NIBLACK v. MIGLIO et al

Filing 87

OPINION AND ORDER that Plaintiff Niblack's 82 informal motion to compel is GRANTED in part and DENIED in part; Plaintiff Niblack's motion to compel responses to requests for admissions is denied for the reasons stated on the record, etc. Signed by Magistrate Judge Steven C. Mannion on 02/20/2018. (ek)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
NOT FOR PUBLICATION
Civil Action No.
NIBLACK ,
Plaintiff,
v.

OPINION & ORDER ON DISCOVERY
DISPUTE
2:16-CV-00747-MCA-SCM

MIGILIO, et al.,

[D.E. 82]

Defendants.
Steven C. Mannion, United States Magistrate Judge.
Before this Court is Plaintiff, Stanley Niblack’s (“Mr. Niblack”) informal motion to compel
interrogatory responses from Defendants Christy Ralph (“Ms. Ralph”) and Alexander Solanik
(“Mr. Solanik”), and responses from all defendants (collectively the “State Defendants”) to
document requests and requests for admissions.1 The State Defendants opposed.2 The Court has
reviewed the parties’ respective submissions, and heard oral argument on February 2, 2018. For
the reasons set forth on the record and herein, the motion is granted in part and denied in part.

(ECF Docket Entry No. (“D.E.”) 82, Mot. to Compel, Jan. 9, 2018). Unless indicated otherwise,
the Court will refer to documents by their docket entry number and the page numbers assigned by
the Electronic Case Filing System.
1

2

(D.E. 83, Def.’s Ltr., Jan. 17, 2018).

BACKGROUND AND PROCEDURAL HISTORY3

I.

Mr. Niblack filed this civil rights action in state court against Defendants SCO Anna
Miglio, Ms. Ralph, Sergeant James McDonnell, Lieutenant James Hunsicker, Sergeant Jonathon
Hinson, Mr. Solanik, John Powell, Kenya Collins, and Gary Lanigan.4 The Court dismissed the
claims against Mr. Lanigan, Mr. Powell, and Ms. Collins, so any discovery disputes involving
these defendants are moot.5
Over the course of 2017, Mr. Niblack submitted a plethora of letters complaining about the
State Defendants’ respective responses to his discovery demands.6 These disputes were not raised
in the manner required by the Scheduling Order, and the Court therefore issued two orders denying
Mr. Niblack’s requests without prejudice, while providing the language from the Scheduling Order
which describes the appropriate procedure for raising such disputes.7 After a conference in
December 2017, the Court issued another order, which called for the parties to submit any
remaining discovery disputes, and to include the specific requests and responses, and a description
of the parties’ efforts to resolves the disputes, as required by the Scheduling Order.8 Mr. Niblack
then filed the present informal motion and included copies of the at-issue interrogatories, document

3

The allegations set forth within the pleadings and motion record are relied upon for purposes of
this motion only. The Court has made no findings as to the veracity of the parties’ allegations.
4

(D.E. 1, Notice of Removal). Mr. Lanigan removed this action to this Court on February 11,
2016.
5

(D.E. 44, Order, Feb. 28, 2017).

(See, e.g., D.E. 49, Pl.’s Ltr., Mar. 22, 2017; D.E. 62, Pl.’s Ltr., June 12, 2017; D.E. 71, Pl.’s
Ltr., July 20, 2017).
6

7

(D.E. 55, Order, Apr. 28, 2017; D.E. 72, Order, July 26, 2017).

8

(D.E. 80, Order, Dec. 13, 2017).
2

requests, and requests for admissions.9 He seeks to compel responses from all defendants to his
document requests and requests for admissions, as well as responses from Ms. Ralph and Mr.
Solanik to his interrogatories.10 The Defendants then filed their opposition, and the Court heard
oral argument on February 2, 2018. For the reasons stated on the record during oral argument, the
Court struck the requests for admission directed to Ms. Ralph, and Mr. Niblack then withdrew his
remaining requests for admission.11
II.

MAGISTRATE JUDGE AUTHORITY
Magistrate judges are authorized to decide any non-dispositive motion designated by the
Court.12 This District specifies that magistrate judges may determine all non-dispositive pre-trial
motions which includes discovery motions.13 Decisions by magistrate judges must be upheld
unless “clearly erroneous or contrary to law.”14

III.

LEGAL STANDARD, DISCUSSION & ANALYSIS
Mr. Niblack seeks an order compelling responses to his interrogatories directed to Ms.
Ralph;15 interrogatories directed to Mr. Solanik;16 and requests for the production of documents

9

(D.E. 82, Mot. to Compel, Jan. 9, 2018).

10

(D.E. 82, Mot. to Compel, Jan. 9, 2018).

11

The withdrawn requests constituted pages 42-61 of this informal motion to compel. (D.E. 82,
Mot. to Compel, Jan. 9, 2018, 42-61).
12

28 U.S.C. § 636(b)(1)(A).

13

L. Civ. R. 72.1(a)(1); 37.1.

14

28 U.S.C. § 636(b)(1)(A).

15

(D.E. 82, Mot. to Compel, Jan. 9, 2018, 33 – 37).

16

(D.E. 82, Mot. to Compel, Jan. email 9, 2018, 38 – 41).
3

directed to all defendants.17 Ms. Ralph and Mr. Solanik deny having received the interrogatory
requests.18 With respect to the document requests, counsel for the State Defendants stated at oral
argument that his clients do not have access to the documents of the New Jersey Department of
Corrections (“NJDOC”), which constitute the bulk of documents responsive to the at-issue
document requests.19
Responses to interrogatories are due “within 30 days of being served with interrogatories.
A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.”20 Whether
Ms. Ralph and Mr. Solanik ever previously received the interrogatory requests is debatable, but it
is clear that their counsel received them once they were filed on the docket.21 Accordingly, the
Court grants Mr. Niblack’s informal motion to compel responses to his interrogatories from Ms.
Ralph and Mr. Solanik. The responses shall be provided within thirty (30) days of oral argument
on February 2, 2018.
Responses to document requests are also due within 30 days or as otherwise stipulated to
under Rule 29 or ordered by the court.22 The recipient of a document request must produce “all
relevant documents in his ‘possession, custody, or control.’”23

17

(D.E. 82, Mot. to Compel, Jan. 9, 2018, 62 – 65).

18

(D.E. 48, Def.’s Ltr., Mar. 20, 2017).

19

(Oral Arg., Feb. 2, 2018).

20

Fed.R.Civ.P. 33(b)(2).

21

(D.E. 82, Mot. to Compel, Jan. 9, 2018).

22

Fed.R.Civ.P. 34(b)(2)(A).

Love v. New Jersey Dep’t of Corrections, 2017 W.L. 3477864 (D.N.J. 2017)(citing Bryant v.
Armstrong, 285 F.R.D. 596, 603 (S.D. Cal. 2012) (quoting Fed. R. Civ. P. 34(a)(1)).
23

4

Here, Mr. Niblack seeks an order compelling the State Defendants to produce prison
records and information that their counsel asserts are not in their possession, custody, or control.24
This Court recently explained that,
[The party seeking discovery] must show that the [individual prison
defendants], through their attorney or otherwise, have control over
the at-issue prison records and information.…25
Many employees have some responsibility to create records or
reports for their employer. If a party possesses copies of their
employer’s records at home or outside of their workplace, they are
obligated to produce responsive records.26 If instead, the employee
merely has access to his employer’s records at work, such access
alone does not equate with possession, custody, or control over the
records.27 The same applies to a government employee who “cannot
on his own initiative remove government files and provide them to
a third party.”28
“Control,” however, is broadly construed.”29 Some courts have
interpreted Rule 34 to require production where the party “has the
practical ability to obtain the documents from another, irrespective
of his legal entitlement to the documents.”30 “Factors to be
considered on the question of practical ability to obtain documents
from a nonparty include ‘the existence of cooperative agreements ...
between the responding party and the non-party, the extent to which

24

Cordero v. Warren, 2016 WL 8199305, at *2 (D.N.J. Oct. 4, 2016) (individual state
employees did not have control over State records), aff'd, 2017 WL 2367049 (D.N.J. May 31,
2017) (internal quotation marks and brackets omitted).
Love v. New Jersey Dep’t of Corrections, 2017 W.L. 3477864 (D.N.J. 2017); Union of
Petroleum & Indus. Workers, 870 F.2d at 1452; Bryant, 285 F.R.D. at 607.
25

26

See id.

27

Love, 2017 W.L. 3477864 (citing In re Grand Jury Subpoena, 646 F.2d 963, 969 (5th Cir.
1981)).
28

Id. (citing Lowe, 250 F.R.D. at 39).

29

Id. (citing Bryant, 285 F.R.D. at 603).

30

Id. (citing Golden Trade, S.r.L. v. Lee Apparel Co., 143 F.R.D. 514, 525 (S.D.N.Y. 1992)).
5

the non-party has [a] stake in the outcome of the litigation, and the
non-party's history of cooperating with document requests.’”31
Here, each of the defendants is a State employee being represented by the State Attorney
General’s Office. Therefore, the State has the same interest in the outcome of this litigation as it
did in Love.
Unlike Love, however, Mr. Niblack has not shown the existence of any cooperative
agreement between the responding parties and the State in this case to provide access to its
documents. The Love plaintiff showed the voluntary cooperation by the State with the defense in
that case through the voluntary and unilateral production of the plaintiff’s medical records without
the plaintiff’s knowledge. Here, Mr. Niblack asserted at oral argument that one of the individual
State Defendants had produced Department records, but Mr. Niblack has not yet identified such
discovery to the Court. Therefore, Mr. Niblack has not yet met his burden to prove that the State
Defendants have practical control over any Department records.
Until then, each of the State Defendants must produce whatever responsive documents are
within their respective possession, custody, or control, or must “state with specificity the grounds
for objecting to [a] request, including the reasons.”32
An appropriate Order follows:

31

Id. (citing Benisek v. Lamone, No. 13-3233, 2017 WL 570312, at *2 (D. Md. Feb. 13, 2017)
(quoting Gross v. Lunduski, 304 F.R.D. 136, 142 (W.D.N.Y. 2014)).
32

Fed. R. Civ. P. 34(b)(2)(B).
6

ORDER
IT IS on this Tuesday, February 20, 2018,
1. ORDERED, that Plaintiff Niblack’s informal motion to compel is GRANTED in part
and DENIED in part; and it is further
2. ORDERED, that Defendants Christy and Solanik shall respond to Plaintiff Niblack’s
interrogatories by March 4, 2018; and it is further
3. ORDERED, that all Defendants shall respond to Plaintiff Niblack’s request for
production by March 4, 2018; and it is further
4. ORDERED, that Plaintiff Niblack’s motion to compel responses to requests for
admissions is denied for the reasons stated on the record.

2/20/2018 11:11:48 AM

Original: Clerk of the Court
Hon. Susan D. Wigenton, U.S.D.J.
cc: All parties
File

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