Input: separable from it. Whimsicality, Inc. v. Rubie’s Costume Co., 891 F.2d at 455 (observing that garments’ decorative elements are “particularly unlikely to meet [the] test” of conceptual separability.) No different conclusion is warranted by § 101’s definition of a “useful article” as one having an intrinsic utilitarian function “that is not merely to portray the appearance of the article or to convey information.” Although Jovani argues that a decoration on a dress necessarily “portrays the appearance” of the dress and, therefore, is outside the scope of usefulness, we have construed this statutory phrase more narrowly to identify only a small category of items whose sole usefulness resides in their appearance. See Hart v. Dan Chase Taxidermy Supply Co., 86 F.3d 320, 323 (2d Cir.1996) (<HOLDING>); accord Chosun Int’l Inc. v. Chrisha Holdings: 0: recognizing that the court may take judicial notice of its own docket 1: holding that lack of standing cannot be waived and may be raised for the first time by an appellate court on its own motion 2: holding that taxidermy mannequin for fish skins has function of portraying its own appearance and therefore may be copyrighted 3: holding that imposition of punishment is a judicial function 4: holding that appellate court may judicially notice its own records


Input: their arguments to the jury.” State v. Miller, 271 N.C. 646, 659, 157 S.E.2d 335, 346 (1967). Further, the control of counsel’s arguments “must be left largely to the discretion of the trial judge,” State v. Johnson, 298 N.C. 355, 369, 259 S.E.2d 752, 761 (1979), because the trial judge ‘sees what is done, and hears what is said. He is cognizant of all the surrounding circumstances, and is a better judge of the lati tude that ought to be allowed to counsel in the argument of any particular case.’ State v. Thompson, 278 N.C. 277, supporting the jury’s verdict notwithstanding improper characterizations regarding the veracity of witnesses’ statements has been sufficient in some cases to prevent the imposition of a new trial. See e.g. State v. Sexton, 336 N.C. 321, 444 S.E.2d 879 (1994) (<HOLDING>); Thompson, 278 N.C. at 277, 179 S.E.2d at 315 Holdings: 0: holding that it is improper for a prosecutor to assume the existence of prejudicial facts not in evidence 1: holding it was improper for prosecutor to inject personal opinion in statements to the jury in closing argument 2: holding that even if the statements were improperly admitted any error was harmless since there was overwhelming evidence connecting the defendant to the conspiracy 3: holding that statements to the jury made by the prosecutor asserting that a defense witness was lying was improper but considering all the facts and circumstances revealed in the record which showed overwhelming evidence against the defendant such statements did not constitute a prejudicial error 4: holding that prosecutors statements regarding his opinion as to the truthfulness of a defense witness considering the evidence against the defendant did not reach the level of the grossly improper statements which would require the trial court to correct them ex mero motu


Input: v. Chambers County Comm’n, 514 U.S. 35, 49-51, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995); Limone v. Condon, 372 F.3d 39, 51-52 (1st Cir.2004). The Secretary offers no developed argumentation on this point and, as matters stand, we believe that this case is not a credible candidate for the exercise of pendent appellate jurisdiction. 4 . The Secretary makes a fifth argument: that the relief ordered by the district court requires Puerto Rican officials to act in contravention of local law. The district court refused to address this argument on the ground that the Secretary did not sufficiently specify the nature of the alleged violations. That ruling is supportable, and it precludes reliance on the argument here. See Teamsters Union v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir.1991) (<HOLDING>). In all events, the Secretary's appellate Holdings: 0: holding that an issue not raised in the trial court cannot be raised for the first time on appeal 1: holding arguments not raised on appeal waived 2: holding that issues not raised before the trial court cannot be raised on appeal 3: holding that arguments not squarely raised in the trial court cannot be advanced on appeal 4: holding that issues not raised in the trial court may not be raised later on appeal


Input: resolutions to the CORC within four days to account for prison officials’ hypothetical non-implementation of a favorable IGP disposition would be impracticable and un-doubtably burdensome on the CORC and the IGP. Indeed, it would be counterintui-tive to require inmates who win during the grievance process to appeal their victories. See Sutton v. Wright, 265 F.Supp.2d 292, 298-99 (S.D.N.Y.2003) (“If a prisoner had to grieve non-compliance with favorable decisions under the PLRA, prison officials could keep prisoners out of court indefinitely by saying ‘yes’ to their grievances and 'no’ in practice.”) (citing Kaplan, 2000 WL 959728, at *3). Here, Abney repeatedly obtained favorable rulings on his grievances through the IGP. He adequately pleads that defendants never implemented the 01) (<HOLDING>); Underwood v. Wilson, 151 F.3d 292, 295 (5th Holdings: 0: holding that a remedy that prison officials prevent a prisoner from utilizing is not an available remedy under  1997e 1: holding that inmate plaintiff satisfied  1997ea where he attempted to exhaust all available administrative remedies but was prevented from doing so by prison personnel 2: recognizing that officials failure timely to respond to grievance could be basis for prisoner to show he exhausted available administrative remedies 3: holding remedy not available to prisoner where officials purportedly prevented plaintiff from employing the prisons administrative remedies 4: holding remedies not available to prisoner where officials failed to respond to his grievance during time period required by regulations


Input: and therefore, would benefit from a judgment in this action, is within the complete control of the defendant. In May, 1995, the Commissioner claimed that a search of her records was being conducted to identify all potential class members, but that she would need at least another six months to complete the process. Six months have expired and no information has been filed with the Court in connection with the number of existing and potential class members. Although the Andres bear the burden of proving that the requirements for class certification have been met, this Court will not require the Andres to demonstrate the number of class members with live claims before deciding to certify the class. See Ventura v. New York City Health and Hosp. Corp., 125 F.R.D. 595, 599 (S.D.N.Y.1989) (<HOLDING>); Lewis v. Gross, 663 F.Supp. 1164, 1169 Holdings: 0: holding that a plaintiffs lack of knowledge regarding the number of affected persons does not bar class certification when defendant has the means to identify those persons at will 1: holding that states are persons but conceding that this change was not envisioned as broadening the class of persons who could be held liable under the act 2: holding that bond protecting those persons who do work or furnish materials did not protect bank lending money to contractor for payment to those persons 3: holding that the mere existence of individualized factual questions with respect to the class representatives claim will not bar class certification 4: holding lay persons performing tasks relating to real estate transactions were engaged in the unauthorized practice of law and explaining it is the duty of the court to protect the public from the activity of those who because of lack of professional skills may cause injury whether they are members of the bar or persons never qualified for or admitted to the bar quotation marks and citation omitted


Input: a new trial is warranted only if the false testimony was material to the jury’s verdict, leaving the trial court with a firm belief that, but for the perjured testimony, the defendant would most likely not have been convicted. See id. at 299-302. The district court acted well within its discretion in concluding that t hapovalov’s mendacity, it was similarly cumulative of his numerous lies disclosed at trial. Indeed, that trial evidence as to deceit and fraud was sufficiently extensive to allow Karlov’s counsel to secure admissions from Shapovalov that he had “lied repeatedly, over and over again” and “led a life committing a lot of crimes.” Tr. 1287; see id. at 1475 (arguing in summation that record showed Shapovalov to be “pathological liar”); United States v. White, 972 F.2d at 21 (<HOLDING>). In urging otherwise, Karlov submits that Holdings: 0: holding that the defendants due process rights were violated when the trial judge singled out the only defense witness and indicated to that witness that he expected the witness to he and would personally ensure that the witness was prosecuted for perjury and thereby effectively drove that witness off the stand 1: holding that a trial witnesss testimony as to the credibility of another witness was prejudicial error 2: holding evidence that witness lied on stand cumulative where witness was aggressively crossexamined by the defendants lawyer who relentlessly attacked witnesss credibility called him a liar and emphasized his lack of veracity in the past 3: holding that new evidence impeaching credibility of governments key witness was cumulative of other evidence of witness criminal activity 4: holding that promises made by the prosecution to a witness in exchange for that witness testimony relate directly to the credibility of the witness


Input: that the witnesses reported that a revolver was used. Trial counsel questioned Sergeant Nieto on the possibility of the revolver being fake, and Sergeant Nie-to responded that he “would think that someone would know a real gun from a fake gun.” Testimony from a complainant in close proximity to a weapon, describing it as a “gun,” a “revolver,” and a “pistol,” is sufficient to prove the use of a deadly weapon. Wright v. State, 591 S.W.2d 458, 459 (Tex.Crim.App.1979). It is true that courts have held that testimony regarding the use of a “gun” may be insufficient to support a finding of use and exhibition of a deadly weapon when the case presents separate evidence indicating the use of a toy gun. See Pena Cortez v. State, 732 S.W.2d 713, 715 (Tex.App.-Corpus Christi 1987, no pet.) (<HOLDING>). Here, there was testimony that described the Holdings: 0: holding that testimony regarding a little pistol defendant carried was inadmissible where nothing in the record linked the little pistol to the gun used in the crimes charged 1: holding that evidence was sufficient to prove defendant constructively possessed the gun where although defendant denied ownership of the gun it was found near a knife of which defendant claimed ownership and where defendant was aware of the presence of the gun 2: holding that if a person threatens to shoot another with  a chocolate candy pistol there is no ability to commit  any injury with it on the person of another 3: holding direct testimony tying a defendant to a gun was not required when the gun was found in the defendants truck and when the defendant had both ammunition for the gun and a rack in which it could have been kept 4: holding that testimony regarding use of pistol was insufficient where it was uncontroverted that pistol was toy gun


Input: hearing. II. In reaching this holding, the Court is aware that several other courts, including district courts in this Circuit, have interpreted § 7 as giving arbitrators powers beyond the reading provided by this Court. But the courts that have given the statute a broader reading are not binding on this Court. See, e.g., Fox v. Acadia St. Bank, 937 F.2d 1566, 1570 (11th Cir.1991) (“A district court is not bound by another district court’s decision, or even an opinion by another judge of the same district court.”). The Court is unpersuaded by the reasoning expanding an arbitrator’s power to permit pre-hearing discovery from non-parties. Simply put, they do not base their analysis on the text of § 7, but rather on its supposed implications. See, e.g., In re Security, 228 F.3d at 870-71 (<HOLDING>). It becomes necessary to rely on such Holdings: 0: holding that the recognition power is not limited to a determination of the government to be recognized but rather includes the power to take actions without which the power of recognition might be thwarted 1: holding that implicit in the arbitrators power to subpoena relevant documents at hearing is the power to order prehearing discovery 2: recognizing the subpoena power of the judiciary 3: holding that the issuing court necessarily has the power to enforce a protective order it issued at any point it is in effect even after entry of a final judgment and courts enjoy the inherent power to modify any discovery related orders postjudgment 4: holding that the subpoena power of a court cannot be more extensive than its jurisdiction


Input: more so when, as here, the manufacturer affirmatively and successfully limits the market of its product to professionals. In such a case, the manufacturer should not be burdened with the often difficult task of providing instructions on how to properly perform the basic operation. Antcliff v. State Employees Credit Union, 414 Mich. 624, 327 N.W.2d 814, 821 (1982). See also, Parker v. Schmiede Machine and Tool Corp., 445 Fed.Appx. 231, 234 (11th Cir.2011) (explaining that under Georgia law, the sophisticated user or learned intermediary doctrine relieves a manufacturer of liability for failure to warn where members of the profession to whom the product is sold are generally aware of hazards known to the trade); Carmical v. Bell Helicopter Textron, Inc., 117 F.3d 490, 495 (11th Cir.1997) (<HOLDING>); Powell Duffryn Terminals, Inc. v. Calgon Holdings: 0: holding that helicopter manufacturer had no duty under georgia law to warn pilot that loss of lubrication to gearshaft could result in engine failure where pilot knew that maintenance of an oil lubricated engine required lubrication to engine 1: holding in a negligence action that the air traffic controllers failure to warn of an impending danger cannot be the proximate cause of an injury after the pilot himself discovered its presence appreciated the danger and decided to fly ahead into it 2: 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 3: holding that a failure to warn was not a policy judgment 4: holding that oil suppliers had no duty to warn of danger to commercial customer whose negligence or oversight resulted in explosion that injured its employee


Input: § 2000aa-7(a). 10 . Although not material to the analysis here, it is worth noting that one circuit has held that the government may use grand jury subpoenas to obtain documentary materials, but not work product materials. See Guest v. Leis, 255 F.3d 325, 341 (6th Cir.2001). 11 .The PPA also includes a provision allowing government officials to use search and seizure in cases where there is a valid concern that "the giving of notice pursuant to a subpoena duces tecum would result in the destruction, alteration, or concealment of such materials.” 42 U.S.C. § 2000aa(b)(3). This exception does not apply to work product materials. 12 . The Supreme Court has endorsed the use of video footage on summary judgment. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (<HOLDING>). 13 . In her sworn declaration, Sennett states Holdings: 0: holding that the court of appeals should not have relied on   visible fiction it should have viewed the facts in the light depicted by the videotape 1: holding that appellate court should have viewed facts of highspeed police chase in the light depicted by a videotape of the events 2: holding that when reviewing a challenge to the sufficiency of the evidence all evidence is viewed in the light most favorable to the government 3: holding that questions of reasonableness depend upon the facts and circumstances  the total atmosphere of the case citation omitted  which must be viewed in the light of established fourth amendment principles 4: holding record is viewed in light most favorable to verdict


Input: for a writ of certiorari passed without Spencer requesting Supreme Court review. See United States v. Burch, 202 F.3d 1274, 1278 (10th Cir.2000). Because, according to the district court, Spencer’s conviction became final on November 9, 2006, he had until November 9, 2007 to file his § 2255 motion. 28 U.S.C. § 2255(f)(1). As Spencer did not file that motion until December 10, 2007, the district court concluded the motion was untimely unless Spencer was entitled to have the limitations period equitably tolled. Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir.2000). Because Spencer had failed to demonstrate he had diligently pursued the claims in his § 2255 motion, the district court exercised its discretion and denied equitable tolling. Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir.2000) (<HOLDING>). The granting of a COA is a jurisdictional Holdings: 0: holding that equitable tolling is available when a movant untimely files because of extraordinary circumstances that are both beyond his control and unavoidable even with diligence 1: holding that equitable tolling is only available when an inmate diligently pursues his claims and demonstrates that the failure to timely file was caused by extraordinary circumstances beyond his control 2: holding that lack of knowledge of state court decision may provide basis for equitable tolling when prisoner acts diligently 3: holding that ejquitable tolling is appropriate when a movant untimely files because of extraordinary circumstances that are both beyond his control and unavoidable even with diligence 4: holding that equitable tolling under  2255 would be allowed if at all only for extraordinary circumstances


Input: and second disability hearings in this case effectively establish the transferability of Lamorey’s receptionist skills to an alternative position, such as information clerk, that would not require frequent and repetitious use of her hands and fingers, which was the crucial physical limitation precluding Lamorey from returning to her past work. See generally Draegert v. Barnhart, 311 F.3d 468, 474 (2d Cir.2002). This testimony was essentially unchallenged at the hearings, and Lamorey fails to show that anything further would be gained by a remand. Cf. Butts v. Barnhart, 388 F.3d at 386-87 (concluding that remand for step five determination was appropriate where the record was incomplete because the ALJ failed to call a vocational expert); Williams v. Apfel, 204 F.3d 48, 50 (2d Cir.1999) (<HOLDING>); of also Shaw v. Chater, 221 F.3d at 135 Holdings: 0: holding that remand is the appropriate remedy where inter alia the board has incorrectly applied the law 1: holding that a sentence four remand under 42 usc  405g is a final appealable decision and that a party who wins a remand under sentence four is a prevailing party for purposes of the eaja 2: holding that the appropriate remedy for a public trial violation was a new suppression hearing not a new trial because the remedy should be appropriate to the violation 3: holding that remand was the appropriate remedy when an erroneous step four determination has precluded any analysis under step five 4: holding that dismissal is not appropriate when that step could jeopardize the timeliness of a collateral attack


Input: 49 . See, e.g., Anastas v. American Sav. Bank (In re Anastas), 94 F.3d 1280, 1285-86 (9th Cir.1996); Feld, 203 B.R. at 367; See also American Express Travel Related Serv. Co, v. Christensen (In re Christensen), 193 B.R. 863, 866 (N.D.Ill.1996); Chevy Chase Bank, FSB (In re Briese), 196 B.R. 440, 448 (Bankr.W.D.Wis.1996). Contra Feld, at 367 n. 1 Walters), 208 B.R. 651, 654-55 (W.D.La.1997); FCC Nat’l Bank v. Etto (In re Etto), 210 B.R. 734, 739-40 (Bankr.N.D.Ohio 1997); AT&T Universal Card Serv. Corp. v. Akdogan (In re Akdogan), 204 B.R. 90, 97 (Bankr.E.D.N.Y.1997) (stating that a creditor must do a credit check or some other circumstances must exist to prove it did not extend credit blindly); Bank One Columbus, N.A. v. McDaniel (In re McDaniel), 202 B.R. 74, 78 (Bankr.N.D.Tex. 1996) (<HOLDING>); AT&T Universal Card Serv. v. Richards (In re Holdings: 0: holding that  523a2a requires justifiable but not reasonable reliance 1: holding that in fraud and nondisclosure claims a plaintiff must show actual and justifiable reliance 2: holding that a creditor cannot sit back and do nothing and still meet the standard for justifiable reliance when it had an opportunity to make an adequate examination and investigation 3: holding standard under section 523a2a is justifiable reliance 4: holding no justifiable reliance as a matter of law


Input: § 132(e). Requirement that Withholding Obligation be Precise and Non-Speculative Since “the employer is in a secondary position as to liability for any tax of the employee, it is a matter of obvious concern that ... the employer’s obligation to withhold be precise and not speculative.” Central Ill. Pub. Serv. Co. v. United States, 435 U.S. 21, 31, 98 S.Ct. 917, 923, 55 L.Ed.2d 82 (1978). A duty to withhold income taxes on payments made to its employees should not be imposed retroactively on an employer unless there was adequate notice (from the relevant statutes, regulations, and IRS pronouncements) to the employer at the time of the payments that such a withholding obligation existed. See Humble Oil & Refining Co. v. United States, 194 Ct.Cl. 920, 442 F.2d 1362, 1369-70 (1971) (<HOLDING>). See also Hotel Conquistador, Inc. v. United Holdings: 0: holding that the employer was not required to withhold or pay fica and futa taxes in 1971 with respect to the free meals it furnished its employees because the employer could not have told from the relevant statutes and regulations that the free meals were remuneration and thus wages 1: holding that the plaintiffs failed to state a cause of action under  301 of the lmra because absent an express contractual provision there is no prohibition against an employer moving its operations to another state 2: holding that the employer was not required to withhold income tax from its payments of moving expenses to its existing employees where the state of the law in 1961 gave the employer no reason to suspect that such payments constituted wages 3: holding that no liberty interest was implicated where the public reason for employees dismissal was that their services did not meet the expectations of the public employer 4: holding that glc 152 15 provides that the only party immune from suit under the statute is the direct employer a special employer is not immune because the special employer is not liable for the payment of workers compensation and there was no agreement between the direct employer and the special employer that the special employer would be liable for the payment of such compensation


Input: award of the prize is determined by chance. K.S.A. 21-4302(b); State ex rel. Stephan v. Finney, 254 Kan. 632, 644, 867 P.2d 1034 (1994). It is undisputed that the first two elements are present. The only issue in this case is whether Kandu Challenge is a game of chance. The district court applied a “ 'dominant factor ” test to answer this question. The source of this test in Kansas is Games Management, Inc. v. Owens, 233 Kan. 444, 662 P.2d 260 (1983). In Games, our Supreme Court held that under the facts of the case, certain video poker games were not prohibited gambling devices. 233 Kan. at 448-49. After resolving this main issue, the court also examined the State’s argument thát the winners of the video poker games were determined by chance. 194 Neb. 715, 717, 235 N.W.2d 398 (1975) (<HOLDING>). Three Kings does not directly challenge the Holdings: 0: holding that the first amendment protects communicative aspects of video games 1: holding that while broadcasts of basketball games are copyrightable the scores of basketball games represent purely factual information which any patron of an nba game could acquire from the arena as such the underlying games are not copyrightable 2: holding that poker and bridge are predominately games of chance 3: holding that broadcasts of national basketball association games are copyrightable but that the games themselves are not copyrightable as such copyright preemption did not apply 4: holding that the video games at issue are expressive and qualify as speech for purposes of the first amendment


Input: in checking on the welfare of someone who is not responsive to knocks on a window is high, as he could have been ill and in need of medical assistance, or he could have been intoxicated and about to drive off in the vehicle, which was running. Officer Ayler did not use any force with Cruz-Salazar and, in fact, unsuccessfully attempted to get him a ride home rather than arrest him. And Officer Ayler had no other means of making contact with Cruz-Salazar to check his welfare, as Cruz-Salazar was nonresponsive to his initial attempts at contact without opening the truck door. [16] We hold that Officer Ayler’s conduct did not violate Cruz-Salazar’s Fourth Amendment right to be free from unreasonable search and seizure. See, e.g., Szabo v. State, 2015 Ark. App. 512, 470 S.W.3d 696 (2015) (<HOLDING>). For these same reasons, we hold that Officer Holdings: 0: holding investigative stop based on officers observation of defendant apparently asleep in legally parked car was improper 1: holding officers conduct appropriate under community caretaking function and no fourth amendment violation where officer opened car door to wake defendant after observing him either unconscious or sound asleep in drivers seat of running vehicle and did not respond to knocks on the window 2: holding that officers encounter with defendant a frontseat passenger in a car stopped for speeding evolved into investigatory stop without reasonable suspicion of criminal activity when defendant refused to give officer his name and officer walked around to passengers door positioned himself there and called for backup when he did not know whether defendant had been wearing his seat belt while the car was in motion any reasonable person would believe they were not free to leave when officer positioned himself outside their car door and called for backup 3: holding a car was broken into or entered when defendant reached in through the open window of a car 4: holding that officers detaining a driver who parked and exited his car quickly as they approached in their patrol vehicle did not violate his fourth amendment rights by requiring him to get back in his car before questioning him


Input: Hector Estuardo Zavala Archila (“Zavala”) is a native and citizen of Guatemala. Zavala appeals the Board of Immigration Appeals’ (“BIA”) denial of his application for suspension of deportation. While we lack jurisdiction over the BIA’s discretionary determinations, we have jurisdiction over Zavala’s due process challenge to the BIA’s failure to fully and properly consider the evidence supporting a finding of extreme hardship. See Torres-Aguilar v. INS, 246 F.3d 1267, 1270-71 (9th Cir.2001) (<HOLDING>). We grant the petition and remand to the BIA Holdings: 0: recognizing that the iirira strips the court of jurisdiction over the attorney generals discretionary extreme hardship determination but retaining jurisdiction over constitutional due process claims 1: recognizing that failure to exhaust an issue before the bia strips us of jurisdiction 2: holding that the court of federal claims lacked jurisdiction over claims arising from the violation of a criminal statute 3: holding that the court of appeals has jurisdiction to decide its jurisdiction under the transitional rules of the iirira 4: holding over


Input: contained in his plea agreement. This court closely scrutinizes the Rule 11 colloquy and has emphasized that an appropriately conducted guilty plea proceeding raises a strong presumption that the plea is final and binding. United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir.1992). Felder’s challenge to the adequacy of the Rule 11 hearing is not supported by the record. Accordingly, we conclude the district court conducted a proper Rule 11 hearing. Felder has also appealed the district court’s denial of his motion to reconsider his sentence. Because Felder has failed to raise any arguments in his brief regarding the denial of his motion to reconsider his sentence, the review of that issue is waived. See Canady v. Crestar Mortgage Corp., 109 F.3d 969, 973-74 (4th Cir.l997)(<HOLDING>). Next, Felder asserts his indictment was Holdings: 0: holding that issues not briefed are deemed abandoned 1: holding that generally arguments not briefed on appeal are deemed abandoned or waived 2: holding issues raised in notice of appeal but not briefed are deemed waived 3: holding that issues not briefed on appeal are deemed abandoned 4: recognizing that arguments not briefed on appeal are waived


Input: (Ind.App.1999) (recognizing that child has right to have his parents present during custodial interrogation); State v. Walker, 352 N.W.2d 239 (Iowa 1984) (statute implicitly requires that, after notification of parents, police wait before interrogation to allow parents time to come to station and consult with child); M.A.C. v. Harrison County Family Court, 566 So.2d 472 (Miss.1990) (hold ing that deliberate exclusion of parents from child’s interrogation renders statements inadmissible); Ezell v. State, 489 P.2d 781, 783-84 (OMa.Crim.App.1971) (finding that neither mother nor legal guardian of juvenile defendant was “capable of protecting defendant’s constitutional rights,” thereby rendering juvenile’s confession inadmissible); Edward C. v. Collings, 193 Mont 426, 632 P.2d 325 (1981) (<HOLDING>); In re D.S., 263 N.W.2d 114 (N.D.1978) Holdings: 0: holding that juveniles may not waive counsel unless parent or guardian also waives that right 1: holding relation back permitted where a complaint misnamed a parent as guardian rather than the child by and through the parent as guardian 2: recognizing juveniles right to counsel in certain juvenile proceedings 3: holding that juveniles may waive constitutional rights 4: holding that juveniles may waive right to counsel only upon advice of counsel


Input: Ellis, 126 S.W.3d 324, 330 (Tex.App.-Dallas 2004, no pet.). Therefore, our determination is limited to whether MCD is bound by the arbitration agreement as a third-party beneficiary or under a theory of estoppel. Third-Party Beneficiary Courts treat arbitration agreements as other contracts in applying the legal rules to interpret them. In re Olshan Foundation Repair, Co. LLC, 328 S.W.3d 883, 889 (Tex.2010). “The goal is to discern the true intentions of the parties, as the FAA’s primary purpose is to ensure private agreements to arbitrate and enforce according to their terms, no more, no less.” Id. A third-party beneficiary to a contract can compel or be compelled to arbitrate under an arbitration provision in a contract. See In re NEXT Fin. Group Inc., 271 S.W.3d 263, 267 (Tex.2008) (<HOLDING>). Generally, however, “there is a presumption Holdings: 0: holding that plaintiff could not prevail as a thirdparty beneficiary where contract was not valid 1: holding that the governments cooperation with a thirdparty is not sufficient to establish a thirdparty beneficiary relationship 2: holding that the thirdparty beneficiary theory did not apply 3: recognizing common law cause of action as thirdparty beneficiary 4: holding employer thirdparty beneficiary could compel arbitration


Input: value of the profit, including reasonable overhead, the lessor would have made from full performance ... together with any incidental damages ... due allowance for costs reasonably incurred and due credit for payments or proceeds of distribution.” 7 . Other "tests” have been adopted. For example, in Sunrick v. Pacific Foods of Oregon, 2004 WL 1124495 (D.Or.2004), the District Court for the District of Oregon held that "[a]s an alleged lost volume seller, Pacific therefore bears the burden of establishing that its production capacity was such that, if Sunrich had not breached the Packing Agreement, Pacific would have been able to meet Sunrich’s requirements, as well as the needs of alternative buyers.” See also Van Ness Motors v. Vikram, 221 N.J.Super. 543, 535 A.2d 510, 511 (A.D.1987) (<HOLDING>); Iran v. Boeing Co., 771 F.2d 1279 (9th Holdings: 0: holding that purchaser could rescind contract where seller failed to disclose a fact  the flooding of the subject real estate  that seller knew purchaser would regard as material 1: holding that a nondealer seller of a car had no duty either to install seatbelts or to warn of them absence to purchaser 2: holding that a person who obtains drugs from a seller is not an accomplice of the seller 3: recognizing that most other jurisdictions have held that to qualify as a lost volume seller under section 27082 the seller needs to show only that it could have supplied both the breaching purchaser and the resale purchaser 4: holding that under mississippi law a purchaser is a bona fide purchaser for value without notice unless there is actual notice or circumstances which would put a purchaser on inquiry notice


Input: 89 L.Ed.2d 271 (1986)), cert. denied, 546 U.S. 1090, 126 S.Ct. 1026, 163 L.Ed.2d 854 (2006). An officer may therefore be liable under § 1983 “ ‘for the natural consequences of his actions.’ ” Id. (quoting Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961)). This includes liability for acts giving rise to the ultimate harm, even if the harm is executed by someone else. Powers v. Hamilton Cnty. Pub. Defender Comm’n, 501 F.3d 592, 609 (6th Cir.2007) (“Even if an intervening third party is the immediate trigger for the plaintiffs injury, the defendant may still be proximately liable, provided that the third party’s actions were foreseeable.”), cert. denied, 555 U.S. 813, 129 S.Ct. 44, 172 L.Ed.2d 21 (2008); see also Paige v. Coyner, 614 F.3d 273, 281-82 (6th Cir.2010) (<HOLDING>); Sykes v. Anderson, 625 F.3d 294, 311-12 (6th Holdings: 0: holding that for a retaliation claim to be viable a prisoner must allege inter alia that a state actor took adverse action against him because of his protected conduct 1: holding that a state agency created under state law was a state actor 2: holding state actor could be liable for retaliation for making false statements to plaintiffs employer causing her to be fired 3: holding that defendant could be charged for making false statements to treasury officials under the tax evasion statute or the statute prohibiting false statements to government officials 4: holding that various law enforcement personnel and judges were victims of the crime of making false statements to a government agency for purposes of  3a12a where the defendant made false statements about the officials to the irs causing the irs to investigate the officials certainly had the effect of making these individuals the defendants victims


Input: did make minimal effort to find jobs during the illness and in the period soon after her death. 42 . In re Alderete, 412 F.3d 1200, 1206 (10th Cir.2005). 43 . At trial, the testimony centered almost exclusively on the "ICRP” rather than the "IBR.” However, based upon the information contained in the affidavit contained in Exhibit AA, it appears as though the program that was actually being discussed was the IBR, based upon ECMC’s counsel's assertions that the payments would be limited to 15% of Debtor’s income that exceeded 150% of the federal poverty line. In any event, Debtor did not indicate a willingness to enter into either of these programs, and his reasons for refusing to do so would apply equally under either program. 44 . Cf. In re Woody, 494 F.3d 939, 954 (10th Cir.2007) Holdings: 0: holding that where parties to an oral loan agreed that the loan would be repaid on demand the statute of limitations did not begin to run until the date plaintiff demanded repayment of the loan 1: holding admittedly in a heal loan context that congress did not intend to allow a debtor who spent decades not making loan payments even after working full time for several years to receive a discharge because his health begins to fail as he approaches retirement age 2: holding that consideration for guaranty of loan previously made was that guarantors friend the bank manager who issued the loan would not lose his job for making a bad loan 3: holding that debtor did not satisfy the third prong because she did not seek out loan consolidation options even though she made several payments on her student loan debt 4: holding that fraudulent loan transaction exposed financial institutions to risk of loss even though loan was secured


Input: that he was credible and that he has a well-founded fear of future persecution because of his past political activities in Serbia. II. ANALYSIS A. Standard of review “Because the BIA adopted the IJ’s decision with additional commentary, we review the decision of the IJ, as supplemented by the BIA, as the final administrative order.” Ceraj v. Mukasey, 511 F.3d 583, 588 (6th Cir.2007). Questions of law involving immigration proceedings are reviewed de novo. Ali v. Ashcroft, 366 F.3d 407, 409 (6th Cir.2004). We will not disturb the IJ’s factual findings, or a determination that the petitioner failed to establish eligibility for asylum or withholding of removal, if substantial evidence supports such rulings. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (<HOLDING>). Under this standard, we will not reverse a Holdings: 0: holding that a district courts ruling may be upheld on an alternative ground supported by the record 1: holding that the trial courts factual findings related to alimony will be upheld on appeal if supported by   any evidence   2: holding that a factfinders rulings will be upheld if supported by reasonable substantial and probative evidence on the record considered as a whole 3: holding a determination regarding eligibility for asylum is conclusive if supported by substantial evidence on the record considered as a whole 4: holding that a finding of fact is supported by substantial evidence on the record as a whole if it would have been possible for a reasonable jury to reach the boards conclusion


Input: 201 F.R.D. at 294. Accordingly, as the Court may reasonably infer that the 378 consumers are similarly situated, the Court finds that Fed.R.Civ.P. 23(a)(1)’s numerosity requirement has been met. 2. Commonality “To satisfy the commonality requirement of Rule 23(a)(2), there must be ‘a showing that common issues of fact or law exist and that they affect all class members.’” Kowalski, 2012 WL 1097350, at *13 (quoting Leone v. Ashwood Fin., Inc., 257 F.R.D. 343, 351 (E.D.N.Y.2009)). However, the individual circumstances of the class members can differ without precluding class certification, so long as “the common questions are at the core of the cause of action alleged.” Vengurlekar v. Silverline Techs., Ltd., 220 F.R.D. 222, 227 (S.D.N.Y.2003); see also Kowalski, 2012 WL 1097350, at *13 (<HOLDING>) (citations and internal quotation marks Holdings: 0: recognizing a narrow class of cases in which the termination of the class representatives claim for relief does not moot the claims of the class members 1: holding that the fourth amendment does not mandate payment and therefore such claims are not within the jurisdiction of the court 2: holding that the commonality standard does not mandate that the claims of the lead plaintiff be identical to those of all other plaintiffs but does require that plaintiffs identify some unifying thread among the members claims that warrants class treatment 3: holding that it is not necessary that all putative class members share identical claims 4: holding that the pslra does not mandate nor does it suggest that a court approved lead plaintiff must republish a notice of the purported class after an amended complaint is filed in cases where amended complaints encompassed the same claims and securities but different class periods courts have generally found that the efficiency of republication outweighs the marginal fairness gains of notifying class members of an extended class period


Input: possesses no inherent power to impose sanctions, and that any such power must be expressly delegated by statute. For example, in Great Am. Banks, Inc. v. Division of Admin. Hearings, Dep’t of Admin., 412 So.2d 373 (Fla.1st DCA 1981), this court held that a hearing officer had no statutory authori ty to impose sanctions upon a party for the failure to make discovery, and that Section 120.58(3), Florida Statutes, as it then existed, provided the exclusive method of enforcing a discovery order, i.e., by filing a petition for enforcement in the circuit court. We further stated that to the extent that the agency’s rules providing for sanctions conflicted with section 120.58(3), they were invalid. Accord Hillsborough County Hosp. Auth. v. Tampa Heart Inst., 472 So.2d 748 (Fla. 2d DCA 1985) (<HOLDING>). In 1984 the legislature amended section Holdings: 0: holding that a court may sua sponte dismiss pursuant to rule 41b for failure to comply with a court order 1: holding that an administrative agency is not subject to a contempt proceeding for failure to comply with an order 2: holding that any person who receives written notice of an agency decision that does or may determine substantial interests and who fails to file a written request for a hearing within 21 days waives the right to request a hearing quoting florida administrative code rule 281061114 3: holding that florida administrative code rule 285211 which purported to allow an agency or hearing officer to dismiss a proceeding or enter a default as a sanction for failure to comply with a procedural order was invalid 4: holding dismissal for failure to comply with rule 8 was dismissal of entire action which was appealable final order


Input: the applicability of Schnuphase v. Storehouse Markets, 918 P.2d 476 (Utah 1996), were fully briefed by both parties and properly before the court for review. 121 The Utah Rules of Appellate Procedure require that an appellant's opening brief include "[a] statement of the issues presented for review," Utah R.App.P. 24(a)(5), and arguments containing the contentions and reasons for each issue presented, see id. 24(a)(9). In addition, the reply brief of an appellant "shall be limited to answering any new matter set forth in the opposing brief." Id. 24(c). 122 The appellee's brief, or opposing brief, must include the same elements as the appellant's brief. See id. 24(b). However, an appel Cir.1968) (noting that appellant had option to answer new issue raised in appe 2d 1278, 1280 (1994) (<HOLDING>); Newsome v. North Carolina State Bd. of Holdings: 0: holding that an argument raised only in fact section of opening brief and in reply brief is not properly raised 1: holding an appellant may not use the reply brief to argue issues not argued in the initial brief 2: holding an argument made in plaintiffs reply brief but not in their opening brief waived 3: holding that if an appellee raises an argument not addressed by the appellant in its opening brief the appellant may reply  citation omitted 4: holding that an argument is not preserved unless a party raises it in its opening brief


Input: regarding workers' compensation benefits, in turn promoting litigation and unduly delaying receipt of any benefits. See Tenorio v. State, 931 P.2d 234, 240 (Wyo.1997) (expressing concern that application of collateral estoppel to permanent disabi 54, "4 (N.H.2001) (declining to apply issue preclusion where agency awarded benefits for temporary disability but made no finding as to permanent disability); Appeal of Hooker, 142 N.H. 40, 694 A.2d 984, 986-88 (1997) (finding collateral estoppel inapplicable even where alleged injury giving rise to both proceedings is the same and allegedly flows from same work-related injury because issue of causation determined in TTD hearing is different from issue of causation relevant to subsequent medical benefits hearing); Tenorio, 931 P.2d at 240 (<HOLDING>). Because an employer always risks an award of Holdings: 0: holding that workers compensation statutes do not prohibit claimant from receiving permanent partial disability benefits from prior accident concurrently with temporary total disability benefits from subsequent injury 1: holding that the trial courts authority to initiate workers compensation benefits before the final adjudication was not divested by the legislature and was consistent with the stated purpose of the workers compensation act 2: recognizing the inherent policy problems associated with applying issue preclusion to permanent disability proceedings and construing wyomings workers compensation act as inconsistent with the doctrine in that context 3: holding that the parties choiceoflaw agreement as relating to workers compensation was appropriately avoided where it offended state public policy as reflected in express provisions of the pennsylvania workers compensation act 4: holding without applying the doctrine of judicial estoppel that the plaintiff who made sworn statements of total disability in a social security disability application and then testified at her deposition that she was not totally disabled failed to raise a genuine issue of material fact as to whether she was a qualified individual with a disability within the meaning of the ada


Input: expectation of privacy test has been consistently employed by the Supreme Court in Fourth Amendment cases. See, e.g., Rakas, 439 U.S. at 143, 99 S.Ct. 421; Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979); United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984); California v. Greenwood, 486 U.S. 35, 38, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988); Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990); Carter, 119 S.Ct. at 473. However, the places in which individuals have been deemed to have a justifiable expectation of privacy have become fewer than suggested by the expansive language of Katz quoted earlier. See Katz, 389 U.S. at 352, 88 S.Ct. 507. In Rakas, the Supreme Court held that passengers did n r.1993) (<HOLDING>); United States v. Cardona-Sandoval, 6 F.3d 15, Holdings: 0: recognizing reasonable expectation of privacy in a tent located on public campgrounds such that warrantless arrest of inhabitant requires exigent circumstances 1: holding that the defendant had a reasonable expectation of privacy in a telephone booth 2: holding that defendant had reasonable expectation of privacy in his tent pitched on public campground 3: holding defendant had a reasonable expectation of privacy in blood sample drawn by hospital 4: holding that society recognizes a reasonable expectation of privacy


Input: prior conduct, is whether the legislative aim was to punish that individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation, such as the proper qualifications for a profession____ The proof is overwhelming that New York sought not to punish ex-felons, but to devise what was felt to be a much-needed scheme of regulation of the waterfront, and for the effectuation of that scheme it became important whether individuals had previously been convicted of a felony. 363 U.S. at 160, 80 S.Ct. at 1155. As defendants point out, other statutes that imposed restrictions on convicted felons after the fact also have survived ex post facto challenges. See, e.g., Bae v. Shalala, 44 F.3d 489, 493-96 (7th Cir.1995) (<HOLDING>); United States v. Huss, 7 F.3d 1444, 1447-48 Holdings: 0: holding a fiveyear old drug conviction is probative of a defendants state of mind in a drug conspiracy case 1: holding prior drug deals admissible to prove knowledge of the drug trade 2: holding that provisions of generic drug enforcement act debarring convicted felons from participating in generic drug industry are remedial and not punitive 3: holding a branded drug and its generic version to be a plausible relevant market 4: holding that when a district court determines drug quantity for the purpose of sentencing a defendant convicted of participating in a drugtrafficking conspiracy the court is required to make an individualized finding as to drug amounts attributable to or foreseeable by that defendant


Input: irrelevant which of these two models is more elegant from a conceptual standpoint. What is important — indeed, determinative — for our inquiry is which of the two each state has adopted. Pennsylvania's high court unambiguously has held that Pennsylvania law supports no cause of action for increased risk of cancer or for present emotional distress arising from the fear of cancer. Thus, the court's statement about medical monitoring damages is best viewed as the authorization of a distinct cause of action for medical monitoring expenses. Reading the opinion otherwise would defy its plain language regarding Pennsylvania's nonrecognition of increased risk and emotional distress causes of action. 75 . See, e.g., Burns v. Jaquays Mining Corp., 156 Ariz. 375, 752 P.2d 28, 29-31 (Ct.App.1987) (<HOLDING>), review dismissed, 162 Ariz. 186, 781 P.2d Holdings: 0: holding that damages resulting from directors misconduct destroying the value of the corporate stock does not qualify as a direct or personal injuiy to a shareholder and will not support a tort action 1: holding that not all adverse action taken against a public employee in retaliation for exercising first amendment rights is sufficient to support a cause of action under  1983 2: recognizing cause of action 3: recognizing the cause of action 4: holding that subclinical asbestosrelated injuiy is not sufficient to support cause of action


Input: an interest in filing a motion for summary judgment, but apparently chose not to file a motion because it was untimely. Upon a review of defendants’ motion for summary judgment and plaintiffs’ response, and in view of the absence of any material facts in dispute, we granted plaintiffs leave to file a motion for summary judgment as to liability only. See Open Inns v. Chester County Sheriff s Department, Civ. No. 97-4822 (E.D.Pa. Sept. 22, 1998). 18 . Defendants LaRose, Clemens, and Freas all argue that they are protected by qualified immunity. As noted above, Sheriff Erling has been sued only in his official capacity. Thus, the suit against him is essentially a suit against the county. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (<HOLDING>); Monell, 436 U.S. at 690 n. 55, 98 S.Ct. 2018 Holdings: 0: holding that a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the officials office 1: holding that a damages suit against a state officer in his official capacity was barred because it was functionally a suit against the state 2: holding that an official capacity suit should be treated as a suit against the entity 3: holding a suit against an agency of the state is a suit against the state 4: holding that suit against county sheriff in his official capacity was suit against county


Input: database has been exempted pursuant to exemption (j)(2). See Cunningham Decl. ¶¶ 21-22. Nevertheless, this Court agrees with my colleague’s reasoning in Gordon, and finds that the documents identified in the email archive were properly withheld as this database is not a “system of records” within the meaning of the Privacy Act and is therefore not subject to the disclosure provisions therein. See Gordon, 118 F.Supp.3d at 291, 2015 WL 4602588, at *9; 5 U.S.C. § 552a(a)(5) (defining “system of records” as “a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual”); see also Mobley v. CIA, 924 F.Supp.2d 24, 56 (D.D.C.2013) .(<HOLDING>). In sum, I conclude that defendant met its Holdings: 0: holding that users have reasonable expectation of privacy in text messages despite advance warning that the messages could be read 1: holding that email messages stored on a computer but not yet read were in electronic storage 2: holding that daily reports prepared by agency investigator were not records within a system of records since they were retrievable by the investigators identifier and not accessed by plaintiffs name 3: holding that a database of email messages is not a system of records under the privacy act because it is not indexed by personal identifier 4: holding that it is not


Input: of Jones indicated that Jones had no facial hair. According to Jones, the photo taken from the motel depicts him as having a "dark mustache and goatee.” Appellant's Brief at 45. However, the small amount of facial hair Jones had in this picture is not clearly visible, and is at most a few days' growth. The photo taken of Jones upon his arrest does more clearly show that Jones had a short goatee. Also, although we can find no indication of Jones’s actual height in the record, Jones insinuates that he is taller than Khan and Patel's description of approximately six feet. Nevertheless, such small discrepancies do not persuade us that Khan and Patel did not have an independent basis for their in-court identification of Jones. See Wethington v. State, 560 N.E.2d 496, 502 (Ind.1990) (<HOLDING>); Little v. State, 475 N.E.2d 677, 683 Holdings: 0: holding that a victims outofcourt identification was sufficient to support adjudication 1: holding that the offense of sexual battery requires the state prove the victims lack of consent regardless of the victims age and charge the jury on the same 2: holding that jury may consider victims mental capacity in determining whether defendant acted with victims knowledge and consent 3: holding admissible testimony of the victims daughter regarding a telephone call from the defendant to the victim hours before the victims death and the victims emotions following the telephone call where defendant claimed accident 4: holding that victims had an independent basis for incourt identification of the defendant despite a three to fourinch discrepancy in their descriptions of the defendants height where the defendants appearance roughly corresponded with the victims initial descriptions


Input: of summary judgment, we will affirm the district court’s decision “when the • record shows that there is .no; genuine issue as to any material fact and that the moving party is .entitled to a judgment as a matter of law.” Id. (citation and internal quotation marks omitted), ¶ 8 On appeal, McCamey claims that the district court erred in determining that the 2013 charges were not barred by the statute of limitations. McCamey does not specifically address the district court’s determination that the claim was precluded' by section 78B-9-106(l)(c) of the PCRA, See Utah Code Ann. § 78B-9-106(1)(c) (Lexis-Nexis 2012). The district court stated, that in an October 2014 letter that was attached to the petition, “McCamey brought his concern regarding the statute of limitations defense pp.1998) (<HOLDING>). ■ ¶ 10. The district court next ■ addressed Holdings: 0: holding that a defendant must have knowledge of the likely consequences of entering the guilty plea in order for a plea to be voluntary and knowing 1: holding that time limits in title vii are not jurisdictional but are instead like statutes of limitations 2: holding that a guilty plea must be both knowing and voluntary and must be a voluntary and intelligent choice among the alternative courses of action available to a defendant 3: holding statute of limitations is not jurisdictional and can be waived by a voluntary plea of guilty 4: 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


Input: that 1119-20 (9th Cir.2004) (rejecting as insufficient documents that “merely recite[d] the statutory section and title” without detailing the facts to which defendant pled); Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1132 (9th Cir.2007) (noting, in a related context, that the documents in the record must establish that the defendant “necessarily admitted” the elements of the qualifying offense); Cisneros-Perez v. Gonzales, 465 F.3d 386, 391 (9th Cir.2006), as amended (concluding that the prior conviction was not established under the modified categorical approach where the judgment record did not establish that “the defendant” necessarily pleaded ... to the allegations in the original complaint) (emphasis added); Rebilas v. Mukasey, 527 F.3d 783, 787 (9th Cir.2008), as amended (<HOLDING>); Martinez-Perez v. Gonzales, 417 F.3d 1022, Holdings: 0: holding modified categorical approach unavailable where the statute of conviction was missing an element of the generic definition 1: holding that courts may consider a plea agreement and other documents contained in the record of conviction when applying the modified categorical approach 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 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 4: holding that a district court cannot use the psrs factual statements when applying the modified categorical approach


Input: held that a minor’s cause of action against a defendant, who was added two years after the original complaint was filed, was not barred by the statute of limitations, even though the minor’s legal guardian timely filed the original complaint. Brooks v. Gunn, 667 S.W.2d 499, 501 (Tenn.Ct.App.1984). The court explained that because the minor was still under the disability of minority under Tennessee Code An notated section 28-1-106, “the statute of limitations in a situation [such] as this has not begun to run against the minor. If the statut 185 (1976) (adopting majority rule that appointment of guardian does not commence running of statute of limitations tolled on account of infancy or incompetence); Tzolov v. Int’l Jet Leasing, Inc., 232 Cal.App.3d 117, 283 Cal.Rptr. 314, 317 (1991) (<HOLDING>); Morgan v. Amerada Hess Corp., 357 So.2d 1040, Holdings: 0: holding that appointment of guardian over incompetent adult does not remove legal disability so as to halt tolling and commence running of statute of limitations 1: recognizing that the person appointed as a guardian ad litem may not have interest adverse to those of the ward 2: holding that tolling statute applicable to incompetent plaintiffs continues in effect in spite of appointment of guardian ad litem 3: holding that washingtons statute tolls the statute of limitations for a legally incompetent person notwithstanding the appointment of a guardian this is so because the right to the tolling statute vests in the incompetent person not in the guardian from this premise it follows that the guardians subsequent actions on the incompetent persons behalf should have no additional effect upon the statute of limitations unless they result in res judicata 4: recognizing that upon request a district court may remove the guardian ad litem andor  appoint another guardian ad litem to protect the childrens interests


Input: of sole issue on appeal). Second, the government contends that Windland waived de novo review of the legal issue in this appeal by failing to object to the Magistrate Judge’s report and recommendation on the specific basis of the 160/161 day distinction. Again, although Windland could have been more specific, he did object to the Magistrate’s conclusion that his § 2254 petition was time-barred; as part of that objection, he also argued that the limitations period should have been tolled while his state action was pending. This objection alerted the district court to the pertinent issue in this appeal, namely that the Magistrate improperly found Windland’s § 2254 petition time-barred due to an erroneous tolling calculation. See United States v. Burton, 126 F.3d 666, 673 (5th Cir.1997) (<HOLDING>). Indeed, the district court independently Holdings: 0: holding that in order to preserve the issue a party must object to inconsistent verdicts prior to judgment being entered 1: holding that litigant must object at trial to preserve error for review 2: holding that to preserve an issue a party must object with sufficient specificity to allow the trial court to address it 3: holding that defendant must object at trial to preserve as applied challenge for appeal 4: holding that this court must remand to the bia to allow it to address in the first instance an issue that it has not yet considered


Input: on appeal is to decide the case -within the framework of the issues raised by the parties.”). “[I]n the absence of the most cogent circumstances, we do not create issues....” Id. at 78 n. 4 (collecting cases). True, we have previously recognized that we will address issues that are “incident to” a determination of other issues properly presented. See Messina v. Iowa Dep’t of Job Serv., 341 N.W.2d 52, 58, 61 (Iowa 1983) (addressing issue of whether plaintiff had contractually waived his First Amendment rights when defendant had not raised that issue before the district court and holding “the waiver issue may be determined as an incident to the expressed issue”); Presbytery of Se. Iowa v. Harris, 226 N.W.2d 282, 234 (Iowa 1975); see also State v. Lyle, 854 N.W.2d 378, 382-83 (Iowa 2014) (<HOLDING>). However, this exception to our error Holdings: 0: holding a new constitutional challenge not raised in district court was not properly before court of appeals 1: holding constitutional challenge to void statute may be raised for first time on appeal 2: holding that the alc may not rule upon a facial challenge to the constitutionality of a regulation or statute but may rule upon an asapplied challenge 3: holding constitutional challenge to section 93991 raised for the first time on appeal was barred 4: recognizing that categorical constitutional challenge was fundamentally similar to asapplied constitutional challenge initially raised on appeal


Input: on the grounds that the juvenile court did not have jurisdiction to find them in contempt, and because they were not properly served with the order to show cause. We find that the juvenile court was authorized to hold petitioners in contempt. See, e.g., In re Elrod, 455 So.2d 1325, 1327 (Fla. 4th DCA 1984); Husky v. Safer, 419 So.2d 1158, 1159 (Fla. 1st DCA 1982). However, we determine that the trial court erred in denying petitioners’ motion to quash a writ of bodily attachment, because the record does not demonstrate that they were properly served. See Fla. R. Juv. P. 8.150(c)(2). Petitioners’ appearance at the hearing to contest jurisdiction and object based on lack of service of process did not waive service. See Caldwell v. Caldwell, 921 So.2d 759, 760 (Fla. 1st DCA 2006) (<HOLDING>). The petition for writ of certiorari is Holdings: 0: holding that one of the effects of submitting to the courts jurisdiction by making a general appearance is that a party waives any objection to service of process 1: holding that service is not avoided by service on a partys attorney as service on an attorney is ineffective unless he has been authorized to accept such service 2: holding that actual notice of lawsuit is no substitute for substantial compliance with frcp 4d1 requiring service on person of defendant on suitable resident at defendants dwelling or on defendants agent a  judgment entered by a court which lacks jurisdiction over the person of the defendant is void and may be set aside at any time pursuant to fedrcivp 60b4 personal jurisdiction is established either by proper service of process or by the defendants waiver of any defect in the service of process 3: holding that a party loses its right to contest default final judgment on grounds of defective service of process by entering general appearance unless it also contests service of process or raises issue of personal jurisdiction 4: recognizing texas procedural rules and due process dictate judgment may not be rendered unless defendant was served waived service or made general appearance


Input: the asserted duty of confidentiality are determined by a legal source external to the tort claim itself[,]” Humphers v. First Interstate Bank, 298 Or. 706, 696 P.2d 527, 534 (1985) (en banc); and “its breach is actionable only if it is wrongful, that is to say, without justificat ecognize a psychotherapist-patient privilege under which a patient may “prevent any other person from disclosing confidential communications, made for the purposes of diagnosis or treatment of the patient’s physical, mental or emotional condition ... among the patient, the patient’s physician or psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist____” Rule 11-504(B), NMRA 1997; see also Jaffee, 518 U.S. at 15, 116 S.Ct. at 1931 (<HOLDING>). In the context of the criminal justice Holdings: 0: recognizing privilege 1: recognizing a federal mediation privilege 2: recognizing a federal psychotherapy privilege 3: recognizing privilege under federal rules 4: holding that the burden is upon the state under the applicable federal rules of evidence


Input: information released to the public in official court records.” Id. at 496, 95 S.Ct. 1029. While acknowledging that in limited circumstances, a court might restrict the information available to the public to protect important interests, the Court concluded that “[o]nce true information is disclosed in public court documents open to public inspection, the press cannot be sanctioned for publishing it.” Id.; see also Okla. Publ’g Co. v. Dist. Court, 430 U.S. 308, 310, 97 S.Ct. 1045, 51 L.Ed.2d 355 (1977) (“[T]he First and Fourteenth Amendments will not permit a state court to prohibit the publication of widely disseminated information obtained at court proceedings which were in fact open to the public.”); cf. Fla. Star v. B.J.F., 491 U.S. 524, 526, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989) (<HOLDING>). Nebraska Press further reinforced these Holdings: 0: holding that the imposition of damages on a newspaper for publishing the name of a rape victim lawfully obtained from a publicly released police report in violation of a florida statute and the newspapers own internal policy violated the first amendment 1: holding that an action brought in the name of a person adjudicated as incapacitated instead of in the name of her guardian cannot be corrected as a misnomer 2: holding that first amendment precluded damages action brought by rape victim against newspaper for publishing victims name when name was obtained from publicly released police report 3: holding that amendment to indictment to reflect actual name of victim is allowable 4: recognizing as a matter of federal law that an action to redress injuries to a corporation cannot be maintained by a shareholder in his own name but must be brought in the name of the corporation


Input: we could exercise pendent jurisdiction, we would decline to do so here. Given that the FAA allows intermediate appeals over any denial of a request for a stay, some possibility exists that defendants might make far-fetched or premature stay requests to delay litigation. See Arthur Andersen LLP, 556 U.S. at 634, 129 S.Ct. 1896 (Souter, J., dissenting). Where, as here, we find a request premature, granting pendent appellate jurisdiction over other issues might encourage litigants to make meritless requests for stays as a means to challenge other non-appealable decisions. 3 . Again, it matters that neither Taylor nor those who have joined her thus far have agreed to arbitrate. If Taylor had, this would change things. See Reyna v. Int’l Bank of Commerce, 839 F.3d 373, 373 (5th Cir. 2016) (<HOLDING>). If that were the case, Pilot could actually Holdings: 0: recognizing that in reviewing ruling on motion to compel arbitration we first determine whether party seeking arbitration established existence of arbitration agreement 1: holding that once the party seeking to compel arbitration establishes the existence of an arbitration agreement and that the claims raised fall within the scope of that agreement the trial court must compel arbitration 2: holding that rookerfeldman precludes jurisdiction over a federal lawsuit to compel arbitration under the federal arbitration act because the action was inextricably intertwined with the plaintiffs failed statelaw action to compel arbitration under the louisiana arbitration act 3: holding that in ruling on a motion to compel arbitration a court must consider 1 whether the parties have entered into a valid arbitration agreement 2 whether an arbitrable issue exists and 3 whether the right to arbitration has been waived 4: holding that the district court erred in refusing to compel named plaintiff to arbitration because it wanted to consider the enforceability his arbitration agreement after receiving opt ins


Input: So.2d 1345 (Fla. 2d DCA 1995); Peters v. State, 658 So.2d 1175 (Fla. 2d DCA 1995). Provided the charging instrument which we do not have in our record properly charged the firearm or weapon, the judgment in this ease mistakenly concludes that this homicide is a first-degree felony punishable by life. Young’s conviction for second-degree murder with a firearm did not qualify for habitual offender treatment under the version of the statute applicable to him at that time. A habitual offender sentence is illegal for purposes of a motion to correct an illegal sentence if the terms or conditions of the punishment for a particular offense are impermissible as a matter of law. See Judge v. State, 596 So.2d 73, 77 (Fla. 2d DCA 1991); see also Nathan v. State, 689 So.2d 1150 (Fla. 2d DCA 1997) (<HOLDING>). We direct the trial court to resentence Young Holdings: 0: holding our habitual offender act does not limit enhancement to prior felony convictions within a certain time 1: holding that under habitual felony offender statute a sentence includes the sanction of probation 2: holding that under the 1991 version of the habitual offender statute defendant could not receive habitual offender sentence for life felony 3: holding that defendants habitual traffic violator conviction could also serve as a predicate felony conviction under the general habitual offender statute 4: holding that incorrect determination that life felony was a firstdegree felony punishable by life resulting in improper habitual offender sentence was subject to correction in a rule 3800 proceeding


Input: claim until forced to surrender by the legal artillery of his adversaries. Mr. deLone also argues that the Third Circuit decision in Dykes did not quite render his ease frivolous because he immediately sought review of the decision from the United States Supreme Court. Again, Mr. de-Lone is mistaken in his view of the law. At the time that the Third Circuit’s decision in Dykes was announced, it became the law of the Circuit, and Mr. deLone was bound by its terms unless and until it was overturned by the Supreme Court. Allegheny General Hospital v. National Labor Relations Board, 608 F.2d 965 (3d Cir.1979)(stating that Third Circuit decisions are binding on “all inferior courts and litigants in the Third Judicial Circuit”); Critical Mass Energy Project v. NRC, 975 F.2d 871 (D.C.Cir.1992)(<HOLDING>). In the absence of a stay, seeking Holdings: 0: holding that we must follow a prior binding precedent unless and until it is overruled by this court en banc or by the supreme court quotation marks omitted 1: recognizing that a later en banc court may overrule an earlier en banc opinion 2: holding that circuit court decisions bind circuit unless and until overturned by the court en banc or by higher authority 3: holding ajbsent en banc reconsideration we are bound by prior decisions of this circuit 4: holding that decision of this court unless or until overturned by this court en banc the  federal circuit or the supreme court is a decision of the court on the date it is issued any rulings interpretations or conclusions of law contained in such a decision are authoritative and binding as of the date the decision is issued and are to be considered and when applicable are to be followed by va agencies of original jurisdiction the board and the secretary in adjudicating and resolving claims


Input: the PRC process before challenging an adverse ruling in the United States Court of Appeals for the District of Columbia.” Foster I at *5. The Postal Reform Act of 1970, under which the initial version of § 3662 was enacted, established the Postal Rate Commission to hear all claims involving postal rates and services. See 39 U.S.C. § 3662 (repealed 2006). The district court noted that courts have regularly held that early versions of § 3662 conferred exclusive jurisdiction to the Postal Rate Commission to hear these claims, despite its permissive language. Foster I at *4 (citing LeMay v. U.S. Postal Serv., 450 F.3d 797, 800 (8th Cir.2006); Bovard v. U.S. Post Office, No. 94-6360, 47 F.3d 1178, 1995 WL 74678, at *1 (10th Cir. Feb. 24, 1995); Azzolina v. U.S. Postal S 1 (3d Cir.2008) (<HOLDING>); Delaware Valley Floral Group v. Shaw Rose Holdings: 0: holding under third circuit law that the denial of a motion for reconsideration is reviewed for abuse of discretion 1: holding that denial of joinder motion is reviewed for abuse of discretion 2: holding that the imposition of sanctions is reviewed for abuse of discretion 3: holding that the standard of review for the denial of rule 11 sanctions is governed by the law of the regional circuit 4: holding under third circuit law that denial of rule 11 sanctions is reviewed for abuse of discretion


Input: to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida. 2 . The State did not request, and the trial court did not give, an instruction stating that the defendant could be found guilty of aggravated battery by reason of using the tile or concrete floor as a deadly weapon. Id..; see § 784.045(l)(a)2., Fla. Stat. 3 . No argument has been made that it was impermissible to instruct on aggravated battery as a lesser included offense of manslaughter. “Lesser included offenses are determined on the elements of the offenses, not on the penalties attached.” Carle v. State, 983 So.2d 693, 695 (Fla. 1st DCA 2008) (citing Sanders v. State, 944 So.2d 203 (Fla.2006)); see also Michaels v. Swanson, 403 So.2d 1023 (Fla. 2d DCA 1981) Holdings: 0: holding that due process does not require a lesser included offense instruction of manslaughter where not requested 1: holding that aggravated battery is a lesser included offense of manslaughter 2: holding that where evidence was sufficient for attempted murder it was necessarily sufficient for aggravated assault which is a lesser included offense 3: holding that the defendant who was charged with felony murder was not entitled to a lesser included instruction on manslaughter because manslaughter is neither a lesser included offense nor an inferior degree crime with respect to felony murder 4: holding that battery is an inherently included offense of aggravated battery


Input: third-party pleadings are considered without regard to their truth or falsity, and the insurer cannot contradict them with extrinsic evidence. See id. at 864. “The rationale behind the eight-corners rule is to require insurers to defend the insured against all claims, • even those without merit.” Id. XL cites no authority to suggest that the rule applies to a duty to advance defense expenses. See Pendergest-Holt v. Certain Underwriters at Lloyd’s of London, 600 F.3d 562, 574 '(5th Cir.2010) (“[N]o Texas state court has applied the rule to a case, like the present one, involving a duty to advance defense costs.”). Regardless, the rationale for the rule does not apply when an insured seeks to establish coverage under an interrelated-claims provision,. See Weimgarten, 343 S.W.3d at 865 (<HOLDING>). Burks is not trying to contradict any Holdings: 0: recognizing a limited exception to the eightcorners rule for a pure coverage question where the insurer is not questioning the merits of the underlying thirdparty claim and the extrinsic evidence goes strictly to an issue of coverage without contradicting any allegation in the thirdparty claimants pleadings material to the merits of that underlying claim 1: holding that the plaintiffs asserted legal basis for coverage is irrelevant to the determination of whether the insurance policy provides coverage and instead looking to the facts underlying the claim for coverage 2: holding that the court cannot examine the underlying merits of the claims in determining whether to certify a class 3: holding that a denial of qualified immunity on the law is collateral to the merits of the underlying action and is therefore considered final for appellate purposes 4: holding that if an insurer denies coverage based on an assertion that the underlying claim is excluded from coverage there is a presumption that the insurer did not suffer prejudice because prompt notice would have merely resulted in an earlier denial of coverage


Input: and false representations. But Paulson himself admitted at his deposition that Shi-rey and Ford were just doing their job during the investigations and no personal grudges or vendettas were involved. He acknowledged there was no evidence that Shirey handled the investigation in such a way as to intentionally harm him. We agree with the district court that Paulson did not provide evidence showing there was a factual issue as t e legislature cannot create a transitory cause of action and confine its enforcement to its own courts. State ex rel. Bossung v. District Court, 140 Minn. 494, 498, 168 N.W. 589, 591 (1918). To determine whether a claim is local or transitory, courts will examine the nature of the claim. Wilson v. Celestial Greetings, Inc., 896 S.W.2d 759, 760-61 (Mo.Ct.App.1995) (<HOLDING>). The types of cases which are transitory and Holdings: 0: holding that promissory estoppel is applicable only in the absence of an enforceable contract 1: holding that stockholder agreement is an executory contract 2: holding that delaware statute providing dissenting stockholder in delaware corporation with right of appraisal which is essentially a contract claim with terms supplied by delaware law was local action enforceable only in the delaware court of chancery 3: holding that a consent judgment is essentially a contract 4: recognizing that prior to 1949 when the statute permitting contribution among joint tortfeasors was enacted no right of contribution existed between jointtortfeasors in delaware


Input: and is protected from discrimination in connection with such decisions under Title VII and the ADEA.”) superseded by statute on other grounds as recognized by Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 108-09 (2nd Cir.2013); Wilkerson v. New Media Tech. Charter Sch., Inc., 522 F.3d 315, 320 (3rd Cir.2008) (“The failure to renew an employment arrangement, whether, afiwill or, for a limited period of time, is an employment action, and an employer violates Title VII if it takes an adverse employment action for a reason prohibited by Title VII.... ”); Jadwin v. Cnty. of Kern, 610 F.Supp.2d 1129, 1171 (E.D.Cal.2009) (“The non-renewal of Plaintiffs contract can qualify as an adverse employment action.”); Hernandez-Mejias v. Gen. Elec., 428 F.Supp.2d 4, 8 (D.P.R.2005) (<HOLDING>); Kabes v. Sch. Dist. of River Falls, 387 Holdings: 0: holding in title vii case that plaintiff demonstrated adverse employment action in school districts decision not to renew principals contract for the following year but offering principal a demotion 1: holding that failure to renew contract was adverse employment action 2: holding that denial of a bonus was not an adverse employment action 3: holding that termination is an adverse employment action 4: holding that suspension with pay was not adverse employment action


Input: the absence of legislative intent to protect the Clerks was evidenced by the fact that the legislature granted a private remedy only to those with an interest in property under section 382.365(3), and that the recording fees the Clerks seek to recover are not mentioned in the recording statutes but rather are contained in an entirely different chapter. Id. The Clerks counter that multiple parties can be intended beneficiaries of a statutory provision, citing State Farm Mutual Automobile Insurance Co. v. Reeder, 763 S.W.2d 116 (Ky.1988). Their reliance on Reeder is misplaced. Reeder simply reinforces the basic principle that to sue under section 446.070 for a statutory violation, the plaintiff must be within the class of persons the legislature intended to protect. See 763 S.W.2d at 118 (<HOLDING>). As already discussed, the recording statutes Holdings: 0: holding that although allegations were not specific as to what property was damaged they could be fairly read to include property covered by the insurance policy 1: holding that the thirdparty beneficiary theory did not apply 2: holding that insureds widow as beneficiary of life insurance policy had standing as an injured person under the insurance code 3: holding that standing to sue under a contract requires plaintiff to be in privity or be an intended thirdparty beneficiary 4: holding that a homeowner could sue under section 446070 because as the beneficiary of the insurance claim filed by the driver who damaged his property in an accident the homeowner belonged to the class intended to be protected by the insurance code which did not otherwise provide a remedy for thirdparty claimants such as the homeowner


Input: companies related to "illegal conduct" or to a "public offense," as the magistrate's warrant did, is the substantive equivalent of finding that the companies were permeated with fraud. 124 Moreover, Norris points to no authority for the proposition that a magistrate must explicitly state that a business is permeated with fraud in order to issue an "all records" search warrant. An "all ree ords" search warrant issued by a magistrate is valid if the supporting affidavit relied upon by the magistrate includes allegations sufficient to establish probable cause that the businéés to be searched was permeated with fraud. Oloyede, 982 F.2d at 141. We therefore hold that requiring a magistrate to use the phrase "permeated with fraud" would be "unreasonably 'hypertechnical' " CJ id. at 140-41 (<HOLDING>). 125 Because the magistrate found probable Holdings: 0: holding that a statement that the affiant is senior vicepresident and secretary of a corporation asserting a special appearance is sufficient to affirmatively show how the affiant has personal knowledge of the affidavit statements regarding the corporations contacts with texas 1: holding that a statement that the affiant is president of the company asserting a claim on an account is sufficient to affirmatively show how the affiant has personal knowledge of the affidavit statements regarding the account 2: holding it would be unreasonably hypertechnical to require an affiant to specifically claim that the business was permeated with fraud 3: holding that an arbitration clause was not unconscionable because it did not unreasonably favor the defendants 4: holding warrant not undermined and affiant did not act in bad faith where affiant relied upon erroneous statements made by third party


Input: in which the Supreme Court stated that the Barker test, originally developed to determine when the United States has denied a defendant his Sixth Amendment right to speedy trial, see Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), also “provides an appropriate framework for determining whether [a delay between entrance of a protective order and final determination of forfeiture] violate[s] the due process right to be heard at a meaningful time." $8,850.00, 461 U.S. at 564, 103 S.Ct. at 2012. She claims that with this statement, the Supreme Court recognized that any person whose property is restrained under § 853(e) is entitled to a post-restraint adversarial hearing under the Due Process Clause. See also United States v. Crozier, 111 F.2d 1376 (9th Cir.1985) (<HOLDING>). We note that these "supporting” cases were Holdings: 0: holding school boards are persons within the meaning of the fifth amendment due process clause 1: holding on the facts of the case that the fifth amendment due process clause required a postrestraint hearing for a criminal defendant and a third party whose property was restrained under  853e 2: holding that due process requires a hearing appropriate to the nature of the case 3: holding that entitlement to benefits is a property interest protected by the due process clause of the fifth amendment to the united states constitution 4: holding that an alien is entitled to the fifth amendment guarantee of due process which is satisfied by a full and fair hearing


Input: of the entire Avoidance Order was conditioned upon the Debtors completing their Chapter 13 plan and receiving a discharge, but Provision C plainly states that “[i]n the event the Debtors fail to complete their Chapter 13 Plan and receive their discharge, the Mclnnises’ lien shall remain unaffected as to Section 506(a) and (d) of the Bankruptcy Code by this order.” (emphasis added). Provision C only limits the § 506 Avoidance, and Mclnnis’s argument that the § 522 Avoidance is now ineffective fails. The Second Avoidance Motion only seeks avoidance under 11 U.S.C. § 522(f), and the Avoidance Order did not similarly condition the § 522 Avoidance upon the Debtors completing their Chapter 13 plan and receiving a discharge. Cf. In re Allen, 217 B.R. 945, 948-49 (Bankr.M.D.Fla.1998) (<HOLDING>). Collateral Estoppel Inapplicable to Issues Holdings: 0: holding that debtor could not avoid a judicial lien where after accounting for unavoidable liens and mortgages he had no equity in the property and therefore no interest on which to avoid the judicial lien 1: holding that a debtors ability to utilize  522f to avoid a judicial lien is not dependent upon the debtor receiving a discharge   2: holding that chapter 20 debtor could not avoid lien because of ineligibility for discharge 3: holding state courts authority under iowa code section 59821 not the lien created there under prevented debtor from claiming the iowa homestead exemption and therefore the debtor could not avoid the lien because the lien did not impair an exemption to which the debtor would have been entitled but for the lien 4: holding that the debtor must have had an interest in the property before the lien attached to take advantage of  522f


Input: Navarro-Flores of his right to consular notification. Nevertheless, as Navarro-Flores acknowledges, neither this court nor the Supreme Court has resolved the question whether the Vienna Convention confers individually enforceable rights upon a defendant. See Sanchez-Llamas v. Oregon, 548 U.S. 331, 342, 126 S.Ct. 2669, 165 L.Ed.2d 557 (2006) (declining “to resolve the question whether the Vienna Convention grants individuals enforceable rights”); Torres de la Cruz v. Maurer, 483 F.3d 1013, 1024 n. 11 (10th Cir.2007) (expressing “serious doubts” the Vienna Convention grants individually enforceable rights). The courts of appeal that have affirmatively passed upon the issue, moreover, reach differing conclusions. Compare Cornejo v. County of San Diego, 504 F.3d 853, 863 (9th Cir.2007) (<HOLDING>); United States v. Emuegbunam, 268 F.3d 377, Holdings: 0: holding that summary judgment order that does not dispose of all claims between parties does not confer appellate jurisdiction because it is not a final decision under 28 usc  1291 1: holding that the mere delivery of documents  does not confer jurisdiction 2: holding that the flsa does not confer jurisdiction over ambulance services 3: holding that a waiver of right to appeal contained in a plea agreement is enforceable 4: holding the vienna convention does not confer a privately enforceable right to be notified


Input: lack of Article III jurisdiction, practical effects notwithstanding. “[N]o principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006). The limitations imposed by Article III may not be swépt aside for “the sake of convenience and efficiency.” Raines v. Byrd, 521 U.S. 811, 820, 117 S.Ct. 2312 (1997). Because the majority ignores these fundamental limits to our Constitutional authority, I dissent. 1 . The Appointments Clause states: [The President] shall nominate, and by and with the Advice and Consent . Stevens, 529 U.S. 765, 772-74, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000) (<HOLDING>). 4 . Neither Richard Cordray nor the Bureau Holdings: 0: holding that the government has standing to appeal a district courts dismissal of an fca qui tam action over the governments objection even though the government did not formally intervene in the action 1: holding that private individuals can assert the federal governments interests in a qui tam suit because they have their own pecuniary interest as partial assignees of the governments pecuniary claim 2: holding a judgment aggrieves a party if it directly affects some pecuniary or property interest that the party possesses 3: holding that when the government acts to enforce public rights the mere fact that the government has no pecuniary interest in the controversy is not sufficient to exclude it from the courts 4: recognizing that where fca forfeitures were allowed for numerous projects on which no actual pecuniary loss had been incurred the governments injuries of course included not merely the amount of the fraud itself but also ancillary costs such as the costs of detection and investigation that routinely attend the governments efforts to root out deceptive practices directed at the public purse


Input: that the .active pursuit requirement is especially important as to not eviscerate the exclusionary rule); United States v. Mejia, 69 F.3d 309, 320 (9th Cir.1995) (stating that the court “has never applied the inevitable discovery exception so as to excuse the failure to obtain a search warrant where the police had probable cause but simply did not attempt to obtain a search warrant,” because to hold otherwise “would completely obviate the warrant requirement”) (citing United States v. Echegoyen, 799 F.2d 1271, 1280 n. 7 (9th Cir.1986)); United States v. Silvestri, 787 F.2d 736, 746 (1st Cir.1986) (recognizing that active pursuit may be necessary in certain situations to satisfy the test of inevitability and independence); United States v. Cherry, 759 F.2d 1196 (5th Cir.1985) (<HOLDING>). However, even the federal courts that would Holdings: 0: holding that the prosecution must establish a reasonable probability that the evidence would have been discovered by lawful means that the leads making the discovery inevitable were possessed by the police prior to the misconduct and that the police were actively pursuing the alternate line of investigation prior to the misconduct 1: holding that posttrial discovery of asserted newly discovered evidence did not satisfy the requirement that the evidence must be such as with reasonable diligence could not have been discovered and produced at trial 2: holding that the core inquiry is whether the police would have discovered the evidence if the misconduct had not occurred 3: holding that the evidence was admissible under the inevitable discovery doctrine as that doctrine requires the state to establish by a preponderance of the evidence that the police ultimately would have discovered the evidence independently of the improper police conduct by means of normal investigative measures that inevitably would have been set in motion as a matter of routine police procedure  quoting craig v state 510 so2d 857 863 fla1987 4: holding that upon remand if the trial court determined that the testimony in a newly discovered evidence claim was reliable the trial court must review that new evidence as well as brady claims that were previously rejected in a prior postconviction motion because the evidence was equally accessible to the defense and there was no reasonable probability that the result of the trial would have been different had the evidence been disclosed


Input: flight from an arresting officer within the definition of “resistance by force” would enlarge the realm of criminally-punishable actions without doing much to advance the goals of protecting police. The dangers of proscribing conduct too broadly for purposes of resisting arrest have been recognized by the drafters of Model Penal Code. The draft Code suggests that the crime of resisting arrest should only apply to conduct where the individual being arrested “creates a substantial risk of bodily injury to the public servant or anyone else, or employs means justifying or requiring substantial force to overcome the resistance.” Model Penal Code § 242.2. The accompanying commentary reads as follows: “The effect of this language is to exempt from criminal liab 928 N.E.2d 317, 320 (2010) (<HOLDING>). These cases demonstrate that ordinarily mere Holdings: 0: holding fleeing police officers in a vehicle was a violent felony under the acca 1: holding that police officers who engaged in a dangerous highspeed chase of a fleeing suspect were immune from suit 2: holding a police officer who was pursuing a fleeing suspect was immune from his torts when he ran a red light and collided with plaintiffs vehicle 3: holding officers may seize any contraband that a fleeing suspect discards during flight because the suspect has abandoned the property 4: holding that a fleeing suspect created a substantial risk of bodily injury to officers when he ran from officers and scaled a fence abutting the precipice of a canal in dim light


Input: must terminate with the trust.” Brief of Appellant at 18. Plaintiff recognizes that the district court relied on Pennsylvania bankruptcy cases contrary to her position, but argues that the courts that decided those cases “failed to consider that they were expanding the scope of spendthrift protection beyond that provided for by state law.” Brief of Appellant at 22. The district court explained that the apparent split of authority does not support the bankruptcy court’s conclusion that the principal here is unprotected because Pennsylvania law alone controls this case. As the district court recognized, Pennsylvania law protects remainder interests in the corpus of a trust if the spendthrift provision of the trust instrument so provides. See Clark, 411 Pa. at 256, 191 A.2d at 420 (<HOLDING>); In re Blanchard, 201 B.R. at 126 (applying Holdings: 0: holding that attempted conveyance of remainder interest in a trust was invalid because the spendthrift provision prohibited beneficiary from making any binding commitment of principal or income during the life of the trust 1: holding that a third party who receives trust property on inquiry notice that a trustee has misappropriated trust funds is also liable for breach of trust 2: holding that the beneficiary of a trust was not the real party in interest regarding rights owned by the trust 3: holding that creditors of a trust beneficiary were prohibited from intervening in an action involving a dispute between the trustee and a beneficiary concerning distribution of the trust corpus 4: holding that a spendthrift clause in a trust did not preclude accrued income from being paid to a beneficiarys personal representatives


Input: Court found that the award of attorneys’ fees constitutes a judgment under the statute rather than a penalty, because the award was intended “to compensate his adversary for the damage inflicted on him in compelling him to incur expenses in support of a just claim.” Id. at 324 (internal quotations omitted). In drawing the distinction, the court noted that the proper inquiry “whether a judgment is ‘a fíne or other penalty’ depends on whether its purpose is remedial in nature, affording a private remedy to an injured person, or penal in nature, punishing an offense against the public justice.” Id. at 323 (citing Chase Manhattan Bank, N.A v. Hoffman, 665 F.Supp. 73, 75-76 (D.Mass.1987)); see also Spann v. Compania Mexicana Radiodifusora Fronteriza, S. A., 131 F.2d 609, 611 (5th Cir.1942) (<HOLDING>). As in Desjardins Ducharme, the awarding of Holdings: 0: recognizing that an award of temporary attorneys fees and costs is based on an assessment of need and ability to pay as well as the reasonableness of the fees and costs 1: holding trial court erred in awarding attorneys fees to physicians in absence of any evidence of attorneys fees 2: holding that the costs of computerized research should be characterized not as taxable costs but as attorneys fees 3: holding parties agreement provided clear contractual justification for the award of costs and expenses including attorneys fees to the prevailing party 4: holding that costs including attorneys fees imposed by a mexican court did not constitute a penalty