WALSH et al v. CITY OF BAYONNE et al
OPINION/ORDER granting 173 Motion to Intervene; that the parties are entitled to order the transcript of the friendly hearing for their review, if they have not done so already, with the transcript to remain sealed to the public; that the parties shall meet and confer and file a motion to seal, if necessary, consistent with the foregoing. Signed by Magistrate Judge Cathy L. Waldor on 11/16/17. (DD, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
BRANDON WALSH, et al.,
: Action No. 14-cv-7186 (CLW)
OPINION & ORDER
CITY OF BAYONNE, et al.,
This matter comes before the Court on non-party the Jersey Journal’s motion (ECF No.
173) to intervene with respect to the settlement agreement reached in this matter. The Jersey
Journal endeavored to obtain the agreement first in proceedings instituted in state court and now
petitions this Court for clarification as to whether the Court sealed the agreement and, if so,
whether the Jersey Journal has a right to view such a judicial record. The City opposes (ECF No.
178) the application and the Court heard oral argument on November 8, 2017. For the reasons set
forth below, the Court grants The Jersey Journal’s motion insofar as intervention is appropriate
and the settlement agreement is not sealed.
As reflected by the docket, this civil rights case enjoyed an eventful history replete with
disputes pertaining to discovery as well as potential and actual parallel criminal proceedings. The
parties regularly called upon the Court to resolve such disputes and, eventually, the matter settled
amicably and the case was closed with certain docket entries sealed at the behest of the parties and
upon Order of the Court. 1 At issue now are the circumstances surrounding the latter events, such
that the Jersey Journal seeks to intervene to gain access to certain information—whether sealed on
the docket or not—while the City contends that this Court’s Order prevents as much and should
not be disturbed.
As to the preliminary issue of intervention, Local Civil Rule 5.3(c)(5) provides that “[a]ny
interested person may move to intervene pursuant to Fed. R. Civ. P. 24(b) before the return date
of any motion to seal or otherwise restrict public access or to obtain public access to materials or
judicial proceedings filed under seal.” Rule 24(b), in turn, provides that, “[u]pon timely application
anyone may be permitted to intervene in an action: 1) when a statute of the United States confers
a conditional right to intervene; or 2) when an applicant’s claim or defense and the main action
have a question of law or fact in common.” A Court in this District has recognized that a motion
to intervene may be entertained and granted “‘even after the underlying dispute between the parties
has long been settled.’” Jackson v. Delaware River & Bay Auth., 224 F. Supp. 2d 834, 838 (D.N.J.
2002) (quoting Pansy v. Borough of Stroudsburg, 23 F.3d 772, 779 (3d Cir. 1994) and Leucadia,
Inc. v. Applied Extrusion Techs., Inc., 998 F.2d 157, 161 (3d Cir. 1993)).
As for motions to seal, Local Civil Rule 5.3(c)(1) provides:
Any request by a party, parties or nonparty to file materials under
seal, or otherwise restrict public access to, any materials or judicial
proceedings shall ordinarily be made on notice, by a single,
consolidated motion on behalf of all parties, unless otherwise
ordered by the Court on a case-by-case basis, including any nonparty which has produced materials as to which it seeks to restrict
public access. No brief is necessary in support or in opposition to
the motion unless a party believes it will assist the Court. The single,
consolidated motion shall include all information required by (c)(3)
In accordance with the Court’s Order to Seal, ECF No. 166, the sealed entries are: Order Approving Settlement,
ECF No. 161; Motion to Seal Order Approving Settlement, ECF No. 163; Amended Order Approving Settlement,
ECF No. 164; and Transcript of Friendly Hearing, ECF No. 169. The Court also sealed the latter item in response to
an oral request made during the hearing.
below. Any motion and supporting papers to seal or otherwise
restrict public access shall be available for review by the public.
In addition, “[a]ny settlement agreement filed with the Court or incorporated into an order shall,
absent an appropriate showing under federal law, be deemed a public record and available for
public review.” L. Civ. R. 5.3(d)(2).
First, the Jersey Journal asserts that it may intervene here because “it is axiomatic that the
public and media have a judicially protected interest in their right of access to judicial records and
proceedings” and its “motion shares a common ‘question of law or fact’ with the main action.”
(Mov. Br., ECF No. 173-1, at 9-10 (collecting cases); Reply, ECF No. 179, at 6-7.) 2 The City
counters that the Jersey Journal’s application is untimely. (Opp., ECF No. 178, at 7-10.)
The Court finds no infirmity with the Jersey Journal’s application to intervene. It is true
that the Jersey Journal did not file its application prior to the return date of the original motion as
prescribed by the Local Rules and apparently first sought relief in state court. However, the Jersey
Journal’s attempt to intervene is not defeated because the materials at issue on the docket were
themselves fully sealed from the outset and hindered the Jersey Journal’s examination and
consideration of the same. Moreover, the Court appreciates the Jersey Journal’s efforts to obtain
the items at issue through the meet and confer process as well as through promptly filed state court
proceedings without instituting competing litigations. And, as discussed below, the settlement
agreement was not actually sealed by the Court and, as a result, the briefing schedule applicable
to motions to seal and interventions does not control. There is likewise no evidence of prejudice
to the City and the Jersey Journal’s application plainly shares common questions with the main
action, i.e., details of the suit, its resolution, and access to the particulars of that resolution. The
References to the record use page numbers assigned by CM/ECF.
Court accordingly concludes that the Jersey Journal is properly situated to proceed on the instant
application. See Jackson, 224 F. Supp. 2d at 837-38 (finding that newspaper had standing to
intervene based on “public’s right to access judicial information” and “ha[d] appropriately utilized
permissive intervention to seek access to the judicial records”).
Turning to the heart of the instant dispute, the Jersey Journal seeks either 1) clarification
that the Court did not seal the settlement agreement, or 2) if the Court did seal the agreement, an
Order finding that the Jersey Journal has a right to obtain it. (Prop. Order, ECF No. 173-4.) In
particular, the Jersey Journal asserts that the Court’s Orders, by their plain terms and in light of
applicable precedent, did not seal the settlement agreement. (Mov. Br., ECF No. 173-1, at 10-11
(citing ECF Nos. 161, 164, 166).) The Jersey Journal goes on to argue that, even if sealed, the
settlement should not remain so and further contends that an additional joint motion to seal is
appropriate with respect to the friendly hearing held in this matter. (Id., at 13-14.)
In opposition, the City maintains that the Court sealed “not only the settlement order, but
the information contained in the documents related to the terms and conditions of the settlement.”
(Opp., ECF No. 178, at 10 (citing ECF Nos. 164-66, 169).) The City emphasizes the sealing here
serves to protect the litigants “from being preyed upon on account of their status” and denies that
supplemental briefing is warranted. (Id., at 4, 13.)
The following is apparent from the docket, a plain reading of the documents therein, and
the Court’s recollection: the parties reached a settlement, properly sought Court approval of the
same via a friendly hearing based on the status of certain parties, secured Court approval in
conjunction with the same, and successfully moved to seal such materials. See ECF Nos. 156, 16166. The parties also transmitted the full settlement agreement to the Court via email and in
confidence to facilitate the Court’s consideration of the settlement for the friendly hearing.
Although the Court received the full agreement and the motion to seal was atypical with
the Court’s leave, there is simply no indication from the relevant docket entries that the entirety of
the agreement was sealed—let alone docketed for consideration—and there is no language
incorporating the settlement into any Order with particularity. The transcript of the friendly hearing
is similarly silent as to sealing the entire agreement, as opposed to merely addressing discrete items
in conjunction with the friendly hearing. It was incumbent upon the parties to articulate the items
to be sealed with specificity, and to submit as much for the Court’s review; vague or incomplete
requests are insufficient to garner relief from the Court. In addition, it must be noted that “[a]
settlement agreement is not a judicial record when it is not filed with the court, interpreted by the
court, or enforced by the court. [An] agreement is not a judicial record even if the court places an
order of confidentiality over it or reviews its terms.” Jackson, 224 F. Supp. 2d at 839 (citing Pansy,
23 F.3d at 781-83); L. Civ. R. 5.3(d)(2). 3 Mindful of this and on the record presented, it must be
concluded that the sealing in this matter did not encompass the parties’ settlement except insofar
as the Court considered and approved a narrow portion of the settlement via the friendly hearing.
The settlement is therefore not a judicial record and the Court need not reach whether the Jersey
Journal has a right to obtain the settlement agreement and leaves the parties to pursue the issue in
Finally, the items currently sealed in relation to the friendly hearing are sealed entirely and
contain sensitive information throughout. Since these items have been sealed from the outset, they
have escaped meaningful review by the public. The Court therefore directs the Jersey Journal and
the parties to meet and confer no later than December 8, 2017 regarding redacted filings; if no
The Court does not consider the email transmission of the full agreement to assist the Court’s consideration of the
friendly hearing to constitute a “fil[ing]” within the meaning of these cases or this Local Rule, and discerns no basis
to find otherwise absent full briefing on the issue.
agreement is reached, then the parties shall have until December 17, 2017 to move to seal in strict
conformance with Local Civil Rule 5.3 so as to afford the Jersey Journal an opportunity to properly
weigh in, with such opposition due December 31, 2017.
ACCORDINGLY, IT IS on this 16th day of November, 2017,
ORDERED that the Jersey Journal’s motion is granted;
ORDERED that the parties are entitled to order the transcript of the friendly hearing for
their review, if they have not done so already, with the transcript to remain sealed to the public;
ORDERED that the parties shall meet and confer and file a motion to seal, if necessary,
consistent with the foregoing; and
ORDERED that the Clerk shall terminate ECF No. 173.
s/Cathy L. Waldor
CATHY L. WALDOR
United States Magistrate Judge
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