On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-1393-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 10, 2008
Before Judges Stern, Lyons and Waugh.
Plaintiff John Baker appeals three orders dismissing his second amended complaint as to defendants North Wales Millwork, Inc., Leedo Cabinetry, and Celadon Trucking in this construction-site personal injury action.*fn1 When the action was originally filed, defendant J.J. DeLuca Company, Inc., was the only defendant specifically named in the complaint, which also named fictitious defendants. See R. 4:26-4.
Following expiration of the two-year statute of limitations, N.J.S.A. 2A:14-2, Baker learned the identity of three additional defendants and was twice granted leave to amend his complaint to add them as named defendants. In the orders under appeal, the trial court granted motions for summary judgment dismissing the second amended complaint with prejudice as to those additional defendants. The motion judge found that Baker did not exercise "due diligence" to identify the fictitious defendants prior to the expiration of the statute of limitations. The motion judge subsequently denied Baker's motion for reconsideration. We granted Baker's motion for leave to appeal, and now reverse.
In December 2004, Baker was employed as a carpenter by Brookside Construction Company, which was a subcontractor on a project known as "The Cliff's at Eagle Rock" in Essex County. DeLuca was the general contractor.
On December 4, 2004, a tractor trailer arrived at the worksite with a load of materials. According to Baker, he was requested by a representative of DeLuca to assist in unloading the tractor trailer. In the process, Baker alleges that he was injured when some of the contents of the trailer fell on him. He further alleges that he was unable to work from the date of the accident through July 1, 2005, because of his injuries.
The original complaint was filed on February 9, 2006, and named only DeLuca as a defendant. Pursuant to Rule 4:26-4, the complaint also named fictitious defendants, denominated as "John Does," representing "presently unidentified individuals, businesses and/or corporations, who owned, operated, maintained, supervised, designed, constructed, repaired and/or controlled either the vehicle or the materials in question, or were otherwise responsible for loading transporting and/or delivering the materials or were otherwise responsible for causing them to shift."
When Baker's complaint was served on DeLuca, it was accompanied by a notice to produce that requested copies of the contractual documents between DeLuca and the fictitious defendants. In June 2006, Baker served a second notice to produce on DeLuca, seeking copies of photographs, video recordings, or other illustrations concerning the tractor trailer, its contents, or the happening of the accident. At the same time, supplemental interrogatories were served on DeLuca, specifically seeking the name and address of the owner and operator of the tractor trailer, the name and address of the entity whose product was contained in the trailer, the contents of the trailer, and the identity of the individuals responsible for either loading or unloading the trailer.
DeLuca responded to uniform interrogatories, R. 4:17-1(b)
(1), to the effect that it did not have any information concerning the other entities involved in Baker's accident. In response to the supplemental interrogatories, DeLuca responded that it did not know the owner or operator of the tractor trailer, the identity of the supplier of the product being delivered to the site, the identity of those responsible for loading or unloading the trailer, or the nature of the product being delivered. DeLuca provided an incident report related to Baker's accident, but the report did not identify any of the fictitious parties. Baker also obtained a copy of the worker's compensation insurer's complete file in March 2006, but the file did not identify any of the fictitious defendants.
On November 6, 2006, Baker's counsel wrote to counsel for DeLuca and requested more responsive answers to the supplemental interrogatories, again seeking information about the fictitious defendants, such as the identity of the unknown tractor trailer driver and the contents of the trailer. Baker's counsel contacted DeLuca's counsel directly on numerous occasions during the same general time period, but was advised that DeLuca had lost its construction file and could not locate any documents or information regarding the identity of the fictitious defendants.
Beginning on September 8, 2006, Baker's counsel served several notices for the deposition of a representative of DeLuca. The deposition never took place because DeLuca had no representative with any knowledge concerning the accident or the identity of the fictitious defendants.
By order dated November 3, 2006, the discovery end date was extended at Baker's request. The order also extended, for ninety days, the time within which Baker could amend its complaint to add additional defendants. That ninety-day period extended past the expiration of the two year statute of limitations. N.J.S.A. 2A:14-2. However, the order itself did not purport to extend the statutory limitations period.
On January 22, 2007, after the statute of limitations had expired, the parties attended a court-ordered mediation. At the mediation, DeLuca for the first time identified North Wales as one of the fictitious defendants. On January 31, 2007, Baker filed a motion for leave to file an amended complaint to name North Wales as a direct defendant and to extend discovery. That motion was granted on February 16, 2007. The amended complaint naming North Wales was received by the court clerk on or about February 21, 2007, but was returned due to an error in the clerk's office. A clarifying order was entered on March 9, 2007, and the amended complaint was re-filed on March 27, 2007.
That delay in the actual filing of the amended complaint was not the fault of Baker's counsel.
On July 3, 2007, North Wales filed its answer and third-party complaint naming Leedo and Celadon as third-party defendants, alleging that they were responsible for the packing and shipping of the materials to the construction site. On July 20, 2007, Baker filed a motion for leave to file a second amended complaint to name Leedo and Celadon as direct defendants. The motion was granted on August 17, 2007. The second amended complaint was filed on August 20, 2007.
North Wales, Leedo, and Celadon filed separate motions for summary judgment, arguing that Baker's claims against them were barred by the statute of limitations. The first two motions, North Wales and Leedo's, were argued on November 2, 2007, and granted on November 26, 2007. Although Baker opposed the motion, the letter brief in opposition did not contain the detailed recitation of the efforts to identify the fictitious defendants provided above, nor was it accompanied by a certification of counsel. See R. 1:6-6. At oral argument, one of Baker's attorneys orally advised the motion judge that additional steps had been taken to identify the fictitious defendants.
The motion judge issued a written decision with respect to North Wales' motion. In pertinent part, he wrote:
As to plaintiff's reliance on R. 4:9-3, the sole issue in dispute would appear to be whether the plaintiff exercised due diligence in seeking to identify North Wales. The test for due diligence would appear to be two-pronged: first, whether the plaintiff exercised due diligence in identifying North Wales as a potential defendant; and, second, did the plaintiff act with due diligence in substituting North Wales as a direct defendant once it became aware of North Wales as a potential defendant, Claypotch v. Heller,  N.J. Super. 472 (App. Div. 2003).
As to the first prong, "even if a plaintiff does not know the identity of a [defendant], he... will be precluded from using R. 4:26-4 if, through the use of diligence, he... should have known the defendant's identity prior to the running of the statute of ...