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Anderson v. City of New Brunswick

United States District Court, D. New Jersey

October 4, 2017

ARTHUR ANDERSON, et al., Plaintiffs,


          Michael A. Shipp, United States District Judge.

         This matter comes before the Court on non-party Steven Middleton's ("Middleton") appeal (ECF No. 102) from Magistrate Judge Bongiovanni's ("Magistrate Judge" or "Judge Bongiovanni") Order dated June 2, 2017 (ECF No. 96). Defendants City of New Brunswick, Mayor James M. Cahill, City Administrator Thomas A. Loughlin III, Director Anthony Caputo, and Captain William Milligan (collectively "Defendants") filed opposition (ECF Nos. 108, 110) and Middleton replied (ECF Nos. 111, 112). The Court has carefully considered the submissions and decides the matter without oral argument pursuant to Local Civil Rule 78.1. For the reasons set forth below, and other good cause shown, Middleton's appeal is denied and the decision of the Magistrate Judge is affirmed.

         Background and Procedural History[1]

         Plaintiffs in this matter ("Anderson Litigation") are three Patrol Officers at the New Brunswick Police Department alleging failure to promote based on political patronage. (Compl. ¶ 1, ECF No. 1-2.) Plaintiffs filed a Complaint in the Superior Court of New Jersey on March 6, 2012 and Defendants removed the case to Federal Court on April 26, 2012.[2] (ECF No. 1.) Approximately a year after this action was removed, on April 9, 2013, Plaintiffs amended their Complaint to add additional defendants, including Middleton (ECF Nos. 15, 16, 17), but Middleton was dismissed from the lawsuit through a Consent Order on April 29, 2014 (ECF No. 41). Approximately two years after Middleton was dismissed as a defendant in the Anderson Litigation, he voluntarily provided the Anderson Litigation Plaintiffs with an Affidavit supporting their claims. (See June 2, 2016 Letter Order 3 n.l, ECF No. 96.) As a result, Plaintiffs amended their interrogatory answers to include Steven Middleton as an individual with relevant knowledge of Plaintiffs' claims and Defendants sought to depose Middleton. (See May 10, 2017 Correspondence from Susan K. O'Connor, Esq. ("O'Connor") to Judge Bongiovanni Ex. 1, ECF No. 88; June 2, 2017 Letter Order 3.) On February 17, 2017, O'Connor, an attorney at Hoagland, Longo, Moran, Dunst & Doukas, LLP ("Hoagland Firm"), as counsel for three Defendants in the Anderson Litigation, [3] subpoenaed Middleton's deposition for March 30, 2017.[4] The correspondence copied Middleton's attorney, Donald F. Burke ("Burke").[5] (See May 10, 2017 Correspondence from O'Connor to Judge Bongiovanni Ex. 5.) Burke did not object to Middleton's deposition, but the deposition was adjourned due to Burke's unavailability on the scheduled date. (See June 2, 2017 Letter Order 3.) Due to ongoing discovery issues in this matter, Judge Bongiovanni was overseeing the parties' scheduling of depositions. (Id. at 5.) On May 1, 2017, the parties notified Judge Bongiovanni that they intended to depose Middleton on May 12, 2017. (May 1, 2017 Correspondence from O'Connor to Judge Bongiovanni, ECF No. 81.) On May 2, 2017, Middleton was served with a subpoena for his deposition to occur on May 12, 2017. (May 10, 2017 Correspondence from O'Connor to Judge Bongiovanni Ex. 3.) A copy of the subpoena was sent to his attorney. (Id.) On May 4, 2017, Judge Bongiovanni entered an Order requiring that the deposition go forward on May 12, 2017. (May 4, 2017 Order, ECF No. 85.) The Order was forwarded to Middleton and his attorney. (May 10, 2017 Correspondence from O'Connor to Judge Bongiovanni Ex. 4.)

         On May 9, 2017, five days after the Order was entered and three days before the deposition was scheduled, Burke emailed Judge Bongiovanni an emergent request to vacate the May 4, 2017 Order. (June 2 Letter Order 2 Ex.1.) The request was based on: (1) Middleton's alleged lack of notice or opportunity to be heard; (2) arguments for disqualification of O'Connor as counsel due to the Hoagland Firm's prior representation of Middleton in the Otero Matter; and (3) a concern that the deposition would be improperly used to obtain information relevant to the Middleton State Court Action.[6]

         Despite the fact that Middleton did not raise any objection to the deposition between the time that O'Connor served the original subpoena in February 2017 and the May 9, 2017 "emergent" motion to vacate, Judge Bongiovanni agreed to hear argument on Middleton's motion. (June 2, 2017 Letter Order 3-4.) Judge Bongiovanni scheduled a telephonic oral argument to begin half an hour before the ordered deposition and indicated that the parties should call her from the location of the deposition. (June 2, 2017 Letter Order 4-5.) During the argument, Burke, Jr. insisted that a conflict of interest existed under the Rules of Professional Conduct ("R.P.C.") 1.9(a) because Ms. O'Connor works at the Hoagland Firm, which represented Middleton and the other Otero defendants in the Otero Matter. (Redacted Tr. of May 12, 2017 Proceedings (May 12, 2017 Tr.") 8:15-24, ECF No. 98.) He argued that O'Connor should be disqualified from participating in the deposition of Middleton and that the deposition should not occur until Middleton receives and reviews the Otero file.[7] (Id., 15:18-24, 34:4-8.) After hearing the parties' arguments on this issue. Judge Bongiovanni determined that: (1) O'Connor was not disqualified from participating in the deposition, but was ordered to submit a certification regarding her non-involvement in the Otero matter; (2) the deposition should go forward to preserve relevant testimony, but the deposition would be marked attorneys' eyes only; (3) Middleton's attorneys could pursue the conflicts issue after the deposition; and (4) she would be available for any issues that might arise during the course of the deposition regarding potentially improper questioning. (June 2, 2017 Letter Order 6-9.)

         At the end of Judge Bongiovanni's decision, however, Burke, Jr. informed the Court for the first time that neither he (or anyone from the firm) nor Middleton were present at the location of the deposition and Middleton was unavailable. (June 2, 2017 Letter Order 9-10.) This was a direct violation of the Court's explicit order that the parties be prepared to proceed after the telephonic argument. (Id. at 9-11.) As a result, the parties were forced to cancel the deposition. Judge Bongiovanni then revised her telephonic decision based on Middleton's absence. (May 12, 2017 Tr. 40:13-41:23.) Middleton's deposition was tentatively rescheduled for May 30, 2017 and the Court decided to "hold in abeyance [its] decision regarding the conflict of interest" pending further briefing. (Id. at 40:16-17.) Specifically, Judge Bongiovanni ordered counsel for Middleton to submit a letter brief by May 19, 2017 addressing R.P.C. 1.9(a) and: (1) how the Otero Matter and the Anderson Litigation are "substantially similar"; and (2) how the interests of Defendants in the Anderson Litigation are "materially adverse" to the interests of Middleton, a non-party to the Anderson Litigation. (Id. at 33:20-22, 40:18-24, 43:13-23, 46:10-12, 49:6-11.) Burke, Jr. repeatedly insisted that he could not adequately brief the conflicts issue without first obtaining the Otero file. (Id. at 42:2-5.) Judge Bongiovanni, therefore, instructed Burke, Jr. to brief the cases that support Middleton's position that a complete analysis of the Rule 1.9(a) issue cannot be adequately addressed without a review of the Otero file. (Id. at 43:6-24, 44:23-46:9; May 12, 2017 Letter Order, ECF No. 93.)

         Despite counsel's persistence as to the importance of the conflict issue during the telephonic proceedings, Middleton did not submit the ordered briefing. (June 2, 2017 Letter Order 15-16.) Instead, on May 20, 2017, after the Court-ordered deadline passed, Middleton submitted a "Certification of Non-Party Steven Middleton in Support of Motion to Quash Subpoena." (Id. at 16; City Defs.' Opp'n Br. Ex. 6 (hereinafter "Middleton Cert.").) The submission did not comply with the Court's Order. The certification explains why Middleton believes the Otero file is related to the Middleton State Court Action. (Middleton Cert. ¶¶ 3-22.) The certification also alleges that the Anderson Litigation is substantially related to the Otero matter because both cases involve alleged civil rights violations. (Id. ¶¶ 23, 25.) The certification, however, does not provide any substance beyond Middleton's conclusions that the matters are related and does not address the legal issue of how R.P.C. 1.9(a) is implicated. While Middleton claims that he is "uncomfortable" being deposed by an attorney from his former law firm, he admits that he is seeking review of the file to determine if there are records of communications about allegations of racial discrimination with the City of New Brunswick (the subject of the Middleton State Court Action). (Id. ¶¶ 26-27.)

         On June 2, 2017, Judge Bongiovanni issued a Letter Order finding that Middleton did not meet his burden of establishing that Middleton required access to the Otero files to adequately address the RPC 1.9 disqualification issue or that O'Connor should be disqualified as counsel. (June 2, 2017 Letter Order 16.) The Court found, therefore, that O'Connor was permitted to actively take part in Middleton's deposition and ordered the deposition to go forward. (Id. at 20.)

         O'Connor's subsequent attempts to schedule Middleton's deposition were ignored. (City Defs.' Opp'n Br. 6.) The Court again intervened and ordered Middleton's attorney to respond to O'Connor and schedule Middleton's deposition. (June 12, 2017 Letter Order, ECF No. 101.) In response, Middleton's attorney informed the Court that Middleton was considering appealing the June 2, 2017 decision. (June 12, 2017 Letter Order Ex. 3, KCF No. 101.) Judge Bongiovanni entered an Order requiring that any appeal be filed by June 16, 2017. (June 12, 2017 Letter Order 3.) On June 16, 2017, Middleton filed this appeal and a request for a stay of the deposition. Judge Bongiovanni granted Middleton's request for a stay pending resolution of this appeal. (July 18, 2017 Letter Order 3, ECF No. 113.) Middleton has not been deposed.

         II. Middleton's Position

         Middleton's appeal papers consist of a short certification of counsel and a three-page legal brief. Middleton argues that: (1) it is improper for Middleton's deposition to be taken without review of the Otero file; (2) there are "issues" with the involvement of Ms. O'Connor; and (3) it would be unfair to use his deposition in connection with the Middleton State Court Action. (Burke Appeal Cert. ¶ 8, 9-13, 22.) The accompanying three-page brief asserts, without reference to any case citation, that the deposition cannot go forward without a protective order to guard Middleton against questions pertaining to the Middleton State Court Action, the Otero file is necessary to determine if there is a conflict of interest, and that Middleton would have to miss work and compensate his attorney to attend the deposition, which creates an undue burden on Middleton. (Middleton Br. in Supp. of Appeal 2-3, ECF No. 102-3.)

         On reply, Middleton's counsel submitted another certification emphasizing that Middleton believes that he is entitled to access the Otero file. He also alleges that the Order compelling Middleton's deposition was entered without proper notice to Middleton. (Certification of Counsel in Reply to Opp'n ("Burke Reply Cert.") ¶¶ 3-10, 20-22, ECF No. 112-1.)

         III. ...

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