The opinion of the court was delivered by: ORLOFSKY
ORLOFSKY, District Judge:
Plaintiff, Robert Hulmes ("Hulmes"), filed this product liability action against defendants, Honda Motor Company, Ltd., Honda Research and Development Group, Ltd., Honda R & D North America, Inc., and American Honda Motor Company, Inc. (herein collectively referred to as "Honda"). Honda has moved for summary judgment based on New Jersey's entire controversy doctrine. The entire controversy doctrine is a rule of mandatory joinder, which gives rise to a species of claim preclusion unknown outside New Jersey. The doctrine requires the joinder of all claims and parties, whenever possible, in a single action and frequently operates in unpredictable ways to bar subsequent actions by parties who have failed to observe the doctrine in a prior litigation.
The question presented for this Court's resolution is whether a voluntary, but admittedly inadvertent,
dismissal "with prejudice" of a State court "John Doe" action,
in which only a fictitious defendant was named, one week after it was filed, and before the complaint was served or any discovery conducted, amounts to a "prior action" within the meaning of the entire controversy doctrine so as to bar this suit against a manufacturer of an allegedly defective product, not named or otherwise identified in the original "John Doe" complaint. This question is one of first impression in New Jersey. For the reasons which follow, this Court finds that the entire controversy doctrine does not apply in these circumstances. Accordingly, Honda's motion for summary judgment will be denied.
I. Facts and Procedural History
On July 28, 1991, Hulmes was severely injured as the result of a collision which occurred while he was riding a three-wheeled, All-Terrain Vehicle ("ATV") designed and manufactured by Honda. The disputed facts and circumstances surrounding the accident and plaintiff's injuries are not material to Honda's motion for summary judgment.
Sometime prior to October, 1992, plaintiff retained Larry E. Coben, Esq. ("Coben"), then of the firm of Litvin, Blumberg, Matusow, & Young, in Philadelphia, to represent him. Sometime in 1992, Dr. Jeffrey C. Huston, who has been identified as one of plaintiff's expert witnesses in this trial, was hired, presumably by Coben, to prepare a report on the ATV, which he inspected on June 1, 1992. Honda's Reply Brief, exhibit B, at 1.
In November, 1992, Coben telephoned Michael A. Kaplan, Esq. ("Kaplan"), a shareholder in the New Jersey law firm of Tomar, Simonoff, Adourian and O'Brien (the "Tomar Firm"),
and asked him to file a "John Doe" complaint on behalf of Hulmes. Certification of Michael A. Kaplan, Esq. ("Kaplan Certif.") P 2, attached as exhibit A to Plaintiff's Brief in Opposition to Defendants' Motion for Summary Judgment ("Hulmes' Brief").
On December 30, 1992, the Tomar Firm, on behalf of plaintiff, Robert T. Hulmes, filed a "John Doe" complaint in the Law Division of the Superior Court of New Jersey in Gloucester County. Brief in Support of Motion for Summary Judgment on behalf of Honda Motor Company, Ltd., Honda Research and Development Group, Ltd., Honda R & D North America, Inc., and American Honda Motor Company, Inc. ("Honda's Brief"), exhibit B. This complaint, bearing Docket Number L-2893-92, was captioned "ROBERT T. HUMES (sic), vs. JOHN DOE, a fictitious name, Defendant." Id. In this complaint, defendant, "John Doe," was described as "the owner and operator of an all-terrain vehicle travelling in a generally westerly direction on West Hunterdon Avenue toward its intersection with Fairview Avenue in the City of Mantua, County of Gloucester, and State of New Jersey." Id. (Complaint P 2).
One week later, on January 6, 1993, this action was dismissed "with prejudice" on the plaintiff's own notice of dismissal. Id. exhibit C. On the same day, January 6, 1993, the Tomar Firm filed a second "John Doe" action on behalf of Hulmes in the Law Division of the Superior Court in Gloucester County which was docketed as L-23-93. This second action, which bore the same caption as the first, now described "John Doe" as the "person, corporation, or other entity that was responsible for plaintiff's all-terrain vehicle rolling over." Exhibit C (Complaint P 2) to Kaplan Certif., attached as exhibit A to Hulmes' Brief. No amendment of the first complaint (Docket No. L-2893-92) was ever offered to identify an actual defendant, and the complaint was never served on Honda or any other defendant.
Kaplan Certif. P 5; Certification of Andrew Brekus, Esq., ("Brekus Certif.") P 4, attached as exhibit B to Hulmes' Brief. The second "John Doe" complaint (Docket No. L-23-93) was subsequently dismissed without prejudice, some six months after the action in this Court was filed. Kaplan Certif. P 10.
It was not until after the first "John Doe" complaint had been filed in the Law Division that Kaplan realized, on reviewing the pleading, that it "misidentified the Johne (sic) Doe defendant." Kaplan Certif. P 6. Kaplan assigned Andrew Brekus, an associate at the Tomar Firm at the time, to correct this oversight. Id. For some unexplained reason, Brekus opted not to amend the "John Doe" complaint filed on December 30, but chose instead to dismiss the first complaint and file a second one. Brekus Certif. at P 9. According to Brekus, "when typed, the Notice of Dismissal indicated it was with prejudice. I did not realize this mistake." Id. P 8. Brekus then signed Kaplan's name to the Notice of Dismissal and filed it. Id. P 7. Kaplan confirms these facts, admitting that the characterization of the dismissal as "with prejudice" was "clearly a clerical mistake." Kaplan Certif. P 8. Kaplan further asserts that there "was no reason for any dismissal to be filed on January 6, 1993 by Mr. Brekus except without prejudice." Id. P 9.
On June 28, 1993, Hulmes filed his complaint in this Court. Subsequently, on July 27, 1993, plaintiff, Sherry Hulmes, filed her per quod action, which was consolidated with Hulmes' action pursuant to an Order entered by Judge Rodriguez on September 9, 1993. Since then, the parties have engaged in a protracted and often tumultuous regime of discovery in this Court, which is still proceeding.
On April 9, 1996, defendants filed their Notice of Motion for Summary Judgment based upon the entire controversy doctrine. Honda contends that the case filed by Hulmes in this Court is barred because plaintiff had the "opportunity" to join Honda in the original "John Doe" action filed in the Law Division on December 30, 1992 (Docket No. L-2893-92), and inadvertently dismissed with prejudice one week later, but failed to do so. Honda insists that the filing of the second "John Doe" suit in the Law Division, which correctly describes the vehicle manufacturer, is immaterial to the disposition of this motion. At oral argument, counsel for Honda acknowledged that its motion was based only on the first "John Doe" action, which was dismissed one week after it was filed. Honda's counsel candidly admitted that if the second "John Doe" action had been filed first, Honda would not have filed this motion, which is based exclusively on the entire controversy doctrine. Transcript of Oral Argument, May 3, 1996, ("Tr. of Oral Argument") at 6-8.
II. Standard for Summary Judgment
A party seeking summary judgment must "show that there is no genuine issue as to any material fact and that [he] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56 (c). See also Hersh v. Allen Products, Co., 789 F.2d 230, 232 (3d Cir. 1986); Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983). The district court must grant summary judgment when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir. 1996).
For the purposes of this motion, the parties are in substantial agreement on the facts outlined above. Thus, this motion presents only questions of law and is ripe for summary adjudication. Nation Wide, Inc. v. Scullin, 256 F. Supp. 929, 932 (D.N.J. 1966), aff'd, 377 F.2d 554 (3d Cir. 1967).
III. Standards for Deciding Unsettled Questions of State Law
The New Jersey Supreme Court has not addressed whether the entire controversy doctrine bars a second action when the first suit, a "John Doe" action, was inadvertently dismissed with prejudice one week after it was filed. Accordingly, this Court must predict how the Supreme Court of New Jersey would rule in this case. If New Jersey permitted federal courts to certify questions of state law to its Supreme Court, this question would be appropriate for such a certification procedure. See Hakimoglu v. Trump Taj Mahal Assoc., 70 F.3d 291, 293 (3d Cir. 1995); see id. part V, at 302-04 (Becker, J., dissenting, joined, in part V only, by Nygaard and Alito, JJ.) (describing the overwhelming satisfaction of federal judges with state certification procedures where they exist and urging New Jersey to adopt certification).