TROILO et al v. MICHNER et al
OPINION filed re. 78 . Signed by Judge Renee Marie Bumb on 2/9/2016. (drw)
[NOT FOR PUBLICATION]
[DOCKET NO. 78]
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DOLORES TROILO and KOREY
SLOAN, As Administrators
of the Estate of DAVEN
SLOAN and DOLORES TROILO
in her own right and KOREY :
SLOAN in his own right,
RICHARD MICHNER, D.O.,
JOSEPH MILIO, D.O., MARY
HERRON, N.P., CATHY GERIA, :
A.P.N., COMPLETE CARE
HEALTH NETWORK d/b/a/
COMPLETE CARE WOMEN’S
CENTER, MICHNER & MILIA,
P.A., CAPE REGIONAL
HONORABLE RENÉE MARIE BUMB
CIVIL ACTION NO. 13-2012
LOCKS LAW FIRM, LLC
By: Jennifer L. Emmons, Esq.
801 N. Kings Highway
Cherry Hill, New Jersey 08034
Counsel for Plaintiffs
DRAKE LAW FIRM, P.C.
By: Steven Drake, Esq.
P.O. Box 345
29 North Shore Road
Absecon, New Jersey 08201
Counsel for Defendant Dr. Richard Michner
CRAMMER, BISHOP & O’BRIEN
By: David J. Bishop, Esq.
508 New Jersey Avenue, Suite B-3
Absecon, New Jersey 08201
Counsel for Defendant Cape Regional Medical Center
OFFICE OF THE UNITED STATES ATTORNEY
By: David V. Bober, Esq.
402 East State Street, Room 430
Trenton, New Jersey 08608
Counsel for the United States
BUMB, United States District Judge:
Presently before the Court is Defendant Cape Regional
Medical Center’s “Motion to Limit Damages” (Docket Entry #78).
The Court concludes that the Motion is most properly construed
as a motion for summary judgment filed after the dispositive
For the reasons stated herein, the Motion will
be denied because Cape Regional cannot establish good cause for
its delay in filing the motion.
Background and Procedural History
The underlying facts of this suit are recited in the
Court’s previous two summary judgment opinions found at docket
entries 63 and 65.
See Troilo v. Michner, 2015 U.S. Dist. LEXIS
154015 (D.N.J. Nov. 12, 2015); 2015 U.S. Dist. LEXIS 153687
(D.N.J. Nov. 13, 2015).
The following facts are most directly relevant to the
Plaintiffs’ complaint was filed in New Jersey state court
in January, 2012.
The case was removed to this Court in March,
In January, 2015, Magistrate Judge Donio set the
dispositive motion deadline for June 26, 2015.
On March 24,
2015-- i.e., well before the deadline-- Cape Regional filed a
Motion for Summary Judgment.
The summary judgment motion
asserted only one argument: that Cape Regional could not be held
liable for its individual doctors’ asserted malpractice on a
theory of apparent authority.
Approximately one month after the summary judgment motion
was fully briefed, on May 4, 2015, Judge Donio entered an
Amended Scheduling Order which extended the dispositive motion
deadline to July 31, 2015.
Cape Regional filed no other motions of any kind until the
instant motion was filed on January 18, 2016.
Notably, however, in two separate motions filed on
September 14, 2015, and September 18, 2015, Cape Regional’s CoDefendant, the United States (on behalf of Complete Care Women’s
Center), raised the identical issue Cape Regional now attempts
to raise: the limited liability defense under the New Jersey
Charitable Immunity Act (NJCIA) as interpreted by Kuchera v.
Jersey Shore Family Health Center, 221 N.J. 239 (2015).1
A party seeking to file a dispositive motion after the
deadline set by the applicable scheduling order must demonstrate
“good cause” for modifying the order.
Fed. R. Civ. P. 16(b)(4).
Good cause may be based upon a “showing that the delay ‘stemmed
from any mistake, excusable neglect, or any other factor which
might understandably account for failure of counsel to undertake
to comply with the Scheduling Order.’”
Merrell v. Weeks Marine,
Inc., 2013 U.S. Dist. LEXIS 107170 at *10 (D.N.J. July 31, 2013)
(quoting Fermin v. Toyota Material Handling, USA, Inc., No. 103722, 2012 U.S. Dist. LEXIS 56422 (D.N.J. April 23, 2012)).
While the instant motion’s title suggests that it is a
motion in limine, the issue raised-- limitation of liability
under the NJCIA-- requires a summary judgment analysis.
the Court’s opinion addressing this issue as it applies to the
United States clearly illustrates as much.
See Troilo, 2015
U.S. Dist. LEXIS 154015 (D.N.J. Nov. 12, 2015) (administratively
The United States obtained an extension if its dispositive
motion deadline until September 18, 2015. (See Order at Docket
#48) Cape Regional did not seek a similar extension.
terminating the United States’ motion for summary judgment and
granting Plaintiffs discovery concerning Complete Care’s status
under the NJCIA).2
As the Court observed in that previous opinion, the NJCIA
defense has been available since the outset of this lawsuit.
See Troilo, 2015 U.S. Dist. LEXIS 154015 at *7-8 (“Kuchera did
not make available a new defense that was previously
Cape Regional could have included the NJCIA
defense in its original summary judgment motion (filed in March,
2015) but it did not.
Even further, Cape Regional did not file any motion when
the United States raised the NJCIA defense in September, 2015.
Again, at this later time Cape Regional could have raised the
issue but did not.
Now, approximately four months after the United States’
motion for summary judgment, five-and-a-half months after the
dispositive motion deadline, and nine months after Cape
Regional’s only motion for summary judgment, Cape Regional has
effectively moved for summary judgment on the NJCIA issue
See also Young v. United States, 2015 U.S. Dist. LEXIS 163046
at *9 (D.N.J. Dec. 2, 2015) (Kugler, D.J.) (“[T]his Court will
treat the issue of a [NJCIA] damages cap as a motion for summary
judgment and apply the standard of Federal Rule of Civil
Procedure 56.”); cf. Walters v. YMCA, 2015 N.J. Super. Unpub.
LEXIS 2315 (Law Div. Sept. 18, 2015) (addressing, on a motion
for summary judgment, the YMCA’s status under the NJCIA).
without even acknowledging that it has raised the issue very
The Court finds no good cause to excuse Cape Regional from
the dispositive motion deadline set in the applicable scheduling
Indeed, the Court finds that deciding the motion at this
stage of the litigation, given Cape Regional’s multiple
opportunities to raise the NJCIA issue much earlier, would
This case is four years old.
After the Court denied Cape
Regional’s motion for summary judgment in November, 2015, it
appeared as if Cape Regional was ready for trial.
merits of the instant motion would substantially set-back this
The Court will not allow it.
For the above-stated reasons, Cape Regional’s Motion to
Limit Damages will be denied.
An appropriate order accompanies
s/Renée Marie Bumb
RENÉE MARIE BUMB, U.S.D.J.
Dated: February 9, 2016
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