COSIMANO v. TOWNSHIP OF UNION et al
OPINION. Signed by Judge Jose L. Linares on 3/13/17. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No.: 10-cv-5710 (ILL)
TOWNSHIP OF UNION, et. al,
LINARES, District Judge.
This matter comes before the Court by way of Plaintiffs appeal of Magistrate Judge Joseph
A. Dickson’s November 23, 2016 Opinion and Order, which granted Defendants’ motion to file
an answer to Plaintiffs Second Amended Complaint (“SAC”) out of time. (ECF Nos. 255-1, “P1. ‘s
Mov. Br.”). Plaintiff also appeals Judge Dickson’s December 30, 2016 Order and Opinion denying
Plaintiffs motion for reconsideration regarding same. (Id.). Defendants have opposed this appeal.
(ECF No. 261, “Defs.’ Br.”). The Court decides this matter without oral argument pursuant to
Federal Rule of Civil Procedure 78. For the reasons stated herein, Plaintiffs appeal of Judge
Dickson’s November 23, 2016 and December 30, 2016 Opinions and Orders is denied.
Generally, a United States Magistrate Judge may hear and determine any non-dispositive
pretrial matter pending before the Court pursuant to 2$ U.S.C.
§ 636(b)(1)(A). A district court
will only reverse a magistrate judge’s decision on these matters if it is “clearly erroneous or
contrary to law.” 2$ U.S.C.
§ 636(b)(1)(A); Fed. R. Civ. P. 72(a); L. Civ. R. 72.1(c)(1)(A).
Therefore, “this Court will review a magistrate judge’s findings of fact for clear error.” Lithuanian
Commerce Corp., Ltd. v. Sara Lee Hosiery, 177 F.R.D. 205, 213 (D.N.J. 1997). Under this
standard, a finding is clearly erroneous when “although there is evidence to support it, the
reviewing court on the entire evidence is lefi with the definite and firm conviction that a mistake
has been committed.” Anderson v. Bessemer City, 470 U.S. 564, 573 (1985) (citing United States
v. US. Gypsum Co., 333 U.S. 364, 395 (1948)). Thus, in the absence of clear error, a district court
will not reverse the [M]agistrate [J]udge’s determination, even in circumstances where the court
might have decided the matter differently. Bowen v. Parking Auth. of City of Camden, Civ. No.
00-5765, 2002 WL 1754493, at *3 (D.N. J. July 30, 2002); see also Andrews v. Goodyear Tire &
Rubber Co., Inc., 191 F.R.D. 59, 68 (D.N.J. 2000) (“A district judge’s simple disagreement with
the magistrate judge’s findings is insufficient to meet the clearly erroneous standard of review.”).
“Where, as here, the [M]agistrate has ruled on a non-dispositive matter,.
his or her ruling
is entitled to great deference and is reversible only for abuse of discretion.” Kreseflzy v. Panasonic
Commc’ns & Sys. Co., 169 F.R.D. 54, 64 (D.N.J. 1996). “This deferential standard is ‘especially
appropriate where the Magistrate Judge has managed this case from the outset and developed a
thorough knowledge of the proceedings.” Lithuanian Commerce Corp., 177 F.R.D. at 214
(quoting Pub. InterestResearch Group v. Hercules, Inc., 830 F. Supp. 1525, 1547 (D.N.J. 1993),
affdon other grounds and rev’d on other grounds, 50 f.3d 1239 (3d Cir. 1995)).
Plaintiff commenced this action in the Superior Court of New Jersey, Union County, on
August 23, 2010. This case has an unusual and lengthy procedural history, which has been
carefully detailed in the Opinions which are the subject of this appeal. (See ECF No. 229 (“JAD
Op.” at 1-3); ECF No. 240 (“JAD Recon. Op.” at 1-3). For the sake of judicial efficiency, and
because the Court writes only for the Parties, the Court declines to outline the procedural or factual
history herein, unless otherwise relevant to the pending appeal.
On October 12, 2016, Defendants filed a motion for an extension of time to file an answer
to Plaintiffs SAC. (ECF No. 219). Plaintiffs SAC has been filed on August 6, 2013. (ECF No.
87-1, “SAC”). Defendants filed this motion after Plaintiffs counsel advised Judge Dickson of
Plaintiffs intention to introduce Plaintiffs (as yet unanswered) SAC as an exhibit at trial. As
stated by Defendants, “[t]he purpose of this Motion is to avoid a manifest injustice if Plaintiff is
permitted to rely upon allegations made in her [SAC] without formal opposition in the record.”
(Id. at 1). Plaintiff opposed Defendant’s motion (ECF No. 220) and Defendants replied to same
(ECF No. 221). On November 23, 2016, after “careful consideration of the parties’ submissions,”
Judge Dickson entered an Opinion and Order which granted Defendants’ motion to file an
untimely Answer to Plaintiffs SAC. (JAD Op. at 1).
Judge Dickson applied Federal Rule of Civil Procedure 6(b), which permits a court to
extend the deadline by which a party may file motions if the court finds that “the party failed to
[timely] act because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). (Id. at 3). Next, Judge
Dickson discussed the factors that courts are to consider when determining whether a party acted
with “excusable neglect,” as outlined by the Supreme Court in Pioneer mv. Servs. Co. v. Brunswick
Assocs. Ltd. P’$hzp, 507 U.S. 380 (1993). (Id.). As Judge Dickson noted, these factors include
“the danger of prejudice to the [non-movant], the length of the delay and its potential impact on
judicial proceedings, the reason for delay, including whether it was within the reasonable control
of the movant, and whether the movant acted in good faith.” (Id.) (quoting Kimberg v. Univ. of
Scranton, 411 Fed. App’x. 473, 477 (3d Cir. 2010)).
In opposing Defendants’ motion to file a late answer, Plaintiff argued, inter cilia, that she
would be prejudiced by the filing of same. Specifically, Plaintiff argued that because Defendants
never answered the SAC, and because they had previously admitted to particular paragraphs in
their answer to Plaintiff’s Amended Complaint, those allegations are deemed admitted. (ECF No.
220-1 at 10). Plaintiff was particularly concerned with paragraphs 20-24 of the SAC, which
include allegations that male retirees were receiving “lifetime health benefits.” In her opposition
before Judge Dickson, Plaintiff stated that:
On September 29, 2016, for the first time in the history of this litigation, in a conference
call with the Court, defense counsel asserted that it would contest that male employees
were receiving lifetime benefits since their retirement. Said position is directly contrary to
its answer to the amended complaint, its response to request for interrogatories, its initial
disclosure, and interrogatory answers. It now seeks to answer the Second Amended
Complaint three years out of time, but contrary to the Federal Rules of Civil Procedure,
does not attach its proposed Answer to this motion.
(Id. at 6; see also ECF No. 226 at 3).
Judge Dickson was not moved by this argument as to prejudice. (JAD Op. at 6-7). That
is, Judge Dickson expressly rejected the notion that Plaintiff could believe these allegations as
undisputed “[g]iven the parties’ remarkably litigious conduct in this case” coupled with “Plaintiff’s
failure to take any action in connection with Defendants’ alleged admissions.”
(Id. at 7).
Ultimately, Judge Dickson granted Defendants’ motion to file an answer out of time.
On December 8, 2016, Plaintiff moved for reconsideration of the above-discussed Opinion
and Order. (ECF No. 232). That motion was fully briefed. (ECF Nos. 232-2, 235, 238). In moving
for reconsideration, Plaintiff argued, as she does in the pending appeal, that Judge Dickson
“overlooked” that the issue of lifetime benefits is highly relevant to the amount of damages
Plaintiff could collect upon a finding of liability. (ECF No. 232-2 at 3). Once again, Judge
Dickson rejected Plaintiff’s argument as to prejudice, and ultimately denied Plaintiff’s motion for
reconsideration. (JAD Recon. Op. at 5-6).
In the pending appeal, Plaintiff once again argues that she is prejudiced by Defendants’
untimely answer and that the late answer was filed in bad faith. (Id.). The Court addresses these
The issue before this Court is whether Judge Dickson committed “clear error” in granting
Defendants’ motion for an extension of time to file an answer to the SAC. The Court finds no
As Judge Dickson noted, a court may grant a party’s untimely motion for an extension of
time to move for relief “if the party failed to act because of excusable neglect.” Fed. R. Civ. P.
In deciding whether a party failed to act because of “excusable neglect,” Judge
Dickson applied the factors outlined by the Supreme Court in Pioneer Investment Sen’s. v.
Brunswick Assocs., 507 U.S. 380 (1993).
That is, Judge Dickson considered: (1) whether
Defendants demonstrated good faith and professional competence; (2) whether Plaintiff will be
prejudiced by the late answer; (3) and any delay or other impact that a grant of Defendants’ motion
would have on the proceedings. (JAD
Op. at 4-8).
Judge Dickson found each of these factors to
militate in Defendants’ favor.
Plaintiff now argues that Judge Dickson committed clear error in finding that she would
not be prejudiced by permitting Defendants to file a late answer. According to Plaintiff, the issue
of whether retired male employees received “lifetime health benefits” is “highly relevant to
damages and there is great prejudice to Plaintiff by permitting Defendants’ change in position.”
(Pl.’s Mov. Br. at 3). Plaintiff provides a list of eight reasons why she is prejudiced by Defendants’
filing of a delayed answer to her SAC, which, from Plaintiffs perspective, gives Defendants the
opportunity to change their position with respect to whether certain retirees are receiving “lifetime”
health benefits. (Id. at 7). The Court is not persuaded that these points indicate any prejudice to
Plaintiff Rather, the Court finds that Judge Dickson’s Opinions were directly responsive to
Plaintiffs concerns with respect to the effect of the Magistrate Judge’s decision on her ability to
In his well-reasoned Opinion resolving Plaintiffs motion for reconsideration, Judge
Plaintiffs argument that Defendants’ position will impact Plaintiffs expert report
is apparently based on a faulty assumption that the term “lifetime” is dispositive to
determining damages if Defendants are found liable for the alleged discrimination,
or that Plaintiffs expert relied on Defendants’ admissions. Both assumptions are
groundless. Defendants have admitted that certain employees were provided health
benefits when they retired. In Defendants’ opposition brief to Plaintiffs motion
for reconsideration of this Court’s Order and Opinion dated November 23, 2016
concerning the use of certain documents at trial, Defendants explained:
Whether those retirees will receive such benefits until the day they
die will depend on a number of factors outside of the control of the
Township of Union; including, whether they are subsequently
employed and eligible for more generous benefits through their
spouse, which they may choose to utilize, the impact of Medicare
eligibility; and changes in state law that may impact the State Health
Benefits Program, the plan provided by the Township of Union for its
employees and retirees.
(Def. Br., ECF No. 235 at 7). Therefore, until every one of these certain mail
employees are deceased, it is simply not possible to demonstrate that these
employees received benefits for life. Moreover, Defendants’ position does not
prejudice Plaintiff. If the jury finds that Defendants are liable, Plaintiff still has the
ability to make the argument that she is entitled to receive damages; specifically,
she may argue for the value of the benefits for the remaining years of her life. This
is precisely what her expert will attempt to show: what benefits would have been
paid for her expected life. Plaintiffs expert does not rely on any admission by
Defendants that others received lifetime benefits—it relies on her actuarially
calculated life expectancy. (See Ex. Binder, Ex. P-72).
(lAD Recon. Op. at 5-6). The Court finds no error in this explanation. Additionally, the Court
notes that notwithstanding the above discussion, Judge Dickson permitted “limited discovery to
determine whether male retired officers Paul Bruno, Frederick McCarrick, Albert Stotzer and
Lawrence Kuntz are receiving ‘lifetime health benefits’ paid for by the Defendant, Township of
Union.” (Id. at 8-9). Accordingly, even if Plaintiff was prejudiced by Defendants’ late answer,
any prejudice could be cured by her ability to take limited discovery with respect to this issue.
Plaintiff also argues that Magistrate Judge Dickson erred in finding that Defendants did not
act in good faith. (Pl.’s Mov. Br. at 7). The Court disagrees. That is, the Court fails to find clear
error in Judge Dickson’s conclusion that “Defendants demonstrated good faith and professional
competence,” notwithstanding their failure to timely answer the SAC. (JAD
at 4-5). In
coming to this conclusion, Judge Dickson considered, among other things, the “unusual procedural
history” of this case, which involved a stay of the matter pending an arbitration as well as extensive
motion practice. (Id.). Judge Dickson properly likened this case to Kimberg v. Univ. ofScranton,
411 fed. App’x 473 (3d Cir. 2010), in which the Third Circuit affirmed the court’s grant of
defendants’ permission to file a late answer where “[t]he atypicality of this procedural posture
lends credence to Defendants’ position that their failure to file within the allotted time period was
an honest oversight and not part of a sinister, well-conceived plan to frustrate Kimberg’s discovery
efforts.” (JAD. Op. at 5) (quoting Kimberg, 411 fed. App’x at 478). Thus, the Magistrate Judge’s
conclusion that Defendants did not act in bad faith is supported by both the record and case law.
Moreover, the Court is not moved by Plaintiffs argument that Defendants’ filing of the
underlying motion on the eve of trial demonstrates bad faith. (Pl.’s Mov. Br. at 7). As Defendants
explain in their opposition to the pending motion, their motion for an extension of time to file an
answer to the SAC was directly responsive to Plaintiffs counsel’s representations to Judge
Dickson that it intended to introduce the SAC as a trial exhibit. (Defs.’ Br. at 7). Upon learning
of this intention, Defendants sought to file an answer to the SAC “out of time to address the factual
assertions and to avoid what would be a manifest injustice if Defendants were not permitted to
refute allegations made in the [SAC].” (Id.). Given this background, it does not appear that
Defendants’ late filing was premeditated or malicious; rather, it was responsive to an oversight
that was only recently flagged by Plaintiffs desire to introduce the SAC as an exhibit at trial.
In short, the Court finds that Judge Dickson’s November 23 and December 30th Opinions
and Orders with respect to this issue are not “clearly erroneous.” These rulings are therefore
for the reasons discussed herein, Plaintiffs appeal of Judge Dickson’s November 23, 2016
and December 30, 2016 Opinions and Orders is denied. Judge Dickson’s rulings are affirmed. An
appropriate Order accompanies this Opinion.
IT IS $0 ORDERED.
L. LIIARES, U.S.D.J.
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