EVANS v. NEWARK CITY, et al

Filing 199

OPINION. Signed by Judge Kevin McNulty on 5/19/2021. (bt, )

Case 2:14-cv-00120-KM-MAH Document 199 Filed 05/19/21 Page 1 of 6 PageID: 2724

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
LEE EVANS,
Plaintiff,

Civ. No. 14-120

v.

OPINION

CITY OF NEWARK, et al.,
Defendants.

This matter comes before the Court on the motion (DE 182) of Plaintiff
Lee Evans to appeal Magistrate Judge Hammer’s February 17, 2021 order (DE
181) on reconsideration of the November 16, 2020 order (DE 162) quashing
Plaintiff’s Rule 45 subpoena to the Essex County Prosecutor’s Office.
I.

Background 1
The full background of the case is not described here. (See, e.g., Opinion

(DE 71).) Instead, I recite only the details relevant to this motion, which
appeals Judge Hammer’s order denying Plaintiff’s motion for reconsideration,
which in turn challenged Judge Hammer’s prior order quashing Plaintiff’s
subpoena to Essex County Prosecutor’s Office (ECPO).

For ease of reference, certain key items from the record will be abbreviated as
follows:
1

“DE_”

=

Docket Entry in this Case

“Tr.”

=

Transcript of November 16, 2020 Hearing
before Judge Hammer (DE 182-9)

“Pl. Brf.”

=

Memorandum of Law in Support of Plaintiff’s
Motion (DE 182-1)

“Def. Brf.”

=

Defendant Carrega’s Memorandum of Law in
Opposition to Plaintiff’s Motion (DE 189)

“Pl. Reply”

=

Reply Memorandum of Law (DE 195)
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This case was removed to this Court in January of 2014. (DE 1.) As
Judge Hammer has explained, “[t]his matter has a long procedural history
punctuated by several changes of counsel for Plaintiff, and myriad disputes
and difficulties in completing discovery.” (DE 181 at n.5.)
On August 17, 2020, following a hearing on the parties’ discovery
disputes, Judge Hammer ordered that Plaintiff could not serve written
discovery on the City of Newark Defendants with the exception of certain
designated categories. (DE 152.) On September 1, 2020, Plaintiff issued a Rule
45 subpoena to ECPO. (Pl. Brf., Ex. F.) In relevant part, the subpoena sought
the following information:
Any and all Documents, records, and/or files in your possession,
custody, and control that comprise, constitute, refer, or relate to the
investigation, criminal prosecution, trial, and dismissal in the cases
of:
1) State of New Jersey v. Corey Fallen, Case Number: ESX-12007067; Complaint Number: W2012 0036070706
2) State of New Jersey v. Johnny Be Jones III, Indictment No:
14-05-01287-I; Case Number: ESX-12-007067
3) State of New Jersey v. Brian Love, Indictment No: 14-0501287-I; Case Number: ESX-12-007067
4) State of New Jersey v. Peter Labrada
Including but not limited to:
a) Charging instruments, pleadings, motions, discovery
requests, documents tendered in discovery and discovery
receipts, subpoenas, subpoenas duces tecum, court orders,
and correspondence;
b) All police reports; investigative reports; supplemental or
continuation reports;
c) Photographs (including but not limited to line-up photos,
photo arrays and crime scene photos);
d) Any statements of all the defendants and witnesses whether
oral, handwritten, court reported, or audio and/or video
recorded;

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e) Any requests or protocols for the testing and/or analysis of
DNA, fingerprints, blood and other bodily fluids, and any other
materials or physical evidence, and any laboratory reports and
test results relating to such testing and/or analysis;
f) All investigators’ reports and notes;
g) Transcripts of court proceedings (including but not limited
to status hearings, pre- trial motions, grand jury, trial, postconviction, and dismissal hearings);
h) Any exhibits marked for identification and/or admitted into
evidence, and any evidence used or available for use at trial,
and/or dismissal.
5) All policies, guidelines, directives, and Standard Operating
Procedures of the Essex County Prosecutor’s Office or any agency
affiliate with the Essex County Prosecutor’s Office related to
investigative procedures in effect between 2007 and 2012.
(Pl. Brf., Ex. F.) Defendant Carrega moved to quash Plaintiff’s subpoena,
though his motion focused on the request for personnel, disciplinary, and
performance files. 2 (DE 157.) After holding a hearing with the parties, Judge
Hammer ordered ECPO to turn over certain information about the prior
lawsuits, including the captions, but quashed Plaintiff’s subpoena in all other
respects. (DE 162 at 2.)
Plaintiff filed a motion to reconsider Judge Hammer’s order specific to the
request for criminal prosecution files for two criminal cases that were
investigated by two of the defendants in this case and the request for ECPO
policies pertaining to criminal investigations. (DE 166.) Judge Hammer denied
the motion, and Plaintiff now appeals that decision. (DE 181.)
II.

Legal Standard
The District Court will reverse a Magistrate Judge’s decision on a non-

dispositive motion only if it is “clearly erroneous or contrary to law.” Fed. R.
Civ. P. 72(a); L. Civ. R. 72.1(c)(1)(A). This Court has frequently spoken of the

Plaintiff did not seek reconsideration of Judge Hammer’s Order with respect to
Defendant Carrega’s personnel/disciplinary records. (DE 181 at n.2.)
2

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discretion granted to the Magistrate Judge in non-dispositive matters. Where
the appeal seeks review of a matter within the core competence of the
Magistrate Judge, such as a discovery dispute, an abuse of discretion standard
is appropriate. See Cooper Hospital/Univ. Med. Ctr. v. Sullivan, 183 F.R.D. 119,
127 (D.N.J. 1998); Deluccia v. City of Paterson, No. 09-703, 2012 WL 909548,
at *1 (D.N.J. March 15, 2012). “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., Ltd. v. Sara Lee Hosiery, 177 F.R.D. 205, 214 (D.N.J. 1997) (internal
quotations omitted); see Deluccia, 2012 WL 909548, at *1 (same).
III.

Discussion

Plaintiff appeals Judge Hammer’s decision, arguing as follows: (1) the
ECPO did not move to quash the subpoena 3; (2) no party to the lawsuit moved
to quash those paragraphs of the subpoena; (3) the requests are clearly
relevant to the litigation; and (4) the subpoena did not end-run Judge
Hammer’s August 17, 2020 order that was entered in response to Plaintiff’s
motion to issue written discovery requests to the City of Newark. (Pl. Brf. at
13.)
As Judge Hammer explained in denying reconsideration:
[The November 16, 2020] ruling was an appropriate enforcement of
the Court’s August 17, 2020 ruling. The August 17, 2020 decision
allowed certain of Plaintiff’s discovery requests and denied others,
finding that Plaintiff’s requests were unduly broad and far-reaching
as a general matter, and certainly in view of the age and procedural
history of this case. Plaintiff neither moved for reconsideration of
that decision, nor appealed it. Instead, Plaintiff attempted to obtain
the remaining discovery through the subpoena, notwithstanding the
limitations in the August 17, 2020 ruling. It is well settled that
“matters of docket control and conduct of discovery are committed
to the sound discretion of the district court.” In re Fine Paper
Antitrust Litig., 685 F.2d 810, 818 (3d Cir. 1982); see also Coyle v.
3

Plaintiff does not argue that Carrega lacked standing to oppose the subpoena,
and in fact acknowledged that he did. (Ex. H at 13.)
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Hornell Brewing Co., No. 08-2797, 2009 WL 1652399, at *3 (D.N.J.
June 9, 2009) (“In discovery disputes, the Magistrate Judge
exercises broad discretion and is entitled to great deference.”)
(citations omitted); Gerald Chamales Corp. v. Oki Data Americas,
Inc., 247 F.R.D. 453, 454 (D.N.J. 2007) (“Magistrate Judges have
broad discretion to manage their docket and to decide discovery
issues, including whether to stay discovery pending a decision on a
dispositive motion.”).
Plaintiff has not met his burden of establishing that the Magistrate
Judge's decision constituted an abuse of discretion or was otherwise clearly
erroneous or contrary to law. Kresefky v. Panasonic Commc'ns & Sys. Co., 169
F.R.D. 54, 64 (D.N.J. 1996). Plaintiff has not identified any controlling case law
contrary to Judge Hammer’s order, 4 and I am not “left with the definite and
firm conviction that a mistake has been committed.” Coyle v. Hornell Brewing
Co., No. 08-2797, 2009 WL 1652399, at *3 (D.N.J. June 9, 2009). Judge
Hammer explained that his order quashing Plaintiff’s subpoena was an
enforcement of his August 2020 discovery order. (Tr. at 31.) Plaintiff has offered
a competing view, but I do not place Plaintiff’s interpretation of Judge
Hammer’s order over Judge Hammer’s own interpretation.
In the transcript from the November 16, 2020 hearing, Judge Hammer
clearly expressed his view that the Subpoena was in violation of the August 17,
2020 order and allowed Plaintiff to respond. (Tr. at 6.) Plaintiff acknowledged
that the Subpoena would fall within the categories discussed in the Order but
stated counsel’s position that the order did not apply to Defendant Carrega.
(Tr. at 16.) Judge Hammer clarified that it did apply to Carrega. (Tr. at 23.)
Paragraph 1 of the August 2020 Order applies to “officers directly involved in
the investigation and prosecution of Plaintiff, and their immediate
4 Plaintiff’s citation to Conrey v. IBM Corp. (In re Subpoena to Keebaugh), 2019
U.S. Dist. LEXIS 193395 (E.D. Pa. Nov. 6, 2019) is unconvincing, as the current
dispute involves an interpretation of Judge Hammer’s prior discovery order, a matter
as to which Judge Hammer obviously has both discretion and expertise. Further, the
Conrey proposition to which Plaintiff cites—that it was improper to issue a third-party
subpoena to obtain information already requested from the parties—does not mean
Plaintiff’s third-party subpoena should be allowed simply because the documents are
not in the parties’ possession. Id. at *12.

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supervisor(s).” (DE 152 at 2.) Carrega is identified in the Complaint as having
submitted an affidavit in support of an application for an arrest warrant for the
Plaintiff. (DE 33-1 at ¶ 17.) Carrega therefore was such an officer, and fell
within the purview of the order.
Plaintiff argues further that he should be relieved from the order because
the need for the sought-after information was unforeseen; it arose, he says,
only during Carrega’s deposition. It was foreseeable, however, even from the
allegations of the Complaint, that plaintiff would seek information about these
policies and practices. Additionally, the deadline for serving written discovery
had already passed, based on the order issued after the November 22, 2019
teleconference. (Tr. at 8, 9.)
This dispute is fundamentally one of scheduling and discovery
management. Judge Hammer appropriately exercised his broad authority to
manage discovery, especially in light of the longevity of the discovery process in
this case. Judge Hammer’s February 17, 2021 order is therefore affirmed.
IV.

Conclusion
Accordingly, for the reasons expressed above, Plaintiff’s appeal (DE 182)

is denied, and the order of Magistrate Judge Hammer (DE 181) is affirmed. An
appropriate order follows.
Dated: May 19, 2021
/s/ Kevin McNulty
____________________________________
Kevin McNulty
United States District Judge

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