Breslin et al v. Dickinson Township et al

Filing 190

MEMORANDUM AND ORDER denying pltf's Motion to Compel 188 Signed by Magistrate Judge Martin C. Carlson on 08/03/11 (ma, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CHARLES BRESLIN, et al.,
Plaintiffs,
v.
DICKINSON TOWNSHIP, et al.,
Defendants.

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Civil No. 1:09-CV-1396

(Judge Stengel)
(Magistrate Judge Carlson)

MEMORANDUM ORDER
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
This case is a civil rights action brought by the plaintiffs against defendants,
various local township officials, alleging constitutional First Amendment and First
Amendment-retaliation claims. Following contentious discovery proceedings, this
case was referred to the undersigned on January 25, 2011, for the purpose of
overseeing pre-trial discovery.(Doc. 77)
The halting, contentious nature of this litigation is, in part, a consequence of
curious, erratic, and eccentric litigation decisions made by plaintiffs’ counsel. Thus,
in the course of the past several months during this litigation plaintiffs’ counsel has
frequently urged contradictory courses upon the Court, demanding that the Court
expedite resolution of matters, and then failing repeatedly to comply with the
expedited schedule set by the Court at counsel’s insistence; requesting the prompt
scheduling of depositions, only to concur in a stay of the scheduled depositions; and

swearing to the Court’s affability and fairness while filing a motion seeking to recuse
the Court on the grounds of bias. Plaintiffs’ counsel has also displayed a tendency
to seize upon tangential matters and pursue these tangents to the exclusion of broader
issues in this litigation. For example, during a March 24, 2011 conference, plaintiffs’
counsel devoted great time, attention and industry to a lengthy discussion of counsel’s
concerns regarding a postage label on a box, an issue that continues to recur in some
of the plaintiffs’ pleadings. (Doc.106 , pp.7-13)
Cast against this procedural backdrop, there are presently pending before the
Court two motions lodged by the plaintiffs, which directly relate to one another. First,
the plaintiff has filed a motion to supplement the complaint filed in this case in 2009.
(Doc. 169) This motion, which seeks leave of court to add parties and claims to this
longstanding litigation at the close of discovery, is currently being briefed by the
parties and the plaintiffs’ reply brief is due by August 12, 2011. (Doc. 171)
Having filed this motion to supplement, which is not yet fully briefed by the
plaintiffs, plaintiffs’ counsel has now lodged a motion relating to this proposed
supplemental complaint, styled as a motion to compel. (Doc. 188) This motion to
compel seeks to compel a federal judge to appear at a deposition to address matters
which are not yet part of this lawsuit. Specifically this motion seeks to compel a
judicial officer to testify regarding issues that plaintiffs allege relate to a person who
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is not currently a party in this case, but may someday become a party if the plaintiffs’
motion to supplement the complaint is granted.1
In considering this motion we recognize that rulings regarding the proper scope
of discovery, and the extent to which discovery may be compelled, are matters
consigned to the court’s discretion and judgment. Thus, it has long been held that
decisions regarding Rule 37 motions are “committed to the sound discretion of the
district court.” DiGregorio v. First Rediscount Corp., 506 F.2d 781, 788 (3d Cir.
1974). Similarly, issues relating to the scope of discovery permitted under Rule 26
also rest in the sound discretion of the court. Wisniewski v. Johns-Manville Corp.,
812 F.2d 81, 90 (3d Cir. 1987). Therefore, a court’s decisions regarding the conduct
of discovery, and whether to compel disclosure of certain information, will be
disturbed only upon a showing of an abuse of discretion. Marroquin-Manriquez v.
Plaintiffs’ pleadings state, without further explanation, that the proposed
deposition of this judicial officer on these matters which are not yet part of this
litigation would in some way relate to “cogent civil rights issues,” (Doc. 188), and
contains the following odd, and ethically questionable, ruminations by counsel
regarding ex parte communications that plaintiffs’ counsel considered attempting
to indulge in with the Court: “Plaintiff had considered sending the Magistrate
Judge an ex parte letter dispensing with the need to file a brief for so modest . . . a
request, but decided that rules and orders were meant to be followed . . . .” (Doc.
189) Plaintiffs counsel’s fascination with ex parte communications with the court
is both inappropriate and puzzling, since we have previously expressly noted for
plaintiffs’ counsel that such ex parte communications are forbidden, plainly
stating to counsel that “ if you are going to send me a . . . letter on [an] issue, you
should make sure the other side receives a copy of it.” (Doc. 83, pp.20-21)
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I.N.S., 699 F.2d 129, 134 (3d Cir. 1983) .This far-reaching discretion extends to
rulings by United States Magistrate Judges on discovery matters. In this regard:
District courts provide magistrate judges with particularly broad
discretion in resolving discovery disputes. See Farmers & Merchs. Nat'l
Bank v. San Clemente Fin. Group Sec., Inc., 174 F.R.D. 572, 585
(D.N.J.1997). When a magistrate judge's decision involves a
discretionary [discovery] matter . . . , “courts in this district have
determined that the clearly erroneous standard implicitly becomes an
abuse of discretion standard.” Saldi v. Paul Revere Life Ins. Co., 224
F.R.D. 169, 174 (E.D.Pa.2004) (citing Scott Paper Co. v. United States,
943 F.Supp. 501, 502 (E.D.Pa.1996)). Under that standard, a magistrate
judge's discovery ruling “is entitled to great deference and is reversible
only for abuse of discretion.” Kresefky v. Panasonic Commc'ns and Sys.
Co., 169 F.R.D. 54, 64 (D.N.J.1996); see also Hasbrouck v.
BankAmerica Hous. Servs., 190 F.R.D. 42, 44-45 (N.D.N.Y.1999)
(holding that discovery rulings are reviewed under abuse of discretion
standard rather than de novo standard); EEOC v. Mr. Gold, Inc., 223
F.R.D. 100, 102 (E.D.N.Y.2004) (holding that a magistrate judge's
resolution of discovery disputes deserves substantial deference and
should be reversed only if there is an abuse of discretion).

Halsey v. Pfeiffer, No. 09-1138, 2010 WL 3735702, *1 (D.N.J. Sept. 17, 2010).
There is another essential facet to the court’s discretion in this field. It is
beyond dispute that the district court has the authority and the discretion to impose
limitations and restrictions on the timing, nature, scope, extent and type of discovery
which it will permit the parties to propound. See F.R.Civ. Pro., Rule 26(c). A
necessary corollary of these principles is the court may direct that parties only obtain
discovery regarding issues properly presented and pending in a lawsuit. “Thus, it is
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proper to deny discovery of matter that is relevant only to claims or defenses that
have been stricken.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 352 (1978).
Similarly, it would be inappropriate to allow parties to engage in discovery on
proposed claims, issues and persons which are not currently part of a lawsuit, solely
on the basis of a speculative assertion that these claims and parties may someday
become part of the pending litigation.
Exercising this discretion, we will deny the plaintiffs’ motion to compel at this
time, without prejudice. In essence, the plaintiffs’ motion seeks to compel a federal
judge to testify about matters relating to a person who is not currently a party to this
litigation, but may become a party of in the future depending upon the resolution of
a motion to supplement the plaintiffs’ complaint. In this setting, we believe that the
rationale course of conduct is to first resolve the pending motion for leave to
supplement this complaint, rather than permit the plaintiffs to launch into a wave of
discovery in support of proposed claims that are not yet part of this litigation.
Legal standards governing requests to call judges as witnesses also strongly
suggest that the issue of whether the plaintiffs may file a supplemental complaint
needs to be addressed prior to indulging in the proposed line of inquiry. As a general
matter, a judge may be called to testify only when that jurist is a “material” witness
in litigation. Moreover, “[a] trial judge is not a ‘material’ witness in the case unless
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his or her testimony is actually material and necessary to the determination of the
case. A judge is not a material witness where there are other available witnesses who
can give the same testimony.” Am. Jur. 2d, Judges, §101 (August 2011)(citations
omitted). See also 22 A.L.R.3d. 1198, Disqualification of Judge on Ground of being
a Witness in a Case, (1968). Applying this exacting standard in a variety of contexts,
courts have frequently rejected claims that particular jurists are indispensable material
witnesses in specific litigation. United States v. Rivera, 802 F.2d 593 (2d Cir. 1986);
United States v. Edwards, 39 F.Supp.2d 692 (M.D.La. 1999); Levine v. United States,
25 F.Supp.2d 900 (N.D. Ind. 1998); Smith v. United States, 644 F.Supp. 303 (D.Md.
1986), aff’d, 815 F.2d 74 (4th Cir. 1987); Panico v. United States, 291 F.Supp. 728
(S.D.N.Y. 1968), aff’d, 412 F.2d 1151 (2d Cir. 1969).
Thus, it is entirely clear that the question of whether a particular judge is a
material witness cannot be determined in the abstract. Rather, this issue can only be
resolved in the context of the claims that are actually pending in the litigation. This
simple proposition dictates the proper course to follow with respect to this motion to
compel. Here, the question of the materiality of any proposed testimony by judicial
officers is inextricably intertwined with the issue of whether the plaintiffs should be
permitted at this time to supplement his complaint to add the new parties, claims and
causes of action that would be the subjects of this proposed deposition testimony. In
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short, we cannot assess the materiality of any proposed judicial deponent’s testimony
in this litigation until we first resolve the issue of what new claims and parties may
be brought into this lawsuit by the plaintiffs at this late date. Given the direct legal
and logical relationship between these issues, the plaintiffs’ motion to compel is
premature and inappropriate. Therefore, that motion to compel, (Doc. 188), will be
denied, without prejudice, pending resolution of the plaintiffs’ motion to supplement
this complaint.
Accordingly, for the forgoing reasons, the plaintiffs’ motion to compel, (Doc.
188) is DENIED without prejudice, pending resolution of the motion for leave to
supplement complaint.
So ordered this 3d day of August 2011.

S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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