United States District Court, D. New Jersey
OPINION & ORDER
KEVIN McNULTY, District Judge.
This matter comes before the Court upon Defendant Officer James Mahoney's motion for reconsideration (ECF No. 150) of this Court's April 8, 2015 Opinion and Order (ECF Nos. 144, 145). That April 8 Order denied Mahoney's appeal of Judge Hammer's refusal to stay discovery.
For the reasons set forth below, Mahoney's motion for reconsideration is DENIED.
This action arose out of an August 29, 2010 incident between Rios and defendant members of the City of Bayonne's Police and Fire Departments.
On October 25, 2013, all of the defendants moved to stay discovery because there was an ongoing criminal investigation of them regarding the same incident. ( See Defs. Mot. to Stay, ECF No. 67 (brief at 68-4)). The defendants argued that discovery could not continue because the defendants would either have to invoke the Fifth Amendment or risk incriminating themselves, either in depositions or by the act of producing documents in discovery.
On August 14, 2013, the fire and police departments were served with grand jury subpoenas from the U.S. Attorney's Office for the District of New Jersey ("USAO") related to the August 29, 2010 incident. The subpoenas mentioned the officers at the scene by name. ( See Transcript of Nov. 18, 2013 Hearing ("Nov. 18, 2013 Tr."), ECF No. 134-2, Ex. B, 10:4-7, 19:9-20:21; see also Davie Cert. ¶4, ECF No. 64). The government also subpoenaed the Internal Affairs Unit's files. ( Id. 24:4-8). The individual defendants, however, were not subpoenaed. ( Id. 32:24-33:1). In addition, Mahoney's attorney, Mr. Till, stated at oral argument before Judge Hammer "that there were statements made to, not to [Till], but to other counsel that indictment [of the officers] was imminent." ( Id. 36:9-11; see also 45:5-8). Rios was also "summoned to speak with federal law enforcement" regarding the federal criminal investigation of the defendants. ( Id. 63:4-7 (quoting Pl. Opp. to Defs. Mot. to Stay at 2, ECF No. 69)).
On November 18, 2013, Judge Hammer held a hearing and ruled on the defendants' first motion to stay discovery. ( See id. ). In his ruling, he balanced the Walsh factors and concluded that they weighed in favor of granting a stay for a period of 90 days (except as to document discovery). ( Id. 71:9-20); see Walsh Sec., Inc. v. Cristo Prop. Mgmt., Ltd., 7 F.Supp.2d 523, 527 (D.N.J. 1998).
On May 27, 2014, Judge Hammer held oral argument as to whether the stay should be treated as having expired. ( See Transcript of May 27, 2014 Hearing ("May 27, 2014 Tr."), ECF No. 134-2, Ex. C). The stay remained in place.
On September 22, 2014, Judge Hammer heard the parties' arguments as to whether to extend the stay. ( See Transcript of September 22, 2014 Hearing ("Sept. 22, 2014 Tr."), ECF No. 134-2, Ex. D). At the hearing, Rios's counsel, Mr. Aboushi, informed Judge Hammer that FBI Agent Laura Rugler had told his co-counsel, Mr. Silberman, "that the FBI completed their investigation and were not moving forward with any charges against the defendants." ( Id. 11:11-18). Mr. Till confirmed that the defendants had no reason to disbelieve this representation. ( Id. 12:3-12). Mr. Till nevertheless sought a Fed.R.Evid. 104 hearing on the issue of whether a criminal investigation was pending. ( Id. 12:3-6; 13:16-20). Because it was unclear at that point whether the government had concluded its investigation of the officers, Judge Hammer continued the stay. He scheduled an additional hearing for December 10, 2014. ( Id. 28:8-16). Judge Hammer also instructed Mr. Aboushi to send notice to the United States Attorney's Office regarding the December 10, 2014 hearing so that they could appear if they wished. ( Id. 30:1-4).
On December 10, 2014, Judge Hammer conducted a hearing regarding the stay and received updates as to the status of any government investigations. ( See Transcript of December 10, 2014 Hearing ("Dec. 10, 2014 Tr."), ECF No. 134-2, Ex. E). Defendants Saroshinsky and Mahoney received letters informing them that (1) they were no longer targets of a criminal investigation by the DOJ Civil Rights Division and (2) the USAO took no position with respect to whether the current civil proceedings should be stayed. ( Id. 4:6-6:21). Counsel for Mahoney, Mr. Till, said that AUSA Eicher had represented to him that the USAO would not take a position as to whether it was investigating Mahoney. ( Id. 7:24-8:10). Mr. Till nevertheless expressed his ongoing concern about a potential USAO investigation for two reasons: (1) The letters to Saroshinsky and Mahoney included the following disclaimer: "Please be advised that [the DOJ Civil Rights Division's] conclusion in this matter does not preclude other components of the U.S. Department of Justice from taking action where appropriate under their separate enforcement authority, " ( Id. 12:8-17) (2) The USAO took no position with respect to a stay in the current matter, which led Mr. Till to an "inference" that USAO has "left all their options open." ( Id. 12:18-25). Counsel for defendants Saroshinsky and Popowski, Ms. Garcia, also remained concerned about the USAO subpoenas that were part of the basis for Judge Hammer's first imposition of a stay. ( Id. 16:8-18:13). Till and Garcia acknowledged, however, that neither of them had asked the USAO for an update in the year preceding the December 10, 2014 hearing. ( Id. 18:9-25). Judge Hammer noted that Amato and Popowski had not received letters informing them that they were no longer targets of a DOJ investigation. ( Id. 20:10-21:17). At that point, plaintiff Rios's counsel, Mr. Silberman, added that he had received a letter from the DOJ Civil Rights Division (ECF No. 116-1) stating that their investigation was closed. ( Id. 24:15-22). That letter reads in pertinent part as follows:
We recently completed our review of the results of the investigation to determine whether a federal criminal prosecution could be brought concerning allegations that the civil rights of Mr. Jason Rios were violated by officials of the Bayonne Police Department. After careful consideration, we concluded that the evidence does not establish a prosecutable violation of the federal criminal civil rights statutes. Accordingly, we have closed our investigation and, based on current information, do not plan to take any further action.
(DOJ Letter Oct. 3, 2015, ECF No. 116-1).
After receiving all of this information, Judge Hammer adjourned the proceedings and continued the stay, with instructions for the parties to return with the following information: (1) whether Popowski and Amato had received a similar letter informing them that they are not targets of a DOJ investigation; and (2) whether the USAO was willing ...