The opinion
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
HIS ALL HOLINESS, BARTHOLOMEW J,
THE ARCHBISHOP OF
CONSTANTINOPLE, NEW ROME, AND
ECUMENICAL PATRIARCH; THE HOLY Civil Action No. 18-17195 (RK) (DEA)
METROPOLIS OF DRAMA; AND THE
MONASTERY OF THEOTOKOS MEMORANDUM OPINION
EIKOSIPHOINISSA,
Plaintiffs,
Vv.
PRINCETON UNIVERSITY
Defendant.
KIRSCH, District Judge
THIS MATTER comes before the Court upon Plaintiffs’ Motion for Reconsideration.
(ECF No. 125.) Plaintiffs move the Court to reconsider its June 22, 2023 Order, (ECF No. 123),
denying Plaintiffs’ appeal of the Honorable Douglas E. Arpert’s discovery order, (ECF No. 101),
Plaintiffs filed the subject Motion on July 6, 2023, (ECF No. 125; Pls.’ Br., ECF No. 125-1), and
Defendant filed a brief in opposition on August 4, 2023, (ECF No. 132).
The Court has carefully considered the parties’ submissions and decides the motions
without oral argument pursuant to Federal Rule of Civil Procedure 78(b) and Local Civil Rule
78.1(b). For the reasons that follow, Plaintiffs’ Motion for Reconsideration is DENIED.
L BACKGROUND
The Court discussed the relevant facts at length in its prior Opinion, (see the “Challenged
Opinion,” ECF No. 122), and only briefly recites the key facts again. Judge Arpert heard argument
and ruled from the bench on three of the parties’ discovery disputes on November 16, 2022 (see
Transcript, ECF No. 104), shortly after which he entered a written order “direct[ing] Plaintiffs to
produce Professor George Papazoglou for a deposition,” (the “Magistrate Order,” ECF No. 101).
Judge Arpert based his decision on his conclusion that “significant issues in this case center on
when Plaintiffs knew or should have known that Princeton held the Manuscripts” that Plaintiffs
seek to reclaim, and that Professor Papazoglou (the “Professor”) is the “only person with relevant
information regarding his interactions many years ago” with Plaintiffs. Ud. at 2, 5-6.) Witness
testimony and presented evidence also showed that the Professor “has worked extensively with
Plaintiffs prior to and during this action,” that he “has assisted with discovery in this case,” and
that “when Plaintiffs request his assistance, he willingly provides it.” Ud. at 6-7.)
Plaintiffs appealed to this Court, arguing that the Magistrate Order (1) improperly ordered
the deposition of a non-party pursuant to Federal Rule of Civil Procedure 30; (2) presumed the
Court’s personal jurisdiction over the Professor, a non-party Greek citizen; and (3) contravened
the prior July 23, 2020 Order of Honorable Michael A. Shipp, (ECF No. 45), granting two of the
named Plaintiffs (the “Patriarch” and the “Metropolis”) conditional dismissal from the case. (ECF
No. 105)
This Court affirmed Judge Arpert’s decision on June 22, 2023. (ECF No. 123.) The Court
agreed with Judge Arpert’s finding that “exceptional circumstances” justified ordering Plaintiffs
to produce the Professor for deposition pursuant to Federal Rule of Civil Procedure 26(b)(4)(D),
given that the Professor was the “sole source” of information “critical to Princeton’s two
affirmative defenses.” (Challenged Opinion at 7-8). The Court confirmed Judge Arpert’s
reasoning, concluding that it need not have personal jurisdiction over the Professor because the
Magistrate Order applied to Plaintiffs, requiring them to produce their non-testifying expert for
ry
discovery, and not to the Professor himself. (/d. at 8-9.) Addressing Plaintiffs’ Rule 30 objection,
the Court agreed that “Judge Arpert reasonably read Rule 26(b)(4)(D) — which permits a party to
take the deposition of another's non-testifying expert under exceptional circumstances — in
conjunction with Rule 30 — which provides the mechanism for noticing a deposition of a party’s
managing agent.” (/d. at 9.) Finally, the Court found no conflict between the Magistrate Order and
the language of Judge Shipp’s prior decision. Ud. at 10-11.)
LEGAL STANDARD
Reconsideration is an “extraordinary remedy” to be granted “sparingly.” United States v.
Coburn, No. 19-120, 2022 WL 874458, at *2 (D.N.J. Mar. 23, 2022) (quoting NZ Indus. Inc. □□□
Com. Union Ins. Co., 935 F. Supp. 513, 516 (D.N.J. 1996)). “The purpose of a motion for
reconsideration . . . is to correct manifest errors of law or fact or to present newly discovered
evidence.” Howard Hess Dental Labs. Inc. v. Dentsply Int’l, Inc., 602 F.3d 237, 251 (3d Cir. 2010)
(quotation marks omitted) (quoting Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros,
176 F.3d 669, 677 (3d Cir. 1999)). To succeed on a motion for reconsideration, a movant must
show “(1) an intervening change in the controlling law; (2) new evidence that was not available
when the court issued its order, or (3) the need to correct a clear error of law or prevent manifest
injustice.” Gibson vy. State Farm Mut. Auto. Ins. Co., 994 F.3d 182, 190 (d Cir. 2020) (citing
Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010)).
Pursuant to Local Civil Rule 7.1), a party may move for reconsideration within fourteen
(14) days of an entry of order or judgment on the original motion. In its brief, the party must “set|]
forth concisely the matter or controlling decisions which the party believes the Judge has
overlooked.” See L. Civ. R. 7.1). “The word ‘overlooked’ is the operative term in the Rule.”
Bowers vy. Nat'l Collegiate Athletic Ass'n, 130 F. Supp. 2d 610, 612 (D.N.J. 2001) (citing Allyn Z.
Lite, New Jersey Federal Practice Rules 30 (2001)). A motion for reconsideration does not entitle
a party to a second bite at the apple, and reconsideration is inappropriate when a party merely
disagrees with a court’s ruling or when a party simply wishes to re-argue its original motion. Sch.
Specialty, Inc. v. Ferrentino, No. 14-4507, 2015 WL 4602995, *2—3 (D.N.J. July 30, 2015); see
also Florham Park Chevron, Inc. v. Chevron U.S.A., 680 F. Supp. 159, 162 (D.N.J. 1988).
Wl. DISCUSSION
Plaintiffs seek the Court to reconsider the Challenged Opinion and quash the notice of the
Professor’s deposition. (Pls.’ Br. at 2.) In support, Plaintiffs first argue that the question of whether
the Professor was a “managing agent” under Rule 30 was not raised by the Magistrate Order or
addressed by the parties on appeal. (/d. at 7, 11.) Second, Plaintiffs contend that the Professor does
not qualify as their managing agent under Rule 30. Ud. at 8-9.) Third, Plaintiffs contend that the
Court’s discussion of their degree of control over the Professor is irrelevant to the Rule 30 analysis.
(id. at 12-14.) Finally, Plaintiffs repeat their contention that the Magistrate Order ran counter to
the prior July 23, 2020 Order in this case. (/d. at 15-16.)
A. Order to Produce Professor Papazoglou
Plaintiffs do not point to either an intervening change in controlling law or new evidence
that has become available since the Challenged Order issued. Therefore, the Court considers only
whether Plaintiffs have established a “need to correct a clear error of law or prevent manifest
injustice.” Gibson, 994 F.3d at 190 (citation omitted).
At the outset, Plaintiffs do not contest the Court’s affirmance of Judge Arpert’s
determination that “exceptional circumstances” under Rule 26(b)(4)(D)(ii) justified permitting the
Professor’s deposition. (Challenged Opinion at 7-8). Judge Arpert’s careful review of the evidence
and testimony led to the conclusion that the Professor holds unique knowledge critical to
Defendant’s case and that Plaintiffs have relied on the Professor’s unique knowledge for this
litigation. (Magistrate Order at 2-3, 6.) Judge Arpert further determined that the evidence
established Plaintiffs’ control over the Professor for the purposes of the litigation, based on the
Professor’s long history consulting for Plaintiffs, assisting them in litigation, and making himself
available on Plaintiffs’ request. (id. at 6-7.) Thus, Judge Arpert reasonably concluded that
Plaintiffs could produce the Professor for deposition. (/d.) In seeking reconsideration, Plaintiffs
overlook the fact that Judge Arpert’s Rule 26 analysis, along with the unique factual and procedural
posture of the case, was essential to his determination that Plaintiffs could (and must) produce the
Professor for deposition.'
Although Judge Arpert’s written Order did not explicitly address Rule 30 and the question
of Plaintiffs’ ability to produce the Professor as their agent in the litigation, the Court found that
these issues were presented to Judge Arpert and implicitly decided in the Magistrate Order. The
challenged notice of deposition was issued pursuant to Rule 30 and identified the Professor as the
“Plaintiffs’ agent.” (Notice of Deposition, available as Pls.’ Letter Ex. A, ECF No. 74-1 at 2.) At
oral argument before Judge Arpert, Plaintiffs’ counsel focused the Court on Rule 30. (See
Transcript, ECF No. 104 at 22:16-18 (“|The issue here, the narrow issue here is whether a Rule
30 notice of deposition should be quashed under the circumstances.”); fd. at 7:18-19 (“We don’t
control [the Professor], we can’t produce him.”).) Thus, the Court rejects Plaintiffs’ argument that
they did not have an opportunity to address the question of whether the Professor was the managing
' The Court notes that in their brief in support of reconsideration, Plaintiffs repeat their argument that Judge
Arpert and this Court found that “Professor Papazoglou can be compelled to deposition... .” (Pls.’ Br. at
1.) Plaintiffs raised an identical argument during the oral argument before Judge Arpert and on appeal of
Judge Arpert’s decision. (Transcript, ECF No. 104 at 26:5—9; ECF No. 105 at 10-13.) Judge Arpert and
this Court both addressed this contention, noting that the Magistrate Order specifically applied to Plaintiffs.
(Transcript, ECF No. 104 at 26:19-24; Challenged Opinion at 8). Judge Arpert issued no order that bound
Professor Papazoglou, such that the Court needed personal jurisdiction over the Professor for the order to
be valid.
&
agent for the purposes of this litigation under Rule 30, (Pls.’ Br. at 7), and that the question was
not properly before the Court on appeal, (Pls.’ Br. at 11).
Turning to Plaintiffs’ Rule 30 analysis, Plaintiffs do not offer any new argument or case
showing that the Court’s analysis was clear error. Plaintiffs rely primarily on three cases. In its
appeal from the Magistrate Order, Plaintiffs previously cited and relied upon two of the cases it
again cites to argue that the Professor was not their managing agent for purposes of the
litigation.(Pls.’ Br. on Appeal, ECF No. 105-1 at 8-11 (discussing Jn re: Benicar (Olmesartan)
Prod. Liab. Litig., No. 15-2606, 2016 WL 5817262 (D.N.J. Oct. 4, 2016) and United States v.
Afram Lines (USA), Ltd, 159 F.R.D. 408 (S.D.N.Y. 1994)).) The Court considered and
distinguished these cases in the Challenged Opinion, concluding that they did not “involve
analogous facts or circumstances, particularly regarding a finding of ‘exceptional circumstances’
authorizing the expert’s deposition under Rule 26(b)(4)(D).” (Challenged Opinion at 10.)
The one case Plaintiffs now cite for the first time on their motion for reconsideration, Jn re
Valsartan, Losartan, & Irbesartan Prod. Liab. Litig., No. 19-2875, 2021 WL 6111768 (D.N.J.
Mar. 22, 2021), does not evidence a “clear error of law” in affirming the Magistrate Order. As the
Special Master noted in Valsartan, an individual’s status as a managing agent depended “largely
on functions, responsibilities and authority of the individual involved respecting the subject
matters of the litigation.” Id. at *2 (quoting Philadelphia Indem. Ins. Co. v. Fed. Ins. Co.,
215 F.R.D. 492, 494 (E.D. Pa. 2003)) (emphasis added). In Valsartan, one witness in fact was
found to be a managing agent because “Plaintiffs have presented evidence that [she] exercises her
discretion and judgment in a number of corporate matters, and has done so on a number of issues
relevant to this litigation.” /d. at *3.
Cc
Plaintiffs contend that their degree of control over the Professor is irrelevant to the analysis
under Rule 30. Ud. at 12-14.) Plaintiffs solely rely on Jn re: Benicar (Olmesartan), 2016 WL
5817262 for this position, arguing that the Magistrate Judge’s decision in that case proves that the
Challenged Opinion is “contrary to the applicable law in this District.” (Pls.’ Br. at 12-14.)
However, as noted above, Plaintiffs raised Benicar in their brief appealing Judge Arpert’s order.
(Pls.’ Br. on Appeal, ECF No. 105-1 at 9-11, 13). Plaintiffs’ recourse to a single decision, which
this Court already considered and found distinguishable, does not support their contention that
Judge Arpert’s decision was “contrary to the applicable law in the District” or meet their burden
on reconsideration to establish a “clear error of law.” Rather, Plaintiffs’ objection appears to turn
on a factual disagreement with their level of control over the Professor. However, Judge Arpert
reviewed the available evidence and concluded that Plaintiffs’ relationship with the Professor
would enable them to produce him for deposition. On appeal, the Court showed appropriate
deference to Judge Arpert’s factual findings and found that this fact determination was not “clearly
erroneous.” (ECF No, 122 at 5, 10 (quoting Marks v. Struble, 347 F. Supp. 2d 136, 149 (D.N.J.
2004)).)
Plaintiffs may disagree with Judge Arpert’s determination and the Court’s affirmance, but
this does not meet the high bar for reconsideration. The Court finds no “manifest injustice”
resulting from Judge Arpert’s determination that the Professor’s integral role in preparing
Plaintiffs’ case evidenced their control sufficient to justify requiring them to produce the Professor
for deposition. To the contrary, the Court notes that the longer the deposition of the Professor is
delayed, the greater the likelihood that the Professor’s unique knowledge about this case, which
will likely turn on decades-old events, may disappear.
B. Judge Shipp’s Decision
Plaintiffs have likewise not established that reconsideration is appropriate based on their
perceived conflict between the Magistrate Order and Judge Shipp’s July 23, 2020 Order.
Plaintiffs contend that because Judge Shipp ordered that two of their members — the
Metropolis and the Patriarch —- would be dismissed after they complied with their outstanding
discovery obligations, those Plaintiffs are not subject to further orders in the case. (Pls. Br. at 15—
16.) The Court neither misread nor misrepresented Judge Shipp’s Order. The Order states: “The
Patriarch and the Metropolis shall be dismissed from this matter on the condition that they respond
to all outstanding discovery requests served upon them prior to December 13, 2019.” (ECF No. 45
at 2). Plaintiffs urge an interpretation of the Court’s prior order to mean that the Patriarch and the
Metropolis would have no involvement in the suit from that point forward, except to the extent
that they had to respond to then-unanswered discovery requests. Rather, the Court does not read
Judge Shipp’s Order so narrowly. Rather, the Court finds that the Patriarch and the Metropolis are
parties to the suit, subject to the Court’s continued jurisdiction, until they respond to their
outstanding pre-date discovery requests. In other words, the Court ordered that the Patriarch and
the Metropolis will be dismissed from the action once they comply with their outstanding
discovery obligations. Because Plaintiffs concede that there remain “uncompleted discovery
requests served on the Patriarch and the Metropolis” as of the cutoff date set in the July 23, 2020
Order, (Pls.’ Br. at 2—3), they remain subject to the Court’s jurisdiction.
°
IV. CONCLUSION
For the reasons stated herein, Plaintiffs’ Motion for Reconsideration is DENIED. An
appropriate Order follows. of ;
Roper KIRSCH
UNITED STATES DISTRICT JUDGE
Dated: September 26, 2023
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