CUSTIN v. WIRTHS

Filing 168

LETTER OPINION & ORDER granting in part and denying in part 146 Motion to Compel. Signed by Magistrate Judge Michael A. Hammer on 2/8/17. (sr, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Chambers of

Martin Luther King Jr. Federal
Bldg. & U.S. Courthouse
50 Walnut Street, Room 2042
Newark, NJ 07102
[phone]

Michael A. Hammer
United States Magistrate Judge

February 8, 2017

To:

John M. Custin, Pro Se
54 Chestnut Drive
Wayne, NJ 07470

All counsel of record
LETTER OPINION AND ORDER
RE:

John M. Custin v. Harold J. Wirths, et. al.
Civil Action No. 12-910 (KM)(MAH)

Dear Litigants:
Presently before the Court is Plaintiff pro se John M. Custin’s motion to compel
compliance with subpoenas served on non-parties New Jersey Department of Labor and
Workforce Development (“NJDOL-WD”), New Jersey Department of Labor-Unemployment
Insurance (“NJDOL-UI”), and Equifax Workforce Solutions, Inc. (“Equifax”). [D.E. 146]. For
the reasons set forth below, Plaintiff’s motion is denied in part and granted in part.
Background
This action was filed by pro se Plaintiff, John M. Custin, alleging constitutional and
statutory violations in connection with the process of applying for unemployment benefits
following his termination of employment with Walmart in April 2010. See generally Third Am.
Compl., D.E. 38. Plaintiff’s five applications for unemployment benefits to the New Jersey
Department of Labor (NJDOL) were denied, as were Plaintiff’s appeals of those determinations
with the agency’s first appellate level, the Appeals Tribunal, and the agency’s final appeal level,
the Board of Review. Id. Plaintiff filed suit in this Court against the Commissioner of the
NJDOL, Harold Wirths, three officials who sat on the Board of Review, Joseph Sieber, Gerald
Yarbrough, and Jerald Maddow (collectively, “State Defendants”), the current and former United
States Secretary of Labor, and the Assistant Secretary of Employment and Training Administration
(collectively, “Federal Defendants”). Id.

On January 31, 2014, Judge McNulty granted the Federal Defendants’ motion to dismiss
Plaintiff’s Third Amended Complaint. D.E. 82. On March 22, 2016, upon the State Defendants’
motion, Judge McNulty dismissed with prejudice all of Plaintiff’s claims based on alleged
violations of the Eighth Amendment and the Social Security Act, and dismissed with prejudice all
claims against Defendant NJDOL. D.E. 130. However, Judge McNulty denied the State
Defendant’s motion as it pertained to Plaintiff’s claims based on alleged violations of the Due
Process Clause of the Fourteenth Amendment. Id. Thus, Plaintiff’s claims against individual
Defendants Wirths, Sieber, Yarbrough, and Maddow, which allege violations of Plaintiff’s due
process rights are currently still viable in this action. The claims alleging violations of the Due
Process Clause of the Fourteen Amendment, as articulated in Plaintiff’s Third Amended
Complaint, include (1) failing to provide Plaintiff with a copy of all documents used in his
hearings; (2) failing to notify Plaintiff of his appellate rights, (3) failing to provide proper notice
of hearings, and (4) failing to consider key evidence necessary for Plaintiff’s appeal. Third Am.
Compl. ¶2-14.
From February 2016 to May 2016, Plaintiff served a total of six document subpoenas on
NJDOL-WD, NJDOL-UI, and Equifax, a human resources contracting company, seeking
information pertaining to his claims. See Pl.’s Mot. to Compel, D.E. 146. Specifically, Plaintiff
sought, from non-party NJDOL-WD: (1) the notice mailed to Plaintiff for a hearing with the Board
of Review scheduled for March 26, 2012, (2) the “complete record on appeal submitted to the
Board of Review,” for appeal dated July 15, 2010, for docket numbers 284 and 329, (3) the
“minutes and recording of the appeal proceeding of the Board of Review,” appeal dated July 15,
2010, for docket numbers 284 and 329, and (4) a “list of all claimants for the [NJDOL] scheduled
telephone hearing[s] in which there was an issue of monetary ineligibly in regard to a claim for UI
benefits between the dates of January 2012 [to] March 2012 and January 2016 and March 2016.
See Subpoenas, D.E. 151. From non-party NJDOL-UI, Plaintiff sought: (5) any document
indicting that NJDOL provided prior notice to Plaintiff regarding evidence that was to be used
against Plaintiff at the June 28, 2010 hearing. Id. From non-party Equifax, Plaintiff sought: (6)
any documents showing which “records were sent to any party…in regard to the UI claim of Ms.
Teresa Goral.” Id.
Both NJDOL-WD and NJDOL-UI failed to respond to the subpoenas in any way.
Equifax, through its corporate counsel, responded to Plaintiff’s subpoena by indicating that it
would not produce any documents identified in the subpoena without a court order, as the
documents requested were considered “confidential.” Exh. B. to Pl.’s Mot. to Compel, D.E. 1463.
On July 14, 2016, Plaintiff filed the present motion to compel compliance with his
subpoenas. D.E. 146. None of the non-parties subject to the subpoenas filed opposition to the
motion to compel. However, Defendants filed a three-page opposition letter asserting that since
the claims against the NJDOL had been dismissed in their entirety, the information sought was not
relevant to the remaining claims against the individual Defendants. Defs.’ Opp’n, D.E. 148.
Furthermore, Defendants argued that the records were confidential under the statute that governs
the administration of the unemployment benefits, N.J.S.A. 43: 21-11(g). Id.

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Discussion
Federal Rule of Civil Procedure 45(d)(2)(B)(I) sets forth the procedure by which this Court
may compel compliance with a subpoena, stating that “[a]t any time, on notice to the commanded
person, the serving party may move the court for the district where compliance is required for an
order compelling production or inspection.”
The permissible scope of discovery under Rule 45 is the same as under Rule 26(b), which
provides that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense … Relevant information need not be admissible at the trial if the
discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R.
Civ. P. 26(b)(1). Where the subpoenaing party shows the documents sought to be relevant, “the
resisting non-party must ‘explain why discovery should not be permitted.’” Biotechnology Value
Fund, L.P. v. Celera Corp., 2014 WL 4272732, *1 (D.N. J. Aug. 28, 2014) (citing Miller v. Allstate
Fire & Cas. Ins. Co., 2009 WL 700142 (W.D. Pa. Mar. 17, 2009)). The Court, in assessing the
reasonableness of a subpoena, should balance several competing factors including: “(1) relevance,
(2) the need of the party for the documents, (3) the breadth of the document request, (4) the time
period covered by it, (5) the particularity with which the documents are described, (6) the burden
imposed, and (7) the subpoena recipient’s status as a nonparty to the litigation.” Id. at *2 (internal
citations omitted). Based on this framework, each discovery request contained in Plaintiff’s
subpoenas will be discussed in turn below.
I.

The notice mailed to Plaintiff for a hearing scheduled with the Board of Review
scheduled for March 26, 2012.

Plaintiff’s operative complaint alleges that Board of Review members violated his due
process rights for failing to provide proper notice of Plaintiff’s hearings. As such, the existence
or nonexistence of a notice for Plaintiff’s hearing is clearly relevant to Plaintiff’s claim.
Defendants argue that this record is confidential because under N.J.S.A. 43: 21-11(g), "All
records, reports and other information obtained from employers and employees under this chapter,
except to the extent necessary for the proper administration of this chapter, shall be confidential
and shall not be published or open to public…and shall not be subject to subpoena or admissible
in evidence in any civil action." Id. However, because the statute clearly only protects
“information obtained from employers and employees,” a hearing notice is not considered
confidential. See Paff v. New Jersey Dept. of Labor, Bd. of Review, 379 N.J. Super. 346, 356357 (App. Div. 2005).
Therefore, Plaintiff’s motion to compel compliance with his request for production of the
hearing notice is hereby GRANTED.
II.

The “complete record on appeal submitted to the Board of Review,” for appeal
dated July 15, 2010, for case numbers 284 and 329.

Plaintiff’s operative complaint alleges that Board of Review members violated his
procedural due process rights by upholding the Appeals Tribunal’s decision “despite the fact that
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the [Appeals] Tribunal submitted an incomplete ‘record on appeal’” which excluded key evidence
necessary for the appeal. Third Am. Compl. ¶2-14. As such, the record on appeal submitted to
the Board of Review would clearly be relevant insofar as it is “reasonably calculated to lead to the
discovery of admissible evidence to proving Plaintiff’s claim.” Fed. R. Civ. P. 26(b)(1).
Again, Defendants argue that this material is protected by N.J.S.A. 43: 21-11(g). Defs.’
Opp’n, D.E. 148. Because the statute only applies to “records, reports and other information
obtained from employers and employees,” the NJDOL shall provide to Plaintiff any responsive
records which are not considered confidential under the statute.
Furthermore, for any material that the NJDOL deems confidential under the statute, the
agency must produce a sworn statement of agency personnel “setting forth in detail the following
information: (1) the search undertaken to satisfy the request; (2) the documents found that are
responsive to the request; (3) the determination of whether the document or any part thereof is
confidential and the source of the confidential information; [and] (4) a statement of the agency's
document retention/destruction policy and the last date on which documents that may have been
responsive to the request were destroyed.” See Paff v. New Jersey Dept. of Labor, 392 N.J. Super.
334, 341 (App. Div. 2007). The sworn statement must also have attached to it “an index of all
documents deemed by the agency to be confidential in whole or in part, with an accurate
description of the documents deemed confidential.” Id. Therefore, Plaintiff’s motion to compel
compliance with his request for production of the record of his appeals is hereby GRANTED.

III.

The “minutes and recording of the appeal proceeding of the Board of Review,”
for appeal dated July 15, 2010, for case numbers 284 and 329.

As stated above, Plaintiff’s operative complaint alleges that Board of Review members
violated his procedural due process rights by upholding the Appeals Tribunal’s decision “despite
the fact that the [Appeals] Tribunal submitted an incomplete ‘record on appeal’” which excluded
key evidence necessary for Plaintiff’s appeal. Third Am. Compl. ¶2-14. As such, “the minutes
and recording of the appeal to the Board of Review” would be relevant insofar as it is “reasonably
calculated to lead to the discovery of admissible evidence to proving Plaintiff’s claim.” Fed. R.
Civ. P. 26(b)(1).
As explained above, the NJDOL must provide any responsive documents which are not
deemed confidential under N.J.S.A. 43-21-11(g). For any documents the NJDOL deems
confidential, the agency must provide Plaintiff with the sworn statement of agency personnel and
index of confidential documents, as described above. Therefore, Plaintiff’s motion to compel
compliance with his request for production of the “minutes and recording” of his appeal is hereby
GRANTED.

IV.

A “list of all claimants” scheduled for NJDOL telephone hearings “in which there
was an issue of monetary ineligibly in regard to a claim for [unemployment
insurance] benefits between the dates of January 2012 and March 2012 and
January 2016 and March 2016.”
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Plaintiff’s complaint alleges violations of his due process rights in connection with the
process of applying for unemployment benefits with the NJDOL Board of Review. Because
Plaintiff’s claims are unique to him, information regarding other claimants’ processes is not to his
claim, and therefore, not discoverable. Therefore, Plaintiff’s motion to compel compliance with
this request is DENIED.

V.

Any document indicting that NJDOL provided prior notice to Plaintiff regarding
evidence that was to be used against Plaintiff at the June 28, 2010 hearing.

Plaintiff’s operative complaint alleges that the Board of Review members violated his due
process rights by failing to provide Plaintiff with a copy of all documents used in his hearings. As
such, the existence or nonexistence of these notices would be relevant insofar as it is “reasonably
calculated to lead to the discovery of admissible evidence to proving Plaintiff’s claim.” Fed. R.
Civ. P. 26(b)(1).
As explained above, because this request does not ask for information “obtained from
employers and employees,” the information is not confidential and therefore, Plaintiff’s request to
compel compliance with this document demand is hereby GRANTED.

VI.

Records from Equifax indicating which “records were sent to any party… in
regard to the [unemployment insurance] claim of Ms. Teresa Goral.”

In his moving papers, Plaintiff fails to articulate why records relating to another person’s
unemployment insurance claim would be relevant to his claims. Because plaintiff’s claims are
unique to him, insofar as they allege violations of his due process rights in connection with the
process of applying for unemployment benefits, information regarding another claimant’s claim is
not relevant and therefore, not discoverable. Therefore, Plaintiff’s motion to compel compliance
with this request is DENIED.

Conclusion
Upon consideration of the parties’ submissions and the applicable law, Plaintiff’s motion
to compel compliance with his subpoenas [D.E. 146] is DENIED IN PART AND GRANTED
IN PART.

So Ordered,
/s Michael A. Hammer
UNITED STATES MAGISTRATE JUDGE

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