ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] The property rights appraised by Plaintiff's appraiser as to Lot 19 was a "leased fee interest defined by [...] as: "The ownership interest held by the lessor, which includes the right to the contract rent specified in the lease plus the reversionary right when the lease expires."  As authority for that definition [...] cites"  Appraisal Institute, The Appraisal of Real Estate, 14th ed. Chicago, I.L. Appraisal Institute, 2013 pg. 72.  (Da 020)  He then, as to his appraisal of Lot 18, defines the property rights appraised of the "fee simple estate" as: "absolute ownership unencumbered by any other interest or estate, subject only to the limitations imposed by the governmental powers of taxation, eminent domain, police power, and is escheat."  As to authority for that definition, [...] cites, “Appraisal Institute, The Dictionary of Real Estate Appraisal, 6th ed., Chicago, I.L.; Appraisal Institute, 2015, pg. 40.  (Da020)
[brief] While there do not appear to be any cases interpreting the Home Rule Act’s provision addressing noise as being either preempted by or deemed less specific than either the NCA or Title 26, Plaintiffs submit that *Gannon v. Saddle Brook Twp.*, 56 N.J. Super. 76, 81–82 (App. Div. 1959) offers guidance in an analogous situation.  There, the plaintiff challenged the defendant Township’s removal of plaintiff as superintendent of public works and the subsequent appointment of a new superintendent.  The court was tasked with interpreting the separate provision of N.J.S.A. 40:48-1, providing that the municipality can “Prescribe and define, except as otherwise provided by law, the duties and terms of office or employment, of all officers and employees[,]” and the provisions of the later Township Act, N.J.S.A. 40:145-1 et seq., which at N.J.S.A. 40:145-13 provided that “All appointive officers, except where otherwise provided, shall hold office until January first next following their appointment. ”  Specifically addressing the issue of what statute guided the superintendent’s term, the court found:  It is not to be doubted that with respect to the creation of offices and the fixing of terms of the same the Home Rule Act is to be regarded as the more general enactment and the Township Act as the more specific one, and it is a familiar rule of statutory construction that ‘Where there is a seeming conflict between a general statute and a specific statute covering a subject in a more minute and definite way, the latter shall prevail over the former and will be considered an exception to the general statute. ’ [Id. at 81–82.]  The court then concluded that the specific provision of N.J.S.A. 40:145-13 established the term of the incumbent.
[brief] Plaintiff further respectfully submits that Defendant’s failure to properly oppose Plaintiff’s Motion for Summary Judgment, more specifically file the appropriate submission disputing each of Plaintiff’s material facts, precludes Defendant from contesting the admissibility of the account statements.  “[P]arties cannot complain that the trial court took as true facts which were not contested or challenged. ”  Scott v. Salerno, 297 N.J. Super. 437, 447 (App. Div. 1997) (citing Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 76 (1954)). set forth therein and the Court properly considered same as relevant evidence (N.J.R.E. 101(a)(5)).  B)  THE COURT SHOULD REJECT DEFENDANT’S ARGUMENT THAT PLAINTIFF WAS REQUIRED TO FILE AN AFFIDAVIT IN SUPPORT OF THE MOTION FOR SUMMARY JUDGMENT AND NOT A CERTIFICATION [NOT RAISED BELOW]
[brief] Da223; Da286. required to render it “essentially at home” in New Jersey and thus subject to general jurisdiction in the State.  See, e.g., BNSF Ry. Co., 137 S. Ct. at 1559 (no general jurisdiction in Montana over railroad company that owned more than 2,000 miles of tracks and had more than 2,000 employees in Montana); Baskin, 462 N.J. Super. at 615–18 (no general jurisdiction over defendants that conducted over 25 percent of business in New Jersey and generated nearly 25 percent of revenue from New Jersey sales).  The Trial Court’s finding that [...] is subject to general jurisdiction in New Jersey is similarly inconsistent with controlling legal principles.  For an individual like [...], “the paradigm forum for the exercise of general jurisdiction is the individual’s domicile. ”  Daimler, 571 U.S. at 137.  In other words, “an individual is ‘at home’ where they are domiciled. ”  Koch v. Pechota, 744 F. App’x 105, 110–11 (3d Cir. 2018).  [...] is domiciled in Virginia, and he has never worked or resided in New Jersey or even visited New Jersey on work-related matters.  Da167–68; Da178.  That should have ended the general jurisdiction inquiry.  Instead, the Trial Court found general jurisdiction over [...] based upon his (i) “continued contacts with [Plaintiff’s CEO, Steven] Schneider,” Da14, who, like [...], resides in Virginia and not New Jersey, Da4; Da148; (ii) [...] having “directed” invoices to Plaintiff’s CFO, [...], in New Jersey, Da14, as instructed by Schneider, Da4; Da180; (iii) [...] having communicated with Schneider and Collins via email and phone, Da14; and (iv) [...] having emailed [...] marketing materials unrelated to Plaintiff to Schneider and Collins on one occasion in 2017.  Da14; Da345–79.  This hodgepodge of “contacts” falls far short of the contacts with New Jersey required to “approximate physical presence in the State. ” Wilson v. Paradise Vill. Beach Resort and Spa, 395 N.J. Super. 520, 528 (App. Div. 2007); Koch, 744 F. App’x at 110–11 (“Consideration of business activities to find general jurisdiction has not been applied to individuals. ”).  Like [...], then, there was no basis for the Trial Court to exercise general jurisdiction over [...].
[brief] “The doctrine of *in pari delicto* dictates that ‘neither party to an illegal contract will be aided by the court, whether to enforce it or set it aside. ’”  *Johnson* at 578-79 quoting U.S. v. Farrell, 606 F.2d 1341, 1348-49 (D.C. Cir. 1979)(additional citations omitted).  “Simply stated, ‘a court should not grant relief to one who is a wrongdoer with respect to the subject matter in suit. ’”  Johnson at 579 (emphasis added) quoting Clark v. Clark, 429 N.J.Super. 61, 77 (App.Div. 2012)(additional citations omitted).  But the most salutary rules are always liable to abuse in their application to cases not within the range of principles they are intended to establish, or the mischief it is their purpose to prevent.
[brief] *State v. Timmendequas*, 161 N.J. 515, 613-14 (1999), cert. denied, 534 U.S. 858 (2001); *Nyhammer*, 197 N.J. at 402 (citing *State v. Dispoto*, 189 N.J. 108 (2007); *State v. O’Neil*, 193 N.J. 148 (2007)); *A.S.*, 203 N.J. at 146.  Factors to be considered include: “‘the suspect’s age, education and intelligence, advice as to constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature and whether physical punishment or mental exhaustion was involved,’ ‘as well as the suspect’s previous encounters with the law. ’”
[directive] Você entende que se o crime ocorreu em 26 de abril de 2005 ou após esta data, em decorrência da [Sim/Yes] [Não/No] sua declaração de culpa você terá que pagar uma multa compulsória do Fundo para Tratamento de Vítimas de Crimes Sexuais (S.C.V.T.F.) conforme descrito abaixo para cada crime para o qual se declarar culpado?  As multas compulsórias são as seguintes: (1)  Até $2.000 para crimes de primeiro grau (2) Até $1.000 para crimes de segundo grau (3)  Até $750 para crimes de terceiro grau (4)  Até $500 para crimes de quarto grau Multa S.C.V.T.F. Total $  Do you understand that if the crime occurred on or after April 26, 2005, as a result of your guilty plea you will be required to pay a mandatory Sex Crime Victim Treatment Fund (S.C.V.T.F.) penalty as listed below for each offense for which you pled guilty?  The mandatory penalties are as follows:  (1)  Up to $2,000 in the case of a 1st degree crime (2)  Up to $1,000 in the case of a 2nd degree crime (3)  Up to $750 in the case of a 3rd degree crime (4)  Up to $500 in the case of a 4th degree crime  TOTAL  S.C.V.T.F. Penalty: $ Data/Date  Réu/Defendant  Advogado de defesa/Defense Attorney  Promotor/Prosecutor no Formulário revisado promulgado pela diretiva 01-18, (02/23/2018), CN 10080-Portuguese página 7 de 7  Revised Form Promulgated by Directive #01-18, (02/23/2018), CN 10080-Portuguese page 7 of 7
[brief] See Warner Co. v. Sutton, 270 N.J.Super. 658, 637 A.2d 960 (1994) (On appeal, the court reversed and found that the motion was timely, because the movants wanted only to contest perceived illegalities in the amended consent order).  Furthermore, more than a hundred years ago, the Supreme Court of the United States set forth the Throckmorton doctrine in United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93, 95 (1878), the relief should have been granted to the party on the ground that there is “some fraud practiced directly upon the party seeking relief against the judgment or decree”, and “that party has been prevented from presenting all of his case to the court. ”
[brief] Moreover, apart from [...]’s report, the record contains no reference to a 2009 injury.  If such an incident took place, and [...] was forced to miss 3 months of work, there would be evidence of it.  [...]’s employers were required to produce all workers’ compensation documentation.  (Pa84-85).  Nothing was provided in relation to a 2009 injury.  (Pa84-85).  The Board posited it was “feasible that [] [...] sustained an injury in 2009, but there [was] no workers’ compensation or other employer report because [[...]] injured himself outside of work.
[brief] See e.g., Ledley, 138 N.J. 627 (granting summary judgment in favor of insurer on rescission claim where the insurer submitted an affidavit by a senior life underwriter wherein he concluded that if the insured had answered the question accurately, the insurer would not have issued the policy); Scalia v. Lafayette Ins. Co., 1995 WL 631841, at *9 (D.N.J. Oct. 23, 1995) (granting summary judgment to an insurer that submitted an affidavit from the Director of Individual Underwriting stating that had the insured disclosed the facts sought to be elicited by the insurer, the insurer would not have issued the policy).  Here, like in Scalia and Ledley, [...] submitted an affidavit from a senior underwriting employee.  Intervenor’s failure to address this affidavit, or the contents of [...]’s underwriting guidelines, necessitates denial of his appeal.
[brief] ”  _Id._ at 508.  The case was appealed up to the Supreme Court of New Jersey, which reversed the lower Courts and held that Plaintiff had alleged a prima facie case for hostile work environment under the LAD.  _Id._ at 520.  In so holding our Supreme Court relied upon the overtly racial nature and connotation of the underlying incident, the rank and authority of the persons involved, the fact that the comment was made by one supervisor in the presence of another, and the fact that the very individuals involved were the individuals who should have been responsible for maintainin  The circumstances – that the insult was clearly a racist slur, that it was directed against plaintiff, that it was uttered by the chief ranking supervisor of her employ, the [...], and that it was made in the presence of another supervising officer – were sufficient to establish the severity of the harassment and alter the conditions of plaintiff's work environment.  _Taylor_ 152 N.J.at 507.  A supervisor has a unique role in shaping the work environment...  Here, defendant did more than merely allow racial harassment to occur at the workplace, he perpetrated it.  That circumstance, coupled with the stark racist meaning of the remark, immeasurably increased its severity.  The [...] is a high-ranking law enforcement officer.  That fact is of significance when evaluating the effect of his remark on a subordinate.  Any remark from such an individual carries with it the power and authority of the office.  Taylor 152 N.J.at 504-505.  We do not hold that a single racial slur spoken by a stranger on the street could amount to extreme and outrageous conduct.  But, a jury could reasonably conclude that the power dynamics of the workplace contribute to the extremity and the outrageousness of defendant's conduct.  Taylor 152 N.J.at 511.  The test of severity adopted by the Court in Taylor applies in the pending matter.  The same considerations support a finding that the incident set forth in Plaintiff’s complaint is of adequate severity to satisfy the severe or pervasive requirement of the LAD.
[directive] Prohibited conduct includes:  regardless of whether the officer intended to do  Officers shall not ask an individual under 21 for consent to search the person to • determine a violation of that crime.  (However, if the individual is over 18 and the officer reasonably believes that other criminal activity is afoot, the individual may grant consent to search);  The odor of marijuana, hashish, or alcohol no longer constitutes reasonable articulable • suspicion to initiate a stop of an individual under the age of 21, nor does it provide probable cause to search the person’s personal property or vehicle to determine a violation of N.J.S.A. 2C:33-15(a)(1).  The unconcealed possession of an alcoholic beverage, marijuana, hashish, or cannabis • item in violation of N.J.S.A. 2C:33-15(a)(1) that is observed in plain sight shall not constitute probable cause to initiate a search of an individual under the age of 21 or that individual’s personal property or vehicle to determine a violation of any law.  An individual under the age of 21 who violates N.J.S.A. 2C:33-15(a)(1) shall not be • arrested, detained, or otherwise taken into custody except to the extent required to issue a written warning or provide notice of a violation to a parent/guardian, unless the person is being arrested, detained, or otherwise taken into custody for also committing another violation of law for which that action is legally permitted or required.
[brief] **FACTOR 12 – PAYMENT BY HOUR, WEEK OR MONTH**  1.  In her report, [...] notes Petitioner is paid through the bi-monthly payroll system, is not paid through the submission of vouchers and all state and federal employee taxes are taken from the Petitioner’s paycheck which are indicative of employee status.  (Pa95)  2.  [...] also notes the Petitioner is paid through the salary ordinance.  (Pa95)  3.  [...] determined the Petitioner met the definition of independent contractor because the Township provided her with 1099s from the period 2010 through 2014 which are not at issue in this case.  (Pa95)
[brief] Although judicial estoppel normally does not apply to matters resolved by consent because such resolution often does not “impl[y] judicial endorsement of either party’s claims or theories,” Kimball Intern., Inc. v. Northfield Metal Prods., 334 N.J. Super. 596, 608 (App. Div. 2000), certif. denied, 167 N.J. 88 (2001), the Consent Order is different.  This is because “[a] consent order is, in essence, an agreement of the parties that has been approved by the court. ”  Hurwitz, 438 N.J. Super. at 292.  A consent order is “an agreement of the parties under the sanction of the court as to what the decision shall be. ”  Harris, 155 N.J. at 226.  It therefore “has equal adjudicative effect as one entered after trial or other judicial determination.
[brief] (Da 14)  The court found that [...]’s search of the car for credentials was justified “because it was clear that the officers were not going to let him back in the car as a safety precaution. ”  (Da 15)  Last, the trial court found that putting aside the evidence found during the credentials search, there was probable cause for a warrant because of “[...]’s furtive hand movement towards the key of the vehicle, the smell of raw marijuana, [...]’s observation of the hand-to-hand transaction between [...] and [...], and the conflicting stories as to why the defendants were at the scene, all in the context of the information the police had from their ongoing investigation. ”  (Da 20)  The subsequent motions for reconsideration were denied on the basis that officer-safety concerns allowed for entry into the car without first giving the occupants an opportunity to retrieve the registration.  (3T 49-12 to 59-19; 4T 32-18 to 36-16)  LEGAL ARGUMENT POINT I THE STOP AND SEARCH OF THE DEFENDANT WERE ILLEGAL.
[brief] ”  *Ibid.*  Here, by contrast, the circumstances suggested to [...] that her mother would face negative consequences if either woman refused to cooperate with police, not if they agreed to cooperate.  instead replying, “let’s talk upstairs. ”  (BWC4-A 35:15 to 35:30)  This response certainly negated any notion that [...] had the authority to refuse police entry into her unit.  To make matters worse, police never even asked [...] (or [...], for that matter) for permission to enter the unit.
[brief] Perhaps that “premium” approach more effectively assures that the current fair market value of the condemned property is not the value of the property as though the proposed change were a *fait accompli*.  We do not, however, read or apply the observations in *Gorga* to mandate that in the valuation process experts must use additional instead of subtraction.  See, *Caoili*, *supra* at 272-273 [internal citations omitted]  [emphasis added].  In *County of Monmouth v. Hilton*, 334 N.J. Super. 582 (App. Div. 2000) the Appellate Division rejected the same methodology employed by Respondent’s appraiser when estimating the fair market value of the subject Property to be fundamentally untenable and legally defective.
[brief] The first note (in the amount of $311,430.00) included the following language: “The borrower shall personally guarantee the repayment of all funds borrowed. ”  Id. at 323 (emphasis added).  This note was signed by Defendants [...] and [...] with official titles (Chairman & CEO and Vice Chairman and General Counsel) immediately following their name.  Id.  The second note (in the amount of $700,000.00) included the following language:  “The undersigned trusts hereby guarantee the repayment of this loan made to the aforesaid corporation. ”  Id.  The second note was signed the same way as the first except the individuals signed the Note a second time evidencing the guarantee of the loan by their respective trusts.  Id.  The Court granted summary for both [...] and [...] finding that neither was personally liable under either note.  In reaching this conclusion the Court focused on two considerations which they indicated were relevant under New Jersey law: (1) whether the individual sought to be held personally liable signed the document a second time in their individual capacity and (2) whether there was evidence that the individuals sought to be found personally liable intended to be personally liable.  683 F. Supp. 2nd at 327-28.  For both notes the Court determined that neither of the above considerations were satisfied as necessary to impose personal liability  Id.¹  There are at least two un-published New Jersey Appellate Division cases that are fully consistent with the ruling in City of Millville and in which personal liability was denied as a matter of law under very similar facts as the case at bar.
[brief] “expressly authorize or endorse [their] use,” and so the plain (i.e., literal) reading of § 1692c(b) prohibiting any disclosure not expressly exempted by the statute must still apply.  Appellant’s Br., at 30.  But this ignores the rules of statutory construction set forth by the New Jersey Supreme Court and Appellate Division.  Under those rules, provisions of a statute “cannot be viewed in isolation; all the parts of a statute must be read to give meaning to the whole of the statute. ”  Nicholas v. Mynster, 213 N.J. at 480.  And, as noted supra, where “the overall statutory scheme is at odds with the plain language,” courts should set aside the plain meaning and consider extrinsic evidence, such as legislative history, to properly construe the statute.
[brief] PRB Enterprises, Inc. v. South Brunswick, 105 N.J. 1, 3 (1987); Lionel’s Appliance Ctr., Inc. v. Citta, 156 N.J. Super. 257, 268 (App. Div. 1978); Dunkin’ Donuts of N.J., Inc. v. N. Brunswick Planning Bd., 193 N.J. Super. 513, 515 (App. Div. 1984); Tennis Club Assocs. v. Planning Bd. of Tp. of Teaneck, 262 N.J. Super. 422 (App. Div. 1993).  A planning board may consider off-site traffic flow and safety in reviewing proposals for vehicular ingress to and egress from a site; however, the “authority to prohibit or limit uses generating traffic into already congested streets...is an exercise of the zoning power vested in the municipal governing body. ”  *Dunkin’ Donuts v. North Brunswick*, 193 N.J. Super. 513 (App. Div. 1984).  The [...] hearing officer relied heavily on the Law Division opinion in the matter of *Lionel’s Appliance Center, Inc. v. Citta*, 156 N.J. Super. 257 (Law Div. 1978).
[directive] Careful consideration shall be given to the value of the property requested, its potential benefit to the United States for law enforcement purposes, and its impact on the Fund.  The head of the seizing investigative agency, or designee, may transfer for official use $25,000 personal property valued at or less to an agency that did not participate in the seizure or forfeiture.  decision to grant a request for any property valued at more than A EOAF.  $25,000 shall be approved in writing by the Director of  If the recipient agency is a not a Treasury law enforcement agency, they shall pay costs incurred by the Fund in connection with the forfeiture and transfer of such property.  Executive Ofice Asset Forfeiture 15 for  This page is intentionally blank.  VII  Guidelines
[directive] Promulgated by Directive #21-06 (December 11, 2006)  Page 27 of 29  Any ambulance / EMT / Rescue 5.  Have you, or any members of your family, been employed in processing, investigating or handling any type of medical or personal injury claims?  If so, please describe:  6.  (a)  Is there anything that you may have read in the print media or seen on television or heard on the radio about medical negligence cases or caps or limits on jury verdicts or awards that would prevent you from deciding this case fairly and impartially on the facts presented?
[brief] The doctrine of judicial estoppel forecloses a party from making a factual assertion when: (1) the party made a contrary assertion in an earlier proceeding, and (2) that tribunal relied upon or accepted that contrary assertion.  *Kimball Inter’l, Inc. v. Northfield Metal Prods.*, 334 N.J. Super. 596, 606-07 (App. Div. 2000), certif. denied, 167 N.J. 88 (2001); see *Ali v. Rutgers, The State Univ. of N.J.*, 166 N.J. 280, 287-88 (2000) (citing *Kimball Inter’l* with approval).  “[A] party to litigation will not be permitted to assume inconsistent or mutually contradictory positions with respect to the same matter in the same or a successive series of suits. ”  *Scarano v. Cent. R.R. Co. of N.J.*, 203 F.2d 510, 513 (3d Cir. 1953).  Inconsistent assertions typically undermine the integrity of the judicial process when a party is “playing fast and loose with the courts” to gain an advantage in litigation.  *Cummings v. Bahr*, 295 N.J. Super. 374, 387, 685 A.2d 60, 67 (App. Div. 1996).  The New Jersey Supreme Court succinctly formulated the doctrine of judicial estoppel in the following words:  “The general rule is that a party who, with knowledge of the facts, has assumed a particular position in judicial proceedings, and has succeeded in maintaining that position, is estopped to assume a position inconsistent therewith to the prejudice of the adverse party. ”  Brown v. Allied Plumbing & Heating Co., 129 N.J.L. 442, 446 (Sup. Ct.) (cited in Kimball Inter’l, supra, 334 N.J. Super. at 606), aff’d, 130 N.J.L. 487 (E. & A. 1943).  [...]’s argument that Plaintiffs’ Tort Claims against [...] as Sole Member of [...] and his control and operation of [...] as a sham entity were already dismissed in the 2015 Action is a quintessential example of why the doctrine of judicial estoppel exists.