ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Defendants’ last argument is that the filing of the Answer and Counterclaims by plaintiffs’ prior counsel with the [...] on March 28, 2023 - - the embryonic state of the arbitration - - constituted a waiver by plaintiffs of their constitutional right to be in court and of their right to object to the arbitration.  (Br. at 51).  As noted by the Motion Judge, the Answer challenged the arbitration and defendants ignore the repeated challenges by plaintiffs’ new counsel starting April 7, 2023 (10 days later) to the validity of the arbitration clause under Atalese.  Defendants’ argument is wrong on the facts and the law.  [...]’s arbitration demand was served on plaintiffs on March 14, 2023.  On April 7, 2023, plaintiffs retained their present counsel.  On April 7, 2023, April 25, 2023 and May 24, 2023, plaintiffs’ present counsel wrote to the [...] and [...]’s counsel that the arbitration clause was invalid under Atalese and that the [...] did not have jurisdiction.  On June 12, 2023, the [...] notified the parties that it would proceed with the arbitration, until such time as the Superior Court said otherwise.  On June 27, 2023, plaintiffs filed their Complaint herein asserting, inter alia, that the disputed arbitration clause is unenforceable under Atalese and that the [...] arbitration should be enjoined.  The arbitration has been stayed pending this appeal.
[brief] ” (Da 18; see also 1T:4-16 to 4-23; 2T:25-13 to 25-17).  As to defendant’s discovery argument, [...] further held that “[T]he record is clear that defendant made a choice to forego representation and, with it, everything that comes with a complete defense including obtaining and reviewing discovery. ” (Da 18).  As such, defendant’s remorse as to his decision to move forward unrepresented after multiple advisements that he had the right to counsel does not now transform his case as within the mandates of *Laurick*.  Defendant was informed of the right to counsel, whether private or appointed, and knowingly, voluntarily, and intelligently waived his right to counsel.  As such, *Laurick* does not apply because there is sufficient credible evidence on this record that defendant was advised of his right to counsel and thereafter, waived his right to any type of counsel.  In any event, defendant’s reliance on Laurick is likewise misplaced because this is his first DWI conviction.  To be sure, the relief contemplated in Laurick is that a prior uncounseled DWI conviction cannot be used to enhance the penalties (incarceration) for a subsequent DWI offense if the defendant did not have counsel because he was not advised of his right to counsel or a public defender.  Laurick, 120 N.J. at 16 (emphasis added).  As this was defendant’s first offense, there was no possibility of an enhanced penalty in this case.  Therefore, Laurick does not apply.
[brief] The mootness argument fails because plaintiffs still contend that they are entitled to attorney's fees as the prevailing party on their civil-rights claim, see N.J.S.A. 10:6-2(f), despite the placement of the ordinance on the ballot.  See Transamerica Ins. Co. v. Nat'l Roofing, Inc., 108 N.J. 59, 64, 527 A.2d 864 (1987) (noting that a matter is moot when there is no issue left to adjudicate). ”  The New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2, includes a provision that authorizes a court to award "the prevailing party" reasonable attorney's fees and costs, N.J.S.A. 10:6-2(f).  The issue presented by this appeal is whether a party who brings an action under the Civil Rights Act that results in a change in defendant's conduct may qualify as a "prevailing party" even though the action is dismissed as moot rather than being concluded by a judgment in plaintiff's favor.
[brief] 3T 4:23-14:16.  On May 25, 2023, Appellant moved for reconsideration of the March 7, 2023 Order, asserting that the reduced attorneys’ fee award of $93,277.54 is excessive and that no fees should have been awarded.  411a-445a.  After hearing oral argument, and for the reasons stated on August 4, 2023, the trial court entered the order, dated September 6, 2023, denying the motion:
[brief] **A.  The Trial Court Abused Its Discretion By Failing To Apply The Standards For Determining The Lodestar In Fee-Shifting Cases Pursuant To *Rendine* And Its Progeny And By Flouting State and National Public Policy In So Doing.  (Pa9-21). **  In *Rendine*, the New Jersey Supreme Court synthesized prior federal and United States Supreme Court rulings to set standards as to how attorney’s fees awarded to the prevailing party should be calculated in fee shifting cases.  See 141 N.J. at 316, 322-337.  Noting that the “American Rule” requires parties to pay their own attorney’s fees, the Court stated that the United States Congress, in addition to state legislatures, carved out exceptions by enacting “over 100 separate federal fee shifting statutes” to ensure equal access to the courts.  Id. at 322-23.  The underlying rationale for these enactments was expressed by [...] as follows:  The problem of unequal access to the courts in order to vindicate congressional policies and enforce the law is not simply a problem for lawyers and courts.  Encouraging adequate representation is essential if the laws of this Nation are to be enforced.  Congress passes a great deal of lofty legislation promising equal rights to all.  [Id. at 323 (citing Coleman v. Fiore Bros., 113 N.J. 594, 597 (1989)); see also Sponsor Statement, 42 U.S.C.A. § 1988, the Civil Rights Attorney’s Fee Awards Act of 1976)].  The New Jersey Supreme Court similarly follows this long-established public policy, having stated, in the context of analyzing fee shifting under the Consumer Fraud Act, N.J.S.A. 56:8-, et seq., that ‘the right of access to the courts is meaningless unless the injured party has the resources to launch a suit’ and [] this right of access is empowered by fee-shifting, which ‘provides an incentive to competent counsel to undertake high-risk cases and to represent victims of fraud who suffer relatively minor losses. ’ [Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 21 (2004)].
[brief] Given defendant’s re-initiation, [...] had no duty to stop speaking.  Shortly thereafter, [...] acknowledged that defendant “said something about a lawyer” and assured him that he would re-read his Miranda rights after booking.  Defendant then asked for a cell phone to call his girlfriend “and get the number to call this lawyer,” and said that he “better get a lawyer” if he was getting charged.  As the detectives resolved a technical issue with the mugshot software, but before they responded to defendant’s request, defendant continued to claim that he was innocent; however, [...] cut him off to explain that he wanted defendant to provide a statement—a simple fact of which every suspect would be aware—but also to clarify whether he wanted an attorney.  None of [...]’s statements risked eliciting an incriminating response or constituted a failure to adhere to an invocation of the right to counsel.  D.
[brief] Here, [...] correctly concluded that [...] will suffer no “irreparable harm” or undue hardship from having to truthfully answer questions in a discovery deposition regarding prior sworn statements that he made in support of his guilty plea.  The transcript of [...]’s prior testimony, given in open court, is already in the possession of the parties herein.  The argument that [...] would be irreparably harmed if he loses insurance coverage when his insurance company hears the truth, that he admitted under oath to assaulting [...], does not justify the granting of a stay.  [...] properly rejected this argument, which treads perilously close to involving the Court in a “coverup” by assisting [...] in improperly obtaining insurance coverage by keeping the truth from his insurance carrier.  2T13:7-23.  Like [...], this Court should reject [...]’s troubling, apparent invitation to assist in concealing the truth from his insurance carrier.  [...]’s argument that being required to testify truthfully at his deposition will interfere with his rehabilitation process is equally baseless.  New Jersey Courts do not recognize having to tell the truth as a form of undue harm; to the contrary, our Courts have held that “The truth is always the truth, and telling the truth will not hurt anyone except insofar as he ought to be hurt.
[brief] DA27.  The grand jury charged defendant in a separate indictment with a single count of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b).  DA27.  In 2016, defendant was tried before a jury.  Count nine of the indictment was dismissed.  DA27.  The jury found defendant guilty of second-degree aggravated assault (count two); third-degree aggravated assault (count three), two counts of first-degree robbery (counts four and five), and the three weapons charges (counts seven, eight, and eleven).  The jury acquitted defendant of attempted murder (count one), fourth-degree aggravated assault (count ten), and one count of robbery (count six).  Defendant pled guilty to the certain-persons charge.  DA27.  The trial court sentenced defendant to an aggregate extended term of 45 years of imprisonment (DA27), but defendant appealed, and the Appellate Division vacated defendant's conviction for first-degree robbery under count four, remanding for merger of defendant’s conviction on count three with his conviction on count two, and resentencing (the Supreme Court denied review on January 17, 2020, State v. Easterling, [...], 2019 WL 3851650 (N.J. Super. Ct. App. Div. Aug. 16, 2019), cert. denied, 240 N.J. 401 (2020)).
[brief] ”  *Id.* (quoting *In re Resolution of State Com. of Investigation*, 108 N.J.  35, 41 (1987) (internal quotation marks omitted)).  Indeed, “the primary goal in determining whether a statute implies a right of action has almost invariably been a search for the underlying legislative intent. ”  *Veras*, No. 13-1745 (RBK/JS), 2014 U.S. Dist. LEXIS 34176, at *24 (emphasis added) (quoting *R.J. Gaydos Ins. Agency, Inc. v. Nat’l Consumer Ins. Co.*, 168 N.J. 255, 272-73 (2001) (internal quotation marks omitted)).  Despite the above, the court in *Veras* abjectly failed to analyze the legislative history or the legislative intent of the NJCFLA.
[brief] TABLE OF CONTENTS  COUNTER-STATEMENT OF PROCEDURAL HISTORY .............1  COUNTER-STATEMENT OF FACTS  ..............................................1  LEGAL ARGUMENT  ........................................................................3  POINT I  THE EVIDENCE REGARDING GPS LOCATION AND HEALTH ACTIVITY DATA DID NOT REQUIRE EXPERT TESTIMONY.  (NOT RAISED BELOW).  ..................................................................................3  POINT II  THE INCLUSION OF SERGEANT KOHLER’S TESTIMONY REGARDING THE GPS LOCATION AND HEALTH ACTIVITY DATA OF CO-DEFENDANT GORE AND JIANNA CEZAR’S PHONES WAS NOT CLEARLY CAPABLE OF PRODUCING AN UNJUST RESULT.  ..................................................................................................................12  CONCLUSION
[brief] Plaintiffs’ argument completely ignores the elements of a negligent training or supervision claim and instead focuses only on the employee’s job status as a trainee or red vest employee.  Plaintiffs incorrectly assume that all trainees lack the knowledge and ability to interact with customers on their own until they complete their training and become a red vest employee.  If Plaintiffs argument is accepted, an employer would always be liable for harm caused by a trainee simply because the trainee was in training regardless of whether or not the employer knew or had reason to know that the trainee posed a risk of harm to customers.  Plaintiffs also attempt to distinguish negligent hiring claims from negligent training and supervision claims by incorrectly arguing that only negligent hiring requires evidence of knowledge of a dangerous attribute of the employee.
[brief] Pressing [...] about what powers the [...] had under the MLUL, all [...] could muster was that it deemed an “application” complete despite conceding that the [...] “did not grant and could not grant conditional use. ”  [1T at 15:2 to 16:1].  This by itself means that the [...] application cannot be an application for development.  And even though the [...]’s alleged completeness determination is not in the record, the [...] application is, and it is obviously not [...]’ conditional use and site plan application.  [Compare Da51 with Pa318].  The [...] application does not even ask what zoning district the subject property is located in!  [...] presents no cognizable theory that justifies its disjointed reading of the TOA Rule.
[brief] The trial court also stated that Plaintiff’s claims that items are missing were \textsuperscript{4}  As the Court is aware, unlike with typical complaints, a Verified Complaint contains a written declaration of the Plaintiff that the allegations set forth therein are true and accurate to the best of his personal knowledge and belief.  With rare exceptions, a supporting certification is not provided, given that the verification already serves that function.  “not set forth in any certified document in connection with this application. ”
[brief] *Walder, Sondak, Berkeley & Brogan v. Lipari*, 300 N.J. Super. 67, 76-77 (App. Div. 1997) (discussing legislative history and holding that the Legislature did not “intend[] to invalidate Schoor,” and that, on the basis of the “leading object” exception, several corporations’ oral guarantees to pay a shareholder’s legal bills were enforceable); see also *Atlantic Plastic & Hand Surgery, P.A. v. Ralling*, 474 N.J. Super. 185, 191 (Law Div. 2021) (“In a word, Schoor lives”).
[brief] DEFENDANT WAS DENIED DUE PROCESS AND A FAIR TRIAL BY A FAULTY IDENTIFICATION  JURY CHARGE THAT FAILED TO PROVIDE THE JURY WITH ANY GUIDANCE ON HOW TO ASSESS THE PHOTOGRAPHIC IDENTIFICATION PROCEDURE, WHICH WAS THE LYNCHPIN IN THE STATE'S CASE.  U.S. CONST. amends.  V and XIV; N.J. CONST. art. I, ¶¶ 1, 9, and 10.  (Not Raised Below).  *5
[brief] ”  *Id.*, at 90-91.  Applied to the facts of this case, *Kandrac* clearly controls.  Factors which *Kandrac* Court cited applies here as well.  [...] had no responsibility or control common areas, the area where Plaintiff fell was not a sidewalk or marked walkway, towards the designated public entrance to the restaurant, and both [...] and [...] had responsibility for maintenance of the lot.  Therefore, Plaintiff cannot be said to be without recourse.  Moreover, Plaintiff’s reliance on Stewart, supra, Antenucci v. Mr. Nick’s Mens Sportswear, 212 N.J. Super. 124 (App. Div. 1986) and Nielsen v. Wal-Mart Store No. 2171, 429 N.J. Super. 251 (App. Div. 2013), for the proposition that the law imposes a duty on a party such as [...], is misguided.
[brief] Based on [...]’s description of their route of travel prior to the crash, detectives collected surveillance video from eight area businesses and government agencies.  (2T152-20 to 153-8; 2T158-1 to 166-22; 4T57-18 to 58- 7; 4T59-12 to 18; 4T61-6 to 62-6; Pa21).  The surveillance videos depicted a maroon sedan following [...]’s van turn-by-turn through the streets of [...] beginning on [...] at 3:08 a.m. until the van crashed into a pole on the west side of [...] at the intersection of [...] at 3:12 a.m. (4T65-1 to 101-8).
[brief] As in \textit{Cole}, the dispositive motion here “was partially granted and partially denied .  . . .  Notably, [Defendants] do[] not take the position that [they] would surrender that partial substantive dismissal if the matter proceeded to arbitration. ”  \textit{Id.}  Thus, under \textit{Cole} and \textit{Marmo}, the factor of motion practice also weighs in favor of waiver here.
[brief] State v. De Simone, 60 N.J. 319, 329 (1972).  In De Simone, a search warrant authorized the search of a particularly-described place, there an automobile, as well as the search of all persons found therein.  The key to the validity of a search of unnamed persons found in such a vehicle is whether there is a sufficient nexus between the persons present and the criminal event.  The Court noted that there was clearly probable cause to believe that the vehicle was being used as the instrumentality of illegal activity, and that the very nature of a motor vehicle gave rise to probable cause to believe that anyone who occupied the car was involved in the illegal activity.  Under the rationale of *De Simone*, the New Jersey Supreme Court invalidated a search of a person found nearby, but not inside, a residence being searched in *State v. Bivins*, 226 N.J. 1, 13-17 (2016).
[brief] The Redevelopment Law gives the governing body the authority to adopt a redevelopment plan irrespective of whether the plan is consistent with the master plan.  Nothing in the Redevelopment Law prohibits the governing body from incorporating the “reasons” into a redevelopment plan that the planning board believes is “not inconsistent” with the master plan.  Similarly, nothing in the Redevelopment Law limits the governing body to acting only in accordance with the planning board’s master plan consistency determination.
[brief] It did so, and the rules are broad and allow for far more power vested in the dispute resolution professionals and procedures to adjudicate adversarial proceedings than apparently [...]’s plan contemplates.  The solution to the problem created by [...] and [...] is not to conclude that arbitration should be construed narrowly and inconsistently with the statute and regulations [...] adopted.  The solution is for [...] to require [...] to amend its plan to be consistent with the No-Fault Law and [...]’s regulations, or otherwise choose a dispute resolution organization that can accommodate the statutory and regulatory requirements currently in place.
[brief] “To be enforced, an arbitration award must draw its essence from the terms of the agreement executed between the parties. ”  Knecht v. 225 River St., L.L.C., No. A-4793-10T3, 2012 WL 1020005, *3 (N.J. Super. Ct. App. Div. Mar. 28, 2012).  (citing Cnty. Coll. of Morris Staff Assoc. v. Cnty. Coll. of Morris, 100 N.J. 383, 392 (1985))  [Da555].  An arbitrator exceeds his powers when he “disregard[s an] agreement's terms that are clearly and unambiguously expressed. ”  Id. at *4.  “Although arbitrators in the private sector have broad discretion in determining legal issues, they may not disregard terms and conditions set forth in the agreement.
[brief] The Appellate Division reversed the decision removing [...] from the [...], holding that the ALJ erred when she admitted the hospital records into evidence without first requiring the City to lay foundational testimony to satisfy the requirements of the business records hearsay exception.  *Matter of [...]*, 238 N.J. 246, 247 (2019).  A party is required to lay a foundation showing that the documents are what they purport to be.  Certifying an interrogatory is not the same as a witness at a trial laying the proper foundation.  Here, Plaintiff seems to argue this would suffice.  The incident report and photographs were prepared by [...], whereas the interrogatories are certified by a corporate representative of [...].  Plaintiff failed to serve a Notice in Lieu of a Subpoena for [...] or any other representative to authenticate the incident report as an exception to the hearsay rule at trial – but that is Plaintiff’s duty, not the Trial Court and not the Defendant.
[brief] Defendants, [...]  Third Party Plaintiff, v. [...], [...], [...], [...] AND [...], Third Party Defendants.  SUPERIOR COURT OF NEW JERSEY  APPELLATE DIVISION  DOCKET NO. [...]  CIVIL ACTION  SUPERIOR COURT OF NEW JERSEY CHANCERY  DIVISION: MORRIS COUNTY  DOCKET NO.: [...]  TRANSFERRED DOCKET NO.: [...]  SAT BELOW: HON.  [...], J.S.C. Ret. t/a on Recall  PLAINTIFF AND THIRD-PARTY  DEFENDANTS’ / RESPONDENTS’ BRIEF IN OPPOSITION TO DEFENDANT / APPELLANT’S APPEAL
[brief] (Da352-53).  It is unfathomable that plaintiffs can suggest that [...] somehow urged the Court to take the action at issue on this appeal.\textsuperscript{4}  The belated granting of plaintiffs’ second \textit{de facto} reconsideration request came at a time when it was too late for [...] to do anything about it.  By definition, this is a miscarriage of justice such that, even if this Court were to accept the proposition that \textit{Burt} is no longer viable, requires a new trial with the participation of [...] and [...] and corresponding jury instructions.
[brief] The facts in *O’Neal* are distinguishable for a number of reasons.  For one, the case did not involve a vehicle stop.  Two, the officers observed defendant commit a drug offense.  Three, the officers physically intruded upon defendant’s privacy by patting down his person in search of drugs.  Four, the totality of the circumstances clearly indicated to the defendant that the officers knew drugs were on his person, leaving him with no plausible deniability.  In short, all of the case law, including *O’Neal*, does not hold that an officer must issue *Miranda* warnings when “the police ha[ve] probable cause for an arrest,” as defendant suggests.
[brief] In reaching its conclusion, the Atalese Court contrasted three cases featuring acceptable arbitration provisions, which are analogous here.  For example, in Martindale v. Sandvik, the plaintiff “agreed to waive [her] right to a jury trial” and that “all disputes relating to [her] employment . . . shall be decided by an arbitrator. ”  173 N.J. 76, 81-82, 96 (2002).  In Griffin v. [...], the arbitration clause expressed that “[b]y agreeing to arbitration, the parties understand and agree that they are waiving their rights to maintain other available resolution processes, such as a court action or administrative proceeding, to settle their disputes. ”  411 N.J. Super. 515, 518 (App.Div.2010).  Finally, in Curtis v. [...], the relevant clauses were “sufficiently clear, unambiguously worded, satisfactorily distinguished from the other [a]greement terms, and drawn in suitably broad language to provide a consumer with reasonable notice of the requirement to arbitrate. ”  413 N.J. Super. 26, 33 (App.Div.2010).  The Clauses featured in Martindale, Griffin, and Curtis, that the Court deemed acceptable, are similar to the Clause in this case in that it simply and unambiguously informed Appellants that they were giving up their right to sue.  Moreover, it sufficiently notified Appellants that arbitration would result in waiver of the right to a jury trial and to otherwise litigate the dispute in court; a neutral third-party arbitrator, not a judge or jury, would resolve any disputes in a setting less formal than court; and arbitrating could lead to waiver of other rights available in court.  In sum, the Clause made Appellants sufficiently aware that there is “a distinction between resolving a dispute in arbitration and in a judicial forum” (Atalese, supra at 445) and the former would be employed to resolve disputes in this case.