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Weinberg v. City of Ventnor City

September 8, 1999

BRUCE WEINBERG,
PLAINTIFF,
V.
CITY OF VENTNOR CITY, EDWARD KOZMOR, ESQUIRE, MICHAEL R. MOSCA, ESQUIRE, JOHN SCOTT ABBOTT, ESQUIRE, TIMOTHY KREISCHER, JAMES G. AGNESINO, CHARLES VESPERTINO, WILLIAM W. RUTLEY, DAVID F. MULLANE, JAMES REEVES GOOS, ROCCO C. GEORGIO, DANIEL J. CAHILL, JOHN M. BAGNELL, WILLIAM H. THOMAS, JAMES R. CULBERTSON, GEORGE SANTAMARIA,
DEFENDANTS.



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

CAMDEN VICINAGE

HONORABLE JOSEPH E. IRENAS

O P I N I O N

Plaintiff seeks an award of sanctions, in the form of attorneys' fees and costs, for an alleged discovery abuse by defendants City of Ventnor City, John Scott Abbott, Esquire, Timothy Kreischer, James G. Agnesino, Charles Vespertino, William W. Rutley, David F. Mullane, James Reeves Goos, Rocco C. Georgio, Daniel J. Cahill, and John M. Bagnell. *fn1 The Court held a hearing on this matter on August 6, 1999. For the reasons discussed below, plaintiff's motion is granted.

FACTS and PROCEDURAL HISTORY

Plaintiff Bruce Weinberg, a Philadelphia resident, owned a four- unit apartment building in Ventnor, New Jersey. Weinberg did not live on the property, but rented its apartments to others. According to the Complaint, beginning in 1994, various Ventnor officials began a pattern of charging Weinberg with criminal violations of Ventnor's trash codes. Weinberg disputed the charges in municipal court, and appealed three convictions to the New Jersey Superior Court. The Superior Court reversed the convictions, finding, inter alia, that a non-resident property owner could not be found guilty of trash violations committed by his tenants. Weinberg claims that despite this ruling, Ventnor officials subsequently continued to criminally charge him with trash violations. In addition, he claims that he was subjected to improper enforcement of the BOCA Property Maintenance Code. Weinberg further claims that he was arrested and brought into custody on October 17, 1997, on an unidentified charge for which he was apparently convicted in absentia.

Weinberg filed this lawsuit on November 12, 1997, against the City of Ventnor, its mayor, Timothy Kreisher, the Ventnor Building Code Supervisor Jimmie Agnesino, and other Ventnor officials who charged and prosecuted him with respect to the trash violations, along with the Ventnor housing inspectors and fire officials. Weinberg brought the action pursuant to 42 U.S.C. §1983, alleging that defendants violated his federal and state constitutional rights to due process of law. Weinberg also brought claims for conspiracy, neglect to prevent conspiracy, violations of the Racketeer Influenced and Corrupt Organizations Act of 1970, 18 U.S.C. §1961 et seq. ("RICO"), malicious prosecution, wrongful arrest and detention, and fraud.

The current dispute arose during discovery. *fn2 Plaintiff's counsel, Lynne M. Parker, Esq., seeking both housing code and trash violations that Ventnor issued to other Ventnor residents and property owners, served upon defendants the two document requests that are at issue here. On March 9, 1998, Ms. Parker forwarded plaintiff's Rule 26(a) disclosures to defendants, and included with them several document requests, one of which was the following:

All summonses issued by Ventnor alleging violations of the BOCA Property Maintenance Code from 1994 to the present, the notices of violations provided before the summons[es] were issued, documents reflecting how those notices were provided (i.e., personal service, certified mail, regular mail, etc.), the identity of the prosecutor, and the disposition of each case. (Pl. Ex. "2," Plaintiff's Rule 26 Disclosure Statement, at 4, ¶10).

By letter dated March 26, 1998, Ms. Parker made another request for:

All summonses issued by Ventnor from January 1, 1996 to the present alleging violations of Ventnor's trash ordinances, the identity of the prosecutor, Ventnor's file on each matter, and the disposition of each case. (Pl. Ex. "1," Parker 3/26/98 Letter, ¶5).

Defendants did not object to these requests. Instead, they simply did not respond. As a result, a telephone conference was held with the Court on or about August 3, 1998. During the telephone conference, defense counsel, A. Michael Barker, Esq., stated that all summonses, notices of violations, and related documents were kept in the individual files for each property in Ventnor. He represented that no summaries or compilations of the requested information existed. Thus, the only way to respond to those two document requests would be to go through each individual property file in Ventnor City Hall, of which there were over 5,500, sorted by address. Mr. Barker invited Ms. Parker to review the files herself and gave her full access to the files in the Building Code Enforcement Office in Ventnor City Hall.

In response to this representation, Mr. Parker went to Ventnor City Hall to inspect the individual property files. She traveled to Ventnor from her home an hour away and spent seven hours on eight separate days inspecting the files and taking notes as to which properties had summonses and notices for housing code and trash violations. After eight days, with less than half of the files reviewed, she realized that she had neither the time nor the resources to continue, and she gave up. She then spent an additional 7.7 hours compiling a handwritten log summarizing the information she had obtained during her eight-day search.

On March 29, 1999, Ms. Parker deposed defendant Timothy Kreischer, the Mayor of Ventnor. During that deposition, Mayor Kreischer testified that he received monthly summary reports from the Ventnor Housing Department that set forth all summonses issued by the Housing Department, including the recipient of the summons, the specific violation, the enforcement officer who issued the summons, and the disposition of each. (See Pl. Ex. "7," Dep. of Timothy Kreischer, March 29, 1999, at 24-25, 52-57). This was the first time that Ms. Parker had heard of monthly summary reports regarding the information she had requested in her document requests.

Ms. Parker then brought this motion for sanctions pursuant to Fed. R. Civ. P. 37, claiming that these monthly summary reports were responsive to her discovery requests, and had they been produced, it would have saved her the time and expenses incurred in traveling to Ventnor and searching through the individual property files at City Hall, along with her endeavor to compile a handwritten log of the same information that could be found in the monthly summary reports. She seeks attorney's fees and costs associated with her travel, file review, log preparation, and motion preparation and presentation -- a total of 85.7 hours at an hourly rate of $160.00.

Mr. Barker responded that he was not aware of the monthly summary reports until Mayor Kreischer testified about them. Nevertheless, he argues, he answered Ms. Parker's document requests properly, because the monthly summary reports are neither accurate nor reliable sources for the information Ms. Parker requested, and, therefore, are not responsive. He insists that the only proper way to respond to Ms. Parker's discovery requests is to go through the individual Ventnor property files.

Ms. Parker's allegations were the subject of a hearing that the Court held on August 6, 1999. At that hearing, defendants presented three witnesses, all of whom are defendants in this case, to discuss the origin and purpose of the monthly summary reports: Jimmie Agnesino, the Ventnor Construction Official in charge of the Housing Department, who reports directly to the Mayor; Timothy Kreischer, Ventnor City Mayor; and John Scott Abbott, the Ventnor City Solicitor.

According to defendants' testimony, the monthly summary report referenced by Mayor Kreischer in his deposition consisted of a computer printout of the Ventnor Municipal Court Calendar for all housing code violations. Although Ventnor does not have a separate court that exclusively hears housing code violations, the one day each month that housing ...


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