[166 NJSuper Page 395] Defendants have moved for an order dismissing the survival action count of this wrongful death complaint for failure to comply with the applicable two-year statute of limitations, N.J.S.A. 2A:14-2. Plaintiff's original counsel, having been given notice of this motion at the request of this court, submitted a brief in opposition to the motion. The facts are uncontroverted; thus the motion may now be determined as one for summary judgment. R. 4:6-2; R. 4:46; cf. Judson v. Peoples Bank & Trust Co. of Westfield , 17 N.J. 67 (1954).
Plaintiff's decedent, Mary Galligan (Galligan), was injured in an automobile accident on April 17, 1975. She died on May 19, 1975, allegedly from injuries sustained in the accident. Plaintiff, through his original attorney, filed suit against defendants in the United States District Court for the District of New Jersey on April 14, 1977, asserting both wrongful death and survival claims. On May 11, 1977, the federal judge dismissed the complaint for lack of diversity of citizenship; however, on May 9, 1977, plaintiff had filed an identical complaint in New Jersey Superior Court. Defendants here seek dismissal of the survival action, based upon plaintiff's failure to file suit in the Superior Court within two years after plaintiff's cause of action accrued.
The applicable limitations statute, N.J.S.A. 2A:14-2, states:
Every action at law for injuries to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within 2 years next after the cause of any such action shall have accrued.
There is no dispute that plaintiff's cause accrued when Galligan was injured in the accident on April 17, 1975, Rosenau v. New Brunswick , 51 N.J. 130 (1968), or that the complaint was filed in Superior Court more than two years after the accrual of the cause of action. For that filing to have tolled the New Jersey statute before the limitation period expired, the federal proceedings must have been such as to have prevented enforcement of the same remedy by an action in the state court. Nix v. Spector Freight Systems, Inc. , 62 N.J. Super. 213, 223 (App. Div. 1960). Since the Federal District Court had no jurisdiction, the action could not have prevented this court from proceeding on the matter.
Plaintiff attempted to cure the defect by filing in the Superior Court before the federal action was dismissed, arguing here that because there was no gap between the dismissal of the federal action and the commencement of the state action,
the limitations statute was satisfied by the federal filing. This argument, unfortunately, must be rejected. The state filing was late, and the federal court lacked both jurisdiction and the power to transfer the case to our court. Nix, supra; see also Kaczmarek v. N.J. Turnpike Auth. , 77 N.J. 329, 343 (1978).
There are related circumstances in which the tolling of a limitations period will be recognized by our courts, though such cases involve statutes which permit the court by their very terms to consider the equities of the parties' positions. In Kaczmarek, supra at 337-339, the court applied N.J.S.A. 32:13A-5.4(c), which requires an unfair labor charge to be brought before an administrative board within six months unless there is a showing that the action was in some way prevented. Kaczmarek quotes extensively from Burnett v. N.Y. Central R. Co. , 380 U.S. 424, 85 Sup. Ct. 1050, 13 L. Ed. 2d 91 (1965), which, in turn, involved another flexible limitations statute in a situation where the original action had been dismissed for improper venue. Both Kaczmarek and Burnett reject a mechanistic approach if the policies behind limitations statutes, such as repose and prevention of prejudice to defendants, are outweighed by plaintiff's diligence. However, the Kaczmarek court recognized that it was dealing in an exceptional situation, noting that "[o]rdinarily, the commencement of an action in a court which lacks jurisdiction of the subject matter will not toll the statute of limitation." Id. 77 N.J. at 343. There the court before which the action was originally heard had the power to transfer the case to the proper administrative agency, and should have done so. Kaczmarek, supra 77 N.J. at 344. Of course, the transfer of actions within the state courts is permitted and is governed by R. 4:3. But these state rules do not and cannot contemplate transfer of cases between state and federal courts.
The "John Doe" practice also is well established. See Aruta v. Keller , 134 N.J. Super. 522 (App. Div. 1975), and Farrell v. Votator Div. of Chemetron Corp. , 62 N.J. 111
(1973). In those cases, when a complaint, timely filed in the correct court, discloses with some specificity a defendant whose name has not yet been ascertained and who has thus been pled only as "John Doe," the complaint may later be amended to add that identified party even if the limitation period has run. (But see Britt v. Arvanitis , 590 F.2d 57 (3d Cir. ...