ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] **STANDARD OF REVIEW**  Appellate review of a dismissal of a complaint for failure to state a claim upon which relief can be granted pursuant to Rule 4:6-2(e) is de novo.  See MTK Food Servs., Inc. v. Sirius Am. Ins. Co., 455 N.J. Super. 307, 311 (App. Div. 2018).  The Court will affirm dismissal of a “complaint if it has failed to articulate a legal basis entitling plaintiff to relief. ”  Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div. 2005).  Pursuant to Rule 4:6-2(e), a complaint that fails to state a cause of action upon which relief may be granted should be dismissed.  See Jenkins v. Region Nine Housing Corp., 306 N.J. Super. 258, 263 (App. Div. 1997), certif. denied, 153 N.J. 405 (1998).  Courts, of course, afford the non-moving party all reasonable inferences, but “[d]ismissal is warranted where the factual allegations are palpably insufficient to support a claim upon which relief can be granted. ”  Rieder v. State Dep’t of Transp., 221 N.J. Super. 547, 552 (App. Div. 1987).  While courts must accept “all well-pleaded facts as true,” they “need not credit a complaint’s bald assertions or legal conclusions. ”  In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429 (3d Cir. 1997).  A complaint “cannot survive a motion to dismiss where the claims are conclusory or vague and unsupported by particular overt acts. ”  Delbridge v. Office of Pub. Defender, 238 N.J. Super. 288, 314 (Law Div. 1989).  Indeed, “a court is not required to accept unsupported evidentiary conclusions and unwarranted inferences. ”  Insight Global, LLC v. Collabera, Inc., 446 N.J. Super. 525, 528 (Ch. Div. 2015) (citing Nostrame v. Santiago, 213 N.J. 109, 129 (2013)).  “[V]ague conclusory allegation[s]” are “not enough” to survive a motion to dismiss.  Zoneraich v. Overlook Hosp., 212 N.J. Super. 83, 101 (App. Div. 1986).  In short, a party cannot “file a conclusory complaint to find out if [a claim] exists. ”  Printing-Mart Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 768 (1989) (quoting Zoneraich, 212 N.J. Super. at 101-02).  For the reasons set forth herein, this Court should affirm dismissal of the Complaint as to defendants [...] and [...] pursuant to Rule 4:6-2(e).
[brief] Plaintiff is requesting review and reversal of three interlocutory orders in this brief.  The Orders were filed on January 19, 2024, February 21, 2024 and March 1, 2024 respectively.  On March 21, 2024, the Appellate Court in their Order indicated that plaintiff is permitted to appeal all three Orders together and will be addressing each Order separately.  On April 26, 2024, plaintiff’s Motion for Leave to Appeal was granted.  An appellate court's review of rulings of law and issues regarding the applicability, validity (including constitutionality) or interpretation of laws, statutes, or rules is de novo.  See In re Ridgefield Park Bd. of Educ., 244 N.J. 1, 17 (2020) (agency's interpretation of a statute).  An appellate court reviews a grant or denial of a motion for summary judgment de novo.  R. 4:46-2(c).  Therefore, the Court will apply the summary judgment standard.
[brief] ”).  The trial court found that the Administrative Code did not apply.  Pa2750-Pa2752.  The court reasoned that while [...] was “unenrolled,” the larger CCIP Policies as they applied to all other subcontractors were never “cancelled. ”  Pa2750.  This strained exercise in semantics (i.e., “unenrollment” versus “cancellation”) completely misses the point.  Here, any unenrollment of [...] would have the same effect of cancelling [...]’s insurance under the CCIP.  The trial court also reasoned that the Code does not apply to “workers’ compensation insurance,” the cancellation of which is not at issue here, and that it does not apply to “multi-state risks. ”  While it is true that the CCIP program applies to contractors and projects in other states, only [...]’s coverage was cancelled, not the CCIP Policy itself.  The CCIP Policy applied to [...] as a single-location New Jersey company, not a multi-state risk.  Therefore, [...] did not constitute a multi-state location risk and its insurance is not of the type meant to be excepted from the Code’s policy of protecting insureds.  Even if the Administrative Code does not apply, public policy protecting insureds’ reasonable expectations still mandates reasonable notice of any changes to their insurance.
[brief] ”  Savage v. Tp. of Neptune, 472 N.J. Super. 291, 313 (App. Div. 2022).  “An abuse of discretion occurs when a decision was ‘made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis. ’”  Id. (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).  “[A] judge’s legal decisions are subject to [appellate court’s] plenary review. ”  Milne, 428 N.J. Super. at 197-98.  II.
[brief] PAGE NOS.  PRELIMINARY STATEMENT .................................................................  1  PROCEDURAL HISTORY ........................................................................ 2  STATEMENT OF FACTS  .......................................................................  5  LEGAL ARGUMENT .............................................................................  16 POINT I  THE TRIAL COURT ERRONEOUSLY RESTRICTED THE DEFENSE FROM ARGUING THIRD-PARTY GUILT .................................................................  16  POINT II  THE STATE’S EXPERT OFFERED AN IMADMISSIBLE NET OPINION ON THE LOCATION OF [...]’S CELL PHONE (Not Raised Below).  ..................................................................................  25 POINT III  THE CUMULATIVE EFFECT OF THE ERRORS REQUIRES REVERSAL.  (Not Raised Below)  ......................................................  34 POINT IV  THE JUDGMENT OF CONVICTION MUST BE AMENDED TO MERGE COUNT THREE INTO COUNT TWO AND TO REFLECT 1,119 DAYS OF JAIL CREDITS.  (Not Raised Below).  ......................................................  35  TABLE OF CONTENTS (CONT'D.)  POINT V  THE MATTER MUST BE REMANDED FOR A HEARING ON [...]’S ABILITY TO PAY RESTITUTION.  .................................................................  37  CONCLUSION ...........................................................................................................
[brief] (Pa244); [...], et al., ABN Policy Statement, 23 Applied Neuropsych. 391 (2016), available at https://www.tandfonline. com/doi/pdf/10.1080/23279095.2016.1176366 (last accessed Apr. 19, 2024); but see [...] & [...], Contemplating the Presence of Third Party Observers and Facilitators in Psychological Evaluations, 16 Assessment 362 (Dec. 2009) (finding the position that third party presence invalidates the test data to be “puzzling” and “inconsistent”) at Pa204.  If the interpreter can be present, then the exam can be recorded.  This Court should reverse and permit recording because the trial court abused its discretion and permitted [...] to violate the Court’s prescription that the examiner “does not have the right to dictate the terms under which the examination shall be held. ”  Id. at 241 (quoting DiFiore v. Pezic, 472 N.J. Super. 100, 130 (App. Div. 2022) (quoting B.D. v. Carley, 307 N.J. Super. 259, 262 (App. Div. 1998)).  New Jersey only recognizes a Board of Psychology.  N.J.S.A. 45:14B-1, et seq.  Under New Jersey law, the scope of practice for a licensed psychologist includes “administration or interpretation of psychological tests and devices . . . and assessments in connection with legal proceedings. ”  N.J.A.C. 13:42-1.1(a)(1).  The practice expressly encompasses neuropsychology.  N.J.A.C. 13:42-1.1(a)(3).  New Jersey has adopted no regulation that sets the standard of care to preclude recording of a psychological exam.
[brief] In Count Two Plaintiff sought damages pursuant to the New Jersey Consumer Fraud Act N.J.S.A. 56:8-1, and in Count Three, notwithstanding there is no record of Plaintiff making any payments to Respondent, Plaintiff claimed Unjust Enrichment and sought disgorgement on behalf of herself and a subclass.  The question must be asked, how many more times does Counsel file lawsuits claiming a violation of the CFA and the UDJL based on debt collection before it can be deemed frivolous.  The instant appeal should be denied based on prior decisions on these operative facts.
[brief] Factual determinations were made based upon credibility observations and determinations made by the trier of fact – the judge.  The Appellants have gone through substantial effort to ignore some of the facts and present only those favorable to Appellant and smearing Respondent and Respondent’s legal counsel; but the Court considered everything and made findings of fact and credibility.  These were set forth on the record.  The trial regarding these facts ended, and the judge concluded that service was proper and accurate.
[brief] # TABLE OF AUTHORITIES ## CASES | Case | Page(s) | |----------------------------------------------------------------------|---------| | Nextel of New York, Inc. v. Borough of Englewood Cliffs Bd. of Adjustment, 361 N.J. Super. 22 (App. Div. 2003) | 18 | | Paruszewski v. Twp. of Elsinboro, 154 N.J. 45 (1998) | 32 | | Price v. Himeji, LLC, 214 N.J. 263, 284 (2013) | 17 | | Reich v. Borough of Fort Lee Zoning Bd. of Adjustment, 414 N.J. Super. 483, 502 (App. Div. 2010) | 29-30 | | S. Jersey Pub. Co. v. N.J. Expressway Auth., 124 N.J. 478. 494 (1991) | 34 | | Scully-Bozarth Post # 1817 of the Veteran of Foreign Wars of U.S. v. Planning Bd. of City of Burlington, 362 N.J. Super. 296, 311-312 (App. Div. 2003) | 19 | ## STATUTES | Statute | Page(s) | |------------------------------------------------------------------------|---------| | N.J.
[brief] Certification is granted absent a clear showing it is inappropriate or improper. \textsuperscript{118}  Rule 4:32-1(a)(1) requires that the class be “so numerous that joinder of all members is impracticable. ”  Numerosity is amply satisfied because the water charges are uniform as is the contamination and the number of residents is in the hundreds as indicated from defendant’s own records.  149a-151a; 690a-846a.
[brief] In fact, the club historically approved plans only after the Township issued a building permit.  This process changed in 1989 when the [...] amended its by-laws to include a height restriction and in 1992, when they enacted a multitude of building and zoning restrictions.  Eventually, the [...] amended its by-laws to mandate that a homeowner must first submit plans to them prior to Township application.  [...] amended its ordinance in 2018 to require “homeowner association” approval as a prerequisite for Township review.  The [...] effectively operates as a preliminary building and zoning office and engages engineers for plan review.  Prior to 1989, all homeowners in [...] abided Township building and zoning.  There is no record of the [...] taking any action to alter or amend any of the developer’s building restrictions until 1989.  (Db22).  Accordingly, [...]’s actions are *ultra vires*, as they have no enabling power or authority from the original developer to adopt or change any of the deed restrictions as imposed by the original developer.
[brief] **Training and Experience. **  [...] has been a [...] since June 2018 after attending the police academy from December 2015 to May 2016.  7T6-12/7-2.  He has issued more than 10 DWI charges in his career.  7T7-19/21.  He was trained to write a true, accurate, complete, chronological narrative to the best of his ability for each DWI investigation, including details about how a person walks, stands, and interacts.  7T83-14/84-10,  He received training in DWI investigations at the academy and attended a 40-hour SFST course run over five days by the New Jersey State Police.  SFST includes horizontal gaze nystagmus [“HGN”], OLS, and W&T tests.  The 40-hour course included lectures, administration of the tests under the supervision of multiple instructors who critiqued performance, gave improvement tips, and corrected errors, and a written test.  **DWI Investigations.
[brief] Respondents have no legitimate basis to challenge the formation of their contract to purchase the subject unit.  Respondents wield the decision in Atalese to support a bright line holding that a particular clause in the Subscription Purchase Agreement (“SPA”) (the arbitration provision) is unenforceable.  In doing so, the Respondents urge this Court to ignore various longstanding contract principles to evade contract terms to which they freely agreed.  That bright line “unenforceability” rule, ultimately adopted by the trial court, rests on an incorrect expansion of New Jersey law and is further preempted by the FAA as it is an arbitration-specific rule that disfavors such contracts and refuses to enforce them according to their terms.  Our recent Supreme Court decisions apply a totality of the circumstances test which the trial court did not apply.  When viewed within the totality of the evidence, the facts are plain –  Respondents, after careful review and upon the advice of retained Counsel, signed, initialed, and knowingly assented to the Subscription and Purchase Agreement and its terms including the Arbitration Provision contained in the Public Offering Statement, a document incorporated by reference.
[directive] FACILITY)  Category 60 66 69 54 60 63 51 48 54 57 42 48  Significant N.J.S.A. 54 60 63 48 54 57 42 48 51 36 42 45  II  PRODUCTION 4  History 48 54 57 42 48 51 36 42 45 30 36 39  TABLE UNDER  Criminal OFFENSES (DRUG 57 54 60 63 48 54 42 48 51 36 42 45
[brief] Under the express terms of the PSA, upon termination, [...] “will have no further rights or obligations under this Agreement. ” (PSA, Section 13.1).  By imposing a post-termination implied duty upon [...], Plaintiff seeks to circumvent Section 13.1’s release of [...] from all further obligations.  “In the absence of a contract, there can be no breach of an implied covenant of good faith and fair dealing. ”  *Noye v. Hoffmann-La Roche Inc.*, 238 N.J. Super. 430, 434 (App. Div. 1990), *certif. denied*, 122 N.J. 146 (1990).  The allegedly wrongful conduct that forms Plaintiff’s implied covenant claim is not actionable because the conduct occurred after the PSA became null and void by Plaintiff’s termination.
[brief] Additionally, the applicant in the Prior Approvals voluntarily agreed to a condition of approval requiring the installation and operation of the Route 33 Signal prior to the issuance of a certificate of occupancy.  M91.  This condition was in the resolution of approval for the Prior Approvals.  M91.  On February 14, 2019, over a month before the March 26, 2019 Board hearing on the Respondents’ Application, a meeting was conducted between the Respondents, their professionals and the [...] (hereinafter the “2019 [...] Meeting”).  Ba27-30.  At the 2019 [...] Meeting, the [...] advised that they were now not in favor of the Route 33 Signal.  Ba27-30.  This was a change in [...]’s position from prior pre-application meetings.  Ba22-30.
[brief] On December 1, 2023, both motions were DENIED by the trial court; who also DENIED the defendants’ request for an oral argument.  At this time, the defendants ask this court to vacate the Final Judgement by Default that was granted by the trial court in error on May 4, 2015.  Should this court decide to remand the matter back to the trial court for an Evidentiary Hearing, the defendants request that a different trial judge be assigned.
[brief] OPRA provides that “government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest[.]”  N.J.S.A. 47:1A-1.  The New Jersey Legislature enacted OPRA “’to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process. ’”
[brief] ”  *State v. Fuentes*, 217 N.J. 57, 73 (2012).  A clear explanation of the balancing process is “particularly important,” and that explanation “should thoroughly address the factors at issue. ”  *Ibid.* (internal citations omitted).  A remand for resentencing is required when the trial court considers an improper aggravating factor, *State v. Carey*, 168 N.J. 413, 424 (2001), fails to find mitigating factors supported by the evidence, *State v. Dalziel*, 182 N.J. 494, 504 (2005), or if the trial court's reasoning in finding aggravating and mitigating factors is not based on factual findings “supported by substantial evidence in the record.
[directive] 4  Authorized Officers  4.1  The law enforcement executive of each agency shall determine which officers, including Class II and Class III Special Law Enforcement Officers, shall be authorized to carry and use a conducted energy or a less-lethal device or ammunition.  Class I Special Law Enforcement Officers shall not be authorized.  4.2  An officer shall not carry or use a CED or less-lethal device during an actual operation unless the officer has been expressly authorized to do so by the law enforcement executive, after the officer has successfully completed a training course approved by the Police Training Commission in the proper use and deployment of authorized conducted energy or less-lethal devices, as appropriate.  The law enforcement executive shall be responsible to ensure that officers authorized to carry CEDs and less-lethal devices maintain the required certifications and qualifications.
[brief] (11T79-5 to 81-6).  She explained how a trooper’s “wallet ID” differed from their “billfold ID. ” (11T97-11 to 102-18).  For example, only the wallet ID had a “very bright golden triangle. ” (11T101-1 to 17).  The triangle, the NJSP insignia, appeared “in the center of” the wallet ID’s front side.  (11T98-5 to 13).  Only that insignia was embossed.  (11T97-23 to 98-13).  For that reason, that triangle was reflective, meaning it would “reflect differently” if the ID was moved “back and forth.” (11T98-25 to 99-6).  Neither of the two IDs comprising the billfold ID contained the NJSP insignia in the center.  (11T98-10 to 13; 11T102-12 to 14).  The rear of the wallet ID provided that it was property of NJSP.  (11T100-20 to 25; Pa29).  [...] testified that enlisted members got new identification cards when they were promoted.  (11T102-19 to 103-3).  When her unit delivered the new IDs, it collected the obsolete ones, and destroyed them, for security purposes.  (11T103-3 to 18).  Her unit maintained records on all IDs issued to enlisted members.  (11T103-25 to 104-3).  Reviewing defendant’s records, she found billfold IDs and the wallet ID were issued to him in 2014.  (11T104-4 to 20).  On January 15, 2016, defendant got a new wallet ID, after defendant submitted a nearly-identical copy of the “Special Report” to [...]’s unit; she identified her handwriting on the upper right-hand side of the form, recording the date of issuance and type of ID issued.  (11T104-21 to 108-7; Pa19).
[brief] STANDARD OF REVIEW  As stated in Plaintiff's merits brief, an ordinance enjoys "a presumption of validity, which may be overcome by a showing that the ordinance is 'clearly arbitrary, capricious or unreasonable, or plainly contrary to fundamental principles of zoning or the [zoning] statute.'"  Riggs v. Long Beach, 109 N.J. 601, 610-11 (1988) (quoting Bow & Arrow Manor v. Town of W. Orange, 63 N.J. 335, 343 (1973)).  An ordinance that does not comport with statutory requirements cannot be upheld.  See Riggs, 109 N.J. at 611.  It is also well-established that a municipality's decision regarding a redevelopment plan must be supported by the evidence in the record.  See Powerhouse Arts Dist. Neighborhood Ass'n v. City Council of City of Jersey City, 413 N.J. Super. 322, 332 (App. Div. 2010).  Plaintiff's argument here is simple: the Township's decision is not supported by the evidence in the record and thus is arbitrary, capricious, and unreasonable.
[brief] **PROCEDURAL HISTORY**  On August 16, 2023, the court in the Underlying Action issued a commission to the [...] to take [...]’s deposition where he resides in New Jersey.  Aa283-84.  The [...] served a subpoena on [...] for his deposition to occur in September 2023.  Aa278.  On August 25, 2023, [...] filed a motion in the Trial Court for a protective order to prevent his deposition from being taken.  Aa1.  The Trial Court denied the motion for a protective order on March 7, 2024.  Aa817.  The Trial Court found that: •  “This deposition is not harassment as claimed by the Defendant. ”  •  “This deposition is being held in order to gather information known by Mr. [...] that may be relevant to the case, without the deposition the information cannot be gathered. ”  •  “There is no showing by [[...]] that the subpoena should be quashed. ”  •  “[[...]] made a blanket statement claiming the information is privileged without specifics included in their papers. ”  Aa821.  On March 14, 2024, [...] filed a Notice of Appeal of the order denying his motion for a protective order.  Aa822.  On March 13, 2024, [...] filed a motion to stay his deposition before the Trial Court.  Pa1.  Again, the Trial Court denied [...]’s motion on April 16, 2024.  Pa4.  The Trial Court found that none of the factors for a stay pending appeal weighed in [...]’s favor.  Pa4.  Meanwhile, on March 9, 2024, [...] affirmatively filed a Complaint in the Superior Court of New Jersey, Monmouth County against [...].  Pa6.  The Complaint discusses [...]’s role with the [...] and seeks a declaratory judgment that [...] “did not defame [...], tortiously interfere with [...]’s business relations or conspire to defame and tortiously interfere” and affirmatively demands damages against [...] for tortiously interfering with “[...]’s business relationship with his clients and investors. ”  Id.  In addition to all of the evidence submitted in connection with [...]’s motion for a protective order, which the Trial Court found was sufficient to demonstrate that [...] has information “that may be relevant to the case,” the new Complaint filed by [...] proves that he possesses relevant information and that the deposition sought by the [...] is not for an improper purpose but rather seeks evidence relevant to the claims asserted by the [...] in the Underlying Action.
[brief] However, Plaintiffs chose to bring a wide-ranging lawsuit based on 13 claims for relief, eight of which relate to the remaining Defendants.  The remaining causes of action are sophisticated and include:  (1) cause of action (“COA”) No. 1, Lanham Act Violation (15 U.S.C. § 1125(a))–[...] against all Defendants; (2) COA No. 2, Misappropriation of Trade Secrets in violation of the Defend Trade Secrets Act, 18 U.S.C. § 1836 et seq. – [...] against all Defendants; (3) COA No. 7, Unfair Competition – [...] against all Defendants; (4) COA No. 8, Violation of Arizona Uniform Trade Secrets Act (A.R.S. § 44-401 et seq.) – Plaintiffs against all Defendants; (5) COA No. 9, Intentional Interference with Contract/Business Expectancy – [...] against all Defendants; (6) COA No. 10, Conversion – [...] against all Defendants; (7) COA No. 11, Unjust Enrichment – Plaintiffs against all Defendants; and, (8) COA No. 12, Copyright Infringement (17 U.S.C. § 501) – Plaintiffs against [...].  Additionally, Plaintiffs are seeking more than $16 million in damages, plus as-yet-unquantified continuing damages, punitive damages, attorneys’ fees, and costs.  The Court finds that the ESI sought is proportional to the case as a whole.  III.