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Falor v. G&S Billboard

May 7, 2007

GARRY R. FALOR, PLAINTIFF,
v.
G&S BILLBOARD, CONMACO/RECTOR L.P., CONMACO, INC., HERCULES MACHINERY CORPORATION, HMC NORTHEAST, INC., J&M HYDRAULICS, INC., AMERICAN PILEDRIVING EQUIPMENT, INC., IN ITS OWN RIGHT AND AS SUCCESSOR IN INTEREST TO J&M HYDRAULICS, INC., BRUCO INDUSTRIES, INC., QUIKCUT, INC., IN ITS OWN RIGHT AND SUCCESSOR IN INTEREST TO BRUCO INDUSTRIES, INC., JOHN DOE #6, JOHN DOE #7, AND JOHN DOE # 8 DEFENDANTS.
G&S BILLBOARD THIRD PARTY PLAINTIFF,
v.
HERCULES MACHINERY CORP., AMERICAN PILEDRIVING EQUIPMENT, INC., IN ITS OWN RIGHT AND AS SUCCESSOR IN INTEREST TO J&M HYDRAULICS, INC. D/B/ HMC NORTHEAST, INC., BRUCO INDUSTRIES, INC., AND JOHN DOES #1-10 THIRD PARTY DEFENDANTS



The opinion of the court was delivered by: Salas, United States Magistrate Judge

REPORT AND RECOMMENDATION

I. INTRODUCTION

This matter comes before the undersigned on: (1) Defendant QuikCut, Inc.'s ("QuikCut") motion for leave to file a late motion to dismiss (Docket Entry #95), (2) Plaintiff Garry Falor's ("Plaintiff") cross-motion for entry of default judgment against Defendant QuikCut (Docket Entry #99), (3) Plaintiff's motion for default judgment against Defendant J&M Hydraulics, Inc. ("J&M") (Docket Entry #93), and (4) Defendant J&M's motion to set aside default (Docket Entry #106). The Honorable Harold A. Ackerman, Senior United States District Judge, referred said motions to the undersigned for report and recommendation pursuant to Local Civil Rule 72.1(a)(2).

II. BACKGROUND

A. Factual Background*fn1

Plaintiff alleges injuries arising out of an August 20, 2002 accident that occurred in the course of his employment. (Op. & Order at p. 3, October 23, 2006). Plaintiff's employer, non-party J. Fletcher Creamer & Sons, Inc. ("Creamer"), contracted with G&S Billboard ("G&S") to erect a billboard adjacent to the New Jersey Turnpike. (Id.) Plaintiff was working in furtherance of Creamer's performance under said contract when the August 20, 2002 accident occurred. (Id.)

B. October 23, 2006 Opinion and Order

On October 23, 2006, this Court dismissed Plaintiff's claims against certain Defendants and permitted Defendant G&S to file a third party complaint against the group of dismissed Defendants. (Op. & Order p. 13-14, October 23, 2006). This group of former- Defendants, that have since become Third Party Defendants, includes Bruco Industries, Inc. ("Bruco"), Hercules Machinery Corp. ("Hercules"), and American Piledriving Equipment, Inc. ("APE"). (See generally id.) After rejecting Plaintiff's argument that New Jersey's fictitious party rule (N.J.R. 4:26-4) authorized relation back pursuant to Rule 15(c), the Court held that Plaintiff's claims against Bruco, Hercules, and APE were time-barred pursuant to N.J.S.A. § 2A:14-2 -- New Jersey's two-year personal injury statute of limitations. (See id. at 6-10). Finally, the Court rejected Plaintiff's argument subparagraphs (c)(2) or (c)(3) of Federal Rule of Civil Procedure 15 authorized relation back. (See id. at 10-11).

Next, the Court granted Defendant G&S' motion to file a third party complaint against Bruco, Hercules, and APE. (Id. at 11-13). Citing the United States Supreme Court's decision in Karcher, the Court held that a party dismissed from an action can thereafter be named as a third party defendant. (Id. at 12-13). Furthermore, the Court held that Plaintiff's claims against Defendants Conmaco, Inc. ("Conmaco"), HMC Northeast, Inc. ("HMC Northeast"), J&M, and QuikCut remained as said Defendants did not join in the motion to dismiss. (Id. at 13). Finally, the Court determined that Defendant G&S could file cross-claims against the remaining Defendants but could not assert third party claims against them. (Id. at 13).

C. Current Procedural Posture

On November 8, 2006, Defendant G&S Billboard filed a third party complaint against Bruco, Hercules, and APE. (Docket Entry #77). While Third Party Defendants Bruco and Hercules answered, Third Party Defendant APE moved for summary judgment. Third Party Defendant Hercules' answer includes cross-claims against Third Party Defendants APE and Bruco and a counterclaim against Defendant G&S. (Docket Entry #83). Third Party Defendant Bruco, on the other hand, asserts cross-claims against Third Party Defendants APE and Hercules.

(Docket Entry #91). Finally, Third Party Defendant APE's motion for summary judgment is pending before Judge Ackerman. (Docket Entry #90).

Since assuming case management responsibilities on November 21, 2006, the undersigned has attempted to continue Magistrate Judge Falk's concerted effort to manage this aging civil action. To this end, I entered a Scheduling Order setting a new discovery end date of August 15, 2007. (Docket Entry #89) On December 21, 2006, I conducted a telephone conference with the parties in an attempt to resolve Defendant QuikCut's then-informal ...


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