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Boker v. Wal-Mart Stores, Inc.

Superior Court of New Jersey, Appellate Division

November 22, 2013

ARTHUR BOKER and JACQUELINE BOOKER, h/w Plaintiffs-Appellants,
v.
WAL-MART STORES, INC., Defendant-Respondent, and USM, INC., and MILLER'S LAWN CARE, Respondents.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 7, 2013.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-0670-12.

William J. Stopper argued the cause for appellants (Stopper Lopez Law, LLC, attorneys; Mr. Stopper, on the brief).

Matthew G. Minor argued the cause for respondents USM, Inc., and Miller's Lawn Care (Sweet Pasquarelli, P.C., attorneys; Mr. Minor, on the brief).

Respondent Wal-Mart Stores, Inc., has not filed a brief.

Before Judges Sapp-Peterson and Hoffman.

PER CURIAM.

Plaintiffs appeal the December 7, 2012 order denying their motion to reinstate their complaint and to file an amended complaint naming USM, Inc. (USM) and Miller's Lawn Care (MLC) as defendants. When the action was originally filed, defendant Wal-Mart, Inc. (Wal-Mart) was the only defendant specifically named in the complaint, which also named fictitious defendants. See R. 4:26-4. For the reasons that follow, we reverse.

I.

On February 8, 2010, plaintiff Arthur Boker[1] sustained injuries when he slipped and fell on ice at the parking lot of his employer, Wal-Mart. About eight months later, plaintiffs' counsel advised Wal-Mart that he had been retained to represent plaintiffs, and requested the name of the snow removal company responsible for maintaining the premises on the date of the accident. Wal-Mart did not respond to the inquiry.

On February 6, 2012, two days before the expiration of the statute of limitations, plaintiffs filed a complaint alleging negligence and naming Wal-Mart as a defendant, in addition to fictitious defendants "John Doe Snow Removal Company" and "John Does (1-10) Responsible Parties" (collectively, fictitious defendants). In the first count, plaintiffs demanded Wal-Mart "be compelled to provide the name of the snow removal company who was responsible for maintaining the premises."

Plaintiffs served the summons and complaint upon Wal-Mart on March 26, 2012. When Wal-Mart failed to respond, plaintiffs filed a request to enter default on June 22, 2012. A consent order vacating default soon followed, and Wal-Mart filed an answer on July 11, 2012.

A letter from Wal-Mart's counsel dated July 30, 2012 finally provided plaintiffs' attorney with the information he first requested in 2010, namely, that Wal-Mart had contracted with USM for snow removal on the date of the accident; the letter further advised that USM may have subcontracted those services to another entity. The letter also demanded immediate withdrawal of plaintiffs' complaint against Wal-Mart and enclosed a proposed stipulation of dismissal as to Wal-Mart.[2]Plaintiffs' counsel signed, but did not ...


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