ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] More specifically, [...] contends that the 13 documents [...] produced in May 2017 are responsive to numerous documents requests and should have been produced earlier.  [...] further alleges that the remaining 26 documents that [...] has withheld also appear to be responsive to [...]’s document requests.  [...] believes that 11 of the 26 documents, which [...] characterized as “communications with counsel regarding bid protests” are responsive to several document requests that collectively seek:  *2 documents relating to the contractual relationship between [...] and [...], [...] and [...]’s independent September 2006, FPR, and FPR2 bid submissions; and documents submitted at all levels of the bid protest proceedings, and communications between [...] and [...] regarding the FY08 recompete bid.  [...] further contends that these documents include at least one of [...]’s search terms.  [...] contends that 9 other documents, which [...] has described as “draft complaints and/or counsel’s executive summaries for what became this lawsuit” are responsive to other document requests that seek: Documents regarding the contractual relationship between [...] and [...], the performance, administration and termination of the Recompete MOA, and allegations that [...] improperly used [...] proprietary information.  [...] similarly alleges these documents likely include one or more search terms.  9.
[brief] Two other men were found inside the house: [...] and [...].  (11T 55-21 to 36-4; 11T 135-6 to 10)  [...] did not live at that house.  (11T 126-16 to 127-5)  [...] had reportedly lived there at one time.  (11T 135-11 to 136-3)  All six men were detained by police.  They were all photographed, their clothing was collected, and their buccal swabs were obtained.
[brief] ”  Id. burden is on the plaintiff to prove each element of a breach of contract claim.  *Globe Motor Co. v. Igdalev*, 225 N.J. 469, 482 (2016).  [...] had the burden of proof on each claim before the Probate Court.  That this was a summary action pursuant to *Rule 4:67-1* did not in any way relieve [...] of that burden.
[brief] See N.J.S.A. 40A:12A-8(2).  Thus, a municipality may treat properties within a plan in distinct unique ways.  The unique nature of the redevelopment plan as a zoning ordinance, which either supersedes or overlaps that existing zoning, is illustrated by the fact that a municipality can adopt a redevelopment plan even if it is not substantially consistent with the master plan or designed to effectuate the master plan.  See N.J.S.A. 40A:12A-8(d).
[brief] “Paramount is the obvious benefit derived from a recording that creates an objective, reviewable record. ”  *State v. Cook*, 179 N.J. 533, 555-556 (2004).  Here, the dash-cam video with audio captured Plaintiff [...]’s actual pain and suffering “in real time” as it happened and the video allowed the trier of fact to hear for themselves what Plaintiff experienced in the aftermath of the crash.  The dash-cam video evidence may be more accurate, complete, objective, credible and persuasive than witness testimony alone.  The dash-cam video is “an invaluable tool for the jury to consider in deciding the truth in this case. ”  *State v. Harte*, 395 N.J. Super. 162, 172-174 (Law Div. 2006).  The video and accompanying audio was probative, not only of Plaintiff’s pain and suffering, but also of her consciousness and awareness of her pain and suffering.  A plaintiff must be conscious of the loss in order to recover compensation for certain types of non-pecuniary damages.
[brief] This means that the thirty-year time period of continuous use by [...] required for acquiring the land via Adverse Possession was arrived at in 2006 based on [...]’s usage of the disputed lot.  This means that on June 30, 2006, the statute of limitations for claiming the disputed lot passed and therefore, there was no ability to commence an action for this land as title had now passed to [...] of the disputed land which is to the left of the church when facing the church.
[brief] IV.  The Bank’s Deposit Account Agreement was not Properly Incorporated by Reference Into the Application.  (Raised below in Brief - Not Decided by Trial Judge)  Alpert, Goldberg v. Quinn, 410 N.J. Super 510 (App. Div. 2009) held in order for a document to be properly incorporated by reference, a contract must make clear reference to the document and describe it in such terms that its identity may be ascertained beyond doubt ...  In order to uphold the validity of terms incorporated by reference, it must be clear that the parties to the agreement had knowledge of and assented to the incorporated document.  Id. 533.  Even assuming Plaintiff saw and signed the application, (Pa 35) its terms do not satisfy the Alpert standard for incorporating the account agreement by reference as it merely states the use of the account confirms customer’s agreement to “the Bank’s applicable fee and information schedule and account agreement that includes the arbitration agreement ...  This language does not describe the applicable account agreement to which it refers and does not advise where this applicable agreement may be found.  While the document states the use of the account will confirm the customer’s receipt of and agreement to be bound by the applicable agreement, that does not save the day since just what the applicable agreement is and where it may be found is not described in any manner and Plaintiff was not provided with a copy.  How can use of an account confirm receipt of a document not provided in any manner.  Nor does the language require the customer to affirmatively request a copy of the agreement.  There is no proof of knowledge or assent.  Even in *Alpert*, where the attorney’s retainer agreement stated the incorporated document would be provided on request, 410 N.J. Super at 520, 535 such an invitation was deemed insufficient to pass muster.  The heightened scrutiny of incorporated documents is designed to assure there is an actual meeting of the minds and to discourage sharp practices.  See *Atlantic Fabrication v. ISM/Mester*, 2021 W.L. 5264364 (App. Div. 2021)*6 (unreported) (Pa 166) citing 64 *Baylor Law Review* 651, 661 (2012).  Even if it could be found that the Plaintiff actually signed the application, there is no agreement to arbitrate as the deposit agreement was not properly incorporated by reference.
[brief] A custodian’s obligations in respect to these two species of requests are different and these obligations are not interconnected by statute.  This is underscored by the fact that a custodian generally has seven business days to respond to a records request and twenty-four hours to respond to a request for “information” under Section 3(b).  To be clear, if the Court were to subscribe to the opinion that N.J.S.A. 47:1-3(b) imposes a separate obligation upon a custodian to provide such information in response to a records request, such a rule would simultaneously undercut the clear legislative exemption applicable to criminal investigatory records and “expand the custodian’s role beyond what the Legislature specifically described in N.J.S.A. 47:1A-5(g),” which was disapproved by the Appellate Division in American Civil Liberties Union v. New Jersey Div. of Crim. Justice, 435 N.J.Super. 533, 541 (App.Div. 2014).
[brief] Per NLDO §900A, a C of A from the HPC cannot issue until an additionally required “approval has been granted by the appropriate [...] or [...]. ”  Once received, “detailed information” to provide a clear and comprehensive understanding for the [...] in its determination of the compatibility of the proposal” is required per Paragraph E(11) of the Ordinance, specifically relating to “Garages, carports, driveways, sidewalks, patios and curbs/curb cuts”.
[brief] There, the State filed a civil action against the Defendant seeking the imposition of penalties against the Defendant for violating the Fraud Act pursuant to N.J.S.A. 17:33A-5(a) and other relief.  The Defendant argued that he was entitled to a jury trial since the State was seeking money damages.  The Appellate Division disagreed.  The court held that a party to an Insurance Fraud Prevention Act matter is not entitled to a jury trial.  The Court stated that:  "when the Legislature wants to provide for the right to a jury trial, it has done so by express provision.  See e.g., N.J.S.A. 2A:15-56 (labor dispute injunctions); N.J.S.A. 2A:62-4 (private title actions); N.J.S.A. 3B:12-24 (civil proceedings for mental incompetency); N.J.S.A. 45:14B-42 (actions regarding confidentiality of patient information).  We conclude that the lack of a provision authorizing a jury trial under the act means that the Legislature does not intend to create such a right. ”  Id. at 321.
[brief] On June 7, 2016—almost four years after the OAE began its disciplinary investigation into [...], two years after the OAE filed the Disciplinary Action Complaint against [...], and four months before oral argument was held in the Disciplinary Action—the Firm submitted an Insurance Application to [...], which was signed by [...] (the “2016 Application”).  [Pa317a-320a]  Question 11(a) of the 2016 Application asked: “Has any attorney been the subject of any bar complaint, investigation or disciplinary proceeding within the past 5 years?”  The Firm answered “No. ”  [Pa319a]  Relying on the 2016 Application, [...] issued [...] to the Firm for the Policy Period July 3, 2016 to July 3, 2017 (the “2016 Policy”).
[brief] 221 N.J. at 607.  The lack of any personal bias by [...] is best stated by her when she decided the Respondent’s Motion for Recusal:  I don’t have any personal knowledge of any disputed facts in this case at all.  The first this case was handled by [...] before she retired from the bench.  . . . and it’s been all new and a learning matter for me in terms of finding out about the facts of this case.  What happened with this particular decedent.  [1T14-12 to 20.]  Respondent also incorrectly states that “[w]hile serving in that capacity as an Assemblywoman, she was the primary sponsor of the Presumption Bill that lead to the enactment of that statute. ” (See Rb 8).  The Judge of Compensation actually stated that:  [A]t that time, yes, I was a sponsor of this bill which concerns the employment benefits and Corona Virus Disease 2019 infections contracted by essential employees.  But being an assembly member on a bill as far as I can see from any of the Rules of Judicial Conduct and including the fact that I tried to look at what cases there were available to see if there was any reasoning whatsoever that it would make me specifically not be permitted to be able to sit in this matter because of any undue prejudice and I know that I don’t have any undue prejudice.  I don’t feel one way or another regarding this matter in terms of again, a subjective way because I don’t know either party.  I am sitting here listening to the facts.  [1T:17-15 to 1T18-3.]
[brief] (RULING AT 5T 115-18 TO 118-24)  Because the evidence in the case -- when viewed in a light best for the defense -- clearly supported a claim of self-defense, N.J.S.A. 2C:3-4, because defendant claimed that [...] attacked him with fists and a knife, the judge instructed the jury on self-defense as a means to an acquittal of any homicide charge.
[brief] E.  Class Certification  Discovery  Finally, Defendants raise two issues concerning discovery that they allegedly need to address Plaintiffs’ class certification motions.  [...] Trading Records:  First, Defendants have requested Plaintiffs’ trading records for [...] stock.  The § 14(a) Plaintiffs have indicated that they have no such documents.  The § 10(b) Plaintiffs, on the other hand, have objected to the production of such records, arguing that information concerning [...] trades is wholly irrelevant to the class certification issue.  Defendants strongly disagree, claiming that [...] trades are highly relevant to the class certification inquiry:  Plaintiff’s [...] trades are relevant to issues like whether the § 10(b) Lead Plaintiff faces unique defenses that make it unsuitable to represent the class, and the calculation of the putative § 10(b) class’s alleged damages.  The [...]-[...] combination was an all-stock transaction.  Whether and how much of the § 10(b) Lead Plaintiff’s [...] stock was acquired in exchange for [...] stock as a result of the combination factors into the computation of alleged damages, as Defendants are entitled to offset any alleged [...] damages against any gains Lead Plaintiffs received by exchanging [...] stock for [...] stock in the combination.  Dkt. 210 at 9–10.  As the parties are well aware, Rule 26(b)(1) allows parties to “obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case. ”  Fed. R. Civ. P. 26(b)(1).  The scope of discovery is broad, and district courts are given wide latitude in determining what discovery is permissible in a given case.  See *JP Morgan Chase Bank, N.A. v. DataTreasury Corp.*, 936 F.3d 251, 255 (5th Cir. 2019).  Keeping in mind this liberal discovery standard, as well as the relative ease in which the trading records can be obtained, I see no reason to preclude this line of inquiry at this stage.  The § 10(b) Plaintiffs must produce their [...] trading records by November 12, 2021.
[brief] Moreover, [...] properly concluded that permitting Plaintiffs to assert the claims now would “run[] contrary to the goals and purposes of both the Entire Controversy Doctrine and the doctrine of *res judicata*, and is not grounded in fairness. ”  She recognized that “the preclusion of these claims in a later action due to the Entire Controversy Doctrine was a factor to be properly considered by [...] in denying the motion to file the Fourth Amended Complaint, ‘particularly where the assertion [of new claims] is so late as to prejudice other parties. ’”  (Pa181, quoting Pressler & Vernier, *Current N.J. Court Rules*, cmt. 2.3 on R. 4:94 (2020))  She further stated that knowing that Plaintiffs could be barred from asserting these claims in a separate action, the Court denied the motion to amend and assert these “new” causes of action.  Accordingly, the prejudice to Plaintiffs has already been evaluated by the Court, and it was decided that these fraudulent concealment claims could have been asserted earlier but are not allowable now.
[brief] We agree with defendant that the judge listed several irrelevant factors when he charged the jury on identification.  There is no evidence to suggest that either [...] or the victim identified defendant out-of-court.  Nevertheless, the charge focused on a non-existent out-of-court identification.  The judge charged that, in deciding what weight to give to the identification testimony, the jury may consider “the circumstances under which the identification was made and whether or not it was the product of a suggestive procedure including anything done or said by law enforcement to the witness before, during or after the identification process. ”  He then stated:  In making this determination, you may consider the following circumstances:  Whether anything was said to the witness prior to viewing a photo array, line-up or show-up; whether a photo array shown to the witness contained multiple photographs of the defendant; whether all in the line-up but the defendant were known to identifying witnesses; whether the other participants in the line-up were grossly dissimilar in appearance to defendant, whether only the defendant was required to wear distinctive clothing which the culprit allegedly wore; whether the witness is told by the police they have caught the culprit after which the defendant is brought before the witness alone or in jail; whether the defendant is pointed out before or after the line-up; whether the witness' identification was made spontaneously and remained consistent thereafter; whether the individual conducting the line-up either indicated to the witness that a suspect was present or failed to warn the witness that the perpetrator may or may not be in the procedure; whether the witness was exposed to opinions, descriptions of identifications given by other witnesses to photographs or newspaper accounts or to any other information or influence that may have affected the independence of his or her identification.  *7  These factors, however, were inapplicable.  Furthermore, the victim's in-court identification of defendant was inherently suggestive; yet the trial judge provided no guidance to the jury to evaluate this circumstance.  [...] testified that he knew defendant for a couple of months before the incident.  Although the victim attempted to identify defendant out-of-court, she was unable to do so.  About three months after the incident, an investigator conducted a photographic array with the victim at the prosecutor's office.  The investigator showed the victim eight photographs twice, but the victim was unable to identify anyone.  It was not until fourteen months after failing to identify defendant at the prosecutor's office, that the victim identified defendant for the first time at trial while defendant was seated at the counsel table.  Thus, the identification charge was confusing and contributed to an unjust and unwarranted result.  IV
[brief] (“[...]”) claiming that [...] violated various laws, including the FDCPA.  Plaintiff theorized that [...]’s use of a mailing vendor — an entity that merely prints and sends letters — violates the FDCPA because the process of printing letters required that [...] transmit [...]’s debt information to the mailing vendor and thus constituted an “unauthorized communication” to a third-party under the FDCPA.  Courts in New Jersey have repeatedly rejected this exact theory and this is not the first time the Appellate Division has reviewed this question.  In fact, just a few months ago, the Appellate Division issue two decisions analyzing the very same issue and held, unequivocally, that the use of a mailing vendor does not violate the FDCPA nor any other state law.  Specifically, the Appellate Division held that using a mailing vendor — a widespread commercial practice — is not an abusive, deceptive or unfair act prohibited by the FDCPA.  Here, the Superior Court of New Jersey, Essex County (the “Trial Court”) applied the same reasoning that the Appellate Division did just a few months ago and dismissed Plaintiff’s lawsuit.  The Trial Court also reasoned, among other things, that: (1) the transmission of data by [...] to its mailing vendor was not a “communication”; (2) not a “communication in connection with the collection of a debt”; (3) that a mailing vendor was not a “person” that the FDCPA prohibited communication with because disclosure of debt information to a mailing vendor, unlike disclosure to friends, family, or employers, had no capability to embarrass the consumer; (4) that requiring debt collectors to fully integrate their business without the use of an outside letter vendor was not what the FDCPA envisioned; and (5) the use of a mailing vendor did not harm Plaintiff in any fashion.
[brief] (Pa130-132).  At all relevant times herein, [...] ([...]) was the general contractor of the project at the Property.  (Pa138).  [...] being the general contractor of project at the Property was confirmed throughout various deposition testimony, as well as appellant’s expert report.  (Pa494).  Some of the job duties of [...] as general contractor was to manage projects and oversee the project to make sure that subcontractors were performing their work correctly.  (Pa141-142).  Appellant began working at the Property installing floors in December of 2018.  Appellant then returned to the Property on January 15, 2019 to work on two additional rooms, and then on February 19, 2019 to work in another room.  (Pa209-212; Pa214-215).  Appellant alleges that the Property was cluttered and messy.
[brief] But that is not an attempt to mitigate a potential detriment associated with the grant of the use variance.  The appropriate condition, as the Board’s own engineer pointed out, would be to require [...] to obtain authorization from the Township to utilize the drainage easement as required by *N.J.S.A. 40:55D-22(b)* (land use boards to condition approval on any approvals required from other governmental authorities).  [4T 99-6 to 99-19].  But the Board simply ignored that possibility.  Moreover, the Resolution notes that [...] “proposes to take over the maintenance of that easement of the sewer line along this property[,]” so it is apparent that this “concern” was addressed anyway\(^8\).  [Da126, ¶ 10].  Also, the Board’s claim that [...]’s proposal to develop the Property with 39% of it covered with impervious surface creates an unmitigable impact is arbitrary because in all other circumstances, the impacts from impervious surfaces are addressed via compliance with [...]’s stormwater management ordinance as part of site plan review.
[brief] 8.  Again, Probation’s “accounting” does not comply with the Order of 1/11/2022 which states (DA76), paragraph no 3):  “The Defendant shall receive a credit for any overpayments or improper garnishments discovered from the full accounting of child support and alimony arrears and records previously paid by Defendant” (emphasis added)  Clearly, the full extent of Defendant’s support obligations have not been matched against the full extent of payments made from 10/1/1998 to 1/11/2022, including payments made directly to Respondent and recognized by the FJOD, item 19 (supra).
[brief] After [...] exited the room, defendant continued to talk to himself.  (1T:103-6 to 105-23).  When [...] reentered the room in attempt to calm defendant down and distract him from speaking about the case, defendant tried to tell him which handgun was used during the shooting.  (1T:105-25 to 129-21).  [...] told him not to tell him and that the police will conduct an independent investigation.  Ibid.  [...] also noted that defendant is innocent until proven guilty.  Ibid.  While [...] never asked defendant any questions regarding the incident and reminded him that he had already requested to speak with an attorney, he continued to speak with defendant in order to keep him calm.  Ibid.  During the cross-examination, counsel asked [...] if he could have allowed defendant to have a private conversation with his parents.
[brief] (Aa001-0016).  [...], a disabled veteran, appeared on the eligible list for Sheriff’s Officer Lieutenant, [...], promulgated on December 16, 2021.  (Aa001).  [...]’s name was certified on January 12, 2022 for a position in the subject title.  Ibid.  The first positioned candidate, a disabled veteran, was appointed; the second positioned candidate, a veteran, was appointed; the third positioned candidate, [...], a non-veteran, was bypassed; and the fourth positioned candidate, a veteran, was appointed.  Ibid.  [...], the fifth positioned candidate, was bypassed.  Ibid.  [...]’s name was subsequently certified on November 4, 2022 for a position in the subject title.  Ibid.  The first positioned candidate, [...], a non-veteran, was bypassed.  [...] was the second positioned candidate and was --- 1 “Aa” refers to Appellant’s Appendix. bypassed, and the third positioned candidate, a non-veteran, was appointed.  Ibid.  However, on November 3, 2022, [...] was demoted to Sheriff’s Officer.  (Aa001-002).  Despite [...]’s demotion, [...] was certified on November 4, 2022 for the subject position.  (Aa002).  [...] appealed the bypass of her name to the Commission on December 23, 2022, arguing that she should have been the first ranked candidate on the certification and so, as a veteran, her appointment was mandated under N.J.A.C. 4A:4-4.8.  (Aa232-236).  The Commission informed [...] that her appeal was premature given the certification had not been returned by the [...] to the Commission and [...] refiled her appeal on February 10, 2023.  (Aa235-236).  In response, the [...] argued that it properly bypassed [...] given her adverse employment history and that the same conduct would have justified [...]’s removal had she been the first positioned candidate on the certification.