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Kennedy v. Jarvie

March 29, 1999

LENORA KENNEDY AND OWEN C. SWEENEY,
PLAINTIFFS,
V.
JAMES JARVIE, RALPH GREEN, JOHN T. MONAHAN, CURTIS WATTS, JANET DICHRISTINA AND COUNTY OF CAMDEN,
DEFENDANTS.



The opinion of the court was delivered by: Robert B. Kugler United States Magistrate Judge

CAMDEN VICINAGE

HONORABLE STEPHEN M. ORLOFSKY

OPINION

KUGLER, United States Magistrate Judge

Presently before the Court is the motion for a protective order brought by Defendants John T. Monahan, Curtis Watts, Janet DiChristina and James Jarvie (collectively "Defendants"). For the reasons discussed below, Defendants' motion is granted in part and denied in part.

Discussion

Discovery disputes in this matter have consumed an inordinate amount of the Court's time and the litigants' resources particularly in light of the limited factual and legal issues remaining in this case after the Honorable Stephen M. Orlofsky's decision on the defendants' motions for summary judgment. This action was filed in December, 1996 and, according to the initial scheduling order, discovery was to be completed on or before December 31, 1997. See Scheduling Order dated July 29, 1997. Since then, the parties have filed no fewer than 24 discovery related motions and have sought the Court's intervention in numerous other discovery disputes. Despite the Court's extensive and atypical involvement in the discovery phase of this case, discovery is still not complete. Without assessing blame for the repeated delays in moving this case to trial, the Court will attempt in this opinion to define for the parties the legal and factual issues that remain in this case so that the parties can tailor the remaining discovery they seek to those issues without seeking the Court's intervention.

The facts, procedural history and legal issues in this matter are discussed at length in the opinions filed by the Honorable Stephen M. Orlofsky on November 18, 1997 and July 18, 1998. The Court will discuss only the portions of those opinions that relate to the remaining issues in the case.

I. Relevant Facts

The initial event underlying Plaintiffs' original claims occurred on August 11, 1992. See Kennedy v. Jarvie, Civil Action No. 96-5980 (SMO), slip op. at 3 (November 17, 1997) ("Kennedy I"). On that date, The New Jersey Bureau of Housing Inspection ("BHI") inspected property located at 542-544 Haddon Avenue in Collingswood, New Jersey shortly before Plaintiff Lenora Kennedy took possession of the property pursuant to a property settlement between Ms. Kennedy and her ex-husband. See id. On September 17, 1992, BHI issued a seven-page report detailing ninety-eight separate violations of the New Jersey Hotel and Multiple Dwelling Act. See id. at 4.

On September 26, 1992, Kennedy was ordered to file an application for a certificate of inspection. See id. at 5-6. She did not comply and on January 8, 1993 a penalty of $149.00 was assessed against her. See id. at 6.

On April 7, 1993, the BHI reinspected the property and found that approximately one-third of the violations had been abated and on May 18, 1993 Kennedy was assessed a $1,000.00 penalty for the unabated violations. See id.

Kennedy alleges that a second reinspection occurred on June 15, 1994, but has been unable to produce any documentary evidence that this inspection in fact occurred. See id. at 7. At some point in time after June 15, 1994, Kennedy contacted Defendant Ralph Green, the original inspector's supervisor, and alleged that an inspector attempted to solicit a bribe from her. See id. The next documented inspection of the property occurred on July 5, 1994 where most of the unabated violations were found to be abated. See id. On September 16, 1994 Kennedy was assessed an additional penalty of $2,750.00 for the unabated violations. See id.

Following that assessment, Kennedy again contacted officials at the BHI, specifically, Curtis Watts, Chief of the BHI, alleging, among other things, that the newly discovered violations at the July 5 inspection were in retaliation for Kennedy's claim that the inspector had solicited a bribe. See id. at 7-8. Kennedy alleges that following that conversation with Watts, she had additional conversations with Janet DiChristina, Supervisor of State-Local Cooperative Housing Inspection Services, and James Jarvie, Senior Field Representative of the BHI, and arranged for an audit in October, 1994. See id. at 8.

That audit inspection took place on October 24, 1994. See id. Kennedy, Plaintiff Owen C. Sweeney, James Jarvie and Ralph Green were all present at the October 24, 1994 audit inspection. See id. Defendants allege that Sweeney identified himself as a federal agent at the audit in an effort to intimidate the inspectors. See id. at 8-9. The October 24 audit inspection resulted in an Inspection Report dated November 1, 1994, which noted that some of the newly discovered violations had been abated. See id. at 9.

On February 8, 1995, Defendant John T. Monahan wrote to Charles Brennan, Commissioner of the Internal Revenue Service in Philadelphia, and alleged that Sweeney had identified himself as a federal agent at the October 24 inspection in an effort to intimidate the inspectors. See id.

After the November 1, 1994 inspection report, Kennedy contacted various officials, including Governor Christine Todd Whitman, complaining about the inspections of her property, the penalties imposed on her, and her allegations of bribery. See id. at 10-12. These contacts are not relevant to the issues before the Court because the Court dismissed those individuals from this case. See Kennedy v. Jarvie, Civil Action No. 96-5980 (SMO), slip op. at 42-44 (June 18, 1998) ("Kennedy II").

In May, 1996, the state instituted proceedings in New Jersey Superior Court, Law Division, Camden County, to collect the total amount of fines, penalties and fees that had been imposed on Kennedy. See Kennedy I at 12. On June 12, 1996, the Honorable E. Stevenson Fluharty ordered Kennedy to pay $3,060.00 to the State and further ordered Kennedy to abate all remaining housing violations. See id. On March 19, 1997, the Superior Court of New Jersey, Appellate Division, affirmed Judge Fluharty's decision and "noted the extensive history of violations and failures to abate, as well as appellant's failure to comply with the penalty orders or to request an administrative hearing as to any of them . . .." See id. at 13 (internal quotations and emphasis omitted). This action followed.

II. Remaining Claims

On November 18, 1997, Kennedy moved this Court for an order staying enforcement of the state court judgment. See Kennedy II at 4. The Court denied the motion. See id. All defendants then moved for an order dismissing all of Plaintiffs' claims or, in the alternative, for summary judgment. See id. The Honorable Stephen M. Orlofsky granted in part and denied in part Defendants' motions. The Court will not restate here Judge Orlofsky's extensive analysis of Plaintiffs' claims. For purposes of the motion before the Court and the remaining discovery in this action, the Court will identify only those claims that survived after Judge Orlofsky's decision.

As to Lenora Kennedy, the only claims that remain are i) her "claims under section 1983 for retaliation in response to the exercise of her First Amendment rights against Jarvie and Green in their individual and official capacities"; and ii) her claims against Watts, DiChristina, in their individual and official capacities, and Camden County for failure to supervise Jarvie and Green. See id. at 44.

As to Owen Sweeney, the only claims that remain are i) his "claims under section 1983 for retaliation in response to the exercise of his First Amendment rights against Green, Jarvie and Monahan in their official capacities"; and ii) his claims against Monahan, in his official capacity, and Camden County for failure to supervise Green, Jarvie and Monahan. See id.

III. Remaining Legal Issues

To prevail at trial on their remaining claims of retaliation, the plaintiffs must prove that "1) [they] engaged in activity protected by the First Amendment; 2) a state actor responded with a retaliatory motive; and 3) the protected activity was the cause of the retaliatory response." See id. at 22 (citations omitted).

To prevail at trial on their remaining claims of failure to supervise, the plaintiffs must prove that the supervisors played an "affirmative role in the deprivation of the plaintiff[s'] rights and that" the supervisors' misconduct was not "merely a failure to act." Id. at 23 (internal quotations and citations omitted).

These narrow issues are the only legal issues that remain in this case.

IV. Controlling Law

Rule 26 of the Federal Rules of Civil Procedure provides, in pertinent part:

(c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, . . . for good cause shown, the court in which the action is pending . . . may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(1) that the disclosure or discovery not be had;

(2) that the disclosure or discovery may be had only on specified terms and conditions, including a designation of the time or place;

(3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;

(4) that certain matters not be inquired into, or that the scope of the disclosure or discovery be limited to certain matters; . . . Fed. R. Civ. P. 26(c).

The party seeking a protective order must demonstrate that "good cause" exists to protect the material from disclosure. Fed. R. Civ. P. 26(c); Cipollone v. Ligget Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986); Cooper Hospital/University Medical Center v. Sullivan, 183 F.R.D. 135, 142-43 (D.N.J. 1998); Johnston Development Group, Inc. v. Carpenters Local Union No. 1578, 130 F.R.D. 348, 352 (D.N.J. 1990) (citation omitted). "Good cause" requires a showing that disclosure will cause a clearly defined and serious injury; broad allegations of harm will not suffice. See id. The party seeking the protective order bears the burden of persuasion. See id. Any party moving for a protective order must substantiate its allegations of harm with specific examples. See Glenmede Trust Co. v. Thompson, 56 F.3d 476 (3d Cir. 1995); Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994); Cooper, 183 F.R.D. at 143 (citations omitted).

The Court must engage in a factual analysis considering the nature of the information sought in light of the factual and legal issues remaining in the case. See Cooper, 183 F.R.D. at 143 (citations omitted); 8 C. Wright, A. Miller & R. Marcus, Federal Practice and Procedure: Civil 2d § 2035 at 486 (West 1994).

If the motion for a protective order is denied in whole or in part, the Court may, on such terms and conditions as are just, order that any party or other person provide or permit discovery. See Fed. R. Civ. P. 26(c); 8 C. Wright, A. Miller & R. Marcus, Federal Practice and Procedure: Civil 2d § 2035 at 486 (West 1994).

To determine which of Plaintiffs' discovery requests are relevant to the remaining claims in this matter, the Court must also consider the general standards governing discovery in federal court. Parties in a litigation "may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . .." Fed. R. Civ. P. 26(b)(1). "The information sought need not be admissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." Id. Additionally, Rule 26 requires that the discovery sought must be proportional to the claims and issues remaining in a case. See Fed. R. Civ. P. 26(b) 1983 advisory committee's note. Discovery "must concern relevant information that is within the inquiring party's legitimate discovery needs when assessed against the lawsuit's `nature and complexity, the importance of the issues at stake in a case seeking damages . . . and the significance of the substantive issues . . ..'" Johnston Development Group, Inc. v. Carpenters Local Union No. 1578, 130 F.R.D. 348, 353 (D.N.J. 1990) (quoting Fed. R. Civ. P. 26(b) 1983 advisory committee's note). See also Public Service Enterprise Group Inc. v. Philadelphia Electric Co., 130 F.R.D. 543, 551 (D.N.J. 1990); Leksi, Inc. v. Federal Insurance Co., 129 F.R.D. 99, 105 (D.N.J. 1989).

V. Analysis

The issues remaining in this case are rather limited. To succeed on their claims, Plaintiffs must prove that they engaged in protected speech; that Defendants Green and Jarvie retaliated against Kennedy based on her speech; that Defendants Green, Jarvie and Monahan retaliated against Sweeney based on his speech; and that Defendants Watts, DiChristina, Monahan and Camden County played affirmative roles in the retaliation in their supervisory roles.

The Court will analyze Defendants' request for a protective order balancing the standards of Rule 26 against the relevant facts of this case, the remaining claims, and the remaining legal issues.

Defendants have asserted grounds for a protective order for many of Plaintiffs' document requests served on several State Defendants. The Court will address each disputed request seriatim, considering the principles discussed above, and either permit or preclude Plaintiffs from seeking the production of certain materials pursuant to the Court's authority under Fed. R. Civ. P. 26(b) and Fed. R. Civ. P. 26(c).

A. Document Requests to Defendant Watts.

Plaintiff Kennedy's remaining claims against Watts are for his alleged participation in the retaliation against Plaintiffs as a supervisor of Green and Jarvie.

1. Document Request Number 2.

Watts seeks relief from Plaintiffs' Document Request Number 2 on the grounds that the documents sought are not relevant to any issues remaining in this case. *fn1 Document Request Number 2 seeks the Local Enforcement Agency's "Quarterly Registry covering Camden County for all years from 1980-1995."

Plaintiffs have failed to demonstrate how the requested documents relate to any remaining claim in the case. The thrust of Plaintiffs' relevance argument is that the original inspector of the premises, Inspector Cortes-Treherne, was not authorized to cite Plaintiff Kennedy for fire code violations.

First, the time period for which Plaintiffs seek documents, 1980- 1995, is overly broad. The relevant time period here is 1994 when Defendants allegedly retaliated against Plaintiffs for their protected speech.

Second, whether or not the BHI and Inspector Cortes-Treherne were authorized by law to cite Kennedy for fire code violations is irrelevant to Kennedy's remaining claims that Defendants Green and Jarvie retaliated against her for her protected speech in 1994, and that Watts, DiChristina and Camden County played an affirmative role in that retaliation as supervisors.

Finally, Plaintiff Sweeney does not have any surviving claims against Watts.

Defendants' motion for a protective order as to Document Request Number 2 served on Defendant Watts is GRANTED. Plaintiffs are precluded from seeking the documents and information sought in Document Request Number 2.

2. Document Request Number 3.

Watts seeks relief from Document Request Number 3, which seeks "[a]ll documents reflecting that the 10/24/94 audit investigation conducted by Jarvie at Kennedy's Collingswood, NJ property resulted in dismissal of any of the `violations' that he audited." Watts claims that all responsive documents have been produced, and that Defendant further agrees to allow Plaintiffs to inspect documents located at the Department of Community Affairs offices at a mutually agreeable time.

Watts should state in his written responses and objections to Plaintiffs' Document Request that all responsive documents have been produced pursuant to Fed. R. Civ. P. 34(b). To the extent that there are additional responsive documents located at the Department of Community Affairs, Watts must identify those documents and permit Plaintiffs to inspect and copy those responsive non-privileged documents.

Defendants claim either to have produced the requested material or to make responsive documents available for inspection and copying and have not asserted grounds for relief from the request. Defendants' motion for a protective order as to Document Request Number 3 served on Defendant Watts is DENIED. Defendant Watts shall respond to Document Request Number 3 and produce all non-privileged responsive documents.

3. Document Request Number 4.

Watts seeks relief from Document Request Number 4 on the grounds that it is irrelevant and does not relate to any material issue of fact remaining in the case.

Document Request Number 4 seeks "[a]ny and all documents reflecting any credits allowed to Camden County for inspections conducted on 6/15/94. (NJAC 5:10-1.3(B)(17)(10) [sic]."

According to Plaintiffs, New Jersey law provides a mechanism whereby local housing agencies are paid by the State for certain inspections, including the inspections of Plaintiff Kennedy's Collingswood property. Kennedy seeks through this Document Request documents relating to Camden County's efforts to receive credits for the inspection that allegedly took place at her property on June 15, 1994, and for which she has been unable to provide documentation.

Whether or not an inspection took place at Kennedy's property on June 15, 1994 is a relevant disputed material fact in this case. Therefore, Plaintiffs are entitled to the documents they seek to prove that an inspection did in fact occur on June 15, 1994.

Defendants' motion for a protective order as to Document Request Number 4 served on Defendant Watts is DENIED. Defendant shall respond to Document Request Number 4 and Produce all non-privileged responsive documents.

4. Document Request Number 5.

Watts seeks relief from Document Request Number 5 on the grounds that the documents sought are not relevant to any remaining issues in this case.

Document Request Number 5 seeks "[r]esumes submitted to the Bureau for Ralph Green, Cortes-Treherne and Mazarella." Plaintiff claims that the resumes sought were to be provided to Watts under New Jersey law. According to Plaintiffs, if Watts did not receive the resumes and did not ensure that the County inspectors were capable, that fact would "show a total disregard for the rights of property owners subjected to inspections by the `un-resumed' [sic] county inspectors."

Plaintiffs' argument is without merit. Whether or not the county inspectors were qualified to do their job has no relevance to the issue of whether or not Watts took an affirmative role in the retaliation against Kennedy for her protected speech. Request Number 5 seeks neither relevant information nor information reasonably calculated to lead to the discovery of admissible evidence.

Defendants' motion for a protective order as to Document Request Number 5 served on Defendant Watts is GRANTED. Plaintiffs are precluded from seeking the documents and information sought in Document Request Number 5.

5. Document Request Number 6.

Watts seeks relief from Document Request Number 6 on he grounds that the documents sought are not relevant to any remaining issues in this case.

Document Request Number 5 seeks a "[l]isting of all training sessions scheduled by the Bureau where Ralph Green and/or other camden [sic] county [sic] inspectors were required to attend. (See NJAC 5:10- 1.3(b)(13(4) [sic]." Plaintiffs claim that this information is relevant to the training and supervision of County inspectors employed by the State.

Whether or not the State or its agents trained the Camden County inspectors has no bearing on the remaining claims against the supervisors in this case. As discussed above, to hold the supervisors liable, Plaintiffs must show that the supervisor defendants took an affirmative role in the alleged retaliation against Plaintiffs. The training of inspectors might be relevant if Plaintiffs' legal claims required a showing of negligence. Negligence, however, is not the standard Plaintiffs must meet. Plaintiffs must prove that the supervisors played an affirmative role in the retaliation against them. Therefore, documents relating to training of County inspector are neither relevant nor reasonably calculated to lead to the discovery of admissible evidence.

Defendants' motion for a protective order as to Document Request Number 6 served on Defendant Watts is GRANTED. Plaintiffs are precluded from seeking the documents and information sought in Document Request Number 6.

6. Document Request Number 7.

Watts seeks relief from Document Request Number 7 on the grounds that the documents sought are not relevant.

Document Request Number 7 seeks the "[l]etter of authorization for Camden County inspectors to perform inspections under SLHCIP [sic]." Plaintiffs claim that they are entitled to the letters for the period 1992-1995.

The time period for which Plaintiffs seek the documents is overly broad. The only inspections of Kennedy's property relevant to her retaliation claims occurred in 1994 after Kennedy allegedly complained about the inspectors' conduct; specifically, the July 5, 1994 and the October 24, 1994 inspections. To the extent that the State retains copies of letters authorizing ...


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