ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] This precedent is further established as in the case of Jameson v. Great Atlantic and Pacific Tea Co., 363 N.J. Super. 419, 425 (App.Div.2003); When "a default judgment is taken in the face of defective personal service, the judgment is [generally] VOID."  Rosa v. Araujo, 260 N.J. Super. 458, 462 (App.Div. 1992), certif. denied, 133 N.J. 434 (1993).  The court failed to recognize it is the PLAINTIFF that bears the burden of establishing personal jurisdiction when jurisdiction is CHALLENGED by the defendant (P10-Pa11; Pa33-Pa35; Pa39-Pa40; Pa58-Pa59; Pa62), Gen. Elec. Co. v. Deutz AG, 270 F.3d 144, 150 (3d Cir.2001).  N.J Rule 4:50-1(d) provides that the court may relieve a party from a final judgment if the judgment is void; If a court is satisfied that INITIAL service of process was so DEFECTIVE that the judgment is VOID, ordinarily, the judgment SHOULD BE set aside.  Berger v. Paterson Veterans Taxi Service, 244 N. J. Super. 200, 205 (App.Div.1990), (the court ignored facts and evidence of defective service as the evidence validated the courts have no records for Service of Process relating to the March 9, 1990, hearing) (Pa6; P10; Pa21; Pa33-Pa35; Pa39-Pa41).
[brief] 2T90:15.  reporter then went off the record.  When the Trial Judge returned, she did not put any explanation of what was discussed with counsel on the record.  2T7:13-16; 2T8:10-14.  Instead, following this *ex parte* communication the Trial Judge took the bench and stated:  “I had an opportunity to speak with counsel in chambers while [...] was collating and organizing her exhibits about the status of the case.  I think it’s a good opportunity, uh, for us to take a break from the litigation component of our trial and then, uh, reevaluate some of our respective positions. ”  2T8:10-14.  The Court was then in recess.  This type of *ex parte* communication is prohibited.  Moreover, it clearly implicated Plaintiff’s ability as a *pro se* litigant to have her matter fairly heard.  Given the communication and immediate recess with direction to “reevaluate some of our respective positions,” no reasonable person can doubt that substantive matters were discussed by counsel and the Trial Judge to the exclusion of Plaintiff.  This substantive *ex parte* communication should have never occurred, and Plaintiff should have been made aware of the substance of the conversation.  The plain error standard is met, and this Court should find that (1) the Trial Court’s substantive *ex parte* conduct was an error; and (2) that error was clearly capable of producing an unjust result.
[directive] In addition, members of underserved communities may be reluctant or unlikely to file complaints with a government agency when they have been victimized or their rights have been violated—for a variety of reasons (e.g., distrust of government or enforcement authorities, cultural barriers, skepticism, or a sense of hopelessness)—and they may be targeted in part because they are perceived as less likely to report violations.  Proactive enforcement not only can protect the rights of those who are unwilling to file a complaint but also can send a message to potential victims and perpetrators that violations of the law that target members of underserved communities will not go unanswered.3 e.g., [...], Preventing and Eliminating Sexual Harassment in New Jersey: See, 3 Findings and Recommendations from Three Public Hearings 15-16 (Feb. 2020), https://www.nj.gov/oag/dcr/pdfs/DCR-SH-Report_Feb2020.pdf (discussing how individuals with intersecting vulnerabilities face an increased risk of sexual harassment, including due to heightened fears of reprisal if they report their harassers).  Even when the number of complaints from underserved communities is higher than elsewhere, that does not mean that complaint rates are higher; it is possible that there are more complaints because members of these communities are more often being mistreated in a particular way.  Consumer Financial
[brief] I.  **Youth should receive a careful professional assessment before socially transitioning.**  Transgender persons experience a “mismatch between [their] natal sex and [their] felt, perceived, or desired gender identity. ”  ACa15 ¶ 10.  Having a transgender identity is not, standing alone, a psychological condition.  ACa15 ¶ 10.  Nevertheless, transgender-identifying persons can experience gender dysphoria, which refers to “clinically significant distress . . . related to gender incongruence. ”  ACa15 ¶ 10.  Not everyone who has a transgender identity suffers from gender dysphoria, but a young person’s desire to undergo a social transition is a sign that may indicate the presence of gender dysphoria or related mental-health conditions.  ACa11-ACa112 ¶ 8.b.  --- 1  This background discussion is based on the certification of [...].  ACa6-ACa58.  [...], a transgender woman, is an expert in the field of the treatment of youth dealing with gender-identity related issues.  ACa10-ACa11, Anderson Cert. ¶¶ 3–6.  [...]’s certification starts on page ACa6 of the attached appendix.  Minors who want to undergo a social transition should thus receive a “careful evaluation by an appropriately trained mental health professional” to determine whether gender dysphoria or other related conditions exist.  ACa37-ACa38 ¶ 57.
[brief] This personal injury action arises out of a 3-vehicle motor vehicle accident in which Plaintiff suffered severe personal injuries.  At trial, the jury heard testimony from both liability and damages witnesses.  Plaintiff called five witnesses.  Defendants called zero witness.  The eight-person Jury returned a unanimous verdict on each question and awarded Plaintiff non-economic damages in the amount of $3.5 million.  Plaintiff was 22 years old at the time of the accident.  As a result of the significant impact, she was entrapped in the driver’s seat with her legs pinned in the vehicle.  Emergency responders extracted Plaintiff from the vehicle with special equipment.  Plaintiff sustained numerous injuries including (1) a fracture of the left forearm causing a dislocation of her left elbow, (2) an open fracture of her right femur, (3) an open fracture of her right kneecap, (4) an open fracture of right tibia, (5) a complex, comminuted fracture of the left femur, (6) a fracture of the left kneecap, (7) a left quadriceps tendon tear, and (8) and a left ankle inflammation, tendinitis, and chronic contracture.  Plaintiff underwent multiple surgeries including (1) open reduction, internal fixation to the left forearm, (2) external fixation and subsequent open reduction, internal fixation to the right femur with intramedullary rod, (3) external fixation and subsequent open reduction, internal fixation to the right knee cap, (4) external fixation and subsequent open reduction, internal fixation to the right tibia with intramedullary rod, and (5) external fixation and subsequent open reduction internal fixation of the left femur with repair of the quadriceps tendon.  Defendants [...] and [...] contend (1) the Jury’s allocation of fault is against the weight of the evidence, (2) that the Trial Court abused its discretion in making three separate evidentiary rulings, and (3) that the Jury’s damages award shocks the judicial conscience.  Defendants seek a new trial or, in the alternative, a remittitur.  Defendants claim the Jury “should have” assessed a greater liability percentage against co-defendant.  Defendants claim the Jury “should have” awarded less money for Plaintiff’s pain and suffering damages.  In bringing this appeal, Defendants place great weight on facts which the Jury clearly disbelieved and ask this Court to substitute its judgment for that of the Jury.  Plaintiff requests that the Court affirm the Orders of the Trial Court below.  PROCEDURAL HISTORY
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[brief] In fact, Defendant’s arguments respecting Rule 4:50-1(f) is essentially a summary of his prior points: 1) that service was not effectuated; a.  **Response:**  The Court’s September 24, 2021 order permitted Plaintiff to serve Defendant at his last known address [...].  Such service was effective as of the date of that order.  2) that Plaintiff failed to notify the Defendant of the default; a.  **Response:**  Defendant was served with the Court’s entry of default in accordance with the Court’s September 24, 2021 order.  (Pa3 to 4, Pa36 to 37).  3)  Defendant’s efforts to secure assistance of counsel were hampered by the death of his nephew; a.  **Response:**  Defendant’s unfortunate loss did not occur until September 18, 2022, several months after default and default judgment had already been entered.  This is no excuse for failing to appear in the action.  Moreover, Defendant still had six (6) months to move to vacate the default judgment in accordance with Court Rule 4:50-2.  He failed to do so.  4)  Defendant retained three (3) separate attorneys in an attempt to move to vacate the judgment against him.  Defendant’s first two (2) attorneys allegedly failed to file the necessary motion. a.  **Response:**  Defendant’s lack of diligence in ensuring that his attorneys filed the necessary papers before this Court is entirely unrelated to his initial failure to appear in this matter since its inception on February 19, 2021.  Moreover, since Defendant apparently retained [...] on or about February 8, 2023, and [...], on or about March 3, 2023, he had at least two (2) attempts at securing legal representation before the one-year deadline imposed by Court Rule 4:50-2.  He failed to do so.  Defendant ultimately did retain counsel to assist him in filing the motion, but that filing was not until June 21, 2023, ten (10) months after Defendant’s prior motion.  There are no exceptional circumstances sufficient to warrant the Court’s disruption of the default judgment pursuant to Rule 4:50-1(f).
[brief] The Public Trust Doctrine is an example of common law authority that is continually developing through individual Court cases.  In addition to cases involving physical barriers to access, there have been instances where municipalities and local property owner associations have attempted to limit use of recreational beaches to their citizens and members through methods designed to exclude outsiders.  In the majority of these cases, New Jersey courts have ruled that these actions violate the Public Trust Doctrine because lands that should be available for the general public's recreational use were being appropriated for the benefit of a select few.  [N.J.A.C. 7:7-16.9(x)]  E.  The Trial Court’s Refusal to Address the Public Trust Doctrine on the Summary Judgment Motion on the Merits was Contrary to Clearly Established Law:  Nothing in the 200+ year existing Common Law Doctrine, the new Statutory Doctrine, or the NJDEP’s Administrative Public Access Rule, in any way indicates that the new law is anything other than complementary and supplementary to the 200+ year existing Common Law Doctrine, or that some “triggering” event must occur before government action that violates the doctrines can be challenged.  The New Jersey State Constitution (1947), as amended, guarantees that illegal government action is subject to challenge through an action in Lieu of Prerogative Writs.
[brief] As discussed in Plaintiff’s opening brief, the trial court erred in concluding that Plaintiff waived its right to seek specific performance of the Purchase and Sale Agreement (“PSA”) when it accepted return of its Earnest Money Deposit in mid-July 2022, which happened only after [...] misinformed and deceived Plaintiff, claiming it was not able to close the transaction as required by the PSA.  To make matters worse, [...] then instructed [...] not to inform Plaintiff of [...]’s plan to secretly close the transaction with the Fee Owner on better financial terms – thereby frustrating Plaintiff’s ability to file a lis pendens and/or to appear for the closing and ensure that the real property was conveyed to Plaintiff as required by the PSA.  The transaction was supposed to close in October 2021, but [...] delayed the closing for ten months, while Plaintiff’s Deposit was held in escrow with [...] and while Plaintiff was paying hundreds of thousands of dollars each month to keep its financing in place.  (Pa5, Complaint, ¶¶16; Pa7-9, Complaint, ¶¶ 22-34).  The trial court’s conclusion that Plaintiff had a choice to “either” seek return of the Deposit after being advised by [...] in July 2022 that it would not close this transaction, “or” seek specific performance when [...] later closed the transaction with the Fee Owner in early October 2022 was unreasonable, unfair, and contrary to the plain language of Section 13.1 of the PSA (Pa115).  That provision expressly allowed Plaintiff to pursue both remedies, in the event that [...] defaulted on its obligations to Plaintiff under the PSA and proceeded to close on the real estate transaction with the Fee Owner, without Plaintiff – which is exactly what happened here.
[brief] see also *H&S Constr. & Mech., Inc. v. Westfield Pub. Schs.*, 2018 N.J. Super. LEXIS 1574 (App. Div. July 5, 2018)(rejecting argument that bidder’s failure to supply certificate gave rise to right to abandon project because the “bidder’s obligation to enter a contract was secured through a bid bond”).  Moreover, unlike the circumstances here, the bidder’s signature on the bid form in Ace-Manzo did not exist pre-bid and could only be ascertained through a post-bid submission by the bidder itself, assuming the bidder wished to do so.  In this case, [...] could not create or delete its Notice of Classification after bid opening – it is given to it by [...] and is publicly available.  [...]’s argument that [...] waited thirteen days from the date it received the County’s bid rejection to supply a copy of its existing and publicly available Notice of Classification completely ignores that [...]’s classification status existed at the time of bid opening and was always objectively discernible and publicly available.  Indeed, [...] promptly supplied the County with a copy of [...]’s existing and publicly available Notice of Classification in response to the County’s Rejection Letter.  Moreover, because [...]’s classification status could not be changed, the date that [...] provided the Notice of Classification to the County is of no moment.
[brief] (Pb14-15; Pa115-121).  It is true that New Jersey courts have recognized that in certain pension cases equitable principles may prevent the strict application of a regulatory or statutory provision if fairness so dictates.  See generally Sellers v. Bd. of Trs., Police & Firemen’s Ret. Sys., 399 N.J. Super. 51, 62 (App. Div. 2008) (finding that pension boards have “the authority to apply equitable principles to provide a remedy when justice so demands, provided the power is used rarely and sparingly, and does no harm to the overall pension scheme”).
[brief] The TCA defines a “dangerous condition” of public property as “a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used. ”  N.J.S.A. 59:4-1(a) (emphasis added).  The Appellate Division has noted that for a condition to present a “substantial risk of injury” it cannot be “minor, trivial or insignificant. ”  Atalease v. Long Branch Twp., 365 N.J. Super. 1, 6 (App. Div. 2003).  Whether property is in a dangerous condition is generally a question for the finder of fact to decide.  *Vincitore v. Sports & Expo. Auth.*, 169 N.J. 119, 123 (2001).
[brief] [...], [...], and [...] Repeatedly Sought More Pay  All staffing coordinators received the same base wage, save for [...] (“[...]”), another staffing coordinator, given her years of service.\(^1\) (Pa362 at 79:14-79:13; Pa284-85 at 24:24-25-2).  [...], “fixated” on his misconception that other staffing coordinators earned more than him, repeatedly complained about his \(^1\)  [...] admitted both [...] and [...]—another staffing coordinator employed alongside Plaintiffs—had longer tenures than him.  (Pa165 at 21:14-22:21).  wages.  (Pa300 at 85:3-15; Pa362 at 77:5-15).  [...], too, believed the staffing coordinators were underpaid.  (Pa164 at 19:24-20:8; Pa362 at 78:17-79:2; Pa231 at 21:8-23).  In response, in early September 2020, [...] confirmed that only [...] earned more.  (Pa362 at 79:3-13).  In an attempt to secure a higher wage, [...] petitioned [...] for COVID incentive pay, sometimes referred to as “PIP” or “premium incentive pay. ” (Pa231 at 21:8-22:17; Pa366 at 95:12-17).  During the COVID-19 pandemic, [...] offered financial incentives like PIP to its frontline employees, such as nurses.  (Pa362 at 77:16-78:2).  These “direct patient care staff” members received an additional amount per shift.  (Pa362 at 77:16-78:2).  Staffing coordinators were not eligible for this COVID-19 incentive pay as determined by senior leadership.  (Pa362 at 78:3-13).  [...] thought the staffing coordinators should have received “paid incentives” to work during the pandemic.  (Pa362 at 77:16-78:2).  [...] sought extra incentive pay for her employees during the pandemic, but was denied.  (Pa362 at 78:14-21).  According to [...], [...] sought this incentive pay for her employees “several times” but was denied on each occasion by senior management.  (Pa107 at 90:7-23; Pa112-13 at 113:11-114:8).  X.
[brief] It has been a public record since its 2016 recording or for the last 8 years.  Second, the Safe Harbor Notice, received more than 3 months before the 1-24 dispositive motions, referenced Appellant’s discovery of the recorded Satisfaction.  Not only did plaintiffs not request a copy, but thereafter they filed a turnover motion & again concealed the recorded discharge.  Executrix & Pennsylvania attorney, [...] is also very culpable.
[brief] ...  According to -- according to the arbitrator’s record, the doctor testified that the average person would be at least six to nine months before they would be able to work.  And, frankly, the testimony was more full-throated than that.  He was extremely skeptical that somebody could perform this within a year and he actually testified that there were people that would take considerably longer than a year to go back to sufficient function.  But, the note made absolutely no sense whatsoever.  And, remember the arbitrator -- the employer had already terminated the employee.
[brief] By using this phrase, the Legislature intended to refer to the types of turns listed in the first sentence: turns “at an intersection,” turns “to enter a private road or driveway,” and turns that otherwise cause a vehicle to change “from a direct course. ”  The second sentence thus requires a person to signal when making any of those types of turns “in the event any other traffic may be affected. ”  See N.J.S.A. 39:4-126.  “So turn” cannot conceivably be read to invoke all the movements listed in the first sentence, which include not only “mov[ing] right or left upon a roadway” but also “start[ing] or back[ing] a vehicle. ”  To read the phrase “so turn” as referring to the starting or backing up of a vehicle defies commonsense.  Moreover, it is unclear how a person would signal to start a car.  While the statute provides guidance as to how to signal an intention to turn left, turn right, or stop or decrease speed, it provides no guidance as to how to signal an intention to start or even to back up.  See N.J.S.A. 39:4-126.  The absence of any guidance as to how to signal to “start or back a vehicle” indicates that the Legislature did not believe any signal was required.  Thus, “so turn” cannot be construed to refer to the “start[ing] or back[ing]” of a car simply based on the inclusion of this phrase in the prior sentence, and it likewise cannot be construed to encompass a “move[ment] right or left upon a roadway”.  Accordingly, the plain language of the statute does not require a motorist to signal a lane change, and the failure to do so cannot justify a traffic stop.
[brief] The Property has not had any exclusive, off-street parking for decades and had previously been operated as the [...] since the 1970’s.  Under the current dimensional zoning provisions, there are also other pre-existing, non-conforming conditions present at the Property that do not exacerbate or impact the proposed development, including but not limited to minimum lot area, width, frontage, and setback requirements, as well as maximum building coverage and impervious coverage limitations.  Indeed, during the Initial Hearing, as defined and discussed further herein, [...], the [...] Land Use Enforcement Officer, noted for the record that the existing building dates to approximately 1910; there was no land development ordinance before 1929; and from 1929 to 1979, there were no bulk and area requirements in applicable regulations.  The Property, therefore, “was not required to have parking, was not required to have setbacks, coverage, none of that, so this building certainly predated any requirements for bulk and area requirements. ” (T1/78:19-79:9).  Prior to the hearing, and in support of the Application, the Applicant filed with the [...] the following materials: site plans prepared by [...], dated June 29, 2022, comprised of an existing conditions survey and proposed site development plan; Resolution 267 from the [...] and letter(s) of support from the Mayor; photos and maps of the Property from May and June 2022; the required checklists; and the Application itself.  The Application was initially heard by a Land Use Hearing Officer at a hearing conducted on July 6, 2023 (the “Initial Hearing”).