Plaintiff Michael Martin was employed by Gary F. Gardner, Inc. to perform inspections and correct punch list items at an assisted living facility that was under construction. He filed suit against Gary F. Gardner and “John Doe’s (1-4)” just prior to the expiration of the statute of limitations. In Martin v. Conifer-LeChase Construction, LLC, 2017 N.J. Super. Unpub. LEXIS 2827 (App. Div. Nov. 14, 2017), the issue was whether the two additional defendants who were named in an Amended Complaint, after the statute of limitations expired, were entitled to a dismissal – or did the claims against them “relate back” to the original filing of the Complaint.
Pursuant to Rule 4:26-4, a party is permitted to sue a defendant under a fictitious name if the defendant’s true name is unknown to the plaintiff. He is required to state it to be fictitious and add on an appropriate description sufficient for identification.
Also, pursuant to Rule 4:9-3, a party may amend his pleading and it will relate back to the date of the original pleading “whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading.” If an amendment changes the party against whom the claim is made, it relates back if it is asserted within the time provided by law to commence the action against such party and the party has received notice of the institution of the action and will not be prejudiced in maintaining a defense on the merits.
Here, the plaintiff sought to add Conifer-LeChase Construction, Inc. (“LeChase”) (who was building the facility) and Conifer Realty, Inc. (“Conifer”) (who was in charge of maintenance). Plaintiff had slipped and fallen at the facility while working. He claimed that someone employed by Conifer Realty used the wrong kind of wax on the floor. But, plaintiff admitted that he knew the name of his employer and he knew the identities of the construction company and the maintenance company at the time of his fall.
LeChase and Conifer filed a motion to dismiss, based upon the statute of limitations. The trial court found that neither the fictitious pleading rule, nor the relation back doctrine applied and dismissed the Amended Complaint. Upon appeal, the plaintiff relied only on the relation back doctrine, claiming that the Amended Complaint should not have been dismissed.
The Appellate Division noted that the two new defendants did not have notice of the plaintiff’s lawsuit within the statute of limitations, as required by the court rule. Further, plaintiff had admitted that he knew their identities and their roles at the construction site. He also admitted that he knew that a Conifer employee had used the wrong wax on the floor. Thus, there was no “legally competent evidence in the record explaining why he did not name both defendants in the original complaint.”
Accordingly, the Appellate Division affirmed the trial court’s order dismissing the Amended Complaint.
