PBA LOCAL 183 et al

Filing 51

OPINION AND ORDER that the appeal of the magistrate judge's order of 3/7/2019 27 is Denied and the order of 3/7/2019 24 is Affirmed. Signed by Judge Stanley R. Chesler on 8/7/2019. (sm)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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PBA LOCAL 183, et al.,
Plaintiffs,
v.
County of Essex,
Defendant.

Civil Action No. 17-6962 (SRC)
OPINION & ORDER

CHESLER, District Judge
This matter comes before the Court upon the appeal of the March 7, 2019 Order entered
by Magistrate Judge Cathy A. Waldor. 1 ECF No. 27. Defendant, County of Essex (“Defendant”
or the “County”) seeks partial review of Judge Waldor’s March 7, 2019 Order, which granted
Plaintiffs’ motion to compel the depositions of Essex County Executive Joseph DiVincenzo
(“DiVincenzo”) and Essex County Sheriff Armando Fontoura (“Sheriff Fontoura”) [ECF No 29],
and denied the County’s cross-motion for a protective order prohibiting DiVincenzo’s deposition
[ECF No. 33]. More specifically, although Judge Waldor’s March 7, 2019 Order granted
Plaintiffs’ motion to compel as to both DiVincenzo and Sherriff Fontoura, the County only seeks
review of the portion of Judge Waldor’s March 7, 2019 Order granting Plaintiff’s motion to
compel DiVincenzo’s deposition. For the reasons stated below, Magistrate Judge Waldor’s Order
will be affirmed.

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Judge Waldor’s March 7, 2019 Order is docketed at ECF No. 24. The Court notes that the March 7, 2019 Order
also refers to another action, Vincent G. Fortunato v. County of Essex, Civil Action No. 17-cv-6830, (the “Fortunato
action”), which was consolidated with the instant action for discovery purposes. However, the Fortunato action was
voluntarily dismissed without prejudice by the parties on July 11, 2019 [Civil Action No. 17-cv-6830, ECF No. 52]
and is thus no longer active.
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By way of background, this action was initiated by Plaintiffs as an action under the Fair
Labor Standards Act (“FLSA”), 29 U.S.C. § 203, for unpaid overtime and retaliation. 2 Plaintiff
PBA Local 183 (“PBA Local 183”) “is the exclusive majority representative for approximately
350 Sheriff’s Officers and Investigators below the rank of Sergeant employed by the County of
Essex;” Plaintiffs Dolores M. Paladino (“Paladino”) and Marisol Pagan (“Pagan”) are both
detectives employed by the County in the Essex County Sheriff’s Department, where they are
assigned to the K-9 Unit (collectively, “Plaintiffs”). ECF No. 1, (Compl.) ¶¶ 1-3. In addition to
their overtime and FLSA retaliation claims, Plaintiffs also allege that the County violated New
Jersey Attorney General Mandatory Guidelines on K-9 Training Standards and Qualification
Requirements for New Jersey Law Enforcement.
In Magistrate Judge Waldor’s well-reasoned March 7, 2019 Order, she granted Plaintiffs’
motion to compel DiVincenzo’s deposition. She examined Plaintiffs’ request in light of the
“apex” doctrine, and found that it did not apply, as: (1) “Plaintiffs put forth a valid basis for their
assertion that DiVincenzo was personally involved in facts relevant to Plaintiffs’ claims;” and (2)
Defendants failed to point any other witnesses that could provide the same information as
DiVincenzo or any less burdensome discovery method to obtain this information. ECF No. 24 at
3.
In their appeal of the March 7, 2019 Order, the County argues that the magistrate judge
erred insofar as she incorrectly applied the two factors required to be considered under the
“apex” doctrine. They maintain that Judge Waldor’s decision was contrary to Third Circuit law,

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The Court notes that Plaintiffs’ claims of retaliation relate to an Order allegedly given by Sherriff Fontoura “to
kennel all canine partners at the K-9 Unit headquarters in West Orange at all times when the canines were not ‘on
duty’ with their human partners,” in response to a 2015 FLSA lawsuit filed by a retired K-9 Unit member, who is
not a party to the instant action. Although the March 7, 2019 Order states that this order by Sherriff Fontoura was
given in 2016, and thus refers to it as the “2016 Order,” the Complaint in the instant action fails to provide a date as
to when this retaliatory order was given. Nevertheless, because the parties do not appear to dispute the date of the
alleged order, the Court will similarly refer to this allegedly retaliatory order as the “2016 Order.”
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as (1) Judge Waldor erroneously found that DiVincenzo is likely to have personal knowledge of
the of the relevant subject matter; and (2) the March 7, 2019 Order failed to properly evaluate
whether the information sought from DiVincenzo could be obtained in a less burdensome way.
See ECF No. 27. The County therefore asks this Court to set aside the March 7, 2019 Order as it
relates to DiVincenzo, and enter a protective order prohibiting his deposition. Id.
A district court may modify or set aside a magistrate judge’s determination of a nondispositive issue only if it is “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A);
see also Lithuanian Commerce Corp. v. Sara Lee Hosiery, 177 F.R.D. 205 (D.N.J. 1997).
However, “[a] district judge’s simple disagreement with the magistrate judge’s findings is
insufficient to meet the clearly erroneous standard of review.” Andrews v. Goodyear Tire &
Rubber Co., Inc., 191 F.R.D. 59, 68 (D.N.J. 2000) (citations omitted). 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.” Dome
Petroleum Ltd. v. Emp’rs Mut. Liab. Ins. Co. of Wis., 131 F.R.D. 63, 65 (D.N.J. 1990) (quoting
United States v. Gypsum Co., 333 U.S. 364, 395 (1948)). A magistrate judge’s determination is
contrary to law if he or she misinterpreted or misapplied the applicable law. Gunter v.
Ridgewood Energy Corp., 32 F. Supp. 2d 162, 164 (D.N.J. 1998). Furthermore, pretrial
discovery rulings, such as those at issue in the instant appeal, are afforded significant deference
and are thus reversible only for abuse of discretion. Andrews v. Goodyear Tire & Rubber Co.,
191 F.R.D. 59, 68 (D.N.J. 2000); Kresefsky v. Panasonic Commc’ns and Sys. Co., 169 F.R.D.
54, 64 (D.N.J. 1996). 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 man would take the view adopted.” Leap Sys., Inc. v. Moneytrax, Inc., No. 05-1521

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(FLW), 2010 U.S. Dist. LEXIS 53167 at *10 (D.N.J. June 1, 2010) (internal quotations and
citations omitted). The burden is on the party filing the appeal to demonstrate that the standard
for modifying or setting aside the magistrate judge’s ruling has been met. Cardona v. Gen.
Motors Corp., 942 F. Supp. 968, 971 (D.N.J. 1996).
The appeal taken from the March 7, 2019 Order by the County fails to meet that standard.
Although the County maintains that Judge Waldor’s failure to prohibit the deposition of
DiVincenzo contravenes Third Circuit law regarding the “apex” doctrine, the County has not
persuaded this Court that the order at issue is clearly erroneous or contrary to law, nor that the
Magistrate Judge abused her discretion in deciding that Plaintiffs should be able to depose
DiVincenzo. Judge Waldor’s decision to allow the deposition of DiVincenzo was consistent with
the evidence set forth during the June 14, 2018 deposition of Undersheriff Kevin Ryan, who
stated that DiVincenzo was “very involved in each and every aspect of operating this
government” anytime a lawsuit was filed which involved the County, and “the most hands-on
county exec[utive] we [the County] ever had.” The County thus fails to show how Judge
Waldor’s reliance on this evidence— in finding that DiVincenzo possesses unique knowledge as
to the facts and circumstances surrounding this case— was an abuse of discretion or contrary to
law. Moreover, despite the County’s belated attempts to suggest alternate, less burdensome ways
that Plaintiffs could supposedly obtain this information, the County’s submissions to Judge
Waldor were bereft of any such less burdensome alternatives.
For these reasons, the Court finds that the County has not met its burden of showing that
the March 7, 2019 Order was clearly erroneous or contrary to law. This Court will therefore
affirm the ruling made by the magistrate judge in the March 7, 2019 Order.

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Accordingly,
IT IS on this 7th day of August, 2019,
ORDERED that the appeal of the magistrate judge’s order of March 7, 2019 [ECF No.
27] be and hereby is DENIED; and it is further
ORDERED that the order of March 7, 2019 [ECF No. 24] is AFFIRMED.

s/ Stanley R. Chesler
STANLEY R. CHESLER
United States District Judge

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