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January 26, 1989


John C. Lifland, United States District Judge.

The opinion of the court was delivered by: LIFLAND

Plaintiff moves to file a Third Amended Complaint. Defendant Polytop moves for summary judgment and to file a third party complaint. Defendant Hub Plastics moves to dismiss the complaint. Defendant Unocal moves for summary judgment. Defendant Visual Packaging moves to file a third party complaint. The State of New Jersey intervenes in favor of upholding the constitutionality of N.J. Stat. Ann. 2A:14-22.

 The Second Amended Complaint alleges that "On or about August 18, 1985, while plaintiff was using [a container of] charcoal lighter fluid for its intended purpose, the container burst open and the contents combusted causing plaintiff to suffer substantial, severe and permanent burns on his body." Second Amended Complaint at para. 10. Plaintiff filed the original complaint with this court on December 29, 1986, and an amended complaint on August 14, 1987.

 Counsel for plaintiff states by affidavit that on August 26, 1987, shortly after filing the amended complaint, he received a letter from defendant Visual Packaging, Inc., which revealed that several other firms manufactured parts of the container in question. Exhibit B to Affidavit of Cyril S. Hodge. After corroborative discovery plaintiff applied for and was granted leave to amend the complaint adding these firms as defendants. Exhibit C to Hodge Affidavit. Plaintiff filed a second amended complaint on February 16, 1988. Exhibit D to Hodge Affidavit. Plaintiff maintains that he was not aware of these other firms until he received the letter on August 26, 1987, and that there was no intentional delay or lack of due diligence in commencing the action against the defendants. Hodge Affidavit at para. 13-14. Plaintiff has provided the court with a copy of the cellophane wrapping of the charcoal lighter fluid container, which states that the container was manufactured by Visual Packaging, Inc. There is no indication from the wrapper that any other firms played a part in manufacturing the container. Exhibit A to Hodge Affidavit.


 Defendants Hub Plastics, Inc., Polytop Corp., and Unocal Chemicals Division of Union Oil Co. were added as defendants in plaintiff's second amended complaint filed February 16, 1988. Hub Plastics moves to dismiss the complaint. Polytop and Unocal move for summary judgment. All of these defendants argue that any action against them is time-barred by New Jersey's two-year statute of limitations for personal injuries, N.J. Stat. Ann. § 2A:14-2. *fn1" They argue that the two-year period expired August 18, 1987, two years after plaintiff's injuries occurred, while they were not added as defendants until February 16, 1988, several months after the two-year period expired.

 Plaintiff opposes these motions on two grounds. First, he argues that under New Jersey's "discovery rule," plaintiff's cause of action against Polytop and Unocal commenced on August 26, 1987, the day he first learned of their possible role in manufacturing the container, and plaintiff's cause of action against Hub Plastics commenced on January 21, 1988, when he first learned of Hub Plastics' possible role in manufacturing the container in a deposition of the president of defendant Visual Packaging.

 Plaintiff advances a second argument against Hub Plastics and Polytop. Plaintiff argues that under N.J. Stat. Ann. § 2A:14-22, which tolls the running of the statute of limitations in actions against nonresident defendants who are not represented within New Jersey during the limitation period, Hub Plastics and Polytop, foreign corporations that have not filed a notice designating a representative to accept service of process, are by the express terms of the statute nonrepresented parties. Therefore, plaintiff claims, the statute of limitations never began to run in their favor in this case.

 The constitutionality of § 2A:14-22 has been drawn in question in this case. In Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U.S. 888, 108 S. Ct. 2218, 100 L. Ed. 2d 896 (1988), the Supreme Court held that an Ohio statute, which Hub Plastics and Polytop claim is similar to 2A:14-22, was unconstitutional because it violated the Commerce Clause. Hub Plastics and Polytop contend that § 2A:14-22 is unconstitutional under Bendix Autolite.2 The Attorney General of New Jersey has intervened in this case and opposes this contention.

 Discovery Rule

 The discovery rule is a rule of equity and fairness. See, e.g., Lopez v. Swyer, 62 N.J. 267, 300 A.2d 563 (1973). "The essential purpose of the rule is to avoid harsh results that otherwise would flow from mechanical application of a statute of limitations." See Vispisiano v. Ashland Chem. Co., 107 N.J. 416, 426, 527 A.2d 66 (1987). The discovery rule postpones the accrual of the limitations period until the plaintiff learns or with reasonable diligence should have learned of the existence of the facts which would equate with a cause of action. Royal Indem. Co. v. Petrozzino, 598 F.2d 816, 818 (3d Cir. 1979); Burd v. New Jersey Tel. Co., 76 N.J. 284, 291, 386 A.2d 1310 (1978).

 Whether plaintiff did or did not exercise reasonable diligence in learning of the role of Hub Plastics, Polytop, and Unocal in manufacturing the container need not be decided, because the discovery rule is not applicable in this case. "The discovery rule applies when a party, by the exercise of reasonable diligence, does not know he has a cause of action until some time after the infliction of the injury . . . ." Hernandez v. St. James Hosp., 214 N.J. Super. 538, 543, 520 A.2d 773 (App. Div. 1986). Plaintiff "has been in possession of the container of lighter fluid since the date of the accident," Polytop Brief at 2. Although the wrapper on the container does not indicate that any firm other than Visual Packaging manufactured the container, "From the moment the accident occurred, plaintiff knew of facts that equated with a cause of action. . . . Thus . . . plaintiff is not entitled to protection of the discovery rule, and the statute of limitations began to run on the date of [his] injury." Viviano v. CBS, Inc., 101 N.J. 538, 503 A.2d 296 (1986). Hub Plastics, Polytop, and Unocal were not added as defendants until after the statute of limitations expired. Plaintiff therefore cannot look to the discovery rule to prevent dismissal of the case as to defendants Hub Plastics, Polytop, and Unocal. *fn3"

 Therefore, the "period provided by law" in this case is two years from the date of plaintiff's accident. Not having filed suit against Hub Plastics, Polytop, and Unocal within that period, plaintiff is not entitled to have claims against these parties relate back ...

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