ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] After Defendants moved to dismiss the Complaint, on September 21, 2022, the Trial Court dismissed Count 1 because Defendants are not lenders, and the Contracts are not usurious.  The Court also dismissed Count 2 because Defendants did not violate RICO.  The Trial Court permitted Plaintiff additional time to conduct discovery regarding Counts 3, 4 & 5, which they did not do because discovery had already ended.  On December 23, 2022, the Court dismissed Counts 3 (TCCWNA) and 4 (CFA) because Defendants did not illegally lend money, violate any laws and did not commit an unconscionable commercial practice.  The Court also found that Plaintiff was not an aggrieved consumer.  The Plaintiff consented to dismiss Court 5 and as to the individual Defendants.  Defendants also moved for summary judgment based upon equitable estoppel, fraud and/or unclean hands but the Court did not address these arguments because the Court was already dismissing the Complaint.  Defendants did not file a cross appeal.  For all of the reasons in the December 23, 2022 Order, and those set forth below, Defendants ask this Court to affirm the Trial Court’s decision in its entirety, including for equitable estoppel, fraud and/or unclean hands.  PROCEDURAL HISTORY
[brief] Applying the proper legal standards, there is no dispute of fact over whether “the alleged fraud in question was within the public domain” because [...]’s action was based upon VRDO transactional data disclosed through MSRB SHORT, regardless of whether [...] expended “extensive efforts and financial investment” in analyzing that data.  4T at 34:21–24.  **D.  The VRDO Transactional Data Used By [...] Was Publicly Disclosed Through Three Qualifying “News Media” Sources.
[directive] L.  Non-Binary: A term often used by people whose gender is not exclusively male or female.  The term also captures those with more than one gender or with no gender at all.  Individuals whose gender is neither male nor female may use other terms to describe themselves, such as gender fluid, agender, bigender, or gender expansive. M. Queer: A term that, although pejorative when used with intent to insult (historically and at present), is increasingly used by members of the LGBTQ+ community as a broad umbrella under which sexual and gender minorities may identify.  N. Questioning: A term some people use when they are in the process of exploring their sexual orientation or gender identity.  O.
[brief] ”  Pb11-12, emphasis added.  The record makes so exceedingly clear that an overriding motive for [...] seeking FAR and d(1) use variances was not site suitability, but profit margins, that the Trial Court opined:  “Plaintiff argues that 0.35 FAR severely limits achieving a viable development on the property.  Plaintiff has also argued the cost of the remediation makes development of a less intense development not financially viable.  It appears to the court that the FAR is driven by the remediation cost ...  If the remediation is removed from the equation, meaning the property owner completes the remediation and repairs the damage to the neighbor’s property what is left?  ...The applicant is in essence financing its environmental obligations on the backs of the neighbors whose properties the owner has contaminated.  This is not a prong of a positive criteria.  Nor is it a basis to approve the variances, facts which the Board recognized. ”  Pa30, emphasis added.
[brief] JUDGMENTS, ORDERS AND RULINGS BEING APPEALED  Denial Of Motion To Limit Firearm Identification Testimony .................................................................  5T 123-10 to 128-14  Decision Limiting Evidence of Third-Party Guilt ..............................................  9T 70-2 to 75-6, 13T 4-1 to 12-18  Decision Denying Alibi Charge .................. 13T 57-12 to 71-10; 14T 8-4 to 13-15  Final Jury Charge .......................................................  14T 116-14 to 178-18  Sentencing Decision ....................................................  17T 22-14 to 42-14  Judgment of Conviction ...........................................  Da 1027-1030
[brief] Almost all cases dealing with whether a perpetual easement was created by an instrument arose in the context of the interpreting an old Deed, many from the 1800s.  See e.g., Sergi v. Carew, 18 N.J. Super. 307 (Ch. Div. 1952); Camp Clearwater Inc. v. Plock, supra; Leasehold Estates Inc. v. Fulbro Holding Co., 47 N.J. Super. 534 (App. Div. 1957).  As noted earlier, the problem has decreased because of zoning approval requirements and as noted in Pilar v. Lister Corp., 38 N.J. Super. 485, 499-500 (App. Div. 1956), aff. 22 N.J. 79 (1957):
[brief] THE TRIAL COURT’S DECISION TO DISMISS PLAINTIFF’S COMPLAINT  BECAUSE THE RECORD DOES NOT SUPPORT A PRIMA FACIE CEPA CLAIM WAS, IN ALL RESPECTS, CORRECT AS A MATTER OF LAW.  .........................................................................................................................34  A.  The Trial Court Properly Found That Plaintiff Failed to Show A Causal Connection Between Her Alleged Protected Activity and Any Cognizable Adverse Actions.  .................................................................34  1.  The Lack of Temporal Proximity Between Plaintiff’s Complaint And Any Cognizable Adverse Action Negates Any Inference of Causation.  .........................................................................................36  2.  The Evidence In The Record, When Viewed As A Whole, Negates Any Inference Of Causation.  .........................................................38  a.  Plaintiff Was Treated The Same As Her Peers...........38  b.  [...] Offered Plaintiff Several Positions in an Attempt to Retain Her.  .........................................................................................39  c.  The Decision-Maker, [...], Had No Knowledge of Plaintiff’s Alleged Protected Activity.41  d.  Plaintiff Cannot Point to Anyone Who Retaliated Against Her Due to Her Complaints, Which Negates Any Inference Of Causation.  .........................................................................................41  3.  Plaintiff’s Causation Arguments Are Not Supported By Record Evidence.  .........................................................................................43  B.  Plaintiff Admits That Her Removal From The Schedule Due To A Fingerprinting Error Was Not An Adverse Employment Action.  ...........................................................................................................44  C.  Plaintiff’s Allegations That Other Staff Did Not Want To Work With Her Was Not An Adverse Employment Action.  .........................45  POINT III..................................................................................................................................................................................45  THE TRIAL COURT CORRECTLY GRANTED SUMMARY JUDGMENT BECAUSE PLAINTIFF FAILED TO SHOW THAT [...]’S LEGITIMATE, NON-RETALIATORY REASONS WERE PRETEXTUAL.
[brief] ’ ”  Brundage, supra, 195 N.J. at 601 (quoting Jannarone v. W.T. Co., 65 N.J. Super. 472, 476 (App. Div.), certif. denied 35 N.J. 61 (1961)).  When faced with a settlement agreement, “‘absent a demonstration of ‘fraud or other compelling circumstances,’ a court should enforce a settlement.  Capparelli v. Lopatin, 459 N.J. Super. 584, 603-604 (App. Div. 2019) (quoting Jennings, supra, 381 N.J. Super. at 227).  See also Honeywell v. Bubb, 130 N.J. Super. 130, 136 (App. Div. 1974).  Of course, “[i]f a settlement agreement is achieved through coercion, deception, fraud, undue pressure, or unseemly conduct, or if one party was not competent to voluntarily consent thereto, the settlement agreement must be set aside. ”  Peskin v. Peskin, 271 N.J. Super. 261, 276 (App. Div. 1994).  Furthermore, a written release is not necessary to enforce a settlement as it is “a mere formality, not essential to formation of the contract of settlement.
[directive] See Post-charge diversion by prosecutors.  The mere fact that a law enforcement officer has • filed charges against a juvenile does not preclude the possibility of diverting the youth into other programs more conducive to rehabilitation.  As a juvenile matter proceeds, prosecutors can—and should—continually evaluate the case to determine whether diversion would better accomplish the goals of the juvenile justice system over formal court proceedings.  A prosecutor may consider, among other things, dismissing the complaint in favor of a stationhouse adjustment or referring the case to diversionary programs operated by the judiciary, including the Intake Service Conference, the Juvenile Conference Committee, or the Family Crisis Intervention Unit.  Section VIII.
[directive] Any agency receiving a subpoena, court order, or request pursuant to the Open Public Records Act, or the common law right to know, for a BWC recording shall, within one business day of receipt of such subpoena, court order, or request, and before complying with it, provide notice to the County Prosecutor, or to the Division of Criminal Justice where the recording was made by a state-level law enforcement agency.  Such notice shall state clearly the deadline by which a response must be made.  12
[brief] Docket No. [...]  Criminal Action: On appeal from a final order of conviction in the Superior Court of New Jersey, Law Division, Ocean County Sat  Below:  Hon. [...], J.S.C.  Appellant is not confined.  Honorable Judges:  Pursuant to R. 2:6-2(b) and R. 2:6-4(a), this letter in lieu of a formal brief is submitted on behalf of the State of New Jersey.  [...], Esq.  Assistant Prosecutor ID#000602001  [...]  TABLE OF CONTENTS  STATEMENT OF PROCEDURAL HISTORY .........................................................  1 STATEMENT OF FACTS ..............................................................................  4 LEGAL ARGUMENT ..................................................................................
[brief] [...] is an employee of defendant [...] working as an electrician out of [...].  (53a).  On January 19, 2018, [...] was working in his capacity as an electrician for [...] at the [...], waiting to board a train back to [...].  (54a).  A homeless woman, [...], approached [...] and asked for a cigarette, however [...] told her he did not smoke.  (54a).  [...] left the area, however she returned shortly thereafter and struck [...] from behind in the back of the head while he was waiting to board the train, causing him to fall forward onto the train.  (55a).  [...] was taken away by EMS as a mentally disturbed person.  (96a).  [...] rode the train back to Hoboken and reported the incident to his supervisor.  (58a).  He then went to [...] for treatment.  (58a).  He has since had multiple cervical surgeries and has not returned to work for [...].  (60a).
[brief] The Apex Doctrine Does Not Apply  [...] has also raised the “apex doctrine” as a reason to hold off on or refuse production of [...]’s and [...]’s custodial files, but it is inapt.  The apex doctrine does not apply to this dispute, which concerns whether senior executives [...] and [...] should be added as document custodians.  See e.g. Alta Devices, Inc. v. LG Elecs., Inc., No. 18-cv-00404-LHK-VKD, 2019 WL 8757255, at *1 (N.D. Cal. Feb. 20, 2019) (disagreeing “that simply because a prospective custodian happens to be a senior executive, such custodian is not subject to collection of responsive ESI. ”); Blankenship v. Fox News Network, LLC, No. 2:19-CV-00236, 2021 WL 2345972, at *3, n. 5 (S.D.W. Va. June 8, 2021) (the apex doctrine “typically applies only to protect senior executives from attending costly and distracting depositions rather than from merely collecting and producing documents. ”) (citation omitted); Rosinbaum v. Flowers Foods, Inc., 238 F. Supp. 3d 738, 749 (E.D.N.C. 2017) (“In no case of which the court is aware has the apex doctrine successfully been invoked to shield an executive from a request for production of documents.
[brief] ”  Curry v. Curry, 108 N.J. Super.527, 530 (App. Div. 1970).  It is more difficult to vacate a divorce judgment after a signed settlement agreement has been entered into.  Marital agreements are presumed to be valid and the state has a public policy to enforce agreements entered into between divorcing spouses.  However, only those agreements that are “fair and just” will be enforced.  *Petersen v. Petersen*, 85 N.J. 638, 642 (1981).  A spousal agreement may be reformed when it is “unconscionable” or when “it is the product of fraud or overreaching by a party with power to take advantage of a confidential relationship,” *Dworkin v. Dworkin*, 217 N.J. Super. 518, 523 (App.Div.1987), or when, due to “common mistake [ ] or mistake of one party accompanied by concealment of the other, the agreement fails to express the real intent of the parties”.
[brief] *Id.* at 267 ([...], C.J., dissenting) (noting that “[s]earch of the car should be permitted only when the failure to produce the registration and the other relevant circumstances establish probable cause that the car is stolen.  Absent such evidence, further detention for investigation would be justified if the *Terry* reasonable suspicion test was met”) (emphasis added); see also *Arizona v. Hicks*, 480 U.S. 321, 327 (1987) (noting that “[d]ispensing with the need for a warrant is worlds apart from permitting a lesser standard of cause for the seizure than a warrant would require, i.e., the standard of probable cause").  In sum, the search of the car under the registration exception to the warrant requirement was unlawful.
[brief] In summarizing the specific finding which rejected Plaintiff’s circumstantial evidence argument, the trial court stated as follows:  And the Court believes circumstantial evidence could be sufficient to submit to a jury.  But we don’t even have that here.  We don’t have that next step.  Was there negligence and was it the proximate cause?  Yeah.  Just because it was negligence on the job site has nothing to do with this particular case.  At least there’s no evidence of that sufficient to go to a jury.  2T24–17 to 24  Thus, even after considering cases not cited in the original opposition to [...]’s motion for summary judgment, the trial court still ruled that Plaintiff had not satisfied the standard for reconsideration.
[brief] ....................25  TIG Ins. Co. v. Joe Rizza Lincoln-Mercury, Inc. 00 C 5182, 2002 WL 406982 (N.D. Ill. March 14, 2002)  ........16  TIG Specialty Ins. Co. v Pinkmonkey.com, Inc., 375 F.3d 365 (5th Cir. 2004)  ..................................20  U.S. Fid. & Guar. Co. v. Fireman’s Fund Ins. Co. 896 F.2d 200 (6th Cir.  1990)  ...........................................15  Vermont Mutual Ins. Co. v. Poirier, 189 N.E.3d 306 (Mass. 2022)  ...........................................18
[brief] Driscoll v. Burlington-Bristol Bridge Co., 8 N.J. 433 , 493, 86 A.2d 201 (1952), cert. den., 344 U.S. 838, 73 S.Ct. 25, 97 L.Ed. 652 (1952).  Personal service is a prerequisite to achieving \textit{in personam} jurisdiction, unless R. 4:4-4(a)(2) or R. 4:4-4(e) alternatives have been properly employed.  See Restatement, Judgments 2d, §§ 2, 3 (1982).  It is clear that a court cannot exercise its power to the detriment of a litigant when \textit{in personam} jurisdiction has not been established, and that such action would violate the Due Process Clause.  See, e.g., Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988); Berger v. Paterson Veterans Taxi, 244 N.J. Super. 200, 204-05 (App. Div. 1990)  When a court is satisfied on a R. 4:50-1(d) application that initial service of process was so defective that the judgment is void for want of in personam jurisdiction, the resulting void default judgment must ordinarily be set aside.
[brief] Appellants relied on Advisory Opinion 36-17 (2018) which clearly states “newly elected, as well as currently seated Board members ... [are] bound by and charged with understanding and complying with the ethical standards set forth in the Act. ” (Ca236-239).  The Commission failed to abide its prior jurisdictional holding without giving Appellants notice or an opportunity to be heard on this issue.  The Commission also ignored clear evidence in the record that plainly cured this jurisdictional issue by showing that this noxious post was still public and available well into Respondent’s term as a Board member, and actually compromised the Board.  (Ca290; Ca097-098).  That being the case, Appellants respectfully request that the Appellate Division reverse the Commission’s dismissal of Count 7 as to N.J.S.A. 18A:12-24.1(e).
[brief] THERE IS NO EXPERT TESTIMONY REQUIREMENT FOR DIMINISHED CAPACITY, AND THE TRIAL COURT’S REASONING FOR DENYING THE INSTRUCTION WAS AN ABUSE OF DISCRETION.  In responding to Point II, the State declines to rely on two of the trial court’s faulty reasonings for failing to include a diminished capacity charge: (1) that the murder model charge sufficiently covered the mens rea issue and (2) that the failure to invoke a not-guilty-by-reason-of-insanity defense precluded instructing on diminished capacity.  As discussed in the appellant brief, those reasons were unequivocally improper.  Instead, the State relies largely on the argument that expert testimony is required in order to receive a charge on diminished capacity.  Again, there is no such requirement in N.J.S.A. 2C:4-2, the model charge, or caselaw.  Notably, N.J.S.A. 2C:4-2 initially required defendants to prove diminished capacity by a preponderance of the evidence, but that provision was deemed unconstitutional in Humanik v. Beyer, 871 F.2d 432, 440 (3d Cir. 1989) and ultimately removed.  In other words, although there must be some evidence in the record of a mental defect for the instruction, there is no onus on the defendant to prove diminished capacity.  It is impossible to square that fact with a requirement that a defendant conclusively demonstrate diminished capacity with expert testimony.  Moreover, caselaw is rife with examples of courts taking into consideration erratic behavior as part of the constellation of evidence supporting a diminished capacity charge, meaning the kinds of evidence relied upon here have been considered, at least in part, valid bases for a diminished capacity instruction in the past.  *State v. Moore*, 113 N.J. 239, 285-86 (1988); *State v. Juinta*, 224 N.J. Super. 711, 714-15 (App. Div. 1988).  In short, once the jury heard substantial evidence about [...]’s mental health issues, it was imperative to allow the jury to consider whether those mental health problems precluded the mens rea necessary to commit the offenses.  Finally, the State does not address the fact that the trial court inexplicably refused to charge diminished capacity while instructing on voluntary intoxication despite the trial court believing that the proofs for intoxication were “far less compelling” than those for diminished capacity.  (9T16-12 to 19).  Certainly, it must be an abuse of discretion to instruct an unsupported defense and irreconcilably refuse to instruct on a much more supported one.  For these reasons, [...]’s convictions must otherwise be reversed and remanded so that a jury can properly consider diminished capacity.
[brief] Hearing Tr. 71:23-72:3.  Even [...] itself concedes that it participated in numerous motions during the past six years of litigation, including various summary judgment briefs.  *See, e.g.*, Db30.  For example, [...] affirmatively availed itself of this Court’s jurisdiction by cross moving for partial summary judgment on February 8, 2021.  Pa107.  [...] prevailed on that motion.  Pa114.  [...] claims that it has not obtained any substantive rulings adverse to [...]’s interests.  (*See, e.g.*, Db29-30.)  But that was not for lack of [...] trying, but rather just for lack of [...] succeeding.  Indeed, [...], far from being a passive observer to this litigation, actively opposed [...]’s interests in this litigation several times, including a letter brief responding to [...]’s cross-motion for partial summary judgment on February 19, 2021, an opposition to [...]’s cross-motion for partial summary judgment relating to the Umbrella Policy on October 2, 2020, an opposition to [...]’s cross- motion for partial summary judgment on February 23, 2022, and a letter joining in a motion to compel document production from [...] on May 20, 2021.  Pa109, Pa92, Pa123, Pa118.  [...]’s affirmative participation opposing [...]’s litigation positions is precisely the type of action by a litigant that waives its ability to later arbitrate.  See Cole, 215 N.J. at 280-81.
[brief] Plaintiff alleged that Defendants’ retaliatory actions included multiple examples of disparate treatment by Defendant [...] over a period of years, such as rotation of grade-level teaching partners and refusal to provide access to information received by other teachers.  218a.  What is more, Plaintiff also alleged that Defendants’ retaliatory actions culminated in two incidents that highlight Plaintiff’s disparate treatment.  First, the alleged disparate application of District Policy 1648, including a Disciplinary Meeting where unsubstantiated allegations were raised by Defendants [...] and [...] for the first time and a issuance of the Disciplinary Letter that was written before the meeting occurred.  222a through 231a.  Restating each of these allegations, the lower court expressly acknowledges that “Plaintiff claims that District Policy 1648 was applied differently to her than to coworkers. ”  8a.  Second, Plaintiff alleged an investigation instituted by Defendant [...], including Defendants [...] and [...], after Defendant [...] submitted a complaint about Plaintiff involving four separate incidents was conducted in a retaliatory manner.  231a through 242a.  Specifically, Plaintiff alleged that she was wholly deprived of the opportunity to meaningfully participate, which evidenced that the investigation was nothing more than a sham.  Id.  When considering these allegations of retaliatory treatment, the lower court did not assume them to be true, as it was required to do.
[brief] A.  The July 20, 2022 Crash  At approximately 11:00 p.m. on July 20, 2022, Defendant [...], while in the course of his employment for the [...], made an illegal U-turn on the Garden State Parkway (GSP) by driving his Earle dump truck through the police emergency response turnaround / cut-through at milepost 87.5.  Da025.  There was no active construction zone in the area where [...] crossed from the northbound to the southbound side of the GSP.  Da065 (103:18-24); Da086 (187:24-188:6).  --- \(^2\)  The Corrected Transcript Of The February 16, 2024 Hearing before the trial court, referred to herein as T, has previously been filed as a separate document on March 28, 2024.
[brief] **THIS COURT SHOULD CONSIDER AND DECIDE APPELLANTS’ “COMMON KNOWLEDGE NEGLIGENCE” ARGUMENT, DESPITE ITS NOT BEING EXPLICITLY RAISED IN THE RECORD BELOW. **  This appeal raises several closely-related questions regarding expert testimony, including:  Is Appellant [...] qualified to testify as an expert witness on construction questions based on his knowledge and experience?  Was [...] sufficiently identified as an expert in this case?  Is a written expert report required?  Could [...] give so-called “lay expert testimony?”  Is expert testimony even required on Respondents’ negligence?  Is expert testimony required on issues of damage and proximate cause, and if so, on which issues?  Should discovery be reopened to permit the filing of expert reports?  To this panoply of questions, Appellants in our appellate brief have added a sub-category arguing that this case falls under the so-called “common knowledge doctrine,” obviating the need for expert testimony on most, if not all issues.