FOYE v. MORAN FOODS INC.

Filing 66

OPINION. Signed by Judge Joseph H. Rodriguez on 5/13/2019. (tf, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
HELEN FOYE, et. al,

:

Plaintiffs,

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v.

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MORAN FOODS, INC., et. al,
Defendants.

Hon. Joseph H. Rodriguez
Civil Action No. 16-3587

:
:

OPINION

This matter comes before the Court on Motion of Defendant RAJ
Maintenance, Inc. to dismiss Plaintiffs’ Second Amended Complaint [Dkt.
No. 50] pursuant to Fed. R. Civ. P. 12 (b)(6) on the ground that the statute
of limitations precludes liability. The Court has considered the written
submissions of the parties without oral argument pursuant to Fed. R. Civ.
P. 78 (b). For the reasons stated below, Defendant’s motion is denied.
Background and Procedural History
Plaintiff Helen Foye was injured on May 10, 2014 when a shopping
cart malfunctioned during her visit to Defendant Moran Foods’ grocery
store known as Save-A-Lot. Foye filed a Complaint in the Superior Court of
New Jersey on May 10, 2016 against defendants Moran Foods, Inc. d/b/a/
Save-A-Lot and/or ABC Corporation (1-100) (a fictitious name for a
presently unknown and unidentified corporation), Supervalu, Inc. d/b/a

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Save-A-Lot and/or DEF Corporation (1-100) (a fictitious name for a
presently unknown and unidentified corporation), JOHN DOES and GHI
Corporation (1-100) (a fictitious name for a presently unknown and
unidentified corporation).
The case was removed to this Court on June 21, 2016. On August 17,
2017, Plaintiff filed an Amended Complaint to add additional Defendant
Gatekeeper Systems, Inc., but did not include RAJ Maintenance, Inc.
(“RAJ), as a defendant at that time. Approximately ten months later on
March 3, 2018, Plaintiff moved to filed a Second Amended Complaint to
substitute RAJ Maintenance, Inc. for that of DEF Corporation (2) as a
direct defendant. Plaintiff filed the Second Amended Complaint on August
8, 2018.
Defendant RAJ moves for dismissal on the ground that Plaintiff failed
to move against it within the statute of limitations period and/or acted
without the requisite diligence to avail herself to the tolling provisions of
the fictitious pleading rule. Plaintiff may have known identity of RAJ
before expiration of the limitations period. Even if Plaintiff did not know
before the limitations period expired, Plaintiff cannot toll the statute of
limitations by invoking New Jersey’s fictitious pleading rule, R. 4:26-4
because Plaintiff significantly delayed amending her complaint to include
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RAJ after she learned of RAJ’s identity. For the reasons that follow, the
Court agrees and grants Defendant’s motion to dismiss.
Standard of Review
Federal Rule of Civil Procedure 12(b)(6) allows a party to move for
dismissal of a claim based on “failure to state a claim upon which relief can
be granted.” Fed. R. Civ. P. 12(b)(6). A complaint should be dismissed
pursuant to Rule 12(b)(6) if the alleged facts, taken as true, fail to state a
claim. Fed. R. Civ. P. 12(b)(6). When deciding a motion to dismiss
pursuant to Rule 12(b)(6), ordinarily only the allegations in the complaint,
matters of public record, orders, and exhibits attached to the complaint, are
taken into consideration.1 See Chester County Intermediate Unit v. Pa. Blue
Shield, 896 F.2d 808, 812 (3d Cir. 1990). It is not necessary for the plaintiff
to plead evidence. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir.
1977). The question before the Court is not whether the plaintiff will
ultimately prevail. Watson v. Abington Twp., 478 F.3d 144, 150 (2007).

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“Although a district court may not consider matters extraneous to the pleadings, a document integral to
or explicitly relied upon in the complaint may be considered without converting the motion to dismiss
into one for summary judgment.” U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002)
(internal quotation marks and citations omitted) (emphasis deleted). Accord Lum v. Bank of Am., 361
F.3d 217, 221 n.3 (3d Cir. 2004) (citations omitted). Here, Plaintiffs’ Complaint includes several
references to exhibits attached to the Complaint and the Court will consider these documents without
converting the motion to dismiss into a summary judgment motion. In re Rockefeller Ctr. Props., Inc. Sec.
Litig., 184 F.3d 280, 287 (3d Cir. 1999).

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Instead, the Court simply asks whether the plaintiff has articulated “enough
facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
“A claim has facial plausibility2 when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citing Twombly, 550 U.S. at 556). “Where there are wellpleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.”
Iqbal, 556 U.S. at 679.
Thus, a motion to dismiss should be granted unless the plaintiff’s
factual allegations are “enough to raise a right to relief above the
speculative level on the assumption that all of the complaint’s allegations
are true (even if doubtful in fact).” Twombly, 550 U.S. at 556 (internal
citations omitted). “[W]here the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the complaint has

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plausibility standard requires more than a mere possibility that unlawful conduct has occurred.
“When a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of
the line between possibility and plausibility of ‘entitlement to relief.’’” Id.

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alleged-but it has not ‘shown’-‘that the pleader is entitled to relief.’” Iqbal,
556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
Analysis
The question confronting the Court is whether subject matter
jurisdiction exists as to the claims against RAJ because Plaintiffs’ claims are
barred by the statute of limitations. To answer this question, the Court
must determine whether Plaintiffs tolled the statute of limitations by
properly invoking New Jersey’s fictitious pleading rule, N.J. R. 4:26–4.
Plaintiffs claim against RAJ were filed beyond the limitations period
but may relate back to the date of the filing of the original complaint.
Federal Civil Procedure Rule 15(c) governs whether an amendment can
“relate back” to the filing date of the original complaint. Rule 15(c) provides
that an amendment to a pleading relates back to the date of the original
pleading in three instances:
the law that provides the applicable statute of limitations allows
relation back; (B) the amendment asserts a claim or defense
that arose out of the conduct, transaction, or occurrence set
out—or attempted to be set out—in the original pleading; or (C)
the 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
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against it, but for a mistake concerning the proper party's
identity.
Fed.R.Civ.P. 15(c)(1).
Here, Rule 15(c) (1)(a)(8) contemplates a relation back of the claims
against RAJ to the date of the original pleading if permitted by state law.
New Jersey law permits a plaintiff to amend her complaint to identify RAJ
as a proper party as long as the original complaint includes a sufficient
John Doe fictitious designation.
“Under certain conditions, Federal Rule of Civil Procedure 15(c) provides
for relation back, i.e., permitting an amended pleading to relate back to the
date of the original complaint.” DeRienzo v. Harvard Industries, Inc., 357
F.3d 348, 352–53 (3d Cir. 2004). One such condition is provided by Fed.R.
Civ. P. 15(c)(1)(C), which states that “[a]n amendment of a pleading relates
back to the date of the original pleading when ... relation back is permitted
by the law that provides the statute of limitations applicable to the action.”
F.R. Civ. P. 15(c)(1)(C). According to the Defendant, New Jersey Court Rule
4:26–4 (the “fictitious party” rule) does not save Plaintiffs' claims in this
case.
Under the fictitious party rule, the statute of limitations may be tolled if
the plaintiff invokes the rule before the expiration of the limitations period.
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DeRienzo, 357 F.3d at 353 (citing N.J.S.A. 2A:14–2 and N.J. R. 4:26–4).
The Rule provides,
In any action, irrespective of the amount in controversy, other
than an action governed by R. 4:4–5 (affecting specific property
or a res), if 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. If, however, defendant acknowledges his or her true
name by written appearance or orally in open court, the
complaint may be amended without notice and affidavit. No
final judgment shall be entered against a person designated by a
fictitious name.
N.J. Civ. Pro. R. 4:26–4.
Relevant here, the fictitious party rule tolls the statute of limitations
only if the Court finds that Plaintiffs exercised due diligence to ascertain
RAJ’s trues name before and after filing the complaint. Farrell v. Votator
Div. of Chemetron Corp., 62 N.J. 111, 299 A.2d 394, 396 (1973); Claypotch
v. Heller, Inc., 360 N.J. Super. 472, 823 A.2d 844, 848–49 (2003). The
fictitious name designation also must have appended to it “an appropriate
description sufficient to identify” the defendant. Rutkowski v. Liberty Mut.
Ins. Co., 209 N.J. Super. 140, 506 A.2d 1302, 1306–07 (1986); see also
Yarchak v. Trek Bicycle Corp., 208 F.Supp.2d 470, 489 (D.N.J. 2002)
(“[T]he fictitious party rule permits a plaintiff to preserve a claim against as
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yet unidentified potential defendants who may have contributed to
plaintiff's injuries.”). In addition to diligence, application of N.J.R. 4:26–4
must not prejudice the defendant. Farrell, 299 A.2d at 400; Mears, 693
A.2d at 563–64.
Thus, whether a plaintiff may avail himself of Rule 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).
Here, the relevant timeline is as follows. Plaintiff was allegedly
injured on May 10, 2014. Defendant Moran Foods, Inc. requested service
by RAJ on June 12, 2014 and that work was performed on July 11, 2014.
The original Complaint was filed on May 4, 2016, with Notice of Removal to
United States District Court, Camden Vicinage filed on June 21, 2016.
Importantly, the Statute of Limitations for Plaintiff’s injuries expired on
May 11, 2016.
Defendant Moran Foods, Inc.’s identified RAJ Maintenance, Inc. to
all parties by way of discovery April 10, 2017. Then on May 22, 2017,
Plaintiffs moved to amend the Complaint to include Defendant Gateway,
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but not RAJ. Plaintiffs again moved to amend to add RAJ on March 8,
2018. Defendant claims this is critical because the motion to amend came
almost eleven months after RAJ was identified in discovery.
According to Defendant, Plaintiff was made aware of the role of RAJ
Maintenance, Inc. as early as April 10, 2017 when they were provided with
the discovery responses of Co-Defendant Moran Foods which included a
“Field Service Ticket” with the name of RAJ Maintenance, Inc. See Exhibit
A, Field Service Tickets. Even though plaintiff included a fictitious ABC
Corporation in its complaint, the description of the company stated that it
maintained shopping carts. RAJ avers that it does not maintain shopping
carts; it is responsible for the locking mechanisms on the wheel of the cart.
Simply pleading a fictitious corporation without an “appropriate
description sufficient for identification” is improper. See N.J. Civ. Pro. R.
4:26–4. Here, the Court finds that the description, albeit inaccurate,
adequately reflects an attempt to identify the entity responsible for the
injury- which was allegedly caused by the locking of the cart wheel. The
fact that Plaintiff chose the term “maintenance” captures RAJ’s limited,
relevant function in the operation of the cart. To find otherwise would
require a level of specificity that offends the intent of the Rule.

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The determination of whether Plaintiffs can avail themselves of the
fictitious party rule when RAJ’s role and true name was known to Plaintiffs
since April 10, 2017 and Plaintiff waited to amend their complaint to
include RAJ as a defendant requires the Court to consider whether
Plaintiffs acted with requisite diligence. According to RAJ, Plaintiffs filed
an amended complaint on May 22, 2017 which did not include RAJ and
then waited until March 8, 2018 to move for leave to file a second amended
complaint to include RAJ. In addition, RAJ was not served with the Second
Amended Complaint until August 24, 2018 when RAJ entered a waiver of
service after several failed attempts by Plaintiffs to serve it with the motion
to amend.
RAJ claims that its identity was knowable as evidenced by Plaintiff’s
inclusion of claims against any fictitious corporation which serviced the
shopping carts at issue. However, the nature of Plaintiffs’ diligence, or lack
thereof, is not appropriately considered on a motion to dismiss. “[T]he
question of whether [a] plaintiff had made reasonable efforts ... should not
[be] decided on summary judgment” unless “no ‘rational factfinder [could]
resolve th[is] alleged disputed issue in’ plaintiff's favor.” Tonic v. Am. Cas.
Co., 413 N.J. Super. 458, 474, 995 A.2d 1124 (App. Div. 2010) quoting Brill
v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995).
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Courts in this district have declined to make a finding on diligence at the
motion to dismiss stage. Carroll v. SetCon Indus. Inc., No. CIV.A. 10-04737,
2011 WL 736478, at *9 (D.N.J. Feb. 23, 2011). The Court agrees that the
considerations here merit an evidence-based decision, which can only come
from a summary judgment posture. For this reason, RAJ’s motion to
dismiss is denied.
An appropriate Order shall issue.
Dated: May 13, 2019

s/ Joseph H. Rodriguez
Hon. Joseph H. Rodriguez,
UNITED STATES DISTRICT JUDGE

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