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Nehmad v. BJ'S Wholesale Club, Inc.

United States District Court, D. New Jersey, Camden Vicinage

June 28, 2019


          REYNOLDS & SCHEFFLER, L.L.C. By: Thomas F. Reynolds Counsel for Plaintiff Pamela Nehmad

          CHARTWELL LAW By: Brian M. Searls, Esq.; Rachel Michele Rosenfeld, Esq.; John Michael Wutz, Esq. Counsel for BJ's Wholesale Club, Inc.

          MARGOLIS EDELSTEIN By: Jeanine D. Clark Counsel for REMCO, Inc.



         Plaintiff Pamela Nehmad brings this action in relation to personal injuries allegedly sustained when she slipped on a wet floor at a BJ's Wholesale Club. After Defendant/Third-Party Plaintiff BJ's Wholesale Club (“BJ's”) filed a Third-Party Complaint against Defendant/Third-Party Defendant REMCO, Inc. (“REMCO”), Plaintiff filed an Amended Complaint, substituting REMCO in place of a fictitious party. Now, REMCO moves to dismiss Plaintiff's Amended Complaint, pursuant to Fed.R.Civ.P. 12(b)(6), arguing that Plaintiff's claims are time-barred by the statute of limitations and cannot relate back to the original complaint because the requirements of the “fictitious party” rule were not met. N.J. Ct. R. 4:26-4. This Court disagrees. For the reasons that follow, REMCO's Motion to Dismiss will be DENIED.


         In her Amended Complaint, Plaintiff alleges that she sustained serious injuries when she slipped and fell on a wet substance on the floor at the BJ's Wholesale Club in Mays Landing, New Jersey, on July 22, 2016. [Dkt. No. 11]. On April 26, 2018, Plaintiff commenced this case in the Superior Court of New Jersey, Law Division, naming BJ's and John Doe (a fictitious party) as defendants. BJ's subsequently removed the case to this Court based on diversity jurisdiction. [Dkt. No. 1].

         On August 13, 2018, BJ's filed a Third-Party Complaint against REMCO, alleging that the REMCO created the dangerous condition by failing to properly maintain and repair the refrigerator/freezer, which caused water to leak on the floor, leading Plaintiff to slip and fall. [Dkt. No. 6]. Based on the information in the Third-Party Complaint, on September 10, 2018, Plaintiff amended her Complaint to substitute REMCO as a direct defendant (in the place of previously named fictitious party). Plaintiff's Amended Complaint alleges that REMCO, its agents or employees were, “responsible for the security, maintenance and general safekeeping” of BJ's and “were charged with the obligation of property security, control, maintenance, supervision, repair and general safekeeping of same and with the obligation of keeping the property clear from dangerous condition[s].” Am. Compl., at 3.

         On November 13, 2018, REMCO moved to dismiss Plaintiff's Amended Complaint, pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim. [Dkt. No. 24]. Specifically, REMCO argues that Plaintiff's claims are barred by the two-year statute of limitation and that Plaintiff's claims against REMCO cannot relate back to the original Complaint because they failed to meet the specificity and diligence requirements of the fictitious party rule as set forth in N.J. Ct. R. 4:26-4.

         This Court issued an order, on June 20, 2019, instructing Plaintiff to address any efforts taken to ascertain REMCO's identity prior to commencing this action, or to provide a good faith reason why such an inquiry was not possible. [Dkt. No. 37]. In response, Plaintiff submitted a letter certifying that after Plaintiff's incident, Plaintiff corresponded with BJ's in writing and by telephone, specifically requesting an incident report. [Dkt. No. 38]. Plaintiff alleges that “at no point did BJs supply [her] with any information regarding the third party vendor, REMCO and/or blame them or incorporate them into the original incident report.” Id.


         To withstand a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A 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.” Id. at 662. “[A]n unadorned, the defendant-unlawfully-harmed-me accusation” does not suffice to survive a motion to dismiss. Id. at 678. “[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

         In reviewing a plaintiff's allegations, the district court “must accept as true all well-pled factual allegations as well as all reasonable inferences that can be drawn from them, and construe those allegations in the light most favorable to the plaintiff.” Bistrian v. Levi, 696 F.3d 352, 358 n.1 (3d Cir. 2012). When undertaking this review, courts are limited to the allegations found in the complaint, exhibits attached to the complaint, matters of public record, and undisputedly authentic documents that form the basis of a claim. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997); Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).

         III. PRELI ...

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