Plaintiff Jorge Jimenez-Peguero was working for defendant Royal Packaging, LLC at its Totowa warehouse when he was severely and permanently injured by a large industrial machine. Plaintiff claimed that the machine malfunctioned and struck him in the back and then dropped a 100 pound bag of “flower” onto him. Approximately six months after the accident, OSHA issued a citation and notification of penalty to the employer for a violation of the OSHA Act. OSHA’s report identified other parties responsible for the accident including EWMT Consulting, LLC (“EWMT”) and Magnum Systems (“Magnum”). The issue in Jimenez-Peguero v. Royal Packaging, LLC, 2025 N.J. Super. Unpub. LEXIS 940 (App. Div. June 4, 2025) was whether plaintiff’s First Amended Complaint, naming EWMT and Magnum as two new defendants, was untimely.
EWMT was the entity who installed the machine, conducted training on the machine and prepared maintenance reports for the machine. Magnum was the entity that manufactured the machine.
The accident occurred on November 27, 2017. Plaintiff received the OSHA report in response to a Freedom of Information Act request on October 24, 2019, approximately one month before the expiration of the two-year statute of limitations and filed a lawsuit against Royal Packaging, LLC, Royal Group, and Royal Distribution, LLC and several fictitious parties. However, he did not sue EWMT or Magnum.
In its answer filed on January 23, 2020, Royal Packaging, however, did include third-party claims against EWMT for contractual indemnification and contribution. Thereafter, about one month later, EWMT answered the third-party complaint and included a fourth-party complaint against Magnum.
Discovery ensued and, on February 17, 2021, plaintiff filed a motion seeking leave to file a first amended complaint against Magnum and EWMT, identifying them as the fictitious parties named in his initial complaint filed fourteen months earlier. The motion was unopposed, and it was granted. However, in their answers, both Magnum and EWMT asserted defenses that plaintiff’s claims against them were untimely.
After further discovery for another year, Magnum and EWMT moved for summary judgment. They argued that plaintiff’s claims against them in his first amended complaint were filed after the two-year statute of limitations expired and, hence, were untimely. The trial court granted both motions, dismissing the claims against both of them.
The trial judge found that based on the fictitious pleading rule, pursuant to Rule 4:26-4, plaintiff’s claims against both of these entities were time-barred. The trial judge noted that it was undisputed that the OSHA report identified both Magnum and EWMT as potential defendants. However, plaintiff failed to name either of them in his initial complaint, which entitled them to a dismissal of the first amended complaint.
This appeal ensued. Plaintiff contended that he should have been allowed to proceed with his negligence claims against EWMT and Magnum. Plaintiff argued that he was unaware of their respective involvement with the machine when he filed his initial complaint. He further argued that, despite the expiration of the statute of limitations, naming them in the first amended complaint was proper under Rule 4:26-4, given his due diligence to identify their liability for his injuries.
Plaintiff disputed the trial judge’s finding that he had ample notice through the OSHA report, which was received only about five weeks before the statute of limitations ran, to timely name these two entities as defendants in his initial complaint. He argued that the OSHA report in no way tied these two entities to any acts that would have given rise to the plaintiff’s injuries. Finally, plaintiff argued that he was aware of their potential liability for the accident only through EWMT’s third-party defendant interrogatory answers.
The issue upon appeal was whether plaintiff should have been allowed to amend his negligence claims against these two new parties after the statute of limitations expired. The Appellate Division rejected plaintiff’s arguments and agreed with the trial court judge’s decision, dismissing the claims against them.
The Court noted that a lawsuit to recover damages for personal injury must be brought within two years after the date of the injury. The fictitious pleading rule, Rule 4:26-4, permits a plaintiff to use a placeholder name for the defendant by asserting the name is “fictitious” and “adding an appropriate description sufficient for identification.” However, once the fictitious party’s name is ascertained, the plaintiff must file a motion to amend the complaint to name the defendant.
The Appellate Division pointed out that the fictitious pleading rule will not shield a plaintiff who had adequate time to discover and obtain the identity of the defendant. Under prior case law, there was an established 2-pronged analysis to discern whether a plaintiff may rely on a fictitious pleading: 1) “A plaintiff must exercise due diligence endeavoring to identify the responsible defendants before filing the original complaint naming John Doe parties; and 2) “A plaintiff must act with due diligence in taking prompt steps to substitute the defendant’s true name, after becoming aware of that defendant’s identity.”
In applying this test, the Appellate Division found that the plaintiff did not exercise due diligence naming these two defendants. Plaintiff was aware of their involvement with the machine through the OSHA report that was received about five weeks before this statute of limitations expired. Although the plaintiff contended that the report was insufficient to indicate a viable claim against Magnum and EWMT, the report did delineate the names of both entities, their connection to the machine, and disclosed EWMT’s address and Magnum’s telephone number.
Moreover, in applying this 2-prong rule, the Appellate Division found that plaintiff had failed both prongs. He failed to exercise due diligence in identifying these defendants before the original complaint was filed. The OSHA report was sufficient to inform plaintiff that a potential claim existed against both of these entities. The Appellate Division noted that plaintiff had timely notice of EWMT and Magnum’s identity and involvement with the machine but “neglected to take additional steps to investigate viable claims against them.”
Additionally, the Court found that plaintiff failed the second prong “as he did not act with due diligence in substituting EWMT and Magnum after becoming aware of their involvement.” Although plaintiff contends that he became aware of these claims upon receipt of EWMT’s interrogatory answers, he did not move to amend the complaint until nine months later.
In conclusion, the Appellate Division found that plaintiff had not shown he exercised due diligence to identify EWMT and Magnum as the defendants prior to the expiration of the statute of limitations, especially when he had received the OSHA report detailing their respective involvement with the machine. Under these circumstances, regardless of whether EWMT and Magnum were not prejudiced in defending the matter, the Court found that was not a basis to circumvent the frivolous pleading rule. Hence, the Appellate Division affirmed the trial court’s decision, dismissing the amended complaint against EWMT and Magnum.
