NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1251-15T3
DOMINIQUE DEMARQUET,
Plaintiff-Appellant,
v.
MAYOR FELIX ROQUE, TOWN OF WEST NEW YORK, and WEST NEW YORK BOARD OF EDUCATION,
Defendants-Respondents. _____________________________
Argued telephonically October 3, 2017 – Decided November 17, 2017
Before Judges Gilson and Mayer.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4820-13.
Louis A. Zayas argued the cause for appellant (Law Offices of Louis A. Zayas, attorneys; Mr. Zayas and Alex Lee on the briefs).
Amy V. McClelland argued the cause for respondent Felix Roque (Whipple Azzarello, LLC, attorneys; John A. Azzarello and William J. Muñoz, on the brief).
Sandra N. Varano argued the cause for respondent West New York Board of Education (Nirenberg & Varano, LLP, attorneys; Ms. Varano, on the brief). Robert E. Levy argued the cause for respondent Town of West New York (Scarinci & Hollenbeck, LLC, attorneys; Mr. Levy and Roshan D. Shah, on the brief).
PER CURIAM
Plaintiff Dominique Demarquet, a former employee of the West
New York Board of Education (BOE), sued defendants Mayor Felix
Roque, the Town of West New York, and the BOE alleging that she
had been fired in retaliation for her political support of the
former mayor and her refusal to support Mayor Roque. She appeals
from orders granting summary judgment to defendants and dismissing
with prejudice her complaint that asserted violations of the New
Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2.
Plaintiff also appeals from an order denying her motion to
strike Mayor Roque's answer after the Mayor invoked his Fifth
Amendment privilege against self-incrimination during his
deposition. Finally, plaintiff appeals from two orders addressing
discovery issues, including an order granting Mayor Roque a
protective order and an order denying her request to compel a
deposition.
We reverse the orders granting summary judgment to defendants
because of material factual disputes concerning the motive for
plaintiff's discharge. We also remand for further consideration
the orders denying plaintiff's motion to strike the Mayor's answer,
2 A-1251-15T3 the order granting the Mayor a protective order, and the order
denying plaintiff's motion to compel the deposition of Clara
Herrera.
I.
We summarize the relevant facts as developed in the summary
judgment record, and view those facts in the light most favorable
to plaintiff, the non-moving party. Davis v. Brickman Landscaping,
Ltd., 219 N.J. 395, 406 (2014) (citing Brill v. Guardian Life Ins.
Co. of Am., 142 N.J. 520, 540 (1995)).
Plaintiff has been a resident of West New York for most of
her life. In 2002, West New York hired her, first as a part-time
employee, and later as a full-time employee in the Cultural Affairs
Department. During that time, she was an active supporter of the
then-mayor Silverio Vega.
In 2008, the BOE hired plaintiff as a secretary. Over the
next three years, she was promoted and her salary increased from
$34,000 to just over $57,000. Plaintiff also was attending college
part-time. Accordingly, she requested and was granted an
adjustment to her work schedule that allowed her to leave early
two days a week and make up the time on the days that she did not
have classes.
3 A-1251-15T3 While plaintiff was working for the BOE, she remained
politically active. In that regard, she continued to campaign for
and support Mayor Vega.
In 2011, Roque challenged Vega for the position of Mayor of
West New York. West New York has a commission form of government,
with five commissioners who elect the mayor. N.J.S.A. 40:72-1 and
N.J.S.A. 40:72-10. Accordingly, Roque ran with a slate of proposed
commissioners. Plaintiff supported Mayor Vega and her activities
included handing out pamphlets and attending fundraising events.
In May 2011, Roque's slate of commissioners won the election and
Roque, thereafter, was elected Mayor.
Plaintiff contends that after Roque became Mayor, he
effectively took control of the BOE. At that time, West New York
was a Type I school district, and its board members were appointed
by the Mayor. N.J.S.A. 18A:12-6. Mayor Roque blocked two board
members proposed by Mayor Vega. Mayor Roque was also successful
in expanding the number of members of the BOE. Thus, Mayor Roque
was able to appoint the majority of the BOE's members.
Plaintiff certified that Mayor Roque used his influence to
pressure the BOE into hiring people who had supported him and
terminating people who had not supported him. In that regard,
plaintiff certified that she became aware that the Mayor had a
4 A-1251-15T3 "hit list", which he used to target people for termination if they
refused to support him politically.
Plaintiff testified that after Roque became Mayor, she was
solicited several times by other BOE employees to support the new
Mayor. She, however, refused to support him. She also explained
that there was a recall petition, during which there were efforts
to remove Mayor Roque. Plaintiff testified that while at work
during that time, another BOE employee asked her to purchase a
ticket to a fundraiser for Mayor Roque. She declined.
In early October 2011, the BOE notified plaintiff that it
would be reviewing her employment. She discussed that notice with
her supervisor, who told her that he was surprised she got such a
notice because there were no issues with her performance. On
October 12, 2011, the BOE terminated plaintiff, effective the next
day. Plaintiff was not told why she was terminated.
In August 2012, approximately eleven months after plaintiff's
termination, the Office of Fiscal Accountability and Compliance
(OFAC) of the New Jersey Department of Education, initiated an
investigation concerning the hiring practices of the West New York
school district. After interviewing a number of people and
reviewing various documents, the OFAC concluded that Mayor Roque
had "interjected himself into the district's hiring process." The
report found that "some district employees identified as loyal to
5 A-1251-15T3 the former mayor were identified and selected for termination,
demotion or reassignment to less desirable work locations." The
OFAC investigation "also confirmed that the Mayor, his aides,
board members, and district employees actively solicited
contributions from district employees who often felt obligated to
contribute to ensure continued employment."
Moreover, "[t]he OFAC review confirmed several instances of
political retaliation against individuals deemed to be
unsupportive of the Mayor." In that regard, the OFAC investigators
were informed that a list of names submitted to the Superintendent
for employment action was "commonly referred to as the Mayor's Hit
List." The OFAC report also found that by appointing the majority
of BOE members, Mayor Roque had "the opportunity to influence
employment decisions presented to the [BOE] for approval." The
OFAC then concluded that "the Mayor utilized his authority and
influence to direct [BOE] actions concerning employment decisions
in the [West New York school] district."
In October 2013, plaintiff sued defendants, alleging that
they had violated the CRA by interfering with her constitutional
rights to freedom of association and speech. Specifically,
plaintiff contended that her employment with the BOE had been
terminated in retaliation for her political activities and
associations.
6 A-1251-15T3 The parties engaged in discovery and two issues arose relevant
to this appeal. First, plaintiff sought to compel the deposition
of Mayor Roque. The Mayor moved for a protective order to prevent
the distribution of his deposition to third parties. The court
initially denied that motion in a July 24, 2015 order. However,
after the Mayor moved for a stay so that he could seek
interlocutory appeal, the trial court sua sponte reconsidered. In
an order dated August 21, 2015, the court granted the protective
order. Plaintiff moved for reconsideration, but the trial court
denied that application in an order entered on October 9, 2015.
At his deposition, Mayor Roque asserted his Fifth Amendment
privilege against self-incrimination in response to certain
questions relating to the OFAC report. The Mayor, however,
answered other questions. He denied any knowledge of plaintiff
or her political activities. The Mayor also denied playing a role
in BOE personnel decisions. He gave that answer, despite the fact
that the OFAC report concluded that he played a role in BOE
personnel decisions.
The second discovery issue concerned the deposition of Clara
Herrera. On June 12, 2015, while discovery was open, plaintiff
sent a notice to take the deposition of Herrera on a date before
discovery closed. Herrera was the Assistant Superintendent of the
BOE, and allegedly the person who helped coordinate the Mayor's
7 A-1251-15T3 hit list. Herrera had also been an active supporter of Roque when
he ran for election in 2011. Herrera's deposition was adjourned
and did not take place before the close of discovery because
counsel for West New York was on vacation.
Thereafter, on June 26, 2015, plaintiff filed a motion to
compel Herrera's deposition. Discovery closed on July 2, 2015.
The trial court denied plaintiff's motion in an order entered on
July 10, 2015. In that order, the court noted that the discovery
end date had been extended to July 2, 2015, so that all depositions
could be taken before that date. The order also noted that
plaintiff had not filed a motion to extend that July 2, 2015 end
date.
In August 2015, following the close of discovery, defendants
moved for summary judgment. In support of those motions, the BOE
submitted the certification of the former Superintendent, John
Fauta. Fauta certified that he had recommended that plaintiff not
be re-hired in October 2011 because her salary was significantly
higher than the average salary of her peers, the school district
was facing a budget crisis, and plaintiff had requested a
modification of her work schedule to accommodate her college
schedule. Fauta also certified that after plaintiff was fired,
she was not replaced.
8 A-1251-15T3 In opposing summary judgment, plaintiff certified that she
was never given a reason for her termination when she was fired.
Plaintiff also certified that she believed that she was on Mayor
Roque's hit list, and that she was fired because she did not
support Mayor Roque and openly campaigned for former Mayor Vega.
Plaintiff also certified that her position as secretary at the BOE
did not involve any policy-making decisions and that political
affiliation was not a requirement for her position.
In addition, plaintiff submitted certifications from Scott
Cannano and Michelle Lopez. Cannano was a former principal in the
West New York school district. He certified that, "similar" to
plaintiff, he was demoted and terminated because he did not buy
tickets to Mayor Roque's political fundraisers. Cannano also
asserted that in the fall of 2011, he was involved in budget
meetings with Superintendent Fauta, and did not learn of any
budgetary concerns. Thus, he testified: "During my time working
in the school district as an educator, I never witnessed anyone
either an administrator, or secretaries, being fired for budgetary
reasons." Cannano also challenged Fauta's claim that plaintiff
was not replaced. In that regard, he certified: "Contrary to
defendants' assertions, the Board of Education Business Office has
not remained only five individuals after Dominique Demarquet's
termination, but actually increased as it now employs eight
9 A-1251-15T3 administrative employees." In his certification, Cannano also
acknowledged that, like plaintiff, he had a pending lawsuit against
defendants.
Lopez is a third grade teacher in the West New York school
district. She certified that she was told about a hit list of
school employees who were targeted for retaliation because they
did not support Mayor Roque. She also certified that she
campaigned for former Mayor Vega, refused to purchase a ticket for
a fundraiser for Mayor Roque, and was told by two BOE employees
that she was on the hit list. Thereafter, the BOE did not reappoint
Lopez as a supervisor despite Superintendent Fauta's
recommendation that she be reappointed.
In conjunction with her opposition to defendants' summary
judgment motions, on September 11, 2015, plaintiff cross-moved to
strike Mayor Roque's answer. Plaintiff argued that the Mayor's
answer should be stricken because he asserted his Fifth Amendment
questions at his deposition. In opposing the summary judgment
motions, plaintiff also argued that an adverse inference should
be drawn against Mayor Roque because of his assertion of his Fifth
Amendment privilege.
After hearing oral argument, the trial court granted summary
judgment in favor of defendants. The court set forth the reasons
10 A-1251-15T3 for its decision on the record on September 18, 2015, and entered
two orders that day. Citing our decision in Bello v. Lyndhurst
Board of Education, 344 N.J. Super. 187 (App. Div. 2001), the
trial court identified the three prongs necessary for plaintiff
to show that her termination violated her constitutional rights:
(1) she was employed by a public entity; (2) in a position where
political affiliation was not a condition of employment; and (3)
she was terminated for her political affiliations or activities.
Id. at 194. The court then found that there was no dispute that
plaintiff had satisfied the first two prongs, and that the summary
judgment motion hinged on the third prong.
The court reasoned that only three pieces of evidence
supported plaintiff's claim of political retaliation: the
certification of Cannano, the certification of Lopez, and the OFAC
report. The trial court held that the certifications of Lopez and
Cannano addressed only their own circumstances and did not discuss
plaintiff's termination. The court also reasoned that the
certifications made "bare assertions" that were "untested" because
neither Lopez nor Cannano had been deposed. Finally, the court
stated that the certifications were "rife with hearsay and
unsubstantiated statements and arguments and are, therefore,
evidentially infirm."
11 A-1251-15T3 Turning to the OFAC report, the trial court held that the
report was inadmissible hearsay. In that regard, the court
reasoned that neither the references to statements made by BOE
employees or public officials, nor the report's conclusions were
admissible. In support of its holding, the trial court cited our
decisions in Villanueva v. Zimmer, 431 N.J. Super. 301 (App. Div.
2013), and Meunch v. Township of Haddon, 255 N.J. Super. 288 (App.
Div. 1992).
The trial court also reasoned that it would be "speculative"
to try to determine what Mayor Roque would or would not have said
in response to questions when he asserted his Fifth Amendment
privilege. Thus, the trial court effectively refused to draw an
adverse inference from the Mayor's refusal to answer questions at
his deposition.
In its September 18, 2015 decision and orders, the trial
court did not address plaintiff's cross-motion to strike Mayor
Roque's answer. Instead, a different judge entered an order on
October 9, 2015, denying the motion as "moot." That order was
apparently entered without oral argument and was not supported by
any written or oral opinion, apart from a handwritten note on the
order, which stated: "Denied as moot – summary judgment granted
on 9-18-15."
12 A-1251-15T3 II.
Plaintiff appeals from: (1) the September 18, 2015 orders
granting summary judgment to defendants; (2) the October 9, 2015
order denying her motion to strike Mayor Roque's answer; (3) the
August 21, 2015 order granting a protective order over the
deposition of Mayor Roque and the October 9, 2015 order denying
reconsideration; and (4) the July 10, 2015 order denying her motion
to compel the deposition of Clara Herrera.1
We will address these orders in turn, and for the reasons
that follow, we reverse the summary judgment orders and remand the
other orders for further consideration.
A. The Summary Judgment Orders
Our review of orders granting summary judgment is de novo,
and we apply the same standard employed by the trial court. Davis,
supra, 219 N.J. at 405. Accordingly, we determine whether the
moving party has demonstrated that there are no genuine disputes
1 In her amended notice of appeal, plaintiff also identified other orders from which she was appealing. Those orders included an order dated July 10, 2015, which denied her motion to compel the deposition of Robert Cicchino; an order dated July 24, 2015, which quashed her late amended interrogatory answers; and a September 18, 2015 order denying reconsideration of the order quashing the late interrogatory answers. Plaintiff, however, failed to address these other orders in her brief on appeal. Thus, we deem her arguments concerning those orders to be abandoned. Zavodnick v. Leven, 340 N.J. Super. 94, 103 (App. Div. 2001) (citing Carter v. Carter, 318 N.J. Super. 34, 42 n.8 (App. Div. 1999)).
13 A-1251-15T3 as to any material facts and, if not, whether the moving party is
entitled to judgment as a matter of law. Id. at 405-06; Brill,
supra, 142 N.J. at 540; R. 4:46.
In her complaint, plaintiff asserted a violation of the CRA.
The CRA grants a private right of action against persons who act
"under color of law" to interfere with substantive "rights,
privileges or immunities" secured by the federal and New Jersey
constitutions and federal and New Jersey laws. N.J.S.A. 10:6-
2(c).
The United States Supreme Court has held that it is
unconstitutional for public agencies to discharge employees who
are neither policy-makers nor advisors based on their political
affiliations, reasoning that an employee's exercise of his or her
First Amendment rights outweighs the government's interest in
maintaining a system of political patronage. See Elrod v. Burns,
427 U.S. 347, 372-73, 96 S. Ct. 2673, 2689-90, 49 L. Ed. 2d 547,
565 (1976). See also Brianti v. Finkel, 445 U.S. 507, 514-15, 100
S. Ct. 1287, 1292-93, 63 L. Ed. 2d 574, 581-82 (1980); Battaglia
v. Union County Welfare Board, 88 N.J. 48, 60 (1981) (noting that
"the holding of Elrod is that a non-policy-making, non-
confidential public employee could not lawfully be discharged
solely because of his [or her] political beliefs").
14 A-1251-15T3 To establish a prima facie case of political discrimination,
an employee must show "that [she] works for a public agency in a
position that does not require a political affiliation, that [she]
was engaged in constitutionally protected conduct, and that the
conduct was a substantial or motivating factor in the government's
employment decision." Bello, supra, 344 N.J. Super. at 193 (App.
Div. 2001) (quoting Stevens v. Kerrigan, 122 F.3d 171, 176 (3d
Cir. 1997)). After the employee makes a prima facie case, "the
employer may avoid a finding of liability by proving by a
preponderance of the evidence that the same employment action
would have been taken even in the absence of the protected
activity." Ibid. This burden-shifting mechanism is similar to
the mechanism used in other employment discrimination cases. Ibid;
see also D'Aurizio v. Palisades Park, 963 F. Supp. 387, 392-93
(D.N.J. 1997).
Here, defendants do not dispute that plaintiff worked for a
public agency. Neither do they dispute that her position did not
required a political affiliation. Moreover, the evidence
establishes that plaintiff engaged in constitutionally protected
conduct by campaigning for and supporting the former Mayor Vega
and by refusing to give her political support to Mayor Roque.
Accordingly, the critical issue here is whether plaintiff's
political affiliations and activities were a "substantial or
15 A-1251-15T3 motivating factor" in her termination. We hold that that question
was a disputed issue of material fact, which was not appropriate
for a determination on summary judgment.
Both defendants and the trial court inappropriately narrowed
their focus to the certifications from Cannano and Lopez and the
OFAC report. This narrow focus ignored plaintiff's own testimony
and certification. Plaintiff contended that she was informed of
a hit list and learned that she was on that list. Although
defendants dispute that plaintiff had any evidence to support that
claim, sufficient evidence created a question of fact to be
considered by a jury.
Plaintiff's claims about the hit list and political
retaliation were corroborated by other evidence. Specifically,
the certifications of Cannano and Lopez support plaintiff's
testimony. While neither Cannano nor Lopez were aware of specifics
concerning plaintiff, their certifications support plaintiff's
contention that there was a culture of political retaliation under
Mayor Roque's administration. For example, Lopez certified that
there was a hit list, and people who were on the hit list were
being retaliated against for political reasons. That testimony
supports plaintiff's independent testimony that she also was aware
of the hit list and that she was on the list. Putting those
16 A-1251-15T3 statements together creates an issue of material fact concerning
the motive for plaintiff's firing.
Defendants also argue that no evidence demonstrates that the
Mayor was aware of plaintiff or her political activities. A
problem with that argument is that the Mayor selectively asserted
his Fifth Amendment privilege against self-incrimination. When a
party in a civil action asserts his or her Fifth Amendment
privilege against self-incrimination, the court can instruct the
jury that they may draw an adverse inference. See, e.g., Mahne
v. Mahne, 66 N.J. 53, 60-62 (1974) (recognizing that an adverse
inference may be drawn from a party's invocation of the Fifth
Amendment in civil matters), certif. denied, 75 N.J. 22 (1977);
Duratron Corp. v. Republic Stuyvesant Corp., 95 N.J. Super. 527,
533 (App. Div.) (noting that the adverse inference drawn from a
civil party's invocation of the Fifth Amendment is "a logical,
traditional, and valuable tool in the process of fair
adjudication"), certif. denied, 50 N.J. 404 (1967).
In the record developed here, there were grounds for drawing
adverse inferences against Mayor Roque. For example, Mayor Roque
denied any involvement in personnel decisions at the BOE. The
OFAC report reached the opposite conclusion. Thus, his refusal
to respond to questions about the OFAC report created an adverse
17 A-1251-15T3 inference that Mayor Roque was involved in such BOE decisions. On
summary judgment, plaintiff was entitled to such an inference.
Defendants vigorously argue that the OFAC report was not
admissible. The trial court agreed with that position. We hold,
however, that that ruling was premature on a summary judgment
record. The report, in and of itself, may not be admissible as a
public record, but plaintiff had the right to call witnesses who
are referenced in the report and try to develop the positions
detailed in the report. Moreover, and independently, when Mayor
Roque asserted his Fifth Amendment privilege and refused to answer
questions about the report, those answers were admissible on a
summary judgment record and were subject to an adverse inference.
For example, his denial of involvement in BOE personnel decisions
would be subject to an adverse inference since he refused to answer
questions about the report, which reached the opposite conclusion.
Thus, on the summary judgment record, plaintiff established
a prima facie showing of political retaliation. The BOE then
responded with the certification of Fauta, who contended that
plaintiff was fired for budgetary reasons and because she requested
an adjustment in her work schedule. Plaintiff, however, submitted
sufficient evidence to create material factual disputes concerning
the reasons for her firing.
18 A-1251-15T3 Both in her own testimony and in the certification of Cannano,
plaintiff disputes that budgetary reasons existed for her
termination. Plaintiff also testified that her request for an
accommodation in her work schedule had been approved by her
immediate supervisor and that other people received similar
accommodations. Cannano certified that despite meeting with Fauta
about budgetary matters during the time preceding plaintiff's
termination, he was not aware of any budget crisis. He went on
to certify that while he was employed by the BOE, he was not aware
of any secretary in the business office being fired for budgetary
reasons. He also disputed Fauta's claim that plaintiff was not
replaced. Thus, the conflicting certifications among Fauta,
plaintiff, and Cannano create disputed issues of material fact
concerning whether the BOE's recently stated reasons for
plaintiff's termination are pretextual.
In summary, when the record is reviewed under the summary
judgment standard, and all inferences are drawn in favor of
plaintiff, disputed issues of material fact exist concerning
whether plaintiff's political activities were a substantial or
motivating factor in the BOE's decision to fire her.
19 A-1251-15T3 B. The Order Denying Plaintiff's Motion to Strike Mayor Roque's Answer
The October 9, 2015 order denying plaintiff's motion to strike
Mayor Roque's answer was based on the motion being "moot" because
the court granted summary judgment to defendants. Given that we
have now reversed the orders granting summary judgment to
defendants, plaintiff's motion is no longer moot. Accordingly,
we remand that issue to the trial court for further consideration.
When a civil defendant fails to submit to pretrial discovery,
courts have a range of sanctions that can be imposed. Mahne,
supra, 66 N.J. at 61. While a civil defendant may invoke his or
her Fifth Amendment privilege to avoid self-incrimination, the
court is permitted to draw adverse inferences from such invocation.
Id. at 60 (citing Duratron, supra, 95 N.J. Super. at 533).
Accordingly, on remand, the court should consider whether to strike
Mayor Roque's answer or impose a lesser sanction such as allowing
adverse inferences to be drawn against the Mayor.
Defendants note that "adverse inferences may only be drawn
if there is other evidence supporting an adverse finding; it must
not alone constitute the evidence of guilt." State Dep't. of Law
& Pub. Safety, Div. of Gaming Enf't v. Merlino, 216 N.J. Super.
579, 587-88 (App. Div. 1987), aff’d, 109 N.J. 134 (1988). Here,
20 A-1251-15T3 plaintiff has already developed evidence, independent of an
adverse inference, to support her claim of political retaliation.
C. The Order Granting a Protective Order over the Deposition of Mayor Roque
Before his deposition, Mayor Roque moved for a protective
order. Initially, the court denied that motion. When the Mayor
sought a stay so that he could file leave to appeal, the trial
court sua sponte reconsidered and granted the protective order.
In doing so, the court reasoned that public dissemination of the
Mayor's deposition would cause embarrassment, and that plaintiff's
intent was to try the case in the media or taint the jury pool in
her favor.
Under Rule 4:10-3, a court may enter a protective order, upon
a showing of good cause and as justice requires, to prevent
"annoyance, embarrassment, oppression, or undue burden or
expense." However, "[b]road allegations of harm, unsubstantiated
by specific examples or articulated reasoning," do not establish
good cause. Cipollone v. Liggett Grp., Inc., 785 F.2d 1108, 1121
(3d Cir. 1986). Assuring freedom of communication on matters
relating to government is essential in a democracy. Therefore,
protective orders that have a chilling effect upon that purpose
should be used sparingly. Lederman v. Prudential Life Ins. Co.
21 A-1251-15T3 of Am., Inc., 385 N.J. Super. 307, 323 (App. Div.), certif. denied,
188 N.J. 353 (2006).
Here, we hold that the trial court failed to articulate
sufficient reasons to justify its broad protective order.
Accordingly, we remand this issue to the trial court for further
consideration. We direct the court to provide greater explanation
of Roque's need for a protective order in light of the heightened
public interest in matters involving government officials. On
remand, the court should also consider any change in circumstances,
including whether there is a pending criminal action or
investigation against the Mayor concerning his involvement in BOE
employment decisions.
D. The Order Denying Plaintiff's Motion to Compel the Deposition of Clara Herrera
Trial courts have broad discretion in determining the scope
and timing of discovery. Mernick v. McCutchen, 442 N.J. Super.
196, 199-200 (App. Div. 2015). Here, however, it is not clear
that the court considered all of the timing issues relevant to the
request to take the deposition of Clara Herrera. It is
indisputable that Herrera is a material witness, whose identity
was known to the defendants during discovery. While discovery was
open, plaintiff served a notice calling for Herrera's deposition
to take place before discovery closed. Due to the vacation of the
22 A-1251-15T3 BOE's attorney, however, the deposition did not take place before
the close of discovery.
Plaintiff then moved to compel Herrera's deposition. The
trial court did not hold oral argument on that motion. The only
explanation for its decision was two sentences typed at the bottom
of the July 10, 2015 order. Those sentences read:
This application is denied. The [discovery end date] that was extended by this court's April 24, 2015 order to require all depositions of any party and any fact witnesses to July 2, 2015, has expired and no motion to extend the [discovery end date] has been filed.
We cannot ascertain whether the court considered that
plaintiff requested the deposition while discovery was still open
and that the deposition was postponed beyond the discovery end
date because defense counsel was on vacation. Therefore, we remand
this issue so that the court can consider those facts. If the
court denies plaintiff's request to depose Herrera, it must explain
its reasons for that denial in sufficient detail that would allow
appropriate appellate review. See R. 1:7-4; see also Ronan v.
Adely, 182 N.J. 103, 110-11 (2004) (emphasizing the importance of
trial courts making clear findings of fact in determining issues).
In summary, we reverse the September 18, 2015 orders granting
summary judgment to defendants. We remand for further
consideration the October 9, 2015 orders denying plaintiff's
23 A-1251-15T3 motion to strike Mayor Roque's answer, the September 21, 2015
order granting a protective order over the deposition of Mayor
Roque, and the July 10, 2015 order denying plaintiff's motion to
compel the deposition of Clara Herrera.
Reversed in part, and remanded in part. We do not retain
jurisdiction.
24 A-1251-15T3