On October 18, 1986, the plaintiff, Antonio Garay, allegedly was injured while working at a plant of The Newark Star-Ledger in Piscataway. The original complaint was filed on September 28, 1988, against The Star-Ledger, Colin Services Systems (plaintiff's employer), and a fictitious corporation, designated as ABC Corporation, as permitted by R. 4:26-4. On January 15, 1991, over two years after suit was filed, and over four years after the incident in suit, plaintiff sought leave to file an amended pleading naming FMC Corporation as the defendant previously identified by the fictitious name. The court granted leave without prejudice to FMC's statute of limitations defense. Plaintiff claims that FMC is liable on various product liability theories as the manufacturer of the machine that allegedly caused the injury.
FMC has moved for summary judgment with prejudice as to all claims and crossclaims. It asserts that plaintiff is not entitled to the protection of R. 4:26-4 because he did not act with reasonable diligence to ascertain the identity of FMC. FMC also claims that it was prejudiced by the delay.
It appears that summary judgment is not the correct procedure for FMC to have employed in this context, but in the absence of an objection by plaintiff to FMC's choice of procedure, the court will address the substance of FMC's motion. Under the summary judgment procedure of R. 4:46 invoked by FMC, a motion can be defeated simply by the opposition proffering a single genuine issue of material fact. The timeliness of the identification of a fictitious defendant under R. 4:26-4, however, as all counsel agreed at oral argument, is a question of law for the court to resolve by balancing competing factors, which includes a discretionary exercise of judgment. The court will employ the latter standard, which may favor FMC more than the summary judgment standard.
As the language of the Rule itself indicates, the principal basis for employing R. 4:26-4 in the first instance is that the true identity of the defendant is unknown to the plaintiff. Marion v. Borough of Manasquan, 231 N.J. Super. 320, 334, 555 A.2d 699 (Law Div.1989). When, as here, the statute of limitations has run, and the plaintiff then seeks to name a defendant joined under a fictitious name, the courts have additionally required that the plaintiff demonstrate the exercise of reasonable diligence to ascertain the identity of the party in question and also show that the defendant will not be unduly prejudiced by the late filing. Farrell v. Votator Division of Chemetron Corp., 62 N.J. 111, 299 A.2d 394 (1973); Hernandez v. St. James Hospital, 214 N.J. Super. 538, 520 A.2d 773 (App.Div.1986).
It is not seriously contested that the actions of plaintiff's original attorney may well have fallen short of customary standards of diligence insofar as a pursuit of the identity of
FMC is concerned. In fact, plaintiff's present attorney acknowledges,
It is undisputed that plaintiff's original attorney engaged in no discovery and that there was no "real" discovery until the undersigned assumed the representation of plaintiff in this matter. (Plaintiff's Brief at 8).
It is the actions or inactions of plaintiff's original attorney that give rise to all or most of FMC's assertions on this motion. That attorney made no known effort to seek discovery from the defendant Star-Ledger as to the identity of the fictitiously-named manufacturer. Indeed, such discovery was not pursued until nearly four years after the accident, following the entry into action of plaintiff's present counsel.
Plaintiff contends that The Star-Ledger barred access to its plant and that his original counsel was hampered in ascertaining the identity of the manufacturer of the machine because of an insurance coverage dispute between The Star-Ledger and his employer. Accepting this as true, plaintiff nevertheless could have propounded interrogatories, taken depositions, and moved for an order compelling admittance to the property. Plaintiff's original counsel did none of these things. But it is undisputed that diligence prevailed once plaintiff obtained a new attorney in mid-1990.
In light of these circumstances, it is necessary to consider whether the shortcomings of plaintiff's original counsel should bar plaintiff from pursuing FMC, and it is also necessary to analyze FMC's contention that genuine prejudice has intervened to hamper its defense.
The "balance of individual considerations of justice and repose" referred to in Farrell, 62 N.J. at 122, 299 A.2d 394, is a reminder that the objective is not to punish a party in response to the shortcomings of a former attorney. The objective is to do justice. Indeed, R. 1:1-2 mandates that the Rules of Court, which includes R. 4:26-4, "shall be construed to secure a just determination . . . [and] fairness in administration." This ...