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Read the following excerpt from a US court opinion:
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by ascertaining whether a Kansas statute or constitutional provision governing this case has expressly waived Eleventh Amendment immunity. See Atascadero, 473 U.S. at 238 n. 1, 105 S.Ct. 3142. Though Kansas has generally authorized suits brought in state court against state educational institutions, see Kan. Stat. Ann. § 76-713, its statutes have not expressly- waived Eleventh Amendment immunity. See Brennan, 451 F.2d at 1290; see also Atascadero, 473 U.S. at 241, 105 S.Ct. 3142 (“Although a State’s general waiver of sovereign immunity may subject it to suit in state court,- it is not enough to waive, the immunity guaranteed by the Eleventh Amendment ... [absent] intend ] to subject itself to suit in federal court.” (citations omitted)); Johns v. Stewart, 57 F.3d 1544 (10th Cir.1995) . Nor is there any waiver provision in the
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What is the most suitable continuation to the opinion? Your options are:
A. holding that the eleventh amendment protects a state from suit by its own citizens
B. holding that state did not waive eleventh amendment immunity by removing case to federal court
C. holding that the nyshrl does not waive the new yorks eleventh amendment immunity to suit in federal court
D. holding that utah did not waive its eleventh amendment immunity with respect to a suit brought in federal court because state statute provided for exclusive original jurisdiction in its own courts
E. holding that a state may waive its sovereign immunity
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Read the following excerpt from a US court opinion:
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is a tool the jury may utilize to gauge the defendant’s intent and is helpful in situations in which the defendant’s intent to deceive may be unclear. For example, if the defendant asserts that he was merely joking, that the statements were mere puffery, or that the statements were merely sharp business dealing, evidence that the statements would have deceived a person of ordinary prudence and comprehension is evidence that defendant actually intended to deceive. United States v. Coffman, 94 F.3d 330, 333-34 (7th Cir.1996) (Posner, J.) (rejecting “unreasonable victim argument”; the ordinary prudence standard helps the jury determine if defendant had fraudulent intent and helps distinguish between sharp dealing and fraud). Thus, the ordinary pruden r, 609 F.2d 126, 132 (5th Cir.1980) ; Linden v. United States, 254 F.2d 560, 567-68
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What is the most suitable continuation to the opinion? Your options are:
A. holding that the victims negligence is not a defense to criminal conduct
B. holding that criminal conduct of third party is not superseding cause that relieves negligent actor from liability when criminal conduct is foreseeable result of actors negligence
C. holding that insanity is a complete defense to the criminal charge
D. holding comparative negligence not defense to intentional tort
E. holding that the basis of liability is negligence and not injury
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Read the following excerpt from a US court opinion:
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and procedure of the federal courts.” Cooler & Gell v. Hartmarx Corp., 496 U.S. 384, 393, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). Rule 9011, like Fed.R.Civ.P. 11, “only applies to acts undertaken in a case before the court.” Davant v. Bailey (In re Bailey), No. 09-2564, Adv. No. 10-15, 2010 WL 3277908, at *2, 2010 Bankr.LEXIS 2449, at *4 (Bankr.N.D.W.Va. Aug. 13, 2010) (citing Nationwide Mut. Ins. Co. v. Burke, 897 F.2d 734, 739 (4th Cir.1990)). As evidence in support of her Motion, the Debtor cites to Beneficial’s failure to dismiss the Circuit Court case and the letter she received from Beneficial. Rule 9011 only applies to documents filed in this Court; therefore, the documents filed in State Court cannot be a basis for granting the Debtor’s Motion. See Nationwide, 897 F.2d at 739 ; In re Bailey, 2010 WL 3277908, at *2-4, 2010
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What is the most suitable continuation to the opinion? Your options are:
A. holding that a district court could constitutionally impose rule 11 sanctions in a case in which was later determined that the court lacked subject matter jurisdiction
B. holding that a motion for rule 11 sanctions is dispositive
C. holding that rule 11 sanctions may only be imposed upon the attorney who actually signs the documents in question
D. holding that regarding rule 9011 this court is only concerned with documents filed in this court and thus filings in state court provide no basis to impose sanctions under rule 9011
E. holding that misrepresentations in documents filed in state court in no way constituted a basis for imposing federal rule 11 sanctions
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Read the following excerpt from a US court opinion:
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visa. ‘Eligibility to receive such visa’ is unambiguous, and because the phrase is unambiguous, our inquiry must end with the statute’s plain language.” Id. The Nyaga court went on to consider the context of 8 U.S.C. § 1154 and concluded that “the plain meaning of ‘shall remain eligible to receive such visa’ does not change, nor is it rendered ambiguous.” Id. at 915. All circuits that have addressed this issue have read the plain language of 8 U.S.C. § 1154(a)(l)(I)(ii)(II) in the same way even in the wake of what may seem to be harsh results, such as when defendants failed to even process the applications of otherwise eligible diversity participants before the end of the fiscal year. See Mohamed, 436 F.3d at 81; Coraggioso, 355 F.3d at 734; Carrillo-Gonzalez, 353 F.3d at 1079 . The Second Circuit addressed the plight of
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What is the most suitable continuation to the opinion? Your options are:
A. holding that the doctrine of equitable tolling can fairly be read to encompass cases where a plaintiff has been unable to timely file because of disability
B. holding that equitable tolling applied when the attorney informed his client there was no such thing as a oneyear filing deadline and consistently lied to his client and the clients wife
C. recognizing the validity of the doctrine but holding no equitable tolling on the facts presented
D. holding that the doctrine of equitable tolling has no application in cases involving the congressionallymandated oneyear deadline of the dy lottery program
E. holding that the general equitable tolling doctrine is read into every statute of limitations
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Read the following excerpt from a US court opinion:
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policy language, not a statute, and the policy language did not have an actual physical contact requirement. Latham, 482 S.W.2d at 657. Five years after Latham, the Legislature added the actual physical contact requirement to the uninsured motorist statute. See Act of May 6, 1977, 65th Leg., R.S., ch. 182, § 1, art. 5.06-l(2)(d), 1977 Tex. Gen. Laws 370, 371 (repealed 2005). No other substitute exists for the requirement of actual physical contact with the motor vehicle itself. Texas courts have uniformly rejected the contention that a collision with cargo and other objects falling from a car satisfies the requirement of actual physical contact with a motor vehicle. See, e.g., Tex. Farmers Ins. Co. v. Deville, 988 S.W.2d 331, 333-34 (Tex.App.-Houston [1st Dist.] 1999, no pet.) ; Republic Ins. Co. v. Stoker, 867 S.W.2d 74,
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What is the most suitable continuation to the opinion? Your options are:
A. holding that collision between the claimants vehicle and a steel pipe dropped from an exiting truck was not actual physical contact with a motor vehicle
B. holding that water pump falling from truck and striking insured was not actual physical contact with a motor vehicle
C. holding that the sensible and popular understanding of what a motor vehicle accident entails necessarily involves the motor vehicle being operated as a motor vehicle
D. holding that collision between loading ramp that detached from trailer and insureds vehicle was not actual physical contact with a motor vehicle
E. holding that a collision with the loading ramp of a trailer was not actual physical contact with a motor vehicle
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Read the following excerpt from a US court opinion:
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Commercial Union Ins. Co. of Am., 759 F.2d 826, 828 erm “caused” is ambiguous. Georgia law requires courts to construe ambiguous terms in insurance against the insurer. ALEA London Ltd. v. Woodcock, 286 Ga.App. 572, 649 S.E.2d 740, 745 (2007). Courts must likewise construe exclusions from coverage against the insurer. Id. Facing unsettled legal territory and mindful of Georgia principles of insurance contract interpretation, the Court concludes that the ambiguous causation standard must be strictly construed against Cincinnati. Exclusion H does not exclude coverage based on ordinary employee negligence. It excludes coverage only if an employee acts with knowledge of or intent to further a forgery, or intentionally disregards relevant bank policies. See Empire Bank, 27 F.3d at 335 ; cf. Citibank Tex., N.A. v. Progressive Cas.
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What is the most suitable continuation to the opinion? Your options are:
A. holding an employee caused a banks loss under exclusion h where he instructed his subordinates to ignore bank procedures
B. holding that an employee who fails to provide medical documentation requested by the board is responsible for initiating a subsequent suspension without pay
C. holding a bank liable where a bank officer held checks that were intended to pay the irs for withheld taxes
D. holding loss was caused by an employee who ignored bank policies by instructing subordinates to cash corporate checks without proper documentation
E. holding that the effects of injury caused by discriminatory employment policies first manifested when the policies were implemented
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Read the following excerpt from a US court opinion:
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59 . Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (quoting Fed.R.Civ.P. 8(a)(2)). 60 : See Bell Atl., 127 S.Ct. at 1970. 61 . Id. at 1964. Accord ATSI, 493 F.3d at 98 n. 2 (applying the standard of plausibility outside Twombly's anti-trust context). 62 . Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir.2007) (emphasis in original). 63 . Bell Atl., 127 S.Ct. at 1969 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Accord id. (“The phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard ....”). 64 . ATSI, 493 F.3d at 98 (quoting Be 82 . In re Par Pharm., Inc. Sec. Litig., 733 F.Supp. 668, 675 (S.D.N.Y.1990). Accord In re Time Warner, Inc. Sec. Litig., 9 F.3d 259, 268 (2d Cir.1993) ; Lapin v. Goldman Sachs Group, Inc., 506
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What is the most suitable continuation to the opinion? Your options are:
A. holding that a duty to disclose arises whenever secret information renders prior public statements materially misleading
B. holding that whether attorney complied with fiduciary duty to disclose all material information was question of fact
C. holding that erisas duty of loyalty creates a duty to disclose certain information to beneficiaries
D. holding that to state cause of action based on an omission a plaintiff must explain how an alleged omitted fact negates the truth of or renders misleading the statements actually made
E. holding that a cause of action based on an omission requires the plaintiff to show how an alleged omitted fact negates the truth of or renders misleading the statements actually made
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Read the following excerpt from a US court opinion:
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J. The Florida Parole Commission (“Parole Commission”) issued an order revoking Robert B. Olsen’s (“Olsen”) parole. Thereafter, Olsen filed a petition for writ of habeas corpus in the circuit court, seeking review of the Parole Commission’s order. The circuit court entered an order denying Olsen’s petition for writ of habeas corpus, and Olsen then appealed the circuit court’s order to this Court. Because the circuit court’s review of the Parole Commission’s quasi-judicial action is the equivalent of an appeal, plenary appeal to a district court to review the merits of the circuit court’s order is not authorized. See Sheley v. Fla. Parole Comm’n, 720 So.2d 216, 217 (Fla.1998) . We, therefore, treat Olsen’s notice of appeal
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What is the most suitable continuation to the opinion? Your options are:
A. holding that the action of denying parole is not an adjudication subject to judicial review
B. holding that after an inmate has been afforded judicial review of the parole commissions actions a second opportunity for judicial review on the merits by plenary appeal from a circuit courts order would improperly provide the inmate with a second full bite at the apple in the district court
C. holding that the petitioner could demonstrate its constitutional standing for the first time on judicial review of an order of the land use board of appeals because the need to do so first arose when the petitioner sought to invoke the courts jurisdiction on judicial review
D. holding that because here the statutes in issue provide for judicial review via citizen suit provisions yet do not set forth a standard for that review judicial review is limited to apa review on the administrative record
E. holding the commissions order reversing an award and remanding the case to the single commissioner to take further testimony was not final and not appealable to the circuit court until the commissions final determination regarding the single commissioners award the court construed the language in a provision of the code that states appeals from the commission to the circuit court shall be under the same terms and conditions as govern appeals in ordinary civil actions and stated an appeal to the circuit court will not lie from an interlocutory order of the commission unless it affects the merits citation omitted
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Read the following excerpt from a US court opinion:
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a denial of due process.’ ” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (internal citations omitted). Vouching occurs when the prosecutor interjects his personal opinion about the credibility of a witness or the strength of the evidence as a whole. Rodriguez v. Scillia, 193 F.3d 913, 919 (7th Cir.1999); United States v. Alexander, 163 F.3d 426, 429 (7th Cir.1998). In such a situation, vouching introduces credibility evidence that would have been inadmissible during trial. However, a prosecutor may draw reasonable inferences from the evidence adduced at trial, even going so far as to call a defendant a liar if the record supports that accusation. See United States v. Goodapple, 958 F.2d 1402, 1409-10 (7th Cir.1992); see also Morgan, 113 F.3d at 89 . Looking at the comment in isolation, two
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What is the most suitable continuation to the opinion? Your options are:
A. holding that a prosecutor calling a witness an honest citizen was a fair inference from the record
B. holding that a reasonable inference need not be the sole possible inference
C. holding unconstitutional procedure in the puerto rico local courts where no prosecutor was appointed and the judge acted regularly in place of any prosecutor calling and examining all prosecution witnesses and crossexamining defense witnesses
D. holding that an adverse inference cannot be drawn from a defendants failure to call a witness if the states evidence establishes that the witness is an accomplice who would be entitled to assert a fifth amendment privilege
E. holding that the district court abused its discretion in denying the defendants timely motion for the substitution of the participating prosecutor in order to permit the defense to call the prosecutor as a witness
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Read the following excerpt from a US court opinion:
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30 months’ imprisonment, with three years’ post-prison supervision, and ordered to pay, among other obligations, $1,144 in court-appointed attorney fees. On appeal, he raises three assignments of error. We write to address only his third assignment, in which he contends that the trial court plainly erred in imposing $1,144 in court-appointed attorney fees without a basis in the record to determine that defendant had the ability to pay them, and we reject the other assignments without discussion. The state concedes that the court committed plain error when it imposed attorney fees in this case, because the record is devoid of evidence that defendant would be able to repay them. We agree and accept the state’s concession. See State v. Coverstone, 260 Or App 714, 716, 320 P3d 670 (2014) . Given the amount of attorney fees imposed,
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What is the most suitable continuation to the opinion? Your options are:
A. recognizing that an award of temporary attorneys fees and costs is based on an assessment of need and ability to pay as well as the reasonableness of the fees and costs
B. holding that imposition of courtappointed attorney fees is plain error when the record is silent as to the defendants ability to pay the fees ordered
C. holding because an award of attorney fees is discretionary court may consider attorney fees in relation to the underlying equities in the case
D. holding that it is plain error for a trial court to require a defendant to pay courtappointed attorney fees in the absence of legally sufficient evidence that defendant has the ability to pay the amount imposed
E. holding that bank was entitled to attorney fees on appeal when agreement did not prohibit such fees
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Read the following excerpt from a US court opinion:
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id. The qualified immunity defense shields officials from liability stemming from the perfor- manee of a discretionary function “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). [¶ 17] In the present case, the defendants are entitled to the qualified immunity defense because “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known 00 (D.Mass.1994) (finding “[a] public employee’s suspension with pay does not implicate a constitutionally protected property interest”); Bd. of Educ. v. Harrell, 118 N.M. 470, 882 P.2d 511 (1994) ; Hicks v. City of Watonga, 942 F.2d 737, 746
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What is the most suitable continuation to the opinion? Your options are:
A. holding that a school principals suspension with pay did not implicate a constitutionally protected property interest
B. holding that investigatory suspension with pay was not adverse employment action
C. holding that a twoday suspension with pay does not deprive plaintiff of measurable property interest
D. holding that a suspension with pay does not violate any recognized property interest
E. holding that suspension with pay was not adverse employment action
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Read the following excerpt from a US court opinion:
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a water association has “made service available.” Although the water association in North Shelby had never actually “provided” water service to the disputed area, the court found that it had “made service available” to potential customers by virtue of the proximity of the water association’s distribution lines to the disputed area. Id. at 22. Additionally, the court held that even though the water association’s distribution lines were simply “adjacent to,” but not “within” that property, the water association had still made service available. Moreover, the water association in North Shelby was capable of providing such service within a “reasonable” time after application was made for the service. Id.; See also Lexington-South Elkhorn Water District, 93 F.3d 230, 237 (6th Cir.1996) ; Glenpool Util. Services Authority v. Creek
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What is the most suitable continuation to the opinion? Your options are:
A. holding that the existence of a seizure is determined by whether an individuals movement is restricted by means implemented with the intent to produce that result
B. holding that determination of whether an official was acting on behalf of the state or the local government is determined by state law
C. holding that the right of the debtor to claim property as exempt is generally determined on the facts as they exist on the date of the filing of the petition
D. holding that service is not avoided by service on a partys attorney as service on an attorney is ineffective unless he has been authorized to accept such service
E. holding that whether an association has made service available is determined based on the existence of facilities on or in the proximity of the location to be served
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Read the following excerpt from a US court opinion:
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(Table). Under 18 U.S.C. § 3742(a), a defendant has the right to appeal (1) a sentence imposed in violation of the law, (2) a sentence imposed as a result of an incorrect application of the Guidelines, and (3) an upward departure from the Guidelines. United States v. Smith, 918 F.2d 664, 667 (6th Cir.1990) (paraphrasing 18 U.S.C. § 3742(a)). Because Lively is challenging her sentence on the grounds that the district court failed to consider certain directives contained in the sentencing reform act of 1984, specifically 18 U.S.C. §§ 3553(a) & 3582(a), Lively is appealing her sentence on the grounds that it was imposed in violation of the law. Consequently, this is an appealable issue under 18 U.S.C. § 3742(a)(1). See, e.g., United States v. Byrd, 984 F.2d 251, 252 (8th Cir.1993) (citation omitted). The parties agree that,
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What is the most suitable continuation to the opinion? Your options are:
A. holding that the district courts error in calculating the amount of drugs at issue was harmless because the error had no impact on the defendants sentence
B. holding district courts decision to increase a defendants sentence from 71 to 108 months based on defendants disrespect for the law constituted clear error in judgement in balancing the sentencing factors
C. holding that sentencing error is harmless if the error did not affect the district courts selection of the sentence imposed
D. holding that defendants appeal based on the district courts alleged error in not considering defendants medical condition when sentencing defendant in violation of 3553a2d was appealable under 3742a1
E. holding that because the district courts error resulted in the imposition of a sentence substantially greater than the maximum otherwise permitted under the sentencing guidelines the error affected the defendants substantial rights and the fairness of the judicial proceedings
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Read the following excerpt from a US court opinion:
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by denying his motion to dismiss the indictment for failure to allege certain elements of the crime. We review the sufficiency of an indictment de novo. United States v. Rodriguez-Rodriguez, 364 F.3d 1142, 1145 (9th Cir.2004). Bello-Bahena asserts that the district court should have dismissed the indictment because it failed to allege (1) voluntary entry, (2) inspection and admission by an immigration officer or actual and intentional evasion of inspection, and (3) knowledge of presence in the United States. However, each of these claims is foreclosed by our decision in United States v. Rivera-Sillas, 376 F.3d 887, 890 (9th Cir.2004) (“That clause [§ 1326] does not require the indictment to specifically state that the defendant alien voluntarily entered the United States.”); id. at 892 ; id. at 893 (holding that an indictment under
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What is the most suitable continuation to the opinion? Your options are:
A. holding that an indictment gave sufficient notice when the indictment charged the elements of the offense
B. recognizing difference in elements between offense of actual entry and attempted entry
C. holding that a found in indictment need not allege all of the elements of entry
D. holding that elements of statute which became 924e need not be reflected in indictment for crime charged
E. holding that an indictment charging one offense during the commission of another crime need not allege the elements of the latter offense
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Read the following excerpt from a US court opinion:
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("[A] prima facie case requires only a minimal showing before shifting the burden to the employer.” (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993))). In contrast, we apply a "rigorous standard” when evaluating pretext at step three. Cherry v. Ritenour Sch. Dist, 361 F.3d 474, 479 (8th Cir.2004). 7 . Doucette offered six comparators at the district court; on appeal, she focuses her argument on two of them. The district court discounted evidence related to these two employees, finding Doucette had not corroborated their alleged misconduct beyond her own deposition and declaration. We note that Doucette may support her argument as to the existence of a disputed fact with materials in the record that include deposi , 109-10 (2d Cir.2010) ; Hicks v. Gates Rubber Co., 833 F.2d 1406,
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What is the most suitable continuation to the opinion? Your options are:
A. holding that a claim for discrimination in private employment is not preempted by title vii
B. holding that title vii and adea causation standards are different
C. recognizing title vii does not provide the exclusive remedy for all employment discrimination claims even if the title vii and section 1983 claim factually overlap
D. recognizing ageplusgender discrimination claim when complaint brought claims under adea and title vii
E. holding the title vii mixedmotive theory does not apply to adea claims
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Read the following excerpt from a US court opinion:
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Plaintiff used BOX Partners instead of BOX Packaging. Multiple exhibits, including countless invoices, paperwork, correspondence, and advertisements, refer only to BOX Partners, and not BOX Packaging. While many of these invoices are from more recent years, the record reveals that Plaintiff started to use BOX Partners more frequently over referring to itself as Box Packaging. Plaintiff also changed the sign outside its office from BOX Packaging to BOX Partners and employees use “box-partners.com” email addresses. Irrespective of when all of these changes occurred, Plaintiffs inconsistent use of BOX Packaging contradicts its attempts to establish a secondary meaning through exclusivity, length and manner of use. See Gimix, Inc. v. JS & A Group, Inc., 699 F.2d 901, 907 (7th Cir.1983) . Indeed, Plaintiff is correct that a product
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What is the most suitable continuation to the opinion? Your options are:
A. holding that inconsistent advertising of an alleged protected trademark for five years did not establish secondary meaning
B. holding that sentences of five years in prison followed by ten years probation were illegal sentences that exceeded the statutory maximum of five years for a thirddegree felony
C. holding that defendants statement that it owned the rights to a trademark did not give rise to a false advertising claim under the lanham act
D. holding that there must be a causal connection between an insureds advertising and an alleged injury to trigger coverage for an advertising injury
E. holding that although the underlying action is one for trademark infringement the infringement occurred as a result of the underlying defendants use of the trademark in their advertising
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Read the following excerpt from a US court opinion:
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omitted). The Fuller court emphasized (1) the seamen’s contacts with the state, (2) the state’s interest in protecting its residents, and (3) the federal interest in uniformity of law where the job situs is in international waters. Plaintiff distinguishes Fuller and invites an application of the reasoning in Greene on the basis that the Washington statute is not in conflict with the federal law, but merely supplements it. In this regard, the Court concludes that the double wages imposed under RCW 49.52.040 are punitive in nature, as plaintiff concedes by his own description. Punitive damages are disallowed in an action for maintenance and cure. Glynn v. Roy Al Boat Management Corp., 57 F.3d 1495, 1502-05 (9th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 708, 133 L.Ed.2d 663 (1996) . This case was based primarily on the United
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What is the most suitable continuation to the opinion? Your options are:
A. holding that a party may recover attorneys fees under section 38001 only if the party prevails on a cause of action for which attorneys fees are available and recovers damages
B. holding attorneys fees available for willful failure to pay maintenance and cure but no additional punitive damages allowable
C. holding punitive damages available for retaliatory claim under flsa
D. holding what section 76872 requires is that a plaintiff who has pleaded punitive damages must offer a reasonable evidentiary basis for punitive damages and obtain an order authorizing the maintenance of the punitive damage claim as a predicate to conducting discovery of a defendants financial worth
E. holding that generally punitive damages are not available for a breach of contract
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Read the following excerpt from a US court opinion:
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Circuit adopted a 50/50 split for tenants by the entireties because a 50/50 split was “far simpler and less speculative,” and because the Third Circuit viewed a § 7403 sale as equivalent to a consensual sale, id. However, the far greater weight of the cases support a different approach. See Harris v. United States, 764 F.2d 1126, 1131-32 (5th Cir.1985) (valuing the spouses’ life estates and contingent survivor interests and determining that, based on her higher life expectancy, the wife had a 50.98% interest.); United States v. Gibbons, 71 F.3d 1496, 1500 (10th Cir.1995) (requiring the valuation of an ex-wife’s life estate and survivor interest and concluding that she was entitled to greater than one-half the total value of the property); In re Pletz, 221 F.3d 1114, 1117 (9th Cir.2000) . Likewise, while this Circuit has never
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What is the most suitable continuation to the opinion? Your options are:
A. holding that an easement cannot be created in favor of an estate for years extending beyond the life of the estate
B. holding that proper valuation requires consideration of the life expectancies of the joint tenants and rejecting the proposition that the wifes share was limited to a half interest in the life estate
C. holding that where the will did not provide the life tenant with the power to sell and it was not necessary to sell the property for the payment of estate expenses the life tenant was not entitled to the proceeds from the sale of the property instead the proceeds became a part of the residuary estate
D. holding that an effective life sentence of fortyfive years for seconddegree forgery was excessive and that a life sentence was cruel and unusual in violation of the eighth amendment
E. holding that a life estate was a sufficient tenure to the debtor within the protection of the statute
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Read the following excerpt from a US court opinion:
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on the issue of retroactive application of the amendment. Thus, we agree with the defendant that Paradise stands for the proposition that, for certain types of criminal statutes, such as a statute of limitations for the prosecution of a crime, the language of the statute must “clearly necessitate] ”; State v. Paradise, supra, 189 Conn. 353; a retrospective application in order for one to be given. We agree with the state, however, that footnote 5 of Paradise and the holding in In re Daniel H. make clear that statutes affecting “other areas of the criminal process”; State v. Paradise, supra, 353 n.5; may be given retrospective effect if the legislative history evinces a clear and unequivocal intent for such a retrospective application. Id.; see In re Daniel H., supra, 237 Conn. 376 . Our task, then, is to determine whether P.A.
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What is the most suitable continuation to the opinion? Your options are:
A. holding that the narrowing of the use of parnar claims only applies absent a clear expression of legislative intent to the contrary and citing to hrs 37869 as an example of such legislative intent
B. holding that substantive criminal statute could not be applied retrospectively because there was nothing in the language or the legislative history that was a clear and unequivocal expression of legislative intent to rebut presumption of prospective application only
C. holding statutes are not applied retroactively absent clear legislative intent
D. holding that even where there are contrary indications in the statutes legislative history we do not resort to legislative history to cloud a statutory text that is clear
E. holding that legislative consent to suit must be by clear and unambiguous language in either a statute or by other express legislative permission
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Read the following excerpt from a US court opinion:
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was established in this circuit that a constructive amendment required reversal, even under plain error review. See Olson, 925 F.2d at 1175 (“[A constructive] amendment always requires reversal because it deprives a defendant of his right to be tried on the grand jury’s charge.”); United States v. Solis, 841 F.2d 307, 309 (9th Cir.1988) (same); United States v. Pazsint, 703 F.2d 420, 424 (9th Cir.1983) (same). However, in United States v. Shipsey, 190 F.3d 1081 (9th Cir.1999), we stated that “fw]e have not had occasion to determine whether reversal is always required after United States v. Olano, 507 U.S. 725, 735, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), which recognizes more discretion for courts reviewing for plain error.” Id. at 1087; see also Olano, 507 U.S. at 735, 113 S.Ct. 1770 . . In Shipsey, we found it unnecessary to
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What is the most suitable continuation to the opinion? Your options are:
A. holding that even if a defendant is able to show that there was a plain error that affected his substantial rights a court of appeals is not required to reverse a conviction unless it finds that the error seriously affected the fairness integrity or public reputation of judicial proceedings
B. recognizing that plain error analysis requires 1 error 2 that is plain 3 that affects defendants substantial rights and 4 that seriously affects fairness integrity or public reputation of judicial proceedings
C. holding that a plain error did not seriously affect the fairness integrity or public reputation of the judicial proceedings even though the error was assumed to have affected substantial rights
D. holding that plain error exists when 1 an error was committed 2 that was plain 3 that affected the defendants substantial rights and 4 the error seriously affects the fairness integrity or public reputation of judicial proceedings
E. holding that plain error will be identified only if 1 there is error 2 that is clear or obvious rather than subject to reasonable dispute 3 that affects defendants substantial rights and 4 that seriously impugns fairness integrity or public reputation of judicial proceedings
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Read the following excerpt from a US court opinion:
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and anti-competitive effects. For this reason, such restraints generally are not deemed per se illegal, but, rather, are tested under a rule of reason analysis. See Business Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S. 717, 723, 108 S.Ct. 1515, 99 L.Ed.2d 808 (1988). Vertical price-fixing agreements, however, are a special subset of vertical restraints. As such, they qualify for different treatment. A vertical price-fixing agreement that establishes a minimum price normally is regarded as a naked restraint of trade and, thus, as illegal per se. See Business Elecs. Corp., 485 U.S. at 724, 108 S.Ct. 1515; Dr. Miles Med. Co. v. John D. Park & Sons Co., 220 U.S. 373, 404-09, 31 S.Ct. 376, 55 L.Ed. 502 (1911); cf. State Oil Co. v. Khan, 522 U.S. 3, 22, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997) . Here, the district court concluded that the
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What is the most suitable continuation to the opinion? Your options are:
A. holding that a maximum vertical price maintenance scheme is not per se illegal
B. holding vertical price restraints are judged according to the rule of reason
C. holding such agreements to be per se illegal
D. holding that the per se rule does not apply to a vertical agreement between a buyer and supplier and noting that precedent limits the per se rule in the boycott context to cases involving horizontal agreements among direct competitors
E. holding vertical price restraints subject to the rule of reason
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Read the following excerpt from a US court opinion:
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Hills Club Apartments, 68 So.3d 954, 957 (Fla. 3d DCA 2011); Paddock v. Chacko, 522 So.2d 410, 416 (Fla. 5th DCA 1988). One can “assume” such a duty by takin lity alone. Aguila, 878 So.2d at 396. A duty requires one to be in a position to “control the risk.” Id, Thus, in cases of psychiatric facilities, they are liable for a patient’s self-harm because they are “in a position to exercise measures to prevent the suicidal patients from inflicting injuries on themselves.” See Paddock, 522 So.2d at 416. But where a patient commits suicide outside of a facility’s “range of observation and control,” a duty is not present. See Tuten, 84 So.3d at 1068. See also Peklun v. Tierra Del Mar Condo. Ass’n, 25 Fla. L. Weekly Fed. D 226, 119 F.Supp.3d 1361, 2015 WL 4638602 (g.D.Fla. Aug. 4, 2015) . In the instant case, Regions did not assume a
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What is the most suitable continuation to the opinion? Your options are:
A. holding that a nocontact order did not violate the right to freedom of association
B. holding that regulatory enforcement by a highschool athletic association was state action for the purposes of the fourteenth amendment due to the pervasive entwinement between the athletic association and public schools and officials
C. holding that it was unreasonable to believe that womans boyfriend had authority to consent to the search of her purse even though he had authority to consent to the search of the car in which it was kept
D. holding that expert report that sufficiently addressed certain claims against doctor employed by professional association was sufficient as to claims against professional association based on doctors negligence because the doctors negligence is imputed to the association under the professional association act
E. holding a condominium association had no duty to a woman who had committed suicide after the association removed the womans dog because while the association knew the dog was essential to the womans will to live the association had no authority to prevent the womans suicide
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Read the following excerpt from a US court opinion:
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the original district court’s findings were corroborated by an abundance of trial testimony indicating that Wyche separated drugs and counted money for the conspiracy, collected money from individuals selling drugs, distributed cocaine for sale and supervised drug sales. Given Wyche’s extensive involvement, the 31 kilograms of cocaine base were reasonably foreseeable to him and thus he may be held responsible for that quantity. See United States v. Duncan, 639 F.3d 764, 767-69 (7th Cir.2011) (rejecting defendant’s claim that he did not foresee the conspiracy handling over 4.5 kilograms of cocaine base as “[imjplausible” and “baseless” where conspiracy sold “staggering amount of crack” and defendant had access to “stash-locations” and “high-level meetings”); Thomas, 114 F.3d at 256-57 . Accordingly, the 2012 district court did not
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What is the most suitable continuation to the opinion? Your options are:
A. holding that defendant is liable for entire quantity of drugs attributable to conspiracy in circumstances where defendant is one of conspiracys central figures
B. holding that where the indictment charged drug quantity but drug quantity was not submitted to the jury the district court erred in using drug quantity to increase the penalty beyond the twentyyear maximum of 841b1c
C. holding that resignation from conspiracy is insufficient if the defendant continues to do acts in furtherance of the conspiracy and continues to receive benefits from the conspiracys operations
D. holding that when a district court determines drug quantity for the purpose of sentencing a defendant convicted of participating in a drugtrafficking conspiracy the court is required to make an individualized finding as to drug amounts attributable to or foreseeable by that defendant
E. holding defendant responsible for conspiracys entire drug quantity where defendant played managerial role in the conspiracy coordinated drug distribution and shared in conspiracys profits
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Read the following excerpt from a US court opinion:
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(B) not impeded by diverse, nonuniform, and confusing labeling and advertising regulations.” Id. Congress sought to protect “commerce and the national economy” specifically from the effect of “diverse, nonuniform and confusing cigarette labeling and advertising” rules, id., not from more stringent regulation generally. See Altria Grp., 555 U.S. at 78-79, 129 S.Ct. 538 (explaining that the “Act’s pre-emption provisions promote its second purpose” by preventing States from “enforcing rules that are based on an assumption that the federal warnings are inadequate”); Reilly, 533 U.S. at 542-43, 121 S.Ct. 2404 (paraphrasing the second purpose as “to protect the national economy from interference due to diverse, nonuniform, and confusing cigarette labeling and a F.3d 594, 600 (8th Cir. 2005) ; Spain v. Brown & Williamson Tobacco Corp.,
```
What is the most suitable continuation to the opinion? Your options are:
A. holding that the labeling act did not preempt design defect claim against cigarette manufacturer
B. holding that the federal cigarette labeling and advertising act did not preempt plaintiffs state law claims
C. holding that the labeling act did not preempt negligent and wanton design and manufacture claims against cigarette manufacturer
D. holding that federal law did not preempt commonlaw fraud claim against cigarette manufacturer based on advertising of light cigarettes
E. holding that the federal cigarette labeling and advertising act did not preempt state law damages actions
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Read the following excerpt from a US court opinion:
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Id., § 164, at 579. This parallel between the Privacy Act and the common-law torts of libel per quod and slander suggests the possibility that Congress intended the term “actual damages” in the Act to mean special damages. The basic idea is that Privacy Act victims, like victims of libel per quod or slander, are barred from any recovery unless they can first show actual— that is, pecuniary or material — harm. Upon showing some pecuniary harm, no matter how slight, they can recover the statutory minimum of $1,000, presumably for any unproven harm. That Congress would choose to use the term “actual damages” instead of “special damages” was not without precedent. The terms had occasionally been used interchangeably. See, e. g., Wetzel v. Gulf Oil Corp., 455 P. 2d 857, 862 (CA9 1972) ; Electric Furnace Corp. v. Deering Milliken
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What is the most suitable continuation to the opinion? Your options are:
A. holding defendant a foreign manufacturer was not subject to the personal jurisdiction of a wyoming court because the plaintiff failed to introduce sufficient evidence to establish an agency relationship between the defendant and its us distributor
B. holding that state did not submit sufficient evidence to establish amount of restitution to victim for medical bills incurred when it did not introduce any medical bills
C. holding that the plaintiff had failed to produce sufficient evidence to establish constructive notice because the plaintiff did not present any evidence to establish that the oil was on the floor for any length of time
D. holding that termite damage does not fall within the meaning of property damage in the policy because the alleged misrepresentations did not cause the damage the termites did
E. holding that plaintiff could not establish libel per quod because he did not introduce any valid and sufficient evidence of actual damage
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Read the following excerpt from a US court opinion:
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1418. In order to satisfy Rule 9(b) in connection with a Rule 10b-5 claim, a plaintiff must plead with particularity (1) a specific misrepresentation of material fact, (2) the knowledge by defendants of its falsity, (3) the ignorance by the plaintiff of its falsity, (4) the intention of defendants that it should be acted upon and (5) that plaintiff acted upon it to his or her detriment. In re Westinghouse, 90 F.3d at 710. Consequently, Rule 9(b) demands increased specificity in the pleadings to establish violations of Section 10(b) and Rule 10b-5. Pursuant to Rule 9(b), allegations concerning misrepresentations of material fact must be pleaded in greater detail. Stevelman v. Alias Research Inc., 174 F.3d 79, 84 (2d Cir.1999); see e.g. In re Burlington Coat Factory, 114 F.3d at 1417-18 ; Shapiro v. UJB Financial Corp., 964 F.2d 272,
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What is the most suitable continuation to the opinion? Your options are:
A. holding that some gaap allegations were soft information because the allegations in plaintiffs complaint focused on defendants beliefs about accounting numbers not on the actual data they reported
B. holding that allegations that defendants designed and implemented improper accounting practices failed to state claim for securities fraud in absence of allegations of particular facts demonstrating how defendants knew of scheme at time they made their statements of compliance that they knew the financial statements overrepresented the companys true earnings or that they were aware of a gaap violation
C. recognizing that information disclosed in private is not a public disclosure under the fca
D. holding that pursuant to rule 9b where plaintiffs allege that defendants distorted certain data disclosed to the public by using unreasonable accounting practices plaintiffs must state what the unreasonable practices were and how they distorted the disclosed data
E. holding that rule 9b was satisfied where the relator was a nurse practitioner in the defendants employ whose conversations about the defendants billing practices with the defendants office manager formed the basis for the relators belief that claims were actually submitted to the government
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Read the following excerpt from a US court opinion:
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expenses that were incurred by the child from fall 2006 through the child’s 2009 fall semester of college. Specifically, the father argues that the mother’s evidence of the child’s previously incurred educational expenses was hearsay, and that he should not be required to pay those expenses because he had been paying child support at the same time that those expenses were incurred. However, we will not consider these arguments presented by the father because the father has not complied with Rule 28(a)(10), Ala. R.App. P., by failing to include “citations to the cases, statutes, other authorities, and parts of the record relied on.” Rule 28(a)(10). See also State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 822 (Ala.2005) (quoting Ex parte Showers, 812 So.2d 277, 281 (Ala.2001)) . The father also argues that the mother failed
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What is the most suitable continuation to the opinion? Your options are:
A. holding that appellate rule 66b does not authorize an interlocutory appeal that fails to comply with appellate rule 14
B. holding that an appellants failure to strictly comply with parap 1925a2 did not warrant an application of the waiver rule as no court order had been violated and there was no prejudice to any party
C. holding that a court may sua sponte dismiss pursuant to rule 41b for failure to comply with a court order
D. holding that a failure to comply with rule 28a10 provides an appellate court a basis for disregarding the appellants arguments
E. holding that an administrative agency is not subject to a contempt proceeding for failure to comply with an order
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Read the following excerpt from a US court opinion:
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marks and citation omitted); State v. Telles, 1999-NMCA-013, ¶ 12, 126 N.M. 593, 973 P.2d 845. Although Defendants contend that evidence of Victim’s .245 percent BAC would have tended to show that Defendants were reasonable in their apprehension and that Victim was the first aggressor, Defendants have not supplied authority to support this proposition. There undoubtedly is in many instances a correlation between alcohol and violence. However, as the district court observed, although it is clear that BAC may demonstrate impaired ability to drive a motor vehicle, a correlation between BAC and aggressiveness seems speculative unless tied more specifically to an individual’s history. As such, the probative value of the BAC evidence in this case is questionable at best. Cf. id. ¶ 14 . Even if some relevance had been found, the
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What is the most suitable continuation to the opinion? Your options are:
A. holding bac of 05 percent not relevant in vehicular homicide case to show that the victim somehow contributed to the accident
B. holding that uncharged sexual acts committed upon the same victim are admissible to show the conduct of the defendant toward the victim and to corroborate the evidence of the offense charged in the indictment
C. holding evidence of sexual assault relevant to show defendants motive in kidnapping victim
D. holding that the victim impact and victim vulnerability aggravators were not overbroad and explaining that though the concepts of victim impact and victim vulnerability may well be relevant in every case evidence of victim vulnerability and victim impact in a particular case is inherently individualized
E. holding the harmed victim need not be the victim of the offense of conviction
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Read the following excerpt from a US court opinion:
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the easement. An express easement properly encompasses technological developments that “further the particular purpose for which the easement is granted.” Id. (citing Restatement (Third) OF PROPERTY (SERVITUDES) §§ 1.2 Cmt. d, cmt. a, 4.10 & cmt. a). Citing the Restatement, Marcus Cable expressly recognized, as an example of appropriate application of the doctrine of technological advancement or development, that a holder of an easement granted in 1940 for the purpose of telephone transmission could properly attach transmitters to its poles for cellular telephone transmissions unless that use would interfere unreasonably with the ser-vient estate. See id., 90 S.W.3d at 702 (citing Restatement (Third) of PROPERTY (Servitudes) § 4.10 illus. 13); see also Cor-ley, 246 F.Supp.2d at 578-79 . We hold that the express terms of the
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What is the most suitable continuation to the opinion? Your options are:
A. recognizing application of federal deliberative process privilege to internal state communications
B. holding that defendants communications sent into tennessee did not constitute purposeful availment because all were in response to communications initiated by the plaintiff
C. holding ban preempted by federal communications commission regulations
D. holding that easements using terms telephone telegraph and communications could properly be utilized for both internal communications and for thirdparty voice and data communications
E. recognizing qualified privilege for confidential presidential communications
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Read the following excerpt from a US court opinion:
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sex with and propositioning her. His expression, taken as a whole, lends itself to three possible interpretations: Rogers intended (1) to illicit a sexual response from Emily; (2) to communicate his sexual attraction to her; and/or (3) to compel Emily to view a picture of him masturbating. On any of these interpretations, a jury could reasonably find prurient his sexual interest in and pursuit of a child. The jury could also find shameful his desire to expose Emily to such graphic and sexual-ized content. The Supreme Court’s First Amendment jurisprudence emphasizes a distinction between parties who consent to privately receive and possess obscene materials and those who endure unwilling exposure. Compare Stanley v. Georgia, 394 U.S. 557, 568, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) , with United States v. American Library Ass’n
```
What is the most suitable continuation to the opinion? Your options are:
A. holding that the fourteenth amendment only applies to state action
B. recognizing first amendment and fourteenth amendment interests in inmate correspondence
C. holding that private possession of child pornography is not protected by the first amendment
D. holding that the first amendment does not protect obscenity or pornography produced with actual children
E. holding that the first and fourteenth amendment forbid criminalizing the private possession of obscenity
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Read the following excerpt from a US court opinion:
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the scenes look at all the cool kids, EXPN-style.” Most importantly, however, we observe that the page features slang phrases such as “[d]udes rollin’ deep” and “[kickin' it with much flavor,” neither of which is susceptible to a literal interpretation, and neither of which one would expect to hear uttered by anyone but a teenager or young adult. A reasonable viewer exposed to the main page would expect to find precisely that type of youthful, non-literal language on the rest of the site. Next, we examine the “specific context and content of the statements, analyzing the extent of figurative or hyperbolic language used and the reasonable expectations of the audience in that particular situation.” Underwager, 69 F.3d at 366. Again, the al.App.3d 543, 216 Cal.Rptr. 252, 257 (1985) . The “Green Carpet Gallery” pokes fun at many
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What is the most suitable continuation to the opinion? Your options are:
A. holding as a matter of law that natural condition present was open and obvious to all who would encounter it
B. holding that an obvious joke told during an obvious comedy performance was not defamatory as a matter of law
C. holding that because of unsettled case law district courts error was not obvious and therefore not plain
D. holding that an error is plain if it is clear or obvious
E. holding danger was not so obvious to invitee as to relieve defendant of liability as a matter of law
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Read the following excerpt from a US court opinion:
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In that case, the Court noted the plaintiff had a “legally binding promise” from the Government when it was awarded the contract. Id. at 578. However, when the Government decided to terminate that contract, the Court reasoned that the plaintiff was left with only the possibility that it would be awarded the contract again. Id. The Court concluded that “[i]n such a situation, it would be to create a legal fiction to find a contract existing....” Id. Accordingly, the Court found jurisdiction to grant injunctive relief. Id. In more recent eases, this Court and the Federal Circuit have ruled that jurisdiction exists to review an agency’s corrective action decision. See, e.g., Centech Group, Inc., 78 Fed.Cl. at 506; Chapman Law Firm v. United States, 490 F.3d 934, 938 (Fed.Cir. 2007) ; Man-Tech Telecomm. & Info. Sys. Corp. v.
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What is the most suitable continuation to the opinion? Your options are:
A. holding that reasonableness for qualified immunity purposes requires an objective inquiry into the totality of the circumstances
B. holding that the courts inquiry into the reasonableness of the governments proposed corrective action was proper
C. holding that knockandannounce principle is an element of the fourth amendment reasonableness inquiry because we have little doubt that the framers of the fourth amendment thought that the method of an officers entry into a dwelling was among the factors to be considered in assessing the reasonableness of a search and seizure
D. holding that proper focus is reasonableness of inquiry not frivolousness
E. holding that the reasonableness inquiry is based upon the totality of the circumstances in determining whether or not a search was reasonable
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Read the following excerpt from a US court opinion:
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Gillis contends A&P’s manner of curing was unreasonably protracted, he failed to respond to David’s letters that spelled out exactly how A&P planned to cure. As a result, this Court is not left with a definite or firm conviction that a mistake has been committed. Consequently, the district court did not err. Because this Court finds neither clear error in the district court’s findings of fact nor abuse of discretion in the its exercise of jurisdiction, this Court affirms the district court’s judgment. AFFIRMED. 2 . The Travelers standard is intended for pure declaratory judgment cases and therefore may not have been appropriate in the instant case, which included a counterclaim for monetary damages. See Diamond Offshore Co. v. A & B Builders, Inc., 302 F.3d 531, 539 (5th Cir.2002) . Yet even if the Travelers standard was
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What is the most suitable continuation to the opinion? Your options are:
A. holding that the determination and assessment of damages are not the primary purpose of a declaratory action
B. holding that immunity from suit barred claim that although couched in terms of suit alleging potential statelaw violations sought monetary damages for breach of contract
C. holding that inclusion of timely and nonfrivolous monetary damages removed a suit from the realm of a declaratory judgment action for purposes of determining exercise of jurisdiction
D. holding that because suit requested damages for breach of contract colorado river applied even though district court characterized suit as declaratory judgment action
E. holding that the declaratory judgment act is remedial only and the party seeking declaratory relief must have an underlying cause of action
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Read the following excerpt from a US court opinion:
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a further purpose or different character, altering the first [work] with new expression, meaning or message.” Id. “[T]he more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” Id. (quoting Campbell, 510 U.S. at 579, 114 S.Ct. 1164). See also, Pac. & S. Co., Inc. v. Duncan, 744 F.2d 1490, 1496 (11th Cir.1984)(noting that the distinction between creative and non-creative uses can be helpful in calibrating the balance in the fair use analysis). In some cases, the transformative nature of a work overshadows and outweighs its commercial purpose. This is particularly true in the realm of parody, as “a parody’s aim is, by nature, to transform an earlier work.” Suntrust Bank, 268 F.3d at 1269. . See also, Campbell, 510 U.S. at 579, 114
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What is the most suitable continuation to the opinion? Your options are:
A. holding that the statutory definition of the term sell conspicuously excludes any requirement that the transfer be commercial in nature or conducted for a particular type of benefit or underlying purpose
B. holding that the fact that the fire was communicated to other property may reasonably be inferred from common knowledge of the operation of the established laws of nature in the familiar forms of combustion and the effects of wind on fire
C. holding a defense of alcoholism was outweighed by the seriousness of the offense and the appellants prior disciplinary record
D. holding that the appropriate sanction was to require the defendant to disclose the nature of the agreement with the witness
E. holding that the transformative nature of the wind done gone a parody of gone with the wind outweighed its commercial purpose
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Read the following excerpt from a US court opinion:
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directly against a third-party tortfeasor. The trial court granted Appellees’ preliminary objections. Based on the Superior Court’s decision in Reliance Insurance Company v. Richmond Machine Company, 309 Pa.Super. 430, 455 A.2d 686 (1983), the trial court explained that only the injured employee has the right of action against a third-party tortfeasor and not the employer/insurer. Emphasizing that the cause of action against the third-party tortfeasor exists for one indivisible wrong, the trial court held that the employer’s/insurer’s right of subrogation under Section 319 of the WCA must be achieved through an action brought in the name of or joined by the injured employee. Trial Court Opinion at 2 (citing Moltz v. Sherwood Bros., Inc., et al, 116 Pa.Super. 231, 176 A. 842, 843 (1935) ); Scalise v. F.M. Venzie & Co., et al., 301
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What is the most suitable continuation to the opinion? Your options are:
A. recognizing a breachofduty action by an employee against a workers compensation carrier even though the carrier issued its policy to the employer
B. holding that insurance carrier for defendant contractor was real party in interest as to third party claim against stucco manufacturer when plaintiff homeowners assigned their right to sue for defects in their house to insurance carrier
C. holding that section 319s mandate that the employer is subrogated to the extent of compensation payable does not mean that the sole right to recover from the tortfeasor is in the employer rather the right of action against the tortfeasor remains in the injured employee and suit is to be commenced in his name
D. holding that the right of the employerinsurer to subrogation against a tortfeasor must be achieved through a single action brought in the name of the injured employee either by joining the employer or insurance carrier as a party plaintiff or as a use plaintiff
E. holding that carrier was entitled to intervene as of right where the states workers compensation law permitted subrogation of a compensation carrier
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Read the following excerpt from a US court opinion:
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are based on different relation back doctrines and wrongful death statutes. However, multiple states, as well as cases based on the Federal Rules of Civil Procedure, which have similar “conduct, transaction, or occurrence” language in their relation back doctrines, have supported wrongful death claims relating back to the filing of the original complaint. See Lewin v. Am. Export Lines, Inc., 224 F.R.D. 389, 398 (N.D.Ohio 2004) (“Here, Plaintiffs seek to add a new claim, i.e. wrongful death, arising from the asbestos exposure asserted in the original Complaints. Based on the standard set forth in Rule 15(c)(2) and Sixth Circuit case law, this claim should ‘relate back’ to the original pleadings.”); Sompolski v. Miller, 239 Ill.App.3d 1087, 180 Ill.Dec. 932, 608 N.E.2d 54, 57-58 (1992) ; In re Olympia Brewing Co. Sec. Litig., 612
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What is the most suitable continuation to the opinion? Your options are:
A. holding that personal representative may amend personal injury suit to state wrongful death claim following plaintiffs death
B. holding that a wrongful death claim related back to a personal injury claim in an automobile accident case where the wrongful death claim arose from the same transaction or occurrence as the original complaint and the defendant was advised of the essential facts necessary to prepare his defense even with the added claim
C. holding emotional distress is a distinct claim from wrongful death
D. holding that plaintiffs failure to prove decedents death was caused by the wrongful acts of the defendant precludes any recovery of wrongful death damages under mississippis wrongful death statute
E. recognizing cause of action for wrongful death
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Read the following excerpt from a US court opinion:
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Whitley v. Albers, 475 U.S. 312, 319-21, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). In particular, prison officials violate inmates’ rights under the Eighth Amendment when they subject them to the “unnecessary and wanton infliction of pain.” Id. at 319,106 S.Ct. 1078. “[T]he core judicial inquiry” when a prison official is “accused of using excessive physical force in violation of the” Eighth Amendment is “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7-8, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). “The Eighth Amendment’s prohibition of cruel and unusual punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided th Cir.2010) . As a result, Coon cannot satisfy the first
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What is the most suitable continuation to the opinion? Your options are:
A. holding that a police officers rape of an arrestee was outside the scope of his employment
B. holding that the fourth amendment sets the applicable constitutional limitations on the treatment of an arrestee detained without a warrant up until the time such arrestee is released or found to be legally in custody based upon probable cause for arrest
C. holding ninety minutes excessive
D. holding that arrestee whowas detained by a law enforcement officer for approximately 6 to 45 minutes outside in zero degree weather with a significant windchill was not subjected to excessive force
E. holding that police officer did not subject arrestee to excessive force by requiring him to stay outside in cold temperatures during an investigation that lasted more than an hour
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Read the following excerpt from a US court opinion:
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are accessible only to the seller and could not be discovered by the buyer. In Lingsch v. Savage, 29 Cal.Rptr. 201 (Cal.Ct.App. 1963), the rule was stated as follows when dealing with an “as is” sale: [W]here the seller knows of facts materially affecting the value or desirability of the property which are known or accessible only to [the seller] and also knows that such facts are not known to, or within the reach of the diligent attention and observation of the buyer, the seller is under a duty to disclose them to the buyer. Id. at 204. Other courts have followed this rule and recognized that an “as is” provision in a contract for the sale of realty does not preclude an action by the buyer for nondisclosure. See, e.g., Rayner v. Wise Realty Co., 504 So.2d 1361 (Fla.Dist.Ct.App. 1987) ; Silva v. Stevens, 589 A.2d 852 (Vt. 1991)
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What is the most suitable continuation to the opinion? Your options are:
A. holding that where buyer had opportunity to inspect goods and failed to inform seller in timely manner of defects buyer deemed to have accepted goods pursuant to 672606
B. holding that a real estate agent does not owe a buyer a duty independent of the agency relationship with the seller
C. holding that termite damage does not fall within the meaning of property damage in the policy because the alleged misrepresentations did not cause the damage the termites did
D. holding an arbitration clause contained in confirmations sent to buyer by seller was part of parties course of dealing and therefore part of the contract after buyer had repeated opportunities to object to the clause and had failed to do so
E. holding as is clause does not bar a claim for nondisclosure against real estate agency that failed to inform buyer of damage to home from prior termite infestation
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Read the following excerpt from a US court opinion:
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persons. Fla. Stat. § 768.74(5). Taking each factor in turn, we hold that the district court did not abuse its discretion in upholding the jury’s award of compensatory damages. The first factor asks whether the award evinces passion or prejudice. The district court cited Goldsmith v. Bagby, 513 F.3d 1261, 1275 (11th Cir.2008), to show the validity of an emotional damages award equal to a claimant’s salary. See Myers v. Cent. Fla. Invs., Inc., No. 6:04-cv-1542-Orl-28DAB, 2008 WL 4710898, at *15 n. 13 (M.D.Fla. Oct. 23, 2008). But the validity of the compensatory award was not at issue in Goldsmith, see 513 F.3d at 1267-68, 1276-77, and, as the defendants argue, its relevance to our inquiry is therefore limited. Cf. Bravo v. United States, 532 F.3d 1154, 1166-67 (11th Cir.2008) , reh’g denied, 583 F.3d 1297 (2009).
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What is the most suitable continuation to the opinion? Your options are:
A. holding that issue of attorneys fees should be retried if damages awarded are reduced on appeal and appellate court can not be reasonably certain that trial court was not influenced by erroneous damages award
B. holding that consequential damages are not to be considered
C. holding that damages are to be compared only against awards tested for size in reported appellate decisions
D. holding that it was appropriate for trial court to award separate punitive damages awards against an employee and his vicariously liable employer because this would enable each award to be based on the two defendants differing financial status
E. holding that the state is immune from punitive awards
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Read the following excerpt from a US court opinion:
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— a reference that is in tension with Olson. Compare Crider, 885 F.2d at 296 with Olson, 546 U.S. at 46, 126 S.Ct. 510 ("the [FTCA] requires a court to look to the state-law liability of private entities, not to that of public entities.”). However, we then held, consistent with Olson, that we "must disregard state rales of sovereign or official immunity in analyzing the scope of FTCA liability, because these conflict with Congress’s analogy to 'private person’ liability ...." Crider, 885 F.2d at 296. Based on this holding, we determined that because neither a state law enforcement officer nor a private person would have had a duty to the plaintiff to detain a drunk driver, the park rangers also had no such duty, and thus the Government was not liable under the 007 (5th Cir.2003) . Here, the record shows that Villafranca was
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What is the most suitable continuation to the opinion? Your options are:
A. holding that detaining club patrons in handcuffs for three hours after subjecting them to strip searches and warrant checks was unlawful
B. holding unconstitutional city policy of subjecting all females arrested and detained to strip and visual body cavity searches
C. holding that there was not arguable probable cause to conduct extensive searches on night club and its patrons where only evidence was of one patron selling drugs
D. holding that search warrant for tavern and its bartender did not permit body searches of all bars patrons
E. holding unconstitutional blanket jail policy of subjecting all arrestees to strip and visual body cavity searches
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Read the following excerpt from a US court opinion:
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Inc., 124, F.2d 1224 (6th Cir.1984), the issue of subject-matter jurisdiction was never addressed. Accordingly, Triax has no precedential effect. Sprint Commc’ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 312, 128 S.Ct. 2531, 171 L.Ed.2d 424 (2008). In the case at bar, the district court was not given sufficient opportunity to address the motion to intervene prior to the filing of the notice of appeal. Once such notice was filed, the district court was without jurisdiction to address the motion. Accordingly, the district court did not err in denying Lobasso’s motion to intervene. VII. For the foregoing reasons, we affirm the district court’s order dismissing Taylor’s complaint for lack of subject-matter jurisdiction. In addition, we affirm the denial of Lobasso’s 54 (11th Cir.2001) . 3 . Taylor contends that there is a
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What is the most suitable continuation to the opinion? Your options are:
A. holding that article iii standing is necessary for intervention
B. holding that a plaintiff seeking individual relief under erisa 502a3 under a breach of fiduciary duty theory did not have a cause of action when the alleged breach of fiduciary duty was a failure to distribute benefits in accordance with the plan
C. holding a plaintiff had standing to bring a state law disgorgement claim even though her ultimate distributions were not diminished by the breach of fiduciary duty
D. holding that plaintiff lacked article iii standing when the alleged breach of fiduciary duty if anything increased his retirement distributions
E. holding that article iii standing is not a prerequisite to intervention
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Read the following excerpt from a US court opinion:
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no reasonable reader would interpret the photograph of the Knievels as a serious allegation of criminal wrongdoing. We acknowledge, like the district court did, that taken in isolation and given a literal interpretation, ESPN’s suggestion that Evel is a pimp is “sufficiently factual to be susceptible of being proved true or false.” See Underwager, 69 F.3d at 366. But we assess the meaning of the word in the context in which it was used. Because the caption cannot reasonably be interpreted literally in this context, the fact that its literal interpretation could be proven true or false is immaterial. The Knievels correctly point out that the fact that a statement is an attempt at humor does not immunize the speaker against liability for defamation. See Polygram, 216 Cal.Rptr. at 260 (quoting Arno v. Stewart, 245 Cal.App.2d 955,
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What is the most suitable continuation to the opinion? Your options are:
A. holding that it is not
B. holding that the jocular intent of the publisher will not relieve him from liability if it is reasonable to not understand the utterance as a joke
C. holding that if a declaratory judgment will not end the controversy it is not proper
D. recognizing the holding in webb and stating operation of the plant for the city by a separate agency does not relieve the city from liability
E. holding other lease provisions evidenced intent to relieve tenant from fire damage liability
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Read the following excerpt from a US court opinion:
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“had been intellectually ‘slow’ all his life,” had difficulty understanding complex matters, and was on the “low range of the intelligent quotient scale,” as well as psychiatric testimony that he was competent to stand trial. This court determined that the waiver was valid. Id. at 177-78. We said: Merely because an accused exhibits equivocal signs of borderline mental deficiency, or may even be suffering from a mental illness at the precise time of the waiver, those facts alone may not automatically mandate a finding of incompetence to waive. Id at 178. Under Wold therefore, evidence of Camacho’s borderline mental deficiency alone does not automatically mandate a finding of incompetence to waive. Cf. Colorado v. Connelly, 479 U.S. 157, 164, 107 S.Ct. 515, 520, 93 L.Ed.2d 473 (1986) . The Iowa Supreme Court has held that mental
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What is the most suitable continuation to the opinion? Your options are:
A. recognizing that this courts construction of a statute becomes as much apart of the statute as the words of the statute itself and that change is a matter that addresses itself to the general assembly not this court
B. holding failure to retract an allegedly defamatory statement is not by itself adequate evidence of malice for constitutional purposes
C. holding that mental condition by itself and apart from its relation to official coercion should not dispose of inquiring into constitutional voluntariness
D. holding that the mothers mental condition was implicated in a dependency proceeding without further analysis
E. holding that denial of a grievance by itself without any connection to the violation of constitutional rights alleged by plaintiff does not establish personal participation under 1983
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Read the following excerpt from a US court opinion:
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read a copy of the court’s January 21, 1997, order setting the default judgment damage hearing. Leigh contacted its current counsel which entered an appearance the next day, January 29,1997. Only at this point did Leigh begin to pursue the defense of this matter in a vigorous manner. While miscommunication due to poor internal communication systems is understandable, it is not excusable. Air Canada, 810 F.2d at 1537. It is not enough to argue that a mail clerk misplaced the complaint, Id., or to contend that the Postal Service lost the complaint, Baez, 518 F.2d at 350. Instead, organizations must have systems for “checking up on process to see that it has in fact reached its destination and that action is being taken.” Air Canada, 810 F.2d at 1537; see also Baez, 518 F.2d at 350 . Throughout this action Leigh lacked a system
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What is the most suitable continuation to the opinion? Your options are:
A. holding that internal procedural safeguards could and should have been established to prevent the loss of a complaint by the postal service and the consequent entry of default judgment
B. holding that in considering the appellants opposition to the motion for a default judgment it is proper to apply the rule 55c standard for setting aside the entry of a default
C. recognizing that a default judgment based on improper service is void
D. holding that entry of a default judgment was inappropriate where complaint merely recited statutory language and contained no facts
E. holding that trial court must make entry of default prior to entry of default judgment and court may not make entry of default when there is no default in law or in fact
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Read the following excerpt from a US court opinion:
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issue on the merits. 3 . In her Respondent’s brief, Quick relies on this court’s opinion in Kolb v. Cook, 284 S.C. 598, 602, 327 S.E.2d 379, 382 (Ct.App.1985), in which we held a tort claimant seeking to recover damages from sources other than the distributable or distributed assets of the probate estate does not need to file a verified claim or account with the personal representative of the deceased tortfeasor. Quick asserts the funds from the UGMA account were not a distributable asset of the probate estate because she has a vested title in the proceeds from account and she is entitled to a constructive trust. While we find this argument intriguing, we decline to consider it on appeal. See I'On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 420 n. 9, 526 S.E.2d 716, 723 n. 9 (2000) . 4 . In light of our disposition herein, we
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What is the most suitable continuation to the opinion? Your options are:
A. recognizing that an appellate court reviews a trial courts decision whether or not to grant equitable relief only for an abuse of discretion
B. holding that it was within the trial courts discretion to refuse any additional discovery and that the courts refusal to allow additional discovery was not an abuse of discretion
C. holding that such a decision was within the trial courts discretion
D. holding trial courts findings of fact inadequate to facilitate effective appellate review and reversing decision after independent review of record
E. holding when reversing a lower courts decision it is within an appellate courts discretion as to whether to address any additional sustaining grounds
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Read the following excerpt from a US court opinion:
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the parties, as well as the court, repeatedly refer to the case as a wrongful death suit. On the other hand, the types of damages sought by Phillips suggest she might have meant to bring both wrongful death and survival actions. Importantly, however, Phillips never refers to herself or any of the plaintiffs as personal representatives of the Decedent’s estate, nor does she clearly assert that she is in fact the Decedent’s executor or administrator. Under Mississippi's general survivorship statute, only executors, administrators, and temporary administrators may bring a survival action. Miss Code Ann. § 91-7-233 (1994). Thus, without alleging the appropriate legal status, Phillips could not have brought a survival action. See Berryhill v. Nichols, 171 Miss. 769, 158 So. 470, 471 (1935) . Because Phillips could only have brought this
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What is the most suitable continuation to the opinion? Your options are:
A. holding that the district court erred by not permitting defense counsel to argue to the jury that the governments case was weakened by a lack of evidence allegedly caused by its failure to investigate
B. holding that personal representative may amend personal injury suit to state wrongful death claim following plaintiffs death
C. holding that recovery for pain and suffering of deceased allegedly caused by the negligence of doctor can only be had in suit by personal representative and not by next of kin or heirs at law
D. holding that delay caused by or consented to by a defendant is not unreasonable
E. holding that there was no evidence in the record to support appellants contention that the doctor committed a separate act of negligence by continuing to prescribe coumadin and that the doctors alleged failure to correct any previous negligence does not constitute additional acts of negligence
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Read the following excerpt from a US court opinion:
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the Gaming Center because Williams was being ejected. This time, the police officers who responded called Mayor Jackson, reported that Williams was creating a disturbance, and asked for guidance. Jackson responded by directing the officers to bring Williams to his office for questioning. The police handcuffed Williams, placed him in a police car, and brought him to the mayor’s office for interrogation. Williams seeks to hold the town liable based on Jackson’s action. There is no question that probable cause was required to detain Williams in this manner. As a Fourth Amendment matter, placing a suspect in handcuffs and transporting him to a government office for interrogation must be supported by probable cause. Kaupp v. Texas, 538 U.S. 626, 630, 123 S.Ct. 1843, 155 L.Ed.2d 814 (2003) ; United States v. Dunn, 345 F.3d 1285, 1288
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What is the most suitable continuation to the opinion? Your options are:
A. holding that the electronic submission of information across state lines qualifies as in or affecting interstate commerce internal quotation marks and brackets omitted
B. holding that involuntary transport to a police station for questioning is sufficiently like arrest to invoke the traditional rule that arrests may constitutionally be made only on probable cause internal quotation marks and brackets omitted
C. holding that compliance with rule 3 is both a mandatory and jurisdictional prerequisite to appeal internal quotation marks omitted
D. recognizing that the declaratory judgment act is only procedural and does not create substantive rights internal quotation marks and citations omitted
E. recognizing probable cause as complete defense to a claim of malicious prosecution in new york internal quotation marks and brackets omitted
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Read the following excerpt from a US court opinion:
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instead suggest that the debtor faces the high stakes of litigation and therefore should cooperate. Accordingly, after reconsideration, this Court affirms its prior Ruling granting summary judgment for Plaintiff on his claim under § 1692e(5). B. The Remaining FDCPA Claims Under §§ 1692e(2)(A) and (10) Having affirmed its prior Ruling on Plaintiffs § 1692e(5) claim, this Court also affirms its prior Ruling granting summary judgment for Plaintiff on his claims arising under §§ 1692e(2)(A) and (10). Courts have long held that after finding a valid claim under a more specific subsection of § 1692e, such as § 1692e(5), further analysis under § 1692e(10) is “somewhat dupli-cative.” Kapeluschnik, 1999 U.S. Dist. LEXIS 22883, at *26; see Clomon, 988 F.2d at 1321; Pipiles, 886 F.2d at 25-26 . See generally Gaetano v. Payco of Wis., Inc.,
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What is the most suitable continuation to the opinion? Your options are:
A. recognizing that the court may take judicial notice of its own docket
B. holding statute requiring parties in tax suit to take notice of subsequent pleadings was not unconstitutional when city failed to take such notice
C. holding that the the vagueness of the language in a notice suggested defendant would take actions it did not intend to take and therefore violated both 1692e5 and 10
D. recognizing that the government agreed not to take a position
E. holding that where it was erroneous for the district court to take judicial notice it certainly cannot be said that such notice was mandatory and therefore ire 201d is inapplicable
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Read the following excerpt from a US court opinion:
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than he who do not hold a license. Furthermore, Krishner only articulated Vernon’s job deficiencies for the first time during Meyers’s investigation. This additional evidence suggests that Port Authority’s reasons could have been a pretext for retaliation. Because a genuine issue of material fact exists as to whether Port Authority’s reasons are pre-textual or not, the Court denies defendant’s motion for summary judgment on plaintiffs Title VII and ADEA retaliation claims in regards to the failure to promote. IV. Punitive Damages Vernon is seeking punitive damages against Port Authority for its willful, F.2d 807 (3d Cir.1991), cert. denied, 504 U.S. 943, 112 S.Ct. 2281, 119 L.Ed.2d 206 (1992) (same); Recreation World, Inc. v. Port Auth. of N.Y. & N.J., 1998 WL 107362, *12 (S.D.NY.1998) ; Shifa Serv. Inc. v. Port Auth. of N.Y. &
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What is the most suitable continuation to the opinion? Your options are:
A. holding that regional transit authority is immune from punitive damages
B. holding that the state is immune from punitive awards
C. holding that a municipality is immune from punitive damages under 42 usc 1983
D. holding that port authority is immune from punitive damages
E. holding that in the absence of statutory provisions to the contrary municipal corporations are immune from punitive damages
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Read the following excerpt from a US court opinion:
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the intimidation of witnesses in an effort to suppress their testimony. Further, the conclusion of the District of Columbia Circuit, in Moóre, that the collection of information for use in a prosecution is necessarily investigative rather than advocatory conduct demonstrates a much narrower conception of the advocatory role than is justified by Imbler, in which the Court explicitly recognized that "[pjreparation, both for the initiation of the criminal process and for a trial, may require the obtaining, reviewing, and evaluating of evidence.” Imbler, 424 U.S. at 431 n. 33, 96 S.Ct. 984 (emphasis added). 7 .Rowell’s trial testimony included an in-chambers conference that involved the state court, counsel for the parties, and Rowell. The conference appeared to relate 1 (9th Cir.2001) . 11 . See Henzel v. Gerstein, 608 F.2d 654,
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What is the most suitable continuation to the opinion? Your options are:
A. holding that advising police officers as to existence of probable cause in particular case was not protected by absolute immunity
B. holding fabrication not protected because no probable cause
C. holding that the existence of probable cause determines whether fabrication is investigatory or advocatory
D. holding that under fourth amendment standards for determining probable cause for arrest and probable cause for search and seizure are same
E. holding that in a 1983 action issue of probable cause is for the jury
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Read the following excerpt from a US court opinion:
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private party. The court considered whether that new requirement applied only to the named plaintiff or also to all absent class members. Id., 93 Cal.Rptr.3d 559, 207 P.3d at 25. The court concluded, based on the language of the initiative, that only the named plaintiff needed to show such an injury in fact. Id. Individuals could remain part of the class even if they had suffered no injury in fact. Id., 93 Cal.Rptr.3d 559, 207 P.3d at 35. That case, however, was in state court and did not address federal courts’ standing requirements. Before the enactment of Proposition 64, uninjured plaintiffs could bring UCL claims in state court, but not federal court. See, e.g., Seibels Bruce Group, Inc. v. R.J. Reynolds Tobacco Co., No. C-99-0593 MHP, 1999 WL 760527 at *6 (N.D.Cal. Sept. 21, 1999) ; Boyle v. MTV Networks, Inc., 766 F.Supp. 809,
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What is the most suitable continuation to the opinion? Your options are:
A. holding that to have standing a plaintiff must establish an injury in fact a casual connection between the injury and that the injury will be redressed by a favorable decision
B. holding that plaintiff did not have standing to assert ucl claim in federal court because it did not establish a distinct and palpable injury
C. holding that a litigant may not claim standing to assert the rights of a third party
D. holding that a plaintiff may not assert claims based on statements she did not view
E. holding that plaintiffs did not have standing because they did not sue the party with the clear ability to act
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Read the following excerpt from a US court opinion:
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7 (1999) (“a breach of the duty to assist ... cannot form the basis of a CUE claim”); Caffrey v. Brown, 6 Vet.App. 377, 383-84 (1994); see also Hayre, 188 F.3d at 1330-32 (ratifying Cajfrey, supra). Second, the Court’s authority to consider claims of CUE in Board decisions is premised upon, inter alia, 38 U.S.C. § 7111, which took effect on November 21, 1997. See Pub.L. No. 105-111, 111 Stat. 2271 (1997) (the provisions of Pub.L. 105-111 “apply to any determination made before, on, or after the date of the enactment.”). Section 7111 requires that such arguments must be raised to the Board in the first instance and decided by the Board on the merits; they may not be raised in the first instance on appeal to the Court. See 38 U.S.C. § 7111(e); Ledford v. West, 136 F.3d 776 (Fed.Cir.1998) . The record shows that the appellant made no
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What is the most suitable continuation to the opinion? Your options are:
A. holding that this court lacked jurisdiction to hear a cue claim raised for the first time on appeal
B. holding that because a claim was never raised in the district court this court would not consider it for the first time on appeal
C. holding that an issue raised for the first time on appeal will not be considered by this court
D. holding that the court has discretion to hear or to remand legal arguments raised for the first time on appeal
E. holding in pertinent part that this court lacked jurisdiction to hear the appeal
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Read the following excerpt from a US court opinion:
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shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.” 29 U.S.C. § 160(e). And under the Board’s practice, “any issues that may be presented during the representation proceeding must be offered there.” Pace Univ. v. NLRB, 514 F.3d 19, 23 (D.C.Cir.2008). Thus, the Board claims, UC Health’s objection to the Regional Director’s authority comes too late. We have consistently held, however, that challenges to the composition of an agency can be raised on review even when they are not raised before the agency. See Noel Canning v. NLRB, 705 F.3d 490, 497 (D.C.Cir.2013), aff'd on other grounds, — U.S. —, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014); Mitchell v. Christopher, 996 F.2d 375, 378-79 (D.C.Cir.1993) . Since this challenge directly involves the
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What is the most suitable continuation to the opinion? Your options are:
A. recognizing an exception allowing parties to raise for the first time on review challenges that concern the very composition or constitution of an agency
B. holding an agency decision is not final during the time the agency considers a petition for review
C. recognizing such an exception
D. holding that a party may not raise an issue for the first time on appeal
E. recognizing exception under state constitution
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Read the following excerpt from a US court opinion:
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the court erred because Wal-Mart retained control over his work and is therefore directly liable for his injuries. A. Premises Liability (Vicarious) under Restatement § 422(a) ¶ 12 Arizona courts have consistently recognized that a landowner is not liable for the negligent conduct of an independent contractor unless the landowner has been independently negligent. See Welker v. Kennecott, 1 Ariz.App. 395, 401-04, 403 P.2d 330, 336-39 (1965) (citing Restatement (First) of Torts § 409 (1934) (“Except as stated in §§ 410 to 429, the employer of an independent contractor is not subject to liability for bodily harm caused to another by a tortious act or omission of the contractor or his servants.”)); see also E.L. Jones Constr. Co. v. Noland, 105 Ariz. 446, 454, 466 P.2d 740, 748 (1970) ; Restatement § 409 cmt. b (explaining that the
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What is the most suitable continuation to the opinion? Your options are:
A. recognizing general rule
B. holding in part that the liability insurance company of the subcontractor which had named the general contractor as an additional insured on the subcontractors policy was liable to reimburse the general contractor for a settlement payment the general contractor had made to the subcontractors employee
C. holding that subcontractor was not obligated to indemnify general contractor for general contractors own negligence where indemnification clause did not expressly state that subcontractor would indemnify general contractor for such negligence
D. recognizing the general rule that a property owner is not liable for the negligence of an independent contractor
E. holding a premises owner is a general contractor for purposes of the statutory employer provision
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Read the following excerpt from a US court opinion:
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incorrectly because Act 21 violates the equal protection clauses of the United States and Pennsylvania Constitutions. However, we must follow the decisional law established by our own Court. Blumenstock v. Gibson, 811 A.2d 1029, 1039 (Pa.Super.2002). Moreover, we observe that following our decision in In re S.A, the Pennsylvania Supreme Court denied a subsequently filed petition for allowance of appeal. In re S.A., 597 Pa. 733, 952 A.2d 678 (2008). Therefore, unless or until In re S.A. and In re A.C. are overturned by an en banc panel of this Court, or by a decision of the Pennsylvania Supreme Court, they continue to be viable precedent for this Court and for the courts of common pleas. Id. See also, Sorber v. American Motorists Ins. Co., 451 Pa.Super. 507, 680 A.2d 881, 882 (1996) . Hence, we cannot afford Appellant the relief
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What is the most suitable continuation to the opinion? Your options are:
A. holding untimely petition for allowance of appeal with pennsylvania supreme court which later denied petition does not operate to circumvent time restrictions of pcra by altering date on which appellants sentence became final
B. holding that even though petition for allowance of appeal was pending before the pennsylvania supreme court decision remained binding precedent as long as the decision had not been overturned by our supreme court
C. holding that the court of appeals erred in declining to apply supreme court precedent even though the reasoning of that precedent had been eroded by subsequent decisions
D. recognizing that our supreme court does not overrule binding precedent sub silentio and noting that because an appellate court opinion did not mention a contradicting supreme court decision the conflict between the two decisions was not called to the attention of the court which denied review of the appellate decision
E. holding that court is bound by prior panels interpretation of supreme court decision
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Read the following excerpt from a US court opinion:
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unreasonable task in proving the point of initial injury.” Ibid. In Joe Harden Builders, Inc. v. Aetna Casualty and Surety Co., 326 S.C. 231, 486 S.E.2d 89 (S.C.1997), the South Carolina Supreme Court replied to a federal district court’s certified question regarding the appropriate trigger of coverage when defective construction results in progressive and continuous property damage. The plaintiff contractor sought payment under a subcontractor’s insurance policy. The court held that “coverage is triggered at the time of an injury-in-fact and continuously thereafter to allow coverage under all policies in effect from the time of injury-in-fact during the progressive damage.” Id. at 91. See also Lincoln Electric Co. v. St. Paul Fire and Marine Ins. Co., 210 F.3d 672, 690 (6th Cir.2000); Sentinel Ins. Co., Ltd. v. First Ins. Co. of
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What is the most suitable continuation to the opinion? Your options are:
A. holding defendant failed to rebut statutory presumption where evidence was not particular to the facts and circumstances of the case
B. holding that insurers failure to deny existence of insurance coverage under policy at issue was to admit that coverage existed
C. holding that an eighth amendment plaintiff did not have to prove that he was actually injured by exposure to raw sewage only that such exposure posed a serious health risk
D. holding in dispute over coverage for personal injury claims relating to welding fumes and asbestos exposure that exposure would presumably trigger defendant insurers policy but remanding case to allow defendant to rebut this presumption with evidence of injuryinfact
E. holding that insurance coverage in the context of asbestosrelated diseases is triggered by exposure exposure in residence and manifestation
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Read the following excerpt from a US court opinion:
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Coffees’ contention that the Government’s moving of the documents from their home in Ohio to Philadelphia should not permit the Government to bootstrap its desire for venue here. This factor is thus neutral. Disruption of the Defendant’s Business Thomas Coffee argues that he is currently employed as a “remodeler/handy-man” in Ohio under the company name “Coffee Enterprises, Inc.”. He argues that he will have to stop working during the trial if it is held in Philadelphia, whereas in Ohio he will be able to work after court or during breaks. Thus, Coffee pére argues that this reality favors transfer. Thomas Coffee also notes that the “marginal” nature of his business should not make this factor stand any less in his favor, see United States v. Haley, 504 F.Supp. 1124, 1128 (E.D.Pa.1981) . At today’s hearing, defense counsel
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What is the most suitable continuation to the opinion? Your options are:
A. holding that evidence of a defendants invocation of the right to remain silent ordinarily is not admissible at the defendants criminal trial
B. holding that trial counsels failure to call defendants family members as witnesses during penalty phase was reasonable trial strategy and not ineffective assistance of counsel
C. holding that trial counsel was not deficient in the presentation of defendants life history during the penalty phase because the jury was aware of most aspects of the defendants life that the defendant argued should have been presented
D. holding that trial counsels performance in failing to object move to strike or request an admonishment of the jury with respect to the defendants criminal history was deficient and that it could not be said that the references to the defendants criminal history did not impact the jurys decision where the evidence was not overwhelming and reversing for a new trial
E. holding that this factor favored transfer when one of the defendants was merely planning to pump gas at night during trial on the basis that defending criminal charges should not include the penalty of financial ruin where the trial might be conducted properly and legally in a forum near defendants homes and businesses
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Read the following excerpt from a US court opinion:
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the actual damages and the punitive damages is the same. The jury in the state case found that Scarborough willfully and maliciously injured Fischer by instigating the criminal charges and the petition for a protective order. Scarborough’s willful and malicious conduct resulted in the actual damages and, with the jury’s finding of outrageousness, supported the punitive damages. Because the holding in In re Ratcliff, 199 B.R. 185 (Bankr.W.D.Mo.1996), the decision relied on by the bankruptcy court in this case, differs from our opinion, we decline to follow it. Finally, we note that our holding today regarding the dischargeability of punitive damages is consistent with our sister Circuits. See Abbo v. Rossi, McCreery & Assocs., Inc. (In re Abbo), 168 F.3d 930, 931-32 (6th Cir.1999) ; Hagan v. McNallen (In re McNallen), 62 F.3d
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What is the most suitable continuation to the opinion? Your options are:
A. holding without discussion of the punitive damages issue that judgment for embezzlement which included actual and punitive damages was nondischargeable
B. holding punitive damages nondischargeable under 523a6 when such damages are based on the same conduct as the underlying nondischargeable judgment
C. holding nondischargeable postpetition interest on debt that was determined to be nondischargeable under section 523a2 as obtained by fraud
D. holding that in a chapter 7 case postpetition interest on a nondischargeable tax claim is also nondischargeable
E. holding that punitive damages which are based on the same underlying action justifying nondischargeability of compensatory damages are likewise nondischargeable
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Read the following excerpt from a US court opinion:
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teacher, only four months after plaintiff was terminated. See Paquin, 119 F.3d at 31 (“hir ing a less qualified person can support an inference of discriminatory motive (citing Harding v. Gray, 9 F.3d 150, 153-54 (D.C.Cir.1993)). If it is true that the Business and Finance Academy had to reduce the number of social studies teachers to one, it is questionable how only four months later it was able to accommodate a second social studies teacher, who happened to be younger than the plaintiff. See, e.g., Aka, 156 F.3d at 1293 (“If the jury can infer that the employer’s explanation is not only a mistaken one in terms of the facts, but a lie, that should provide even stronger evidence of discrimination.”); but see Simpson v. Midland-Ross Corp., 823 F.2d 937, 941 & n. 4 (6th Cir. 1987) . However, in light of the other facts
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What is the most suitable continuation to the opinion? Your options are:
A. holding that where adea plaintiff was not replaced until three months after his discharge and the discharge occurred in the context of a reduction in force due to economic necessity substantially weakenedhis claim
B. holding that the employers discharge of the plaintiff four months after the plaintiff filed a discrimination claim is insufficient to establish a prima facie case of retaliatory discharge
C. holding that employees claim alleging discharge in violation of collective bargaining agreement precluded subsequent action under title vii for the same discharge
D. holding that where the immediate cause or motivating factor of a discharge is the employees assertion of statutory rights the discharge is discriminatory under section 215a3 whether or not grounds for other discharge exist
E. holding that the plaintiff alleged sufficient facts in his complaint to state a claim for wrongful discharge where he alleged he was discharged due to his political affiliation and activities
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Read the following excerpt from a US court opinion:
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on appeal as to the correctness of that basis for the judgment of the trial court. “ ‘An argument not made on appeal is abandoned or waived.’ ” Muhammad v. Ford, 986 So.2d 1158, 1165 (Ala.2007) (quoting Avis Rent A Car Sys., Inc. v. Heilman, 876 So.2d 1111, 1124 n. 8 (Ala.2003)). Moreover, it is well settled that, in order to secure a reversal, “the appellant has an affirmative duty of showing error upon the record,” Tucker v. Nichols, 431 So.2d 1263, 1264 (Ala.1983), and that “ ‘[i]t is not the function of this court to search a record on appeal to find evidence to support a party’s argument.’ ” Ellison v. Green, 775 So.2d 831, 833 (Ala.Civ.App.2000)(quoting Brown v. Brown, 719 So.2d 228, 230 (Ala.Civ.App.1998)). See also Soutullo v. Mobile County, 58 So.3d 733, 739 (Ala.2010) . Therefore, even if we agreed with ALDOT that
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What is the most suitable continuation to the opinion? Your options are:
A. holding that the failure to raise an issue in the opening brief waives the issue
B. holding that failure to include an issue in statement of issues did not bar the appellant from raising the issue in its opening brief
C. holding that the failure of the appellant to discuss in the opening brief an issue on which the trial court might have relied as a basis for its judgment results in an affirmance of that judgment
D. holding that failure to discuss an issue in an appellate brief constitutes abandonment of that issue
E. holding that failure to raise an issue in an opening brief waives that issue
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Read the following excerpt from a US court opinion:
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district court proceedings. See Boushel, 985 F.2d at 409; see also Kozeny, 236 F.3d at 619 (concluding a stay was not a final appealable order because a judgment in the foreign litigation would “not necessarily end the litigation in [the United States]”). Even if the district court gives the Austrian courts’ damages award res judicata effect, the effect is not of sufficient magnitude to render the stay immediately appealable because the damages issue is more than offset by issues relating to the constructive trust, the recognition of the assignment, and the recognition of the Austrian judgments. Michelson, 138 F.3d at 514 (requiring the stay to give res judi-cata effect “on all or an important part of the subsequent federal case” to be immediately appealable); Boushel, 985 F.2d at 409 . The district court’s stay order is not
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What is the most suitable continuation to the opinion? Your options are:
A. holding judgment under fed rcivp 12b6 is entitled to res judicata effect
B. holding a stay final and appealable when the state decision would constitute res judicata as to at least the two major issues in the federal suit
C. holding that lear does not abrogate general principles of res judicata or the res judicata effect of a consent decree regarding patent validity
D. holding some res judicata effect from a foreign judgment was insufficient to make a stay immediately appealable
E. holding that res judicata did not apply where a trial courts order was not a final judgment
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Read the following excerpt from a US court opinion:
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two months earlier. Defense counsel’s failure to present evidence from the previous trial is much more likely to affect the outcome of the sentencing phase. Because so much time passed between the conviction and the sentencing, and this evidence was substantial enough that it reasonably could have altered the balance between the mitigating and aggravating circumstances, there does seem to be a reasonable probability that, but for defense counsel’s failure to reargue the favorable evidence from trial, the judge would have sentenced Pizzuto to life rather than death. Also, considered cumulatively with counsel’s other deficiencies discussed below, defense counsel’s failure to contest the State’s case in aggravation was prejudicial. See Harris v. Wood, 64 F.3d 1432, 1438-39 (9th Cir.1995) . Taking into account the deficiencies in the
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What is the most suitable continuation to the opinion? Your options are:
A. holding pcr was properly denied where the applicant did not prove he was prejudiced by trial counsels deficient performance in failing to preserve an issue at trial
B. holding that a defendant alleging ineffective assistance must demonstrate that their counsels performance both fell below an objective standard of reasonableness and prejudiced the defense
C. recognizing that in order to prevail on a claim of ineffective assistance of counsel a movant must show that he was prejudiced by his counsels performance
D. holding that the cumulative impact of multiple deficiencies in defense counsels performance prejudiced the defendant in a capital trial
E. recognizing that defendant must show 1 that counsels performance was deficient and 2 that counsels errors prejudiced the defense
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Read the following excerpt from a US court opinion:
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to meet these requirements. First, simply by virtue of the fact that Dr. Hyde is going to be giving opinion testimony at trial, they are entitled to all of the opinions contained in his report. Pursuant to rule 1.280, to be discoverable, the requested matter must not be privileged and must be relevant. Here, for the reasons discussed above, Dr. Hyde’s standard of care opinion is privileged and is not relevant. Second, Respondents argue that they need these opinions because they are entitled to explore Dr. Hyde’s “motive” and “bias.” In addition to failing to explain this theory, Respondents also overlook that offering an expert’s unpresented opinions simply to attack the expert’s credibility is improper. See Jordan ex rel. Shealey v. Masters, 821 So.2d 342, 348-49 (Fla. 4th DCA 2002) . Finally, although Dr. Hyde’s opinion related
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What is the most suitable continuation to the opinion? Your options are:
A. holding that fire expert should not have been sequestered where opposing expert testified to facts and theories not revealed prior to trial
B. holding that using the opinions of an expert that were not testified to during trial which were irrelevant and solely used to destroy the credibility of the expert was not admissible
C. holding that an expert witnesss testimony on an ultimate issue was admissible recognizing that the expert did not specifically testify that the defendant was guilty or that as a matter of law the facts satisfied the applicable legal standard
D. holding that the district court should have excluded expert testimony in an excessive force case where the expert testified that defendants conduct was not justified or warranted under the circumstances and totally improper noting that the experts opinions merely told the jury what result to reach
E. holding expert testimony was based on reasonable medical probability where there were multiple possible causes and expert testified that one cause was more probable than the others
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Read the following excerpt from a US court opinion:
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in which he has a legal right to engage, by means of instilling in him a fear” of certain specified harms "if the demand is not complied with”). 278 , See State v. Pauling, 149 Wash.2d 381, 69 P.3d 331, 336 (2003) (construing state extortion statute to incorporate a “wrongfulness” element, borrowed from federal law, limiting its reach to threats aimed at obtaining property that lack any nexus to a claim of right (citing Jackson, 180 F.3d at 70-71)), cert. denied, 540 U.S. 986, 124 S.Ct. 470, 157 L.Ed.2d 379 (2003); State v. Hynes, 159 N.H. 187, 978 A.2d 264, 278-79 (2009) (following Pauling in implying element of "wrongful” acquisition of property into extortion statute so as to exclude "legitimate claims to property through threats”); People v. Hickman, 988 P.2d 628, 636-37 (1999). . 279 .See Reed v. Town of Gilbert, 576 U.S. —,
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What is the most suitable continuation to the opinion? Your options are:
A. holding that criminal threat prohibition was impliedly limited to threats of illegal or unlawful acts
B. holding that direct threat under the ada includes threats to self
C. holding that because original interception was not unlawful subsequent use by prosecutor could not be found unlawful
D. holding that the doctrine may only be predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct
E. holding that threat occurring 36 days before possession of firearm not present threat
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Read the following excerpt from a US court opinion:
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pursuant to 28 U.S.C. § 1291 and we affirm. 1. The district court did not err in dismissing Smillie’s third amended complaint, replacing John Does with named individual Defendants, as barred by the statute of limitations. There is no evidence in the record satisfying the requirements of relation back. See Fed.R.Civ.P. 15(c); Miguel v. Country Funding Corp., 309 F.3d 1161, 1165 (9th Cir.2002) (as amended). Smillie did not advance any relation back argument before the district court, and conceded as much at oral argument. By assuming relation back was automatic, Smillie offered no proof to trigger the provision and failed to show that Defendants were provided notice of the complaint and were not prejudiced by the amendment. See Fed.R.Civ.P. 15(c)(1)(C); Miguel, 309 F.3d at 1165 . The district court, therefore, did not err in
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What is the most suitable continuation to the opinion? Your options are:
A. holding that plaintiffs amended complaint could not relate back because there was no evidence in the record that the defendant had notice of the suit within the 120 day period required by rule 4m
B. holding that the amended complaint could not relate back to the original complaint in which all claims were barred by the statute of limitations
C. holding that as a matter of law claim stated in amended complaint did not relate back to original complaint
D. holding that because the plaintiff had not perfected service within 120 days of filing the complaint the complaint was subject to mandatory dismissal
E. holding that when a plaintiff mistakenly sues a decedent and not the decedents estate and seeks to recover only against insurance proceeds if the decedents insurer had notice of the action and knowledge of the plaintiffs mistake within the period specified by rule 15c an amended complaint will relate back to the date of the original complaint absent any prejudice to the insurer and the estate and assuming the other requirements of rule 15c are met
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Read the following excerpt from a US court opinion:
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an additional continuance nine days before trial; and the Court had already continued resolution of this case eight times (docs.# 32, # 52, # 66, # 79, # 93, # 94, # 96, # 97). Moreover, the government indicated that the additional discovery material consisted mostly of summaries of earlier disclosed evidence. Under these circumstances, the Court finds that it was entirely proper to require that the trial proceed as scheduled. Cf. United States v. McHorse, 179 F.3d 889, 904 (10th Cir.1999) (affirming denial of motion to continue trial more than a half day where the defendant had just received additional discovery material, but continuance motion was made the day of trial and three prior continuances had been granted); United States v. Lefkowitz, 125 F.3d 608, 620 (8th Cir.1997) . B. Denial of Motion to Suppress Huber also
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What is the most suitable continuation to the opinion? Your options are:
A. holding that the trial court abused its discretion in not allowing defendant to withdraw his waiver of jury trial where a lengthy continuance already had been granted
B. holding that trial court did not abuse discretion in denying motion to sever because trial of three defendants would not create confusion
C. holding that trial court did not abuse its discretion in denying motion to continue due to pretrial publicity in part because court instructed jury on three separate occasions to consider only evidence presented in the courtroom
D. holding that trial court did not abuse its discretion by denying motion for continuance when not in proper affidavit form
E. holding that trial court did not abuse its discretion in denying motion to continue trial three months where although trial was complex and records were voluminous court had already granted two prior continuances and continuance of three weeks was sufficient to prepare for trial
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Read the following excerpt from a US court opinion:
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to media coverage, none indicated that their exposure had caused them to form fixed, unchanging opinions of the defendant’s guilt. None indicated that their exposure would interfere in any way with their ability to render a verdict based solely on the evidence presented in court. Based on such a record, together with the fact that a significant number of potential jurors had not formed a fixed bias against the appellant due to news reports or other information, and the fact that a one year and nine-month span between the murder and trial had lessened the publicity and its impact, we held that the trial court had not abused its discretion by denying the appellant his request for a change of venue. Id. at 316-18; see also Commonwealth v. Crews, 536 Pa. 508, 640 A.2d 395, 398-99 (1994) . Here, nineteen years after the murders,
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What is the most suitable continuation to the opinion? Your options are:
A. holding no violation of substantial rights occurred during voir dire where record did not show that defendant was denied fair and impartial trial
B. holding a pretrial hearing on the waiver of counsel conducted three weeks before trial was the start of the trial stage where there were no changes between the pretrial hearing and the trial
C. holding that even where there is inflammatory pretrial publicity an adequate coolingoff period between the publication of such material and the trial which in crews was six to eight months together with the trial courts exercise of its discretion to evaluate bias and impartiality during voir dire sufficiently supported the trial courts conclusion that pretrial publicity did not prevent the capital defendant from receiving a fair trial by an impartial jury
D. holding that absence of defendants from part of voir dire discussing trial publicity with prospective jurors was error under rule 43
E. holding that the district court should have engaged in a more detailed inquiry when pretrial publicity was vast a third of potential jurors had an opinion about the guilt of the defendant and all jurors selected had been exposed to pretrial publicity
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Read the following excerpt from a US court opinion:
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recast their simple breach of contract claim into a tort claim to avoid the reality that the statute of limitations has run on their contract claim. But the allegations are for a simple breach of an oral contract — Figaro-la borrowed $25,000 from the Walkers which he promised to repay within three weeks, and the loan remains unpaid. The complaint thus alleges a failure to comply with the terms of the contract. The Walkers had four years to bring a breach of contract action against Figarola, but they failed to do so. They cannot now seek a remedy in tort for a debt which could have been discharged by the payment of money by simply alleging that Figarola never intended to keep his promise to repay the debt. See Hotels of Key Largo v. RHI Hotels, Inc., 694 So.2d 74, 78 (Fla. 3d DCA 1997) .
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What is the most suitable continuation to the opinion? Your options are:
A. holding that misrepresentations relating to the breaching partys performance of a contract do not give rise to an independent cause of action in tort
B. holding that the failure to act in good faith does not amount to an independent tort the breach of the implied duty under the ucc gives rise only to a cause of action for breach of contract
C. holding that negligent breach of a duty assumed in a contract does not give rise to a separate tort claim
D. holding that failure to record an assignment does not give rise to a cause of action
E. holding that the first amendment does not by itself give rise to a cause of action for damages
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Read the following excerpt from a US court opinion:
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nce for West Virginia Lawyers, vol. 1, § 5-2(c) at 479 (1994)). Suggesting that Ms. Day might have changed her mind if called to the stand and instructed that she did not have a valid Fifth Amendment privilege to invoke, Appellant maintains that it was precipitous on the trial court’s part to assume that she would refuse to testify in open court. We agree. As the trial court correctly recognized during the in camera hearing, the Fifth Amendment privilege that Ms. Day was citing as a basis for not taking the witness stand was not available to her given both her acquittal and the grant of immunity extended to her. Following her acquittal, any lingering concerns that Ms. Day may have had with regard to self-incrimination were entirely extinguished by the grant of immunity. Because .2000) . Those courts that require the assertion of
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What is the most suitable continuation to the opinion? Your options are:
A. recognizing privilege
B. holding that juveniles request to call parent is assertion of fifth amendment privilege against selfincrimination
C. holding that the statement ill take the fifth was an assertion of the fifth amendment privilege
D. holding that a valid assertion of the fifth amendment privilege in a civil case may not be treated as an admission that allegations are true
E. recognizing that policy reasons undergirding assertion of fifth amendment privilege outside jurys presence apply even if privilege is invalid
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Read the following excerpt from a US court opinion:
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at that end of town. The call was for a suspicious person being a Hispanic male. The officer went specifically to that location and the juvenile matches the description of being a Hispanic male[,] and[,] according to the officer’s testimony, he. was wearing gang attire, large baggy clothes. We uphold the trial court’s findings, with the exception of the finding that the dispatch call was about “suspicious activity,” because Officer Henderson testified that the dispatch was about a “suspicious person” at the Exxon gas station. Officer Henderson testified as follows: A [T]he [dispatch] call was a suspicious person at the [Exxon] station at the corne tely 6:00 p.m. on a summer evening in front of an open business. Cf. State v. Rinck, 303 N.C. 551, 555-60, 280 S.E.2d 912, 916-20 (1981) ; State v. Blackstock, 165 N.C. App. 50, 59,
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What is the most suitable continuation to the opinion? Your options are:
A. holding that the forceable stop at issue was an investigatory stop rather than an arrest
B. holding officer had a reasonable basis to stop a motorist for crossing the fog line and that failure to have regard for the width and use of the street by swerving off the side of the road or crossing the marker lines constitutes probable cause for a traffic stop
C. holding circumstances supporting reasonable suspicion to make a stop included that the defendant was on a comer on which recent multiple drugrelated arrests had been made
D. holding that circumstances created reasonable suspicion for investigatory stop
E. holding circumstances supporting a reasonable basis for a stop included that the defendants were walking along a road at an unusual hour of approximately 135 am
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Read the following excerpt from a US court opinion:
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in that provision. I, however, focus on the phrase “upon consideration of,” which I believe has the same meaning and effect as “consider.” We have recognized that a statute requiring a government official to “consider” certain factors “implfies] wide areas of judgment and therefore of discretion.” Carolina Tobacco Co. v. Bureau of Customs and Border Prot., 402 F.3d 1345, 1350 (Fed.Cir.2005) (citing Sec’y of Agric. v. Cent. Roig Refining Co., 338 U.S. 604, 611-14, 70 S.Ct. 403, 94 L.Ed. 381 (1950)). In Carolina Tobacco, we added that “[i]n considering the factors, the port director may give them whatever weight he deems appropriate; he may conclude that particular factors should be given no weight whatsoever.” Id.; cf. Brehmer v. Fed. Aviation Admin., 294 F.3d 1344, 1348 (Fed.Cir.2002) . Indeed, in Central Roig the Supreme Court
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What is the most suitable continuation to the opinion? Your options are:
A. holding that an employee may sue for breach of a collective bargaining agreement without the union
B. holding that proof of discrimination offered by the plaintiff was insufficient to support a punitive damages award in light of the employers belief that its actions were required by a collective bargaining agreement
C. holding that a job transfer provided as a reasonable accommodation under the rehabilitation act did not conflict with a collective bargaining agreement when the agreement included a provision authorizing transfers and requiring a seniority preference in transfers ejxcept in the most unusual of circumstances
D. holding that the administration complied with a provision of the collective bargaining agreement requiring it to give consideration to nondisciplinary measures in certain circumstances when it considered the possibility of additional training but concluded that in light of the failure of the prior retraining to improve brehmers performance additional retraining would be ineffective
E. holding that oral agreement made in connection with reinstatement should be treated as part of collective bargaining agreement
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Read the following excerpt from a US court opinion:
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holding the legislature’s adoption of statutes for renewal by affidavit neither repealed the statute tolling an action based on a person’s absence, nor precluded the separate action on the judgment for renewal: Of course, it may be easier to renew a judgment by affidavit; but it by no means follows that the old judgment may not be made the basis of a new suit, and many cases arise where it is an advantage to be able to bring suit, instead of renewing by affidavit — the case at bar being an example. It is our conclusion that the two remedies are not inconsistent, and that a judgment creditor may either sue upon his judgment, or renew it by affidavit, if he complies with the respective laws. Id. at 487-88, 137 N.W. at 450 (emphasis added). See also Herzig, 2011 ND 7, ¶ 12, 793 N.W.2d 371 ; Jahner, 515 N.W.2d at 186 (holding Ryan case
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What is the most suitable continuation to the opinion? Your options are:
A. holding there was no claim and no basis for a claim of surprise concerning allegation of a former conviction
B. 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
C. holding that when there was no surprise and no prejudice defendant was entitled to rely on defense of accord and satisfaction in its summary judgment motion even though it was not included in the pleadings
D. holding that absent some showing that prosecutorial discretion was abused in the selection of cases in which the death penalty was sought there is no basis for either a claim under the eighth amendment or a claim under the equal protection clause
E. holding no tolling under ryan and ndcc 280132 when there was no claim judgment debtor was absent from the state
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Read the following excerpt from a US court opinion:
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is different in that Mark acknowledges having received some notice, but not forty-five days’ notice as required by Rule 245. He contends that we should reverse the trial court on that basis alone. It is true that courts view Rule 245 as a mandatory requirement. Bell Helicopter Textron, Inc. v. Abbott, 863 S.W.2d 139, 140 (Tex.App.-Texarkana 1993, writ denied); see also Platt, 991 S.W.2d at 484; In re Estate of Crenshaw, 982 S.W.2d 568, 570 (Tex.App.Amarillo 1998, no pet.); Hardin v. Hardin, 932 S.W.2d 566, 567 (Tex.App.-Tyler 1995, no writ). That a rule is mandatory, however, does not necessarily mean that a party cannot waive the rights granted under that rule. See, e.g., Pena v. Pena, 986 S.W.2d 696, 701 (Tex.App.Corpus Christi 1998), pet. denied per curiam, 8 S.W.3d 639 (Tex.1999) . Error resulting from a trial court’s failure
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What is the most suitable continuation to the opinion? Your options are:
A. holding that a party who fails to comply with the mandatory requirements for requesting a judges recusal waives his right to complain of the judges failure to recuse himself
B. recognizing that section 455 requires judges to consider recusal sua sponte
C. holding that under the firm waiver rule a party who fails to make a timely objection to the magistrate judges findings and recommendations waives appellate review of both factual and legal questions
D. holding failure to timely object to magistrate judges recommendation waives appellate review of factual and legal questions
E. holding that an order granted simultaneously with a recusal order is void unless the trial judges written order was but a reduction of an earlier adverse oral ruling made prior to the recusal
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Read the following excerpt from a US court opinion:
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With respect to the opt-out policy, the Court stated: ''[I]t is not inconsistent to have a policy disfavoring the impingement of certain types of liens upon exemptions, whether federal-or state-created. We have no basis for pronouncing the opt-out policy absolute, but must apply it along with whatever other competing or limiting policies the statute contains.” Owen, 500 U.S. at 313, 111 S.Ct. at 1838. 7 . The United States Supreme Court left open the question whether the lien attached prior to the acquisition of the property interest, meaning the lien would not have fixed on an interest of the debtor and section 522(f)(1) would not apply. See Farrey v. Sanderfoot, 500 U.S. 291, 111 S.Ct. 1825, 114 L.Ed.2d 337 (1991). Compare Matter of Macke, 136 B.R. 209, 211 (Bankr.S.D.Iowa 1992) with In re Reinders, 138 B.R. 937, 942-43
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What is the most suitable continuation to the opinion? Your options are:
A. holding that where a married debtor files an individual bankruptcy case and claims the 522b3b tbe exemption the debtor indirectly obtains the benefit of floridas constitutional homestead protection by virtue of the nondebtor spouses ability to claim the homestead exemption
B. holding state courts authority under iowa code section 59821 not the lien created there under prevented debtor from claiming the iowa homestead exemption and therefore the debtor could not avoid the lien because the lien did not impair an exemption to which the debtor would have been entitled but for the lien
C. holding that the general rule is that temporary absence from the premises will not itself cause an abandonment of the homestead but to retain the homestead exemption one leaving the homestead must in good faith intend to return albeit the intent to return need not be at any particular time in the future
D. holding that homestead exemption was unavailable even though claimants were living on the land and claiming it as homestead with the permission or acquiescence of the owner for they could have no homestead right or interest in land to which they had no title
E. holding even though debtor would have been entitled to iowa homestead exemption but for former spouses iowa code section 59821 lien debtor could not avoid the lien because it attached to the homestead prior to or simultaneously with debtors acquisition of the interest in the homestead
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Read the following excerpt from a US court opinion:
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of this repudiation of the Authority’s contractual obligation, the Developers filed suit in the district court asserting breach of contract and quantum meruit. • The Authority’s use of and exercise of dominion and control over the Facilities constitutes a taking of the Facilities without compensation in violation of the Takings Clause. The Authority’s actions are intentional and those actions were a proximate cause of the taking of the Facilities, which were owned by the Developers at the time of the taking. The Developers did not consent to the taking, and received no compensation for the taking, which was for a public use. The Developers seek damages for the property taken. In reviewing the Authority’s challenge to the Developers’ pleadings, we const vApp.-Austin 1951, writ ref'd) ; Hightower v. City of Tyler, 134 S.W.2d 404,
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What is the most suitable continuation to the opinion? Your options are:
A. holding that the plaintiffs claims arose from a certain contract because the subject matter of the plaintiffs suit was intertwined with requirements referred to in the contract
B. holding that the state law contract claim alleged the same conduct as in the erisa claim and was therefore preempted
C. holding that under illinois law interpreting the meaning of a contract is a question of law determined by the court
D. holding that the goal of contract interpretation is to give effect to the parties reasonable expectations which must be gleaned not only from the contract language but also from extrinsic evidence including evidence of the parties conduct goals sought to be accomplished and surrounding circum stances when the contract was negotiated citation and internal quotation marks omitted therefore this claim is dismissedip breach of covenant of good faith and fair dealinga choice of lawalthough alaska law governs plaintiffs breaehofcontract claim in case of a conflict it is somewhat less clear whether the policys choiceoflaw provision extends to plaintiffs claim that defendant violated the implied covenant of good faith and fair dealing a district court sitting in diversity in new york is bound to apply new york law to determine the scope of the contractual choiceoflaw clause new york courts decide the scope of such clauses under new york law not under the law selected by the clause fin one pub co ltd v lehman bros special fin inc 414 f3d 325 333 2d cir2005 see also trade wind distribution llc v unilux ag no 10cv5716 2011 wl 4382986 at 3 edny sept 20 2011 the scope of a choiceoflaw provision is a threshold question that a federal court sitting in diversity should decide based on the forum states law rather than the law specified in the clause commerce indus ins co v us bank natl assn no 07cv5731 2008 wl 4178474 at 4 sdny sept 3 2008 in determining the scope of the choice of law provision this court must follow new york lawthere is a reluctance on the part of new york courts to construe contractual choiceoflaw clauses broadly to encompass extracontractual causes of action lehman bros 414 f3d at 334 under new york law in order for a choiceoflaw provision to apply to claims for tort arising incident to the contract the express language of the provision must be sufficiently broad as to encompass the entire relationship between the contracting parties krock v lipsay 97 f3d 640 645 2d cir1996 internal quotation mark omitted accordingly under new york law tort claims are outside the scope of contractual choiceoflaw provisions that merely specify what law governs construction of the terms of the contract lehman bros 414 f3d at 335 see also ayco co v frisch 795 fsupp2d 193 203 ndny2011 same a number of courts applying new york choiceoflaw rules have determined that choiceoflaw provisions nearly identical to that contained in the policy which states only that alaska is the governing jurisdiction see policy 3 and defines governing jurisdiction as the state or jurisdiction in which the policy is delivered and whose laws govern its terms id at 10 are insufficiently broad to encompass tort claims see eg lehman bros 414 f3d at 335 noting that contractual language stating that this agreement will be governed by and construed in accordance with the laws of the state of new york without reference to choice of law doctrine was essentially the same as the choiceoflaw clause at issue a new york state choiceoflaw case a clause found not broad enough to reach tort claims incident to the contractual relationship emphasis omitted krock 97 f3d at 645 in the case at hand the choiceoflaw provision in the parties mortgage document stated only that this mjortgage shall be governed by and construed in accordance with the laws of the commonwealth of massachusetts we see no way such language can be read broadly enough to apply to fraudulent misrepresentation first alteration in original document sec sys inc v couponscom inc no 11cv6528 2012 wl 3597769 at 4 wdny aug 20 2012 in this case the choice of law provision is narrow since it only pertains to the nondisclosure agreement this agreement shall be governed by the applicable laws of the state of new york excluding its conflict of law provisions accordingly the court finds that the nondisclosure agreements choiceoflaw provision does not require the application of new york law to related tort claims ayco 795 fsupp2d at 203 the choice of law provision states only that this agreement shall be governed by and construed and enforced in accordance with the laws of the state of new york without giving effect to any conflict of laws provisions new york courts in this circuit have refused to extend similarly worded clauses to govern tort claims citation omitted second alteration in original therefore the court finds that the policys choiceoflaw provision applies only to those of plaintiffs causes of action that sound in contract and not to those that sound in tortbut this conclusion does not resolve the issue the court must still identify which states law it should apply to determine whether a cause of action alleging a violation of the implied covenant of good faith and fair dealing sounds in contract or in tort and once that law has been so identified what result follows the first question is a particularly important one in the context of this case as under alaska law an insureds action against its insurer for breach of the implied covenant of good faith and fair dealing sounds in tort ennen v integon indem corp 268 p3d 277 281 alaska 2012 citing state farm fire cas co v nicholson 777 p2d 1152 115657 alaska 1989 while under new york law parties to an express contract are bound by an implied duty of good faith but breach of that duty is merely a breach of the underlying contract funk v allstate ins co no 13cv5933 2013 wl 6537031 at 4 edny dec 13 2013 citing harris v provident life accident ins co 310 f3d 73 80 2d cir2002 see also aeolus down inc v credit suisse intl no 10cv8293 2011 wl 5570062 at 4 sdny nov 16 2011 new york law does not recognize a cause of action for tortious breach of an insurance contract citing ny univ v contl ins co 87 ny2d 308 639 nys2d 283 662 ne2d 763 770 1995 commerce indus ins co 2008 wl 4178474 at 3 new york law views various bad faith claims against insurance carriers as contractual in nature internal quotation marks omitted quoting new england ins co v healthcare underwriters mut ins co 352 f3d 599 606 2d cir2003 in re worldcom inc sec litig 456 fsupp2d 508 519 sdny2006 to the extent that the plaintiff is attempting to plead a breach of the duty of good faith and fair dealing then under new york law the plaintiff is required to plead as well a viable claim for breach of contract without an adequate pleading of a breach of a term of contract the plaintiff may not plead a breach of the implied duty of good faith and fair dealing thus if the court were to find that alaska law governs the characterization of plaintiffs cause of action then it would likely fall outside the scope of the policys choiceoflaw provision while if the court were to find that new york law governs the characterization of plaintiffs cause of action it would fall within the provisions scope which somewhat curiously would mean that alaska law would then govern the question of whether plaintiffs have sufficiently pleaded a cause of action for the implied covenants breachwhile the answer is not perfectly clear it appears as though the courts obligation to apply new york law to determine the scope of the contractual choiceoflaw clause lehman bros 414 f3d at 333 encompasses an obligation to apply new york law to determine whether a cause of action is contractual or tortious in nature for the purpose of analyzing whether that cause of action falls within the clauses scope in commerce industry insurance company v us bank national association another court in this district was presented with a similar question under similar facts there the defendants counterclaimed against the plaintiffs both of which were insurance companies for breach of contract and bad faith refusal to pay 2008 wl 4178474 at 1 one of the contracts in dispute contained a choiceoflaw provision which provided that the law of the state of new york would apply in the event that the parties disputed the validity or formation of the contract or the meaning interpretationf or operation of any term condition definition or provision of the contract resulting in litigation arbitration or other form of dispute resolution id at 3 the parties disputefd whether this clause coverfed defendants bad faith claim id at 4 after noting that new york courts are generally reluctant to construe choice of law provisions broadly and that extracontractual claims such as tort claims that arise only incidentally to the contract were not covered by the choice of law clause the court then looked to new york law to determine whether defendants badfaith claim was best characterized as contractual or tortious id at 4 internal quotation marks omitted the court held that new york law considers the duty to act in good faith as controlled by the implied covenant of good faith and fair dealing found in every contract and that therefore a bad faith claim is treated as a breach of the underlying contract for the purposes of applying a choice of law provision id internal quotation marks omitted collecting cases the court further noted that the basic holding of the cases to which it had cited that the same states law should govern both the contract and bad faith claims applies with equal force where the choice of law for the contract dispute is determined by a contractual choice of law provision id at 5 an unnecessarily confusing situation would result if different laws were to govern the contract and bad faith claims id internal quotation marks omitted reasoning that the breach of contract and bad faith claims are inextricably intertwined and should be governed by the laws of the same state and noting that new york law governs the claim for breach of contract the court concluded that new york law should also apply to the bad faith refusal to pay claim relating to these contracts idwhile apparently applying though not always explicitly citing to new york law other courts within this district have taken a similar approach both before and after commerce see eg torain v clear channel broad inc 651 fsupp2d 125 138 sdny2009 the court will apply texas substantive law to determine whether the plaintiff was discharged for cause under the terms of the employment agreement and whether the defendant is entitled to indemnification for the settlement payment moreover because the plaintiffs claim for breach of the implied covenant of good faith and fair dealing arises out of the employment agreement that claim is also governed by texas law comprehensive habilitation servs inc v commerce funding corp no 05cv9640 2009 wl 935665 at 10 n 14 sdny apr 7 2009 because breach of the implied covenant of good faith and fair dealing is a contractual cause of action and the choice of law provision applies to the interpretation and enforcement of the contract virginia law applies to the plaintiffs implied covenant claim arising out of the terms of the factoring agreement butvin v doubleclick inc no 99cv4727 2001 wl 228121 at 7 sdny mar 7 2001 the court notes that the parties indicated in their agreement that it would be governed and construed according to delaware law since the implied covenant of good faith is a rule of interpretation rather than a separate obligation the cjourt holds that a claim for breach of the covenant is a contractual cause of action and therefore delaware law applies to the plaintiffs claim regarding the agreement affd 22 fedappx 57 2d cir2001 in re loisusa inc 264 br 69 9798 bankrsdny2001 0ne of the plaintiffs claims which alleges violation of an implied covenant of good faith and fair dealing seeks to enforce a covenant if it is to be done it must be done as an additional term of the agreement the choiceoflaw issue with respect to that claim is not a difficult one this court has little doubt that if illinois law governs the contract it is no jump at all to find that any efforts to engraft implied terms into the agreement should be measured under the law of illinois the court finds the reasoning of these cases to be persuasive as a result it applies new york law to find that alaska law applies to plaintiffs cause of action for violation of the implied covenant of good faith and fair dealingb analysisas explained in the conflict of law analysis above there is an actual conflict between new york and alaska law on this issue and alaska law controls the covenant of good faith and fair dealing is implied in all contracts in alaska casey v semco energy inc 92 p3d 379 384 alaska 2004 generally speaking claims for breach of the duty of good faith and fair dealing are contract claims as under new york law the alaska supreme court has explainedin the case of an ordinary commercial contract between sophisticated business entities a tort for breach arises only when a partys conduct rises to the level of a traditionally recognized tort creating a broader tort remedy would disrupt the certainty of commercial transactions and allow parties to escape contractual allocation of losses therefore an action for breach of the implied covenant of good faith and fair dealing sounds in contract alonestate dept of natural res v transamerica premier ins co 856 p2d 766 774 alaska 1993 citation alteration and internal quotation marks omitted therefore under normal circumstances plaintiffs would not be able to bring a claim for the breach of the implied covenant of good faith and fair dealing separate from a breach of contract action see id holding that generally an action for breach of the implied covenant of good faith and fair dealing sounds in contract alonehowever alaska has recognized a limited cause of action in tort for the breach of the covenant of good faith and fair dealing in certain insurance contracts see municipality of anchorage v gentile 922 p2d 248 261 alaska 1996 insurance companies have been subjected to tort liability for breaching the covenant of good faith in resolving claims covered by their insurance policies see also state farm fire cas co v nicholson 111 p2d 1152 1157 alaska 1989 holding that tort liability exists for an insurers bad faith failure to settle a firstparty claim noble v natl am life ins co 128 ariz 188 624 p2d 866 868 1981 holding that tort liability applies when dealing with its insured on a claim the decision to extend a tort cause of action to these circumstances is based on public policy considerations unique to the insuredinsurer relationship in particular in allowing an insured to bring a tort cause of action for the breach of the implied covenant of good faith and fair dealing the alaska supreme court has recognized the special relationship between insurer and insured the use of standardized contract terms the insurers superior bargaining position over the insured and the fact that the insured seeks protection against calamity rather than commercial advantage transamerica premier ins 856 p2d at 774 see also nicholson 777 p2d at 1157 the adhesionary aspects of the insurance contract including the lack of bargaining strength of the insured the contracts standardized terms the motivation of the insured for entering into the transaction and the nature of the service for which the contract is executed distinguish this contract from most other noninsurance commercial contracts these features characteristic of the insurance contract make it particularly susceptible to public policy considerations alaska pac assurance co v collins 794 p2d 936 947 alaska 1990 due to the unequal bargaining positions which generally exist between insurers and insureds enforcement of this covenant is particularly important in the insurance context characterizing such actions between the insured and insurer as sounding in tort and thereby permitting tort damages will provide needed incentive to insurers to honor their implied covenant to their insureds citations and internal quotation marks omitted as amended on denial of rehg aug 30 1990 the alaska supreme court has reasoned that these exceptional features of the insurance contract justified the creation of a tort action for an insurers bad faith breach transamerica premier ins 856 p2d at 774in deciding against extending the tort cause of action to situations other than the ones described above the alaska supreme court has emphasized that the public policy considerations that formed the basis for extension of the tort cause of action were not present in other circumstances for example in municipality of anchorage v gentile the alaska supreme court considered whether there should be a cause of action in tort for the breach of the implied covenant of good faith and fair dealing where the municipality of anchorage reduced the postretirement medical benefits of its retired police officers and firefighters 922 p2d at 252 in deciding against allowing a tort cause of action the alaska supreme court determined that pjublic policy concerns do not require the imposition of tort liability in this case id at 261 in particular the alaska supreme court reasoned that the underlying concern that warranted a tort cause of action is that without the threat of tort liability insurance companies may be encouraged to delay payment of claims to their insureds with an eye toward settling for a lesser amount than due under the policy id internal quotation marks omitted the alaska supreme court therefore held that the case law that allowed for a tort cause of action related to insurance contracts simply did not apply in that caseit is unnecessary to decide here whether the municipality would be subject to tort liability for failing to deal fairly and in good faith in the settlement of a covered insurance claim that is not the nature of the plaintiffs claim they instead claim that the municipality breached the covenant of good faith and fair dealing by unilaterally decreasing the insurance coverage required by the collective bargaining agreements although insurance is the topic in dispute the municipality breached the collective bargaining agreements not policies of insuranceid thus thealaska supreme court recognized that it was not just the subject matter of insurance that yields this tort cause of action but that special factors must be also be present and it also indicated an aversion to extending the cases providing for a cause of action in tort past the circumstances of those casesthe parties have not cited any case where an alaska court either applied pr declined to apply a tort cause of action for a breach of the implied covenant of good faith and fair dealing in circumstances similar to the case at hand nor has the court found any such case in its own research in the absence of such authority and in light of the public policy considerations explicitly relied on by the alaska courts and persuasive authority from outside the district the court holds that plaintiffs cannot bring a separate claim for the breach of the implied covenant in this case the public policy considerations that alaska courts have relied on in other insurance cases are decidedly not present in this case simply put this is not a case where there are standardized contract terms where the insurer has superior bargaining power and where the insured seeks protection against calamity instead of commercial advantage see transamerica premier ins 856 p2d at 774 see also ppm 3 purchase of the policy is suitable only for persons of substantial economic means and financial sophistication each policy owner will be required to represent that he or she meets certain minimum financial and other suitability standards while the contract is technically an insurance contract it is much more similar to an average commercial contract than to a typical insurance contract nor is this a case about an insurer resolving claims covered by its insurance policy see gentile 922 p2d at 261 the court also finds the reasoning in michael s rulle family dynasty trust v agl life assurance co no 10cv231 2010 wl 2721029 edpa july 7 2010 instructive in that case which is very similar to this case the eastern district of pennsylvania reasoned thatalthough insurance might play a tangential role here it is not the center of the dispute this claim revolves around the investment made as part of a life insurance policy and has nothing to do with the insurance aspect of the policy there is no allegation that agl failed to investigate a claim or that the plaintiff was in an unequal bargaining position and hence found itself signing a contract of adhesion additionally the plaintiff in this case is the rulle trust which is not a person nor is it the insured finally the agl ppm includes minimum suitability requirements for potential policy owners given the circumstances surrounding this policy it is not clear that alaska would recognize a tort for breach of the implied covenant of good faith and fair dealing hereid at 13 citation and internal quotation marks omitted based on this reasoning and the reasoning in the alaska cases see gentile 922 p2d at 260 the covenant of good faith and fair dealing primarily sounds in contract transamerica premier ins 856 p2d at 774 holding that an action for breach of the implied covenant of good faith and fair dealing for a normal commercial contract sounds in contract alone the court declines to allow a cause of action in tort for the breach of the implied duty of good faith and fair dealing in this context and the court grants defendants motion to dismiss this claim5 dutybased tort claimsa choice of lawas stated above plaintiffs tort claims are not governed by the policys choiceoflaw provision under new york law negligence sounds in tort see aegis ins servs inc v 7 world trade co lp 737 f3d 166 177 2d cir2013 un der new york law because a finding of negligence must be based on the breach of a duty a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party citation and internal quotation marks omitted as does negligent misrepresentation see j r elecs inc v business decision n am inc no 12cv7497 2013 wl 5203134 at 6 sdny sept 16 2013 discussing the tort of negligent representation breach of fiduciary duty see in re pfeifer no 12cv13852 2013 wl 5746125 at 7 bankrsdny oct 23 2013 categorizing the breach of fiduciary duty as a tort claim under new york law and professional malpractice see indus quick search inc v miller rosado algois llp no 09cv1340 2013 wl 4048324 at 3 edny aug 9 2013 in this case the plaintiffs primary claim is for legal malpractice which in new york is a species of negligence ie a tort internal quotation marks omitted therefore the court must undertake an independent analysis under new york choiceoflaw rules to identify which states law should apply to the question of whether plaintiffs have stated a claim under these causes of actionthe new york court of appeals has held that the relevant analytical approach to choice of law in tort actions in new york is the interest analysis globalnet fin com inc v frank crystal co inc 449 f3d 377 384 2d cir2006 brackets and internal quotation marks omitted see also empire city capital corp v citibank na 2011 wl 4484453 at 3 sdny sept 28 2011 same new yorks interest analysis requires that the law of the jurisdiction having the greatest interest in the litigation will be applied and the only facts or contacts which obtain significance in defining state interests are those which relate to the purpose of the particular law in conflict in re thelen llp 736 f3d 213 219 2d cir2013 brackets alteration and internal quotation marks omitted certified question accepted sub nom thelen llp v seyfarth shaw llp 22 ny3d 1017 981 nys2d 349 4 ne3d 359 2013 the significant contacts are almost exclusively the parties domiciles and the locus of the tort id at 21920 internal quotation marks omitted under the interestanalysis test torts are divided into two types conductregulating rules such as rules of the road and lossallocation rules such as those limiting damages in wrongful death actions vicarious liability rules or immunities from suit id at 220 internal quotation marks omitted if conflicting conductregulating laws are at issue the law of the jurisdiction where the tort occurred will generally apply because that jurisdiction has the greatest interest in regulating behavior within its borders id internal quotation marks omitted a tort occurs in the place where the injury was inflicted which is generally where the plaintiffs are located lyman commerce solutions inc v lung no 12cv4398 2013 wl 4734898 at 4 sdny aug 30 2013 see also in re optimal us litig 837 fsupp2d 244 261 sdny2011 same feldman law grp pc v liberty mut ins co 819 fsupp2d 247 256 sdny2011 same affd 476 fedappx 913 2d cir2012 here plaintiffs tort claims are conductregulating not lossallocating see defs mem 11 the torts plaintiffs alleged in this case are conductrelating pis mem 3 1013 not disputing defendants position and choosing not to conduct a choice of law analysis except with regard to the statute of limitations issue and merely arguing that they state valid claims under either new york or alaska law see also mark andrew of the palm beaches ltd v gmac commercial mortg corp 265 fsupp2d 366 378 sdny2003 noting that negligence and negligentmisrepresentation claims are based on conduct regulating rules rather than loss allocating rules affd 96 fedappx 750 2d cir2004 wolfson v bruno 844 fsupp2d 348 355 sdny2011 applying conductregulating analysis to legal malpractice claim and collecting cases burns v delaware charter guarantee trust co 805 fsupp2d 12 23 sdny2011 here the plaintiffs allege that the defendants breached their duties of care and were otherwise negligent in fulfilling their obligations to the plaintiffs these alleged legal duties are conductregulating on reconsideration no 09cv8025 2011 wl 3837146 sdny aug 30 2011applying that analysis to the instant action the court finds that the alleged torts occurred in alaska for the same reasons that the alaska statute of limitations applies as explained above thus for the purposes of new yorks interest analysis any torts that defendant committed against plaintiffs occurred in alaska however the law of the state that new yorks interest analysis yields will only be applied if it conflicts with the law of new york if there is no conflict between the law of the two jurisdictions then new york law will apply see lyman 2013 wl 4734898 at 3 since there is no conflict of law with respect to these sections new york law applies to the actual fraud claims alleged in the complaint hayden capital usa llc v northstar agric indus llc no 11cv594 2012 wl 2953055 at 4 sdny july 16 2012 there is no actual conflict between new york and north dakota law and new york law applies internal quotation marks omitted admiral ins co v adges no 11cv8289 2012 wl 2426541 at 2 sdny june 27 2012 no defendant has shown a conflict between new yorks law and that of any other state accordingly the court applies new york law paradigm biodevices inc v viscogliosi bros llc 842 fsupp2d 661 665 sdny2012 new york law applies to the fraudulent transfer claim in the present action because there is no material conflict between the laws of new york and massachusetts governing this claim therefore if new york and alaska law conflict in any material way as to any of plaintiffs asserted causes of action the court will apply alaska law otherwise the court will apply new york lawb negligenceunder alaska and new york law the elements of a negligence claim are 1 that the defendant owed the plaintiff a duty 2 that the defendant breached that duty 3 that the plaintiff was injured and 4 that the breach of the duty was the proximate cause of the plaintiffs injury see eg mitchell v icolari 108 ad3d 600 969 nys2d 503 505 2013 edenshaw v safeway inc 186 p3d 568 571 alaska 2008defendant argues that since plaintiffs claims arise out of an arms length transaction and nothing more there are no duties except those in the policy and therefore plaintiffs negligence claim should be dismissed defs mem 20 moreover defendant argues that alaska law does not permit a claim for negligent performance of a contract seeking to recover purely economic losses id at 21 citing st denis v dept of hous urban dev 900 fsupp 1194 120004 dalaska 1995 alaska pac assurance co 794 p2d at 946 plaintiffs respond that defendant is not necessarily insulated from tort liability by the existence of a contract as there is a legal duty independent of the contract pis mem 1420 in particular plaintiffs argue that there is a duty of care arising out of independent characteristics of the relationship between plaintiffs and defendant id at 1617first defendant is incorrect in its argument that alaska law will not permit a claim for negligence under these circumstances defs mem 2122 defendant cites two cases in support of this position neither of which requires the result it seeks first in alaska pacific assurance company v collins the alaska supreme court rejected a claim for negligent breach of an insurance contract however language in that case actually supports plaintiffs claim see alaska pac assurance 794 p2d at 946 agreeing with the argument that an insurer may be held liable for torts independent from its contractual duties such as fraud but that an action for negligence in breaching a specific contractual duty sounds in contract as defendant correctly argued in the context of plaintiffs breach of contract claim plaintiffs do not successfully allege the breach of a specific contractual duty rather they allege a negligence tort apart from the enumerated contractual duty to provide an annual statement second defendant is correct that reasoning in dicta by the district court for the district of alaska in st denis v department of housing and urban development did indicate that alaska might not allow tort claims based on purely economic loss see st denis 900 fsupp at 120004 it appears that alaska cases foreshadow a general rule precluding negligence actions by those in privity where only economic losses are alleged however this appearance has been firmly rebutted in subsequent alaska supreme court decisions eleven years after the st denis decision the alaska supreme court heldwe have recognized that promises set forth in a contract must be enforced by an action on that contract only where the duty breached is one imposed by law such as a traditional tort law duty furthering social policy may an action between contracting parties sound in tort when a partys actions violate a general duty of care its actions may give rise to an action in tort even if the violation also breaches a contractjarvis v ensminger 134 p3d 353 363 alaska 2006 brackets and internal quotation marks omitted see also banco multiple santa cruz sa v moreno 888 fsupp2d 356 36869 edny2012 holding the same under new york law in reaching this conclusion the alaska supreme court in fact quoted the new york court of appealsa tort obligation is a duty imposed by law to avoid causing injury to others it is apart from and independent of promises made and therefore apart from the manifested intention of the parties thus a defendant may be liable in tort when it has breached a duty of reasonable care distinct from its contractual obligations or when it has engaged in tortious conduct separate and apart from its failure to fulfill its contractual obligationsjarvis 134 p3d at 363 brackets and internal quotation marks omitted quoting ny univ 639 nys2d 283 662 ne2d at 767 thus under alaska law as under new york law a plaintiff may bring a tort claim when the duty breached is imposed by law rather than specifically provided by contract see transamerica premier ins 856 p2d at 772 in the case of an ordinary commercial contract between sophisticated business entities a tort for breach arises only when a partys conduct rises to the level of a traditionally recognized tort quoting arco alaska inc v akers 753 p2d 1150 1154 alaska 1988 thus plaintiffs negligence claim would be cognizable if there was a duty of care distinct from what is required under the contractunder alaska law if no statute regulation contract case law or preexisting relationship establishes the ex istence of a duty of care the question of whether a duty exists is essentially a public policy question mcgrew v state dept of health soc servs div of family youth servs 106 p3d 319 322 alaska 2005 the public policy question involves the following considerationsthe foreseeability of harm to the plaintiff the degree of certainty that the plaintiff suffered injury the closeness of the connection between the defendants conduct and the injury suffered the moral blame attached to the defendants conduct the policy of preventing future harm the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach and the availability cost and prevalence of insurance for the risk involveddsw v fairbanks n star borough sch dist 628 p2d 554 555 alaska 1981 similarly under new york law when determining the existence and scope of a duty courts consider the relationship of the parties whether the plaintiff was within the zone of foreseeable harm whether the injury was foreseeable and other public policy considerations di ponzio v riordan 89 ny2d 578 657 nys2d 377 679 ne2d 616 618 1997 thus while these tests are stated slightly differently they involve the same general considerations as the parties have not alerted the court to an actual conflict between new york and alaska law and the court has not found a conflict it will apply new york law see interstate foods inc v lehmann no 06cv13469 2008 wl 4443850 at 3 sdny sept 30 2008 the parties have not submitted any evidence that there is actually a conflict of law between the law of new york and the law of new jersey with respect to breach of fiduciary duty therefore the court will apply new york law to the plaintiffs claimplaintiffs assert that there were several duties owed to them by defendant that defendant breached to properly vet funds to monitor developments at the funds and provide the trust with any material information regarding the funds and to process the redemption requests accurately and in a timely fashion sac 147 as explained above any claims based on the failure to effect the redemption request are timebarred thus the remaining claims relate to the vetting and the provision of information to the trustplaintiffs fail to state a negligence claim regarding the failure to provide information regarding ssr here plaintiffs have not alleged the breach of a legal duty independent from defendants contractual obligations rather the contract defines the scope of defendants duty 0nce a contractual relationship was entered into between the parties that contract defined the scope of the duties owed to the plaintiff vought v teachers coll columbia univ 127 ad2d 654 511 nys2d 880 88182 1987 in particular where the contract having been negotiated by sophisticated and counseled parties provides that defendant must provide annual statements see policy 22 ppm 30 plaintiffs cannot assert that there was an independent duty in tort to provide additional information in particular here plaintiffs knew at the time of the contract that they would have limited information regarding the underlying investments in fact they specifically contracted that they would not have contact with the underlying fund managers for their own benefit to preserve the tax benefits associated with the policy sac 2 see also id 19 4142 45 101 148 161 172 second dec 20 2002 letter agreement 2 policyowner will not directly or indirectly influence or attempt to influence the managers selection purchase retention or sale of any investment within the fund ppm 32 explaining that one factor considered in determining whether a variable life insurance contract owner is an owner of the assets invested through the policy for tax purposes is whether there is any contact between a variable contract owner and the investment advisor relating to the investment decisions made id at 33 no policy owner should ever attempt to contact an investment advisor rather any and all questions comments or instructions regarding the policy should be addressed only to the company emphasis omitted and plaintiffs knew that the information provided by the underlying funds including ssr would be limited see august 2005 ssr tear sheet 2 listing as one of ssrs risk factors that the fund is not subject to the same regulatory requirements as mutual funds id at 4 warning that ssr will have only limited access to information about the funds ssr invests in plaintiffs who were required to be persons of financial sophistication including being accredited investors qualified purchases and having sufficient knowledge and experience in investments of this type knew that defendant would have access to more information than plaintiffs regarding the underlying investments and indeed specifically contracted for that imbalance ppm 3 10 32 knowing this plaintiffs specifically contracted for the provision of annual statements regarding their investments and nothing else ppm 30 policy 22 given these facts the court does not find that there was a duty imposed by law to provide additional information if plaintiffs wanted defendant to provide all relevant information about the underlying investment funds they could have and should have contracted for such see document sec sys inc v couponscom inc 2013 wl 1945954 at 5 wdny may 9 2013 holding that where two parties dealt at arms length and had an express written agreement covering the subject matter of the dispute that express agreement set forth the duty owed and there was not an additional duty imposed in tort in re natl century fin enterprises inc 846 fsupp2d 828 858 sdohio 2012 applying new york law and noting that the plaintiff is unable to explain how an independent duty could exist when sections 10 and 12 of the agreement defined the scope of the defendants alleged duty of care with respect to the information it supplied to the plaintiff adhered to on denial of reconsideration sub nom crown cork seal co master ret trust v credit suisse first boston corp nos 12cv5803 et al 2013 wl 490717 sdny feb 6 2013 intl ore fertilizer corp v sgs control servs inc 743 fsupp 250 258 sdny1990 since the duty to inspect arose only by virtue of the contract which was freely negotiated by the parties there can be no independent tort liability for failing to take certain steps as part of that inspection affd 38 f3d 1279 2d cir1994plaintiffs provide no support for their theory that defendant could be required to provide information in tort when the contract specifically addresses what information defendant must provide plaintiffs primarily rely on two cases bayerische landesbank new york branch v aladdin capital management llc 692 f3d 42 2d cir2012 and banco multiple santa cruz sa v moreno 888 fsupp2d 356 edny2012 however neither case helps plaintiffs in bayerische landesbank the second circuit held that where an independent tort duty is present a plaintiff may maintain both tort and contract claims arising out of the same allegedly wrongful conduct but if the basis of a partys claim is a breach of solely contractual obligations such that the plaintiff is merely seeking to obtain the benefit of the contractual bargain through an action in tort the claim is precluded as duplicative 692 f3d at 58 in that case the second circuit concluded that the plaintiff had alleged a legal duty though assessed largely on the standard of care and the other obligations set forth in the contract that would arise out of the independent characteristics of the relationship where the plaintiff alleged that it relied on marketing representations from the defendants regarding how they would manage financial portfolios id at 5859 however the factual issue in that case is markedly different from this case in bayerische landesbank the plaintiff alleged that the defendants represented that their interests were aligned with investors that the portfolio would consist of investment grade high quality reference entities that the defendants would manage the reference portfolio in a conservative and defensive manner and that they would act in good faith using a degree of skill care diligence and attention consistent with the practice and procedures followed by reasonable and prudent institutional managers of national standing for similar investment portfolios id internal quotation marks omitted plaintiffs have alleged no such representations here moreover bayerische landesbank does not address the issue here which is plaintiffs attempt to require defendant to do something in tort beyond what was specifically provided for in contractbanco multiple is similarly inapposite in banco multiple the court held that though new york generally treats relationships between insurance companies and policyholders as contractual only because variable annuities are more like investment vehicles than traditional insurance it would allow a negligence action against a company that issued a variable annuity 888 fsupp2d at 36970 374 the court also held that an issuer of a variable annuity could be liable in tort for negligence arising out of independent legal duties in connection with the performance of its contractual duties in that case negligence in processing withdrawal requests where the court found a legal duty independent of the contract id at 374 however the issue in that case is simply not analogous to the one at hand additionally there are cases that hold that plaintiffs might be able to allege legal duties in addition to those explicitly provided for in financial services documents see eg pension comm of the univ of montreal pension plan v banc of am sec llc 716 fsupp2d 236 24243 sdny2010 however those cases also do not address the issue at hand which is whether there can be a negligence duty to provide more information than what is specifically provided for in a contract for the above reasons the court holds that plaintiffs have not plausibly pleaded a claim for negligence in connection with the failure to provide information not required under the contractfinally under the policy defendant was to establish investment options see policy 17 ppm 16 plaintiffs allege that defendant was negligent in putting ssr on its platform the issue here is whether plaintiffs have alleged a duty of care in vetting investment options independent of the contract that was breached by a failure to use reasonable care in vetting in this case plaintiffs have adequately pleaded the existence of a duty that arises from circumstances extraneous to and not constituting elements of the contract bayerische landesbank 692 f3d at 58 plaintiffs allege that they were unable to access information regarding ssr as they were prohibited by contract from communicating with ssr in order to protect the tax benefits that the structure of the investment provided and because the fund did not release information publicly sac 2 15 43 45 moreover the injury to plaintiffsfinancial loss from investing in a fund that allegedly was managed by two unqualified people and where gunlicks served in an allegedly selfinterested rolewas foreseeable see lauer v city of new york 95 ny2d 95 711 nys2d 112 733 ne2d 184 193 2000 whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to the circumstances he would cause danger of injury to the person or property of the other a duty arises to use ordinary care and skill to avoid such danger internal quotation marks omitted see also banco multiple 888 fsupp2d at 368 n 14 new york courts frequently hold that a person undertaking to perform work is charged with the common law duty to exercise reasonable care and skill in the performance of the work alteration and internal quotation marks omitted plaintiffs have adequately alleged that the circumstances known to all parties put defendant in a position to know that not acting with ordinary skill and care with regard to vetting ssr before putting it on the platform would create a danger of financial injury to plaintiffs especially because according to plaintiffs allegations defendant had access to material nonpublic information about ssr that would impact whether an investor would invest in the fund public policy considerations also support the finding of a duty to exercise reasonable care in vetting as the duty the court is recognizing is highly limited would be easy to comply with and protects investorsnext plaintiffs must allege that defendant breached the duty plaintiffs have done so they allege that defendant either failed to vet ssr at all or more likely haphazardly ignored critical information in its rush to become a leading carrier of variable universal life policies which involved signing up as many funds as possible as quickly as possible to defendants platform sac 10 see also id 114 in particular plaintiffs allege that defendant likely ignored ssrs managers stunning lack of relevant experience claiming that one manager had no material experience in the complex world of structured finance corporate receivables financing and assetbased lending while the other had no credit or lending experience and just four years of reported business experience id 11 see also id 111 alleging that neither helland nor law had the requisite material experience in the arcane and complex world of structured finance corporate receivables financing and assetbased lending second plaintiffs allege that defendant also likely ignored ssrs lucrative overtly conflicted partnership with gunlicks id 12 these pleadings plausibly allege that defendant breached its duty of due care in placing ssr on its platformthird plaintiffs must allege that they were injured they have done so as they allege that the trusts capital has been frozen its ssr investment account has steadily declined in stated value and it is now highly likely that it will end with a zero or de minimus balance id 8finally plaintiffs must allege that the breach of the duty was the proximate cause of plaintiffs injury plaintiffs have also satisfied this requirement specifically plaintiffs allege that had they known that defendant had not properly vetted ssr the trust would have made a redemption request immediately and that after ssr suspended redemptions in october 2008 the trust could do nothing as all of its investment in ssr was lost id 19 for the above reasons the court holds that plaintiffs adequately pleaded a claim for negligence in connection with the vetting of ssrc negligent misrepresentationto state a claim for negligent misrepresentation under new york law a plaintiff must allege 1 carelessness in imparting words 2 upon which others were expected to rely 3 and upon which they did act or failed to act 4 to their damage the action also requires that 5 the declarant express the words directly with knowledge or notice that they will be acted upon to one to whom the declarant is bound by some relation or duty of care dallas aerospace inc v cis air corp 352 f3d 775 788 2d cir2003 citing white v guarente 43 ny2d 356 401 nys2d 474 372 ne2d 315 319 1977 see woori bank v citigroup global markets inc no 12cv3868 2014 wl 3844778 at 5 sdny aug 5 2014 same see also beach v citigroup alternative investments llc no 12cv7717 2014 wl 904650 at 21 sdny mar 7 2014 liability for negligent misrepresentation has been imposed only on those persons who possess unique or specialized expertise or who are in a special position of confidence and trust with the injured party such that reliance on the negligent misrepresentation is justified alteration in original quoting kimmell v schaefer 89 ny2d 257 652 nys2d 715 675 ne2d 450 454 1996under alaska law the tort of negligent misrepresentation consists of the following elements first the tortfeasor must have made a statement in the course of business employment or some other enterprise in which he had a pecuniary interest second the statement must have been false when the tortfeasor made it third the victim must have justifiably relied upon the statement to his detriment fourth the tortfeasor must have failed to exercise reasonable care when making the statement s alaska carpenters health sec trust fund v jones 177 p3d 844 857 alaska 2008 footnotes omitted defendant cites howarth v pfeifer 443 p2d 39 alaska 1968 which held that there must be a relationship between the parties whether growing out of contract or otherwise such that in morals and good conscience the plaintiff has the right to rely upon the defendant for information and the latter owes a duty to give the information with care as evidence that alaska law also requires a special relationship to establish a negligent misrepresentation claim id at 43 this proposition is not supported either by howarth or by more recent case law in howarth the quotation relied upon by defendant was made in the context of whether and what type of privity is required to establish a negligent misrepresentation claim id however this language has not been embraced by alaska courts instead they have followed the guidance of the restatement of torts which does not require a special relationship see eg willard v khotol servs corp 171 p3d 108 11819 alaska 2007 providing the fourfactor test discussed above and citing to the restate ment second of torts 5521 reeves v alyeska pipeline serv co 56 p3d 660 67071 alaska 2002 same valdez fisheries dev assn inc v alyeska pipeline serv co 45 p3d 657 671 alaska 2002 same that said there is one relevant situation under alaska law where the existence of a duty is required for a negligent misrepresentation claim to make a negligent misrepresentation claim based on an omission there must be a duty to disclose specifically under alaska law an omission can constitute a false statement where there is a duty to disclose a duty to disclose may arise when facts are concealed or unlikely to be discovered because of the special relationship between the parties the course of their dealings or the nature of the fact itself us ex rel n star terminal stevedore co v nugget constr inc 445 fsupp2d 1063 1074 dalaska 2006 citations and internal quotation marks omitted because of this conflict between new york and alaska law the court will apply alaska lawfirst plaintiffs allege that defendant recklessly or worse deliberately overstated ssrs assets under management by approximately 100 in a report provided to buchalter in his role as advisor in 2007 sac 18 specifically plaintiffs allege that buchalter on behalf of the trust requested more information about ssr and defendant reported that ssr had 169 million in assets under management but in fact ssr had only approximately half that amount based on the august 2007 aima disclosure questionnaire containing information supplied by ssr id 141 plaintiffs allege that the higher number would misleadingly indicate increased investor acceptance of ssr a misstatement of ssrs presence in the markets in which it invested and most importantly a misstatement of ssrs implied ability to meet potential redemption requests from investors id 18 defendant argues that plaintiffs are simply misreading the documents by comparing a disclosure of gross assets in one document to net assets in theother defs mem 22 defendant explainsthe may 2007 update shows that as of march 31 2007 ssr had 169 million in assets and the funds general partner had 1955 million in assets which included ssrs assets and the assets of the separate ssr ii fund not at issue in this case the aima questionnaire shows that as of july 2007 ssr had 1707 million in assets and the funds general partner had 1985 million in assets which included 278 million in assets in the ssr ii fund the aima questionnaire explains these asset totals are gross as they include the funds leveraged or borrowed assets the aima questionnaire further disclosed that net of leverage ssr had 867 million in assets and ssr ii had 157 million in assets for a total of 1024 million in unleveraged assets under the general partners management plaintiffs have mistakenly compared ssrs gross assets in march 2007 169 million to ssrs net assets in july 2007 867 millionid citations and footnotes omitted plaintiffs respond that defendant never disclosed that it was reporting leveraged assets instead simply reporting fund assets as 169 million pis mem 21 plaintiffs argue this is a misrepresentation because actual assets under management is the true measure utilized by the hedge fund industry and defendant previously represented ssrs actual not leveraged assets under management of 473 million when presenting the investment option to buchalterthe trust in 2005 id at 21there are two reasons why this claim fails first the alleged misrepresentation was made by ssr not by defendant as the may 2007 disclosure was an ssr docu ment a fact evident from the document itself and not contested by plaintiffs counsel at oral argument see may 2007 ssr tear sheet to the extent defendant passed on this document there are no allegations that defendant knew that the document allegedly contained false statements or that defendant was negligent or reckless as to this fact see diblik v marey 166 p3d 23 26 alaska 2007 one element of negligent misrepresentation is the failure to exercise reasonable care or competence in obtaining or communicating the misinformationsecond there was no misrepresentation in may 2007 ssr reported its fund assets for the ssr id fund as 169 million see may 2007 ssr tear sheet this roughly matches the 2007 aima questionnaire from a few months later which reported that the size of the fund was 1707 million gross 867 million net sac ex e aimas illustrative questionnaire for due diligence of fund of hedge fund managers ssr aima questionnaire at 16 plaintiffs argue that defendant previously represented ssrs actual not leveraged assets under management of 473 million when presenting the investment option to buehalterthe trust in 2005 pis mem 21 see also august 2006 ssr tear sheet 1 plaintiffs apparently infer that the 473 million reported in 2005 is net not gross see august 2005 ssr tear sheet 1 from the fact that the aima questionnaire states that the assets under management in 2005 were 704 million thus conceivably indicating that 704 million was the leveraged number and 473 million was the unleveraged number see ssr aima questionnaire 6 however a close reading of the document shows this is not the case rather the discrepancy between the aima questionnaires 704 million number and the ssr documents 473 million number for 2005 is due to the fact that the 473 million represents assets that correspond only to ssrs insurance dedicated id fund while the 704 million represents the assets that correspond both to the ssr id fund and the ssr ii fund furthermore the may 2007 tear sheet states beginning in may 2006 the fund began employing modest leverage which the managers intend to limit to no more than one dollar of leverage per dollar of fund equity may 2007 ssr tear sheet 1 thus the fact that ssr reported unleveraged assets in 2005 when it was not employing leverage says nothing about whether ssr would report leveraged or unleveraged assets in 2007 furthermore the inclusion of that sentence on the may 2007 statement should have raised the possibility to plaintiffs that ssr was now reporting leveraged assets while the 2007 ssr document was ambiguous as to whether it was disclosing leveraged or unleveraged fund assets it did not misrepresent leveraged fund assets as unleveraged fund assetsnext plaintiffs allege that ssrs administrator had been replaced in january 2007 tellingly when ssr was in the process of closing their books for the 2006 year sac 16 plaintiffs further allege that defendant sent buchalter a report in june 2007 erroneously indicating that the replaced ssr administrator still was in place id defendant does not dispute that plaintiffs plausibly pleaded that defendant made a misrepresentation however the negligent misrepresentation claim must still be dismissed this alleged misrepresentation was made in the same document that contained the alleged misrepresentation regarding ssrs assets under management see sac 138 may 2007 ssr tear sheet again this alleged misrepresentation was made by ssr not by defendant and plaintiffs do not allege that defendant knew or was reckless or negligent to the fact that the ssr document it passed on to plaintiffs allegedly contained misrepresentations therefore this claim is dismissed see diblik 166 p3d at 26 one element of negligent misrepresentation is the failure to exercise reasonable care or competence in obtaining or communicating the misinformationfinally plaintiffs allege that defendant misrepresented that it vetted ssr when in fact defendant appears not to have vetted ssr at all sac 10 plaintiffs allege generally that defendant made representations as to researching and vetting of platform funds and monitoring and oversight of the investments id 56 plaintiffs also allege that defendant did not inform the trustee or the advisors of its failure to properly vet ssr id 143 defendant argues that the email plaintiffs rely upon shows that defendant made no such representation regarding vetting defs mem 23 rather defendant argues the email merely identifies ssr as one of the insurance dedicated funds available through defendant which it indisputably was and that plaintiffs claim to have subjectively understood the email to imply a vetting of ssr is irrelevant id however defendants general counsel emailed buchalters counsel in october 2003 to state that he was in the process of adding ssr to defendants platform in the very near future sac 113 internal quotation marks omitted see also id ex l email from joseph a fillip jr to william lipkind oct 17 2003 later defendants director of research sent buchalter an email identifying ssr as one of the insurance dedicated funds available through defendants platform sac 57 agl life assurance company insurance dedicated funds and plaintiffs allege that ssr was one of only 27 funds chosen from the available pool of an estimated 75 to 100 insurancededicated hedge funds in existence to be put on defendants platform sac 4 see also id 60 at the time defendant presented ssr as an approved investment choice there were an estimated 75 to 100 insurancededicated hedge funds in existence defendant presented just 27 insurancededicated funds clearly indicating that it had utilized specific criteria to select said funds and had found that the majority of available funds were not appropriate for its policyholders as such defendant affirmatively preselected ssr from a much larger universe as especially suitable for policyholders such as the trust based on defendants purported vetting and determination utilizing specific criteria considering the allegations and the emails at issue the court concludes that plaintiffs have adequately pleaded an implicit misrepresentation by defendantwhat is left of defendants arguments against the negligent misrepresentation claim is its contention that plaintiffs cannot state a claim for negligent misrepresentation based on assertions made to buchalter however this argument is unavailing for several reasons first that the trust instrument did not identify buchalter as an advisor does not mean that he was not an advisor to the trust as a matter of fact which is exactly what the sac alleges and must be assumed as true on this motion pis mem 22 moreover there would have been no reason for defendant to send its platform funds to buchalter and buchalter alone if defendant did not recognize that he was acting in an advisory capacity id furthermore the restatement second of torts which is followed by alaska courts with regard to the requirements for a negligent misrepresentation tort provides that liability is limited to a loss suffered by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it restatement second of torts 5522 1977 emphasis addedtherefore defendants motion to dismiss the negligent misrepresentation claim is denied as to the alleged vetting misrepresentation and granted as to the alleged fund asset and fund administrator misrepresentationsd professional malpracticeprofessional malpractice is a species of negligence under new york law malpractice means the negligence of a member of a profession in his relations with his client panteleone v envtl engg contracting no 12cv5415 2013 wl 3340483 at 6 edny july 2 2013 citation and internal quotation marks omitted to prevail on a professional malpractice claim a plaintiff must demonstrate the elements of negligence and that the breach of duty was by a professional in a departure from accepted standards of practice id internal quotation marks omitted under alaska law the elements of a cause of action for professional negligence are 1 the duty of the professional to use such skill prudence and diligence as other members of the profession commonly possess and exercise 2 a breach of that duty 3 a proximate causal connection between the negligent conduct and the resulting injury and 4 actual loss or damage resulting from the professionals negligence bukoskey v walter w shuham cpa pc 666 fsupp 181 184 dalaska 1987 internal quotation marks omitted see also johnson higgins of alaska inc v blomfield 907 p2d 1371 1374 alaska 1995 like other negligence actions a claim of professional negligence requires proof of duty breach causation and damages though stated slightly differently the baseline requirements are functionally the same under new york and alaska lawwhile acknowledging that there are distinctions between alaska and new york law on professional malpractice claims defendant asserts that there is no conflict because a life insurer is not a professional under either statefs lawsj supplemental br in supp of def phila fin life assurance cos mot to dismiss pis second am compl under rule 12b6 defis supplemental br 2 dkt no 50 however even assuming the ultimate outcomes would be the same under the laws of new york and alaska that fact would not indicate that no conflict of laws exists to be an actual conflict the difference between the laws of the two jurisdictions need not be outcomedeterminative but must provide differing substantive rules that are relevant to the matter at hand and the difference must have a significant possible effect on the outcome of the trial allgood entmt inc v dileo entmt touring inc 726 fsupp2d 307 313 sdny2010 see also lehman bros 414 f3d at 331 samehere there is a conflict under new york law the term professional encompasses those whose qualities include extensive formal learning and training licensure and regulation indicating a qualification to practice a code of conduct imposing standards beyond those accepted in the marketplace and a system of discipline for violation of those standards chase scientific research inc v nia grp inc 96 ny2d 20 725 nys2d 592 749 ne2d 161 166 2001 applying these characteristics the new york court of appeals has held that insurance agents and brokers are not professionals id 725 nys2d 592 749 ne2d at 167 therefore in new york courts have held that insurance companies or agents cannot generally be sued for professional malpractice beyond a claim for failing to follow the insureds instructions of obtaining the desired insurance highlands ins co v prg brokerage inc no 01cv2272 2004 wl 35439 at 6 sdny jan 6 2004 the new york court of appeals has found that an insured can not state a cause of action for professional negligence against his agent as no special relationship existfs between the parties that could impose a duty of care on the agent beyond that of following the insureds instructions of placing the requested insurance the court of appeals has also found that an insured may not state a claim against an insurance agent for professional malpractice since neither a broker nor agent are required to engage in extensive specialized education or training nor bound by a standard of conduct for which they might be disciplined and are therefore not considered professionals in that they generally cannot be sued for professional malpractice emphasis added citing murphy v kuhn 90 ny2d 266 660 nys2d 371 682 ne2d 972 1997 chase scientific research inc v nia group inc 96 ny2d 20 725 nys2d 592 749 ne2d 161 2001however under alaska law the definition of professional is much more inclusive in alaska professional malpractice involves a professionals breach of a duty of due care which was implied by law as a result of a contractual undertaking breck v moore 910 p2d 599 603 alaska 1996 internal quotation marks omitted a professional is a provider of skilled services johns heating serv v lamb 46 p3d 1024 1037 alaska 2002 in particular the rule adopted by the alaska supreme court is thatwhen a person holds himself out to the public in any particular employment work or trade there is an implied engagement with those who may employ him that he and his employees in that trade or business possess that reasonable degree of knowledge and skill which is ordinarily possessed by others engaged in the same business or trade and that he and they will perform the services which he may be engaged to do diligently and faithfully and with that skill and prudence ordinarily possessed and observed by others engaged in the same or like employmentid internal quotation marks omitted as such alaska courts have applied the professional negligence standard to trades persons including machinists electricians and plumbers id as well as to insurance agents see state farm life ins co v davis no 07cv164 2008 wl 5245332 at 4 dalaska dec 17 2008 generally an agent employed to effect insurance must exercise such reasonable skill and ordinary diligence as may fairly be expected from a person in his or her profession or situation in doing what is necessary to effect a policy in seeing that it effectually covers the property to be insured in selecting the insurer and so on alaska law is fundamentally the same an insurance agent owes a duty to exercise reasonable care skill and diligence in procuring insurance brackets footnote and internal quotation marks omitted see generally christianson v conradhouston ins 318 p3d 390 alaska 2014 discussing a professional negligence claim against an insurance agent as well as other classes of professionals thus defendant qualifies as a professional under alaska lawas a professional under alaska law defendant had a duty to perform the services which itwas engaged to do diligently and faithfully and with that skill and prudence ordinarily possessed and observed by others engaged in the same or like employment johns heating serv 46 p3d at 1037 because the duty existed only with respect to what defendant was engaged to do defendant cannot be liable for professional negligence for failing to provide information when the contract explicitly addressed the information defendant was required to provide for the same reasons addressed above with regard to the claim for negligence however plaintiffs do state a claim for professional negligence with regard to the allegedly inadequate vetting and misrepresentations related theretoe breach of fiduciary dutythe parties have not identified an actual conflict between alaska and new york law as to the elements of a cause of action for breach of fiduciary duty therefore the court will apply the law of new york the forum state see in re refco inc sec litig 826 fsupp2d 478 500 sdny2011 while the plaintiffs claim that new jersey law should apply it is notable that they cite primarily to new york law in their breach of fiduciary duty analysis and at any rate the parties do not indicate that there is any actual conflict between new york and new jersey law with respect to breach of fiduciary duty therefore new york law should apply footnote omitted goodman v goldman sachs co no 10cv1247 2010 wl 5186180 at 11 dnj dec 14 2010 as the defendant has not pointed to any material differences between the law of new jersey and new york the court concludes that no actual conflict exists with respect to the plaintiffs breach of fiduciary duty claim and consequently applies the law of the forum state of new jersey interstate foods 2008 wl 4443850 at 3 the parties have not submitted any evidence that there is actually a conflict of law between the law of new york and the law of new jersey with respect to breach of fiduciary duty therefore the court will apply new york law to the plaintiffs claimunder new york law the elements of a claim for breach of a fiduciary obligation are i the existence of a fiduciary duty ii a knowing breach of that duty and iii damages resulting therefrom johnson v nextel commcns inc 660 f3d 131 138 2d cir2011 under new york law a fiduciary relationship exists between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation n shipping funds i llc v icon capital corp 921 fsupp2d 94 101 sdny2013 brackets and internal quotation marks omitted see also munn v thornton 956 p2d 1213 1220 alaska 1998 a fiduciary relationship exists when one imposes a special confidence in another so that the latter in equity and good conscience is bound to act in good faith and with due regard to the interests of the one imposing the confidence internal quotation marks omitted at the heart of the fiduciary relationship lies reliance and de facto control and dominance n shipping funds 921 fsupp2d at 101 internal quotation marks omitted it is not mandatory that a fiduciary relationship be formalized in writing and the ongoing conduct between the parties may give rise to a fiduciary relationship that will be recognized by the courts official comm of unsecured creditors v donaldson lufkin jenrette sec corp no 00cv8688 2002 wl 362794 at 9 sdny mar 6 2002 internal quotation marks omitted the existence of a fiduciary duty cannot be determined by recourse to rigid formulas and often is a factual question it arises when a party reposes trust or confidence in another who thereby gains a resulting superiority or influence over the first or when a party exercises de facto control or assumes responsibility for the affairs of another in re parmalat sec litig 684 fsupp2d 453 475 sdny2010 footnotes brackets and internal quotation marks omitted affd sub nom food holdings ltd v bank of am corp 423 fedappx 73 2d cir2011 see also munn 956 p2d at 1220 we have also noted that loyalty and the disavowal of self interest are hallmarks of the fiduciarys role fiduciary relationships are generally defined by a level of trust beyond that in ordinary business relationships brackets citation and internal quotation marks omittedplaintiffs base their fiduciary duty claim on the information imbalance created by the contract and the fact that the policy invested in funds that did not release information publicly plaintiffs argue that this dynamic imposed on the trust a special confidence in defendant to act in good faith and with due regard for the best interests of the trust sac 162 the court disagrees as a primary matter the court notes that plaintiffs do not cite a single case supporting the proposition that the court may find a fiduciary relationship based on the facts alleged here see pis mem nor did the court find any such case in its own research when parties deal at arms length in a commercial transaction no relation of confidence or trust sufficient to find the existence of a fiduciary relationship will arise absent extraordinary circumstances atlantis info tech gmbh v ca inc 485 fsupp2d 224 231 edny2007 brackets and internal quotation marks omitted there is no basis here for finding such extraordinary circumstances while the information imbalance alleged by plaintiffs might otherwise be sufficient to create a question of fact as to whether a fiduciary relationship existed see id at 23132 suggesting that a fiduciary relationship may be alleged between parties in arms length relationships where there is an allegation of obvious disparity between the parties it is not sufficient here when the plaintiffs who were sophisticated investors and were represented by counsel knew that such an information disparity existed and by contract provided only that defendant was required to pass on annual statements for the funds to plaintiffs see document sec sys 2013 wl 1945954 at 5 holding that where a fiduciary duty of confidentiality would otherwise by implied by law but where there was a specific written contract addressing the duty of confidentiality no such fiduciary duty would be applied by lawadditionally plaintiffs do not allege any special relationship with defendant such that they could expect defendant to disavow its own selfinterest and act on behalf of plaintiffs for example plaintiffs have not alleged that they were entitled to rely on defendant for investment advice in one new york state case the supreme court of new york county held that where an insurance company did not serve as an investment advisor in any meaningful way in connection with a variable life insurance policy but merely passed on prospectuses such as the ppm to its insureds from the funds in which the insureds could choose investments such a relationship did not amount to an advisory role that would give rise to a fiduciary relationship ssr ii llc v john hancock life ins co usa 37 misc3d 1204a no 6527932011 2012 wl 4513354 at 11 supct sept 28 2012 judgment entered sub nom ssr ii llc v john hancock life ins co usa 2012 wl 7784415 nysupct oct 17 2012 cf mullerpaisner v tiaa 289 fedappx 461 466 2d cir2008 holding that while by their nature armslength commercial transactions ordinarily do not involve fiduciary relationships where the complaint alleges that the defendants advertise that they have a considerable infrastructure to help people and where they have made public statements that they will help their customers choose among their products a fiduciary duty claim would withstand a motion to dismiss similarly here plaintiffs do not allege that defendant acted as an investment advisor indeed they distinguish michael s rulle family dynasty trust on the ground that here plaintiffs are not alleging that defendant exercised exclusive or any control over investment decisions or that it was responsible for recognizing that ssr was a flawed investment and flndeed that plaintiffs fully admit that the trustee and advisors were exclusively responsible for making investment decisions pis mem 20 as in ssr ii the role of defendant as alleged by plaintiffs does not amount to an advisory role that gives rise to a fiduciary relationship ssr ii 2012 wl 4513354 at 11moreover and more generally several courts applying new york law have found that in the case of arms length negotiations or transactions between sophisticated financial institutions no extracontractual duty of disclosure exists banque arabe et internationale dinvestissement v maryland natl bank 57 f3d 146 158 2d cir1995 see also in re enron corp 292 br 752 78788 bankrsdny2003 holding that where the parties engaged in arms length negotiations and the contract disclaims reliance on information provided by the other party no claim can be stated for breach of fiduciary duty banco espanol de credito v sec pac natl bank 763 fsupp 36 45 sdny1991 in the case of arms length transactions between large financial institutions no fiduciary relationship exists unless one was created in the agreement while the facts of these cases are distinguishable from the facts at hand as here plaintiffs are not a large financial institution the court finds persuasive the reasoning that when sophisticated counseled parties contract and specifically contract about what information needs to be disclosed there is no basis for holding that there is an extracontractual legal duty to disclose therefore the court dismisses plaintiffs claim for breach of fiduciary duty6 unjust enrichmenta choice of lawsome controversy appears to exist as to whether a claim for unjust enrichment is governed by a contracts enforceable choiceoflaw provision or whether it is instead governed by the law of the state that new yorks interest analysis yields being a fundamentally noncontractual cause of action compare fieger 251 f3d at 394 with respect to a quantum meruit claim we are not aware of any published new york decision that has stated the appropriate conflictoflaw test to apply to such a claim under new york law a quantum meruit claim is a claim in quasicontract the plaintiffs claimed entitlement to a commission payment sounds more in contract than in tort arising as it does from the benefit allegedly conferred upon the defendants by the plaintiffs business advice accordingly the court will apply new yorks choiceoflaw analysis for contract claims to the plaintiffs quantum meruit claim citations omitted spirit locker inc v evo direct llc 696 fsupp2d 296 304 n 8 edny2010 the parties agree that new york law applies to the unjust enrichment claim and a choice of law clause in their agreement mandates the application of new york law merrill iron steel inc v yonkers contracting co inc no 05cv5042 2006 wl 2679940 at 3 sdny sept 19 2006 the eourt questions whether the plaintiff may avoid the joint payment agreements choice of law clause when the agreement underlies many of the plaintiffs arguments citing valley juice ltd v evian waters of fr inc 87 f3d 604 610 2d cir1996 in re lois 264 br at 106 the claim for unjust enrichment similarly should be governed by the law of illinois at least the great bulk of the consideration paid by the debtor to the creditors the essence of this claim for unjust enrichment was paid under the agreement and the rights if any to the return of that consideration cannot be considered without at least some consideration of the agreement and its terms footnotes omitted with innovative biodefense inc v vsp techs no 12cv3710 2013 wl 3389008 at 5 sdny july 3 2013 the plaintiff argues that the defendants unjust enrichment counterclaim raises extracontractual allegations and thus should not be governed by the choiceoflaw provision the court agrees claims for unjust enrichment or quantum meruit are noncontractual equi table remedies and are therefore outside the scope of the parties choiceoflaw provision italics footnote and internal quotation marks omitted gross found inc v goldner no 12cv1496 2012 wl 6021441 at 11 edny dec 4 2012 although the guaranty provides for kansas law unjust enrichment is an equitable claim that is outside the scope of the contracts choiceoflaw provision and may be governed by the law of a different state hettinger v kleinman 733 fsupp2d 421 444 sdny2010 the plaintiffs cite new york law and the defendants cite both new jersey and florida law with respect to plaintiffs unjust enrichment claim although the choice of law clause in the independent contractor agreement specifies florida law extracontractual claims are outside the scope of contractual choiceoflaw provisions citations and internal quotation marks omitted cargill inc v sears petroleum transp corp no 03cv580 2004 wl 3507329 at 16 ndny aug 27 2004 with the exception of the breach of contract claim which is subject to minnesota law because of the choice of law provision contained within the relevant agreement the parties common law counterclaims including for unjust enrichment are all governed by new york law if anything can be gleaned from the conflicting case law described above it is that the more an unjust enrichment claim relates to an enforceable contract the more likely it is to be considered contractual in nature for the purposes of new yorks choiceoflaw analysis given the allegations surrounding plaintiffs unjust enrichment claim this line of best fit argues in favor of applying alaska law pursuant to the policys choiceoflaw provision nevertheless because the law is not entirely clear on this point the court will apply both alaska and new york law and will only be forced to choose between the two at this stage if a conflict presents itselfb analysisto state a claim of unjust enrichment under new york law the plaintiff must allege 1 that the defendant was enriched 2 that the enrichment was at the plaintiffs expense and 3 that the circumstances are such that in equity and good conscience the defendant should return the money or benefit to the plaintiff bazak intl corp v tarrant apparel grp 347 fsupp2d 1 34 sdny2004 alteration in original footnote omitted quoting golden pac bancorp v fed deposit ins corp 273 f3d 509 519 2d cir2001 the essence of a claim for unjust enrichment is that one party has parted with money or a benefit that has been received by another at the expense of the first party id at 4 it is well settled that under new york law the existence of a valid and enforceable written contract ordinarily precludes recovery in quasi contract such as unjust enrichment for events arising out of the same subject matter id alteration in original quoting macdraw inc v cit grp equip fin inc 157 f3d 956 964 2d cir1998plaintiffs did not allege in the sac that the unjust enrichment claim was pleaded in the alternative to their breach of contract claim nor did they make this argument in their opposition papers they raised it for the first time at oral argument however under new york law plaintiffs cannot raise the unjust enrichment claim in the alternative to the breach of contract claim because there is a valid and enforceable written contract governing the subject matter beth isr med ctr v horizon blue cross blue shield of nj inc 448 f3d 573 58687 2d cir2006 quoting clarkfitzpatrick inc v long is rr co 70 ny2d 382 521 nys2d 653 516 ne2d 190 193 1987 see also air atlanta aero engg ltd v sp aircraft owner i llc 687 fsupp2d 185 196 sdny2009 dismissing unjust enrichment claim pleaded in the alternative noting that the plaintiffs failure to allege that the contracts at issue were invalid or unenforceable precluded it from seeking quasicontractual recovery for events arising out of the same subject matter courtien commcns ltd v aetna life ins co 193 fsupp2d 563 571 edny2002 the law in new york is that a party may assert causes of action in both breach of contract and quasicontract where there is a bona fide dispute concerning existence of a contract or whether the contract covers the dispute in issue or where one party wrongfully has prevented the other from performing the contract first alteration in original quoting randall v guido 238 ad2d 164 655 nys2d 527 528 1997 thus under new york law this cause of action for unjust enrichment fails and should be dismissedunder alaska law a party seeking to recover for unjust enrichment must show 1 a benefit conferred upon the defendant by the plaintiff 2 appreciation by the defendant of such benefit and 3 acceptance and retention by the defendant of such benefit under such circumstances that it would be inequitable for him to retain it without paying the value thereof ware v ware 161 p3d 1188 1197 alaska 2007 see also alaska sales serv inc v millet 735 p2d 743 746 alaska 1987 same the courts are in accord in stressing that the most significant requirement for recovery in quasicontract is that the enrichment of the defendant must be unjust that is the defendant must receive a true windfall or something for nothing in re avery 461 br 798 822 bankrdalaska 2011 internal quotation marks omitted citing millet 735 p2d at 746though the issue is slightly less clear cut than under new york law the court concludes that as under new york law the existence of a valid contract bars recovery under a theory of unjust enrichment the alaska supreme court has stated that eourts generally treat actions brought upon theories of unjust enrichment quasicontract contracts implied in law and quantum meruit as essentially the same in fact this terminology is generally employed interchangeably often within the same opinion bennett v artus 20 p3d 560 563 n 3 alaska 2001 italics and internal quotation marks omitted see also brady v state 965 p2d 1 13 n 38 alaska 1998 same and the alaska courts have stated that a plaintiff is entitled to the reasonable value of the services rendered to the defendant kinder the doctrine of quantum meruit only when a valid contract does not exist romero v cox 166 p3d 4 9 alaska 2007 internal quotation marks omitted see also krossa v all alaskan seafoods inc 37 p3d 411 419 alaska 2001 noting that plaintiffs may generally recover in quantum meruit for services rendered only when parties to a contract dispute do not have a valid contract mitford v de lasala 666 p2d 1000 1006 n 1 alaska 1983 it is well settled that proof of an express contract covering the services in question precludes relief in quantum meruit cf nicdao 839 fsupp2d at 1071 discussing the requirements for showing unjust enrichment under alaska law and stating that generally aplaintiff may not rely on a theory of implied contract where a valid express contract governs second alteration in original internal quotation marks omitted soules v ramstack 95 p3d 933 940 alaska 2004 enforcement of a valid contract does not constitute unjust enrichment additionally in nicdao v chase home finance an alaska district court dismissed an unjust enrichment claim under alaska law in part because the parties relationship was governed by valid contracts and the plaintiff could not plausibly allege a breach of the contracts at issue 839 fsupp2d at 1071 thus a plaintiff cannot recover for unjust enrichment under alaska law when a valid enforceable contract covers the services in questionthe court has not found an alaska case addressing whether a claim for unjust enrichment can be pleaded in the alternative to a breach of contract case however based on alaskas case law for a complaint to state an unjust enrichment claim that could plausibly warrant relief where a contract is also alleged to exist the plaintiff must allege in the alternative either that the contract is not valid that the contract does not apply or that the money goods or services the grant of which constituted the unjust enrichment was outside the scope of the contract otherwise under the facts alleged by the complaint the plaintiff would not be entitled to relief see us ex rel poong limpert v dick pacghemm joint venture no 03cv290 2005 wl 846204 at 2 dalaska apr 4 2005 noting that in alaska quantum meruit relief is not available to recover the value of services performed if the services are within the scope of the original contraet but if the services are beyond the scope of the contract quantum meruit relief is available and holding that the plaintiffs complaint survived a motion to dismiss because it contained two allegations that the plaintiff provided labor materials and services beyond what was required by the contract and that the defendant has not paid the plaintiff for those items footnotes omitted here plaintiffs have pleaded the existence of a contract and that the payment they made pursuant to the contract unjustly enriched defendant but have not alleged that the contract was invalid or that the payments were outside the scope of the contract even if plaintiffs are able to conclusively prove the truth of these factual allegations they still would not be entitled to relieffor the above reasons plaintiffs fail to set forth an unjust enrichment claim under either alaska or new york law and defendants motion to dismiss this claim is grantediii conclusionfor the above reasons defendants motion to dismiss is denied in part and granted in part in particular the following claims are dismissed the first cause of action for negligence relating to the failure to provide information and the failure to effect the redemption request the second cause of action for negligent misrepresentation related to the alleged misrepresentations about the fund assets and fund administrators as well as any other claims based on those alleged misrepresentations the third cause of action for breach of fiduciary duty the fourth cause of action for professional malpractice related to the failure to provide information and the failure to effect the redemption request the fifth cause of action for breach of contract the sixth cause of action for breach of the covenant of good faith and fair dealing and the seventh cause of action for unjust enrichment the motion is denied as to all other claimsso ordered1exhibit b to the sac contains several documents unnumbered page one is the policy receipt unnumbered pages two to three constitute a letter to the 2002 lawrence r buchalter alaska trust from joseph a fillip jr senior vice president and general counsel for defendant dated december 20 2002 the first dec 20 2002 letter agreement unnumbered pages four to nine constitute a letter to the 2002 lawrence r buchalter alaska trust from joseph a fillip jr senior vice president and general counsel for defendant dated december 20 2002 the second dec 20 2002 letter agreement unnumbered pages ten to twentytwo contain the flexible premium survivorship variable life payout tables unnumbered pages twentythree to fiftyone constitute the flexible premium survivorship variable life insurance contract the policy and unnumbered pages fiftytwo to sixtyfour constitute the buchalters life insurance application for ease of reference each of these documents will be cited separately2 exhibit d to the sac contains correspondence between buchalter and an employee of defendant unnumbered page one is an email from sandy geyelin to larry buchalter dated september 19 2005 unnumbered page two is a list of agl life assurance company insurance dedicated funds agl life assurance company insurance dedicated funds unnumbered page three is an email from sandy geyelin to larry buchalter dated september 21 2005 and unnumbered pages four to nine are an information sheet about ssr dated august 2005 august 2005 ssr tear sheet for ease of reference each of these documents will be cited separately3 the document also lists the significant risks associated with the investment objective and strategy of ssr august 2005 ssr tear sheet 24 in particular ssr was considering legal action against thomas petters see nov 20 fillip letter we are in contact with the managers of ssr on at least a weekly basis to monitor their activities regarding ssrs underlying investments with exposure to petters according to defendant petters was a ponzischemer and it had been discovered that ssr had exposure to investment funds he operated mem of law in supp of def phila fin life assurance cos mot to dismiss pis second am compl under rule 12b6 defs mem 7 dkt no 455 the court notes that plaintiffs allege that they received a summary of the fund in may 2007 sac 76 141 that summary provided at exhibit m states beginning in may 2006 the fund began employing modest leverage which the managers intend to limit to no more than one dollar of leverage per dollar of fund equity sac ex m may 2007 ssr tear sheet at 1 thus it appears that plaintiffs were advised of this change in investment strategy6 this term is not defined in the sac7 moreover it is not clear from the pleadings where the trust beneficiaries live or lived at the lime that the policy was issued8 the court notes as a final matter that the alaska choiceoflaw provision contained in the policy does not impact the courts analysis as to which states statute of limitations applies to buchalters claims in portfolio recovery associates llc v king 14 ny3d 410 901 nys2d 575 927 ne2d 1059 2010 the new york court of appeals considered whether the question of the timeliness of a plaintiffs claims for breach of contract and account stated was to be answered by reference to the statute of limitations of delaware the law of which the parties to the contract at issue had selected to govern their agreement in the contracts choiceoflaw provision id 901 nys2d 575 927 ne2d at 106162 the court described the choiceoflaw provision as standard stating that the contract would be governed by the laws of delaware id 901 nys2d 575 927 ne2d at 1060 the court held that the appellate division had properly concluded that the delaware choice of law clause did not require the application of the delaware threeyear statute of limitations to bar the plaintiffs claims as choice of law provisions typically apply to only substantive issues and statutes of limitations are considered procedural because they are deemed as pertaining to the remedy rather than the right id 901 nys2d 575 927 ne2d at 1061 citations and internal quotation marks omitted there being no express intention in the agreement that delawares statute of limitations was to apply to the parties dispute the choice of law provision cannot be read to encompass that limitations period id see also phillips v audio active ltd 494 f3d 378 384 2d cir2007 choice of law provisions generally implicate only the substantive law of the selected jurisdiction morson v kreindler kreindler llp 814 fsupp2d 220 225 edny2011 choice of law provisions typically apply to only substantive issues and statutes of limitations are considered procedural because they are deemed as pertaining to the remedy rather than the right quoting king 901 nys2d 575 927 ne2d at 1061here the alaska choiceoflaw provision contained in the policy is similarly standard stating only governing jurisdiction ak policy 3 and defining governing jurisdiction as the state or jurisdiction in which the policy is delivered and whose laws govern its terms id at 10
E. holding by texas supreme court that takings claim failed as a matter of law because the state took possession of the property in question under a contract with the plaintiff and therefore with the plaintiffs permission and consent
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Read the following excerpt from a US court opinion:
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codified in the FSIA, constitute an unconstitutional statutory delegation of congressional authority to the Executive in violation of the separation of powers embodied in the Constitution. In order to determine whether this statute violates the separation of powers inherent in the structure of the Constitution, we must first look at the relevant constitutional provisions. The Constitution assigns to Congress the power to define the jurisdiction of the lower federal courts. This power derives from Congress’s power in Article I “[t]o constitute tribunals inferior to the Supreme Court,” U.S. Const. art. I, § 8, and in Article III to “ordain and establish” inferior courts, U.S. Const. art. Ill, § 1. See Kline v. Burke Constr. Co., 260 U.S. 226, 233-34, 43 S.Ct. 79, 67 L.Ed. 226 (1922) ; Fair Assessment in Real Estate Ass’n v.
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What is the most suitable continuation to the opinion? Your options are:
A. recognizing that decisions of lower federal courts interpreting federal law are not binding on state courts
B. holding that ejxcept in matters governed by the federal constitution or by acts of congress the law to be applied in any case is the law of the state
C. recognizing that oath taken to honor state constitution makes it the justices duty to apply the state constitution when it does not conflict with the federal constitution
D. holding that our courts are bound by the united states supreme courts interpretation of the federal constitution
E. holding that lower federal courts derive their jurisdiction wholly from the authority of congress provided it be not extended beyond the boundaries fixed by the constitution
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Read the following excerpt from a US court opinion:
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OPINION PER CURIAM. We have for consideration proposed amendments to the Florida rules of court and forms intended to minimize the amount of unnecessary personal information included in documents filed with the courts. Reducing the amount of extraneous personal information in court records is another necessary step in the Court’s ongoing effort to provide the public with electronic access to nonconfidential court records. As part of that effort, we re cently adopted procedures that allow clerks of court to readily identify and screen from the public confidential information filed with the courts and refine the procedures for sealing and unsealing court records. See In re Amends, to Fla. Rule of Jud. Admin. 2420 & Fla. Rules of App. Pro., 31 So.3d 756, 757 (Fla.2010) . The amendments at issue here further
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What is the most suitable continuation to the opinion? Your options are:
A. holding that electronic records may be subject to a claim for conversion
B. recognizing that refinement of rule governing confidential court records was a necessary step in providing the public electronic access to court records
C. recognizing that certain conditions including rule amendments must be met before goal of providing the public electronic access to court records can be achieved
D. recognizing that intent of public records act is to provide all citizens with access to the records of all public governmental bodies
E. holding that municipal court records were admissible under official records or public documents exception
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Read the following excerpt from a US court opinion:
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Rigoberto Chavez-Gallegos, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ order affirming without opinion the decision of an immigration judge denying his motion to reopen proceedings in which he was ordered deported in absentia. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review questions of law de novo, Lin v. Gonzales, 473 F.3d 979, 981 (9th Cir.2007), and we review the denial of a motion to reopen for abuse of discretion. Id. We grant the petition for review and remand for further proceedings. The agency erred in concluding that Chavez was precluded from filing a motion to reopen on the ground that he departed the United States after he was ordered deported. See id. at 982 . The agency also abused its discretion in
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What is the most suitable continuation to the opinion? Your options are:
A. holding that the exclusionary rule generally does not apply to immigration proceedings
B. holding that 8 cfr 100323b1 does not preclude motions to reopen filed by aliens who have been deported after the completion of immigration proceedings
C. holding that the mandatory detention statute i na 236c does not apply to aliens who have been taken into immigration custody several months or years after they have been released from state custody
D. holding that aliens must be permitted to unilaterally withdraw voluntary departure requests in order to pursue motions to reopen
E. holding that the equitable tolling doctrine applies to the 90day period provided in 8 cfr 323bl2000 for filing motions to reopen based on new facts
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Read the following excerpt from a US court opinion:
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The Supreme Court recently held in Beckles v. United States, — U.S. —, 137 S.Ct. 886, 197 L.Ed.2d 145 (2017), that the Guidelines are not subject to a vagueness challenge under the Fifth Amendment’s Due Process Clause. Id. at 892, 895, 897. The Court explained that, unlike the Armed Career Criminal Act’s residual clause, which was invalidated in Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), “§ 4B1.2(a)’s residual clause is not void for vagueness.” Id. at 895, 897. Hamilton’s Virginia conviction for unlawful wounding remains a crime of violence under the residual clause post-Rec/cfes, notwithstanding that the Government conceded in the district court that the residual clause was void for vagueness. See United States v. Lee, 855 F.3d 244, 247 (4th Cir. 2017) . We therefore affirm the district court’s
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What is the most suitable continuation to the opinion? Your options are:
A. holding that virginia conviction for unlawful wounding qualified as a crime of violence under the career offender guidelines residual clause
B. holding that the state felony offense of taking indecent liberties with a child categorically constituted a crime of violence for purposes of the career offender sentencing guidelines
C. holding that north carolina crime of larceny from the person was a crime of violence under the residual clause of the career offender guideline
D. holding that reduced career offender status was nonetheless based the career offender guidelines
E. holding that the texas offense of possession of a prohibited weapon could only qualify as a crime of violence under the residual clause of 4b12a2
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Read the following excerpt from a US court opinion:
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in cash. Also, the state emphasizes that defendant does not contend that the 10-minute detention for the purpose of permitting the victim to make an identification was unlawful. The state argues that, under the circumstances, the police did not exploit or trade on the fact that they handcuffed defendant and put him in a patrol car to obtain the victim’s identification of him and that, therefore, the trial court correctly denied defendant’s motion to suppress. We agree with the state’s argument. The fact that the identification by the victim occurred after an illegal arrest does not automatically result in its exclusion from evidence if the identification would have occurred anyway as a result of the lawful stop. See generally State v. Rodriguez, 317 Or 27, 38-42, 854 P2d 399 (1993) . Here, defendant does not contest the legality
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What is the most suitable continuation to the opinion? Your options are:
A. holding that suppression of secondary evidence depends on whether the police obtained the evidence through an exploitation of the prior illegality
B. holding that an exception to the fourth amendment exclusionary rule applies where the police would have obtained the evidence if no illegality had occurred
C. holding that suppression of evidence by the prosecution of evidence favorable to the defendant upon request violates the defendants right to due process where the evidence is material
D. holding that a confession obtained by exploitation of an illegal arrest is not admissible
E. holding that because suppression of illegally obtained evidence is a form of injunctive relief suppression of defendants bank records obtained in violation of rsa chapter 359c is an appropriate remedy
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Read the following excerpt from a US court opinion:
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discretion only upon a showing that its ruling was manifestly unsupported by reason and could not have been the result of a reasoned decision.’ ” Id. at 403, 531 S.E.2d at 490 (citation omitted). In this case, the State offered four photographs into evidence, two of which were of drugs and drug paraphernalia found in defendant’s home during the search. Two more, those at issue here, were of guns found in defendant’s house. Defendant, in essence, argues that he was prejudiced because people commonly associate guns with drug dealers, and as such, the jury in this case inferred that he was in fact a drug dealer from these photographs. This inference, however, is permissible. Boyd, 177 N.C. App. at 172, 628 S.E.2d at 803. See State v. Smith, 99 N.C. App. 67, 72, 392 S.E.2d 642, 645 (1990) , cert. denied, 328 N.C. 96, 402 S.E.2d 824
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What is the most suitable continuation to the opinion? Your options are:
A. recognizing possession of cocaine as a lesserincluded offense of possession of cocaine with intent to sell
B. holding defendant could only be sentenced to a single offense under section 1244011 not both conspiracy with intent to deliver and possession with intent to deliver
C. holding that trial court could properly determine that evidence of a gun was relevant to the charge of possession with intent to sell or deliver cocaine because as a practical matter firearms are frequently involved for protection in the illegal drug trade
D. recognizing firearms as common tools of the drug trade
E. holding that there was sufficient evidence of intent to sell or deliver where the defendant was in possession of one large cocaine rock and eight smaller rocks
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Read the following excerpt from a US court opinion:
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nullify the effect of Section 55—9—104(j). See In re Bristol Assocs., Inc., 505 F.2d 1056, 1060 (3d Cir.1974); Robert H. Bowmar, Real Estate Interests as Security Under the UCC.: The Scope of Article Nine, 12 UCC L.J. 99, 107 (1979) (hereinafter Bowmar). In support of their position, the Alsups also cite to cases from other jurisdictions that have concluded that transactions involving security interests in real estate contracts, deeds of trust, mortgages, and leases are not subject to Article 9. See, e.g., Shuster v. Doane (In re Shuster), 784 F.2d 883 (8th Cir.1986) (applying Minnesota law held Article 9 did not apply to an assignment of a vendor’s interest in the real estate contract); First Nat’l Bank of Boston v. Larson (In re Kennedy Mortgage Co.), 17 B.R. 957 (Bankr.D.N.J.1982) ; In re Bristol, 505 F.2d at 1061-62 (holding a
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What is the most suitable continuation to the opinion? Your options are:
A. holding witness not licensed as real estate appraiser could not testify as expert on real estate valuation where statute made it unlawful to engage in real estate appraisal without license
B. holding that a tax appeal on real property is a lien on the real estate and not a personal obligation of the landowner
C. holding assignment of a mortgage was not subject to article 9
D. holding that granteepurchasers who acquired real estate subject to an existing mortgage while not personally lia ble did take real estate charged with the payment of the debt and such property became the primary fund out of which said mortgage must be paid
E. holding article 9 inapplicable to an assignment of a mortgage on real estate
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Read the following excerpt from a US court opinion:
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it is not fined by the IATC. Although the Club's complaint states a claim against the Minors for fraud, the Minors also argue that the small claims court properly dismissed the Club's fraud action because the action is against public policy,. The Minors argue that allowing the Club to recover the costs of an IATC sanction would discourage tavern owners from being careful when checking the identification of patrons and would undermine the legislature's efforts to place responsibility upon the tavern to prevent minors from entering the tavern. Aceord-ing to the Minors, every court to consider an action similar to the Club's fraud action against the Minors has rejected such an action on public policy grounds. Seq, eg., Sanctuary, Inc. v. Smith, 12 Kan.App.2d 38, 733 P.2d 839, 840 (1987) ; Ray's Liquors, Inc. v. Newland, 52 Ill.App.3d
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What is the most suitable continuation to the opinion? Your options are:
A. holding that strict scrutiny applies
B. holding that strict compliance is not required
C. holding that the strict regulatory policy expressed in the statute would be rendered less than strict if private clubs could pass on the costs of unknowing violations to minors in suits for fraud and allowing the club to recover the penalties imposed for the violation would undermine the legislatures policy of imposing an absolute duty upon the club
D. recognizing that a violation of the mbta is a strict liability offense
E. holding that the goal of contract interpretation is to give effect to the parties reasonable expectations which must be gleaned not only from the contract language but also from extrinsic evidence including evidence of the parties conduct goals sought to be accomplished and surrounding circum stances when the contract was negotiated citation and internal quotation marks omitted therefore this claim is dismissedip breach of covenant of good faith and fair dealinga choice of lawalthough alaska law governs plaintiffs breaehofcontract claim in case of a conflict it is somewhat less clear whether the policys choiceoflaw provision extends to plaintiffs claim that defendant violated the implied covenant of good faith and fair dealing a district court sitting in diversity in new york is bound to apply new york law to determine the scope of the contractual choiceoflaw clause new york courts decide the scope of such clauses under new york law not under the law selected by the clause fin one pub co ltd v lehman bros special fin inc 414 f3d 325 333 2d cir2005 see also trade wind distribution llc v unilux ag no 10cv5716 2011 wl 4382986 at 3 edny sept 20 2011 the scope of a choiceoflaw provision is a threshold question that a federal court sitting in diversity should decide based on the forum states law rather than the law specified in the clause commerce indus ins co v us bank natl assn no 07cv5731 2008 wl 4178474 at 4 sdny sept 3 2008 in determining the scope of the choice of law provision this court must follow new york lawthere is a reluctance on the part of new york courts to construe contractual choiceoflaw clauses broadly to encompass extracontractual causes of action lehman bros 414 f3d at 334 under new york law in order for a choiceoflaw provision to apply to claims for tort arising incident to the contract the express language of the provision must be sufficiently broad as to encompass the entire relationship between the contracting parties krock v lipsay 97 f3d 640 645 2d cir1996 internal quotation mark omitted accordingly under new york law tort claims are outside the scope of contractual choiceoflaw provisions that merely specify what law governs construction of the terms of the contract lehman bros 414 f3d at 335 see also ayco co v frisch 795 fsupp2d 193 203 ndny2011 same a number of courts applying new york choiceoflaw rules have determined that choiceoflaw provisions nearly identical to that contained in the policy which states only that alaska is the governing jurisdiction see policy 3 and defines governing jurisdiction as the state or jurisdiction in which the policy is delivered and whose laws govern its terms id at 10 are insufficiently broad to encompass tort claims see eg lehman bros 414 f3d at 335 noting that contractual language stating that this agreement will be governed by and construed in accordance with the laws of the state of new york without reference to choice of law doctrine was essentially the same as the choiceoflaw clause at issue a new york state choiceoflaw case a clause found not broad enough to reach tort claims incident to the contractual relationship emphasis omitted krock 97 f3d at 645 in the case at hand the choiceoflaw provision in the parties mortgage document stated only that this mjortgage shall be governed by and construed in accordance with the laws of the commonwealth of massachusetts we see no way such language can be read broadly enough to apply to fraudulent misrepresentation first alteration in original document sec sys inc v couponscom inc no 11cv6528 2012 wl 3597769 at 4 wdny aug 20 2012 in this case the choice of law provision is narrow since it only pertains to the nondisclosure agreement this agreement shall be governed by the applicable laws of the state of new york excluding its conflict of law provisions accordingly the court finds that the nondisclosure agreements choiceoflaw provision does not require the application of new york law to related tort claims ayco 795 fsupp2d at 203 the choice of law provision states only that this agreement shall be governed by and construed and enforced in accordance with the laws of the state of new york without giving effect to any conflict of laws provisions new york courts in this circuit have refused to extend similarly worded clauses to govern tort claims citation omitted second alteration in original therefore the court finds that the policys choiceoflaw provision applies only to those of plaintiffs causes of action that sound in contract and not to those that sound in tortbut this conclusion does not resolve the issue the court must still identify which states law it should apply to determine whether a cause of action alleging a violation of the implied covenant of good faith and fair dealing sounds in contract or in tort and once that law has been so identified what result follows the first question is a particularly important one in the context of this case as under alaska law an insureds action against its insurer for breach of the implied covenant of good faith and fair dealing sounds in tort ennen v integon indem corp 268 p3d 277 281 alaska 2012 citing state farm fire cas co v nicholson 777 p2d 1152 115657 alaska 1989 while under new york law parties to an express contract are bound by an implied duty of good faith but breach of that duty is merely a breach of the underlying contract funk v allstate ins co no 13cv5933 2013 wl 6537031 at 4 edny dec 13 2013 citing harris v provident life accident ins co 310 f3d 73 80 2d cir2002 see also aeolus down inc v credit suisse intl no 10cv8293 2011 wl 5570062 at 4 sdny nov 16 2011 new york law does not recognize a cause of action for tortious breach of an insurance contract citing ny univ v contl ins co 87 ny2d 308 639 nys2d 283 662 ne2d 763 770 1995 commerce indus ins co 2008 wl 4178474 at 3 new york law views various bad faith claims against insurance carriers as contractual in nature internal quotation marks omitted quoting new england ins co v healthcare underwriters mut ins co 352 f3d 599 606 2d cir2003 in re worldcom inc sec litig 456 fsupp2d 508 519 sdny2006 to the extent that the plaintiff is attempting to plead a breach of the duty of good faith and fair dealing then under new york law the plaintiff is required to plead as well a viable claim for breach of contract without an adequate pleading of a breach of a term of contract the plaintiff may not plead a breach of the implied duty of good faith and fair dealing thus if the court were to find that alaska law governs the characterization of plaintiffs cause of action then it would likely fall outside the scope of the policys choiceoflaw provision while if the court were to find that new york law governs the characterization of plaintiffs cause of action it would fall within the provisions scope which somewhat curiously would mean that alaska law would then govern the question of whether plaintiffs have sufficiently pleaded a cause of action for the implied covenants breachwhile the answer is not perfectly clear it appears as though the courts obligation to apply new york law to determine the scope of the contractual choiceoflaw clause lehman bros 414 f3d at 333 encompasses an obligation to apply new york law to determine whether a cause of action is contractual or tortious in nature for the purpose of analyzing whether that cause of action falls within the clauses scope in commerce industry insurance company v us bank national association another court in this district was presented with a similar question under similar facts there the defendants counterclaimed against the plaintiffs both of which were insurance companies for breach of contract and bad faith refusal to pay 2008 wl 4178474 at 1 one of the contracts in dispute contained a choiceoflaw provision which provided that the law of the state of new york would apply in the event that the parties disputed the validity or formation of the contract or the meaning interpretationf or operation of any term condition definition or provision of the contract resulting in litigation arbitration or other form of dispute resolution id at 3 the parties disputefd whether this clause coverfed defendants bad faith claim id at 4 after noting that new york courts are generally reluctant to construe choice of law provisions broadly and that extracontractual claims such as tort claims that arise only incidentally to the contract were not covered by the choice of law clause the court then looked to new york law to determine whether defendants badfaith claim was best characterized as contractual or tortious id at 4 internal quotation marks omitted the court held that new york law considers the duty to act in good faith as controlled by the implied covenant of good faith and fair dealing found in every contract and that therefore a bad faith claim is treated as a breach of the underlying contract for the purposes of applying a choice of law provision id internal quotation marks omitted collecting cases the court further noted that the basic holding of the cases to which it had cited that the same states law should govern both the contract and bad faith claims applies with equal force where the choice of law for the contract dispute is determined by a contractual choice of law provision id at 5 an unnecessarily confusing situation would result if different laws were to govern the contract and bad faith claims id internal quotation marks omitted reasoning that the breach of contract and bad faith claims are inextricably intertwined and should be governed by the laws of the same state and noting that new york law governs the claim for breach of contract the court concluded that new york law should also apply to the bad faith refusal to pay claim relating to these contracts idwhile apparently applying though not always explicitly citing to new york law other courts within this district have taken a similar approach both before and after commerce see eg torain v clear channel broad inc 651 fsupp2d 125 138 sdny2009 the court will apply texas substantive law to determine whether the plaintiff was discharged for cause under the terms of the employment agreement and whether the defendant is entitled to indemnification for the settlement payment moreover because the plaintiffs claim for breach of the implied covenant of good faith and fair dealing arises out of the employment agreement that claim is also governed by texas law comprehensive habilitation servs inc v commerce funding corp no 05cv9640 2009 wl 935665 at 10 n 14 sdny apr 7 2009 because breach of the implied covenant of good faith and fair dealing is a contractual cause of action and the choice of law provision applies to the interpretation and enforcement of the contract virginia law applies to the plaintiffs implied covenant claim arising out of the terms of the factoring agreement butvin v doubleclick inc no 99cv4727 2001 wl 228121 at 7 sdny mar 7 2001 the court notes that the parties indicated in their agreement that it would be governed and construed according to delaware law since the implied covenant of good faith is a rule of interpretation rather than a separate obligation the cjourt holds that a claim for breach of the covenant is a contractual cause of action and therefore delaware law applies to the plaintiffs claim regarding the agreement affd 22 fedappx 57 2d cir2001 in re loisusa inc 264 br 69 9798 bankrsdny2001 0ne of the plaintiffs claims which alleges violation of an implied covenant of good faith and fair dealing seeks to enforce a covenant if it is to be done it must be done as an additional term of the agreement the choiceoflaw issue with respect to that claim is not a difficult one this court has little doubt that if illinois law governs the contract it is no jump at all to find that any efforts to engraft implied terms into the agreement should be measured under the law of illinois the court finds the reasoning of these cases to be persuasive as a result it applies new york law to find that alaska law applies to plaintiffs cause of action for violation of the implied covenant of good faith and fair dealingb analysisas explained in the conflict of law analysis above there is an actual conflict between new york and alaska law on this issue and alaska law controls the covenant of good faith and fair dealing is implied in all contracts in alaska casey v semco energy inc 92 p3d 379 384 alaska 2004 generally speaking claims for breach of the duty of good faith and fair dealing are contract claims as under new york law the alaska supreme court has explainedin the case of an ordinary commercial contract between sophisticated business entities a tort for breach arises only when a partys conduct rises to the level of a traditionally recognized tort creating a broader tort remedy would disrupt the certainty of commercial transactions and allow parties to escape contractual allocation of losses therefore an action for breach of the implied covenant of good faith and fair dealing sounds in contract alonestate dept of natural res v transamerica premier ins co 856 p2d 766 774 alaska 1993 citation alteration and internal quotation marks omitted therefore under normal circumstances plaintiffs would not be able to bring a claim for the breach of the implied covenant of good faith and fair dealing separate from a breach of contract action see id holding that generally an action for breach of the implied covenant of good faith and fair dealing sounds in contract alonehowever alaska has recognized a limited cause of action in tort for the breach of the covenant of good faith and fair dealing in certain insurance contracts see municipality of anchorage v gentile 922 p2d 248 261 alaska 1996 insurance companies have been subjected to tort liability for breaching the covenant of good faith in resolving claims covered by their insurance policies see also state farm fire cas co v nicholson 111 p2d 1152 1157 alaska 1989 holding that tort liability exists for an insurers bad faith failure to settle a firstparty claim noble v natl am life ins co 128 ariz 188 624 p2d 866 868 1981 holding that tort liability applies when dealing with its insured on a claim the decision to extend a tort cause of action to these circumstances is based on public policy considerations unique to the insuredinsurer relationship in particular in allowing an insured to bring a tort cause of action for the breach of the implied covenant of good faith and fair dealing the alaska supreme court has recognized the special relationship between insurer and insured the use of standardized contract terms the insurers superior bargaining position over the insured and the fact that the insured seeks protection against calamity rather than commercial advantage transamerica premier ins 856 p2d at 774 see also nicholson 777 p2d at 1157 the adhesionary aspects of the insurance contract including the lack of bargaining strength of the insured the contracts standardized terms the motivation of the insured for entering into the transaction and the nature of the service for which the contract is executed distinguish this contract from most other noninsurance commercial contracts these features characteristic of the insurance contract make it particularly susceptible to public policy considerations alaska pac assurance co v collins 794 p2d 936 947 alaska 1990 due to the unequal bargaining positions which generally exist between insurers and insureds enforcement of this covenant is particularly important in the insurance context characterizing such actions between the insured and insurer as sounding in tort and thereby permitting tort damages will provide needed incentive to insurers to honor their implied covenant to their insureds citations and internal quotation marks omitted as amended on denial of rehg aug 30 1990 the alaska supreme court has reasoned that these exceptional features of the insurance contract justified the creation of a tort action for an insurers bad faith breach transamerica premier ins 856 p2d at 774in deciding against extending the tort cause of action to situations other than the ones described above the alaska supreme court has emphasized that the public policy considerations that formed the basis for extension of the tort cause of action were not present in other circumstances for example in municipality of anchorage v gentile the alaska supreme court considered whether there should be a cause of action in tort for the breach of the implied covenant of good faith and fair dealing where the municipality of anchorage reduced the postretirement medical benefits of its retired police officers and firefighters 922 p2d at 252 in deciding against allowing a tort cause of action the alaska supreme court determined that pjublic policy concerns do not require the imposition of tort liability in this case id at 261 in particular the alaska supreme court reasoned that the underlying concern that warranted a tort cause of action is that without the threat of tort liability insurance companies may be encouraged to delay payment of claims to their insureds with an eye toward settling for a lesser amount than due under the policy id internal quotation marks omitted the alaska supreme court therefore held that the case law that allowed for a tort cause of action related to insurance contracts simply did not apply in that caseit is unnecessary to decide here whether the municipality would be subject to tort liability for failing to deal fairly and in good faith in the settlement of a covered insurance claim that is not the nature of the plaintiffs claim they instead claim that the municipality breached the covenant of good faith and fair dealing by unilaterally decreasing the insurance coverage required by the collective bargaining agreements although insurance is the topic in dispute the municipality breached the collective bargaining agreements not policies of insuranceid thus thealaska supreme court recognized that it was not just the subject matter of insurance that yields this tort cause of action but that special factors must be also be present and it also indicated an aversion to extending the cases providing for a cause of action in tort past the circumstances of those casesthe parties have not cited any case where an alaska court either applied pr declined to apply a tort cause of action for a breach of the implied covenant of good faith and fair dealing in circumstances similar to the case at hand nor has the court found any such case in its own research in the absence of such authority and in light of the public policy considerations explicitly relied on by the alaska courts and persuasive authority from outside the district the court holds that plaintiffs cannot bring a separate claim for the breach of the implied covenant in this case the public policy considerations that alaska courts have relied on in other insurance cases are decidedly not present in this case simply put this is not a case where there are standardized contract terms where the insurer has superior bargaining power and where the insured seeks protection against calamity instead of commercial advantage see transamerica premier ins 856 p2d at 774 see also ppm 3 purchase of the policy is suitable only for persons of substantial economic means and financial sophistication each policy owner will be required to represent that he or she meets certain minimum financial and other suitability standards while the contract is technically an insurance contract it is much more similar to an average commercial contract than to a typical insurance contract nor is this a case about an insurer resolving claims covered by its insurance policy see gentile 922 p2d at 261 the court also finds the reasoning in michael s rulle family dynasty trust v agl life assurance co no 10cv231 2010 wl 2721029 edpa july 7 2010 instructive in that case which is very similar to this case the eastern district of pennsylvania reasoned thatalthough insurance might play a tangential role here it is not the center of the dispute this claim revolves around the investment made as part of a life insurance policy and has nothing to do with the insurance aspect of the policy there is no allegation that agl failed to investigate a claim or that the plaintiff was in an unequal bargaining position and hence found itself signing a contract of adhesion additionally the plaintiff in this case is the rulle trust which is not a person nor is it the insured finally the agl ppm includes minimum suitability requirements for potential policy owners given the circumstances surrounding this policy it is not clear that alaska would recognize a tort for breach of the implied covenant of good faith and fair dealing hereid at 13 citation and internal quotation marks omitted based on this reasoning and the reasoning in the alaska cases see gentile 922 p2d at 260 the covenant of good faith and fair dealing primarily sounds in contract transamerica premier ins 856 p2d at 774 holding that an action for breach of the implied covenant of good faith and fair dealing for a normal commercial contract sounds in contract alone the court declines to allow a cause of action in tort for the breach of the implied duty of good faith and fair dealing in this context and the court grants defendants motion to dismiss this claim5 dutybased tort claimsa choice of lawas stated above plaintiffs tort claims are not governed by the policys choiceoflaw provision under new york law negligence sounds in tort see aegis ins servs inc v 7 world trade co lp 737 f3d 166 177 2d cir2013 un der new york law because a finding of negligence must be based on the breach of a duty a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party citation and internal quotation marks omitted as does negligent misrepresentation see j r elecs inc v business decision n am inc no 12cv7497 2013 wl 5203134 at 6 sdny sept 16 2013 discussing the tort of negligent representation breach of fiduciary duty see in re pfeifer no 12cv13852 2013 wl 5746125 at 7 bankrsdny oct 23 2013 categorizing the breach of fiduciary duty as a tort claim under new york law and professional malpractice see indus quick search inc v miller rosado algois llp no 09cv1340 2013 wl 4048324 at 3 edny aug 9 2013 in this case the plaintiffs primary claim is for legal malpractice which in new york is a species of negligence ie a tort internal quotation marks omitted therefore the court must undertake an independent analysis under new york choiceoflaw rules to identify which states law should apply to the question of whether plaintiffs have stated a claim under these causes of actionthe new york court of appeals has held that the relevant analytical approach to choice of law in tort actions in new york is the interest analysis globalnet fin com inc v frank crystal co inc 449 f3d 377 384 2d cir2006 brackets and internal quotation marks omitted see also empire city capital corp v citibank na 2011 wl 4484453 at 3 sdny sept 28 2011 same new yorks interest analysis requires that the law of the jurisdiction having the greatest interest in the litigation will be applied and the only facts or contacts which obtain significance in defining state interests are those which relate to the purpose of the particular law in conflict in re thelen llp 736 f3d 213 219 2d cir2013 brackets alteration and internal quotation marks omitted certified question accepted sub nom thelen llp v seyfarth shaw llp 22 ny3d 1017 981 nys2d 349 4 ne3d 359 2013 the significant contacts are almost exclusively the parties domiciles and the locus of the tort id at 21920 internal quotation marks omitted under the interestanalysis test torts are divided into two types conductregulating rules such as rules of the road and lossallocation rules such as those limiting damages in wrongful death actions vicarious liability rules or immunities from suit id at 220 internal quotation marks omitted if conflicting conductregulating laws are at issue the law of the jurisdiction where the tort occurred will generally apply because that jurisdiction has the greatest interest in regulating behavior within its borders id internal quotation marks omitted a tort occurs in the place where the injury was inflicted which is generally where the plaintiffs are located lyman commerce solutions inc v lung no 12cv4398 2013 wl 4734898 at 4 sdny aug 30 2013 see also in re optimal us litig 837 fsupp2d 244 261 sdny2011 same feldman law grp pc v liberty mut ins co 819 fsupp2d 247 256 sdny2011 same affd 476 fedappx 913 2d cir2012 here plaintiffs tort claims are conductregulating not lossallocating see defs mem 11 the torts plaintiffs alleged in this case are conductrelating pis mem 3 1013 not disputing defendants position and choosing not to conduct a choice of law analysis except with regard to the statute of limitations issue and merely arguing that they state valid claims under either new york or alaska law see also mark andrew of the palm beaches ltd v gmac commercial mortg corp 265 fsupp2d 366 378 sdny2003 noting that negligence and negligentmisrepresentation claims are based on conduct regulating rules rather than loss allocating rules affd 96 fedappx 750 2d cir2004 wolfson v bruno 844 fsupp2d 348 355 sdny2011 applying conductregulating analysis to legal malpractice claim and collecting cases burns v delaware charter guarantee trust co 805 fsupp2d 12 23 sdny2011 here the plaintiffs allege that the defendants breached their duties of care and were otherwise negligent in fulfilling their obligations to the plaintiffs these alleged legal duties are conductregulating on reconsideration no 09cv8025 2011 wl 3837146 sdny aug 30 2011applying that analysis to the instant action the court finds that the alleged torts occurred in alaska for the same reasons that the alaska statute of limitations applies as explained above thus for the purposes of new yorks interest analysis any torts that defendant committed against plaintiffs occurred in alaska however the law of the state that new yorks interest analysis yields will only be applied if it conflicts with the law of new york if there is no conflict between the law of the two jurisdictions then new york law will apply see lyman 2013 wl 4734898 at 3 since there is no conflict of law with respect to these sections new york law applies to the actual fraud claims alleged in the complaint hayden capital usa llc v northstar agric indus llc no 11cv594 2012 wl 2953055 at 4 sdny july 16 2012 there is no actual conflict between new york and north dakota law and new york law applies internal quotation marks omitted admiral ins co v adges no 11cv8289 2012 wl 2426541 at 2 sdny june 27 2012 no defendant has shown a conflict between new yorks law and that of any other state accordingly the court applies new york law paradigm biodevices inc v viscogliosi bros llc 842 fsupp2d 661 665 sdny2012 new york law applies to the fraudulent transfer claim in the present action because there is no material conflict between the laws of new york and massachusetts governing this claim therefore if new york and alaska law conflict in any material way as to any of plaintiffs asserted causes of action the court will apply alaska law otherwise the court will apply new york lawb negligenceunder alaska and new york law the elements of a negligence claim are 1 that the defendant owed the plaintiff a duty 2 that the defendant breached that duty 3 that the plaintiff was injured and 4 that the breach of the duty was the proximate cause of the plaintiffs injury see eg mitchell v icolari 108 ad3d 600 969 nys2d 503 505 2013 edenshaw v safeway inc 186 p3d 568 571 alaska 2008defendant argues that since plaintiffs claims arise out of an arms length transaction and nothing more there are no duties except those in the policy and therefore plaintiffs negligence claim should be dismissed defs mem 20 moreover defendant argues that alaska law does not permit a claim for negligent performance of a contract seeking to recover purely economic losses id at 21 citing st denis v dept of hous urban dev 900 fsupp 1194 120004 dalaska 1995 alaska pac assurance co 794 p2d at 946 plaintiffs respond that defendant is not necessarily insulated from tort liability by the existence of a contract as there is a legal duty independent of the contract pis mem 1420 in particular plaintiffs argue that there is a duty of care arising out of independent characteristics of the relationship between plaintiffs and defendant id at 1617first defendant is incorrect in its argument that alaska law will not permit a claim for negligence under these circumstances defs mem 2122 defendant cites two cases in support of this position neither of which requires the result it seeks first in alaska pacific assurance company v collins the alaska supreme court rejected a claim for negligent breach of an insurance contract however language in that case actually supports plaintiffs claim see alaska pac assurance 794 p2d at 946 agreeing with the argument that an insurer may be held liable for torts independent from its contractual duties such as fraud but that an action for negligence in breaching a specific contractual duty sounds in contract as defendant correctly argued in the context of plaintiffs breach of contract claim plaintiffs do not successfully allege the breach of a specific contractual duty rather they allege a negligence tort apart from the enumerated contractual duty to provide an annual statement second defendant is correct that reasoning in dicta by the district court for the district of alaska in st denis v department of housing and urban development did indicate that alaska might not allow tort claims based on purely economic loss see st denis 900 fsupp at 120004 it appears that alaska cases foreshadow a general rule precluding negligence actions by those in privity where only economic losses are alleged however this appearance has been firmly rebutted in subsequent alaska supreme court decisions eleven years after the st denis decision the alaska supreme court heldwe have recognized that promises set forth in a contract must be enforced by an action on that contract only where the duty breached is one imposed by law such as a traditional tort law duty furthering social policy may an action between contracting parties sound in tort when a partys actions violate a general duty of care its actions may give rise to an action in tort even if the violation also breaches a contractjarvis v ensminger 134 p3d 353 363 alaska 2006 brackets and internal quotation marks omitted see also banco multiple santa cruz sa v moreno 888 fsupp2d 356 36869 edny2012 holding the same under new york law in reaching this conclusion the alaska supreme court in fact quoted the new york court of appealsa tort obligation is a duty imposed by law to avoid causing injury to others it is apart from and independent of promises made and therefore apart from the manifested intention of the parties thus a defendant may be liable in tort when it has breached a duty of reasonable care distinct from its contractual obligations or when it has engaged in tortious conduct separate and apart from its failure to fulfill its contractual obligationsjarvis 134 p3d at 363 brackets and internal quotation marks omitted quoting ny univ 639 nys2d 283 662 ne2d at 767 thus under alaska law as under new york law a plaintiff may bring a tort claim when the duty breached is imposed by law rather than specifically provided by contract see transamerica premier ins 856 p2d at 772 in the case of an ordinary commercial contract between sophisticated business entities a tort for breach arises only when a partys conduct rises to the level of a traditionally recognized tort quoting arco alaska inc v akers 753 p2d 1150 1154 alaska 1988 thus plaintiffs negligence claim would be cognizable if there was a duty of care distinct from what is required under the contractunder alaska law if no statute regulation contract case law or preexisting relationship establishes the ex istence of a duty of care the question of whether a duty exists is essentially a public policy question mcgrew v state dept of health soc servs div of family youth servs 106 p3d 319 322 alaska 2005 the public policy question involves the following considerationsthe foreseeability of harm to the plaintiff the degree of certainty that the plaintiff suffered injury the closeness of the connection between the defendants conduct and the injury suffered the moral blame attached to the defendants conduct the policy of preventing future harm the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach and the availability cost and prevalence of insurance for the risk involveddsw v fairbanks n star borough sch dist 628 p2d 554 555 alaska 1981 similarly under new york law when determining the existence and scope of a duty courts consider the relationship of the parties whether the plaintiff was within the zone of foreseeable harm whether the injury was foreseeable and other public policy considerations di ponzio v riordan 89 ny2d 578 657 nys2d 377 679 ne2d 616 618 1997 thus while these tests are stated slightly differently they involve the same general considerations as the parties have not alerted the court to an actual conflict between new york and alaska law and the court has not found a conflict it will apply new york law see interstate foods inc v lehmann no 06cv13469 2008 wl 4443850 at 3 sdny sept 30 2008 the parties have not submitted any evidence that there is actually a conflict of law between the law of new york and the law of new jersey with respect to breach of fiduciary duty therefore the court will apply new york law to the plaintiffs claimplaintiffs assert that there were several duties owed to them by defendant that defendant breached to properly vet funds to monitor developments at the funds and provide the trust with any material information regarding the funds and to process the redemption requests accurately and in a timely fashion sac 147 as explained above any claims based on the failure to effect the redemption request are timebarred thus the remaining claims relate to the vetting and the provision of information to the trustplaintiffs fail to state a negligence claim regarding the failure to provide information regarding ssr here plaintiffs have not alleged the breach of a legal duty independent from defendants contractual obligations rather the contract defines the scope of defendants duty 0nce a contractual relationship was entered into between the parties that contract defined the scope of the duties owed to the plaintiff vought v teachers coll columbia univ 127 ad2d 654 511 nys2d 880 88182 1987 in particular where the contract having been negotiated by sophisticated and counseled parties provides that defendant must provide annual statements see policy 22 ppm 30 plaintiffs cannot assert that there was an independent duty in tort to provide additional information in particular here plaintiffs knew at the time of the contract that they would have limited information regarding the underlying investments in fact they specifically contracted that they would not have contact with the underlying fund managers for their own benefit to preserve the tax benefits associated with the policy sac 2 see also id 19 4142 45 101 148 161 172 second dec 20 2002 letter agreement 2 policyowner will not directly or indirectly influence or attempt to influence the managers selection purchase retention or sale of any investment within the fund ppm 32 explaining that one factor considered in determining whether a variable life insurance contract owner is an owner of the assets invested through the policy for tax purposes is whether there is any contact between a variable contract owner and the investment advisor relating to the investment decisions made id at 33 no policy owner should ever attempt to contact an investment advisor rather any and all questions comments or instructions regarding the policy should be addressed only to the company emphasis omitted and plaintiffs knew that the information provided by the underlying funds including ssr would be limited see august 2005 ssr tear sheet 2 listing as one of ssrs risk factors that the fund is not subject to the same regulatory requirements as mutual funds id at 4 warning that ssr will have only limited access to information about the funds ssr invests in plaintiffs who were required to be persons of financial sophistication including being accredited investors qualified purchases and having sufficient knowledge and experience in investments of this type knew that defendant would have access to more information than plaintiffs regarding the underlying investments and indeed specifically contracted for that imbalance ppm 3 10 32 knowing this plaintiffs specifically contracted for the provision of annual statements regarding their investments and nothing else ppm 30 policy 22 given these facts the court does not find that there was a duty imposed by law to provide additional information if plaintiffs wanted defendant to provide all relevant information about the underlying investment funds they could have and should have contracted for such see document sec sys inc v couponscom inc 2013 wl 1945954 at 5 wdny may 9 2013 holding that where two parties dealt at arms length and had an express written agreement covering the subject matter of the dispute that express agreement set forth the duty owed and there was not an additional duty imposed in tort in re natl century fin enterprises inc 846 fsupp2d 828 858 sdohio 2012 applying new york law and noting that the plaintiff is unable to explain how an independent duty could exist when sections 10 and 12 of the agreement defined the scope of the defendants alleged duty of care with respect to the information it supplied to the plaintiff adhered to on denial of reconsideration sub nom crown cork seal co master ret trust v credit suisse first boston corp nos 12cv5803 et al 2013 wl 490717 sdny feb 6 2013 intl ore fertilizer corp v sgs control servs inc 743 fsupp 250 258 sdny1990 since the duty to inspect arose only by virtue of the contract which was freely negotiated by the parties there can be no independent tort liability for failing to take certain steps as part of that inspection affd 38 f3d 1279 2d cir1994plaintiffs provide no support for their theory that defendant could be required to provide information in tort when the contract specifically addresses what information defendant must provide plaintiffs primarily rely on two cases bayerische landesbank new york branch v aladdin capital management llc 692 f3d 42 2d cir2012 and banco multiple santa cruz sa v moreno 888 fsupp2d 356 edny2012 however neither case helps plaintiffs in bayerische landesbank the second circuit held that where an independent tort duty is present a plaintiff may maintain both tort and contract claims arising out of the same allegedly wrongful conduct but if the basis of a partys claim is a breach of solely contractual obligations such that the plaintiff is merely seeking to obtain the benefit of the contractual bargain through an action in tort the claim is precluded as duplicative 692 f3d at 58 in that case the second circuit concluded that the plaintiff had alleged a legal duty though assessed largely on the standard of care and the other obligations set forth in the contract that would arise out of the independent characteristics of the relationship where the plaintiff alleged that it relied on marketing representations from the defendants regarding how they would manage financial portfolios id at 5859 however the factual issue in that case is markedly different from this case in bayerische landesbank the plaintiff alleged that the defendants represented that their interests were aligned with investors that the portfolio would consist of investment grade high quality reference entities that the defendants would manage the reference portfolio in a conservative and defensive manner and that they would act in good faith using a degree of skill care diligence and attention consistent with the practice and procedures followed by reasonable and prudent institutional managers of national standing for similar investment portfolios id internal quotation marks omitted plaintiffs have alleged no such representations here moreover bayerische landesbank does not address the issue here which is plaintiffs attempt to require defendant to do something in tort beyond what was specifically provided for in contractbanco multiple is similarly inapposite in banco multiple the court held that though new york generally treats relationships between insurance companies and policyholders as contractual only because variable annuities are more like investment vehicles than traditional insurance it would allow a negligence action against a company that issued a variable annuity 888 fsupp2d at 36970 374 the court also held that an issuer of a variable annuity could be liable in tort for negligence arising out of independent legal duties in connection with the performance of its contractual duties in that case negligence in processing withdrawal requests where the court found a legal duty independent of the contract id at 374 however the issue in that case is simply not analogous to the one at hand additionally there are cases that hold that plaintiffs might be able to allege legal duties in addition to those explicitly provided for in financial services documents see eg pension comm of the univ of montreal pension plan v banc of am sec llc 716 fsupp2d 236 24243 sdny2010 however those cases also do not address the issue at hand which is whether there can be a negligence duty to provide more information than what is specifically provided for in a contract for the above reasons the court holds that plaintiffs have not plausibly pleaded a claim for negligence in connection with the failure to provide information not required under the contractfinally under the policy defendant was to establish investment options see policy 17 ppm 16 plaintiffs allege that defendant was negligent in putting ssr on its platform the issue here is whether plaintiffs have alleged a duty of care in vetting investment options independent of the contract that was breached by a failure to use reasonable care in vetting in this case plaintiffs have adequately pleaded the existence of a duty that arises from circumstances extraneous to and not constituting elements of the contract bayerische landesbank 692 f3d at 58 plaintiffs allege that they were unable to access information regarding ssr as they were prohibited by contract from communicating with ssr in order to protect the tax benefits that the structure of the investment provided and because the fund did not release information publicly sac 2 15 43 45 moreover the injury to plaintiffsfinancial loss from investing in a fund that allegedly was managed by two unqualified people and where gunlicks served in an allegedly selfinterested rolewas foreseeable see lauer v city of new york 95 ny2d 95 711 nys2d 112 733 ne2d 184 193 2000 whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to the circumstances he would cause danger of injury to the person or property of the other a duty arises to use ordinary care and skill to avoid such danger internal quotation marks omitted see also banco multiple 888 fsupp2d at 368 n 14 new york courts frequently hold that a person undertaking to perform work is charged with the common law duty to exercise reasonable care and skill in the performance of the work alteration and internal quotation marks omitted plaintiffs have adequately alleged that the circumstances known to all parties put defendant in a position to know that not acting with ordinary skill and care with regard to vetting ssr before putting it on the platform would create a danger of financial injury to plaintiffs especially because according to plaintiffs allegations defendant had access to material nonpublic information about ssr that would impact whether an investor would invest in the fund public policy considerations also support the finding of a duty to exercise reasonable care in vetting as the duty the court is recognizing is highly limited would be easy to comply with and protects investorsnext plaintiffs must allege that defendant breached the duty plaintiffs have done so they allege that defendant either failed to vet ssr at all or more likely haphazardly ignored critical information in its rush to become a leading carrier of variable universal life policies which involved signing up as many funds as possible as quickly as possible to defendants platform sac 10 see also id 114 in particular plaintiffs allege that defendant likely ignored ssrs managers stunning lack of relevant experience claiming that one manager had no material experience in the complex world of structured finance corporate receivables financing and assetbased lending while the other had no credit or lending experience and just four years of reported business experience id 11 see also id 111 alleging that neither helland nor law had the requisite material experience in the arcane and complex world of structured finance corporate receivables financing and assetbased lending second plaintiffs allege that defendant also likely ignored ssrs lucrative overtly conflicted partnership with gunlicks id 12 these pleadings plausibly allege that defendant breached its duty of due care in placing ssr on its platformthird plaintiffs must allege that they were injured they have done so as they allege that the trusts capital has been frozen its ssr investment account has steadily declined in stated value and it is now highly likely that it will end with a zero or de minimus balance id 8finally plaintiffs must allege that the breach of the duty was the proximate cause of plaintiffs injury plaintiffs have also satisfied this requirement specifically plaintiffs allege that had they known that defendant had not properly vetted ssr the trust would have made a redemption request immediately and that after ssr suspended redemptions in october 2008 the trust could do nothing as all of its investment in ssr was lost id 19 for the above reasons the court holds that plaintiffs adequately pleaded a claim for negligence in connection with the vetting of ssrc negligent misrepresentationto state a claim for negligent misrepresentation under new york law a plaintiff must allege 1 carelessness in imparting words 2 upon which others were expected to rely 3 and upon which they did act or failed to act 4 to their damage the action also requires that 5 the declarant express the words directly with knowledge or notice that they will be acted upon to one to whom the declarant is bound by some relation or duty of care dallas aerospace inc v cis air corp 352 f3d 775 788 2d cir2003 citing white v guarente 43 ny2d 356 401 nys2d 474 372 ne2d 315 319 1977 see woori bank v citigroup global markets inc no 12cv3868 2014 wl 3844778 at 5 sdny aug 5 2014 same see also beach v citigroup alternative investments llc no 12cv7717 2014 wl 904650 at 21 sdny mar 7 2014 liability for negligent misrepresentation has been imposed only on those persons who possess unique or specialized expertise or who are in a special position of confidence and trust with the injured party such that reliance on the negligent misrepresentation is justified alteration in original quoting kimmell v schaefer 89 ny2d 257 652 nys2d 715 675 ne2d 450 454 1996under alaska law the tort of negligent misrepresentation consists of the following elements first the tortfeasor must have made a statement in the course of business employment or some other enterprise in which he had a pecuniary interest second the statement must have been false when the tortfeasor made it third the victim must have justifiably relied upon the statement to his detriment fourth the tortfeasor must have failed to exercise reasonable care when making the statement s alaska carpenters health sec trust fund v jones 177 p3d 844 857 alaska 2008 footnotes omitted defendant cites howarth v pfeifer 443 p2d 39 alaska 1968 which held that there must be a relationship between the parties whether growing out of contract or otherwise such that in morals and good conscience the plaintiff has the right to rely upon the defendant for information and the latter owes a duty to give the information with care as evidence that alaska law also requires a special relationship to establish a negligent misrepresentation claim id at 43 this proposition is not supported either by howarth or by more recent case law in howarth the quotation relied upon by defendant was made in the context of whether and what type of privity is required to establish a negligent misrepresentation claim id however this language has not been embraced by alaska courts instead they have followed the guidance of the restatement of torts which does not require a special relationship see eg willard v khotol servs corp 171 p3d 108 11819 alaska 2007 providing the fourfactor test discussed above and citing to the restate ment second of torts 5521 reeves v alyeska pipeline serv co 56 p3d 660 67071 alaska 2002 same valdez fisheries dev assn inc v alyeska pipeline serv co 45 p3d 657 671 alaska 2002 same that said there is one relevant situation under alaska law where the existence of a duty is required for a negligent misrepresentation claim to make a negligent misrepresentation claim based on an omission there must be a duty to disclose specifically under alaska law an omission can constitute a false statement where there is a duty to disclose a duty to disclose may arise when facts are concealed or unlikely to be discovered because of the special relationship between the parties the course of their dealings or the nature of the fact itself us ex rel n star terminal stevedore co v nugget constr inc 445 fsupp2d 1063 1074 dalaska 2006 citations and internal quotation marks omitted because of this conflict between new york and alaska law the court will apply alaska lawfirst plaintiffs allege that defendant recklessly or worse deliberately overstated ssrs assets under management by approximately 100 in a report provided to buchalter in his role as advisor in 2007 sac 18 specifically plaintiffs allege that buchalter on behalf of the trust requested more information about ssr and defendant reported that ssr had 169 million in assets under management but in fact ssr had only approximately half that amount based on the august 2007 aima disclosure questionnaire containing information supplied by ssr id 141 plaintiffs allege that the higher number would misleadingly indicate increased investor acceptance of ssr a misstatement of ssrs presence in the markets in which it invested and most importantly a misstatement of ssrs implied ability to meet potential redemption requests from investors id 18 defendant argues that plaintiffs are simply misreading the documents by comparing a disclosure of gross assets in one document to net assets in theother defs mem 22 defendant explainsthe may 2007 update shows that as of march 31 2007 ssr had 169 million in assets and the funds general partner had 1955 million in assets which included ssrs assets and the assets of the separate ssr ii fund not at issue in this case the aima questionnaire shows that as of july 2007 ssr had 1707 million in assets and the funds general partner had 1985 million in assets which included 278 million in assets in the ssr ii fund the aima questionnaire explains these asset totals are gross as they include the funds leveraged or borrowed assets the aima questionnaire further disclosed that net of leverage ssr had 867 million in assets and ssr ii had 157 million in assets for a total of 1024 million in unleveraged assets under the general partners management plaintiffs have mistakenly compared ssrs gross assets in march 2007 169 million to ssrs net assets in july 2007 867 millionid citations and footnotes omitted plaintiffs respond that defendant never disclosed that it was reporting leveraged assets instead simply reporting fund assets as 169 million pis mem 21 plaintiffs argue this is a misrepresentation because actual assets under management is the true measure utilized by the hedge fund industry and defendant previously represented ssrs actual not leveraged assets under management of 473 million when presenting the investment option to buchalterthe trust in 2005 id at 21there are two reasons why this claim fails first the alleged misrepresentation was made by ssr not by defendant as the may 2007 disclosure was an ssr docu ment a fact evident from the document itself and not contested by plaintiffs counsel at oral argument see may 2007 ssr tear sheet to the extent defendant passed on this document there are no allegations that defendant knew that the document allegedly contained false statements or that defendant was negligent or reckless as to this fact see diblik v marey 166 p3d 23 26 alaska 2007 one element of negligent misrepresentation is the failure to exercise reasonable care or competence in obtaining or communicating the misinformationsecond there was no misrepresentation in may 2007 ssr reported its fund assets for the ssr id fund as 169 million see may 2007 ssr tear sheet this roughly matches the 2007 aima questionnaire from a few months later which reported that the size of the fund was 1707 million gross 867 million net sac ex e aimas illustrative questionnaire for due diligence of fund of hedge fund managers ssr aima questionnaire at 16 plaintiffs argue that defendant previously represented ssrs actual not leveraged assets under management of 473 million when presenting the investment option to buehalterthe trust in 2005 pis mem 21 see also august 2006 ssr tear sheet 1 plaintiffs apparently infer that the 473 million reported in 2005 is net not gross see august 2005 ssr tear sheet 1 from the fact that the aima questionnaire states that the assets under management in 2005 were 704 million thus conceivably indicating that 704 million was the leveraged number and 473 million was the unleveraged number see ssr aima questionnaire 6 however a close reading of the document shows this is not the case rather the discrepancy between the aima questionnaires 704 million number and the ssr documents 473 million number for 2005 is due to the fact that the 473 million represents assets that correspond only to ssrs insurance dedicated id fund while the 704 million represents the assets that correspond both to the ssr id fund and the ssr ii fund furthermore the may 2007 tear sheet states beginning in may 2006 the fund began employing modest leverage which the managers intend to limit to no more than one dollar of leverage per dollar of fund equity may 2007 ssr tear sheet 1 thus the fact that ssr reported unleveraged assets in 2005 when it was not employing leverage says nothing about whether ssr would report leveraged or unleveraged assets in 2007 furthermore the inclusion of that sentence on the may 2007 statement should have raised the possibility to plaintiffs that ssr was now reporting leveraged assets while the 2007 ssr document was ambiguous as to whether it was disclosing leveraged or unleveraged fund assets it did not misrepresent leveraged fund assets as unleveraged fund assetsnext plaintiffs allege that ssrs administrator had been replaced in january 2007 tellingly when ssr was in the process of closing their books for the 2006 year sac 16 plaintiffs further allege that defendant sent buchalter a report in june 2007 erroneously indicating that the replaced ssr administrator still was in place id defendant does not dispute that plaintiffs plausibly pleaded that defendant made a misrepresentation however the negligent misrepresentation claim must still be dismissed this alleged misrepresentation was made in the same document that contained the alleged misrepresentation regarding ssrs assets under management see sac 138 may 2007 ssr tear sheet again this alleged misrepresentation was made by ssr not by defendant and plaintiffs do not allege that defendant knew or was reckless or negligent to the fact that the ssr document it passed on to plaintiffs allegedly contained misrepresentations therefore this claim is dismissed see diblik 166 p3d at 26 one element of negligent misrepresentation is the failure to exercise reasonable care or competence in obtaining or communicating the misinformationfinally plaintiffs allege that defendant misrepresented that it vetted ssr when in fact defendant appears not to have vetted ssr at all sac 10 plaintiffs allege generally that defendant made representations as to researching and vetting of platform funds and monitoring and oversight of the investments id 56 plaintiffs also allege that defendant did not inform the trustee or the advisors of its failure to properly vet ssr id 143 defendant argues that the email plaintiffs rely upon shows that defendant made no such representation regarding vetting defs mem 23 rather defendant argues the email merely identifies ssr as one of the insurance dedicated funds available through defendant which it indisputably was and that plaintiffs claim to have subjectively understood the email to imply a vetting of ssr is irrelevant id however defendants general counsel emailed buchalters counsel in october 2003 to state that he was in the process of adding ssr to defendants platform in the very near future sac 113 internal quotation marks omitted see also id ex l email from joseph a fillip jr to william lipkind oct 17 2003 later defendants director of research sent buchalter an email identifying ssr as one of the insurance dedicated funds available through defendants platform sac 57 agl life assurance company insurance dedicated funds and plaintiffs allege that ssr was one of only 27 funds chosen from the available pool of an estimated 75 to 100 insurancededicated hedge funds in existence to be put on defendants platform sac 4 see also id 60 at the time defendant presented ssr as an approved investment choice there were an estimated 75 to 100 insurancededicated hedge funds in existence defendant presented just 27 insurancededicated funds clearly indicating that it had utilized specific criteria to select said funds and had found that the majority of available funds were not appropriate for its policyholders as such defendant affirmatively preselected ssr from a much larger universe as especially suitable for policyholders such as the trust based on defendants purported vetting and determination utilizing specific criteria considering the allegations and the emails at issue the court concludes that plaintiffs have adequately pleaded an implicit misrepresentation by defendantwhat is left of defendants arguments against the negligent misrepresentation claim is its contention that plaintiffs cannot state a claim for negligent misrepresentation based on assertions made to buchalter however this argument is unavailing for several reasons first that the trust instrument did not identify buchalter as an advisor does not mean that he was not an advisor to the trust as a matter of fact which is exactly what the sac alleges and must be assumed as true on this motion pis mem 22 moreover there would have been no reason for defendant to send its platform funds to buchalter and buchalter alone if defendant did not recognize that he was acting in an advisory capacity id furthermore the restatement second of torts which is followed by alaska courts with regard to the requirements for a negligent misrepresentation tort provides that liability is limited to a loss suffered by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it restatement second of torts 5522 1977 emphasis addedtherefore defendants motion to dismiss the negligent misrepresentation claim is denied as to the alleged vetting misrepresentation and granted as to the alleged fund asset and fund administrator misrepresentationsd professional malpracticeprofessional malpractice is a species of negligence under new york law malpractice means the negligence of a member of a profession in his relations with his client panteleone v envtl engg contracting no 12cv5415 2013 wl 3340483 at 6 edny july 2 2013 citation and internal quotation marks omitted to prevail on a professional malpractice claim a plaintiff must demonstrate the elements of negligence and that the breach of duty was by a professional in a departure from accepted standards of practice id internal quotation marks omitted under alaska law the elements of a cause of action for professional negligence are 1 the duty of the professional to use such skill prudence and diligence as other members of the profession commonly possess and exercise 2 a breach of that duty 3 a proximate causal connection between the negligent conduct and the resulting injury and 4 actual loss or damage resulting from the professionals negligence bukoskey v walter w shuham cpa pc 666 fsupp 181 184 dalaska 1987 internal quotation marks omitted see also johnson higgins of alaska inc v blomfield 907 p2d 1371 1374 alaska 1995 like other negligence actions a claim of professional negligence requires proof of duty breach causation and damages though stated slightly differently the baseline requirements are functionally the same under new york and alaska lawwhile acknowledging that there are distinctions between alaska and new york law on professional malpractice claims defendant asserts that there is no conflict because a life insurer is not a professional under either statefs lawsj supplemental br in supp of def phila fin life assurance cos mot to dismiss pis second am compl under rule 12b6 defis supplemental br 2 dkt no 50 however even assuming the ultimate outcomes would be the same under the laws of new york and alaska that fact would not indicate that no conflict of laws exists to be an actual conflict the difference between the laws of the two jurisdictions need not be outcomedeterminative but must provide differing substantive rules that are relevant to the matter at hand and the difference must have a significant possible effect on the outcome of the trial allgood entmt inc v dileo entmt touring inc 726 fsupp2d 307 313 sdny2010 see also lehman bros 414 f3d at 331 samehere there is a conflict under new york law the term professional encompasses those whose qualities include extensive formal learning and training licensure and regulation indicating a qualification to practice a code of conduct imposing standards beyond those accepted in the marketplace and a system of discipline for violation of those standards chase scientific research inc v nia grp inc 96 ny2d 20 725 nys2d 592 749 ne2d 161 166 2001 applying these characteristics the new york court of appeals has held that insurance agents and brokers are not professionals id 725 nys2d 592 749 ne2d at 167 therefore in new york courts have held that insurance companies or agents cannot generally be sued for professional malpractice beyond a claim for failing to follow the insureds instructions of obtaining the desired insurance highlands ins co v prg brokerage inc no 01cv2272 2004 wl 35439 at 6 sdny jan 6 2004 the new york court of appeals has found that an insured can not state a cause of action for professional negligence against his agent as no special relationship existfs between the parties that could impose a duty of care on the agent beyond that of following the insureds instructions of placing the requested insurance the court of appeals has also found that an insured may not state a claim against an insurance agent for professional malpractice since neither a broker nor agent are required to engage in extensive specialized education or training nor bound by a standard of conduct for which they might be disciplined and are therefore not considered professionals in that they generally cannot be sued for professional malpractice emphasis added citing murphy v kuhn 90 ny2d 266 660 nys2d 371 682 ne2d 972 1997 chase scientific research inc v nia group inc 96 ny2d 20 725 nys2d 592 749 ne2d 161 2001however under alaska law the definition of professional is much more inclusive in alaska professional malpractice involves a professionals breach of a duty of due care which was implied by law as a result of a contractual undertaking breck v moore 910 p2d 599 603 alaska 1996 internal quotation marks omitted a professional is a provider of skilled services johns heating serv v lamb 46 p3d 1024 1037 alaska 2002 in particular the rule adopted by the alaska supreme court is thatwhen a person holds himself out to the public in any particular employment work or trade there is an implied engagement with those who may employ him that he and his employees in that trade or business possess that reasonable degree of knowledge and skill which is ordinarily possessed by others engaged in the same business or trade and that he and they will perform the services which he may be engaged to do diligently and faithfully and with that skill and prudence ordinarily possessed and observed by others engaged in the same or like employmentid internal quotation marks omitted as such alaska courts have applied the professional negligence standard to trades persons including machinists electricians and plumbers id as well as to insurance agents see state farm life ins co v davis no 07cv164 2008 wl 5245332 at 4 dalaska dec 17 2008 generally an agent employed to effect insurance must exercise such reasonable skill and ordinary diligence as may fairly be expected from a person in his or her profession or situation in doing what is necessary to effect a policy in seeing that it effectually covers the property to be insured in selecting the insurer and so on alaska law is fundamentally the same an insurance agent owes a duty to exercise reasonable care skill and diligence in procuring insurance brackets footnote and internal quotation marks omitted see generally christianson v conradhouston ins 318 p3d 390 alaska 2014 discussing a professional negligence claim against an insurance agent as well as other classes of professionals thus defendant qualifies as a professional under alaska lawas a professional under alaska law defendant had a duty to perform the services which itwas engaged to do diligently and faithfully and with that skill and prudence ordinarily possessed and observed by others engaged in the same or like employment johns heating serv 46 p3d at 1037 because the duty existed only with respect to what defendant was engaged to do defendant cannot be liable for professional negligence for failing to provide information when the contract explicitly addressed the information defendant was required to provide for the same reasons addressed above with regard to the claim for negligence however plaintiffs do state a claim for professional negligence with regard to the allegedly inadequate vetting and misrepresentations related theretoe breach of fiduciary dutythe parties have not identified an actual conflict between alaska and new york law as to the elements of a cause of action for breach of fiduciary duty therefore the court will apply the law of new york the forum state see in re refco inc sec litig 826 fsupp2d 478 500 sdny2011 while the plaintiffs claim that new jersey law should apply it is notable that they cite primarily to new york law in their breach of fiduciary duty analysis and at any rate the parties do not indicate that there is any actual conflict between new york and new jersey law with respect to breach of fiduciary duty therefore new york law should apply footnote omitted goodman v goldman sachs co no 10cv1247 2010 wl 5186180 at 11 dnj dec 14 2010 as the defendant has not pointed to any material differences between the law of new jersey and new york the court concludes that no actual conflict exists with respect to the plaintiffs breach of fiduciary duty claim and consequently applies the law of the forum state of new jersey interstate foods 2008 wl 4443850 at 3 the parties have not submitted any evidence that there is actually a conflict of law between the law of new york and the law of new jersey with respect to breach of fiduciary duty therefore the court will apply new york law to the plaintiffs claimunder new york law the elements of a claim for breach of a fiduciary obligation are i the existence of a fiduciary duty ii a knowing breach of that duty and iii damages resulting therefrom johnson v nextel commcns inc 660 f3d 131 138 2d cir2011 under new york law a fiduciary relationship exists between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation n shipping funds i llc v icon capital corp 921 fsupp2d 94 101 sdny2013 brackets and internal quotation marks omitted see also munn v thornton 956 p2d 1213 1220 alaska 1998 a fiduciary relationship exists when one imposes a special confidence in another so that the latter in equity and good conscience is bound to act in good faith and with due regard to the interests of the one imposing the confidence internal quotation marks omitted at the heart of the fiduciary relationship lies reliance and de facto control and dominance n shipping funds 921 fsupp2d at 101 internal quotation marks omitted it is not mandatory that a fiduciary relationship be formalized in writing and the ongoing conduct between the parties may give rise to a fiduciary relationship that will be recognized by the courts official comm of unsecured creditors v donaldson lufkin jenrette sec corp no 00cv8688 2002 wl 362794 at 9 sdny mar 6 2002 internal quotation marks omitted the existence of a fiduciary duty cannot be determined by recourse to rigid formulas and often is a factual question it arises when a party reposes trust or confidence in another who thereby gains a resulting superiority or influence over the first or when a party exercises de facto control or assumes responsibility for the affairs of another in re parmalat sec litig 684 fsupp2d 453 475 sdny2010 footnotes brackets and internal quotation marks omitted affd sub nom food holdings ltd v bank of am corp 423 fedappx 73 2d cir2011 see also munn 956 p2d at 1220 we have also noted that loyalty and the disavowal of self interest are hallmarks of the fiduciarys role fiduciary relationships are generally defined by a level of trust beyond that in ordinary business relationships brackets citation and internal quotation marks omittedplaintiffs base their fiduciary duty claim on the information imbalance created by the contract and the fact that the policy invested in funds that did not release information publicly plaintiffs argue that this dynamic imposed on the trust a special confidence in defendant to act in good faith and with due regard for the best interests of the trust sac 162 the court disagrees as a primary matter the court notes that plaintiffs do not cite a single case supporting the proposition that the court may find a fiduciary relationship based on the facts alleged here see pis mem nor did the court find any such case in its own research when parties deal at arms length in a commercial transaction no relation of confidence or trust sufficient to find the existence of a fiduciary relationship will arise absent extraordinary circumstances atlantis info tech gmbh v ca inc 485 fsupp2d 224 231 edny2007 brackets and internal quotation marks omitted there is no basis here for finding such extraordinary circumstances while the information imbalance alleged by plaintiffs might otherwise be sufficient to create a question of fact as to whether a fiduciary relationship existed see id at 23132 suggesting that a fiduciary relationship may be alleged between parties in arms length relationships where there is an allegation of obvious disparity between the parties it is not sufficient here when the plaintiffs who were sophisticated investors and were represented by counsel knew that such an information disparity existed and by contract provided only that defendant was required to pass on annual statements for the funds to plaintiffs see document sec sys 2013 wl 1945954 at 5 holding that where a fiduciary duty of confidentiality would otherwise by implied by law but where there was a specific written contract addressing the duty of confidentiality no such fiduciary duty would be applied by lawadditionally plaintiffs do not allege any special relationship with defendant such that they could expect defendant to disavow its own selfinterest and act on behalf of plaintiffs for example plaintiffs have not alleged that they were entitled to rely on defendant for investment advice in one new york state case the supreme court of new york county held that where an insurance company did not serve as an investment advisor in any meaningful way in connection with a variable life insurance policy but merely passed on prospectuses such as the ppm to its insureds from the funds in which the insureds could choose investments such a relationship did not amount to an advisory role that would give rise to a fiduciary relationship ssr ii llc v john hancock life ins co usa 37 misc3d 1204a no 6527932011 2012 wl 4513354 at 11 supct sept 28 2012 judgment entered sub nom ssr ii llc v john hancock life ins co usa 2012 wl 7784415 nysupct oct 17 2012 cf mullerpaisner v tiaa 289 fedappx 461 466 2d cir2008 holding that while by their nature armslength commercial transactions ordinarily do not involve fiduciary relationships where the complaint alleges that the defendants advertise that they have a considerable infrastructure to help people and where they have made public statements that they will help their customers choose among their products a fiduciary duty claim would withstand a motion to dismiss similarly here plaintiffs do not allege that defendant acted as an investment advisor indeed they distinguish michael s rulle family dynasty trust on the ground that here plaintiffs are not alleging that defendant exercised exclusive or any control over investment decisions or that it was responsible for recognizing that ssr was a flawed investment and flndeed that plaintiffs fully admit that the trustee and advisors were exclusively responsible for making investment decisions pis mem 20 as in ssr ii the role of defendant as alleged by plaintiffs does not amount to an advisory role that gives rise to a fiduciary relationship ssr ii 2012 wl 4513354 at 11moreover and more generally several courts applying new york law have found that in the case of arms length negotiations or transactions between sophisticated financial institutions no extracontractual duty of disclosure exists banque arabe et internationale dinvestissement v maryland natl bank 57 f3d 146 158 2d cir1995 see also in re enron corp 292 br 752 78788 bankrsdny2003 holding that where the parties engaged in arms length negotiations and the contract disclaims reliance on information provided by the other party no claim can be stated for breach of fiduciary duty banco espanol de credito v sec pac natl bank 763 fsupp 36 45 sdny1991 in the case of arms length transactions between large financial institutions no fiduciary relationship exists unless one was created in the agreement while the facts of these cases are distinguishable from the facts at hand as here plaintiffs are not a large financial institution the court finds persuasive the reasoning that when sophisticated counseled parties contract and specifically contract about what information needs to be disclosed there is no basis for holding that there is an extracontractual legal duty to disclose therefore the court dismisses plaintiffs claim for breach of fiduciary duty6 unjust enrichmenta choice of lawsome controversy appears to exist as to whether a claim for unjust enrichment is governed by a contracts enforceable choiceoflaw provision or whether it is instead governed by the law of the state that new yorks interest analysis yields being a fundamentally noncontractual cause of action compare fieger 251 f3d at 394 with respect to a quantum meruit claim we are not aware of any published new york decision that has stated the appropriate conflictoflaw test to apply to such a claim under new york law a quantum meruit claim is a claim in quasicontract the plaintiffs claimed entitlement to a commission payment sounds more in contract than in tort arising as it does from the benefit allegedly conferred upon the defendants by the plaintiffs business advice accordingly the court will apply new yorks choiceoflaw analysis for contract claims to the plaintiffs quantum meruit claim citations omitted spirit locker inc v evo direct llc 696 fsupp2d 296 304 n 8 edny2010 the parties agree that new york law applies to the unjust enrichment claim and a choice of law clause in their agreement mandates the application of new york law merrill iron steel inc v yonkers contracting co inc no 05cv5042 2006 wl 2679940 at 3 sdny sept 19 2006 the eourt questions whether the plaintiff may avoid the joint payment agreements choice of law clause when the agreement underlies many of the plaintiffs arguments citing valley juice ltd v evian waters of fr inc 87 f3d 604 610 2d cir1996 in re lois 264 br at 106 the claim for unjust enrichment similarly should be governed by the law of illinois at least the great bulk of the consideration paid by the debtor to the creditors the essence of this claim for unjust enrichment was paid under the agreement and the rights if any to the return of that consideration cannot be considered without at least some consideration of the agreement and its terms footnotes omitted with innovative biodefense inc v vsp techs no 12cv3710 2013 wl 3389008 at 5 sdny july 3 2013 the plaintiff argues that the defendants unjust enrichment counterclaim raises extracontractual allegations and thus should not be governed by the choiceoflaw provision the court agrees claims for unjust enrichment or quantum meruit are noncontractual equi table remedies and are therefore outside the scope of the parties choiceoflaw provision italics footnote and internal quotation marks omitted gross found inc v goldner no 12cv1496 2012 wl 6021441 at 11 edny dec 4 2012 although the guaranty provides for kansas law unjust enrichment is an equitable claim that is outside the scope of the contracts choiceoflaw provision and may be governed by the law of a different state hettinger v kleinman 733 fsupp2d 421 444 sdny2010 the plaintiffs cite new york law and the defendants cite both new jersey and florida law with respect to plaintiffs unjust enrichment claim although the choice of law clause in the independent contractor agreement specifies florida law extracontractual claims are outside the scope of contractual choiceoflaw provisions citations and internal quotation marks omitted cargill inc v sears petroleum transp corp no 03cv580 2004 wl 3507329 at 16 ndny aug 27 2004 with the exception of the breach of contract claim which is subject to minnesota law because of the choice of law provision contained within the relevant agreement the parties common law counterclaims including for unjust enrichment are all governed by new york law if anything can be gleaned from the conflicting case law described above it is that the more an unjust enrichment claim relates to an enforceable contract the more likely it is to be considered contractual in nature for the purposes of new yorks choiceoflaw analysis given the allegations surrounding plaintiffs unjust enrichment claim this line of best fit argues in favor of applying alaska law pursuant to the policys choiceoflaw provision nevertheless because the law is not entirely clear on this point the court will apply both alaska and new york law and will only be forced to choose between the two at this stage if a conflict presents itselfb analysisto state a claim of unjust enrichment under new york law the plaintiff must allege 1 that the defendant was enriched 2 that the enrichment was at the plaintiffs expense and 3 that the circumstances are such that in equity and good conscience the defendant should return the money or benefit to the plaintiff bazak intl corp v tarrant apparel grp 347 fsupp2d 1 34 sdny2004 alteration in original footnote omitted quoting golden pac bancorp v fed deposit ins corp 273 f3d 509 519 2d cir2001 the essence of a claim for unjust enrichment is that one party has parted with money or a benefit that has been received by another at the expense of the first party id at 4 it is well settled that under new york law the existence of a valid and enforceable written contract ordinarily precludes recovery in quasi contract such as unjust enrichment for events arising out of the same subject matter id alteration in original quoting macdraw inc v cit grp equip fin inc 157 f3d 956 964 2d cir1998plaintiffs did not allege in the sac that the unjust enrichment claim was pleaded in the alternative to their breach of contract claim nor did they make this argument in their opposition papers they raised it for the first time at oral argument however under new york law plaintiffs cannot raise the unjust enrichment claim in the alternative to the breach of contract claim because there is a valid and enforceable written contract governing the subject matter beth isr med ctr v horizon blue cross blue shield of nj inc 448 f3d 573 58687 2d cir2006 quoting clarkfitzpatrick inc v long is rr co 70 ny2d 382 521 nys2d 653 516 ne2d 190 193 1987 see also air atlanta aero engg ltd v sp aircraft owner i llc 687 fsupp2d 185 196 sdny2009 dismissing unjust enrichment claim pleaded in the alternative noting that the plaintiffs failure to allege that the contracts at issue were invalid or unenforceable precluded it from seeking quasicontractual recovery for events arising out of the same subject matter courtien commcns ltd v aetna life ins co 193 fsupp2d 563 571 edny2002 the law in new york is that a party may assert causes of action in both breach of contract and quasicontract where there is a bona fide dispute concerning existence of a contract or whether the contract covers the dispute in issue or where one party wrongfully has prevented the other from performing the contract first alteration in original quoting randall v guido 238 ad2d 164 655 nys2d 527 528 1997 thus under new york law this cause of action for unjust enrichment fails and should be dismissedunder alaska law a party seeking to recover for unjust enrichment must show 1 a benefit conferred upon the defendant by the plaintiff 2 appreciation by the defendant of such benefit and 3 acceptance and retention by the defendant of such benefit under such circumstances that it would be inequitable for him to retain it without paying the value thereof ware v ware 161 p3d 1188 1197 alaska 2007 see also alaska sales serv inc v millet 735 p2d 743 746 alaska 1987 same the courts are in accord in stressing that the most significant requirement for recovery in quasicontract is that the enrichment of the defendant must be unjust that is the defendant must receive a true windfall or something for nothing in re avery 461 br 798 822 bankrdalaska 2011 internal quotation marks omitted citing millet 735 p2d at 746though the issue is slightly less clear cut than under new york law the court concludes that as under new york law the existence of a valid contract bars recovery under a theory of unjust enrichment the alaska supreme court has stated that eourts generally treat actions brought upon theories of unjust enrichment quasicontract contracts implied in law and quantum meruit as essentially the same in fact this terminology is generally employed interchangeably often within the same opinion bennett v artus 20 p3d 560 563 n 3 alaska 2001 italics and internal quotation marks omitted see also brady v state 965 p2d 1 13 n 38 alaska 1998 same and the alaska courts have stated that a plaintiff is entitled to the reasonable value of the services rendered to the defendant kinder the doctrine of quantum meruit only when a valid contract does not exist romero v cox 166 p3d 4 9 alaska 2007 internal quotation marks omitted see also krossa v all alaskan seafoods inc 37 p3d 411 419 alaska 2001 noting that plaintiffs may generally recover in quantum meruit for services rendered only when parties to a contract dispute do not have a valid contract mitford v de lasala 666 p2d 1000 1006 n 1 alaska 1983 it is well settled that proof of an express contract covering the services in question precludes relief in quantum meruit cf nicdao 839 fsupp2d at 1071 discussing the requirements for showing unjust enrichment under alaska law and stating that generally aplaintiff may not rely on a theory of implied contract where a valid express contract governs second alteration in original internal quotation marks omitted soules v ramstack 95 p3d 933 940 alaska 2004 enforcement of a valid contract does not constitute unjust enrichment additionally in nicdao v chase home finance an alaska district court dismissed an unjust enrichment claim under alaska law in part because the parties relationship was governed by valid contracts and the plaintiff could not plausibly allege a breach of the contracts at issue 839 fsupp2d at 1071 thus a plaintiff cannot recover for unjust enrichment under alaska law when a valid enforceable contract covers the services in questionthe court has not found an alaska case addressing whether a claim for unjust enrichment can be pleaded in the alternative to a breach of contract case however based on alaskas case law for a complaint to state an unjust enrichment claim that could plausibly warrant relief where a contract is also alleged to exist the plaintiff must allege in the alternative either that the contract is not valid that the contract does not apply or that the money goods or services the grant of which constituted the unjust enrichment was outside the scope of the contract otherwise under the facts alleged by the complaint the plaintiff would not be entitled to relief see us ex rel poong limpert v dick pacghemm joint venture no 03cv290 2005 wl 846204 at 2 dalaska apr 4 2005 noting that in alaska quantum meruit relief is not available to recover the value of services performed if the services are within the scope of the original contraet but if the services are beyond the scope of the contract quantum meruit relief is available and holding that the plaintiffs complaint survived a motion to dismiss because it contained two allegations that the plaintiff provided labor materials and services beyond what was required by the contract and that the defendant has not paid the plaintiff for those items footnotes omitted here plaintiffs have pleaded the existence of a contract and that the payment they made pursuant to the contract unjustly enriched defendant but have not alleged that the contract was invalid or that the payments were outside the scope of the contract even if plaintiffs are able to conclusively prove the truth of these factual allegations they still would not be entitled to relieffor the above reasons plaintiffs fail to set forth an unjust enrichment claim under either alaska or new york law and defendants motion to dismiss this claim is grantediii conclusionfor the above reasons defendants motion to dismiss is denied in part and granted in part in particular the following claims are dismissed the first cause of action for negligence relating to the failure to provide information and the failure to effect the redemption request the second cause of action for negligent misrepresentation related to the alleged misrepresentations about the fund assets and fund administrators as well as any other claims based on those alleged misrepresentations the third cause of action for breach of fiduciary duty the fourth cause of action for professional malpractice related to the failure to provide information and the failure to effect the redemption request the fifth cause of action for breach of contract the sixth cause of action for breach of the covenant of good faith and fair dealing and the seventh cause of action for unjust enrichment the motion is denied as to all other claimsso ordered1exhibit b to the sac contains several documents unnumbered page one is the policy receipt unnumbered pages two to three constitute a letter to the 2002 lawrence r buchalter alaska trust from joseph a fillip jr senior vice president and general counsel for defendant dated december 20 2002 the first dec 20 2002 letter agreement unnumbered pages four to nine constitute a letter to the 2002 lawrence r buchalter alaska trust from joseph a fillip jr senior vice president and general counsel for defendant dated december 20 2002 the second dec 20 2002 letter agreement unnumbered pages ten to twentytwo contain the flexible premium survivorship variable life payout tables unnumbered pages twentythree to fiftyone constitute the flexible premium survivorship variable life insurance contract the policy and unnumbered pages fiftytwo to sixtyfour constitute the buchalters life insurance application for ease of reference each of these documents will be cited separately2 exhibit d to the sac contains correspondence between buchalter and an employee of defendant unnumbered page one is an email from sandy geyelin to larry buchalter dated september 19 2005 unnumbered page two is a list of agl life assurance company insurance dedicated funds agl life assurance company insurance dedicated funds unnumbered page three is an email from sandy geyelin to larry buchalter dated september 21 2005 and unnumbered pages four to nine are an information sheet about ssr dated august 2005 august 2005 ssr tear sheet for ease of reference each of these documents will be cited separately3 the document also lists the significant risks associated with the investment objective and strategy of ssr august 2005 ssr tear sheet 24 in particular ssr was considering legal action against thomas petters see nov 20 fillip letter we are in contact with the managers of ssr on at least a weekly basis to monitor their activities regarding ssrs underlying investments with exposure to petters according to defendant petters was a ponzischemer and it had been discovered that ssr had exposure to investment funds he operated mem of law in supp of def phila fin life assurance cos mot to dismiss pis second am compl under rule 12b6 defs mem 7 dkt no 455 the court notes that plaintiffs allege that they received a summary of the fund in may 2007 sac 76 141 that summary provided at exhibit m states beginning in may 2006 the fund began employing modest leverage which the managers intend to limit to no more than one dollar of leverage per dollar of fund equity sac ex m may 2007 ssr tear sheet at 1 thus it appears that plaintiffs were advised of this change in investment strategy6 this term is not defined in the sac7 moreover it is not clear from the pleadings where the trust beneficiaries live or lived at the lime that the policy was issued8 the court notes as a final matter that the alaska choiceoflaw provision contained in the policy does not impact the courts analysis as to which states statute of limitations applies to buchalters claims in portfolio recovery associates llc v king 14 ny3d 410 901 nys2d 575 927 ne2d 1059 2010 the new york court of appeals considered whether the question of the timeliness of a plaintiffs claims for breach of contract and account stated was to be answered by reference to the statute of limitations of delaware the law of which the parties to the contract at issue had selected to govern their agreement in the contracts choiceoflaw provision id 901 nys2d 575 927 ne2d at 106162 the court described the choiceoflaw provision as standard stating that the contract would be governed by the laws of delaware id 901 nys2d 575 927 ne2d at 1060 the court held that the appellate division had properly concluded that the delaware choice of law clause did not require the application of the delaware threeyear statute of limitations to bar the plaintiffs claims as choice of law provisions typically apply to only substantive issues and statutes of limitations are considered procedural because they are deemed as pertaining to the remedy rather than the right id 901 nys2d 575 927 ne2d at 1061 citations and internal quotation marks omitted there being no express intention in the agreement that delawares statute of limitations was to apply to the parties dispute the choice of law provision cannot be read to encompass that limitations period id see also phillips v audio active ltd 494 f3d 378 384 2d cir2007 choice of law provisions generally implicate only the substantive law of the selected jurisdiction morson v kreindler kreindler llp 814 fsupp2d 220 225 edny2011 choice of law provisions typically apply to only substantive issues and statutes of limitations are considered procedural because they are deemed as pertaining to the remedy rather than the right quoting king 901 nys2d 575 927 ne2d at 1061here the alaska choiceoflaw provision contained in the policy is similarly standard stating only governing jurisdiction ak policy 3 and defining governing jurisdiction as the state or jurisdiction in which the policy is delivered and whose laws govern its terms id at 10
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mistake, partiality, prejudice, or corruption is shown, or the damages appear to be grossly exorbitant. The verdict must be clearly and immoderately excessive to justify the granting of a new trial. The amount must not only be greater than that which the court would have awarded, but so excessive as to offend the conscience and judgment of the Court. Id. at 426 (quoting Stark v. Lehigh Foundries, 388 Pa. 1, 130 A.2d 123, 135 (1957)). In Mirabel v. Morales, 57 A.3d 144, 150-51 (Pa.Super.2012), this Court held that counsel’s references in closing argument to race appealed to the passions and prejudices of the jury, and were so egregious that no curative instruction could alleviate the taint, necessitating a new trial. See Mittleman v. Bartikowsky, 283 Pa. 485, 129 A. 566, 567 (1925) . Dr. Schadt does not direct our attention to
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What is the most suitable continuation to the opinion? Your options are:
A. holding that counsel calling the opposing party the newer slicker members of his race was so manifestly improper and so glaringly out of place in an orderly trial of the issue created in this case that we cannot say the verdict represents the decision of an impartial jury
B. holding that after court dismissed case at plaintiffs request notwithstanding the fact that jury had deliberated upon the case and indicated that it had reached a verdict there was no case pending in court on which a verdict could be predicated and the information which the judge got from an inspection of the petition handed to him by the foreman of the jury was information which he received as an individual and not as a judge of the court and further holding that despite violation of defendants right to receive the verdict that was purportedly reached the writing incorporated in the bill of exceptions as a verdict of the jury was in law no verdict because it was not received in court and published as required by law and was instead entirely extraneous and extrajudicial
C. holding that where the meaning of the jurys verdict was not clear in light of the trial courts jury instructions the court of appeals erred in directing entry of judgment for respondent the case should have been remanded to the trial judge who was in the best position to pass upon the question of a new trial in light of the evidence his charge to the jury and the jurys verdict
D. holding that a defendant could not establish stricklands prejudice prong because any erroneous exclusion of an impartial juror was harmless because we have every reason to believe the replacement was also an impartial juror the defendant does not dispute that he was convicted and sentenced by an impartial jury and he presents no reason to think that a jury composed of a slightly different set of impartial jurors would have reached a different verdict
E. holding that we may reverse a conviction under plain error only if the prosecutors improper conduct so affected the jurys ability to consider the totality of the evidence fairly that it tainted the verdict and deprived the defendant of a fair trial
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Read the following excerpt from a US court opinion:
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in the course of mental health counseling. See id. at 561. Any threat of disclosure of such information would obstruct, if not bar, successful treatment. See McCormick § 98, at 447. Moreover, unwanted disclosure of highly personal information separately implicates one of the most fundamental tenets of all law—the right to privacy. Heemstra, 721 N.W.2d at 561. Thus, we are not just dealing with a strong belief recognized by statute, but a right with roots found in our constitution. The privilege necessarily recognizes a right to protect the privacy interests of the individual to keep private information from public disclosure, independent from the need for optimum medical treatment recognized by statute. See McMaster v. Bd. of Psychology Exam’rs, 509 N.W.2d 754, 758-59 (Iowa 1993) . Nevertheless, all fifty states and the
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What is the most suitable continuation to the opinion? Your options are:
A. recognizing an individuals right of privacy in the content of health records and noting that health records are the property of the health care entity maintaining them
B. holding that every citizen has a constitutional right of privacy in his or her medical records
C. recognizing the roots of the right to privacy in mental health records
D. holding that constitutional right of privacy does not apply to medical records
E. recognizing a constitutional right of privacy in mental health records
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Read the following excerpt from a US court opinion:
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merits, the court held Bolt was qualified to testify that Feltes failed to follow the work papers and perform all of the required interviews and inventory checks. II. Issues. Kircher raises two issues on appeal. The first deals with error preservation while the second deals with whether Bolt was qualified to testify as to generally accepted CPA auditing standards, whether the accountant breached those standards, and causation. III. Error Preservation. A ruling sustaining a motion in limine is generally not an evidentiary ruling. Twyford v. Weber, 220 N.W.2d 919, 923 (Iowa 1974). Rather, a ruling sustaining a motion in limine simply adds a procedural step to the introduction of allegedly objectionable evidence. Id.; accord Johnson v. Interstate Power Co., 481 N.W.2d 310, 317 (Iowa 1992) . Thus, a motion in limine “serves the useful
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What is the most suitable continuation to the opinion? Your options are:
A. holding that for error to be preserved on appeal with regard to admission of evidence in violation of a ruling on a motion in limine that the evidence is inadmissible an objection should be made at the time the evidence is offered
B. recognizing a ruling sustaining a motion in limine merely adds a procedural step to the offer of evidence and that if the evidence is not offered there is nothing preserved to review on appeal
C. holding grant or denial of motion in limine is preliminary ruling and normally preserves nothing for appellate review
D. holding that failure to object does not preclude raising the issue on appeal where erroneous evidence is offered in violation of an order in limine
E. holding defendant failed to preserve for appeal the question of admissibility of evidence that was the subject of the motion in limine where defendant failed to object to evidence when offered at trial
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Read the following excerpt from a US court opinion:
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graduating class. 3 . The exhaustion requirement of IDEA is not required in certain circumstances. Where the plaintiff is not seeking relief “also available” under the IDEA, exhaustion is not a prerequisite to the filing of a civil action. Blanchard v. Morton Sch. Dist., 420 F.3d 918, 922 (9th Cir.2005) (emotional distress injuries and lost income for parent); but see Robb v. Bethel Sch. Dist., 308 F.3d 1047, 1049-50 (9th Cir.2002) (plaintiff cannot avoid exhaustion requirement merely by limiting relief to money damages, which is not available under IDEA). Exhaustion is not required where educational issues are not at dispute. See Witte, 197 F.3d at 1275 (where claim for monetary damages could proceed because all educational issues had already been resolved); Blanchard, 420 F.3d at 921 . Similarly, when the validity of a blanket
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What is the most suitable continuation to the opinion? Your options are:
A. holding that a claimants claim is barred when administrative remedies that are clearly required under an erisa plan are not exhausted
B. holding that the remedies are exclusive
C. holding that administrative remedies must be exhausted prior to filing a claim in court
D. holding that if adequate administrative remedies are available it is improper to seek relief in court before those remedies are exhausted
E. recognizing that ideas administrative remedies cannot compensate injuries that are completely noneducational
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Read the following excerpt from a US court opinion:
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the doctrines of absolute judicial immunity and qualified public official immunity. See Parker v. State, 337 Md. 271, 284-85, 653 A.2d 436, 442 (1995) (noting that this Court has “distinguished between the qualified and narrower immunity for discretionary acts generally accorded to public officials, and absolute judicial immunity, which, unlike qualified immunity, applies regardless of the nature of the tort and even where the suit against the judge alleges that he acted in bad faith, maliciously or corruptly” (citations omitted)). While the parties, the trial court, and the intermediate appellate court in this case have focused on the concept of qualified judicial immunity, no such doctrine has been adopted by the Maryland Court of Appeals. See Parker, 337 Md. at 283, 653 A.2d at 442 . The doctrines of absolute judicial immunity
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What is the most suitable continuation to the opinion? Your options are:
A. recognizing judicial immunity for acts committed within their judicial jurisdiction
B. holding that the common law principle of absolute judicial immunity for judicial acts has neither been abrogated nor been modified in maryland emphasis added
C. recognizing same judicial estoppel principle under kansas law
D. holding that the statutes abrogated the common law
E. holding that judges have immunity from suit for judicial acts
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Read the following excerpt from a US court opinion:
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from antitrust liability under the Sherman Act and the Virgin Islands Anti-monopoly Law. Under Rule 56(c), this Court must accordingly grant defendant CAI’s motion for partial summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). B. Antitrust Liability Under The Sherman Act. CAI argues that VIPA is immune from antitrust liability under the Sherman Act as a result of the doctrine of governmental immunity. As defendant CAI correctly notes, virtually all levels of government have been granted some degree of immunity from the operation of antitrust law generally and the Sherman Act specifically. See Sea Land Service v. Alaska Railroad, 659 F.2d 243 (D.C.Cir.1981), cert. denied 455 U.S. 919, 102 S.Ct. 1274, 71 L.Ed.2d 459 (1982) ; Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307,
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What is the most suitable continuation to the opinion? Your options are:
A. holding that a railroad owned and operated by the federal government was immune from antitrust action under the governmental immunity doctrine which protects the federal government its agencies and instrumentalities from the reaches of antitrust law
B. holding that an individual is immune from antitrust liability for exercising first amendment right to petition the government
C. holding that a railroad operated and owned by the federal government was immune from antitrust liability
D. holding federal credit unions to be government instrumentalities immune from state taxation
E. holding that there must be a causal connection between the alleged antitrust violation and the antitrust injury for there to be antitrust standing
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Read the following excerpt from a US court opinion:
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not file a reply in response to the Medical Center’s answer and affirmative defenses, the Mays have waived any argument that the action is barred by the statute of limitations because a misnomer occurred and/or because there was an identity of interest between the Auxiliary and the Medical Center. However, the Mays filed a response to the Medical Center’s motion for summary judgment wherein they raised the misnomer issue and asserted, somewhat inartfully, that the Medical Center had been acting as the Auxiliary when it engaged in discovery. And the transcript of the hearing reveals that the trial court was clearly aware of all of the arguments being made. Thus we are not persuaded by the Medical Center’s preservation argument. Cf. Corya v. Sanders, 76 So.3d 31, 33 (Fla. 4th DCA 2011) . Further, the Medical Center never raised the
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What is the most suitable continuation to the opinion? Your options are:
A. holding that defendant waived reliance on new york law because 1 she relied on florida law in answer and affirmative defenses and failed to file any response or affidavits in opposition to the motion for summary judgment and 2 there was no transcript of the motion hearing provided
B. holding that under florida law a court hearing a case on a motion for a summary judgment can only consider those issues raised by the pleadings
C. holding that arguments not presented to the district court in response to a motion for summary judgment are waived
D. recognizing that a partys lack of response to a motion or argument therein is grounds for the district court to assume opposition to the motion is waived and grant the motion
E. holding that arguments not raised in opposition to a motion for summary judgment are waived
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Read the following excerpt from a US court opinion:
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12 . “[A] rule which would require the Union to divine the legal complexities of the contractual relationship on a construction site, at the risk of committing an unfair labor practice, would be unfair and unrealistic.” J.F. Hoff Electric Co., 642 F.2d at 1274. 13 . The statute provides a cause of action to “[w]hoever shall be injured in his business or property by reason of any violation of [section 8(b)(4)].” Once again, however, the courts have declined to give a literal meaning to the words of the statute, and in this context have set far more restrictive “standing” requirements than the statutory language, taken alone, would support. See Fulton v. Plumbers & Steamfitters, 695 F.2d 402 (9th Cir.1982), petition for cert. filed, 51 U.S.L.W. 3775 (U.S., March 25, 1983) (No. 82-1678) . The issue of whether or not David Butler,
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What is the most suitable continuation to the opinion? Your options are:
A. holding that courts should look to the standing principles developed under section 4 of the clayton act for guidance in interpreting section 303s standing requirements id at 406 for a recent discussion of standing under the clayton act see associated general contractors v california state council of carpenters us 103 sct 897 74 led2d 723 1983
B. holding that standing to raise a claim under 2a of robinsonpatman act is derived from section 4 of the clayton act
C. recognizing that 1404a allows for the transfer of clayton act suits
D. holding that the lack of shareholder standing under texas law does not implicate constitutional standing
E. holding that standing existed
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Read the following excerpt from a US court opinion:
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926 (1943) (“It becomes the duty of the board to make full and exhaustive inquiry, and to that end the board may not only examine any competent witness at the conclusion of his direct and cross examination upon all matters material and relevant to any issue, but it may also subpoena and examine other competent witnesses.”) This Court has permitted the Commission to consider authoritative, trustworthy, and rehable medical guides; however, those guides must be introduced into evidence by witnesses able to testify that the guide is the recognized authority. Pomerinke v. Excel Trucking Transp., Inc., 124 Idaho 301, 306, 859 P.2d 337, 342 (1993). The Commission is not entitled to use medical guides to assess claimants and formulate its own opinions regarding a claimant’s health. See id. . We conclude that the referee improperly
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What is the most suitable continuation to the opinion? Your options are:
A. holding that the admission of expert testimony was prejudicial where the testimony was pervasive
B. holding that expert medical testimony was not necessary to establish negligence where surgeon left a needle in the patients body but stating that proof of proximate cause requires some expert testimony in medical malpractice cases
C. holding expert testimony provided no evidence as to causation since testimony was not based upon reasonable medical probability
D. holding the commission properly considered a medical guide because it was used merely to support expert testimony and not to assess and formulate its own impairment rating for claimant
E. holding that because the tendered expert witness was a licensed psychologist and not a medical doctor he was not qualified to state an expert medical opinion regarding the cause of johns injury
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Read the following excerpt from a US court opinion:
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CURIAM. Tyrone D. Lester appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Lester was convicted of armed robbery and sentenced to life in prison with a mandatory minimum fifteen-year term as a habitual violent felony offender. He now raises five claims of ineffective assistance of counsel. For the reasons expressed below, we reverse as to three of his allegations; we affirm a .1999) . The trial court apparently recognized that
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What is the most suitable continuation to the opinion? Your options are:
A. holding that defendants may agree to departure from sentencing guidelines in plea bargain
B. holding that in light of the trial courts inquiry the defendants verbal responses and the defendants answers to the questions on the transcript of plea the trial court did determine that defendant was fully informed of the consequences of his choice to enter an alford plea
C. recognizing that both parties to a plea bargain make various concessions and gain certain advantages during plea negotiations and underscoring that a criminal defendant having availed himself of the advantages of a plea agreement cannot welch on his part of the bargain internal quotation marks and citation omitted
D. holding defendant did not show required prejudice from counsels alleged failure to advise him about eligibility for parole under the sentence agreed to in the plea bargain
E. holding the inherent prejudice in such cases results from the defendants inability due to counsels neglect to make an informed decision whether to plea bargain
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Read the following excerpt from a US court opinion:
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Harries v. Dutton, 594 F.Supp. 949, 961 (M.D.Tenn.1984) (“In the judgment of this Court, the conditions of confinement inflicted on Mr. Harries are so adverse that they have caused him to waive his post-conviction remedies involuntarily.”). Mr. Comer describes the conditions of his confinement in nothing short of Orwellian terms. He tells us that he is in “sensory deprivation,” has no access to legal materials, is permitted nothing in his cell, and must walk continuously for fear of becoming a “veggie.” Mr. Comer’s choice between execution at the State’s hands and remaining in the particular conditions of his confinement may be the type of “Hobson’s choice” that renders his supposed decision to withdraw his appeal involuntary. Cf. Gilbert v. Lockhart, 930 F.2d 1356, 1360 (8th Cir.1991) . The record is incomplete as it bears on Mr.
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What is the most suitable continuation to the opinion? Your options are:
A. holding that defendant was denied counsel even though his lawyer asked another defendants lawyer to take notes or whatever in the defendants lawyers temporary absence
B. holding waiver of right to counsel at sentencing not voluntary when trial court tried to dissuade discharge of counsel defendant believed incompetent for the waiver to be voluntary the trial court must inquire into the reasons for the defendants dissatisfaction with his counsel to ensure that the defendant is not exercising a choice between incompetent or unprepared counsel and appearing pro se
C. recognizing that providing defendant with hobsons choice between incompetent lawyer or no lawyer violates right to counsel
D. holding that a request for a lawyer requires the police to cease questioning until the accused consults with his or her lawyer unless the defendant initiates further conversation
E. holding that even where a client was more sophisticated in business matters than the lawyer himself the lawyer should have assumed the client was relying on the lawyer for the legal aspects of the loan from the client to the lawyer to the same extent that the client would rely on the lawyer for advice were the client making the loan to a third person
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Read the following excerpt from a US court opinion:
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courts to referee a political dispute about Puerto Rico’s constitutional limitations on structural changes to high-level political appointments. This we will not and need not do. Cf. El Dia, 963 F.2d at 497 (“Simply because an equitable remedy may be available does not necessarily mean that it must automatically issue.”). Comity concerns are particularly compelling on the facts of this case. Because the very existence of continuing property interests in these high-level political appointments implicates these difficult Commonwealth constitutional questions, the authority to remove these officials — and so the necessity of pre-deprivation procedures — may be obscure prior to litigation. Cf. S. Commons Condo. Ass’n v. Charlie Arment Trucking, Inc., 775 F.3d 82, 85-86 (1st Cir.2014) . Where, as here, the parties not only fail to
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What is the most suitable continuation to the opinion? Your options are:
A. recognizing that in some circumstances an afterthefact remedy under state law may be adequate
B. holding that in some rcases there is an adequate remedy at law for an attack on an illegal or unconstitutional tax through the tax appeal board
C. holding that in the absence of an adequate state remedy one whose constitutional rights are violated has a direct claim against the state under the state constitution
D. holding that adequate alternative state remedy must provide the possibility of relief under the circumstances
E. recognizing that in certain circumstances inquiry notice may be determined as a matter of law
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Read the following excerpt from a US court opinion:
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provides protection against prior encumbrances created by Crescent. To hold otherwise allegedly would render it a quitclaim deed. A special warranty binds the grantor and the grantor’s heirs. See Knotts, 217 S.C. 99, 102, 59 S.E.2d 850, 851 (1950). However, “[t]he grantor can, and often does, limit [covenants] so as to exclude existing encumbrances.” G.W. Thompson, Thompson on Real Property § 82.10(c)(3) (Supp. 2005); see § 27-7-20; see also Steele v. McRaney, 855 So.2d 1114, 1122-23 (Ala.Civ.App.2003) (finding language grantee would take “subject to” matters a survey or inspection of the property would have uncovered prevented grantee from prevailing in breach of deed covenant claim); Kamenar R.R. Salvage, Inc. v. Ohio Edison Co., 79 Ohio App.3d 685, 607 N.E.2d 1108, 1113 (1992) . Here, exceptions (5) and (6) in the habendum
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What is the most suitable continuation to the opinion? Your options are:
A. holding when a deed provides grantee would take subject to the state of facts which a personal inspection or accurate survey would disclose grantee has no claim against grantor for power line easement
B. holding that promissory estoppel existed when the grantor agreed to use the property for only residential purposes took title with knowledge of that promise and the grantee relied upon that agreement
C. holding that deed was valid when the deed was conveyed to grantee corporation which formally incorporated after the conveyance
D. recognizing that where a grantee has an easement which he shares with others his duty to repair and maintain it must be apportioned with all other easement holders based upon the extent of the individuals use of the easement
E. holding that where grantee was named as trustee without identification of the beneficiaries or the nature and purposes of the trust and no trust agreement of record was identified the grantee received fee simple title
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Read the following excerpt from a US court opinion:
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A.2d 749 (1993); McCullough v. Xerox Corp., 399 Pa.Super. 135, 581 A.2d 961 (1990), allocatur denied, 527 Pa. 624, 592 A.2d 45 (1991); and Grant v.GAF Corp., 415 Pa.Super. 137, 608 A.2d 1047 (1992), affirmed, 536 Pa. 429, 639 A.2d 1170 (1994).) My reasons for disagreement follow. First, I must disagree with the majority’s rationale for distinguishing these four cases. The majority opines that “if the employee [in the four cases cited supra] cannot meet the lesser burden of proof required in the workmen’s [sic] compensation action, then he should not be given another opportunity to prevail in a civil action.” (Majority opinion at 507.) The identical argument could, however, be raised instantly: 96); Liberty Baking Co. v. Com., W.C.A.B., 63 Pa.Cmwlth. 517, , 439 A.2d 1276, 1279 (1981) . Likewise, I cannot agree with the distinction
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What is the most suitable continuation to the opinion? Your options are:
A. holding that the federal expert witness compensation rules are in direct conflict with the state rules even when the state rules allow for a greater recovery
B. holding that pleadings under the rico act are to be liberally construed
C. holding that pro se pleadings are to be liberally construed
D. holding that the rules governing pleading in a workmens compensation case do not mirror the pennsylvania rules of civil procedure and that pleadings in compensation cases should be liberally construed
E. holding that pro se pleadings will be liberally construed
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Read the following excerpt from a US court opinion:
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only a limited and specified time period to discover breaches and damages that should be obvious upon regular and diligent inspection is intuitively obvious. Had these two accrual provisions not been reconcilable by construing the scheme as a whole, however, subsection 108(4), as the more specific of the two, would nevertheless prevail. See § 24-205. In Regional Transportation District v. Voss, we acknowledged and applied a rule favoring the application of the longer, rather than the shorter, of two equally applicable statutes of limitation. 890 P.2d 663, 668 (Colo.1995). Much like analogous rules of choice applicable to statutes or contractual provisions in other contexts, this rule is a rule of last resort. See id.; cf. People v. Thoro Prods. Co., 70 P.3d 1188, 1198-99 (Colo.2003) ; Thomas F. Segalla, Couch on Insurance § 22:16
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What is the most suitable continuation to the opinion? Your options are:
A. recognizing rule
B. holding rule of lenity in the penal context to be a rule of last resort
C. holding that the rule of lenity applies to sentencing guidelines
D. holding in sentencing guidelines context that the rule of lenity requires that we construe ambiguous terms in favor of the accused
E. recognizing that the rule of lenity applies only after courts exhaust all other evidence of congressional meaning
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Read the following excerpt from a US court opinion:
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Acito, 47 F.3d at 52 (quotation omitted). Moreover, the Class Complaint is silent as to how IAC’s decision to remit tax on the wholesale price it paid for rooms, rather than on the full retail price paid by customers, contributed to the deterioration of its relationships with hotel chains or customers. Although the Complaint advances other alleged misstatements (CC ¶¶ 44-48, 53, 56, 57-59, 74), none of these are accompanied by particularized facts explaining-why plaintiffs believe that the statements were fraudulent. See, e.g., CC ¶ 44 (“We are convinced that this merger [with IAC] will enhance the growth prospects for Hotels.com....”); CC ¶45 (“[W]e had a great quarter. Travel revenue was up 93% and EBITDA for tra ing Plan v. Philip Morris Cos., 75 F.3d 801, 811 (2d Cir.1996) ; Duane Reade, 2003 WL 22801416, at *6, aff'd
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What is the most suitable continuation to the opinion? Your options are:
A. holding that nyseg telling its investors that it would not compromise its financial integrity was not actionable under the securities laws
B. holding that expressions of puffery and corporate optimism do not give rise to securities violations
C. holding that such information is not material under securities law
D. holding that accurate statements about past performance are not actionable under the securities laws
E. holding that puffery is not actionable under the securities laws
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Read the following excerpt from a US court opinion:
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of government, in its various changes, has never recognized this power as an executive prerogative.’ 15 Md. at 456. The Court in Baltimore said that the Constitution ‘so far from treating ... the appointment power as an inherent executive power, indicates that it belongs where the people choose to place it.’ Id. at 457. Addressing the separation of powers question, the Court concluded: ‘In considering the question as to separation of the departments, we are to bear in mind that the Declaration of Rights is not to be construed by itself, according to its literal meaning; it and the Constitution compose our form of government, and they must be interpreted as one instrument.... The former announces principles on which the government, about to be established, will be based. 1-42 (1897) ; Warfield v. Com’rs of Baltimore County, 28
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What is the most suitable continuation to the opinion? Your options are:
A. holding that a states governor and attorney general were not proper defendants when they had no power to enforce the challenged statute
B. holding that legislation governing classification of employees in the governors office did not confer certain authority on the governor and lacking this power the governor could not change the legislative will through a set of regulations
C. holding that the governor had no power to make the appointment of officer of the school commissioner for cecil county without the consent of the senate when the office was not vacant because the legislature which had created and therefore controlled the office had not delegated that power to the governor
D. holding that the governor did not have to obtain the consent of the senate for the appointment of a candidate when the first candidate had been rejected by the senate the senate was not in session at the time that the second candidate was appointed and because the legislature which created and therefore controlled the office did not require by statute that the governor seek the senates approval in those circumstances
E. holding that the requirement that the county seek recommendations for appointments to a civil office from a private corporation was not constitutionally repugnant because where the office was created by the legislature the legislature retains the control over that offices method of appointment
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