United States District Court, D. New Jersey
M. O'NEILL COOPER LEVENSON PA ATTORNEY FOR DEFENDANTS.
L. HILLMAN, U.S.D.J.
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
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
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.
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.)
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.
March 15, 2019 Defendants filed their Motion to Dismiss
Plaintiff's Amended Complaint pursuant to Rule 41(b). No.
response was filed by Plaintiff.
Subject Matter Jurisdiction
Court has jurisdiction over this case pursuant to 28 U.S.C.
Rule 41(b) Standard
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 ...