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Digiacomo v. DGMB Casino, LLC

United States District Court, D. New Jersey

April 15, 2019

ROBERT DIGIACOMO, Plaintiff,
v.
DGMB CASINO, LLC d/b/a ROSORTS CASINO HOTEL and DGMB CASINO HOLDING, LLC, d/b/a RESORTS CASINO HOTEL, Defendants.

          ROSS M. O'NEILL COOPER LEVENSON PA ATTORNEY FOR DEFENDANTS.

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         This case concerns a common law negligence claim stemming from injuries sustained by Plaintiff Robert DiGiacomo who alleged he slipped and fell on ice in Defendants' parking lot. Presently before the Court is Defendants' Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 41(b) (“Motion to Dismiss”). This Court will grant Defendants' Motion to Dismiss for the reasons stated below.

         BACKGROUND

         This Court takes its facts from Plaintiff's complaint. On February 13, 2016, Plaintiff claims he visited Defendants' premises at approximately 2:45 PM. Plaintiff parked his car in the self-park lot and was walking from his car to the front entrance of the casino when he slipped and fell on ice. Plaintiff alleges that Defendants knew or should have known of this condition and that they did not place appropriate warning signs or clean up the allegedly hazardous condition.

         On February 6, 2018, Plaintiff filed a complaint in this Court. Plaintiff filed an amended complaint on February 23, 2018. The complaint alleged one count of common law negligence against Defendants, DGMB Casino Holding and DGMB Casino, LLC, both doing business as Resorts Casino Hotel. On March 23, 2018, Defendants answered Plaintiff's Amended Complaint.

         Some discovery ensued thereafter. According to Defendants, the parties exchanged limited written discovery by August 9, 2018. But, thereafter, Plaintiff's previously scheduled deposition was cancelled and the discovery deadline was thus extended to November 30, 2018. (ECF No. 13.) Even with the deadline extension, the parties were unable to agree to a time to depose Plaintiff. The reason: Plaintiff's counsel had been unable to locate or communicate with Plaintiff. All deadlines were stayed on November 27, 2018. (ECF No. 14.)

         A status conference was held before Magistrate Judge Karen M. Williams on January 4, 2019. Plaintiff's counsel advised the Court that he had been unable to locate or communicate with his client. On January 11, 2019, counsel for Plaintiff filed a letter with the Court memorializing the relevant facts. (ECF No. 16.) As a result, this Court entered an Order to Show Cause on February 26, 2019, setting forth a briefing schedule and directing Defendants to file a motion to dismiss pursuant to Federal Rule of Civil Procedure 41(b) addressing the Poulis factors.

         On March 15, 2019 Defendants filed their Motion to Dismiss Plaintiff's Amended Complaint pursuant to Rule 41(b). No. response was filed by Plaintiff.

         ANALYSIS

         A. Subject Matter Jurisdiction

         This Court has jurisdiction over this case pursuant to 28 U.S.C. § 1332.

         B. Rule 41(b) Standard

         Pursuant to Federal Rule of Civil Procedure 41(b), the Court may dismiss an action when a plaintiff fails to prosecute his case or comply with the ...


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