ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] I.  The Trial Court Erred by Compelling Arbitration Before a Substitute Arbitrator  Where the Parties Had Only Agreed to Arbitrate Before a Single, Specifically Named Arbitrator.  (Raised Below, Pa57-68)  The New Jersey Arbitration Act, N.J.S.A. 2A:23B-1 et seq. and the Federal Arbitration Act, 9 U.S.C § 1 et seq. (“FAA”), vest trial courts with the authority to appoint an arbitrator in certain limited situations.  Specifically, Section 5 of the FAA, 9 U.S.C. § 5 provides that if “there shall be a lapse in the naming of an arbitrator or umpire, or in filling a vacancy, then upon the application of either party to the controversy the court shall designate and --- 4  The FAA applies to all agreements to arbitrate, regardless of whether an arbitration issue is being litigated “in federal or state court. ”  Martindale v. Sandvick, 173 N.J. 76, 84 (2002).  appoint an arbitrator.”  The New Jersey Arbitration Act has a nearly identical provision.  N.J.S.A. 2A:23B-11(a).  Arbitration agreements are interpreted by “general contract principles. ”  Martindale, 173 N.J. 85.  Thus, such an agreement must be “must be the product of mutual assent, as determined under customary principles of contract law. ”  Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430, 442 (2014).  Therefore, where “the parties have contractually agreed that only one arbitrator could arbitrate any disputes between them” a court must “decline to appoint substitute arbitrators and compel arbitration” when the original arbitrator is unable to arbitrate the dispute.  Moss v. First Premier Bank, 835 F.3d 260, 264 (2d Cir. 2016) (internal alterations omitted) (quoting In re Salomon Inc. Shareholders' Derivative Litigation, 68 F.3d 554 (2d Cir. 1995)).  Rather, the arbitration agreement fails at that point, because once the specific arbitrator is unavailable “there is ‘no further promise to arbitrate’” before another arbitrator when the contract has no provision for the appointment of substitute arbitrators.
[brief] Given that Cole’s requirement of a showing of prejudice for a finding waiver was abrogated by Morgan, [...] here implicated at least three out of the remaining six factors for waiver discussed in Cole.  In Morgan, supra, the United States Supreme Court determined that a court should not engage in efforts “fostering arbitration” and that any actions taken by a party which are inconsistent with that party’s purported desire to compel arbitration can show waiver of any alleged contractual right to compel arbitration.  The Court rejected the addition of a need to show prejudice to establish waiver of an arbitration provision and held that the FAA “did not authorize federal courts to create an arbitration-specific procedural rule requiring a finding of harm before a party could waive its right to arbitration.  . . .”  Id. at 1709.  In other words, “the [FAA]” does not authorize the courts to invent arbitration-preferential rules.[]  Thus, the [Supreme] Court directed the Courts of Appeals to ‘hold a party to its arbitration contract just as the court would to any other kind, but not devise novel rules to favor arbitration over litigation. ’”  White v. Samsung Elecs. Am., Inc., 61 F.4th 334 (3d Cir. 2023) (quoting Morgan at 1713)).  Here, [...] waived arbitration by engaging in approximately eight months of litigation, by filing an unsuccessful dispositive motion, by failing to assert arbitration as an affirmative defense and certifying that no arbitration proceedings were contemplated.  The trial court erred by failing to analyze [...]’s conduct manifesting waiver; waiver is not mentioned in the December 12, 2023 Order.  The trial court further erred by failing to acknowledge Morgan as controlling law and Defendants’ affirmative litigation conduct as inconsistent with the desire to compel arbitration.  Thus, the trial court’s December 12, 2023 Order granting [...]’s Motion to Dismiss and compel arbitration must be reversed.
[brief] (Ja1–3; 4T)  State ex rel. [...] v. [...], Nos. [...] & [...], 2024 WL 875633 (N.J. Super. Ct. App. Div. Mar. 1, 2024) (approved for publication), controls the retroactivity question here.  Relator’s effort to distinguish Bayer only confirms that the authority the Attorney General was recently granted to eliminate an affirmative defense in a relator-led NJFCA case cannot be given effect in this case.  Bayer’s reasoning closely tracks the arguments Defendants presented in their opening brief, filed a week before Bayer was decided.  Defendants began with the expression of legislative intent that the 2023 Amendment applies prospectively only.  Ab10–11.\(^1\)  Bayer likewise began by observing that the statutory language is clear: “[t]he 2023 amendments to the [NJFCA] used language clearly indicating that the Legislature intended the amendments to apply prospectively.  In that regard, the Legislature stated that the amendments ‘shall take effect immediately. ’”  Bayer, 2024 WL 875633, at *6 (quoting L. 2023, c. 73 § 11).  “Those words bespeak an intent contrary to, and not supportive of, retroactive application. ”  Ibid. (quoting Pisack v. B&C Towing, Inc., 240 N.J. 360, 371 (2020)).  Defendants also explained that the language of the 2023 Amendment tracks the federal FCA amendments adopted in 2010, which have been uniformly recognized to apply prospectively only.  Ab12–13.  Bayer ruled that because the NJFCA amendment tracks the federal amendment, and federal precedent has “consistently construed the 2010 amendment to the FCA to apply \(^{1}\) “Ab” refers to Appellants’ opening appeal brief.
[brief] However, as [...] correctly determined, coverage is wholly precluded under both coverage parts.  Coverage is barred under the excess liability coverage part based on the Injury to an Insured exclusion – this part of the policy is for excess liability coverage and explicitly precludes coverage for injuries to an insured.  Decedent  [...] constitutes an “insured” under the excess liability coverage part as a “family member” of his named insured parents.  Coverage under the excess UIM coverage part is barred because the vehicle in question is not an “underinsured motor vehicle. ”  Here, the vehicle at issue was owned by [...] and made available for the use of her son.  The PURE Policy’s definition of “underinsured motor vehicle” excludes vehicles owned by the insured or made available for the use of a family member.  In this appeal, as to excess liability coverage, Appellants ask this Court to take the extraordinary step of deeming Injury to an Insured exclusions invalid as a matter of public policy.
[brief] [...]  #  TABLE OF CONTENTS | Section | Page | |------------------------------------------------------------------------|------| | TABLE OF AUTHORITIES | ii | | PRELIMINARY STATEMENT | 1 | | STATEMENT OF FACTS & PROCEDURAL HISTORY | 4 | | A. [...] Purchases and Agrees to Pay Claremont Pursuant to the May 31, 2019 Project Transfer Agreement | 4 | | B. Claremont Commenced Arbitration to Seek the Return of the Wrongfully Withheld EGP | 5 | | C. Claremont Seeks to Confirm the Arbitration Award | 10 | | D.
[brief] ” (Aa062).  Instead, he left the consolidation of the contracts to the parties acknowledging that a mediator may be needed to resolve any dispute over the merged units.  (Aa062).  On this issue, the Commission held:  Given the 90-day statutory time frame for conducting a hearing and rendering an interest arbitration award (N.J.S.A. 34:13A-16f(5)), as well as the numerous substantive proposals and extensive financial records considered in this case, the arbitrator understandably was unable to specifically set forth how the unmodified language of the previous contracts could be efficiently blended and reformatted into a single CNA.
[brief] VOLUME I (CONFIDENTIAL)  Notice of Appeal........................................................................................................Pa1  Case Information Statement......................................................................................Pa5  [...] Final Decision 9/27/23.............................................Pa9  Reply to [...] 7/18/23¹....................................................Pa16  [...] Initial Decision 6/13/23..........................................Pa24  Correspondence to [...] 3/23/23.................................Pa28  Petition for Ricci Action Registration 3/3/23..........................................................Pa30  Affidavit of [...].........................................................................................Pa56  [...] Eligibility Registration Form.......................................................................Pa58  [...] Request for Amended Benefits Form.......................................................Pa60  Medical Examination 9/28/22...................................................................................Pa61  Medical Examination 8/26/22...................................................................................Pa62  Administrative Denial of Ricci Benefits.....................................................................Pa67  Legislative Notice August 2019...............................................................................Pa68  Postage Statement.....................................................................................................Pa70  Universal Document Converter Postcard.....................................................................Pa72  Email to Certifying Officers 8/16/19........................................................................Pa73  ¹  Per R.2:6-1(a)(2), Pa16, Pa24, Pa28, and Pa30 are included in the Appendix because they are germane to the appeal.  [...] Quotation of Retirement Benefits..............................................Pa74  [...] Special Retirement Approval 5/25/10...........................................Pa75  VOLUME II
[brief] Respondent claims that Appellants’ argument that [...] was permitted to testify precludes its request to add [...] as an expert.  As plaintiffs explained in its motion, [...] was qualified under the letter of the law and rule to testify, but he had not been honest with plaintiffs regarding his credentialing and this dishonesty was exposed at his deposition.  As a result, his credibility issues were fatal to plaintiffs’ case.  There is no rule of law that states that plaintiffs are required to be saddled with an expert that is discovered to have lied to plaintiffs even if that expert is technically qualified to testify.
[brief] (Sb 42-43)  The State is wrong.  Starting with the reliability of the tip, the State notes that in the evidentiary context, a statement made against one’s interest is considered sufficiently reliable and is therefore exempt from the rule against hearsay.  The State argues by analogy that the informant’s tip regarding the heroin he delivered to [...]’s storage unit is inherently trustworthy because it was made against the informant’s penal interest.  (Sb 38-40)  The problem with this argument is that it assumes that the informant acted against his interests in telling police about [...]’s criminal behavior.
[brief] [Da218, emphasis added].  Consequently, Plaintiff’s claims are all outside of the 1991 Agreement – i.e., those based on his status as an attorney-employee – i.e., under the Tortious Interference claims (Count Seven), the two LAD counts (both inadvertently named Count Eight), CEPA (Count Nine), NJFLA (Count Ten), Conversion (Count Eleven), IIED (Count Twelve), and Defamation (Count Fourteen), as well as claims over case fees, expressly do not even fall within the scope of the 1991 Agreement.  Even the other claims (Counts One to Six and Thirteen) that relate to Plaintiff’s status as a minority partner and 5% equity owner, which did not occur until late 2018, are also outside of the arbitration clause which was limited to the 1991 Agreement itself, which, as said, was void as of 2019.
[brief] Plaintiffs adequately pleaded that the illegal, large, makeshift liquor concession stand was routinely set up in plain view on the Subject Premises over a period of several months before [...] was murdered, giving Defendants actual or constructive notice pursuant to N.J.S.A. 59:4-2(b).  (See P-1-3, ¶¶ 2, 4, 5, 12-13; see also P-65.)  N.J.S.A. 59:4-3 provides:  a.  A public entity shall be deemed to have actual notice of a dangerous condition within the meaning of subsection b. of section 59:4-2 if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.  b.  A public entity shall be deemed to have constructive notice of a dangerous condition within the meaning of subsection b. of section 59:4-2 only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.  Similar to the open gate in *Roe*, which New Jersey Transit knew or should have known invited the public into a known dangerous area, 317 N.J. Super. at 82, the illegal, large, makeshift liquor concession stand, which operated for several months on the Subject Premises, was “of such an obvious nature,” that Defendants “should have discovered the condition and its dangerous character. ”  N.J.S.A. 59:4-3(b).  Thus, Defendants are liable unless the failure to protect against the dangerous condition was not “palpably unreasonable.
[brief] Plaintiffs cannot support their speculation that, contrary to her typical approach to management, [...] [Redacted].  *19  Plaintiffs cite documents related to [...] and [...]’s role regarding [...]’s position on privacy issues in an attempt to argue that their files will reveal whether [...]’s internal policies diverged from their public messaging.  See Weaver Decl., Exs. 17, 27-29.  But this case is not about privacy writ large.  It is about specific, long-defunct data-sharing practices, and the documents Plaintiffs cite contain nothing to suggest that [...] and [...] are likely to have unique materials about those practices.
[brief] | Motion | |--------------|----------------------------------------------------------------------------------|--------------------------------------------------------------------------------------|--------| | Sept. 21, 2022 | •  [...]’s declaratory judgment action was preemptively filed, depriving the “natural plaintiff” of its choice of forum.  (Pa521-22)  •  Dispute belongs in Missouri based on joinder of additional parties to the Missouri action.  (Pa522-23)  • Missouri’s interest in interpretation and enforcement of the Special Undertaking (Pa523)  | • [...] • [...] • [...] (Pa521-24)  | Motion denied by [...] Jan. 20, 2023 (Pa770-71) (see also 2T59:3-61:16) | | Nov. 2, 2022 | •
[brief] Due to the lengthy procedural history of this case, we begin with a list of relevant dates and events to acclimate the Court:  March 3, 1946  Birthdate of [...] (Current Age 77)  June 28, 1972  Birthdate of [...] (Current Age 51)  September 7, 2004  Date of Marriage (no children born of marriage)  Late 2008/Early 2009  Asset Protection Plan/Spinoff Transaction Documents  December 3, 2008  Durable General Power of Attorney – [...] Summer-Fall 2013  [...]’s Extramarital Affair December 5, 2013  Mid-Marriage Agreement & Second Irrevocable Power of Attorney - [...] January 17, 2014  Matrimonial Settlement Agreement November 11, 2014  Bankruptcy Irrevocable Power of Attorney/Tolling/Settlement “Trifecta” Agreement – [...]  November 24, 2014  Bankruptcy Global Settlement Agreement  January 13, 2015  Divorce Complaint by [...] (filing withheld one year on advice of bankruptcy counsel)
[brief] Niles, 176 N.J. at 294; see also Lash, 169 N.J. at 31 (“[a] plaintiff has the right to recover attorney's fees incurred in other litigation with a third person, if he became involved in that litigation as a result of a... tortious act by the present defendant. ””) (quoting 22 Am.Jur.2d Damages § 618 (1988)).  Although the “American Rule” disfavors fee shifting, New Jersey and other courts have long recognized that attorneys’ fees may be awarded where “they are a ‘traditional element of damages in a particular cause of action.
[brief] (Da33 at ¶5).  But more importantly, the logs sought provided information about what was scheduled to play on the movie screen.  (Da33 at ¶4).  Nothing in the incident reporting put [...] on notice to preserve these lost logs which showed nothing more than scheduling information; never mind the fact that it was duplicative scheduling information.  (Pa232 at ¶6 and Da33 at ¶3 and ¶4).  Plaintiff, like the Trial Court, was supplied with discovery including affidavits, explanations, and expert reports.  Simply put, Plaintiff had no evidence to support the accusation being made against [...] but continues to pursue a conspiracy theory.
[brief] Ferraro v. Zoning Bd. of Keansburg, 321 N.J. Super. 288 (App. Div.  1999)  .......37  Heagan v. Borough of Allendale, 42 N.J. Super. 472 (App. Div. 1956) ...... 36  Hisenaj v. Kuehner, 194 N.J. 6 (2008)
[brief] See Policemen’s Benevolent Ass’n, 205 N.J. at 425 (“[i]n reaching his conclusion, the arbitrator relied on the actual words of the Agreement, wove together its relevant provisions, and read it holistically, without emphasizing isolated provisions.  As a result, he derived a plausible conclusion regarding its meaning”).  There, the arbitrator determined that the contract must be read as a whole, without isolating any particular portion.  Ibid.  The Court found that such an approach resulted in a reasonably debatable interpretation of the contract and declined to vacate the arbitration award.  Ibid.  As the Court explained, “even if the arbitrator’s decision appears to conflict with the direct language of one clause of an agreement, so long as the contract, as a whole, supports the arbitrator’s interpretation, the award will be upheld. ”  Id. at 430; see also N.J. Transit Bus Operations, Inc., 187 N.J. at 555 (accord); Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123, 1132-33 (3d. Cir.1969) (a facially unambiguous clause may, in fact, become ambiguous when considering the entire contract and other facts in the record).
[brief] SUPERIOR COURT OF NEW JERSEY  APPELLATE DIVISION  Docket No. [...]  [...], on behalf of himself : CIVIL ACTION and those similarly situated, : Plaintiff-Appellant,: ON APPEAL FROM THE FINAL JUDGMENT OF THE SUPERIOR COURT OF NEW JERSEY v. : LAW DIVISION, BERGEN COUNTY [...]; : Trial Court Docket No. MHC [...]; : [...] [...]; [...]; Sat Below: [...]; HON. [...], J.S.C. and JOHN DOES 1 to 10, Defendant-Respondents.:
[brief] ’”  *Id.*  Moreover, where the defendant challenges service, the right to attack a judgment on jurisdictional issues may be waived if not brought within a reasonable time.  *Bascom Corp. v. Chase Manhattan Bank*, 363 N.J. Super. 334 (2003) (denying the motion to vacate pursuant to *Rule* 4:50-1 because the motion was not made within a reasonable time and did not establish excusable neglect, even where the challenge was based on jurisdiction); *Wohlegmuth v. 560 Ocean Club*, 302 N.J. Super. 306, 312 (1997); *Berger v. Paterson Veterans Taxi Serv.*, 244 N.J. Super. 200, 204 (1990).
[brief] (Ra68).  Unlike the case at bar, the assistant prosecutor was subject to the RFP process and automatically disqualified under Chapter 92(a).  In Joseph [...] v. Bd. of Trs. Pub. Emps.’ Ret. Sys., 2023 AGEN LEXIS 939 (Dec. 21, 2023) (Ra71), Petitioner also sought eligibility for his position as the assistant Seaside Heights municipal prosecutor.  The Petitioner was disqualified under Chapter 92(a) because that position was subject to the RFP process.  (Ra81).  Unlike the Petitioner in this case, [...] received no instructions from the municipality, was provided with no training, had no office in the municipality, no order or sequence to follow and the municipality provided him with no tools of the trade.²  **CONCLUSION**
[brief] Even the conduct of the PIP arbitration hearing is informal, without the right to compel the testimony of a party-opponent.  (Pa396).  If there is a dispute, the arbitrator may, under §40, establish an “exchange of information,” but there is a clear presumption that such information is limited to the items described in N.J.S.A. 39:6A-13 concerning an accident victim’s earnings and medical history.  (Pa395).  As discussed above, Forthright’s Rules do not authorize production of information relevant to the specific issues in an IFPA or RICO case.  And Forthright’s Rules are also silent as to what happens if either party fails to comply with any such “exchange of information. ”  The PIP arbitration rules do not include any method of discovering what evidence is in the other party’s possession through interrogatories, document demands, or depositions.  Traditional discovery methods and evidentiary rules under the established New Jersey Court Rules are necessary to properly evaluate claims of insurance fraud under the IFPA and RICO.  Without access to the liberal discovery afforded by the court rules, a plaintiff will be unable to prove the critical issues in an IFPA and RICO case.  Further, a plaintiff will be unable to discover the extent of a defendant’s fraudulent activities, or determine whether a party not yet named in the complaint may also be liable.  Forthright’s Rules make it abundantly clear that PIP arbitration was never intended to go beyond garden-variety PIP disputes, and that arbitration of complex IFPA and RICO claims is not only inappropriate, but impossible.
[brief] Even if [...] and [...] Did Personally Guarantee the Obligations of [...] Under the February 20, 2015 Lease, And Even if Such Guaranty Was Not Terminated With the Termination of the Lease in 2016, Such Guaranty Was Revoked Before Plaintiff and [...] Entered into A Consent Judgment For Payment of Amounts Due.  As an alternate basis for finding that [...] and [...] are not liable for the obligations claimed by [...] against [...], [...] and [...] argue that any continuing guaranty made by them was revoked on at least three separate occasions: (1) in 2016 when [...] became aware that [...] and [...] had sold all of their interests in FZG and retained absolutely no interest in the entity; (2) in an exchange of e-mail correspondence between [...] and [...] that took place in January, 2019 in which [...] clearly stated to [...] that he and Mr. [...] had sold all of their interests in FZG “several years ago” and that they had no further responsibility under any lease guaranty (if there ever was such a guaranty).  Pa79-88; (3) on March 27, 2019 counsel for Mr. [...] and Mr. [...] issued correspondence to [...] which clearly and unequivocally revoked any existing guaranty.  All of these revocations took place before April 17, 2019 which was the date of the entry of the Consent to Enter Judgement which is the document under which [...] claims his damages.  As such, even if a personal guaranty was made by [...] and [...] and even if the guaranty was not terminated upon the termination of the month to month lease, [...] and [...] are still not liable for any sums claims due because the guaranty was effectively revoked prior to the entry of the relied upon Consent Judgment.
[directive] From A the Conducted Independently Are Investigations That Ensure to Procedures  5.  Force.  Employed Whose Officer(sl Who Officers) the as Agency Same the From Investigators Excluding Rule General a.  Force.  Employed no section, of or this subsection c. b. to pursuant authorized expressly be may as Except shall investigation the of principals) the employs that or agency department of police the employee or principals of interviews (~, activities investigative any or investigation attend the in participate officer an preclude to construed be shall herein nothing that however provided witnesses), other use-of- the of scene responder the to first a as acting from agency or department that by employed helping from person, any injured to assistance facilitating medical or providing from incident, force from or scene), the accessing from civilians prevent or to control traffic to (ems., scene the secure to of suspected persons) any of or pursuit for search (B.O.L.O.) be-on-the-lookout in a participating incident.