ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Portillo v. Nat'l Freight, Inc., 2022 U.S. Dist. LEXIS 103186 (D.N.J. June 9, 2022) (quoting N.J.S.A. 34:11-4.2).  With limited exceptions, the WPL also prevents employers from contracting around their wage payment obligations.  Ibid.; N.J.S.A. 34:11-4.7.  The WPL permits employees to sue to recover the full amount of their wages if an employer fails to fulfill its obligations.  Ibid.  Although the WPL does not include a legislative statement of intent, its enactment leads to the conclusion that the statute was designed to protect employees' wages and to guarantee receipt of the fruits of their labor.  Ibid.  The WPL is therefore a remedial statute that should be liberally construed to effectuate its remedial purpose.
[brief] Plaintiffs’ reliance upon the Third Circuit’s Decision in United Steel Paper v. Gov’t of V.I., 842 F.3d 201 (3d Cir. 2016) to try to argue otherwise is misplaced.  The critical issue in United Steel Paper was that the problem or “impairment” that caused the government to abrogate its contract existed at the time the government entity entered into the contract at issue.  That is not true here.  In *United Steel Paper*, the Virgin Islands government enacted a law that reduced the salaries of its own employees shortly after entering into collective bargaining agreements, which was the basis for the Third Circuit’s holding that an “impairment” is not reasonable if the conditions existed at the time of the negotiations.
[brief] [...] stated he was unaware defendant had a lawyer, but that defendant could stop talking at that point or waive his right to have a lawyer present.  Defendant stated he would listen, and [...] further clarified whether defendant was willing to waive his rights.  Defendant stated he was and that he understood [...]’s instructions.  [...] began to question defendant when defendant stated “I ain’t being recorded or nothing. ”  [...] then asked if defendant wanted to stop the recording, and defendant stated he did because “I never been informed that I was being recorded. ”  Both [...] and [...] indicated the recording would be turned off, but it was not.
[brief] It is well-settled that after the filing of a notice of appeal, a trial court lacks jurisdiction to act further in a matter unless directed to do so by an appellate court, or jurisdiction is reserved by statute or court rule.  Rolnick v. Rolnick, 262 N.J. Super. 343, 365-66, 621 A.2d 37 (App. Div. 1993); Manalapan Realty v. Township Committee, 140 N.J. 366, 376 (1995) (The ordinary effect of the filing of the notice of appeal is to deprive the court below of jurisdiction to act further in the matter under appeal unless directed to do so by the appellate court).
[brief] A.  The Defendants Violated Agreements That Provide For Counsel Fee Awards.  To start, the trial court found that the defendants breached the [...].  Section XX of that document, entitled “Violation of this Agreement,” provides for a broad indemnity to the Plaintiffs:  Any member who shall violate any of the terms, conditions, and provisions of this Agreement shall keep and save harmless the Company property and shall also indemnify the other members from any and all claims, demands, and action of every kind and nature whatsoever that may arise out of or by reason of such violation of any terms and conditions of this Agreement.  (Da2710).  This broad language is not limited to third party claims, or by the nature or scope of the violation.  See Boyle v. Huff, 2023 N.J. Super. Unpub. LEXIS 85, at *17 (App. Div. Jan. 20, 2023).  It requires members to indemnify other members “from any and all claims . . . of every kind and nature whatsoever” arising from a violation.  The Plaintiffs prevailed on their MRL breach of contract claim.  (36T 50:10 to 51:21).  Full indemnity is the contractually prescribed remedy when one member violates “any term[] and condition[’]” of the agreement.  Section XX entitles Plaintiffs to indemnification from defendants for violating their rights, including attorneys’ fees, expenses, and costs of suit.  See, e.g., Metex Mfg. Corp. v. Manson, 2008 U.S. Dist. LEXIS 25107, at *30 (D.N.J. Mar. 28, 2008) (broad indemnity as to “any liability” arising from “any” claim, including claims by other members, sufficient to warrant award of counsel fees).
[brief] FAC ¶ 31, id.  On August 5, 2015, the [...] administrator issued a letter confirmation to [...], advising that Registration No. [...] had been accepted, for a 8,982 Mwdc solar electric system to be installed at [...], at the [...].  FAC ¶ 32, Pa1616; Pa2550-59 ([...] Cert Opp SJ).  On August 17, 2015, [...] obtained assignment of an Interconnection Agreement [...] (the "Interconnection Agreement") which allows the owner of the Solar Project to connect to the utility.  The Interconnection Agreement is a separate and distinct asset that belongs to [...] and therefore to plaintiffs.  FAC ¶ 33, id.  Contemporaneously, [...] obtained assignment of a Wholesale Market Participation Agreement (the "WMPA") with [...] ("[...]"), and [...] ("[...]"), a [...] company, [...] Queue #W1-082, which allows it to sell the electricity generated at the Project Site to the local utility.  The WMPA is a separate and distinct asset belonging to [...] and therefore to plaintiffs.  FAC ¶ 34, id.  The development of a solar farm implicates a new, different set of rights and facilities unrelated to the SRECs, including WMPA and an “Interconnection Agreement” and the land on which to operate the solar farm.
[brief] Doctors like [...].  And when he came back to practice, he was still working with these firms, still of counsel to these firms, and at the same time he was doing expert work, coming to court, testifying on behalf of plaintiffs against surgeons, and doing a lot of -- you’re going to hear in his career, he’s done almost a thousand cases as an expert for plaintiffs, all over the country.  All over the country.  But for the time involved in this case, 2016, he couldn’t do what [...] was doing at a hospital, a consultation or a surgery.  He couldn’t do it for ten years.  So you’re going to see a lot of witnesses for the plaintiff.  I’m not sure how many.  But far more than I’m going to have.  As [...] has told you and what you will hear at the end is that the burden of proof by the plaintiff is by a preponderance of the credible evidence, by the greater weight of the evidence.  Now the greater weight does not mean the number of witnesses, the number of documents that are put in evidence, but it’s the quality of that evidence.  Now when you hear [...]’s testimony and his qualifications, versus the qualifications of my experts and my own client, I’m confident you will find that the believable evidence is that which is put on by the experts for the defense.  And that the testimony of [...] with respect to deviation of standard of care by [...] are not worthy of belief.
[brief] For the foregoing reasons, the trial judge’s order enforcing settlement dated January 4, 2024 should be affirmed.  Respectfully Submitted, [...]  By: /s/ [...]  [...]  Dated: August 1, 2024  BRIEF AND APPENDIX FOR DEFENDANT-RESPONDENT, NGOC PHAM LAW  OFFICE OF MICHAEL G. DAVID  [...]  Tel.: [...]  Email: [...]  Attorneys for Defendant- Respondent, [...] Date Submitted: August 1, 2024
[brief] 99a | 16 | | Conclusion as to Stipulations and Fraud by the Plaintiff | 25 | | Plaintiff [...]’s knowledge of [...]’s desire to redeem prior to their sale of the property to [...]/[...] | 26 | | Offers to Purchase the Property | 26 | |  Proof submitted by Defendants that they were not served and were not home at time of service of process and that [...]’s name is not “Linda” as appears on the filed the Affidavit of Service | 28 | Legal Argument  Point I  Standard of Review for a Motion to Vacate Default Judgment (T4, p. 100:18-23)  ...........................................................................................................  32  Point II  The Court improperly entered Default on Defective Affidavits (Court did not address these issues)  ..................................................................................  36  Point III  The Court erred in affording the Affidavits of Service a presumption of validity and improperly shifted the burden onto the Defendants to prove by clear and convincing evidence that they were not served (T4, p. 100:18-23)  ...........................................................................................................  39  Point IV  The Court failed to address the fact that the notary had no contact with the process server and the defects in the Affidavits.  (T4:97:12-20)  ....................................................................................................................  40  Point V  The Process server was not independent and had an interest in the litigation.  (T4, p. 98:1-4)  ..................................................................................................................  45  Point VI  Plaintiff committed fraud and [...] was not a bona fide purchaser for value without notice as they also committed fraud.  (T4, p. 98:1-5)  ....................................................................................................................  46  Conclusion .............................................................................................................................
[brief] 7.  The “PLUS” element (also referred to as the “discount” or “discount fee”) of Defendants’ “Interchange PLUS” pricing formula is supposed to reflect a second, typically smaller markup for the credit card processing company itself (like [...]).  The “discount” or “discount fee” represents the profit margin Defendants purportedly receive for the services they provide as the Merchant Customer’s credit card processing company.  Moreover, when Defendants bill for what are supposed to be the charges agreed upon by their Merchant Customers, Defendants typically also include various additional, miscellaneous “pass through” charges consisting of administrative expenses imposed by the credit card issuers and paid by Defendants on behalf of their Merchant Customers, for which Defendants claim the right to be reimbursed.  In fact, however, as explained below, each of these three categories of charges – the “interchange rate”, the “discount fee”, and the “pass through” expenses Defendants supposedly paid on behalf of their Merchant Customers – have been systematically, surreptitiously and artificially inflated by Defendants to their benefit.
[brief] Rather, [...] was arrested in December 2005 for credit card fraud related to the fraudulent purchases of clothes from [...]’s credit card – a charge that was subsequently dismissed.  [...] suspected that [...] was involved in the Teaneck home invasion, and eventually connected him to the other two home invasions.  Callahan testified that [...] was living with his sister, [...], and [...], who was [...]’s boyfriend.  (l0T 21-22).  He stated that he went to Paterson quite a bit and looked at the Sealy Mattress factory and [...]’ residence and frequently saw [...] with [...].  (l0T 23).  He also stated that once he focused on [...], he was able to identify [...] as a coconspirator.  (l0T 23).  Callahan testified he was confident that the second perpetrator was [...] but could not identify an alleged third coconspirator.  (l0T 27-28).  He hadn't seen [...] and [...] with a third party and the three home invasions did not lead him to a third suspect.  (l0T 28-29).  Callahan testified that [...] was arrested on the morning of July 11, 1996, followed by the arrest of [...] later that morning.
[brief] Negligence is readily apparent to a person of average intelligence and ordinary experience when jurors can use their common knowledge as lay persons to determine the negligence of the defendant without the benefit of specialized or technical testimony from an expert witness.  See Hubbard v. Reed, 168 N.J. 387, 395-97 (N.J. 2001); Bender v. Walgreen E. Co., 399 N.J. Super. 584, 590, 945 A.2d 120 (App. Div. 2008).  The common knowledge exception applies even to cases where [...] would be required, and the question goes to the nature of the conduct in issue, not the licensure status of a defendant.  Under the common knowledge doctrine, a malpractice case against a licensed professional may present triable issues without requiring the testimony of an expert.  In such a case the jury itself is allowed "to supply the applicable standard of care and thus to obviate the necessity for expert testimony relative thereto."  *Sanzari v. Rosenfeld*, 34 N.J. 128, 141, 167 A.2d 625 (1961).  The trial of such a case is essentially no different from "an ordinary negligence case."  *Id.*; see *Buckelew v. Grossbard*, 87 N.J. 512, 527, 435 A.2d 1150 (1981) other than the fact that it is against a professional for that person’s professional conduct.
[brief] Notably, this is not the first time that the Director has attempted to stretch the meaning of N.J.S.A. 10:5-14.1 beyond its intended applicability.  See Sashihara v. Nobel Learning Cmtys., Inc., 461 N.J. Super. 195, 207 (App. Div. 2019), where the Appellate Division rejected the Director’s contention that the statute provided him with the “authority to proceed with either a plenary action or a summary action: ”  [T]he Director argues that the statute's use of the word "may" gives the Director authority to proceed with either a plenary action or a summary action.  However, a plain reading of the statute does not support this interpretation; instead, it simply allows the Director the option to file the summary action or not file the summary action.  See O'Connell v. State, 171 N.J. 484, 488, 795 A.2d 857 (2002) (holding courts "may neither rewrite a plainly-written enactment of the Legislature nor presume that the Legislature intended something other than that expressed by way of the plain language").  Indeed, the same statute which the trial court relied on in finding that Plaintiffs satisfied this prong of the Crowe requirements (Da103) simply “allow[ed] the Director the option to file the summary action or not file the summary action,” and nothing more.  Sashihara, supra.  The trial court in the instant matter was not authorized to presume that the Legislature intended to extend N.J.S.A. 1-10-14.1 to mean that the “body of law” relevant to any such filing by Plaintiffs, as a matter of automatic right and in every instance, shall be considered *per se* “settled. ”  *Ibid.*  The trial court did correctly hold that “[a] party seeking preliminary injunctive relief **must establish** a well-settled right to proceed on its claims” by clear and convincing evidence [emphasis added] (Da102).  Plaintiffs are unable to do so, and therefore, the trial court’s Order respectfully must be reversed, and Plaintiffs’ injunction denied as a matter of law.
[brief] ”  (Emphasis added.)  While [...] alleges that a faulty “product,” i.e., water, was provided, he then attempts to evade the Tort Claims Act bar by disguising his claims as “contractual. ”  Courts have been quick to reject attempts by a party to pursue barred claims simply by recharacterizing them as something else.  1.  **[...]’s Claims Are Quintessential Products Liability Claims.
[brief] As the trial court rightly found, the Borough, through the cannabis Subcommittee and through the actions of the Borough Council itself, engaged in a long, thoughtful process leading to the award of the Resolution of Support to [...].  No document has been presented indicating that the members of the Cannabis Subcommittee were required to refer to or fill out the evaluation sheet, a point raised by [...]. Pa2; Pb11.  The considerations referenced in the evaluation sheet addressed the same information as was provided by the applicants to the Cannabis Subcommittee, and thereafter in a presentation to the full Borough Council.  Stated differently, the information referenced in the evaluation sheet was also available to the Borough governing body through the information furnished by applicants.  As the trial court observed in its December 2023 Decision, [...] provided no support to it indicating that members of the Subcommittee or the Borough Council were required to fill out any particular form, such as the evaluation sheet, in performing a review of the applicants.  Each member of the Subcommittee and of the Borough Council received the same information, and drew their own conclusions based upon that information.  The two Borough Council members of the Subcommittee came to different conclusions as to which applicant should be granted the Resolution of Support, and the vote of the full Borough Council was 5-1, with [...] receiving five votes and the Resolution of Support thus going to [...].  Pa2; Pa64.  The individual members of the cannabis Subcommittee and of the Borough Council may have differed in their views of the strength and weaknesses of the applicants, but their views did not need to coincide, as a unanimous vote was not required.  Ultimately, the members of the governing body voted 5-1 that the Resolution of Support should be granted to [...].  As a matter of law, that vote was absolutely sufficient.
[brief] ”  [...] expressed no legal basis for his rulings.  He simply announced that he would not be staying the case any further and concluded without explanation that jurisdiction existed over [...] and [...] because those entities were “successors” to [...].  (2T27:3-4, 2T35:6, 2T59:10).  [...] did not mention the differences between this case and the Missouri Action (this case is a preemptive declaratory judgment case while the Missouri Action is a comprehensive action for damages and other relief), that defendants are the natural plaintiffs in this dispute, or that plaintiffs—who have no present connection to New Jersey—were clearly forum shopping when they filed this case as a “placeholder” in advance of the scheduled meeting with defendants.  Nor did [...] discuss the evidence in the record establishing that the Special Undertaking Contract is a Missouri contract governed by Missouri law.  On January 23, 2023, [...] issued written orders denying each of the motions “for the reason stated on the record” (the “January 23 Orders”).  (Pa770-774).  VI.
[brief] The [...] has premised its denial of coverage, and its argument on this appeal, solely on its position that it is not required to defend and indemnify a county prosecutor’s office unless the office is sued under the New Jersey Tort Claims Act ("TCA") for damages.  This argument, which relies on early case law involving the [...]’s duty to defend and indemnify, not only fails to account for developments in the law since that time, but in this case, ignores the equities involved in forcing a county prosecutor’s office to defend a law enforcement directive designed, implemented and mandated by the [...].  In November 2022, the [...] issued Law Enforcement Directive 2022-14 ("Directive 22-14"), which has the force of law, binding on all law enforcement agencies across that state, including Appellant, the [...] ("[...]" or "Appellant").  In support of Directive 22-14, the [...] also issued Internal Affairs Policy & Procedures (November 2022) (hereinafter "IAPP") mandating certain law enforcement actions be taken when an Internal Affairs ("IA") complaint is filed against either a chief or deputy chief of a police department.  In those instances, either the [...] or the appropriate county prosecutor’s office is required to conduct the IA investigation.  In this matter, an IA complaint was filed against the Deputy Chief of the [...] ("[...]") implicating the [...]’s IAPP and Directive 22-14.  Pursuant to Directive 22-14 and the IAPP, either the [...] or the [...] was required to conduct the IA investigation.  Thus, when the [...] conducted the IA investigation in the underlying matter, it stood in the shoes of the [...] and was required to follow the mandates of Directive 22-12 and the IAPP.  Moreover, after the IA investigation was concluded and the deputy chief chose to resign rather than challenge the findings of the investigation, in order to comply with its obligations under the IAPP and Directive 22-14, [...] was required to post on the internet details of at least one of the sustained charges and the findings, identifying the Deputy Chief by name.  The required posting was mandated by the [...], not the [...].  However, rather than suing the [...], the underlying lawsuit by the former deputy chief is directed against [...] seeking to compel [...] to provide him with a remedy not afforded under Directive 22-12 or the IAPP.  Thus, in its simplest terms, this case involves the [...], under its supervisory authority, issuing a Law Enforcement Directive and IAPP that [...] was mandated to follow.  Then, when the [...] was sued seeking to compel it to create a remedy not provided for by the [...], rather than defend its own Directive and IAPP, the [...] walked away and left [...] on its own to defend the [...]’s position.  Such a failure to take responsibility should not be countenanced, and, on this appeal the court should clarify that when a county prosecutor’s office follows a mandated law enforcement directive and policy issued by the [...], the [...] must be held accountable to defend and indemnify the local county prosecutor when the directive and policies are challenged.
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[brief] The Appellate Division previously considered a situation similar to the instant case in Willoughby v. Planning Board of Tp. of Deptford, 306 N.J. Super. 266 (App. Div. 1997).  Willoughby arose out of a challenge by a citizens group to a rezoning and subsequent site plan approval permitting the development of a retail shopping center on a 30-acre tract in [...].  The governing body adopted the zoning ordinance amendment on September 7, 1995 at the developer’s request.  Instead of immediately challenging the rezoning, however, the citizens group mounted a political campaign to change the governing body’s composition.  The political campaign proved successful and the new governing body subsequently adopted an ordinance repealing the zoning change, but the repealing ordinance did not take effect until after the developer had already obtained preliminary site plan approval in May 1996.
[brief] Millison, 101 N.J. at 187 (“[T]he best approach is to allow a plaintiff to process his workers’ compensation claim without forfeiting the opportunity to establish that he was injured as a result of conduct that amounted to an intentional wrong, entitling him to seek damages beyond those available in workers’ compensation. ”)  (emphasis  Accordingly, section 87 does not compel insurance coverage for a claim of intentional wrong.  [...]