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Equal Employment Opportunity Commission v. FAPS, Inc.

United States District Court, D. New Jersey

March 9, 2015

FAPS, INC., Defendant.


DOUGLAS E. ARPERT, Magistrate Judge.

This matter comes before the Court on two Motions: (1) a Motion for reconsideration of the Court's September 10, 2013 Order by Defendant [Dkt. No. 96]; and (2) a Motion for reconsideration of the Court's September 10, 2013 Order by Plaintiff [Dkt. No. 97]. Both Motions are opposed [Dkt. Nos. 104, 105]. For the reasons set forth below, Defendant's Motion for reconsideration [Dkt. No. 96] is DENIED and Plaintiff's Motion for reconsideration [Dkt. No. 97] is DENIED.


The parties are intimately familiar with the facts of this case. Accordingly, the Court will not recite them at length. The EEOC brought this action until Title VII of the Civil Rights Act of 1964, Title I of the Americans with Disabilities Act of 1990, and Title I of the Civil Rights Act of 1991 to "correct unlawful employment practices on the basis of race and disability, and to provide relief to a class of potential and actual applicants who were adversely affected by such practices." Compl. at 1.

As relevant to the present Motion, on July 3, 2013, Plaintiff sent a letter to the Court claiming that Defendant's counsel had hired a private investigator to conduct ex parte interviews of the 28 claimants and potential claimants listed in the EEOC's Second Amended Rule 26 disclosures. Plaintiff's letter requested that the Court intervene to prevent Defendant's investigator from conducting any further interviews. Defendant submitted a response to Plaintiff's letter claiming that no attorney-client privilege existed between the claimants and the EEOC and that the private investigator was instructed to terminate the interviews and cease contact with the claimants if the claimants informed the investigator that they were represented by counsel.

The Court held a hearing on July 23, 2013, after which Plaintiff and Defendant submitted conflicting certifications regarding the substance of the communications between the claimants and the private investigator. Plaintiff submitted certifications of five claimants who were interviewed by the private investigator. Two of the five claimants stated that the private investigator had affirmatively misled them to believe that he worked for the EEOC and the remaining three claimants stated that they assumed private investigator worked for the EEOC even though the investigator had informed the claimants that he was working on Defendant's behalf. The certifications stated that during the private investigator's interviews with four of the five claimants the investigator did not ask whether they were represented by counsel, and one claimant stated that even after informing the investigator he was represented by counsel the investigator continued the interview. Defendant submitted certifications which disputed some or all of the allegations stated by the claimants in their certifications.

During the July 12, 2013 hearing, counsel for the EEOC admitted that its expert, Dr. Palmer Morrel-Samules, mailed 851 written questionnaires and attempted to contact, by telephone, additional FAPS applicants. Four FAPS employees received the questionnaires and several responses to the questionnaire were received after the fact discovery deadline of June 28, 2103.

On September 10, 2013, the Court issued a Memorandum Opinion and Order, which is the subject of both Defendant's and Plaintiff's present Motions for reconsideration. See Dkt. No. 91. The Court's Order stated that based on the certifications of the claimants, it appeared that Defendant's private investigator "engaged in some level of wrongdoing with respect to [the] communications with potential claimants." Id. at 9. As a result of Defendant's misconduct, the Court ordered Defendant to "disclose all materials, documents, notes and communications between defense counsel and or defense counsel's agents and the EEOC" and prohibited Defendant from using any information gleaned from the interviews or engaging in additional ex parte communications with EEOC claimants and potential claimants. Id. at p. 10.

In addition, the Court addressed the EEOC's admission during the July 12, 2013 hearing that its expert had mailed written questionnaires and attempted to contact additional FAPS applicants, and that several responses to the questionnaire were received after the fact discovery deadline. Taking the EEOC's admission into account, the Court found that both parties violated the existing Case Management Order by continuing to engage in discovery after the expiration of the fact discovery deadline. Accordingly, the Court directed both parties to cease all fact discovery and prohibited the parties from engaging in further discovery.


Defendant moves for reconsideration of the Court's September 10, 2013 Order based on the assertion that the Court "overlooked" that: (1) there was no attorney/client relationship proven and therefore there was no prior inquiry into the status of the claimants' representation required; (2) reasonable inquiry was in fact made but opposing counsel refused to respond; (3) the declarations in the record established that no misconduct occurred; and (4) since there was no attorney/client relationship, the Court overlooked precedent holding that no sanctions should result from a violation of RPC 4.2. See Dkt. No. 96 at p. 2-3. Plaintiff's Motion for reconsideration claims that the questionnaire sent by Plaintiff's expert constituted expert discovery and therefore did not violate the fact discovery deadline set forth the CMO. See Dkt. No. 97.

Motions for reconsideration are not expressly recognized in the Federal Rules of Civil Procedure. United States v. Compaction Sys. Corp., 88 F.Supp.2d 339, 345 (D.N.J. 1999). Generally, a motion for reconsideration is treated as a motion to alter or amend judgment under Federal Rule of Civil Procedure 59(e), or as a motion for relief from judgment under Rule 60(b). Id. In the District of New Jersey, Local Civil Rule 7.1(i) governs motions for reconsideration. Agostino v. Quest Diagnostics, Inc., Civ. No. 04-4362, 2010 WL 5392688, *5 (D.N.J. Dec. 22, 2010) (citing Bryan v. Shah, 351 F.Supp.2d 295, 297 (D.N.J. 2005)).

Local Civil Rule 7.1(i) permits a party to seek reconsideration by the Court of a matter which the party believes the Judge "overlooked" when it ruled on the motion. A motion for reconsideration under Rule 7.1(i) "shall be served and filed within 14 days after the entry of the order or judgment on the original motion by the Judge" and submitted with a "brief setting forth concisely the matter or controlling decisions which the party believes the Judge... has overlooked." L. Civ. R. 7.1(i).

The standard for reargument is high and reconsideration is to be granted only sparingly. United States v. Jones, 158 F.R.D. 309, 314 (D.N.J. 1994). A judgment may be altered or amended under Rule 7.1(i) if the movant shows at least one of the following grounds: "(1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court [issued its order]; or (3) the need to correct a clear error of law or fact to prevent manifest injustice. Max's Seafood Cafe v. Quinteros, 176 F.3d 669, 667 (3d Cir. 1999) (citing N. River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). The Court will grant a motion ...

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