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Kirschling v. Atlantic City Board of Education

United States District Court, D. New Jersey

October 17, 2014


Robert P. Merenich, Esquire, Gemmel, Todd & Merenich, P.A., Linwood, New Jersey, Attorney for Plaintiff.

Cynthia E. Ringel, Esquire, Erin Leigh Henderson, Esquire, Peter P. Perla, Esquire, Jasinsky, P.C., Newark, New Jersey, Attorneys for Defendant.


NOEL L. HILLMAN, District Judge.

This matter comes before the Court by way of motion [Doc. No. 71] of Plaintiff, Thomas Kirschling, seeking to seal pursuant to Local Civil Rule 5.3 the exhibits submitted by Plaintiff in opposition to Defendant's motion for summary judgment. The Court has reviewed Plaintiff's submission, no opposition thereto having been filed, and decides this matter pursuant to Federal Rule of Civil Procedure 78.

For the reasons expressed below, Plaintiff's motion will be denied without prejudice.


Plaintiff filed this action against Defendant, Atlantic City Board of Education, asserting claims under the New Jersey Law Against Discrimination, N.J. Stat. Ann. § 10:5-1, et seq.. On July 31, 2013, Defendant filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. Plaintiff submitted to the Court opposition to the summary judgment motion, but he did not file the documents on the Court's Electronic Case Filing system. The Court directed Plaintiff's counsel to file his response electronically, at which time Plaintiff filed the documents under seal along with the motion to seal presently before the Court.[1]

In support of the motion to seal, Plaintiff submits a certification of counsel in which counsel states that the exhibits contain personal information such as birth dates, social security numbers, salary and promotion negotiations and decisions, and health information. (Cert. of Robert P. Merenich in Supp. of Mot. to Seal (hereafter, "Merenich Cert.") ¶ 4.) Counsel further represents that the exhibits contain certain documents that were marked "confidential" by Defendant. (Id. at ¶ 5.) Counsel also states that the deposition transcripts submitted in connection with the summary judgment motion contain references and discussions of personnel and purportedly confidential documents. (Id. at ¶ 6.) Additionally, according to Plaintiff's counsel, a redacted copy of the brief in opposition to Defendant's motion for summary judgment has been submitted. (Id. at ¶ 3.) Plaintiff asserts in a letter brief filed with the motion to seal that the confidential information contained in the exhibits is so pervasive that redaction is impracticable and would compromise the meaning of the documents. (Letter Br. of Robert P. Merenich, Esq., 1, Mar. 31, 2014.) Defendant purportedly consents to the sealing of the exhibits. (Merenich Cert. ¶ 2.)


In this District, Local Civil Rule 5.3 governs all motions to seal or otherwise restrict public access to both materials filed with the Court and judicial proceedings themselves. The rule provides that in order to place a docket entry under seal, the motion to seal must be publicly filed and "shall describe (a) the nature of the materials or proceedings at issue, (b) the legitimate private or public interests which warrant the relief sought, (c) the clearly defined and serious injury that would result if the relief sought is not granted, and (d) why a less restrictive alternative to the relief sought is not available." L. Civ. R. 5.3(c)(2). The party moving to seal must submit a proposed order that contains proposed findings of fact and conclusions of law. Id.


As a threshold matter, the Court must determine whether it has jurisdiction to adjudicate Plaintiff's motion to seal in light of Plaintiff's filing of a Notice of Appeal to the United States Court of Appeals for the Third Circuit in connection with the March 31, 2014 Order granting summary judgment in favor of Defendant.

Generally, the filing of a notice of appeal is an "event of jurisdictional significance" because it "confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." Griggs v. Provident Consumer Disc. Co. , 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982)(per curiam). The district court, however, "retains jurisdiction, for example, to issue orders staying, modifying or granting injunctions, to direct the filing of supersedeas bonds, and to issue orders affecting the record on appeal, the granting of bail and matters of a similar nature." Mary Ann Pensiero, Inc. v. Lingle , 847 F.2d 90, 97 (3d Cir. 1988) (citing Venen v. Sweet , 758 F.2d 117, 120 n.2 (3d Cir. 1985) and Fed. R. App. P. 7, 8, 9, 10, 11).

The purpose of the divestiture rule is to "prevent the confusion and inefficiency that would result if both the district court and the court of appeals were adjudicating the same issues simultaneously." Id . Because this rule is a judgemade doctrine, rather than a statutory creation, founded upon prudential considerations, the Third Circuit has recognized that "the rule should not be applied when to do so would ...

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