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Appellate Division Refuses to Allow Plaintiff to Use the “John Doe” Rule to Avoid a Statute of Limitations Dismissal

New Jersey’s two-year statute of limitations is very strict, requiring a plaintiff to file their personal injury suit within two years of the date of the accident or injury or suffer a permanent bar to sue anyone for their injuries. New Jersey’s fictitious party rule (“John Doe” Rule), U. 4:26-4, provides a safe haven to a plaintiff “if the defendant’s true name is unknown to the plaintiff” after the statute of limitations has expired if they identify a John Doe as a placeholder for a to-be-identified defendant. This rule allows a plaintiff who timely files their complaint to amend their complaint to name the previously unknown, true defendant, after which the amended pleading will “relate back” to the original pleading and, thus, avoid the bar of the statute of limitations.

In Perez v. Rental Shop Holdings, LLC, 2025 N.J. Super. Unpub. LEXIS 1938 (App. Div. Oct. 15, 2025), plaintiff Leonidas Perez attempted this tactic. After falling down a flight of stairs in her apartment building in Newark, Ms. Perez went to an attorney with all of the critical information of her injury: the facts of her fall, the correct address of her apartment building, and the identity of her landlord, defendant Rental Shop Holdings. Three days before the two-year statute of limitations expired, her attorney filed a personal injury complaint identifying only the State of New Jersey and a fictitious “John Doe” as defendants. Two weeks later, realizing he entered an incorrect address for the building and the State as an incorrect defendant, her attorney filed an amended complaint under the “John Doe” Rule. He admitted that, despite having the correct information, he simply erred in naming the wrong defendant.

After service of the amended complaint, Rental Shop filed a motion to dismiss Ms. Perez’s complaint for violating the statute of limitations. The trial court denied the motion, ruling that because the attorney acted so quickly in filing the amended complaint, his conduct showed both due diligence and the lack of any prejudice to Rental Shop, two factors courts use to support the Rule’s application.

Upon appeal, the Appellate Division strongly disagreed, emphasizing the primary requirement in using the “John Doe” Rule is that that the plaintiff not know or have any reason to know the John Doe defendant’s identity. It discounted plaintiff’s due diligence claims because, despite quickly correcting the error, she and her attorney had two years to confirm the proper defendant, and her failure to do this “basic and easy investigation,” and name them in the timely filed initial complaint, was a simple lack of diligence.

This case sticks out from more traditional John Doe cases because courts will commonly grant, and affirm, the use of fictitious party practices, often opting to see cases resolve on their merits rather than more technical disqualifications. Yet, the starkness of the attorney’s error in failing to identify Rental Shop as the proper defendant in the complaint filed before the expiration of the statute of limitations, despite his client’s clear communication of that fact to him, and his candid admission of the mistake, likely made this determination by the Appellate Division quite simple.

Plaintiff Fails to Meet the Requirements of Fictitious Pleading Rule to Be Able to Add New Parties in Amended Complaint

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.

Appellate Division Reverses Trial Court Decision Denying Motion to Reinstate Complaint Dismissed Due to Lack of Prosecution

The decision of Dae Sun Yoon v. Fletcher & West Associates, LLC., 2025 N.J. Super. Unpub. LEXIS 200 (App. Div. Feb. 7, 2025) exemplifies the difficulty in obtaining a dismissal with prejudice due to a plaintiff’s lack of prosecution of a lawsuit.  In the Yoon case, plaintiff filed a personal injury lawsuit against defendants, Fletcher & West Associates, LLC. (“Fletcher”) and KFC USA, Inc., (“KFC”), back in December 2019 for a fall on defendant’s premises in October 2018.  Due to various procedural deficiencies, the lawsuit was dismissed with prejudice on October 24, 2023, based upon the plaintiff’s failure to prosecute the matter.  The issue in the Yoon case was whether the trial court applied the appropriate standard in reviewing the motion to reinstate the complaint, as well as whether the defendants were prejudiced by the plaintiff’s delay in prosecuting the matter.

It is clear from the procedural history, which I will not recite here in detail, that there were deficiencies on both sides. The lawyers in the plaintiff’s law firm failed to properly attend to the prosecution of this civil complaint, the lawyers for the defendants failed to timely file an answer, and there was the lack of any real prejudice to the defendants due to the plaintiff’s failure to timely move to reinstate the complaint after it had been dismissed without prejudice.

Under the civil court Rule 1:13-7(a), a plaintiff has four months after the filing of the complaint to ensure that a defendant is served and an answer is filed or the court will send a notice that the matter will be dismissed for lack of prosecution in sixty days unless action is taken such as filing a proof of service, the filing of an answer, or the entry of default.  Once a defendant is dismissed for lack of prosecution, the lawsuit can be reinstated as to that defendant upon the submission of a consent order vacating the dismissal and allowing the defendant to file an answer or, in the alternative, the plaintiff can file a motion for a vacation of the dismissal.  If a consent order vacating the dismissal is not submitted within sixty days of the order of dismissal, then a motion for reinstatement is required. 

In the Yoon case, the defendants were served but failed to file an answer within time.  Therefore, the court issued a lack of prosecution dismissal notice.  The plaintiff did request a default against defendant Fletcher and a default was entered.  The complaint, however, was dismissed as to KFC for lack of prosecution.

Thereafter, both defendants attempted to file an answer, which was rejected, because Fletcher was in default and KFC was dismissed.  While a consent order was entered to allow Fletcher to vacate the default and file an answer, the defendant still failed to file an answer.  Thus, the court issued an order also dismissing Fletcher for lack of prosecution and the order stated that a formal notice of motion was now required to restore the case to the active trial list.

However, defendants still attempted to defend this matter by filing another consent order vacating the default and attempted to file an answer.  But, the court issued a notice, advising the parties that the complaint had been dismissed for lack of prosecution as to both parties and if the plaintiff wished to proceed with the matter, a motion had to be filed with the court to vacate the dismissal.

It was not until a year and a half later, however, that plaintiff’s law firm did move to reinstate.  Defendants cross-moved to dismiss with prejudice, opposing the motion to reinstate based upon the “abandonment” of the matter and the failure to demonstrate exceptional circumstances to reinstate the action.  The trial court found that the exceptional circumstances standard applied and, that due to the passage of time and the lack of discovery, there was substantial prejudice to the defendants to now try to defend a case which had been dismissed three years previously.  This order was appealed to the Appellate Division, which did reverse the trial court decision.

First, the Appellate Division found that the trial court applied the wrong standard.  The Court found that the good cause standard should have been applied, as opposed to the exceptional circumstances standard.

The “good cause standard” is a lower threshold to meet based upon the case law. Applying this standard, if the plaintiff (not the plaintiff’s lawyers) is not to blame, and there is a lack of prejudice to the defendant, the matter should be reinstated.  The Appellate Division pointed out that the mere passage of time is an insufficient basis to show prejudice.  It also pointed out that here, the defendants were aware of the lawsuit and had been trying to obtain a reinstatement of the lawsuit so that it could be defended. 

The Appellate Division noted that both parties were at fault in causing a delay to proceed with this lawsuit.  Significantly, the Court found that “[t]he delays in this matter were in no way attributable to plaintiff, who was blameless.”

The Appellate Division found that there was insufficient evidence of actual prejudice to the defendants and that the passage of time alone could not support the Court’s finding in refusing to reinstate the complaint. It found that the defense counsel was engaged and was prepared to defend the case from the outset, but because of procedural “missteps” by both parties, an answer was not filed and no discovery occurred.  The defendants were not surprised or prejudiced by being brought into a case at a late juncture.  Therefore, the Appellate Division determined that defendants had not demonstrated prejudice.

While the Court noted that there was a desirability for the prompt disposal of cases, it also stated that “eagerness to move cases must defer to our paramount duty to administer justice in the individual case.”  Therefore, it found that plaintiff’s law firm’s inattention to the file should not be attributed to the plaintiff given the lack of prejudice to the defendants.  Therefore, it reversed the trial court’s decision and found that reinstatement was warranted.  It remanded the matter back to the trial court to set a reasonable discovery schedule so that the matter could proceed without any further unnecessary delay.

Appellate Division Upholds Dismissal of Complaint With Prejudice Due to Plaintiff’s Failure to Provide Complete Discovery

This appeal concerned the trial court’s dismissal of the plaintiff’s complaint with prejudice for failure to provide discovery.  The matter involved a complaint against the plaintiff’s commercial condominium association’s board members and property manager for consumer fraud, common law fraud, unjust enrichment, and negligent misrepresentation.  After filing an answer, the defendants served plaintiff with a notice to produce documents and interrogatories.  The issue in Arsenis v. Frank, 2024 N.J. Super. Unpub. LEXIS 2164 (App. Div. Sept. 17, 2024) was whether the trial court judge abused her discretion by dismissing plaintiff’s lawsuit due to her failure to provide discovery.

In response to defendants’ request for discovery, plaintiff did provide certain information in response to the discovery demands, which defendants deemed inadequate.  Defendants’ counsel sent plaintiff two deficiency letters, detailing their objections to various interrogatories and document requests.  The defendants demanded fully responsive answers to these discovery requests within two weeks to avoid motion practice.

Plaintiff, however, failed to respond to the deficiency letters and, thereafter, defendants filed a motion to compel more specific responses to their demands.  The trial court judge granted that motion, issuing an order to require plaintiff to provide more specific responses within seven days.  In that order, the court elaborated as to how plaintiff should address each of the requested interrogatories.

Plaintiff failed to comply with this order.  Thus, defendants filed another motion to dismiss her complaint, without prejudice, which motion was granted.  Sometime thereafter, plaintiff filed a motion to reinstate her complaint, claiming that she had complied with the prior orders.  The judge denied plaintiff’s motion, finding that plaintiff failed to comply with both prior orders “and otherwise provide good cause to vacate dismissal of the case and restoration to the active trial calendar.” 

Thereafter, defendants now filed a motion to dismiss plaintiff’s complaint with prejudice, which motion the trial court judge again granted. The judge noted that “not withstanding the prior court’s explicit direction to plaintiff,” she failed to comply with the court’s prior orders.  Thus, the trial court judge dismissed plaintiff’s complaint with prejudice.

Upon appeal, the Appellate Division considered whether the trial court had abused its discretion in entering its orders to dismiss the complaint.  The Court noted that dismissal of a complaint under court Rule 4:23-5 follows a two-step process.  First, the non-delinquent party may move for dismissal without prejudice for noncompliance with discovery obligations.  If the delinquent party does provide full and responsive discovery, it may then move to vacate the dismissal without prejudice at any time before the entry of an order of dismissal with prejudice. 

But, if the delinquent party fails to cure its discovery delinquency, “the party entitled to the discovery may, after the expiration of 60 days from the date of the order, move on notice for an order of dismissal . . . with prejudice.”  According to Rule 4:23-5(a)(2), the court is to grant the motion to dismiss with prejudice unless a motion to vacate the previously entered order of dismissal without prejudice has been filed by the delinquent party and either the demanded and fully responsive discovery has been provided or exceptional circumstances are demonstrated.

The Appellate Division further noted that this rule advances two objectives, which are to compel discovery which would promote resolution of disputes on the merits and “to afford the aggrieved party the right to seek final resolution through dismissal.”  It noted that the dismissal of a claim for failure to comply with discovery is the “last and least favorable option.”

In this matter, however, plaintiff failed to move to vacate the without prejudice dismissal order, she had not demonstrated that she provided fully responsive discovery or presented any circumstances that qualified as exceptional circumstances to avoid the dismissal of her action with prejudice.   

The Court further noted that it was not persuaded by the plaintiff’s argument that the motion judge failed “to carefully scrutinize her discovery responses before dismissing her complaint with prejudice.”  Accordingly, the Appellate Division upheld the ultimate sanction that was imposed upon plaintiff, to dismiss her complaint with prejudice. 

Appellate Division Reverses Summary Judgment Granted to Defendant as to Property Damage Claim

Plaintiff Zulfigar Ahmed suffered a property damage loss at his owner-occupied two-story residential apartment house in Paterson due to a high wind rainstorm.  At that time, a tree limb and branches fell onto plaintiff’s home, damaging its roof, vinyl siding, concrete masonry wall, a window and other property.  The issue in Ahmed v. American Security Insurance Co., 2024 N.J. Super. Unpub. LEXIS 852 (App. Div. May 13, 2024) was whether the plaintiff had submitted sufficient proofs of his property damage from this rainstorm to survive a motion for a summary judgment dismissal.

Plaintiff’s home was insured with American Security Insurance Company under a hazard insurance policy.  The policy provided liability coverage for the dwelling.

After the rainstorm, plaintiff submitted an insurance claim, specifically claiming that rainwater leaked from the damaged roof and window to lower levels of the house causing water damage to the basement.  Defendant’s adjuster inspected the exterior of the property, taking limited pictures.  Plaintiff submitted damages in the form of an itemized invoice from Ortiz Construction in the amount of $34,246.00 for the repairs performed.  The defendant insurance company advised plaintiff it was preserving a full reservation of rights pending full access to the property for a complete inspection.  Subsequently, plaintiff submitted a request for payment for an exterior gutter, house trimming, a door, a step railing, the roof, and vinyl siding.  Plaintiff resubmitted the paid Ortiz Construction invoice and requested a payment of same.

A dispute arose as to the extent of the damage caused by this storm.  The defendant insurance company disputed causation for some of the plaintiff’s alleged property damage, attributing necessary repairs to prior insurance claims.  In the prior year, plaintiff had settled five property damage claims with defendant.

In December 2020, defendant notified plaintiff’s counsel that the claim adjustment was completed and sent a check in the amount of $8,703.00 to cover the damage it claims was caused by the rainstorm.  While the plaintiff’s counsel received the check, allegedly, it was returned as inadequate.  The plaintiff maintained that the total tree damage loss to his house and car was approximately $440,000.00. 

This dispute ended up in a lawsuit in which plaintiff sued the insurance company for breach of contract, negligent misrepresentation, declaratory judgment, specific performance, unjust enrichment, and bad faith.  Then it produced an expert report by a forensic engineer who opined that most of the interior damage was unrelated to the tree impact and was related to prior claims. While the report acknowledged the exterior damage, the expert opined that there was “historical and overlapping damage.”  Plaintiff, in rebuttal, produced multiple receipts, including additional paid invoices from Ortiz Construction and MK Construction. 

At the conclusion of discovery, the defendant moved for a summary judgment dismissal.  The trial court judge granted the motion, finding that all of the damage was not causally related to the tree damage.  Plaintiff appealed this ruling.

The Appellate Division reversed.  It found that summary judgment should not have been granted because there were issues of fact which precluded a dismissal though a summary judgment proceeding.  The Court found that the trial court judge failed to address plaintiff’s Ortiz Construction invoices which showed payment for the repair work.

The Appellate Division found that “the construction company invoices sufficiently demonstrated a prima facie showing of disputed facts regarding property damage causally related to the fallen tree limb precluding summary judgment.”  The Court expressed no opinion as to whether plaintiff’s proffered contractors should be qualified as experts, but it concluded that plaintiff made a sufficient prima facie showing as to at least some of the damages alleged.  Thus, the Appellate Division reversed and remanded back to the trial court for further proceedings.

Appellate Division Reverses Trial Court’s Dismissal of Lawsuit

This lawsuit involved a letter of protection dispute arising from $183,107.30 of medical bills allegedly owed for services rendered by plaintiff North Jersey Hip & Knee Center to defendant Janet Quevedo after an automobile accident.  Plaintiff had treated Quevedo for her injuries from the accident based upon a letter of protection from Amy Peterson, Esq., Quevedo’s personal injury attorney.  Due to plaintiff’s failure to comply with a court order compelling discovery, the trial court dismissed the complaint with prejudice.  The issue in North Jersey Hip & Knee Center v. Quevedo, 2024 N.J. Super. Unpub. LEXIS 171 (App. Div. Feb. 5, 2024) was whether the trial court made a mistake in entering the ultimate sanction of dismissal versus other less drastic sanctions available due to the plaintiff’s failure to comply with the court order. 

Because defendant Quevedo did not have personal auto insurance, her attorney represented to Quevedo’s physician, Dr. Aiman Rifai (at North Jersey Hip & Knee Center), that she would protect plaintiff’s customary and reasonable fees to the extent available from a third-party recovery when the case was concluded. In other words, Quevedo’s attorney was essentially “guaranteeing” that the physician would be paid out of any third-party settlement if he agreed to render medical care to defendant.

Presumably, there was a third-party settlement but the plaintiff medical practice was not paid for its services.  Plaintiff sued defendant seeking damages for the payment of its medical bill, attorney’s fees, interest, and costs.  An answer was filed, including a third-party complaint against Dr. Rifai, which plaintiff’s counsel answered.

After the answer was filed, defendant served plaintiff with discovery requests including a request for Answers to Interrogatories, and Notice to Produce Documents and Request for Admissions.  After plaintiff failed to provide the requested discovery, defendant sent via e-mail “a good faith deficiency letter.”  Defendant also served plaintiff with a deposition notice for Dr. Rifai.  One day before the noticed deposition, plaintiff informed defendant that Dr. Rifai was unavailable.

Thereafter, defendant filed a motion to dismiss the complaint without prejudice pursuant to the court rule which permitted a dismissal based upon a failure to answer discovery.  The court entered an order granting the motion to dismiss the complaint without prejudice for failure to provide discovery but also entered an order to compel Dr. Rifai to appear for a deposition within thirty days or else “face sanctions as permitted by the rules of the court up to and including dismissal with prejudice.”

Defendant then served plaintiff with another notice of deposition prior to the end of the 30 day period.  Again, the day before the deposition, plaintiff informed defendant that Dr. Rifai was unavailable.  Defendant filed another motion to now dismiss the complaint with prejudice for failure to appear for a deposition and failure to comply with the court’s order.  Before the motion was heard, plaintiff did serve answers to the written discovery requests.

The trial court judge, however, granted the motion to dismiss the complaint with prejudice.  The judge found that the plaintiff had elected to willfully ignore the court’s directive.  Motions to vacate the dismissal and reinstate the complaint and also for reconsideration of that order were both denied.

This appeal ensued in which the plaintiff argued that the trial court judge “abused her discretion by failing to consider alternative sanctions and imposing the ultimate sanction of a dismissal with prejudice.”  The Appellate Division noted that the review of a dismissal of complaint with prejudice for discovery misconduct is based upon whether the trial court abused its discretion in entering the order.  A court must “carefully weigh what sanction is the appropriate one, choosing the approach that imposes a sanction consistent with fundamental fairness to both parties.”  Further, the Appellate Division stated that in determining the selection of a sanction, the court must consider the varying levels of culpability of delinquent parties.   Further, it held that the ultimate sanction of dismissal was to be used only sparingly.

While the Appellate Division commented that it did not condone “the dilatory pace at which plaintiff prosecuted its action and/or its failure to respond to discovery demands,” it nevertheless concurred with plaintiff’s argument that the judge erroneously dismissed the complaint with prejudice when lesser sanctions were available.  The Court noted that the trial court judge failed to address at any point that the defendant had served an untimely deposition notice on defendant.

Under the court rules, deposition notices must be served ten days in advance and the deposition notice for Dr. Rifai was only served eight days in advance.  There was no indication in the record that defendant’s attorney made any “good faith attempt” to confer with plaintiff’s attorney to resolve scheduling Dr. Rifai’s deposition.  The trial court judge also failed to consider that plaintiff had served answers to interrogatories and responses to the notice to produce documents before the return date of the motion.  Further, the trial court judge apparently gave little consideration to counsel’s representation that they did not receive the two e-mail discovery requests. 

Hence, the Appellate Division found that these considerations, “in addition to the untimely deposition notice, weighed in favor of a lesser sanction.”  Accordingly, the Court found that the drastic sanction of dismissal was unwarranted.  There existed lesser alternative sanctions which could address plaintiff’s failure to complete the deposition.  The Appellate Division did not express any view as to what lesser sanction should be imposed.  However, the Court reversed the orders which denied plaintiff’s motion to reinstate the complaint and remanded the case back to the trial court.

The Consequences of Coaching Your Witness During Trial

The case of Hernandez v. La Fortaleza, Inc., 2024 N.J. Super. Unpub. LEXIS 22 (App. Div. Jan. 5, 2024) is a lesson as to why counsel should not coach their witness during trial.  This case involved a slip and fall accident in which the plaintiff Hernandez claimed that she fell on an uneven raised defect on the property of defendant La Fortaleza.  The case proceeded to trial via a virtual trial where, on a lunch break, the plaintiff’s attorney coached the witness as to her testimony. 

Plaintiff Hernandez was the first witness at the virtual trial.  The trial court judge told her that she had to be alone and on her own while she testified, except that her husband could be in the room.  During her direct testimony, her attorney showed her a photograph of the defendant restaurant and the area where the fall occurred.  She was trying to explain in her testimony where the fall occurred in the photograph.   The plaintiff’s husband was in the room but the judge admonished him that he had to remain quiet while she was testifying.  The plaintiff’s attorney explained to the Court that the plaintiff was having trouble manipulating the curser on the screen.  Therefore, the Court recessed the trial for lunch and instructed Mrs. Hernandez’s attorney to straighten out issues with the exhibits and utilization of the curser.

Defense counsel objected and claimed that, on the critical issue of liability, no coaching would be tolerable.  The trial judge restated her point to the plaintiff’s attorney that no one else can be in the room but plaintiff’s husband and that her husband must be visible behind her but cannot speak until it is his opportunity to testify.

Unfortunately for the plaintiff, during the recess, the conversation between the plaintiff, her husband, and her attorney was recorded.  In this recorded conversation, the attorney coached the plaintiff as to her testimony, telling her how she should respond to his questions and how she should testify as to where she fell.  After the recess, defense counsel continued the objection about coaching and advised the Court that plaintiff’s attorney’s microphone was on during recess and he listened to the attorney coaching the witness with the witness’s husband.  Defense counsel requested that the Court grant a mistrial. 

The judge polled the jurors and made certain that they had not overheard the recess conversation.  She concluded that the jury itself was not tainted.

The next day, defense counsel renewed his request for a mistrial or a dismissal of plaintiff’s complaint with prejudice.  The trial judge listened to the recording and concluded that the plaintiff’s attorney, despite being warned about coaching, had coached the plaintiff and directed her to testify as to where the slip and fall occurred.  Hence, the trial court judge felt that she was compelled to declare a mistrial.  The trial court judge ordered that plaintiff and/or their counsel reimburse the Court for the cost of the interpreter and court services.  The judge also permitted defendant to file a motion for dismissal with prejudice.

The defendant did file such a motion and the judge entered an order dismissing plaintiff’s complaint with prejudice.  She based it in part on the transcript of the conversation, as well as the certification of two bilingual paralegals from defense counsel’s office who heard the recess conversation.  One of them heard plaintiff state that it had been so long she didn’t remember where she fell.

In granting the defendant’s motion to dismiss the complaint with prejudice, the judge found as follows:

“The conduct of the attorney here to invite a client to state that an accident occurred in a particular place when she had no independent recollection to resolve the issues of liability where she was the only witness to the fall itself introduces prejudice too great to present to the finder of fact.”

Plaintiff appealed the dismissal.  Plaintiff argued that the trial judge made a mistake in the exercise of her discretion because there was no fraud on the Court and the sanction of dismissal was too severe.  However, the Appellate Division agreed with the trial court’s decision.

The Appellate Division noted that plaintiff’s husband failed to comply with the judge’s instruction on coaching Hernandez and, further, the plaintiff’s attorney after indicating he would not talk to plaintiff about her testimony at any time during the testimony, even during a lunch break, proceeded “to perpetuate a falsity” by directing the plaintiff to create an issue of liability by “stating that an accident occurred in a particular place when she had no independent recollection.”

While the Appellate Division found that a dismissal with prejudice was a drastic remedy, to be employed “only sparingly,” it found that the trial court did not abuse its discretion in dismissing this lawsuit.  The Court found that the plaintiffs shared the blame and the fraud because they received instructions from the judge concerning coaching.  Instead of listening to the judge, the plaintiffs willingly participated in a scheme to provide false testimony in an ongoing trial.  Based upon this falsified testimony, the Appellate Division found that the ultimate sanction of dismissal with prejudice was merited. 

Further, the Court found that the public interest was served by a dismissal with prejudice.  It noted that “[a] misrepresentation to a tribunal is a most serious breach of ethics because it affects directly the administration of justice.”  This dismissal warns plaintiffs and their attorneys that “their behavior will not be tolerated and that their conduct was so egregious as to cause them to suffer a drastic remedy – the loss of their cause of action.”  The Appellate Division further noted that “it informs other litigants that they risk dismissal if they commit a fraud on a court.”

Thus, the trial court’s decision was affirmed and the dismissal was upheld by the Appellate Division.

Plaintiff’s Personal Injury Claim Found Barred by Statute of Limitations

Plaintiff, the Estate of Irene Avagnano appealed the trial court’s order granting summary judgment, dismissing the personal injury action filed against defendants, Atrium Post Acute Care at Wayneview (“Atrium”) and Pulse Medical Transportation (“Pulse”).  Plaintiff had alleged claims of negligence, gross negligence and violation of the New Jersey Nursing Home Responsibilities and Rights of Residents Act in connection with a fall that occurred in May 2018.  An earlier complaint had been dismissed because it was filed in Avagnano’s name after her death, which rendered it a nullity.  Avagnano’s Estate then filed this second action.  The trial court determined that the Estate’s complaint was time-barred under the two-year statute of limitations.  The issue in Estate of Irene Avagnano v. Atrium Post Acute Care at Wayneview, 2023 N.J. Super. Unpub. LEXIS 740 (App. Div. May 15, 2023), was whether the trial court correctly ruled that the complaint was barred and that no equitable doctrines applied to extend the statute of limitations.

The lawsuit arose from a fall on May 11, 2018 of Irene Avagnano, a resident of Atrium’s nursing home.  She fell out of a wheelchair while being transported to a doctor appointment by Pulse.  Due to the fall, she suffered cervical vertebrae fractures.  On August 2, 2018, she died at the age of 91 from causes unrelated to the accident.  Her counsel, who had been retained prior to her death, filed a lawsuit on January 17, 2019, not knowing she had died four months earlier.

On April 29, 2020, Ms. Avagnano’s son, Frank Avagnano, was appointed administrator ad prosequendum.  He did not advise the attorney who filed the lawsuit of his ad prosequendum appointment until August 18, 2020.  The next day, the second complaint was filed, making the same claims as in the first complaint but in the name of the Estate.

Prior to the filing of the second complaint, Pulse had filed a motion to dismiss the first complaint on the grounds that a complaint cannot be brought by a deceased person.  That motion was granted and the first complaint was dismissed.  Pulse later filed a motion to dismiss the first complaint with prejudice, which was granted.  The dismissal of the initial complaint was not appealed.

Thereafter, Pulse filed a second motion in lieu of an Answer to dismiss the second amended complaint as to the two-year statute of limitations.  Atrium filed an Answer and moved for a summary judgment on the same grounds.

The Estate opposed defendants’ motion.  It argued that the statute of limitations was tolled until the date of Avagnano’s death because she lacked capacity to understand her legal rights.  Plaintiff’s counsel produced medical records indicating that Avagnano suffered from auditory hallucinations and impaired cognition.  However, plaintiff failed to submit an expert report regarding her mental competency at the relevant times.  Plaintiff also raised the theories of substantial compliance and equitable tolling to excuse the failure to comply with the statute of limitations.

Nevertheless, the trial court judge granted defendants’ motion and dismissed the second complaint with prejudice.  He ruled that the second complaint could not relate back to the initial complaint to meet the statute of limitations because the initial complaint was a legal nullity.  He rejected plaintiff’s mental incapacity tolling argument because of the plaintiff’s failure to establish that a condition of mental derangement actually prevented her from understanding her legal rights or initiating legal actions.  The trial court also rejected plaintiff’s substantial compliance theory.  The court reasoned that the initial complaint provided insufficient notice because it contained only broad generalities.  Last, the trial court judge rejected plaintiff’s equitable tolling argument.  He concluded that there was no wrongdoing on the part of the defendants that would have induced plaintiff into missing the deadline. 

Upon appeal, the Appellate Division reviewed the plaintiff’s argument that the complaint should not have been barred by the statute of limitations.  The Court rejected all of the plaintiff’s arguments and affirmed the trial court’s dismissal of the second complaint.   The Appellate Division agreed with the trial court that the first lawsuit was a nullity because it was brought in the name of a dead person.  Hence, an amended complaint could not relate back to something that never existed, nor can a non-existent complaint be corrected.

The Appellate Division also rejected plaintiff’s argument that the second complaint was timely filed based upon tolling attributable to decedent’s incompetence.  The Court found the tolling argument unavailing because the second complaint was still filed after the statute of limitations expired.

The Court also considered the applicability of the doctrine of substantial compliance.  The Appellate Division found that doctrine inapplicable as well. 

Finally, the Court considered the doctrine of equitable tolling.  The Court noted that absent a showing of intentional inducement or trickery by a defendant, equitable tolling should be applied sparingly and “only in the rare situation where it is demanded by sound legal principles and in the interest of justice.”  It would require the plaintiff to diligently pursue their claim and does not excuse claimants from exercising reasonable insight and diligence required to pursue their claim.

The Appellate Division agreed with the trial court that equitable tolling did not apply.  Just because a mistake was made in the filing of the initial complaint and there was a lack of communication between the power of attorney and the law firm, that mistake did not merit the application of equitable tolling so as to extend the statute of limitations.

Hence, the Appellate Division agreed with the trial court on all rulings and determined that the second complaint should be dismissed with prejudice. 

Plaintiff’s Personal Injury Claim Barred by the Statute of Limitations Due to Late Filing of Complaint

Plaintiff Simon King claimed to have suffered personal injuries from a motor vehicle accident that happened on August 12, 2019.  He filed a complaint against the driver of the other vehicle, Renay Tripp, and Stonewood Tavern as a result of his alleged injuries.  The issue in King v. Tripp, 2023 N.J. Super. Unpub. LEXIS 1072 (App. Div. June 28, 2023) was whether the complaint was barred by the two-year statute of limitations due to the complaint being filed one day after the expiration of the two-year statute.

Plaintiff did not file his lawsuit until August 13, 2021, which would be one day after the expiration of the two-year statute of limitations.  Plaintiff argued that his complaint was timely filed or, in the alternative, the doctrine of substantial compliance should allow his complaint to proceed.  Specifically, he argued that he took reasonable steps to comply with the statute of limitations and contended that any delay in filing was due solely to his counsel’s legal secretary incorrectly recording the statute of limitations expiration date as August 15, 2021 in the firm’s calendaring system.

Also, plaintiff relied on an October 5, 2020 e-mail from defendant’s insurance company to a legal secretary at plaintiff’s counsel’s law firm, in which an adjuster confirmed speaking with her and requested plaintiff’s social security number, as well as plaintiff’s medical records.  Plaintiff argued that, based upon this e-mail, the defendant was on notice of his potential claims because the defendant’s insurance adjuster was in touch with plaintiff’s counsel at least as early as October 5, 2020.

At the trial court level, the defendants filed a motion for summary judgment based upon the statute of limitations.  The trial court initially found that the doctrine of substantial compliance was applicable and the defendants could not claim prejudice because the complaint was quickly and timely served.  Hence, the trial court initially found that plaintiff had substantially complied with the statute of limitations.

However, defendant filed a motion for reconsideration and, ultimately, the trial court determined that plaintiff had failed to satisfy the elements needed to establish substantial compliance or establish any equitable exceptions to the statute of limitations recognized by our case law.  Hence, the trial court did dismiss plaintiff’s complaint with prejudice.  This appeal ensued. 

Upon appeal, the plaintiff continued to argue that the doctrine of substantial compliance should be invoked to avoid the dismissal of his complaint.  He argued that human error prevented him from timely filing his complaint and that defendant could not establish undue prejudice in the late filing because it did have prior notice of his pending claim for personal injuries.  In the alternative, plaintiff maintained that he did timely file his complaint based upon the calculation of the statute of limitations, which should not include the day of the event in the time period. 

The Appellate Division noted that statute of limitations are created by the legislature with the purpose to “eliminate stale claims and to appeal the exercise of a right of action so that an opposing party has a fair opportunity to defend.”  The substantial compliance doctrine is invoked “to avoid technical defects of valid claims.”  Under the Supreme Court case of Negron v. Llarena, 156 N.J. 296 (1998), the following five elements must be established to invoke this doctrine:

  • The lack of prejudice to the defending party;
  • A series of steps taken to comply with the statute involved;
  • A general compliance with a purpose of the statute;
  • A reasonable notice of petitioner’s claim; and
  • A reasonable explanation why there was not a strict compliance with the statute.

The Court noted that the doctrine of substantial compliance has been utilized where litigants have mistakenly filed a pleading in the wrong forum.  It had also been used in a situation which the plaintiff’s attorney learned the identity of a fictitious defendant before the statute of limitations expiration date and forwarded a summons and complaint to the substituted defendant to advise that it was being sued before the expiration of the statute of limitations, even though the amendment to the complaint to add the new defendant was not filed until after the statute of limitations expired. 

In this case, however, the Appellate Division agreed with the trial court that the plaintiff had not satisfied all five elements of the substantial compliance doctrine.  Plaintiff had failed to prove general compliance with the purpose of the statute because the record lacked any evidence that plaintiff initiated legal proceedings within the statutory time frame.  Further, the only evidence of communications between the parties during the statutory time period was the October 5, 2020 e-mail between defendant’s insurance company and plaintiff’s counsel.  Although this e-mail would be indicative of a notice of a potential claim, it could not reasonably be interpreted as a formal notice of pending litigation, nor could it serve to toll the statute of limitations.

Further, the Appellate Division rejected plaintiff’s contention that the complaint was timely filed on August 13, 2021.  The Court agreed that in computing time under the statute of limitations, the day on which the cause of action accrued is not to be counted.  However, applying this methodology to plaintiff’s case, and excluding the date of the accident, August 12, 2019, from the computation of the two-year statute of limitations, under that measurement, a complaint filed on August 13, 2021 would be outside the applicable statute of limitations window by one day.  Hence, even excluding the date of the accident, the Court found that plaintiff failed to file his complaint within the two-year statutory period.

Although the Court noted that this result may be viewed as “harsh,” as plaintiff was time barred from asserting his claims against defendants through no fault of his own, the Appellate Division found that it could not “ignore a clear, statutorily imposed limitations period, or apply equitable principles absent support in the record.”  Hence, the trial court’s decision was upheld, and the complaint dismissed. 

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