NELSON v. HARRAH'S ATLANTIC CITY OPERATING COMPANY, LLC et al

Filing 49

MEMORANDUM OPINION AND ORDER denying 40 Motion for Discovery without prejudice. Signed by Magistrate Judge Ann Marie Donio on 8/1/2022. (alb, )

[D.I. 40]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
ERICKA NELSON,

Civil No. 20-18602 (JHR/AMD)

Plaintiff,
v.
HARRAH’S ATLANTIC CITY
OPERATING COMPANY, LLC, et
al.,
Defendants.

MEMORANDUM OPINION
AND ORDER

APPEARANCES:
Michael Raymond Paglione, Esq.
Szaferman, Lakind, Blumstein, Blader & Lehmann, PC
101 Grovers Mill Road
Lawrenceville, NJ 08648
Counsel for Plaintiff
Michelle Barbara Cappuccio, Esq.
Reilly McDevitt & Henrich, P.C.
3 Executive Campus
Suite 310
Cherry Hill, NJ 08002
Counsel for Defendant
DONIO, Magistrate Judge:
This matter comes before the Court by way of motion [D.I.
40] of Plaintiff, Ericka Nelson, to reopen discovery for fortyfive days to permit the deposition of an individual with knowledge
of a surveillance video produced by Defendant, Harrah’s Atlantic

City Operating Company, LLC d/b/a Harrah’s Resort Atlantic City.
The Court has considered the submissions of the parties and decides
this matter pursuant to Federal Rule of Civil Procedure 78(b). For
the reasons that follow, Plaintiff’s motion to reopen discovery is
denied without prejudice.
By way of brief background, Plaintiff instituted this
litigation by filing a complaint in the Superior Court of New
Jersey, Law Division, Burlington County on or about February 18,
2020. (Notice of Removal, Ex. A [D.I. 1-1].) Plaintiff alleges
that she slipped on a wet substance at Defendant’s premises,
causing Plaintiff to sustain permanent physical injuries. (Id. at
p. 2, ¶ 4.) Defendant removed the case to this Court on December
9, 2020. (Notice of Removal [D.I. 1].) The Court conducted a
scheduling conference on February 5, 2021 and entered a Scheduling
Order on the same date, which set May 3, 2021 as the deadline to
complete fact discovery. (Scheduling Order [D.I. 7], Feb. 5, 2021,
p. 2, ¶ 6.) Thereafter, Defendant filed a motion for summary
judgment on February 11, 2022 asserting that there is no evidence
that Defendant had notice of the wet condition and, consequently,
Plaintiff cannot demonstrate that Defendant breached a duty of
care. (See Br. in Supp. of Mot. for Summ. J. [D.I. 30], pp. 6-8.)
The summary judgment motion is pending before the District Judge.
On March 10, 2022, Lawrence E. Popp, Esq., Plaintiff’s
original counsel, advised the Court that his firm, Gaylord & Popp,
2

had merged with another firm, Szaferman Lakind, while Mr. Popp
joined a different firm. (Letter from Lawrence E. Popp, Esq. [D.I.
31], Mar. 10, 2022.) Mr. Popp further stated that he was awaiting
his client’s decision as to whether the Szaferman Lakind firm would
handle the case or whether Mr. Popp’s new firm would handle the
matter. (Id.) By letter dated April 18, 2022, Michael R. Paglione,
Esq.

advised

the

Court

that

Plaintiff

decided

to

retain

the

Szaferman Lakind firm, and a substitution of counsel was thereafter
filed on April 14, 2022 to reflect this change in representation.
(Letter from Michael R. Paglione, Esq. [D.I. 36], Apr. 18, 2022.)
Shortly thereafter, new counsel filed opposition to the
summary judgment motion, asserting that there is a material issue
of fact as to whether Defendant had actual or constructive notice
of the substance on the floor. (Pl.’s Legal Mem. in Opp. to Def.’s
Mot. for Summ. J. [D.I. 38-1], pp. 2-3.) Specifically, Plaintiff
asserts that surveillance video shows a person vomit and slip on
the floor at least fifteen minutes before Plaintiff fell in the
same location, and that the camera movements, including zooming
and turning, demonstrate that Defendant’s agents or employees
operated the camera in such a way as to record the individual
walking through the hallway. (Id. at pp. 1-2, 4.) Plaintiff argues
that the surveillance video thus demonstrates that the camera
operator’s “intentional and manually-manipulated movements” raise

3

a question of fact as to whether Defendant had notice of the
allegedly hazardous condition. (Id. at pp. 3-4.)
After opposing the summary judgment motion, Plaintiff
through new counsel filed the instant motion to reopen discovery
for forty-five days to allow Plaintiff to depose “someone with
knowledge of how the video surveillance (and the camera movements
shown on the video surveillance) was made.” (Br. in Supp. of Pl.’s
Mot. to Re-Open Discovery [D.I. 40-2], p. 2.) In support, Plaintiff
argues that there is good cause to reopen discovery in light of
the substitution of counsel and new counsel’s prompt filing of the
instant motion. (Id. at p. 3.) In addition, Plaintiff asserts that
the discovery she seeks is “limited,” “targeted” and “specific to
critical evidence.” (Id.) Plaintiff further asserts that “[t]he
question of how the video surveillance was made, and whether
Defendant’s employees witnessed what was being recorded as it was
being

recorded,

can

be

answered

directly

through

limited

deposition testimony.” (Id. at p. 4.) Plaintiff also represents
that the deposition will take less than one day. (Id.)
In opposition to the motion, Defendant asserts that
Plaintiff cannot satisfy the good cause standard of Federal Rule
of Civil Procedure 16(b) to reopen discovery at this time. (Def.’s
Opp. to Pl.’s Mot. to Reopen Discovery [D.I. 41], pp. 2-3.)
Defendant

represents

that

Plaintiff

was

sent

a

copy

of

the

surveillance video on February 5, 2021, yet Plaintiff did not seek
4

additional discovery within the discovery period and, moreover,
waited 433 days before filing the instant motion seeking leave to
take additional discovery. (Id.) Defendant contends that although
Plaintiff recently retained new counsel, Plaintiff was represented
by counsel throughout this matter and her decision to retain new
counsel after the close of fact discovery and after the filing of
a summary judgment motion on November 3, 2021 does not constitute
good cause to reopen discovery at this time. (Id. at pp. 1-2.)
Defendant further argues that “[t]he fact that new counsel has a
new strategy to litigate the case, does not change the fact that
the discovery has been available to Plaintiff for an extended
period of time.” (Id. at p. 2.) Defendant also asserts that it
will be prejudiced if discovery is reopened because Plaintiff has
now had the opportunity to review Defendant’s summary judgment
motion and is seeking discovery specifically targeted to overcome
the arguments raised by Defendant. (Id. at p. 3.)
Plaintiff filed a reply brief in which she contends that
the deposition of the camera operator is necessary in light of
Defendant’s recently served responses to Requests for Admission.
Plaintiff served Requests for Admission on April 22, 2022, to which
Defendant served responses under cover letter dated May 19, 2022.
(Pl.’s

Reply

Mem.

in

Supp.

of

Mot.

to

Re-Open

Discovery

(hereinafter, “Pl.’s Reply Br.”) [D.I. 47], p. 1, Ex. A.) Defendant
provided two responses that Plaintiff now contends warrant further
5

inquiry. Defendant admitted that the camera movements shown on the
surveillance video “were caused to happen by a person(s) operating
all or part of the Video Recording Device.” (Pl.’s Reply Br. at p.
2.) Defendant, however, would not admit that “person(s) employed
by, or on behalf of, Defendant viewed the Video Recording . . .
as the Video Recording was being made.” (Id.) Rather, with respect
to this Request for Admission, Defendant responded “Denied as
stated,” which Plaintiff contends is not an appropriate response
under Federal Rule of Civil Procedure 36 and “compounds the need
for a deposition regarding how the surveillance video was made.”
(Id. at pp. 2-3.)
The Court begins its analysis of the motion by noting a
number of basic tenets applicable to modifications of scheduling
orders. Scheduling orders are governed by Rule 16 of the Federal
Rules

of

Civil

Procedure

which

“provides

courts

with

the

‘‘discretion to manage the schedule of litigation[.]’’” Faiella v.
Sunbelt Rentals, Inc., -- F.R.D. --, No. 18-11383, 2022 WL 827146,
at *2 (D.N.J. Mar. 18, 2022) (quoting Carroll v. Delaware River
Port Auth., No. 13-2833, 2015 WL 12819181, at *3 (D.N.J. Mar. 31,
2015)). Under Rule 16(b)(4), a schedule “‘may be modified only for
good cause and with the judge’s consent.’” Id. (quoting FED. R.
CIV. P. 16(b)(4)). Good cause “is established when ‘the party
seeking the extension’ can ‘show that the deadlines set forth in
the

scheduling

order

‘cannot

reasonably
6

be

met

despite

the

diligence of the party seeking the extension.’’” Id. (quoting
Williams v. Sullivan, No. 08-1210, 2011 WL 2119095, at *4 (D.N.J.
May 20, 2011)). Good cause may also be established if the movant
shows that the “‘inability to comply with a scheduling order is
‘due to any mistake, excusable neglect or any other factor which
might understandably account for failure of counsel to undertake
to comply with the Scheduling Order.’’” Id. (quoting Williams,
2011 WL 2119095, at *4). In addition, the “[l]ack of prejudice to
the non-moving party, however, does not equate to a showing of
good

cause.”

Williams

v.

Murray,

Inc.,

No.

12-2122,

2015

WL

5023073, at *4 (D.N.J. Aug. 24, 2015) (citing Marlowe Patent
Holdings LLC v. Dice Elecs., LLC, 293 F.R.D. 688, 701 (D.N.J.
2013)). Finally, these tenets reflect the overarching concept that
“scheduling orders are at the heart of case management. If they
can be disregarded without a specific showing of good cause, their
utility will be severely impaired.” Koplove v. Ford Motor Co., 795
F.2d 15, 18 (3d Cir. 1986).
In

this

case,

Plaintiff

attempts

to

utilize

the

retention of new counsel to demonstrate good cause to support her
request

to

reopen

discovery.

However,

numerous

courts

have

rejected the argument that retention of new counsel constitutes
good cause under Rule 16 to reopen discovery. For example, in
Turner v. Schering-Plough Corp., 901 F.2d 335, 341 n.4 (3d Cir.
1990), the Third Circuit found no abuse of discretion in the
7

district court’s decision to not reopen discovery, stating that
the documents at issue “could have been discovered by [] prior
counsel during the nearly year long period in which discovery in
this case was open” which “does not come close to a showing
requisite

to

persuade

us

that

an

abuse

of

discretion

was

committed.” 1 In Turner, the Third Circuit expressly cited to the
basic principle noted above that “Rule 16 ‘scheduling orders are
at the heart of case management,’ and if they can be flouted every
time counsel determines she made a tactical error in limiting
discovery ‘their utility will be severely impaired.’” Id. (quoting
Koplove, 795 F.2d at 18). Similarly, in Williams v. Murray, Inc.,
the court denied a motion to reopen discovery where the plaintiffs
had retained new counsel twenty-two months after the close of
In Turner, the district court granted summary judgment in favor
of the defendant with respect to all of the claims asserted by the
plaintiff, including claims for alleged violations of the Employee
Retirement Income Security Act, 29 U.S.C. § 1001 et seq., the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621–634,
New Jersey's Law Against Discrimination (“NJLAD”), N.J.S.A. 10:5–
1 et seq., and state law wrongful discharge claims. Turner, 901
F.2d at 337. The plaintiff in Turner argued on appeal, inter alia,
that the district court precluded the plaintiff from obtaining the
discovery he needed to adequately oppose the motion for summary
judgment and that the district court’s decision must be reversed,
even if summary judgment would have been appropriate on the record
before the court, given the district court’s failure to allow the
plaintiff to obtain additional discovery. Id. at 341 n.4. The Third
Circuit in Turner rejected the plaintiff’s arguments on this issue,
finding that the district court did not abuse its discretion in
denying the plaintiff’s request to obtain additional discovery
outside of the discovery period, and further affirming the grant
of summary judgment on all of the plaintiff’s claims other than
his claims under the ADEA and NJLAD. Id. at p. 341 n.4, 348.
1

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discovery and after summary judgment motions had been decided.
Williams, 2015 WL 5023073, at *1. Although the court in Williams
had ruled that the plaintiffs did not need an expert witness to
survive a summary judgment motion, Williams v. Murray, No. 122122, 2014 WL 3783878, at *3 (D.N.J. July 31, 2014), the plaintiffs
retained new counsel who decided to use an expert witness at trial
and thus moved to reopen discovery to procure expert reports.
Williams, 2015 WL 5023073, at *4-5. The Williams court found that
the plaintiffs failed to demonstrate good cause to modify the
scheduling order, noting that the plaintiffs were attempting to
change their litigation strategy on the eve of trial. Id. at *5.
In so finding, the court in Williams stated that “‘[e]x post facto
disagreement with strategic decisions of counsel, made in the
course

of

litigation,

does

not

constitute

good

cause.’”

Id.

(quoting Marlowe, 293 F.R.D. at 701); see also DropZoneMS, LLC v.
Cockayne, No. 16-2348, 2019 WL 2070417, at *5 (D. Or. Feb. 27)
(“[R]etaining new counsel does not provide the opportunity to restrategize a lawsuit.”), report and recommendation adopted, 2019
WL 2357361 (D. Or. May 31, 2019); Heggen v. Maxim Healthcare
Servs., Inc., No. 16-440, 2018 WL 348461, at *2 (N.D. Ind. Jan.
10, 2018)(“change in counsel [] does not constitute good cause to
reopen the discovery period” as “‘[t]here is no principle that
each

new

attorney

for

a

litigant

must

have

an

independent

opportunity to conduct discovery’”)(quoting Carson v. Bethlehem
9

Steel Corp., 82 F.3d 157, 159 (7th Cir. 1996)); Zone Sports Ctr.,
LLC v. Rodriguez, No. 11-622, 2016 WL 224093, at *5 (E.D. Cal.
Jan. 19, 2016) (“An eleventh-hour case evaluation by newly retained
counsel . . . does not demonstrate diligence during the course of
the litigation.”).
Having

reviewed

the

submissions,

the

Court

here

concludes that Plaintiff in this case similarly fails to establish
the requisite good cause under Rule 16(b)(4) to reopen discovery
at this time. This is not a case where Plaintiff only recently
learned of the existence of surveillance video or that there has
been spoliation of evidence, as the video was produced to Plaintiff
well within the discovery period. Plaintiff makes no showing that
the deposition of the camera operator could not have been taken
before fact discovery closed on May 3, 2021. While Plaintiff has
retained new counsel who believes that additional discovery is
required with respect to the video, as noted above new counsel’s
evaluation of the evidence does not constitute good cause to reopen
discovery at this time. See Petter Invs., Inc. v. Hydro Eng'g,
Inc., No. 07-1033, 2009 WL 2175765, at *2 (W.D. Mich. July 21,
2009)(“new counsel’s disagreement with strategic decisions made by
[plaintiff’s]

previous

counsel

is

not

good

cause

to

reopen

discovery”). Furthermore, the Court rejects Plaintiff’s assertion
that Defendant’s responses to Plaintiff’s Requests for Admissions
provide good cause to reopen discovery. Plaintiff did not serve
10

such Requests for Admission until April 22, 2022 – 354 days after
the close of fact discovery – and the Court, having reviewed
Defendant’s responses, finds that the information gleaned from
such responses could have been obtained by Plaintiff’s counsel by
way of discovery requests served during the discovery period. 2
Finally, Plaintiff’s suggestion that the requested discovery is
limited in scope and duration does not support the requested
extension because the focus of a Rule 16 analysis is the moving
party’s diligence and not prejudice to the non-moving party.
Williams, 2015 WL 5023073, at *4.
In conclusion, “[t]he arrival of new counsel . . . does
not entitle parties to conduct additional discovery or otherwise
set aside valid and binding orders of the court, regardless of the
efficacy of any new strategy counsel seeks to follow.” Adams v.
Sch. Bd. of Hanover Cnty., No. 05-310, 2008 WL 5070454, at *4 (E.D.
Va. Nov. 26, 2008). Plaintiff has not set forth any reason that
the discovery she now seeks could not have been obtained during
the discovery period. Plaintiff, therefore, has not at this time
established good cause under Rule 16(b)(4) to reopen discovery,
and her motion to reopen discovery is denied without prejudice.

2 To

the extent Plaintiff believes that Defendant’s responses do
not comport with Federal Rule of Civil Procedure 36, the proper
procedure is to meet and confer pursuant to Local Civil Rule 37.1
and, if the issue is not resolved, to file a formal motion.
11

CONSEQUENTLY, for the reasons set forth above and for
good cause shown:
IT IS on this 1st day of August 2022,
ORDERED that Plaintiff’s motion [D.I. 40] to reopen
discovery shall be, and is hereby, DENIED WITHOUT PREJUDICE.
s/ Ann Marie Donio
ANN MARIE DONIO
UNITED STATES MAGISTRATE JUDGE
cc: Hon. Joseph H. Rodriguez

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