February 15, 2008
DAVID M. BARLOW, PLAINTIFF-APPELLANT,
BURROUGH'S MILL APARTMENTS, MCW APARTMENTS, LLC A/K/A MCW BUILDERS A/K/A MCW CONTRACTORS, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-6375-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 16, 2008
Before Judges R. B. Coleman and Lyons.
Plaintiff David M. Barlow appeals from a trial court's order of February 16, 2007, denying his motion seeking leave to file and serve a first amended complaint against Paradise Construction Corporation (Paradise). We affirm. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.
Plaintiff alleges he was permanently injured on December 30, 2002, when he slipped and fell down the stairs of Unit 604 at the Burrough's Mill Apartment complex. On that date, plaintiff was employed by Heritage Tile and Marble Company as a tile setter. He was performing work in the bathroom of Unit 604 prior to his accident. He claims to have slipped on melted ice and wet mud as he was descending the steps to leave the apartment.
Plaintiff filed suit on October 7, 2004. In his suit he named as defendants Burrough's Mill Apartments, MCW Apartments, LLC (MCW), and John Does Nos. 1, 2, 3, 4, and 5. Burrough's Mill Apartment was the owner of the property where plaintiff was working. MCW was the general contractor for the project. Later in the litigation, Burrough's Mill Apartments named as a third-party defendant, plaintiff's employer, Heritage Tile and Marble Company.
The statute of limitations ran on December 30, 2004. Discovery was conducted and an arbitration hearing was held on June 21, 2006. On September 22, 2006, summary judgment was entered in favor of defendant Burrough's Mill Apartments, as well as third-party defendant, Heritage Tile and Marble Company.
In October 2006, plaintiff became dissatisfied with his then-counsel and retained new counsel. A substitution of attorney dated October 2, 2006, was filed with the court on November 8, 2006. The trial court entered an order dated November 3, 2006, reopening discovery for a period of thirty days to accommodate the entry of new counsel, and compelling prior counsel to deliver his file to plaintiff's new counsel. In addition, an order was entered which adjourned the November 27, 2006, trial date.
Plaintiff's current counsel then embarked on some additional discovery. It deposed the corporate representative of MCW and sought certain records from that entity concerning the project. During the deposition of MCW's representative, Paradise was identified as the entity responsible for pouring concrete for the sidewalks at the Burrough's Mill Apartment project. Following the deposition, documents were produced, which included invoices showing that Paradise was paid for work on the project for the period January 1, 2003, through January 30, 2003. Approximately one week after receiving the invoices on January 26, 2007, plaintiff's counsel filed a motion to amend plaintiff's complaint to name Paradise as a defendant in place of John Doe No. 3. That motion was returnable on February 16, 2007. On February 13, 2007, plaintiff settled his claim against the then remaining defendant, MCW. After hearing oral argument, the trial court denied plaintiff's application to name Paradise as a defendant. This appeal ensued.
On appeal, plaintiff argues that the trial court committed error in denying his motion, because plaintiff immediately filed the motion after learning of the invoices; that Paradise would not have suffered any prejudice; and, that the failure to earlier name Paradise should be attributable to plaintiff's prior counsel. Paradise argues that the trial court's denial was proper because the statute of limitation had run more than two years earlier; plaintiff's claims against the other defendants had already been concluded; it would be seriously prejudiced at this time to defend the claim; and, most importantly, that plaintiff had failed to prove that Paradise was unidentifiable earlier with due diligence. Paradise also argues that plaintiff's description of John Doe No. 3 was not sufficiently specific to enable the fictitious defendant to be identified.
We begin our consideration of plaintiff's argument by restating applicable legal principles as set forth in Claypotch v. Heller, Inc., 360 N.J. Super. 472, 479-80 (App. Div. 2003).
Rule 4:26-4 provides in pertinent part:
In any action, . . . if the defendant's true name is unknown to plaintiff, process may issue against the defendant under a fictitious name, stating it to be fictitious and adding an appropriate description sufficient for identification. Plaintiff shall on motion, prior to judgment, amend the complaint to state defendant's true name, such motion to be accompanied by an affidavit stating the manner in which that information was obtained.
The identification of a defendant by a fictitious name, as authorized by Rule 4:26-4, may be used only if a defendant's true name cannot be ascertained by the exercise of due diligence prior to filing the complaint. Mears v. Sandoz Pharms., Inc., 300 N.J. Super. 622, 631-33 (App. Div. 1997); Cardona v. Data Sys. Computer Ctr., 261 N.J. Super. 232, 235 (App. Div. 1992). If a defendant is properly identified by a fictitious name before expiration of the applicable limitations period, an amended complaint substituting a fictitiously named defendant's true name will relate back to the date of filing of the original complaint. Viviano v. CBS, Inc., 101 N.J. 538, 548 (1986); Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 120-23 (1973). To be entitled to the benefit of this rule, a plaintiff must proceed with due diligence in ascertaining the fictitiously identified defendant's true name and amending the complaint to correctly identify that defendant. Farrell, supra, 62 N.J. at 120; Johnston v. Muhlenberg Reg'l Med. Ctr., 326 N.J. Super. 203, 208 (App. Div. 1999). In determining whether a plaintiff has acted with due diligence in substituting the true name of a fictitiously identified defendant, a crucial factor is whether the defendant has been prejudiced by the delay in its identification as a potentially liable party and service of the amended complaint.
Farrell, supra, 62 N.J. at 122-23. [Claypotch, supra, 360 N.J. Super. at 479-80.]
The initial question, therefore, is whether plaintiff properly identified defendant by a fictitious name in its initial complaint. In count five of plaintiff's initial complaint, paragraph two, John Doe No. 3 is defined as "any person (persons) . . . who worked at the construction site, specifically in or around the building where plaintiff was injured as referred to herein as Burrough's Mill Apartments on or about December 30, 2002, and may have placed the planks at or near the aforementioned steps as well as allow the mud, ice, and water to remain in that area as well." We agree with plaintiff that this description properly identified defendant for purposes of plaintiff's allegations.
However, we reject plaintiff's argument that he proceeded with due diligence in ascertaining the fictitiously identified defendant's true name. Plaintiff argues that it acted with due diligence in moving to amend the complaint after it had the opportunity of additional discovery. There is, however, no explanation, other than the assertion that plaintiff's prior counsel was not diligent, to explain why during a period of over two years from the filing of the complaint, and four years from the date of the accident, plaintiff was unable to discover the true identity of John Doe No. 3. The expeditious efforts of new counsel belie the argument that due diligence could not have quickly uncovered Paradise's identity. Appropriate and thorough discovery clearly would have revealed the identity of Paradise. Plaintiff has failed to demonstrate due diligence in this regard.*fn1
We recognize that a factor in considering whether to permit an amendment in such cases is whether a defendant has been prejudiced by plaintiff's failure to name defendant earlier. Mears, supra, 300 N.J. Super. 622. As we said in Mears, "there cannot be any doubt that a defendant suffers some prejudice merely by the fact that it is exposed to potential liability for a lawsuit after the statute of limitations has run." Id. at 631. Further, we recognize that in this case, the lapse of time has resulted in the settlement of plaintiff's claims against the general contractor and the dismissal of other defendants. At this late hour, Paradise would readily be prejudiced by the need to engage now in extensive discovery, particularly with respect to potential cross-claimants who have already settled with plaintiff. This would certainly impair Paradise's ability to defend.
Accordingly, we are satisfied that the trial court's denial of the motion to amend was not in error.