ELLAISY v. CITY OF ATLANTIC CITY et al

Filing 104

OPINION. Signed by Judge Noel L. Hillman on 2/9/2021. (tf, )

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MOHAMED ELLAISY,
Plaintiff,

1:13-cv-05401-NLH-JS
OPINION

v.
CITY OF ATLANTIC CITY, et
al.,
Defendants.

APPEARANCES:
JENNIFER ANN BONJEAN
ASHLEY BLAIR COHEN
BONJEAN LAW GROUP PLLC
467 SAINT JOHNS PLACE
BROOKLYN, NY 11238
On behalf of Plaintiff
MORRISON KENT FAIRBAIRN
MICHAEL A. ARMSTRONG & ASSOCIATES, LLC
79 MAINBRIDGE LANE
WILLINGBORO, NJ 08046
On behalf of Defendant City of Atlantic City
HILLMAN, District Judge
Presently before the Court is Defendant the City of
Atlantic City’s appeal of a discovery order entered by the
Magistrate Judge.

For the reasons expressed below, the Court

will deny Atlantic City’s appeal and affirm the Order.

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BACKGROUND & ANALYSIS
This action arises from an incident that occurred at the
Murmur Nightclub in the Borgata Hotel on September 13, 2011.
Plaintiff, Mohamed Ellaisy, a patron at the nightclub, claims he
was a victim of excessive force by Atlantic City police officers
Wheaten and Hambrecht who were working special employment
details at the Borgata.

Plaintiff first filed his original

complaint against Defendant Atlantic City police officers
Wheaten and Hambrecht, Atlantic City, and Borgata on September
10, 2013.

The matter was stayed for several years during which

time Plaintiff was prosecuted and convicted for indictable
offenses, including aggravated assault, based on what he claims
was false and fabricated testimony of Wheaten and Hambrecht and
other Borgata employees.
On July 16, 2019, the Superior Court of New Jersey,
Appellate Division, reversed Plaintiff’s criminal convictions,
finding that his Due Process rights were violated because
exculpatory evidence regarding Defendant Wheaten’s complaint
history was concealed from the defense.

The Appellate Division

further held that because Defendant Wheaten gave false testimony
at his criminal trial regarding his internal affairs history,
Plaintiff’s criminal conviction should be vacated and the matter
remanded for a new trial.

The Atlantic County Prosecutor’s

office subsequently dismissed all charges against Plaintiff.
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Thereafter, Plaintiff sought leave to lift the stay in this
action and amended his complaint to add parties and claims.

On

January 17, 2020, Plaintiff filed an amended complaint against a
number of Atlantic City police officers, the City of Atlantic
City, Borgata Hotel and Casino, and several Borgata employees.
(Docket No. 46.)

Plaintiff’s amended complaint alleges that

Atlantic City’s policies and practices were the moving force
behind the Constitutional violations he suffered.

Defendants

filed their Answers to the amended complaint on February 17 and
18, 2020, and the parties commenced written discovery.
On May 15, 2020, Plaintiff made mandatory Rule 26(a)
disclosures identifying those documents that “he has in [his]
possession, custody, or control and may use to support [his
claims or defenses].”

Fed. R. Civ. P. 26(a)(1)(A)(ii).

In the

Rule 26 disclosures, Plaintiff identified numerous documents in
the control of his attorney that were produced by Atlantic City
to Plaintiff’s counsel during eight other federal civil rights
lawsuits against Atlantic City and individual Atlantic City
police officers.

Like this case, those actions alleged Fourth

Amendment violations and claims that the City’s policies and
practices are the moving force behind the officers’
unconstitutional conduct.

The underlying conduct in most of

these lawsuits occurred around the time that Plaintiff’s

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constitutional rights were allegedly violated by the defendant
officers at Murmur nightclub in 2011.
On May 18, 2020, Plaintiff filed a proposed order with a
letter from his counsel seeking to permit Plaintiff to disclose
and produce confidential materials identified in Plaintiff’s
Rule 26 Initial Disclosures in the possession of Plaintiff’s
counsel from the other eight cases.

The parties were in

agreement that Plaintiff could not produce the City’s
confidential materials absent a court order because those
materials were provided to Plaintiff’s counsel pursuant to
Discovery Confidentiality Orders.

As permitted by the orders,

the City agreed to allow Plaintiff’s counsel to use some of the
confidential discovery previously produced in some of the other
Atlantic City cases as the cases were progressing concurrently
and, for the most part, involved the same attorneys and
discovery request.

The City contends that the most extensive

and sensitive of the materials comprises ten years of the
Atlantic City Police Department’s Internal Affairs files given
exclusively to Plaintiff’s counsel and the attorneys
representing the City of Atlantic City in the other matters for
the purposes of Plaintiff’s Monell liability expert’s review.
Following letters exchanged by Plaintiff’s counsel and
counsel for Atlantic City concerning Plaintiff’s proposed order,
then Magistrate Judge Joel Schneider, U.S.M.J., held a
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conference on June 2, 2020 to hear argument on Plaintiff’s
application.

Judge Schneider delivered an oral opinion

indicating that good cause existed to modify the Discovery
Confidentiality Orders in the prior cases to permit the use of
the City’s confidential materials shared in those cases in the
instant case.
On June 10, 2020, the parties entered a Discovery
Confidentiality Order by consent.

Although Judge Schneider had

not yet entered the order modifying the DCOs in the prior cases,
Plaintiff produced the confidential materials to all attorneys
of record.

On July 8, 2020, Judge Schneider entered the Order

Modifying the Discovery Confidentiality Orders in three of the
six matters with DCOs.
The City of Atlantic City appeals from this Order.

The

City argues that Judge Schneider erred because in entering the
order modifying the Discovery Confidentiality Orders and thus
allowing Plaintiff to produce the information produced by
Atlantic City to Plaintiff’s counsel in other cases, Judge
Schneider failed to consider the relevance of any of the
information to be produced.

The City also asserts several other

arguments for how Judge Schneider erred that ultimately
culminate in its view that although the IA files were previously
only provided to Plaintiff’s attorney in the prior matters and
the attorneys representing the City because they were being
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produced for the sole purpose of Plaintiff’s expert opinion
against the City, Judge Schneider has now expanded disclosure by
permitting Plaintiff’s attorney to reproduce the files to
attorneys for the Defendant Officers and Borgata.
When a magistrate judge decides a non-dispositive motion,
the “district court may modify the magistrate's order only if
the district court finds that the magistrate's ruling was
clearly erroneous or contrary to law.”

Cipollone v. Liggett

Group, Inc., 785 F.2d 1108, 1120 (3d Cir. 1986); see also L.
Civ. R. 72 .1(c)(A)(1) (“A Judge shall consider the appeal ...
and set aside any portion of the Magistrate Judge's order found
to be clearly erroneous or contrary to law.”).
A magistrate judge's ruling is clearly erroneous when
“although there may be some evidence to support it, the
reviewing court, after considering the entirety of the evidence,
is ‘left with the definite and firm conviction that a mistake
has been committed.’”

Kounelis v. Sherrer, 529 F. Supp. 2d 503,

518 (D.N.J. 2008) (quoting Dome Petroleum Ltd. v. Emp'rs Mut.
Liab. Ins. Co., 131 F.R.D. 63, 65 (D.N.J. 1990); United States
v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).

A ruling is

contrary to law if “the magistrate judge has misinterpreted or
misapplied applicable law.”

Id.

The mere fact that the

reviewing court “might have decided the matter differently” is
insufficient to justify the reversal of the magistrate judge's
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decision.

Mendez v. Avis Budget Grp., Inc., No. 11-6537, 2018

WL 4676039, at *2 (D.N.J. Sept. 28, 2018) (quoting Wortman v.
Beglin, No. 03-495, 2007 WL 2375057, at *2 (D.N.J. Aug. 16,
2007)).
In opposition to the City’s motion, Plaintiff asserts that
Judge Schneider made no mistake, and he did not misapply the
law.

Plaintiff makes a very straightforward argument about the

practical reason Judge Schneider permitted Plaintiff’s counsel
to produce the Atlantic City documents and modify the
confidentiality orders in the other cases so that Plaintiff’s
counsel could do to so:

The City had no objection to the

documents being produced in this case, and the City did not
object to the relevance of the documents.

Instead, the City

objected to Plaintiff - not the City - producing the documents,
and whether Plaintiff could produce the copies she had to
Borgata.
Plaintiff argues that this position not only undermines the
basis for the City’s appeal, but it demonstrates the
frivolousness of the City’s position.

Plaintiff points out that

Judge Schneider recognized there was no reason to “reinvent the
wheel” and unnecessarily duplicate past efforts by requiring
Plaintiff and the other defendants to go through the motions of
demanding such documents from the City when Plaintiff’s counsel
already had those documents ready to produce, saving time and
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expense for everyone, including the City, which has professed an
inability due to Covid-19 and other issues from timely complying
with other discovery requests.
Additionally, Plaintiff argues that the City has not
pointed to any authority to support its position that Judge
Schneider was obligated to review Plaintiff’s Rule 26(a)
disclosures to determine whether the documents identified
therein were relevant.

Fed. R. Civ. P. 26(a)(1)(A)(ii) requires

Plaintiff to identify and produce materials “he has in [his]
possession, custody, or control and may use to support [his
claims or defenses],” not whether they are ultimately relevant
in the proofs stage of the case.

Plaintiff contends that the

City’s true purpose in objecting to Judge Schneider’s order is
its desire to relitigate issues about whether confidential
materials should be produced in this case at all, and
potentially relitigate discovery issues that were litigated in
nearly-identical cases, which is an argument it failed to make
before Judge Schneider.
As noted above, this Court will only reverse Judge
Schneider’s opinion on pretrial matters if it is “clearly
erroneous or contrary to law.”

28 U.S.C. § 636(b)(1)(A); Fed.

R. Civ. P. 72(a); L. Civ. R. 72. 1(c)(1)(A).

This Court finds

that Judge Schneider’s July 8, 2020 Order (Docket No. 82)
modifying Discovery Confidentiality Orders in previous civil
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lawsuits involving the City of Atlantic City in order to permit
Plaintiff to produce the City’s confidential materials that are
in his attorney’s possession in this case is not clearly
erroneous or contrary to the law, for three primary reasons.
First, the City does not object to the documents at issue
being produced in this case as a general matter - the City only
objects to Plaintiff’s counsel producing them as part of
Plaintiff’s initial disclosures and providing them to Borgata.
The City, however, fails to explain how, if those documents
would eventually be produced by the City to Plaintiff and the
other defendants farther along in the discovery process, why it
would be contrary to law to expedite the process, saving all the
parties time and money, and have Plaintiff produce those exact
documents during the initial disclosures.
The City focuses on the relevance of the documents and how
Judge Schneider should have made a relevance determination as
part of his Order, but that argument is hollow, which is the
second reason why this Court will uphold Judge Schneider’s
decision.

The City agreed with Judge Schneider that relevance

was not an issue with Plaintiff’s production of these documents
because it was part of Plaintiff’s initial disclosures, as
Plaintiff was required to identify all documents he had in his
possession, custody, or control and may use to support his
claims, which encompasses the Atlantic City discovery.
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The City

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has failed to explain which of those documents are not relevant
and should not be produced.

This Court cannot find that Judge

Schneider’s Order was erroneous because he did not opine on the
specific relevance of each document when the City did not then,
and does not now, show how any document is not appropriately
produced due to its relevance.

See, e.g., Jorjani v. New Jersey

Institute of Technology, 2021 WL 100207, at *7 (D.N.J. Jan. 12,
2021) (“Discovery is different than merits, and relevance is
measured by the scope of Rule 26 . . . .”); Prudential Ins. Co.
of America v. Massaro, 2000 WL 1176541, at *24 (D.N.J. 2000)
(“Whether information is relevant in the sense of constituting a
material fact with respect to liability and whether it is
relevant as contemplated by the rules governing discovery are,
of course, quite different.

As counsel well know, to be

relevant for discovery purpose a fact need merely lead to the
discovery of admissible evidence, Fed. R. Civ. P. 26(b)(1), an
exceedingly low threshold.”).
Finally, the Court finds the City has not articulated how
it has suffered any prejudice by Judge Schneider’s Order.

The

documents, which would have ultimately been produced by the City
to Borgata and the other parties, are still protected by
Discovery Confidentiality Orders in this case and the other
civil actions.

The City cannot refute that Plaintiff producing

them at the initial stages of the discovery process will save
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time and expense for all parties, including the City, and it
will expedite a case that was filed in 2013 for events that
occurred in 2011.

The City’s desire to keep its apparent “dirty

laundry” 1 hidden from Borgata as long as possible is not
prejudice, and it cannot stop the inevitable disclosure the City
concedes will occur as party of the discovery process. 2

1

Juries in three cases arising from similar allegations as the
case here have found the City of Atlantic City liable under
Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658
(1978) for a practice and custom of failing to supervise its
officers in connection with their use of excessive force. See
Stadler v. Abram, 13-cv-2741, aff’d Stadler v. Abrams, 78 F.
App’x 66 (3d Cir. 2019); Troso v. City of Atlantic City, 1:10cv-01566-RMB-JS (Docket No. 106, December 19, 2013); Polanco &
Polanco v. City of Atlantic City, L-1986-09, L-1805-09, aff’d
Polanco v. Dabney, A-3270-17T3 (App. Div. Sept. 27, 2018).
2

In a similar case advanced against Atlantic City by Plaintiff’s
counsel here, Judge Schneider found with regard to the discovery
of the City’s internal affairs files, “Frankly, now having the
benefit of a complete record the Court is at a loss to think of
a good reason not to order the production of all of Atlantic
City's IA files. The files are unquestionably relevant to
plaintiff's Monell claim, the scope of the production is not
unprecedented, and the production will help avoid and streamline
future evidentiary issues and motion practice. Further, the
parties’ experts agree it is preferable to review all the files.
. . . . Full disclosure will permit plaintiff to get to the
bottom of the alleged problems with Atlantic City's IA process.
If there is a justifiable reason why Atlantic City's police
officers, according to plaintiff, act with impunity, and why
Atlantic City is subject to so many citizen complaints and §
1983 lawsuits, the public has a right to know. Full disclosure
of Atlantic City's IA files will reveal what is really
happening. Given the facts before the Court, a snapshot will not
do.” Costantino v. City of Atlantic City, 152 F. Supp. 3d 311,
334, 335 (D.N.J. 2015).
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In sum, this Court is not “left with the definite and firm
conviction that a mistake has been committed” by Judge
Schneider’s July 8, 2020 Order.

To the contrary, the Court

finds Judge Schneider’s Order to be an appropriate course of
action to efficiently expedite discovery in a seven year old
case involving claims against Atlantic City that have been shown
to be meritorious in other cases.

See Fed. R. Civ. P. 1.

CONCLUSION
For the reasons expressed above, Plaintiff’s Appeal will be
denied, and the Magistrate Judge’s July 8, 2020 Order (Docket
No. 82) will be affirmed in all respects.
An appropriate Order will be entered.

Date: February 9, 2021
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

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