SCHMIDT v. MARS, INC.

Filing 69

MEMORANDUM & ORDER denying pltf's 64 Appeal Magistrate Judge Decision to District Court. Signed by Magistrate Judge Michael A. Shipp on 06/13/2011. (nr, ) Modified on 6/13/2011 (nr).

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

DEBORA A. SCHMIDT,

Civil Action No.: 09-3008 (PGS)

Plaintiff,
MEMORANDUM & ORDER
vs.
MARS, INC,
Defendant.

This matter comes before the Court on Plaintiff Debora A, Schmidt’s (“Plaintiffs”) Appeal
of Magistrate Judge Esther Salas’s denial of Plaintiffs Informal Motion to Compel (Motion to
Compel).

(ECF No. 64.).

In said motion, Plaintiff sought to compel Defendant Mars, Inc.

(“Defendant”), to produce the personnel files of Lisa Kravetsky, Sandy Beers, Debbie Carr, and Bob
Cargo. (ECF No. 40.). Judge Salas denied Plaintiffs Motion to Compel on the record on December
29, 2010, and filed a letter order memorializing her decision on December30, 2010. (ECF No. 40.).
During a status conference with this Court on April 29, 2010, Counsel for Plaintiff indicated
that she wished to appeal the denial of the Motion to Compel, but indicated that she had not yet filed
an appeal because she had not received a transcript of the oral decision. Despite concerns about the
timeliness of such an appeal, the Court entered a Scheduling Order permitting Plaintiff to file her
appeal. (ECF No. 63.). Plaintiff filed her appeal on May 6. 2011, and Defendants filed their
opposition on May 13, 2011. (ECF Nos. 64, 65.).

1.

On May 5, 2009, Plaintiff filed this action in the Superior Court of New Jersey, Morris
County. Plaintiffs Complaint alleges that(1) she was discriminated against in her employment due
to her gender and disability, (2) she was subject to a hostile work environment due to her gender, and
(3) she suffered retaliation following internal complaints about gender discrimination. Defendant
removed the action to Federal Court on June 19, 2009.
On May 13, 2010, Magistrate Salas approved an Amended Pre-Trial Order, which stated
“May 14, 2010 is the last day for both parties to raise any objections regarding written discovery.
The parties are to meet and confer on this issue.” (ECF No. 23.). The Amended Pre-Trial Order also
stated that “July 14, 2010 is the end-date for discovery.” (ECF No. 23,),
On July 15, 2010, Plaintiffs Counsel filed a motion to compel the production of documents.
(ECF No. 27.). However Plaintiffs Counsel did not seek leave of Court before taking such action.
Therefore, Magistrate Salas directed Plaintiffs Counsel to withdraw said motion, and on July 21,
2010, filed a Letter Order directing the parties to “prepare and file a joint submission outlining iiy
and all pending discovery disputes” on or before September 3, 2010. (ECF No. 29.). In the same

Letter Order, the Court set oral argument on the joint submission for October 1, 2010. (ECF No.
29.).
No joint submission was ever filed by the parties. Accordingly, by Letter Order, dated
August 11, 2010, the Court converted the Oral Argument scheduled for October 1, 2010, to a
settlement conference. (FCF No. 32.).
On October 8, 2010, Plaintiff filed the Motion to Compel, which requested the production
ot personnel files of Lisa Kraetsky Deborah Can Sandra Beers and Bob Cargo (ECF \o 33)

Plaintiffs Counsel asserted that her production request was timely because she moved to compel
only one day after the close of discovery and that Defendant would suffer no prejudice due to
Plaintiff’s delay in seeking such discovery. (ECF No. 33.). In opposition, Defendant argued that
Plaintiff was notified on December 9, 2009, that it would not produce the files of Kravetsky, Beers,
or Carr; yet, Plaintiff waited until the close of discovery to object to such non-production. (ECF No.
34.). In addition, Defendant contended that Plaintiff first requested files related to Bob Cargo in
Plaintiffs Motion to Compel. (ECF No. 34.).
On December 29, 2010, Magistrate Salas denied Plaintiffs Motion to Compel on the record.
On December 30, 2010, Magistrate Salas issued a Letter Order confirming that Plaintiffs Motion
to Compel was denied. (ECF No. 40.).
IL
Local Civil Rule 72.1(c)(l) sets forth the procedure for an appeal from a Magistrate
Judge’s non-dispositive order and states in-part as follows:
(A) Any party may appeal from a Magistrate Judge’s
determination of a non-dispositive matter within 14 days after the
party has been served with a copy of the Magistrate Judge’s order,
unless a motion for reargument of the matter pursuant to L. Civ. R.
7.1(i) has been timely filed and served.... Such party shall file with
the Clerk and serve on all parties a written notice of appeal which
shall specifically designate the order or part thereof appealed from
and the basis for objection thereto. The notice of appeal shall be
submitted for filing in the form of a notice of motion conforming with
the requirements of L. Civ. R. 7.1. The party filing an appeal shall
provide to the Court a transcript of that portion of the hearing before
the Magistrate Judge wherein findings of fact were made, no later
than 14 days before the return date of the motion.
.

.

The Court’s review of non-dispositive matters, like discovery matters, are subject to the abuse of

discietion standard ot reiew I Ci R 72 l(c)(l)(A) Kiefesk

Panasonic C ornmc ns and SiPs

Co., 169 F.R.D. 54,64 (D.NJ. 1996) (Where, as here, the magistrate has ruled on a non-dispositive

matter such as a discovery motion, his or her ruling is entitled to great deference and is reversible
only for an abuse of discretion.” (citation omitted)). Such a deferential standard ‘is especially
appropriate where the magistrate judge has managed this case from the outset and developed a
thorough knowledge of the proceedings.” Altana Pharma AG v. Teva Pharm. U&4, Inc., No. 042355,2010 U.S. Dist. LEXIS 10430, *5 (D.N.J. Feb. 5,2010). Courts in this District have explained
that “[ajn abuse of discretion occurs: when the judicial action is arbitrary, fanciful or unreasonable,
which is another way of saying that discretion is abused only where no reasonable man would take
the view adopted.” Leap Sys. Inc. v. Moneytraz Inc., No. 05-1521, 2010 U.S. Dist. LEXIS 53167

(D.N.J. June 1, 2010).
IL
Plaintiff’s appeal to this Court asserts that (1) the motion to compel was not out of time
because it was filed only a day after the end of discovery and that it was illogical to Plaintiff’s
Counsel that such a motion would have to be filed before the end of discovery; (2) Defendant tidIed
to abide by federal discovery rules by failing to engage in electronic discovery protocol; (3) case law

on the New Jersey Law Against Discrimination supports the production of personnel files like those
requested in this case; (4) Plaintiff’s Counsel’s failure to apprise the Court of discovery disputes
earlier should not be fatal to her request for discovery; (5) not enough time was allowed for
discovery in this case; and (6) Defendant’s failure to produce the requested documents has
prejudiced PlaintifC Plaintiffs Counsel also claims that the parties did not have the benefit of a
written opinion explaining why the Motion to Compel was denied. Nevertheless, Plaintiffs Counsel
states that the parties were infonned during a subsequent hearing with Judge Salas that the Motion

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to Compel was denied as untimely.
Having reviewed the submissions of the parties, the Court concludes that Plaintiffs appeal
of the denial of Plaintiffs Motion to Compel is denied.
The Court concludes that Plaintiffs appeal is untimely pursuant to the time-frame established
in I ocal C nil Rule 72 1 (c)( 1 )(A)

The Rule clearh states that [a}n pai 1 mcn appe l from a

Magistrate Judge’s determination ofa non-dispositive matter within 14 days after the party has been
served with a copy of the Magistrate Judge’s

order.”

L. Civ. R. 72.I(c)(1)(A) (emphasis added).

Magistrate Salas filed her Order on December 30, 2010. However, it was not until April 29. 2010,
almost four months after Magistrate Salas liled the Order that Plaintiffs Counsel indicated any
intention to file an appeal. Plaintiffs Counsel complained that she delayed in filing her appeal
because she did not have the benefit of the transcript, but a plain reading of the Rule reveals that the
Rule contemplates that a party may file a notice of appeal and then provide a transcript. See L. Civ.
R. 72.1(c)(l)(A) (“The party filing an appeal shall provide to the Court a transcript of that portion
of the hearing before the Magistrate Judge wherein findings of fact were made, no later than 14 days
before the return date of the motion.”). In addition, Courts in this District have indicated that an
appeal may be made from a non-dispositive motion even without a formal written order from the
Court. See In re Gabapentin Patent Litig., 312 F. Supp. 2d 653, 658 (D.N.J, 2004) (explaining when
oral decision is read into record. “a written order is not necessary to preserve revicw’). Finally,
Plaintiffs Counsel has not offered any good reason for her delay in filing this appeal. The docket
does not reveal that Plaintiffs Counsel contemplated the filing of an appeal before April or that
Plainti i’f’s Counsel sought the transcript ofthe December 29, 2010, oral decision. Rather. Plaintiffs
Counsel’s request for an appeal came up casually during a status confi.rence. almost as an

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afterthought.
en assuming that Plaintiffs Counsel s appeal was timely, the Court nevertheless finds that
the denial of the Motion to Compel does not constitute an abuse of discretion, There is ample
support in the record to support Magistrate Salas’s determination that the Motion to Compel was
untimely. As an initial matter, Plaintiffs Counsel failed to raise objections to written discovery by
the deadline of May 14, 2010. In addition, Plaintiff failed to object by the enddate for discovery of
July 14, 2010. “Generally, however, motions to compel must be filed within the scheduled time for
discovery,” Altana PharmaAG, 2010 U.S. Dist. LEXIS 10430, at *7 Further, even after the en&
date for discovery, Plaintiff was permitted to file ajoint submission regarding discovery disputes by
September 3. 2010. Plaintiffs Counsel failed to file any submission jointly or independently. In
light of such factual circumstances, the Court is satisfied that the denial of the Motion to Compel as
untimely is not an abuse of discretion,
Therefore, IT IS on this

13”

day of June 2011 ORDERED that Plaintiffs Appeal of

Magistrate Judge Esther Salas’s denial of Plaintiffs Motion to Compel is denied. (ECF No. 40.).

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PETER G. SHERIDAN, U.S.D.J.
June 13, 2011

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