NORTH JERSEY MEDIA GROUP INC. et al v. UNITED STATES OF AMERICA et al

Filing 42

LETTER ORDER Granting Doe's 37 Motion to Intervene, and it is further Ordered that Doe's Motion to Proceed Anonymously is Granted, and it is further Ordered that Doe's Motion for Stay is Denied, and it is further Ordered that Doe's Motion for a Stay Pending Appeal is Denied. Signed by Judge Susan D. Wigenton on 5/13/2016. (th, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

CHAMBERS OF

MARTIN LUTHER KING COURTHOUSE
50 WALNUT ST.
NEWARK, NJ 07101
973-645-5903

SUSAN D. WIGENTON
UNITED STATES DISTRICT JUDGE

May 13, 2016

Jenny Kramer, Esq.
Chadbourne & Parke LLP
1301 Avenue of the Americas
New York, NY 10019-6022
Attorneys for Intervenor John Doe
Bruce S. Rosen, Esq.
McCusker, Anselmi, Rosen & Carvelli, PC
210 Park Avenue, Suite 301
P.O. Box 240
Florham Park, NJ 07932
Attorneys for Movants North Jersey Media Group, Inc. et al.
David W. Feder, Esq.
J. Fortier Imbert, Esq.
Lee M. Cortes, Esq.
Vikas Khanna, Esq.
U.S. Department of Justice
Office of the United States Attorney
District of New Jersey
970 Broad Street, Suite 700
Newark, NJ 07102
Attorneys for the United States of America
Michael A. Baldassare, Esq.
Jennifer Mara, Esq.
Dillon Hoey Malar, Esq.
Baldassare & Mara, LLC
570 Broad Street, Suite 900
Newark, NJ 07102
Attorneys for Defendant William E. Baroni, Jr.
Michael D. Critchley, Esq.
Critchley, Kinum & Vasquez, LLC
75 Livingston Avenue
Roseland, NJ 07068
Attorneys for Defendant Bridget Anne Kelly

David Robert Kromm, Esq.
The Port Authority of New York and New Jersey
4 WTC
150 Greenwich Street – 24th Floor
New York, NY 1007
Attorney for Interested Party Port Authority

LETTER ORDER FILED WITH THE CLERK OF THE COURT
Re:

North Jersey Media Group, Inc. et al. v. United States of America et al.
Civil Action No. 16-267 (SDW)

Counsel:
Before this Court is Proposed Intervenor John Doe’s (“Doe”) 1) Emergent Motion to
Intervene, to Proceed Anonymously, and to Stay this Court’s May 10, 2016 Order directing the
Government to make public the Conspirator Letter, and 2) Motion for Stay Pending Appeal
pursuant to Federal Rule of Appellate Procedure 8(a)(2)(A). This Court having considered the
parties’ submissions, and for the reasons discussed below, grants Doe’s motions to intervene and
to proceed anonymously and denies his motions for a stay and for a stay pending appeal.
DISCUSSION
A. Request for Intervention
Federal Rule of Civil Procedure 24(a) provides for two means of intervention in matters
pending in federal court: intervention as of right and permissive intervention. ACR Energy
Partners, LLC v. Polo North Country Club, Inc., 309 F.R.D. 191, 192 (D.N.J. 2015); see generally
FED. R. CIV. P. 24. Intervention as of right exists where: “(1) the application for intervention is
timely; (2) the applicant has a sufficient interest in the litigation; (3) the interest may be affected
or impaired, as a practical matter, by the disposition of the action; and (4) the interest is not
adequately represented by an existing party in the litigation.” Mountain Top Condo. Ass’n v. Dave
Stabbert Builder, Inc., 72 F.3d 361, 365-66 (3d Cir. 1995). Alternatively, a court may “permit
anyone to intervene who . . . has a claim or defense that shares with the main action a common
question of law or fact.” FED. R. CIV. P. 24(b)(1). Under either path to intervention, the motion
to intervene must be timely. See, e.g. Gen. Refractories Co. v. First State Ins. Co., No 04-3509,
2012 WL 262647, at *7 (E.D. Pa. Jan. 30, 2012). Timeliness is “determined by the totality of the
circumstances,” United States v. Alcan Aluminum, Inc., 25 F.3d 1174, 1181 (3d Cir. 1994), and in
exercising its discretion to make such a determination, the trial court must consider, “(1) the stage
of the proceeding; (2) the prejudice that delay may cause the parties; and (3) the reason for the
delay.” Mountain Top, 72 F.3d at 369. In considering the “temporal component to the timeliness
inquiry” a court should look to when “an applicant knows, or should know, its rights are directly
affected by the litigation . . ..” Alcan, 25 F.3d at 1182-83.

2

Looking first to timeliness, this Court is puzzled by Doe’s failure to intervene sooner in
this matter, given the four-month window between the public filing of the Media’s January 13,
2016 motion for access to records and the entry of this Court’s May 10th Opinion and Order. In
addition to the docketing of the motion, the extensive media coverage was more than sufficient to
put him on notice that his interests were at stake. Doe had every opportunity to intervene during
the pendency of that motion, yet waited to do so until after the Order was entered. As Doe’s
moving papers fail to indicate why he did not seek to protect his rights sooner, this Court can only
speculate as to the strategy behind such a choice. However, in an abundance of caution, and in
light of the interest Doe has in this matter as a person whose name may be released to the public
as an unindicted co-conspirator, and noting that his interests were not expressly represented by
either Movants or Respondents, this Court grants Doe’s motion to intervene pursuant to Federal
Rule of Civil Procedure 24.
B. Request to Proceed Anonymously
Federal Rule of Civil Procedure 10(a) states that case captions must “name all the parties.”
FED. R. CIV. P. 10(a); see also Doe v. Megless, 654 F.3d 404, 408 (3d Cir. 2011) (noting that the
rule “requires parties to a lawsuit to identify themselves in their respective pleadings.”). However,
“courts have recognized that a party may, under limited circumstances, proceed by way of
pseudonym . . ..” Doe v. Oshrin, 299 F.R.D. 100, 102 (D.N.J. 2014). “The decision to allow a
plaintiff to proceed anonymously rests within the sound discretion of the court.” Id. at 103. The
Third Circuit requires the trial court to weigh factors that favor anonymity such as:
(1) the extent to which the identity of the litigant has been kept confidential;
(2) bases upon which disclosure is feared or sought to be avoided, and the
substantiality of these bases; (3) the magnitude of the public interest in
maintaining the confidentiality of the litigant’s identity; (4) whether,
because of the purely legal nature of the issues presented or otherwise, there
is an atypically weak public interest in knowing the litigant’s identities; (5)
the undesirability of an outcome adverse to the pseudonymous party and
attributable to his refusal to pursue the case at the price of being publicly
identified; and (6) whether the party seeking to sue pseudonymously has
illegitimate ulterior motives, Megless, 654 F.3d at 409,
against factors disfavoring anonymity such as:
The universal level of public interest in access to the identities of litigants;
(2) whether, because of the subject matter of this litigation, the status of the
litigant as a public figure, or otherwise, there is a particularly strong interest
in knowing the litigant’s identities, beyond the public’s interest which is
normally obtained; and (3) whether the opposition to pseudonym by
counsel, the public, or the press is illegitimately motivated.
Id.

3

Here, the purpose of Doe’s motion is to maintain the anonymity he currently possesses as
an unindicted co-conspirator whose name has not been publicly released. Although this Court is
unpersuaded that Doe will be wrongfully “brand[ed] . . . as a criminal,” (Doe Mot. at 1), requiring
him to identify himself defeats the very purpose of his motion to stay this Court’s Order directing
the Government to disclose the contents of the Conspirator Letter. Given that Doe’s identity has
been kept confidential until this point, Doe’s motion to proceed anonymously is granted.
C. Request for Stay
A party seeking a stay must show: “(1) a likelihood of success on the merits; (2) that it will
suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not result
in even greater harm to the nonmoving party; and (4) that the public interest favors such relief.”
Kos Pharms., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004).
Turning first to his likelihood of success on the merits, Doe contends that 1) the Conspirator
Letter is not a bill of particulars or judicial record to which the public has a right of access but
rather is a “courtesy copy” of a discovery document sent to the Court, and 2) “identifying him as
an unindicted co-conspirator without providing him a forum to challenge that designation would
undeniably deprive him of due process.” (Doe Mot. at 9.) This Court disagrees.
First, the Conspirator Letter was submitted to this Court and Defendants in response to
Defendants’ motions for bills of particulars. The Government requested that the document be
maintained under seal, pursuant to internal policies of the U.S. Attorney’s office “regarding bills
of particulars that identify unindicted co-conspirators.” (Gov’t. Opp’n Br. to Media Mot.
Intervene, Dkt. No. 26 at 7-8.) The document was never labeled a courtesy copy, nor has the
Government included this Court in other exchanges of mere discovery material. Therefore, this
Court deemed the Conspirator Letter a judicial record, and applied the Third Circuit’s analysis in
United States v. Smith, 776 F.2d 1104 (3d Cir. 1985) to balance the public’s right of access to
judicial records and proceedings against the Government’s interest in maintaining the seal on such
documents to determine that the public’s compelling interest outweighed the privacy interests of
those identified in the letter. (Dkt. Nos. 33 & 34.) Doe does not address the Court’s analysis, nor
provide a counter-analysis under the Smith standard.
Second, Doe fails to show that he has been denied Due Process. Doe cites to no binding
authority that stands for the proposition that his Due Process rights will be violated by being
identified as an unindicted co-conspirator. Nor does Doe acknowledge that his privacy rights were
considered in this Court’s May 10th Opinion in its application of the Smith balancing test and in in
camera proceedings before this Court during which time Doe was given the opportunity to be
heard orally and in writing. This Court does not take the identification of unindicted coconspirators lightly, recognizing the possible reputational consequences of such a revelation.
However, here, this Court has given Doe notice and an opportunity to be heard and has thoroughly
considered his privacy interests in determining that the Conspirator Letter should be made public.
Pursuant to the dictates of Due Process, Doe has been heard by this Court.

4

Because Doe has not shown a likelihood of success on the merits, this Court need not reach
the remaining three factors for injunctive relief. 1 Therefore, Doe’s request for a stay is denied. As
the standard for a stay pending appeal is “essentially the same as that for obtaining a preliminary
injunction,” Conestoga Wood Specialties Corp. v. Sec’y of U.S. Dep’t of HHS, No. 13-1144, 2013
WL 1277419, at *1 (3d Cir. Feb.8, 2013), this Court also denies Doe’s request for a stay pending
appeal.
CONCLUSION
For the reasons set forth above,
IT IS on this 13th day of May, 2016,
ORDERED that Doe’s Motion to Intervene is GRANTED, and it is further
ORDERED that Doe’s Motion to Proceed Anonymously is GRANTED, and it is further
ORDERED that Doe’s Motion for a Stay is DENIED, and it is further
ORDERED that Doe’s Motion for a Stay Pending Appeal is DENIED.
SO ORDERED.
____/s/ Susan D. Wigenton_____
SUSAN D. WIGENTON, U.S.D.J

Orig: Clerk
cc:
Parties

1

This Court notes, however, that Doe has not articulated any irreparable harm other than possible “stigma” in being
named an unindicted co-conspirator. (Doe Mot. at 11.) As to a balancing of the equities, they do weigh in Doe’s
favor because, although the Media has a great interest in knowing the contents of the Conspirator Letter, there is no
urgency to their request. Finally, the public interest does not favor issuance of a stay. As noted in this Court’s May
10th Opinion and Order, the public has a presumptive right of access to the Conspirator Letter pursuant to the First
Amendment. As Doe concedes in his papers, this stay will likely only delay the inevitable, as his identity and
alleged role in the lane closures “will be learned at trial.” (Doe Mot. at 12.)

5