Andrews v. Goodyear Tire & Rubber Company, Inc., Civil Action No. 98-2895 (NHP) (D. N.J. 2/14/2000)
| Decision Date | 14 February 2000 |
| Docket Number | Civil Action No. 98-2895 (NHP) |
| Court | U.S. District Court — District of New Jersey |
| Parties | Re: Derek Andrews, et al. v. Goodyear Tire & Rubber Company, Inc., et al. |
Dear Counsel:
This matter comes before the Court on the appeal by plaintiffs from Magistrate Judge Ronald J. Hedges' Letter Order filed February 16, 1999. This Court heard oral argument on April 8, 1999. For the reasons stated more particularly herein, the Order by Magistrate Judge Hedges is REVERSED.
On June 12, 1998, plaintiffs Derek Andrews, Eric Brown, Lanette Brown, Gregory Butler, Carlos Cortijo, Richard Foendoe, Ernestine Foendoe, George Hudson, Tanya Hudson, Joseph J. Lee, Elizabeth Lee, Jonathan Ratliff, Andrea Ratliff, Nolan Reaves, Elaine Mac-Reaves, Cornell Ross, Demaris Ross, David Simmons, and Doris Simmons (hereinafter collectively referred to as "plaintiffs") filed a Complaint against defendants Goodyear Tire & Rubber Co., Inc. (hereinafter "Goodyear"), Thomas Martin, Joseph Malyska, Jr., William A. Petri, Ralph. G. Soden, Gerald Myslinski and John Feastor in the Superior Court of New Jersey, Law Division, in Middlesex County alleging: (1) racial discrimination pursuant to the New Jersey Law Against Discrimination, N.J.S.A. § 10:5-12(a),(e); (2) failure to promote; (3) intentional infliction of emotional distress; and (4) loss of consortium.1 See Complaint filed June 12, 1998.
On June 19, 1998, Goodyear filed a Notice of Removal in the United States District Court for the District of New Jersey. See Notice of Removal filed June 19, 1998. In the Notice of Removal, Goodyear asserted that plaintiffs' case was removable pursuant to the Labor Relations Management Act, 29 U.S.C. § 185, because plaintiffs comprise Goodyear employees2 who are parties to a collective bargaining agreement. See id.
On June 30, 1998, plaintiffs filed an Amended Complaint to include Daryl Butler as a plaintiff to the pending action. See Amended Complaint filed June 30, 1998.3 On July 14, 1998, defendants filed their respective Answers to plaintiffs' Complaint and also asserted various counterclaims therein. See Amended Complaint filed June 30, 1998. On July 20, 1998, plaintiffs filed an Answer to the counterclaims asserted by defendants. See Answer filed July 20, 1998.
The factual background of this case was relatively uneventful during the nascent stage of the proceedings. The case, however, takes an interesting turn on or about September 16, 1998 as a result of a conversation which took place during a meeting between plaintiffs' counsel, Glenn Bergenfield (hereinafter "Bergenfield"), and counsel for Goodyear, Marilyn Sneirson (hereinafter "Sneirson"). See Affidavit of Glenn Bergenfield in Support of Motion Pursuant to Local Rule of Civil Procedure 72.1 for Appeal of the Letter Order of Magistrate Judge Ronald J. Hedges dated February 16, 1999, Exhibit C (hereinafter "Bergenfield Affidavit"). Apparently, during the course of that meeting, the issue of whether Bergenfield had made ex parte communications in violation of the New Jersey Rules of Professional Conduct (hereinafter "RPCs") was born.
On September 25, 1998, Sneirson wrote a letter to Bergenfield memorializing part of the conversation which occurred during that pivotal September 16 meeting. See id. The letter provided, in pertinent part:
At our meeting on September 16, you disclosed that you have contacted two Goodyear management level employees, one of whom is retired and one a current employee . . . You have now apparently ignored the Rules of Professional Conduct concerning ex parte communications with management level employees of Goodyear. This is to demand that you immediately cease communications with Goodyear management and to further advise you that we will be making an appropriate application to the Court concerning this issue.
See id.; see also Defendant Goodyear Tire and Rubber Co., Inc.'s Appendix in Opposition to Plaintiffs' Appeal to Reverse the Letter Order of Magistrate Judge Ronald J. Hedges dated February 16, 1999, Exhibit F (hereinafter "Goodyear Appendix").
On October 30, 1998, Sneirson once again corresponded with Bergenfield via a letter. This letter informed Bergenfield that Sneirson had requested a telephone conference call with the Magistrate Judge concerning Bergenfield's alleged ex parte communications with Goodyear employees, specifically Bergenfield's communications with Lawrence G. Guffey (hereinafter "Guffey"), a Zone Manager at Goodyear. See Goodyear Appendix, page 2. As a result of Sneirson's letter to the Court, the Magistrate Judge granted Goodyear's request and, accordingly, arranged a telephone conference call for November 9, 1998 at 2:45 p.m. See id.
Subsequent to the conference call on November 9, Bergenfield wrote a letter to the Magistrate Judge indicating that he was "mystified by what Defendants' lawyers were talking about during our conference call on Monday." See id., Exhibit 4. In seeking to clarify what he believed to be a "misunderstanding" by Goodyear, Bergenfield also wrote a letter to Sneirson dated November 11, 1998 wherein he attempted to explain that his conduct in contacting Al Venezia (hereinafter "Venezia"), another Goodyear employee, did not violate the RPCs. See id. Bergenfield explained, only with regard to Venezia, that:
I am surmising that Mr. Venezia told you that I called him up and told him that I represented Goodyear. Let me point out what actually happened. I called up and told him that I was the lawyer representing some black workers who were suing Goodyear and that I heard that he might want to speak to me. He said, "you have a tough case." I said to him that I felt we had a good case, that some of the managers had already confirmed much of the racism at the plant. He interrupted me and asked, do you represent Goodyear or the blacks? And I said, again, the black workers. He said that he did not want to talk to me any further. I asked him if he was sure, he said he was and we said goodbye.
See id.
Perhaps momentarily accepting Bergenfield's explanation with regard to his contacts with Venezia, Goodyear again began to focus on Bergenfield's contacts with Guffey, as exemplified by the Proposed Discovery Order submitted by Goodyear to the Magistrate Judge. On November 16, 1998, the Judge entered the Order which provided:
1. Plaintiffs shall provide supplemental responses to defendant, Goodyear's Interrogatory No. 8 which seeks information concerning "each individual from whom a statement relating to any allegation asserted by Plaintiffs in their Amended Complaint was taken by Plaintiffs, Plaintiffs' counsel or any other agent or representative of Plaintiff[s]" with "statements" being defined in Goodyear's Interrogatories as Federal Rule 804 definition encompassing oral as well as written statements;
2. A [deposition] shall be taken of Goodyear's current management employee, Larry Guffey, on the issue of whether plaintiff[s'] counsel acted in accordance with the Rules of Professional Conduct in engaging in ex [] parte communications with Mr. Guffey;
3. Upon the conclusion of the Guffey [] deposition counsel may submit to this Court any application concerning ex parte communications; and
4. Plaintiffs' counsel shall review and respond to the deficiency notice provided by counsel for the individual defendants within 7 days and if the parties are unable to resolve the discovery issues counsel will so notify the Court.
See id., Exhibit 6.
Pursuant to said Order, Guffey's deposition was taken on November 17, 1998 solely on the issue of whether Bergenfield acted in accordance with the RPCs in engaging in ex parte communications with Guffey. See Goodyear Appendix, Exhibit 1. The relevant line of questioning by Sneirson (who, for the first time, professed to be Guffey's attorney) on direct examination and the corresponding testimony was as follows:
Q. Okay. And when was the first time that there was a communication between yourself and Mr. Bergenfield?
A. Mr. Bergenfield phoned me at my home on Labor Day evening, September 2, 1998, at about 8:30 p.m.4
Q. Did you invite Mr. Bergenfield to telephone you?
A. No.
Q. Was that the first communication you had with Mr. Bergenfield ever?
A. Yes.
Q. What did Mr. Bergenfield say to you, to the best of your recollection?
A. He told me that he represented the plaintiffs in the case at North Brunswick, and asked me if I was aware that the company had filed a countersuit for libel and slander.
Q. At any time during this telephone conversation, did Mr. Bergenfield ask you if you were represented by counsel?
A. No.
Q. At any time during this telephone conversation, did Mr. Bergenfield ask you if you were part of a litigation control group?
A. No.
Q. At any time during this conversation, did Mr. Bergenfield ask you whether you were entitled to legal representation by Goodyear or any other attorney?
A. No.
Q. At any time, did Mr. Bergenfield ask you if you had requested legal representation by Goodyear?
A. No.
Q. At any time during this...
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