opine on the permissibility or advisability of such precautions. For present purposes, it suffices that the state court reasonably concluded that the police were not required to conceal Moore’s scar. See, e.g., United States v. Holliday, 457 F.3d 121, 126 (1st Cir. 2006) (rejecting challenge to photo array based on the defendant’s distinctive “skin discoloration”); United States v. Moore, 115 F.3d 1348, 1360 (7th Cir. 1997) (finding that photo array was not suggestive despite the defendant’s “distinctive eyebrow”); Taylor v. Swenson, 458 F.2d 593, 596-98 (8th Cir. 1972) (<HOLDING>). Moore relies almost exclusively on United Holdings: 0: holding that a defendant was entitled to counsel at a postindictment lineup 1: holding that lineup was admissible even where the defendant stood out because of a facial scar and a filed down tooth 2: holding photographic lineup not suggestive where defendant was only subject wearing jacket or jacket and red shirt 3: holding inconsistent out of court statements otherwise admissible not admissible against government in criminal prosecution 4: holding that even in separate trial other crimes evidence would not have been admissible and identification testimony would have been admissible


Input: liberal visitation, was in the children’s best interests. Cf. Hopper v. Hopper, 113 Nev. 1138, 1143-44, recognizing that a lower court may enforce custody provisions pending appeal); Wolfe v. Wolfe, 314 S.E.2d 132, 133 (N.C. Ct. App. 1984) (providing that a trial court has contempt power while an appeal is pending). 15 While a contempt order is not independently appealable, see Pengilly v. Rancho Santa Fe Homeowners, 116 Nev. 646, 5 P.3d 569 (2000), it may be challenged in the context of an otherwise substantively proper appeal. See Consolidated Generator v. Cummins Engine, 114 Nev. 1304, 1312, 971 P.2d 1251, 1256 (1998). 16 Cunningham v. District Court, 102 Nev. 551, 559-60, 729 P.2d 1328, 1333-34 (1986). 17 EDCR 5.12(a). 18 Halbrook v. Halbrook, 114 Nev. 1455, 971 P.2d 1262 (1998) (<HOLDING>); see also NRS 125.150(3) (providing that the Holdings: 0: holding that a court has power to award attorney fees when authorized by contract statute or recognized ground of equity 1: holding because an award of attorney fees is discretionary court may consider attorney fees in relation to the underlying equities in the case 2: recognizing that a district court has the authority to award attorney fees in postdivorce proceedings involving child custody 3: holding a summary judgment to be final although motion to assess attorney fees remained pending because award of attorney fees is collateral to judgment 4: holding trial court had no authority to award attorneys fees when arbitrator had stated he would not award attorneys fees


Input: 1972, decided March 10, 1972, Pa. Commonwealth Ct., aff’d, 451 Pa. 404, 304 A. 2d 491 (1973), (regarding which tribunals in Pennsylvania enjoy jurisdiction to entertain appeals from decisions of the Pennsylvania Labor Relations Board regarding municipal and county employees under the Public Employe Relations Act, Act of July 23, 1970, P. L. 563, §1502, as amended, 43 P.S. §1101.1502); see also Hartman v. Commonwealth, 6 Pa. Commonwealth Ct. 409, 295 A. 2d 850 (1972), (regarding which tribunals in Pennsylvania enjoy jurisdiction to entertain appeals de novo from decisions of the Department of Transportation regarding suspension of motor vehicle inspection station licenses). However, cf. Pittsburgh v. P.U. C. and Duquesne Light Company, 3 Pa. Commonwealth Ct. 546, 284 A. 2d 808 (1971), (<HOLDING>). We reach this conclusion reluctantly not Holdings: 0: holding that other statutory procedures incident to appeal set forth in article xi of the public utility law act of may 28 1937 p l 1053 as amended 66 ps 1101 et seq are not repealed by enactment of the aoja 1: holding that denial of vsf benefits to disabled retirees does not violate the ada the rehabilitation act 29 usc  791 et seq or the age discrimination in employment act of 1967 29 usc  621 et seq and that plaintiffs due process and first amendment claims were frivolous 2: holding that because the federal arbitration act 9 usc 1 et seq preempts michigans lemon law mcl 2571401 et seq the plaintiffs lemon law claim should have been resolved through binding arbitration 3: holding that prejudgment interest ordinarily should be awarded on damages pursuant to claims under the copyright act of 1909 17 usc  1 et seq 1976 ed superceded by the copyright act of 1976 17 usc  101 et seq 4: holding buckhannon applicable to the equal access to justice act 28 usc  2412 et seq which authorizes attorneys fees for prevailing parties


Input: 965, 975 (3d Cir. 2010)). As we explained in Hughley, “[b]ecause it is well established that the court of last resort for a state or territory is not bound by decisions of its regional federal court of appeals or any other lower federal court — even those interpreting the United States Constitution — but need only follow the United States Supreme Court, the possibility of future review by this Court could provide a justification for the Superior Court to consider [a petitioner’s] habeas corpus petition on the merits,” even where the issues raised in the petition have already been addressed by the Appellate Division and Third Circuit in an appeal taken before this Court’s creation. Hughley, 61 V.I. at 337-38; see also Hodge v. Bluebeard’s Castle, Inc., 62 V.I. 671, 685-92 (V.I. 2015) (<HOLDING>); Hamed v. Hamed, [63 V.I. 529, 534-35 (2015)] Holdings: 0: holding that the supreme court has final appellate review of agency decisions 1: holding that the panel is bound by decisions of prior panels 2: holding that this court considers third circuit and appellate division case law as persuasive authority only 3: holding that this court is not bound by decisions of the appellate division or the third circuit even where those decisions concern the same parties and legal issues 4: holding that this courts review of board decisions is limited to final orders or final decisions


Input: the contents of the conversation took place was to look for evidence. To do that, the police should have had a warrant. There was no exigency, the tape was not about to leave their possession. Furthermore, Deputy Roed's inspection of the printout's contents constituted a search regardless of whether she was lawfully in possession of the printout. Legal possession of an article does not endow law enforcement officials with any concomitant authority to also search the contents of the article. See, e.g., Walter v. United States, 447 U.S. 649, 654 (1980) (Stevens, J. concurring), (stating that, "[t]he fact that FBI agents were lawfully in possession of the boxes of film did not give them authority to search their contents."); United States v. Khoury, 901 F.2d 948, 959-60 (11th Cir. 1990) (<HOLDING>). Robert Rewolinski had a legitimate Holdings: 0: holding that a promise by fbi agents that defendant would serve no time on state charges if he cooperated in the federal investigation was unauthorized 1: holding that a foia request sent to fbi headquarters and that made no reference to new york did not obligate the fbi to search records held in its new york field office 2: holding that the plaintiffs ftca claims failed because the fbi agents were privileged to use reasonable force under texas law 3: holding that the contents of a notebook were not protected speech based in part on the fact that appellant made no effort to communicate the contents of the notebook to the public 4: holding that an fbi agents investigation of the written contents of a notebook that was lawfully in the possession of the fbi constituted a search that violated the defendants fourth amendment rights


Input: of Houlton, 175 F.3d 178, 184 (1st Cir. 1999). Neither the Rhode Island legislature nor the Rhode Island Supreme Court has yet established or recognized the existence of an independent tort for the spoliation of evidence. While both the magistrate judge and the district court judge concluded that the Rhode Island Supreme Court would not create such a tort, we see no need to delve into the unchartered waters of Rhode Island law and endeavor to prophesize whether the Rhode Island Supreme Court would adopt an independent tort for spoliation of evidence. Compare, e.g., Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544, 773 N.E.2d 420, 426 (2002) (declining to recognize an independent tort for spoliation of evidence) with Torres v. El Paso Elec. Co., 127 N.M. 729, 987 P.2d 386, 404 (1999) (<HOLDING>). We agree with the magistrate judge and the Holdings: 0: recognizing a tort for the intentional spoliation of evidence 1: holding no intentional spoliation occurred where defendant was not on notice that evidence was relevant to claim 2: holding absent some independent tort contract agreement voluntary assumption of duty or special relationship of the parties the new tort of the intentional interference with a prospective civil action by spoliation of evidence should not be recognized in kansas 3: recognizing the tort of intentional infliction of emotional distress 4: holding that tort remedy for intentional spoliation was not novel but included under elements of tort of fraudulent concealment


Input: discretion. See Florida Parole & Probation Comm’n v. Paige, 462 So.2d 817 (Fla.1985). As we observed in Florida Parole Commission v. Brown, 989 So.2d 723 (Fla. 1st DCA 2008), an abuse of discretion may be established in various ways, including a showing that the Commission deviated from the legal requirements imposed upon it, such as the obligation to review the inmate’s complete record and to articulate the basis for its decision. In the petition for writ of mandamus filed in the circuit court, Thomas asserted that the Commission had not complied with rules 23-21.0155 or 23-21.0161, Florida Administrative Code, and failed to articulate the basis for its decision. We conclude that this claim stated a basis for relief. See Alday v. Fla. Parole Comm’n, 58 So.3d 327 (Fla. 1st DCA 2011) (<HOLDING>). Rule 23-21.0155 provides that when the Holdings: 0: holding that the parole commission is required to state reasons for its finding that an inmate continues to be a poor candidate for parole release 1: holding that there was no legal right to court review of parole board decision because there is no legal right to release on parole 2: holding that where the capital defendants future dangerousness is at issue and state law prohibits the defendants release on parole due process requires that the sentencing jury be informed that the defendant is parole ineligible 3: holding that an important part of due process in the context of parole revocation is a written statement by the factfinders as to the evidence relied on and reasons for revoking parole 4: holding that habeas petition challenging the state boards decision to defer his scheduled parole release date was rendered moot by prisoners release from custody on parole and subsequent incarceration for violating his parole


Input: process that determines who shall rule and govern in the county. Id. at 469-70, 73 S.Ct. 809. Defendants claim that these cases apply only where the state has provided for a direct primary, whereas New York has opted for an indirect delegate primary election followed by a convention at which those delegates vote on the nomination. This variation in the process of public choice does not release the State from its First Amendment obligations. The animating principle in Classic and Terry is that constitutional protection extends to each State-created or State-endorsed “integral part of the election machinery,” not merely to one particular kind of primary election. Classic, 313 U.S. at 318, 61 S.Ct. 1031; see also Terry, 345 U.S. at 469, 73 S.Ct. 809; Bullock, 405 U.S. at 146, 92 S.Ct. 849 (<HOLDING>). Consistent with that view, we previously held Holdings: 0: recognizing that electoral restrictions that affect a political partys ability to perform its primary functions  organizing and developing recruiting supporters choosing a candidate and voting for that candidate in a general election  can constitute severe first amendment burdens 1: holding that it violated the first amendment to prohibit announcement of views on disputed legal and political issues by candidates for judicial election 2: holding that ohio election law forbidding all anonymous political leafletting violated the first amendment but noting that the right to remain anonymous may be abused when it shields fraudulent conduct 3: holding that the countys permit fee violated the first amendment 4: holding that primary election ballot filing fee violated fourteenth amendment and noting that the primary election may be more crucial than the general election in certain parts of texas


Input: S. E. 2d 613, 615 (1966) (“[The plaintiff] must allege all the elements of a cause of action for the tort the same as would be required if there were no allegation of a conspiracy”); Lesperance v. North American Aviation, Inc., 217 Cal. App. 2d 336, 345, 31 Cal. Rptr. 873, 878 (1963) (“[Conspiracy cannot be made the subject of a civil action unless something is done which without the conspiracy would give a right of action” (internal quotation marks omitted)); Middlesex Concrete Products & Excavating Corp. v. Carteret Indus. Assn., 37 N. J. 507, 516, 181 A. 2d 774, 779 (1962) (“[A] conspiracy cannot be made the subject of a civil action unless something has been done which, absent the conspiracy, would give a right of action”); Chapman v. Pollock, 148 F. Supp. 769, 772 (WD Mo. 1957) (<HOLDING>); Olmsted, Inc. v. Maryland Casualty Co., 218 Holdings: 0: holding that both the unlawful possession and unlawful use prongs were met and noting that the firearm transferred to the individual was not registered making the individuals possession of it necessarily unlawful 1: holding that a plaintiff who charged the defendants with conspiring to perpetrate an unlawful purpose could not recover because the defendants committed no unlawful act 2: holding that unlawful restraint could not even be an included offense 3: holding that because original interception was not unlawful subsequent use by prosecutor could not be found unlawful 4: holding that conspiracy requires an agreement to accomplish either an unlawful purpose or a lawful purpose by unlawful means


Input: inmate's infection correctly and advising the inmate on methods to avoid spreading the infection” might suffice to satisfy PHS’s asserted duty), the present appeal also was not allowed to consider protocols for repleading. 18 . The General Assembly has undertaken to prescribe various duties through legislation. See, e.g., 40 P.S. § 1303.504 (reflecting a duty of physicians to obtain informed consent and prescribing limitations on liability for breach). 19 . Accord Program Admin. Servs., Inc. v. Dauphin Cnty. Gen. Auth., 593 Pa. 184, 192, 928 A.2d 1013, 1017-18 (2007) ("[I]t is the Legislature’s chief function to set public policy and the courts' role to enforce that policy, subject to constitutional limitations.”); Naylor v. Twp. of Hellam, 565 Pa. 397, 408, 773 A.2d 770, 111 (2001) (<HOLDING>); Torres v. State, 119 N.M. 609, 894 P.2d 386, Holdings: 0: recognizing the general assemblys superior ability to examine social policy issues and to establish appropriate substantive legal standards 1: recognizing the legislatures superior ability to examine social policy issues and determine legal standards so as to balance competing concerns 2: recognizing standards to determine discrimination are the same under the ra and the ada 3: recognizing courts obligation to examine the circumstances as they existed at the time the original order was entered 4: holding where no further factual development is necessary to further illuminate the legal issues presented ripeness concerns are not implicated


Input: L.Ed.2d 91 (1976), prohibits the state’s use of the accused’s invocation of his Fifth Amendment rights. The State asked a police detective about a statement Kemp made after his arrest. On cross-examination, Kemp’s counsel asked the police detective about other aspects of Kemp’s statement. During the redirect examination of the police detective, the prosecutor asked Detective Salgado: Q: At some point, sir, in that same conversation with Mr. Kemp, did you.actually come out and ask him questions about the apartment complex parking lot and how Hector Juarez may have gotten in the vehicle with Mr. Kemp. A: Yes, I did. Q: At that point, sir, did Mr. Kemp express reluctance to answer your question about the parking lot? Transcript of June 3,1993, at 87. Kemp’s objection to th 38,1240 (1974) (<HOLDING>). Likewise, Kemp’s motion for a mistrial was Holdings: 0: holding that prejudice from question concerning the treatment of defendants found not guilty by reason of insanity to be cured by immediately sustaining objection and by a curative instruction to the jury 1: holding that potential prejudice can be cured by an appropriate iimiting instruction 2: holding that where an objection is sustained and curative instruction given and no further relief such as a mistrial additional curative instruction or striking of the offending comment is requested there is nothing for the appellate court to review 3: holding that any prejudice resulting from a misstatement of the law by the prosecutor was cured by trial courts proper instruction on applicable law 4: holding that prejudice from a question that violated doyle was cured by immediately sustaining objection before the question was answered


Input: have clarified the issue for certiorari if the court had done so here. We hold that the court of appeals did not err in declining to hear oral argument. II., REFUSAL TO ADDRESS THE SUMMARY JUDGMENT ISSUE 120 On certiorari, Brown argues that the court of appeals erred when it refused to address the merits of the trial court's grant of summary judgment and claimed Brown had not adequately briefed the issue in her initial brief. Brown claims that the merits of the summary judgment, in particu s, 105 N.C.App. 499, 415 S.E.2d 201, 203-04 (1992) (denying appellees' motion to dismiss appellants' reply brief because new issues addressed in appellants' reply brief were in response to issues raised in appel-lees' briefs); The Doctors' Co. v. The Ins. Corp. of Am., 864 P.2d 1018, 1028 (Wyo.1993) (<HOLDING>); see also 5 Am.Jur.2d Appellate Review § 559 Holdings: 0: holding argument is waived when raised for first time in reply brief 1: holding issue first addressed in appellants reply brief was not waived because it was in response to argument first presented in appellees brief 2: holding that an argument raised for the first time in a reply brief is waived 3: holding that issue raised for the first time in reply brief was waived 4: holding that issue first raised in appellees brief and then answered in appellants reply brief was properly raised for review


Input: are recoverable irrespective of the NCP. Gache v. Town of Harrison, N.Y., 813 F.Supp. 1037, 1046 (S.D.N.Y.1993). Weyerhaeuser can be held liable so long as it caused defendants to incur response costs, even if no actual migration of contaminants from the Wolcott Site or Canal D to the Damen Site is shown. See Matter of Chicago, Milwaukee, St. Paul & Pac. R. Co., 78 F.3d 285, 289-90 (7th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 763, 136 L.Ed.2d 710 (1997), (observing that “CERCLA unequivocally imposes strict liability on the current owner of a facility from which there is a release or threat of release, without regard to causation.”); Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1154 (1st Cir.1989) (same); United States v. Wade, 577 F.Supp. 1326 (E.D.Pa.1983) (<HOLDING>). Thus, Weyerhaeuser’s arguments that there is Holdings: 0: holding that when an indictment charges several acts conjunctively under a statute which subjects several alternative acts to the same punishment the government need only prove violation of one of the alleged acts to prove violation of the statute 1: holding that the injury was inflicted by the defendant when it occurred while the defendant applied force directly to the victims person 2: holding that predicate acts need not be in furtherance of the enterprise 3: holding that a cercla plaintiff need not directly link acts of each generator defendant to the environmental harm that prompted the cleanup 4: holding that the underlying suit did not seek to prevent unjust enrichment or to deprive defendant of the net benefit of its allegedly wrongful act but rather the underlying settlement was calculated by determining the individual harm suffered by each plaintiff


Input: be deduced from the high percentage of Mexican-American students attending L.C. Smith and the failure of the freedom-of-choice plan, Plaintiffs contend. Most importantly, Plaintiffs claim that the ability grouping system of RISD is itself a vestige of past discrimination: the district court’s refusal to so find is clearly erroneous. Our review here of the district court’s conclusion that “RISD has been a unitary system for a sufficient period of time that all vestiges have been erased” is controlled by Federal Rule of Civil Procedure 52, which provides that findings of fact “shall not be set aside unless clearly erroneous.” Fed.R.Civ.P. 52(a). United States v. Texas Education Agency, 647 F.2d 504, 506 (5th Cir.1981), cert. denied, 454 U.S. 1143, 102 S.Ct. 1002, 71 L.Ed.2d 295 (1982) (<HOLDING>); Calhoun v. Cook, 522 F.2d 717 (5th Cir.1975) Holdings: 0: holding bankruptcy courts finding of proximate causation not to be clearly erroneous 1: holding clearly erroneous the district courts finding that a 1970 plan had eliminated all vestiges of the previous dual system and created a unitary school 2: holding that the district courts finding of no discrimination under title vii was not clearly erroneous because the finding was supported by the record 3: holding that the district courts finding of no discrimination was not clearly erroneous because the finding was supported by the record 4: holding that the district courts key finding that petitioner is salvador mondacavega is not clearly erroneous


Input: 245 B.R. 672 (10th Cir. BAP 2000). 13 . See K.S.A. § 40-414; Osment v. Trout (In re Trout’s Estate), 156 Kan. 120, 123, 131 P.2d 640 (1942); see also In re Douglas, 59 B.R. 836, 837 (Bankr.D.Kan.1986); In re Chadwick, 113 B.R. 540, 545 (Bankr.W.D.Mo.1990). 14 . 11 U.S.C. § 1306(a)(1) & (2) (emphasis added). 15 . 11 U.S.C. § 1327(b) (emphasis added). 16 . In re Adams, 12 B.R. 540 (Bankr.D.Utah 1981). 17 . § 362(b)(2)(B) (emphasis added). 18 . In re Adams, 12 B.R. 540, 541 (Bankr.D.Utah 1981). 19 . "[T]he plan may — ... (9) provide for the vesting of property of the estate, on confirmation of the plan or at a later time, in the debtor or in any other entity....” 20 . In re Adams, 12 B.R. 540, 542 (Bankr.D.Utah 1981) (emphasis added). 21 . In re Johnson, 36 B.R. 958 (Bankr.D.Utah 1983) (<HOLDING>). 22 . In re Root, 61 B.R. 984 (Bankr.D.Colo. Holdings: 0: holding that order denying confirmation of plan became final when upon being notified that the debtors did not intend to seek confirmation of an alternate plan the court dismissed their case 1: holding that an outofwedlock childs pending claim for retroactive child support was nondischargeable in bankruptcy because a debt for child support arises upon the birth of the child and that the fact that no court had yet ordered the debtor to support the child does not take the debt outside the scope of 11 usc  523a5 2: holding that following confirmation of the debtors chapter 11 plan the internal revenue service could collect a nondischargeable tax claim that was not listed in the irss bankruptcy claim 3: holding that the office of recovery services of the utah dept of social services was free to collect its postpetition debt for child support from a tax refund that was not dedicated to the plan and therefore vested in the debtors upon confirmation 4: holding that confirmation vests in the debtor property of the estate not dedicated to the plan


Input: (Tr. 63). Dale Riley, Assistant Director of the Division of Adult Institutions, described Level I as a modern design with an observation bubble or security control area in each wing where an officer can visually observe all cell doors. The locked doors are controlled from that unit. In contrast, Level II and III are older cell units and there is no comparison with Level I in terms of providing security and observation. (Tr. 120). We are satisfied that the statute and regulations at issue contain neither “particularized substantive standards” to guide decisionmakers, Nash, 781 F.2d at 668, nor “mandatory language requiring decisionmakers to act in a certain way,” id, which would be applicable to an inmate already assigned to administrative segregation. See Williams, 852 F.2d at 378-79 (<HOLDING>). We conclude that the district court did not Holdings: 0: holding that social workers are not entitled to absolute immunity when deciding whether to open or continue an investigation or when deciding to enter a parents name in a central register of abusers all of which are administrative or investigative by nature rather than prosecutorial 1: holding that social security regulations and procedures precluded a bivens action 2: holding that in deciding whether to request an attorney to represent an indigent plaintiff they should first determine whether the indigents position was likely to be of substance 3: holding that regulations 20121010 20121040 and 20212060 did not contain substantive criteria for the committee to use when deciding whether to reclassify an inmate they merely establish procedures 4: holding that compliance with an officers orders is a material fact when deciding whether the officers use of force was reasonable


Input: group insurance policies); Bass v. John Hancock Mutual Life Ins. Co., 10 Cal.3d 792, 797, 518 P.2d 1147, 1150, 112 Cal.Rptr. 195, 198 (1974) (“[W]e have held that the employer is the agent of the insurer in performing the duties of administering group insurance policies ... and that accordingly the insurer shares responsibility for the employer’s mistakes.”); Caldwell v. United Bus Corp., 177 Cal.App.3d 381, 383-84, 223 Cal.Rptr. 7, 8 (1986) (“The general rule in California is that the employer is merely the agent of the insurer in performing the duties of administering group health insurance policies.”). Other jurisdictions as well have adopted a similar approach to the agency question. See, e.g., Middleton v. The Russell Group, Ltd., 126 N.C.App. 1, 483 S.E.2d 727, 734 (1997) (<HOLDING>), and eases cited therein; Abbiati v. Buttura & Holdings: 0: holding that the employer may be considered the insurers agent where the employer with the consent of the insurer performs routine administrative functions such as assisting in the processing of claims 1: holding that the employer was not the insurers agent 2: holding that when an insurer files suit to cancel a policy the entire liability of the insurer both on the policy and under the statute is put in issue 3: holding that under georgia law a holder of a master insurance policy is an agent of the insurance company and not the insurer 4: holding that an employer who performs administrative functions under a group insurance policy as in the instant case is deemed to be the agent of the insurer citing elfstrom


Input: to exhaust their tribal remedies before presenting their dispute to the district court.’ ” Kerr-McGee, 115 F.3d at 1507 (quoting Texaco Inc. v. Zah, 5 F.3d 1374, 1378 (10th Cir.1993)). It is unnecessary, however, for the court to engage in a detailed comity analysis because when none of the recognized exceptions to the doctrine apply, and the dispute concerns a “reservation affair” or the dispute “arises on the reservation” “there is no discretion not to defer” to the tribal courts. Kerr-McGee, 115 F.3d at 1507 (quoting Zah, 5 F.3d at 1378). Thus, federal courts may abstain without first analyzing the comity and tribal sovereignty issues discussed in National Fanners. See Potaluck Corp. v. Prairie Band of Potawatomi Indians, No. 99-2051, 2000 WL 1721797, at *2 (D.Kan. Aug.23, 2000)(<HOLDING>); See also Calumet Gaming Group-Kansas, 987 Holdings: 0: holding that a tribal housing authority established by tribal council pursuant to its powers of selfgovernment was a tribal agency rather than a separate corporate entity created by the tribe 1: holding that plaintiff who filed suit in federal court could not later file a declaratory judgment petition in state court making allegations substantially similar to those made in federal court and seeking resolution of primarily the same issues 2: holding that plaintiffs failure to raise his constitutional claims in the military court system bars him from raising them in federal court 3: holding that neither the tribe or its tribal court was necessary to the determination of the tribal courts jurisdiction given that the district courts judgment would be binding on the absent party and they did not have a legally protected interest at issue noting that the tribe was not a party to a relevant agreement or treaty with any party to the suit 4: holding that plaintiff a private corporation who had a contract dispute with tribe must exhaust its remedies in the tribal court system before it may raise the same issues in federal court


Input: to the SDWA, regardless of whether it ever installs a filtration system. In essence, the water system’s compliance with the avoidance criteria makes the water safe from the EPA’s perspective — a point conceded by the United States at trial. We fail to see how accomplishment of the Act’s substantive goals is undermined by overlooking past violations of regulatory deadlines that have no bearing on the current or future purity of the water delivered to consumers. See Romero-Barcelo, 456 U.S. at 310, 102 S.Ct. 1798 (noting that purpose of injunctive relief is to deter future violations, not to punish past ones) (citing Hecht Co., 321 U.S. at 329-30, 64 S.Ct. 587); cf. Friends of the Earth v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 192, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (<HOLDING>) (emphasis added). Moreover, given that the Holdings: 0: holding that district court had discretion under clean water act to determine which form of relief is best suited in the particular case to abate current violations and deter future ones 1: holding that adequate notice is a mandatory precondition of a clean water act citizen suit 2: holding that district courts are without jurisdiction to review preenforcement orders issued under the clean water act 3: holding that denial of permit under section 404 of the clean water act was a taking 4: holding that the limitation act does not apply to claims brought under the clean water act


Input: truth or falsity of the statement when a private plaintiff sues a non-media defendant on a private issue. We have held that the plaintiff bears the burden of proving falsity in this situation. El-Khoury v. Kheir, 241 S.W.3d 82, 85 (Tex.App.-Houston [1st Dist.] 2007, pet. denied). We have also held that the defendant bears the burden of proving the statement was substantially true in this situation. Rodriguez v. Printone Color Corp., 982 S.W.2d 69, 73 (Tex.App.-Houston [1st Dist.] 1998, pet. denied); Vice v. Kasprzak, 318 S.W.3d 1, 17 n. 9 (Tex.App.-Houston [1st Dist.] 2009, pet. denied); see also Tex. Civ. Prac. & Rem.Code Ann. § 73.005 (establishing truth of statement in action for libel as a defense) (Vernon 2011); Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex.1995) (<HOLDING>). We do not need to resolve this conflict, Holdings: 0: holding truth is affirmative defense to slander in suits between private individuals 1: holding that laches is an affirmative defense 2: holding that truth is a complete defense to defamation 3: holding that truth is a complete defense to an action for libel 4: holding that fair use is an affirmative defense


Input: claims are subject to abandonment pursuant to 38 C.F.R. § 3.158(a).... [T]he Secretary correctly argues that appellant’s contention is without legal merit because the abandonment pursuant to 38 C.F.R. § 3.158(a) cannot be set aside or waived on grounds of alleged ignorance of regulatory requirements. The Supreme Court has held that everyone dealing with the Government is charged with knowledge of federal statutes and lawfully promulgated agency regulations. Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384-85, 68 S.Ct. 1, 3, 92 L.Ed. 10 (1947). Thus, regulations are binding on all who seek to come within their sphere, “regardless of actual knowledge of what is in the [r]egulations or o emonstrate reliance on the allegedly defective denial notices.”); Burks-Marshall, 7 F.3d at 1349 (<HOLDING>). In light of the above discussion, the Court Holdings: 0: holding that the appellant developed his argument sufficiently to raise the issue for appellate review 1: holding that the prisoner has the burden of demonstrating he has exhausted his administrative remedies in his complaint 2: holding that our court will not consider an issue of whether a defendant has standing to seek suppression of evidence if the issue was not raised in the lower court 3: holding that an appellant has no standing to raise a due process issue where he has not shown that the alleged deficiency in the notice had any connection in fact with his own failure to seek review of the denial of his claim 4: holding a party has no standing to appeal unless he or she is an aggrieved party an individual who is not a parent in the eyes of the law has no legal interest in the child and therefore has no standing to appeal


Input: supervision, hiring, training, entrustment, and retention are subsumed in her general negligence claim against Bestway. According to Bestway, the court must grant summary judgment in Bestway’s favor as to the negligent supervision, hiring, training, entrustment, and retention claims. The Alabama Supreme Court has not addressed the issue at hand. This court must apply Alabama law to decide the issue. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Alabama recognizes the torts of negligent entrustment, negligent hiring, negligent supervision, negligent training, and negligent retention. Bruch v. Jim Walter Corp., 470 So.2d 1141, 1143 (Ala.1985) (outlining elements of negligent entrustment), CP & B Enters., Inc. v. Mellert, 762 So.2d 356, 362 (Ala.2000) (<HOLDING>), Big B. Inc. v. Cottingham, 634 So.2d 999, Holdings: 0: recognizing as viable actions in tort negligent hiring and negligent retention 1: recognizing torts of intentional and negligent infliction of emotional distress 2: recognizing torts of negligent hiring supervision and retention 3: holding that for a plaintiff to recover on claim of negligent hiring the negligent hiring of the employee must have been the proximate cause of the injury at issue 4: holding that a cause of action or negligent hiring training and retention can proceed only if the alleged negligence leads to the commission of one of the torts enumerated in the tort claims act


Input: exercise our discretion to address the error. The state posits only one reason why we should not correct the error: “[d]espite several opportunities to bring the alleged error to the trial court’s attention— by demurring to the indictment, excepting to the jury instructions, moving for judgment of acquittal or requesting merger at the sentencing hearing, defense counsel failed [to] alert the court below to the error defendant now claims was obvious.” Although defendant’s failure to preserve the error is an appropriate consideration, see Ailes, 312 Or at 382 n 2, we have repeatedly held that, in most circumstances, the state does not have a compelling interest in salvaging multiple convictions when only one is lawful. See, e.g., State v. Donner, 230 Or App 465, 469, 215 P3d 928 (2009) (<HOLDING>). In our view, that is the overriding factor at Holdings: 0: holding that tgiven that our burden in reviewing and correcting the error is minimal and that sentencing defendant according to the law serves the ends of justice we elect to exercise our discretion to correct the error here 1: holding that we must first determine our jurisdiction before proceeding to the merits of the appeal 2: recognizing that we may not substitute our judgment for that of the alj  3: holding we elect to adhere to our precedent in newman  4: holding the burden is on the defendant to demonstrate the error satisfies each prong of the plain error test


Input: and $100.00 in process server fees, see Bill of Costs, ECF No. 23-7. Of this total, WMATA contests only the $100.00 process server fees. Def.'s Opp'n at 5 (citing Zdunek v. Wash. Metro. Area Transit Auth., 100 F.R.D. 689, 692 (D.D.C.1983); Harvey v. Mohammed, 951 F.Supp.2d 47, 73 (D.D.C.2013)). As the plaintiff rightly notes, see PL’s Reply at 10-12, however, the non-binding authority relied upon by WMATA in contesting reimbursement of these costs did not consider tins Court's local rules, which explicitly provide that "[c]osts of service of summons and complaint” are taxable. LCvR 54.1(d)(2). Consistent with this Court’s local rules, reimbursement of these costs to the plaintiff will be ordered. Accord Law Office G.A. Lambert and Assoc. v. Davidoff, 72 F.Supp.3d 110, 120 (D.D.C.2014) (<HOLDING>); Youssef v. FBI, 762 F.Supp.2d 76, 85 Holdings: 0: holding costs of translating summons and complaint into german necessary to file this complaint and  therefore taxable 1: holding pursuant to bankruptcy rule 7004b9 that because the creditor mailed the complaint and summons to the debtors attorney and to the address listed in the debtors bankruptcy petition service of process was sufficient even if the debtors were out of the country and did not actually receive notice of the complaint and summons 2: holding defendant waived complaint 3: holding that the plaintiffs second complaint did not relate back to her first complaint because her second complaint was not an amendment to her first complaint but rather a separate filing 4: holding that a formal summons and complaint were unnecessary because the motion before the court is not an independent action


Input: “only if the resulting error was not harmless.” United States v. Dickerson, 248 F.3d 1036, 1048 (11th Cir.2001) (quotation omitted). An error is harmless if it “had no substantial influence on the outcome and sufficient evidence uninfected by error supports the verdict.” Id. (quotation omitted). Relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed.R.Evid. 403. Presentation of cumulative evidence exists where testimony of several witnesses would be the same, and one witness’s testimony would be sufficient. See United States v. Haynes, 554 F.2d 231, 234 (5th Cir.1977) (<HOLDING>). Here, even assuming that the testimony of Holdings: 0: holding that the district court did not abuse its discretion in denying motion for new trial based on newly discovered evidence where the evidence would serve only to impeach  testimony 1: holding that a trial court abused its discretion by excluding the testimony of an expert witness where the testimony would have been relevant to show that the defendant breached a duty of care 2: holding that the district court did not abuse its discretion in limiting testimony to only one witness where additional witnesses would have provided the same testimony 3: holding that a district court did not abuse its discretion in excluding the testimony of a witness that was not highly probative 4: holding juvenile court did not abuse its discretion in admitting expert testimony


Input: principles outlined here to assess whether Cricket has proven that the class includes more than 100 members. 5 . To the extent Cricket argues that its evidence categorically proves jurisdiction because Scott did not provide any rebuttal evidence, we reject that contention. Although Dart Cherokee states that “both sides submit proof” when a plaintiff challenges removal, 135 S.Ct. at 554, we do not read that to mean that if only one party submits proof it automatically carries the day. Rather, Dart Cherokee clarifies that a motion to remand challenging the amount in controversy reopens the record allowing both parties to submit evidence. When only one party submits evidence, we accept it as uncontroverted but must still test whethe 6 U.S. 500, 515, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (<HOLDING>) (emphasis Holdings: 0: holding that jurisdictional terms are those that congress clearly states as threshold limitations on a statutes scope 1: holding that criminal statutes of limitations are not jurisdictional but are a bar to prosecution which can be waived by a knowing and voluntary guilty plea 2: holding that time limits in title vii are not jurisdictional but are instead like statutes of limitations 3: holding that the aedpa statute of limitations is not jurisdictional 4: holding that this courts sixyear statute of limitations is jurisdictional


Input: under rules that are designed to serve no legitimate purpose or that are disproportionate to the ends they are asserted to promote ... the Constitution permits judges to exclude evidence that is repetitive ... only marginally relevant or poses an undue risk of harassment, prejudice, [or] confusion of the issues.” Id. (internal citations and quotations omitted). Accordingly, “ ‘[t]he accused does not have an unfettered right to offer [evidence] that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.’ ” Montana v. Egelhoff, 518 U.S. 37, 42, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996) (quoting Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988)); see also United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (<HOLDING>). Moreover, even where a district court Holdings: 0: recognizing a criminal defendants right to present a complete defense 1: holding that rules of evidence only infringe on a defendants right to present a defense where they are arbitrary or disproportionate or infringe on a weighty interest of the accused 2: holding that the constitutional right to present a defense is not violated by the exclusion of a defendants proffered evidence where he is otherwise given the opportunity to present his defense and crossexamine the key prosecution witnesses 3: holding that the sixth amendment right to present a meaningful defense does not entitle a defendant to present evidence on a question of law 4: holding that treating a defendants failure to appear as a waiver not only of the right to be present but of the right to have a hearing on the motion was error


Input: due constituted an act of default. On March 1, 1985, as we have seen, the bank loan was still outstanding, the subordination agreements were in force, and the bank had not given Tri-County consent to pay Culp and Newton. Payment in those circumstances would have violated the subordination agreements. Failure to perform a prohibited act cannot be treated as an event of default. Consequently, the corporation’s failure to pay interest on March 1, 1985, afforded Culp and Newton no immediate basis to sue on the notes. Cf. P.M. Finance Corp. v. Commissioner of Internal Revenue, 302 F.2d 786 (3rd Cir.1962) (observing that a “complete” subordination destroys a creditor’s power to demand payment at a fixed maturity date); Standard Brands, Inc. v. Straile, 23 A.D.2d 363, 260 N.Y.S.2d 913 (1965) (<HOLDING>). Culp and Newton have argued that Tri-County Holdings: 0: holding in the case of complete subordination that no action lies against the debtor but that a separate action may lie against a guarantor 1: recognizing that equitable estoppel will not lie against the government as it lies against private litigants and acknowledging merrill as the leading case in the courts modern line of estoppel decisions 2: holding that an employees action against her employer for negligent supervision lies not in tort but with an action for breach of contract 3: holding that an action against a tribal enterprise is an action against the tribe itself 4: holding that an action brought pursuant to  1983 cannot lie against federal officers


Input: the case doctrine applies when a defendant is granted a new trial and precludes the defendant from re-litigating the admissibility of evidence when the same issue was already raised and previously decided adversely to the defendant. Commonwealth v. McEnany, 732 A.2d 1263, 1267 (Pa.Super.1999), appeal granted, 562 Pa. 667, 753 A.2d 816 (2000), appeal dismissed as improvidently granted, 565 Pa. 138, 771 A.2d 1260 (2001). ¶ 9 Under Pennsylvania law, the doctrine of law of the case does not have an absolute preclusive effect. Benson v. Benson, 425 Pa.Super. 215, 624 A.2d 644, 647 (1993), appeal denied, 536 Pa. 637, 639 A.2d 22 (1994). Most jurisdictions similarly hold the law of the case doctrine is not an absolute rule. See, e.g., State v. Moeck, 280 Wis.2d 277, 695 N.W.2d 783, 789 (2005) (<HOLDING>); Owen v. State, 862 So.2d 687, 694 (Fla.2003) Holdings: 0: holding that jurisdiction must be resolved before applying the act of state doctrine because that doctrine is a substantive rule of law 1: holding that the law of the case doctrine is not a fixed rule that prevents a federal court from determining the question of its own subject matter jurisdiction in a given case 2: holding that the decision of the appellate court establishes the law of the case and it must be followed by the trial court on remand 3: holding law of case doctrine is not absolute rule that must be inexorably followed in every case 4: holding law of case doctrine is procedural and does not go to jurisdiction of court


Input: costs of defense. A jury trial was held in June 1986 to determine the reasonable costs of defense and IFF was awarded $834,913. IFF now seeks to recover its legal costs in connection with defending the declaratory judgment action brought by CU. Discussion It is well settled, under New York law, that an insured may recover the reasonable legal expenses which it incurred in defense of a declaratory judgment action brought by the insurer to free itself from its obligation to defend; however, the expenses incurred in prosecuting claims against the insurer are not recoverable. See Mighty Midgets, Inc. v. Centennial Insurance Co., 47 N.Y.2d 12, 389 N.E.2d 1080, 416 N.Y.S.2d 559 (1979); Johnson v. General Mutual Insurance Co., 24 N.Y.2d 42, 298 N.Y.S.2d 937, 939, 246 N.E.2d 713, 715 (1969) (<HOLDING>); Hurney v. Mattson, 59 A.D.2d 934, 399 N.Y. Holdings: 0: holding on summary judgment before the question of the insurers obligation to indemnify was decided that the insurer was liable for the costs of the insured in defending the declaratory judgment action because it breached its duty to defend 1: holding in a case where the insurer brought a declaratory judgment action and the insured filed a counterclaim that 60 of the costs were attributable to defending and 40 to prosecuting 2: holding that insured may recover legal fees incurred in defending itself in a declaratory judgment action brought by insurer but not for those incurred in prosecuting cross claims and counterclaims against insurers 3: holding that insured who brought third party action against insurer could recover costs incurred in defending insurers counterclaim for declaratory relief since the insureds posture in the counterclaim was that of a defendant 4: holding that insured could recover the costs of defending a declaratory judgment action brought by the injured party to compel the insurer to defend but could not recover the costs associated with prosecuting crossclaims against the insurer


Input: 475(c) is not categorically a forgery offense. See Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 877 (9th Cir.2008). Therefore, Ramirez’s crime cannot be an aggravated felony under the categorical approach. If a state statute is “categorically broader than the generic definition of a crime,” as here, we then apply the modified categorical approach. See Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (applying a two-step analysis, using first a categorical approach and then a modified categorical approach). However, because California Penal Code § 475(c) is missing an essential element of the generic forgery offense, we may not analyze this case under a modified categorical approach. Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir.2007) (en banc) (<HOLDING>). For the foregoing reasons, Ramirez has not Holdings: 0: holding modified categorical approach unavailable where the statute of conviction was missing an element of the generic definition 1: holding that a conviction under a divisible statute could not qualify as acca burglary pursuant to the modified categorical approach when there were no shepard documents to show that the crime of conviction was generic burglary 2: holding that application of the modified categorical approach did not establish a covered conviction where the judgment of conviction did not contain the factual basis for the crime 3: holding that courts may consider a plea agreement and other documents contained in the record of conviction when applying the modified categorical approach 4: holding that the modified categorical approach does not apply to statutes that contain an  indivisible set of elements sweeping more broadly than the corresponding generic offense meaning that the statute of conviction has an overbroad or missing element


Input: abridged in any way. The PCRA court’s ruling is supported by the record and is free of legal error. As noted, Pennsylvania Rule of Criminal Procedure 801 provides -for education and experiential qualifications for defense counsel in capital cases. At issue here are the educational requirements, which mandate “18 hours of training relevant to representation in capital cases, as approved by the Pennsylvania Continuing Legal Education Board.” Pa.R.Crim.P. 801(2)(a). Our June 4, 2004 order adopting Rule 801 utilized “phase-in” language, directing counsel to receive six credits for the time period prior to Attorney Speice’s appointment on September 2, 2005. The parties herein agree that six hours of capital case educational training were required at the tim , 193 (2010) (citations omitted) (<HOLDING>). Accordingly, the PCRA court did not err in Holdings: 0: holding ineffectiveness cannot be raised for first time on appeal 1: holding that the fact that an ineffectiveness claim is raised and adjudicated on direct appeal will not procedurally bar an ineffectiveness claim in a proceeding under 28 usc  2255 where new reasons are advanced in support of that claim 2: holding that ineffectiveness of postconviction counsel could establish cause to reopen judgment but ineffectiveness of postconviction appellate counsel could not 3: holding that the appellate standard of review of ineffectiveness claim is de novo 4: holding that a lawyers inexperience in capital cases does not render him presumptively ineffective as inexperience alone is not equivalent to ineffectiveness rather all the elements of an ineffectiveness claim must be satisfied


Input: their allegation that the defendants were required to comply with the unsigned May 31, 2000 IEP, rather than the previous, signed February 3, 2000 IEP. At the time the plaintiffs filed this complaint, the California superior court had issued a ruling enforcing the February 3 rather than the May 31 IEP. The plaintiffs appealed that decision to the California court of appeal and at the same time filed this action. We affirm the district court’s dismissal of this action under the Rooker-Feldman doctrine because, at the time the plaintiffs’ complaint was filed, the district court could not find in their favor on any of their claims without determining that the California superior court’s decision enforcing the February 3 IEP was wrong. Doe v. Napolitano, 252 F.3d 1026, 1030 (9th Cir.2001) (<HOLDING>). Because the Rooker-Feldman doctrine justified Holdings: 0: holding that the rookerfeldman doctrine forecloses federal jurisdiction when a decision in favor of a federal litigant would wholly undermine the state courts ruling 1: holding that rookerfeldman bars subject matter jurisdiction where but for the statecourt judgment the plaintiff would have no claim 2: holding rookerfeldman inapplicable where the district court could and did find that the plaintiffs constitutional claims had merit without also finding that the state court erred 3: holding that rookerfeldman doctrine bars federal determination of claim where the district court must hold that the state court was wrong in order to find in favor of the plaintiff 4: holding that federal district court had subject matter jurisdiction to hear case notwithstanding rookerfeldman doctrine where plaintiff filed federal suit while certiorari petition to new mexico supreme court was pending in similar state court action


Input: to sue on the contract rather than being relegated to a cause of action for quantum meruit. Vance, 677 S.W.2d at 482. The doctrine of substantial performance recognizes that the contractor has not completed construction, and therefore is in breach of the contract. Id. Under the doctrine, however, the owner cannot use the contractor’s failure to complete the work as an excuse for non-payment. Atkinson, 270 S.W. at 850. “By reason of this rule a contractor who has in good faith substantially performed a building contract is permitted to sue under the contract, substantial performance being regarded as full performance, so far as a condition precedent to a right to recover thereunder is concerned.” Id. (citing Linch v. Pans Lumber & Grain Elevator Co., 80 Tex. 23, 15 S.W. 208 (1891) (<HOLDING>)). Substantial performance is regarded as a Holdings: 0: holding that with respect to a businesss routine practice the plaintiff must show regularity over substantially all occasions or with substantially all other parties with whom the defendant has had similar business transactions 1: holding that a contractor who had substantially complied with the building specifications substantially performed 2: holding that an insured has substantially complied with the change of beneficiary provisions of a life insurance policy when he has done all that he could to comply with the provisions 3: holding that the government could not charge contractor excess cost of relet contract where the governments specifications were impossible to meet government changed the specifications but did not change the price to be paid original contractor refused to perform and new contractor was paid more to meet new specifications 4: holding that insured substantially complied with the manner of changing the beneficiary as required by the policy


Input: the town manager statute in the codification of laws regulating town officers. See 1917 G.L. § 3992 (“[T]he overseer of the poor shall be under the control and direction of the selectmen, and may, for cause, be removed by them.”). And the term was recognized by the courts as placing a limit on the discretion of employers to terminate employment at will. See Rutter, 89 Vt. at 26, 93 A. at 848 (stating that under city charter that requires cause for removal “there must be something which in law amounts to incapacity, negligence or bad conduct, to sustain the removal”). The Legislature continues to use the term “for cause” as a limit on an employer’s removal power, even absent use of the word “only.” See, e.g., Turnley v. Town of Vernon, 2013 VT 42, ¶¶ 13-19, 194 Vt. 42, 71 A.3d 1246 (<HOLDING>). Clearly the Legislature was cognizant of the Holdings: 0: recognizing the cause of action 1: recognizing that 24 vsa  1931a which states that officers shall hold office during good behavior unless sooner removed for cause authorizes town to remove police chief only for cause 2: recognizing cause of action 3: holding the chief of police was an atwill employee because the parties agreed that the chief of police was an appointed officer and the citys charter stated that officers shall be appointed and may be removed by the mayor with consent of the council 4: holding that under state law the police commissioners are not authorized to remove police officers at will but for good and sufficient cause and after due hearing emphasis added


Input: Moreover, the fact that Manigault bent from the waist and turned after King’s bullet struck him did not make it unreasonable for Martinez to fire his weapon at a nearly simultaneous time. Thus, no genuine issues of material fact exist over whether the officers used deadly force in an objectively unreasonable manner. In addition, the Manigaults’ claim that the officers approached them son in a way that violated his Fourth Amendment rights must fail. Although the officers were trained to maintain a distance of at least 21 feet when facing a suspect carrying a knife, their abandonment of this protocol cannot form the basis for a remedy under § 1983 or deprive them of qualified immunity. See Collins v. City of Harker Heights, 503 U.S. 115, 119, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992) (<HOLDING>); Davis v. Scherer, 468 U.S. 183, 194, 104 Holdings: 0: holding that  1983 is the exclusive federal remedy for violation of the rights guaranteed in  1981 by state governmental units 1: holding that  1983 does not provide a remedy if there is no violation of federal law 2: holding suppression is not a remedy for violation of vienna convention under federal law 3: holding that if the speech in question does not address a matter of public concern there is no first amendment violation 4: holding that 42 usc  1983 does not provide a remedy for flsa violations


Input: the court. Mussivand, 544 N.E.2d at 270. The existence of a duty “depends upon the foreseeability of harm: if a reasonably prudent person would have on take an affirmative action to aid or protect another, unless there is a “special and definite” relationship between the parties. Id. (citing Estates of Morgan v. Fairfield Family Counseling Ctr., 77 Ohio St.3d 284, 673 N.E.2d 1311, 1319 (1997)). However, the government must exercise reasonable care in performing responsibilities it has assumed and “conform to the standards which it sets for itself.” Dreyer v. United States, 349 F.Supp. 296, 305 (N.D.Ohio 1972), aff'd sub nom. Freeman v. United States, 509 F.2d 626 (6th Cir.1975); see also Ingham v. Eastern Air Lines, Inc. 373 F.2d 227, 236 (2d Cir.1967) (“It is now well es Cir.1969) (<HOLDING>). In Freeman, the Sixth Circuit held that Holdings: 0: holding that the statute of limitations begins to run under federal law when plaintiffs knew or should have known of the injury which forms the basis of their claims 1: holding all that is required to impose a duty to warn is that the defendant knew or should have known of a specific threat made to harm a specific person 2: holding that a cause of action accrues when the claimant knew or reasonably should have known of the wrong 3: holding that the faa controllers fully performed their duty to the plaintiffs based on what they knew and should have known about a planes lack of deicing equipment 4: holding that the hospital knew or should have known of the necessity to control based on a similar prior instance of inappropriate sexual conduct with a minor


Input: v. Evatt, 902 F.2d 273, 277 (4th Cir.1990) (citation and internal quotation marks omitted). The determination of a traditional “market rate” is especially pro blematic in the context of claims brought under the BLBA and the LHWCA, in view of their general prohibition of fee agreements between counsel and prospective claimants. See 38 U.S.C. § 928(e); 20 C.F.R. § 802.203(f); Cox, 602 F.3d at 290 (observing that “[t]he highly regulated markets governed by fee-shifting statutes are undoubtedly constrained and atypical”). However, despite such difficulties, a prevailing market rate still must be determined in BLBA and LHWCA cases before the relevant agency adjudicator may decide an attorney’s reasonable hourly rate. Cox, 602 F.3d at 290; see also Blum, 465 U.S. at 895, 104 S.Ct. 1541 (<HOLDING>). Although Eastern challenges the reliability Holdings: 0: holding that absent other evidence of prevailing market rates the district judge may establish a reasonable rate based on his familiarity with the prevailing rates in the area 1: recognizing that rates awarded in other cases do not set the prevailing market rateonly the market can do that 2: holding that reasonable fees must be calculated according to the prevailing market rates in the relevant community regardless of whether plaintiff is represented by private or nonprofit counsel 3: holding that the fee applicant must produce specific evidence of the prevailing market rates in the relevant community for the type of work for which he seeks an award 4: holding that a district judge may rely on his own knowledge of private firm hourly rates in the community in determining the prevailing market rate


Input: colluding with her or providing her with false information about the incident, to use concerns about his diabetic condition as a pretext for removing him from the public-works program. Finally, Davis asserted that there were similarly situated, non-homosexual, insulin-dependant diabetic inmates who participated in the public-works program and who were allowed to continue working in the program after this incident. The combined effect of these alleged facts, taken as true at this stage of the litigation, lead us to conclude that Davis has stated a plausible claim that he was improperly removed from the public-works program based upon the defendants’ anti-gay animus. Dismissal of this claim was improper. See Johnson v. Enable, 862 F.2d 314 (table), 1988 WL 119136, at *1 (4th Cir. 1988) (<HOLDING>). The district court mistakenly relied on a Holdings: 0: holding that a prisoner stated a valid equal protection claim when he alleged he was denied a work assignment because of his sexual orientation 1: holding sexual orientation is fundamental to a persons identity 2: recognizing harassment claim under equal protection clause based on sexual orientation 3: holding that sexual orientation and sexual identity are immutable 4: holding that a prisoner stated a valid free exercise of religion claim where he alleged that prison officials refused to allow him to receive certain religious books


Input: through his lawful deputy” (Doc. 26 at 9; see id. at 2), and Garcia-Contreras does not contest this {see Doc. 29 at 6-7). This is consistent with the parties' indications that service was accomplished through personal delivery. (See, e.g., Doc. 4 at 5 (referring to "the delivery of the complaint ... to the Plaintiff”).) Because the court's resolution of this claim rests ultimately upon the timing, not the manner, of service, the manner of service is not dispositive. 16 . To the extent Defendants’ position relies upon the assumption that only communications with the consumer can constitute "collection of the debt,” they have not provided any authority to support it and it is contrary to case law. Cf., e.g., Edeh v. Midland Credit Mgmt., Inc., 748 F.Supp.2d 1030, 1035-36 (D.Minn.2010) (<HOLDING>), aff'd, No. 10-3441, 413 Fed. Appx. 925, 2011 Holdings: 0: holding that reporting of historically accurate debt may violate the fcra when the reporting did not include that the debt was discharged in bankruptcy or that the debt was in dispute 1: holding that reporting a consumers debt to a creditreporting agency constitutes collection of the debt under  1692gb 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 effect of discharge of debt under bankruptcy code is the same as it was under the 1898 bankruptcy act it is not an extinguishment of the debt but only a bar to enforcement of the debt as a personal obligation of the debt or 4: holding that a debt collectors filing of a lawsuit on a debt that appears to be timebarred  is an unfair and unconscionable means of collecting the debt


Input: 29 U.S.C. § 213(a)(1). An employee working in a “bona fide administrative capacity” is someone: (1) Compensated on a salary or fee basis at a rate of not less than $455 per week ...; (2) Whose primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and (3) Whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance. 29 C.F.R. § 541.200(a) (emphasis added); see also Foster v. Nationwide Mut. Ins. Co., 710 F.3d 640, 642 (6th Cir.2013). An employee who satisfies all three elements falls within this “administrative exemption.” See Renfro v. Ind. Mich. Power Co., 497 F.3d 573, 576 (“Renfro II”) (6th Cir.2007) (<HOLDING>). Although the parties do not dispute that Holdings: 0: holding that in order to establish liability under the ada the plaintiff must demonstrate that the defendant was an employer within the meaning of the statute 1: holding that an employer must establish all three elements of the defense with regard to its employees in order to prevail 2: holding that an alien must establish that he was prejudiced by the alleged error in order to prevail on a due process claim 3: holding that an employer did not regard the plaintiff as disabled 4: holding that an alien must show error and substantial prejudice in order to prevail on a due process claim


Input: revealed sufficient evidence to confirm the original allegation of [sic] Mr. Bhatt and several supervisor’s [sic] destroying or dismissing citations. This investigation found, however, insufficient evidence to prove or disprove the allegations linking Mr. Bhatt or anyone else to criminal activity in obtaining illegal monetary benefits.” Calix, the author of the report, however, testified, “[A] ticket that’s destroyed in the sense I wrote it down meaning V, 2003 WL 21750608, at *3-*6 (Tex. App.-Austin Jul. 30, 2003, pet. denied) (mem.op.) (stating there was legally insufficient evidence plaintiffs subjective belief — that the conduct she reported violated the law — was objectively reasonable); Duvall v. Tex. Dept, of Human Servs., 82 S.W.3d 474, 482-83 (TexApp.-Austin 2002, no pet.) (<HOLDING>); Tex. Dep’t of Criminal Justice v. Terrell, 18 Holdings: 0: holding although there was some evidence plaintiff subjectively believed conduct he reported violated the law there was legally insufficient evidence this belief was reasonable 1: holding probationer who did not receive notice of specific offenses she was believed to have committed but had notice of probation terms states attorney believed were violated and of the facts constituting violation was not harmed 2: holding that the proper standard to apply  is to assume that the facts have occurred as reported and then determine  whether those facts constitute a violation of law or rule adopted pursuant to law 3: recognizing that the focus must be on whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial 4: holding there was no evidence a reasonably prudent employee in similar circumstances would have believed facts reported by plaintiff were a violation of law


Input: 428 N.E.2d 656, 661 (Ind.Ct.App.1981)). While we do not approve of Safety's failure to acknowledge Cinergy's letters, given the facts of this case, including the fact that Safety had issued excess umbrella policies that would not be implicated until after the primary and umbrella policies, we cannot conclude that Safety's silence equated to an express denial of coverage. Therefore, we must conclude that the trial court erred by concluding that Safety waived its right to arbitrate by failing to respond to Cinergy's letters. See, eg., Protective Ins., 428 N.E.2d at 661 (noting that "the failure of [the insurance company] to respond to the demand to defend letter is not evidence that [the insurance company] intended to waive its right to deny coverage"); see also MPACT, 802 N.E.2d at 910 (<HOLDING>). In addition, we agree that Safety did not act Holdings: 0: holding that substantial participation requires particular facts relating to each djefendants specific role in the preparation of each of the allegedly misleading statements 1: holding that failure to raise issue in brief constitutes waiver of appeal of the issue 2: holding the rationale of thomas requires waiver to apply to each issue not included in an objection 3: holding that the waiver in two previous contracts was insufficient to support waiver of the contract at issue in that appeal 4: holding that the issue of waiver requires an analysis of the specific facts in each case


Input: ranged from 6 to 9.2 ounces.” WP Art. at 3 (internal quotation marks omitted). 18 . Bassolino faces an additional hurdle in reaching even this contingency, as he claims to have purchased a product — chicken fingers. — -that is identified in neither the Press Release (which refers only to chicken tenders), DCA Rpt. at 2, nor the Moll Affidavit (which refers to chicken legs, chicken thighs, rotisserie chicken halves, split chicken breasts, and wing buckets), Moll Aff., Ex. A, as a product tested by the DCA. Plaintiffs' counsel conceded at argument that chicken fingers and tenders are "different form[s] of producéis]” that are "marketed differently.” Tr. 19-20; cf. White City Shopping Ctr., LP v. PR Restaurants LLC, 21 Mass.L.Rptr. 565, 2006 WL 3292641 (Mass.Super.Ct. Oct. 31, 2006) (<HOLDING>). Plaintiffs’ argument that it can be inferred Holdings: 0: holding that arguments that are not raised or that are not accompanied by factual and legal support are deemed waived 1: holding that tacos burritos and quesadillas are not sandwiches 2: holding that when regulations are intended to have different purposes and are not dependent on each other they are not intertwined 3: holding that arguments which are not sufficiently developed are waived 4: holding that ijssues that are raised only in the argument part of the brief and are not contained in the point relied on are not preserved for review


Input: on vagueness grounds. See, e.g., FCC v. Fox Television Stations, Inc., — U.S. -, 132 S.Ct. 2307, 2320, 183 L.Ed.2d 234 (2012). It follows, therefore, that because the Guidelines are “equivalent” to regulations, which are subject to constitutional challenges such as vagueness, the Guidelines should also be subject to vagueness challenges. Indeed, the Supreme Court has resolved both constitutional challenges to the Guidelines as a whole and individual Guidelines provisions. See, e.g., Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (upholding Guidelines as constitutional, not an excessive delegation of legislative power or a violation of the separation-of-powers doctrine); Wade v. United States, 504 U.S. 181, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992) (<HOLDING>). And in Stinson, the Court explained that Holdings: 0: holding that where a statute provides a procedure for judicial review of a bid protest a party may not circumvent the established procedures and was obligated either to pursue its right to judicial review or to file its declaratory judgment action in compliance with the procedures for administrative appeal set out in the statute 1: holding that the action of denying parole is not an adjudication subject to judicial review 2: holding that the governments refusal to file a substantialassistance motion under ussg  5k11 is subject to judicial review for unconstitutional motive 3: holding that because here the statutes in issue provide for judicial review via citizen suit provisions yet do not set forth a standard for that review judicial review is limited to apa review on the administrative record 4: holding that the filing of a motion for reconsideration does not toll the period for seeking judicial review of the underlying order


Input: a class be treated the same, unless the creditor who is being treated less favorably agrees to less favorable treatment.”). Thus, the Amended Plan satisfies 11 U.S.C. §§ 1122 and 1123(a). Further, pursuant to 11 U.S.C. § 1123(b), the Amended Plan properly preserves the Debtor’s ability to prosecute the Adversary Proceeding. See In re Tex. Gen. Petroleum Corp., 52 F.3d 1330, 1335 n. 4 (5th Cir.1995) (explaining that a debt- or may retain post-confirmation causes of action if the plan so provides). However, to the extent that the Amended Plan makes a blanket reservation of causes of action that may be pursued by the Debtor, these generic causes of action may not be preserved. See Dynasty Oil & Gas, LLC v. Citizens Bank (In re United Operating, LLC), 540 F.3d 351, 355-56 (5th Cir.2008) (<HOLDING>). Thus, in this particular respect, the Amended Holdings: 0: holding that a debtor cannot appeal a confirmation order on the basis that it unfairly discriminates against a class of claims 1: holding that fraud on the court must be supported by clear unequivocal and convincing evidence 2: holding that controlling shareholder of postconfirmation debtor could not pursue unlisted preconfirmation claim on behalf of creditors 3: holding that a debtor must make a specific and unequivocal reservation of claims that would effectively put its creditors on notice of any claim it wishes to pursue after confirmation 4: holding that the waiver of sovereign immunity must be clear and unequivocal


Input: 103. Because plaintiffs simultaneously filed a request for release of lien and an administrative claim for damages, the government argues they failed to file a proper request for certificate of release “prior” to filing their administrative claim for damages. As such, the government argues plaintiffs failed to exhaust their administrative remedies because their administrative claim for damages did not literally include a copy of a request for a certificate of release filed in accordance with § 401.6325-1©. The standard for taxpayer compliance with the statutory and regulatory requirements is high. See Venen, 38 F.3d at 103 (failure to petition IRS correctly constitutes failure to exhaust administrative remedies); Amwest Surety Ins. Co. v. United States, 28 F.3d 690, 696 (7th Cir.1994) (<HOLDING>); Veglia v. United States, 1996 WL 392159, *3-4 Holdings: 0: holding that dismissal under 42 usc  1997ea was required even though case had gone to trial as inmate had failed to exhaust administrative remedies 1: holding there is no statutory requirement that a taxpayer exhaust administrative remedies before filing a complaint in the tax court 2: holding that plaintiff failed to exhaust administrative remedies by failing to include issue in case brief 3: holding that plaintiff failed to exhaust administrative remedies where plaintiff sent a letter to the attorney general grieving the initial agency determination instead of following the administrative appeal process specified by agency regulations 4: recognizing harsh result but holding that taxpayer who addressed letter to revenue officer rather than district director as required by regulation failed to petition irs correctly and thus failed to exhaust administrative remedies


Input: on the child’s dependence upon her.” Id. at 75-76 (citing Pamela L. v. Farmer, 112 Cal.App.3d 206, 169 Cal.Rptr. 282 (1980)). ¶ 17. As with Mississippi’s premises liability and teacher liability doctrines, California’s spousal liability is based on the foreseeability of the husband or wife’s behavior. “[WJhere a child is sexually assaulted in the defendant wife’s home by her husband, the wife’s duty of reasonable care to the injured child depends on whether the husband’s behavior was ented evidence that she had reported to her teacher that she had been slapped, scratched, and kicked by her classmates in the past, creating a jury issue of whether her teacher should have foreseen her being injured by her classmates. Summers, 759 So.2d at 1214 (¶ 48); see also Doe, 930 S.W.2d at 927 (<HOLDING>). ¶21. In contrast, Perlman had known Adkins Holdings: 0: holding that the plaintiffs evidence of pretext which included but was not limited to her supervisors statement that she had enough of the plaintiff going to her supervisor about her was not sufficient to preclude summary judgment 1: holding that the elevenyearold victims twentyonemonth delay in reporting her grandfathers inappropriate sexual conduct was adequately explained where the child testified that she did not tell anyone about the incident because her grandfather told her not to tell she did not think anybody was going to believe her and she felt scared and threatened by the defendant 2: holding that a grandmother could be held liable for failure to protect her granddaughter from a known risk of sexual abuse by the grandfather 3: holding evidence granddaughter told her grandmother she was being molested by her grandfather was sufficient to raise factual issue about grandmothers knowledge of husbands sexual activities 4: holding that a grandmother who frequently babysat her granddaughter was not in loco parentis and thus lacked standing to seek custody of her granddaughter


Input: the ordinary course of the business of the partnership.” N.Y.Ptnrship L. § 24. The liability of any partner is limited to wrongful acts occurring “while the defendant was a partner”, Halperin v. Edwards and Hanly, 430 F.Supp. 121, 125 (E.D.N.Y.1977). Thus, before a defendant may be found liable for the acts of his partners it must be found: (1) that the partner committed the acts at issue in the ordinary course of the business of the partnership and (2) that the defendant was a partner at the time the acts were committed. Because the nature of their liability is joint and several, it has been held that a partner is not an indispensible party in an action naming other partners or the partnership as parties defendant. See Cone Mills Corp. v. Hurdle, 369 F.Supp. 426, 438 (N.D.Miss.1974) (<HOLDING>). Instead, it has been held that a plaintiff Holdings: 0: holding that joint and several liability for entire actual loss could have been imposed on each fraud defendant as condition of probation 1: recognizing that where liability is joint and several among multiple parties complete relief may be granted with respect to any one of them 2: recognizing forfeiture liability among criminal confederates to be joint and several 3: holding that a lump sum verdict on punitive damages against all defendants was improper since there can be no joint and several liability or contribution 4: holding that all partners are not indispensible parties defendant where state law provides for partners joint and several liability


Input: Bank of Boston v. Bellotti, 435 U.S. 765, 792 n. 32, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978) (observing that “[i]dentification of the source of [ballot referendum] advertising may be required as a means of disclosure, so that the people will be able to evaluate the arguments to which they are being subjected”). Citizens United only confirmed the breadth of Congress’ power in this regard. See Citizens United, 130 S.Ct. at 915 (“Even if the ads only pertain to a commercial transaction, the public has an interest in knowing who is speaking about a candidate shortly before an election”); see also Doe v. Reed, — U.S. -, 130 S.Ct. 2811, 2819-22, 177 L.Ed.2d 493 (2010) (upholding disclosure requirement for petition signatories); Natn’l Org. for Marriage v. McKee, 649 F.3d 34, 70 (1st Cir.2011) (<HOLDING>). C Real Truth advances several other reasons Holdings: 0: holding that ors 1660651e 1985 was unconstitutional because it potentially reached areas of communication that would be constitutionally privileged and it incorporated a definition of obscenity that was unconstitutionally vague 1: holding that a court cannot construe claims to read an express limitation out of the claim or render it meaningless 2: holding that duration of limitation is a factor in determining whether limitation is significant 3: holding that state express advocacy definition without an electioneering communication limitation was not vague 4: holding that threat as used in the coercion definition as that definition is incorporated into section 3605s witnesstampering prohibition was not unconstitutionally vague because nature of threat was informed by the harms enumerated in the definition in that case hatred contempt and ridicule


Input: the technical complications. The judgment, however, should have complied with the technicalities, that is, it should have been entered in the name of the actual plaintiff. 5 . Even if the law were otherwise, the right to a setoff here would be far from clear. Mr. Bozeman and General Motors were not joint tortfeasors. See D’Amario v. Ford Motor Co., 806 So.2d 424, 435 (Fla.2001) (treating person who caused wreck and crashworthiness defendant as successive, not joint, tortfea-sors). Setoffs generally are available only with respect to joint tortfeasors. See, e.g., Ellingson v. Willis, 170 So.2d 311, 316 (Fla. 1st DCA 1964), overruled on other grounds, Devlin v. McMannis, 231 So.2d 194 (Fla.1970); see also Gordon v. Marvin M. Rosenberg, D.D.S., P.A., 654 So.2d 643, 645 (Fla. 4th DCA 1995) (<HOLDING>). If damages were indivisible, these defendants Holdings: 0: holding that the separate and distinct claims of two or more plaintiffs cannot be aggregated to establish jurisdiction 1: holding that a breach of contract claim against one defendant related back to interference with contract claim against that defendant and breach of contract claim against second defendant because it was based on same set of operative facts 2: holding that settlement with one defendant could not be setoff from verdict against second defendant where the claims were separate and distinct ie involving different elements of damages 3: holding that a claim for damages based on creditors failure to honor a rescission notice is separate and distinct from any claims associated with disclosures at the time of closing 4: holding that a plaintiff could not add civil claim based upon different facts that are separate and distinct both qualitatively and temporally  and relate to the conduct of different individuals from facts in administrative charge


Input: who had not filed a notice of appearance as co-counsel, attended the hearing on behalf of Coutts. Nevertheless, the hearing proceeded as scheduled. When the trial court inquired of coverage counsel if he was prepared to present evidence, coverage counsel stated to the court: “This can be decided as a matter of law.” At the conclusion of the hearing, the trial court entered an order denying Coutts’s motion. On appeal, Coutts maintains, inter alia, that the trial court erred because it failed to afford the appellant an evidentia-ry hearing. This argument is without merit, as Coutts’s coverage counsel affirmatively advised the court that no eviden-tiary hearing was necessary and that the issue could be decided as a matter of law. See Pope v. State, 441 So.2d 1073, 1076 (Fla.1983) (<HOLDING>); Behar v. Southeast Banks Trust Co., N.A., 374 Holdings: 0: holding that a party failing to make a timely objection to evidence at trial cannot as a matter of law be heard to complain on appeal that its admission is error constituting an irregularity in the proceeding 1: holding that defendant may not complain of error he invited and further holding that reversal cannot be based on such error 2: holding that a party may not invite error and then be heard to complain of that error on appeal 3: recognizing that a party cannot complain on appeal that the trial court considered an issue that that party consented to submit to the trial court 4: holding that invited error does not entitle the defendant to any relief and of which he will not be heard to complain on appeal


Input: protect its interest by “do[ing] and pay[ing] whatever is necessary to protect the value of the Property and the Lender’s rights in the property ....” Nothing in these terms requires the lender to purchase the cheapest insurance or the insurance that provides the most value for the borrower. Thus, Standard Mortgage did not act on Robinson’s behalf when it force-placed insurance coverage; it acted to protect its oum interest in the mortgaged property—an interest that Robinson threatened by breaching her own contractual duty to maintain insurance coverage. So although Robinson sprinkles her complaint with the “kickback” label, the commissions and portfolio monitoring that SM Insurance provided to Standard Mortgaged were “not. ,kickback[s] in any meaningful sense.” Cohen, 735 F.3d at 611 (<HOLDING>); see also Feaz, 745 F.3d at 1111 (agreeing Holdings: 0: recognizing in a materially similar situation the authority of mortgage electronic registration system inc to assign both the note and deed of trust on behalf of the original lender and the lenders successors and assigns 1: holding lender might be held responsible for buyers alleged damages where facts indicated lenders active participation in the sale of the residence or the existence of a special relationship between the lender and the borrower 2: holding that commission paid to mortgage lenders affiliate for forceplacing insurance was not a kickback when the lender was subject to an undivided loyalty to itself and it made this clear from the start 3: holding that it was not improper for a lender to halt the proposed settlement and discounted payment of plaintiffs loan when the lender believed the loan would otherwise be paid in full 4: holding assignment of a mortgage was not subject to article 9