United States District Court, D. New Jersey
HELEN FOYE, et. al, Plaintiffs,
MORAN FOODS, INC., et. al, Defendants.
JOSEPH H. RODRIGUEZ, UNITED STATES DISTRICT JUDGE
Joseph H. Rodriguez Civil Action This matter comes before the
Court on Motion of Defendant RAJ Maintenance, Inc. to dismiss
Plaintiffs' Second Amended Complaint [Dkt. No. 50]
pursuant to Fed.R.Civ.P. 12 (b)(6) on the ground that the
statute of limitations precludes liability. The Court has
considered the written submissions of the parties without
oral argument pursuant to Fed.R.Civ.P. 78 (b). For the
reasons stated below, Defendant's motion is denied.
and Procedural History
Helen Foye was injured on May 10, 2014 when a shopping cart
malfunctioned during her visit to Defendant Moran Foods'
grocery store known as Save-A-Lot. Foye filed a Complaint in
the Superior Court of New Jersey on May 10, 2016 against
defendants Moran Foods, Inc. d/b/a/ Save-A-Lot and/or ABC
Corporation (1-100) (a fictitious name for a presently
unknown and unidentified corporation), Supervalu, Inc. d/b/a
Save-A-Lot and/or DEF Corporation (1-100) (a fictitious name
for a presently unknown and unidentified corporation), JOHN
DOES and GHI Corporation (1-100) (a fictitious name for a
presently unknown and unidentified corporation).
case was removed to this Court on June 21, 2016. On August
17, 2017, Plaintiff filed an Amended Complaint to add
additional Defendant Gatekeeper Systems, Inc., but did not
include RAJ Maintenance, Inc. (“RAJ), as a defendant at
that time. Approximately ten months later on March 3, 2018,
Plaintiff moved to filed a Second Amended Complaint to
substitute RAJ Maintenance, Inc. for that of DEF Corporation
(2) as a direct defendant. Plaintiff filed the Second Amended
Complaint on August 8, 2018.
RAJ moves for dismissal on the ground that Plaintiff failed
to move against it within the statute of limitations period
and/or acted without the requisite diligence to avail herself
to the tolling provisions of the fictitious pleading rule.
Plaintiff may have known identity of RAJ before expiration of
the limitations period. Even if Plaintiff did not know before
the limitations period expired, Plaintiff cannot toll the
statute of limitations by invoking New Jersey's
fictitious pleading rule, R. 4:26-4 because Plaintiff
significantly delayed amending her complaint to include RAJ
after she learned of RAJ's identity. For the reasons that
follow, the Court agrees and grants Defendant's motion to
Rule of Civil Procedure 12(b)(6) allows a party to move for
dismissal of a claim based on “failure to state a claim
upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). A complaint should be dismissed pursuant to Rule
12(b)(6) if the alleged facts, taken as true, fail to state a
claim. Fed.R.Civ.P. 12(b)(6). When deciding a motion to
dismiss pursuant to Rule 12(b)(6), ordinarily only the
allegations in the complaint, matters of public record,
orders, and exhibits attached to the complaint, are taken
into consideration. See Chester County Intermediate Unit
v. Pa. Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990). It
is not necessary for the plaintiff to plead evidence.
Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d
Cir. 1977). The question before the Court is not whether the
plaintiff will ultimately prevail. Watson v. Abington
Twp., 478 F.3d 144, 150 (2007). Instead, the Court
simply asks whether the plaintiff has articulated
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 556).
“Where there are well-pleaded factual allegations, a
court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.”
Iqbal, 556 U.S. at 679.
motion to dismiss should be granted unless the
plaintiff's factual allegations are “enough to
raise a right to relief above the speculative level on the
assumption that all of the complaint's allegations are
true (even if doubtful in fact).” Twombly, 550
U.S. at 556 (internal citations omitted). “[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has
alleged-but it has not ‘shown'-‘that the
pleader is entitled to relief.'” Iqbal,
556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).
question confronting the Court is whether subject matter
jurisdiction exists as to the claims against RAJ because
Plaintiffs' claims are barred by the statute of
limitations. To answer this question, the Court must
determine whether Plaintiffs tolled the statute of
limitations by properly invoking New Jersey's fictitious
pleading rule, N.J. R. 4:26-4.
claim against RAJ were filed beyond the limitations period
but may relate back to the date of the filing of the original
complaint. Federal Civil Procedure Rule 15(c) governs whether
an amendment can “relate back” to the filing date
of the original complaint. Rule 15(c) provides that an
amendment to a pleading relates back to the date of the
original pleading in three instances:
the law that provides the applicable statute of limitations
allows relation back; (B) the amendment asserts a claim or
defense that arose out of the conduct, transaction, or
occurrence set out-or attempted to be set out-in the original
pleading; or (C) the amendment changes the party or the
naming of the party against whom a claim is asserted, if Rule
15(c)(1)(B) is satisfied and if, within the period provided
by Rule 4(m) for serving the summons and complaint, the party
to be brought in by amendment: (i) received such notice of
the action that it will not be prejudiced in defending on the