FLAHERTY v. GUALA PACK NORTH AMERICA, INC. et al
Filing
56
OPINION. Signed by Judge Renee Marie Bumb on 8/29/2018. (dmr)
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[Dkt. Nos. 31, 37]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
CHRISTOPHER FLAHERTY,
Plaintiff,
Civil No. 17-8895(RMB/JS)
v.
GUALA PACK NORTH AMERICA,
INC., et al.,
OPINION
Defendants.
RENÉE MARIE BUMB, United States District Judge:
This matter comes before the Court upon the filing of
motions by Defendants GEA Process Engineering, Inc. (“GEA”),
[Dkt. No. 31], and Clayton H. Landis, Inc. (“CHL” and
collectively with GEA, the “Moving Defendants”), [Dkt. No. 37],
seeking the dismissal of Plaintiff Christopher Flaherty’s First
Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6). 1 For the
following reasons, the Moving Defendants’ motions will be
1
On August 2, 2018, CHL filed a letter with the Court indicating
that its motion was unopposed and inquiring as to the status of
the motion. [Dkt. No. 53]. While it is true that Plaintiff did
not file an opposition to CHL’s motion, he did file an
opposition to GEA’s motion, which was filed before CHL’s motion
and to which CHL’s motion is identical. Accordingly, the Court
will construe Plaintiff’s opposition to GEA’s motion as an
opposition to both motions.
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GRANTED, and Plaintiff’s claims against the Moving Defendants
will be DISMISSED.
I.
Background
Plaintiff, at the time he suffered the injuries that form
the basis of this action, was a 52 year-old employee of Shelby
Mechanical, Inc. (“Shelby”). (Am. Compl. ¶ 9, 31). Defendant
LiDestri Foods, Inc. (“LiDestri”) is a food, drink, and spirit
manufacturer. (Id. ¶ 2). Defendant GEA is an engineering company
that, among other things, sells and installs aseptic filling
systems for beverage manufacturers and bottlers. (Id. ¶ 3). In
March 2015, LiDestri purchased an “ECOSpin 2 Aseptic Filler”
(the “Filler”), an “extremely large and heavy” piece of
equipment, from GEA. (Id. ¶¶ 2, 10).
In the course of his employment for Shelby, Plaintiff was
tasked with assisting with the installation of the Filler at
LiDestri’s food processing facility at 1550 John Tipton
Boulevard, Pennsauken, New Jersey. (Id. ¶ 9). Defendant CHL was
hired to provide a project manager to manage the day-to-day
responsibilities for the installation of the Filler. (Id. ¶ 12).
Two individuals, who Plaintiff only identifies as Luciano and
Massimo, and who Plaintiff avers did not speak English, were
2
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also part of the crew working on the installation. (Id. ¶¶ 6,
14). 2
On August 25, 2015, at the direction of either GEA, CHL, or
LiDestri, Plaintiff lifted the Filler, or a one-ton portion
thereof, with a hydraulic jack. (Id. ¶ 19). At the same time,
portions of the Filler were sitting on dollies on an uneven and
sloped surface. (Id. ¶¶ 20-21). Plaintiff was ordered to stop
raising the Filler and when he did so the Filler slipped off the
dollies and landed on Plaintiff’s leg, trapping Plaintiff under
it and breaking his leg in multiple places. (Id. ¶¶ 24, 28).
Plaintiff underwent an open reduction and hardware fixation
surgery to repair the breaks to his leg and was hospitalized for
a week. (Id. ¶ 29). He has been unable to work since this
occurred. (Id. ¶ 31).
Plaintiff initiated this action by filing a Complaint in
the Superior Court of New Jersey, Law Division, Camden County,
on August 24, 2017 (No. L-3318-17). 3 (Notice of Removal ¶ 1)[Dkt.
No. 1]. In his Complaint, Plaintiff alleged negligence against
LiDestri; Cheer Pack North America, LLC (“Cheer Pack”); Guala
Pack North America, Inc. (“GPNA”); Gualapack S.p.A. (“Guala
Pack”); Massimo Annaratone; and “Luciano” whose last name was
2
Plaintiff believes these individuals are employed by GEA.
Plaintiff’s Complaint was filed on the day before the
expiration of the statute of limitations.
3
3
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unknown to Plaintiff (collectively, the “Original Defendants”).
(Compl. ¶¶ 2-7, 37-83, Notice of Removal, Exhibit I). On October
23, 2017, LiDestri, Cheer Pack, GPNA, and Guala Pack removed
this action to this Court on the basis of diversity of
citizenship. (Notice of Removal ¶ 1, 4-6); 28 U.S.C. § 1332; 28
U.S.C.§ 1441; 28 U.S.C. § 1446.
On December 8, 2017, Plaintiff filed his Amended Complaint,
asserting negligence claims against LiDestri; GEA; CHL; and John
Doe Defendants 1-5. Specifically, Plaintiff alleges that
LiDestri, GEA, and CHL, who all played some role in the
installation of the Filler, failed to follow or enforce proper
safety precautions during the installation of the Filler.
Plaintiff’s addition of these new defendants—GEA and CHL—is the
basis for the currently pending motions to dismiss. 4
On December 29, 2017, in accordance with this Court’s
Individual Rules and Procedures, GEA filed a letter seeking a
pre-motion conference concerning its intention to file a motion
to dismiss Plaintiff’s claims against it as untimely. [Dkt. No.
21]. On February 7, 2018, the Court held a telephonic conference
during which counsel for Defendants GEA and CHL presented their
4
There have also been cross-claims and third-party complaints
filed against both of the Moving Defendants. Neither GEA or CHL
seeks the dismissal of such claims and complaints. (See GEA Br.
in Support of Mot. to Dismiss at 1 n.1; CHL Br. in Support of
Mot. to Dismiss at 1 n.1).
4
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arguments concerning the untimeliness of Plaintiff’s claims
against them. During this conference, the Court inquired as to
whether some limited discovery may be necessary, and whether the
questions anticipated to be presented in the Moving Defendants’
motions may be better suited for summary judgment. Nevertheless,
the Court instructed the Moving Defendants to file their motions
to dismiss.
GEA filed its motion on February 8, 2018. [Dkt. No. 31].
CHL filed its identical motion on February 14, 2018. [Dkt. No.
37].
II.
Legal Standards
To withstand a motion to dismiss under Fed. R. Civ. P.
12(b)(6), “a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 662. “[A]n unadorned,
the defendant-unlawfully-harmed-me accusation” does not suffice
to survive a motion to dismiss. Id. at 678. “[A] plaintiff's
obligation to provide the ‘grounds' of his ‘entitle[ment] to
relief’ requires more than labels and conclusions, and a
5
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formulaic recitation of the elements of a cause of action will
not do.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain,
478 U.S. 265, 286 (1986)).
In reviewing a plaintiff's allegations, the district court
“must accept as true all well-pled factual allegations as well
as all reasonable inferences that can be drawn from them, and
construe those allegations in the light most favorable to the
plaintiff.” Bistrian v. Levi, 696 F.3d 352 n.1 (3d Cir. 2012).
When undertaking this review, courts are limited to the
allegations found in the complaint, exhibits attached to the
complaint, matters of public record, and undisputedly authentic
documents that form the basis of a claim. See In re Burlington
Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997);
Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998
F.2d 1192, 1196 (3d Cir. 1993).
Generally, a statute of limitations defense may only be
raised by way of motion under Rule 12(b)(6) where “the time
alleged in the statement of a claim shows that the cause of
action has not been brought within the statute of limitations.”
Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (internal
quotations omitted). If “the bar is not apparent on the face of
the complaint, then it may not afford the basis for a dismissal
of the complaint under Rule 12(b)(6).” Id. (internal quotations
omitted).
6
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III. Analysis
At issue here is whether New Jersey’s two-year statute of
limitations for personal injury cases, N.J.S.A. 2A:14-2(a), bars
Plaintiff’s claims against the Moving Defendants. The Moving
Defendants present the same argument in their respective
motions, and the Court will address them together. First, they
argue that Plaintiff’s claims against them are time barred.
Second, the Moving Defendants argue that Plaintiff’s failure to
name them as defendants within the period provided by the
statute of limitations cannot be cured by “relation back”
because Plaintiff did not name any fictitious “John Doe”
defendants in his initial Complaint as required by New Jersey
Court Rule (“N.J. Ct. R.”) 4:26-4.
A. Plaintiff Added the Moving Defendants After the
Statute of Limitations Had Run
Plaintiff asserts claims for negligence against both of the
Moving Defendants. New Jersey has a two-year statute of
limitations for personal injury actions. N.J.S.A. 2A:14-2(a).
Plaintiff sustained the injury out of which this case arises on
August 25, 2015. The Moving Defendants were not added as parties
until the Amended Complaint was filed on December 8, 2017, over
two years after the accident. Thus, it is clear from the face of
the Amended Complaint that Plaintiff’s claims against the Moving
Defendants were not brought within the statute of limitations.
7
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See Schmidt, 770 F.3d at 249. Accordingly, unless they “relate
back” to the date on which the Complaint was filed in state
court, August 24, 2017, or the statute of limitations was tolled
in some other way, Plaintiff’s claims must be dismissed.
B. Plaintiff’s Claims Against the Moving Defendants do
not Relate Back to the Date of Plaintiff’s Complaint
Plaintiff argues that despite the apparent untimeliness of
his addition of the Moving Defendants as parties in this matter,
his claims against them should survive dismissal because they
“relate back” to the date he filed his Complaint in state court.
Federal Rule of Civil Procedure 15(c) controls the issue of
“when an amended pleading ‘relates back’ to the date of a timely
filed original pleading and is thus itself timely even though it
was filed outside an applicable statute of limitations.” Krupski
v. Costa Crociere S. p. A., 560 U.S. 538, 541 (2010).
Rule 15(c)(1)(A) provides that an amendment to a pleading
relates back to the date of the original pleading when “the law
that provides the applicable statute of limitations allows
relation back.” See DeRienzo v. Harvard Indus., Inc., 357 F.3d
348, 353 (3d Cir. 2004)(citations omitted)(“The court may apply
the state law that establishes the limitations period to
determine whether relation back is permissible.”). This rule
“allows state relation back law to govern a state claim in
federal court if state law ‘affords a more forgiving principle
of relation back than the one provided by [Rule 15(c)].” Zurich
8
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Reinsurance (UK) Ltd. v. York Int'l Corp., No. CIV. A. 98-539
(JEI), 1998 WL 226298, at *3 (D.N.J. Apr. 29, 1998)(alterations
in original)(citing Fed. R. Civ. P. 15(c), Advisory Committee
Notes, 1991 Amendment)(additional citations omitted). In other
words, where the statute of limitations at issue is established
by state law, “section 15(c)(1)(A) . . . gives a party the
benefit of whichever standard for relation back[, state or
federal,] is most lenient.” Anderson v. Bondex Int'l, Inc., 552
F. App'x 153, 157 (3d Cir. 2014). There are two provisions of
New Jersey law potentially applicable here: N.J. Ct. R. 4:26-4
(the “fictitious party rule”) and N.J. Ct. R. 4:9-3, New
Jersey’s general relation back rule. As discussed below, N.J.
Ct. R. 4:9-3 is nearly identical to Fed. R. Civ. P. 15(c)(1)(C).
The fictitious party rule allows a plaintiff to sue a
defendant whose “true name is unknown to the plaintiff . . .
under a fictitious name, stating it to be fictitious and adding
an appropriate description sufficient for identification.” In
order for N.J. Ct. R. 4:26-4 to apply, the plaintiff must have,
among other things, (1) included fictitious name defendants in
his pleadings and (2) appended to such fictitious name
designations “an appropriate description sufficient to identify”
the defendants. DeRienzo, 357 F.3d at 353. With regard to the
Moving Defendants, Plaintiff did neither. He brought suit
against LiDestri, Cheer Pack, GPNA, Gualapack, Massimo
9
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Annaratone, and Luciano L.N.U. (Compl. at 1). The only party
whose identity was unknown to Plaintiff was “Luciano,” who
Plaintiff identified in the Complaint as “an adult individual .
. . employed by and/or an agent of Defendants Cheer Pack, Guala
Pack NA, and Gualapack.” (Id. ¶ 7). Because Plaintiff did not
name any fictitious party defendants, let alone sufficiently
identify the Moving Defendants, he cannot receive the benefit of
the fictitious party rule.
Unlike the fictitious party rule, if the requirements of
N.J. Ct. R. 4:9-3 are met, it “permits the addition of a new
claim or a new party when the original complaint did not
contemplate the need for such an amendment.” Viviano v. CBS,
Inc., 503 A.2d 296, 304 (N.J. 1986). The portion of N.J. Ct. R.
4:9-3 at issue here provides for the relation back of an
“amendment changing the party against whom a claim is asserted”
if (1) “the claim or defense asserted in the amended pleading
arose out of the conduct, transaction or occurrence set forth or
attempted to be set forth in the original pleading,” and “within
the period provided by law for commencing the action against the
party to be brought in by amendment, that party” (2) “has
received such notice of the institution of the action that the
party will not be prejudiced in maintaining a defense on the
merits,” and (3) “knew or should have known that, but for a
mistake concerning the identity of the proper party, the action
10
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would have been brought against the party to be brought in by
amendment.”
There is no dispute that the claims against the Moving
Defendants arise out of the same “conduct, transaction, or
occurrence” as the claims brought against the improperly named
defendants in the Complaint. Moreover, it does not appear that
the parties dispute that Plaintiff named the wrong defendants in
the Complaint because of a “mistake concerning the identity of
the proper party.” What this matter turns on is whether the
Moving Defendants knew or should have known, within the period
provided by either N.J. Ct. R. 4:9-3 or Fed. R. Civ. P.
15(c)(1)(C), about the commencement of this action and that but
for a mistake on Plaintiff’s part, this action would have been
brought against them. 5
5
Fed. R. Civ. P. 15(c)(1)(C) is nearly identical to N.J. Ct. R.
4:9-3, but provides a different period during which the party
being brought in by amendment must have had notice of the
action. While N.J. Ct. R. 4:9-3 requires the newly added party
to have had notice before the statute of limitations ran—here,
August 25, 2017—Fed. R. Civ. P. 15(c)(1)(C) requires that party
to have notice “within the period provided by Rule 4(m) for
serving the summons and complaint”—90 days from the date the
complaint was filed, or November 22, 2017. As noted above, Rule
15(c)(1)(A) provides Plaintiff with the benefit of whichever
rule “affords a more forgiving principle of relation back.” See
Fed. R. Civ. P. 15 Advisory Committee Notes, 1991 Amendment.
Here, Plaintiff does not allege or argue that either of the
Moving Defendants had the requisite notice in the time provided
by either rule. While Plaintiff is closer to satisfying Rule
15(c)(1)(C), he entirely bases his argument for relation back on
the New Jersey rule, arguing that New Jersey law is more
flexible with regard to the notice requirement. Accordingly, the
11
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It also appears to be undisputed, however, that the Moving
Defendants did not have the requisite notice. Plaintiff has not
argued—nor does anything in his pleadings suggest—that either of
the Moving Defendants had notice, actual or constructive, of his
suit before being served with the Amended Complaint. He argues,
rather, that although it is explicitly included in the language
of N.J. Ct. R. 4:9-3, notice of the action is not required.
Notice is inconsequential, Plaintiff argues, because Plaintiff
acted reasonably and in good faith, and the Moving Defendants
will not be prejudiced by their late addition to this action. 6
As support for his argument, Plaintiff cites primarily to
two New Jersey Superior Court Appellate Division decisions:
Walker v. Choudhary, 40 A.3d 63 (N.J. Super. App. Div. 2012) and
Aruta v. Keller, 342 A.2d 231 (N.J. Super. App. Div. 1975). In
both Walker and Aruta, the trial court granted dismissals to
defendants added after the expiration of the statute of
limitations, finding that N.J. Ct. R. 4:9-3 did not save the
plaintiffs’ late claims. Walker, 40 A.3d at 67; Aruta, 342 A.2d
Court analyzes the parties’ arguments under New Jersey law. The
Court notes, however, that it would reach the same result under
Fed. R. Civ. P. 15(c)(1)(C).
6 As set forth above, the Court held a telephonic pre-motion
conference on February 7, 2018. During that conference, the
Court raised the issue of notice and inquired whether some
limited discovery may be necessary on that issue. Despite the
Court addressing the issue, Plaintiff has not argued that the
Moving Defendants had notice or that he should be entitled to
discovery on the issue.
12
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at 233-34. In both cases, the Appellate Division reversed and
remanded for further proceedings, and in doing so suggested that
the trial judges in those proceedings consider “relaxing” the
notice requirement of N.J. Ct. R. 4:9-3. Walker, 40 A.3d at 70;
Aruta, 342 A.2d at 235.
These decisions were based on the specific factual
scenarios before the court in each case, which, in Walker,
included a dispute over whether the newly added defendants had
the notice required by N.J. Ct. R. 4:9-3. Specifically, the
defendant to be substituted late was a doctor who worked for the
same practice as several defendants plaintiff had mistakenly
named, at the location where those defendants were served with
the initial complaint, and whose deposition testimony
contradicted the affidavit she submitted in support of summary
judgment regarding when she received notice of the action.
Walker, 40 A.3d at 66, 68-69. The trial Judge had gone so far as
to state on the record that it was “inexplicable . . . that [the
newly added doctor] wouldn’t have maybe known about” the suit
filed against her colleagues. Id. at 69. Yet, the trial judge
did not hold an evidentiary hearing to make a determination on
this contested record. The Appellate division reversed and
remanded, ordering the trial judge to hold such a hearing and
“consider relaxing the rule’s application in the interest of
justice.” Id. at 70-71.
13
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In Aruta, the plaintiff mistakenly named as a defendant
Georg Keller when the proper defendant was his brother, Julius
Georg Stefan Keller. Aruta, 342 A.2d at 233. The trial judge
decided the issue of notice based on an answer to an
interrogatory submitted by Julius Georg Stefan Keller in which
he indicated that he had not spoken with his brother about the
matter until he had been served with an amended pleading naming
the proper defendants. Id. at 235. Because the Kellers resided
in Germany, their depositions were never taken. Id. The trial
judge dismissed the action. The Appellate division held that
under “the circumstances of the case at hand,” N.J. Ct. R. 4:9-3
was unduly confining, and remanded with directions for the trial
judge to hold a trial at which the statute of limitations issue
would be resolved first. Id. The Appellate Division also left it
to the discretion of the trial judge to include the issue of
notice “in the hearing on the applicability of the statute of
limitations.” Id. at 236.
Walker and Aruta appear to be outliers, and are factually
and procedurally distinguishable from this case. Those cases
presented situations where notice was at issue and the trial
judge resolved the issue without using the procedure favored by
the Appellate Division. Here, Plaintiff not only declined to
raise the issue of notice, but argued that it was not necessary
to the operation of N.J. Ct. R. 4:9-3. Moreover, the
14
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relationships of the late-added defendants in Walker and Aruta
with the defendants for whom they were to be substituted were
highly suggestive of notice. Here, Plaintiff presents no such
facts. In addition, the suggestion to “relax” the notice
requirement in these cases was reference to N.J. Ct. R. 1:1-2
which provides that “[u]nless otherwise stated, any rule may be
relaxed or dispensed with by the court in which the action is
pending if adherence to it would result in an injustice.” The
trial court decisions in both Walker and Aruta were total
dismissals which would have left the plaintiffs with no
recourse. That may have been the “injustice” the Appellate
Division was concerned about. Here, not only does Plaintiff
still have an active claim against LiDestri, but LiDestri has
filed a third-party complaint against both Moving Defendants for
contribution and indemnification. The Moving Defendants have not
sought the dismissal of the third-party complaint. Thus, even if
Plaintiff’s claims against them are dismissed, this case will
remain open, and the Moving Defendants will remain in the case
as third-party defendants.
Moreover, Plaintiff has not pointed to any case—nor has
this Court identified any case—where a New Jersey court, or a
court in this District or this Circuit applying New Jersey law,
actually decided that an amendment adding a new defendant after
the running of the statute of limitations related back to a
15
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timely filed complaint where the newly added party was not on
notice of the action within the time period provided by N.J. Ct.
R. 4:9-3. There are, however, a number of cases applying the
notice requirement. See, e.g., Monaco v. City of Camden, 366 F.
App'x 330, 334 (3d Cir. 2010); Lundy v. Adamar of New Jersey,
Inc., 34 F.3d 1173, 1184 (3d Cir. 1994); Otchy v. City of
Elizabeth Bd. of Educ., 737 A.2d 1151, 1156 (N.J. Super. App.
Div. 1999), certif. denied, 163 N.J. 79 (2000). “Rule 4:9–3
recognizes the importance of providing notice and avoiding
prejudice to the opposing party.” Prime Accounting Dep't v. Twp.
of Carney's Point, 58 A.3d 690, 702 (N.J. 2013); Kernan v. One
Washington Park Urban Renewal Assocs., 713 A.2d 411, 422 (N.J.
1998)(“Because there was notice of plaintiff's action, our
holding does not offend the policy underlying the statute of
limitations . . . .”). It does so by making such notice an
express prerequisite of the Rule’s application. See Otchy, 737
A.2d at 1156 (“The purpose of that notice provision in the rule
is to assure that the added party will not be prejudiced by
having to defend a stale claim.”).
This Court will not read that express prerequisite out of
the rule under the circumstances of this case. The Moving
Defendants are “entitled to rely on the repose afforded by the
statute . . . [of limitations]” unless they had “such notice of
16
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the institution of the action that . . . [they] [would] not be
prejudiced in maintaining a defense on the merits.” Id. at 1155.
Because Plaintiff has not plead any facts that would suggest,
nor argued that, the Moving Defendants had notice of this action
before the expiration of the statute of limitations—or within
the period provided by Fed. R. Civ. P. 15(c)(1)(C)—Plaintiff’s
claims against the Moving Defendants will be dismissed.
IV.
Conclusion
For the foregoing reasons, the Moving Defendants’ motions
to dismiss will be GRANTED and Plaintiff’s claims against the
Moving Defendants will be DISMISSED as untimely. An Order
consistent with this Opinion shall issue on this date.
_s/_Renee Marie Bumb
RENÉE MARIE BUMB
United States District Judge
DATED: August 29, 2018
17
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