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Florence v. Board of Chosen Freeholders of the County of Burlington

July 1, 2009

ALBERT W. FLORENCE PLAINTIFF,
v.
BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF BURLINGTON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Joseph H. Rodriguez U.S.D.J.

Hon. Joseph H. Rodriguez

Memorandum Opinion & Order

RODRIGUEZ, Senior District Judge

This matter comes before the Court on Motions by Defendants Board of Chosen Freeholders of the County of Burlington, Warden Jule Cole in his Official and Individual Capacity, and Burlington County Jail ("Burlington Defendants") [Dkt. Entry No. 165] and Defendants Essex County Correctional Facility and Essex County Sheriff's Department("Essex Defendants") [Dkt. Entry No. 166] to amend the Court's Order of February 4, 2009 by certifying the judgment on the cross-motions for summary judgment as final, pursuant to 28 U.S.C. § 1292(b). Plaintiff Albert W. Florence, as representative of the class certified by this Court, opposes the motions to amend. For the foregoing reasons, the motions of Burlington and Essex Defendants are granted.

I.

Because the parties are intimately familiar with this case, an exhaustive recitation of the facts and procedural history is unnecessary. Only those facts that are necessary to the analysis of this matter are included herein.

This case originated in 2005 when Albert W. Florence filed a complaint against Burlington and Essex Defendants for alleged violations of his federal constitutional rights. (See Compl. filed July 19, 2005.)After a determination was made on Plaintiff's motion to amend, and discovery proceeded, this Court granted Plaintiff's motion for certification of his proposed class. See Florence v. Board of Chosen Freeholders of the County of Burlington ("Florence I"), No. 05-3619, 2008 WL 800970 at *1 (D.N.J. Mar. 20, 2008).That class was certified as follows:

All arrestees charged with non-indictable offenses who were processed, housed or held over at Defendant Burlington County Jail and/or Defendant Essex County Correctional Facility from March 3, 2003 to the present date who were directed by Defendants' officers to strip naked before those officers, no matter if the officers term the procedure a 'visual observation' or otherwise, without the officers first articulating a reasonable belief that those arrestees were concealing contraband, drugs or weapons.

Florence I, supra, at *17.

Shortly thereafter, Plaintiff, as representative of the newly-certified class, filed for summary judgment on the issue of law regarding whether Defendants violated the Fourth Amendment by their blanket policy of strip searching non-indictable arrestees without reasonable suspicion upon entry into a county correctional facility. [Dkt. Entry No. 116.] Plaintiffs additionally sought injunctive relief against Burlington and Essex Defendants. Burlington and Essex Defendants filed their opposition papers and cross-moved for summary judgment.*fn1 [Dkt. Entry Nos. 130 & 131.] On February 4, 2009, Plaintiffs' motion for summary judgment was granted and Defendants' cross-motions were denied. See Florence v. Board of Chosen Freeholders of the County of Burlington ("Florence II"), 595 F. Supp. 2d 492, 513 (D.N.J. 2009).

Defendants now file motions to amend/correct the Order of February 4, 2009. [Dkt. Entry Nos. 165, 166, 167]. Essentially, Burlington and Essex Defendants ask this Court to amend its Order to include a provision certifying the decision for appeal to the Third Circuit Court of Appeals pursuant to 28 U.S.C. § 1292(b). (Burlington Def. Br. 3; Essex Def. Br. 2.) Plaintiffs oppose the instant motion. [Dkt. Entry Nos. 173, 180]. This Court has received three submissions styled as amicus curiae letter briefs in support of Defendants' motion to amend/correct, undoubtedly due to the ubiquity of similar cases in the District of New Jersey.*fn2 For the reasons expressed below, the motions of Burlington and Essex Defendants are granted.

II.

Federal Rule of Civil Procedure 59(e) permits the Court to amend or correct an order under 28 U.S.C. § 1292(b) so as to include certification for immediate appeal to the United States Circuit Court of Appeals for the Third Circuit.*fn3 See, e.g., In re Oxford Health Plans, Inc., 182 F.R.D. 51, 52 (S.D.N.Y. 1998); In re City of Philadelphia Litig., Id. at 518.

As for Essex Defendants, they too sought summary judgment on the Fourth Amendment issue. Essex also sought dismissal of Plaintiff's ยง 1983 Municipality Custom Violations claim. Both ...


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