ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] The factors are: (1) whether a communication includes an explicit demand for payment, (2) the relationship between the parties, and (3) the purpose and context of the communication.  See Vilinsky v. Phelan Hallinan & Diamond, explicitly addressing this point) that the transmission of data by [...] was not a communication in connection with the collection of a debt. P.C., No. 15-650 (JBS/JS), 2015 U.S. Dist. LEXIS 77575, at *10 (D.N.J. Jun. 16, 2015); Gregory v. Nationstar Mortg., LLC, No. 2:13-6952, 2014 U.S. Dist. LEXIS 64138, at *10 (D.N.J. May 8, 2014).  Applying the three factor test to the allegations of this case establishes that Plaintiff’s FDCPA claim is meritless.  First, [...]’s “communication” with its mailing vendor did not make an explicit demand for payment.  To the contrary, Plaintiff’s Complaint alleges that only data such as Plaintiff’s name, the name of Plaintiff’s creditor, account number and debt amount were transmitted to [...]’s mailing vendor.  (Pa7a at ¶¶ 35, 36).  Indeed, it would make little sense for [...] to make an “explicit demand for payment” from its mailing vendor.  Second, the relationship between the parties—[...] and its mailing vendor—also weighs against the notion that the “communication” at issue was in connection with the collection of a debt.  [...]’s mailing vendor was retained to print and mail letters and this arrangement has nothing to do with the act of debt collection vis-à-vis Plaintiff.  Third, the purpose and context of the communication also weighs against a finding that [...]’s “communication” was in connection with collection of a debt.  [...] transmitted data to its mailing vendor for the purpose of printing and mailing letters, not to collect anything from its mailing vendor.  In sum, the “communication” at issue in this case was motivated by [...]’s desire to retain a company with expertise to facilitate the mechanical task of generating, printing and mailing a letter, not debt collection.  Thus, the Trial Court was correct when it held that this second defect, by itself, is fatal to Plaintiff’s theory of recovery.
[brief] ” *State v. Cooper*, 410 N.J. Super. 43, 58 (App. Div. 2009) (quoting *State v. Bey*, 161 N.J. 233, 251 (1999)).  The case on which Defendant relies, *Ouber v. Guarino*, 293 F.3d 19 (1st Cir. 2002), involved a promise not to present an alibi defense but a promise that the defendant would testify and therefore would exonerate herself.  The defense attorney promised four times in his opening statement that the defendant would testify, explaining that the case was a contest between the defendant’s credibility and that of the undercover police officer who allegedly purchased cocaine from her.  *Id.* at 23.  Defense counsel also presented twenty-four (24) character witnesses to testify about the defendant’s reputation for truthfulness.  “When she did not testify, this stage-setting quite likely intensified the negative impact on the jury,” reasoned the Court, which held that the state courts in Massachusetts had unreasonably applied *Strickland*.  Where the defense attorney in *Guarino* reneged on his promise to the jury, and in a way that invalidated the entirety of his defense strategy, defense counsel in this case sought to fulfill his promise and argued to the jury that he had done so by presenting cell phone records and other evidence in an effort to establish Defendant’s alibi.  The strategy failed not for ineffectiveness but for lack of supporting evidence.
[brief] At the end of a case, it is important that “[a]ppropriate and proper charges to a jury” are given by the trial judge.  State v. Green, 86 N.J. 281, 287 (1981).  At this time, the trial judge should explain to the jury its function by detailing “a comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find. ”  Id. at 287-88.  The instructions should be given in non-legal language that those uneducated in the law can understand.  Id. at 288.  The charge should explain all of the essential elements with a “plain and clear exposition of the issues. ”  Id.
[directive] Actor, by any means, including but not limited to the Internet, knowingly distributes an Pornography item depicting the sexual exploitation or abuse of a child, or knowingly possesses an item (continued) depicting the sexual exploitation or abuse of a child with intent to distribute that item, or, using a file-sharing program, knowingly stores or maintains an item depicting the sexual 3rd Degree  $20,000 to $50,000  10% permissible exploitation or abuse of a child which is designated as available for searching by or copying to one or more other computers, second degree.  b(5)(b)  Actor knowingly possesses, receives, views, or has under his control, through any means, including the Internet, an item depicting the sexual exploitation or abuse of a child, third degree.
[brief] This Court held last year that “although our Supreme Court has not expressly declared it, and although we too have not said as much in any published opinion, we are satisfied, as the court of appeals recognized in Remicade, citation omitted – and as we now so hold – that an express waiver of the right to seek relief in a court of law to the degree required by Atalese is unnecessary when parties to a commercial contract are sophisticated and possess comparatively equal bargaining power. ”  [...], supra, 474 N.J. Super.  at 504.  The Plaintiff is a sophisticated litigator and he does not contend that he had unequal bargaining power.  As the only sensible interpretations of the Dispute Resolution provisions of the party’s contract indicate that either party “has permission to” or “shall” initiate arbitration the erroneous Order of the Trial Court must be reversed.
[brief] **  Next, Plaintiff argues that [...] properly exercised his equitable discretion.  This argument is wrong.  The Defendant’s argument is premised on the fact that the two-year statute of limitations barred the claim regardless of any equitable considerations, so [...]’s discretion was abused, as it should never have been exercised in the first place.  For example, while New Jersey has a long history of applying equitable considerations to the statute of limitations questions, such considerations will only prevent the statute of limitations from barring a claim when it is the defendant’s own acts which make it inequitable for the statute of limitations defense to apply.  See, Lopez v. Swyer, 62 N.J. 267, 275 fn.2 (1973)  Here, Plaintiff pointed to nothing done by [...] upon which equitable relief might be based.  Plaintiff solely relied on the actions of the landlord, but that would not preclude the dismissal of the claim against [...].  Moreover, as detailed in [...]’s initial brief, ([...]’s initial brief at pp. 39-41), [...]’s reasoning was faulty because the Plaintiff did not need the lease to know, on the date of his fall, he had been injured by the fault of another.  Thus, the statute of limitations began to run on that date.  *J.P. v. Smith*, 444 N.J. Super. 507, 526-27 (App. Div. 2016)  Further, [...]’s reasoning that the landlord’s answers to interrogatories might be misleading cannot as a matter of law extend the time to file against [...], because [...] took no action in answering interrogatories which constituted an inequitable conduct.  *Henry v. New Jersey Dep't of Human Servs.*, 204 N.J. 320, 338 (2010) (equitable tolling tolls the statute of limitations against party who misleads the plaintiff into not filing sooner.)  As such, this argument is without merit.
[brief] (41T:81-13 to 85-10)  [...] told [...] that she was attacked while walking to Walgreens to get fluids for her children because they were not drinking their milk.  (41T:99-17 to 100-2)  [...] said she could not provide any description of the attackers.  (41T:87-7 to 21)  [...] gave [...] a photograph of [REDACTED] to help the police search for him.  (41T:90-18 to 91-17)  [...] was examined by EMT [...], who observed that “he was acting age appropriately” and had no injuries.  (41T:46-23 to 51-5)  [...] searched for surveillance cameras in the nearby area, and, with the consent of the owners, reviewed footage from cameras located [...], [...], and [...] that captured [...] walking with the stroller.
[brief] [...] certified in the trial court that on January 8, 2022, she gave her phone to her daughter specifically so that the daughter could use [...]’s services to order dinner on behalf of and for Plaintiffs and the family, to be delivered to [...]’s home.  (Da198 ¶¶ 5, 9-12; Da210 ¶¶ 6–7.)  Plaintiffs’ daughter was purportedly delegated this task because Plaintiffs were busy packing for a trip and because their daughter was “capable of and frequently did order food for delivery” and would have been impatient watching her parents order the food.  (*See id.*)  Plaintiffs and their daughter apparently decided from what restaurant the food would be ordered and Plaintiffs told their daughter to alert them “when the delivery driver arrived, rather than go to the door herself. ”  (*Id.*)  In other words, [...] asked her daughter to use [...]’s service to order food for the family’s dinner and gave her phone so that the daughter could do so.  Her daughter thus contracted with [...] with express authority from [...].  *See Landy v. Natural Power Source, LLC*, No. 21-cv-00425, 2021 WL 3634162 (D.N.J. Aug. 17, 2021) (not officially reported) (“A plaintiff sufficiently pleads actual authority when the allegations establish that the defendant consented to or directed the agent to act on its behalf.
[brief] ”  Plaintiff theorizes that because a “mailing vendor” is not expressly permitted in § 1692c(b) as a “person” that a debt collector may communicate with, that the transmission of data by [...] to its mailing vendor solely for the purpose of creating and printing letters violates the FDCPA.  Plaintiff’s theory is simple, but wrong.  As an initial matter, mailing vendors — companies that use complex machinery to automate the process of printing and mailing letters — did not exist in 1978 when the FDCPA was enacted so Congress could not have expressly exempted mailing vendors in §1692b(c).
[brief] Moreover, it should be noted that Rule 4:67-4 states that:  A plaintiff proceeding pursuant to R. 4:67-1(b) shall be deemed to have waived any right to trial by jury to which plaintiff would otherwise have been entitled whether or not the motion is granted.  A defendant entitled to trial by jury shall make demand therefore in accordance with R. 4:35… the demand shall be served and filed not later than 3 days before the return date of the motion and may be appended to any paper served and filed by the defendant in response to the motion.
[brief] In a builder’s remedy case, the “remedy should not be denied solely because the municipality prefers some other location for lower income housing, even if it is in fact a better site. ”  *Mount Laurel II*, at 280.  While [...] still has the opportunity at a later point in the action to argue that the site is not suitable, it has a heavier burden than if it had “filed the DJ action” and “follow[ed] through. ”  **The Trial Court Properly Balanced the Harms and Protected the Public Interest by Situating [...]’s Right to Exercise Certain Powers Pursuant to the LHRL within its Constitutional *Mount Laurel* Obligation.
[brief] ALTHOUGH THERE IS NO LEGAL AUTHORITY SUPPORTING PLAINTIFF’S ARGUMENT THAT THIS COURT SHOULD ABANDON ITS FOCUS ON CONTROL (OR LACK THEREOF)  IN EVALUATING LESSOR LIABILITY, EVEN IF THIS COURT WERE TO APPLY THE FACTORS OF HOPKINS THE RESULT WOULD BE THE SAME  In its final argument, plaintiff contends that this Court should ignore the long-standing principles expressed in McBride and Geringer v. Hartz Mountain Dev. Corp., 388 N.J. Super. 392 (App. Div. 2006) and should instead should analyze a lessor’s duty under Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993).  (Pb 16-17).  Putting aside that Hopkins, again, involved only residential property, plaintiff cites no precedential legal authority in support of its plea to this Court that it should reject the “control” analysis discussed in Point I above, which has for so long been relied upon by our courts as the proper basis for determining lessor liability.  (Plaintiff cites only to a brief unreported decision, Albert v. Pathmark Stores, Inc., 2019 N.J. Super. Unpub. LEXIS 1586, 2019 WL 3003822 (App. Div. July 10, 2019) certif. denied, 240 N.J. 1 (2019). )
[brief] Since the decision in this matter was issued by [...] in late 2023, the United States Court of Appeals for the Third Circuit issued a decision addressing the arbitrability of NJIFPA claims.  In its decision in GEICO v. Mt. Prospect Chiropractic Center, PA, Consol. Case Nos. 23-1378, 23-2019 & 23-2053 (April 15, 2024) (“PRECEDENTIAL”), the U.S. Court of Appeals for the Third Circuit rejected GEICO’s claims similar to those of [...] in the present matter that NJIFPA claims are not subject to mandatory New Jersey No-fault Arbitration.
[brief] The Court also adopted R. 4:29–1(b), which permits the trial court, on its own motion, to “order the joinder of any person subject to service of process whose existence was disclosed by the notice required by R. 4:5–1(b)(2) or by any other means who may be liable to any party on the basis of the same transactional facts. ”  The Court further revised R. 4:5–1(b)(2), which now provides:  Each party shall include with the first pleading a certification as to whether the matter in controversy is the subject of any other action pending in any court or of a pending arbitration proceeding, or whether any other action or arbitration proceeding is contemplated; and, if so, the certification shall identify such actions and all parties thereto.  Further, each party shall disclose in the certification the names of any non-party who should be joined in the action pursuant to R. 4:28 or who is subject to joinder pursuant to R. 4:29–1(b) because of potential liability to any party on the basis of the same transactional facts.  Each party shall have a continuing obligation during the course of the litigation to file and serve on all other parties and with the court an amended certification if there is a change in the facts stated in the original certification.  The court may require notice of the action to be given to any non-party whose name is disclosed in accordance with this rule or may compel joinder pursuant to R. 4:29–1(b).  If a party fails to comply with its obligations under this rule, the court may impose an appropriate sanction including dismissal of a successive action against a party whose existence was not disclosed or the imposition on the noncomplying party of litigation expenses that could have been avoided by compliance with this rule.  A successive action shall not, however, be dismissed for failure of compliance with this rule unless the failure of compliance was inexcusable and the right of the undisclosed party to defend the successive action has been substantially prejudiced by not having been identified in the prior action.
[directive] 7.12.1  The work of an internal affairs function should not be limited to resolving complaints by narrowly focusing on whether the subject officer engaged in misconduct.  In many cases, the examination of collateral issues presented by the complaint can be as important as the resolution of the allegation itself.  For example, while investigating an allegation of excessive force during an arrest, the officer’s actions in making the arrest may be improper.  In such cases, even though the investigation may exonerate the officer of the excessive force allegation, internal affairs must still examine whether the officer should have been effecting the arrest at all.  7.12.2
[brief] However, a necessary corollary to such a rule must be that the pedestrian should not be expected to assume responsibility for a peril which, but for the conduct of the property owner, would not have existed at all, or might not have existed for the same length of time or to the same degree.  Thus, it was said in Saco that where the property owner, through his negligence in cleaning the sidewalk, adds a new element of danger or hazard other than the one caused by natural forces to the safe use of the sidewalk by the pedestrian, he is liable.
[brief] First, the Affidavit is overflowing with (i) improper legal arguments and opinions on the doctrine of adverse possession (e.g., Da125-131 at ¶¶ 25, 26, 27, 28, 29, 30 and 31); (ii) meritless opinions about surveying topics only a qualified expert may proffer and [...] has not been qualified as an expert surveyor (e.g., id. at ¶¶ 4, 5, 8, 11, 21 and 31); and, (iii) factual inaccuracies refuted by the record, including the [...] Survey, the [...] deposition, [...]’s certified Interrogatory responses and [...]’s responses to RFAs (e.g., id. at ¶¶ 5, 8, 11, 14, 15, 16, 17 and 18).  Second, [...] did not produce the Dwight Aff. during discovery, which ended on September 29, 2022, as it is itself dated May 24, 2023 – nearly 8 months after discovery ended.  Unlike [...]’s Answers to Interrogatories and responses to RFAs, [...] offered this uncorroborated Affidavit with contrary facts after discovery ended, leaving [...] with no means of investigating its outrageous claims.  Third, and turning to its substance, even if the Dwight Aff. passed muster under the procedural rules (which it does not), the Dwight Aff. fails to set forth sufficient proof of ownership to satisfy the actual possession prong.
[brief] Google Maps historical street view imagery dated October 2017 depicts the advanced deterioration of the pavement at the subject accident location including spalled asphalt (pothole).  (Pa374).  In comparing the imagery dated September 2015 and October 2017 it is observed that a trench cut was made for subsurface utility work directly south of the accident location, including pavement restoration in that area.  (Pa 373 and Pa 374: report of [...] Appendix A.).  It is also observed that numerous markings exist on the pavement surface as a result of a utility mark out; utilized to identify subsurface utilities in anticipation of excavation work (to avoid interaction with the same).  It is also observed that the double yellow line was restriped over the deteriorated pavement prior to the trenching.  (Pa 373 and Pa 374: report of [...] Appendix A.).  Google Maps historical street view imagery dated July 2018 depicts the continued advancement of pavement deterioration at the accident location, including the pothole formation (pavement spall).  (Pa 375 report of [...].  Exhibit A).  Google Maps historical street view imagery dated October 2020 depicts the continued advancement of pavement deterioration at the accident location, including the increased size of the pothole formation (pavement spall).  (Pa 378: report of [...].  Exhibit A.)  Google Maps historical street view imagery dated July 2019 depicts the continued advancement of pavement deterioration at the accident location, including the pothole formation (pavement spall).  (Pa 377: report of [...].  Exhibit A).  In comparing the imagery dated July 2018 to the imagery dated July 2019 pavement repairs were undertaken at the settled utility trench cut, that was previously constructed, as well as at the manhole that exists immediately adjacent to the accident location; however, the subject pothole remained unmitigated.  (Pa 375 and PA 377: report of [...].
[brief] . .  (b)  This subchapter shall apply to disputes arising under policies of private passenger automobile insurance . . . that provide medical expense benefits and other benefits under personal injury protection coverage, as follows:  1.  PIP benefits under a standard automobile insurance policy pursuant to N.J.S.A. 39:6A-4 . . .  (Emphasis added)  The Appellate Division concluded that “neither the statute nor the implementing regulations contemplate that arbitration under N.J.S.A. 39:6A-5.1 will include health insurers. ”  *NJM v. Horizon*, 403 N.J. Super. at 528.  (See also Palisades Ins. Co. v. Horizon Blue Cross Blue Shield of New Jersey, 469 N.J. Super. 30 (App. Div. 2021).  Here, neither the statute nor the implementing regulations contemplate PIP dispute resolution under N.J.S.A. 39:6A-5.1 will include non-medical corporations or lay people and an attorney who are not an insured and/or injured party.  As a result, the three non-medical provider corporation Defendants, the one layperson Defendant and the one attorney Defendant can never be subject to PIP arbitration and must remain in the Superior Court.
[brief] Plaintiff’s Statement of Material Facts in support of Cross-motion for Summary Judgment, filed October 10, 2023  Response of [...] to Plaintiff’s Statement of Material Facts, filed October 30, 2023  Certification of [...], filed October 30, 2023  Exhibit A to Certification, [...] Manual Amendment Bulletin #436, filed October 30, 2023  Exhibit B to Certification, Brief of [...] and [...], dated January 13, 2006, filed October 30, 2023  Exhibit C to Certification, Brief of [...], dated March 8, 2006, filed October 30, 2023  Response of [...] and [...] to Plaintiff’s Statement of Material Facts, filed October 30, 2023 | Cases | Pages | |----------------------------------------------------------------------|-------| | American Millennium Ins. Co. v. Berganza, 386 N.J. Super. 485 (App. Div. 2006) | 7,15,16 | | Baskin v. P.C. Richard & Son, LLC, 246 N.J. 157, 171 (2021) | 6 | | Bates v. Nelson, 240 Iowa 926, 38 N.W.2d 631 (1940) | 16 | | Bellafronte v. Gen. Motors Corp., 151 N.J. Super. 377 (App. Div.), certif. denied, 75 N.J. 533 (1977) | 11,12,13 | | Flomerfelt v. Cardiello, 202 N.J. 432 (2010) | 6,7 | | Griggs v. Bertram, 88 N.J. 347 (1982) | 3 | | Lohmeyer v. Frontier Ins. Co., 294 N.J. Super. 547 (App. Div. 1996) | 8 | | L.W. v. Toms River Reg'l Schools Bd. of Educ., 189 N.J. 381 (2007) | 7 | | Motor Club of Am.
[brief] Longstanding New Jersey precedent holds that “an administrative dismissal is a favorable termination of a criminal proceeding for purposes of a malicious prosecution action. ”  See Rubin v. Nowak, 248 N.J. Super. 80, 84 (App. Div. 1991); see also Hammill v. Mack Int’l Motor Truck Corp., 104 N.J.L. 551, 553 (1928) (“The withdrawal of the complaint was a sufficient termination of the proceeding [in an action for malicious prosecution].”) (internal citations omitted).  In Rubin, the court also held that an administrative dismissal creates a “presumption of favorable termination. ”  See id. at 84 (internal citation omitted).  In his brief, [...] does not address Rubin or the [...]’s May 7, 2018 withdrawal of the VOP charge.  (Pb1-Pb37).  However, at oral argument in the court below, counsel for [...] made the unsupported assertion that the administrative withdrawal did not constitute a favorable termination because “[t]hat’s an administrative decision by the pro- - the Probation Department after, I guess, after the State has indicated somehow to them at some point that they're not going to proceed. ” (3T 6:1-:23); see also (3T 6:18-:20) (“[T]hat's an administration decision that—that did not actually terminate—terminate the case .  . . [.].”)  Counsel’s rank speculation in the court below had no basis in law or fact.  Ibid.  Moreover, as discussed below, counsel’s argument was blatantly contradicted by controlling authority.
[brief] *Id.*  The Appellate Division reaffirmed this tolling rule in *Azze v. Hanover Ins.*, 336 N.J. Super. 630, 643 (App. Div. 2001) (reversing dismissal), cited by [...].  The policy in *Azze* stated, “No action can be brought unless the policy provisions have been complied with and the action is started within one year after the date of loss. ”  *Id.* at 633.  Unlike here, there was no conformity to clause provision, and the parties agreed that the policy’s one-year limitations period was binding.