# Kelly

> District Court, E.D. New York · August 27, 2026

URL: https://www.frixlaw.com/law-library/cases/11428734

## Case

- **Full name:** Joseph Kelly, et al. v. Bowlero Corp., et al.
- **Court:** District Court, E.D. New York
- **Decided:** August 27, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT 8/27/2   026
EASTERN DISTRICT OF NEW YORK U.S. DISTRICT COURT
---------------------------------------------------------------X EASTERN DISTRICT OF NEW YORK
JOSEPH KELLY, et. al., LONG ISLAND OFFICE
ORDER
2:24-cv-04738 (SJB) (JMW)
Plaintiffs,
-against-
BOWLERO CORP. et al.,

Defendants.
---------------------------------------------------------------X
WICKS, Magistrate Judge:
This is an action alleging employment discrimination under the Age Discrimination in
Employment Act, 29 U.S.C. § 623. (ECF No. 1.) Presently before the Court is a motion to
extend discovery brought by Plaintiffs Tom Tananse and Andrew Weimer (“Plaintiffs”). (ECF

No. 99.) For the reasons stated below, the motion is GRANTED in part.
BACKGROUND
Discovery in this action was stayed pending resolution of Defendants’ motion to dismiss,
which Judge Bulsara granted in part on November 10, 2025, dismissing sixty-eight of the
original seventy-six plaintiffs. (ECF No. 66.) The sixty-eight who were dismissed were
dismissed solely because their claims were time-barred; Judge Bulsara’s opinion did not reach
the merits of their claims. (See id. at 7–15.) With respect to the remaining eight, Judge Bulsara
found that they had adequately alleged facts giving rise to a “minimal inference of but-for
causality between” the plaintiffs’ ages and their termination. (Id. at 16 (quoting Marcus v.
Leviton Mfg. Co., Inc., 661 Fed. App’x 29, 32 (2d Cir. 2016).) For example, Plaintiff Weimer
had an unblemished performance record for twenty-five years, until Defendants terminated him
in 2016 ostensibly for infractions in 2014—even though he also received a favorable
performance review in 2015, after those incidents. (Id. at 20–21 (citing allegations in the Second

Amended Complaint).) And Plaintiff Tanase had 22 years of experience in the bowling industry,
until Defendants subjected him to scrutiny, frequent criticism, and unnecessary correction of his
work, eventually replacing him with someone much younger. (Id. at 27–28 (citing allegations in
the Second Amended Complaint).)
On November 24, 2025 this Court entered a discovery schedule, pursuant to which the
parties were to complete fact discovery by June 1, 2026, with the close of all discovery including
expert discovery set for September 4, 2026. (Electronic Minute Order dated November 24,
2025.) On February 23, 2026, the Court stayed discovery with respect to six of the remaining
eight plaintiffs, in anticipation of Defendants’ motion to compel arbitration. (ECF No. 94.)1
On March 18, 2026, Plaintiffs’ counsel’s daughter fell extremely ill, causing counsel to

be in and out of the hospital for weeks. (ECF No. 99.)
On April 19, 2026, Plaintiffs served their first discovery requests on Defendants. (ECF
No. 101 at 2.) Defendants produced documents six weeks later on June 1, 2026—the last day of
discovery. (ECF No. 99 at 2.) Plaintiffs concede that this delay was not Defendants’ fault. (Id.)
On July 22, 2026, six weeks after the discovery deadline had elapsed, Plaintiffs filed this
motion to extend the fact discovery deadline to September 30, 2026 and the close of all
discovery to December 30, 2026. (Id. at 3.) Plaintiffs contend that additional time is needed not
only because counsel’s daughter was in the hospital, but also due to Defendants’ “inadequate and

1 Judge Bulsara granted Defendants’ motion to compel arbitration on August 25, 2026. (ECF No. 105.)
evasive responses to Plaintiffs’ interrogatories and admission requests[.]” (Id. at 2.) In
particular, it appears that Defendants refused to produce documents pertaining to the claims of
the dismissed plaintiffs, whereas Plaintiffs argue that discovery into all plaintiffs—present and
former—is necessary in order to demonstrate that Defendants’ discrimination against the

remaining Plaintiffs was not isolated but rather was part of a nationwide, systemic practice. (Id.)
Defendants opposed the requested extension, arguing that even if counsel’s
delay after March 18, 2026 was understandable, there was no reason they did not serve discovery
requests in the five months before then since Judge Bulsara ruled on the motion to dismiss last
November. (ECF No. 101 at 2.) Furthermore, Defendants maintain that the discovery sought is
irrelevant. (Id. at 4.)
The Court held oral argument on August 6, 2026. It quickly became apparent that the
crux of the dispute is relevance. Plaintiffs maintain that they are entitled to documents and
depositions of apex high-level Bowlero executives and even executives of private equity firms
that invested in Bowlero (even though those firms are not named in the Second Amended

Complaint; see ECF No. 47), because they were the ones who launched the initiative to
systematically push out older employees as part of a corporate-wide rebranding. Limiting
discovery to the managers who directly interacted with Tanase and Weimer would miss the
point, Plaintiffs argued, because those managers were not necessarily made privy to the
discriminatory motives behind the new policies they were told to implement.
The Court ordered supplemental briefing, instructing Plaintiffs to “detail[] each
additional witness they seek to depose and why.” (Electronic Minute Order for a Motion
Hearing/Oral Argument held on August 6, 2026.) Plaintiffs filed their supplemental brief on
August 14, 2026 (ECF No. 103), and Defendants filed their reply on August 21, 2026 (ECF No.
104).2
DISCUSSION
I. “Good Cause” Under Rule 16(b)
“A schedule may be modified only for good cause and with the judge’s consent.” Fed. R.
Civ. P. 16(b)(4). “It is the movant’s burden to establish good cause.” Kontarines v. Mortgage

Electronic Registration Systems, Inc., No. 15-CV-2206 (ARR), 2016 WL 3821310, at *3
(E.D.N.Y. July 12, 2016) (citations omitted). “Good cause requires that the delay stemmed from
any mistake, excusable neglect, or any other factor which might understandably account for
failure of counsel to undertake or comply with the Scheduling Order.” Jipeng Du v. Wan Sang
Chow, No. 18-CV-1692 (ADS) (AKT), 2019 WL 3767536, at *3 (E.D.N.Y. Aug. 9, 2019)
(internal quotation and citations omitted). “To satisfy the good cause standard the party must
show that, despite its having exercised diligence, the applicable deadline could not have
reasonably been met.” Leonard v. Abbott Laboratories, Inc., No. 10-CV-4676 (ADS) (WDW),
2012 WL 764199, at *3 (E.D.N.Y. Mar. 5, 2012) (internal quotations and citations omitted).

A court may consider other factors, such as prejudice to non-moving parties, but
“diligence remains the central focus of the court’s inquiry.” Desir v. Austin, No. 13-CV-0912
(DLI) (VMS), 2015 WL 4546625, at *2 (E.D.N.Y. July 28, 2015) (citations omitted); see also
Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000) (movant must demonstrate
good cause by showing that she exercised diligence). “The following factors are not compatible
with a finding of diligence and do not provide a basis for relief: carelessness, an attorney’s

2 Plaintiffs’ supplemental brief is more than twice the length permitted under this Court’s individual rules.
See Individual Practice Rules of Magistrate Judge James M. Wicks § 3.A (limiting discovery motions to
1,500 words). The Court overlooks the infraction this time, but Plaintiffs are forewarned that future
lapses in compliance could lead to rejection of the defiant document.
otherwise busy schedule, or a change in litigation strategy.” Furry Puppet Studio Inc. v. Fall Out
Boy, No. 19-CV-2345 (LJL), 2020 WL 4978080, at *1 (S.D.N.Y. Feb. 24, 2020) (citation
omitted).
Because the “good cause” inquiry turns primarily on diligence, it is hard to conclude that

Plaintiffs have met their burden. Plaintiffs could have served document requests since
December. The fact that counsel’s daughter was hospitalized in March does not explain why
Plaintiffs sat on their hands before then. Courts have denied extensions under similar
circumstances. See Sec. & Exch. Comm'n v. Thurlow, No. 21-CV-7700 (VSB) (SN), 2026 WL
878938, at *4 (S.D.N.Y. Mar. 31, 2026) (denying application for extension following counsel’s
wife’s illness and death, because counsel had had ample time to conduct discovery earlier before
his wife took ill); Cardew v. New York State Dep't of Corr. & Cmty. Supervision, 743 F. Supp.
3d 523, 528 (W.D.N.Y. 2024) (similar).
That said, the Court notes that Plaintiff’s delay—essentially just three months, from
December through February—is not altogether egregious, which distinguishes this case from the

cases cited above. Cf. Thurlow, 2026 WL 878938, at *3 (denying extension after discovery
“stretched for sixteen months”); Cardew, 743 F. Supp. 3d at 528 (denying extension where party
could have served discovery requests “years ago”). Importantly, there have been no discovery
extensions to date.
Furthermore, although “good cause” under Rule 16 is mostly about diligence, courts have
noted that other factors can be relevant too, including, inter alia, “the nature of the relief sought.”
Salib v. P & O Ports N. Am., Inc., No. CV20055313NGMDG, 2007 WL 9718945, at *1
(E.D.N.Y. Apr. 13, 2007) (quoting Bernstein v. Bernstein, No. CV 91-0785 (RR)(MDG), 1993
WL 466402, *1 (E.D.N.Y. Aug. 13, 1993)). Here, Plaintiffs assert that they need additional time
to obtain discovery from upper management into the reasons behind Plaintiffs’ terminations.
The question, then, is whether Plaintiffs have made a sufficient showing that the discovery they
seek is likely to yield evidence that is relevant and proportional to the needs of the case. See
Fed. R. Civ. P. 26(b)(1); see also Harris v. Computer Assocs. Int'l, Inc., 204 F.R.D. 44, 45

(E.D.N.Y. 2001) (“When a party merely speculates as to what evidence would be produced upon
further discovery, a court is correct in denying the party’s request to allow more discovery.”).
To that end, Plaintiffs filed a supplemental brief detailing each additional individual they
seek to subpoena and depose. (ECF No. 103.) Plaintiffs describe a complex corporate
arrangement dating back to 2012, involving mergers, acquisitions, and capital infusions from two
private equity firms. (See id.) None of these allegations is mentioned in the Second Amended
Complaint (ECF No. 47), nor do Plaintiffs explain how they have come to learn these “facts.”
Moreover, the allegations in Plaintiffs’ supplemental briefing are overwhelmingly conclusory
and speculative. The following sample is representative:
Michael Angelakis – Lead Director and Representative of Atairos Capital
[one of the private equity firms the purportedly controlled Defendants]:
Mr. Angelakis managed Atairos’ acquisition of Cerberus’ controlling
stake in Defendant. Under his board oversight, Atairos permitted the
discriminatory termination policy to continue despite explicit knowledge of 76
formal EEOC Charges of Discrimination . . . . Because these regulatory liabilities
and findings were actively detailed in the company’s SEC filings, Mr. Angelakis
possesses direct knowledge of the underlying corporate strategy.
(ECF No. 103 at 4.) Even assuming that Angelakis may have known about the EEOC charges
publicized in Bowlero’s SEC filings, it does not follow that he “permitted the discriminatory
termination policy to continue[.]” (Id.) Plaintiffs do not explain what authority or involvement
Angelakis had over Bowlero’s personnel decisions.
As another example, Plaintiffs assert that Angelakis “actively approved a corporate legal
strategy designed to delay adjudication, create procedural roadblocks, and frustrate Plaintiffs and
their counsel.” (Id.) These are conclusions, not facts.
The Court therefore concludes that ten of the thirteen individuals identified in Plaintiffs’

letter are unlikely to yield relevant evidence, and pursuing a fishing expedition on these ten in
the hopes of gleaning relevant information is simply not sufficient, nor is it proportional to the
needs of the case.
With respect to three individuals on Plaintiffs’ list, however, the Court is persuaded that
additional discovery is warranted. First is Tom Shannon, CEO of Bowlero. (See ECF No. 103 at
5.) The Second Amended Complaint is replete with allegations about Shannon’s involvement in
Bowlero’s hiring decisions. Plaintiff Tanase “witnessed first-hand how closely involved
Shannon was in personnel decisions[.]” (ECF No. 47 at ¶ 716.e.v.) “Notwithstanding that
Defendants employed thousands of workers, . . . CEO Tom Shannon would insist on conducting
Skype interviews himself[.]” (Id. at ¶ 108.) These interviews would typically last only a minute

or two, leading Plaintiffs to conclude that the interviews were merely a pretext for Shannon to
“conduct a beauty contest and see if a person’s age and appearance met the new hip, youthful
image he desired for the Bowlero bowling centers.” (Id. at ¶ 109.) Regardless of whether that
conclusion is true, Shannon certainly took a hands-on approach to hiring. Clearly, then, he is
relevant to Plaintiffs’ case, which is about Defendants’ personnel decisions. (See generally ECF
No. 66 at 16–18 (laying out legal standard for age discrimination, including that, at summary
judgment, Plaintiffs will need to address whether Defendants’ stated reasons for terminating
them were mere pretexts).) Furthermore, the Second Amended Complaint alleges direct
interaction between Tanase and Shannon on at least one occasion. (See ECF No. 47 at ¶
716.e.vii.)
Next is Brett Parker, another high-ranking executive of Bowlero.3 The Second Amended
Complaint alleges that Tanase met with Parker in April 2023 to discuss his concerns that he was

being “managed-out,” and that Parker threatened Tanase against complaining to the EEOC. (Id.
at ¶¶ 716.j, o.)
Third is Lev Ekster. Though Ekster is not mentioned in the Second Amended Complaint,
Plaintiffs state in their supplemental brief that he was involved in “managing out” Tanase. (ECF
No. 103 at 6.) Plaintiffs further state that Ekster maintained that Tanase “voluntarily resigned.”
(Id.)
Shannon, Parker, and Ekster are directly relevant to Plaintiffs’ claims. To the extent
Defendants have not yet produced documents, answered interrogatories, or answered requests for
admission concerning these three individuals, they must do so. Plaintiffs are also entitled to
issue subpoenas to obtain documents and depositions from these three individuals, if need be.

However, Plaintiffs are forewarned that discovery must be narrowly tailored. Plaintiffs are
entitled to discovery only insofar as relevant to Tanase and Weimer. (For the avoidance of
doubt, the fact that a particular request or line of questioning may also be relevant to the
dismissed plaintiffs is not disqualifying. If, however, it is only relevant to the dismissed
plaintiffs, then it is off-limits.) Even as to Tanase and Weimer, Plaintiffs may only seek
discovery that is grounded in concrete allegations.

3 Plaintiffs’ supplemental discovery brief identifies Parker as “President” (ECF No. 103 at 5), but the
Second Amended Complaint identifies him as “Vice President” (ECF No. 47 at ¶ 87).
II. “Excusable Neglect” Under Rule 6(b)
Because Plaintiffs’ request comes after the deadline already passed, they must clear an
additional hurdle—Rule 6’s “excusable neglect” requirement. See Fed. R. Civ. P. 6(b)(1)(B)
(“When an act may or must be done within a specified time, the court may, for good cause,
extend the time . . . on motion made after the time has expired if the party failed to act because of

excusable neglect.”). The Supreme Court has explained that the term “excusable neglect”
embodies something of a dichotomy. On the one hand, a retroactive extension may be granted
only if the party’s failure to act was “excusable.” But because the Rule uses the word
“neglect”—which connotes negligence, inattentiveness or carelessness—the movant need not
show that its failure was due to an act of God. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P’ship, 507 U.S. 380, 388–92 (1993). “Although inadvertence, ignorance of the rules, or
mistakes construing the rules do not usually constitute ‘excusable’ neglect, it is clear that
‘excusable neglect’ under Rule 6(b) is a somewhat elastic concept and is not limited strictly to
omissions caused by circumstances beyond the control of the movant.” Id. at 392 (internal
citation omitted).

In determining whether neglect is excusable for purposes of Rule 6, the Second Circuit
has instructed courts to take into account the following: “‘[1] [t]he danger of prejudice to the
[opposing party], [2] the length of the delay and its potential impact on judicial proceedings, [3]
the reason for the delay, including whether it was in the reasonable control of the movant, and
[4] whether the movant acted in good faith.’” Bolin v. Harvard Prot. Servs., Inc., 277 F. App’x
102, 105 (2d Cir. 2008) (quoting Tancredi v. Metro. Life Ins. Co., 378 F.3d 220, 228 (2d Cir.
2004)) (alterations in original).
The first factor, prejudice to the opposing party, does not militate against extending
discovery. At oral argument the Court inquired of defense counsel what prejudice they would
suffer from the proposed extension. Counsel stated that producing discovery concerning
plaintiffs whose claims were dismissed would be prejudicial in the sense that it would be a waste
of money; the whole reason Defendants moved to have those plaintiffs’ claims dismissed was so
that they would not be burdened with such discovery. Defendants misapprehend what Plaintiffs

seek. Plaintiffs are not seeking discovery into the circumstances of each dismissed plaintiff.
They are seeking to understand senior executives’ motivation in firing them—Tanase and
Weimer. The fact that that motivation might be common to other plaintiffs as well does not
make it disproportionate; it is still directly relevant to Tanase and Weimer’s claims. Hence,
Defendants will not be prejudiced by this extension.
The next factor, length of delay and its impact on judicial proceedings, likewise favors
Plaintiffs. Discovery in this action only began on November 24, 2025, when this Court entered a
scheduling order. As noted above, there have been no extensions thus far. No party has moved
for summary judgment, and trial has not been scheduled. Extending discovery by a few months
will not impair judicial proceedings.

The third factor is the reason for the delay, including whether it was in the reasonable
control of the movant. Plaintiffs certainly could have been more diligent in serving discovery
requests before counsel’s daughter took ill in March, and after she took ill counsel could have
sought an extension before the June 1, 2026 deadline. Courts have denied retroactive extensions
under similar circumstances. See Johannes v. Lasley, No. 17-CV-3899 (CBA)(AYS), 2019 WL
1958310, at *1 (E.D.N.Y. May 2, 2019) (applying Rule 6(b)’s excusable neglect standard and
denying retroactive extension where counsel could have requested extension before expiration of
the deadline); Beckles v. The City of New York, No. 08 CIV.3687 JCF, 2010 WL 1841714, at *2
(S.D.N.Y. May 10, 2010) (same). On balance, however, denying the extension on this basis
alone would be draconian given counsel’s sympathetic family situation. As explained above,
excusable neglect “is not limited strictly to omissions caused by circumstances beyond the
control of the movant.” Pioneer, 507 U.S. at 392. Although Plaintiffs have exhibited some
neglect, the Court concludes that their neglect is excusable in this particular case.

Finally, the fourth factor is whether the movant has acted in good faith. There is no
dispute that this factor is met.
Accordingly, the Court finds that Plaintiffs’ delay is excusable and grants the extension.
CONCLUSION
For the foregoing reasons, Plaintiffs’ motion to extend discovery (ECF No. 99) is
GRANTED in part. There will be no further extensions granted, absent extraordinary
circumstances. The amended discovery deadlines are extended as follows:
Discovery Category Prior Deadline New Deadline
Fact discovery June 1, 2026 October 12, 2026
Case-in-chief experts July 1, 2026 October 30, 2026
Rebuttal experts August 3, 2026 November 30, 2026
All discovery, including
September 4, 2026 December 30, 2026
expert discovery

Dated: Central Islip, New York
August 27, 2026
S O O R D E R E D:

James M. Wicks
/S/
JAMES M. WICKS
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11428734. Public record. Not legal advice.