COSTANTINO v. CITY OF ATLANTIC CITY et al

Filing 76

OPINION. Signed by Magistrate Judge Joel Schneider on 11/19/2014. (dmr)

[Doc. No. 35]
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

JANINE CONSTANTINO,

:
:
Plaintiff,
:
:
v.
:
:
CITY OF ATLANTIC CITY,
:
ET. AL,
:
:
:
Defendants.
:
_________________________:

Civil No. 13-6667 (RBK/JS)

OPINION
Plaintiff alleges that on July 21, 2012, she was assaulted by
security personnel and Atlantic City police officers at Dusk
nightclub in Atlantic City, New Jersey. She also alleges the
security personnel and at least one police officer conspired to
destroy relevant video evidence. This Opinion decides plaintiff’s
motion to amend and focuses on plaintiff’s request to amend her
complaint to substitute five (5) individuals for fictitious or
John

Doe

parties

named

in

the

complaint.

Unless

plaintiff’s

amendment relates back to the filing date of the complaint, the
amendment will be denied as futile as it is barred by the statute
of limitations. The answer to the relation back question involves
the interplay of Fed. R. Civ. P. 15(c)(1)(A) and (C), New Jersey
Rules 4:26-4 and 4:9-3, and equitable concepts including equitable

estoppel, the discovery rule, and the doctrine of substantial
compliance. For the reasons to be discussed, plaintiff’s motion
will be GRANTED in part and DENIED in part. The Court will grant
plaintiff leave to name one additional individual but will deny
the request as to the other four individuals.1
BACKGROUND
To put the subsequent legal discussion in context, a detailed
discussion

of

commenced

this

the

background

action

on

facts

November

is

1,

necessary.

2013,

Plaintiff

asserting

claims

pursuant to 42 U.S.C. § 1983 and New Jersey tort law against the
City of Atlantic City, Police Officer Sterling Wheaten, Police
Officer Joseph Garofalo, “unknown Atlantic City Police Officers”,
Dusk nightclub, Dusk Security Manager Ron Anisette, “unknown Dusk
security personnel”, Dusk Management Group, Caesar’s Hotel and
Casino, “unknown Caesar’s Casino and Hotel security personnel”,
Caesar’s

Entertainment

Corporation,

AC

Nightlife,

LLC,

Gary

Veloric, Red Stripe Plane Group, “John Doe in plaid shirt”, and
various unknown persons and corporations. See generally Compl.
[Doc. No. 1]. Plaintiff claims that on July 21, 2012 she was
physically assaulted and falsely arrested by defendants Wheaten,
Garofalo,

and

other

unknown

defendants

as

she

attempted

to

1
The opposition to plaintiff’s motion was filed by Dusk nightclub,
Dusk Management Group, AC Nightlife, LLC, Gary Veloric, Red Stripe Plane Group,
Ron Anisette, Joseph Garofalo, Joshua Godfrey, Matthew Jaffe, Ramon Montero and
Juan Rodriguez. These defendants will be collectively referred to as “Dusk”
unless otherwise noted.

2

videotape,

using

officers/security

her

cell

personnel

phone,
attack

Wheaten
her

and

brother

at

the
the

other
Dusk

nightclub in and around Caesar’s Hotel and Casino. Id. Plaintiff
alleges that after she announced she was recording the incident
Wheaten seized her cell phone and assaulted her. Compl. ¶¶ 41-46.
Plaintiff further alleges Wheaton then handed her cell phone to a
“smaller man in a plaid shirt” who agreed to dispose of the phone.
Compl. ¶ 47.
On February 18, 2014, Dusk served its Rule 26 disclosures
which identified Juan Rodriguez, Matthew Jaffe, Tamron Bryant and
Ramon Montero as relevant witnesses. Defs.’ Br. at 8. Dusk also
attached the relevant incident reports from the nightclub and
stated its intention to serve video surveillance from the incident
which was eventually received by plaintiff on April 28, 2014, after
plaintiff informed the Court of defendant’s failure to produce the
video. See Bonjean Letters of April 25 and May 5, 2014 [Doc. Nos.
21, 22]. On May 15, 2014, counsel for Dusk identified “John Doe in
plaid shirt” in the surveillance video as Joshua Godfrey, and also
identified Bryant, Jaffe, and Rodriguez as former and current Dusk
security personnel. See Defs.’ Br., Ex. B [Doc. No. 39-2].2 On June
3, 2014, after rejecting a settlement proposal from Dusk, Jennifer
Bonjean, Esquire, counsel for plaintiff, asked John Underwood,

2

According to Dusk, Ramon Montero was not in the video but was previously
identified. Defs.’ Br. at 9.

3

Esquire, Dusk’s counsel, if he would accept service of the summons
and complaint for Godfrey. See Email Exchanges, Pl.’s Ex. D [Doc.
No. 46-1]. Underwood did not immediately respond to Bonjean’s
inquiry. On June 9, 2014, Underwood provided Bonjean with Godfrey’s
contact

information

so

that

Bonjean

could

obtain

a

witness

statement from him. See June 9, 2014 Email from Underwood to
Bonjean, Pl.’s Ex. D [Doc. No. 46-1]. Bonjean alleges that on June
9, 2014 she had a 25-minute phone conversation with Godfrey during
which he stated that he saw Wheaten “wrestle the phone away from
the woman and scroll through it trying to delete photos or video.”
Pl.’s Supp. Br., Ex. B, Cooper Aff. ¶ 5 [Doc. No. 68-1]; see also
Pl.’s Supp. Br., Ex. A, Taettle Aff. ¶ 7 [Doc. No. 68-1] (Underwood
confirmed by telephone on June 12, 2014 that Godfrey “would provide
a sworn statement admitting that he saw Defendant Officer Sterling
Wheaten attempting to delete video or photos from [p]laintiff’s
phone.”).
On July 4, 2014, Underwood responded to Bonjean’s June 3
inquiry stating that he would not accept service for Godfrey as it
was still uncertain if he would be representing him. See Email
Exchanges, Pl.’s Ex. C [Doc. No. 46-1]. Plaintiff served Godfrey
with the original complaint at his residence on July 16, 2014. See
Pl.’s Reply, Ex. C (Aff. of Service) [Doc. No. 48-1]. On July 17,
2014, Underwood emailed all counsel proposed deposition dates for
the “Dusk Employees.” See Pl.’s Br., Ex. C (July 17, 2014 Email
4

from Underwood to Counsel). On July 21, 2014, the two-year statute
of limitations expired. On August 1, 2014, Underwood confirmed
that Ramon Montero would be available for his deposition but stated
he could not produce for deposition Tamron Bryant, Matthew Jaffe,
or Juan Rodriguez. See Pl.’s Br., Ex. D (Aug. 1, 2014 Email from
Underwood to Bonjean). On August 5, 2014, Bonjean deposed Godfrey.
See Godfrey Dep. [Doc. No. 43-9]. At the deposition, Godfrey
admitted he was served with the complaint on July 16, 2014 in which
he

was

a

“named

defendant.”3

See

Godfrey

Dep.

Tr.

65:13-25.

However, Godfrey denied he told Bonjean during their June 9, 2014
telephone conversation that he saw Wheaten attempt to delete
footage from plaintiff’s phone. Id.
Plaintiff filed her motion to amend on August 10, 2014. In
her proposed amended complaint plaintiff seeks to: (1) properly
identify defendant Joseph Garofalo as a Dusk nightclub security
officer and not an Atlantic City police officer; (2) substitute
“John Doe in plaid shirt” with defendant’s name, Joshua Godfrey;
(3) substitute as defendants Tamron Bryant, Matthew Jaffe, Juan
Rodriguez and Ramon Montero who were previously identified as John
Doe

“unknown

Dusk

security

personnel”;

and

(4)

include

more

specific factual allegations. As a threshold matter, Dusk does not
object to plaintiff’s request to identify Garofalo as a security

3

The original complaint does not name Godfrey but identifies him as “John
Doe in plaid shirt”. See Compl.

5

officer rather than an Atlantic City police officer. See Defs.’
Br. at 2. Dusk also does not object to plaintiff’s request to
include more specific factual allegations. However, Dusk claims
the joinder of the proposed new defendants is barred by the statute
of limitations because the claims do not relate back to the filing
of the original complaint. The resolution of this issue involves
the interplay between the Federal Rules of Civil Procedure and New
Jersey’s

Civil

Practice

Rules,

as

well

as

several

equitable

doctrines. Plaintiff asks the Court to permit the addition of the
five new defendants pursuant to Federal Rules of Civil Procedure
15(c)(1)(A) and (C), New Jersey’s fictitious party Rule, N.J.R.
4:26-4, the general New Jersey relation back rule, N.J.R. 4:9-3,
the doctrine of equitable estoppel, and the New Jersey discovery
rule. As will be discussed, although plaintiff did not comply in
all respects with the applicable Federal and New Jersey Rules, her
motion

will

be

granted

in

part.

Because

of

her

substantial

compliance with New Jersey’s fictitious party rule, the Court will
grant plaintiff leave to name Godfrey as a defendant. The request
to name the four other proposed defendants is denied.
DISCUSSION4

4
There being no opposition, the Court grants plaintiff’s request to
name Garofalo as a Dusk security officer and to add additional fact averments.
The Court’s discussion focuses on plaintiff’s request to name five individual
defendants.

6

Pursuant to Fed. R. Civ. P. 15(a), leave to amend pleadings
“shall be freely given when justice so requires.” Leave shall be
freely given in the absence of undue delay, bad faith or dilatory
motive

on

the

part

of

the

movant,

repeated

failure

to

cure

deficiencies in previous amendments, undue prejudice or futility
of the amendment. Foman v. Davis, 371 U.S. 178, 182 (1962). See
also Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000). “[A]bsent
undue or substantial prejudice, an amendment should be allowed
under Rule 15(a) unless ‘denial [can] be grounded in bad faith or
dilatory

motive,

truly

undue

or

unexplained

delay,

repeated

failure to cure deficiency by amendments previously allowed or
futility of amendment.” Long v. Wilson, 393 F.3d 390, 400 (3d Cir.
2004) (quoting Lundy v. Adamar of New Jersey, Inc., 34 F.3d 1173,
1196 (3d Cir. 1994)). An amendment sought pursuant to Rule 15(a)
shall be permitted unless it would be inequitable or futile.
Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir.
2002). Here, Dusk does not contend that plaintiff’s amendment would
cause undue delay, is made in bad faith, is based on a dilatory
motive, or is repetitive of previous denials. Rather, Dusk argues
plaintiff’s amendment is futile because it is barred by the statute
of limitations.
In determining the futility of an amendment the Court “applies
the same standard of legal sufficiency as applies under Rule
12(b)(6).” Medpointe Healthcare, Inc. v. Hi-Tech Pharm. Co., 380
7

F.Supp. 2d 457, 462 (D.N.J. 2005) (quoting In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997)); Alvin v.
Suzuki, 227 F.3d 107, 121 (3d Cir. 2000). The Court must accept as
true all factual allegations contained in the proposed amended
complaint and any reasonable inferences that can be drawn from
them. Brown v. Phillip Morris, Inc., 250 F.3d 789, 796 (3d Cir.
2001) (citing Moore v. Tartler, 986 F.2d 682, 685 (3d Cir. 1993)).
The factual allegations must be enough, when taken as true, to
state a claim for relief that is plausible on its face. Bell
Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007). As will be
discussed, the Court finds that plaintiff’s claim as to Godfrey
relates

back

limitations.

and

is

However,

therefore
the

not

claims

barred

by

against

the
the

statute
other

of

four

individuals do not relate back and are therefore futile because
they are barred by the statute of limitations.
A. The Relation Back Rules
As a preliminary matter, the Court must determine when the
statute of limitations expired on plaintiff’s claims. In this
regard, Dusk erroneously assumes that plaintiff is asserting a §
1983 claim against it and the proposed new defendants. See Defs.’
Br. at 2. However, a close analysis of the complaint reveals that
plaintiff is only asserting state tort law claims against Dusk.5

5

Plaintiff’s claims against Dusk include “assault, battery,
trespass, trespass to chattel[s], false arrest, false imprisonment, malicious
prosecution, conversion, spoliation, conspiracy, slander, negligent infliction

8

The applicable statute of limitations for these state law tort
claims under New Jersey law is two years. N.J. Stat. § 2A:14-2.
The statute of limitations for an action begins to run “from
the moment of the wrong.” Lopez v. Swyer, 62 N.J. 267, 274 (1973).
Thus, the statute of limitations on plaintiff’s tort claims ran
two years after the date of the incident in question on July 21,
2012, or until July 21, 2014. Plaintiff filed her motion to amend
to add the new defendants on August 10, 2014, which was after the
statute of limitations expired. Because the statute of limitations
bars

plaintiff’s

complaint

to

add

proposed
the

claims,

proposed

plaintiff

defendants

cannot

unless

amend

the

her

amended

of emotional distress and intentional infliction of emotional distress.” Compl.
¶ 72. Despite Count V of the complaint which alleges “defendants” conspired to
violate plaintiff’s civil rights, the Court does not read plaintiff’s complaint
to assert that Dusk acted as a state actor pursuant to § 1983. While there is
no single method to determine whether a private individual or entity may be
considered a state actor, the Supreme Court has articulated three distinct
tests. Under the “sufficiently close nexus test,” state action is present if
the state ordered the private conduct, or “exercised coercive power or has
provided such significant encouragement, either overt or covert, that the choice
must in law be deemed to be that of the State.” Blum v. Yaretsky, 457 U.S. 991,
1004 (1982) (finding Medicaid recipients failed to establish state action in
the nursing homes’ decisions to discharge or transfer Medicaid patients to lower
levels of care). Under the “joint action” theory, a private party who jointly
participates, such as through a conspiracy, in constitutional wrongdoing with
a state or local official has acted under color of state law. Dennis v. Sparks,
449 U.S. 24, 28-29 (1980) (finding a private party who conspired with a judge
to have acted under color of state law). Last, under the “persuasive
entwinement” theory of liability a private individual or entity may be
considered a state actor where “relevant facts show pervasive entwinement to
the point of largely overlapping identity.” Brentwood Acad. v. Tennessee
Secondary Sch. Athletic Ass'n, 531 U.S. 288, 303 (2001) (finding that where
public schools represented 84% of an athletic association the association’s
regulation enforcement actions constituted state action). As noted, the Court
does not read plaintiff’s complaint to assert any of these theories against
Dusk.

9

complaint “relates back” to the date the original complaint was
filed.
Fed. R. Civ. P. 15(c) addresses when an amended pleading
relates back to the date of a timely filed original pleading.
Singletary v. Pa. Dept. of Corr., 266 F.3d 186, 193 (3d Cir. 2001).
Rule 15(c)(1) provides that an amendment to a pleading relates
back to the date of the original pleading, when:
(A)

[t]he law that provides the applicable
limitations allows relation back;

statute

of

. . .
(C)

[t]he 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 merits; and
(ii) knew or should have known that the action would
have been brought against it, but for a mistake
concerning the proper party's identity.

The Court will consider relation back under Rules 15(c)(1)(A) and
15(c)(1)(C) separately.
1. Rule 15(c)(1)(A)
Pursuant to Rule 15(c)(1)(A), an amended complaint relates
back to the filing of the original complaint if relation back is
allowed under the law that provides the applicable statute of
limitations, in this case, New Jersey law. The relevant New Jersey

10

Rule, 4:26-4, which applies to actions in which fictitious or John
Doe parties are named, provides:
[I]f the defendant's true name is unknown to the
plaintiff, process may issue against the defendant under
a fictitious name, stating it to be fictitious and adding
an
appropriate
description
sufficient
for
identification. Plaintiff shall on motion, prior to
judgment, amend the complaint to state defendant's true
name, such motion to be accompanied by an affidavit
stating the manner in which that information was
obtained.

As the Rule states, when pleading fictitiously the pleading
party must not know the true identity of the fictitious defendant
and

must

include

in

the

pleading

an

appropriate

description

sufficient to identify the defendant. N.J.R. 4:26-4; Rutkowski v.
Liberty Mut. Ins. Co., 209 N.J. Super. 140, 146 (App. Div. 1986).6
Additionally, the “fictitious party rule may be used only if the
plaintiff exercised due diligence to ascertain the defendant's
true name before and after filing the complaint.” DeRienzo v.
Harvard Industries, Inc., 357 F.3d 348, 353 (3d. Cir. 2004)
(applying New Jersey law). “A plaintiff will be precluded from
using R. 4:26-4 if, through the use of diligence, the defendant’s
identity could have been determined prior to the running of the
statute of limitations.” Monaco v. City of Camden, C.A. No. 04-2406
(JBS), 2008 WL 408423, at *4-5 (D.N.J. February 13, 2008).

6

The John Doe parties were appropriately identified in plaintiff’s
complaint. See Compl. ¶¶ 12, 14 (“John Doe in plaid shirt” and unknown “Dusk
security personnel”).

11

As the New Jersey Supreme Court has not provided a “standard
definition” of due diligence, its meaning is determined on a caseby-case basis. DeRienzo, 357 F.3d at 354 (citing O’Keefe v. Snyder,
83 N.J. 478, 499 (1980)); see, e.g., Mears v. Sandoz Pharm., Inc.,
300 N.J. Super. 622, 632 (App. Div. 1997) (plaintiff’s failure to
inquire about a contractor’s identity at a job site, as well as
the failure to make other simple inquiries within the limitations
period, did not amount to due diligence); Ortiz ex rel. Rivera v.
City of Camden, C.A. No. 11-2300 (NLH/AMD), 2013 WL 1811895, at
*4-5 (D.N.J. Apr. 29, 2013) (plaintiffs, though “not tenacious in
their quest to identify the officers” to be named in the complaint,
satisfied the due diligence requirement by naming them after their
names were revealed through discovery). While the definition is
fluid, “[t]he New Jersey Supreme Court has instructed that [the
district] court should broadly interpret the diligence requirement
to one of a ‘good faith’ effort by plaintiff to determine the
fictitious

party's

identity.”

Ortiz,

2013

WL

1811895,

at

*5

(citation omitted).
In addition, application of the fictitious party rule must
not prejudice the defendant “by the delay in its identification as
a potentially liable party and service of the amended complaint.”
Claypotch v. Heller, Inc., 360 N.J. Super. 472, 480 (App. Div.
2003) (citing Farrell v. Votator Div. of Chemetron Corp., 62 N.J.
111, 122 (1973)). Factors which New Jersey courts have found to
12

constitute substantial prejudice include destruction or alteration
of evidence after the initial discovery period, frustration of
attempts at subsequent examination, witness unavailability, or
memory lapse due to delay. DeRienzo, 357 F.3d at 356. Thus, whether
plaintiff may avail herself of N.J.R. 4:26-4 turns on three
factors:

(1)

whether

plaintiff

exercised

due

diligence

in

identifying the proposed defendants; (2) whether the lapse of time
has prejudiced the proposed defendants; and (3) whether plaintiff
acted with due diligence in substituting the proposed defendants
once they were identified. See Padilla v. Twp. of Cherry Hill, 110
Fed. Appx. 272, 277 (3d Cir. 2004). The Court will consider
proposed defendant Godfrey and the remaining proposed defendants
separately to determine if plaintiff has met these requirements.
a. Godfrey
As

to

the

first

factor,

there

is

little

question

that

plaintiff vigorously sought Dusk’s videotape and aggressively
sought to identify Godfrey. As an example, as early as the Rule 16
scheduling conference on February 5, 2014, plaintiff made it clear
that a paramount concern was to identify the John Doe in the plaid
shirt. When plaintiff did not receive the relevant surveillance
video from defendant, she promptly sought relief from the Court.
See Bonjean Letter of April 25, 2014. The identities of the persons
depicted in the video, including Godfrey, were not disclosed by
Underwood until May 15, 2014. Thereafter, on June 3, 2014, Bonjean
13

asked Underwood if he would accept service for Godfrey, to which
Underwood ultimately replied he would not. See Email Exchanges,
Pl.’s Ex. C. Nonetheless, plaintiff discovered Godfrey’s contact
information on her own and served him at his residence on July 16,
2014.

See

Aff.

of

Service.

For

these

reasons,

plaintiff

unquestionably exercised due diligence and acted in good faith to
identify Godfrey.
Next,

the

Court

considers

whether

Godfrey

is

unfairly

prejudiced by being named as a party. The answer is no. Before the
statute of limitations expired Godfrey had actual knowledge he was
being sued in the instant action. In fact, Godfrey admitted during
his deposition that he was the John Doe in the complaint served
upon him. See Godfrey Dep. Tr. 65:13-25. Further, there is no
evidence there has been destruction or alteration of relevant
evidence,

frustration

of

attempts

at

subsequent

examination,

witness unavailability or memory lapse due to the fact that Godfrey
was served after and not before the statute of limitations ran.
DeRienzo,

357

F.3d

at

356.

In

addition,

there

was

general

compliance with the purpose of the statute as Godfrey was notified
within the limitations period that he would be sued. Thus, Godfrey
will not suffer any meaningful prejudice by being added as a party.
See Estate of Vida, 330 N.J. at 230 (finding that the purpose of
a statute of limitations is to “encourage the litigation of fresh

14

complaints and to provide a defendant with prompt notice of a claim
in order to prepare a defense to the claim.”).
Last, the Court considers whether plaintiff acted with due
diligence

in

substituting

Godfrey

once

his

identity

was

ascertained. The problem in this regard is that although plaintiff
knew Godfrey’s identity by May 15, 2014, she did not file her
motion until August 10, 2014, after the statute of limitations
expired. However, this delay is ameliorated by the fact that
although the instant motion was not filed until August 10, 2014,
plaintiff served Godfrey with the original complaint on July 16,
2014, within the limitations period. Thus, according to plaintiff,
Godfrey was diligently substituted as a party within the meaning
of N.J.R. 4:26-4 once his identity was known. Pl.’s Supp. Br. at
6. Dusk disagrees and argues that plaintiff failed to exercise due
diligence because she waited until August 10, 2014 to file her
motion. Nevertheless, although the better course of action would
have been for plaintiff to file her motion to amend to add Godfrey
before the statute of limitations ran, this oversight is not fatal.
Since plaintiff substantially complied with the fictitious party
Rule as to Godfrey, she will be granted leave to substitute him
for a John Doe party.
Under New Jersey law, substantial rather than hypertechnical
compliance with the fictitious party rule is sufficient for an
amended pleading to relate back. In order to show substantial
15

compliance with a statute of limitations under New Jersey law, a
plaintiff must demonstrate the following elements: (1) the lack of
prejudice to the defending party; (2) a series of steps taken to
comply with the statute involved; (3) general compliance with the
purpose of the statute; (4) reasonable notice of plaintiff's claim;
and

(5)

a

reasonable

explanation

why

there

was

not

strict

compliance with the statute. Fahey, 2009 WL 749856, at *3 (citing
Negron v. Llarena, 156 N.J. 296, 305 (1998)). “Courts invoke the
doctrine of substantial compliance to avoid technical defeats of
valid

claims.”

Negron

v.

Llarena,

156

N.J.

296,

to

apply

the

305

(1998)

(internal citation omitted).
All

of

the

necessary

elements

substantial

compliance doctrine are met here. As discussed supra, Godfrey is
not prejudiced by the substitution. Additionally, plaintiff took
substantial steps to comply with the applicable Rules, including
determining Godfrey’s identity and serving him with the complaint.
Plaintiff’s

efforts

were

obviously

effective

because

Godfrey

acknowledged before the statute of limitations ran that he was the
John Doe named in the complaint. This demonstrates a general
compliance with the purpose of the statute – notice within the
limitations

period7

and

an

absence

of

prejudice

to

Godfrey.

7 As stated supra, Godfrey had actual notice of the suit prior to the
expiration of the statute of limitations. To be sure, notice prior to the
expiration to the statute of limitation is not, on its own, sufficient to
demonstrate substantial compliance with a statute of limitations. See Fahey,

16

Further, plaintiff has offered a reasonable explanation why there
was

not

strict

compliance

with

the

applicable

Rules.

First,

plaintiff believed she complied with the Rules by serving Godfrey
on July 16, 2014. Plaintiff was under the good faith mistaken
belief that service of the original complaint on Godfrey was
sufficient to toll the statute before plaintiff filed the instant
motion. While the Court does not endorse this misunderstanding of
the federal and New Jersey Rules, if substantial compliance does
not apply in this scenario - where a proposed defendant was served
with a complaint and had actual knowledge he was being sued within
the statute of limitations period – it is hard to conceive of a
situation where it would apply.
In an analogous Appellate Division case, the court considered
whether

the

plaintiff

should

be

granted

leave

to

amend

her

complaint to substitute a John Doe defendant. See Estate of Vida
ex rel. Kesciova v. City of Garfield, 330 N.J. Super. 225 (App.
Div. 2000). In this case, the substituted defendant received actual
notice

of

the

suit

by

service

of

the

complaint

within

the

limitations period but the plaintiff did not seek leave to amend
her complaint until four months after the statute expired. Id.
Focusing on the notice received within the limitations period and
lack of prejudice to defendant, the court reversed the trial

2009 WL 749856, at *2 n.2. In this case, however, plaintiff has additionally
satisfied the remaining elements of the substantial compliance doctrine.

17

court’s findings and deemed the application of the substantial
compliance doctrine appropriate to prevent the barring of the claim
based

on

a

“technical

defect”.

Id.

at

230-31.

The

same

circumstances are present here. As a result, because plaintiff has
substantially complied with the fictitious party Rule, N.J.R.
4:26-4, the Court will grant plaintiff leave to file her amended
complaint to name Godfrey as a defendant.
For completeness sake, the Court will address and deny several
of plaintiff’s alternative equitable arguments for why relation
back applies under Rule 15(c)(1)(A). Plaintiff argues that Godfrey
should be substituted under the doctrine of equitable estoppel or
pursuant to the discovery rule. Neither apply. The doctrine of
equitable estoppel applies when an action is commenced after the
expiration of the statute of limitations but fairness dictates
that the plaintiff be permitted to pursue the action. Feldman v.
Urban Commercial, Inc., 70 N.J. Super. 463, 474 (Ch. Div. 1961)
(citing 3 Pomeroy's Equity Jurisprudence, (5th ed.), sec. 804, p.
189). The essential elements which must be present for a court to
equitably estop a defendant from the benefit of a statute of
limitations are: 1) that the defendant must have misrepresented or
concealed a material fact; 2) the misrepresentation or concealment
of a material fact was known to defendant but unknown to the
plaintiff; 3) the misrepresentation or concealment of material
fact was made with the intention or expectation that it would be
18

acted upon by the plaintiff; and 4) the plaintiff relied upon the
misrepresentation
defendant

and

or

changed

concealment
the

of

material

plaintiff’s

facts

position

in

by

the

reliance

thereon. Torcon, Inc. v. Alexian Bros. Hosp., 205 N.J. Super. 428
(Ch. Div. 1985), aff'd, 209 N.J. Super. 239 (App. Div. 1986).
“Specifically,

New

Jersey

courts

have

found

the

doctrine

of

equitable tolling to apply in the following situations: (1) where
the complainant has been induced or tricked by his adversary's
misconduct into allowing the filing deadline to pass; (2) where a
plaintiff

has

in

some

extraordinary

way

been

prevented

from

asserting his rights; and (3) where a plaintiff has timely asserted
his rights mistakenly by either defective pleading or in the wrong
forum.” Fahey v. Hollywood Bicycle Ctr., Inc., C.A. No. 08-3573
(RBK), 2009 WL 749856, at *4 (D.N.J. Mar. 18, 2009), aff'd, 386
Fed. Appx. 289 (3d Cir. 2010) (citing Freeman v. State, 347 N.J.
Super. 11 (N.J.Super.Ct.App.Div. 2002)) (internal quotation marks
and citations omitted). “However, absent a showing of intentional
inducement or trickery by a defendant, the doctrine of equitable
tolling should be applied sparingly and only in the rare situation
where it is demanded by sound legal principles as well as the
interests of justice.” Id.
Plaintiff alleges that at least part of the delay in the
filing of the instant motion was caused by Dusk's failure to timely
produce its surveillance video and identify the persons featured.
19

Pl.'s Supp. Br. at 9. Plaintiff also alleges that another reason
for the delay was due to her engagement in settlement discussions
with Dusk. Id. The Court finds that these allegations do not
constitute misrepresentations or concealment on the part of Dusk.
Torcon, 205 N.J. Super. at 428. Although it could have been
produced earlier, Dusk produced its video well before the statute
of limitations ran. Further, plaintiff was not duped into believing
Dusk would definitely settle. With all facts considered, there is
an absence of evidence of trickery or intentional inducement by
Dusk. Fahey, 2009 WL 749856, at *4. Thus, the doctrine of equitable
estoppel is inapplicable here.
The discovery rule is an equitable principle by which “the
accrual of a cause of action is delayed until the injured party
discovers,

or

by

the

exercise

of

reasonable

diligence

and

intelligence should have discovered that he may have a basis for
an actionable claim.” Vispisiano v. Ashland Chem. Co., 107 N.J.
416, 419 (1987) (citing Viviano v. CBS, Inc., 101 N.J. 538, 546
(1986)) (internal quotations omitted). In personal injury actions,
the statute does not begin to run until (1) the plaintiff knows he
has been injured; and (2) the plaintiff either knows or should
know that his injury was caused by another party’s conduct. Lopez
v. Swyer, 62 N.J. 267, 274 (N.J. 1973). For purposes of the
discovery rule, knowledge of fault “requires only the awareness of
facts that would alert a reasonable person exercising ordinary
20

diligence

that

a

third

party’s

conduct

may

have

caused

or

contributed to the cause of the injury and that conduct itself
might possibly have been unreasonable or lacking in due care.”
Savage v. Old Bridge–Sayreville Medical Group, P.A., 134 N.J. 241,
248 (N.J. 1993). The application of the discovery rule to this
case is misplaced. Plaintiff knew she was injured and the cause of
her injuries prior to the expiration of the statute of limitations.
Plaintiff alleged in her complaint that “Godfrey” conspired to
conceal evidence. See Compl. ¶ 72. Plaintiff did not have to wait
until after Godfrey was deposed to specifically name him in the
amended complaint. Therefore, the discovery rule does not apply.
b. Rodriguez, Jaffe, Bryant and Montero
Unlike Godfrey, the joinder of Rodriguez, Jaffe, Bryant and
Montero under Rule 15(c)(1)(A) is denied. The facts surrounding
the fictitious party analysis as to these proposed defendants are
materially distinguishable from those pertaining to Godfrey. As
already

discussed,

plaintiff

exercised

due

diligence

in

identifying all of the proposed defendants. However, once their
identities were determined, at the latest by May 15, 2014 when
Underwood identified these individuals in the surveillance video,
plaintiff did not name Rodriguez, Jaffe, Bryant or Montero in an
amended complaint. Nor did plaintiff serve these defendants with
the original complaint within the limitations period as she did
with Godfrey. Indeed, plaintiff has presented no evidence that
21

these proposed defendants were aware that they would be named in
the suit or that plaintiff took any actions to name them before
the statute of limitations ran. As a result, plaintiff has not
demonstrated due diligence in substituting the proposed defendants
once

their

identities

were

ascertained.

Therefore,

plaintiff

cannot avail herself of N.J.R. 4:26-4 to substitute Rodriguez,
Jaffe, Bryant and Montero as defendants.
The

Court

compliance

as

will
to

not

these

apply

the

individuals.

doctrine
In

of

substantial

particular,

plaintiff

offers no reasonable explanation why these defendants were not
substituted after their identities were ascertained but before the
statute

of

limitations

circumstances

exist

to

expired.

Unlike

Godfrey,

salvage

plaintiff’s

no

equitable

amendment

as

the

remaining proposed defendants.
Plaintiff’s attempt to rely on N.J.R. 4:9-3 is fruitless.
N.J.R. 4:9-3 (“When Amendments Relate Back”) is not applicable
here since plaintiff’s original complaint designates the proposed
defendants as “John Doe in plaid shirt” and unknown Dusk security
personnel. When the John Doe designation is used, the fictitious
party rule, and not N.J.R. 4:9-3, is the applicable rule under
which an amendment should be analyzed. See Alcius v. City of
Trenton, C.A. No. 13-716 (AET), 2014 WL 4662304, at *2 n.3 (D.N.J.
Sept. 18, 2014) (citing McGill v. John Does A-Z, 541 Fed. Appx.
225, 227-28 (3d Cir. 2013) (“[plaintiff] filed suit against the
22

John Does, presupposing a need for later amendment, rather than
mistakenly

identifying

incorrect

defendants.

Thus

.

.

.

the

fictitious party rule is the appropriate rule under which to
consider the amendments in this case.”)); Viviano v. CBS, Inc.,
101 N.J. 538, 552 (1986) (“Although Rule 4:9-3 and Rule 4:26-4
permit an amended pleading to relate back to an earlier one, one
difference between the two Rules is that the fictitious-party
practice authorized by Rule 4:26-4 expressly contemplates the
filing of an amended complaint. By comparison, Rule 4:9-3 permits
the addition of a new claim or a new party when the original
complaint did not contemplate the need for such an amendment.”).
In short, plaintiff cannot rely on N.J.R. 4:9-3 when she is relying
on the fictitious party or John Doe practice in N.J.R. 4:26-4.
Thus, all of plaintiff’s arguments as to the application of N.J.R.
4:9-3 in the present context are off the mark.
2. Rule 15(c)(1)(C)
Because

plaintiff

has

been

granted

leave

to

substitute

Godfrey as a defendant pursuant to Fed. R. Civ. P. 15(c)(1)(A)
through the application of N.J.R. 4:26-4, the Court only considers
whether the remaining four individuals may be added pursuant to
Fed. R. Civ. P. 15(c)(1)(C).8 Under Rule 15(c)(1)(C) relation back

8 If the Court considered whether Godfrey could be added under Rule
15(c)(1)(C), it would reach the same result as the other four defendants since
Godfrey did not have actual or imputed knowledge of the lawsuit within 120 days
of the filing of the complaint.

23

is

available

if

a

proposed

defendant

received

actual

or

constructive notice of the action within 120 days of the filing of
a complaint. Browning v. Safmarine, Inc., 287 F.R.D. 288, 290
(D.N.J. 2012) (citing Fed. R. Civ. P. 4(m)). The Rule also requires
that the proposed defendant have actual or constructive knowledge
that he or she would have been named but for a “mistake” on the
part of the plaintiff. Id.
As

an

initial

matter,

the

Third

Circuit

construes

the

“mistake” requirement broadly to encompass “John Doe” amendments,
as long as the other requirements of Rule 15(c) are satisfied.
Varlack v. SWC Caribbean, Inc., 550 F.2d 171, 175 (3d Cir. 1977);
Singletary v. Pennsylvania Dep't of Corr., 266 F.3d 186, 191 (3d
Cir. 2001) (Rule 15(c)(1)(C) applies where a plaintiff seeks to
replace a “John Doe” or “Unknown Person” with the name of a real
defendant). Thus, as the four individuals had John Doe or Unknown
Person

designations

in

plaintiff’s

original

complaint,

the

“mistake” requirement is met.
Next, the Court considers whether the proposed individual
defendants received actual or constructive notice of the action
within 120 days of the filing of the complaint. Plaintiff has
presented
notice

no

within

evidence
this

that

time

these

period.

individuals
Accordingly,

received
the

actual

Court

will

consider whether notice can be imputed. Notice may be imputed to
a party through the concepts of “shared attorney” or “identity of
24

interest”. Id. Notice is imputed through the “shared attorney”
method when the originally named party and the party who is sought
to be added are represented by the same attorney. Id. The Third
Circuit has held that to impute notice under the shared attorney
method, “a plaintiff must show that there was some communication
or relationship between the shared attorney and the John Doe
defendant prior to the expiration of the 120-day period [after the
complaint is filed.]” Garvin v. City of Philadelphia, 354 F.3d
215, 225 (3rd Cir. 2003) (internal citations omitted); Browning v.
Safmarine, Inc., 287 F.R.D. 288, 291 (D.N.J. 2012); Boerger v.
Commerce Ins. Servs., C.A. No. 04-1337 (JHR), 2005 WL 3235009, at
* 5 n.4 (D.N.J. Nov. 28, 2005). Thus, the inquiry becomes whether
plaintiff has presented any evidence of shared representation with
the named parties within 120 days following the filing of the
complaint. Here, plaintiff has failed to come forth with evidence
of

shared

representation

or

communication

between

proposed

defendants Bryant, Jaffe, Rodriguez and Montero and the counsel of
an

existing

party

which

occurred

within

120

days

after

the

complaint was filed.9

9 In support of her theory that Rule 15(c)(1)(C) applies, plaintiff cites
two cases, Varlack v. SWC Caribbean, Inc., 550 F.2d 171 (3d Cir. 1977), and
Heinly v. Queen, 146 F.R.D. 102 (E.D. Pa. 1993). In Varlack the court permitted
the plaintiff to substitute a John Doe party but noted that the third
prerequisite for relation back under Rule 15(c) is knowledge of the lawsuit
within 120 days of the filing of the complaint. 550 F.2d at 175. In that case,
without describing what the record showed, the court found that there was
testimony from which the district court properly concluded such notice was given
within the prescribed period. That is not the case here. Plaintiff has not
presented evidence that any proposed defendant had actual or imputed knowledge

25

The crux of plaintiff’s argument in relation to these proposed
defendants is that Dusk and the proposed individual defendants are
both

represented

by

John

Underwood,

Esquire.

Specifically,

plaintiff points to Underwood’s email of July 17, 2014 in which he
provided proposed deposition dates for the “Dusk Employees,” thus
indicating that he represented them at that time. See Pl.’s Br.,
Ex. C. Plaintiff argues that Underwood’s acceptance of the Dusk
employees “‘notice to depose’ serves as recognition by their
counsel that these individuals were among the intended John Does
identified in [p]laintiff’s complaint.” Pl.’s Br. at 7. However,
even if this was enough to impute knowledge to these proposed
defendants, these communications in July 2014 are substantially
beyond 120 days after the filing of the complaint in November

of the lawsuit within 120 days of the filing of the complaint. Additionally,
plaintiff cites Heinly for the proposition that the “mistake aspect” of
Rule(c)(1)(C) “is designed to insure that the new defendant knew or should have
known within the relevant time period that joinder was a distinct possibility.”
Pl.’s Supp. Br. at 5. There is no dispute that in the Third Circuit, a John Doe
designation is considered a “mistake” for purposes of Rule 15(c)(1)(C).
Singletary, 266 F.3d at 191 (3d Cir. 2001). However, plaintiff misses the mark
again in that in Heinly the court found evidence that the proposed defendant
had knowledge within 120 days of the filing of the complaint that it might be
joined. 146 F.R.D. at 107. Further, Heinly was abrogated by Third Circuit which
concluded that Heinly had interpreted the shared attorney method of imputed
knowledge too broadly. See Garvin v. City of Philadelphia, 354 F.3d 215, 226
(3d Cir. 2003).

26

2013.10 In the absence of any further evidence, notice cannot be
imputed using the shared attorney method.11
Alternatively, notice may be imputed through the “identity of
interest” method when parties are so closely related to Dusk that
the institution of an action against one serves to provide notice
to the other. Id. at 227. Although plaintiff does not specifically
make an “identity of interest” argument in her moving papers, she
alludes to the concept when she points out that the proposed
defendants are or were formerly employed by Dusk, were all present
at the July 21, 2014 incident, and Dusk’s counsel accepted notice
for their depositions prior to the expiration of the statute of
limitations.

See

Pl.’s

Br.

at

6.

Therefore,

the

Court

will

determine whether Bryant, Jaffe, Rodriguez or Montero are so
closely related to Dusk that the institution of litigation against
Dusk serves to provide notice of the litigation to the employees.

10 In her supplemental brief, plaintiff states, “[d]uring the arguments
on [p]laintiff’s motion to amend, attorney Underwood acknowledged that he
represented Dusk and all of the Dusk employees (except Josh Godfrey . . .) from
the start of this litigation.” Pl.’s Supp. Br. at 15. The Court has reviewed
the October 20, 2014 transcript and does not find support for plaintiff’s
assertion. When the Court asked plaintiff’s counsel what evidence supported the
notion that Rodriguez, Jaffe or Bryant knew about the litigation before July
21, 2014, plaintiff stated the “only indication in the record” were Underwood’s
emails regarding the deposition notices in July 2014. Oct. 20, 2014 Tr. 51:1416.
11

The New Jersey corollary to Rule 15(c)(1)(C), N.J.R. 4:9-3, is more
liberal than its federal counterpart as notice may be gained at any time before
the statute of limitations expires. However, as already discussed, N.J.R. 4:93 does not apply where a John Doe party is named. In that event, plaintiff has
to rely on N.J.R. 4:26-4. Thus, even if plaintiff is correct that notice may be
imputed pursuant to the shared attorney doctrine, this is not determinative as
to whether plaintiff’s amended complaint relates back.

27

Singletary, 266 F.3d at 197.

Based upon the facts presented to

the Court, Bryant, Jaffe, Rodriguez and Montero do not satisfy the
notice requirement using the identity of interest method. In Garvin
and Singletary, the Third Circuit held that “a non-management
employee . . . does not share a sufficient nexus of interests with
his or her employer so that notice given to the employer can be
imputed to the employee[.]” Garvin, 354 F.3d at 227 (finding
individual police officers qualify as non-managerial employees who
do not share a sufficient nexus of interests with their employer)
(quoting Singletary, 266 F.3d at 200). Here, plaintiff has not
alleged that Bryant, Jaffe, Rodriguez or Montero are management
employees who share a sufficient nexus of interest with their
employer. Accordingly, Bryant, Jaffe, Rodriguez and Montero are
not so closely related in their business operations at Dusk
nightclub that the institution of an action against Dusk serves to
provide notice of the litigation to them. As a result, plaintiff
cannot use imputed notice to amend her complaint to add Bryant,
Jaffe, Rodriguez and Montero as new defendants pursuant to Rule
15(c)(1)(C). Because plaintiff is unable to show that the claims
against Bryant, Jaffe, Rodriguez and Montero relate back to the
filing of the original complaint pursuant to Rules 15(c)(1)(A) or
(C), plaintiff’s proposed amendment as to these individuals is
futile and will be denied.
CONCLUSION
28

In sum, the Court will grant plaintiff leave to amend her
complaint to substitute Godfrey for a John Doe defendant, and to
relate the amendment back to the date the complaint was filed.
Pursuant to Rule 15(c)(1)(A), plaintiff may rely upon N.J.R. 4:264. Godfrey may be added pursuant to this Rule because he was
appropriately identified as a John Doe party in the complaint,
plaintiff exercised diligence to identify Godfrey, and plaintiff
substantially complied with her duty to diligently name Godfrey
after

his

identity

was

discovered.

The

remaining

proposed

defendants may not be joined pursuant to N.J.R. 4:26-4 because
plaintiff

did

not

act

diligently

to

name

them

after

their

identities were discovered.
Although Rule 15(c)(1)(A) permits a party to rely on N.J.R.
4:9-3 to relate back an amendment, the Rule does not apply here.
When a John Doe designation is used, a plaintiff may only rely on
N.J.R. 4:26-4 to relate back an amendment and not N.J.R. 4:9-3.
Rodriguez,

Jaffe,

Bryant

and

Montero

may

not

be

joined

pursuant to Rule 15(c)(1)(C) because they did not have knowledge
plaintiff filed her complaint within 120 days after the complaint
was filed.
An Order consistent with this Opinion will be entered.
/s/ Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge
Dated: November 19, 2014

29