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Simpkins v. 7-Eleven

April 7, 2008

KEITH SIMPKINS, PLAINTIFF-APPELLANT,
v.
7-ELEVEN, INC., A/K/A/ THE SOUTHLAND CORPORATION, SEVEN ELEVEN STORE NO. 23786 AND SAMUEL PASHI, DEFENDANTS-RESPONDENTS, AND OMAR SOSA AND FRANK GUTSCHOW, DEFENDANTS.



On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1910-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 4, 2008

Before Judges Coburn and Fuentes.

Plaintiff Keith Simpkins was a customer in a franchised 7-Eleven convenience store when he was attacked and stabbed by another customer. Plaintiff brought a lawsuit against the 7-Eleven corporation and the individual franchisee who operated the store where he was assaulted. Plaintiff appeals from three orders issued by the Law Division in connection with this suit.

Specifically, plaintiff appeals from the orders: (1) denying his belated application to add Barbara Gutschow, the franchisee at the time of the attack, as a party defendant in the suit; (2) granting defendant Samuel Pashi's motion for summary judgment, based on plaintiff's failure to present sufficient evidence showing that Pashi, the current franchisee, had assumed the liabilities of the prior franchisee; and (3) granting corporate 7-Eleven's summary judgment motion, because plaintiff had not shown that 7-Eleven had exhibited sufficient control over the individual franchisee to render it vicariously liable for plaintiff's injuries.

After reviewing the record, and mindful of controlling legal principles, we affirm. We will recite the salient facts from the record developed before the Law Division.

I. The Assault

The incident that gave rise to this law suit occurred on Saturday June 24, 2000, between 12:30 a.m. and 1:00 a.m. Omar Sosa was standing outside of a Hamilton Township 7-Eleven store when plaintiff and his companion Dennis Sheppard arrived. Sosa had come to the store immediately after being ejected from a nearby bar for rowdiness. Sosa had been inside the store before plaintiff's arrival, and had asked the sole clerk on duty, Stephen Aaron, whether Aaron had seen Sosa's girlfriend.

According to Aaron, Sosa was visibly intoxicated; between 9:00 p.m. and 1:00 a.m., Sosa had consumed "four doubles and . . . two or three beers," and had smoked two or three marijuana cigarettes. In fact, Sosa described himself as being "intoxicated" by the time he arrived at the 7-Eleven. Neither plaintiff nor Sheppard had consumed either alcohol or drugs that night.

When plaintiff and Sheppard entered the 7-Eleven, Sosa followed closely behind them. As plaintiff went to the coffee station, Sosa immediately bumped into Sheppard, who described the bump as "real hard, not a regular you [sic] bump into someone. This was purposely to start a fight." Wishing to avoid a confrontation, Sheppard ignored Sosa's conduct and proceeded to the check-out counter to buy cigarettes. Sheppard stood in front of the counter for approximately a minute waiting for Aaron, the only store-employee on duty, to return from emptying a bucket of water outside.

At this point, Sosa came close to Sheppard and began talking to him. Sheppard described the encounter as follows:

He asked if I had a problem, is that my gray car outside. I was, like, yeah. He said, you want to get in your car and get the f' out of here, you know. He was whispering, like - saying names in my ear, like, you're a coward, a pussy, a faggot, get out of here, blah, blah, blah, you know.

While this was taking place, Sheppard noticed that Sosa was holding what appeared to be "a butcher knife." Sosa tapped Sheppard on the hip with the knife while making the abusive remarks. Frightened by Sosa's behavior, Sheppard motioned to plaintiff that the two of them should leave the store. Sheppard then turned from Sosa and started to walk towards the exit.

As Sheppard turned away from Sosa, plaintiff saw Sosa "tr[y] to lunge after" Sheppard. Plaintiff came from behind Sosa and grabbed him. In the ensuing scuffle, Sosa stabbed plaintiff multiple times. Plaintiff finally broke free from Sosa and ran out of the store. Sheppard drove plaintiff to the hospital.

After plaintiff and Sheppard drove away, Sosa left the store and ran down the street, still in an agitated state. Store-employee Aaron witnessed the struggle between Sosa and plaintiff. Aaron's only reaction was to make several telephone calls from an emergency phone kept behind the counter. He first called his girlfriend's brother, June Figueroa (an individual whom Aaron referred to as his brother-in-law).

Aaron lived with Figueroa directly across the street from the 7-Eleven store. Because Figueroa and Sosa were friends, Aaron hoped that Figueroa would come calm Sosa down. Remarkably, Sosa had been staying with Aaron and Figueroa after Sosa's girlfriend had thrown him out of her apartment. Aaron called the police to report the incident only after he had called Figueroa. Finally, Aaron reported the incident to his employer's spouse, Frank Gutschow, and the assistant manager Donna Brophy.

II. The Litigation

Plaintiff filed this personal injury cause of action on June 7, 2002, twenty-two days before the expiration of the two-year statute of limitations. N.J.S.A. 2A:14-2. The complaint initially named 7-Eleven, Inc., Seven Eleven Store No. 23786, and Omar Sosa as defendants. The complaint also named ABC Corporations 1-99 and John Doe 1-99 as fictitious parties. As to 7-Eleven and the Hamilton store, plaintiff alleged that these two defendants had breached their duty to protect plaintiff, as "a business visitor lawfully on the premises."

Defendant 7-Eleven filed an answer denying any liability. Samuel Pashi responded on behalf of defendant Hamilton store. In his answer, Pashi acknowledged that he was the current franchisee of Seven Eleven Store No. 23786, located in Hamilton, New Jersey. Pashi asserted, however, that at the time of Sosa's attack on plaintiff, the franchisee was Barbara Gutschow.

One year after receiving Pashi's responsive pleading denying liability, and more than three years after the date of the incident, plaintiff moved before the trial court: (1) for leave to file an amended complaint to add Barbara Gutschow as a party defendant; (2) to reinstate his complaint against Sosa, which had apparently been dismissed under R. 1:13-7 for lack of prosecution; and (3) for an extension of the relevant discovery end-date.*fn1

III. Motion to Add Barbara Gutschow as a Party Defendant

At oral argument before the motion judge, plaintiff's counsel conceded that, for over a year, he had known of Barbara Gutschow's identity as the franchisee at the time of the attack on his client. Counsel nevertheless argued that defendants would not be prejudiced by the court allowing plaintiff to amend his complaint at this late hour.

Both 7-Eleven and Pashi argued that plaintiff had failed to sufficiently describe the John Doe defendants to toll the running of the statute of limitations as to Barbara Gutschow. Furthermore, defendants argued that allowing plaintiff to amend his complaint at this juncture would result in undue delay. In response, plaintiff argued that these defendants did not have standing to assert Barbara Gutschow's statute of limitations defense.

The trial court gave the following explanation for denying plaintiff's motion:

[T]his motion to file an amended complaint does not meet the standard for when amendments re[late] back; Rule 4:9-3. While leave to amended [sic] complaints should be fully granted, such relief should not be granted, whereas in this case, the plaintiff has been on notice of the proposed newly-added defendant for more than one year, and failed to seek the appropriate amendment.

[T]he question is that the Court does not have to grant a motion for leave to file an amended complaint when to do so would ultimately result in a dismissal of the complaint as a [matter] of law.

[T]here is no dispute in this matter that you were put on notice. Whether it is true or not, there is no dispute in this matter that the defendants have been on notice for more than a year, that at least there is an allegation that the proposed newly-added party was the owner of ...


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