Case 2:08-cv-00426-FSH-PS Document 1 Filed 01/23/08 Page 1 of 14 PageID: 1

Baher Azmy, Esq. (BA 8406) Scott Michelman, Esq. Chris Lanzalotto, D.N.J.L. Civ. R. 101.1(h) Michael Hrinewski, D.N.J.L. Civ. R. 101.1(h) SETON HALL UNIVERSITY SCHOOL OF LAW CENTER FOR SOCIAL JUSTICE 833 McCarter Highway Newark, NJ 07102 (973) 642-8700
Edward Barocas, Esq. (EB 8251) AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY P.O. Box 32159 89 Market Street, 7th Floor Newark, NJ 07101 (973) 642-2084
Attorneys for Plaintiff

ROBERTO LIMA,
Plaintiff,
v.
NEWARK POLICE DEPARTMENT, GARRY MCCARTHY, SAMUEL DEMAIO, LYDELL JAMES, and JOHN DOE, an employee of the Newark Police Department, City of Newark, N.J.,
Defendants.

DISTRICT OF NEW JERSEY NEWARK VICINAGE DOCKET NO.
CIVIL ACTION COMPLAINT

Plaintiff Roberto Lima, through his undersigned attorneys, for his complaint against Defendants, alleges as follows:
PRELIMINARY STATEMENT 1. Plaintiff, Roberto Lima, brings this civil rights action pursuant to 42 U.S.C. § 1983 and N.J.S.A. 10:6-1 et seq. for damages and other relief against Defendants, Newark Police

1

Case 2:08-cv-00426-FSH-PS Document 1 Filed 01/23/08 Page 2 of 14 PageID: 2
Department and its officers and leaders Garry McCarthy, Samuel Demaio, and Lydell James, and John Doe, who while acting under color of state law, violated Mr. Lima’s rights under the First and Fourth Amendments of the United States Constitution; Article I, Paragraphs 6 and 7 of the New Jersey State Constitution; and the New Jersey Reporter Shield Law.
2. This case arises out of a series of abusive police efforts to bully, intimidate and, finally, unlawfully arrest a member of the press in order to prevent him from exercising his constitutional entitlement to report on a story that, while potentially embarrassing to the Newark Police Department, was of significant interest to the public.
3. In August 2007, in a highly publicized case, three Newark college students were murdered, execution-style, in the city. Press coverage of the tragedy reflected the community’s shock and dismay at the continuing scourge of violence that plagues the city, and also posed the question whether the city and its police force were effective at controlling crime.
4. Barely a month after these three murders, Mr. Lima – the editor of a local newspaper – and his staff discovered another dead body, alerted the police, and directed them to the scene. Upon arriving at the scene, Defendant Demaio ordered Mr. Lima not to publish in his newspaper any of the pictures of the crime that newspaper staff had taken. Defendant Demaio then escalated his reaction by physically seizing Mr. Lima’s camera and electronic storage card and finally – despite Mr. Lima’s agreement to turn over any pictures his staff had taken so long as he could retain copies for the newspaper – ordering Mr. Lima’s arrest for his refusal to forfeit all originals and duplicates of the photographs his staff had taken. Defendant McCarthy participated in the NPD’s unconstitutional actions by similarly directing or approving the unlawful arrest and the continued detention of Mr. Lima by NPD officers unless he agreed to turn over all pictures and duplicates. Defendant James and pseudonymous defendant John Doe
2

Case 2:08-cv-00426-FSH-PS Document 1 Filed 01/23/08 Page 3 of 14 PageID: 3
were NPD officers who carried out the unconstitutional commands of Defendants McCarthy and Demaio. Defendants took all of these actions without a judicial warrant, probable cause, or even exigent circumstances that would lawfully justify the seizure and arrest.
5. Mr. Lima seeks relief in this Court not only to redress the wrongs done to him personally but also to vindicate the rights of journalists throughout the country to do their important and constitutionally-protected job of gathering and reporting the news free from police harassment, coercion and abuse.
JURISDICTION AND VENUE 6. This Court has jurisdiction over Mr. Lima’s claims for violations of his federal constitutional rights, pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) and 28 U.S.C. § 1343(a)(3) (jurisdiction over federal constitutional claims). This Court has supplemental jurisdiction over Mr. Lima’s state law claims, 28 U.S.C. § 1367(a), because these arise out of the same set of facts as the federal claims such that all claims herein form part of the same case or controversy. 7. Venue lies in this District pursuant to 28 U.S.C. § 1391(e), because a substantial part of the events giving rise to the claim occurred here.
PARTIES 8. Plaintiff, Roberto Lima, resides in Livingston, New Jersey. Mr. Lima is the editor of the Brazilian Voice, a Portuguese-language newspaper published in Newark to report on issues of concern to the local Brazilian community. 9. Defendant Newark Police Department (“NPD”) is the law enforcement agency of the City of Newark. Defendant Garry McCarthy is Director of the NPD. Defendant Samuel Demaio is Deputy Chief of the NPD, and Defendant Lydell James and Defendant John Doe are
3

Case 2:08-cv-00426-FSH-PS Document 1 Filed 01/23/08 Page 4 of 14 PageID: 4
officers of the NPD. “John Doe” is a pseudonym for an officer of the NPD whose name is currently unknown to the Plaintiff.
10. At all times mentioned herein, Defendants McCarthy, Demaio, James, and Doe were acting within the scope of their duties and employment, under color of state law, as police officers of the Newark Police Department, City of Newark, in the County of Essex, State of New Jersey.
FACTUAL ALLEGATIONS 11. On August 4, 2007, three college students were the victims of a brutal, executionstyle murder in Newark. The shootings received national attention, including press coverage by the New York Times, USA Today, CNN, and National Public Radio, among other sources. Reaction among the public in Newark, in addition to grief and despair, included a march on City Hall to express anger at the city’s leadership for ineffective crime control. 12. On September 6, 2007, a photographer for the Brazilian Voice was taking pictures in the vicinity of the movie theater on Foundry Street in the Ironbound section of Newark. The photographer hoped to document the considerable amount of trash that had accumulated as a result of the Brazilian Day festivities held the previous weekend. 13. During the course of his work, the photographer discovered the body of a deceased woman in a trash-strewn alleyway behind the theater. 14. The photographer then went to the offices of the Brazilian Voice, to tell his editor, Plaintiff Roberto Lima, what he had found. After making a backup copy of the pictures in the office, the two men returned to the location of the body with a third Brazilian Voice staff member.
4

Case 2:08-cv-00426-FSH-PS Document 1 Filed 01/23/08 Page 5 of 14 PageID: 5
15. At the scene, once Mr. Lima saw for himself the body of the deceased woman, he contacted Anthony Campos, Chief of the Newark Police Department, via text message, to alert him to the discovery. Mr. Lima, recognized as a leader in the Newark-Brazilian community, had at that time an excellent relationship and regular contact with the NPD. After contacting Chief Campos, the Brazilian Voice staff members took additional pictures.
16. When Mr. Campos did not respond, Mr. Lima and the two staff members went to the police station to report what they had discovered. After notifying the police, the three journalists returned to the scene with several officers to help the officers locate the body.
17. Upon arriving at the scene, the photographer who found the body aided police in directing traffic and setting up caution tape, while the remaining officers were directed to the body.
18. Soon after the journalists directed the police officers to the body, the Deputy Chief of the Newark Police Department, Defendant Samuel Demaio, arrived in a police SUV wearing plain clothes. At no time during his presence at this scene did Defendant Demaio appear interested in learning about the victim or the crime. Upon his arrival, he ignored a junior officer who was attempting to explain what the police had learned about the incident up to that point. Instead, Defendant Demaio demanded to be directed to the person who found the body.
19. When he was introduced to the photographer, Defendant Demaio commenced an intimidating interrogation. He abruptly asked , “Are you legal?” Upon receving no reply (the photographer does not speak English), Defendant Demaio asked, “Do you have a green card?” Defendant Demaio’s actions appeared to have been aimed at intimidating and silencing the journalists assembled there. His actions were also obviously in violation of an Attorney General’s Directive that specifically prohibits police officers from inquiring into the immigration
5

Case 2:08-cv-00426-FSH-PS Document 1 Filed 01/23/08 Page 6 of 14 PageID: 6
status of victims and witnesses to crimes. After investigating the matter during the fall of 2007, the Office of the Attorney General found that Defendant Demaio had violated the Directive and referred the matter to the NPD to determine what discipline should be imposed.
20. Mr. Lima intervened into Defendant Demaio’s questioning and asked him why he was inquiring about the photographer’s immigration status given that the three journalists were only there to assist with the NPD’s investigation.
21. Defendant Demaio then asked if the journalists had taken any photographs. They answered that they had. Defendant Demaio then stated to the three journalists, “You’re not printing any of this.” He then instructed another officer, Defendant Lydell James, to physically confiscate the camera with which Brazilian Voice staff had first photographed the body. The officers had no warrant to seize the camera and had no reason to suspect, let alone to probable cause to believe, that the journalists were involved in any unlawful conduct.
22. Defendant James nevertheless snatched the camera from one of the journalists. Defendant James attempted to remove the memory card, but was unsuccessful. He then handed the camera to Defendant Demaio, who flung it into the backseat of his vehicle and left the scene.
23. The police escorted the three journalists back to the police station, where Mr. Lima and the photographer were asked to fill out police reports regarding the discovery. The third journalist was permitted to leave.
24. After he had given his report, Mr. Lima asked for the camera to be returned to him. One of the officers spoke to an unidentified individual over the phone and then informed Mr. Lima that his camera would not be returned. On information and belief, the unidentified individual on the phone was Defendant Demaio; it appears that Defendant Demaio ordered the officer at the police station to refuse to return the camera to Mr. Lima.
6

Case 2:08-cv-00426-FSH-PS Document 1 Filed 01/23/08 Page 7 of 14 PageID: 7
25. Mr. Lima resigned himself to the situation and hoped he could simply return to retrieve the camera at a later time. As he and his photographer were preparing to leave, an individual called the police station and told one of the officers present to order Mr. Lima to give up any and all copies of the pictures he might have made. Upon information and belief, the individual on the phone was again Defendant Demaio. Mr. Lima offered to give the NPD duplicates of all the pictures he took, but correctly maintained that he had a right to keep copies for himself as well, so that the newspaper would be able to print them if it chose to do so.
26. At this point, the unidentified individual on the phone (on information and belief, Defendant Demaio) spoke once again to the officer at the precinct, who informed Mr. Lima that if he did not turn over all copies of the photographs taken that night, he would be arrested.
27. When Mr. Lima insisted he had a right to keep copies of his pictures, the individual on the phone (on information and belief, Defendant Demaio) directed officers at the precinct to arrest Mr. Lima. Some of the officers balked, but then one of the officers received a phone call from another unidentified individual; that individual again specifically ordered Mr. Lima’s arrest. On information and belief, it appears that last caller was the Director of the NPD, Defendant Garry McCarthy. At that point, one of the officers at the precinct, Defendant John Doe, placed Mr. Lima under arrest, handcuffing him to a bench in the police station.
28. Unsure of what to do next, Mr. Lima made a phone call to his friend Augusto Amador, a Newark city councilman. Mr. Amador, in turn, called Defendant McCarthy to appeal for Mr. Lima’s release. At that point or on a call very shortly thereafter, Defendant McCarthy made clear to Mr. Amador that he was aware of the arrest and had discussed it with others in the NPD. Mr. Amador gained telephone contact with Mr. Lima and convinced him that he ought to comply with the NPD’s orders so as to avoid further detention. After approximately 30 minutes
7

Case 2:08-cv-00426-FSH-PS Document 1 Filed 01/23/08 Page 8 of 14 PageID: 8
in handcuffs, Mr. Lima told the officers he would turn over his pictures, and the handcuffs were removed.
29. Defendant James prepared to follow Mr. Lima back to the Brazilian Voice office to retrieve the pictures. Mr. Lima remarked to Defendant James that the way the police had treated him that night would discourage people from helping the police in the future. Defendant James told Mr. Lima, “If you didn’t know people in certain places, you wouldn’t be talking to me like that.” Mr. Lima felt intimidated and threatened as a result of this remark. Mr. Lima and his photographer were then followed back to the Brazilian Voice office by two police officers, including Defendant James. At the newspaper office, Mr. Lima turned over to Defendant James a disk with pictures of the incident.
30. At no point on September 6 did anyone show Mr. Lima or any of his staff a warrant for the seizure of any photographs or the camera, or for the arrest of Mr. Lima. Mr. Lima was never charged with any crime.
31. After this incident, Mr. Lima arranged to meet with Mayor Cory Booker about the abusive behavior by the Newark Police Department. In an effort to harass and attempt to intimidate Mr. Lima, the NPD had two unmarked police cars take turns parking in front of the office of Mr. Lima’s newspaper on the day of his meeting with the mayor. After Mayor Booker’s office was informed of the harassment, it discontinued.
32. Mr. Lima was considerably shaken by the abusive and intimidating conduct of the Defendants toward himself and his staff. Attempting to fulfill his civic duty by reporting evidence of a potential crime, and his journalistic duty to consider how this evidence might be of public concern to his readers residing blocks away and to an entire city still reeling from the
8

Case 2:08-cv-00426-FSH-PS Document 1 Filed 01/23/08 Page 9 of 14 PageID: 9
brutal student shootings that had occurred barely more than one month earlier, Mr. Lima was instead humiliated, belittled, and otherwise treated as a common criminal.
33. As a result of Defendants’ actions, Mr. Lima endured extreme distress, humiliation and fear during the several-hour episode, and he suffers considerable emotional distress to this day.
FIRST CAUSE OF ACTION: VIOLATION OF THE FIRST AMENDMENT TO
THE UNITED STATES CONSTITUTION (Unlawful Interference With and Restraint of Free Speech,
Freedom of Expression and Freedom of the Press) 34. Plaintiff repeats and realleges paragraphs 1 through 33, as if fully set forth herein. 35. Mr. Lima has a constitutionally protected right under the First Amendment to the United States Constitution to receive and record information and to gather information for later dissemination in a peaceful manner. 36. By ordering Mr. Lima not to print pictures his newspaper staff had taken, by seizing Mr. Lima’s camera and the memory device containing these pictures, by coercing Mr. Lima to turn over all copies of his pictures, and by seizing pictures in the newspaper office, and/or by ordering these actions taken against Mr. Lima, Defendants NPD, McCarthy, Demaio, James, and Doe unlawfully imposed a prior restraint on the publication of photographs Mr. Lima and his staff had taken, in violation of Mr. Lima’s freedom of speech, freedom of expression and freedom of the press, as guaranteed by the First Amendment of the United States Constitution.
SECOND CAUSE OF ACTION: VIOLATION OF ARTICLE I, PARAGRAPH 6 OF
THE NEW JERSEY CONSTITUTION (Unlawful Interference with and Restraint of Free Speech) 37. Plaintiff repeats and realleges paragraphs 1 through 36, as if fully set forth herein.
9

Case 2:08-cv-00426-FSH-PS Document 1 Filed 01/23/08 Page 10 of 14 PageID: 10
38. Mr. Lima has a constitutionally protected right under Article I, Paragraph 6 of the New Jersey State Constitution to receive and record information and to gather information for later dissemination.
39. By ordering Mr. Lima not to print pictures his newspaper staff had taken, by seizing Mr. Lima’s camera and the memory device containing these pictures, by coercing Mr. Lima to turn over all copies of his pictures, and by seizing pictures in the newspaper office, and/or by ordering these actions taken against Mr. Lima, Defendants NPD, McCarthy, Demaio, James, and Doe unlawfully imposed a prior restraint on the publication of photographs Mr. Lima and his staff had taken, in violation of Mr. Lima’s freedom of speech, freedom of expression and freedom of the press, as guaranteed by Article I, Paragraph 6 of the New Jersey Constitution.
THIRD CAUSE OF ACTION: VIOLATION OF THE FOURTH AMENDMENT TO
THE UNITED STATES CONSTITUTION (Unlawful Search and Seizure of Personal Property) 40. Plaintiff repeats and realleges paragraphs 1 through 39, as if fully set forth herein. 41. By seizing Mr. Lima’s camera and photographs without a search warrant or other circumstances rendering such seizures reasonable, and/or by ordering these seizures, Defendants NPD, McCarthy, Demaio, James, and Doe violated Mr. Lima’s right to be free from unlawful searches and seizures, as guaranteed by the Fourth Amendment of the United States Constitution.
FOURTH CAUSE OF ACTION: VIOLATION OF ARTICLE I, PARAGRAPH 7 OF
THE NEW JERSEY CONSTITUTION (Unlawful Search and Seizure of Personal Property) 42. Plaintiff repeats and realleges paragraphs 1 through 41, as if fully set forth herein. 43. By seizing Mr. Lima’s camera and photographs without a search warrant or other circumstances rendering such seizures reasonable, and/or by ordering these seizures, Defendants
10

Case 2:08-cv-00426-FSH-PS Document 1 Filed 01/23/08 Page 11 of 14 PageID: 11
NPD, McCarthy, Demaio, James, and Doe violated Mr. Lima’s right to be free from unlawful searches and seizures, as guaranteed by Article I, Paragraph 7 of the New Jersey Constitution.
FIFTH CAUSE OF ACTION VIOLATION OF THE FOURTH AMENDMENT OF
THE UNITED STATES CONSTITUTION (Unlawful Seizure of the Person)
44. Plaintiff repeats and realleges paragraphs 1 through 43, as if fully set forth herein. 45. Defendants misused the authority granted to them under color of state law and unjustifiably arrested and detained Mr. Lima. 46. Defendants had no warrant and no probable cause to arrest Mr. Lima, nor was Mr. Lima acting in a suspicious or potentially dangerous manner. 47. By arresting Mr. Lima without a warrant and without probable cause for arrest, and/or by ordering or approving this arrest, Defendants NPD, McCarthy, Demaio, James, and Doe violated Mr. Lima’s right to be free from unreasonable seizure of his person, as guaranteed by the Fourth Amendment to the United States Constitution.
SIXTH CAUSE OF ACTION VIOLATION OF ARTICLE I, PARAGRAPH 7 OF
THE NEW JERSEY CONSTITUTION (Unlawful Seizure of the Person)
48. Plaintiff repeats and realleges paragraphs 1 through 47, as if fully set forth herein. 49. Defendants misused the authority granted to them under color of state law and unjustifiably arrested and detained Mr. Lima. 50. Defendants had no warrant and no probable cause to arrest Mr. Lima, nor was Mr. Lima acting in a suspicious or potentially dangerous manner. 51. By arresting Mr. Lima without a warrant and without probable cause for arrest, and/or by ordering or approving this arrest, Defendants NPD, McCarthy, Demaio, James, and
11

Case 2:08-cv-00426-FSH-PS Document 1 Filed 01/23/08 Page 12 of 14 PageID: 12
Doe violated Mr. Lima’s right to be free from unreasonable seizure of his person, as guaranteed by Article I, Paragraph 7 of the New Jersey Constitution.
SEVENTH CAUSE OF ACTION VIOLATION OF THE NEW JERSEY REPORTER
SHIELD LAW, N.J.S.A. § 2A:84A-21.9 52. Plaintiff repeats and realleges paragraphs 1 through 51, as if fully set forth herein. 53. The New Jersey Reporter Shield Law protects “any person, corporation, partnership, proprietorship or other entity engaged on, engaged in, connected with, or otherwise employed in gathering, procuring, transmitting, compiling, editing, publishing, or disseminating news for the public” from being “free from searches and seizures, by State, county and local law enforcement officers with respect to any documentary materials obtained in the course of pursuing the aforesaid activities whether or not such material has been or will be disseminated or published.” N.J.S.A. § 2A:84A-21.9. 54. Mr. Lima, as the editor of the Brazilian Voice, was at all times described in this Complaint engaged in disseminating news for the public. 55. Mr. Lima’s photographs were taken by a photographer on the Brazilian Voice staff in the course of reporting a story for the newspaper. 56. Because Mr. Lima was “engaged in . . . gathering, procuring, transmitting, compiling, editing, publishing, or disseminating news for the public,” and the photographs of the dead body his staff discovered on September 6, 2007, were “documentary materials obtained in the course of pursuing” Mr. Lima’s journalistic activities, New Jersey law protects Mr. Lima from “searches and seizures, by State, county and local law enforcement officers with respect to” these materials.
12

Case 2:08-cv-00426-FSH-PS Document 1 Filed 01/23/08 Page 13 of 14 PageID: 13
57. By seizing Mr. Lima’s camera and photographs and/or ordering these seizures, Defendants NPD, McCarthy, Demaio, James, and Doe violated Mr. Lima’s rights under the New Jersey Reporter’s Shield Law, N.J.S.A. § 2A:84A-21.9.
58. Mr. Lima’s cause of action for this claim arises under the New Jersey Civil Rights Act, which authorizes “[a]ny person who has been deprived of . . . any substantive rights, privileges or immunities secured by the Constitution or laws of this State . . . by threats, intimidation or coercion by a person acting under color of law,” to bring a civil action for damages or other relief. N.J.S.A. § 10:6-2(c).
PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests judgment against the Defendants as follows:
(a) Compensatory and consequential damages in an amount to be determined at trial;
(b) Punitive damages on all claims allowed by law, in an amount to be determined at trial;
(c) Attorney’s fees and costs associated with this action; (d) Any further relief as this Court deems just and proper and any other relief
as allowed by law. Plaintiff demands a trial by jury.
13

Case 2:08-cv-00426-FSH-PS Document 1 Filed 01/23/08 Page 14 of 14 PageID: 14

 </s> Case 2:08-cv-00426-FSH-PS Document 55 Filed 01/05/09 Page 1 of 18 PageID: 568

Emily B. Goldberg, Esq. (EG8413) Baher Azmy, Esq. Kelly Lloyd, D.NJ.L. Civ. R. 101.1(h) Mimi Huang, D.N.J.L. Civ. R. 101.1(h) Jaclyn Ruocco, D.N.J.L. Civ. R. 101.1(h) Tessa Kennedy, D.N.J.L. Civ. R. 101.l(h) SETON HALL UNIVERSITY SCHOOL OF LAW CENTER FOR SOCIAL JUSTICE 833 McCarter Highway Newark, NJ 07102 (973) 642-8700
Edward Barocas, Esq. (EB 8251) AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY P.O. Box 32159 89 Market Street, 7th Floor Newark, NJ 07101 (973) 642-2084
Attorneys for Plaintiff

ROBERTO LIMA,
Plaintiff,
v.
NEWARK POLICE DEPARTMENT, GARRY MCCARTHY, SAMUEL DEMAIO, LYDELL JAMES, JOSE ALICEA, MICHAEL LATORRE, JOHN DOE, JOHN ROE, employees of the Newark Police Department, ROGER IMHOF, ROMESH SUKHDEO, JOHN BREWINGTON, MARQUIS CARTER, and JOHN LOE 1 to 4, employees of the Essex County Prosecutor's Office (all defendants named in their individual and official capacities).
Defendants.

DISTRICT OF NEW JERSEY NEWARK VICINAGE
CIVIL ACTION NO. 08-426 (FSH)
SECOND AMENDED COMPLAINT (First Substantive Amendment)

1

Case 2:08-cv-00426-FSH-PS Document 55 Filed 01/05/09 Page 2 of 18 PageID: 569
Plaintiff Roberto Lima, through his undersigned attorneys, for his complaint against Defendants, alleges as follows:
PRELIMINARY STATEMENT 1. Plaintiff, Roberto Lima, brings this civil rights action pursuant to 42 U.S .C. § 1983 and NJ.S .A. 10:6-1 et seq. for damages and other relief against Defendants, Newark Police Department ("NPD") and its officers and leaders Garry McCarthy, Samuel Demaio, Lydell James, Jose Alicea, Michael Latorre, John Doe, and John Roe who, while acting under color of state law, violated Mr. Lima' s rights under the First and Fourth Amendments of the United States Constitution; Article I, Paragraphs 6 and 7 of the New Jersey State Constitution; and the New Jersey Reporter Shield Law. 2. Plaintiff also brings claims pursuant to 42 U.S.c. § 1983 for damages and other relief against Lieutenant John Brewington, Detective Marquis Carter, Assistant Prosecutors Romesh Sukhdeo and Roger Imhof, and John Loe 1 through 4 (who are unidentified employees of the Essex County Prosecutor's Office) (the "prosecutor Defendants"). These defendants, while acting under color oflaw, participated in or advised the Newark Police Department and its officers to take actions that violated Mr. Lima's rights under the First and Fourth Amendment of the United States Constitution. 3. This case arises out of a series of abusive law enforcement efforts to bully, intimidate and, finally, unlawfully arrest a member of the press and seize his property in order to prevent him from exercising his constitutional entitlement to report on a story that, while potentially embarrassing to the NPD, was of significant interest to the public. 4. In August 2007, in a highly publicized case, three Newark college students were brutally murdered, execution-style, in the city. Press coverage of the tragedy reflected the
2

Case 2:08-cv-00426-FSH-PS Document 55 Filed 01/05/09 Page 3 of 18 PageID: 570
community's shock and dismay at the continuing scourge of violence that plagues the city, and also posed the question whether the city and its police force were effective at controlling crime.
5. Barely a month after these three murders, Mr. Lima - the editor of a local newspaper - and his staff discovered a dead body, alerted the police, and directed them to the scene. Upon arriving at the scene, Defendant Demaio ordered Mr. Lima not to publish in his newspaper any of the pictures of the crime scene that newspaper staffhad taken. Defendant Demaio then escalated his reaction by physically seizing Mr. Lima's camera and electronic storage card and finally - despite Mr. Lima's agreement to tum over any pictures his staff had taken so long as he could retain copies for the newspaper - ordering Mr. Lima's arrest for his refusal to forfeit all originals and duplicates of the photographs his staff had taken. Defendant McCarthy participated in the NPD's unconstitutional actions by similarly directing or approving the unlawful arrest and the continued detention of Mr. Lima by NPD officers unless he agreed to tum over all pictures and duplicates, and by failing to properly train his officers or adopt policies necessary to avoid the unlawful conduct at issue. Defendants James, Latorre, and Alicea are NPD officers who carried out the unconstitutional commands of Defendants McCarthy and Demaio, including by detaining Mr. Lima at the station, and seizing his cellular phone and, eventually, the photographs at issue. Defendants took these actions without a judicial warrant, probable cause, or even exigent circumstances that would lawfully justify the seizure and arrest.
6. Defendant James and/or Defendant Demaio consulted members of the Essex County Prosecutor's office regarding what actions could be taken against Mr. Lima, including whether he could be arrested for refusing to tum over all of the photographs, and whether his photographs could be seized. One or more of the Prosecutor defendants advised that the NPD
3

Case 2:08-cv-00426-FSH-PS Document 55 Filed 01/05/09 Page 4 of 18 PageID: 571
was entitled to seize the photographs, and that Mr. Lima could be arrested for refusing to surrender all of his photographs.
7. Mr. Lima seeks relief in this Court not only to redress the wrongs done to him personally, but also to vindicate the rights ofjournalists throughout the country to do their important and constitutionally-protected job of gathering and reporting news free from police harassment, coercion, and abuse.
JURISDICTION AND VENUE 8. This Court has jurisdiction over Mr. Lima's claims for violations of his federal constitutional rights, pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) and 28 U.S.c. § 1343(a)(3) (jurisdiction over federal constitutional claims). This Court has supplemental jurisdiction over Mr. Lima's state law claims, 28 U.S .C. § 1367(a), because these arise out of the same set of facts as the federal claims such that all claims herein form part of the same case or controversy. 9. Venue lies in this District pursuant to 28 U.S .c. § 1391(e), because a substantial part of the events giving rise to the claim occurred here.
PARTIES 10. Plaintiff, Roberto Lima ("Mr. Lima"), resides in Livingston, New Jersey. Mr. Lima is the editor of the Brazilian Voice, a Portuguese-language newspaper published in Newark to report on issues of concern to the local Brazilian community. 11. Defendant NPD is the law enforcement agency of the City of Newark. Defendant Garry McCarthy is Director ofthe NPD. Defendant Samuel Demaio is Deputy Chief of the NPD. Defendant Michael Latorre is a Lieutenant with the NPD. Defendant Lydell James, Defendant Jose Alicea, and Defendants John Doe and John Roe are officers of the NPD.
4

Case 2:08-cv-00426-FSH-PS Document 55 Filed 01/05/09 Page 5 of 18 PageID: 572
12. Defendants John Brewington and Marquis Carter are investigators with the Essex County Prosecutor's Office. Defendants Roger Imhof and Romesh Sukhdeo are Assistant Prosecutors in the Essex County Prosecutor's Office. John Loe 1 through 4 are unknown employees of the Essex County Prosecutor's Office.
13. At all times mentioned herein, Defendants McCarthy, Demaio, James, Latorre, Alicea, Doe, and Roe were acting within the scope of their duties and employment, under color of state law, as police officers of the Newark Police Department, City of Newark, in the County of Essex, State of New Jersey.
14. At all times mentioned herein, Defendants Brewington, Carter, Imhof, Sukhdeo, and Loe 1 through 4 were acting under color of law as employees of the Essex County Prosecutor's Office. None of these defendants were acting in a prosecutorial role, but were assisting in a homicide investigation.
FACTUAL ALLEGATIONS 15. On August 4,2007, three college students were the victims of a brutal, executionstyle murder in Newark. The shootings received national attention, including press coverage by the New York Times, USA Today, CNN, and National Public Radio, among other sources. Reaction among the public in Newark, in addition to grief and despair, included a march on City Hall to express anger at the city's leadership for ineffective crime control. 16. On September 6, 2007, a photographer for the Brazilian Voice was taking pictures on foot in the vicinity of the movie theater on Foundry Street in the Ironbound section of Newark. The photographer hoped to document the considerable amount of trash that had accumulated as a result of the Brazilian Day festivities held the previous weekend.
5

Case 2:08-cv-00426-FSH-PS Document 55 Filed 01/05/09 Page 6 of 18 PageID: 573
17. During the course of his work, the photographer discovered the body of a deceased woman in a trash-strewn alleyway behind the theater.
18. After stopping at a local convenience store to call his editor, Plaintiff Roberto Lima, the photographer then went to the offices of the Brazilian Voice. After making a backup copy of the pictures in the office, the two men returned to the location of the body with a third Brazilian Voice staff member. They did this in order verify the location of the body so that it could be accurately reported to the police.
19. At the scene, the two Brazilian Voice staff members confirmed the location of the body ofthe deceased woman. Mr. Lima contacted Anthony Campos, Chief of the Newark Police Department, via text message, to alert him to the discovery. Mr. Lima, a recognized leader in the Newark- Brazilian community, had at that time an excellent relationship and regular contact with the NPD. While Mr. Lima contacted Mr. Campos, the two staff members took additional pictures.
20. When Mr. Campos did not respond, Mr. Lima and the two staff members went to the police station to report what they had discovered. They stopped briefly along the way to make duplicates of the pictures the staff members had just taken, so as to preserve their work product.
21. At the station, Mr. Lima spoke with Defendant Latorre, identified himself and his staff members as employees of the Brazilian Voice, and reported what had been discovered. After notifying the police, the three journalists returned to the scene with several officers to help the officers locate the body.
6

Case 2:08-cv-00426-FSH-PS Document 55 Filed 01/05/09 Page 7 of 18 PageID: 574
22. Upon arriving at the scene, the photographer who found the body aided police in directing traffic and setting up caution tape, while the remaining officers were directed to the body.
23. Soon after the journalists directed the police officers to the body, the Deputy Chief of the NPD, Defendant Samuel Demaio, arrived in a police SUV, wearing plain clothes. At no time during his interaction with Mr. Lima did Defendant Demaio appear interested in learning about the victim or the crime. Upon his arrival, he ignored a junior officer who attempted to explain what the police had learned about the incident up to that point. Instead, Defendant Demaio demanded to be directed to meet the person who found the body.
24. When he was introduced to the photographer, Defendant Demaio commenced an intimidating interrogation. He abruptly asked, "Are you legal?" Upon receiving no reply (the photographer does not speak English), Defendant Demaio asked, "Do you have a green card?" Defendant Demaio's actions appeared to have been aimed at intimidating and silencing the journalists assembled there. His actions were also obviously in violation of an Attorney General's Directive that specifically prohibits police officers from inquiring into the immigration status of victims and witnesses to crimes. After investigating the matter during the fall of 2007, the Office of the Attorney General found that Defendant Demaio had violated the Directive and referred the matter to the NPD in order to determine what discipline should be imposed.
25. Because the photographer did not speak English, Mr. Lima intervened into Defendant Demaio's questioning and asked him why he was inquiring about the photographer's immigration status given that the three journalists were only there to assist with the NPD's investigation.
7

Case 2:08-cv-00426-FSH-PS Document 55 Filed 01/05/09 Page 8 of 18 PageID: 575
26. Defendant Demaio then asked if the journalists had taken any photographs. They answered that they had. Defendant Demaio then stated to the three journalists, "You're not printing any of this." He then instructed another officer, Defendant Lydell James, to physically confiscate the camera with which Brazilian Voice staff had first photographed the body and crime scene. The officers had no warrant to seize the camera and had no reason to suspect, let alone probable cause to believe, that the journalists were involved in any unlawful conduct. To the contrary, the journalists had dutifully cooperated with the investigation throughout the entire process.
27. Defendant James nevertheless snatched the camera from one of the journalists. Defendant James attempted, but failed, to remove the memory card from the camera. He then handed the camera to Defendant Demaio, who, after he too failed to remove the memory card, threw the camera into the backseat of his police vehicle.
28. The police escorted the three journalists back to the police station, where Mr. Lima and the photographer were told to give statements regarding the discovery. The third Brazilian Voice staff member was permitted to leave the precinct without giving a statement.
29. After he had had given his statement, Mr. Lima asked for the camera to be returned to him. Detective Carlos Silva spoke to Defendant James by telephone. Defendant James instructed Detective Silva to refuse to return the camera to Mr. Lima and, in fact, advised that Mr. Lima was to be arrested for refusing to turn over the originals and all duplicates of the photographs. Mr. Lima insisted he had a right to keep copies of his pictures.
30. Detective Silva, concerned that Mr. Lima was being treated unfairly, approached Defendant Latorre - the desk supervisor responsible for the station that night - for advice on how
8

Case 2:08-cv-00426-FSH-PS Document 55 Filed 01/05/09 Page 9 of 18 PageID: 576
to handle the situation. Defendant Latorre also spoke with Defendant James by telephone, and Defendant James repeated that Mr. Lima should be arrested.
31. Defendant Latorre then ordered Defendant Alicea to confiscate Mr. Lima's cellular phone, take him to a bench in the station, and watch Mr. Lima to ensure that he did not leave the station. Defendant Alicea complied with the order, and handcuffed Mr. Lima to the bench. Defendant Alicea also confiscated Mr. Lima's cellular phone, as he was ordered to do by Defendant Latorre. Defendant Latorre subsequently spoke with Defendant Demaio by telephone, and Defendant Demaio reiterated that Mr. Lima should be detained at the station. He also informed Defendant Latorre that he was seeking advice from the Essex County Prosecutor's Office, apparently to determine whether he could lawfully arrest Mr. Lima and seize his photographs.
32. Mr. Lima managed to speak by telephone with his friend Augusto Amador, a Newark city councilman. Mr. Amador, in tum, called Defendant McCarthy to appeal for Mr. Lima's release. At that point, or on a call very shortly thereafter, Defendant McCarthy made clear to Mr. Amador that he was aware of the arrest and had discussed it with others in the NPD. Defendant McCarthy advised Mr. Amador that he should encourage Mr. Lima to give up both the originals and duplicates of the photographs so that he could be released.
33. Mr. Amador gained telephone contact with Mr. Lima and convinced him that he ought to comply with the NPD's orders so as to avoid further detention. After approximately 30 minutes in handcuffs, Mr. Lima told the officers he would tum over all of his pictures, and the handcuffs were removed. Mr. Lima's concession was coerced: he knew he had to give up the photographs in order to be released, and desperately wanted to avoid having to spend the night in jail.
9

Case 2:08-cv-00426-FSH-PS Document 55 Filed 01/05/09 Page 10 of 18 PageID: 577
34. Defendant James prepared to follow Mr. Lima back to the Brazilian Voice office to retrieve the pictures. Mr. Lima remarked to Defendant James that the way the police had treated him that night would discourage people from helping the police in the future. Defendant James told Mr. Lima, " If you didn't know people in certain places, you wouldn't be talking to me like that." Mr. Lima felt intimidated and threatened as a result of this remark. Mr. Lima and his photographer were then followed back to the Brazilian Voice office by two police officers, including Defendant James. At the newspaper office, Defendant James seized from Mr. Lima's possession a disk containing the pictures of the scene where the body was discovered.
35. At no point on September 6,2007 did anyone show Mr. Lima or any of his staff a warrant for the seizure of the camera, his cellular phone, or any photographs, or for his arrest. Mr. Lima was never charged with any crime.
36. After this incident, Mr. Lima arranged to meet with Mayor Cory Booker about the abusive behavior by the Newark Police Department. In an effort to harass and attempt to intimidate Mr. Lima, the NPD had two unmarked police cars take turns parking in front of the office ofMr. Lima's newspaper on the day of his meeting with the mayor. After Chief Demaio and Mayor Booker's office was informed of the harassment, it discontinued.
37. At no point prior to September 6,2007 were NPD officers properly trained on journalistic freedom issues. NPD officers were also inadequately trained on their obligations to obtain a warrant before conducting arrests and seizing property - particularly when dealing with material witnesses. Likewise, the NPD had not adopted policies necessary to ensure that officers were sufficiently aware of their obligations in these areas. Yet, Defendants McCarthy and John Doe - the NPD officials responsible for all NPD polices, and Defendant John Roe - the NPD
10

Case 2:08-cv-00426-FSH-PS Document 55 Filed 01/05/09 Page 11 of 18 PageID: 578
official responsible for officer training, were obligated to ensure that proper training and policies were in effect.
38. Mr. Lima was considerably shaken by the abusive and intimidating conduct ofthe Defendants toward himself and his staff. Attempting to fulfill his civic duty by reporting evidence of a potential crime, and his journalistic duty to consider how this evidence might be of public concern to his readers residing blocks away and to an entire city still reeling from the brutal student shootings that had occurred barely more than one month earlier, Mr. Lima was instead humiliated, belittled, and otherwise treated as a common criminal.
39. As a result of defendants' actions, Mr. Lima endured extreme distress, humiliation and fear during the several-hour episode, and he suffers considerable emotional distress to this day. This profound psychological harm he has experienced as a result of defendants' conduct has negatively affected him psychologically, physically, and professionally.
FIRST CAUSE OF ACTION: VIOLATION OF THE FIRST AMENDMENT TO
THE UNITED STATES CONSTITUTION (Unlawful Interference With and Restraint of Free Speech,
Freedom of Expression and Freedom of the Press) 40. Plaintiff repeats and realleges paragraphs 1 through 39, as if fully set forth herein. 41. Mr. Lima has a constitutionally protected right under the First Amendment to the United States Constitution to receive and record information and to gather information for later dissemination in a peaceful manner. 42. By ordering Mr. Lima not to print pictures his newspaper staffhad taken, by seizing Mr. Lima's camera and the memory device containing these pictures, by coercing Mr. Lima to tum over the originals and all copies of his pictures, and by seizing pictures in the newspaper office, and/or by ordering and/or affirming the supposed lawfulness of these actions
11

Case 2:08-cv-00426-FSH-PS Document 55 Filed 01/05/09 Page 12 of 18 PageID: 579
taken against Mr. Lima, Defendants NPD, McCarthy, Demaio, Latorre, James, Alicea, Brewington, Carter, Imhof, Sukhdeo, and Loe 1 through 4 unlawfully imposed a prior restraint on the photographs Mr. Lima and his staff had taken, in violation of Mr. Lima's freedom of speech, freedom of expression and freedom of the press, as guaranteed by the First Amendment of the United States Constitution.
43. By failing to properly train NPD officers, and failing to adopt policies necessary to prevent the unlawful actions at issue here, Defendants NPD, McCarthy, Doe, and Roe contributed to the violation ofMr. Lima's First Amendment rights.
44. By advising the NPD and its officers that Mr. Lima could be arrested for refusing to tum over all of his photographs, and that his photographs could be lawfully seized, Defendants Brewington, Carter, Imhof, Sukhdeo, and Loe 1 through 4 also contributed to the violation of Mr. Lima's First Amendment rights.
SECOND CAUSE OF ACTION: VIOLATION OF ARTICLE I, PARAGRAPH 6 OF
THE NEW JERSEY CONSTITUTION (Unlawful Interference with and Restraint of Free Speech) 45. Plaintiff repeats and realleges paragraphs 1 through 44, as if fully set forth herein. 46. Mr. Lima has a constitutionally protected right under Article I, Paragraph 6 of the New Jersey State Constitution to receive and record information and to gather information for later dissemination. 47. By ordering Mr. Lima not to print pictures that his newspaper staffhad taken, by seizing Mr. Lima's camera containing these pictures, by coercing Mr. Lima to tum over the originals and all copies of his pictures, and by seizing pictures in the newspaper office, and/or by ordering these actions taken against Mr. Lima, Defendants NPD, McCarthy, Demaio, Latorre, James, and Alicea unlawfully imposed a prior restraint on the publication of photographs Mr.
12

Case 2:08-cv-00426-FSH-PS Document 55 Filed 01/05/09 Page 13 of 18 PageID: 580
Lima and his staff had taken, in violation ofMr. Lima's freedom of speech, freedom of expression and freedom of the press, as guaranteed by Article I, Paragraph 6 of the New Jersey Constitution.
48. By failing to properly train NPD officers, and failing to adopt policies necessary to prevent the unlawful actions at issue here, the NPD, Defendants McCarthy, Doe, and Roe contributed to the violation ofMr. Lima's rights under Article I, Paragraph 6 ofthe New Jersey Constitution.
49. By advising the NPD and its officers that Mr. Lima could be arrested for refusing to tum over all of his photographs, and that his photographs could be lawfully seized, Defendants Brewington, Carter, Imhof, Sukhdeo, and Loe 1 through 4 also contributed to the unlawful prior restraint, in violation ofMr. Lima's freedom of speech, freedom of expression and freedom of the press, as guaranteed by Article I, Paragraph 6 of the New Jersey Constitution.
THIRD CAUSE OF ACTION: VIOLATION OF THE FOURTH AMENDMENT TO
THE UNITED STATES CONSTITUTION (Unlawful Search and Seizure of Personal Property) 50. Plaintiff repeats and realleges paragraphs 1 through 49, as if fully set forth herein. 51. By seizing Mr. Lima's camera, cellular phone, and photographs without a search warrant or other circumstances rendering such seizures reasonable, andlor by ordering these seizures, Defendants NPD, McCarthy, Demaio, Latorre, James, and Alicea violated Mr. Lima's right to be free from unlawful searches and seizures, as guaranteed by the Fourth Amendment of the United States Constitution. 52. By failing to properly train NPD officers, and failing to adopt policies necessary to prevent the unlawful actions at issue here, Defendants NPD, McCarthy, Doe, and Roe contributed to the violation of Mr. Lima' s Fourth Amendment rights.
13

Case 2:08-cv-00426-FSH-PS Document 55 Filed 01/05/09 Page 14 of 18 PageID: 581
53 . By advising the NPD and its officers that Mr. Lima's photographs could be lawfully seized, Defendants Brewington, Carter, Imhof, Sukhdeo, and Loe 1 through 4 also contributed to the violation ofMr. Lima's Fourth Amendment rights.
FOURTH CAUSE OF ACTION: VIOLATION OF ARTICLE I, PARAGRAPH 7 OF
THE NEW JERSEY CONSTITUTION (Unlawful Search and Seizure of Personal Property) 54. Plaintiff repeats and realleges paragraphs 1 through 53, as if fully set forth herein. 55. By seizing Mr. Lima's camera, cellular phone, and photographs without a search warrant or other circumstances rendering such seizures reasonable, and/or by ordering these seizures, Defendants NPD, McCarthy, Demaio, Latorre, James, and Alicea violated Mr. Lima's right to be free from unlawful searches and seizures, as guaranteed by Article I, Paragraph 7 of the New Jersey Constitution. 56. By failing to properly train NPD officers, and failing to adopt policies necessary to prevent the unlawful actions at issue here, Defendants NPD, McCarthy, Doe, and Roe contributed to the violation ofMr. Lima's rights under Article I, Paragraph 7 of the New Jersey Constitution. 57. By advising the NPD and its officers that Mr. Lima's photographs could be lawfully seized, Defendants Brewington, Carter, Imhof, Sukhdeo, and Loe 1 through 4 also contributed to the violation ofMr. Lima's right to be free from unlawful searches and seizures, as guaranteed by Article I, Paragraph 7 of the New Jersey Constitution.
FIFTH CAUSE OF ACTION VIOLATION OF THE FOURTH AMENDMENT OF
THE UNITED STATES CONSTITUTION (Unlawful Seizure of the Person)
58. Plaintiff repeats and realleges paragraphs 1 through 57, as if fully set forth herein.
14

Case 2:08-cv-00426-FSH-PS Document 55 Filed 01/05/09 Page 15 of 18 PageID: 582
59. Defendants abused the authority granted to them under color of state law and unjustifiably arrested and detained Mr. Lima.
60. Defendants had no warrant and no probable cause to arrest Mr. Lima, nor was Mr. Lima acting in a suspicious or potentially dangerous manner.
61. By arresting Mr. Lima without a warrant and without probable cause for arrest, and/or by ordering or approving this arrest, Defendants NPD, McCarthy, Demaio, James, Latorre, and Alicea violated Mr. Lima's right to be free from unreasonable seizure of his person, as guaranteed by the Fourth Amendment to the United States Constitution.
62. By failing to properly train NPD officers, and failing to adopt policies necessary to prevent the unlawful actions at issue here, Defendants NPD, McCarthy, Doe, and Roe contributed to the violation ofMr. Lima's Fourth Amendment rights.
63. By advising the NPD and its officers that Mr. Lima could be arrested for refusing to tum over all the photographs (i.e., both originals and all duplicates), Defendants Brewington, Carter, Imhof, Sukhdeo, and Loe 1 through 4 also contributed to the violation ofMr. Lima's Fourth Amendment rights.
SIXTH CAUSE OF ACTION VIOLATION OF ARTICLE I, PARAGRAPH 7 OF
THE NEW JERSEY CONSTITUTION (Unlawful Seizure of the Person)
64. Plaintiff repeats and realleges paragraphs 1 through 63, as if fully set forth herein. 65. Defendants abused the authority granted to them under color of state law and unjustifiably arrested and detained Mr. Lima. 66. Defendants had no warrant and no probable cause to arrest Mr. Lima, nor was Mr. Lima acting in a suspicious or potentially dangerous manner.
15

Case 2:08-cv-00426-FSH-PS Document 55 Filed 01/05/09 Page 16 of 18 PageID: 583
67. By arresting Mr. Lima without a warrant and without probable cause for arrest, and/or by ordering or approving his arrest, Defendants NPD, McCarthy, Demaio, James, Latorre, and Alicea violated Mr. Lima's right to be free from unreasonable seizure of his person, as guaranteed by Article I, Paragraph 7 of the New Jersey Constitution.
68. By failing to properly train NPD officers, and failing to adopt policies necessary to prevent the unlawful actions at issue here, Defendants NPD, McCarthy, Doe, and Roe contributed to the violation ofMr. Lima's rights under Article I, Paragraph 7 ofthe New Jersey Constitution.
69. By advising the NPD and its officers that Mr. Lima could be arrested for refusing to turn over all of the photographs (i.e. , both originals and all duplicates), Defendants Brewington, Carter, Imhof, Sukhdeo, and Loe 1 through 4 also contributed to the violation of Mr. Lima's rights under Article I, Paragraph 7 of the New Jersey Constitution.
SEVENTH CAUSE OF ACTION VIOLATION OF THE NEW JERSEY REPORTER
SHIELD LAW, N.J.S.A. § 2A:84A-21.9 70. Plaintiff repeats and realleges paragraphs 1 through 69, as if fully set forth herein. 71. The New Jersey Reporter Shield Law protects "any person, corporation, partnership, proprietorship or other entity engaged on, engaged in, connected with, or otherwise employed in gathering, procuring, transmitting, compiling, editing, publishing, or disseminating news for the public" from being "free from searches and seizures, by State, county and local law enforcement officers with respect to any documentary materials obtained in the course of pursuing the aforesaid activities whether or not such material has been or will be disseminated or published." NJ.S.A. § 2A:84A-21.9.
16

Case 2:08-cv-00426-FSH-PS Document 55 Filed 01/05/09 Page 17 of 18 PageID: 584
72. Mr. Lima, as the editor of the Brazilian Voice, was at all times described in this Complaint engaged in disseminating news for the public.
73. Mr. Lima's photographs were taken by a photographer on the Brazilian Voice staff in the course of reporting a story for the newspaper.
74. Because Mr. Lima was "engaged in ... gathering, procuring, transmitting, compiling, editing, publishing, or disseminating news for the public," and the photographs of the dead body his staff discovered on September 6, 2007, were "documentary materials obtained in the course of pursuing" Mr. Lima's journalistic activities, New Jersey law protects Mr. Lima from "searches and seizures, by State, county and local law enforcement officers with respect to" these materials.
75. By seizing Mr. Lima's camera and photographs and/or ordering these seizures, Defendants NPD, McCarthy, Demaio, James, and Alicea violated Mr. Lima's rights under the New Jersey Reporter's Shield Law, N.J.S.A. § 2A:84A-21.9.
76. By failing to properly train NPD officers, and failing to adopt policies necessary to prevent the unlawful conduct at issue here, Defendants NPD, McCarthy, Doe, and Roe contributed to the violation ofMr. Lima's rights under N.J.S.A. § 2A:84A-21.9.
77. By advising the NPD and its officers that they could lawfully arrest Mr. Lima for refusing to tum over all ofthe photographs (i.e., both originals and all duplicates), and that they could lawfully confiscate his photographs, Defendants Brewington, Carter, Imhof, Sukhdeo, and Loe 1 through 4 also contributed to the violation ofMr. Lima's rights under N.J.S.A. § 2A:84A21.9.
78. Mr. Lima's cause of action for this claim arises under the New Jersey Civil Rights Act, which authorizes "[a]ny person who has been deprived of ... any substantive rights,
17

Case 2:08-cv-00426-FSH-PS Document 55 Filed 01/05/09 Page 18 of 18 PageID: 585

privileges or immunities secured by the Constitution or laws of this State ... by threats,

intimidation or coercion by a person acting under color oflaw," to bring a civil action for

damages or other relief. N.J.S.A. § 1O:6-2(c).

PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests judgment against the Defendants as

follows:

(a) Compensatory and consequential damages in an amount to be determined at trial;

(b) Punitive damages on all claims allowed by law, in an amount to be determined at trial;

(c) Attorney's fees and costs associated with this action;

(d) Any further relief as this Court deems just and proper and any other relief as allowed by law.

Plaintiff demands a trial by jury.

SETON HALL UNIVERSITY SCHOOL OF LAW CENTER FOR SOCIAL JUSTICE 833 McCarter Highway Newark, NJ 07102 (973) 642-8700

By: lsi Emily Goldberg Emily B. Goldberg, Esq. (EG8413) Baher Azmy, Esq.

Edward Barocas, Esq. (EB 8251) AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY P.O. Box 32159
89 Market Street, i h Floor
Newark, NJ 07101 (973) 642-2084

Dated: December 2, 2008 Newark, New Jersey

Attorneys for Plaintiff

18

 </s> Case: 10-1743 Document: 003110621383 Page: 1 Date Filed: 08/10/2011
PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 10-1743 ___________
ROBERTO LIMA,
Appellant
v.
NEWARK POLICE DEPARTMENT; GARRY MCCARTHY; SAMUEL DEMAIO; LYDELL JAMES; JOSE ALICEA; LIEUTENANT MICHAEL LATORRE
__________
On Appeal from the United States District Court for the District of New Jersey (D.C. No. 08-cv-00426)
District Judge: Honorable Faith S. Hochberg ___________
Argued February 14, 2011 Before: SLOVITER, HARDIMAN and
ALDISERT, Circuit Judges.
(Filed: July 19, 2011)

Case: 10-1743 Document: 003110621383 Page: 2 Date Filed: 08/10/2011
Baher A. Azmy [Argued] Lori D. Tully Seton Hall Law School 833 McCarter Highway Newark, NJ 07102-0000
Edward L. Barocas American Civil Liberties Union of New Jersey Foundation 89 Market Street P.O. Box 32159 Newark, NJ 07102-0000
Attorneys for Appellant
Gary S. Lipshutz [Argued] City of Newark Department of Law Room 316 920 Broad Street Newark, NJ 07102-0000
Attorneys for Defendant-Appellee Newark Police Department and Garry McCarthy
Brooke Bagley Ronald J. Ricci 300 Lackawanna Avenue Suite 5 Little Falls, NJ 07424
Attorneys for Defendants Jose Alicea and Michael Latorre
Monica Y. Cho Law Offices of Bhalla & Cho
2

Case: 10-1743 Document: 003110621383 Page: 3 Date Filed: 08/10/2011
333 Washington Street Suite 203 Jersey City, NJ 07302
Attorney for Appellees Lydell James and Samuel DeMaio
____________ OPINION OF THE COURT
____________ HARDIMAN, Circuit Judge.
Rule 68 of the Federal Rules of Civil Procedure is intended to promote the amicable resolution of cases. Although it usually serves its intended purpose, Rule 68 presents a trap for the unwary. This trap manifests itself most frequently when a defendant erroneously believes that an accepted Rule 68 offer of judgment finally resolves a civil action, only to be assessed substantial attorney‟s fees and costs thereafter by the court.
In this appeal, Plaintiff Roberto Lima argues that the Rule 68 offer of judgment he accepted did not include attorney‟s fees and costs. As in many cases, the question is significant because counsel for Lima seek fees well in excess of the value of his settled claims.
I
3

Case: 10-1743 Document: 003110621383 Page: 4 Date Filed: 08/10/2011
A
The historical facts of this case are incidental to the issue presented on appeal, so we summarize them only briefly. In September 2007, a photographer working for Lima‟s Portuguese-language newspaper, Brazilian Voice, discovered and photographed a decomposed body covered by debris in the Ironbound section of Newark, New Jersey. Lima reported the incident to police and showed them the crime scene. At the crime scene, two police officers allegedly intimidated Lima and the photographer, seized the camera, and ordered Lima not to publish any photographs of the scene. At the precinct office, Lima gave police a statement but refused to turn over the original photographs (though he offered to make copies for them). Lima further alleged that he was handcuffed and released from custody only after he agreed to turn over all copies of the photographs. The police then followed him to his office where they seized CDs containing digital copies of the pictures.
In January 2008, Lima filed suit in New Jersey District Court against the Newark Police Department and certain police officers. He amended his complaint once to add an additional officer, and then again, in January 2009, adding Police Director Garry McCarthy, another officer, and a Monell claim against the City of Newark (collectively, Newark).
Lima‟s second amended complaint stated seven causes of action arising under both federal and state law and concluded with a “PRAYER FOR RELIEF” stating:
4

Case: 10-1743 Document: 003110621383 Page: 5 Date Filed: 08/10/2011
WHEREFORE, Plaintiff respectfully requests judgment against the Defendants as follows:
(a) Compensatory and consequential damages in an amount to be determined at trial;
(b) Punitive damages on all claims allowed by law, in an amount to be determined at trial;
(c) Attorney‟s fees and costs associated with this action;
(d) Any further relief as this Court deems just and proper and any other relief as allowed by law. B
Before discovery commenced, and before filing his second amended complaint, Lima offered to settle the case for “$85,000, and [an] admission of the event; an apology; and consent to training.” After some discovery, the filing of the second amended complaint, further settlement negotiations, and a failed attempt at mediation—during which Lima‟s demand went as high as $150,000 and Newark‟s offer went as high as $50,000—Newark made a Rule 68 offer of judgment (Offer). The Offer was attached to a November 8, 2009 email stating: “Attached is an Offer of Judgment from the City of Newark and Garry McCarthy. The offer is, however, as to all defendants and all claims. The City makes this offer with the
5

Case: 10-1743 Document: 003110621383 Page: 6 Date Filed: 08/10/2011
intention and expectation that, if accepted, this litigation will be resolved in its entirety.” The Offer itself stated:
Pursuant to Rule 68 of the Federal Rules of Civil Procedure, Defendants City of Newark (and improperly pled “Newark Police Department”), and Garry McCarthy, hereby offers [sic] to allow Judgment to be entered against these defendants in this action in the amount of $55,000.00, including all of Plaintiff‟s claims for relief against all defendants, including those not represented by this counsel. This offer of judgment is made for the purposes specified in Federal Rule of Civil Procedure 68, and is not to be construed as either an admission that any of the defendants are liable in this action, or that the Plaintiff has suffered any damage. This Offer of Judgment shall not be filed with the Court unless (a) accepted or (b) in a proceeding to determine costs (which includes counsel fees that could be awarded pursuant to statute).
Lima timely accepted the Offer and simultaneously filed a request for judgment seeking “judgment against Defendants in the amount of $55,000, with costs to be taxed by the Court upon application by Plaintiff pursuant to Rule 54(d) of the Federal Rules of Civil Procedure and 42 U.S.C. § 1988.” Upon receiving Lima‟s acceptance of the Offer, Newark promptly wrote to the Magistrate Judge assigned to the case, stating:
Just to be clear, the Defendants‟ Offer of Judgment was for „all of Plaintiff‟s claims
6

Case: 10-1743 Document: 003110621383 Page: 7 Date Filed: 08/10/2011
against all defendants.‟ There should be no confusion about any remaining claims, whether for costs or anything else; no such claims remain. But if there is any confusion, let me clarify that the Defendants‟ Offer of Judgment was not designed to expose the citizens of the City of Newark to any further expense other than the $55,000 offered.
If the Plaintiff intends to seek costs and attorneys fees, the Defendants seek immediate relief and clarification from Your Honor.
Lima‟s counsel responded the next day, countering Newark by asserting: “The Offer and Plaintiff‟s Acceptance are binding, so that the only remaining question for resolution is the amount of costs and fees to which Plaintiff is entitled.”
After receiving the aforementioned correspondence, the Magistrate Judge ordered counsel to meet and confer, but they were unable to come to an agreement. Because the parties could not resolve the dispute over fees without judicial intervention, the District Court ordered briefing on the matter and, on February 22, 2010, entered an order: (1) granting Lima‟s “Request for Judgment in the amount of $55,000” and (2) denying his “Request to File an Application for Attorneys‟ Fees . . . because . . . the Offer of Judgment included attorneys‟ fees.” Lima v. Newark Police Dep’t, No. 08-426, slip op. (D.N.J. Feb. 22, 2010) (Lima).
In support of its decision, the District Court reasoned that “Newark was not silent as to costs, but rather used three different phrases to state that the offer was a lump sum, single offer to cover all claims in the case and end the litigation
7

Case: 10-1743 Document: 003110621383 Page: 8 Date Filed: 08/10/2011
while specifically disclaiming any liability.” Id. at 2-3. The three phrases the District Court found significant were:
(1) „Judgment to be entered against these defendants in this action in the amount of $55,000, including all of Plaintiff‟s claims for relief against all defendants,‟ in the Offer of Judgment, [which] explicitly covers Prayer for Relief subpart (c) in the Complaint which claims the following relief: „(c) attorney‟s fees and costs associated with this action‟; (2) „This . . . is not to be construed as either an admission that any of the defendants are liable in this action, or that the Plaintiff has suffered any damage,‟ in the Offer of Judgment [, which] is a statement that disclaims plaintiff as a “prevailing party” under Buckhannon principles; (3) „[I]f accepted, this litigation will be resolved in its entirety,‟ in the email conveying the Offer, [which] further confirms that Newark‟s offer precludes additional litigation regarding whether Plaintiff is a “prevailing party” to earn an attorney‟s fee award; Id. For these reasons, the District Court held that the “Offer of Judgment, as accepted, is inclusive of costs and fees.” Id. at 4.
8

Case: 10-1743 Document: 003110621383 Page: 9 Date Filed: 08/10/2011
II The District Court had jurisdiction over Lima‟s federal claims under 28 U.S.C. § 1331 and supplemental jurisdiction over his state law claims under 28 U.S.C. § 1367(a). Lima timely appealed the final order of the District Court and we have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291. “We have plenary review over both legal questions regarding the interpretation of Rule 68 and the construction of the offer of judgment.” Le v. Univ. of Pa., 321 F.3d 403, 406 (3d Cir. 2003).
III A
Rule 68 permits a defendant to include all fees and costs in an offer of judgment. The rule states, in relevant part:
(a) Making an Offer; Judgment on an Accepted Offer.
More than 10 days before the trial begins, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued. If, within 10 days after being served, the opposing party serves written notice accepting the offer, either party may then file the offer and notice of acceptance, plus proof of service. The clerk must then enter judgment.
9

Case: 10-1743 Document: 003110621383 Page: 10 Date Filed: 08/10/2011
FED. R. CIV. P. 68 (2009) (italics added).1
In Marek v. Chesney, 473 U.S. 1 (1985), the Supreme Court explained that the phrase “with the costs accrued” means that (1) where the underlying statute defines “costs” to include attorney‟s fees (as § 1988 does), those fees are included as costs for purposes of Rule 68, id. at 10, and (2) defendants can make lump sum offers that do not distinguish between the claim and the costs, id. at 6. The Court explained:
The critical feature of [the portion of Rule 68 stating that a defendant may make an offer “with costs then accrued”] is that the offer be one that allows judgment to be taken against the defendant for both the damages caused by the challenged conduct and the costs then accrued. In other words, the drafters‟ concern was not so much with the particular components of offers, but with the judgments to be allowed against defendants. If an offer recites that costs are included or specifies an amount for costs, and the plaintiff accepts the offer, the judgment will necessarily include costs; if the offer does not state that costs are included and an amount for costs is not specified, the court will be obliged by the terms of the Rule to include in its judgment an additional amount which in its discretion, it determines to be sufficient to cover the costs . . . .
1 Rule 68 was amended December 2009 to change the timeframe from 10 to 14 days.
10

Case: 10-1743 Document: 003110621383 Page: 11 Date Filed: 08/10/2011
Id. (italics in original, underline added).
In Le v. University of Pennsylvania, 321 F.3d 403 (3d Cir. 2003), we had occasion to apply Marek to a Rule 68 offer of judgment. There, we stated: “the Supreme Court . . . found that „[a]s long as the offer does not implicitly or explicitly provide that the judgment does not include costs‟ an offer is valid and presumes the defendant will pay costs.” Id. at 409 (quoting Marek, 473 U.S. at 6) (alteration in original). Accordingly, we held that a Rule 68 offer of judgment “for the total amount of $50,000, plus costs then accrued” unambiguously stated an offer of $50,000 plus costs to be determined by the court because the “plain language of the offer dictates the result,” even though another part of the offer stated that “„the offer [of $50,000 plus costs] shall represent and fix the total liability of the [defendants] for any and all of plaintiff‟s loss, claims, damages, costs, attorneys‟ fees, or any other amounts or expenses recoverable, or potentially recoverable, in this action.‟” Id. (alterations in original).
Le‟s holding was based on Marek and on principles embodied in our prior cases interpreting settlement offers, decided both before and after Marek. Before Marek, we held that a suit for attorney‟s fees is foreclosed only when expressly stipulated in the settlement agreement: “If the parties cannot agree on counsel fees and the losing party wishes to foreclose a suit . . . for attorneys fees, it must insist that a stipulation to that effect be placed in the settlement agreement.” El Club Del Barrio, Inc. v. United Cmty. Corps., 735 F.2d 98, 101 (3d Cir. 1984). We rejected a “silence equals waiver” rule and held that “extrinsic evidence such as the course of negotiations” is irrelevant. Id. at 100. See also Torres v. Metro. Life Ins. Co., 189 F.3d 331, 333 (3d Cir. 1999) (applying the same rule post-Marek).
11

Case: 10-1743 Document: 003110621383 Page: 12 Date Filed: 08/10/2011
After Marek was decided, we considered whether a plaintiff was entitled to attorney‟s fees under § 1988 following a non-Rule 68 settlement offer. Ashley v. Atl. Richfield Co., 794 F.2d 128 (3d Cir. 1986). In Ashley we noted:
Where the plaintiff does so prevail, however, in the absence of an express waiver, she will be deemed to have retained her statutory right to an award of reasonable attorney‟s fees. Therefore, where a defendant seeks to settle its total liability on a claim, it shall be incumbent upon the defendant to secure an express waiver of attorney‟s fees. Silence will not suffice.
Id. at 138-39. Although the settlement offer in Ashley did disclaim liability for “costs,” we held that it was not controlled by Marek because the settlement offer was not made pursuant to Rule 68. Id. at 140-41 (citing Marek, 473 U.S. at 6).
Similarly, in Torres we held that a plaintiff was entitled to attorney‟s fees after a non-Rule 68 settlement agreement, despite an extensive release of
all claims, charges, or demands asserted or assertable in the Pending Lawsuit, and all claims, charges, or demands arising from or relating to Plaintiff's relationship of any kind with the Released Parties, including without limitation any rights or claims Plaintiff may have under Title VII of the Civil Rights Act of 1964, as amended, and the Civil Rights Act of 1991.
12

Case: 10-1743 Document: 003110621383 Page: 13 Date Filed: 08/10/2011
189 F.3d at 333. We determined that this language did not “„clearly‟ waive plaintiff‟s right to attorney‟s fees.” Id. at 333 n.3 (quoting El Club Del Barrio, 735 F.2d at 99). We also held that the “clear import of El Club Del Barrio and Ashley is that it does not matter whether the parties discussed the issue of attorney‟s fees or believed the settlement agreement waived such a claim. All that matters is whether the agreement expressly stipulates that the prevailing party‟s claim for fees is waived. If it does not, then the claim survives.” Id. at 334.
Our sister courts of appeals have read Marek to require that a Rule 68 offer of judgment must explicitly state that costs are included; otherwise those costs must be determined by the court. See McCain v. Detroit II Auto Fin. Ctr., 378 F.3d 561, 564 (6th Cir. 2004) (holding that defendant‟s “silence on the subject of costs in its Rule 68 offer means that true costs are recoverable,” although attorney‟s fees were not recoverable because the operative statute did not classify them as costs); Nordby v. Anchor Hocking Packaging Co., 199 F.3d 390, 391-93 (7th Cir. 1999) (“[A]mbiguities in Rule 68 offers are to be resolved against the offerors,” but the instant offer—for “judgment in the amount of $56,003.00 plus $1,000 in costs as one total sum as to all counts of the amended complaint” was unambiguous and therefore included costs and fees.); Webb v. James, 147 F.3d 617, 622 (7th Cir. 1998) (“[T]he effect of Marek is clear. Rule 68 offers must include costs. If the offer is silent as to costs, the court may award an additional amount to cover them. Where costs are defined in the underlying statute to include attorney‟s fees, the court may award fees as part of costs as well.”); Erdman v. Cochise County, 926 F.2d 877, 879-81 (9th Cir. 1991) (holding that a defendant‟s drafting error
13

Case: 10-1743 Document: 003110621383 Page: 14 Date Filed: 08/10/2011
failing to explicitly include fees would be held against it and plaintiff could seek additional award of fees); Arencibia v. Miami Shoes, Inc., 113 F.3d 1212, 1214 (11th Cir. 1997) (“The Supreme Court has held that when a Rule 68 offer is silent as to costs, the district court should award appropriate costs in addition to the amount of the offer.”).
In sum, a valid Rule 68 offer of judgment necessarily includes costs and attorney‟s fees either explicitly or implicitly. When the costs are stated explicitly in the offer of judgment, the offeror is not subject to any additional liability. When, however, the offer of judgment is silent as to fees and costs, they must be fixed by the court after the offer of judgment is accepted. Extrinsic evidence of the parties‟ subjective intent is not admissible to determine whether a Rule 68 offer of judgment includes costs.
B
Here, the District Court found that Newark‟s Offer included attorney‟s fees because it “was not silent as to costs.” In concluding that Newark “used three different phrases to state that the offer was a lump sum, single offer to cover all claims in the case and end the litigation while specifically disclaiming any liability,” the District Court was influenced by improper considerations and misread the plain language of the Offer. Lima, No. 08-426 at 3. Although the District Court‟s conclusion is understandable inasmuch as it is possible that Newark intended attorney‟s fees to be included in the Offer, we hold that the District Court committed an error of law because the Offer did not explicitly include attorney‟s fees or costs.
14

Case: 10-1743 Document: 003110621383 Page: 15 Date Filed: 08/10/2011
As an initial matter, we note that the District Court erred by considering evidence extrinsic to the Offer in violation of El Club Del Barrio, 735 F.2d at 100, and by considering the subjective intentions of the parties in violation of Torres, 189 F.3d at 333. The District Court found that the phrase “„if accepted, this litigation will be resolved in its entirety,‟ in the email conveying the Offer, further confirms that Newark‟s offer precludes additional litigation regarding whether Plaintiff is a „prevailing party‟ to earn an attorney‟s fee award.” Lima, No. 08-426 at 3 (emphasis added). This was error because an email to which the Offer is attached is extrinsic to the Offer; it does not inform whether the Offer itself explicitly includes fees and costs. El Club Del Barrio, 735 F.2d at 100.
In fact, the complete sentence from the email conveying the offer—“The City makes this offer with the intention and expectation that, if accepted, this litigation will be resolved in its entirety.”—describes Newark‟s “intention and expectation,” not a term of the Offer. The parties‟ subjective intentions and expectations are not proper factors to consider when interpreting an offer of judgment. See Torres, 189 F.3d at 334 (The “clear import of El Club Del Barrio and Ashley is that it does not matter whether the parties discussed the issue of attorney‟s fees or believed the settlement agreement waived such a claim. All that matters is whether the agreement expressly stipulates that the prevailing party‟s claim for fees is waived. If it does not, then the claim survives.”). For the same reason, we give no weight to Newark‟s argument that various Newark principals filed affidavits stating that they intended fees to be included, while Lima did not file any affidavits as to his subjective understanding of the offer at the time he accepted it.
15

Case: 10-1743 Document: 003110621383 Page: 16 Date Filed: 08/10/2011
Appellee Br. 28-30 (“[Q]uite simply, neither Plaintiff nor his counsel ever said anything about what they believed the Offer of Judgment meant, or did not mean. No one ever said they believed it included costs, or that it did not include costs.”). Neither the email accompanying the Offer nor the affidavits can be considered because they are extrinsic evidence of the subjective intentions of a party.
Perhaps influenced by these improper considerations, the District Court erred in its reading of the Offer. The Court determined that the phrase “„Judgment to be entered against these defendants in this action in the amount of $55,000, including all of Plaintiff‟s claims for relief against all defendants,‟ in the Offer of Judgment, explicitly covers Prayer for Relief subpart (c) in the Complaint which claims the following relief: „(c) attorney‟s fees and costs associated with this action.‟” Lima, No. 08-426 at 3. Thus, the District Court found that “claims for relief” included the “Prayer for Relief,” even though the “Prayer for Relief” was not part of a particular claim or count in the complaint.
As a matter of law, it cannot be said that the ambiguous, catchall phrase “all of Plaintiff‟s claims for relief” explicitly covers attorney‟s fees and costs. For that reason, it does not fulfill the requirement established by El Club Del Barrio, Marek, and Torres. Nor is it the most reasonable reading of the phrase in light of Supreme Court precedent. A request for attorney‟s fees under § 1988 is collateral to the main cause of action and attorney‟s fees cannot “fairly be characterized as an element of „relief‟ indistinguishable from other elements.” White v. N.H. Dep’t of Emp’t Sec., 455 U.S. 445, 452 (1982). “Unlike other judicial relief, the attorney‟s fees allowed under § 1988 are not compensation for the injury giving rise to an action.
16

Case: 10-1743 Document: 003110621383 Page: 17 Date Filed: 08/10/2011
Their award is uniquely separable from the cause of action to be proved at trial.” Id.
The District Court also found that the phrase “„[t]his . . . is not to be construed as either an admission that any of the defendants are liable in this action, or that the Plaintiff has suffered any damage,‟ in the Offer of Judgment is a statement that disclaims plaintiff as a „prevailing party‟ under Buckhannon principles.” Lima, No. 08-426 at 3; see Buckhannon Bd. & Care Home, Inc. v. W. Va. DHHS, 532 U.S. 598, 603 (2001). The District Court reasoned from this standard disclaimer of liability that “an application for attorneys‟ fees in this case would require significant additional litigation to determine whether, under the standards developed in [Buckhannon] and Truesdell v. Philadelphia Housing Authority, 290 F.3d 159 (3d Cir. 2002), Lima would be considered a „prevailing party‟ entitled to an award of attorneys‟ fees in this case.” Lima, No. 08-426 at 4. In making this determination, the District Court once again appears to have been influenced by Newark‟s intentions— namely to conclude the litigation—from which it reasoned that Newark could not have meant to leave open the possibility of further litigation regarding Lima‟s status as a prevailing party. Those intentions should not have been considered, and absent that consideration, we cannot say that the disclaimer of liability was an explicit statement that the Offer included fees and costs.
A “„prevailing party‟ is one who has been awarded some relief by the court.” Buckhannon, 532 U.S. at 603. “To be eligible to make a prevailing-party claim under § 1988, the plaintiff must, „at a minimum, ... be able to point to a resolution of the dispute which changes the legal relationship between itself and the defendant.‟” Singer Mgmt.
17

Case: 10-1743 Document: 003110621383 Page: 18 Date Filed: 08/10/2011
Consultants, Inc. v. Milgram, --- F.3d ----, 2011 WL 2342733, at *4 (3d Cir. 2011) (en banc) (quoting Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989)). “The fact that [a party] prevailed through a settlement rather than through litigation does not weaken her claim to fees.” Maher v. Gagne, 448 U.S. 122, 129 (1980). “Nothing in the language of § 1988 conditions the District Court‟s power to award fees on full litigation of the issues or on a judicial determination that the plaintiff‟s rights have been violated.” Id. Whether one was the prevailing party depends on whether the resolution resulted in a “judicial action,” Singer, --- F.3d ----, 2011 WL 2342733, at *4, that effected a “material alteration of the legal relationship of the parties,” Truesdell, 290 F.3d at 163 (quoting Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93 (1989)). “„[T]he degree of the plaintiff‟s overall success goes to the reasonableness of the award . . . not to the availability of a fee award vel non.‟” Truesdell, 290 F.3d at 166 (quoting Tex. State Teachers, 489 U.S. at 782). Thus, the Offer‟s disclaimer of liability does not establish that it included fees and costs, particularly because Lima‟s status as a putative prevailing party was to be made after the District Court determined whether the Offer included fees, and should not have been considered in making that determination in the first instance. Id.
Here, the Offer was valid and was silent as to fees and costs. That fact begins and ends our analysis. In interpreting a Rule 68 offer of judgment, courts must not consider extrinsic evidence or the intentions of the parties. Nor can they allow their awareness of such irrelevant facts to
18

Case: 10-1743 Document: 003110621383 Page: 19 Date Filed: 08/10/2011
influence their interpretations of the plain language of the Offer.2
2 Newark argues that even if the District Court erred, Lima waived his right to appeal because he invited the error. After the Offer had been accepted, and while the parties were disputing the issue of attorney‟s fees, they also disagreed about whether Lima should undergo an independent medical examination. In a joint letter regarding re-scheduling the independent medical examination, Lima wrote:
Plaintiff will receive either (a) $55,000 in toto or (b) $55,000 plus reasonable costs and attorneys [sic] fees. Though Defendants offered to withdraw the Offer following Plaintiff‟s acceptance, Plaintiff declined, willing to accept either possibility as ordered by the Court.
The doctrine of “invited error” refers to “[a]n error that a party cannot complain of on appeal because the party, through conduct, encouraged or prompted the trial court to make the erroneous ruling.” BLACK‟S LAW DICTIONARY 622 (9th ed. 2009). That is to say, “[w]hen a litigant takes an unequivocal position at trial, he cannot on appeal assume a contrary position simply because the decision in retrospect was a tactical mistake, or perhaps a candid but regretted concession.” Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107, 116-17 (3d Cir. 1992). Lima‟s representation in the joint letter was neither “an unequivocal position” on this issue nor an invitation to the District Court to rule against him. Therefore, Lima did not waive the issue or invite the District Court‟s error.
19

Case: 10-1743 Document: 003110621383 Page: 20 Date Filed: 08/10/2011
IV For the foregoing reasons, we will reverse the order of the District Court and remand the matter for a determination of reasonable attorney‟s fees and costs pursuant to 42 U.S.C. § 1988.
20

 </s> Case 2:08-cv-00426-FSH-PS Document 157 Filed 02/22/10 Page 1 of 5 PageID: 1110

NOT FOR PUBLICATION

CLOSED

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

____________________________________

)

ROBERTO LIMA,

)

)

)

Plaintiff,

)

)

v.

)

)

NEWARK POLICE DEPARTMENT, )

et al.,

)

)

Defendants.

)

____________________________________)

Civ. Docket No. 08-426 (FSH) ORDER February 22, 2010

HOCHBERG, District Judge

This matter having come before the Court upon Plaintiff’s Request for Judgment dated

December 23, 2009, and the parties’ responses; and

it appearing that Newark sent an Offer of Judgment in this case with an email conveying

the Offer that stated:

“Counsel, Attached is an Offer of Judgment from the City of Newark and Garry McCarthy. This offer is, however, as to all defendants and all claims. The City makes this offer with the intention and expectation that, if accepted, this litigation will be resolved in its entirety.”;1 and

it appearing that Newark’s attached Offer of Judgment stated:

1This email, conveying the Offer of Judgment, is viewed by the court as part of the objective language presented to the Plaintiff in the making of the Offer of Judgment on November 8, 2009.
1

Case 2:08-cv-00426-FSH-PS Document 157 Filed 02/22/10 Page 2 of 5 PageID: 1111
“Pursuant to Rule 68 of the Federal Rules of Civil Procedure, Defendants City of Newark (and improperly pled “Newark Police Department”), and Garry McCarthy, hereby offers to allow Judgment to be entered against these defendants in this action in the amount of $55,000, including all of Plaintiff’s claims for relief against all defendants, including those not represented by this counsel. This offer of judgment is made for the purposes specified in Federal Rule of Civil Procedure 68, and is not to be construed as either an admission that any of the defendants are liable in this action, or that the Plaintiff has suffered any damage...”; and
it appearing that Plaintiff accepted this Offer of Judgment with a statement that simply
said:
“The Plaintiff, Roberto Lima, hereby accepts the Offer of Judgment served on him by Defendants Newark Police Department and Garry McCarthy on November 8, 2009, pursuant to Rule 68 of the Federal Rules of Civil Procedure.”; and
it appearing that under the Supreme Court’s ruling in Marek, a Defendant can make a
single lump sum offer to settle a case as long as it is inclusive of costs;2 and
2The Court in Marek v. Chesney stated “The critical feature of this portion of [Rule 68] is that the offer be one that allows judgment to be taken against the defendant for both the damages caused by the challenged conduct and the costs then accrued. In other words, the drafters’ concern was not so much with the particular components of offers, but with the judgments to be allowed against defendants. If an offer recites that costs are included or specifies an amount for costs, and the plaintiff accepts the offer, the judgment will necessarily include costs; if the offer does not state that the costs are included and an amount for costs is not specified, the court will be obliged by the terms of the Rule to include in its judgment an additional amount, which in its discretion...it determines to be sufficient to cover the costs. In either case, however, the offer has allowed judgment to be entered against the defendant both for damages caused by the challenged conduct and for costs. ... If defendants are not allowed to make lump-sum offers that would, if accepted, represent their total liability, they would understandably be reluctant to make settlement offers. As the Court of Appeals observed, ‘many a defendant would be unwilling to make a binding settlement offer on terms that left it exposed to liability for attorney’s fees in whatever amount the court might fix on motion of the plaintiff.’” 473 U.S. 1, 6-7 (1985) (internal citations omitted).
2

Case 2:08-cv-00426-FSH-PS Document 157 Filed 02/22/10 Page 3 of 5 PageID: 1112
it appearing that the Third Circuit has interpreted the Court’s holding in Marek to mean that there must be an express waiver of a claim for attorneys’ fees and that “silence will not suffice;”3 and
it appearing that Newark was not silent as to costs, but rather used three different phrases to state that the offer was a lump sum, single offer to cover all claims in the case and end the litigation while specifically disclaiming any liability:
(1) "Judgment to be entered against these defendants in this action in the amount of $55,000, including all of Plaintiff's claims for relief against all defendants, " in the Offer of Judgment, explicitly covers Prayer for Relief subpart (c) in the Complaint which claims the following relief: “(c) attorney’s fees and costs associated with this action”; (2) "This ... is not to be construed as either an admission that any of the defendants are liable in this action, or that the Plaintiff has suffered any damage," in the Offer of Judgment is a statement that disclaims plaintiff as a “prevailing party” under Buckhannon principles; (3) "...if accepted, this litigation will be resolved in its entirety," in the email conveying the Offer, further confirms that Newark’s offer precludes additional litigation regarding whether Plaintiff is a “prevailing party” to earn an attorney’s fee award; The Court finds that, taken together, these three specific phrases in the context of an Offer of Judgment (with conveying email) clearly and expressly waive a separate attorneys’ fee claim,
3 Ashley v. Atlantic Richfield Co., 794 F.2d 128, 139 (3d. Cir 1986); see also Lazarska v. County of Union, No. 04-02602, 2006 WL 2264455 at *3 (D.N.J. Aug. 8, 2006) (“Beginning with El Club del Barrio, the Third Circuit has repeatedly held that only an express and clear waiver will preclude the plaintiffs’ possibility of recovering statutorily authorized attorney’s fees and costs.”).
3

Case 2:08-cv-00426-FSH-PS Document 157 Filed 02/22/10 Page 4 of 5 PageID: 1113
if accepted by plaintiff. While the Assistant Corporate Counsel in the employ of Newark might
have been well advised to have researched in advance the Third Circuit case law and employ the
precise language approved by the Circuit for Offers of Judgment that are intended to be inclusive
of legal fees and costs, this Court finds that the language used by the City of Newark clearly put
the Plaintiff on notice that the Offer of Judgment, if accepted, satisfied the claim for attorneys’
fees and precluded a separate application for attorneys’ fees;4 and
it appearing therefore that the Offer of Judgment, as accepted, is inclusive of costs and
fees; 5
4 As stated above, first, because a claim for attorneys’ fees was included as one of the four claims for relief in the “Prayer for Relief” section in the Plaintiff’s Complaint in this case, the phrase “all of Plaintiff’s claims for relief against all defendants” in the Offer of Judgment must include attorneys’ fees.
Second, an application for attorneys’ fees in this case would require significant additional litigation to determine whether, under the standards developed in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001) and Truesdell v. Philadelphia Housing Auth., 290 F.3d 159 (3d Cir. 2002), Lima would be considered a “prevailing party” entitled to an award of attorneys’ fees in this case. In light of Newark’s express disclaimer of liability in the Offer of Judgment and the modest sum in the Offer of Judgment, as compared with the huge cost of the litigation, what occurred here may not amount to a shift in the legal relationship between the parties. Such necessary additional litigation on the issue of “prevailing party” was clearly precluded by Newark’s phrase “...if accepted, this litigation will be resolved in its entirety.”
Third, unlike the single, broad “boilerplate” waiver in the settlement agreement in Torres v. Metropolitan Life Insurance Co., 189 F.3d 331 (3d Cir. 1999), this Offer of Judgment, with three separate phrases written into the offer and conveyance by the Defendant, specifically and clearly, upon acceptance, waived the Plaintiff’s right to seek separate attorneys’ fees because costs were included in the amount of the judgment offered.
5 It is well known that municipal entities can only act with the approval of City Councils, which must authorize specific amounts to settle cases. The totality of the language used in the Offer of Judgment and conveying email, read in light of this reality as to how collective municipal entities must govern, buttresses the conveyance of a single lump sum to include all costs. It would not be reasonable to receive such an offer and think that counsel for Newark would offer $55,000 to settle the entire litigation and yet bind the City to agreement that would expose it to a contingent liability for attorneys’ fees of potentially over $300,000. Indeed, per
4

Case 2:08-cv-00426-FSH-PS Document 157 Filed 02/22/10 Page 5 of 5 PageID: 1114
IT IS on this 22nd day of February, 2010, ORDERED that Plaintiff’s December 23, 2009 Request for Judgment in the amount of $55,000 is GRANTED; and it is further ORDERED that Plaintiff’s December 23, 2009 Request to File an Application for Attorneys’ Fees is DENIED because, as stated above, the Offer of Judgment included attorneys’ fees.
/s/ Faith S. Hochberg Hon. Faith S. Hochberg, U.S.D.J.
Marek, the City should not be asked to do so. See supra note 2. Fortunately, Plaintiff himself has not incurred these fees thanks to the pro bono attorneys who have brought this case.
5

 </s> Case 2:08-cv-00426-FSH-PS Document 184 Filed 10/23/12 Page 1 of 2 PageID: 1396
Barbara Moses SETON HALL UNIVERSITY SCHOOL OF LAW CENTER FOR SOCIAL JUSTICE 833 McCarter Highway Newark, NJ 07102 (973) 642-8700
Edward Barocas AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY P.O. Box 32159 89 Market Street, 7th Floor Newark, NJ 07101 (973) 642-2084
Attorneys for Plaintiff

ROBERTO LIMA,
Plaintiff, v.
NEWARK POLICE DEPARTMENT, GARRY MCCARTHY, SAMUEL DEMAIO, LYDELL JAMES, JOSE ALICEA, MICHAEL LATORRE,
Defendants.

DISTRICT OF NEW JERSEY NEWARK VICINAGE
CIVIL ACTION NO. 08-426 (FSH)
WARRANT TO SATISFY JUDGMENT

WHEREAS, a judgment was entered in the above-entitled action on February 22, 2010, in favor of plaintiff Roberto Lima and against defendants Newark Police Department, Garry McCarthy, Samuel DeMaio, Lydell James, Jose Alicea and Michael LaTorre in the amount of Fifty-Five Thousand Dollars and no cents ($55,000), and said judgment, together with interest and costs thereon (including attorneys' fees) having been fully paid;

Case 2:08-cv-00426-FSH-PS Document 184 Filed 10/23/12 Page 2 of 2 PageID: 1397
THEREFORE, full and complete satisfaction of said judgment is hereby acknowledged, and the Clerk of the Court is hereby authorized and directed to make entry of the full and complete satisfaction on the docket of satisfaction of judgment.

Date: October 22, 2012

/s/ Edward Barocas

Edward Barocas

Attorney for Plaintiff/Judgment Creditor

Roberto Lima

I certify that the foregoing statements made by me are true. I am aware that if any of the forgoing statements made by me are willfully false, I am subject to punishment.

Date:

October 22,

2012

/s/ Edward Barocas

Edward Barocas

Attorney for Plaintiff/Judgment Creditor

Roberto Lima

2

 </s> Case: 2:08-cv-00426-FSH-PS As of: 02/10/2014 04:11 PM EST 1 of 19
RULE16,SCHEDO
U.S. District Court District of New Jersey [LIVE] (Newark) CIVIL DOCKET FOR CASE #: 2:08−cv−00426−FSH−PS

LIMA v. NEWARK POLICE DEPARTMENT et al Assigned to: Judge Faith S. Hochberg Referred to: Magistrate Judge Patty Shwartz Case in other court: Third Circuit, 10−01743
Third Circuit, 10−01832 Cause: 42:1983 Civil Rights Act
Mediator

Date Filed: 01/23/2008 Date Terminated: 02/22/2010 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

JOHN W. BISSELL TERMINATED: 08/20/2009

represented by JOHN W. BISSELL CONNELL FOLEY, LLP 85 LIVINGSTON AVENUE ROSELAND, NJ 07068 (973) 535−0500 Email: jbissell@connellfoley.com TERMINATED: 08/20/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff ROBERTO LIMA

represented by BAHER AZMY CENTER FOR CONSTITUTIONAL RIGHTS 666 BROADWAY 7TH FLOOR NEW YORK, NY 10012 212−614−6464 Email: bazmy@ccrjustice.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

EMILY B. GOLDBERG McCarter &English, LLP Four Gateway Center 100 Mulberry Street NEWARK, NJ 07102 973−639−8497 Fax: 973−624−7070 Email: egoldberg@mccarter.com TERMINATED: 01/18/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

STEVEN M. GABOR 31 W. MAIN STREET 2ND FLOOR FREEHOLD, NJ 07728 (732) 294−9100 Email: steve.gabor@gaboresq.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

EDWARD L. BAROCAS AMERICAN CIVIL LIBERTIES UNION OF NJ FOUNDATION P.O. BOX 32159 NEWARK, NJ 07102 (973) 642−2086

Case: 2:08-cv-00426-FSH-PS As of: 02/10/2014 04:11 PM EST 2 of 19
Fax: (973) 642−6253 Email: ebarocas@aclu−nj.org ATTORNEY TO BE NOTICED
MICHAEL A. NORWICK AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY P.O. Box 32159 NEWARK, NJ 07102 (973) 642−2086 Email: mnorwick@aclu−nj.org ATTORNEY TO BE NOTICED

V. Defendant NEWARK POLICE DEPARTMENT
Defendant GARRY MCCARTHY
Defendant SAMUEL DEMAIO

represented by DIEGO F. NAVAS CITY OF NEWARK LAW DEPARTMENT 920 BROAD STREET ROOM 316 NEWARK, NJ 07102 (973) 733−3880 Email: navasd@ci.newark.nj.us TERMINATED: 09/15/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
GARY S. LIPSHUTZ CITY OF NEWARK DEPARTMENT OF LAW 920 BROAD STREET ROOM 316 CITY HALL NEWARK, NJ 07102 (973) 733−5945 Fax: (973) 733−5394 Email: lipshutzg@ci.newark.nj.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by DIEGO F. NAVAS (See above for address) TERMINATED: 09/15/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
GARY S. LIPSHUTZ (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by DIEGO F. NAVAS (See above for address) TERMINATED: 01/26/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
RAVINDER S. BHALLA RSB LAW FIRM

Case: 2:08-cv-00426-FSH-PS As of: 02/10/2014 04:11 PM EST 3 of 19

33−41 NEWARK STREET SUITE 4A HOBOKEN, NJ 07030 (201) 610−9010 Fax: 201−610−9030 Email: rbhalla@rsblawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

MONICA Y. CHO N/A 88 Morgan Street # 1906 Jersey City, NJ 07302 201−592−0488 Email: monica.cho@live.com ATTORNEY TO BE NOTICED

Defendant LYDELL JAMES

represented by DIEGO F. NAVAS (See above for address) TERMINATED: 01/26/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

RAVINDER S. BHALLA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

MONICA Y. CHO (See above for address) ATTORNEY TO BE NOTICED

Defendant
JOHN DOE an employee of the Newark Police Department, City of Newark, N.J. TERMINATED: 09/11/2008

Defendant JOSE ALICEA

represented by RONALD J. RICCI RICCI &FAVA L.L.C. 482 Notch Road WOODLAND PARK, NJ 07424 973−837−1900 Fax: 973−837−1915 Email: rricci@riccifavalaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Lieutenant MICHAEL LATORRE

represented by RONALD J. RICCI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Detective Marquis Carter TERMINATED: 09/28/2009

represented by FREDERICK BENNO POLAK POST, POLAK, GOODSELL, MACNEILL &STRAUCHLER, PA 425 EAGLE ROCK AVENUE SUITE 200

Case: 2:08-cv-00426-FSH-PS As of: 02/10/2014 04:11 PM EST 4 of 19

ROSELAND, NJ 07068−1717 973−228−9900 Fax: 973−994−1705 Email: fbp@ppgms.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Lieutenant JOHN BREWINGTON TERMINATED: 09/28/2009

represented by FREDERICK BENNO POLAK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Assistant Prosecutor ROMESH SUKHDEO TERMINATED: 09/28/2009

represented by FREDERICK BENNO POLAK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Assistant Prosecutor ROGER J. IMHOF TERMINATED: 09/28/2009

represented by FREDERICK BENNO POLAK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cross Claimant Lieutenant MICHAEL LATORRE

represented by RONALD J. RICCI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Cross Defendant NEWARK POLICE DEPARTMENT
Cross Claimant SAMUEL DEMAIO

represented by DIEGO F. NAVAS (See above for address) TERMINATED: 09/15/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
GARY S. LIPSHUTZ (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by DIEGO F. NAVAS (See above for address) TERMINATED: 01/26/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
RAVINDER S. BHALLA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MONICA Y. CHO (See above for address) ATTORNEY TO BE NOTICED

Case: 2:08-cv-00426-FSH-PS As of: 02/10/2014 04:11 PM EST 5 of 19

Cross Claimant LYDELL JAMES

represented by DIEGO F. NAVAS (See above for address) TERMINATED: 01/26/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
RAVINDER S. BHALLA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MONICA Y. CHO (See above for address) ATTORNEY TO BE NOTICED

V. Cross Defendant NEWARK POLICE DEPARTMENT
Cross Claimant Detective Marquis Carter TERMINATED: 09/28/2009
Cross Claimant Lieutenant JOHN BREWINGTON TERMINATED: 09/28/2009
Cross Claimant Assistant Prosecutor ROMESH SUKHDEO TERMINATED: 09/28/2009
Cross Claimant Assistant Prosecutor ROGER J. IMHOF TERMINATED: 09/28/2009

represented by DIEGO F. NAVAS (See above for address) TERMINATED: 09/15/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
GARY S. LIPSHUTZ (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by FREDERICK BENNO POLAK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by FREDERICK BENNO POLAK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by FREDERICK BENNO POLAK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by FREDERICK BENNO POLAK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Cross Defendant Lieutenant MICHAEL LATORRE

represented by RONALD J. RICCI (See above for address)

Case: 2:08-cv-00426-FSH-PS As of: 02/10/2014 04:11 PM EST 6 of 19

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cross Defendant NEWARK POLICE DEPARTMENT

represented by DIEGO F. NAVAS (See above for address) TERMINATED: 09/15/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

GARY S. LIPSHUTZ (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cross Defendant SAMUEL DEMAIO

represented by DIEGO F. NAVAS (See above for address) TERMINATED: 01/26/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

RAVINDER S. BHALLA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

MONICA Y. CHO (See above for address) ATTORNEY TO BE NOTICED

Cross Defendant LYDELL JAMES

represented by DIEGO F. NAVAS (See above for address) TERMINATED: 01/26/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

RAVINDER S. BHALLA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

MONICA Y. CHO (See above for address) ATTORNEY TO BE NOTICED

Cross Defendant GARRY MCCARTHY

represented by DIEGO F. NAVAS (See above for address) TERMINATED: 09/15/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

GARY S. LIPSHUTZ (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cross Defendant JOSE ALICEA

represented by RONALD J. RICCI (See above for address)

Case: 2:08-cv-00426-FSH-PS As of: 02/10/2014 04:11 PM EST 7 of 19
LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 01/23/2008
01/25/2008 02/29/2008 03/13/2008 03/31/2008 04/02/2008 04/02/2008 05/12/2008 05/16/2008
05/16/2008 06/16/2008
08/11/2008 08/11/2008 08/12/2008
09/04/2008 09/05/2008

# Docket Text
1 COMPLAINT against NEWARK POLICE DEPARTMENT, GARRY MCCARTHY, SAMUEL DEMAIO, LYDELL JAMES, JOHN DOE ( Filing fee $ 350 receipt number 1828192.), filed by ROBERTO LIMA. (Attachments: # 1 CIV COV SHT)(dr, ) (Entered: 01/25/2008)
2 Summons Issued as to NEWARK POLICE DEPARTMENT, GARRY MCCARTHY, SAMUEL DEMAIO, LYDELL JAMES. Days Due − 20. (dr, ) (Entered: 01/25/2008)
3 ANSWER to Complaint by NEWARK POLICE DEPARTMENT. (Attachments: # 1 cover letter)(NAVAS, DIEGO) (Entered: 02/29/2008)
4 SCHEDULING ORDER, ( Scheduling Conference set for 5/16/2008 12:00 PM in Newark − Courtroom 10 before Magistrate Judge Patty Shwartz.) Signed by Magistrate Judge Patty Shwartz on 3/13/08. (aa, ) (Entered: 03/14/2008)
5 ANSWER to Complaint by GARRY MCCARTHY. (Attachments: # 1 Cover letter)(NAVAS, DIEGO) (Entered: 03/31/2008)
6 ANSWER to Complaint by SAMUEL DEMAIO. (Attachments: # 1 cover letter)(NAVAS, DIEGO) (Entered: 04/02/2008)
7 ANSWER to Complaint by LYDELL JAMES. (Attachments: # 1 cover letter)(NAVAS, DIEGO) (Entered: 04/02/2008)
8 STATUS REPORT Joint Discovery Plan by ROBERTO LIMA, NEWARK POLICE DEPARTMENT, GARRY MCCARTHY, SAMUEL DEMAIO, LYDELL JAMES, JOHN DOE. (AZMY, BAHER) (Entered: 05/12/2008)
9 PRETRIAL SCHEDULING ORDER: Settlement Conference set for 6/25/2008 11:00 AM before Magistrate Judge Patty Shwartz. Final Pretrial Conference set for 2/3/2009 01:00 PM before Magistrate Judge Patty Shwartz. Fact Discovery due by 11/11/2008; etc.. Signed by Magistrate Judge Patty Shwartz on 5/16/08. (sr, ) (Entered: 05/19/2008)
Minute Entry for proceedings held before Magistrate Judge Patty Shwartz: Scheduling Conference held on 5/16/2008. (aa, ) (Entered: 05/28/2008)
TEXTORDER, (The settlement conference scheduled for June 25, 2008 has been rescheduled for 8/11/2008 01:00 PM before Magistrate Judge Patty Shwartz. Trial counsel and clients with full settlement authority are required to attend.)ORDERED by Magistrate Judge Patty Shwartz on 6/16/08. (Liriano, I) (Entered: 06/16/2008)
10 NOTICE of Appearance by EMILY B. GOLDBERG on behalf of ROBERTO LIMA (GOLDBERG, EMILY) (Entered: 08/11/2008)
Minute Entry for proceedings held before Magistrate Judge Patty Shwartz: Settlement Conference held on 8/11/2008. (aa, ) (Entered: 08/25/2008)
11 ORDER ON INFORMAL APPL. &AMENDED PRETRIAL SCHEDULING ORDER, ( Amended Pleadings due by 9/26/2008., Discovery due by 11/11/2008., Pretrial Order due by 1/27/2009., Final Pretrial Conference set for 2/3/2009 01:00 PM before Magistrate Judge Patty Shwartz., Status Conference set for 10/21/2008 01:00 PM before Magistrate Judge Patty Shwartz.); etc.. Signed by Magistrate Judge Patty Shwartz on 8/11/08. (DD, ) (Entered: 08/12/2008)
12 Letter from Emily B. Goldberg re: Unresolved Discovery Disputes. (Attachments: # 1 Affidavit of Emily B. Goldberg)(GOLDBERG, EMILY) (Entered: 09/04/2008)
13 Exhibit to 12 Letter by ROBERTO LIMA. (GOLDBERG, EMILY) (Entered: 09/05/2008)

Case: 2:08-cv-00426-FSH-PS As of: 02/10/2014 04:11 PM EST 8 of 19

09/08/2008 09/10/2008
09/10/2008 09/11/2008 09/12/2008 10/08/2008 10/09/2008 10/14/2008
10/15/2008
10/16/2008
10/31/2008 11/03/2008 11/05/2008 11/07/2008 11/10/2008 11/12/2008

Minute Entry for proceedings held before Magistrate Judge Patty Shwartz: Telephone Conference held on 9/8/2008. (aa, ) (Entered: 09/09/2008)
14 ORDER ON INFORMAL APPL. that, no later than 9/15/08, the defts. shall produce the statistics subm. to the Atty. Gen. that reflect cmps. that members of the Police Dept. arrested a person w/out probable cause; that, no later than 9/10/08, the pltf. file his Amended Cmp. that substitutes the "John Doe" for the individual he believes participated in his arrest; that any consent order or motion for leave to file a Second Amended Cmp. shall be fld. no later than 10/13/08; that all other deadlines remain unchanged.. Signed by Magistrate Judge Patty Shwartz on 9/8/08. (DD, ) (Entered: 09/10/2008)
15 AMENDED COMPLAINT against all defendants all defendants., filed by ROBERTO LIMA.(GOLDBERG, EMILY) (Entered: 09/10/2008)
16 Request for Summons to be Issued by ROBERTO LIMA as to JOSE ALICEA. (GOLDBERG, EMILY) (Entered: 09/11/2008)
17 SUMMONS ON AMENDED CMP. Issued as to JOSE ALICEA. Days Due − 20. [mailed to counsel] (DD, ) (Entered: 09/12/2008)
18 Letter from Plaintiff requesting enlargement of discovery deadlines. (GOLDBERG, EMILY) (Entered: 10/08/2008)
19 Letter request from plaintiff extending time to amend complt. and complete discovery. (mn, ) (Entered: 10/09/2008)
20 ORDER ON INFORMAL APPL. &SECOND AMENDED PRETRIAL SCHEDULING ORDER, ( Amended Pleadings due by 11/13/2008., Discovery due by 12/15/2009., Joinder of Parties due by 11/13/2008., Pretrial Order due by 1/27/2009., Final Pretrial Conference set for 2/3/2009 01:00 PM before Magistrate Judge Patty Shwartz., Telephone/Status Conference set for 10/21/2008 01:00 PM before Magistrate Judge Patty Shwartz.); etc.. Signed by Magistrate Judge Patty Shwartz on 10/10/08. (DD, ) (Entered: 10/14/2008)
TEXT ORDER, (The telephone conference scheduled for 10/21/08 has been rescheduled for 11/7/2008 at 09:30 AM before Magistrate Judge Patty Shwartz. Plaintiff shall initiate the telephone call.)ORDERED by Magistrate Judge Patty Shwartz on 10/15/08. (Liriano, I) (Entered: 10/15/2008)
21 TRANSCRIPT of Proceedings held on September 8, 2008 before Judge Shwartz. Court Reporter/Recorder: King Transcription Services. PLEASE NOTE: The complete transcript of these proceedings is maintained in paper format on file in the Clerks Office. To request copies of this transcript, contact the Official Court Reporter or Transcription Service who prepared the transcript. (ji, ) (Entered: 10/16/2008)
22 Letter from Emily B. Goldberg re: deposition dispute. (Attachments: # 1 Exhibit A)(GOLDBERG, EMILY) (Entered: 10/31/2008)
23 Letter from Diego Navas. (NAVAS, DIEGO) (Entered: 11/03/2008)
Minute Entry for proceedings held before Magistrate Judge Patty Shwartz: Telephone Conference held on the record on 11/5/2008. (CD #S08−22.) (aa, ) (Entered: 11/30/2008)
Minute Entry for proceedings held before Magistrate Judge Patty Shwartz: Telephone Conference held on 11/7/2008. (aa, ) (Entered: 11/30/2008)
24 Letter from Emily B. Goldberg (defendants' positions by Diego Navas) re: disputes. (Attachments: # 1 Exhibit)(GOLDBERG, EMILY) (Entered: 11/10/2008)
25 ORDER ON INFORMAL APPL. that the parties shall present the joint letter setting for disc. disputes for which court−intervention is needed no later than 11/10/08 @ 4:00 p.m.; that no later than 11/10/08, the parties shall provide the Court w/the dates on which the remaining deposition shall be taken; etc.. Signed by Magistrate Judge Patty Shwartz on 11/7/08. (DD, ) (Entered: 11/12/2008)

Case: 2:08-cv-00426-FSH-PS As of: 02/10/2014 04:11 PM EST 9 of 19

11/13/2008
11/17/2008 12/02/2008 12/02/2008 12/02/2008
12/02/2008 12/03/2008
12/04/2008
12/04/2008 12/04/2008
12/05/2008
12/05/2008 12/08/2008 12/08/2008 12/09/2008 12/09/2008 12/09/2008 12/11/2008 12/11/2008

26 ORDER ON INFORMAL APPL. that the deposition of Detective James shall take place on 11/19/08; that no later than 11/17/08, defts. shall provide a date for the deposition of Officer Alicea; granting request to reopen the deposition of Officer Silva; granting request to extend the deadline to join parties; etc.. Signed by Magistrate Judge Patty Shwartz on 11/11/08. (DD, ) (Entered: 11/13/2008)
27 Letter from Emily B. Goldberg, Esq.. (GOLDBERG, EMILY) (Entered: 11/17/2008)
28 Letter from Diego Navas. (Attachments: # 1 Exhibit)(NAVAS, DIEGO) (Entered: 12/02/2008)
29 Letter from Emily B. Goldberg providing plaintiff's response to defendants' unilateral letter re 28 Letter. (GOLDBERG, EMILY) (Entered: 12/02/2008)
30 MOTION to Amend/Correct 15 Amended Complaint by ROBERTO LIMA. (Attachments: # 1 Brief in support of motion to amend complaint, # 2 Certification of Emily B. Goldberg, with exhibits attached, # 3 Proposed Second Amended Complaint, # 4 Text of Proposed Order, # 5 Certificate of Service)(GOLDBERG, EMILY) (Entered: 12/02/2008)
31 Letter from Emily B. Goldberg requesting Protective Order re: Immigration Status inquiries. (GOLDBERG, EMILY) (Entered: 12/02/2008)
32 ORDER ON INFORMAL APPL. that the request for court−intervention concerning the disputes set forth in the letter dated 12/2/08 is denied w/out prejudice; that if defts. intend to ask a deponent about his or her immigration status, then the parties shall contact Chmbrs. from the deposition for a ruling before the question is asked; etc.. Signed by Magistrate Judge Patty Shwartz on 12/2/08. (DD, ) (Entered: 12/03/2008)
33 ORDER ON INFORMAL APPL. that the request for a protective order is denied at this time &the dispute shall be raised as set forth in the Order dated 12/2/08.. Signed by Magistrate Judge Patty Shwartz on 12/3/08. (DD, ) (Entered: 12/04/2008)
34 Letter from Diego Navas. (NAVAS, DIEGO) (Entered: 12/04/2008)
Set Deadlines as to 30 MOTION to Amend/Correct 15 Amended Complaint MOTION to Amend/Correct 15 Amended Complaint. Motion set for 1/5/2009 before Judge Faith S. Hochberg. The motion will be decided on the papers. No appearances required unless notified by the court. (DD, ) (Entered: 12/04/2008)
35 ORDER ON INFORMAL APPL. that the defts' opposition to motion for leave to file an Amended Cmp. shall be subm. no later than 12/17/08 &the reply shall be subm. no later than 12/23/08. The motion will be deemed fully subm. on 12/23/08.. Signed by Magistrate Judge Patty Shwartz on 12/4/08. (DD, ) (Entered: 12/05/2008)
36 Letter from Emily B. Goldberg re 32 Order on Oral Motion,. (GOLDBERG, EMILY) (Entered: 12/05/2008)
37 ORDER granting pltf's request that the defts notify pltf's counsel of the specific caselaw upon which they will rely, no later than 10:00 a.m. on 12/9/08, etc. Signed by Magistrate Judge Patty Shwartz on 12/5/08. (jd, ) (Entered: 12/08/2008)
38 Letter from Diego Navas. (NAVAS, DIEGO) (Entered: 12/08/2008)
39 Letter from Diego Navas. (NAVAS, DIEGO) (Entered: 12/09/2008)
40 Letter from Emily B. Goldberg re: Depositions to be held on 12/10/08 re 39 Letter. (GOLDBERG, EMILY) (Entered: 12/09/2008)
41 Letter from Diego Navas. (NAVAS, DIEGO) (Entered: 12/09/2008)
42 Letter from Diego Navas. (NAVAS, DIEGO) (Entered: 12/11/2008)
43 Letter from Emily B. Goldberg re: urgent need to remove defendants' 12/9/08 letter from ECF re 40 Letter, 39 Letter. (GOLDBERG, EMILY) (Entered: 12/11/2008)

Case: 2:08-cv-00426-FSH-PS As of: 02/10/2014 04:11 PM EST 10 of 19

12/11/2008
12/15/2008 12/15/2008
12/17/2008 12/19/2008 12/22/2008 12/23/2008 12/23/2008 12/24/2008 12/24/2008
12/24/2008 12/30/2008 01/05/2009 01/06/2009

44 ORDER ON INFORMAL APPL. that no later than 12/16/08, the pltf. shall provide the defts. w/addresses &telephone #'s for Messr. Blanco &Quodomine &the names of their counsel or certify that he does not have an address or telephone # for them other than their work addresses; that the request to seal Docket #39 is denied; etc.. Signed by Magistrate Judge Patty Shwartz on 12/10/08. (DD, ) (Entered: 12/11/2008)
45 ORDER ON INFORMAL APPL. that the request to seal the defts' 12/9/08 letter is DENIED.. Signed by Magistrate Judge Patty Shwartz on 12/11/08. (DD, ) (Entered: 12/15/2008)
46 ORDER ON INFORMAL APPL. that the request to adjourning depositions pending resolution of the motion for leave to file an Amended Cmp. is DENIED; that all depositions shall be completed no later than 1/15/09; that all deadlines shall remain unchanged, except that the deadlines assoc. w/motion for summary judgment are vacated &will be set at the Final Pretrial Cnf.. Signed by Magistrate Judge Patty Shwartz on 12/11/08. (DD, ) (Entered: 12/15/2008)
47 RESPONSE to Motion re 30 MOTION to Amend/Correct 15 Amended Complaint MOTION to Amend/Correct 15 Amended Complaint filed by NEWARK POLICE DEPARTMENT, GARRY MCCARTHY, JOSE ALICEA, SAMUEL DEMAIO, LYDELL JAMES. (Attachments: # 1 Certification, # 2 Exhibit, # 3 Certificate of Service, # 4 filing cover letter)(NAVAS, DIEGO) (Entered: 12/17/2008)
48 Letter from Emily B. Goldberg re: failure to produce defendant Demaio for deposition. (Attachments: # 1 Exhibit December 10, 2008 Order by Judge Shwartz)(GOLDBERG, EMILY) (Entered: 12/19/2008)
Minute Entry for proceedings held before Magistrate Judge Patty Shwartz: Telephone Conference held on the record on 12/22/2008. (CD #S08−28.) (aa, ) (Entered: 01/08/2009)
49 RESPONSE in Support re 30 MOTION to Amend/Correct 15 Amended Complaint MOTION to Amend/Correct 15 Amended Complaint filed by ROBERTO LIMA. (Attachments: # 1 Affidavit of Emily B. Goldberg, # 2 Certificate of Service)(GOLDBERG, EMILY) (Entered: 12/23/2008)
50 Letter re 49 Response in Support of Motion. (GOLDBERG, EMILY) (Entered: 12/23/2008)
51 ORDER ON INFORMAL APPL. &THIRD AMENDED PRETRIAL SCHEDULING ORDER, ( Fact Discovery due by 1/29/2009., Proposed Pretrial Order due by 3/24/2009., Final Pretrial Conference set for 4/2/2009 01:00 PM before Magistrate Judge Patty Shwartz.); etc.. Signed by Magistrate Judge Patty Shwartz on 12/22/08. (DD, ) (Entered: 12/24/2008)
52 RESPONSE in Support re 30 MOTION to Amend/Correct 15 Amended Complaint MOTION to Amend/Correct 15 Amended Complaint Correction Version with Exhibits filed by ROBERTO LIMA. (Attachments: # 1 Affidavit (Corrected, filed with exhibits), # 2 Exhibit F, # 3 Exhibit G, # 4 Exhibit H, # 5 Exhibit I, # 6 Exhibit J, # 7 Exhibit K, # 8 Index L, # 9 Exhibit Exhibit M, # 10 Exhibit N, # 11 Exhibit O, # 12 Exhibit P, # 13 Exhibit Q, # 14 Exhibit R)(GOLDBERG, EMILY) (Entered: 12/24/2008)
53 Certification of Certification of Service for Corrected Reply brief on behalf of ROBERTO LIMA Re 52 Response in Support of Motion,. (GOLDBERG, EMILY) (Entered: 12/24/2008)
54 ORDER granting 30 Motion to Amend/Correct Cmp., no later than 1/6/09; that Rule 26 disclosures &doc. demands shall be served upon deft., Latorre by 1/15/09 &deft., Monell no later than 1/9/09; etc.. Signed by Magistrate Judge Patty Shwartz on 12/24/08. (DD, ) (Entered: 12/30/2008)
55 AMENDED COMPLAINT (Second) against all defendants all defendants., filed by ROBERTO LIMA.(GOLDBERG, EMILY) (Entered: 01/05/2009)
56 Request for Summons to be Issued by ROBERTO LIMA as to MICHAEL LATORRE. (GOLDBERG, EMILY) (Entered: 01/06/2009)

Case: 2:08-cv-00426-FSH-PS As of: 02/10/2014 04:11 PM EST 11 of 19

01/06/2009 01/06/2009 01/06/2009 01/06/2009 01/08/2009
01/15/2009 01/15/2009 01/19/2009 01/20/2009
01/21/2009 01/21/2009 01/23/2009
01/26/2009
01/29/2009 01/30/2009 02/02/2009
02/03/2009
02/03/2009
02/04/2009 02/04/2009

57 Request for Summons to be Issued by ROBERTO LIMA as to Marquis Carter. (GOLDBERG, EMILY) (Entered: 01/06/2009)
58 Request for Summons to be Issued by ROBERTO LIMA as to JOHN BREWINGTON. (GOLDBERG, EMILY) (Entered: 01/06/2009)
59 Request for Summons to be Issued by ROBERTO LIMA as to ROMESH SUKHDEO. (GOLDBERG, EMILY) (Entered: 01/06/2009)
60 Request for Summons to be Issued by ROBERTO LIMA as to ROGER J. IMHOF. (GOLDBERG, EMILY) (Entered: 01/06/2009)
61 SUMMONS ON AMENDED CMP. [SECOND]Issued as to MICHAEL LATORRE, Marquis Carter, JOHN BREWINGTON, ROMESH SUKHDEO, ROGER J. IMHOF. Days Due − 20 [mailed to counsel] (DD, ) (Entered: 01/08/2009)
62 Notice of Pro Bono Appearance by STEVEN M. GABOR on behalf of ROBERTO LIMA (GABOR, STEVEN) (Entered: 01/15/2009)
63 Letter from Emily B. Goldberg. (GOLDBERG, EMILY) (Entered: 01/15/2009)
64 NOTICE of Appearance by MONICA Y. CHO on behalf of SAMUEL DEMAIO, LYDELL JAMES (CHO, MONICA) (Entered: 01/19/2009)
65 ORDER ON INFORMAL APPL. &FOURTH AMENDED PRETRIAL SCHEDULING ORDER, ( Fact Discovery due by 2/10/2009., Dispositive Motions due by 2/20/2009., Pretrial Order due by 3/24/2009., Final Pretrial Conference set for 4/2/2009 10:00 AM before Magistrate Judge Patty Shwartz.); etc.. Signed by Magistrate Judge Patty Shwartz on 1/16/09. (DD, ) (Entered: 01/20/2009)
66 Letter from Emily B. Goldberg requesting clarification of 12/24/08 Order. (GOLDBERG, EMILY) (Entered: 01/21/2009)
67 Letter from Diego Navas. (NAVAS, DIEGO) (Entered: 01/21/2009)
68 ORDER ON INFORMAL APPL. that the request for "clarification" of the 12/24/08 Order is DENIED.. Signed by Magistrate Judge Patty Shwartz on 1/22/09. (DD, ) (Entered: 01/23/2009)
69 Substitution of Attorney − Attorney RAVINDER S. BHALLA and MONICA Y. CHO for SAMUEL DEMAIO and LYDELL JAMES added. Attorney DIEGO F. NAVAS terminated.. (CHO, MONICA) (Entered: 01/26/2009)
70 Letter from Monica Y. Cho, Esq. Counsel for Samuel DeMaio and Lydell James. (CHO, MONICA) (Entered: 01/29/2009)
71 Letter from Diego Navas. (NAVAS, DIEGO) (Entered: 01/30/2009)
72 ANSWER to Complaint with Jury Demand Separate Defenses, CROSSCLAIM against NEWARK POLICE DEPARTMENT by MICHAEL LATORRE.(RICCI, RONALD) (Entered: 02/02/2009)
TEXT ORDER, (There shall be a telephone conference set for 2/6/2009 at 01:15 PM before Magistrate Judge Patty Shwartz. Mr. Navas shall initiate the call.)ORDERED by Magistrate Judge Patty Shwartz on 2/3/09. (drc, ) (Entered: 02/03/2009)
73 ORDER granting defts., CITY OF NEWARK &GARRY MCCARTHY's request for a 5 day extension of the date to respond to pltf's doc. demands until 2/5/09; all other deadlines remain unchanged.. Signed by Magistrate Judge Patty Shwartz on 1/30/09. (DD, ) (Entered: 02/03/2009)
74 Letter from Ronald J. Ricci. (RICCI, RONALD) (Entered: 02/04/2009)
75 Substitution of Attorney − Attorney RONALD J. RICCI and RONALD J. RICCI for MICHAEL LATORRE and JOSE ALICEA added.. (RICCI, RONALD) (Entered: 02/04/2009)

Case: 2:08-cv-00426-FSH-PS As of: 02/10/2014 04:11 PM EST 12 of 19

02/13/2009 02/13/2009 02/17/2009 02/17/2009
02/27/2009 03/01/2009
03/03/2009
03/06/2009 03/06/2009 03/12/2009 03/13/2009
03/13/2009 03/13/2009 03/17/2009
03/23/2009 03/25/2009

76 ANSWER to Amended Complaint, CROSSCLAIM against NEWARK POLICE DEPARTMENT by SAMUEL DEMAIO, LYDELL JAMES.(CHO, MONICA) (Entered: 02/13/2009)
Minute Entry for proceedings held before Magistrate Judge Patty Shwartz: Telephone Conference held on the record on 2/13/2009. (CD #S09−4.) (aa, ) (Entered: 02/17/2009)
77 Letter from Steven M. Gabor. (GABOR, STEVEN) (Entered: 02/17/2009)
78 ORDER ON INFORMAL APPL. &FIFTH AMENDED PRETRIAL SCHEDULING ORDER, ( Fact Discovery due by 4/10/2009., Dispositive Motions due by 4/24/2009., Pretrial Order due by 5/19/2009., Final Pretrial Conference set for 5/28/2009 10:00 AM before Magistrate Judge Patty Shwartz.); etc.. Signed by Magistrate Judge Patty Shwartz on 2/13/09. (DD, ) (Entered: 02/17/2009)
79 First MOTION for Default Judgment as to Roger Imhof, Romesh Sukhdeo, John Brewington and Marquis Carter by ROBERTO LIMA. (GABOR, STEVEN) (Entered: 02/27/2009)
Set Deadlines as to 79 First MOTION for Default Judgment as to Roger Imhof, Romesh Sukhdeo, John Brewington and Marquis Carter. Motion set for 4/6/2009 before Judge Faith S. Hochberg. The motion will be decided on the papers. No appearances required unless notified by the court. (DD, ) (Entered: 03/01/2009)
80 ORDER terminating 79 Motion for Default Judgment; Pltf. subm. a proper request for the entry of Default by 3/13/09 then Pltf. may resubm. its Motion for Default Judgment.. Signed by Judge Faith S. Hochberg on 3/3/09. (DD, ) (Entered: 03/03/2009)
81 NOTICE of Appearance by FREDERICK BENNO POLAK on behalf of Marquis Carter, JOHN BREWINGTON, ROMESH SUKHDEO, ROGER J. IMHOF (POLAK, FREDERICK) (Entered: 03/06/2009)
82 Letter from Frederick B. Polak, Esq.. (POLAK, FREDERICK) (Entered: 03/06/2009)
Minute Entry for proceedings held before Magistrate Judge Patty Shwartz: Telephone Conference held on 3/12/2009. (aa, ) (Entered: 03/31/2009)
83 ORDER ON INFORMAL APPLICATION &SIXTH AMENDED PRETRIAL SCHEDULING ORDER: Final Pretrial Conference set for 9/14/2009 01:00 PM before Magistrate Judge Patty Shwartz., Discovery due by 6/19/2009; etc. Signed by Magistrate Judge Patty Shwartz on 3/12/09. (sr, ) (Entered: 03/13/2009)
84 Letter from Emily B. Goldberg. (GOLDBERG, EMILY) (Entered: 03/13/2009)
85 Letter from Frederick B. Polak, Esq. re 84 Letter. (POLAK, FREDERICK) (Entered: 03/13/2009)
86 ORDER ON INFORMAL APPL. that the pltf. shall make available his entire file of disc., pleadings &correspondence, regardless of the source, &a copy machine for use by the Essex County defts. on 3/18/09 so they may obtain copies of the materials exchanged in this case; that all other terms of the order dated 3/12/09 shall remain in full force &effect.. Signed by Magistrate Judge Patty Shwartz on 3/13/09. (DD, ) (Entered: 03/17/2009)
87 Letter from Emily B. Goldberg, Esq.. (Attachments: # 1 Certification of Emily B. Goldberg, Esq., # 2 Exhibit A−D, # 3 Certificate of Service)(GOLDBERG, EMILY) (Entered: 03/23/2009)
88 ANSWER to Complaint with Jury Demand Separate Defenses, Answer to Cross−claims, CROSSCLAIM against MICHAEL LATORRE, NEWARK POLICE DEPARTMENT, SAMUEL DEMAIO, LYDELL JAMES, GARRY MCCARTHY, JOSE ALICEA by Marquis Carter, JOHN BREWINGTON, ROMESH SUKHDEO, ROGER J. IMHOF.(POLAK, FREDERICK) (Entered: 03/25/2009)

Case: 2:08-cv-00426-FSH-PS As of: 02/10/2014 04:11 PM EST 13 of 19

03/27/2009 04/01/2009 04/07/2009 04/13/2009 04/15/2009 04/21/2009 04/24/2009 04/27/2009
04/30/2009 05/08/2009 05/08/2009 05/12/2009
05/13/2009 05/15/2009
05/15/2009
07/08/2009 07/08/2009 07/09/2009

89 ORDER ON INFORMAL APPLICATION RE: discovery; etc. Signed by Magistrate Judge Patty Shwartz on 3/25/09. (sr, ) (Entered: 03/27/2009)
90 NOTICE of Appearance by MICHAEL A. NORWICK on behalf of ROBERTO LIMA (NORWICK, MICHAEL) (Entered: 04/01/2009)
91 Letter from Emily B. Goldberg. (GOLDBERG, EMILY) (Entered: 04/07/2009)
92 Letter from Emily B. Goldberg re 91 Letter. (GOLDBERG, EMILY) (Entered: 04/13/2009)
93 ORDER granting Pltf's request that the date to raise disc. disputes as to deft., Michael LaTorre is extended to 4/21/09.. Signed by Magistrate Judge Patty Shwartz on 4/13/09. (DD, ) (Entered: 04/15/2009)
94 Letter from Emily B. Goldberg re: Discovery Dispute with defendant LaTorre. (Attachments: # 1 Exhibit A through E)(GOLDBERG, EMILY) (Entered: 04/21/2009)
95 Letter from Diego Navas. (NAVAS, DIEGO) (Entered: 04/24/2009)
96 ORDER ON INFORMAL APPL. that, w/respect to Doc. #12, no later than 5/8/09 the deft., City of Newark shall produce for the period 1/1/02 to 9/6/07, documents reflecting cmps. about Newark Police officers alleging improper treatment of members of the press,; etc.; denying pltf's request for an extension of the disc. end date.. Signed by Magistrate Judge Patty Shwartz on 4/24/09. (DD, ) (Entered: 04/27/2009)
97 Letter from Diego Navas attaching Table of Contents to Safir Rosetti report. (NAVAS, DIEGO) (Entered: 04/30/2009)
98 NOTICE of Appearance by EDWARD L. BAROCAS on behalf of ROBERTO LIMA (BAROCAS, EDWARD) (Entered: 05/08/2009)
99 Letter from Plaintiff's counsel seeking stay of discovery to engage in mediation (with consent of all parties). (BAROCAS, EDWARD) (Entered: 05/08/2009)
100 ORDER ON INFORMAL APPL. &SEVENTH AMENDED PRETRIAL SCHEDULING ORDER granting the request for a stay to participate in mediation, these proceedings shall be stayed from 5/11/09 through 6/15/09,( Fact Discovery due by 8/28/2009., Dispositive Motions due by 9/17/2009., Pretrial Order due by 10/20/2009., Final Pretrial Conference set for 10/26/2009 10:00 AM before Magistrate Judge Patty Shwartz.); etc.. Signed by Magistrate Judge Patty Shwartz on 5/11/09. (DD, ) (Entered: 05/12/2009)
101 Letter from Plaintiff's counsel requesting referral to mediation under LCR 301.1 and appointing former Chief Judge John W. Bissell as mediator. (BAROCAS, EDWARD) (Entered: 05/13/2009)
102 Order Appointing Mediator,"Referring case to Mediation" JOHN W. BISSELL rep by JOHN W. BISSELL appointed. All proceedings are STAYED from 5/11/09 through 7/22/09.. Signed by Magistrate Judge Patty Shwartz on 5/13/09. (DD, ) (Entered: 05/15/2009)
103 ORDER ON INFORMAL APPL. &EIGHTH AMENDED PRETRIAL SCHEDULING ORDER granting the request for a stay to participate in mediation from 5/11/09 through 7/22/09, ( Fact Discovery due by 9/30/2009., Final Pretrial Conference set for 11/19/2009 10:00 AM before Magistrate Judge Patty Shwartz., Dispositive Motions due 10/23/09, Final Pretrial Order due 11/12/09); etc.. Signed by Magistrate Judge Patty Shwartz on 5/13/09. (DD, ) (Entered: 05/15/2009)
104 Letter from Emily B. Goldberg requesting deadline for production of Monell discovery. (GOLDBERG, EMILY) (Entered: 07/08/2009)
105 Letter from Emily B. Goldberg (CORRECTED) regarding request for deadline for Monell discovery re 104 Letter. (GOLDBERG, EMILY) (Entered: 07/08/2009)
106 ORDER ON INFORMAL APPL. re: Interrogatories. Signed by Magistrate Judge Patty Shwartz on 4/24/09. (DD, ) (Entered: 07/09/2009)

Case: 2:08-cv-00426-FSH-PS As of: 02/10/2014 04:11 PM EST 14 of 19

07/09/2009
07/29/2009
07/29/2009
07/30/2009 08/03/2009 08/04/2009 08/05/2009 08/06/2009 08/11/2009 08/13/2009 08/17/2009 08/19/2009 08/27/2009 09/15/2009
09/25/2009 09/28/2009 09/30/2009 10/02/2009

107 ORDER ON INFORMAL APPL. that no action will be taken on the requests set forth in the 7/8/09; that the 5/4/09 deadline set in the 4/24/09 Order shall be extended until 7/22/09; that all deadlines shall remain in full force &effect.. Signed by Magistrate Judge Patty Shwartz on 7/8/09. (DD, ) (Entered: 07/09/2009)
108 MOTION for Leave to Appear Pro Hac Vice L. Danielle Tully, Esq. by ROBERTO LIMA. (Attachments: # 1 Certification Certification of Baher Azmy, Esq., # 2 Certification Certification of L. Danielle Tully, Esq., # 3 Text of Proposed Order Proposed Order)(AZMY, BAHER) (Entered: 07/29/2009)
Set Deadlines as to 108 MOTION for Leave to Appear Pro Hac Vice L. Danielle Tully, Esq.. Motion set for 9/8/2009 10:00 AM before Judge Faith S. Hochberg. The motion will be decided on the papers. No appearances required unless notified by the court. (nr, ) (Entered: 07/30/2009)
109 Letter from Frederick B. Polak, Esq. re 108 MOTION for Leave to Appear Pro Hac Vice L. Danielle Tully, Esq.. (POLAK, FREDERICK) (Entered: 07/30/2009)
110 Letter from Brooke Bagley, Esq.. (RICCI, RONALD) (Entered: 08/03/2009)
111 RESPONSE to Motion re 108 MOTION for Leave to Appear Pro Hac Vice L. Danielle Tully, Esq. filed by SAMUEL DEMAIO, LYDELL JAMES. (CHO, MONICA) (Entered: 08/04/2009)
112 ORDER granting 108 Motion for Leave to Appear Pro Hac Vice as to L. DANIELLE TULLY, ESQ.. Signed by Magistrate Judge Patty Shwartz on 8/5/09. (DD, ) (Entered: 08/05/2009)
113 STATUS REPORT ORDER: JOINT Status Report due by 8/20/2009. Signed by Judge Faith S. Hochberg on 8/6/09. (jgb) (Entered: 08/06/2009)
114 Notice of Request by Pro Hac Vice L. Danielle Tully, Esq. to receive Notices of Electronic Filings. ( Pro Hac Vice fee $ 150 receipt number 03120000000002667363.) (AZMY, BAHER) (Entered: 08/11/2009)
115 Letter from Plaintiff's Counsel re Adequacy of Def's Monell Production. (GOLDBERG, EMILY) (Entered: 08/13/2009)
116 ORDER ON INFORMAL APPL. re: Production of Documents.. Signed by Magistrate Judge Patty Shwartz on 8/14/09. (DD, ) (Entered: 08/17/2009)
117 STATEMENT of case status jointly filed by the parties by ROBERTO LIMA. (GOLDBERG, EMILY) (Entered: 08/19/2009)
118 Certification on behalf of NEWARK POLICE DEPARTMENT. (NAVAS, DIEGO) (Entered: 08/27/2009)
119 Substitution of Attorney − Attorney GARY S. LIPSHUTZ and GARY S. LIPSHUTZ for NEWARK POLICE DEPARTMENT, GARRY MCCARTHY, NEWARK POLICE DEPARTMENT and GARRY MCCARTHY added. Attorney DIEGO F. NAVAS terminated.. (LIPSHUTZ, GARY) (Entered: 09/15/2009)
120 Letter from Michael A. Norwick, Esq. to the Hon. Faith S. Hochberg, U.S.D.J. (Attachments: # 1 Text of Proposed Order)(NORWICK, MICHAEL) (Entered: 09/25/2009)
121 STIPULATION AND ORDER OF DISMISSAL as to defts., IMHOF, ROMESH SUKHDEO, JOHN BREWINGTON &MARQUIS CARTER, w/prejudice.. Signed by Judge Faith S. Hochberg on 9/28/09. (DD, ) (Entered: 09/28/2009)
122 Letter from Gary Lipshutz requesting discovery extension. (LIPSHUTZ, GARY) (Entered: 09/30/2009)
123 ORDER ON INFORMAL APPL. &NINTH AMENDED PRETRIAL SCHEDULING ORDER, ( Fact Discovery due by 10/30/2009., Dispositive Motions due by 11/13/2009., Pretrial Order due by 11/12/2009., Final Pretrial Conference set for 11/19/2009 10:00 AM before Magistrate Judge Patty Shwartz.); etc.. Signed by Magistrate Judge Patty Shwartz on 10/1/09. (DD, ) (Entered: 10/02/2009)

Case: 2:08-cv-00426-FSH-PS As of: 02/10/2014 04:11 PM EST 15 of 19

10/09/2009
10/13/2009 10/14/2009 10/23/2009 10/29/2009 11/02/2009 11/04/2009
11/04/2009
11/06/2009 11/06/2009 11/09/2009
11/09/2009 11/18/2009 11/18/2009 11/18/2009 11/19/2009 11/19/2009
11/19/2009

TEXT ORDER, (There shall be a telephone conference set for 10/13/2009 at 04:15 PM before Magistrate Judge Patty Shwartz. Plaintiff shall initiate the telephone call.)ORDERED by Magistrate Judge Patty Shwartz on 10/9/09. (Liriano, I) (Entered: 10/09/2009)
Minute Entry for proceedings held before Magistrate Judge Patty Shwartz: Telephone Conference held on the record on 10/13/2009. (Court Reporter/Recorder ECR.) (aa, ) (Entered: 11/02/2009)
124 ORDER ON INFORMAL APPL. re: disc. issues. Signed by Magistrate Judge Patty Shwartz on 10/13/09. (DD, ) (Entered: 10/14/2009)
125 NOTICE of Appearance by MONICA Y. CHO on behalf of SAMUEL DEMAIO, LYDELL JAMES (CHO, MONICA) (Entered: 10/23/2009)
126 Letter from Ronald J. Ricci, Esq., filed jointly with counsel for plaintiff. (RICCI, RONALD) (Entered: 10/29/2009)
Minute Entry for proceedings held before Magistrate Judge Patty Shwartz: Telephone Conference held on the record on 11/2/2009. (Court Reporter/Recorder ECR.) (aa, ) (Entered: 11/12/2009)
127 ORDER ON INFORMAL APPL. that the deposition of the Univision Cameraman shall proceed via telephone &shall be completed no later than 11/15/09; denying w/out prejudice pltf's request that the defts. pay the cost of the court reporter's attendance on 11/2/09.. Signed by Magistrate Judge Patty Shwartz on 11/2/09. (DD, ) (Entered: 11/04/2009)
128 ORDER ON INFORMAL APPL. denying request to compel pltf. to direct Geraldo Carlos to appear at a specific location for a deposition or to take steps to obtain the address not already in his possession; denying the request to extend fact disc. deadlines for the purpose of securing Mr. Carlos' deposition; that all deadlines shall remain unchanged.. Signed by Magistrate Judge Patty Shwartz on 11/2/09. (DD, ) (Entered: 11/04/2009)
129 Letter from Defendant re: defense IME scheduling. (LIPSHUTZ, GARY) (Entered: 11/06/2009)
130 Letter from Baher Azmy. (GOLDBERG, EMILY) (Entered: 11/06/2009)
131 ORDER ON INFORMAL APPLICATION: that expert depositions shall be completed no later than 12/22/09, Final Pretrial Conference set for 12/3/2009 02:00 PM before Magistrate Judge Patty Shwartz; etc. Signed by Magistrate Judge Patty Shwartz on 11/09/09. (sr, ) (Entered: 11/09/2009)
Minute Entry for proceedings held before Magistrate Judge Patty Shwartz: Telephone Conference held on 11/9/2009. (aa, ) (Entered: 11/30/2009)
132 NOTICE of Acceptance with Offer of Judgment by ROBERTO LIMA (Attachments: # 1 Certificate of Service)(GOLDBERG, EMILY) (Entered: 11/18/2009)
133 APPLICATION/PETITION for Judgment to be Entered Under Rule 68 for Roberto Lima for. (Attachments: # 1 Certificate of Service)(GOLDBERG, EMILY) (Entered: 11/18/2009)
134 Letter re 133 Application/Petition. (LIPSHUTZ, GARY) (Entered: 11/18/2009)
135 RESPONSE re 134 Letter. (GOLDBERG, EMILY) (Entered: 11/19/2009)
136 TEXT ORDER, Because the defendants' letter dated November 18, 2009 seeking "immediate relief," fails to reveal that there was an effort to confer with the plaintiff to resolve the issue before seeking court−intervention, no action will be taken on the letter. Any request for relief must include a description of efforts taken to resolve the issue and explicitly set forth the relief that is sought. ORDERED by Magistrate Judge Patty Shwartz on 11/19/09. (Liriano, I) (Entered: 11/19/2009)
137 Letter from Gary Lipshutz. (LIPSHUTZ, GARY) (Entered: 11/19/2009)

Case: 2:08-cv-00426-FSH-PS As of: 02/10/2014 04:11 PM EST 16 of 19

11/20/2009 11/23/2009
11/24/2009 11/25/2009 12/02/2009
12/16/2009 12/17/2009
12/23/2009
01/04/2010 01/04/2010
01/06/2010 01/06/2010
01/08/2010 01/08/2010 01/08/2010 01/08/2010 01/13/2010

138 Letter from Baher Azmy. (AZMY, BAHER) (Entered: 11/20/2009)
140 ORDER ADMINISTRATIVELY TERMINATING re 133 Application/Petition for Request for Judgment; that by 12/23/09, Pltf. is granted leave to re−file a Request for Judgment; that by 1/8/2010 Deft. may file a Response to Pltf's Brief; that by 1/14/2010 Pltf. may file a Reply to Deft's Response; etc.. Signed by Judge Faith S. Hochberg on 11/23/09. (DD, ) (Entered: 11/24/2009)
139 Letter from Defendants. (Attachments: # 1 Exhibit)(LIPSHUTZ, GARY) (Entered: 11/24/2009)
141 Letter from Seton Hall School of Law Center for Social Justice Baher Azmy. (AZMY, BAHER) (Entered: 11/25/2009)
142 ORDER on oral application re: briefing schedule, ( Joint Proposed Pretrial Order due by 1/5/2010 at 3:00PM., Pretrial Conference set for 1/15/2010 10:00 AM before Magistrate Judge Patty Shwartz.). Signed by Magistrate Judge Patty Shwartz on 12/1/2009. (mn, ) (Entered: 12/02/2009)
143 Letter from Baher Azmy. (AZMY, BAHER) (Entered: 12/16/2009)
144 ORDER ON INFORMAL APPL. that the pltf. shall appear for his defense examination on 12/21/09 @ 10:00 a.m.; that the responsive expert report shall be disclosed no later than 12/29/09; that all other deadlines shall remain unchanged.. Signed by Magistrate Judge Patty Shwartz on 12/17/09. (DD, ) (Entered: 12/18/2009)
145 APPLICATION/PETITION for Judgment Under FRCP 68 for by ROBERTO LIMA. (Attachments: # 1 Brief Memorandum of Law in Support of Plaintiff's Request for Judgment Under FRCP 68, # 2 Exhibit Exhibits A−C, # 3 Text of Proposed Order)(AZMY, BAHER) (Entered: 12/23/2009)
146 Letter from Counsel for Defendants, Samual DeMaio and Lydell James. (CHO, MONICA) (Entered: 01/04/2010)
147 ORDER ON INFORMAL APPL. that the request to extend the deadline to subm. the joint proposed final pretrial order is granted; that an original &one copy of the joint proposed final pretrial order shall be subm. to chmbrs. no later than 1/7/2010 @ 3:00 p.m.; Final Pretrial Cnf. shall take place on 1/15/2010 @ 10:00 a.m.. Signed by Magistrate Judge Patty Shwartz on 1/4/2010. (DD, ) (Entered: 01/05/2010)
148 Letter from Plaintiff's Counsel. (AZMY, BAHER) (Entered: 01/06/2010)
149 ORDER ON INFORMAL APPL. that the request to extend the deadline to subm. the joint proposed final pretrial order is granted; that an original &one copy of the joint proposed final pretrial order shall be subm. to chmbrs. no later than 1/12/2010 @ 3:00 p.m.; Final Pretrial Cnf. shall take place on 1/15/2010 @ 10:00 a.m.. Signed by Magistrate Judge Patty Shwartz on 1/6/2010. (DD, ) (Entered: 01/07/2010)
150 TEXT ORDER, The Final Pretrial Conference scheduled for January 15, 2010 will begin at 10:15 instead of 10:00 a.m. ORDERED by Magistrate Judge Patty Shwartz on 1/8/10. (Liriano, I) (Entered: 01/08/2010)
151 Letter from Counsel for Defendants DeMaio and James re 145 Application/Petition,. (Attachments: # 1 Affidavit Affidavit of M. Cho, Esq.)(CHO, MONICA) (Entered: 01/08/2010)
152 DECLARATION of Gary Lipshutz re 145 Application/Petition, by GARRY MCCARTHY, NEWARK POLICE DEPARTMENT. (Attachments: # 1 Brief, # 2 Exhibit Exhibit A)(LIPSHUTZ, GARY) (Entered: 01/08/2010)
153 Letter from Ronald J. Ricci, Esq. re 145 Application/Petition,. (RICCI, RONALD) (Entered: 01/08/2010)
154 ORDER that the Final Pretrial Cnf. will be postponed until further notice of the Court.. Signed by Judge Faith S. Hochberg on 1/13/2010. (DD, ) (Entered: 01/14/2010)

Case: 2:08-cv-00426-FSH-PS As of: 02/10/2014 04:11 PM EST 17 of 19

01/14/2010 01/14/2010 01/14/2010
02/22/2010
03/09/2010 03/09/2010
03/15/2010 03/22/2010 03/22/2010 03/23/2010 03/24/2010
03/24/2010 03/24/2010 03/29/2010 03/29/2010 03/29/2010 04/12/2010

155 MOTION to Withdraw as Attorney for Emily B. Goldberg by ROBERTO LIMA. (Attachments: # 1 Certificate of Service)(GOLDBERG, EMILY) (Entered: 01/14/2010)
156 APPLICATION/PETITION for by ROBERTO LIMA. (Attachments: # 1 Certificate of Service)(AZMY, BAHER) (Entered: 01/14/2010)
CLERK'S TEXT NOTE − PLEASE NOTE PLAINTIFF'S 156 REPLY MEMORANDUM TO 152 DECLARATION OF GARY LIPSHUTZ WAS IMPROPERLY FILED USING THE EVENT FOR APPLICATION/PETITION, RE 145 APPLICATION/PETITION FOR JUDGMENT UNDER FRCP 68. (dc, ) (Entered: 01/15/2010)
157 JUDGMENT in the sum of $55,000.00 in favor of ROBERTO LIMA against NEWARK POLICE DEPARTMENT, GARRY MCCARTHY, JOSE ALICEA, LYDELL JAMES, MICHAEL LATORRE, SAMUEL DEMAIO ***CIVIL CASE TERMINATED. Signed by Judge Faith S. Hochberg on 2/22/10. (DD, ) (Entered: 02/22/2010)
158 NOTICE by ROBERTO LIMA Notice of Appeal (AZMY, BAHER) (Entered: 03/09/2010)
159 NOTICE OF APPEAL as to 157 Judgment, by ROBERTO LIMA. USCA and counsel of record notified of appeal. No filing fee received. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. (ji, ) (Entered: 03/12/2010)
160 USCA Appeal Fees received: $ 455, receipt number NEW000252 re 159 Notice of Appeal (USCA), filed by ROBERTO LIMA. (ji, ) (Entered: 03/16/2010)
161 USCA Case Number 10−1743 for 159 Notice of Appeal (USCA), Notice of Appeal (USCA) filed by ROBERTO LIMA. USCA Case Manager Pamela Batts (Document Restricted − Court Only) (ca3pdb, ) (Entered: 03/22/2010)
162 NOTICE OF CROSS APPEAL as to 157 Judgment, by GARRY MCCARTHY, NEWARK POLICE DEPARTMENT. Filing fee $ 455, receipt number 0312−3021712. (LIPSHUTZ, GARY) (Entered: 03/22/2010)
163 TRANSCRIPT REQUEST by ROBERTO LIMA (AZMY, BAHER) (Entered: 03/23/2010)
CLERK'S QUALITY CONTROL MESSAGE − The Appeal Transcript Request submitted by B. AZMY on 3/23/20 did not contain a proper electronic signature (s/). PLEASE RESUBMIT THE DOCUMENT WITH THE PROPER ELECTRONIC SIGNATURE (s/ Attorney's Name.) This submission will remain on the docket unless otherwise ordered by the court. (ji, ) (Entered: 03/24/2010)
164 TRANSCRIPT REQUEST by ROBERTO LIMA (AZMY, BAHER) (Entered: 03/24/2010)
165 TRANSCRIPT REQUEST by GARRY MCCARTHY, NEWARK POLICE DEPARTMENT (LIPSHUTZ, GARY) (Entered: 03/24/2010)
166 USCA Case Number 10−1832 for 162 Notice of Cross Appeal filed by NEWARK POLICE DEPARTMENT, GARRY MCCARTHY. USCA Case Manager Pamela Batts (Document Restricted − Court Only) (ca3pdb, ) (Entered: 03/29/2010)
167 NOTICE of Appearance by MONICA Y. CHO on behalf of SAMUEL DEMAIO, LYDELL JAMES (CHO, MONICA) (Entered: 03/29/2010)
168 TRANSCRIPT REQUEST by SAMUEL DEMAIO, LYDELL JAMES (CHO, MONICA) (Entered: 03/29/2010)
169 MOTION to Stay February 22, 2010 Judgment by GARRY MCCARTHY, NEWARK POLICE DEPARTMENT. (Attachments: # 1 Brief, # 2 Declaration of Gary Lipshutz, # 3 Exhibit "A", # 4 Exhibit "B", # 5 Exhibit "C", # 6 Exhibit "D")(LIPSHUTZ, GARY) (Entered: 04/12/2010)

Case: 2:08-cv-00426-FSH-PS As of: 02/10/2014 04:11 PM EST 18 of 19

04/13/2010
05/03/2010 06/24/2010 10/20/2010 07/19/2011 07/19/2011
07/20/2011 08/04/2011 08/08/2011 08/10/2011 08/10/2011
08/11/2011 08/22/2011 09/13/2011 09/15/2011
09/16/2011 10/13/2011

Set Deadlines as to 169 MOTION to Stay February 22, 2010 Judgment. Motion set for 5/17/2010 before Judge Faith S. Hochberg. The motion will be decided on the papers. No appearances required unless notified by the court. (DD, ) (Entered: 04/13/2010)
170 MEMORANDUM in Opposition re 169 MOTION to Stay February 22, 2010 Judgment filed by ROBERTO LIMA. (Attachments: # 1 Certification Certification of Baher Azmy)(AZMY, BAHER) (Entered: 05/03/2010)
171 ORDER granting 169 Motion to Stay the Judgment Pending Appeal. Signed by Judge Faith S. Hochberg on 5/24/10. (DD, ) (Entered: 06/24/2010)
172 ORDER of USCA dismissing case pursuant to Fed. R. App P. 42(b) as to 162 Notice of Cross Appeal filed by NEWARK POLICE DEPARTMENT, GARRY MCCARTHY (ca3pdb, ) (Entered: 10/20/2010)
173 USCA JUDGMENT as to 159 Notice of Appeal (USCA), Notice of Appeal (USCA) filed by ROBERTO LIMA (ca3jk, ) (Entered: 07/19/2011)
Pursuant to Local Rule 79.4, notice is hereby given of the Appellate ruling filed on 7/19/11. In the event that the mandate or judgment provides for costs or directs a disposition other than an affirmance, the prevailing party shall prepare and submit an order implementing the mandate or judgment. (tjg, ) (Entered: 07/20/2011)
174 ORDER that should Pltf. seek to file a motion for atty's fees &costs, he is directed to do so by 8/12/11. Signed by Judge Faith S. Hochberg on 7/20/11. (DD, ) (Entered: 07/20/2011)
175 Letter from Gary Lipshutz (joint letter) requesting a settlement conference re 174 Order. (LIPSHUTZ, GARY) (Entered: 08/04/2011)
176 ORDER scheduling a settlement conference for 8/22/2011 11:00 AM before Judge Faith S. Hochberg, etc., Signed by Judge Faith S. Hochberg on 8/8/11. (dc, ) (Entered: 08/09/2011)
177 MANDATE of USCA as to 159 Notice of Appeal (USCA), Notice of Appeal (USCA) filed by ROBERTO LIMA (Attachments: # 1 Mandate Letter, # 2 Opinion)(ca3pdb, ) (Entered: 08/10/2011)
Pursuant to Local Rule 79.4, notice is hereby given of the Appellate ruling filed on 8/10/11.. In the event that the mandate or judgment provides for costs or directs a disposition other than an affirmance, the prevailing party shall prepare and submit an order implementing the mandate or judgment. (tjg, ) (Entered: 08/11/2011)
CHAMBER'S NOTATION: The settlement conference scheduled for 8/22/11 at 11:00AM will be held before Magistrate Judge Shwartz. (jgb) (Entered: 08/11/2011)
Minute Entry for proceedings held before Magistrate Judge Patty Shwartz: Settlement Conference held on 8/22/2011. (aa, ) (Entered: 09/07/2011)
178 Letter from Edward Barocas, Esq.. (Attachments: # 1 Text of Proposed Order Oder Implementing Mandate)(BAROCAS, EDWARD) (Entered: 09/13/2011)
179 MOTION for Attorney Fees by ROBERTO LIMA. (Attachments: # 1 Exhibit Exhibit A − Bill of Costs and Fees, # 2 Brief in Support of Motion, # 3 Certification of Edward Barocas with Exhibits, # 4 Certification of Baher Azmy with Exhibit, # 5 Certification of Lawrence Lustberg, # 6 Certification of Frank Corrado, # 7 Certification of Karen Sacks, # 8 Text of Proposed Order, # 9 Certificate of Service, # 10 Cover letter)(BAROCAS, EDWARD) (Entered: 09/15/2011)
Set Deadlines as to 179 MOTION for Attorney Fees. Motion set for 10/17/2011 before Judge Faith S. Hochberg. The motion will be decided on the papers. No appearances required unless notified by the court. (nic, ) (Entered: 09/16/2011)
180 NOTICE of Settlement (Letter from Gary Lipshutz) by GARRY MCCARTHY, NEWARK POLICE DEPARTMENT (LIPSHUTZ, GARY) (Entered: 10/13/2011)

Case: 2:08-cv-00426-FSH-PS As of: 02/10/2014 04:11 PM EST 19 of 19

10/24/2011 10/28/2011 10/31/2011
10/23/2012

181 ORDER terminating 179 Motion for Attorney Fees; this case shall remain Closed. Signed by Judge Faith S. Hochberg on 10/24/11. (jd, ) (Entered: 10/24/2011)
182 Letter from Edward Barocas. (BAROCAS, EDWARD) (Entered: 10/28/2011)
183 ORDER that the Court's 10/24/11 Order [Doc. #181] is modified that should settlement not be finalized by 1/30/12, Pltf. shall have the right to reinstate his Motion for Attys' Fees. Signed by Judge Faith S. Hochberg on 10/31/11. (DD, ) (Entered: 10/31/2011)
184 SATISFACTION OF JUDGMENT by ROBERTO LIMA. (BAROCAS, EDWARD) (Entered: 10/23/2012)


[CONTENT] the U.S. District Court | Massachusetts | the Newark Police Department | January 23, 2008 | 42 | 1983 | N.J.S.A. ||| Seton Hall University School of Law | ACLU | New Jersey | First Amendment | Fourth Amendment | the New Jersey State Constitution | the New Jersey Reporter | Shield Law ||| August 4, 2007 | Newark Police Department ||| December 23, 2009 | the Newark Police Department | 55,000 ||| the same day | Request to File an Application for Attorneys' Fees ||| February 22, 2010 | the District Court | Faith S. Hochberg | 55,000 ||| the Third Circuit Court of Appeals | March 9, 2010 ||| July 19, 2011 | the Court of Appeals | Thomas M. Hardiman | the District Court ||| the District Court | 42 | 1988 ||| October 13, 2011 ||| October 24, 2011 | the District Court | Faith S. Hochberg ||| 55,000 | October 23, 2012 [SUMMARY] Plaintiff, the editor of a local newspaper, filed a lawsuit in the U.S. District Court of Massachusetts against the Newark Police Department on January 23, 2008 under 42 U.S.C. § 1983 and N.J.S.A. 10:6-1. Plaintiff, represented by attorneys from Seton Hall University School of Law and the ACLU of New Jersey, sought damages, alleging that police officers violated his First Amendment right to receive and record information for later dissemination, Fourth Amendment right to be free from unlawful searches and seizures, corresponding provisions in the New Jersey State Constitution, and the New Jersey Reporter Shield Law. Specifically, plaintiff's allegations revolved around an August 4, 2007 incident in which Newark Police Department officers confiscated a photographer's camera and detained plaintiff under threat of arrest until he agreed to turn over all copies of photographs related to a murder in a rash of violence in the city described as an embarrassment to local law enforcement.

On December 23, 2009, plaintiff petitioned for judgment after agreeing with the Newark Police Department to settle the case in the amount of $55,000. On the same day, plaintiff also filed a Request to File an Application for Attorneys' Fees. In entering judgment on February 22, 2010, the District Court (Judge Faith S. Hochberg) granted the judgment in the amount of $55,000 and denied plaintiff's request for attorneys' fees on the grounds that the settlement agreement included all attorneys' fees.

Plaintiff appealed that decision to the Third Circuit Court of Appeals on March 9, 2010. On July 19, 2011, the Court of Appeals (Judge Thomas M. Hardiman) reversed the District Court and held that, since the offer of settlement did not explicitly reference the inclusion of fees, attorneys' fees were not included in the settlement. The case was remanded to the District Court to determine reasonable attorneys' fees pursuant to 42 U.S.C. § 1988.

On October 13, 2011, the parties settled the remaining attorneys' fees claim. On October 24, 2011, the District Court (Judge Faith S. Hochberg) ordered the case closed. Plaintiff entered a notice that the judgment of $55,000, and additional attorneys' fees, had been paid in full on October 23, 2012. 