The opinion of the court was delivered by: Jerome B. Simandle Chief U.S. District Judge
This matter comes before the Court on Plaintiff Mark Bryson's appeal [Docket Item 62] of Magistrate Judge Karen M. William's February 21, 2013 Order [Docket Item 54] limiting the scope of discovery before the Court holds a preliminary hearing on equitable tolling of the applicable statute of limitations. The Court heard oral argument on April 8, 2013. The Court will affirm the February 21, 2013 Order because it was neither clearly erroneous nor an abuse of discussion. The Court finds as follows:
1. Plaintiff, who was born in 1961, alleges that Father Joseph Shannon, a priest in the Defendant Diocese of Camden ("Diocese"), sexually molested him when Plaintiff was in the first grade. Plaintiff alleges negligence and breach of fiduciary duty claims against Defendant.*fn1 Defendant filed a motion to dismiss [Docket Item 10] arguing, inter alia, that the statute of limitations bars Plaintiff's claims because the abuse occurred over 40 years ago. Plaintiff alleges he suffered traumatic amnesia and repressed memories of the abuse until February 10, 2010, when he saw an adult male who triggered memories of Father Shannon. Plaintiff thus argues that he is entitled to the benefit of New Jersey's discovery rule, an equitable doctrine that tolls the applicable statute of limitations until Plaintiff knew of the wrong suffered.
2. In an Opinion and Order [Docket Items 27 & 28] addressing Defendant's motion to dismiss, the Court ordered a preliminary hearing to determine the applicability of the equitable tolling doctrine. At this hearing, "Plaintiff will have the burden of establishing that his remaining claims are timely as a matter of equitable tolling. . . ." Bryson v. Diocese of Camden, N.J., -- F. Supp. 2d --, CIV. 12-499 JBS-KMW, 2012 WL 5511720, at *8 (D.N.J. Nov. 14, 2012). The Court further explained that Plaintiff may present arguments and evidence that he fully repressed memories of his abuse until February 2010 and that to deny his claim would be inequitable, and Defendant may present arguments and evidence that defending a law suit long after the alleged injury is unjust and outweighs Plaintiff's interest in pursuing his claim against the Diocese.
Id. at *8. The basis for a preliminary hearing to determine the propriety of equitable tolling was espoused in Lopez v. Swyer, 62 N.J. 267 (1973), and the hearing is often referred to as a Lopez hearing.
3. After the Court ordered the Lopez hearing, Plaintiff submitted interrogatories instructing Defendant to "Describe in full detail the burden or prejudice to the Diocese of Camden in defending this lawsuit." [Docket Item 62-3 at 1.] Defendant responded that "[t]he general claim against the Diocese is negligent supervision . . . ." [Docket Item 62-3 at 1.] Defendant then listed 28 Diocesan officials who supervised Father Shannon and who are now deceased. [Docket Item 62-3 at 1-3.]
4. Plaintiff wrote a letter to Magistrate Judge Williams [Docket Item 49] asserting that the Diocese's response was not sufficient because
The question posed in the Interrogatory is how is the Diocese prejudiced . . . . The Diocese's answer does not remotely address this question . . . . The Diocese does not answer what these witnesses knew or should have known about Father Shannon and his suitability for the ministry and/or sexual interest in boys. Without this critical information, no one can determine how or why the Diocese is prejudiced. [Docket Item 49 at 2.] The Diocese responded to this letter by stating, inter alia, "The Diocese does not know whether these individuals had any knowledge which would be admissible at trial -- because these individuals are long since dead." [Docket Item 51 at 2.]
5. Magistrate Judge Williams held proceedings on February 19, 2013 to address various disputes regarding the scope of discovery for the preliminary hearing.*fn2 At the February 19, 2013 hearing, the Magistrate Judge addressed "plaintiff's request to direct defendants to respond further to the interrogatories . . . ." (Feb. 19, 2013 Hr'g Tr. 7:2-3.) Defendant's counsel promised to supplement its interrogatory answers "[t]o identify individuals who were in supervisory or similar type roles for the priest and Father Shannon during the time period when he was a priest and before the alleged abuse." (Feb. 19, 2013 Hr'g Tr. 7:14-17.) Plaintiff's counsel argued that this supplementation was insufficient because they identified people, but they didn't identify how the unavailability of these now deceased witnesses actually causes burden or prejudice . . . . Their unavailability, unless these witnesses have something material and relevant is not prejudice at all. In fact, it may well be prejudice to the plaintiff's, if these are witnesses who knew or were in a position to know that Father Shannon had an interest in young boys. (Feb. 19, 2013 Hr'g Tr. 8:12-22.) The Magistrate Judge held, "That's not the issue . . . . the issue is whether plaintiff's entitled to toll of the statute." (Feb. 19, 2013 Hr'g Tr. 9:3-7.) The February 21, 2013 Order memorialized this ruling: paragraph two mandated that "Defendant shall supplement its answers to Plaintiff's interrogatories as discussed on the record during the conference . . . ." (February 21, 2013 Order at 1 ¶ 2.) The Diocese then submitted a supplemental response to Plaintiff's interrogatories, identifying one chancellor who is not deceased and 18 members of the priest personnel board, nine of whom are deceased. [Docket Item 64-1 at 4-5.]
6. Plaintiff appeals [Docket Item 62] paragraph two of the February 21, 2013 Order, cited above. Plaintiff asks the Court to order Defendant "to specifically disclose how and why the Defendant is prejudiced by the unavailability of these witnesses." (Pl. Appeal Mem. at 6.) Plaintiff argues:
The question posed is how is the Diocese prejudiced in having to defend the lawsuit. The Diocese does not remotely answer the question as they do not state what these individuals knew or should have known about Father Shannon and his suitability for the ministry and/or sexual interest in boys. . . . Indeed, it begs the question, with all these unavailable witnesses, is it not the plaintiff rather than the Defendant who is prejudiced since he must prove that the Diocese was negligent? [Docket Item 62-1 ("Pl. Appeal Mem.") at 5-6.] Plaintiff argues that "[t]he Diocese's position that its defense . . . is prejudiced by the death of certain individuals 'opens the door' for Plaintiff to gain discovery as to which living witnesses and documents bear on the issue of what was known to the Diocese of Camden about Father Shannon's suitability for the ministry." (Pl. Appeal Mem. at 6.)
7. Plaintiff also argues that the February 21, 2013 Order "denie[s] Plaintiff an opportunity to conduct discovery concerning the facts of an important issue for purposes of the Lopez hearing," "inhibits the Plaintiff's opportunity to cross-examine any witnesses who might claim the Diocese has been prejudiced," and denies Plaintiff "any opportunity to present counter-evidence." [Docket Item 67 ("Pl. Reply") at 3.]*fn3
8. Plaintiff asks the Court to "order Defendant to furnish better responses to Second Set of Interrogatories" and order Defendant "to respond ...