Estate of Frank P Lagano v. Bergen County Prosecutors Office

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 23-1776

_____________

ESTATE OF FRANK P. LAGANO,

Appellant

v.

BERGEN COUNTY PROSECUTORS OFFICE; MICHAEL MORDAGA; VARIOUS

JOHN DOE DEFENDANTS, whose individual identities or wrongful acts are not now

known to Plaintiff

______________

On Appeal from United States District Court

for the District of New Jersey

(D.C. No. 2:12-cv-05441)

District Judge: Honorable Katharine S. Hayden

______________

Submitted Under Third Circuit L.A.R. 34.1(a) on

May 23, 2024

Before: RESTREPO, FREEMAN, and McKEE, Circuit Judges

(Opinion filed: September 22, 2025)

_______________________

OPINION *

_______________________

McKEE, Circuit Judge.

*

This disposition is not an opinion of the full Court and under I.O.P. 5.7 does not

constitute binding precedent.

The Estate of Frank P. Lagano appeals two District Court Orders denying certain

requests for additional discovery and granting summary judgment against the Estate on

its state-created danger claim under 42 U.S.C. § 1983 and the New Jersey Civil Rights

Act, N.J.S.A. 10:6-2(c). For the following reasons, we will affirm the District Court’s

November 23, 2021 Order 1 denying the Estate’s additional discovery requests. We will

also affirm the District Court’s March 24, 2023 Order granting summary judgment. 2

I.

In a prior appeal in this case, we held that the Estate’s claims were not time-barred

and vacated the District Court’s finding that defendants Michael Mordaga and the Bergen

County Prosecutors Officer (“BCPO”) were immune from suit. 3 On remand, the District

1

The Estate’s Notice of Appeal did not specify that it intended to appeal the District

Court’s November 23, 2021 Order affirming the Magistrate Judge’s discovery orders.

We ordinarily only have jurisdiction to review orders that are specified in Notice of

Appeal. However, “we liberally construe notices of appeal” and may exercise

jurisdiction over judgments “where (1) there is a connection between the specified and

unspecified orders; (2) the intention to appeal the unspecified order is apparent; and (3)

the opposing party is not prejudiced and has a full opportunity to brief the issues.”

Pension Tr. Fund for Operating Eng’rs v. Mortg. Asset Securitization Transactions, Inc.,

730 F.3d 263, 269 (3d Cir. 2013) (cleaned up) (internal quotations omitted). Here, the

Estate argues that the District Court should not have addressed summary judgment

without granting additional discovery. Opening Br. 44-59. Therefore, the specified and

unspecified orders are connected. Moreover, the Estate raised specific challenges to the

District Court’s handling of various discovery issues and thus made clear that it intended

to appeal the District Court’s November 23, 2021 Order. Lastly, BCPO and Mordaga

fully briefed responses to the Estate’s discovery arguments and are therefore not

prejudiced. As such, we will exercise jurisdiction over the Estate’s challenge to the

November 23, 2021 Order.

2

For a detailed delineation of the facts underlying this matter, see Estate of Lagano v.

Bergen Cnty. Prosecutor’s Off., 769 F.3d 850, 852-53 (3d Cir. 2014) (hereinafter “Estate

of Lagano I”).

3

See generally Estate of Lagano I, 769 F.3d at 857-61.

2

Court found that neither party was entitled to immunity. The Estate now challenges the

District Court’s management of various discovery matters and its grant of summary

judgment to each of the defendants. Because the Estate sought further discovery under

Rule 56(d), we will first address the District Court’s discovery orders. 4

II. 5

A. The District Court did not abuse its discretion when it denied the Estate leave to

take additional discovery.

“We review discovery rulings for abuse of discretion.” 6 “To find such abuse it is

usually necessary to conclude that there has been an interference with a ‘substantial right’

. . . or that the discovery ruling is . . . ‘a gross abuse of discretion resulting in fundamental

unfairness in the trial of the case.’” 7 A District Court abuses its discretion when it issues

a decision that rests on a “clearly erroneous finding of fact, an errant conclusion of law or

an improper application of law to fact.” 8 We “will not disturb [discovery orders] absent a

showing of actual and substantial prejudice.” 9

4

Dowling v. City of Phila., 855 F.2d 136, 139 (3d Cir. 1988) (“The court is obliged to

give a party opposing summary judgment an adequate opportunity to obtain discovery.”).

5

The District Court had jurisdiction over the Estate’s federal claims pursuant to 28

U.S.C. § 1331, and we have jurisdiction to review the District Court’s final orders

pursuant to 28 U.S.C. § 1291.

6

See Miller v. Beneficial Mgmt. Corp., 977 F.2d 834, 841 (3d Cir. 1992).

7

Marroquin-Manriquez v. I.N.S., 699 F.2d 129, 134 (3d Cir. 1983) (explaining that the

party seeking discovery has the burden of showing that the District Court’s denial of its

discovery request “constituted a gross abuse of discretion resulting in fundamental

unfairness”) (internal quotations omitted).

8

Hanover Potato Prods., Inc. v. Shalala, 989 F.2d 123, 127 (3d Cir. 1993).

9

Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 281 (3d Cir. 2010) (citing Mass.

Sch. of Law at Andover, Inc. v. Am. Bar Ass’n, 107 F.3d 1026, 1032 (3d Cir. 1997)).

3

1. The Estate’s 56(d) Declaration. 10

The Estate is generally correct that the District Court erred by not expressly ruling

on its pending 56(d) declaration. 11 However, any such error was harmless because the

District Court properly considered and denied the Estate’s request for additional

discovery. 12 The District Court found that the dispositive issue was whether the Estate

could prove that the BCPO and Mordaga caused Lagano’s death, and reasoned that

Lagano’s alleged informant status was immaterial to proving causation. 13 It was not an

abuse of discretion to deny the Estate’s request for additional discovery of immaterial

evidence. 14

10

The Federal Rules of Civil Procedure were amended in 2010. Prior to the 2010

amendments, Rule 56(d) appeared as 56(f). There are no substantive differences between

the pre-2010 and post-2010 versions of the rule. 10B Charles Alan Wright, Arthur R.

Miller & Mary Kay Kane, Federal Practice and Procedure § 2741 n.1 (2025).

11

In re Avandia Mktg., Sales & Prods. Liab. Litig., 945 F.3d 749, 761 (3d Cir. 2019) (“A

district court abuses its discretion when it grants summary judgment in favor of the

moving party ‘without even considering’ a Rule 56(d) declaration filed by the nonmoving

party.”).

12

The District Court denied the Estate’s request for additional discovery based on

arguments the Estate raised in its brief in opposition. See JA 5992 n.4 (Vol. 14) (District

Court summary judgment opinion addressing the Estate’s discovery arguments, as raised

in its brief in opposition to summary judgment).

13

JA 5992 n.4 (Vol. 14) (“The Estate’s argument that it was precluded from obtaining

discovery which would support the inference that Lagano was an informant before his

death’ is unpersuasive because the key inquiry is . . . whether Mordaga’s alleged

disclosure caused Lagano’s death.” (internal quotations and alternations omitted)).

14

Gorrio v. Francis, 141 F.4th 90, 94 (3d Cir. 2025) (“[A]n appellant must ‘show that the

district court’s denial of discovery made it impossible to obtain crucial evidence.’”).

4

Furthermore, the Estate did not express a genuine need for additional discovery. 15

The Estate admitted that it submitted a 56(d) declaration “in the alternative” because

“sufficient evidence already exists to present triable issues of fact.” A 56(d) declaration

is appropriate when a party cannot present facts sufficient to support its opposition to

summary judgment; not when it believes it can. 16

2. The Estate’s request to depose Rule 30(b)(6) corporate witnesses.

The Estate further claims that the Magistrate Judge erred by denying its request to

depose 30(b)(6) witnesses from the BCPO and the New Jersey Division of Criminal

Justice (“DCJ”). The Estate fails to show why alleged corruption in the BCPO is material

to its claims or that it had no other means to obtain that information. The Estate’s

argument for why it needed to depose a BCPO 30(b)(6) witness relies on our opinion in

Estate of Lagano I. 17 There, we made no factual findings, nor did we imply that the

matter was based on widespread corruption in the BCPO. We merely mentioned in a

footnote that “[t]he Sweeney Complaint alleged widespread corruption within the

BCPO.” 18 Our prior decision does not prove that there was corruption in the BCPO, or

that any such corruption was material to the Estate’s claims, nor does it support the

Estate’s need for further discovery of that allegation.

15

See Robin Constr. Co. v. United States, 345 F.2d 610, 614 (3d Cir. 1965) (explaining

that a Rule 56(d) declaration “must be genuine and convincing to the court rather than

merely colorable”).

16

See Fed. R. Civ. P. 56(d) (providing the procedure for a nonmoving party to request

additional discovery “when facts are unavailable to the nonmovant”).

17

See generally 769 F.3d 850 (3d Cir. 2014).

18

Id. at 851 n.2.

5

Moreover, even if proof of corruption was material, the Estate has not established

that it was unable to procure that information through other means, such as through its

deposition of Mordaga or from the voluminous discovery it received from the BCPO. It

is unclear why that information could not “have been discovered by [its] prior counsel

during the [years] long period in which discovery in this case was open.” 19 And the

Estate does not explain how its inability to depose a BCPO 30(b)(6) witness prevented it

from obtaining crucial evidence that was “directly relevant to the subject matter of this

dispute.” 20

The Estate also claims it needed a DCJ 30(b)(6) witness to generate relevant

information about Sweeney’s employment records; the DCJ’s files pertaining to Lagano’s

murder; internal materials concerning the “Jersey Boyz” investigation that were not

previously disclosed; and DCJ’s Operation Heat materials, insofar as they tend to show

that Lagano was a confidential informant in that investigation. As we explain infra in

Section II(B), even if Lagano was a confidential informant, that alone is not enough to

prove the causation necessary to succeed on the Estate’s state-created danger claim.

Accordingly, there was no abuse of discretion in denying the Estate’s request to

depose 30(b)(6) corporate witnesses from the BCPO and the DCJ.

3. The Estate’s Request for Policing Expert Discovery.

19

Turner v. Schering-Plough Corp., 901 F.2d 335, 341 n.4 (3d Cir. 1990).

20

Pacitti v. Macy’s, 193 F.3d 766, 778 (3d Cir. 1999).

6

There is no sufficient indication that the nature of the Estate’s claims required

expert discovery or that discovery of a policing expert should have been allowed. 21 The

Estate does not explain how a policing expert’s review of “protected information” was

relevant to proving that Mordaga’s statement—“Don’t count on Sweeney helping you,

he’s going to jail” (“Sweeney comment”) 22—caused Lagano’s death, the dispositive issue

in this dispute. 23 Excluding expert discovery before summary judgment is not an abuse

of discretion if the information sought is not relevant to summary judgment. 24

4. Paul Morris’s Interrogatories.

The Estate argues that the District Judge erred in affirming the Magistrate Judge’s

Order instructing the Estate to submit interrogatories in lieu of deposing Paul Morris. It

also claims that the Magistrate Judge improperly rewrote the approved interrogatories.

The record does not support finding that the Magistrate Judge rewrote or effectively

served her own interrogatories on Morris in a manner that “made it impossible to obtain

crucial evidence.” 25 Moreover, the Estate had already deposed Mordaga, who possessed

21

See LabMD Inc. v. Boback, 47 F.4th 164, 187-88 (3d Cir. 2022) (explaining that

precluding expert discovery before summary judgment may deprive a party of its

substantial right to prove its case if the nature of its accusations “strongly indicate that . . .

expert testimony was to be anticipated and should have been allowed”).

22

JA 5985 (Vol. 14).

23

The Estate’s January 2022 letter—the only evidence it presents as documenting its

request—does not ask for a policing expert or establish how its review of “protected

information” was relevant to proving the Estate’s state-created danger claim. JA 4130

(Vol. 11).

24

See e.g., Baer v. Chase, 392 F.3d 609, 630 (3d Cir. 2004) (finding that a damages

expert cannot “bootstrap liability issues on summary judgment”).

25

Gorrio, 141 F.4th at 94.

7

the information the Estate sought from Morris, and the District Court still allowed the

Estate to submit ten proposed interrogatories, followed by objections and a reply.

Unlike the district court in Sempier v. Johnson & Higgins, 26 here, the District

Court did not substitute the interrogatories with “its own work product.” 27 Rather, it

struck questions that were beyond the scope of permitted discovery and amended the

remaining questions to include the phrase: “identify to the best of your recollection.” Our

decision in Sempier allows a district court “through appropriate intervention, [to] suggest

the proper manner in which questions should be asked” “if discovery has reached an

impasse or a nonproductive stage either through counsel’s obstinacy, intransigence, or

even incompetence.” 28 Permitting the Estate to submit amended interrogatories was not

fundamentally unfair to the Estate, especially since the Judge allowed the Estate to do so

after the official end of discovery.

Furthermore, the Estate’s single, conclusory sentence that the amended

interrogatories compelled vague and evasive answers, leaves us with little to assess

whether the interrogatories prevented it from obtaining crucial evidence from Morris.

Therefore, we find no abuse of discretion.

5. The District Court’s Failure to Adhere to a Discovery “Mandate.”

Lastly, the Estate argues that the District Court precluded it from obtaining

evidence that the Estate of Lagano I Court identified as relevant. The Estate appears to

26

45 F.3d 724, 736 (3d Cir. 1995) (finding that the District Court abused its discretion

when it replaced a party’s interrogatories with a re-written, vague “Bill of Particulars”).

27

Id.

28

Id. at 736.

8

believe that we issued a discovery mandate regarding evidence of corruption in the

BCPO and evidence from Sweeney’s Complaint. We did no such thing. In Estate of

Lagano I, we merely vacated and remanded for reconsideration the District Court’s

finding that the BCPO and Mordaga were immune from suit and determined that the

Estate’s claims could proceed. 29

The District Court “allotted ample time for discovery” 30 and did not limit or

prohibit discovery of information that was “directly relevant to the subject matter of this

dispute.” 31 Therefore, the District Court did not abuse its discretion when it denied the

Estate even more discovery before granting summary judgment.

B. The District Court did not err in granting summary judgment.

We review the grant of summary judgment de novo and draw all reasonable

inferences in the manner most favorable to the non-moving party. 32 Because we agree

with the District Court’s holding that the Estate cannot prove causation, we will affirm its

grant of summary judgment.

The Due Process Clause provides that “[n]o State shall . . . deprive any person of

life, liberty, or property, without due process of law.” 33 But it “imposes no affirmative

duty to protect a citizen who is not in state custody.” 34 The special relationship

29

Estate of Lagano I, 769 F.3d at 854.

30

Arnold Pontiac-GMC, Inc. v. Gen. Motors Corp., 786 F.2d 564, 577 (3d Cir. 1986).

31

Pacitti, 193 F.3d at 778.

32

Ye v. United States, 484 F.3d 634, 636 (3d Cir. 2007).

33

U.S. Cont. amend. XIV.

34

Bright v. Westmoreland Cnty., 443 F.3d 276, 281 (3d Cir. 2006).

9

exception 35 and the state-created danger exception are the two exceptions to that rule. 36

The Estate argues that the BCPO and Mordaga are liable for Lagano’s murder under the

latter exception.

To succeed on a state-created danger claim, a party must establish four elements. 37

Because the District Court granted summary judgment after concluding that the Estate

failed to make out the fourth, we focus our analysis on that element. The issue under the

fourth element of a state-created danger claim is “whether the state actors used their

authority to create an opportunity that otherwise would not have existed for the third

party’s crime to occur.” 38 Thus, the fourth element amounts to establishing causation. 39

The Estate alleges one affirmative act that established state-created danger:

Mordaga’s Sweeney comment. 40 It claims that the District Court erred by requiring a

direct causal connection between that statement and Lagano’s murder. We have

35

The Estate claims that the District Court erred by not addressing its special relationship

theory, which it presumably raised when it referred to the relationship between “CI and

informant,” and in the joint final pretrial order “where the Estate explained the risks of

breaching the relationship between a CI and its handler/agency.” Opening Br. 14.

Merely explaining the nature of a CI/handler relationship is not enough to plead that

either the BCPO or Mordaga were in a special relationship with Lagano, let alone that

they breached that relationship. In fact, the contention that the BCPO and Mordaga

violated a special relationship does not comport with the Estate’s theory of the case—i.e.,

that Lagano served as a DCJ confidential informant. “Because [the Estate] neither pled

nor adduced proof of a ‘special relationship,’ that exception is not at issue here.” Ye, 484

F.3d at 637 n.1.

36

Id.

37

Bright, 443 F.3d at 281 (listing the four elements of a state-created danger claim).

38

Id. at 283 (internal quotations omitted).

39

See id. at 283 n.7; see also Bennett v. City of Phila., 499 F.3d 281, 287 (3d Cir. 2007)

(“[T]his court stated that petitioners must allege affirmative acts that were the ‘but for

cause’ of the risks they faced.”).

40

JA 5985 (Vol. 14) (“Don’t count on Sweeney helping you, he’s going to jail.”).

10

repeatedly held that the fourth element requires a showing of but for causation, such that

“there must be a direct causal relationship between the affirmative act of the state and

plaintiff’s harm.” 41 The District Court applied the correct legal standard and properly

concluded that the BCPO and Mordaga met their burden of showing that the Estate

cannot establish causation.

The record is devoid of facts sufficient to establish that Mordaga’s Sweeney

comment created a danger to Lagano or made him more vulnerable to danger. 42 And

after more than three years of discovery, the absence of evidence to support the Estate’s

claim was not caused by its inability to take additional discovery. First, beyond the

assertions raised in Sweeney’s memorandum, there is no corroboration for the allegation

that Mordaga ever said, “Don’t count on Sweeney.” Trobiano, the only other person

currently living who was present when Mordaga allegedly made the comment, denied

ever hearing Mordaga utter it. Moreover, he testified that there was never an occasion

where he was at a restaurant with Lagano and Mordaga approached the table yelling.

And he explained that he did not dine with Lagano and the late-Frank Walsh at the Stony

Hill Inn in 2007. 43

41

Ye, 484 F.3d at 643 (quoting Kaucher v. Cnty. of Bucks, 455 F.3d 418, 432 (3d Cir.

2006)).

42

As Mordaga accurately points out in his brief: “Since loansharking for an organized

crime family is a high-risk occupation, discovery revealed that any number of people

might benefit from Lagano’s death.” Mordaga Resp. Br. 9-10.

43

JA 4289 (Vol. 11) (Trobiano Deposition) (explaining that there was never an occasion

where he “socialize[d] with Mr. Walsh and Mr. Lagano”). But see JA 4780 (Vol. 12)

(Corinne Lagano testifies that the day Mordaga allegedly made the Sweeney comment,

she saw Lagano, Trobiano, and Walsh dining together).

11

Second, the record does not support a finding that Trobiano is associated with

organized crime, such that Mordaga’s alleged disclosure in front of him caused Lagano’s

death. Sweeney’s memorandum creates, at most, an attenuated connection. Trobiano

explained that no agency has contacted him about Lagano’s murder, nor has anyone ever

questioned him about Lagano’s alleged status as a confidential informant. Again,

Lagano’s murder remains unsolved.

Third, the Sweeney memorandum, which is the Estate’s primary source of

evidence of a “motive” for Lagano’s murder, is riddled with inconsistencies and lacks

sufficient detail. It does not say when or where the statement was made; it provides no

date or time for the encounter; and it claims Lagano left dinner and went to another

location where Mordaga made the Sweeney comment. It is unclear whether Trobiano

also went to the second location. Contrary to the Estate’s contention, the deposition of

Corinne Lagano does not add details that either contextualize or corroborate the

memorandum. Corinne testified that Frank Walsh was also present when Mordaga made

the Sweeney comment. Walsh’s alleged presence is noticeably absent from the Sweeney

memorandum. She also testified that she never overheard the conversations between

Mordaga and her father.

Even viewing these facts in a light most favorable to the Estate, we conclude that

there is no genuine dispute as to whether Mordaga’s Sweeney comment created a danger

to Lagano or rendered him more vulnerable to danger than if Mordaga had never made

the statement, such that it would fit within the state-created danger doctrine. Summary

judgment was therefore proper.

12

C. The District Court did not abuse its discretion in denying the Estate leave to file

a sur-reply.

Lastly, the District Court did not commit reversible error when it denied the Estate

leave to file a sur-reply to address Mordaga’s allegedly new claims regarding the

credibility and admissibility of the Sweeney Memorandum. Granting leave to file a sur-

reply is a matter left to the sound discretion of the District Court. 44 The District Court

assumed the truth of the Sweeney memorandum at summary judgment, expressly credited

the comments made in the memorandum, but declined to determine the admissibility of

the memorandum because “regardless of whether the memorandum [was] admissible, the

Estate cannot establish a key element of its state-created danger claim: causation.” 45 We

find no abuse of discretion where the Estate was not permitted to respond to claims that

had no bearing on the District Court’s grant of summary judgment. 46

III.

For the foregoing reasons we will affirm the District Court’s November 23, 2021

Order and we will affirm the District Court’s March 24, 2023 Order.

44

See generally Cureton v. Nat'l Collegiate Athletic Ass'n, 252 F.3d 267, 276 (3d Cir.

2001); In re Fine Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir. 1982).

45

JA 5993 (Vol. 14).

46

The Estate loosely argues that Mordaga raised new legal arguments and exhibits that it

was precluded from responding to. We cannot meaningfully consider that allegation

because the Estate does not tell us what those new arguments were.

13