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Giovanelli v. D. Simmons General Contracting

March 15, 2010

ROBERT GIOVANELLI, PLAINTIFF,
v.
D. SIMMONS GENERAL CONTRACTING, APPLIED POLYMER-SOLUTIONS PRODUCTS, JAMES THOMAS ENTERPRISES, DEFENDANTS/CROSS-CLAIMANTS/CROSS-DEFENDANTS.
APPLIED POLYMER-SOLUTIONS PRODUCTS, THIRD-PARTY PLAINTIFF,
v.
JAMES THOMAS ENTERPRISES, THIRD-PARTY DEFENDANT.



The opinion of the court was delivered by: Hillman, District Judge

OPINION

This matter has come before the Court on defendant James Thomas Enterprises' motion to dismiss plaintiff's claims against it based on plaintiff's failure to file suit within the applicable the statute of limitations. For the reasons expressed below, defendant's motion will be granted.

BACKGROUND

On March 8, 2007, plaintiff, Robert Giovanelli, claims that he and a co-worker attempted to move a bathroom cabinet that was part of the remodeling work being performed by defendants at his place of employment, Trane Corporation, in Trenton, New Jersey. Plaintiff contends that unbeknownst to him or his co-worker, defendants had loaded up the cabinet with their heavy tools. When he tried to lift the cabinet laden down with the tools, it fell onto him, causing him personal injuries, including "right comminuted tibial plateau fracture (medial and midline), subluxation of the patella of the right knee, open reduction and internal fixation of the right tibial plateau fracture, chronic post-traumatic chondromalacia patella to the right knee, peroneal nerve and tibial nerve neuropathy to the right lower extremity, positive EMG/NCV, and fracture of the right femur." (Sec. Amended Compl. ¶ 12.)

On March 9, 2009, plaintiff filed suit against D. Simmons General Contracting and Applied Polymer-Solutions Products, averring jurisdiction pursuant to 28 U.S.C. § 1332, diversity of citizenship between the parties. After a sua sponte review of plaintiff's complaint on March 13, 2009, the Court issued an Order directing plaintiff to file within 10 days an amended complaint to properly plead the citizenship of the parties--plaintiff had failed to plead his citizenship or include the state of incorporation for the corporate defendants--or else his complaint would be dismissed for lack of subject matter jurisdiction. On March 16, 2009, plaintiff cured these defincencies by filing an amended complaint.

On May 4, 2009, defendant Applied Polymer filed its answer to plaintiff's complaint, and also filed a cross-claim against defendant D. Simmons General Contracting and a third-party complaint against James Thomas Enterprises (hereinafter "JTE"). On May 29, 2009, plaintiff filed a second amended complaint, adding JTE as a new defendant and asserting claims against it.

JTE now moves to dismiss plaintiff's claims against it for plaintiff's failure to comply with the two-year statute of limitations applicable to personal injury actions.*fn1 Plaintiff has opposed JTE's motion.

DISCUSSION

A. Jurisdiction

This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332 because there is complete diversity of citizenship between the parties and the amount in controversy exceeds $75,000.

B. Analysis

Plaintiff does not dispute that his claims are subject to a two-year statute of limitations period, see N.J.S.A. 2A:14-2, or that the two-year period expired on March 9, 2009, or that he did not file his claims against JTE until May 29, 2009. Plaintiff argues, however, that his claims against JTE should not be dismissed because court rules permit his claims, and because he did not discover JTE's potential liability until May 4, 2009, when Applied Polymer filed its third-party complaint against JTE. JTE argues that none of plaintiff's arguments have merit.*fn2

As an initial matter, defendant repeatedly comments that plaintiff filed his case on the last day prior to the running of the statute of limitations. This, by itself, does not speak to the validity of a plaintiff's claims, as there are many reasons why a case is not filed earlier within the two-year window. Whether his case was filed the day he was injured, or exactly two years later, his claim is still viable. The caveat to this, however, is that if a plaintiff files on the last day of his limitations period, he must either name all the appropriate defendants or follow the rules which allow him to file his claim tardily against a newly-discovered defendant not named in the original complaint. Here, plaintiff did not properly avail himself of those rules.

In its motion to dismiss, JTE anticipates--and argues against--several bases on which plaintiff could rely to save his claims. They include Fed. R. Civ. P. 14(a), which governs third-party practice, and Fed. R. Civ. P. 15(c), N.J. R. 4:9-3, and N.J. R. 4:26-4, which govern the relation-back doctrine and the fictitious party rule. In his opposition, plaintiff only argues that the third-party practice rules and ...


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