EBERT et al v. TOWNSHIP OF HAMILTON et al

Filing 62

MEMORANDUM ORDER Denying 53 MOTION to Modify 48 Letter Order. Signed by Judge Anne E. Thompson on 10/11/2017. (km)

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RECEIVED
NOT FOR PUBLICATION

OCT 11 2017

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

Ar 8:30
WILLJAM T. WALS -M
CLERK
H

LAWRENCE B. EBERT and REBECCA A.
VARES-EBERT,
Civ. No. 15-7331

Plaintiffs,

v.

MEMORANDUM ORDER

TOWNSHIP OF HAMILTON, MAYOR
KELLY A. YAEDE (in her official and
individual capacity), JOHN DOE (I), and
JOHN DOE {II},
Defendants.
THOMPSON, U.S.D.J.

INTRODUCTION
This matter comes before the Court on a Motion to Modify brought by Plaintiffs
Lawrence B. Ebert and Rebecca A. Vares-Ebert ("Plaintiffs"). (ECF No. 53.) The motion seeks
to appeal the August 22, 2017 Letter Order entered by the Magistrate Judge. (ECF No. 48.)
Defendants Township of Hamilton {"Township Defendant") and Mayor Kelly A. Yaede
(collectively "Defendants") oppose. (ECF No. 56.) The Court has decided the motion based on
the parties' written submissions without oral argument pursuant to Local Civil Rule 78.l(b). For
the reasons stated herein, Plaintiffs' motion is denied.

BACKGROUND
As in past opinions in this matter, the Court again recites only those facts relevant to this
Opinion. Earlier this year, Magistrate Judge Bongiovanni entered a Scheduling Order and held
multiple discovery conferences with the parties. (See ECF Nos. 11, 13, 15, 32.) Plaintiffs, by
notice of deposition, sought to depose

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A 30(b)(6) witness who will bind Hamilton Township as to the
ordinances authorizing the actions taken by Hamilton Township ..
. , including how notice of violation is served, how access to the
property was obtained (and how it is implemented consonant with
controlling Constitutional law), what personal property may be
taken, what property was taken, and how the 'neighborhood
improvement program' of Hamilton Township has been
implemented.
(ECF No. 35 at 4.) On May 11, 2017, Judge Bongiovanni denied Plaintiffs' requested 30(b)(6)
deposition. ("May 11th Order," ECF No. 35.)
Judge Bongiovanni determined it was inappropriate to compel the Township Defendant
to produce a Rule 30(b)(6) deponent to testify as to how the subject
Notice of Violation was served, how access to the property was
obtained, what personal property may be taken, and what property
was taken. Such testimony should be provided by fact witnesses
who have personal knowledge of those matters.
(May 11th Order at 2.) Judge Bongiovanni declined to order a Rule 30(b)(6) deposition in light
of proportionality concerns. (Id.) With respect to Plaintiffs' request to ''bind Hamilton Township
as to the ordinances authorizing the actions taken," Judge Bongiovanni instructed the Township
Defendant "to provide a certification from a Township official identifying all ordinances which it
contends authorized the actions taken ...." (Id.) Plaintiffs appealed Judge Bongiovanni's Order.
(ECF No. 37.) After considering the parties' briefing papers, this Court denied Plaintiffs' appeal
on August 9, 2017 ("August 9th Opinion"). (ECF Nos. 43, 44.)
On August 10, Judge Bongiovanni entered a Letter Order denying Plaintiffs' request for
additional discovery, as the "issues raised have already been denied by the Court or appropriately
answered by the Defendants." (ECF No. 45.) The following day Plaintiffs submitted a new
motion to compel discovery, again requesting a Rule 30(b)(6) deposition (ECF No. 46), which
Judge Bongiovanni dismissed as moot on August 22, 2017 ("August 22nd Letter Order," ECF
No. 48). That Order read, "The Court has reviewed Plaintiffs' motion as well as the letter
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submitted by Defendants on August 18, 2017. The issues contained in Plaintiffs' motion have
already been ruled upon, therefore, the motion is DISMISSED AS MOOT." (/d.) 1 In support of
her ruling, Judge Bongiovanni cited her May 11th Order and this Court's August 9th Opinion
and Order (ECF Nos. 35, 43, 44). On September 5, 2017, Plaintiffs appealed, filing objections
and a motion to modify the August 22nd Letter Order. (ECF No. 53.) The Clerk's Office initially
referred the Motion to Judge Bongiovanni. (See docket entry dated 9/5/2017.) That mistake was
corrected on October 4, 2017, and the Court now considers the Motion.

LEGAL STANDARD
In considering an appeal of a nondispositive order by a magistrate judge, a reviewing
court will modify or vacate an order only if it "is clearly erroneous or is contrary to law." Fed. R.
Civ. P. 72(a); see L. Civ. R. 72.l(c). The burden of showing that a ruling is "clearly erroneous or
contrary to law rests with the party filing the appeal." Marks v. Struble, 347 F. Supp. 2d 136, 149
(D.N.J. 2004). A magistrate judge's finding is clearly erroneous when, after considering the
entire evidence, the reviewing court is ''left with the definite and firm conviction that a mistake
has been committed." Dome Petroleum Ltd. v. Emp 'rs Mut. Liab. Ins. Co., 131 F.R.D. 63, 65
(D.N.J. 1990). A ruling is contrary to law if the magistrate judge misinterpreted or misapplied
applicable law. Gunter v. Ridgewood Energy Corp., 32 F. Supp. 2d 162, 164 (D.N.J. 1998).
Despite the overarching standard under Rule 72(a), "[w]here the appeal seeks review of a
matter within the core competence of the Magistrate Judge, such as a discovery dispute,"

Edwards v. Horizon Blue Cross Blue Shield ofN.J., 2016 WL 755473, at *1 (D.N.J. Feb. 24,
2016), the ruling "is entitled to great deference and is reversible only for abuse of discretion."

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Meanwhile, on August 16, 2017, Plaintiffs moved for clarification of this Court's August 9th
Opinion. (ECF No. 47.) On August 23, 2017, Plaintiffs moved for reconsideration of the August
9th Opinion. (ECF No. 49.) The Court denied both motions on October 4, 2017. (ECF No. 61.)
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See, e.g., Deluccia v. City ofPaterson, 2012 WL 909548, at *1 (D.N.J. March 15, 2012); Cooper
Hosp./Univ. Med. Ctr. v. Sullivan, 183 F.R.D. 119, 127 (D.N.J. 1998); Kresefky v. Panasonic
Commc'ns & Sys. Co., 169 F.R.D. 54, 64 (D.N.J. 1996). For discovery decisions, the district
court may apply this more deferential standard, which still requires "plenary review oflegal
questions and clear error review of factual ones." Edwards, 2016 WL 755473, at *1.
ANALYSIS
Plaintiffs make four objections to the August 22nd Letter Order: (1) Plaintiffs were
denied notice and an opportunity to be heard; (2) Judge Bongiovanni inappropriately considered
improperly served opposition papers; (3) (A) Judge Bongiovanni erred as a matter oflaw in
finding Plaintiffs' motion moot; (3) (B) Plaintiffs are entitled to a Rule 30(b)(6) deposition as a
matter of law; and (4) Plaintiffs' motion is not moot because of new evidence.
Plaintiffs first argue that they never received or saw this Court's August 9th Order (ECF
No. 44), and therefore Judge Bongiovanni denied to Plaintiffs notice and an opportunity to be
heard by citing to docket entry 44 as support for her August 22nd ruling. Because this Court's
August 9th Order merely repeated the ruling contained within this Court's corresponding August
9th Opinion (ECF No. 43), which Plaintiffs did see and receive, Plaintiffs' contention is
insupportable. Plaintiffs were fully on notice of the ruling in that Order; indeed, they moved for
clarification on August 16, 2017, before Judge Bongiovanni had even made her ruling. (ECF No.
4 7.) The August 22nd Letter Order was not contrary to law on this basis.
Plaintiffs' second argument relies on Local Civil Rule 37' s requirement of fortnal motion
practice in discovery matters involvingpro se parties. L. Civ. R. 37.l(a)(2}, (b)(l). They assert
that Judge Bongiovanni's reference to Defendants' informally submitted August 18th letter was
improper because it was not filed with the Clerk's Office. This Court has previously relaxed Rule
37 in this action (see Op. at 4, ECF No. 21 }, which a court may do in the interests of justice, see,
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e.g., Thomas & Betts v. Richards Mfg. Co., 2010 WL 2400151, at *4 (D.N.J. June 10, 2010).
Magistrate Judges have broad discretion to decide discovery issues before thern, see Halsey v.
Pfeiffer, 2010 WL 3735702, at *1 (D.N.J. Sept. 17, 2010), and, in the Third Circuit, often decide
discovery disputes based on informal motions, see, e.g., Whitman v. Proconex, Inc., 2009 WL

113740, at *4 (E.D. Pa. Jan. 14, 2009). The Court finds no abuse of discretion here where, even
ignoring Defendants' informally submitted opposition, Judge Bongiovanni would have reached
an identical conclusion because she found the reasoning in this Court's prior rulings provided an
independent and adequate basis for her decision.
Plaintiffs argue, third, that their Motion to Compel (ECF No. 46) was not inoot because
, an "actual controversy" existed between the parties as to notices for 30(b)(6) depositions.
Plaintiffs reframe their disagreement with the Court's prior rulings as an actual controversy
between Plaintiffs and Defendants. However, Plaintiffs' disagreement with the Court's valid
rulings does not amount to an actual controversy. This Court already formally denied a Rule

30(b)(6) deposition. (ECF Nos. 35, 43, 44, 61.) Judge Bongiovanni did not abuse her discretion
in finding Plaintiffs' renewed request fot a Rule 30(b)(6) deponent to be moot. The remainder of
Plaintiffs' third objection renews arguments made in their appeal of Judge Bongiovanni's May
11th Order. (See Pls.' Br. at 3-5(Section111.B), ECF No. 53-1.) The Court will not address these
arguments, having already considered and rejected them. (See ECF Nos. 43, 44, 61.)
Finally, Plaintiffs argue that their Motion to Compel (ECF No. 46) related to separate

30(b)(6) deposition notices, served in June and August 2017, and not the August 2016 deposition
notice which was the subject of the Court's Opinions and Orders in May and August 2017.
Plaintiffs assert that they are seeking discovery on new topics that can only be obtained from a

30(b)(6) deponent, including information related to a lien imposed on their property after the
events that are the subject of the Complaint. (Pis.' Br. at 3, 6; Pis.' Mot. to Compel at 6-7, ECF

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No. 46.) Plaintiffs suggest they seek this information in relation to a state foreclosure action
regarding that lien. (Pls.' Br. at 6; Pls.' Mot. to Compel at 7.) The lien, however, is not
mentioned in the Complaint and is beyond the scope of discovery here. Plaintiffs' other
purported new topics are rephrased but nonetheless mirror the original topics for which Judge
Bongiovanni denied a Rule 30(b)(6) deposition. Accordingly, Judge Bongiovanni did not abuse
her discretion in denying Plaintiffs' Motion to Compel.
Therefore,

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IT IS, on this~ day of October, 2017,
ORDERED that Plaintiffs' Motion to Modify Letter Order is DENIED.

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ANNE E.

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THOMPSO~.

An.-------