ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] The court rejected [...]'s argument that she should not be personally liable for any actions taken in her official capacity, holding that state officials, sued in their individual capacities, are 'persons' within the meaning of section 1983 and qualified immunity does not shield them from individual capacity suits.  *Id.*  Here, the County government official who threatened plaintiff and placed her in fear of bodily harm was similarly not protected by any immunity.  Plaintiff also clearly alleged cognizable claims under 42 U.S.C. § 1983, because she showed that the defendants engaged in violations of her rights that are secured by the Constitution and other laws of the United States while acting under color of law.  See *Bernstein v. State*, 411 N.J. Super. 316, 335 (App. Div. 2010) (citing *Kollar v. Lozier*, 286 N.J. Super. 462, 473 (App. Div. 1996).  To ascertain whether a governmental official, such as the prison Nurse is entitled to qualified immunity, requires inquiries into whether: (1) the facts, "[t]aken in the light most favorable to the party asserting the injury[ ] ... show the actor’s conduct violated a constitutional right"; and (2) that constitutional "right was clearly established" at the time that defendant acted.  *Saucier v. Katz*, 533 U.S. 194, 201 (2001).  The 'clearly established law' requirement... obligates a court to judge an official's conduct based on the state of the law and facts that existed at the time of the alleged statutory or constitutional violation."  See *Schneider v. Simonini*, 163 N.J. 336, 354-55 (2000), (citing *Anderson v. Creighton*, 483 U.S. 635, 639 (1987).  Either of the two prongs may be considered first.  *Morillo v. Torres*, 222 N.J. 104, 118 (2015).  Plaintiff’s constitutional rights regarding all her entitlements were firmly established at the time that the defendants acted.  Here, the law and facts as they existed at the time regarding all omissions and deprivations are in the plaintiff’s favor.  Plaintiff has shown that her severe emotional distress as well as the injuries to her constitutional and civil rights were proximately caused by the defendants’ negligent, wanton and reckless care while acting under color of law.
[brief] 6T 97:22-98:2.  [...] also addressed the conditions that might be imposed under the Sica standards and suggested lowering the stories, FAR (number of units) and the density would be conditions that could make a difference.  6T 106:11-20.  [...] criticized the facilities/locations used by [...]’s experts by cherry picking different facilities to compare and removing senior living facilities in closer towns.  6T 11:24-112:16.  Each of [...]’s professionals used different properties to justify their conclusions.
[brief] See R. Doc. 18.  The Amended Complaint added [...] as a defendant and asserted claims for (i) Breach of Employment Agreement, (ii) Misappropriation of Confidential Information and Trade Secrets, (iii) Unfair Trade Practices, (iv) Conversion, (v) Breach of Fiduciary Duty, (vi) Conspiracy, (vii) Violation of the Computer Fraud and Abuse Act, and (viii) Violation of the Federal Stored Communications Act.
[brief] The Trial Court Failed to Engage in the Required Yarbough/Torres Analysis Before Imposing Consecutive Sentences.  Additionally, the trial court erred by making the ten-year term on Count Four consecutive to the life-term imposed on Count One without first engaging in the required analysis.  It is well-established that when a court imposes consecutive or concurrent sentences, it is required to thoroughly explain that decision by analyzing certain factors.  See State v. Yarbough, 100 N.J. 627, 643-44 (1985).  Those factors include whether: (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; [and] (e) the convictions for which the sentences are to be imposed are numerous[.]  [Ibid.]  In addition to analyzing the enumerated *Yabrough* factors, “[a]n explicit statement[] explaining the overall fairness of a sentence imposed on a defendant for multiple offenses” is essential to a proper *Yarbough* sentencing assessment.  *State v. Torres*, 246 N.J. 246, 268 (2021).  When a trial court fails to consider the overall fairness of an aggregate sentence, such failure “not only undermines *Yarbough’s* goal of promoting predictability and uniformity in sentencing, but also risks deviating from the Legislature's command that the Code be construed so as to ‘safeguard offenders against excessive, disproportionate or arbitrary punishment. ’”  Id. at 272-73 (citing N.J.S.A. 2C:1-2(b)(4)).  Here, in imposing the consecutive term, the sentencing court did not conduct an analysis of the *Yarbough* factors or consider the overall fairness of the sentence imposed under *Torres*.  The only mention of *Yarbough* dealt with the imposition of certain concurrent terms, where the trial court stated:  I do find that just for purposes of the record, although Counts 5 and 6 involve different victims, it was in fact the same act of firing the weapon.  And in reviewing the elements of *State v.[.] Yarbough[.]* 100 NJ 627 (1985), this defendant, for these two counts, should not be made to run consecutively.  [(11T64-25 to 65-5). ]  The trial court then went on to say that it was making Count Four consecutive to the murder count for an aggregate minimum sentence of 63.75 years.  Because this sentence is the functional equivalent of life without the possibility of parole, it is especially imperative that an appropriate analysis be conducted before imposing it.  For this reason too, then, [...]’s sentence must be vacated and remanded for a reevaluation of the imposition of consecutive terms.
[brief] For the forgoing reasons, Counsel for [...] and the [...] Planning Board (pleaded as Township Holland and its Planning Board), respectfully submits that the Order of the Trial Court denying Plaintiff’s Motion for Entry of Default Judgment against [...] and dismissing the First Amended Complaint as to [...] for failure to state a claim upon which relief may be granted be affirmed.  Respectfully submitted, /s/[...]  JOHN P. GALLINA  Attorney for Defendants/Respondents  [...] and the [...] Planning Board  Dated: November 16, 2022  BRIEF OF DEFENDANT-RESPONDENT
[brief] THE COURT BELOW ERRED IN ITS INTERPRETATION OF EMINENT DOMAIN LAW AND BY CREATING NEW LAW THAT HAS NO SUPPORT IN NEW JERSEY JURISPRUDENCE.  [Da9-Da11; Da12-Da13]**  “Eminent domain is the power of the State to take private property for public use.  . . .  It is a right founded on the law of necessity which is inherent in sovereignty and essential to the existence of government[.]”  *Twp. of W.*  Orange v. 769 Assocs., LLC, 172 N.J. 564, 571 (2002) (quotation omitted); see also State v. Lanza, 48 N.J.  Super. 362, 369-70 (Law Div.1957) (noting that eminent domain is an inseparable attribute of sovereignty that has been allotted to the legislative branch since the time of the Magna Carta), aff’d, 27 N.J. 516 (1958).  The New Jersey Constitution Article I, ¶ 20 recognizes that private property may be condemned for “public use. ”  The EDA establishes the procedures that govern eminent domain actions.  N.J.S.A. 20:3-6.  “Ordinarily where the power to condemn exists the quantity of land to be taken as well as the location is a matter within the discretion of the condemnor. ”  Tex. E. Transmission Corp. v. Wildlife Pres., Inc., 48 N.J. 261, 269 (1966); see City of Trenton v. Lenzner, 16 N.J. 465, 473 (1954).  Moreover, “[i]t is well-established that a reviewing court will not upset a municipality’s decision to use its eminent domain power ‘in the absence of an affirmative showing of fraud, bad faith or manifest abuse. ’”  Mt. Laurel Twp. v. MiPro Homes, LLC, 379 N.J. Super. 358, 375 (App. Div. 2005) (quoting Twp. of W. Orange, 172 N.J. at 571).  “Courts will generally not inquire into a public body’s motive concerning the necessity of the taking. ”  Ibid. (quoting Borough of Essex Fells v. Kessler Inst. for Rehab., Inc., 289 N.J. Super. 329, 337 (Law Div.1995)).  A.
[brief] *Easton v. Mercer*, 2015 N.J. Super. Unpub. LEXIS 1755.  To prove fraud about intent to have children with a prospective spouse, the party seeking annulment must show by clear and convincing evidence that the spouse misrepresented a desire to have children, when the intent not to have children was actually fixed prior to the marriage.  *Tabon* at 474.  Additionally, misrepresentation or concealment of a fact may well serve as the basis for claiming fraud as to the essentials of the marriage.  Patel at 411 (citing to Tobon v. Sanchez 213, N.J. Super 472 (Ch. Div. 1986).  However, in distinguishing types of fraud, the court in Carris, clearly held that false representations in regard to family, fortune, or external condition are not sufficient in degree to justify the court exercising its power to annul a marriage for the public policy consideration that a court should only exercise that power in cases when the fraud is of an extreme nature.  Id. (citing Carris v. Carris, 24 N.J. Eq. 516 (E. & A. 1873)).
[brief] *Marshall*, 148 N.J. 89, 155-56 (1996); see also *State v. Knight*, 145 N.J. 233, 247 (1996) (adopting the *Bagley* standard).  Thus, “[i]n all instances, evidence is material for *Brady* purposes ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. ’”  *Id.* at 156 (quoting *Bagley*, 473 U.S. at 682).  “A ‘reasonable probability’ is one that is ‘sufficient to undermine confidence in the outcome. ’”  *Martini*, 160 N.J. at 269 (quoting *Bagley*, 473 U.S. at 682).  The evidence need not be of the sort that would have resulted in the defendant’s acquittal, but it does have to make the guilty verdict one that the court no longer has confidence in.
[brief] Plaintiff conveniently skips over the most relevant portion of his testimony, when he was presented with [...] 314-315, marked at his deposition as exhibit D-4, in which Plaintiff was copied on an e-mail and a letter that stated “This letter is to serve as notice that you have one week to complete all patient documentation.  There are 257 delinquent charts dating back to December 2013.  Of the 81 physicians who have 257 delinquencies, 14 of you are responsible for 128, 50 percent of all delinquencies… if delinquencies remain, [[...]] will be forced to report your incomplete records to the Board of Medical Examiners. ”  See Da74 at 61:1-62:15, and Da162. (emphasis in original).
[directive] Collection of information in intelligence systems  1.  A criminal justice agency may collect information for placement in an intelligence system only if the following conditions are met: a. the information concerns an individual, group, or entity that trained personnel in the agency reasonably suspect of criminal activity, and b. the information does not reference the subject’s participation in or association to a political, religious, or social organization unless there is reasonable suspicion to believe that the participation is tied to criminal activity, and c. the information is collected lawfully.  2.  Law enforcement collection under these policies does not permit maintaining files on individuals solely for the purpose of monitoring activities protected by the First Amendment or the lawful exercise of any other rights secured by the Constitution or laws of the United States.  C.
[directive] Force.  Shall have the same meaning as defined in the Attorney General’s Use of Force Policy.  The term “force” shall include physical, mechanical, enhanced mechanical, and deadly force.  Investigation of a criminal offense.  Any police activity pertaining to the investigation of an indictable crime, disorderly persons offense, or petty disorderly offense, including but not limited to responding to a report of a possible criminal offense; an investigative detention based on or leading to reasonable and articulable suspicion to believe that a criminal offense has been or is being committed; an arrest for a criminal offense; an interview of a potential witness to a criminal offense; or canvassing an area, neighborhood, or premises for potential witnesses to a criminal offense.
[brief] The present matter was initiated by way of a Complaint filed by Appellant on January 14, 2021 alleging a cause of action under the Federal Employers’ Liability Act, 45 U.S.C. § 51 ("FELA").  An answer was filed by [...] on April 21, 2021.  Discovery closed on October 23, 2022.  The parties attended Non-Binding Arbitration on April 18, 2023.  Respondents filed for trial de novo on May 12, 2023.
[brief] April 29, 2024  TABLE OF CONTENTS  PROCEDURAL HISTORY ...........................................................................................................  1  STATEMENT OF FACTS .........................................................................................................  3  LEGAL ARGUMENT  ..................................................................................................................  7  POINT  I BECAUSE THE SHOOTING WAS IMMEDIATELY PRECEDED BY A PHYSICAL ALTERCATION BETWEEN MR. LANE AND THE TWO VICTIMS, ONE OF WHOM WAS ARMED WITH A LOADED HANDGUN, THE TRIAL COURT ERRED IN REFUSING TO INSTRUCT THE JURY ON PASSION/PROVOCATION
[brief] EEOC v. L.B. Foster Co., 123 F.3d 746, 753 (3d Cir. 1997), cert. denied 522 U.S. 1147 (1998).  The record sufficiently establishes such inconsistencies, including [...]’ improper attempt during her deposition to disentangle herself from the decision to suspend Plaintiff, and the Township Administrator’s proper designation of that action as a suspension and not as it was improperly characterized by Defendants as ‘administrative leave’.  Yet, the burden-shifting approach is unnecessary where a plaintiff has direct evidence of retaliatory intent.
[brief] [...] specially held:  There is no viable claim for spoliation of evidence as to the videotape.  There was no -- the Court notes there was no request for preservation of the evidence.  Further, there was no reasonable basis in this Court’s mind to believe that the video showing operation of the U-boat by [...], if that’s his name, as he traversed the store before the incident was relevant, which would have placed [...] in a position of understanding, it should have preserved that.  That is, [...], the facts demonstrate they met with the Plaintiff shortly after the incident, within moments of the incident, apparently, reviewed to see what they could find.  They did not find the moment of incident and had no awareness of a necessity to preserve beyond that.  The Court doesn’t find that to be unreasonable.  So I don’t find that they would have breached any duty in that regard.
[brief] **CONCLUSION**  Plaintiff respectfully requests that this court:  1.  **Reverse the Trial Court’s Decision:**  Vacate the trial court’s order of March 1, 2024, which dismissed the case with prejudice, as this decision was based on a distortion of facts and procedural errors.  2.  **Reassign the Case:**  Assign the case to a different judge to ensure a fair and impartial review, given the trial court’s prior errors and potential bias.  3.  **Compel the Release of Concealed Documents:**  Order defendants to release all documents that have been fraudulently concealed or improperly withheld, as these documents are essential to plaintiff's case.  4.  **Reconsider Representation Options:**  Either designate an attorney to represent plaintiff or permit plaintiff to continue the case pro se.  This is necessary to ensure that plaintiff can adequately pursue the claims and seek justice.  By taking these actions, the court will help resolve the dispute, hold defendants accountable for their conduct, and uphold justice in the community.
[brief] Because the new findings in the Appellant’s MRIs following the 2019 MVA were causally linked by the expert, [...] in his report, there is objective evidence of a Category 6 permanent injury that has been causally linked to the accident and should have been sufficient within itself to overcome the verbal threshold.  One of the six categories under the Automobile Insurance Cost Reduction Act (“AICRA”) required to satisfy the verbal threshold is “permanent injury” or Category 6 under N.J.S.A. 39:6A-8.  Thus, a plaintiff must prove by “objective credible evidence” Juarez v. J.A. Salerno Sons, Inc., 886 A.2d 178, 185 N.J. 332 (2005) (citing N.J.S.A. 39:6A-8(a)).
[brief] While the trial court was wrong in holding Plaintiff was not disabled for purposes of the NJLAD, it was certainly suspicious of Defendant’s behavior.  Defendant’s bad acts provide relevant context for this Court’s review.  First, the temporal proximity of termination demonstrates a casual connection.  Plaintiff was terminated within two hours of expressing her concerns.  The temporal proximity between Plaintiff’s conduct and the adverse employment action is unusually suggestive of retaliatory motive and thus a causal link may be inferred.  See Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d 245, 258 (3d Cir. 2014).  Plaintiff was immediately and without question terminated for sending the email:  “Dear Leadership, Since we have the ability to efficiently work remotely, requiring us to come into the office during a pandemic unnecessarily risks our health. ”  The trial court found it “pretty obvious and any reasonable juror would conclude that they didn’t like her response and they fired her because she was not coming back to work. ”  T33:5-7.  Defendant claimed Plaintiff’s termination was justified, characterizing this March 13th email as a “demand”, an “ultimatum” and/or “insubordination. ”  This proffered reasoning is unworthy of belief.  First, the context of this email does not support Defendant’s position.  Although more than three years have passed since our nation was first introduced to the COVID-19 pandemic, we cannot forget those first weeks of fear, uncertainty and panic.  News sources covered the pandemic constantly, flooding its viewers with information on the cause, symptoms, spread, and devastating toll of this pandemic worldwide.  Plaintiff was justifiably concerned and felt strongly that her employer was aware of those concerns.  Defendant never followed up with Plaintiff to discuss the intent of this email before qualifying it as “insubordination” and terminating her immediately.  This is of particular concern since [...] did not know Plaintiff to be a demanding, insubordinate employee.  Rather, she was a good employee, with no history of insubordination.  Pa200, PSOF ¶5-6.  The baseless qualification was completely juxtaposed to her prior work history and character.  Finally, the other signatories of this email were initially terminated alongside Plaintiff but almost immediately offered their jobs back.8  Pa211, PSOF ¶67-70.  [...] never contacted Plaintiff.  If Defendant genuinely viewed this communication as an insubordinate demand, it is nonsensical that it would extend --- 8  The trial court stated, “In my view [Defendant] may have retaliated against her separately from the other five because I think there’s a genuine issue of material fact—as to whether the proffered reason as to why they didn’t offer her reemployment was pretextual. ”  T33:7-13.  But concluded that as Plaintiff did not fall within any protected category she could not pursue her NJLAD claims.
[brief] It is uncontested that, as of that date, Plaintiff had yet to produce an expert report establishing the standard of care applicable to [...], that he breached that standard, and that the brief caused Plaintiff’s injury.  Consequently, Plaintiff did not establish a valid cause of action for medical malpractice.  In general, expert testimony is required whenever a subject is so esoteric that the average juror, of common judgment and experience, cannot form a valid conclusion in the absence of expert guidance.  *Hopkins v. Fox & Lazo Realtors*, 132 N.J. 426, \(^1\)  This discounts the possibility that Plaintiff could assert a medical malpractice case without an expert’s opinion, under the “common-knowledge exception. ”  See, *Estate of Chin v. St. Barnabas Med. Ctr.*, 160 N.J. 454, 469 (1999).  This exception has not been advanced by Plaintiff.  450 (1993); Ford Motor Credit Co., LLC v. Mendola, 427 N.J. Super. 226, 236 (App. Div. 2012).  This is so because a jurors should not be allowed to speculate in an area where laypersons have insufficient knowledge or experience, which they would be doing if they were to act without expert testimony.  Taylor v. DeLosso, 319 N.J. Super. 174, 180 (App. Div. 1999).  In this case, Plaintiff’s complaint asserts that [...] committed malpractice in the treatment of Plaintiff, given her medical history, her then-current condition, and her medication regimen.  However, the average lay juror could not be expected to know the proper post-operative treatment of Plaintiff, given her medical condition, and the fact that such medical knowledge is well beyond the common knowledge of lay people.  ---
[brief] 2, 6, 18  TABLE OF JUDGMENTS, ORDERS AND RULINGS  Order Granting Defendants’ Motion to Dismiss filed October 20, 2023  …Pa155  Order Denying Plaintiff’s Cross Motion to Vacate Default Judgment, to Transfer, and to Consolidate filed October 20, 2023……………Pa157  PRELIMINARY STATEMENT  “No person shall engage in business as a consumer lender or sales finance company without first obtaining a license or licenses under this act. ”  N.J.S.A. 17:11C-3(a).  A consumer lender who violates or participates in the violation of any provision of section 3 . . . of this act, shall be guilty of a crime of the fourth degree.  A contract of a loan not invalid for any other reason, in the making or collection of which any act shall have been done which constitutes a crime of the fourth degree under this section, shall be void and the lender shall have no right to collect or receive any principal, interest or charges.  . . .”  N.J.S.A. 17:11C-33(b) (emphasis added).  It is undisputed that Defendants [...], [...], [...], [...], and [...] were not licensed pursuant to the New Jersey Consumer Finance Licensing Act (“NJCFLA”) when they attempted to take assignment of the [...] account.
[brief] SECTION 1.  Chapter 230 “Land Use and Development Regulations”, Section 230-54 “Terms defined”, of the Code of the [...] is hereby amended, for the following terms only, to read as follows:  §§ 230-54  Terms defined.  For purposes of this chapter, the following phrases and words shall have the meanings indicated.  AGRICULTURAL ACTIVITIES  The production, principally for the sale to others, of plants, animals or their products, including, but not limited to, forage and sod crops; grain and feed crops; dairy animals and dairy products; livestock and pastoral farm animals and fowl, including dairy and beef cattle; poultry, sheep, horses, ponies, mules and goats; grapes, nuts and berries; vegetables; nursery, floral, ornamental and greenhouse products and other commodities as described in the Standard Industrial Classification for agriculture, forestry, fishing and trapping.  Agriculture shall not include intensive poultry or swine production or extensive animal feedlot operations.  ALTERNATIVE TREATMENT CENTER (ATC)  The permitted alternative treatment center authorized to grow and provide registered qualifying patients with medicinal marijuana and related paraphernalia in accordance with the provisions of the Compassionate Use Medical Marijuana Act (CUMMA).