MAYS v. TOLOZA et al
OPINION AND ORDER denying 126 Appeal Magistrate Judge Decision to District Court. Signed by Judge John Michael Vazquez on 9/15/17. (sr, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Not for Publication
Civil Action No. 13-cv-06 10$
EDUARDO TOLOZA, ROBERT KAKELESKI,
MUHAMMED AKIL, CITY OF JERSEY CITY,
OPINION & ORDER
John Michael Vazguez, U.S.D.J.
This case concerns alleged discrimination and personal injury that Plaintiff Roxanne Mays
suffered during her time as a Deputy Tax Assessor in Jersey City, New Jersey. At issue is the
deposition of psychiatrist Dr. M.A. Rifai, Plaintiffs treating physician and expert witness. It
appears that during a telephone conference with Magistrate Judge Clark on December 9, 2016,
Plaintiff requested that Dr. Rifai be represented by his own counsel during his deposition. D.E.
117. Judge Clark instructed Plaintiff to submit a letter indicating why Dr. Rifai should be allowed
his own counsel. D.E. 117. Plaintiff submitted the letter on December 20, 2016, and Defendant
responded on July 3, 2017. D.E. 120, 122. Afier a phone conference between the parties on
January 3, 2017, Judge Clark issued a letter order denying Plaintiffs request. D.E. 124 (Transcript
at D.E. 127 Attachment 1). Plaintiff filed the instant appeal of Judge Clark’s decision on February
6, 2017, seeking an order from this Court allowing Dr. Rifai to have his own counsel present at his
deposition. D.E. 126.
Background & Procedural History
The following facts are derived from Plaintiffs Complaint (Ex. A to D.E. 1). Plaintiff
alleges that while working as a Deputy Tax Assessor for the City of Jersey City, she was subject
to systemic unfair treatment at the hands of Defendants, who sought to advance the careers of
white employees while discriminating against employees of color, including Plaintiff, who is of
African American and Puerto Rican ancestry. Plaintiff seeks damages for the economic losses she
suffered as well as for emotional distress.
Plaintiff initially filed her Complaint in the Superior Court of New Jersey in Hudson
County. D.E. 1. Defendants removed the action to the District Court on October 15, 2013. D.E.
1. Discovery is ongoing.
Standard of Review
A magistrate judge may hear and determine any non-dispositive pretrial matter pursuant to
§ 636(b)(1)(A). A district court may only reverse a magistrate’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). “[A] finding is ‘clearly erroneous’ when although there is evidence
to support it, the reviewing court on the entire evidence is left with the definite and firm conviction
that a mistake has been committed.” Anderson v. City ofBessemer City, I’LC., 470 U.S. 564, 573
(1985). Under this standard, a district court “will not reverse the magistrate judge’s determination
even if the court might have decided the matter differently.” Bowen v. Parking Auth. of City of
Camden, No. 00-5765, 2002 WL 1754493, at *3 (D.N.J. July 30, 2002). The court will, however,
“conduct a de novo review a magistrate judge’s legal conclusions.” Cooper Hosp./Univ. Med. Ctr.
v. Sullivan, 183 F.R.D. 119, 127 (D.N.J. 199$).
“Where the appeal seeks review of a matter within the exclusive authority of the Magistrate
Judge, such as a discovery dispute, an even more deferential standard, the abuse of discretion
standard, may be applied.” Miller v. P. G. Lewis & Assocs., Inc., No. 05-5641, 2006 WL 2770980,
at *1 (D.N.J. Sept. 22, 2006). An 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 [person] would take the view adopted by the trial court.” Ebert v. Twp. ofHamilton,
No. 157331,2016 WL6778217,at*2(D.N.J.Nov. 15,2016).
As an initial matter, Plaintiff has presented very little law in support of the assertion that
Dr. Rifai is entitled to his own lawyer during his deposition. D.E. 120, 126. Plaintiff cites two
cases in both the letter brief directed to Judge Clark and the brief on appeal to this Court: Stamy v.
Parker and Kull v. Arrowwood Indemnity Co.
Neither are factually similar to the instant case.
See 138 F.R.D. 214 (D.N.J. 1990), No. 13-4343 (D.N.J. Oct. 11, 2013). Indeed, neither address
the need for a treating physician or an expert witness to have independent counsel, much less
during a deposition.’ Additionally, the legal argument section of Plaintiffs brief on appeal is two
pages long and offers no explanation as to why Dr. Rifai is entitled to private counsel other than
his interest in the “confidentiality of his treatment of the plaintiff.
as well as his methodology.”
D.E. 126-3. However, Dr. Rifai’s treatment of Plaintiff and his methodology in reaching his
conclusion are directly at issue in this case and Defendants can depose the doctor on both issues.
What is more, there is a confidentiality order in place over the discovery in this case. D.E. 17.
Judge Clark noted that both cases were not on point during his conference with the attorneys on
this issue. D.E. 127-1 (T 3:17-20).
Thus, if information is revealed during the deposition that should be kept confidential outside the
confines of the case, the attorneys can so designate it.
Judge Clark’s decision not to permit Dr. Rafai to have his own attorney present during his
deposition was not clearly erroneous nor an abuse of discretion. Plaintiff points to no evidence or
law that would require this Court to come to a different result.
For the foregoing reasons, and for good cause shown, it is ORDERED that Plaintiffs appeal
Date: September 15, 2017
John Michael Vazqie,k
United States Distri( Judge
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