ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] [...], [...], AND [...]  [...] [...]  [...] [...]  Attorneys for Respondents Rema Tip Top AG, Stahlgruber Otto Gruber AG, and Michael Übelacker  On the Brief: [...] (017802008)  [...] (020102011)  DATE SUBMITTED: NOVEMBER 15, 2024  TABLE OF CONTENTS  TABLE OF AUTHORITIES ........................................................................................................ iii  PRELIMINARY STATEMENT .................................................................................................  1  PROCEDURAL HISTORY .......................................................................................................  3  STATEMENT OF FACTS .......................................................................................................  5  A.  Plaintiff’s Allegations In This Action ..............................................................................  5  B.  [...] Is A Non-Party Located In Germany .................................................................  7  C.  The Parties’ Dispute Regarding [...]’s Deposition .....................................................  7  D.  Plaintiff’s Motion To Compel [...]’s Deposition .........................................................  8  E.  Plaintiff’s Motion For Reconsideration .......................................................................  8  STANDARD OF REVIEW .....................................................................................................  9  LEGAL ARGUMENT .............................................................................................................  10  I.  THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY REQUIRING PLAINTIFF TO SUBPOENA REIFF, A NON-PARTY WITNESS LOCATED IN GERMANY (PA4, PA9)  .................................................................  10  A.  The Court Rules And Case Law Plaintiff Cites Do Not State That Non-Party Directors Can Be Compelled By Deposition Notice To Testify In Their Individual Capacity ...........................................................................  10  B.  The New Jersey Case Law And Court Rules Plaintiff Relies Upon Do Not Demonstrate That The Court Abused Its Discretion In Concluding That The German Defendants Lack Control Over [...] ..................................................................................................................  14  TABLE OF CONTENTS (cont’d)  C.  That Plaintiff Must Pursue Discovery From [...] By Way Of The Hague Convention Does Not Suggest That The Trial Court Abused Its Discretion ..........................................................  17  II.  THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION (PA9-PA16) ...........................................  20  CONCLUSION .........................................................................................................................  21
[brief] Furthermore, if it was improper to admit it through the Detective, this was harmless error only.  This is because [...] had already taken the stand, and any cross-examination requirement was sufficiently satisfied.  The fact that the statement was also admissible via N.J.R.E. 803(a) (2) suggests that no limiting instruction prohibiting consideration as substantive evidence was required.  Accordingly, any alleged error, if actual error at all, was harmless.
[brief] And the family is just asking for some mercy in the sentence that he may have an opportunity to come out and live a different life and be on the right track and do great things.  And just be in a position to try and get back to society, some of the things that he’s taken away.  Maybe not directly to these victims, because that may not be available to him.  But so someone that’s hurting, to have that chance.  And Your Honor, I really - - just knowing this young man’s history and talking with some of his family, I don’t think that a second chance would be wasted on him.  I really don’t.  [20T30-6 to 31-2]  This vigorous advocacy, by way of the 18 page sentencing memorandum and counsel’s passionate arguments at the re-sentencing hearing starkly contrast with the lack of advocacy by counsel at the original sentence - where he submitted no memorandum prior to the hearing, and did not argue for an alternative sentence.
[brief] *Dunbar Homes, Inc. v. Zoning Bd. of Adjustment of Franklin*, 233 N.J. 546, 558 (2018) (quoting *Price v. Himeji, LLC*, 214 N.J. 263, 284 (2013)).  However, “a board's decision regarding a question of law . . . is subject to a de novo review by the courts, and is entitled to no deference since a zoning board has 'no peculiar skill superior to the courts' regarding purely legal matters."  Id. at 559 (quoting *Chicalese v. Monroe Twp. Planning Bd.*, 334 N.J. Super. 413, 419 (Law Div. 2000)).  The same is true for appellate courts when reviewing trial courts’ decisions where “review of the judge's interpretations of law and the applications of law to facts is de novo. ”  *Mountain Hill, L.L.C. v. Twp. Comm. of Tp. Middletown*, 403 N.J. Super. 146, 193 (App. Div. 2008).  Here, the Board’s determination as to its own jurisdiction is purely a question of law and is therefore viewed afresh on appeal without deferring to the Board in any respect.
[directive] In the rare cases where the agency has not filed disciplinary charges (or decided not to do so) within 180 days of receipt of the complaint, the agency must notify the County Prosecutor.  The County Prosecutor, or their designee, shall investigate the reasons for the extended investigation and shall also examine whether the agency’s internal affairs function faces any systemic issues that require additional resources or oversight.  The County Prosecutor may take any steps necessary to ensure prompt resolution of the pending matter, including supersession of the agency’s investigation.  The agency shall provide further notice to the County Prosecutor every additional 90 days that the investigation remains open (i.e., on or about the 270th and 360th days from the receipt of the complaint).  The chart in Figure 1 provides an overview of that information.
[brief] At the beginning of trial, [...] informed the jury that “[t]he burden of proving each element of the charges beyond a reasonable doubt rests upon the State and that burden never shifts to the defendant. ”  (1T22-9 to 18).  She specified that the State’s burden was to prove “its case by more than a mere preponderance of the evidence, yet not necessarily do an absolute certainty. ”  And when explaining the beyond-a-reasonable-doubt standard, [...] specified that  In criminal cases, the State’s proof must be powerful than that [of civil cases], it must be beyond a reasonable doubt.  A reasonable doubt is an honest and reasonable uncertainty in your minds about the guilt of the defendant after you have given full and impartial consideration to all of the evidence.  A reasonable doubt may arise from the evidence itself or from a lack of evidence.  It’s a doubt that a reasonable person hearing the same evidence would have.  Proof beyond a reasonable doubt is proof, for example, that leaves you firmly convinced of the defendant’s guilt.  [(1T22-19 to 23-13). ]
[directive] When law enforcement officers are charged with committing acts of domestic violence, it is important that the matters be uniformly and expeditiously handled.  To achieve these objectives, it is necessary that there be a statewide policy governing the seizure of weapons from a law enforcement officer who is charged with committing an act of domestic violence.  The Criminal Justice Act of 1970, N.J.S.A. 52:17B-97 seq., requires the Attorney et General “to provide for the general supervision of criminal justice” in this State.  All law enforcement agencies and law enforcement officers in the State are required to cooperate with the Attorney General “to secure the benefits of a uniform and efficient enforcement of the criminal law and the administration of criminal justice throughout the state. ”  52:17B-98.  Accordingly, it is directed that all state law enforcement N.J.S.A. agencies and law enforcement officers who are employed by the State Department of Corrections, the Division of Criminal Justice, the Division of State Police, Human Services Police, Juvenile Justice Commission or the State Park Ranger Service and who are authorized to carry weapons pursuant to 2C:39-6 are to comply with N.J.S.A. this directive.  1  (9/00)  Seizure of Weapons from State Law Enforcement Officers  II.  GUIDELINES FOR THE SEIZURE OF WEAPONS FROM A LAW ENFORCEMENT OFFICER INVOLVED IN A DOMESTIC VIOLENCE INCIDENT
[brief] (Da23).  He testified he did not act with the intent to murder the victim.  (Da23).  In contrast to the evidence produced at defendant’s first trial, the evidence presented at the retrial consisted of defendant’s vague admissions about being assaulted and stabbing the victim.  The trial court examined the trial record from the first trial and properly concluded that the admissions before the jury at the retrial were only “snippets” of the details admitted at the first trial and would leave the jury at the retrial to speculate on the issue of passion/provocation manslaughter.
[brief] Second, the illogical consequences.  By characterizing [...]’s OPRA request as proper because it identified a sender or recipient and was limited in time period, the trial court’s decision stripped requestors of their obligation to identify records with reasonable clarity *without* resorting to a request for all of an agency’s records.  While the trial court’s decision is ostensibly limited to email inbox or outbox requests, there is no principled way of reconciling its holding with this court’s precedent expressly finding that requests for an agency’s “entire file” are improper under OPRA.
[directive] Internal investigation case files generally are not releasable to Civilian Review Boards, but the “good cause” standard may be satisfied when a Civilian Review Board requests records from a completed or closed investigation file and the Civilian Review Board has in place certain minimum procedural safeguards, as described in Section 9.7.2, to preserve the confidentiality of the requested records and the integrity of the internal affairs function, in addition to complying with all other applicable legal requirements.  A violation of any of these requirements may result in the revocation of a Civilian Review Board’s access to confidential law enforcement information, including internal affairs records, and potentially may result in other adverse or remedial actions under federal, state, or local law.  9.7.2
[directive] The Weed and Seed is an initiative designed to reclaim and rejuvenate embattled neighborhoods and communities.  Weed and Seed uses a neighborhood focused two-part strategy to control violent crime and to provide social and economic support to communities where high crime rates and social ills are prevalent.  The initiative first removes or “weeds” violent criminals and drug dealers from the neighborhoods.  Second, a the initiative prevents re- infestation of criminal activity by “seeding” the neighborhoods with public and private-services, community-based policing, and incentives for new businesses.  Weed and Seed is founded on the premise that community organizations, social service providers, and criminal justice agencies must work together with community residents to regain control and revitalize crime-ridden and drug-plagued neighborhoods.
[brief] Pa60.  On February 10, 2016 [...] and [...] agreed to continue with the existing Lease.  It was agreed that rent would remain at $9,250.00 per month.  Pa72.  Two months later on April 11, 2016, [...] sent a letter to [...] notifying him that the Lease would be terminated within 30 days, as of May 11, 2016. \(^2\) Pa126.  [...] and [...] had further discussions on May 5, 2016, and on May 6, 2016, [...] wrote to [...] confirming their agreement that [...] would continue with the existing Lease, that [...] rescinded the notice to terminate dated April 11, 2016, and that [...] would grant a courtesy discount of $3,000.00 per month from the existing rent of $9,250.00 per month for the months of May, June, July, and August of 2016.  It was agreed rent would return to $9,250.00 for the month of September 2016.  Thereafter, [...] and [...] continued their relationship under the Lease, with [...] granting a courtesy discount of $3,000.00 per month through September of 2016\(^3\), and with rents returning to $9,250.00 thereafter.
[brief] Tucci, 364 N.J.Super. at 53.  Our courts have also demonstrated a clear preference for lesser sanctions, when appropriate:  Although R. 4:23–5 does not contain a list of possible sanctions, it does not explicitly limit the power of the court to a choice between imposing the ultimate sanction of dismissal with prejudice or imposing no sanction at all.  The purpose of the rule change was to force the delinquent party to move for a reopening of the case, and not to strip the court of the power to equitably adjust the controversy by less drastic sanctions when appropriate.  Georgis v. Scarpa, 226 N.J. Super. 244, 250 (App. Div. 1988) (internal citations omitted).
[brief] Pa31-58.  The Complaint contained seven counts and alleged the following theories of recovery.  Count 1 alleged negligent design, construction and maintenance of dangerous conditions at the light rail station and dangerous light rail car conditions. Pa31-34.  Count 2 alleged negligent operation of the light rail train and respondeat superior liability.  Pa35-37.  Count 3 alleged, negligent operation of the light rail train, premises liability due to a failure to design and maintain the property with adequate warnings of oncoming rail cars for pedestrians, and negligent training/hiring.  Pa37-40.  Count 4 alleged premises liability for the presence of “physical defects and deficiencies” and the “lack of warning devices and signs, absence of barriers to control pedestrian traffic, high volume of trains and pedestrian traffic and/or history of prior near collisions and/or collisions, independently and combining, created a dangerous condition at the track, platform and station that existed at the time of [...]’s death. ”  Pa40-44.  Count 5 again alleged negligent design, maintenance, and operation of the “Hudson-Bergen Light Rail tracks, platforms, stations, signals, equipment and rail cars premises and the rail car. ”  Pa44-52.  Count 6 applied only to defendants [...] and the [...] and sounded in premises liability.  Pa52-53.  Count seven alleged that Plaintiff was entitled to punitive damages.  Pa53-54.  The following defendants filed their Answer to the Complaint with crossclaims and affirmative defenses on April 5, 2021: [...], improperly plead as [...], [...] Rail Operations, and [...]; [...], improperly plead as [...]; and [...], improperly plead as [...], [...], and [...] Washington Division.
[brief] [...] (the “Coalition”) is a national consumer advocacy organization that was founded more than thirty years ago that draws upon the combined energy and resources of consumers, government organizations, and insurers to fight the more than $308.6 billion per year nationally in insurance fraud,\(^1\) and the over $1300 annual cost to each New Jersey family according to the [...]. \(^2\)  The Coalition is comprised of approximately 300 member organizations encompassing a broad array of consumer groups, state and national governmental organizations (including insurance regulatory agencies and the offices of state Attorneys General), insurance providers, and related organizations.  The Coalition’s aims are to: (1) combat all forms of insurance fraud, (2) reduce costs for consumers, (3) protect the health and safety of consumers, and (4) promote fairness and integrity in the insurance system. \(^3\)  To this end, the Coalition plays an active role in advocating for laws, regulations, --- \(^1\)  See, [https://insurancefraud.org/wp-content/uploads/The-Impact-of-Insurance-Fraud-on-the-U.S.-Economy-Report-2022-8.26.2022-1](https://insurancefraud.org/wp-content/uploads/The-Impact-of-Insurance-Fraud-on-the-U.S.-Economy-Report-2022-8.26.2022-1)  \(^2\)  See, [www.youtube.com/watch?v=zlpRfryV39c](http://www.youtube.com/watch?v=zlpRfryV39c)  \(^3\)  Members, COALITION AGAINST INS. FRAUD, see, [https://insurancefraud.org/members/](https://insurancefraud.org/members/) (last visited Nov. 15, 2022) (comprehensive list of the Coalition’s constituent organizations, including insurance organizations, state and federal law enforcement and regulatory agencies, as well as many state and national consumer and public advocacy organizations). and policies that help detect, prevent, deter, and prosecute insurance fraud.  In the present case, the Coalition supports the position taken by Plaintiffs-Appellants [...] et al. ("[...]" or "Appellant") as the Trial Court’s decision eviscerates the Coalition Member’s abilities to combat insurance fraud, reduce costs for New Jersey consumers and protect their health and welfare.
[brief] Had the court properly weighed the nature and circumstances of the crime with regard to the attributes of youth that may have contributed to its commission, it would have assigned the factor little to no weight based on the impulsive nature of [...]’s conduct.  (See Section I.A.i. for detailed discussion of Miller factor one)  Instead, the resentencing court found aggravating factor one based on the original sentencing court’s conclusion that “only as a result of [[...]’s] order … to his codefendants was [...] shot and killed,” double-counting the elements of knowing or purposeful murder by considering the very same facts that formed the basis of [...]’s conviction – his act of shouting out to his codefendants and Williams’s resulting death – in aggravation of his sentence.
[brief] But [...] and [...], the so-called “Burt defendants” in this case, were not settling defendants.  Plaintiff/Respondents served no expert reports during discovery opining that either [...] or Dr. [...] deviated from any accepted standard of care.  Appellant’s assertion in attempting to come within the purview of *Glassman* and *Adams* – the bizarre claim that [...] and [...] were “akin” to settling defendants – borders on the absurd.
[brief] Est. of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383 (2010).  Because “[s]tatutes are presumed to be constitutional,” State v. One 1990 Honda Accord, 154 N.J. 373, 377 (1998), Appellants bear a heavy burden to establish the DACCA Attorney Safe Harbor is unconstitutional.  State Farm Mut. Auto. Ins. Co. v.  State, 124 N.J. 32, 45–46 (1991); Quick Chek Food Stores v. Twp. Of Springfield, 83 N.J. 438, 447 (1980).  More specifically, in analyzing the constitutional validity of a statute, courts presume that “the legislature acted with existing constitutional law in mind and intended the act to function in a constitutional manner. ”  State v. Profaci, 56 N.J. 346, 349 (1970).  “Thus, the presumption will not be overcome, and a ‘legislative enactment will not be declared void, unless its repugnancy to the Constitution is so manifest as to leave no room for reasonable doubt.
[brief] THE ARBITRATION CLAUSE DOES NOT MEET THE ATALESE STANDARD  In Atalese, the plaintiff filed an action asserting, *inter alia*, a violation of the Consumer Fraud Act.  The parties had a 23-page service contract, similar in volume to the 19-21 pages of the Subscription and Purchase Agreements in the case at bar.  The arbitration clause was located on page 9, paragraph 16 of the contract between [...] and the defendant - - similar in appearance to the fact that the arbitration clause in the case at bar is located in the middle of the SPA.  It provided:
[brief] Instead, the jury was repeatedly told that [...], who they were told should be viewed as a medical expert, had reached the conclusion that the death was homicide based on how the body was disposed.  Compounding the harm of its erroneous admission, the State repeatedly elicited testimony from [...] that cast his opinion on the manner of death in the language of medical certainty.  On direct examination, the State asked [...] whether his opinions on cause and manner of death were stated “with a reasonable degree of medical certainty,” leading him to respond in the affirmative.  (42T:190-19 to 191-2)  On redirect examination, the State again asked [...] to put his opinion in such terms, asking simply, “A reasonable degree of medical certainty, homicidal or accidental?”  In response, [...] again stated his belief that the manner of death was homicide.  (42T:209-15 to 17)  In closing, the State touted [...]’s expertise as “an expert in forensic pathology” and encouraged the jury to ratify his conclusion regarding the manner of death:  [[...]] deemed the cause of death blunt force trauma and he deemed the matter of death homicide.  Now, the way he explained he came upon the decision of the matter of death of homicide was not just based on the fractures he observed, but he looked at the circumstances surrounding the death of [redacted].  He looked at what happened to he remains, how they were treated, how they were located.  He takes all those circumstances into consideration when determining whether or not it was a homicide in conjunction with the medical data.  And that’s important because that's exactly what I'm going to be asking you to do as well when you're analyzing the evidence in this case.
[brief] As a precaution, following that public hearing, and giving due consideration to opposing views, the Committee chose to amend Ordinance 2022-15 to set forth its reasons for adopting the Plan, even if it would ultimately be determined to be inconsistent with the Master Plan by a reviewing court.  (Pa47-Pa50); N.J.S.A. 40A:12A-7(f).  Several documents that were included in the legislative record (Pa196-Pa235; 2T.7:5-25 through 8:1-14) were considered by the Committee in formulating the statements contained in Ordinance 2022-17, Section 3.1.1.  These factual findings were found both credible and evidentially supported by the trial court.  (3T.53:18-25 through 54:1-12; 54:23-25 through 55:1-12; 57:13-25 through 58:1-3).  Moreover, as N.J.S.A. 40A:12A-7(d) shows, a redevelopment plan need not be “wholly consistent” with the Master Plan so long as it is “substantially consistent” with the same.