ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Id. at 733-37.  Defendant has satisfied this burden.  The true facts are undisputed.  Plaintiffs did not make pre-suit demand on Defendant to return any money, nor did they cite to where in the record such a demand was made (Pb64-67).  Plaintiffs’ argument that Defendant stymied their ability to discover the purported conversion of funds does not withstand critical examination (Pb65).  First, Plaintiffs put forth zero evidence at trial that Defendant refused to provide them financial information from [...] or [...] at any point in time, that she provided them inaccurate information, or that she effectuated any financial transactions from the subject companies.  Furthermore, as set forth in her moving brief, the “discovery rule” (which the trial court incorrectly applied) does not excuse Plaintiffs’ failure to make a pre-suit demand on Defendant because the underlying record established that the Plaintiffs had access to all the relevant financial information they would have needed to make a pre-suit demand (Db43-45).  See Kendall v. Hoffman-La Roche, Inc., 209 N.J. 173, 193 (2012) (a plaintiff may not delay his filing until he obtains an expert to support his cause of action); See Lopez v. Swyer, 62 N.J. 267, 274-75 (1973) (the discovery rule does not postpone the accrual of a cause of action if a party by an exercise of reasonable diligence and intelligence should have discovered the basis for an actionable claim.)  The trial court failed to explain in its decision or on Defendant’s reconsideration motion how Plaintiffs established the prima facie elements for conversion against Defendant (36T28-1 to -25, 47-1 to 48-25, 51-1 to 52-25).  Further, the trial judge did not recognize the pre-suit demand requirement in identifying the elements of conversion in his trial decision (36T52-14 to -22).  Absent establishing that they made a pre-suit demand on Defendant, Plaintiffs could not, as a matter of law, sustain a prima facie claim for conversion against Defendant.  See Meisels, supra, 240 N.J. at 305-306 (“The demand is the linchpin that transforms an initial lawful possession into a setting of tortious conduct.  Accordingly, in such circumstances, a demand is essential . . . there are circumstances, to be sure, where demand may be futile, but that is and must be viewed as an exception).  As such, the trial court’s error was plain and fundamentally prejudiced Defendant because it resulted in the entry of an unjust Judgment against her.
[brief] Page  Order of the Honorable [...] Granting Defendants’ Motion to Compel Arbitration and Dismiss the Complaint, dated October 23, 2023 ........................................................................................................Pa1  Transcript of Oral Argument, dated September 29, 2023 ...........................................  1T ### TABLE OF AUTHORITIES | Cases | Page(s) | |----------------------------------------------------------------------|---------| | **324 Liquor Corp. v. Duffy,** | 43 | | 479 U.S. 335 (1987) | | | **Ames v. Premier Surgical Ctr., L.L.C.** | 48 | | 2016 WL 3525246 (App. Div. June 29, 2016) | | | **AT&T Techs., Inc. v. Commc’ns Workers of Am.,** | 47 | | 475 U.S. 643 (1986) | | | **Atalese v. U.S. Legal Services Group, L.P.,** | passim | | 219 N.J. 430 (2014) | | | **B & S Ltd., Inc. v. Elephant & Castle Intern., Inc.,** | 31 | | 388 N.J. Super. 160 (Ch. Div. 2006) | | | **Bailey v. Wyeth, Inc.,** | 21 | | 422 N.J. Super. 343 (Law Div. 2008) | | | **Bimel-Walroth Co. v. Raytheon Co.,** | 22 | | 796 F.2d 840 (6th Cir. 1986) | | | **Brayman Constr. Corp. v. Home Ins. Co.,** | 43 | | 319 F.3d 622 (3d Cir. 2003) | | | **Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Health & Human Res.,** | 48-49 | | 532 U.S. 598 (2001) | | | **Business Incentives Co. v. Sony Corp. of Am.,** | 29 | | 397 F. Supp. 63 (S.D.N.Y. 1975) | | | **Chesapeake Appalachia, LLC v. Scout Petroleum, LLC,** | 46, 47 | | 809 F.3d 746 (3d Cir. 2016) | | | **Cottrell v. Holtzberg,** | 47 | | 468 N.J. Super. 59 (App. Div. 2021) | | | **County of Passaic v. Horizon Healthcare Servs., Inc.,** | 3, 5, 29, 37 | | 474 N.J. Super. 498 (App. Div. 2023) | | | **Curtis 1000, Inc. v. Suess,** | 21 | | 24 F.3d 941 (7th Cir. 1994) | | Diversant, LLC v. Carino, 2018 WL 1610957 (D.N.J. Apr. 2, 2018) .................................................. 21, 33 Dunkin’ Donuts Franchised Restaurants LLC v. Strategic Venture Group, Inc., 2010 WL 4687838 (D.N.J. Nov. 10, 2010) ..............................................
[brief] Instead, the court left it to the parties to negotiate the redactions, which occurred off the record.  (See 2T 46-19 to 50-19)  Just before the interrogation was played for the jury, the parties briefly placed on the record their agreement that the redactions satisfied this Court’s order.  (2T 46-19 to 50-19)  The court did not inquire about the extent of the redactions, view the video in camera before the jury saw it, or issue any ruling on whether the redactions satisfied this Court’s order.  Although the State’s interrogation video was significantly redacted, the video again showed [...] repeatedly opine on both [...]’s guilt and credibility.  (2T 66-5 to 17; Da 67, 17:21 to 20:39)
[directive] Nothing in this Directive shall be construed to prevent a County Prosecutor from issuing supplemental directives, procedures or standards governing the investigation and prosecution of human trafficking cases by law enforcement agencies that are subject to the County Prosecutor’s authority, provided that those supplemental standards and procedures do not conflict with the standards and procedures set forth in this Directive.  Page 9 VIII.  QUESTIONS  Any questions concerning the interpretation or implementation of this Directive shall be directed to the Director of the Division of Criminal Justice, or his designee.
[brief] ” (DA372).  Counsel for [...] revised the November 15, 2021 letter to [...] and sent it via email to Plaintiff [...] that same day.  (DA374-375).  On December 12, 2021, Plaintiff [...] responded, notifying Counsel for [...], of “[her] intent to proceed with closing. ” (DA377).  On January 6, 2022, Counsel for [...] responded by e-mail to Plaintiff [...], inquiring as to whether Plaintiffs were still unrepresented by counsel and as to Plaintiffs “timing and when [they] plan to schedule a closing. ” (DA379).  On January 7, 2022, Plaintiff [...] responded by re-affirming her intent to close on the unit, indicating her difficulty with finding replacement counsel, and inquiring about the “deadline” to close.  (DA381).  Counsel for [...] answered by e-mail the same day, responding that the deadline was “as soon as possible as this unit has been able to close for some time. ” (DA383).  On January 18, 2022, Counsel for [...] sent a follow-up e-mail to Plaintiff [...], requesting to “close this unit by the end of the month. ” (DA385).  Plaintiff [...] responded the same day that “the end of the month may not be promising” and expressed continued difficulty with finding replacement counsel.  (DA387).  Thereafter, Litigation Counsel for [...] transmitted by e-mail a letter dated March 22, 2022, informing Plaintiffs that their delay in closing on the Unit was unreasonable and set a firm closing date for April 28, 2022.
[brief] In summary, we are convinced that when a law enforcement agency adopts rules pursuant to N.J.S.A. 40A:14-181 to implement the Attorney General Guidelines, the agency has an obligation to comply with those rules.  Because it failed to do so, and because the deficiencies tainted the disciplinary process, the City’s decision to remove plaintiff from his position cannot stand.  . . .  This Legal Argument was made in [...]’s written closing at the Departmental Level and in his written closing at the Superior Court Level.  Reference to same is made in the Hearing Officer’s Decision and the Memorandum of Decision of the Superior Court Judge.  O'Rourke at 23.  (Emphasis added).  The violations of the New Jersey Attorney General Guidelines relating to IA by the HT in this matter were egregious concerning the 45-Day Rule.  The only proper remedy is a complete dismissal of the charges contained in the FNDA at issue by the Court pursuant to the mandates of O'Rourke.
[brief] Protective Orders Do Not Protect Against the Theft of Irrelevant Information in Produced ESI.**  The trial court is absolutely correct when it states that “ESI is different. ”  Tr. Pre-Motion Hearing 24.  ESI is uniquely more vulnerable to malicious actors than other types of discoverable information.  The mere entry of protective orders in discovery does not protect against cybersecurity breaches or other risks of disclosure or misuse. \(^3\)  Moreover, such orders do not ensure there will be no malicious actions taken by document reviewers, often third-party vendors in foreign countries given access to the documents produced.  Protective orders are --- \(^2\)
[brief] With regard to Plaintiff’s allegations that her interactions with [...] changed, that he avoided communicating with her and ignored her, Plaintiff testified that when [...] became more “anxious” in his own new role “being principal to the high school,” he became less “available” to her (and others) to ask questions, that he seemed more busy and more “stressed” because of “the things that were being asked of him from central office,” and yet he was still sometimes courteous.  (Pl. Tr. 133:8 to 136:3).  Plaintiff further testified that there was “a lack of communication and [she] just felt biased.  Like there was a bias,” because she “felt as if [she] was the last one to know. ” (Pl. Tr. 137:1-11).  When pressed for specifics at her deposition to support her claim, Plaintiff testified that Vice Principal [...] (not in the same protected class as Plaintiff) would learn of scheduling changes sooner than she did.  However, she admitted that [...] learned of these changes when he and [...] met with guidance counselors on a weekly basis because “[...] had put him at guidance to assist with cleaning up the issue we had with scheduling. ” (Pl. Tr. 140:19 to 141:21).  Plaintiff also admitted that it would be expected that [...] would learn something in his meetings with guidance counselors before she did because he was in charge of guidance and meeting with them weekly whereas she was not.  (Pl. Tr. 141:22 to 142:3).  Moreover, Plaintiff admitted that the other Vice Principal not in the same class as her, [...], would naturally have become aware of scheduling changes before Plaintiff did “because she made them” and that Lugo would communicate those changes to Plaintiff if they affected or otherwise involved Plaintiff.
[brief] The lack of water pressure that renders combating a fire ineffective and the absence of effective lighting that can cause pedestrians to be harmed by vehicles present such a similarity in conduct by two public utility companies, albeit in their respective functions, that one should not be immunized from liability while the other one is not.  Beyond these similarities, cases decided after Weinberg, supra, have extended its holding and rationale to other utility companies, including electric companies.  More specifically, the Appellate Division, in E & M Liquors v. Public Service Elec. & Gas Co., 388 N.J.Super. 566 (App. Div. 2006), has specifically ruled that the Weinberg subrogation immunity does not apply to defendant [...] (in that case) where, beyond just a subrogation claim, [...]’s negligent conduct led to damages.
[brief] Finally, the State notes that the officers in this case did not arrest [...], defendant, or any of the occupants based on the mistaken fact.  The mistaken fact was utilized for a brief, limited, investigatory detention.  The stop only led to an arrest because the officers smelled marijuana, which provided probable cause to search the vehicle.\(^3\)  Only after the marijuana and a firearm was found was defendant arrested.  Thus, the mistake of fact in this case led to a minimal intrusion and, therefore, it is clear that the officer’s conduct was reasonable.
[brief] 7  McDonnell Douglas Corp. v. Green, 411 U.S. 792, (1973)  20 McTernan v. City of York, 564 F.3d 636, 657 (3d Cir. 2009)  11  Morrissey v. Brewer, 408 US 471 (1972)  18  Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)  7  Pine v. Okzewski, 112 N.J.L. 429 (E. & A.1934)  8  Pisano v. City of Union City, 198 N.J. Super. 588, 590 (Law Div.1984)  10
[brief] The next month, on September 24, 2021, [...] was appointed Receiver after entry of Default Judgment in the Law Division Action.  According to the Order, prepared by the Bank, the Receiver was to take control over the Defendants’ ([...], [...] and [...]) business, liquor license and assets.  Ca22.  The only allowance in the Order for compensation to the Receiver was that he “shall be paid from the proceeds collected in the amount of 15%…”  Ca22.  The record reflects that [...] decided on his own to compensate himself differently, via an interested third-party creditor, and interpreting “proceeds collected”, as follows:  …  I never received any fees or other remuneration from the funds of the diner, but was paid by [...] on an hourly basis, $300 an hour below my normally hourly rate having practiced for fifty seven (57) years in New Jersey as an attorney.  The Order appointing me included that I would be paid fifteen (15%) percent from the proceeds collected of the operation.  I did not feel this was a fair way to pay the receiver since fifteen (15%) p[er]cent would be a large amount of money to be paid over.  The bank did assume the responsibility of payment of my fee.  Ca141.  He also described himself as an “employee of the bank’s entity, [...]. ”  Ca21.  He has stated that “The bank has, through its entity, [...], owned the assets of the [...] since January 18, 2022. ”  Ca142.  [...] also describes someone working with/for him as his “manager” who “offered to work with me with no pay”.  Ca140.  [...] did not make application or otherwise seek permission from the Court (only seeking discharge by application) for any of these compensation arrangements contrary to the Order and/or relative to his role as Statutory Receiver with its accompanying statutory/fiduciary duties. \(^7\)  On September 27, 2021, Final Judgment in Foreclosure was entered in the Foreclosure Action.
[brief] Since subject matter jurisdiction is a threshold justiciability matter, [...] has not, nor cannot, cite to any case or law where the Entire Controversy Doctrine supersedes a court’s lack of subject matter jurisdiction, and somehow magically confers subject matter jurisdiction upon a court.  The [...]’s plenary jurisdiction under N.J.S.A. 18A:6-9 to hear all disputes arising under Title 18A school laws also is not superseded by the Entire Controversy Doctrine.
[brief] The Record Supports the Finding that Riparian Zone Impacts Have Been Minimized Appellant asserts that the alleged failure to comply with the requirements above (N.J.A.C. 7:13-11.1(c)(2)(ii) and N.J.A.C. 7:13-12.7) necessarily means that the [...] failed to demonstrate that riparian zone impacts have been minimized.  However, as set forth above, [...] complied with all the requirements set forth in the regulations above, and the record supports the [...]’s decision.  In addition, the plans originally submitted in the Application were revised resulting in significantly reduced riparian zone impacts.  Accordingly, Appellant’s argument that the riparian zone impacts have not been minimized also fails.  In sum, Appellant fails to set forth a clear showing that the [...]’s determination was arbitrary.
[brief] (T35:25-T36:8).  During the January 6, 2023 oral argument, [...] concluded; “Be that as it may, it was a residential construction site, [...].  Ridgedale Avenue, the moving party to the first motion, [...] was the owner of the property.  Um, [...] had been retained as the, uh – the general contractor of the property.  And it’s also my understanding that [...] was obligated to maintain cleanliness and order at the – at the job site.  Um, and again, as noted, um, the job of [...] was to manage the projects, oversee the project, to make sure the subs were performing their – their jobs appropriately. ” (T35:20-T36:8).
[brief] 17 Hayes v. Turnersville Chrysler Jeep, 453 N.J. Super. 309 (N.J. Super. App. Div. 2018)............................................  7, 38 Hodges v. Sasil Corp., 189 N.J. 210 (2007)......................................................................................... 8, 10 Hoover v. Monarch Recovery Mgt., Inc., 888 F. Supp. 2d 589 (E.D. Pa. 2012)............................................................... 13 Howard Sav. Inst. v. Peep, 34 N. J. 494, 170 A.2d 39 (1961).................................................................. 39  In re Camden Cty., 170 N.J. 439 (2002)......................................................................................... 39, 40, 41  In re Closing of Jamesburg High Sch., 83 N.J. 540 (1980).........................................................................................
[brief] The resentencing court inexplicably refused to find mitigating factor seven, despite finding that [...]’s prior history was “very limited,” consisting of one juvenile disposition that was first deferred, then dismissed.  (5T:24-12 to 18); (Da 187); (PSR 5)  The court’s rejection of mitigating factor seven based on a single dismissed juvenile charge was error.  See State v. K.S., 220 N.J. 190, 199 (2015) (holding “prior dismissed charges may not be considered for any purpose. ”)  The court should have found mitigating factors eight and nine based on its own findings regarding [...]’s “abundantly clear” capacity for rehabilitation and our Supreme Court’s recognition that juveniles are uniquely capable of rehabilitation.  (5T:23-14 to 21)  In Comer, our Supreme Court recognized that research on the “age-crime curve” shows that “more than 90% of all juvenile offenders desist from crime by their mid-20s.
[brief] *Baran v. Clouse Trucking, Inc.*, 225 N.J. Super. 230, 234 (App. Div. 1988).  Thus, once the movant has demonstrated that there is no genuine issue of fact, the burden of producing evidence of such an issue shifts to the non-movant, who must show controverting facts, not merely self-serving representations or allegations in pleadings without evidentiary support.  See Triffin v. Somerset Valley Bank, 343 N.J. Super. 73, 87 (App. Div. 2001).  The movant bears the burden to exclude any reasonable doubt as to an existence of a genuine issue of material fact.  Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 74 (1954).  All inferences are drawn against the moving party and in favor of the opponent of the motion.  Saldana v. DiMedio, 275 N.J. Super. 488, 494 (App. Div. 1994).
[brief] ”  *E & J Equities, LLC*, 226 N.J. at 585.  At argument the trial court even recognized that [...] did not seem to know why the Distance Regulation existed:  “I mean, it's not the planning and zoning board that enacted the legislation for the billboard. ”  (3T:32.)  The trial court then looked past that deficiency.  Obviously, an ordinance can have more than one substantial government interest.  [...] does not argue otherwise.  But mouthing the words “aesthetics, safety, open space,” as [...] and [...] did below, is nothing more than a generic recitation of the zoning purposes of the Municipal Land Use Law.
[brief] THE ORDER AWARDING ATTORNEYS’ FEES TO BIRCH, AS “PREVAILING PARTY” UNDER THE PSA, SHOULD BE REVERSED (Pa 689; Pa 704-705; 5T)  Plaintiff-Appellant also appeals from the trial court order granting [...]’s motion for an award of its attorneys’ fees, as the “prevailing party” within the meaning of Section 18.2 of the PSA.  The determination that [...] was the “prevailing party” under the contract is, naturally, contingent upon the trial court’s decision to dismiss the Complaint, with prejudice, as against [...].  (Pa357).  If the Complaint is reinstated, then [...] cannot be considered to be the “prevailing party” – particularly at this early, pre-answer stage of the action.  For the reasons discussed above and in Plaintiff’s opening brief, the Orders appealed from should be reversed and the Complaint should be reinstated as against both Defendants.  Plaintiff respectfully submits that that Order awarding fees to [...] must likewise be reversed.  With the reinstatement of the Complaint (or dismissal without prejudice and with leave to replead), it is premature to conclude who will be the “prevailing party” in this contract dispute, entitled to an award of attorneys’ fees under Section 18.2 of the PSA – [...] or Plaintiff.  **POINT V**
[brief] (Da14).  In the Certification, [...] stated that his attorney was [...].  (Da10).  [...]’s Certification did not state that Rinaldi was representing [...] at the time of the filing.  (Da10).  Also, [...], in the Probate action, served [...] Miranda with a copy of the Order to Show Cause Summary Action returnable May 4, 2018 in the Verified Complaint.  The service letter had attached to it the February 13, 2018 Letter Brief filed by [...] in the Bergen County Surrogate’s Office.  The Letter Brief clearly stated that the firm represented [...] Miranda.  In [...]’s Subpoena to [...] for medical documents, [...] stated that he represented plaintiff [...] Miranda.
[brief] *State v. Miller*, 205 N.J. 109, 128 (2011) (citing N.J.S.A. 2C:44-5(a)).  "'[W]hen determining whether consecutive sentences are warranted,' a court is required 'to perform the well-known assessment of specific criteria' commonly referred to as the *Yarbough* factors."  *State v. Vanderee*, 476 N.J. Super. 214, 238 (App. Div.) (alteration in original) (quoting *State v. Randolph*, 210 N.J. 330, 353 (2012)), certif. denied, 255 N.J. 506 (2023).  Those factors include the following: (1) there can be no free crimes in a system for which the punishment shall fit the crime; (2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision; (3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not: (a) the crimes and their objectives were predominantly independent of each other; (b) the crimes involved separate acts of violence or threats of violence; (c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior; (d) any of the crimes involved multiple victims; (e) the convictions for which the sentences are to be imposed are numerous; (4) there should be no double counting of aggravating factors; [and] (5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense.
[brief] ”  See e.g. Nash 96 N.J. at 108. of the zone plan and zoning ordinance are demonstrated by the factors set forth N.J.S.A. § 40:55D-2(a)-(o),” but no citation is provided.  (Pa16.)  Examples show how this cannot be true.  A municipality could create a “renewable energy zone,” N.J.S.A. 40:55D-2(n), with a windfarm or solar panels that might impact light, air, and open space, N.J.S.A. 40:55D(c).  But the purpose of the “zone plan” is the former, not the latter.  See Nash, 96 N.J. at 122 (referring to specific zones, i.e. “because of the smallness of the zone, the zone plan may be vulnerable to deviations on the domino theory”).  A municipality could focus a “zone plan” on “planned unit development” or “senior citizen community housing,” N.J.S.A. 40:55D(k)-(l), either of which might create “density” that some residents think is too high, N.J.S.A. 40:55D(e).  But the “zone plan” is the former, not the latter.  Using this application as an example, and using the passage above from the trial court, what does the Distance Regulation have to do with “morals”?