United States District Court, D. New Jersey
OPINION & ORDER
STANLEY R. CHESLER, UNITED STATES DISTRICT JUDGE.
matter comes before the Court upon the appeal of the March 7,
2019 Order entered by Magistrate Judge Cathy A.
Waldor. ECF No. 27. Defendant, County of Essex
(“Defendant” or the “County”) seeks
partial review of Judge Waldor's March 7, 2019 Order,
which granted Plaintiffs' motion to compel the
depositions of Essex County Executive Joseph DiVincenzo
(“DiVincenzo”) and Essex County Sheriff Armando
Fontoura (“Sheriff Fontoura”) [ECF No. 29], and
denied the County's cross-motion for a protective order
prohibiting DiVincenzo's deposition [ECF No. 33]. More
specifically, although Judge Waldor's March 7, 2019 Order
granted Plaintiffs' motion to compel as to both
DiVincenzo and Sherriff Fontoura, the County only seeks
review of the portion of Judge Waldor's March 7, 2019
Order granting Plaintiff's motion to compel
DiVincenzo's deposition. For the reasons stated below,
Magistrate Judge Waldor's Order will be affirmed.
of background, this action was initiated by Plaintiffs as an
action under the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 203, for unpaid
overtime and retaliation. Plaintiff PBA Local 183 (“PBA
Local 183”) “is the exclusive majority
representative for approximately 350 Sheriff's Officers
and Investigators below the rank of Sergeant employed by the
County of Essex;” Plaintiffs Dolores M. Paladino
(“Paladino”) and Marisol Pagan
(“Pagan”) are both detectives employed by the
County in the Essex County Sheriff's Department, where
they are assigned to the K-9 Unit (collectively,
“Plaintiffs”). ECF No. 1, (Compl.) ¶¶
1-3. In addition to their overtime and FLSA retaliation
claims, Plaintiffs also allege that the County violated New
Jersey Attorney General Mandatory Guidelines on K-9 Training
Standards and Qualification Requirements for New Jersey Law
Magistrate Judge Waldor's well-reasoned March 7, 2019
Order, she granted Plaintiffs' motion to compel
DiVincenzo's deposition. She examined Plaintiffs'
request in light of the “apex” doctrine, and
found that it did not apply, as: (1) “Plaintiffs put
forth a valid basis for their assertion that DiVincenzo was
personally involved in facts relevant to Plaintiffs'
claims;” and (2) Defendants failed to point any other
witnesses that could provide the same information as
DiVincenzo or any less burdensome discovery method to obtain
this information. ECF No. 24 at 3.
their appeal of the March 7, 2019 Order, the County argues
that the magistrate judge erred insofar as she incorrectly
applied the two factors required to be considered under the
“apex” doctrine. They maintain that Judge
Waldor's decision was contrary to Third Circuit law, as
(1) Judge Waldor erroneously found that DiVincenzo is likely
to have personal knowledge of the of the relevant subject
matter; and (2) the March 7, 2019 Order failed to properly
evaluate whether the information sought from DiVincenzo could
be obtained in a less burdensome way. See ECF No.
27. The County therefore asks this Court to set aside the
March 7, 2019 Order as it relates to DiVincenzo, and enter a
protective order prohibiting his deposition. Id.
district court may modify or set aside a magistrate
judge's determination of a non-dispositive issue only if
it is “clearly erroneous or contrary to law.” 28
U.S.C. § 636(b)(1)(A); see also Lithuanian Commerce
Corp. v. Sara Lee Hosiery, 177 F.R.D. 205 (D.N.J. 1997).
However, “[a] district judge's simple disagreement
with the magistrate judge's findings is insufficient to
meet the clearly erroneous standard of review.”
Andrews v. Goodyear Tire & Rubber Co., Inc., 191
F.R.D. 59, 68 (D.N.J. 2000) (citations omitted). A finding is
clearly erroneous “when although there is evidence to
support it, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake has
been committed.” Dome Petroleum Ltd. v. Emp'rs
Mut. Liab. Ins. Co. of Wis., 131 F.R.D. 63, 65 (D.N.J.
1990) (quoting United States v. Gypsum Co., 333 U.S.
364, 395 (1948)). A magistrate judge's determination is
contrary to law if he or she misinterpreted or misapplied the
applicable law. Gunter v. Ridgewood Energy Corp., 32
F.Supp.2d 162, 164 (D.N.J. 1998). Furthermore, pretrial
discovery rulings, such as those at issue in the instant
appeal, are afforded significant deference and are thus
reversible only for abuse of discretion. Andrews v.
Goodyear Tire & Rubber Co., 191 F.R.D. 59, 68
(D.N.J. 2000); Kresefsky v. Panasonic Commc'ns and
Sys. Co., 169 F.R.D. 54, 64 (D.N.J. 1996). An abuse of
discretion occurs “when the judicial action is
arbitrary, fanciful or unreasonable, which is another way of
saying that discretion is abused only where no reasonable man
would take the view adopted.” Leap Sys., Inc. v.
Moneytrax, Inc., No. 05-1521 (FLW), 2010 U.S. Dist.
LEXIS 53167 at *10 (D.N.J. June 1, 2010) (internal quotations
and citations omitted). The burden is on the party filing the
appeal to demonstrate that the standard for modifying or
setting aside the magistrate judge's ruling has been met.
Cardona v. Gen. Motors Corp., 942 F.Supp. 968, 971
appeal taken from the March 7, 2019 Order by the County fails
to meet that standard. Although the County maintains that
Judge Waldor's failure to prohibit the deposition of
DiVincenzo contravenes Third Circuit law regarding the
“apex” doctrine, the County has not persuaded
this Court that the order at issue is clearly erroneous or
contrary to law, nor that the Magistrate Judge abused her
discretion in deciding that Plaintiffs should be able to
depose DiVincenzo. Judge Waldor's decision to allow the
deposition of DiVincenzo was consistent with the evidence set
forth during the June 14, 2018 deposition of Undersheriff
Kevin Ryan, who stated that DiVincenzo was “very
involved in each and every aspect of operating this
government” anytime a lawsuit was filed which involved
the County, and “the most hands-on county exec[utive]
we [the County] ever had.” The County thus fails to
show how Judge Waldor's reliance on this evidence- in
finding that DiVincenzo possesses unique knowledge as to the
facts and circumstances surrounding this case- was an abuse
of discretion or contrary to law. Moreover, despite the
County's belated attempts to suggest alternate, less
burdensome ways that Plaintiffs could supposedly obtain this
information, the County's submissions to Judge Waldor
were bereft of any such less burdensome alternatives.
these reasons, the Court finds that the County has not met
its burden of showing that the March 7, 2019 Order was
clearly erroneous or contrary to law. This Court will
therefore affirm the ruling made by the magistrate judge in
the March 7, 2019 Order.
IT IS on this 7th day of August,
2019, ORDERED that the appeal of the
magistrate judge's order of March 7, 2019 [ECF No. 27] be
and hereby is DENIED; and it is further
that the order of March 7, 2019 [ECF No. 24] is
 Judge Waldor's March 7, 2019 Order
is docketed at ECF No. 24. The Court notes that the March 7,
2019 Order also refers to another action, Vincent G.
Fortunato v. County of Essex, Civil Action No.
17-cv-6830, (the “Fortunato action”), which was
consolidated with the instant action for discovery purposes.
However, the Fortunato action was voluntarily dismissed
without prejudice by the parties on July 11, 2019 [Civil
Action No. 17-cv-6830, ECF No. 52] and is thus no longer
 The Court notes that Plaintiffs'
claims of retaliation relate to an Order allegedly given by
Sherriff Fontoura “to kennel all canine partners at the
K-9 Unit headquarters in West Orange at all times when the
canines were not ‘on duty' with their human
partners, ” in response to a 2015 FLSA lawsuit filed by
a retired K-9 Unit member, who is not a party to the instant
action. Although the March 7, 2019 Order states that this
order by Sherriff Fontoura was given in 2016, and thus refers
to it as the “2016 Order, ” the Complaint in the
instant action fails to provide a date as to when this
retaliatory order was given. Nevertheless, because the