ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] [...], Esq.  Attorney for Plaintiff/Respondent  [...] [...] [...]  Table of contents  Table of Citations  ...........................................................................................................2  Procedural History .........................................................................................................5  Statement of Material Facts .............................................................................................7  Legal Argument ..............................................................................................................9  I.  THE STANDARD OF REVIEW ..............................................................................9  II.  THE TRIAL COURT CORRECTLY HELD  DEFENDANT MAY NOT USE THE PROVISIONS OF THE NJCFLA OFFENSIVELY OR DEFENSIVELY TO VOID THE JUDGMENT  ..................................................................................10  A.  THE NJCFLA DOES NOT PROVIDE AN EXPLICIT PRIVATE STATUTORY CAUSE OF ACTION TO VOID A JUDGMENT ....................................................................................12  B.  THE NJCFLA DOES NOT PROVIDE AN IMPLIED PRIVATE STATUTORY CAUSE OF ACTION TO VOID A JUDGMENT ....................................................................................15  III.  THE TRIAL COURT CORRECTLY BALANCED THE COMPETING POLICIES INVOLVED .........................................................19  A.  THE PUBLIC POLICY ARGUMENT ..................................................................19  B.  THE TRIAL COURT'S FINDINGS OF FACT WITH REGARD TO DEFENDANT'S MOTION TO VACATE DEFAULT  WERE SUPPORTED BY ADEQUATE, SUBSTANTIAL AND CREDIBLE EVIDENCE ....................................................................................22  IV.  CONCLUSION
[brief] However, “[t]he State must do more than simply invoke the buzz words ‘high crime area’ in a conclusory manner to justify investigative stops. ”  *Id.* at 404.  Such specifics may include “a timeline or context for the drug sales [and officer] had witnessed” in an area, or how many “fugitives or a timeline during which those arrests occurred. ”  *Id.* at 404-05.  Furthermore, while nervousness is not in itself sufficient to establish reasonable suspicion, “nervousness and furtive movements may be considered in conjunction with other factors to establish reasonable and articulable suspicion” to conduct a protective search.  *State v. Dunbar*, 434 N.J. Super. 522, 527-28 (App. Div. 2014); see also *Valentine*, 134 N.J. at 553–54; *State v. Todd*, 355 N.J. Super. 132, 138 (App. Div. 2002).
[brief] Maestranzi Bros., Inc. v. Am. Employers' Ins. Co., No. 2005-1856 B, 2010 Mass. Super LEXIS 65 (Mass. Super. Apr. 9, 2010)  .....................passim Owens-Illinois, Inc. v. United Ins. Co., 138 N.J. 437 (1994)............................41,44  Peabody Essex Museum, Inc. v. United States Fire Ins. Co., 802 F.3d 39 (1st Cir. 2015)..............................................................................................................36,37  Peabody Essex Museum, Inc. v. United States Fire Ins. Co., No. 06-cv-11209-NMG, 2011 U.S. Dist. LEXIS 94792 (D. Mass. Aug. 24, 2011)  .................................................................................................................................40  Pickett v. Lloyd's, 131 N.J. 457 (1993)...............................................................41  Rowe v. Hoffman-La Roche, Inc., 189 N.J. 615 (2007)  ........................................47  Rubenstein v. Royal Ins. Co. of Am., 694 N.E. 2d 381 (Mass. App. Ct. 1998) .................................................................................................................................29  Trustees of Tufts Univ. v. Commercial Union Ins. Co., 616 N.E.2d 68 (Mass. 1993) .................................................................43  United States Fid. & Guar. Co. v. Treadwell Corp., 58 F. Supp. 2d 77 (S.D.N.Y. 1999) ...............................................................41,44  Statutes N.J.S.A §17:29B-4(9) ..................................................................................................................41
[brief] If she worked closing, she would have to clean her entire department including making sure there was nothing on the floor.  Id.  During her shift, as she would walk along the department, if she saw something on the floor, she would have to pick it up.  She had to be “always aware, … always vigilant. ”  Id.  [...] further testified that during shift hours, when customers are inside the store, any person who saw a spill on the floor was responsible for cleaning it up.  Pa74-75, at issue in the summary judgment motion was not whether [...] had adequate procedures in place to address hazards such as adequate procedures for inspecting for and cleaning up spills.
[brief] The New Jersey Supreme Court has clarified that “[d]eterminations as to the precise contents of an ‘application for development’ are . . . left to the municipalities, in accordance with the Legislature’s general exercise of its ‘constitutional authority to delegate to municipalities the police power to enact ordinances governing’ land use ‘through the passage of the [MLUL].’”  Dunbar, 233 N.J. at 561 (quoting 388 Route 22 Readington Realty Holdings, LLC v. Twp. of Readington, 221 N.J. 318, 333 (2015)).  Where, as were the circumstances here for the City’s cannabis development applications, there is a checklist of application components provided by ordinance, which is “anticipated in, and incorporated by, the MLUL definition of ‘application for development’ in N.J.S.A. 40:55D-3 and, by extension, the TOA Rule of N.J.S.A. 40:55D-10.5. ”  Dunbar, 233 N.J. at 561-62.  Thus, to determine whether an application benefits from the protection of the TOA Rule, a court must analyze whether the \(^5\) Plaintiffs concede that the [...] is indeed an “agency” of the [...].
[brief] [Jeffrey Fagan, *No Runs, Few Hits, and Many Errors: Street Stops, Bias, and Proactive Policing*, 68 UCLA L. Rev. 1584, 1663 (2022). ]  Just as there was no articulable basis to believe [...] and his friends were involved in narcotics activity, there was no articulable basis to believe [...] and his friends were armed.  [...]’s testimony the men “bladed” their bodies when police arrived, something [...] did not actually witness himself, did not establish that the officers had a constitutionally sufficient basis for placing [...] and his friends against a porch, handcuffing them and subjecting them to a pat-down search for weapons, when: (1) the BWC footage, which captures the moment when police approached the men, does not show the men doing anything that would indicate they are armed; and (2) [...] and [...] were immediately placed against the porch, handcuffed and frisked, in precisely the same manner as [...] and his friends were frisked, simply for being on Leonard Avenue.
[brief] The Trial Court ignored this and rested its determination in large part on the “actions” of [...] after the Tax Foreclosure and the lack of any action of the defunct company, [...] Heights, in not asserting ownership.  [...] was required to “turn square corners” and comport itself with “compunction and integrity”.  FMC Stores Co. v. Borough of Morris Plains, 100 N.J. 418 (1985).  The fact is, if [...] acted as if it owned the subject property, this is not really dispositive.  More relevant is the fact that [...] did not foreclose the Riparian Grant.
[brief] The Expectations of the Parties Favor Prospective Application.  (Ja1–3; 4T)  Finally, the trial court did not analyze the third potential exception to the presumption against retroactive application—whether the expectations of the parties warrant applying the 2023 Amendment retroactively.  If it had, it would have been compelled to conclude that “all parties expected the matter to be governed by the version of [N.J.S.A. § 2A:32C-9(c)] in effect at th[e] time,” before the 2023 Amendment’s enactment, a factor that strongly favors prospective application.  Ardan, 231 N.J. at 613 (applying principle to amended unemployment benefits statute); see also James, 216 N.J. at 573 (expectation of retroactive effect must be “strongly apparent . . . to override the lack of any explicit or implicit expression of intent for retroactive application”).  Before the 2023 Amendment, no party expected that Defendants’ ability to assert the public disclosure bar defense would be taken away based on an as-yet uncodified veto power.  If Relator had believed that the AG’s veto power applied before the 2023 Amendment, it would have argued that point during briefing on the motion to dismiss the 3AC.  It did not.  Nor did the trial court address the nonexistent veto power when dismissing the 3AC on public disclosure bar grounds.  See 1T at 4:6–8, 13:23–14:3, 14:10–25, 16:2–17:2.  Indeed, all of the “evidence and briefing submitted to the trial court . . . indicated that all parties expected the issues in this appeal to be governed by the prior version” of the NJFCA.  Pisack, 240 N.J. at 373.  For all the reasons discussed above, this is as the Legislature intended.
[brief] THE BOARD FAILED TO PROPERLY CONSIDER MATERIAL FACTS INCLUDING PETITIONER’S SIGNIFICANT MITIGATION EVIDENCE.  (Pa1-6).  In denying [...]’s application for parole, the Board failed to properly weigh and consider a number of important mitigating factors, including: his advanced age, extensive participation in institutional programs and therapy, numerous letters from friends and loved ones willing to offer him support if released, and his substantial rehabilitative efforts while incarcerated.  The Board’s unexplained decision to place undue weight on the alleged aggravating factors elicited at [...]’s parole hearing, such as the circumstances of his decades-old offenses and his “inability to understand” the motivations for his criminal conduct, while ignoring or placing little weight on equally relevant mitigating factors, requires reversal.
[brief] [...], whose signature appears on both [...] franchise agreements, testified that the first time he saw a [...] franchise agreement was during the summer of 2023, when defendant’s cousin [...], who had a franchise in Syracuse, New York, asked for [...]’s help.  (9T13-13 to 14-5; 9T7-5 to 11).  Neither [...] nor his colleague [...] recalled any Bhagu franchise agreement, nor were they able to locate one in their electronic or paper records or with their lawyers, although the company kept copies of every franchise agreement it ever executed.  (9T14-6 to 23).  [...] also did not recall signing either Bhagu franchise agreement.  (9T15-20 to 16-4; 9T18-3 to 14).  [...] also testified that the agreements overlapped with the franchise agreement for [...], which was signed on May 7, 2015, and was in [...]’s files.  (9T9-18 to 20; 9T15-4 to 12; 9T20-20 to 22; Sa305-63).  Both agreements purported to grant an exclusive 10-year franchise for the same location.  (9T9-18 to 13-12; 9T15-11 to 16; 9T17-12 to 18-2).  Moreover, because of the ADA, [...] would not have approved a franchise for anyone other than [...].  (9T22-19 to 21).  [...] also testified that, under the ADA, defendant had 30% of the area development rights, but that each time a new unit was opened, a separate operating agreement had to be executed setting forth the ownership interest for that unit.  (9T40-7 to 16; 9T47-10 to 14).  Based on documents submitted by [...] to [...] and signed by both defendant and [...], defendant only had a 5% ownership share in [...] Hoboken.  (9T41-19 to 42-7).  He testified that the principal owner’s guaranty for [...] II that was submitted along with [...]’s certification related only to the ADA concerning the exclusive right to open franchises throughout New Jersey, New York, and Pennsylvania, and not the Hoboken franchise agreement that detailed percentages of ownership in the single Hoboken location.  (9T42-21 to 45-24).  On February 16, 2024, the trial court issued a written opinion finding that “the newly discovered documents submitted were not discoverable by reasonable diligence at the time of trial” because “the evidence was discovered among presumably thousands of documents” and “[d]efendant searched his email for around an hour before any emails with the documents popped up.
[directive] Notification of fatal and serious bodily injury law enforcement incidents shall be made in accordance with AG Directive 2019-4.  As soon as any local, county, or state law enforcement agency learns of a law enforcement incident as defined below, the agency shall immediately notify the County Prosecutor’s Office for the county in which the incident occurred, who shall in turn immediately notify the Attorney General’s Office of Public Integrity and Accountability (OPIA) Director or their designee.  7.2
[brief] The Inherent Contradiction in the Trial Court’s Orders Make Them Impossible to Carry Out and Effectively Deprive Plaintiff of the Opportunity to Depose [...] (Pa4, 9)  The two requirements of the trial court’s Order – that plaintiff must subpoena [...]’s deposition, and that the deposition must occur in New Jersey – are irreconcilable.  Because [...] is a German resident, he is outside the trial court’s subpoena power.  Rather, if plaintiff subpoenas [...] pursuant to the Hague Convention of 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Convention”),\(^6\) the deposition would occur in Germany.  During the deposition, the plaintiff would be subject to bi-lateral treaties and local laws, which (a) do not allow for cross examination and (b) permit witnesses to refuse to answer questions that would have to be answered in New Jersey under R. --- \(^6\)  The Hague Convention provides signatory nations a process by which evidence can be obtained.  This process “is based on a mutual respect as between the laws of the participating nations-i.e., ‘comity. ’  Accordingly, a discovery request emanating from a foreign tribunal must be compatible with the laws of both the propounding and host country.  [Importantly, however,] a foreign tribunal is vested with the authority to determine whether, and the extent to which, discovery from the propounding nation is permissible under the former's own laws.  [...], *The Hague Convention: A Medium for International Discovery*, 40 N.C.  J. INT'L L. 771, 772 (2014).  Pa378.  That would deprive plaintiff of a meaningful deposition of one of the decisionmakers in this case who, as the trial court noted, has knowledge of facts that no other defense witness has.
[brief] between the parties are present in this case\(^9\) and there is no obligation that a contract be reduced to a writing to be enforceable. \(^10\)  Since the parties agreed on essential terms and manifest an intention to be bound by those terms – e.g., the price at which the services would be sold to plaintiffs and the billing for same - they have created an enforceable contract. \(^11\)  Defendant’s performance by furnishing water services to plaintiff and plaintiff’s payment for same supports a finding of a valid services contract. \(^12\)  The mere fact that defendant sells water services in furtherance of any government functions fails to eliminate the express contract for the sale of the services as reflected by the billing for same.  A state entity may be held liable for breach of an express written, oral or implied in fact --- \(^9\)
[brief] The other allegation against [...] was the alleged trespass claim.  In an attempt to justify their pursuit of this unsupported claim, Plaintiffs reference two pieces of information.  First is [...]’s Response to Interrogatory No. 12 asking it to identify all physical entries onto Plaintiffs’ Property.  (Pa000108).  [...] responded that it did not recall any physical entry onto Plaintiffs’ Property related to the redevelopment project, but it was “possible” that an employee was “on and/or in the area” of the Property to conduct survey work.  (Id.).  The possibility of conducting survey work on or in the area of Plaintiffs’ Property is not a trespass, and it certainly did not cause Plaintiffs to sustain any damages.  By contrast, Plaintiffs’ Responses to Interrogatories stated that they did “not know whether [...] physically entered upon the Property without” Plaintiffs’ consent.  (Pa000060).  After the exchange of this written discovery between the parties, Plaintiffs kept [...] in the case for over one year after being served the safe harbor letter.
[brief] Da167, 221, 224.}  Plaintiff nevertheless made the decision in 2018 to file an action against Defendants in Pennsylvania rather than in the District of Columbia.  And after that action was dismissed, Plaintiff then made the strategic decision to forgo an appeal and file this lawsuit in New Jersey in 2022.  By then, the reason for Plaintiff’s resort to a New Jersey court rather than the far more logical D.C. forum was transparent: New Jersey has a six-year statute of limitations for malpractice claims, and the District of Columbia’s three-year statute of limitations had long since run.  Plaintiff cites no authority permitting the Court to exceed the outer bounds of New Jersey’s jurisdictional reach to save Plaintiff from its deliberate, strategic decisions.  See Shifchik v. Wyndham Worldwide Corp., 2020 WL 1866942, at *3 n.4 (N.J. Super. Ct. App. Div. Apr. 14, 2020) (rejecting argument that court should exercise jurisdiction because plaintiff would otherwise have no recourse, noting plaintiff could have filed timely action in appropriate forum).
[brief] ”  N.J.S.A. 2A:58C-3a (Exemptions from liability) (emphasis added).  Defendant’s position ignores the highlighted language.  There is no dispute that the alternative design is feasible and does not impair the usefulness of the product.  It is the very reason that safety systems are updated and marketed as newer technology becomes available.  Defendant markets it as a superior safety system available as an upgrade.  It does not impair the usefulness of the product in any way.  The statutory limitation of liability does not apply to the circumstances of this case.
[brief] 22 CONCLUSION ........................................................................ 38  TABLE OF APPENDIX (Pa1-Pa57)  CONTENTS  Plaintiff’s September 15, 2022 Complaint ..............................................Pa1  Defendants’ October 13, 2022 Answer......................................................Pa19 Reply  Certification Of Plaintiff’s Counsel In Further Support Of Plaintiff’s Motion For Disqualification, Dated January 15, 2024...........................................................................Pa33  Exhibit 1: Letter Of Plaintiff’s Counsel To Defense Counsel  Dated August 3, 2023 ...............................................................Pa35  Exhibit 2: The Deposition Transcript of [...]  [As This Document Was Previously Provided To The Court At Da204-255, It Is Being Omitted In Lieu Of Duplication Pursuant To R. 2:6-1(a)(2). ]  Exhibit 3: Email Thread Between Defense Counsel And Plaintiff’s Counsel  ...............................................................................Pa38  The Appellate Division’s April 9, 2024 Order Granting Defendants’ Motion For Leave To Appeal .................................Pa55  The December 8, 2022 Substitution Of Counsel Of The [...] On Behalf Of Plaintiff  [...]  ..........................Pa57  TABLE OF JUDGMENTS, ORDERS, AND RULINGS BEING APPEALED
[brief] *See Innes v. Innes*, 117 N.J. 496, 509 (1990) (well-established canons of statutory interpretation require courts to “avoid constructions that render any part of a statute inoperative, superfluous, or meaningless. ”).  \(^1\)  *See also* 15 U.S.C.A. § 1692b(5) (restricting the use of language or symbols which reveal a connection with debt collection in communications made via telegram.).
[brief] A reading of the Certification of [...] (Pa-46) is dispositive of this appeal.  There, the Plaintiff states that prior to his appointment, county counsel was a full-time position, but was changed to a “competitive, contracting process” which provided for “part-time county counsel with in-house assistance of an attorney and paralegal/secretary. ”  Outside counsel are assigned and compensated pursuant to the R.F.P. process and S.C.F./S.C.C. approved counsel list (Kelly Certification, ¶2; Pa-46).  There was an approved list for outside counsel, all of whom were selected from that list by the Plaintiff.  There was an assistant counsel, [...] (Kelly Certification, ¶3; Pa-46).  Ms. Tracy was employed by the County during the term of the full-time county counsel and remained during the term of the Plaintiff (Kelly Certification, ¶4; Pa-46).  Also provided to the Plaintiff, [...] was employed by the County as a paralegal/secretary to county counsel and remained during Plaintiff’s employment (Kelly Certification, ¶4; Pa-46).  Outstanding law firms were recognized as approved outside counsel which provided significant representation for County government in matters which were considered as beyond that of County counsel (Kelly Certification, ¶5; Pa-46).  Plaintiff was “required by the county to be physically present with established office hours in the Administration Building on a daily basis and on-call 24/7 to deal with emergent matters” (Kelly Certification, ¶8; Pa-46).  He was required to provide legal services to the Board, Administrator, constitutional officers, department heads, independent agencies and employees on an ongoing basis and if necessary, to respond to these needs on a daily basis (Kelly Certification, ¶9).  The technical specifications for the position as county counsel provided for the selection of an “individual” and required that individual to “personally perform services as county counsel” (Kelly Certification, ¶12).
[brief] **The filing of any motions, particularly dispositive motions, and their outcomes.**  In *Cole* the Supreme Court observed: “The filing of a dispositive motion is a significant factor in demonstrating a submission to the authority of a court to resolve the dispute. ”  *Cole*, 215 N.J. at 282.  The inverse, of course, would be that the lack of dispositive motion practice would be a significant factor militating against a finding of waiver.  In this case, no dispositive motions have been filed.  c.
[brief] exact criticisms and dire warnings from this court in Burnett and the Supreme Court in Simmons are now before this Panel as a defense to providing records.  The [...] made whatever this mess may be and continues to allow it to fester.  Every day, more and more government records are being put beyond the public eye because of this.  This Panel cannot endorse this conduct and relieve them of having to take reasonable steps to unwind the knots in which they have tied themselves.  If the [...] has to engage in some extra steps to get the materials, maybe they will be motivated to end this circumventing of OPRA.  Rarely does the law reward the cheater and it surely should never encourage it.