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Baker v. J.J. De Luca Co.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 10, 2008

JOHN BAKER AND LULU BAKER, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
J.J. DE LUCA COMPANY, INC., NORTH WALES MILLWORK, INC., LEEDO CABINETRY, AND CELADON TRUCKING, DEFENDANTS-RESPONDENTS, AND J.J. DE LUCA COMPANY, INC., DEFENDANT/THIRD-PARTY PLAINTIFF-RESPONDENT,
v.
NORTH WALES MILLWORK, INC., DEFENDANT/THIRD-PARTY DEFENDANT/ FOURTH PARTY PLAINTIFF-RESPONDENT,
v.
LEEDO CABINETRY AND CELADON TRUCKING, FOURTH PARTY DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-1393-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

I.

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, [360] 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 limitation", Mears v. Sandoz, 300 N.J. Super. 622, 629 (App. Div. 1997).

This record is void of any evidence of any steps taken by the plaintiff to ascertain, prior to filing of the complaint on February 27, 2006, the identity of potential defendants other than those named by defendant DeLuca in the third-party complaint. The aforementioned rule is not intended to protect a plaintiff who has had ample time to discover unknown defendants' identification before the statute of limitations runs, Matynska v. Fried, 175 N.J. [51] (2002). The record demonstrates that after the filing of the original complaint, the only steps taken by the plaintiff to ascertain the identities of the various fictitious defendants was to serve a set of interrogatories on defendant DeLuca.

Accordingly, I find the plaintiff failed to exercise due diligence in identifying North Wales and, as such, I need not address the second prong of the test.

Plaintiff argues that even if he did not exercise due diligence, defendant North Wales has not shown any prejudice to it as a result thereof, and that, therefore, the amendment should be permitted. In support thereof, plaintiff relies on Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111 (1973) and Claypotch. Although the reasoning in Claypotch would be supportive of this argument, the Court in Mears points out that prejudice is not a requirement, but a condition.

I am satisfied that the facts in Claypotch are distinguishable from the facts in the within matter in that in Claypotch, the defendant was already in the case via a third-party complaint, and the Court therein seemed to exclude incidents where the complaint is the first notice from its earlier position which says any delay implicates the policy of repose a statute of limitations is designed to serve. In balancing the right of a plaintiff to pursue his or her cause of action against the policy of repose a statute of limitation is designed to serve, I find the plaintiff's failure to take reasonable investigative action, coupled with the failure to pursue discovery aggressively, outweighs any lack of actual prejudice to North Wales. Accordingly, summary judgment will be entered in favor or defendant North Wales and against plaintiff Baker.

He applied the same reasoning in granting Leedo's motion.*fn2

Celadon's motion was not returnable until December 7, 2007. On November 27, 2007, Baker's counsel filed a certification in opposition to Celadon's motion, setting forth various efforts to ascertain the identity of the fictitious parties. The certification, in pertinent part, stated as follows:

2. I make this Certification for the purposes of introducing exhibits to the Court for its consideration of the plaintiff's opposition to defendant Celadon Trucking's motion for summary judgment.

3. I spoke to counsel for defendant J.J. DeLuca on various occasions during the discovery to find out if the defendant was able to identify the parties responsible for the subject truck and materials.

4. Defendant J.J. DeLuca did not identify any entities as being responsible for either the truck or the materials on the truck until it identified North Wales Millwork, Inc. as the company making the delivery until January 22, 2007 at a court ordered mediation.

5. Defendant J.J. DeLuca did not identify Celadon as a responsible entity at any point in the discovery.

6. Attached hereto as Exhibit A is a true and accurate copy of the Planitiff's Answers to Interrogatories.

7. Attached hereto as Exhibit B is a true and accurate copy of Defendant J.J. DeLuca's Answers to Interrogatories.

8. Attached hereto as Exhibit C is a true and accurate copy of Supplemental Interrogatories Served on Defendant J.J. DeLuca.

9. Attached hereto as Exhibit D is a true and accurate copy of the incident report regarding the plaintiff's accident.

....

21. Attached hereto as Exhibit P is a true and accurate copy of the September 8, 2008 Deposition Notice.

22. Attached as Exhibit Q is a true and accurate copy of the deposition of John Baker.

At the December 7, 2007, oral argument, Baker's counsel requested an opportunity to supplement the record with additional information about its efforts to identity the fictitious defendants. He also notified the motion judge that he was preparing a motion for reconsideration with respect to the earlier decisions concerning North Wales and Leedo. The motion judge initially discussed adjourning Celadon's motion, so that it could be heard simultaneously with plaintiff's motion for reconsideration as to North Wales and Leedo, but ultimately granted Celadon's motion, relying on his earlier opinion with respect to North Wales. Because the motion judge relied upon his earlier letter opinion on the North Wales motion, it is not clear from the record whether he considered the additional information contained in the certification filed by Baker's counsel on November 27, 2007.

Baker's motion for reconsideration of all three summary judgment orders was filed on December 13, 2007, and argued on January 4, 2008. Although not denominated as such in the moving papers, Baker's counsel orally requested that the motion judge also consider the motion as one to vacate the prior orders granting summary judgment, R. 4:50-1, in addition to a motion for reconsideration pursuant to Rule 4:49-2.

The motion judge denied the motion for reconsideration, concluding that the record that had been before him on the summary judgment motions did not contain sufficient evidence of "diligent inquiry" to satisfy the requirements of the case law. He acknowledged that the motion for reconsideration set forth more information than had been set forth in the original opposition to motions, but he determined that, on a motion for reconsideration, he should consider only the record on the original motions. Plaintiff filed a timely motion for leave to appeal, which we granted on March 12, 2008.

II.

Like the discovery rule, which benefits plaintiffs who do not know that they have a compensable injury, fictitious party practice is a mechanism for tolling the statute of limitations for the benefit of plaintiffs who know they have been injured, but do not know the identity of the tortfeasor. Viviano v. CBS, Inc., 101 N.J. 538, 547-49 (1986) ("Both the practice and the rule emanate from our attempt to balance the defendant's interest in repose with the plaintiff's interest in a just determination of his or her claim. The need to submit claims promptly to judicial management must be tempered by the policy favoring the resolution of claims on their merits.").

In Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111 (1973), which appears to be the Supreme Court's first discussion of Rule 4:26-4, the Court analogized the public policy considerations underlying the fictitious party practice to that supporting the discovery rule, in which "the considerations of individual justice and the considerations of repose are in conflict and other factors may fairly be brought into play." Id. at 115. After discussing the history of the discovery rule and fictitious party practice, the Court concluded: "Justice impels strongly towards affording the plaintiffs their day in court on the merits of their claim; and the absence of prejudice, reliance or unjustifiable delay, strengthens the conclusion that this may fairly be done in the matter at hand'without any undue impairment of the two-year limitation or the considerations of repose which underlie it.'" Id. at 122 (quoting Fernandi v. Strully, 35 N.J. 434, 451 (1961)). See also Viviano, supra, 101 N.J. at 549 (quoting the same language).

In Claypotch v. Heller, Inc., 360 N.J. Super. 472 (App. Div. 2003), we outlined the requirements for fictitious party practice:

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.

[Id. at 479-80.]

In addition to due diligence prior to the filing of the complaint naming fictitious parties, a plaintiff seeking to rely on the relation back aspect of fictitious party practice must use due diligence to ascertain a fictitious defendant's identity between the filing of the complaint and the date on which the statute of limitations would ordinarily run. Mears v. Sandoz Pharms., Inc., 300 N.J. Super. 622, 630 (App. Div. 1997). Once the identity of the fictitious defendant is ascertained, the plaintiff must act expeditiously in amending the complaint to name that defendant. Johnston v. Muhlenberg Reg'l Med. Ctr., 326 N.J. Super. 203, 207-08 (App. Div. 1999).

There do not appear to be any reported cases defining the exact parameters of the "due diligence" required of a plaintiff in ascertaining the identity of a fictitious defendant. The individual factual circumstances of the reported cases are, however, instructive.

In Farrell, supra, the plaintiff was injured while cleaning an industrial machine. He did not know the identity of the builder of the machine and named a fictitious defendant in his initial complaint. After the expiration of the statute of limitations, at a deposition, his attorney learned that the name of the builder, Votator, was on the machine itself. He moved to amend the complaint to name Votator as a defendant. The motion was granted, but the trial court subsequently granted Votator's motion to dismiss on statute of limitations grounds. We reversed and the Supreme Court affirmed our decision, concluding that "the plaintiffs in good faith brought their action expeditiously against the manufacturer under a fictitious name, identified it by amendment as soon as they discovered its true name, and served the amended complaint diligently thereafter."

62 N.J. at 122.

In several reported cases, dismissals based on lack of due diligence were upheld because the name of the fictitious defendants were contained in medical or police records readily available to the plaintiffs or their attorneys. Matynska v. Fried, 175 N.J. 51, 52 (2002) (medical record); Johnston, supra, 326 N.J. Super. at 206-07 (hospital chart); Cardona v. Data Sys. Computer Ctr., 261 N.J. Super. 232, 235 (App. Div. 1992) (police report); Younger v. Kracke, 236 N.J. Super. 595, 601 (Law Div. 1989) (police report). In Mears, supra, the plaintiff returned to the work site a day or two after the accident and resumed work. We determined that he could easily have learned the identity of the general contractor and erector of the scaffold from which he fell at that time. 300 N.J. Super. at 631.

In other cases, the plaintiffs seeking to amend the complaint to identify the fictitious defendants were unsuccessful because of an inordinate delay in making the application once the identity had been ascertained. In Claypotch, supra, the plaintiff waited for nine months after learning the identity of the fictitious defendant before moving to amend the complaint. 360 N.J. Super. at 482-83. In Johnston, supra, the plaintiff waited four months before seeking to amend the complaint. 326 N.J. Super. at 208. In Washington v. Sys. Maint. Corp., 260 N.J. Super. 505, 514 (Law Div. 1992), the plaintiff himself had mentioned the name of the fictitious defendant at his deposition and waited twenty-one months before seeking to amend his complaint.

In Fede v. Clara Maass Hosp., 221 N.J. Super. 329 (Law Div. 1987), a case with some similarity to the one now before us, counsel for the plaintiff made numerous attempts to ascertain the identity of maintenance personnel responsible for the hospital stairway on which his client fell. After plaintiff filed a motion to suppress the defendant's answer and defenses for failure to answer interrogatories, the defendant finally provided interrogatory answers that named the maintenance personnel on duty that night, but did not specify which one was responsible for the stairway. Id. at 333-34.

Fede's counsel continued to press the hospital's counsel to identify the specific person responsible for the stairway. He expressed concern that the statute of limitations was about to expire. Defense counsel told him not to be concerned because he had named fictitious defendants. After approximately four months, during which the statutory period had expired, Fede's counsel again reviewed the file, realized that the statute had run, and made a motion for leave to amend the complaint to name all of the maintenance personnel mentioned in the answers to interrogatories. In fact, that information had been in his possession for approximately four or five months prior to the running of the statute. The motion was opposed by the hospital, whose insurance carrier would also be responsible for defending the employees and which had been aware of the efforts to locate additional defendants. Id. at 334, 338.

The motion judge, after canvassing the law with respect to fictitious party practice, granted the motion and permitted the amendment.

In Jarusewicz v. Johns-Manville Products Corp., [188 N.J. Super. 638 (Law Div. 1983)], plaintiff sought to amend the complaint to substitute a new defendant after the expiration of the statute of limitations. The court liberally construed R. 4:9-3 to obtain a just result. A similar approach is appropriate here.

Four and one-half months is not an inordinate delay. In any event, defendant has not indicated any prejudice caused by the delay. Even if there were a substantial delay, the lateness was inadvertent. Defendant's attorney knew all along, both by reading the complaint and from conversations with the plaintiff's attorney, that the complaint was going to be amended to substitute named defendants for the fictitious defendants.

It has been held that three months is not an inordinate delay. Jarusewicz v. Johns-Manville Products Corp., supra, 188 N.J. Super. at 648. The Alabama Supreme Court has held that a delay of five months between learning of a physician's identity and a proper substitution in the pleadings did not prejudice the physician. Denney v. Serio, 446 So.2d 7 (Ala. 1984). Even when plaintiff did not act promptly after discovering defendant's true name in amending the pleading to substitute the true name for a fictitious name used originally, and did not file the amendment until after the statute of limitations had run, the court still permitted the amendment. Contract Engineers, Inc. v. California-Doran Heat Treating Co., 258 Cal.App.2d 546, 65 Cal.Rptr. 776 (Ct. App. 1968). See also 85 A.L.R.3d 130, 145.

Herein, after the answers to interrogatories propounded on the hospital were three months late, plaintiff's attorney was forced to make a motion to suppress the hospital's answer before he received the answers. Considering this fact against the four and one-half month delay by plaintiff in making this motion, the latter was not an unreasonable delay.

Had the hospital answered the interrogatories timely and then plaintiff waited four and one half months, as he did, to move to substitute for fictitious defendants, the statute of limitations would not have expired for another three months.

Rule 1:1-2 provides:

[U]nless otherwise stated, any rule may be relaxed or dispensed with by the court in which the action is pending if adherence to it would result in an injustice.

Ultimately, this motion is governed by the "interests of justice." The Supreme Court in Viviano v. CBS, Inc., supra, evinced a willingness to relax the rule (R. 4:26-4) if the reason for the delay in specifying the name of the fictitious defendant emanated from the frustration of discovery by the plaintiff's adversary and not plaintiff's lack of diligence. Id. 101 N.J. at 556. Such is the case herein.

We must not forget that the aim of our rules of procedure "is to better serve the cause of justice." Markmann v. DeStefano, 185 N.J. Super. 411, 420 (App. Div. 1982), and that "justice is the polestar and our procedures must ever be moulded and applied with that in mind." Johnson v. Mountainside Hosp., Resp. Disease Asso., 199 N.J. Super. 114, 120 (App. Div. 1985), quoting N.J. Highway Authority v. Renner, 18 N.J. 485, 495 (1955). Wilkins v. Hudson County Jail, 217 N.J. Super. 39 (App. Div. 1987).

Balancing the considerations of individual justice and repose as was done in Fernandi v. Strully, 35 N.J. 434, 450 (1961), and Farrell v. Votator Div. of Chemetron Corp., supra, 62 N.J. at 122, the waiting by plaintiff's attorney for four and one-half months to move to amend the complaint does not constitute a lack of diligence. In addition, there could be no prejudice to defendants in maintaining their defense.

[Fede, supra, 221 N.J. Super. at 338-40]

III.

In this case, unlike the plaintiff in Mears, Baker never returned to the job site. His attorney made numerous, good-faith attempts to ascertain the identity of the other entities involved on the project from DeLuca, the general contractor and the most logical source of the needed information, but was consistently informed that DeLuca had lost its entire file. Baker's counsel also obtained copies of the worker's compensation file and the incident report, neither of which were of any assistance.

In their briefs and at oral argument, the respondents have suggested efforts that could have been undertaken by Baker, or his attorney, both before and after the filing of the initial complaint. However, they have not pointed to a specific avenue of inquiry that would, in fact, have been successful in identifying the fictitious defendants.

This is not a case in which the names of the fictitious defendants were contained in Baker's medical records or in the incident report in his counsel's possession. Although Baker's adversaries have suggested, for example, that Leedo's name might have been on the cabinets that were delivered to the work site at the time of the accident, they did not actually know whether the name would have been readily visible, without dismantling the cabinets, once they had been installed.

Baker's efforts in this case were frustrated by DeLuca's loss of the construction file. Counsel for DeLuca did not identify any of the fictitious defendants until the January 22, 2007, court-ordered mediation, which took place after the expiration of the statutory limitations period. Once DeLuca identified North Wales, Baker promptly moved on January 31, 2007, to amend the complaint to name North Wales as a direct defendant. On July 3, 2007, North Wales filed its answer and third-party complaint, which identified the two additional fictitious defendants, Leedo and Celadon. Baker promptly moved to amend his amended complaint to name them on July 20, 2007.

Like the Supreme Court in Viviano, supra, we have concluded that, while Baker's attorney "could have done more," he "did enough." 101 N.J. at 556. Had DeLuca not lost its entire construction file, there is no doubt that the fictitious defendants would have been identified and named prior to the expiration of the statute of limitations. Baker "should not be deprived of [his] day in court" because the general contractor lost its file. Ibid.

We discern no apparent prejudice to North Wales, Leedo, or Celadon in reversing their dismissal as direct defendants. All of them remain in the case on DeLuca's third-party complaint and have been actively participating in discovery. In its brief, North Wales tacitly conceded that it was not actually prejudiced, but argued instead that prejudice is not necessary if the plaintiff failed to exercise due diligence. In its brief, Leedo generally asserted that it "will suffer appreciable prejudice," but did not specify how or point to any underlying facts in the record to support its assertion. At oral argument, Celadon argued that it was prejudiced because its driver on the day of the accident left its employ and could not be located. However, Celadon's counsel has subsequently notified us that the driver has now been located.

We are cognizant of the fact that the failure of Baker's counsel to canvas thoroughly the efforts taken to identify the fictitious defendants in the initial opposition to the motions for summary judgment led the motion judge to believe that counsel had exercised little diligence. However, we also note that additional information was supplied at oral argument on November 2, 2006, and then in the certification in opposition to Celadon's motion. In addition, counsel asked the motion judge for an adjournment of the Celadon motion to further supplement the record, but was unsuccessful. The fuller record was before the motion judge on the motion for reconsideration and the oral motion under Rule 4:50-1.

As pointed out in Fede, supra, 221 N.J. Super. at 339, a motion to dismiss on statute-of-limitations grounds in the context of fictitious party practice is governed by the "interests of justice." See also Viviano, supra, 101 N.J. at 546; Farrell, supra, 62 N.J. at 122-23. We conclude that the interests of justice warrant reversal of the orders dismissing the claims against North Wales, Leedo, and Celadon. It would be unjust, in our view, to penalize Baker because the general contractor lost its file or because his attorney was overly brief in outlining his efforts to identify the fictitious defendants. In addition, we believe that the motion judge should have considered the full extent of the efforts made by Baker's counsel and used the interests of justice standard in making his determinations on due diligence.

Reversed and remanded.


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