On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-378-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued February 22, 2012
Before Judges Fisher and Nugent.
Plaintiff William Needham was injured when his automobile collided with an automobile driven by defendant Marcey A. Hobbs, who was a mourner in a procession being led by a funeral home through Delran on March 7, 2005. Based on pre-filing research, plaintiffs assumed that W.R. Woody Funeral Home, Inc. (Woody) was leading the funeral procession and it was not until approximately four years after the accident that plaintiffs determined that the procession was led by May Funeral Homes, Inc. (May). After permitting plaintiffs to replace a fictitious defendant with May, the trial judge granted May's motion to dismiss, holding that plaintiffs did not exercise due diligence in discovering May's identity and that May would be prejudiced by the late amendment. Because the record supports plaintiffs' claim of due diligence and because there was insufficient evidence to support the judge's conclusion that May would be prejudiced if the action were to continue against it, we vacate the order of dismissal and remand for further proceedings.
Plaintiff commenced this action on March 5, 2007, nearly two years after the automobile accident in question. A police report prepared after the accident suggested that Hobbs was in a funeral procession traveling south on Route 130 in Delran. Needham was waiting at a light at Route 130's intersection with Chester Avenue. Apparently, when the light turned green, Needham's automobile proceeded into the intersection and collided with Hobbs's automobile. The record on appeal provides little other information about the accident.*fn1
In their original complaint, plaintiffs named Hobbs and Woody as defendants, as well as fictitious persons and entities. Prior to filing the complaint, plaintiffs' counsel determined that Woody had conducted a funeral procession on Route 130 on the day in question. In answering the complaint, Woody denied the allegation that it was "the funeral home responsible for organizing and supervising the funeral procession" in which Hobbs was a participant because that allegation constituted "a conclusion of law." In its answer, Woody claimed insufficient knowledge to either admit or deny the complaint's other chief allegations. The depositions of four individuals who worked the funeral procession for Woody on the date in question were taken in March 2008. These four Woody employees testified they were unaware that a vehicle in their procession was in an accident.
Hobbs made no appearance in the case. Default was entered against her and she did not respond to a subpoena seeking her testimony. Without information from Hobbs and without affirmative proof from Woody that it did not lead the procession in question, plaintiffs continued to assume that all necessary parties were before the court. Interestingly, in March 2009, an arbitrator found Hobbs 65%, Needham 25%, and Woody 10% responsible for the accident. Apparently, Woody was unable or made no attempt to demonstrate at that time that it had no involvement in the procession.
Hobbs finally, on June 12, 2009, appeared for a deposition and provided the name of the decedent whose funeral she had attended on the day in question. As a result, plaintiffs' counsel was able to determine that May and not Woody had conducted the funeral procession. Plaintiffs thereafter consented to a dismissal of the action against Woody and moved for leave to replace one of the fictitious defendants with May. Leave was granted on July 1, 2009. May moved for dismissal. For reasons set forth in a written decision, the trial judge granted the motion and, once finality was achieved, plaintiffs appealed.*fn2
Plaintiffs' appeal turns on whether the filing of the amended pleading, in which May was first named as a defendant, should "relate back" to the date the original complaint was filed. See, e.g., Greczyn v. Colgate Palmolive, 183 N.J. 5, 11 (2005); Viviano v. CBS, Inc., 101 N.J. 538, 548 (1986); Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 120 (1973). Rule 4:26-4 allows a plaintiff to commence an action "against the defendant under a fictitious name, stating it to be fictitious and adding an appropriate description sufficient for identification." There is no doubt that plaintiffs complied with this aspect of the Rule. The Rule, however, may be invoked "only if a defendant's true name cannot be ascertained by the exercise of due diligence prior to filing the complaint." Claypotch v. Heller, Inc., 360 N.J. Super. 472, 479-80 (App. Div. 2003). In seeking dismissal, May asserted that plaintiffs failed to act with due diligence and that it would be prejudiced if the action were permitted to continue.
In vacating the order of dismissal, we first conclude that the record supports plaintiffs' argument that they exercised due diligence in seeking to learn the name of the funeral home that was conducting the procession. That investigation uncovered the fact that Woody conducted a funeral procession south on Route 130 on the day in question; it was logical for plaintiffs to assume that Woody was the proper funeral home to be named. In fact, that conclusion was further cemented by Woody's response to the complaint. Woody neither admitted nor denied its involvement in the funeral procession in question. And four Woody employees, who worked a funeral procession on that day, took that same position. Pending clearer evidence, plaintiffs remained justified in proceeding against Woody, a fact further suggested by an arbitrator's determination that Woody was 10% responsible for the accident. Plaintiffs were entitled to adhere to their belief that Woody was the correct funeral home until Hobbs, who had permitted the case to proceed in her absence, finally came forward to give deposition testimony. Once her testimony revealed the facts necessary to exonerate Woody and implicate May, plaintiffs expeditiously moved for leave to join May as a party.
Plaintiffs' due diligence alone, however, is insufficient to justify reliance on the relation-back doctrine. The dismissal of May was appropriate if May would be prejudiced by the late assertion of the claim. The prejudice to which the Rule concerns itself is not a defendant's exposure "to potential liability for a lawsuit after the statute of limitations has run." Mears v. Sandoz Pharm., Inc., 300 N.J. Super. 622, 631 (App. Div. 1997). "[A]bsent evidence that 'the lapse of time has resulted in a loss of evidence[,] impairment of ability to defend' or 'advantage' to plaintiffs, '[j]ustice impels strongly towards affording the plaintiffs their day in court on the merits of their claim[.]'" Claypotch, supra, 360 N.J. Super. at 482 (quoting Farrell, supra, 62 N.J. at 122). On this aspect, the trial judge stated only the following:
Surely, the memories of the witnesses as to the occurrence have faded in the intervening years. Further, the late amendment has prejudiced May Funeral Homes by preventing it from participating in meaningful discovery.
These conclusions were not based on any sworn information; the judge simply assumed memories had faded and May's ability to respond to plaintiffs' ...