CARUSO v. BALLY'S ATLANTIC CITY

Filing 59

MEMORANDUM OPINION. Signed by Judge Jerome B. Simandle on 3/6/2019. (tf, )

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

NICOLE CARUSO,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
v.

Civil No. 16-5021 (JBS-KMW)

BALLY’S ATLANTIC CITY,
MEMORANDUM OPINION
Defendant.

SIMANDLE, District Judge:
1.

This matter comes before the Court by way of Defendant

Bally’s Atlantic City’s “Motion to Bar Statement and Testimony of
Jason/David Chandler and/or Hold in Contempt of Court.” (Def.’s
Mot. [Docket Item 42].) Counsel for Plaintiff Nicole Caruso filed
a response to the motion, which did not indicate opposition to the
motion but which purported to “reserve the right to move to reopen
discovery

for

the

limited

purpose

of

taking

[Jason/David

Chandler’s] deposition in the event we are able to locate and
contact him.” (Letter [Docket Item 54].) On the other hand,
Plaintiff’s counsel’s letter also indicated that Plaintiff does
not intend to introduce Mr. Chandler’s “statement” into evidence.
(Id.)
2.

Additionally, on January 28, 2019, the Court entered the

following Text Order on the docket:
The Court is in receipt of a letter from
Plaintiff[’]s
counsel
[Docket
Item
54]

describing
Plaintiff[’]s
position
with
respect to Defendant[’]s motion to bar the
statement and testimony of Jason Chandler
[Docket Item 42]. In light of Plaintiff[’]s
position, the parties shall meet and confer,
in order to draft a stipulation that would
resolve the pending motion [Docket Item 42].
Such stipulation, or a letter describing the
parties[’] ongoing disagreements, shall be
filed on the docket by no later than February
4, 2019.
(Text Order [Docket Item 55].) The following day, January 29, 2019,
each party filed a separate letter on the docket, neither of which
complied with the Court’s Text Order, supra. (Letter [Docket Item
56]; Letter [Docket Item 57].) Neither letter indicated that the
parties had met and conferred. (Id.) Neither letter indicated that
the parties had attempted to draft a stipulation that would have
resolved the motion. (Id.)
3.

The Court has considered the submissions and for the

reasons discussed below, Defendant’s motion [Docket Item 42] will
be granted in part and denied in part.
4.

During Defendant’s deposition of Plaintiff, Plaintiff

indicated that she received a typed, unsigned, undated “statement”
from Mr. Chandler, her manager during the time that she was
employed by Defendant. (Def.’s Br. [Docket Item 42-1], 2; Def.’s
Ex. A [Docket Item 42-3].) Plaintiff has also named Mr. Chandler
as a potential witness in this case. (Def.’s Br. [Docket Item 421], 2.) Defendant sought to depose Mr. Chandler and subpoenaed him
twice, locating and personally serving him in accordance with Rule

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45, Fed. R. Civ. P., though he has failed to appear both times and
he has failed to provide any justification for so doing. (Id. at
3-4.)
5.

Defendant argues that Mr. Chandler’s statements and

testimony should be barred or that he should be held in contempt
of

court

subpoenaed

because

he

has

depositions

failed

and

he

to
has

appear
failed

for
to

two

separate,

provide

any

justification for so doing. (Id. at 3-4.) Additionally, Defendant
notes that attempts to communicate with Mr. Chandler since he
failed to appear “have been unsuccessful.” (Id. at 4.) Defendant
concludes its motion by stating that Defendant “is entitled to an
order barring [Mr.] Chandler’s “statement” and him from providing
any testimony in this matter and respectfully asks this Honorable
Court to enter same.” (Id.) The Court interprets this statement to
indicate that Defendant’s primary objective in filing the present
motion is to prevent Mr. Chandler from testifying in this case and
to prevent the admission of his “statement” as evidence, and that
Defendant’s request for the Court to hold Mr. Chandler in contempt
of court for his failures to appear for two subpoenaed depositions
was requested only as a secondary, alternative form of relief.1

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As the Court shall grant Defendant’s primary request for relief,
barring any “statement” or testimony from Mr. Chandler from being
entered as evidence at trial, the Court shall deem Defendant’s
secondary request for relief, holding Mr. Chandler in contempt of
court, to be moot. Therefore, the Court shall deny the portion of
Defendant’s motion seeking to hold Mr. Chandler in contempt. Civil
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6.

Plaintiff’s response to the present motion indicated

that “Plaintiff does not intend to introduce the statement of Jason
Chandler into evidence at this time, but simply wishes to reserve
the right to move to reopen discovery for the limited purpose of
taking his deposition in the event we are able to locate and
contact him.” (Letter [Docket Item 54.) The Court interprets this
statement

as

an

indication

that

Plaintiff

does

not

oppose

Defendant’s motion, but also that Plaintiff separately seeks leave
to move to reopen discovery for the purpose of deposing Mr.
Chandler, in the event that he can be located in the future.
7.

Regarding barring the testimony of witnesses at trial,

for failure to comply with relevant discovery orders, the Third
Circuit has stated that
[t]rial judges are afforded wide discretion in
making rulings on the admissibility of
evidence. See Hurley v. Atlantic City Police
Dept., 174 F.3d 95, 110 (3d Cir. 1999)
[(citing FED. R. EVID. 403)]; Fuentes v. Reilly,
590 F.2d 509, 511 (3d Cir. 1979). We review
admissibility determinations, and exclusion
of evidence for an abuse of discretion. “[T]he
exclusion of critical evidence is an ‘extreme’
sanction, not normally to be imposed absent a
showing of willful deception or ‘flagrant
disregard’ of a court order by the proponent
of the evidence.” Meyers [v. Pennypack Woods
Home Ownership Ass’n], 559 F.2d [894,] 904
[(3d Cir. 1977), reversed on other grounds].
In Konstantopoulos v. Westvaco Corp., 112 F.3d
contempt (which may involve arrest and detention until a witness
agrees to appear and testify) is regarded as a remedy of last
resort and is unnecessary given the resolution of Defendant’s
alternative ground of relief.
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710 (3rd Cir.1997), we relied on the factors
in Meyers, 559 F.2d at 904–905, in considering
whether a district court had abused its
discretion in excluding testimony of an expert
witness as a discovery sanction. Along with
the importance of the excluded testimony, the
Meyers factors include (1) the prejudice or
surprise in fact of the party against whom the
excluded witnesses would have testified; (2)
the ability of that party to cure the
prejudice; (3) the extent to which waiver of
the rule against calling unlisted witnesses
would disrupt the orderly and efficient trial
of the case or other cases in the court; and
(4) bad faith or wilfulness in failing to
comply with the district court’s order.
Quinn v. Consol. Freightways Corp. of Delaware, 283 F.3d 572, 576–
77 (3d Cir. 2002).
8.

In this case, Plaintiff does not oppose Defendant’s

request to bar admission of Mr. Chandler’s “statement” or his
testimony, as discussed, supra. As no party opposes Defendant’s
request, and as Mr. Chandler has been shown to have failed to
appear at two separate, subpoenaed depositions, which would lead
to an unfair degree of surprise for Defendant were Mr. Chandler
later allowed to testify without having been first deposed, the
Court shall grant Defendant’s motion [Docket Item 42], insofar as
it seeks to bar admission of Mr. Chandler’s “statement” or his
testimony at trial.
9.

With

regards

to

Plaintiff’s

request

that

any

order

barring Mr. Chandler’s testimony be made without prejudice to their
right to seek leave to reopen discovery at a later date, for the

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purpose of deposing Mr. Chandler, in the event that he is later
located, the Court interprets the request as one to enlarge the
time for pretrial factual discovery in this case. Pretrial factual
discovery

in

this

case

expired

on

July

20,

2018.

(Amended

Scheduling Order [Docket Item 41], June 11, 2018, 1.) Magistrate
Judge Williams, in setting the expiration date of pretrial factual
discovery, further ordered that
[a]ny application for an extension of time
beyond the deadlines set herein shall be made
in writing to the undersigned and served upon
all counsel prior to expiration of the period
sought to be extended, and shall disclose in
the application all such extensions previously
obtained, the precise reasons necessitating
the application showing good cause under FED.
R. CIV. P. 16(b), and whether adversary counsel
agree with the application. The schedule set
herein will not be extended unless good cause
is shown.
(Id. at 1-2.) However, Plaintiff’s request for leave to reopen
discovery was made in a letter dated January 25, 2019, more than
six months after pretrial factual discovery, the letter does not
describe any efforts that Plaintiff has made to contact Mr.
Chandler or to make him available for deposition, nor does it
present good cause under Rule 16(b), Fed. R. Civ. P., for the
reopening of pretrial factual discovery six months after its
expiration. Defendant has exercised due diligence to obtain Mr.
Chandler’s testimony on two occasions, and there is certainly no
indication that Defendant has somehow procured Mr. Chandler’s

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disobedience to its own subpoenas. For those reasons, Plaintiff’s
request for leave to reopen discovery in order to depose Mr.
Chandler, in the event that he is located, will be denied.
10.

For the foregoing reasons, the Defendant’s “Motion to

Bar Statement and Testimony of Jason/David Chandler and/or Hold in
Contempt of Court,” [Docket Item 42], will be granted insofar as
it seeks to bar admission of Mr. Chandler’s “statement” or his
testimony at trial. The remainder of Defendant’s present motion
seeking

to

hold

Mr.

Chandler

in

contempt

will

be

denied.

Plaintiff’s request for leave to reopen discovery in order to
depose Mr. Chandler, in the event that he is located, will be
denied. An accompanying Order will follow.

March 6, 2019
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

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