ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] [...] misappropriated approximately $600,000 from [...] and caused [...] to lose a very lucrative contract with [...] resulting in approximately an additional $400,000 in damages.  [...] was the future son-in-law of Respondent [...].  In March 2022, [...] approached Van Saders about expanding [...]’ business to include removal of sludge from municipal septic systems.  (3a).  Thereafter, Van Saders and [...] entered into an oral agreement whereby [...] agreed to expand [...]’ business in exchange for a percentage of the net profits with [...] acting as an independent contractor.  (3a).  In furtherance of that endeavor, [...] opened a bank account at [...] for the deposit of monies from this municipal work and for payment of the costs associated with this part of [...]’ business.  (3a).  [...] was a signatory to this account.  (3a).  It was his sole responsibility to deposit all revenue generated from the municipal contracts, to pay all employees of [...] who were working on these municipal contracts, to pay all accounts receivable and to balance the accounts every month.  (3a).  In May 2022, [...] was awarded its first municipal contract for the removal of sludge with the town of [...].  (4a).  [...] was obligated to pay all costs associated with this subset of [...]’ business.  (4a).  Rather than paying the costs associated with the sludge removal, defendant withdrew the money from [...]’ Chase account for his own individual purposes which included, but was not limited to, paying hundreds of thousands of dollars to his business associate [...] and financing his own personal vehicle through the Chase business account.  (4a).  Not only did [...] misappropriate several hundreds of thousands of dollars from the business account for his own personal use, he failed to pay business expenses.  (5a).  [...]’s actions also resulted in the cancellation of a lucrative contract with [...] which caused further loss of hundreds of thousands of dollars.  (17a).  [...] and [...]’s business relationship ended in or about April 2023.  In May 2023, [...] filed its OTSC and Verified Complaint.  LEGAL ARGUMENT I.
[brief] The March 1, 2023 order granted permission to defendant to travel internationally, subject only to the condition that international travel of the child shall be discussed between the parents before the child travels abroad.  (Pa10).  Further, no travel restrictions were imposed on the plaintiff.  The January 12, 2024 order (Pa1149-50) modified the freedom of travel provision in the March 1, 2023 order by ordering the confiscation of the passports, thereby drastically curtailing international travel of the parties and the child.  “[I]n the matrimonial context, any modification orders entered by the trial court while the appeal of a matter is pending are void. ”  Rolnick v. Rolnick, 262 N.J. Super. 343, 366 (App. Div. 1993).  “Unquestionably, as a general rule, once an appeal is filed, the trial court loses jurisdiction to make substantive rulings in the matter. ”  McNair v. McNair, 332 N.J. Super. 195, 199 (App. Div. 2000)
[brief] In contrast, possession of a weapon for an unlawful purpose under N.J.S.A. 2C:39-4(a)(1)—as the name of the offense implies—requires proof that the defendant acted purposely.  Thus, if the jury only found defendant acted recklessly, it could have acquitted defendant of the unlawful purpose charge even if it found that defendant possessed one of the guns.  Indeed, the unlawful purpose the State alleged defendant had under N.J.S.A. 2C:39-4(a)(1) was “to cause the death of [...]. ” (8T150-23 to 151-4).  Having found him guilty of recklessly causing Butler’s death, it actually would have been inconsistent had the jury convicted defendant of the unlawful purpose charge.  Furthermore, unlawful possession of a weapon under N.J.S.A. 2C:39-5(b)(1) requires proof that the defendant did not possess a permit to carry, an element lacking from reckless manslaughter, which does not require proof that defendant used a weapon.  See N.J.S.A. 2C:11-4(b)(1).  It does not appear from the record that the State presented any evidence that defendant lacked a permit.  While the jury may infer from this lack of evidence that defendant did not have a valid permit, it is not required to draw such an inference.  See State v. Ingram, 98 N.J. 489, 500 (1985).  Thus, the manslaughter conviction was not mutually inconsistent with the acquittals of the weapons offense even if the jury believed defendant used one of the handguns involved in the shooting.
[brief] 100 N.J. at 643-45.  Following the decision in *Yarbough*, the Legislature amended N.J.S.A. 2C:44-5a to provide that “[t]here shall be no overall outer limit on the cumulation of consecutive sentences,” thereby eliminating guideline number six.  *State v. Carey*, 168 N.J. 413, 423 (2001) (citing L. 1993, c. 223, § 1).  Factors two, four, and five do not relate directly to the facts of the offense and do not assist the court assessing whether to impose consecutive or concurrent sentences.  See *Carey*, 168 N.J. at 423, (“the second, fourth, fifth, and sixth guidelines . . . establish certain procedural requirements. ”).  Factor three identifies five sub-factors that “generally concentrate on such considerations as the nature and number of offenses for which the defendant is being sentenced, whether the offenses occurred at different times or places, and whether they involve numerous or separate victims. ”  *State v. Baylass*, 114 N.J. 169, 180 (1989).  “[T]he five ‘facts relating to the crimes’ contained in *Yarbough*'s third guideline should be applied qualitatively, not quantitatively.
[brief] Q  …  Is that -- is gunshot residue something that you’re familiar with?  A Yes.  Q  Okay.  Is that something that you’ve ever testified about in court?  A  Many times.  Q  Does that kind of fall within the ambit of the ballistics area?  A Yes.  Q  Okay.  And what -- could you explain -- since the clothing wasn’t there, what -- in other words, what would that have shown or potentially shown?  A  Well, that would solidify more the shooter by having gunshot residue on his hand and obviously possibly on the clothing too.  The hand, they would do swabs.  On the clothing, we would get it into the lab and check for the discharge nitrates and nitrites.  Nitrite is part of the powder that’s been consumed through the chemical process of -- .  It loses an oxygen.  So it goes from nitrate to nitrite.  And we can test for both.  2T37.  This gunshot residue assessment also could no longer be done, [...] confirmed.  DA50; 2T37.  **Defendant’s argument for ineffective assistance of counsel**
[brief] With respect to the affordable housing project, [...] projected “a range of profit sharing possibilities” that [...] could have received.  The low range is “up to 60% of the development fees and profits if [...] elected to form a joint venture with another developer experienced in such projects. \(^5\)  The high range of profit sharing is 100% \textit{if} [...] undertook that project on his own.  (\textit{Id.}) (emphasis added).
[brief] Paragraph 23 contains the Settlement Agreement’s general release and waiver by [...].  (Da94).  It is the only general release by [...] in the document. \(^6\)  Paragraph 24 and its subparts --- \(^5\)  The difficulty of distinguishing which provision is the specific one illustrates the problems created by skipping the step of first identifying conflicting provisions.  The specific/general canon of construction requires the comparison of two terms, which only works if they concern the same, or roughly the same, thing.  Paragraphs 24(F) and 24(G) are not easily analyzed in this fashion because they each deal with two different topics rendering a comparative analysis difficult if not impossible.  This is the reason that the canon should be employed only *after* a conflict is established.
[brief] [...], United States Magistrate Judge  *1  This Opinion addresses plaintiff's three (3) motions for discovery sanctions directed to defendants [...] ("[...]"), [...] ("[...]") and [...] ("[...]").  As will be discussed, the motions are GRANTED in part and DENIED in part.  In order to put the Court's rulings in context a detailed summary of the procedural and factual background of the case will be provided.  Much of the relief requested in plaintiff's motions is moot because of events that occurred subsequent to the filing of the motions.  Plaintiff stated at oral argument that he is withdrawing his motions as to [...].  For purposes of this Opinion, [...] and [...] will be collectively referred to as "[...]" or "defendant."  [...] had primary possession and control over the documents at issue.  Plaintiff's motions to be addressed in this Opinion are:
[brief] [...]’s argument that the County did not have “assurance of performance on the bid date” misses the point made by this court in Suburban Disposal.  There, like here, the bidder failed to submit a valid certification even though, at the time of bid opening, the bidder was validly certified.  Suburban Disposal, Inc., 2014 N.J. Super. LEXIS 1186 at *4-5.  In determining that the defect was non-material and waivable, the court considered that the bidder was unquestionably certified at the time of bidding and determined such omission was not material.  Id. at *16-17 (stating “[the bidder] was unquestionably registered throughout the bidding process, although it failed to include proof to [the public entity] by way of the current Certificate.  We agree with the trial court that this was a minor discrepancy or technical omission that was properly subject of a waiver.
[brief] Thus, what is entirely the lawful practice of debtor/creditor law one day, becomes unlawful and criminal the next day if that attorney is now “principally engaged” in that area of the law.  [...] conceded that different people can define the term “principally engaged” using “different criteria. ”  Pa0047 at 50:18-22.  In other words, [...] “agree[s] that reasonable people could have a different understanding of what ‘principally engaged’ means. ”  Pa0047 at 75:20-25.  [...] also acknowledged that it does not have any guidance on what the term “attorney-at-law of this State” means.  Pa0047 at 37:5-7.  This matters because the New Jersey Supreme Court permits out-of-state attorneys to practice in New Jersey under a variety of circumstances.  See RPC 5.5.  Specifically, neither the Act, its regulations nor any [...] bulletins define what “attorney-at-law of this State” means under the Act.  Pa0047 at 37:8-13.  [...] was unable to state whether this term “would apply to someone who is not licensed in New Jersey, but has a pro hac vice admission. ”  Pa0047 at 36:24-37:4.  H.  [...] Acknowledges That The Limited Attorney Exemption Prohibits Attorneys With The Most Experience From Providing Debt Adjustment Services.  While the Act was enacted purportedly to protect consumers, the Act permits a newly admitted, novice attorney to represent clients in debt adjustment matters, while prohibiting an attorney with a concentration in that area and more experience from performing the same work:
[brief] THE DEPARTMENT’S IMPOSITION OF A REQUIREMENT FOR ONSITE PUBLIC SHORELINE ACCESS  ONTO AND ACROSS THE APPELLANT’S PROPERTY UNDER THE FACTS PRESENTED IS AN ULTRA VIRES AGENCY ACTION (Aa0131)  ...........6  A.  Contrary to the Department’s assertion, N.J.S.A 13:1D-150 through 156 (“the Public Access Law”) codified, rather than expanded, the Public Trust Doctrine in New Jersey (Aa0130-131)
[brief] The Court’s Finding that the Corporate Defendants Lack Control Over [...] Was an Abuse of Discretion (Pa4, 9)  1.  A corporate party’s control over its own directors, officers and employees is implicit under R. 4:14-2  A corporation can only act through its directors, officers, and agents.  Hardwicke v. American Boychoir School, 188 N.J. 69, 89 (2006).  For deposition purposes, a corporate party’s control over its own directors, officers, and managing agents is implicit under Rule 4:14-2.  D’Agostino, 242 N.J.Super. at 273.  The only circumstance in which a corporate party lacks control, and requires consent, is when the witness is not a director, officer, or managing agent.  See R. 4:14-2(c) (“The organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf.  . .”) (emphasis added).  See also D’Agostino, 242 N.J.Super. at 274 (“[W]hen a former officer, director, or managing agent presently holds a similar position in a wholly-owned subsidiary of deponent, it has been held such person has maintained an identity of interest with, and is still subject to the control of deponent for the purpose of compelling his attendance by notice”) (quoting Moore's Federal Practice, ¶ 30.51 at 30–45 to 30–46).  Our Court Rules pertaining to deposition notices and compelling discovery are modeled after the Federal Rules of Civil Procedure and are substantially the same.
[brief] In this instant matter, while the trial court granted [...]’s motion for summary judgment, it denied, in full, [...]’s motion for summary judgment.  In so doing, the summary judgment decision was not “final”, but instead was interlocutory.  Thus, the standard of review did not require the trial court to find a “palpably incorrect”, “irrational”, or “failure to appreciate the significance of probative, competent evidence. ”  See Cummings v. Bahr, 295 N.J.Super. 374, 384 (App.Div.1996).  Instead, the trial court only needed to find that sound discretion and interest of justice warranted reconsideration.  Pa280.  Here, the trial made such findings and concluded:  [O]nly ‘sound discretion’ and the ‘interest of justice’ guides the trial court if reconsideration is sought of an interlocutory order.  Here, the Court did not consider [...]’s affirmative defense to vicarious liability in its written opinion.  Thus, the Court finds that denial of [...]’s motion for summary judgment was improper, and the Court will supplement its analysis.  Pa280.
[brief] A fiduciary duty only arises out of the existence of a fiduciary relationship.  It is undisputed that [...] was not a member of the LLC, [...].  See, e.g., 1T162:3-163:9, 169:21-171:4; Pb 22; Da52.  He was merely a part-time, remote “employee” or consultant.  Thus, [...] bore no fiduciary duty either to plaintiff or to [...].
[brief] Plaintiffs agree with the Furman court’s explanation as to the legitimate purpose of an all attorney exemption.  Defendants also rely on *Ferguson v. Skrupa*, 372 U.S. 726, 732 (1963), but that decision likewise fails to support Defendants’ argument that the Legislature had a legitimate governmental purpose in enacting the Limited Attorney Exemption.  The debt adjustment statute at issue there limited debt adjustment business *only to lawyers*.  Thus, the Supreme Court was not faced with a statute that regulated the type and amount of debt adjustment services by a debt attorney; the statute properly *excluded* attorneys from the statutory restrictions.
[brief] Pa8.  Examining the photos and other exhibits, the Court found nothing “more than small cracks or uneven surfaces in the parking lot. ”  Ibid.  In assessing the evidence and submissions already in this case, the Court has previously found in this matter that, “the record demonstrates that the condition of the parking lot was not such any finder of fact could conclude a dangerous condition existed within the lot. ”  Pa9.  As the Court concluded, since a dangerous condition did not exist, defendants could not have either constructive or actual notice of it.  Pa11.  The Court reasoned that:  [I]n reviewing the record in the light most favorable to the Plaintiff, the record does not demonstrate that the [...] had either actual or constructive notice of the alleged condition.  As a preliminary matter and as previously discussed, the record does not demonstrate that a dangerous condition existed.  It follows then that [...] could not have actual or constructive notice of a condition that did not exist.  [Ibid.].  Likewise, if a dangerous condition did not exist, defendant [...] could not have either actual or constructive notice.  To find to the contrary would result in an inconsistent verdict that would improperly require [...] to indemnify the Township for its own negligence.  McKenney v. Jersey City Med. Ctr., 167 N.J. 359, 365, 373 (2001).  Following the principles set forth in Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520 (1995), no reasonable jury could find that the plaintiff’s injuries were proximately caused by the conditions of the property.  Accordingly, the lack of notice is an independent reason for affirming the grant of summary judgment to [...].
[brief] ”  Crowe v. De Gioia, 90 N.J. 126, 132–134 (1982).  The moving party has the burden to prove each of the Crowe factors by clear and convincing evidence.  Brown v. City of Paterson, 424 N.J. Super. 176, 183 (App. Div. 2012).  Further, “when a case presents an issue of ‘significant public importance,’ a court must [also] consider the public interest in addition to the traditional Crowe factors. ”  Garden State Equal. v. Dow, 216 N.J. 314, 321 (2013).  A request for a stay pending the disposition of a claim on its merits “is flexible; it should be exercised whenever necessary to serve the ends of justice, and justice is not served if the subject-matter of the litigation is destroyed or substantially impaired during the pendency of the suit. ”  Waste Mgmt. of N.J., Inc. v. Morris Cnty. Mun. Utils. Auth., 433 N.J. Super. 445, 453 (App. Div. 2013) (quotation omitted).  “This less rigid approach, for example, permits injunctive relief preserving the status quo even if the claim appears doubtful when a balancing of the relative hardships substantially favors the movant, or the irreparable injury to be suffered by the movant in the absence of the injunction would be imminent and grave, or the subject matter of the suit would be impaired or destroyed” (id. at 454).  Put differently, “[a] court may issue an interlocutory injunction on a less than exacting showing if necessary to prevent the subject matter of the litigation from being destroyed or substantially impaired. ”  Waste Mgmt., 399 N.J. Super. at 534 (quotation omitted).  Motions for reconsideration are governed by R. 4:49-2, which provides that the decision to grant or deny a motion for reconsideration rests within the sound discretion of the trial court.
[brief] There, the Court stated:  [Section 5.3] of the Act provides that the representative duly elected by a majority of the public employees in an appropriate unit shall be the exclusive representative of \(^4/\) [...] v. [...], 221 N.J. 349 (2015) (Board’s Br. at 13).  all employees in the unit . . . [and] authorizes such representative and the employer in the appropriate unit involved to engage in collective negotiations concerning the terms and conditions of their employment.  [55 N.J. at 412 (emphases added). ]  It is clear from the above that with regard to “[r]epresentatives designated or selected by public employees for the purposes of collective negotiation” as stated in Section 5.3, the “plain meaning” of that phrase is representatives who are “duly elected” by a majority of the employees in a unit.  The Commission’s analysis in this case, quoted supra, is fully consistent with the Lullo court’s controlling interpretation, in that the Association is such a “duly elected” representative authorized “to act for and to negotiate agreements covering all employees in the unit,” including through the use of large teams in negotiations sessions.  Further, it is hard to see how the Association’s designation of its Bargaining Council as part of its negotiations team is even in conflict with the Board’s proffered definition of “designate,” that is, “to indicate or specify. ”  Again, the Board has not met its burden on appeal, and its appeal must be dismissed.
[brief] 4  Legal Argument ..................................................................................................  9  I.  THIS LAWSUIT MUST BE DISMISSED WITH PREJUDICE BECAUSE PLAINTIFF FAILED TO SUBMIT AN AOM FROM AN APPROPRIATE LICENSED PERSON (Da306-325)  ...........................................................................  9  II.  [...]’ AOM DEMONSTRATES THAT THIS LAWSUIT SHOULD BE DISMISSED WITH PREJUDICE PURSUANT TO NEW JERSEY’S COVID-19  IMMUNITY STATUTE (Da306-325)  .............................................................................  18  Conclusion ...........................................................................................................
[brief] Under Point III, Plaintiffs argue that the Trial Court erred when it failed to conduct a factual hearing prior to enforcing the parties' arbitration agreement.  However, Plaintiffs are misguided.  The question of whether an arbitration clause is enforceable is not factual in nature, but is instead a legal question.  See Hirsh v. Amper Fin. Servs. LLC, 215 N.J. 174, 186 (2013).  Additionally, “a state cannot subject an arbitration agreement to more burdensome requirements than those governing the formation of other contracts. ”  Leodori v. CIGNA Corp., 175 N.J. 293, 302, certif. denied, 540 U.S. 938 (2003).  The strong presumption in favor of arbitration limits a court’s analysis on a motion to compel arbitration to two questions: (1) whether the parties agreed to arbitrate (i.e., whether they assented to the arbitration contract); and (2) if so, whether the agreement encompasses the asserted claims (i.e., whether the claims asserted are within the scope of the arbitration contract).  Chiron Corp. v. Ortho Diagnostics Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000); Bruni v. Didion, 160 Cal. App. 4th 1272, 1283 (2008).  In short, the two considerations are mutual assent and scope, and once the court finds that both are satisfied (as they are here), it must compel arbitration.
[directive] This is to inform you that, as a person convicted of Eluding pursuant to N.J.S.A. 2C:29-2b, your driver’s license is suspended for a period of [6 months to 2 years], effective today.  In addition, if during the period of suspension you are convicted of personally operating a motor vehicle, you will be subject to the penalties set forth in N.J.S.A. 39:3-40:  Upon conviction for a first offense, a fine of $500; Upon conviction for a second offense, a fine of $750, and imprisonment in the county jail for at least 1 day but not more than 5 days; Upon conviction for a third offense or subsequent offense, a fine of $1,000, and imprisonment in the county jail for 10 days.  In addition, under certain circumstances, conviction for a first, second, third or subsequent offense could result in revocation of your motor vehicle registration privilege and/or an additional period of your driver’s license suspension.  You have also been informed of the above consequences orally in open court by the Judge.
[brief] See Nuckel v. Little Ferry Planning Bd., 208 N.J. 95, 103 (2011).  In addition to the (d)(1) use variance for the accessory uses, Plaintiff also sought a bulk variance under N.J.S.A. 40:55D-70(c) for the reduction of parking spaces from the required 1,148 to 604.  Ja030; 1T 36:14-19.  A brief review of the Resolution gives the impression that the application before Defendant was a (d)(6) height variance, rather than a (d)(1) use variance and bulk variance for a reduction of 544 parking spaces.
[brief] However, older cases are instructive on the burden to prove that an "easement" was intended.  For example, in East Jersey Iron Company v. Wright, 32 N.J. Eq. 248 (Ch. 1880), the issue was whether a document which granted to a mining company the exclusive right to place equipment and mine iron ore was an easement or a revocable license.  The Court found that the original document, being permissive and executory, was not an easement but a personal privilege - a license.