ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] The MOU is Unenforceable Because It Is Illusory (Da7, 9)  “A contract should not be read to vest a party or his nominee with the power virtually to make his promise illusory.  Especially must this be so when a forfeiture will follow. ”  Russell v. Princeton Laboratories, Inc., 50 N.J. 30, 38 (1967).  “An illusory promise has been defined as, a ‘promise which by its terms makes performance entirely optional with the ‘promisor’ whatever may happen, or whatever course of conduct in other respects he may pursue. ””  Bryant v. City of Atl. City, 309 N.J. Super. 596, 620 (App. Div. 1998) (quoting Restatement (Second) of Contracts, § 2, comment e (1979)).  Our Supreme Court declined to enforce a “requirements” contract for the purchase of wine because “the undertaking of the plaintiff is left to depend for its very existence upon its future election as to whether it will purchase from defendant any bottled wine under its own exclusive brands, or whether it will purchase all or a considerable part thereof from others under other brands. ”  G. Loewus & Co. v. Vischia, 2 N.J. 54, 59 (1949).  The Third Circuit Court of Appeals recently relied upon G. Loewus & Co. in holding illusory, and unenforceable under New Jersey law, a contract in which one party promised to “buy salt in such quantities ‘as may be desired’ or as they ‘may want,’ …. ”  Mid-American Salt, LLC v. Morris Cty. Coop. Pricing Council, 964 F.3d 218, 228 (3d Cir. 2020).  The only way to avoid rendering Plaintiff’s obligations under the MOU illusory is for Plaintiff actually to be obligated, in good faith, to do something.
[brief] V. THE AMOUNT OF DAMAGES AWARDED BY THE JURY WAS EXCESSIVE AND WARRANTS A NEW TRIAL ON DAMAGES.  (Da187).  The jury’s award of $3.5 million in damages was clearly excessive and shocked the conscience such that a new trial should have been granted or remittitur employed to reduce the jury’s award.  The purpose of damages in a personal injury action is to fairly compensate the injured party for its losses.  *Deemer v. Silk City Textile*, 193 N.J. Super. 643, 651 (App. Div. 1984).  Fair compensatory damages resulting from the tortious infliction of injury should be calculated as no more than the amount that will make the plaintiff whole, also calculated as an injured party’s actual loss.  *Ruff v. Weintraub*, 105 N.J. 233, 238 (1987).  Remittitur is applied to reduce excessive damages awarded by a jury to an appropriate value that is within the limits of a proper verdict to avoid expending additional judicial resources for a second trial.  Historically, remittitur has been used by courts to eliminate retrials for excessive verdicts.  *Fertile v. St. Michael’s Medical Center*, 169 N.J. 481 (2001).  A damage award that is “so disproportionate to the injury and resulting disability shown as to shock ‘the trial judge’s’ conscience and to convince him that to sustain the award would be manifestly unjust” warrants a new trial. ”  *Baxter*, 74 N.J. 588, 596 (1977).  *Baxter* illustrates that the jury’s award of $3.5 million was excessive and shocked the conscious because the award was greatly disproportionate to the injuries Plaintiff sustained.  Although Plaintiff suffered significant orthopedic injuries, Plaintiff testified that she was actively seeking work and she was able to physically care for her daughter.  Plaintiff’s injury is not so extreme that she cannot work or take care of her daughter.  Moreover, Plaintiff offered no evidence she was actively receiving any psychological treatment or that she had received such treatment in the past.  Moreover, she acknowledged that she was able to resume normal daily activities.  Plaintiff was also searching for work and did not submit any claim for economic damages of any kind to the jury.  Although Plaintiff’s orthopedic injuries were serious and required multiple surgeries, an award of $3.5 million for those injuries is excessive.  Alternatively, if the Court is not inclined to vacate the jury’s damage award, [...] respectfully requests that a new trial be granted on liability.  [...] respectfully submits that both the allocation of fault to [...] and the amount of damages awarded were against the weight of the evidence presented at trial and the result of multiple improper rulings by the trial court.  **CONCLUSION**
[directive] Indictments Direct 4.9 ..............51 .  Summons Complaint or aComplaint-Warrant Prepare to Need 4.9.1  Pretrial Risk- Automated Where Cases Direct-Indictment 4.9.2 ....................................................52 .  Available Not Are Results Assessment 7 Page ...............................................52 .  Indictment or Arrest Before Prepared Complaints 4.10 .............................53
[brief] The plaintiff objected to [...] being qualified as an expert in human factors but the Trial Court overruled the objection.  (5T101:11-14; 5T102:17-104:9).  examination on the grounds that he did not offer any expert analysis or testify as to a subject that was beyond the ken of the average juror.  (6T42:9-47:8).  The Trial Court denied the motion.  (6T48:6-19).
[brief] The Trial Court Properly Dismissed the Third Count of Plaintiff’s Complaint Because Plaintiff’s Employment Was Neither Terminated Because He Ran for Political Office Nor Does He Have a Constitutional Right to Run For Office Against His Own Boss (T62:11-63:5)  Point III of Plaintiff’s briefing to this Court is hard to follow, but Defendants surmise that Plaintiff’s argument is as follows: that Plaintiff’s employment was terminated because he ran for political office against [...], and this firing violated Plaintiff’s rights under Article I, Paragraphs 1 and 6 of the New Jersey Constitution to express his political views and speak freely.
[brief] email system of approximately 6,000 rows that was submitted by Defendants to Plaintiff as part of the parties’ bifurcated settlement agreement.  (Id.).  Plaintiff’s request that logs be generated from private, generally web-based and cloud-based, email accounts of Board members presents technological challenges that [...] has certified he would not “encounter when creating logs from the District’s email service. ” (Pa17 at ¶5).  According to [...], “[e]ach of the proprietary email services have their own administrative settings, many of which make it impossible or extraordinarily time consuming to create logs of any kind. ” (Pa17 at ¶6).  [...] provided as an example his personal Gmail account, which does not permit the user to “generate logs of the type requested by Plaintiff that would be limited to showing sender, recipient, cc’s, and date/time. ” (Pa17 at ¶7).  [...] certified that, “[a]lthough Gmail is the most popular private email service … Board members could have used many other proprietary email services, including but not limited to cable and phone providers such as AT&T, Verizon, Sprint, Comcast and Optimum”; “cloud-based services in competition with Gmail such as AOL, Hotmail and the like”; “encrypted services that are becoming more popular such as Proton Mail”; and “email servers belonging to their primary employers. ” (Pa17 at ¶8).  [...] explained in his Certification that “[i]n most if not all cases, the users themselves do not have administrative rights that would permit them to generate logs or reports,” which means that even if the individual Board members provided him with their usernames and passwords he still “could not generate logs or reports from their personal accounts. ” (Pa17 at ¶9).  According to [...], if he could nevertheless “figure out how to generate a log for some of these email services,” it would take him hours to construct each log and he would be unable to ensure the integrity of the data maintained by the private email vendor.  (Pa17 at ¶10).  Mr. [...] summarized by explaining that “[t]he difference between generating al log from the District’s email services and from private email accounts is stark. ” (Pa17 at ¶11).  Although [...] certified that he could generate logs from “the District’s Workspace service with relative ease, it will be difficult if not impossible to generate logs from most if not all of the many private email accounts which are used by Board members.
[brief] On March 17, 2015, [...] filed an application with the [...], requesting Site Plan Approval, “C” and “D” variances, and Conditional Use approval for the Original Proposed Site.  Specifically, [...] sought variances (a) to construct the Regulator Station as an additional principal use on the Original Proposed Site; (b) to construct the Regulator Station within the buffer required between a non-residential use and residential zone (a 384.25 feet buffer is required, but [...] proposes a buffer of 89.78 feet); and (c) to install an eight-foot high fence with wooden slats in the front, side and rear yard of the Facility (only eight-foot high open wire fencing is permitted).  [...] also requested (a) relief from two conditions of the [...]’s prior resolution approving the [...]; (b) variances for [...]’s proposed sign and driveway access width (to the extent the [...] deemed such variances necessary); and (c) several design waivers.  30.  Importantly, the Original Proposed Site is located in the OL-2 zone.  As a result, the proposed Facility is a conditionally permitted public utility use under [...]’s municipal zoning ordinances.  The Company demonstrated before the [...] that this public utility use is both appropriate for the property and for the OL-2 zone.
[brief] **The Board properly excluded portions of the Condominium fee. **  After engaging in a thorough review of every item that comprised the condominium fee, the Board chose to eliminate only two fees, for a total reduction of $200.00.  See 8T, at 152-172.  [...]’s assertion that “if there was ever any opportunity to reduce the Landlord’s expenses, the Board seized that opportunity for the benefit of the Tenant,” is baseless and unsupported by the record.  Id. at 229:2-11.  A review of the April 14, 2021, Board meeting transcript demonstrates that approximately 130 pages of the transcript consists of the Board analyzing [...]’s claimed condominium fee.
[brief] Remediation, RIR, and RAO  The required procedures and filings to the NJDEP for this property are, first, the Preliminary Assessment (PA), followed by the Site Investigation (SI), then the Site Investigation Report (SIR), followed by the Remedial Investigation (RI), then the Remedial Investigation Report (RIR).  8T38-6 to 25.  The RAO is the final filing that needs to be submitted to the NJDEP after completion of the Full Site Remediation.  6T130-18 to 23.  Testimony from [...] and [...] both state that an RAO has a 3-year lookback or audit, after approval, from the NJDEP for continued compliance.  8T39-7 to 17; 4T12-20 to 22.  [...] stated that he had previously completed RAOs on other properties.  7T18-8 to 23.  [...] maintains that neither the RIR nor the RAO were completed.  6T21-5 to 21.
[brief] I  The Principles of Fairness Should Guide the Court’s Review of this Matter (Da-1).  The Judiciary strives to follow a policy in favor of generally deciding contested matters on their merits rather than based on procedural deficiencies; State v. Lawrence, 445 N.J. Super. 270, 275-276 (App. Div. 2016).  The Court stated in Lawrence:  A trial Judge is authorized to dismiss that “enforcement of procedural rules must always be exercised with an eye to secure a just determination and maintain fairness in administration of cases; not solely to secure a completed disposition (quoting R. 1:1-2A).  That is because cases should be won or lost on their merits and not because litigants have failed to comply precisely with particular Court schedules unless such non-compliance was purposeful and no lesser remedy was available, Irani v. Kmart Corp., 281 N.J. Super. 383, 387 (App. Div. 1995) (quoting Connors v. Sexton Studios, Inc., 270 N.J. Super. 390, 395 (App. Div. 1994)).  “This is especially true where there has been no showing of prejudice on the part of the opposition;” Lawrence, 445 N.J. Super. 276 (quoting Mayfield v. Cmty of Med. Associates PA, 335 N.J. Super. 198, 207 (App. Div. 2000)).  In this case, Counsel tried a number of times to bring the Court up to date on the Appellant’s status in prison (Da-29).  The criminal trial Judge was mistaken.  That mistake was communicated to the Civil Assignment Judge, and a date was set based upon what everybody believed, which turned out to be incorrect.  This case has a history.  The original trial Judge was mistaken.  On appeal, this Court remanded the case back for trial, but circumstances had changed (Da-1).  Mistake is the word most operative in connection with this case.  The original trial Judge made a mistake (Da-122).  The Judge assigned to the Appellant’s criminal case, [...], was mistaken as to the date of Appellant’s release.  Counsel and the Civil Assignment Judge were mistaken as to the March 11th date.  Even the trial Judge was not familiar with parole guidelines and believed that the Defendant would be incarcerated until 2027 (Da-24).  That did not happen, but it influenced the Court’s decision.  Clearly, the Civil Assignment Judge was concerned about the age of the case, but as indicated above, this case was tried, and the trial Judge made a mistake, hence when it came back from the Appellate Division, this case was old, but the Appellant’s status had changed.  CONCLUSION
[brief] Like the SLAPP plaintiff in *Jacobson*, Plaintiff here voluntarily dismissed his case after he saw the proverbial writing on the wall—the trial court’s grant of Defendants’ motion for extension of time, in which Defendants previewed their arguments in favor of dismissal under UPEPA.  *See* Da45.  Indeed, Plaintiff admitted that he was voluntarily dismissing his suit in light of that ruling because, in his view “[i]t is clear once the judge grants orders that have no basis that this will be going nowhere. ”  Da66.  And like the SLAPP plaintiff in *Jacobson*, Plaintiff seeks to “insulate [himself] from [an] order[] to pay attorneys’ fees” through his voluntary dismissal.  309 A.3d at 577.  This Court should not countenance Plaintiff’s exploitation of a loophole in the law.  To the contrary, it can and should seize this opportunity to close the loophole by reopening the judgment for the limited purpose of allowing Defendants to seek their attorneys’ fees under UPEPA.  In doing so, the Court will send a strong message that UPEPA can and will continue to play a robust role in upholding New Jersey’s strong tradition of “foster[ing] and nurtur[ing] speech on matters of public concern.
[brief] See, e.g., 515 Assocs. v. City of Newark, 132 N.J. 180, 186 (1993) (citing Hudson Circle Servicenter, Inc. v. Kearny, 70 N.J. 289, 299); Quick Check Food Stores v. Springfield, 83 N.J. 438, 447 (1980).  “Legislative bodies are presumed to act on the basis of adequate factual support and, absent a sufficient showing to the contrary, it will be assumed that their enactments rest upon some rational basis within their knowledge and experience. ”  *Hutton Park Gardens*, 68 N.J. at 564–65.  “To determine whether a municipal ordinance is authorized by a state statute, we need decide only whether that ordinance represents a reasonable exercise of the Legislature’s delegation of authority to the municipality in enacting the statute.
[brief] Pa2390.  Meanwhile, on July 30, 2015, [...] obtained a Certificate of Liability Insurance and enclosing letter from [...] confirming [...]’s enrollment in the CCIP, reading:  Your enrollment into the Contractor Controlled Insurance Program for your work performed under [...] has been completed.  The attached insurance certificate is provided to evidence your coverage for Workers’ Compensation, General Liability, and Excess/Umbrella while working at the [...]….
[brief] On March 7, 2019, Defendant [...]  (“[...]”) issued a Commitment for Title Insurance, which reflected that there were outstanding municipal taxes due on the Property in the amount of $38,943.94.  Schedule B, Part 1 of the Commitment provided that the Commitment only would become a binding contract upon conveyance of title to the prospective purchaser, specifically requiring an executed “Deed from [...] and [...] to [...]. ”  The Commitment also reflected that the Property’s assessed value at the time was $262,500.00.  In rejecting the Plaintiff’s argument, the court held:
[brief] If it conveys that information properly and promptly, it will be reimbursed for previously-expended defense costs.  Cf. Burd v. Sussex Mut. Ins. Co., 56 N.J. 383, 390, 267 A.2d 7 (1970) (where insurer did not undertake defense initially, duty to defend translated into duty to reimburse insured).  As the Court ruled in SL Industries, an insurer may not ignore unpled facts it has knowledge of if those facts would require it to provide a defense (as is the case here).
[brief] ”  Rosenberg, 352 N.J. Super. at 403 (citation omitted).  [...] indicated, in his report, that in his experience in fee arbitration proceedings billing by more than one attorney in a firm for conferences is not allowed, and indicates that such billing would in his experience typically not be permitted by a court reviewing an attorney’s invoices for a determination of reasonableness.  However, the trial court properly noted that it was unaware of any legal authority (and none was provided to the trial court) indicating that as a matter of law billing by more than one attorney in a law firm for consultation with each other is prohibited, but rather, the trial court properly expected that any such analysis would be performed utilizing the RPC 1.5(a) factors.  The trial court properly held that while Mr. [...] was permitted to rely upon his personal experience in providing an opinion in this matter, his blanket statement that in fee arbitration and court proceedings billing by more than one attorney on intra office conferences would not be permitted was unsupported by reference to authority, as Mr. [...] did not provide an analysis of the invoice entries under the RPC factors.  (Da161).
[brief] ’”) (citing Manalapan, 140 N.J. at 383); Fallone, 369 N.J. Super. at 561 (“[P]lanning boards are granted ‘wide latitude in the exercise of the delegated discretion’ due to their ‘peculiar --- 4 The Planning Board prepares the Master Plan.  See N.J. S.A. 40:55D-28. knowledge of local conditions. ’  Indeed, local officials are ‘thoroughly familiar with their communities’ characteristics and interests’ and are best suited to make judgments concerning local zoning regulations. ” (citing N.J. Supreme Court cases).  Therefore, the Governing Body acted entirely appropriately in accepting the recommendations of the Planning Board and its professionals in approving the Redevelopment Plan and finding it substantially consistent with the Master Plan.
[brief] Demand for Documents referenced by the Third Amended Complaint dated April 15, 2021 filed against [...], [...] and [...] | Pa. 26-34 | | Defendant’s Notice of Motion dated July 3, 2003 to quash a subpoena served on [...] | Pa. 35-36 | TABLE OF CONTENTS TO THE APPENDIX OF PLAINTIFF APPELLANT [...] VOLUME I APPENDIX DOCUMENT
[brief] On December 11, 2019, a Union County Grand Jury returned Indictment Number [...] charging defendant-appellant [...] with: first-degree murder, N.J.S.A. 2C:11-3(a)(1) (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count two); and second-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5(b)(1) (count three).
[brief] . . .  *Cole*, 215 N.J. at 280-81.  Further, “[t]he filing of a dispositive motion is a significant factor demonstrating a submission to the authority of a court to resolve the dispute. ”  *Id.* at 282.  However, [...]’s Brief focuses only on factors three and six, i.e., [...] argues that their eight-month delay in moving to compel arbitration was less than the twenty-one-month delay in *Cole* and [...]’s Motion was not filed on the ‘eve of trial. ’  *See* [...]’s Br. 14-15.  [...]’s Brief completely fails to address (or mention) that 1) [...] filed a dispositive motion (Pa36) attacking the merits of [...]’s claims (which was denied (Pa44)), 2) [...] failed to assert arbitration as an affirmative defense in its Answer (Pa46), and 3) [...] certified in its Answer that arbitration was not contemplated presently or in the future.
[directive] A.  Crime scene assistance capability to include emergency referrals or direct assistance for: Medical care, shelter, relocation, food, clothing and child care.  Crisis intervention counseling provided by: Trained in-service personnel.  24 hour hotlines.  Emergency psychiatric services.  Victim assistance agencies.  B.  Assistance with completing compensation forms and filing of claim.  C.  Social service resource directory maintained for referral.  D.  Referrals to the appropriate County Prosecutor's Office of Victim-Witness Advocacy.(20)  VIII.
[brief] The complaint shall bear the designation "In Lieu of Prerogative Writs".  24.  Rule 4:69-3 (Pa 195-197)  States:  "Motion to Law Division for Stay  Upon or after the filing of the complaint, the plaintiff may, by order to show cause or motion supported by affidavit, and with briefs, apply for ad interim relief by way of stay, restraint or otherwise as the interest of justice requires, which relief may be granted by the court with or without terms.  When necessary, temporary relief may be granted without notice in accordance with R. 4:52-1."  25.  Rule 4:69-4 (Pa 195-197)  States: "Filing and Management for Actions in Lieu of Prerogative Writ s  The filing of the complaint shall be accompanied by a certification that all necessary transcripts of local agency proceedings in the cause have been ordered.  All actions in lieu of prerogative writs will be assigned to Track IV.  Within 30 days after joinder and in order to expedite the disposition of the action the managing judge shall conduct a conference, in person or by telephone, with all parties to determine the factual and legal disputes, to mark exhibits and to establish a briefing schedule.
[brief] And you can’t use that unless you get use variance to service these three hundred and ninety units.  So you got one of two choices.  Go to the governing body, get it done correctly, they accept it as a dedicated street and a public street, put a name on it, do their Ordinances, put their parking requirements or go to the Zoning Board for that use variance to use it to get there”.  (Pa568-569)  (Transcript, p.32-33)  As Board Member [...] indicated:  "I don't quite understand how a particular roadway can be forced upon a Borough by operation of law.  I don't understand where this operation of law is.  .........it is my understanding that any dedication of any roadway requires the acceptance by the Municipality, either by ordinance or resolution, to be accepted and dedicated."  (Pa569)  (Transcript, p. 34-34)  Plaintiff's attorney, [...], agreed that it was only the "governing body" which could accept a dedication.  He stated to the Planning Board on December 12, 2018:  [...]: I would just, the only point that I would make, is that the issue of dedication is really a governing body issue.  [...]: Right.  [...]: I would accept as a condition that the issue would have to be resolved, one way or the other, with the governing body".  (Pa526)  (Transcript pg. 13)  What is patently obvious is that the Plaintiff's own attorney recognized that the dedication of the by-roads at issue was conditional upon approval by the governing body - not the Planning Board and that "we would accept that as a condition to proceed".