United States District Court, D. New Jersey
AMENDED OPINION & ORDER
dispute arises from the alleged breach of a long-term lodging
agreement. The plaintiff, Andrea Peterson, alleges that she
was wrongfully evicted from her hotel room, where she had
been living for several years. Plaintiff brings this pro se
action alleging numerous causes of action including breach of
contract, intentional infliction of emotional distress, and
violations of her civil rights. Before this Court is Ms.
Peterson's appeal (ECF no. 131) from non-dispositive
rulings of the Magistrate Judge (ECF nos. 128, 129). For the
reasons set forth below, the appeal is denied. Also before
the court is a related "Motion Defendants Make
Settlement Offer" (ECF no. 130). That, too, is denied.
District Court will reverse a Magistrate Judge's decision
on a non-dispositive motion only if it is "clearly
erroneous or contrary to law." Fed.R.Civ.P. 72(a); L.
Civ. R. 72.1(c)(1)(A). This Court has frequendy spoken of the
discretion granted to the Magistrate Judge in non-dispositive
matters. Where the appeal seeks review of a matter within the
core competence of the Magistrate Judge, such as a discovery
dispute, an abuse of discretion standard is appropriate.
See Cooper Hospital/Univ. Med. Ctr. v. Sullivan, 183
F.R.D. 119, 127 (D.N.J. 1998); Deluccia v. City of
Paterson, No. 09-703, 2012 WL 909548, at *1 (D.N.J.
March 15, 2012). "This deferential standard is
especially appropriate where the Magistrate Judge has managed
this case from the outset and developed a thorough knowledge
of the proceedings." Lithuanian Commerce Corp., Ltd.
v. Sara Lee Hosiery, 177 F.R.D. 205, 214 (D.N.J. 1997)
(internal quotations omitted); see Deluccia, 2012 WL 909548,
at *1 (same). Abuse of discretion review, of course, may get
us to much the same place: as a practical matter it
incorporates plenary review of legal questions. See Koon
v. United States, 518 U.S. 81, 100 (1996).
#1 (ECF no. 128)
Peterson first appeals from a Letter Order (ECF no. 128)
("Order #1") filed by Magistrate Judge James B.
Clark, III on February 8, 2018.
#1 denied Ms. Peterson's "Motion for
Clarification" (ECF no. 123) As Judge Clark saw it, the
Motion for Clarification was a restatement of Ms.
Peterson's objections to certain discovery requests,
primarily involving her income and bank statements, as well
as her refusal to participate in settlement negotiations.
After a telephone conference on November 2, 2017, she was
ordered to provide responses within 14 days. (ECF no. 122)
The new motion provides no new information or argument
sufficient to require reconsideration. Reviewing it, I see
nothing about Judge Clark's routine discovery rulings
that was clearly erroneous or contrary to law, or that
constituted an abuse of discretion.
#1 also denied Ms. Petersons' "Motion for
Order" (ECF nos. 125; see also ECF no. 126), filed on
November 9, 2017.
Motion for Order sought reconsideration of an earlier order
of July 26, 2017 (ECF no. 116), which denied the plaintiffs
motion to have certain matters deemed admitted. To begin
with, any such motion for reconsideration was untimely. See
D.N.J. Loc. Civ. R. 7.1(i) (14-day deadline). The plaintiff
seeks to have matters deemed admitted because the defendant,
stating that it believed the scheduling order had superseded
the Rule deadline for a discovery response, filed its
response two weeks late. Excusing late responses was well
within the Magistrate Judge's discretion, and it denied
neither due process nor equal protection.
Motion for Order also objected to the U.S. Marshals'
failure to serve subpoenas on plaintiffs behalf. The
background is as follows. In a letter dated March 23, 2017,
Ms. Peterson sent the U.S. Marshal five information subpoenas
and requested that they be served, pursuant to Fed.R.Civ.P.
45(a)(3). The intended recipients were Anthem Inc.;
Northwestern Healthcare; The Secretary of HHS; the Circuit
Court of Cook County, Illinois; and the Superior Court of
Cobb County. The subpoenas were returned to her with a letter
stating that, absent a court order, the U.S. Marshals do not
serve subpoenas in civil cases. (ECF no. 105) Ms. Peterson
then sent the Court a letter, which I treated as a motion,
requesting that I order such service. On April 21, 2017, I
denied the request, stating tiiat there is no entitlement to
service by the Marshals and that there had been no showing
that such service was justified. (ECF no. 107)
remain of the view that the plaintiff was not entitled to
this relief. The plaintiff cites Fed.R.Civ.P. 4.1, but that
rule requires service by the Marshal of process "other
than a summons under Rule 4 or a subpoena under Rule
45." Elsewhere, she has cited 28 U.S.C. § 1915(d),
which provides that "[t]he officers of the court shall
issue and serve all process, and perform all duties in such
cases" (Le., in forma pauperis cases). Service of
process commonly refers to commencement of an action by
service of a summons and complaint. At any rate, that is the
context in which § 1915(d) appears in the case law. See,
e.g., In re Clark, 632 Fed.Appx. 62, (3d Cir. 2016) (petition
for mandamus to require service of complaint); In re Burrell,
626 Fed.Appx. 33 (3d Cir. 2015). The context and structure of
the in forma pauperis statute, which does not deal with
compelled production of evidence or discovery, lends support
to that view. So too does the structure of the Federal
Rules. The statute's requirement that the Marshal serve a
summons and complaint would require an adjustment to Rule 4,
and sure enough it is there. See Fed.R.Civ.P. 4(c)(3) (Court
"must so order [i.e., order service by Marshal or
someone specially appointed] if the plaintiff is authorized
to proceed in forma pauperis under 28 U.S.C § 1915 . . .
.") No. such adjustment appears, however, in Rule 45,
which governs subpoenas and has its own service provision.
See Fed.R.Civ.P. 45(b)(1). Rule 45(b)(1) provides for service
of a subpoena by any nonparty who has attained the age of 18,
and says nothing about the U.S. Marshal or in forma pauperis
rate, right or wrong, my ruling became the law of the case.
In the months following my order, the plaintiff apparently
made no effort to serve the subpoenas herself, but continued
to maintain that the Marshals should serve them. She claims
that Judge Clark agreed with her in a conference on July 25,
2017, but the procedural order following that conference
contains nothing of the kind. (See ECF no. 115) And a
Magistrate Judge, of course, could not have overruled my
Peterson again objected to the Marshals' refusal in her
November 9, 2017, Motion for Order. To the extent this may be
regarded as a motion for reconsideration of my April 21,
2017, Order, it came far too late. See N.J. Loc. Civ. R.
#1 set a schedule for dispositive motions. The plaintiff
objects that fact discovery should not be closed. Judge Clark
properly closed fact discovery. This matter has been pending
in three courts for over five years. Sorting out this pro se
litigant's many motions and requests, many of them in
emails, many simply repeating motions already denied, and
many failing to conform to minimal procedural requirements,
has presented a challenge. The Magistrate Judge has dealt
with that challenge in a fair and practical manner.
order of Judge Clark, fact discovery closed on the extended
deadline of October 31, 2017. (ECF no. 115) On November 2,
2017, following a conference, Judge Clark entered a letter
order requiring that, within 14 days, (a) plaintiff answer
certain of the defendants' outstanding discovery
requests, and (b) plaintiff submit a letter listing her own
outstanding discovery requests. The order explicitly stated
that "Plaintiff shall ...