Input: arrest charge because it was a distinct offense from the charges for which she was convicted. Specifically, plaintiff was convicted of harassment (relating to her conduct prior to the arrest) and criminal mischief (relating to her conduct once in the patrol car, when she kicked out the rear window). The resisting arrest charge, however, related to conduct that occurred at the time of her arrest in the residence. The elements and the alleged conduct relating to the resisting arrest are separate and distinct from the conduct underlying th 7 (MJL), 1995 WL 222206, at *4 (S.D.N.Y. Apr.13, 1995) (finding malicious prosecution claim for disorderly conduct charge not barred by convictions for resisting arrest and theft of services); Graebe v. Falcetta, 726 F.Supp. 36, 39 (E.D.N.Y.1989) (<HOLDING>), aff'd mem., 946 F.2d 883 (2d Cir.1991). The Holdings: 0: holding the same for malicious prosecution 1: holding that conviction on misdemeanor assault charge did not bar malicious prosecution claim for misdemeanor resisting arrest charge 2: holding that it is equally wellestablished that a suspects mere flight to escape arrest does not violate the resisting arrest statute 3: holding that conviction for speeding did not preclude a malicious prosecution claim arising from acquittal on charges of resisting arrest and attempted escape 4: holding that unlike malicious prosecution claim false arrest claim accrues on the date of the arrest


Input: negligence of a physician precludes the manufacturer’s liability for failure to warn of risks of off-label use). Id. at 194-95. Cases from other federal courts applying state law have expressly found that a pharmaceutical manufacturer had a duty to warn of risks associated with off-label use. See, e.g., McNeil v. Wyeth, 462 F.3d 364, 370-71 (5th Cir.2006) (under Texas law, plaintiffs can pursue failure to warn action despite off-label use of drug); Knipe v. SmithKline Beecham, 583 F.Supp.2d 602, 628-29 (E.D.Pa.2008) (con- eluding, under New Jersey law, that manufacturer owed duty to warn of dangers associated with off-label uses of drugs where manufacture knows or should have known of danger of side effects); Southern v. Pfizer, Inc., 471 F.Supp.2d 1207, 1218 (N.D.Ala.2006) (<HOLDING>); Woodbury v. Janssen Pharm., Inc., Civ. A. No. Holdings: 0: holding that a brand manufacturer of prescription drugs cannot be held liable for injuries suffered by consumers who ingested only the generic form of a drug under florida law 1: holding that where the adequacy of warnings associated with prescription drugs is at issue the failure of the manufacturer to exercise reasonable care to warn of dangers ie the manufacturers negligence is the only recognized basis of liability 2: recognizing under illinois law that pharmaceutical manufacturer has duty to warn of any dangers associated with offlabel use of product if such dangers were reasonably known 3: holding that a general contractor owed no duty to an employee of a subcontractor to warn of dangers of electrocution 4: recognizing under alabama law that drugs manufacturer owed duty to warn about potential dangers of using prescription drug for an offlabel to patients prescribing physician by drugs manufacturer


Input: compel production of documents, without affording time for the production and review of the requested documents. The record does not reveal that Mixson objected to the court’s consideration of the motion for summary judgment or that the court denied a motion for continuance pending further discovery. Therefore, this issue is not preserved for our review. See Degenhart v. Knights of Columbus, 309 S.C. 114, 420 S.E.2d 495 (1992) (stating whether court erred in granting summary judgment while appellants had motion to compel outstanding was not preserved when appellants failed to move for a continuance and did not request motion for summary judgment be held in abeyance until after ruling on discovery motion); Pryor v. Northwest Apartments, Ltd., 321 S.C. 524, 469 S.E.2d 630 (Ct.App.1996) (<HOLDING>). CONCLUSION Based on the foregoing reasons, Holdings: 0: holding that trial court impliedly ruled on motion for continuance by granting motion for summary judgment when appellant filed motion for continuance two days before summary judgment hearing 1: holding whether judge erred in granting summary judgment because discovery requests were outstanding was not preserved when appellant did not ask for a continuance to complete discovery 2: holding that the defendants discovery requests were untimely because they were not served in time for the responses to be due before the discovery deadline 3: holding that plaintiffs right to argue a need for discovery prior to the entry of summary judgment was preserved since plaintiff moved to vacate summary judgment ten days later and included precisely the discovery needed and not generalized statements of necessary discovery 4: holding that a discovery exception to a statute of limitation applies only to the discovery of facts not discovery of the law


Input: provided stone to smooth eroded portions of Fairview Street. Defendant has admitted installing a stop sign at Fairview and West Main Street. Accordingly, defendant is responsible for maintaining Fairview Street on “substantially the same basis and in the same manner as such service [] [was] provided within the rest of the municipality prior to annexation.” N.C. Gen. Stat. § 160A-35(3)a; see In re Annexation Ordinance, 255 N.C. 633, 645, 122 S.E.2d 690, 699 (1961) (construing statutory equivalent of Section 160A-35(3)a, held “primary duty of street maintenance in the area in question, after annexation, is upon the city, and it must in good faith make plans to maintain the streets, whether paved or unpaved”); Hooper v. City of Wilmington, 42 N.C. App. 548, 550, 257 S.E.2d 142, 143 (1979) (<HOLDING>). The key issue is whether defendant has Holdings: 0: holding annexation ordinance only voidable due to procedural irregularities 1: holding that where various ditches and drainage systems in a watershed were in existence prior to annexation of area the city accepted them by use or maintenance 2: holding that annexation was a nullity because it was not obtained with consent of requisite number of voters in area to be annexed and consequently jurisdiction was lacking 3: holding annexation ordinance void 4: holding that the grant of exclusive use to one unit owner of a common area is sufficient to change the relative interest of the unit owners in that common area


Input: Ill.Dec. 647, 574 N.E.2d 760, 764 (1991). Idaho, Kansas, Oklahoma Nevada and Massachusetts require proof under their consumer fraud acts of defendant’s knowledge of the falsity of its affirmative representations. Idaho Code § 48-603; State ex rel. Kidwell v. Master Distributors, Inc., 101, 101 Idaho 447, 615 P.2d 116 (1980); Kansas Stat. Ann. § 50-626(b)(1) Waggener v. Seever Systems, Inc., 233 Kan. 517, 522, 664 P.2d 813 (1983); Okla Stat. Ann. Tit. 15 § 753(5) and (7); Murray v. D & J Motor Co., Inc., 958 P.2d 823, 832 (Okla.Civ.App.1998); Nev.Rev. Stat. Ann. § 598. 0915 (amended by 1999, Nevada Laws, Ch. 604 (A.B.431); State ex rel. List v. AAA Auto Leasing & Rental, Inc., 93 Nev. 483, 568 P.2d 1230 (1977); Bond Leather Co., Inc. v. Q.T. Shoe Mfg. Co., Inc., 764 F.2d 928, 935 442 (<HOLDING>). Michigan requires proof under its consumer Holdings: 0: holding that nothing in the legislative history of the pennsylvania consumer fraud act suggests that the legislature ever intended statutory language directed against consumer fraud to do away with the traditional elements of reliance and causation and accordingly in order to maintain a class action suit under the pennsylvania consumer fraud act a plaintiff must allege reliance 1: holding that the punitive provisions of the delaware consumer fraud act were not applicable to attorney conduct occurring within the practice of law given the state supreme courts inherent constitutional and statutory authority to discipline members of the state bar noting the lack of consensus in different jurisdictions as to the applicability of state consumer fraud acts to attorney conduct 2: holding commercial franchises are not covered by new jersey consumer fraud act because they are businesses and not consumer goods 3: recognizing the availability of a cause of action by manufacturer against supplier under consumer fraud act 4: holding that illinoiss consumer fraud act did not apply to the claim that attorneys charged excessive fees for legal services because the attorneyclient relationship was the subject of regulation by the state supreme court and the legislature did not specify that it intended the consumer fraud act to apply to the role of attorneys in relation to their clients


Input: and not appealable). Furthermore, under Crowson, this transfer order could never, by itself, be ap-pealable. Crowson states that an interlocutory probate order may be made final and appealable “by a severance order, if it meets the severance criteria!)]” 897 S.W.2d at 783. However, unlike the partial summary judgment order in Crowson, which the court held was made final and appealable by a severance order, id., the transfer order in this case could not be subject to a severance order. The partial summary judgment order in Crowson resolved a claim that could properly be severed. Id. The transfer order, on the other hand, does not resolve a “claim” at all, and is thus not severable. See H.E. Butt Grocery Co. v. Currier, 885 S.W.2d 175, 177 (Tex.App.—Corpus Christi 1994, no writ) (<HOLDING>). Under Crowson, the transfer order in this Holdings: 0: holding that an order granting a motion or application to compel arbitration is nonappealable because it is not listed in the uaa arbitration provision and because it is not a final order 1: holding order granting motion to withdraw plea to be the functional equivalent of an order granting a new trial because like a postverdict mistrial it returns case to posture it had been before trial 2: holding an appeal may be taken from an order denying a motion to compel arbitration 3: holding order granting a new trial is not a final appealable order because it does not terminate the action or any of the claims or parties in the action 4: holding that an order granting a motion to compel discovery could not be severed because it does not address a claim that may be severed under the rules


Input: if it alters the substantive law on which the parties relied. See Docutel Olivetti Corp. v. Dick Brady Systems, Inc., 731 P.2d 475 (Utah 1986); see also Petty v. Clark, 113 Utah 205, 192 P.2d 589 (1948); cf. Archer v. Utah State Land Board, 15 Utah 2d 321, 392 P.2d 622 (1964). Law is substantive if it “creates, defines and regulates the rights and duties of the parties and ... may give rise to a cause for action, as distinguished from adjective law which pertains to and prescribes the practice and procedure or the legal machinery by which the substantive law is determined or made effective.” Petty v. Clark, 192 P.2d at 593-94. Other jurisdictions have held similar statutes to be substantive. Russell v. Superior Court, 185 Cal.App.3d 810, 230 Cal.Rptr. 102 (Cal.App. 1st Dist.1986) (<HOLDING>); see also United States Fidelity & Guaranty Holdings: 0: holding that joint and several liability for entire actual loss could have been imposed on each fraud defendant as condition of probation 1: holding that jury not required to award noneconomic damages merely because it has awarded economic damages 2: holding that a lump sum verdict on punitive damages against all defendants was improper since there can be no joint and several liability or contribution 3: recognizing forfeiture liability among criminal confederates to be joint and several 4: holding proposition 51 which eliminated joint and several liability for noneconomic damages to have prospective effect only


Input: of the lawsuit. See id. In its motion for rehearing, the Employees contend that we should construe Section 101.106(e) as applying to official capacity claims for intentional torts because we have held that the Section 101.106(f) does not include official capacity claims for intentional torts. Compare Mission Consol. Indep. Sch. Dist., 253 S.W.3d at 659 (interpreting Section 101.106(e) and stating, “Because the Tort Claims Act is the only, albeit limited, avenue for common- law recovery against the government, all tort theories alleged against a governmental unit, whether it is sued alone or together with its employees, are assumed to be ‘under [the Tort Claims Act]’ for purposes of section 101.106”) with Williams v. Nealon, 199 S.W.3d 462, 466 (Tex.App.-Houston[lst Dist.] 2006) (<HOLDING>); see also Menefee v. Medlen, No. Holdings: 0: recognizing that any claims compensable under the act could not be brought by nonemployee spouse except for intentional tort claims 1: holding that this language applies to tort claims brought under the federal tort claims act  against a contractor who has a selfdetermination contract 2: holding that garcia applies to section 101106 but holding that a declaratory judgment action is not brought under the texas tort claims act 3: holding section 101106f cannot be used by employees to obtain dismissal of common law intentional tort claims because those claims could not have been brought under the texas tort claims act 4: holding that tort actions brought against a state actor must be brought in the illinois court of claims and the district courts dismissal of such claims was proper


Input: arise only after a duty has been found.”) (citations omitted). The D.C. Court of Appeals has acknowledged this criticism of D.C. negligence law, yet has continued to apply the analytical framework as is. See Beretta, 872 A.2d at 641 n. 4. Accordingly, the Court "appl[ies] the law of the District of Columbia as its own courts would apply it” and does not “second-guess the analytical framework those courts have erected.” Workman, 320 F.3d at 265. 11 . Workman opined that “the cases suggest a sliding scale: If the relationship between the parties strongly suggests a duty of protection, then specific evidence of foreseeability is less important, whereas if the relationship is not the type that entails a duty of protection, then the evidentiary hurdle is higher.” Workman, 320 F.3d at 264 (<HOLDING>). The Circuit referenced only the relationship Holdings: 0: holding that a contractor had no duty of care to a third party under a premises liability theory because the contractor was not a landowner or occupier but expressing no opinion as to whether the contractor owed a duty to the third party under general negligence principles because the third partys legal theory was restricted to premises liability 1: holding that a general contractor owed no duty to an employee of a subcontractor to warn of dangers of electrocution 2: holding that an international relief organization owed no duty to protect aid contractor from murder by thirdparty somalis 3: holding that contractor owed general negligence duty to thirdparty by dangerous condition contractor created on road 4: holding that physicians owed a duty to protect an infant against rhsensitization


Input: the doctrine of respondeat superior, acts of conspiracy, and breach of contract. 2 . Jackson does not challenge numerous other decisions of the District Court — many of which were part of the orders she challenges. All grounds of appeal related to those unchallenged decisions — whether within or without the challenged orders — are waived on appeal. Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir.1993); see also Kirschbaum v. WRGSB Assoc., 243 F.3d 145, 151 n. 1 (3d Cir.2001); F.D.I.C. v. Deglau, 207 F.3d 153, 169 (3d Cir.2000). 3 . "We exercise plenary review over the District Court’s dismissal under Fed.R.Civ.P. 12(b)(6).” Brown v. Philip Morris, Inc., 250 F.3d 789, 796 (3d Cir.2001). 4 . Consequently, Ali v. Rutgers does not change the result here. 166 N.J. 280, 287, 765 A.2d 714 (2000) (<HOLDING>). 5 . Jackson makes a "hostile work Holdings: 0: recognizing a sixyear statute of limitations on claims filed under the coal act 1: holding sixyear statute of limitations applies to adea actions involving federal employees 2: holding that a sixyear statute of limitations applies in cases where the operative facts arose both before and after july 27 1993 3: holding that this courts sixyear statute of limitations is jurisdictional 4: holding that while the two year personal injury statute of limitations is proper for claims under the new jersey law against discrimination hjsa  10513 the decision would be applied prospectively only and thus claims arising before july 27 1993 are governed by the sixyear general statute of limitations hjsa 2a141


Input: seek injunctive relief including a claim for medical monitoring.... Plaintiffs do not argue that certification is proper under Rule 23(b)(2), and in any event, Rule 23(b)(2) certification is improper since the primary relief sought is damages.”); Arch, 175 F.R.D. at 484 (23(b)(2) certification is not appropriate where the “substantial majority of relief requested [was] monetary in nature.”); Castano v. Am. Tobacco Co., 160 F.R.D. 544, 552 (E.D.La.1995), rev. on other grounds, 84 F.3d 734 (5th Cir.1996) (Where “medical-monitoring program sought by plaintiffs is but one type of relief sought among many” including “compensatory, statutory and punitive damages,” plaintiffs primarily sought monetary damages.); Guillory v. Am. Tobacco Co., No. 97c8641, 2001 WL 290603 (N.D.Ill.2001) (<HOLDING>). Even those courts that have found the Holdings: 0: holding that class seeking monetary damages in addition to medical monitoring did not seek certification pursuant to 23b2 only 23b3 1: holding that plaintiffs request for courtsupervised program requiring ongoing elaborate medical monitoring of class members exposed to contaminated groundwater qualified as injunctive relief and the court could properly certify the class under rule 23b2 2: recognizing that the need for individual damages determinations does not in and of itself require denial of a motion for certification under rule 23b3 3: holding that rule 23b2 calls for injunction as to all class members or to none of them and does not authorize class certification when each class member would be entitled to an individualized award of monetary damages 4: holding that class certification is not appropriate because plaintiffs failed to demonstrate that the calculation of individualized actual economic damages if any suffered by the class members can be performed in accordance with the predominance requirement of rule 23b3


Input: at the conclusion of jury selection, but she never walked through it. Several courts have held that such a failure to reurge a motion for a change of venue during jury selection constitutes waiver. See, e.g., Gomez v. McGrath, 2005 WL 2072029 (E.D.Cal. Aug. 25, 2005) (in a federal habeas corpus proceeding, the federal district court noted that the state appellate court had rejected the claim of error by the trial court on the ground that petitioner had waived a change of venue claim “by failing to renew the motion after the trial court denied it without prejudice to its renewal after the jury had been voir dired on issues related to the motion”) (citing People v. Gomez, No. C019221, slip op. at 4-5 (Cal.Ct.App. Nov. 1, 1997)); Green v. Commonwealth, 266 Va. 81, 580 S.E.2d 834 (Va.2003) (<HOLDING>) cert. denied, 540 U.S. 1194, 124 S.Ct. 1448, Holdings: 0: holding that in ruling on a motion for summary judgment the trial court is limited to the grounds raised in the motion 1: holding that the defendant waived the issue of change of venue where the trial court denied the motion for a change of venue without prejudice stating that it was willing to reconsider the motion at any time during the jury selection process but the defendant never renewed the motion for a change of venue 2: holding that where a defendant if given the opportunity to renew a motion for a change of venue immediately prior to trial but fails to do so the right to challenge venue is waived 3: holding in a capital case that the defendant waived his argument that the trial court erred when it denied his motion for a change of venue where the trial court took the motion under advisement but the defendant failed to seek a ruling on the motion and failed to renew the motion after the jurors had been qualified 4: holding that trial court erred in denying motion for judgment of acquittal when state failed to prove venue


Input: Petitioner raises two issues on appeal. First, Petitioner contends that INS’s use of a test case to provide a final ruling on a business related immigration issue should be set aside under the Administrative Procedures Act (“APA”) because it unreasonably delayed final agency action and was arbitrary and capricious. See 5 U.S.C. § 706. Although the District Court for the District of Columbia sympathized with Petitioner’s predicament, see Transport Robert, 940 F.Supp. at 341-342 (stating that an “agency must be more responsive to those it regulates”), we must reject his claim. The APA simply does not govern immigration proceedings under the INA and may not be used to challenge the hearing provisions of the INA. Ardestani v. I.N.S., 502 U.S. 129, 132, 112 S.Ct. 515, 116 L.Ed.2d 496 (1991)(<HOLDING>); Marcello v. Bonds, 349 U.S. 302, 309, 75 Holdings: 0: holding that the emergence of a credible claim of extraneous influence on a jury imposed a duty on the district court to conduct a remmer hearing despite the fact that the defendants had not expressly requested such a hearing below 1: holding that noncompete provisions survived the expiration of an employment agreement where 1 the contract expressly provided that the provisions would continue to apply if the employee continued working and 2 the noncompete clause expressly stated it would continue to be in effect after the expiration or termination of employment 2: holding that the mvra supersedes certain provisions in erisa 3: holding that ina expressly supersedes hearing provisions of the apa 4: holding that the hearing provisions of the ina supersede the provisions of the apa


Input: A federal district court in New York recently described the state of the law in this area by stating that, “[b]y now, it should be abundantly clear that the duty to preserve means what it says and that a failure to preserve records — paper or electronic — and to search in the right places for those records, will inevitably result in the spoliation of evidence.” Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 685 F.Supp.2d 456, 462 (S.D.N.Y.2010). A court may impose sanctions for spoliation, with the traditional and most typical remedy for spoliation being the drawing of an “adverse inference” that the destroyed evidence would have been favorable to the opposing side. See Rimkus Consulting Group, Inc. v. Cammarata, 688 F.Supp.2d 598, 615-17 (S.D.Tex.2010) (<HOLDING>); United Med. Supply, 77 Fed.Cl. at 263. In its Holdings: 0: holding that spoliation may be a basis for a cause of action where a third party has negligently destroyed material evidence but stating that jury charges that presume missing evidence weighs against the spoliator and discovery sanctions  are available when spoliation is charged against an opposing party 1: holding that an adverseinference jury instruction was an appropriate sanction for spoliation of evidence 2: recognizing a tort for the intentional spoliation of evidence 3: holding that to consider whether to apply a spoliation sanction the evidence must be relevant to an issue in the case and the party who destroyed the evidence must be under a duty to preserve the evidence 4: holding no intentional spoliation occurred where defendant was not on notice that evidence was relevant to claim


Input: but, rather, what degree of suspicion they reasonably could attach to the utterance in light of the surrounding circumstances. See Wardlow, 528 U.S. at 128, 120 S.Ct. 673; Stanley, 915 F.2d at 57. Using commonsense judgment, an objectively reasonable officer plausibly could have concluded — as Officer Hyland did — that the belligerence of the response indicated more than mere annoyance. So viewed, the response supported a reasonable suspicion of criminal activity. See, e.g., Soares, 521 F.3d at 121; Romain, 393 F.3d at 72. Put another way, the hostile response, along with the background information possessed by the officer and his own experience, was enough to ground a reasonable suspicion that the man he originally had thought was a victim might be a shooter. See Chhien, 266 F.3d at 6 (<HOLDING>); Sowers, 136 F.3d at 27 (similar). Once that Holdings: 0: holding officers involved in investigatory raid entitled to immunity 1: holding that officers may consistent with the fourth amendment conduct a brief investigatory stop when they have a reasonable articulable suspicion that criminal activity is afoot 2: holding that police officer may order passengers to remain in vehicle with hands up during traffic stop 3: holding that a tip may provide the reasonable suspicion necessary to justify an investigatory stop 4: recognizing that investigatory officers may shift the focus in order to remain responsive to emerging facts


Input: you will have to go to the second floor” or “I am sorry, you are going to have to walk up stairs.” (Kantrowitz Depo. at 107:22-108:7.) Although one of these administrators (Jennifer Bumford) was consulted by Dr. Lloyd when he was conducting his evaluation of plaintiff, it is undisputed that neither of these employees were the ultimate decision-makers with respect to the decision to abolish plaintiffs position. Indeed, when considered in the context of all the evidence, these alleged remarks are too “remote and oblique .... in relation to the employer’s adverse action” to permit a reasonable jury to find for plaintiff. Tomassi v. Insignia Fin. Grp., 478 F.3d 111, 115 (2d Cir.2007), abrogated in part on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 966, 968-69 (S.D.N.Y.1989) (<HOLDING>). Moreover, given the undisputed facts — Holdings: 0: holding defendant failed to meet burden for acceptance of responsibility reduction where he objected in the psi but only made arguments at sentencing without offering evidence 1: holding that to meet his burden the plaintiff must show more than a few isolated incidents and that evidence solely of sporadic discrimination does not suffice 2: holding plaintiff failed to meet de minimis burden where he introduced only two isolated comments made by individuals who had no involvement in his termination 3: holding that plaintiff failed to meet his burden of proof because he offered absolutely no evidence to support his claim that the costs of arbitration will deny him an effective forum to vindicate his statutory rights 4: holding that because plaintiff could not establish which portions of the tapes had been played in court plaintiff failed to meet his burden


Input: and arrival of the witnesses, see Richardson, 639 F.Supp.2d at 289, it is too much of a stretch to say that circumstances of Pierre-Louis’s initial viewing are equivalent to “[t]he practice of showing suspects singly to persons for the purpose of identification” that “has been widely con demned.” Stovall, 388 U.S. at 302, 87 S.Ct. 1967 (emphasis added). In the light of the significant leeway to which the state courts are entitled, we hold that the state courts’ conclusion that Pierre-Louis’s accidental, spontaneous identification of Richardson upon entering the police station was insufficiently suggestive to trigger further due process inquiry was not an unreasonable application of clearly established federal law. See United States v. Lopez-Lopez, 282 F.3d 1, 8, 11 (1st Cir. 2002) (<HOLDING>); Mock, 472 F.2d at 621 (holding that a robbery Holdings: 0: holding that to protect defendants sixth amendment rights a court must determine whether witness identification testimony was tainted by impermissibly suggestive procedures 1: holding that a showup identification was not impermissibly suggestive where it took place immediately after the unlawful conduct and was necessary to avoid arresting the wrong person 2: holding due process requires suppression of testimony regarding pretrial identification when procedure employed is impermissibly suggestive 3: holding that a spontaneous accidental identification by two law enforcement officials of a suspect in handcuffs upon their return to the police station was not impermissibly suggestive 4: holding that police executed an illegal arrest when they took a teenage suspect from his home and brought him in handcuffs to the police station for questioning


Input: Pharmacy II has no justiciable interest in the payment of funds out of the account. When determining whether Pharmacy II has standing, we must determine whether Pharmacy II has a “ ‘cause of action, which involves the combination of a right on the part of the plaintiff and a violation of such right by defendant.’ ” See Exxon Corp v. Pluff, 94 S.W.3d 22, 28 (Tex.App.-Tyler 2002, pet. denied) (quoting Nobles v. Marcus, 533 S.W.2d 923, 927 (Tex.1976)). A party has standing when it is personally aggrieved. Nootsie, 925 S.W.2d at 661. “Standing deals with whether a litigant is the proper person to bring a lawsuit, not whether that party can ultimately prevail on the claims asserted.” Faulkner v. Bost, 137 S.W.3d 254, 259 (Tex.App.-Tyler 2004, no pet.); see also Hunt, 664 S.W.2d at 324 (<HOLDING>). A partnership has standing to file suit in Holdings: 0: holding it is a question of fact 1: holding that the question of whether an existing constitutional right is infringed is strictly a question of law 2: holding that generally the question of waiver and estoppel is a question of fact 3: holding the question of standing is distinct from the question of proof and once the plaintiffs alleged an interest peculiar to themselves and distinguishable from the public generally they were entitled to a factual hearing 4: holding that the plaintiffs in an election case were not required to show a substantial injury distinct from that suffered by the public in general


Input: Fletcher, § 8144; Great American Insur. Co. v. Byrd & Watkins Constr., Inc., 63 poration’s failure to comply with the dissolution statutes voids the dissolution as to a creditor whose rights have been prejudiced, thereby permitting the creditor to sue the corporation after more than two years following the date of dissolution. United States v. SCA Services of Indiana, Inc., 837 F.Supp. 946, 952-53 (N.D.Ind.1993); Soo Line R.R. Co. v. B.J. Carney & Company, 797 F.Supp. 1472, 1478 (D.Minn.1992); Alpine Property Owners Ass’n v. Mountaintop Dev. Go., 179 W.Va. 12, 365 S.E.2d 57, 64-65 (1987); South Carolina Dept. of Social Serv. v. Winyah Nursing Homes, Inc., 282 S.C. 556, 320 S.E.2d 464, 468 (Ct.App.1984). Cf. Licht v. Association Serv., Inc., 236 Neb. 616, 463 N.W.2d 566, 570 (1990) (<HOLDING>). In the present case, it is undisputed that Holdings: 0: holding that actual notice fulfills a notice requirement that an applicable federal regulation be conspicuously posted because actual notice is the best notice 1: holding that the state was estopped to argue that the 90day notice period  expired on a date prior to the expiration date it cited to the claimant 2: holding that where employee was aware of dissolution abatement of claims provision applied even in absence of written notice because employee had actual notice 3: holding that limitations period begins to run on date notice was received at claimants residence even if claimant did not receive it until a later date 4: holding that where claimant had actual notice of corporate dissolution limitation period began on date of dissolution despite failure to provide written notice


Input: the public interest.” If we jump to such a high level of abstraction, it becomes impossible to determine whether the employee was truly acting within the proper scope of his job-related activities. Consequently, we consider a government official’s actions at the minimum level of generality necessary to remove the constitutional taint. In considering whether an act of allegedly excessive force fell within a police officer’s duties, for example, we do not ask whether police have the right to use excessive force. We also do not immediately jump to a high level of generality and ask whether police are responsible for enforcing the law or promoting the public interest. We instead ask whether they have the power to attempt to effectuate arrests. See, e.g., Ferraro, 284 F.3d at 1194 (<HOLDING>). After detérmining that an official is engaged Holdings: 0: holding that a military police officer was entitled to qualified immunity from an excessive force suit when he objectively reasonably believed that he used reasonable force 1: holding that an officer intentionally hitting the plaintiffs head into the top of the police car as the plaintiff was being placed in the police car could be excessive force 2: holding that the initial stop by officer was based on reasonable suspicion that defendant was impersonating a police officer although another officer arrested defendant for privacy act violation 3: holding in an excessive force suit there can be no doubt that the police officer defendant was acting in his discretionary capacity when he arrested plaintiff 4: holding that a police officer was not liable for use of excessive force since  951 requirements were satisfied


Input: The district court did not err in considering the PSR and attached documents in order to determine if Mendoza’s conviction for conspiring to launder money was an aggravated felony. The PSR and the attached documents show that Mendoza was charged with money laundering under 18 USC § 1956 and pleaded guilty to that count. The evidence submitted to the district court also shows, by a preponderance of the evidence, that Mendoza’s money laundering involved more than $10,000. See United States v. Teuschler, 689 F.3d 397, 399 (5th Cir.2012) (“The Government bears the burden of proving by a preponderance of the relevant and reliable evidence that the facts support a sentencing enhancement.” (internal quotation marks omitted)); see also Hakim v. Holder, 628 F.3d 151, 153-55 (5th Cir.2010) (<HOLDING>). The PSR given to the court described the Holdings: 0: holding that the unit of prosecution under  666a1a is  5000 or more from whatever source in any one year period in which the government or agency at issue receives more than 10000 in federal aid 1: holding that motor carrier exemption applied to plaintiffs that performed maintenance on a fleet that consisted of vehicles weighing both more and less than 10000 pounds 2: recognizing that cjlearly buie requires more than ignorance or a constant assumption that more than one person is present in a residence 3: holding that more than notice to a defendant is required 4: holding that section 1101a43d requires that the money laundering involve more than 10000 not that 10000 or more was tainted


Input: requirement. Id. at 1339. The Defendants argue that Irene did not necessarily have to go home in order to perform her work duties. That is, because she had not yet actually been paged, she was not required to go home. Therefore, she would not have gone home if not for personal reasons, taking her trip out of the “dual purposes” exception. A reasonable fact-finder, however, could conclude that Irene had ample business reasons to travel to her home even in advance of an actual page. Again, it was quite likely she would be paged; she could answer pages swiftly from her home; she was evaluated based on the timeliness of her responses; and it advantaged MONY to have pages answered quickly. See Martin v. Hasbrouck Heights Bldg. Loan & San Ass’n, 132 N.J.L. 569, 41 A.2d 898, 900 (1945) (<HOLDING>); Egloff v. Ob-Gyn Assocs. of N. N.Y., 245 Holdings: 0: holding in applying dual purpose test borrowed from new york that it was irrelevant that the claimant could have made his business appointments somewhere other than his home office 1: holding that the board is not required to articulate irrelevant factors when applying the douglas analysis 2: holding that there was a sufficiently direct relationship between restricting the defendants selfemployment as a roofer and his bank fraud conviction when the defendant used his roofing business to facilitate the fraud and after his initial sentence he failed to provide information about his business activities to his probation officer 3: holding an individual who makes a timely challenge to a judicial officer based on the appointments clause is entitled to a determination of the merits of his claim 4: holding that defendant was not resident of his mothers household even though his drivers license listed his mothers address and he received mail there because he expressed a belief that his residence was in a different location than his mothers home he rented and occupied his own residence and he testified that he was only living with his mother after expiration of his lease until he could find another place to live


Input: relationship” exception is drawn from Restatement § 315, which provides: “There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless “(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or “(b) a special relation exists between the actor and the other which gives to the other a right to protection.” (Emphasis added.) The relationship between Ms. Patterson (the “actor”) and Marquette (the “third person”) was that of grandmother and adult grandson. This familial relationship imposed no duty on the elderly Ms. Patterson to control Marquette. See, e.g., Bell & Hudson, P.C. v. Buhl Realty Co., 185 Mich.App. 714, 462 N.W.2d 851 (1990) (<HOLDING>). The relationship between Ms. Patterson (the Holdings: 0: holding that a store owner has a duty to protect invitees from foreseeable criminal acts 1: holding familial relationship insufficient to impose a duty on defendant to protect plaintiff from wrongful acts of defendants family member 2: holding that duty to protect from criminal acts does not arise in the absence of a foreseeable risk of harm 3: holding that a hospitals relationship to the family of deceased gives rise to a duty to avoid emotional harm from handling of remains 4: holding that a residential landlord has no duty to protect invitees from foreseeable criminal acts


Input: which could not be searched in the absence of “joint access or control for most purposes” over them by Ms. Bakker. Mr. Kelley’s privacy interest in his bedroom is not diminished by the fact that Ms. Bakker had access to other areas of the apartment; similarly, the police may not search a bedroom merely because other areas of the apartment may lawfully be searched. Precedent makes clear that Ms. Bakker could validly consent to a warrant-less search of Mr. Kelley’s bedroom only if she had “joint access and control for most purposes” over the bedroom itself. See Cunningham, 352 F.2d at 4-5 (noting that the validity of consent is analyzed according to the particular area to be searched and the extent of the housemate’s access to that particular area); see also Heisman, 503 F.2d at 1288 (<HOLDING>). The majority blatantly ignores these cases, Holdings: 0: holding that a defendants sister could consent to a search of only the common areas of their shared house and her own bedroom and explicitly stating that the sister could not consent to search the defendants bedroom because the defendant had a reasonable expectation of privacy in her own bedroom 1: holding consent invalid when a housemate had unlimited access to the common areas of the apartment but only limited access to her housemates bedroom 2: holding that defendants had no reasonable expectation of privacy in the common areas of an apartment building 3: holding that a wife validly consented to a search of the garage when she was married to the defendant was part owner of the home and had unlimited access to all areas 4: recognizing common law right of access to judicial documents


Input: Holland conversational questions, to which Holland did not respond, such as whether they could speak with him, how he was doing, where he had been, when he got back to town, and whether he lived in the area. The only question that indicated the officers suspected Holland of criminal activity was whether he was carrying any firearms. However, there was nothing in the record demonstrating that the officers’ questions or tone of voice indicated that Holland had to stop and respond to the officers. While Detective Bridges testified that he talked “somewhat loud[ly],” he also testified that he did so “[i]n order to be heard” and that, at the time, he was thirty feet away from Holland, who continued walking away from the officers. Cf. United States v. Wilson, 953 F.2d 116, 123 (4th Cir.1991) (<HOLDING>). Turning to the remaining Mendenhall factors, Holdings: 0: holding that no seizure occurred where officer approached the suspect at the bus stop mentioned that he was investigating a bank robbery asked the suspect what he was doing in the area and for his identification and otherwise gave no indication that the suspect was not free to leave or to refuse to respond to questioning 1: holding that an officer engaged in the functional equivalent of interrogation when he asked a suspect to identify clothing found at a crime scene after the suspect was in custody and had invoked his right to silence regardless of the officers intentions 2: holding that there was no clearly established law when suspect refused to allow officers to handcuff him and when suspect died after prolonged taser usage because precedent had not staked out a bright line 3: holding that seizure occurred when officers prolonged and persistent questioning after the suspect had conveyed an unequivocal unwillingness to engage in further conversation with the officer 4: holding no seizure occurred when after defendant began to walk away officer directed him to stop


Input: that while only “legal provocation” can give rise to perfect or imperfect self defense, lesser forms of provocation exist that may negate premeditation and deliberation and thereby reduce first-degree murder to second-degree murder. See State v. Watson, 338 N.C. 168, 177, 449 S.E.2d 694, 700 (stating that “words or conduct . . . may be enough to arouse a sudden and sufficient passion in the perpetrator to negate deliberation and reduce a homicide to murder in the second degree”), reconsideration and stay of mandate denied, 338 N.C. 623, 457 S.E.2d 302 (1994), and cert. denied, 514 U.S. 1071, 131 L. Ed. 2d 569 (1995); Sta ing second-degree murder is a general intent crime and, therefore, attempted second-degree murder exists); Fenstermaker v. State, 912 P.2d 653 (Idaho App. 1995) (<HOLDING>); People v. Lopez, 655 N.E.2d 864 (Ill. 1995) Holdings: 0: holding no offense of attempted seconddegree murder where seconddegree murder defined only as unintentional but reckless killing of another under circumstances manifesting indifference to human life 1: holding no offense of attempted seconddegree murder where statute allows conviction without proof of intent to kill 2: holding no offense of attempted seconddegree murder where that crime is defined as an unpremeditated depravedheart offense 3: holding offense of attempted seconddegree murder exists where there is evidence defendant intended to kill 4: holding jury instruction on lesser included offense of attempted voluntary manslaughter by act which required finding of intent to kill constituted fundamental error and required reversal of defendants conviction for seconddegree murder


Input: seconds elapsed from the time the police first had Ms. Munoz Wolfson in their grasp — before plaintiff began to interfere — until Officer Frost placed plaintiff on the hood of the car. Video 2 at 0:21-:35. As defendants note, plaintiff had no right to physically interfere with her friend’s arrest, Defs.’ Mem. at 10, and even plaintiff acknowledges that such interference would have constituted a violation of D.C.Code § 22^105(b), which was the eventual charge. See PL’s Opp. at 12. In this rapidly developing situation, where plaintiff was interfering with an arrest and resisting police custody, it was objectively reasonable for Officer Frost to quickly and forcefully place her on the hood of the car to maintain control over her. See Stevens v. Stover, 727 F.Supp. 668, 671 (D.D.C.1990) (<HOLDING>). It was also reasonable for Officer Frost to Holdings: 0: recognizing that police officers may use reasonable force to make a lawful arrest 1: recognizing that the fourth amendment protects against the use of excessive force by police officers in carrying out an arrest 2: holding that compliance with an officers orders is a material fact when deciding whether the officers use of force was reasonable 3: holding that a military police officer was entitled to qualified immunity from an excessive force suit when he objectively reasonably believed that he used reasonable force 4: holding that an officers use of force against a plaintiff was objectively reasonable considering the force the plaintiff herself exercised in resisting police custody


Input: common-law causes of action for libel and slander (Claim # B), the Court has no subject matter jurisdiction over those defendants. Meridian Int’l Logistics, 939 F.2d at 744-45. D. Sovereign Immunity Plaintiff alleges that defendant SEC is liable in some manner for “outrageous government conduct” in connection with the libel and slander cause of action, Claim # 3. (Complaint, p. 4). As a preliminary matter, “outrageous government conduct” fails to constitute a cognizable claim. To the extent plaintiff attempts to state a constitutional claim for damages against defendant SEC, this Court lacks subject matter jurisdiction to consider such a claim against an agency of the federal government. Federal Deposit Ins. Corp. v. Meyer, — U.S. -, —- -, 114 S.Ct. 996, 1005-06, 127 L.Ed.2d 308 (1994) (<HOLDING>); Daly-Murphy v. Winston, 837 F.2d 348, 356 Holdings: 0: holding that a bivens cause of action cannot be maintained against a federal agency 1: holding ftca claim barred bivens claim the moment judgment was entered against the government 2: holding that no bivens claim existed against a defendant bank that supplied information required by law to the federal bureau of investigations 3: holding that a bivens claim cannot be brought against a federal agency 4: holding that an action brought pursuant to  1983 cannot lie against federal officers


Input: for review is DENIED. * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. 2 . Zhang v. Gonzales, 432 F.3d 339, 343 (5th Cir.2005). 3 . Mikhael v. INS, 115 F.3d 299, 305 (5th Cir.1997). 4 . Id. at 304; Chun v. INS, 40 F.3d 76, 78 (5th Cir.1994). 5 . Roy V. Ashcroft, 389 F.3d 132, 138 (5th Cir.2004) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 484, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). 6 . Zhao v. Gonzales, 404 F.3d 295, 306 (5th Cir.2005); 8 C.F.R. § 208.13(b). 7 . 8 C.F.R. § 208.13(b)(1)(i)(A); see also Shehu v. Gonzales, 443 F.3d 435, 436 (5th Cir.2006). 8 . 8 C.F.R. § 208.16(b)(1)(A). 9 . See Eduard v. Ashcroft, 379 F.3d 182, 188 (5th Cir.2004) (<HOLDING>). 10 . See Shehu, 443 F.3d at 436 (upholding Holdings: 0: holding that incidents of harassment and unfulfilled threats of injury are not persecution absent physical harm 1: holding that to constitute persecution harm must be more than harassment 2: holding that stonethrowing denigration harassment and threats ordinarily do not amount to persecution 3: holding that harassment threats and one beating did not constitute persecution 4: holding that threats standing alone generally do not constitute past persecution


Input: Corp. v. West Virginia Human Rights Comm’n, 181 W.Va. 473, 383 S.E.2d 277 (1989). In K-Mart, 181 W.Va. at 477, 383 S.E.2d at 281, fn. 6, quoting Conaway, 178 W.Va. at 171, 358 S.E.2d at 430, we stated that the non-diseriminatory reason given in rebuttal “need not be one which the judge or jury would have acted upon” and “can be any other reason except that the [complainant] was a member of a protected class.” In order to overcome a showing of non-discriminatory reason, the complainant must demonstrate by a preponderate of evidence that the claimed non-diseriminatory reason was merely a pretext. Syl. Pt. 4, Conaivay. Pretext may be demonstrated by showing that the articulated reasons were implausible. Syl. Pt. 5, Barefoot v. Sundale Nursing Home, 193 W.Va. 475, 457 S.E.2d 152 (1995) (<HOLDING>). Even if we were to assume that a prima facie Holdings: 0: holding that a posttrial motion is not required after a grant of a directed verdict 1: holding that the trial court erred in granting the school boards posttrial motion for directed verdict because although the school board timely moved for a directed verdict during trial it did not serve its motion for directed verdict until the eleventh day after the verdict 2: holding that after a nondiscriminatory justification for action is articulated a plaintiff need not show more than the articulated reasons were implausible and thus pretexual in order to defeat a motion for directed verdict 3: holding a directed verdict motion stating specific grounds is a prerequisite for a subsequent motion for judgment notwithstanding the verdict 4: holding that plaintiff need only point to sufficient evidence to support an inference that the employer did not act for its proffered nondiscriminatory reasons


Input: jury would have to speculate to estimate those contributions. See Gilman v. C.W. Dart Hardware Co., 42 Mont. 96, 111 P. 550, 551 (1910) (quoting Birkett v. Knickerbocker Ice Co., 110 N.Y. 504, 18 N.E. 108 (1888)). Accordingly, we do not believe that the speculative nature of loss-of-inheritance damages would prevent them from being awarded by a Montana court. Other federal courts construing uncertain state law have found loss-of-inheritance damages to be available, despite the absence of an express state court ruling on the subject and despite the fact that such damages are speculative. In O’Toole v. United States, 242 F.2d 308 (3d Cir.1957), for example, the court first determined that the case law of Delaware did not specifically allow or disallow such da upp. 873, 874 (W.D.Mo.1983) (<HOLDING>). The Government argues that Swanson v. Holdings: 0: holding that a state agency created under state law was a state actor 1: holding that a plaintiff may receive both treble damages under rico and state law punitive damages for the same course of conduct 2: holding that punitive damages could not be granted because punitive damages are a matter of substantive law and substantive state law  must yield to federal limitations 3: holding that erisa  502a3 does not allow for extraeontractual damages including damages for emotional distress 4: holding that better view is to allow such damages although state law unclear


Input: at trial. See, Foreword Magazine, Inc. v. OverDrive, Inc., 2011 WL 5169384, at *2 (W.D.Mich. Oct. 31, 2011) (“the 2010 amendments to Rule 56 ... eliminated the unequivocal requirement that documents submitted in support of a summary judgment motion must be authenticated,” and thus, “the objection contemplated by the amended Rule is not that the material ‘has not’ been submitted in admissible form, but that it ‘cannot’ be”). Leaving aside that any of the signatories to the lease could authenticate it, the lease for the condominium was in the loan file that CFS submitted to FAMC, and Mr. Brilliant acknowledged in this deposition that the lease for the Newell property was submitted to CFS’s post closing department. See, United States v. Komasa, 767 F.3d 151, 156-7 (2nd Cir.2014) (<HOLDING>); United States v. Lock, 411 Fed.Appx. 5, 7 Holdings: 0: holding that a mortgage or modification of a mortgage is not a good or a service under the dtpa 1: holding that mortgage loan files may be selfauthenticating documents 2: holding that a mortgage transfer does not take effect until the mortgagee gives value in exchange for the mortgage 3: holding that foreclosure of prior mortgage extinguished second mortgage 4: holding that the note and the mortgage must coexist to give the mortgage validity


Input: that the Board should be “afforded a strong presumption of good faith.” Id. “[G]reat deference is given to the good faith determinations of school boards on decisions of whether to renew a teacher’s contract.” Wuest, 2000 SD 42 at ¶ 12, 607 N.W.2d at 915-16. “The burden is on the person challenging a board’s decision to overcome the presumption that the board was acting in good faith.” Nordhagen v. Hot Springs Sch. Dist., 474 N.W.2d 510, 513 (S.D.1991). Gauer has not carried her burden on this necessary showing of bias by the Board, which would sustain a violation of her due process rights. [¶ 12.] Further, we note that the Board did not attempt to deceive or withhold information from Gauer, which, if done, could have violated her due process rights. See Strain, 447 N.W.2d at 335-36 (<HOLDING>). The Board disclosed the reasons for Holdings: 0: holding that is a violation of due process for the prosecution to fail to disclose evidence favorable to an accused that is material to guilt or punishment 1: holding that a conviction violated due process because the prosecutor knowingly refused to disclose crucial exculpatory evidence to the defendant 2: holding that a career teachers substantive due process rights were not violated when the school board decided not to renew her contract due to concerns about her performance 3: holding that a teachers consensual sexual relationship with a fifteenyearold student constituted a violation of the students substantive due process rights 4: holding board did not fail to disclose exculpatory information in violation of teachers due process rights


Input: Court law. See Borden v. Allen, 646 F.3d 785, 823 (11th Cir.2011) ("Because Borden has not sufficiently pled facts that would establish prejudice-cumulative or otherwise-we decline to elaborate further on [a cumulative-effect ineffective assistance of counsel claim] for fear of issuing an advisory opinion on a hypothetical issue."). Finally, the state court's rejection of Sneed's appellate-counsel-ineffectiveness claim was not contrary to or an unreasonable application of Supreme Court law. As we've already discussed, none of Sneed's challenged alleged errors, so far as they are encompassed in the COA, are meritorious; as a result, appellate counsel cannot be deemed ineffective for failing to have raised them on direct appeal. See Card v. Dugger, 911 F.2d 1494, 1520 (11th Cir.1990) (<HOLDING>). Moreover, Sneed was not prejudiced by Holdings: 0: holding counsel was not deficient for declining to make a meritless argument 1: holding trial counsel was not ineffective for failing to pursue a meritless issue 2: holding that counsel was not deficient in failing to present a meritless argument 3: holding that appellate counsel is not required to raise meritless issues on appeal 4: holding that counsel cannot be deemed ineffective for failing to raise a meritless claim


Input: of the 1998 Trust Agreement). Mr. Pettinati, Jr. exercised that trustee power to defend BASR’s 1999 tax returns and the 1998 Gift Trust’s tax liability. 3. BASR’s Litigation Costs Are “Reasonable.” Because BASR is a “prevailing party,” that “incurred” litigation costs, the next step in the court’s analysis to determine whether the litigation costs requested for this case are “reasonable.” I.R.C. § 7430 provides that a “prevailing party” may be awarded “reasonable litigation costs” incurred during a tax case. See I.R.C. § 7430(a)(2) (emphasis added)). The United States Court of Appeals for the Federal Circuit has held that the court has “broad discretion” in determining whether litigation costs requested are “reasonable.” See Wagner v. Shinseki, 640 F.3d 1255, 1261 (Fed. Cir. 2011) (<HOLDING>). a. BASR’s Attorneys Spent A “Reasonable” Holdings: 0: holding trial court erred in awarding attorneys fees to physicians in absence of any evidence of attorneys fees 1: holding that an award of attorneys fees under supreme court rule 38 precursor to rule 222 did not preempt an award of attorneys fees to which one is otherwise entitled and thus appellant could seek an award of attorneys fees pursuant to section 1577300 which permits an award of fees for a party prevailing in an action against a state agency 2: holding that a court has broad discretion in awarding attorney fees under the eaja but is not required to make an award in all cases where a party seeks supplemental or increased fees 3: recognizing that an appeal filed within 30 days of the entry of an order awarding attorney fees was timely filed as to the issue of attorney fees 4: holding because an award of attorney fees is discretionary court may consider attorney fees in relation to the underlying equities in the case


Input: United States Supreme Court acknowledged in Valenzuela-Bemal, the demonstration of materiality can be established even where circumstances prevent a witness from being interviewed. 458 U.S. at 871, 102 S.Ct. 3440 (explaining that despite inability to "make any avowal of how witness may testify” in absence of interview, materiality may nonetheless be demonstrated by proffer of events to which witness might testify and relevance of such events to crime). 14 . At the same time, we recognize that even if Ms. Day had been called to the stand, she may have similarly ended up being held in contempt of court without having provided the testimony that Appellant sought to elicit from her. That, however, is not the concern at which the demonstration o ders, 206 W.Va. 544, 526 S.E.2d 320 (1999) (<HOLDING>). 16 .We note with appreciation that the State Holdings: 0: recognizing danger of unfair prejudice resulting from fifth amendment invocation injurys presence is not so great when the defense rather than the government seeks to draw inferences from a witnesss silence  1: holding that juveniles request for parent is invocation of fifth amendment rights 2: holding that trial court may draw adverse inference from habeas petitioners silence as result of fifth amendment invocation during deposition 3: holding adverse inference permissible in the face of defendants repeated invocation of fifth amendment privilege in discovery responses 4: holding that substantive use of prearrest silence is contrary to fifth amendment


Input: the Derouin residence. This testimony corroborates the accuracy of Michelle’s prior statement. The only facts going against admission are from Michelle’s testimony. Her testimony alone, under Alvarado, is not enough to support suppression of the statement when there are sufficient indicia of the statements accuracy to admit it. CONCLUSION The trial court abused its discretion in failing to properly apply Alvarado. In applying Alvarado’s totality of the circumstances test to this case, we find sufficient indicia of its reliability and admit Michelle’s past recorded recollection. The issue here is not whether the statement is admissible, but the weight to be accorded to the statement in the face of Michelle’s current testimony. We remand for further proceeding W.2d[ 298,] 302 [(1980)] (<HOLDING>). Understandably, where a prior statement was Holdings: 0: holding that hearsay within a police report was inadmissible 1: holding that police report of witnesss statement was inadmissible because witness had not adopted report as accurate when matter was fresh in his memory 2: holding that denying admission of police officers typewritten notes of witnesss statement was proper where witness never adopted statements as true and accurate 3: holding that a department of defense report was inadmissible 4: holding that witness statements in police report inadmissible


Input: He opined that Dr. Gerber could not legitimately refer Endicott because he never treated Endicott. II. The dispositive question is whether Dr. Gerber made a valid referral to Dr. Lusk. The rule is well settled that an employee may change a treating physician when referred by the authorized treating physician, when confronted with an emergency, or when given permission by the commission or the employer. Biafore v. Kitchin Equipment Co., 18 Va.App. 474, 478-79, 445 S.E.2d 496, 498 (1994); Shenandoah Products, Inc. v. Whitlock, 15 Va.App. 207, 210, 421 S.E.2d 483, 485 (1992). The issue whether a treating physician has made a valid referral of his patient to another physician for treatment is a factual question. Daniel Construction Co. v. Baker, 229 Va. 453, 456, 331 S.E.2d 396, 398 (1985) (<HOLDING>); Jensen Press v. Ale, 1 Va.App. 153, 159, 336 Holdings: 0: holding that credible evidence supported the commissions factual finding that the treating physician referred claimant to the pain clinic 1: holding that the district courts finding of no discrimination was not clearly erroneous because the finding was supported by the record 2: holding substantial evidence supported jury finding of abuse of process 3: holding that if a reasonable fact finder could make a particular finding on the administrative record then the finding is supported by substantial evidence 4: holding that the commissions finding that  dr troup referred the claimant to dr rezba  is supported by evidence


Input: finds that Mook in talking with Webb, talked with Webb in a manner that was consistent with the Hospital’s policies. The undisputed evidence establishes that Mook only provided Webb with the dates of Toney’s employment, Toney’s position and the reason why Toney left the Hospital. The Hospital would not be arguing that Mook’s statements were outside the scope of her employment had the information given by Mook to Webb been correct and accurate. Accordingly, in light of Mook’s false statements given as a supervisor at the Hospital to Webb, the Hospital cannot now retroactively discharge Mook as a representative of the Hospital in an attempt to shield itself from Title VII liability. See Buechele v. St Mary’s Hosp. Decatur, 156 Ill.App.3d 637, 109 Ill.Dec. 83, 509 N.E.2d 744, 746 (1987) (<HOLDING>). Applying the criteria set out in Illinois Holdings: 0: holding that a party can be held liable for securities fraud on an agency or a respondeat superior theory 1: holding that the liability reform act preempted in part the common law doctrine of respondeat superior 2: holding that respondeat superior liability may attach if an employee criticizes a coemployee in bad faith in a report filed with a state agency 3: recognizing respondeat superior liability 4: holding that county liability under  1983 cannot rest on a theory of respondeat superior


Input: the pornographic materials that Ogletree stored in his back yard storage shed along with his four-wheeler. Furthermore, D. C. described at trial the act that formed the basis of the charge concerning her. And the state presented evidence that Ogletree had groped the breasts of two other women without their consent. Moreover, the trial court charged the jury fully as to what constituted evidence, including instructing them that evidence did not include the questions asked by the lawyers. “All things considered, including the strength of the State’s evidence in this case, we conclude that it is highly probable that [any] trial court[ ] error in failing to comply with OC 2d 512) (2005) (citations omitted). 4 See Jackson, supra; Jenkins v. State, 284 Ga. 642, 646 (4) (670 SE2d 425) (2008) (<HOLDING>); OCGA § 24-4-8 (2011) (“The testimony of a Holdings: 0: holding that beyond reasonable doubt standard not required in termination cases 1: holding that evidence as stipulated at a trial was sufficient to find beyond a reasonable doubt that appellant was guilty under standard of jackson supra 2: holding that trial court must determine whether fifth amendment violation was harmless beyond a reasonable doubt 3: holding that appellant was deprived of a fair trial where the jury was instructed in such a way that it was not required to find at least two elements of the offense of capital murder to be proven beyond a reasonable doubt 4: holding that testimony at trial in violation of defendants constitutional confrontation right was harmless beyond a reasonable doubt because the testimony was cumulative


Input: as a matter of law. Not surprisingly, Mrs. Kimmel strongly opposes Western Reserve’s characterization of the alleged misrepresentations and further contests whether any alleged misrepresentations were in fact material to Western Reserve’s coverage determination. Both parties have offered extensive argument and evidence in the form of affidavits and documentation in support of their positions. Western Reserve has offered the report of an expert, and Mrs. Kimmel has countered with an affidavit from Mr. Kimmel’s treating physician. As noted earlier, a material misrepresentation on an application for life insurance will void any coverage under the terms of a conditional receipt. Primerica, 678 N.E.2d at 1142-43; see also Foster v. Auto-Owners Ins., Co., 703 N.E.2d 657, 659 (Ind.1998) (<HOLDING>). “A representation is material if the fact Holdings: 0: holding an insurer has a right to rely on statements made in an insurance application 1: holding that under georgia law a holder of a master insurance policy is an agent of the insurance company and not the insurer 2: recognizing that a material misrepresentation or omission of fact in an insurance application relied on by the insurer in issuing a policy renders the coverage voidable at the insurance companys option 3: recognizing an insurers right to rescind an insurance contract where the insured has made fraudulent or material misrepresentation in insurance application 4: holding that new yorks public policy does not bar insurance coverage for disparate impact employment discrimination but noting that the state of new york insurance department has stated that it is against public policy to provide insurance coverage for intentional acts of discrimination


Input: He therefore is not entitled to contribution from his co-guarantors at this time. Finding that Rogers is not entitled to judgment as a matter of law, we hereby reverse the trial court's entry of summary judgment for Rogers. Reversed. BRADFORD, J., and BROWN, J., concur. 1 . This amount equals 50% (Small's share in Patriot's Place) of $77,723.52 (the amount Rogers paid to Monroe Bank on behalf of Patriot's Place) plus 40.43% (Small's share of Plainfield Place) of $10,360.39 (the amount Rogers paid to Busey Bank on behalf of Plain-field Place). 2 . To hold otherwise would result in a claim for contribution being asserted upon each and every payment made toward a debt until the debt is discharged. But cf. Afolabi v. Atlantic Mortg. & Inv. Corp., 849 N.E.2d 1170, 1175 (Ind.Ct.App.2006) (<HOLDING>). Of course, this is not to say that the Holdings: 0: holding that prior foreclosure actions do not preclude successive foreclosure actions where there are subsequent and separate defaults 1: holding that the actions were not actions of public and general applicability but were actions directed principally and primarily at plaintiffs 2: holding that adea class actions are optin actions under  216b not optout actions subject to rule 23 3: holding that a class action tolls the statute of limitations only for subsequent individual actions not for subsequent class actions 4: holding that arbitration provisions that preclude class actions are not unconscionable


Input: and Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir.1984), cert. denied, 472 U.S. 1016, 105 S.Ct. 3476, 87 L.Ed.2d 612 (1985). 164 . City of Canton v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 1205, 103 L.Ed.2d 412 (1989); Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 106 S.Ct. 1292, 1300, 89 L.Ed.2d 452 (1986) (plurality); Gonzalez v. Ysleta ISD, 996 F.2d 745, 752-60 (5th Cir.1993); Colle v. Brazos County, 981 F.2d at 245; and Rhyne v. Henderson County, 973 F.2d 386, 392 (5th Cir.1992). 165 . See Esteves v. Brock, 106 F.3d 674, 677 (5th Cir.1997), cert. pending; Colle v. Brazos County, Texas, 981 F.2d at 244-45; Nobby Lobby, Inc. v. City of Dallas, 970 F.2d at 92; Johnson v. Moore, 958 F.2d at 94; Fields v. City of South Houston, 922 F.2d 1183, 1192 (5th Ci D.Tex.1990), (<HOLDING>). 182 . A lawsuit which does not appear Holdings: 0: holding that filing an answer  does not invoke the status as a defendant in plaintiffs lawsuit 1: holding that default judgment could not be rendered after the defendant had served plaintiff with a copy of a motion to dismiss that had not then been filed 2: holding that a default judgment could not be rendered after defendants counsel telephoned plaintiffs attorney to request additional time within which to answer 3: holding that a default judgment could not be rendered without satisfying the procedural requirements of rule 55b2 fedrcivp after the defendant had made an appearance in the lawsuit by filing an answer in state court in a case that had been removed to federal court 4: holding that after all federal claims had been dismissed if the district court does decline to exercise supplemental jurisdiction these state claims shall be remanded to state court rather than dismissed because this case was originally filed in state court and removed to federal court


Input: to that of Defendant, who masterminded the plot. ¶ 66 It was Dan, however, who actually stabbed Lynne, and it was David who stood to directly benefit from Lynne’s death and had the closest familial relationship to her. Neither Dan nor David received a death sentence. We dealt with a similar disparity problem in State v. Mann, in which the disparity was not considered mitigating because the person treated lightly was only an accomplice and Mann was the actual killer. 188 Ariz. 220, 230, 934 P.2d 784, 794 (1997). In the present case, the actual killer got the life sentence, and Defendant, who was not the actual killer, was sentenced to death — the opposite of what justified the disparate treatment in Mann. See also State v. Clabourne, 142 Ariz. 335 at 348, 690 P.2d 54 at 68 (1984) (<HOLDING>). The disparity in the present case must be Holdings: 0: holding that where a defendant sold no stock at all this suggested that there was no insider information from which to benefit and there was not a strong inference of scienter 1: holding that there was no question that the full and fair opportunity element was met where there was no indication that such an opportunity was unavailable 2: holding that there was no actual prejudice where the defendant has the functional equivalent of the notice required 3: holding there was no mitigation where defendant but not accomplices did actual killing which involved strangling and stabbing 4: holding that there was no standing where the prospective future candidacy of a former congressman was involved


Input: bankruptcy court did not abuse its discretion in determining that dismissal was in the best interests of creditors and is entitled to substantial deference as to its choice of remedies. Furthermore, as the Debtor has not argued that conversion of the case to chapter 7 would have been more appropriate than dismissal, we need go no further to plumb its reasoning with respect to its choice of one remedy over another. B. Section 109(g) “Section 109 sets forth who may be a debtor under title 11.” In re Inesta Quinones, 73 B.R. 333, 336 (Bankr.D.P.R.1987). T at the conduct was deliberate.” In re Lee, No. 11-8053, 2012 WL 1324234, at *9-10 (6th Cir. BAP Apr. 18, 2012) (citing In re Nelkovski, 46 B.R. 542, 544 (Bankr.N.D.Ill.1985)); see also In re Pike, 258 B.R. 876, 883 (Bankr.S.D.Ohio 2001) (<HOLDING>) (citation omitted). Here, the bankruptcy court Holdings: 0: holding that 8 cfr  10032c3ii applies to changed country conditions in the country of origin or deportation and not changed personal circumstances in the united states 1: holding that an alien failed to qualify for the changed circumstances exception by asserting only that his personal circumstances had changed by the birth of a child 2: holding that successive filings in the absence of changed circumstances justified a 180day disqualification 3: holding that a change in personal circumstances is not sufficient to establish changed circumstances for the purpose of 8 cfr  10032c3h 4: holding that petitioners divorce was a purely personal change in circumstances that does not constitute changed conditions or circumstances in jordan


Input: or writs of error coram nobis. See, e.g., United States v. McClelland, 941 F.2d 999, 1002 (9th Cir.1991) (coram nobis review); United States v. Mitchell, 867 F.2d 1232, 1233 (9th Cir.1989) (per curiam) (habeas corpus review); United States v. Osser, 864 F.2d 1056, 1059-60 (3rd Cir.1989) (coram nobis review); United States v. Mandel, 862 F.2d 1067, 1074-75 (4th Cir.1988), cert. denied, 491 U.S. 906, 109 S.Ct. 3190, 105 L.Ed.2d 699 (1989) (same); United States v. Shelton, 848 F.2d 1485, 1489-90 (10th Cir.1988) (habeas corpus review); Ingber v. Enzor, 841 F.2d 450, 455 (2nd Cir.1988) (same). But see United States v. Callanan, 671 F.Supp. 487, 493 (E.D.Mich. 1987), rev’d in relevant part, 881 F.2d 229, 232 (6th Cir.1989), cert. denied, 494 U.S. 1083, 110 S.Ct. 1816, 108 L.Ed.2d 946 (1990) (<HOLDING>). This Court holds that Hubbard should be Holdings: 0: holding that managing conservator while in texas to seek return of child by writ of habeas corpus may not be served with civil process and is subject to jurisdiction of court in which habeas corpus is pending and only for purpose of prosecuting writ of habeas corpus 1: holding that the act is not retroactive 2: holding that a writ of habeas corpus cannot be used to review the weight of evidence   3: holding mcnally not to be retroactive in habeas corpus proceeding reversed on appeal 4: holding on appeal from a habeas corpus denial that counsel was not ineffective for failure to file a notice of appeal because of defendants escape


Input: shortly after R.S. submitted to blood testing in September 1994. Also, R.S. should have been notified of the November 1994 shelter hearing. At a minimum, had R.S. been contacted at either of these times, he would have been able to begin establishing a relationship with J.M., and the bond that now exists between J.M. and his foster parents — the exact bond which the trial court now relies upon to support J.M.’s continued placement with the foster parents — -may never have developed. It is a perverse operation of the system that allows the State, acting through the offices of DFS and ORS, to keep R.S. in the dark as to J.M.’s foster placement and then use the time J.M. has been in foster care as evidence of abandonment against R.S. Cf. In re M.C., 940 P.2d 1229, 1235 (Utah Ct.App. 1997) (<HOLDING>). The majority states that “the juvenile court Holdings: 0: holding when real estate is conveyed to a child and consideration is paid by the parent the parent has the burden of proving a gift was not intended 1: holding that a parent must exercise some control over the subsidiarys activities which does not require that the subsidiary be controlled to an ultimate degree by its parent  although something more than mere passive investment by the parent is required the parent must have and exercise control and direction  over the affairs of its subsidiary in order for venue to be proper 2: recognizing that a foster parent may attain the status of psychological parent when the relationship is not temporary in duration and exists with the consent and encouragement of a childs legal parent or guardian 3: holding the termination of parental rights does not necessarily mean that all bonds are broken between parent and child a court may allow some continued communication between the parent and children pending adoption and even after adoption if it determines that such contact is in the childrens best interest 4: holding a parent is excused from maintaining contact with his or her children when the failure to maintain contact is caused by the involuntary confinement of the parent and the parent is precluded from contacting the children during such confinement


Input: did not, assert before the district court. See B & T Masonry Constr. Co. v. Pub. Serv. Mut. Ins. Co., 382 F.3d 36, 40 (1st Cir.2004) (explaining that legal theories not squarely raised below are not preserved for appeal). In all events, the plaintiffs equitable claims have too little substance. The plaintiff concedes the existence of a valid express contract between the parties-and the existence of such a contract bars the application of the equitable doctrines that he belatedly invokes. See Boswell v. Zephyr Lines, Inc., 414 Mass. 241, 606 N.E.2d 1336, 1342 (1993) (explaining that where a valid contract exists, “the law need not create a quantum meruit right to receive compensation for services rendered”); Zarum v. Brass Mill Materials Corp., 334 Mass. 81, 134 N.E.2d 141, 143 (1956) (<HOLDING>); id. (noting that an express contract leaves Holdings: 0: holding that if the contract can be given a definite and certain meaning or interpretation the contract is not ambiguous and will be construed by the court as a matter of law 1: holding that plaintiffs express contract with the surety company precludes an implied contract with defendant 2: holding that an implied contract may not be found if there is an express contract between the same parties on the same subject matter quoting 42 cjs implied and constructive contracts  34 p 33 3: holding that quasicontractual relief is unavailable where an express contract covers the subject matter 4: holding that the law will not imply a contract where there is an existing express contract covering the same subject matter


Input: on various claims arising from Combs’s treatment by Washington state prison officials. We affirm. The district court properly entered summary judgment for defendants on Combs’s free exercise claims brought under 42 U.S.C. § 1983. See U.S. Const. amend. I. Reviewing the record de novo, Shakur v. Schriro, 514 F.3d 878, 883 (9th Cir. 2008), we agree with the district court’s conclusion that no disputed question of material fact exists as to whether prison officials intentionally and substantially burdened Combs’s right freely to exercise his fundamentalist Jewish faith. The sporadic mistakes in kosher food preparation principles here resulted from inadvertence and did not rise to the level of a constitutional violation. See Canell v. Lightner, 143 F.3d 1210, 1215 (9th Cir. 1998) (<HOLDING>). A prison policy that refused to provide Combs Holdings: 0: holding that a statute which prohibited unreasonable interference with access to a courthouse was a valid law  and the fact that free speech is intermingled with such conduct does not bring with it constitutional protection 1: holding that religionneutral law that is generally applicable does not violate free exercise clause despite incidental effect on religious practice 2: holding that  relatively shortterm and sporadic  intrusions on an inmates prayer activities did not constitute a substantial burden on inmates free exercise of his religion 3: holding that possession of marijuana is not protected by the free exercise clause of the first amendment 4: holding that shortterm and sporadic interference with free exercise rights does not violate the first amendment


Input: an equal protection violation under this theory. The Supreme Court’s decision in Engquist does not compel a different result. In that case, the Court identified two exceptions to the class of one theory of equal protection. See Engquist, 553 U.S. at 603-05, 128 S.Ct. 2146; Avila v. Pappas, 591 F.3d 552, 554 (7th Cir.2010) (discussing Engquist). First, Engquist held that “disputes related to a public employee’s interactions with superiors or co-workers never may be litigated as class-of-one claims under the equal protection clause.” Avila, 591 F.3d at 554. Second, it held that “class-of-one claims cannot rest on governmental activity that is discretionary by design,” such as prosecutorial charging decisions. Id.; see also Srail v. Village of Lisle, 588 F.3d 940, 945 (7th Cir.2009) (<HOLDING>). Plaintiffs’ claim does not implicate a public Holdings: 0: holding that there is no independent tort duty because the exact same conduct is described in both the contract and tort claims and the exact same facts and circumstances are at play which is indicative of    overlapping duties 1: holding that article x  2 of the california constitution dictates the basic principles defining water rights that no one can have a protectible interest in the unreasonable use of water and that holders of water rights must use water reasonably and beneficially 2: holding that villages decision to extend water mains to some communities and not others was the exact type of individualized and discretionary decisionmaking to which the engquist court was referring 3: holding that the plaintiffs sexualharassment claim that she was touched numerous times instead of providing exact dates or the exact number of instances did not prevent her allegations from raising a genuine issue of material fact 4: holding that federal jurisdiction over  2241 petitions does not extend to review of discretionary determinations by the ij and the bia


Input: when Klayman was severely indebted to the Government. Acts of Omission on Klayman’s Part It is not only affirmative acts which may constitute evasion. Section 523(a)(1)(C) encompasses acts of culpable omission as well as acts of commission. Fegeley, 118 F.3d at 983 citing In re Bruner, 55 F.3d 195 (5th Cir.1995) and In re Toti, 24 F.3d 806 (6th Cir.1994). It is the Government’s position that over an eight year period Klayman earned over $1.5 million from Herkly yet made no payment whatsoever towards the tax debt. Gov .) (explaining that debtors’ silence regarding why they did not make any tax payments notwithstanding their considerable income has direct bearing on whether their conduct warranted excepting tax debt from, discharge); U.S. v. Doyle, 276 F.Supp.2d 415, 424 (W.D.Pa.2003) (<HOLDING>) In summary, the record plainly reveals that Holdings: 0: holding that the taxpayer has the burden to prove the governments tax assessment is incorrect 1: holding that it is well established that a taxpayer has no right to insist upon the same erroneous treatment afforded a similarly situated taxpayer in the past 2: holding that even where taxpayer did not have the financial means to pay all of the taxes owed the taxpayer still willfully evaded tax obligation 3: holding that irs may not levy against bank account of delinquent taxpayer held in tenancy by the entirety where taxpayer did not have unilateral right to withdraw funds 4: holding that in a proceeding to recover taxes from a nonbankrupt taxpayer the taxpayer has the burden of proving that his taxes complied with the internal revenue code


Input: from the heading used in Gibson so as to put purchasers on notice that some or all of the fee paid for the extended warranty was going not to the warranty provider, but to Viking. We disagree. It should first be observed that the stated purpose of TILA is to give consumers a functional understanding of what exactly it will cost them to use credit, as well as to provide meaningful and accurate disclosures of costs associated with consumer credit purchases. See 15 U.S.C. § 1601. Plaintiffs have aptly observed that the sufficiency of TILA-mandated disclosures is to be viewed from the standpoint of an ordinary consumer, not the perspective of a Federal Reserve Board member, federal judge, or English professor. See Edmondson v. Allen-Russell Ford, Inc., 577 F.2d 291, 296 (5th Cir.1978) (<HOLDING>); In re Cook, 76 B.R. 661, 664 (Bkrtcy., Holdings: 0: holding that a credit transaction is not a consumer debt when it is incurred with a profit motive 1: holding that the fcras provision that a lender may only use and obtain consumer credit information for the purpose of making a firm offer of credit requires that the lender offer something of value as an extension of credit alone 2: holding that the proper perspective in analyzing tila disclosures is that of ordinary laypersons engaged in consumer credit transactions 3: recognizing statutory credit 4: holding that debt under the fdcpa is limited to liability arising out of consensual consumer transactions and not tortious activity


Input: at 10 (citing City of Waco v. Texland Corp., 446 S.W.2d 1, 2 (Tex.1969)); see also DuPuy, 396 S.W.2d at 110 (stating that construction of viaduct, which deprived landowner of “reasonable access,” entitled him to compensation under the constitution). Here, the relevant jurisdictional facts are largely undisputed. The parties’ central dispute concerns whether GAR has an actionable vested property interest, i.e., an easement of access through the alley and over the State’s property. See City of Houston v. Northwood Mun. Util. Dist. No. 1, 73 S.W.3d 304, 311 (Tex.App.—Houston [1st Dist.] 2001, pet. denied) (“[A] plaintiff asserting a claim under article I, section 17 must show that it has a ‘vested’ property interest.”); Carson v. State, 117 S.W.3d 63, 68 (Tex.App.—Austin 2003, no pet.) (<HOLDING>). GAR asserts that it “has a vested property Holdings: 0: recognizing that publicly targeting a property for condemnation resulting in economic damage to the owner generally does not give rise to an inverse condemnation cause of action unless there is some direct restriction on use of the property 1: holding that there is no right to monetary compensation for a regulatory taking in an inverse condemnation action 2: holding that allegations that states lease and actions that resulted in taking of oil and gas were sufficient to state claim for inverse condemnation 3: recognizing that plaintiff must have vested legal right of access and not merely historical permissive use to have actionable inverse condemnation claim 4: recognizing no right to damages if landowner retains reasonable access to property after a condemnation


Input: Rule 403 is narrowly circumscribed.” United States v. Smith, 459 F.3d 1276, 1295 (11th Cir.2006) (quoting United States v. Norton, 867 F.2d 1354, 1361 (11th Cir.1989) (quotation marks omitted)). As evidence becomes more essential, its probative value becomes greater. King, 713 F.2d at 631. Rule 403’s major function is “limited to excluding matter of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect.” United States v. Meester, 762 F.2d 867, 875 (11th Cir.1985) (quoting United States v. McRae, 593 F.2d 700, 707 (5th Cir.1979)). Testimony merely intended to bolster a party’s case is more easily excluded under Rule 403 than testimony that forms a critical part of that case. See United States v. Mills, 704 F.2d 1553, 1560 (11th Cir.1983) (<HOLDING>). A. Burden Shifting In ordinary cases under Holdings: 0: holding that evidence regarding the 510k process and enforcement should be excluded under rule 403 1: holding that evidence necessary to the governments rebuttal of a defendants case could not be excluded under rule 403 but could have been if it was introduced only to bolster the prosecutions case 2: holding that evidence of a defendants prior criminal convictions could be introduced for the purpose of sentence enhancement if the jury was instructed that the evidence could not be used for the purposes of determining guilt 3: holding grooming evidence inadmissible under r 403 under the facts of the case but not foreclosing admissibility in every case and not addressing r 702 4: holding that the outcome of the case could have been different if the trial court had imposed the appropriate burden


Input: of the crime, the error was harmless. Ibid. Other jurisdictions appear to be in accord. See State v. Preston, 121 N.H. 147, 427 A.2d 32 (1981). (New Hampshire’s Rape Shield Law only excludes evidence of prior sexual activity of the victim and not evidence of the victim’s virginity. Such evidence is admissible even if lack of consent is not raised by the defense. Id. at 149-150, 427 A.2d 32); and see State v. Singleton, 102 N.M. 66, 691 P.2d 67 (Ct.App.1984). (New Mexico’s Rape Shield Law does not preclude evidence of a victim’s virginity since that “evidence of a victim’s virginity is relevant in cases involving alleged forcible criminal sexual penetration where the consent of the victim is at issue.” Id. at 70, 691 P.2d 67); and see People v. Johnson, 671 P.2d 1017 (Colo.App.1983); (<HOLDING>). At least two other courts have concluded that Holdings: 0: holding that a rape shield statute was not ex post facto when it barred evidence of a prior sexual relationship that was admissible before enactment of the statute 1: holding that a prosecutors questions eliciting testimony from a victim as to issue of virginity prior to the assault did not violate colorados rape shield statute because that statute does not specifically prohibit a victim from testifying as to a lack of prior sexual activity id at 1020 2: holding that mistake as to the age of the victim is no defense to statutory rape 3: holding statute does not preclude victims family from testifying as to the difficulties encountered by victim following accident 4: holding that the trial court properly refused to permit the defendant to question the nineyearold victim as to whether he had been sexually abused in the past because indianas rape shield statute shields the victim of a sex crime from a general inquiry into the history of past sexual conduct


Input: imprisonment being the punishment for murder rendere nt to justify a determination of involuntariness or lack of knowledge. Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 1425, 22 L.Ed.2d 684, 693 (1969); Galloway, supra, 133 N.J. at 653-57, 628 A.2d 735; State v. Miller, 76 N.J. 392, 402-05, 388 A.2d 218 (1978); State v. Lapointe, 237 Conn. 694, 678 A.2d 942, 960-61, cert. denied, — U.S. -, 117 S.Ct. 484, 136 L.Ed.2d 378 (1996); State v. Register, 476 S.E.2d 153, 158-59 (S.C.1996), cert. denied, — U.S. -, 117 S.Ct. 988, 136 L.Ed.2d 870 (1997). Moreover, a misrepresentation by police does not render a confession or waiver involuntary unless the misrepresentation actually induced the confession. People v. Benson, 52 Cal.3d 754, 276 Cal.Rptr. 827, 841-43, 802 P.2d 330, 344-45 (1990) (<HOLDING>). The statement by Detective Musiello is not Holdings: 0: holding that comment by officer that case was not deatheligible did not render confession involuntary because comment did not cause defendant to confess 1: holding a prosecutor may not comment on a defendants silence 2: holding officers failure to obtain a written waiver from defendant did not render his oral waiver or subsequent confession involuntary 3: holding that there was no abuse of discretion in denying mistrial based on a comment that the defendant was in prison where the comment provided the jury with little detail 4: holding that comment by prosecutor in closing argument that defense counsel did not produce evidence of the defendants innocence was not a comment on the defendants failure to testify


Input: "suspended” rather than terminated when she remarried, and that if her second marriage were to end through divorce, annulment or the death of her second husband, then she would again receive pension benefits. Based upon this theory, she then argues that "[l]ogic compels the same result when the forfeiture provision was removed by the 1977 amendment,” as "[h]er right was only in suspension until her second marriage either ended or legislation changed the legislature’s intent.” However, as DRS aptly points out, Olesen’s theory that her benefits were merely suspended requires leaps of both logic and legal analysis. Not only is her theory grounded upon the law of other states, as Washington courts have not decided s hts Comm’n Hearing Tribunal, 39 Wn. App. 609, 617, 694 P.2d 697 (1985) (<HOLDING>). 13 Orland, supra, at 880 n.135. 14 48 Wn.2d Holdings: 0: holding that a statute that created a counselorclient privilege should not be retroactively applied to records created prior to the statute because of the presumption against retroactivity 1: holding amendment to statute of limitations was a procedural amendment to be applied retroactively in a medical malpractice case 2: holding that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases  pending on direct review  with no exception for cases in which the new rule constitutes a clear break with the past 3: holding amendment to statute permitting administrative body to award up to 1000 in damages in discrimination cases applied retroactively because it created a supplemental remedy for enforcement of a preexisting right 4: holding generally that new rules of law should not be applied retroactively in habeas corpus cases


Input: a money satisfaction of such interest. [11 U.S.C.A § 363(b)(1), (f).] We initially note that § 363 does not speak of a sale “free and clear of all claims,” but refers to a sale “free and clear of any interest in such property____” 11 U.S.C.A § 363(f). The relevant question is whether § 363(f) applies to plaintiffs’ suit predicated on a theory of strict liability. There appears to be authority which would permit plaintiffs claim. See Volvo White Truck Corp. v. Chambersburg Beverage, Inc., 75 B.R. 944, 948 (Bank. N.D.Ohio t persuasive. A suit against a corporation that purchased a debtor’s assets is not a claim against a debtor in a bankruptcy proceeding and therefore does not affect the Code’s priority scheme. See, e.g., Zerand-Bernal Group, Inc. v. Cox, 23 F.3d 159, 162 (7th Cir.1994) (<HOLDING>). We are also persuaded based upon the Holdings: 0: holding that existence of entity coverage was sufficient to bring proceeds into estate notwithstanding absence of claim against debtor corporation 1: holding that  727a2a does not apply to the transfer of the assets of a corporation in which the debtor is a shareholder 2: holding that a lawsuit against a corporation that purchased assets from a bankrupt is not a claim against the debtor 3: holding that the trustee could not bring a claim against sole shareholders of bankrupt corporation where shareholders had not looted or otherwise injured the corporation 4: holding that an answer that asserts a counterclaim against a plaintiff who then becomes a bankruptcy debtor is an action or proceeding against the debtor within the meaning of  362a1 notwithstanding the fact that the debtor initiated the lawsuit


Input: and 401(3).” To support a conviction of criminal contempt for violation of a court order, the Government must prove beyond a reasonable doubt that the defendant willfully violated a decree that was clear and left no uncertainty in the minds of those that heard it. See Richmond Black Police Officers Ass’n v. City of Richmond, 548 F.2d 123, 129 (4th Cir.1977). Linney maintains that the district court’s “statement of its expectations regarding him” was “not a definite, clear, and specific order.” Brief of Appellant at 17. Linney contends that after hearing the above instructions he believed that jury selection for the Twitty case would begin the next day and so in leaving Asheville he did not willfully violate any court order. Cf. United States v. Marx, 553 F.2d 874, 876 (4th Cir.1977) (<HOLDING>). He claims that he flew to Raleigh with the Holdings: 0: holding that outofstate plaintiff had procured his own absence at trial of his case where record contained no intimation that his absence resulted from any reason other than his own volition 1: holding that a lawyers willful absence from his clients trial is contemptuous 2: holding that loss of contingency fees that lawyers might have earned from other clients was not foreseeable and directly traceable to clients failure to pay amounts due under contract 3: holding that lawyers who were necessary witnesses in the case under rule 37 were not prohibited from representing their clients in all pretrial matters including discovery 4: holding an attorney violated his duty of candor to the tribunal by changing his clients interrogatory answers without the clients knowledge


Input: reliability. Id. at 628-29. Courts around the country tend to agree with the holdings in Wheat and Walshire, finding a tip has the requisite indicia of reliability under the Fourth Amendment when the anonymous tipster relates that he or she has personally observed erratic driving open to public view. See, e.g., People v. Wells, 38 Cal.4th 1078, 45 Cal.Rptr.3d 8, 136 P.3d 810, 815-16 (2006) (finding the likelihood of harassment or an insincere or unreliable report of drunk driving is “significantly reduced” by the fact a phoned-in report involves an anonymous tipster providing “a contemporaneous event of reckless driving presumably viewed by the caller” and a predictive “analysis is more appropriate in cases involving tips of concealed criminal behavior such as p 516, 519, 527-28 (2001) (<HOLDING>). Cases holding an anonymous tip had the Holdings: 0: holding that an anonymous tip lacking indicia of reliability that an individual is carrying a gun is not enough to justify a terry stop 1: holding that an anonymous tip must have sufficient indicia of reliability to justify a stop and frisk 2: holding an anonymous tip had the requisite indicia of reliability to justify a stop when the caller told the police of the alleged erratic driving automobile location and vehicle description 3: holding an anonymous tip had the requisite indicia of reliability when the caller described his or her observations as reckless driving 4: holding that anonymous call that gave police no predictive information to corroborate tip lacked sufficient indicia of reliability to justify stop and frisk