1

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

: 

PAUL KAMIENSKI, :

:

:

Plaintiff, : Civil Action No. 11-3056 (PGS)(DEA)

:

v. : 

 :

ATTORNEY GENERAL OF THE STATE :

OF NEW JERSEY, et al., :

:

Defendants. :

:

: 

ANTHONY ALONGI, :

:

:

Plaintiff, : Civil Action No. 11-6243 (PGS)(DEA)

:

v. : MEMORANDUM OPINION 

: AND ORDER

MARLENE LYNCH FORD, et al., :

:

Defendants. :

:

ARPERT, Magistrate Judge 

This matter comes before the Court on a Motion by Defendants Marlene Lynch Ford, 

Thomas F. Kelaher, James W. Holzapfel, Ronald DeLingy, John Mercun, Samuel J. Marzarell, 

E. David Millard, James A. Churchill and Daniel Mahoney (collectively “Defendants”), for an 

Order dismissing Plaintiffs’ Complaints pursuant to Federal Rule of Civil Procedure 

37(b)(2)(A)(v) or, in the alternative, compelling Plaintiffs to respond to Defendants’

interrogatories and requests for the production of documents, and requesting the revocation of 

Timothy J. McInnis, Esq.’s pro hac vice admission. See Civ. Action. No. 11-3056, Dkt. No. 

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102.1 Plaintiffs Alongi and Kamienski oppose Defendants’ Motion.2See Dkt. Nos. 104, 105. For 

the reasons set forth below, Defendants’ Motion is DENIED in its entirety. 

I. BACKGROUND AND PROCEDURAL HISTORY 

Since the parties are intimately familiar with the facts and procedural history of this case, 

the Court will only set forth those facts relevant to Defendants’ present Motion.3 Kamienski’s 

Complaint was filed on May 26, 2011. See Dkt. No. 1. On October 28, 2011 Defendants filed a 

Motion for Summary Judgment in lieu of an Answer, seeking dismissal of Kamienski’s claims 

brought under New Jersey state law and 28 U.S.C. § 1983 based on Eleventh Amendment 

immunity and qualified and absolute immunity.

4

See Dkt. No. 32. In response, Kamienski 

voluntarily dismissed his § 1983 claims against the personally named Defendants in their official 

capacities, but sought to maintain his claims against Defendants in their individual capacities. 

See Dkt. No. 37. On September 11, 2012, the Court dismissed Plaintiff Kamienski’s § 1983

claims against the personally named Defendants in their official capacities and granted Plaintiff 

Kamienski leave to amend his Complaint to “add more specific factual allegations against the 

personally named [Defendants]” in their individual capacities. Dkt. No. 57 at p. 16. In addition, 

the Court directed the parties to “engage in limited discovery as to the immunity defense to

address whether any of the [D]efendants: 

(1) performed non-prosecutorial functions during the criminal investigation and 

during the judicial phase;

 

1 These two matters were consolidated for purposes of case management and pretrial discovery on February 25, 

2013. See Civ. Action No. 11-3056, Dkt. No. 66. Defendants’ present Motion was filed in Civ. Action No. 11-3056 

and seeks to dismiss the Complaints of both Plaintiff Kamienski and Plaintiff Alongi. Unless otherwise noted, all 

docket entries in this Order refer to docket entries in Civ. Action. No. 11-3056. 

2 On March 25, 2015, the Court granted a Motion to substitute Julia Palma, Executrix of the Estate of Anthony 

Alongi, deceased, as the Plaintiff in this action. See Civ. Action. No. 11-6243, Dkt. No. 32. In the interest of clarity, 

the Court refers to the Plaintiff in this action as Plaintiff Alongi. 

3 An extensive factual summary of this matter can be found in the Court’s September 12, 2012 Order. See Dkt. No. 

32. 

4 The present Defendants are former and present prosecutors and investigators from the Ocean County Prosecutor’s 

Office. 

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(2) had any personal involvement in the alleged misconduct; and 

(3) unreasonably violated [Plaintiff Kamienski’s] well-established constitutional 

and statutory rights. 

Id. at p. 10. Pursuant to the Court’s Order, Kamienski filed an Amended Complaint on October 

12, 2012. See Dkt. No. 60. 

The parameters of the Court’s limited discovery directive set forth in the Court’s 

September 11, 2012 Order have been heavily disputed by the parties. On June 7, 2013, both 

parties filed Motions to compel. See Dkt. Nos. 71, 72. In their Motion to compel, Defendants 

claimed that Plaintiffs had failed to respond to the interrogatories and document requests served 

by Defendants. See Dkt. No. 71. In opposition, Plaintiffs argued that Defendants were not 

entitled to any discovery prior to filing an Answer or responsive pleading to Kamienski’s

Complaint. See Dkt. Nos. 73, 74. The Court granted Defendants’ Motion to compel finding that 

“Defendants are entitled to limited discovery on the topics specified in [the Court’s] Order.” Dkt. 

No. 82 at p. 4. Plaintiff Kamienski then moved for reconsideration of the Court’s Order granting 

Defendants’ Motion to compel. See Dkt. No. 83. In denying Plaintiff Kamienski’s Motion for 

reconsideration, the Court noted the continued confusion surrounding the Court’s limited 

discovery directive and instruction instructed Kamienski to: 

Submit any materials or information in his possession responsive 

to [Defendants’] existing requests, as limited by the categories set 

forth in Judge Sheridan’s Order. If Kamienski is unable to so, he is 

instructed to identify the problematic requests and seek 

clarification from Defendants.

Dkt. No. at p. 4. 

Defendants’ present Motion is based on the assertion that in violation of the Court’s 

September 24, 2013 Order, Plaintiffs still have not adequately responded to Defendants’

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discovery requests which were the subject of Defendants’ June 7, 2013 Motion to compel.5 As to 

Kamienski, Defendants assert that in violation of the Court’s September 24, 2013 Order granting 

Defendants’ June 7, 2013 Motion to compel, Kamienski has failed to adequately respond to 

Defendants’ interrogatories, which were served on February 25, 2015 and Defendants’ requests

for the production of documents, which were served on February 28, 2015. Specifically, 

Defendants assert that Kamienski has “refused to provide any documents requested” and that the 

answers to their interrogatories provided by Kamienski on February 19, 2014 are 

“unresponsive”. Dkt. No. 102, McCarthy Cert. at ¶ 18-19. In opposition, Kamienski claims that 

in compliance with the Court’s September 24, 2013 Order, “Kamienski served his responses and 

objections to Defendants’ outstanding discovery requests.” Dkt. No. 105 at p. 7.

Turning to Alongi, Defendants claim that while Alongi’s answers to interrogatories were 

“relatively responsive”, Alongi has “barely” provided any documents to Defendants. In response, 

 

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In his opposition, Kamienski identifies several procedural deficiencies with Defendants’ Motion. Plaintiff asserts, 

and the Court agrees, that Defendants’ present Motion fails to adhere to the Local Civil Rules in two important 

respects. First, in violation of Local Civil Rule 7.1, Defendants’ Motion does not include a brief or “a statement that 

no brief is necessary and the reasons therefor.” L. Civ. R. 7.1(d). Pursuant to the Local Civil Rules, a request for 

relief which is not accompanied by either a brief or a statement why no brief is necessary will not be considered by 

the Court. See Ledgestone Associates, LLC v. Internet Methods, 2008 WL 2625353, at *2 (D.N.J. June 27, 2008). 

Second, under Local Civil Rule 7.2(a): 

[a]ffidavits, declarations and certifications . . . shall be restricted to statements of facts 

within the personal knowledge of the signatory. Argument of the facts and the law shall 

not be contained in such documents. Legal arguments and summations in such documents 

will be disregarded by the Court and may subject the signatory to appropriate censure, 

sanctions or both.

Contrary to the requirements of the Local Civil Rules, the Certification of John D. McCarthy submitted in support of 

Defendants’ Motion is rife with argument and legal conclusions. 

Notwithstanding Defendants’ lack of compliance with the Local Civil Rules, in the interests of justice and 

efficiency, the Court will decide Defendants’ Motion on the merits. However, the Court notes that the same 

deficiencies identified in Defendants’ present Motion were raised by Plaintiffs in response to Defendants’ June 7, 

2013 Motion to compel. See Dkt. No. 74 at p. 2-3. All counsel are advised that any subsequent Motions which do 

not comply with the Local Civil Rules will not be considered by the Court and the continued improper use of 

certifications, affidavits or declarations may subject the signatory to appropriate censure, sanctions or both. 

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Alongi claims that he has complied with the Court’s Orders and provided adequate responses to 

Defendants’ discovery requests.

II. DISCUSSION

A. Defendants’ Motion to Dismiss Plaintiffs’ Complaints Pursuant to Fed. R. Civ. P. 

37(b)(2)(A)(v)

In their Motion, Defendants request the dismissal of Plaintiffs’ Complaints pursuant to 

Federal Rule of Civil Procedure 37(b)(2)(A)(v) based on Plaintiffs’ alleged lack of compliance 

with this Court’s discovery orders directing the parties to engage in limited discovery as to the 

issue of immunity.6 Plaintiffs oppose Defendants’ Motion and claim that they have complied 

with the Court’s orders and adequately responded to Defendants’ discovery requests. 

Federal Rule of Civil Procedure 37 authorizes courts to impose sanctions for failure to 

provide discovery or obey court orders. See Fed. R. Civ. P. 37(b)(2). Where such failures have 

occurred, dismissal may be an appropriate penalty. Id. However, “dismissals with prejudice or 

defaults are drastic sanctions, termed ‘extreme’ by the Supreme Court, ... and are to be reserved 

for [such] cases.” Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 867-68 (3d Cir. 1984)

(citing Nat'l Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 

2778, 49 L.Ed.2d 747 (1976)). It is well settled that the preference of the Third Circuit is to 

decide cases on the merits. Medunic v. Lederer, 533 F.2d 891, 893–94 (3d Cir.1976). 

Generally, in determining whether to impose an involuntary order of dismissal, the Court 

considers the factors set forth in Poulis, 747 F.2d at 868. These factors include:

(1) The extent of the party’s personal responsibility; (2) the 

 

6 The Court notes that beyond the statement that dismissal of Plaintiffs’ Complaints is sought pursuant to Rule 

37(b)(2)(A)(v), Defendants’ Motion to dismiss is completely devoid of any citations to legal authority or discussion 

of the applicable legal standard. 

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prejudice to the adversary caused by the plaintiff’s conduct; (3) the 

history of dilatoriness; (4) whether the conduct of the party or the 

attorney was willful or in bad faith; (5) the effectiveness of 

sanctions other than dismissal, which entails an analysis of 

alternative sanctions; and (6) the meritoriousness of the claim. 

Id. No single Poulis factor is determinative and dismissal may be appropriate even if some of 

the factors are not met. See Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992); Hicks v. 

Feeney, 850 F.2d 152, 156 (3d Cir. 1988). 

Defendants’ request for dismissal under Rule 37 is based on the assertion that Plaintiffs 

have violated the Court’s September 24, 2013 Order which directed that both Plaintiffs and 

Defendants are entitled to “equal opportunity to conduct discovery on permitted topics.” Dkt. 

No. 82 at p. 4. While Defendants acknowledge that Plaintiffs have provided responses to 

Defendants’ discovery requests as instructed by the Court, Defendants contend that the responses 

are insufficient and therefore violate the Court’s discovery directive. 

i. Plaintiff Kamienski

Defendants claim that the answers provided by Kamienski to Defendants’ interrogatories 

are “unresponsive” and that in response to Defendants’ documents requests, Kamienski has only 

provided 107 pages of documents. Kamienski claims that in accordance with the Court’s 

September 24, 2013 Order, Kamienski served his responses and objections to Defendants’

outstanding discovery requests, which included “a mix of substantive answers and the production 

of records, as well as, partial and outright objections to discovery demands.” Dkt. No. 105 at p. 

7. Kamienski asserts that far from disobeying the Court’s orders, his discovery responses 

followed the Court’s December 4, 2013 Order, which clarified the scope of discovery and 

directed that Plaintiff: 

Submit any materials or information in his possession responsive 

to [Defendants’] existing requests, as limited by the categories set 

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forth in Judge Sheridan’s Order. If Kamienski is unable to so, he is 

instructed to identify the problematic requests and seek 

clarification from Defendants.

Dkt. No. 90 at p. 4. Defendants’ Motion is based exclusively on Plaintiffs’ alleged failure 

to obey the September 24, 2013 Order and interestingly contains no reference to the Court’s 

subsequent Order of December 4, 2013. While Defendants may not be satisfied with

Kamienski’s answers to Defendants’ interrogatories or with the quantity of documents produced 

by Kamienski, the Court finds that Kamienski’s responses are in compliance with the Court’s 

December 4, 2013 Order. 

ii. Plaintiff Alongi

According to Defendants, while Alongi’s answers to Defendants’ interrogatories were 

“relatively responsive”, Alongi has “barely provided [Defendants] with any documents despite 

the fact that he litigated the underlying criminal case for more than three decades.” Dkt. No. 102 

at ¶ 23. In response, Alongi claims that he has been fully cooperative with Defendants and has 

produced all documents in his possession relevant to Defendants’ requests. Aside from their 

dissatisfaction with the quantity of documents produced by Alongi, Defendants have failed to 

demonstrate any way in which Alongi has failed to comply with Court’s orders. 

Although Defendants’ assert that dismissal of Plaintiffs’ Complaints is warranted because 

Plaintiffs “continue to blatantly disobey the [Court’s] September 24, 2013 Order and assert that 

they either do not have documents, or are not required to produce documents”, there is nothing 

before the Court to suggest that Plaintiffs have, “blatantly” or otherwise, disobeyed any of the 

Court’s Orders. While Defendants may be dissatisfied with the responses provided by Plaintiffs, 

the Court finds that Plaintiffs, in accordance with the Court’s December 4, 2013 Order, 

submitted the materials in their possession responsive to Defendants’ requests and identified and 

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objected to the “problematic” requests. Accordingly, because the Court finds that Plaintiffs have 

not disobeyed any of the Court’s orders or displayed other conduct requiring sanctions, 

especially the extreme sanction of dismissal, Defendants’ Motion to dismiss Plaintiffs’

Complaints pursuant to Federal Rule of Civil Procedure 37(b)(2)(A)(v) is DENIED.7

B. Defendants’ Motion to Compel 

In the alternative to dismissal, Defendants seek an Order compelling “Kamienski to 

provide complete answers to [Defendants’] interrogatories and request for production of 

documents” and requiring that Alongi “provide complete answers to our request for production 

of documents and immediately produce all requested documents.” Dkt. No. 102 at ¶ 41-42.8

Plaintiffs oppose Defendants Motion to compel claiming that they have adequately responded to 

Defendants’ discovery requests. 

It is well established that the scope of discovery in federal litigation is broad. See Fed. R. 

Civ. P. 26(b)(1). Parties may obtain discovery regarding any nonprivileged matter that is relevant 

to any party’s claim or defense. Id.; see also Pearson v. Miller, 211 F.3d 57, 65 (3d Cir. 2000). 

Moreover, information sought by the parties need not be admissible at trial if it is “reasonably 

calculated” to lead to discovery of admissible evidence. Fed. R. Civ. P. 26. 

While the scope of discovery is undoubtedly broad, the Federal Rules also provide that a

Court “must limit the frequency or extent of discovery otherwise allowed” if it concludes that:

(1) the discovery sought is cumulative or duplicative, or can be obtained from some other source

that is more convenient, less burdensome, or less expensive; (2) the party seeking discovery has

 

7

In addition to the dismissal of Plaintiffs Complaints, Defendants request that the Court order sanctions under Rule 

37(b)(2)(C). Based on the Court’s finding that Plaintiffs have not disobeyed any of the Court’s orders, Defendants’ 

request for sanctions pursuant to Rule 37(b)(2)(C) is DENIED. 

8 Again, the Court notes that beyond stating that the present Motion to compel is made pursuant to Federal Rule of 

Civil Procedure 37(a)(3)(B), Defendants’ Motion is devoid of any citation to legal authority or discussion of the 

applicable legal standard. 

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had ample opportunity to obtain the information by discovery in the action; or (3) the burden or

expense of the proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26. Further, “the

Court has a responsibility to protect privacy and confidentiality interests” and “has authority to

fashion a set of limitations that allow as much relevant material to be discovered as possible . . .

while preventing unnecessary intrusions into legitimate interests that may be harmed by the

discovery of material sought.” Schmulovich v. 1161 Rt. 9 LLC, 2007 U.S. Dist. LEXIS 59705, at

*3-4 (D.N.J. 2007); see also Pearson, 211 F.3d at 65; Fed. R. Civ. P. 26(c). 

Rule 37(a) allows a party to file a motion to compel discovery where the opposing party 

fails to respond adequately to a document request propounded pursuant to Rule 34. Fed. R. Civ. 

P. 37(a)(3)(B). Ultimately, it is within the discretion of the Court to grant a motion to compel

disclosure for good cause shown. In re Cendant Corp. Sec. Litig., 343 F. 3d 658, 661 (3d Cir.

2003).

Defendants contend that Kamienski’s answers to their interrogatories are “wholly 

inadequate.” Dkt. No. 106 at p. 2. In response, Kamienski claims that he provided several 

substantive answers and stated any objections to Defendants’ requests. Specifically, Kamienski 

objected to several interrogatories as not related to Defendants’ immunity defense, outside the 

scope of Kamienski’s knowledge or overly burdensome. Even in light of these objections, 

Kamienski asserts that he gave his “best response” to Defendants’ requests. Dkt. No. 105 at p. 

10. In their reply brief, Defendants set forth the interrogatories that have not been answered to 

their satisfaction and state the basis for their assertion that Kamienski should be required to 

provide additional information. See Dkt. No. 106. As to Defendants’ document requests, 

Defendants initially claim that Kamienski has refused to provide “a single document” and then 

later claim that Kamienski has only provided 107 pages of documents. Dkt. No. 106 at p. 9-10. 

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In response, Kamienski states that he has provided 220 pages of materials to Defendants and 

specified proper objections to any documents within his possession which were not produced in 

response to Defendants’ requests. 

Turning to Plaintiff Alongi, Defendants argue that while Alongi’s answers to their 

interrogatories were “relatively responsive”, he has “provided barely any documents.” Dkt. No. 

106 at p. 10. Defendants claim that the only documents provided by Alongi were an order of 

expungement and a notice of tort claim, and that despite Alongi’s reference to his medical 

recordsin his response to a question on the tort claim form, he has not provided any of his 

medical records. In response, Alongi claims that he has produced all responsive records in his 

possession. Alongi further argues, and the Court agrees, that his medical records are outside the 

limited scope of discovery defined by the Court’s September 11, 2012 Order. 

Although Defendants contend that the responses to their discovery requests provided by 

Plaintiffs are incomplete and evasive, the Court does not wish to engage in the minutia of each 

interrogatory, document request and response. Since the entry of the Court’s September 11, 2012 

Order, this case has been mired in disputes and disagreements as to the scope of discovery 

allowed by the Court’s Order and the sufficiency of the parties’ answers and objections to 

discovery requests. More than four years have passed since the filing of this case and almost 

three years have passed since the Court ordered the parties to engage in limited discovery as to 

Defendants’ immunity defense. At the present juncture, the Court finds that the parties have 

engaged in adequate discovery as to Defendants’ immunity defense to allow this case to move 

forward and that the interests of justice require that this matter be restored on a path towards 

resolution. Concluding this lengthy period of discovery, which was intended to be limited, and 

directing this matter onto a more productive trajectory by requiring Defendants to file an Answer 

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or responsive pleading to the Amended Complaint will move this case forward and will not 

preclude the parties from engaging in discovery in the future. Accordingly, Defendants’ Motion 

to compel discovery from Plaintiffs Kamienski and Alongi is DENIED, the period of limited 

discovery permitted by the Court’s September 11, 2012 Order is concluded and Defendants are 

required to respond to Kamienski’s Amended Complaint within ten (10) days from the entry of 

this Order. 

C. Defendants’ Motion to Revoke the Pro Hoc Vice Admission of Timothy J. 

McInnis

In addition to seeking the dismissal of Plaintiffs’ Complaints, Defendants request that the 

pro hac vice admission of Kamienski’s counsel, Timothy J. MicInnis, be revoked based on Mr. 

McInnis’ alleged “complete disregard for this [C]ourt’s [O]rder of September 24, 2013.” Dkt. 

No. 102 at ¶ 44. In support of their request, Defendants claim that Mr. McInnis has displayed an 

“utter disregard for this [C]ourt’s discovery orders.” Id. at ¶ 47. According to Defendants, 

“[b]ecause of Mr. McInnis’ failure to abide by the [Court’s] September 24, 2013 Order, more 

than a year of discovery has been wasted.” Id. at ¶ 48.

Admission pro hac vice is a privilege, and may be revoked as a sanction for unethical 

behavior. See Johnson v. Trueblood, 629 F.2d 302, 304 (3d Cir.1980); L. Civ. R. 101.1(c)(1) 

(pro hac vice admission is “in the discretion of the court”). The Third Circuit has specified that 

“a violation of any disciplinary standard applicable to members of the bar of the court would 

justify revocation of pro hac vice status.” Johnson, 629 F.2d at 304. “An attorney admitted pro

hac vice in the courts of this State or the federal district court is subject to discipline, which may 

include a denial of future pro hac vice admissions by reason of ‘countervailing considerations.’”

Arnold, White & Durkee, Professional Corp. v. Gotcha Covered, Inc., 314 N.J.Super. 190, 714 

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A.2d 360, 366 (N.J .App.Div.1998), cert. denied, 157 N.J. 543, 724 A.2d 803 (N.J.1998) (citing 

Nat'l Ass'n for the Advancement of Colored People v. State of New Jersey, 312 N.J.Super. 552, 

557–59, 563–65, 711 A.2d 1355 (N.J.App.Div.1998)). Although pro hac vice admission is a 

privilege subject to revocation, the Third Circuit has recognized the practitioner's strong interest 

in the privilege, and as such, has held that prior to revocation “the attorney be given a 

meaningful opportunity to respond to identified charges.” See Johnson, 629 F.2d at 303.

While Defendants claim that Mr. McInnis has failed to comply with Orders of this Court 

and delayed discovery in this case, Defendants have failed to demonstrate a single instance in 

which Mr. McInnis has displayed unethical behavior warranting the revocation of his pro hac 

vice admission. Defendants’ conclusory statement that Mr. McInnis has engaged in “unethical 

tactics” is unavailing, especially in light of the Court’s finding that Kamienski has adequately 

complied with the Court’s discovery orders and Defendants’ discovery requests. Contrary to 

Defendants’ assertion that Plaintiffs have delayed discovery in this matter, the Court finds that 

Defendants’ present Motion, which glaringly fails to comply with the Local Civil Rules, has 

contributed to the delay in the advancement and resolution of this matter. Accordingly, 

Defendants’ request for the revocation of Mr. McInnis’ pro hac vice admission is DENIED.

III. CONCLUSION AND ORDER 

The Court having considered the papers submitted pursuant to Federal Rule of Civil 

Procedure 78, and for the reasons set forth above;

IT IS on this 9th day of June, 2015, 

ORDERED that Defendants’ Motion seeking an Order dismissing Plaintiffs’ Complaints 

pursuant to Federal Rule of Civil Procedure 37(b)(2)(A)(v) or, in the alternative, compelling 

Plaintiffs to respond to Defendants’ interrogatories and requests for the production of documents, 

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and requesting the revocation of Timothy J. McInnis, Esq.’s pro hac vice admission [Civ. 

Action. No. 11-3056, Dkt. No. 102] is DENIED in all respects; and it is further 

ORDERED that the period of limited discovery ordered by the Court’s September 11, 

2012 Order is concluded; and it is further 

ORDERED that Defendants are required to file an Answer or responsive pleading to 

Kamienski’s Amended Complaint within ten (10) days from the entry of this Order. 

/s/ Douglas E. Arpert 

DOUGLAS E. ARPERT 

United States Magistrate Judge

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