ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] This argument also lacks merit in any case because, as argued above, Appellants have not been deprived of any substantive right under DACCA.  To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States and must show that the alleged deprivation was committed by a “person” acting under color of state law.  West v. Atkins, 487 U.S. 42, 48 (1988).  Even assuming Appellants could show they were deprived of a constitutional right, only defendants who fall under the definition of “person” may be held liable under § 1983.  States, state agencies, and state officials acting in their official capacities are not “persons” under § 1983.  Will v. Michigan Dep’t of State Police, 491 U.S. 58, 70-71 (1989).  A “State and arms of the State” are “not a ‘person’ within the meaning of § 1983” and therefore “are not subject to suit under § 1983 in either federal court or state court. ”  Howlett v. Rose, 496 U.S. 356, 365 (1990).  In order to establish a defendant’s individual liability under 42 U.S.C. § 1983, the plaintiff must demonstrate the defendant’s personal involvement in the alleged constitutional deprivation which falls outside of their official capacities.  See e. g., Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d 210 (3d Cir. 2015).  Otherwise, a § 1983 claim may not proceed against a governmental employee in his or her individual capacity.  See Rode v. Dellarciprete, 845 F.2d 1195, 1206-07 (3d Cir. 1988).  Here, Appellants have sued the [...], and the [...] and the [...] in their official capacities.  However, as discussed above, the State and the individual defendants acting in their official capacities are not persons amenable to suit for the alleged constitutional violation.  Accordingly, Appellants have not pleaded a cognizable § 1983 claim and Respondents are entitled to sovereign immunity.  Appellants’ claims under the New Jersey Civil Rights Act fails for similar reasons.  See Brown v. State, 230 N.J. 84, 97-98 (2017); Filgueiras v. Newark Pub. Sch., 426 N.J. Super. 449, 468 (App. Div. 2012) (“The elements of a substantive due process claim under the [NJ]CRA are the same as those under § 1983. ”); Martin v. Unknown U.S. Marshals, 965 F. Supp. 2d 502, 548 (D.N.J. 2013) (“[T]he New Jersey Civil Rights Act is interpreted analogously to 42 U.S.C. § 1983”).  Because the State and its agencies and officers acting in an official capacity are not “persons” for the purposes of § 1983 and the NJCRA, they are not subject to suit under these statutes.  Brown, 442 N.J. Super. at 426; Grohs v. Yatauro, 984 F.Supp. 2d 273, 280 (D.N.J. 2013).  Respondents are immune from suit and the DACCA Attorney Safe Harbor does not implicate any substantive civil rights protected by federal or state law, therefore, Appellants are not entitled to relief under both the Federal and New Jersey Civil Rights Acts.
[brief] The right against self-incrimination is “[o]ne of the most fundamental rights protected by both the Federal Constitution and state law. ”  U.S. Const. amends.  V, XIV; State v. O’Neill, 193 N.J. 148, 167 (2007).  In New Jersey, this right affords specific protection for defendants facing sentencing.  N.J.S.A. 2C:44-1(c)(1) holds that “[a] plea of guilty by a defendant or failure to so plead shall not be considered in withholding or imposing a sentence of imprisonment.
[brief] The MOU is not substantively unconscionable because the price of the 100% interest in [...] is reflected by its assets as well as its liabilities; thus, Appellants received a fair benefit in their bargain.  (Da9-11).  Neither are the terms of the MOU substantively unconscionable.  As discussed above, the consideration exchanged was fair.  The parties considered both the value of the Property and its liabilities to assess the value of the interest in [...].  The parties even undertook to specify the liabilities [...] would be assuming in Schedule A to the MOU.  (Da32-33).  Taking Appellants’ $45 million figure as a benchmark for the sake of argument, the parties reached a substantively fair agreement.  Today, the liability [...] assumed relating to the foreclosure litigation against [...] alone accounts for over $45 million as that litigation has proceeded and the interest on the loan has grown.
[brief] [...] criticizes plaintiff for not discussing the trial court’s opinion in its Opening Brief.  Appeals are from orders, not opinions.  Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001); Marchitto v. Central R.R. Co., 9 N.J. 456, 463 (1952), overruled on other grounds, Donnelly v. United Fruit Co., 40 N.J. 61 (1963).  Obviously, plaintiff disagrees with the trial court’s opinion and rationale, hence this appeal.  Regardless, this Court’s review is de novo.  The trial court’s reasoning, while not entirely irrelevant, is not binding on this Court.
[brief] [1T P7-15]  We are briefing this issue in response to the position the Appellant has taken claiming the matter was decided by the court.  In addition to the reasons set forth above, the Appellants cannot compel this case to proceed in arbitration.  The *Federal Arbitration Act* was amended effective March 3, 2022, prohibiting the enforcement of mandatory arbitration agreements in cases involving sexual harassment, sexual assault, or related claims.
[brief] “The court grants substantial deference to the municipal zoning board’s decision to grant or deny variances and related land use.  N.J. 517, 529 (1993); D. Lobi Enters., Inc. v. Plan./Zoning Bd. of Sea Bright, 408 N.J. Super. 345, 360 (App. Div. 2009).  Decisions of zoning boards to grant or deny applications are presumed valid …  “A local zoning determination will be set aside only when it is arbitrary, capricious or unreasonable. ”  Kramer v. Bd. of Adj. v. Sea Girt, 45 N.J. 268, 296 (1963).  The burden is on the challenging party to overcome this highly deferential standard of review.  See Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adj., 152 N.J. 309, 327 (1998); Kramer, supra, 45 N.J. at 296.  A court must not substitute its judgment for that of the local board unless there is a clear abuse of discretion.
[brief] [...] was employed as a Geographic Information Specialist with the New Jersey Office of Information Technology.  While traveling in her personal vehicle during her personal time, she drove under the influence and crashed head-on into an oncoming vehicle.  See [...] at 30.  The crash caused significant injuries to the passengers of the other vehicle.  Id.  Pursuant to a plea agreement, [...] plead guilty to two counts of assault by auto, and she was subjected to employment termination.  Id. at 31-2.  Thereafter, [...] applied for deferred retirement benefits, which the Board denied Id. at 31.  The Appellate Division reviewed the Board’s decision and found that the Board’s determination was incorrect.  Id. at 30.  Before reaching its conclusion, the Court reviewed the facts and circumstances in order to identify a sufficient nexus between the misconduct and her employment, in accordance with the standard set forth by *N.J.S.A. 43:15A-38*.  Through its review and analysis, the Court in *[...]* determined that the conduct was wholly unrelated to [...]’s position as a Geographic Information Specialist in the Office of Information Technology.  Furthermore, the incident occurred during [...]’s personal time, and in her personal vehicle.  Therefore, the Court held that the misconduct “had an insufficient nexus to warrant the forfeiture of deferred retirement benefits” in accordance with the statute.  *Id.* at 36.
[brief] Exhibit 1 - Plaintiffs’ Complaint.......................................................Dta1  Exhibit 2 - Commercial General Liability Policy, Policy No. 5819877-00, issued by [...], effective December 23, 2013 to December 23, 2018...............................................................Dta75  Exhibit 3 - Transcript of the deposition of [...] of [...].............................................................................Dta1421 Exhibit 4 - Subcontract Agreement Between [...] Building Corp. and [...], executed June 4, 2015.............................................................................Dta430 Exhibit 5 - July 9, 2015  E-Mail from [...] to [...] and others, with attachments.....................................................................Dta144 Exhibit 6 - Transcript of the deposition of [...]......................Dta1457 Exhibit 7 - Proposal 106439..............................................................Dta1477 Exhibit 8 - June 24, 2015  Email between personnel at [...]...Dta1480 Exhibit 9 - Proposal 106846 dated July 21, 2015...............................Dta1485 Exhibit 10 - Proposal 107127 dated August 5, 2015............................Dta1488  Exhibit 11 - August 5, 2015  Email transmitting Proposal Three from [...] to [...]........................................Dta1489 Exhibit 12 - 7/29/15  Purchase Order issued to [...]......................Dta1496 Exhibit 13 - Dep of [...] Corp. Rep. Depo in DJ Action...............Dta1498 Exhibit 14 - 12/30/2015  Invoice 5487rev...........................................Dta1593  Exhibit 15 - Job Ticket No. 43788.....................................................Dta1595 Exhibit 16 - Dep of [...] in the Hood Lawsuit..................Dta1597 Exhibit 17 - 12/11/2015  Written Statement of [...].........Dta1786 Exhibit 18 - Dep. of [...] in the Hood Lawsuit........................Dta1790 Exhibit 19 - Dep/ of [...] in the Hood Lawsuit....................Dta2123 Exhibit 20 - Complaint in the Hood Lawsuit.......................................Dta636 Exhibit 21 - Dep. of [...]’s Corp. Rep........................................Dta2490 Exhibit 22 - [...]’ Policy............................................................Dta234 Exhibit 23 - July 29, 2015 EMail sent by [...] to [...] with Enrollment Forms.........................................................Dta2524 Exhibit 24 - [...] Policy at issue in the DJ Action.......................Dta24 Exhibit 25 - April 16, 2015 CCIP Manual............................................Dta507 Exhibit 26 - Transcript of the deposition of [...]’s Corp. Rep. in the DJAction.................................................................................Dta828 Exhibit 27 - Straight Excess Liability Policy, Policy No. SXS 5819649-00, issued by [...] to [...], effective 12/23/2013 to 12/23/2018.............................................................................Dta176
[brief] The record below does not contain any loans co – signed by the Defendant or any written requests that he co – sign any loans.  In fact, Plaintiff testified that the Paternal Grandfather co – signed two (2) loans for [...] and the Material Grandfather co – signed two (2) loans for [...] (1T:74, L21 – 23).  Defendant testified he never co – signed any loans (1T:191, L1 – 3).  Without competent corroborating evidence, the Plaintiff calculated the Defendant’s supposed 1/3rd share of both educations to be $392,103.00 (1T:20, L18 – 19) which means their total undergraduate educations with interest were $1,176,309 inclusive of [...] working as an R.A. and then an S.R.A. “which allowed her to have free room which was a great financial plus” (1T:54, L24 – 1T:24, L1).
[brief] Da78-79 (emphasis added).  The law of New Jersey is clear that [...] cannot re-try in this case the claims it wrongfully failed to defend in the underlying case by adding new evidence that (a) was not presented by [...] and its experts, and (b) contradicts the expert testimony that [...] did present.  *LCS, Inc. v. Lexington Ins. Co.*, 371 N.J.Super. 482 (App. Div. 2004).  In *LCS*, the carrier failed to defend against the plaintiff’s bodily injury claims, invoking an “assault and battery” exclusion in the policy.  The carrier argued that the plaintiff’s effort to re-characterize the case as a claim for “negligent hiring” was a bogus attempt to avoid the applicable exclusion.  The court ruled otherwise, noting that in *Ohio Cas. Ins. Co.  v. Flanagan*, 44 N.J. 504, 412 (1965), the Supreme Court held that “[i]t is the nature of the claim for damages, not the details of the accident… which trigger the obligation to defend. ”  The *LCS* court ruled that when a carrier disclaims coverage and refuses to defend its insured, it is not entitled to “relitigate” the determinative issues tried in the settled case.  *Id.* at 497.  [...] had every opportunity to involve itself in defending the underlying case, which was the proper time and place to question the source and nature of [...]’s exposure to mold.  The Trial Court erred by effectively allowing [...] to “relitigate” the underlying case.  Further, the Trial Court added restrictive language to the exception to the mold exclusion that inappropriately limits the scope of the exception.  A court may not rewrite a policy to favor a carrier’s position not otherwise supported by the existing policy language.  The Trial Court failed to consider the import of the revised language of the mold exclusion in the three policies at issue that expanded, rather than restricted coverage, thereby triggering [...]’s duty to defend.  These erroneous rulings should be reversed.
[brief] This document is not included in this Appendix as the transcript has been filed with the court Order entered By the Honorable [...] on April 14,2023 denying Plaintiff’s Motion for Reconsideration ........................................... Pa. 590 Notice of Appeal filed by Plaintiff-Appellant [...] on May 8, 2023 ............. Pa. 591-695 Case Information Statement filed by Plaintiff-Appellant [...] on May 8, 2023 .......... Pa. 596-600
[brief] As detailed herein, the court’s Judgment was completely detached from the evidential record and based on clear and obvious misstatements and misapplications of law.  Defendant, the wife of co-defendant, [...], was not involved with the 2014 buyout transactions or the nine (9) transactions (the “Disputed Transactions”) the court identified as the basis for the Judgment entered against her.  Moreover, Defendant did not receive an unjust benefit from these transactions, nor was she a party to the contracts the trial court found were breached.  Against this backdrop, the Court should reverse the Judgment against Defendant for several reasons.
[brief] N.J.R.E. 609(a)(1) provides that convictions that are less than 10 years old on the date of the trial are admissible unless excluded under N.J.R.E. 403.  N.J.R.E. 403 provides that otherwise admissible evidence may be excluded “if its probative value is substantially outweighed by the risk of . . . [u]ndue prejudice .  . . .”  Ibid.  (emphasis added).  Unlike the analysis under N.J.R.E. 609(b), the burden of establishing that the risk of “undue prejudice” “substantially outweigh[s]” the probative value of the disputed evidence rests with the party that seeks to exclude the evidence.  Rosenblit v. Zimmerman, 166 N.J. 391, 410 (2001).  The analysis under N.J.R.E. 609(a)(1) favors the admissibility of evidence of a conviction by imposing the stringent standard for exclusion of the evidence set forth in N.J.R.E. 403 and places that burden on the party seeking to exclude the evidence.  N.J.R.E. 609(b) establishes a legal standard that favors exclusion by excluding such evidence unless the probative value of the evidence outweighs the prejudicial effect of the evidence to any degree and places the burden of proving that on the party seeking to admit the evidence.  Stated differently, if the prejudicial effect of the evidence outweighs the probative value to any degree the evidence is inadmissible under N.J.R.E. 609(b).  Under N.J.R.E. 403, only where the risk of undue prejudice substantially outweighs the probative value of the evidence may it be excluded.  These are two very different standards.  The trial court incorrectly equated the analysis under N.J.R.E. 403 with the analysis applicable to a conviction that was more than 10 years old.
[brief] 71a.  The Amended Certification of [...] ([...]) was filed on April 26, 2022 asserting she was not served and her name is not “Linda”.  74a.  She provided proof of the [...] family vacation, including an EZpass receipt showing that the [...]’s vehicle passed through the East Orange Toll Plaza for the Garden State Parkway Southbound on August 23, 2021 (the date of purported service) at 9:36 a.m.  78a.  Meanwhile, the defective Affidavit of Service placed service at the [...] home in [...] at 9:25 a.m., which is impossible as these locations are over 14 to 22 minutes apart when driving with normal traffic per Defendants expert report and testimony.  233a.  Defendant [...] further provided a hotel receipt showing that they stayed in Virginia on August 23, 2021 and checked in to the hotel in Virginia at 3:04 p.m.  79a.  On April 27, 2022, [...] filed a Cross Motion to Intervene.
[brief] *[...] v. Midland Funding*, No. A-1996-21, 2023 N.J. Super. Unpub. LEXIS 1550, at *9 (Super. Ct. App. Div. Sep. 21, 2023) (no private right of action under NJCFLA); *[...] v. LVNV Funding, LLC*, 2024 N.J. Super. Unpub. LEXIS 713, at *10-14 (the legislative history of the NJCFLA does not support a private right of action).  [...]; [...]; [...]; [...]; [...]; [...]; and [...], supra.  In fact, Appellant’s counsel set forth a similar argument regarding the NJCFLA’s legislative history in [...] as Appellant argues here.
[brief] On January 4, 2022, the prosecutor sent an email that [...] no longer had the drive.  (21T82-10 to 21; Da297-99)  On April 7, 2022, [...] filed a motion for an order granting PCR due to spoliation and violation of the 2013 preservation order, or alternatively, deeming he did not arrive at Oakcrest between 12:10 and 12:45pm the day of the shooting.  (Da302-03)  On April 12, 2022, [...] granted [...]’s motion to compel discovery for responses to interrogatories regarding the lost hard drive.  (Da304)  On November 2, 2022, new PCR counsel was substituted.
[brief] (3T13-14 to 16).  [...] properly imposed aggravating factor nine—the “need for deterring the defendant and others from violating the law”—even though she had already determined mitigating factors eight and nine—that “defendant’s conduct was the result of circumstances unlikely to recur” and his character and attitude “indicate that the defendant is unlikely to commit another offense”—were present.  N.J.S.A. 2C:44-1a(9).  N.J.S.A. 2C:44-1b(8); N.J.S.A. 2C:44-1b(9).  These factors are neither contradictory nor mutually exclusive.  [...] could, and did, find both mitigating factors eight and nine and aggravating factor nine.
[directive] a.  Residence Parameters for Strict HD.  Defendants ordered to Strict HD must meet the residence requirements enumerated for HDLE.  b.  Technology Parameters for Strict HD.  Defendants ordered to Strict HD shall have their condition of home detention monitored in the same manner as HDLE defendants.  E.g., random calls from [...] that they must answer, during which, the defendant must verify they are located in the ordered residence.  Defendants who do not have the technological capability to participate in remote video reporting should not be ordered to Strict HD.
[brief] (Ra1-2).  On September 8, 2021, respondent filed a Respondent's Answer to Dependency Claim Petition, admitting that the decedent was employed by respondent, but denying that her exposure occurred in the course of her employment.  (Ra3).  Petitioner filed a Notice of Motion for Essential Worker Presumption seeking to declare the decedent to be an essential employee and entitled to the presumption set forth in N.J.S.A. 34:15-31.11 on November 4, 2021.  (Ra4-40).  Respondent filed an Answer to Motion for Essential Worker Presumption in opposition to petitioner's motion on December 13, 2021.  (Ra41-43).  On May 4, 2022, respondent filed an Answer to Motion Supplemental Pleading also in opposition to that motion.  (Ra44-47).  Respondent filed a Notice of Motion to Recuse Judge [...] on January 24, 2024.  (Ra48-61).  Petitioner filed an Answer to Motion to Oppose --- 1  "Ra" refers to respondent's appendix to this letter-brief.  "1T" refers to February 21, 2024 motion transcript.  "2t" refers to March 14, 2024 motion transcript.  Respondent's Recusal on January 25, 2024.  (Ra62-65).  After oral argument on February 21, 2024, the Honorable [...], J.W.C., of the State of New Jersey Department of Workforce Development, Division of Workers Compensation, Freehold Vicinage, denied respondent's motion.  (1T12-22 to 1T22-17, Ra66).  Respondent moved to stay that Order.  (1T33-20-25, 1T36-1 to 1T37-7).  On March 14, 2024, Judge Downey denied respondent's motion to stay the Order denying recusal.  (2T1-15 to 2T6-12, Ra67).  On March 14, 2024, after oral argument, Judge Downey granted petitioner's motion to declare the decedent to be an essential employee, and entered an Order on that date.  (2T71-2 to 2T94-25, Ra68).  Respondent moved to stay that Order.  (2T94-3 to 2T96-9).  Judge Downey denied respondent's motion for a stay.  (2T96-10 to 2T97-21, Ra69).  Respondent filed a Notice of Motion for Leave to Appeal form the February 21, 2024 Order denying respondent's motion to recuse the Judge of Compensation on April 2, 2024.  (Ra70).  Leave to appeal was granted in an Order that was filed on April 23, 2024.  (Ra71).  Respondent filed a Notice of Motion for Leave to Appeal from the March 14, 2024 Order declaring the decedent to be an essential worker on April 3, 2024.  (Ra72).  Leave to appeal was granted in an Order that was filed on April 23, 2024.  (Ra73).  Petitioner filed a Notice of Motion for Judgment on Liability on April 4, 2024, which remains pending as of this filing.  (Ra74-75).  **STATEMENT OF FACTS**
[brief] Plaintiffs’ arguments regarding disparate treatment fail because they are entirely based upon the Original Policy which no longer exists and was abolished (Pb17-21).  Indeed, Plaintiffs repeatedly invoke the defunct Original Policy to attribute a discriminatory objective to the Revised Policy but assert that the Board’s “intent is not the question” (Pb23).  *Contra Gerety v. Atl. City Hilton Casino Resort*, 184 N.J. 391, 398 (2005) (“Proof of discriminatory motive is critical” for a disparate treatment claims).
[directive] 4.  (4)  Você entende que se descumprir uma condição da supervisão [Sim/Yes] [Não/No] [Não comunitária vitalícia e for indiciado e condenado por este corresponde/NA] descumprimento, você poderá receber uma pena de prisão de até 5 anos e uma sentença especial de supervisão vitalícia de liberdade 1o (se o descumprimento da condição ocorreu em de condicional julho de 2014 ou após esta data) ou poderá receber uma pena de (se o descumprimento da condição prisão de até 18 meses 1o ocorreu antes de de julho de 2014)?
[brief] DIVISION DOCKET NO.: [...] TEAM  02  CIVIL ACTION ON APPEAL FROM SUPERIOR COURT OF NEW JERSEY LAW  DIVISION: BURLINGTON COUNTY  On appeal from the order of the Superior Court of New Jersey, Law Division, Burlington County dated February 28, 2024  Hon [...], J.S.C. Sat Below.  Date submitted: August 12, 2024  BRIEF AND APPENDIX FOR RESPONDENT / CROSS-APPELLANT, [...]
[brief] The Court’s determination that [...]’s expert testimony was sufficiently reliable and accepted did not rest solely on the fact that “this is what he does for a living” as the defendant suggests.  (Db31).  During the hearing on the admissibility of [...]’s findings, the court stated, We have the explanation from the anthropologist on what it is he sees.  He provides those – those findings.  And he was candid today.  He doesn’t determine the cause and manner of death.  He looks at bones, he tells you based on the science – and he didn’t say it out loud, but I’ve had other experts who say it, that this is all postmortem studies they have to have to do.  […]  It’s all post-mortem or it’s part of the literature of emergency room doctors, pediatricians that gather data together.  (10T:15-10 to 21).  The Court here demonstrated an understanding of [...]’s methodology as well as a particular familiarity with this manner of forensic anthropology both as it is accepted within the field and how it is routinely accepted in the courtroom.