Cataldo v. Moses, CIV.A. 02-2588FSH.

Decision Date03 November 2004
Docket NumberNo. CIV.A. 02-2588FSH.,CIV.A. 02-2588FSH.
Citation361 F.Supp.2d 420
PartiesAngelo CATALDO, Plaintiff, v. Sybil MOSES, et al., Defendants.
CourtU.S. District Court — District of New Jersey

Mandy R. Steele, East Brunswick, NJ, Robert G. Leonard, Leonard & Butler, Morristown, NJ, for Plaintiff.

Meryl G. Nadler, Office of the NJ Attorney General, Trenton, NJ, for Defendants.

OPINION

HOCHBERG, District Judge.

INTRODUCTION

This matter comes before the Court upon: (1) Plaintiff's appeal of Magistrate Judge Shwartz's May 7, 2004 Order denying the reopening of discovery ("Discovery Order"); (2) the parties' objections to Magistrate Judge Shwartz's May 7, 2004 Report and Recommendation which granted Summary Judgment in favor of Defendants on Plaintiff's federal claims and declined to exercise supplemental jurisdiction over Plaintiff's remaining state claims ("Summary Judgment Report and Recommendation"); and (3) Plaintiff's Fed.R.Civ.P. 54(b) motion requesting that this Court vacate its March 31, 2004 Order adopting Magistrate Judge Shwartz's March 8, 2004 Report and Recommendation that dismissed Plaintiff's New Jersey Tort Claims Act claims for failure to meet statutory notice requirements ("Dismissal Report and Recommendation").

This case arises from plaintiff Angelo Cataldo's termination from his position as the Civil Division Manager for the Superior Court of New Jersey, Bergen Vicinage, on May 24, 2002. The Defendants include the Honorable Sybil Moses, Assignment Judge of the Superior Court, and numerous court employees. Magistrate Judge Shwartz was requested to prepare Reports and Recommendations for this Court because of her extensive interaction and familiarity with the case through discovery. As Judge Shwartz's Summary Judgment Report and Recommendation details the lengthy fact background of this case, this Court does not repeat the background here. However, facts relevant to this Court's legal analysis are integrated into this opinion.

Magistrate Judge Shwartz has managed discovery and other pre-trial litigation in this case, which has been before her often during the over two years of vigorous and somewhat acrimonious litigation that has required thousands of pages of document analysis.

This Court has reviewed Judge Shwartz's Summary Judgment Report and Recommendation, her Dismissal Report and Recommendation, and all submissions made by the parties pursuant to Fed.R.Civ.P. 78.

DISCUSSION
I. Plaintiff's Appeal of the May 7, 2004 Discovery Order Denying Reopening of Discovery

This court first considers Plaintiff's appeal of Magistrate Judge Shwartz's May 7, 2004 Discovery Order which denied Plaintiff's March 17th, 2004 application to reopen discovery.

A. Background

In her May 7, 2004 Discovery Order, Judge Shwartz denied Plaintiff's March 17, 2004 application to reopen discovery and the summary judgment record. The request by Plaintiffs to reopen discovery was submitted five months after the 14-month discovery period had closed. In support of his application to reopen discovery, Plaintiff offered seven new certifications intended to contradict the reports written by Ms. Laura Simoldoni, the Equal Employment Officer of Plaintiff's workplace, that concluded that Plaintiff had violated employee workplace guidelines. Plaintiff's seven certifications were submitted at various times, including well after his application was submitted, from the following people: Sandra Palermo dated March 2, 2004, Rita Robins dated March 10, 2004, Amelia Teo dated March 17, 2004, Amy Leon dated March 19, 2004, Athanasios (Tom) Antonopoulos dated March 22, 2004, Lucy Hernandez dated March 25, 2004, and Eileen Davis dated April 8, 2004.

Plaintiff's appeal of Judge Shwartz's denial of the motion to reopen discovery contained no brief of arguments on appeal. Rather, Plaintiff submitted a several hundred page attachment which enunciated no reasons as to why the Magistrate Judge's ruling was clearly erroneous or contrary to law. The attachment included, inter alia, deposition transcripts, the original briefs to Judge Shwartz, and the certifications Plaintiff sought to admit.

B. Standard for Reviewing Non-Dispositive Orders

The Magistrates Act requires this Court to apply the clearly erroneous standard of review upon appeal of the magistrate judge's report on certain pretrial, non-dispositive motions. 28 U.S.C. § 636(b); see also McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir.1981). A magistrate judge's ruling concerning discovery is considered such a non-dispositive motion. See, e.g., Bowen v. Parking Authority, 214 F.R.D. 188 (D.N.J.2003); Tarlton v. Cumberland County Corr. Facility, 192 F.R.D. 165 (D.N.J.2000); Fitz Inc. v. Ralph Wilson Plastics Co., 184 F.R.D. 532 (D.N.J.1999). Thus, a magistrate judge's adjudication of a non-dispositive motion will be set aside only if the order is found to be clearly erroneous or contrary to law. Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1111, 1113 (3d Cir.1986), cert. denied, 484 U.S. 976, 108 S.Ct. 487, 98 L.Ed.2d 485 (1987) (citing 28 U.S.C. § 636(b)(1)(A)); see also Fed.R.Civ.P. 72(a); L. Civ. R. 72.1(c). A magistrate judge's order is clearly erroneous only "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. Employers Mut. Liab. Ins. Co. of Wis., 131 F.R.D. 63, 65 (D.N.J.1990) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). To be contrary to law, a magistrate judge's order must have "misinterpreted or misapplied applicable law." Gunter v. Ridgewood Energy Corp., 32 F.Supp.2d 162, 164 (D.N.J.1998).

C. Analysis

In denying Plaintiff's application to reopen discovery, Judge Shwartz applied the three-pronged test set forth in Krouse v. Am. Sterilizer Co., 984 F.Supp. 891, 915 (W.D.Pa.1996) (citing Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 511 (3d Cir.1994)), which held that to reopen discovery a party must satisfy all of the following: 1) identify the particular information sought; 2) show how the information would preclude summary judgment; and 3) explain why it was not previously obtained. Applying the Krouse test, Judge Shwartz found that Plaintiff had met the first prong of the test by identifying the particular information sought, but Plaintiff failed to show how the information would preclude summary judgment and failed to explain why the information was not obtained during the fourteen-month discovery period. Mag. J. Order, May 7, 2004, citing Mag. J. Rep. & Rec., May 7, 2004 Rep. & Rec., 11-14, n. 10.

The record indicates that Plaintiff had ample opportunity, time, and resources to conduct extensive discovery and to develop his facts, and he has provided no explanation as to why he could not previously submit the documents that he now seeks to admit. Completion of discovery was scheduled originally for June 1, 2003, but was extended by over five months until November 7, 2003. During the fourteen-month discovery period, the Plaintiff had opportunity to (and did) depose numerous individuals, including Defendants Moses, Goodman, Simoldoni, DeLaFuente, Buckles, Stylianou, Minihan, Tinghio, Gibson (formerly McMahon), and third-party witnesses Mary Demmer and Lynn O'Dell. Plaintiff submitted thousands of pages of these deposition transcripts to the Court. Plaintiff and Defendants also exchanged many documents, responses to interrogatories, and expert reports with supplemental answers. Many discovery disputes arose and were argued before Judge Shwartz and further resolved before this Court.

Plaintiff has also failed to show that admittance of his submission would preclude summary judgment. He submitted no brief with legal analysis. His request to reopen discovery rested simply on general assertions and vague inferences, sometimes in attached cover letters, that the new certifications would somehow prove that Equal Employment Officer Simoldoni's reports about the Plaintiff were flawed.1

Judge Shwartz correctly applied the Krouse test in denying the application to reopen discovery. Her ruling is not "clearly erroneous" and is affirmed. Plaintiff's new certifications are not made part of the factual record for purposes of litigating Defendant's summary judgment motion.

II. Parties' Objections to the Summary Judgment Report and Recommendation

This Court next considers the parties' six objections to Judge Shwartz's Summary Judgment Report and Recommendation.

A. Background

In her Summary Judgment Report and Recommendation, Judge Shwartz recommended that the Defendants' motion for summary judgment as to Plaintiff's 42 U.S.C. §§ 1983, 1985 and 1986 claims (Counts I-IV) and breach of contract claims (Count VI) be granted, and that Plaintiff's remaining claims under the New Jersey Law Against Discrimination ("NJ LAD") (Counts V, IX,2 and XII) be dismissed for lack of subject matter jurisdiction.3

Plaintiff objected that Judge Shwartz made the following five errors: (1) failing to consider all the disputed facts of this case; (2) holding that the Sea Clammers doctrine preempted Plaintiff's § 1983 age discrimination claim; (3) holding that Plaintiff's speech did not constitute a matter of public concern; (4) holding as an independent ground that Plaintiff's equal protection claim failed on the pleadings (in footnote 27) after having recommended summary judgment against Plaintiff's equal protection claim due to lack of evidence; and (5) finding that Plaintiff had not invoked Equal Employment Office (EEO) anti-discrimination procedures despite the alleged invocation being a basis of Plaintiff's "class of one" equal protection claim.

Defendants objected only to the portion of the Report and Recommendation that this Court decline to exercise supplemental jurisdiction over Plaintiff's remaining state law claims and to dismiss the same...

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