RIOS v. CITY OF BAYONNE et al

Filing 161

OPINION/ORDER denying 150 Motion for Reconsideration re 145 Order on Appeal of Magistrate Judge Decision, 144 Opinion. Signed by Judge Kevin McNulty on 5/19/15. (DD, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Jason RIOS,

Civ. No. 2:12-4716
(KM) (MAR)

Plaintiff,
V.

OPINION & ORDER

CITY OF BAYONNE et al.,
Defendants.

KEVIN MCNULTY, U.S.D.J.:
This matter comes before the Court upon Defendant Officer James
Mahoney’s motion for reconsideration (ECF No. 150) of this Court’s April
8, 2015 Opinion and Order (ECF Nos. 144, 145). That April 8 Order
denied Mahoney’s appeal of Judge Rammer’s refusal to stay discovery.
For the reasons set forth below, Mahoney’s motion for
reconsideration is DENIED.
I.

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BACKGROUND

This action arose out of an August 29, 2010 incident between Rios
and defendant members of the City of Bayonne’s Police and Fire
Departments.
On October 25, 2013, all of the defendants moved to stay discovery
because there was an ongoing criminal investigation of them regarding
the same incident. (See Defs. Mot. to Stay, ECF No. 67 (brief at 68-4)).

A more detailed description of the facts is included in my April 8, 2015
Opinion (ECF No. 144), as well as a companion opinion filed today.
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The defendants argued that discovery could not continue because the
defendants would either have to invoke the Fifth Amendment or risk
incriminating themselves, either in depositions or by the act of producing
documents in discovery.
On August 14, 2013, the fire and police departments were served
with grand jury subpoenas from the U.S. Attorney’s Office for the District
of New Jersey (“USAO”) related to the August 29, 2010 incident. The
subpoenas mentioned the officers at the scene by name. (See Transcript
of Nov. 18, 2013 Hearing (“Nov. 18, 2013 Tr.”), ECF No. 134-2, Ex. B,
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10:4—7, 19:9—20:2 1; see also Davie Cert. ¶4, ECF No. 64). The
government also subpoenaed the Internal Affairs Unit’s files. (Id. 24:4—8).
The individual defendants, however, were not subpoenaed. (Id. 32:24—
33:1). In addition, Mahoney’s attorney, Mr. Till, stated at oral argument
before Judge Hammer “that there were statements made to, not to [Tilli,
but to other counsel that indictment [of the officers] was imminent.” (Id.
36:9—11; see also 45:5—8). Rios was also “summoned to speak with
federal law enforcement” regarding the federal criminal investigation of
the defendants. (Id. 63:4—7 (quoting P1. Opp. to Defs. Mot. to Stay at 2,
ECF No. 69)).
On November 18, 2013, Judge Hammer held a hearing and ruled
on the defendants’ first motion to stay discovery. (See id.). In his ruling,
he balanced the Walsh factors and concluded that they weighed in favor
of granting a stay for a period of 90 days (except as to document
discovery). (Id. 7 1:9—20); see Walsh Sec., Inc. v. Cristo Prop. Mgmt., Ltd., 7
F. Supp. 2d 523, 527 (D.N.J. 1998).
On May 27, 2014, Judge Hammer held oral argument as to
whether the stay should be treated as having expired. (See Transcript of
May 27, 2014 Hearing (“May 27, 2014 Tr.”), ECF No. 134-2, Ex. C). The
The Certification of Kenneth P. Davie, dated October 7, 2013, submitted
in support of the defendants’ motion to seal; ECF No. 62 = Davie Cert.
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stay remained in place.
On September 22, 2014, Judge Hammer heard the parties’
arguments as to whether to extend the stay. (See Transcript of
September 22, 2014 Hearing (“Sept. 22, 2014 Tr.”), ECF No. 134-2, Ex.
D). At the hearing, Rios’s counsel, Mr. Aboushi, informed Judge Hammer
that FBI Agent Laura Rugler had told his co-counsel, Mr. Silberman,
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“that the FBI completed their investigation and were not moving forward
with any charges against the defendants.” (Id. 11:11—18). Mr. Till
confirmed that the defendants had no reason to disbelieve this
representation. (Id. 12:3—12). Mr. Till nevertheless sought a Fed. R. Evid.
104 hearing on the issue of whether a criminal investigation was
pending. (Id. 12:3—6; 13:16—20). Because it was unclear at that point
whether the government had concluded its investigation of the officers,
Judge Hammer continued the stay. He scheduled an additional hearing
for December 10, 2014. (Id. 28:8—16). Judge Hammer also instructed Mr.
Aboushi to send notice to the United States Attorney’s Office regarding
the December 10, 2014 hearing so that they could appear if they wished.
(Id. 30:1—4).
On December 10, 2014, Judge Hammer conducted a hearing
regarding the stay and received updates as to the status of any
government investigations. (See Transcript of December 10, 2014
Hearing (“Dec. 10, 2014 Tr.”), ECF No. 134-2, Ex. E). Defendants
Saroshinsky and Mahoney received letters informing them that (1) they
were no longer targets of a criminal investigation by the DOJ Civil Rights
Division and (2) the USAO took no position with respect to whether the
current civil proceedings should be stayed. (Id. 4:6—6:21). Counsel for
Mahoney, Mr. Till, said that AUSA Eicher had represented to him that
the USAO would not take a position as to whether it was investigating
Mahoney. (Id. 7:24—8:10). Mr. Till nevertheless expressed his ongoing
3

The spelling of the FBI Agent’s name is phonetic in the transcript.
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concern about a potential USAO investigation for two reasons: (1) The
letters to Saroshinsky and Mahoney included the following disclaimer:
“Please be advised that [the DOJ Civil Rights Division’s] conclusion in
this matter does not preclude other components of the U.S. Department
of Justice from taking action where appropriate under their separate
enforcement authority,” (Id. 12:8—17) (2) The USAO took no position with
respect to a stay in the current matter, which led Mr. Till to an
“inference” that USAO has “left all their options open.” (Id. 12:18—25).
Counsel for defendants Saroshinsky and Popowski, Ms. Garcia, also
remained concerned about the USAO subpoenas that were part of the
basis for Judge Hammer’s first imposition of a stay. (Id. 16:8—18:13). Till
and Garcia acknowledged, however, that neither of them had asked the
USAO for an update in the year preceding the December 10, 2014
hearing. (Id. 18:9—25). Judge Hammer noted that Amato and Popowski
had not received letters informing them that they were no longer targets
of a DOJ investigation. (Id. 20:10—21:17). At that point, plaintiff Rios’s
counsel, Mr. Silberman, added that he had received a letter from the
DOJ Civil Rights Division (ECF No. 116-1) stating that their investigation
was closed. (Id. 24:15—22). That letter reads in pertinent part as follows:
We recently completed our review of the results of the
investigation to determine whether a federal criminal
prosecution could be brought concerning allegations that the
civil rights of Mr. Jason Rios were violated by officials of the
Bayonne Police Department. After careful consideration, we
concluded that the evidence does not establish a
prosecutable violation of the federal criminal civil rights
statutes. Accordingly, we have closed our investigation and,
based on current information, do not plan to take any
further action.
(DOJ Letter Oct. 3, 2015, ECF No. 116-1).
After receiving all of this information, Judge Hammer adjourned
the proceedings and continued the stay, with instructions for the parties
to return with the following information: (1) whether Popowski and
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Amato had received a similar letter informing them that they are not
targets of a DOJ investigation; and (2) whether the USAO was willing to
say any more about a potential investigation of Mahoney. (Dec. 10, 2014
Tr. 30:9—31:2 1).
On February 9, 2015, Judge Hammer held a final hearing
regarding the stay issue. (See Transcript of Feb. 9, 2015 Ruling (“Feb. 9,
2015 Tr.”), ECF No. 134-2, Ex. F). Before that hearing, the parties
submitted letters in response to Judge Hammer’s requests for
information. (See Landis Jan. 26, 2015 Letter, ECF No. 127; Till Jan. 26,
2015 Letter, ECF No. 128). The parties’ responses stated that the DOJ
Civil Rights Division had closed its investigation and that the USAO had
“invoked its policy of not indicating one way or the other whether there
was an open or closed investigation.” (Feb. 9, 2015 Tr. 4:25—5:11; see
Landis Jan. 26, 2015 Letter; Till Jan. 26, 2015 Letter). At the hearing,
Mr. Till confirmed that he had no knowledge of any open or ongoing
criminal investigation of Mahoney. (Feb. 9, 2015 Tr. 5:16—21). Mr. Till
also expressed concern over Mahoney’s potential involvement in other
civil rights cases involving the City of Bayonne and an indictment against
an officer of the Bayonne PD for civil rights violations. (Id. 6:2—7:2 1).
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Specifically, Mr. Till spoke of “broad-based allegations of an environment
of civil rights violations in the City of Bayonne and its police
department,” as evidenced by these cases. (Id. 7:19—21). Mr. Silberman
replied that he was actually counsel to the plaintiff in one of these cases
and could represent to the Court that Mahoney was in no way involved.
(Id. 8:1—10). To this, Mr. Till replied that he was still concerned that

Mr. Till was referring to the current civil rights lawsuit by Brandon and
Kathy Walsh against the City of Bayonne, officers of the Bayonne Police
Department, and John Does 1-25, pending before Judge Katharine S. Hayden
of this district (Civ. No. 14-7 186 (KSH-CLW)), as well as the criminal civil rights
case against Officer Domenico Lillo that is pending before this Court (Crim. No.
15-0043 (KM)). Mr. Till also referred to a case pending against a defendant
named “Johnson.” (Feb. 9, 2015 Tr. 9: 13—21).
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Mahoney might be involved in a future case based on the “culture of
behavior in the Bayonne police department.” (Id. 10:2—14).
Having heard the parties’ arguments, Judge Hammer denied Mr.
Till’s request to stay discovery. (See id. 11:2—12:15; Order, ECF No. 131).
Judge Hammer noted that “the only criminal investigation that anybody
was actually aware of has since now been verified by the Civil Rights
Division to have been closed,” and that the parties had no knowledge of
any active investigation by the USAO. (Id.). As to Mr. Till’s more general
concerns about other civil cases and the culture of behavior by the
Bayonne PD, Judge Hammer reasoned that “if [he] stayed the litigation
because of the mere threat” of a lawsuit involving Mahoney, then he
would essentially have to stay the current case until the statute of
limitations had run on any potential criminal offenses. (Id.). Judge
Hammer concluded that there was no basis to believe any agency of the
federal government was conducting an investigation into Mahoney or the
incident giving rise to this litigation.
On February 24, 2015, Mahoney appealed Judge Hammer’s denial
of his request to stay discovery. (ECF No. 134.) On April 8, 2015, I denied
Mahoney’s appeal. (April 8, 2015 Opinion, ECF No. 144; Order, ECF No.
145.)
Mahoney now moves for reconsideration of my April 8, 2015
Opinion and Order. (ECF No. 150.) He focuses on Judge Hammer’s denial
of a Rule 104 hearing.
II.

MOTION FOR RECONSIDERATION
a. Standard for motion for reconsideration

Reconsideration is an “extraordinary remedy,” to be granted
“sparingly.” NL Indus. Inc. v. Commercial Union Ins. Co., 935 F. Supp.
513, 516 (D.N.J. 1996). Generally, reconsideration is granted in three
scenarios: (1) when there has been an intervening change in the law; (2)

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when new evidence has become available; or (3) when necessary to
correct a clear error of law or to prevent manifest injustice. See North
River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir.
1995); Carmichael v. Everson, 2004 WL 1587894, at *1 (D.N.J. May 21,
2004). Local Rule 7.1(i) requires such a motion to specifically identify
“the matter or controlling decisions which the party believes the Judge or
Magistrate Judge has overlooked.” Id.; see also Egloff v. New Jersey Air
Nat’l Guard, 684 F. Supp. 1275, 1279 (D.N.J. 1988). Evidence or
arguments that were available at the time of the original decision will not
support a motion for reconsideration. Damiano v. Sony Music
Entertainment, Inc., 975 F. Supp. 623, 636 (D.N.J. 1997); see also North
River Ins. Co., 52 F.3d at 1218; Bapu Corp. v. Choice Hotels Int’l, Inc.,
2010 WL 5418972, at *4 (D.N.J. Dec. 23, 2010) (citing P. Schoenfeld
Asset Mgmt. LLC v. Cendant Corp., 161 F. Supp. 2d 349, 352 (D.N.J.
2001)). Mere disagreement with a holding is properly expressed via an
appeal, not a motion for reconsideration. See Morris v. Siemens
Components, Inc., 938 F. Supp. 277, 278 (D.N.J. 1996).
b. Discussion of motion for reconsideration
Mahoney has not presented any new evidence, change in law, or
clear error that would warrant reconsideration of his request to hold a
Rule 104(a) hearing. Rather, he maintains that it is “absolute[lyJ
necessary” to “conduct[] a Rule 104 hearing to once and for all
conclusively establish whether a criminal investigation of the collective
Defendant police officers is ongoing.” (Mahoney Recons. Mot. 1—2, ECF
No. 150.)
Mahoney disputes this Court’s conclusion that a Rule 104 hearing
would be fruitless, but he does not offer any evidence to suggest
otherwise. Indeed, based on the entire record, including responses from
the FBI and the U.S. Attorney’s Office, there is no indication that any

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investigation of the officers is ongoing. More importantly, there is no
indication that any more information is available from either agency,
whether in the context of a Rule 104 hearing or not.
As Judge Hammer noted, “the only criminal investigation that
anybody was actually aware of has since now been verified by the Civil
Rights Division [of the Department of Justice] to have been closed.” (Feb.
9, 2015 Tr., ECF No. 134-2, Ex. F, 11:2—12:15; see also Till Jan. 26,
2015 Letter, ECF No. 128). The USAO has “invoked its policy of not
indicating one way or the other whether there was an open or closed
investigation.” (Feb. 9, 2015 Tr. 4:25—5:11; see Landis Jan. 26, 2015
I
Lett.er, ECF No. 127; Till Jan. 26, 2015 Letter). As Judge Hammer and
have previously noted, the DOJ Civil Rights Division’s conclusion that a
prosecution is not warranted undercuts any general inference that the
USAO is going ahead with an investigation. (Dec. 10, 2015 Tr. 8:21—9:9;
April 8, 2015 Opinion at 11—12, ECF No. 144.)
As for the FBI, Rios’s counsel, Mr. Aboushi, confirmed that FBI
Agent Laura Rugler told his co-counsel, Mr. Silberman, “that the FBI
completed their investigation and were not moving forward with any
charges against the defendants.” (Sept. 22, 2014 Tr. 11:11—18, ECF No.
134-2, Ex. D).
As observed before, the most that any agency could ever say (in or
out of a Rule 104 hearing) is that its investigation is closed for now.
Mahoney will always face the choice of either testifying, or else (validly or
not) asserting his Fifth Amendment rights based on the fear of a renewed
investigation. Conducting a Rule 104 hearing would not dispel those
concerns or furnish the kind of insurance that he seems to seek. And, as
stated above, there is no indication that more information is available

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from any government agency apart from that already provided.
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III.

CONCLUSION

Accordingly, based on this Opinion and for good cause shown;
IT IS this 19th day of May, 2015,
ORDERED that Defendant Mahoney’s motion for reconsideration
(ECF No. 150) is DENIED.

,éz /f’cfi
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Kevin McNulty
United States District Judge

I note that my decision is not based on Rios’s letter suggesting that
Mahoney and other officers waived their privilege by offering to testify in
municipal proceedings regarding this case. (Rios Supp. Letter, ECF No.
155.) Mahoney denies that he was or is willing to testify in municipal
court. (Mahoney Resp. to Rios Supp. Letter, ECF No. 156; Mahoney
Recons. Reply, ECT No. 160.)
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