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Quick v. Township of Bernards

United States District Court, D. New Jersey

July 29, 2019

CHRISTOPHER QUICK, et. al., Plaintiff,
v.
TOWNSHIP OF BERNARDS, et. al., Defendants.

          OPINION AND ORDER

          LOIS H. GOODMAN United States Magistrate Judge.

         THIS MATTER comes before the Court by motion (the “Motion”) brought by the Township of Bernards, Township of Bernards Township Committee, and Township of Bernards Planning Board (collectively, “Movants” or “Township Defendants”) for a protective order to limit the scope of depositions under the deliberative process privilege. Movants filed a brief (“Moving Brief”) in support of their motion. [Docket Entry No. 48]. Christopher Quick and Loretta Quick (“Plaintiffs”) have opposed the Motion and filed a Brief in Opposition (“Opposition”) on March 6, 2019. [Docket Entry No. 49]. On March 11, 2019, the Movants filed a Reply Brief in Support of the Motion (“Reply”). [Docket Entry No. 50].

         The Court has considered the Motion on the submissions without oral argument, pursuant to Rule 78 of the Federal Rules of Civil Procedure and Rule 78.1 of the Local Civil Rules. For the reasons set forth below, the Motion is DENIED WITHOUT PREJUDICE.

         I. BACKGROUND

         For purposes of this Order, the Court presumes the parties' familiarity with the procedural background of the case and therefore limits discussion to that necessary for an understanding of the issues.

         A. Previous Litigation

         This case is the byproduct of previous litigation involving the approval of an application submitted by the Islamic Society of Basking Ridge (“ISBR”) for construction of a mosque in the Township. Complaint ¶ 21 [Docket Entry No. 1]. After thirty-nine public hearings where citizens were able to comment, the Township Defendants denied ISBR's application. Id. ¶¶ 22-24. On March 10, 2016, ISBR and Mohammed Ali Chaudry instituted litigation against the Township Defendants, The Islamic Society of Basking Ridge and Mohammad Ali Chaudry v. Township of Bernards, et al, No. 3:16-cv-01369 (“ISBR Litigation”), challenging the denial. Id. ¶¶ 1, 25. On May 23, 2017, the parties in the ISBR Litigation entered into a Settlement Agreement. Id. ¶ 26. On May 30, 2017, this Court entered an order “that incorporated the terms of the Settlement Agreement and that made the Settlement Agreement fully enforceable as an order of the Court” (“Settlement Agreement and Order”). Id. ¶ 27. Pursuant to the Settlement Agreement and Order, ISBR agreed to submit a Site Plan and the Planning Board was required to hold a public hearing to approve the Site Plan (“Special Meeting”). Id. ¶ 28-30. Ten days before the Special Meeting, ISBR was required to send notice to Interested Parties, defined as any owner “of real property within 200 feet in all directions of the proposed mosque site.” Id. ¶ 34.

         B. Current Litigation

         Plaintiffs are both Interested Parties. Id. ¶¶ 35-36. Plaintiffs filed their Original Complaint on July 31, 2017, requesting entry of a preliminary injunction to enjoin the Special Meeting. Id. ¶¶ 41-42. Plaintiffs allege that the terms of the Settlement Agreement and Order barred them from “making any commentary regarding Islam or Muslim” at the Special Meeting.” Id. ¶¶ 11-12. On August 8, 2017, this Court held a hearing on Plaintiffs' preliminary injunction application and subsequently denied the request; the Special Meeting was then held as scheduled. Memorandum Opinion at 13 [Docket Entry No. 28]. After the denial, Plaintiffs appealed this Court's decision to the Third Circuit Court of Appeals where the appeal was dismissed as moot. [Docket Entry No. 33].

         On August 22, 2017, Plaintiffs filed an Amended Complaint bringing claims against Movants pursuant to the First and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983. Amended Complaint ¶ 1 [Docket Entry No. 17]. Plaintiffs allege that the Settlement Agreement is unconstitutional because it: (i) “suppresses speech based on its content and viewpoint;” (ii) “constitutes a prior restraint on protected speech;” (iii) “deprives Plaintiffs of procedural due process;” (iv) “violates the First Amendment's Establishment Clause by preferring Islam over other religions;” and (v) “violates the First Amendment's Petition Clause.” Id. Specifically, Plaintiffs contend that although Interested Parties could “provide sworn comments and cross-examine witnesses regarding the Site Plan, ” the Settlement Agreement and Order prohibited “commentary regarding Islam or Muslims.” Id. ¶¶ 38-39. Because of this restriction, Plaintiffs argue that Movants unconstitutionally “censored Plaintiffs' speech due to its content and viewpoints and thereby placed unconstitutional restrictions on Plaintiffs' First Amendment freedoms.” Id. ¶ 43.

         After Plaintiffs filed their Amended Complaint, Movants filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). [Docket Entry No. 24]. On April 30, 2018, this Court denied the Motion to Dismiss, and an Initial Pretrial Conference was held on August 22, 2018. [Docket Entry No. 28]. The parties then commenced discovery.

         On January 15, 2019, Plaintiffs transmitted an email to Movants explaining the scope of testimony sought in upcoming depositions. Moving Brief Ex. B, at 1-2. Plaintiffs identified their intent to depose Movants on the following issues:

(1) The circumstances surrounding the approval, implementation, and enforcement of ‘Settlement Agreement' entered into in another lawsuit, The Islamic Society of Basking Ridge and Mohammed Ali Chaudry v. Bernards et al., No. 3:16-cv-01369-MAS-LHG (D.N.J.); (2) The procurement of a federal court order enforcing the Settlement Agreement; and (3) The circumstances surrounding the approval, implementation, and enforcement of the provision of the Settlement Agreement prohibiting any commentary regarding Islam or Muslims at a public hearing that was specially set to consider the construction of a mosque in Bernards Township, New Jersey.

Id. After receiving notice of the intended depositions, Movants objected to testifying and the parties were unable to reach an agreement on the scope of the ...


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