KIRSCHLING v. ATLANTIC CITY BOARD OF EDUCATION
Filing
77
OPINION. Signed by Judge Noel L. Hillman on 10/16/2014. (TH, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
THOMAS KIRSCHLING,
Civ. No. 11-4479 (NLH/JS)
Plaintiff,
OPINION
v.
ATLANTIC CITY BOARD OF
EDUCATION,
Defendant.
APPEARANCES:
Robert P. Merenich, Esquire
Gemmel, Todd & Merenich, P.A.
767 Shore Road
P.O. Box 296
Linwood, New Jersey 08221
Attorney for Plaintiff
Cynthia E. Ringel, Esquire
Erin Leigh Henderson, Esquire
Peter P. Perla, Esquire
Jasinsky, P.C.
60 Park Place, 8th Floor
Newark, New Jersey 07102
Attorneys for Defendant
HILLMAN, District Judge:
This matter comes before the Court by way of motion [Doc.
No. 71] of Plaintiff, Thomas Kirschling, seeking to seal
pursuant to Local Civil Rule 5.3 the exhibits submitted by
Plaintiff in opposition to Defendant’s motion for summary
judgment.
The Court has reviewed Plaintiff’s submission, no
1
opposition thereto having been filed, and decides this matter
pursuant to Federal Rule of Civil Procedure 78.
For the reasons expressed below, Plaintiff’s motion will be
denied without prejudice.
I.
BACKGROUND
Plaintiff filed this action against Defendant, Atlantic
City Board of Education, asserting claims under the New Jersey
Law Against Discrimination, N.J. Stat. Ann. § 10:5-1, et seq..
On July 31, 2013, Defendant filed a motion for summary judgment
pursuant to Federal Rule of Civil Procedure 56.
Plaintiff
submitted to the Court opposition to the summary judgment
motion, but he did not file the documents on the Court’s
Electronic Case Filing system.
The Court directed Plaintiff’s
counsel to file his response electronically, at which time
Plaintiff filed the documents under seal along with the motion
to seal presently before the Court. 1
In support of the motion to seal, Plaintiff submits a
certification of counsel in which counsel states that the
exhibits contain personal information such as birth dates,
social security numbers, salary and promotion negotiations and
decisions, and health information.
(Cert. of Robert P. Merenich
in Supp. of Mot. to Seal (hereafter, “Merenich Cert.”) ¶ 4.)
1
The Court granted Defendant’s motion for summary judgment by
Opinion and Order dated March 31, 2014.
2
Counsel further represents that the exhibits contain certain
documents that were marked “confidential” by Defendant.
¶ 5.)
(Id. at
Counsel also states that the deposition transcripts
submitted in connection with the summary judgment motion contain
references and discussions of personnel and purportedly
confidential documents.
(Id. at ¶ 6.)
Additionally, according
to Plaintiff’s counsel, a redacted copy of the brief in
opposition to Defendant’s motion for summary judgment has been
submitted.
(Id. at ¶ 3.)
Plaintiff asserts in a letter brief
filed with the motion to seal that the confidential information
contained in the exhibits is so pervasive that redaction is
impracticable and would compromise the meaning of the documents.
(Letter Br. of Robert P. Merenich, Esq., 1, Mar. 31, 2014.)
Defendant purportedly consents to the sealing of the exhibits.
(Merenich Cert. ¶ 2.)
II. STANDARD FOR MOTIONS TO SEAL
In this District, Local Civil Rule 5.3 governs all motions
to seal or otherwise restrict public access to both materials
filed with the Court and judicial proceedings themselves.
The
rule provides that in order to place a docket entry under seal,
the motion to seal must be publicly filed and “shall describe
(a) the nature of the materials or proceedings at issue, (b) the
legitimate private or public interests which warrant the relief
sought, (c) the clearly defined and serious injury that would
3
result if the relief sought is not granted, and (d) why a less
restrictive alternative to the relief sought is not available.”
L. Civ. R. 5.3(c)(2).
The party moving to seal must submit a
proposed order that contains proposed findings of fact and
conclusions of law.
Id.
III. DISCUSSION
As a threshold matter, the Court must determine whether it
has jurisdiction to adjudicate Plaintiff’s motion to seal in
light of Plaintiff’s filing of a Notice of Appeal to the United
States Court of Appeals for the Third Circuit in connection with
the March 31, 2014 Order granting summary judgment in favor of
Defendant.
Generally, the filing of a notice of appeal is an “event of
jurisdictional significance” because it “confers jurisdiction on
the court of appeals and divests the district court of its
control over those aspects of the case involved in the appeal.”
Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58, 103 S.
Ct. 400, 74 L. Ed. 2d 225 (1982)(per curiam).
The district
court, however, “retains jurisdiction, for example, to issue
orders staying, modifying or granting injunctions, to direct the
filing of supersedeas bonds, and to issue orders affecting the
record on appeal, the granting of bail and matters of a similar
nature.”
Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90, 97 (3d
4
Cir. 1988) (citing Venen v. Sweet, 758 F.2d 117, 120 n.2 (3d
Cir. 1985) and Fed. R. App. P. 7, 8, 9, 10, 11).
The purpose of the divestiture rule is to “prevent the
confusion and inefficiency that would result if both the
district court and the court of appeals were adjudicating the
same issues simultaneously.”
Id.
Because this rule is a judge-
made doctrine, rather than a statutory creation, founded upon
prudential considerations, the Third Circuit has recognized that
“the rule should not be applied when to do so would defeat its
purpose of achieving judicial economy.”
Pensiero, 847 F.2d at
97 (citing Venen, 758 F.2d at 121).
In this case, the sealing of the exhibits submitted in
opposition to Defendant’s motion for summary judgment is not
designated as an issue for appeal to the Third Circuit.
The
sealing of exhibits is a collateral issue that does not
implicate the merits of the issues before the Third Circuit.
Thus, there is no chance that two courts would be considering
the same issue simultaneously.
Under these circumstances, the
Court is persuaded that the prudential concern of promoting
judicial efficiency weighs in favor of employing an exception to
the divestiture rule.
Accordingly, the Court retains
jurisdiction to decide the present motion to seal.
In considering the merits of Plaintiff’s motion, the
Court’s analysis is impeded by the lack of detail in the moving
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papers concerning the documents at issue.
Furthermore,
Plaintiff did not submit a proposed order containing proposed
findings of fact and conclusions of law as required by Local
Civil Rule 5.3(c)(2).
Plaintiff seeks to seal a certification
of counsel with forty-one exhibits attached thereto, as well as
eleven additional exhibits.
In total, the exhibits contain over
five hundred pages.
The Court has reviewed the documents Plaintiff seeks to
seal and concludes that Plaintiff fails to meet his burden of
establishing that sealing is warranted at this time.
As an
initial matter, the Court notes that while litigants have an
interest in privacy, the public also has a right to obtain
information about judicial proceedings.
Pansy v. Borough of
Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1995).
In order to rebut
the presumption of public access, the party seeking
confidentiality must demonstrate “good cause” by establishing
that disclosure will cause a “‘clearly defined and serious
injury to the party seeking closure.’”
Id. (quoting Publicker
Indus., Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984)).
“‘Broad allegations of harm, unsubstantiated by specific
examples or articulated reasoning,’ do not support a good cause
showing.”
Id. (quoting Cipollone v. Liggett Group, Inc., 785
F.2d 1108, 1121 (3d Cir. 1986), cert. denied, 484 U.S. 976, 108
S. Ct. 487, 98 L. Ed. 2d 485 (1987)).
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Plaintiff does not address what serious injury he or others
will suffer if the documents submitted in opposition to the
summary judgment motion are not sealed.
As such, Plaintiff
fails to make a particularized showing, or any showing for that
matter, that injury will occur if the exhibits are publicly
accessible, as required by Local Civil Rule 5.3(c)(2)(c).
Plaintiff consequently does not demonstrate good cause to seal
the documents.
Additionally, Plaintiff fails to demonstrate that less
restrictive alternatives are not available, as required by Local
Civil Rule 5.3(c)(2)(d).
Plaintiff generally states that
confidential information is interspersed throughout the
exhibits, such that redaction would be impractical, but the
Court disagrees.
While some of the exhibits may contain
personal or confidential information, not all of the documents
submitted meet the standards for sealing set forth in Local
Civil Rule 5.3.
For instance, some of the exhibits are already
publicly available, such as articles from the Press of Atlantic
City and deposition transcripts that were also filed on the
public docket by Defendant in support of the summary judgment
motion. 2
Some of the exhibits that Plaintiff seeks to seal were
2
Defendant, for example, filed select pages from Plaintiff’s
deposition of May 13, 2013, as Exhibit B to the Certification of
Peter P. Perla, Esq. in Support of Defendant’s Motion for
Summary Judgment (“Perla Certification”). Plaintiff has filed
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designated as “Confidential” by Defendant, but such designation
does not per se support sealing because Defendant, in support of
its summary judgment motion, filed several documents it had
marked “Confidential” without seeking to seal those documents.
Moreover, even if some of the exhibits meet the requirements for
sealing under Local Civil Rule 5.3, Plaintiff cannot use the
confidential nature of some documents to support a blanket
assertion of confidentiality over every exhibit submitted to the
Court.
In light of the foregoing, Plaintiff’s motion to seal will be
denied without prejudice.
submitted
in
opposition
determine
whether
the
Plaintiff must inspect the exhibits
to
the
factors
summary
set
forth
judgment
motion
and
in
Civil
Rule
Local
5.3(c)(2) warrant sealing of each individual exhibit.
To the
extent a document does not meet the requirements of Local Civil
Rule 5.3, Plaintiff shall file on the docket a publicly accessible
version of the exhibit.
To the extent a document may be redacted
without compromising its meaning, Plaintiff shall file on the
docket a publicly accessible redacted version of the exhibit.
Finally, to the extent an individual exhibit contains so much
the complete transcript and seeks to seal the document in its
entirety, even though numerous pages from the transcript are
already publicly available. Similarly, Plaintiff seeks to seal
the entire transcript from the deposition of Fredrick P. Nickles
of May 7, 2013, even though select pages are available publicly
as Exhibit F to the Perla Certification.
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confidential information that redaction would not be feasible or
would compromise the meaning of the document, Plaintiff may file
a renewed motion to seal that complies with Local Civil Rule
5.3(c).
The motion must include a proposed order setting forth
Findings of Fact and Conclusions of Law.
See L. Civ. R. 5.3(c)(2).
Plaintiff shall complete this review and file the exhibits, as
well as a motion to seal to the extent such motion is appropriate,
within fourteen days of entry of the Order accompanying this
Opinion. If, within the prescribed time, Plaintiff fails to comply
with this directive, the Court will unseal the documents filed by
Plaintiff
in
opposition
to
Defendant’s
motion
for
summary
judgment.
An appropriate Order will be entered.
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
Date: October 16, 2014
At Camden, New Jersey
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