STERLING v. ADVENTURE AQUARIUM, LLC et al

Filing 69

OPINION. Signed by Judge Noel L. Hillman on 3/6/2020. (rss, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

SHARON STERLING,

1:18-cv-390-NLH-KMW

Plaintiff,

OPINION

v.
NEW JERSEY AQUARIUM, LLC, and
HARVARD SERVICES GROUP, INC.,
Defendants.

APPEARANCES:
JEFFREY D. SCHAFFER
KENNETH S. SAFFREN
SAFFREN & WEINBERG
851 GREENWOOD AVENUE, SUITE 22
JENKINTOWN, PENNSYLVANIA 19046
On behalf of Plaintiff
HEATHER M. EICHENBAUM
SPECTOR GADON & ROSEN, PC
1635 MARKET STREET, 7th FLOOR
SEVEN PENN CENTER
PHILADELPHIA, PENNSYLVANIA 19103
ELIZABETH TINA VRACHNAS
LONDON FISCHER
59 MAIDEN LANE, FLOOR 41
NEW YORK, NEW YORK 10038
On behalf of Defendants

HILLMAN, District Judge
This matter comes before the Court on the Motion to Dismiss
filed by Defendant Harvard Services Group, Inc. (“Harvard
Services”).

[Docket No. 48.]

For the reasons set forth below,

Harvard Service’s Motion will be denied.
BACKGROUND
This case stems from Plaintiff Sharon Sterling’s slip-andfall while at the New Jersey Aquarium (“the Aquarium”).
Plaintiff, who at all relevant times was a citizen and resident
of Pennsylvania, alleges that on or about November 14, 2015, she
visited the Aquarium (also known as the Adventure Aquarium) in
Camden, New Jersey, as an invitee.

[Docket No. 39, ¶¶ 2, 12.]

Plaintiff alleges that she “was caused to fall when descending a
stairway” that had “rock candy” on it.

[Id. ¶ 13.]

She also

alleges that the stairway in question, which was “at or near the
hippopotamus exhibit,” “failed to have the proper railings or
safety protection to protect [her] from the fall.”

[Id. ¶¶ 13-

14.]
Plaintiff alleges that Defendants, who “were responsible
for the inspection, care, custody, control, cleaning and
maintenance of the subject premises and steps,” “had actual
and/or constructive notice of the dangerous conditions created
by a reasonably foreseeable risk of injury to the public.”
¶ 15.]

[Id.

She claims that Defendants failed to adequately maintain

the area, to provide sufficient warnings, and to adequately
inspect and clean the area.

[Id. ¶ 17.]

She also claims that

Defendants created the dangerous conditions that led to her
injury.

[Id.]
2

Plaintiff claims that because of Defendants’ alleged
carelessness and negligence she sustained personal injuries to
various body parts, as well as “severe shock and trauma to her
nerves and nervous system.”

[Id. ¶ 19.]

As a result, she

alleges that she has sustained “great mental anguish and
physical pain and loss of enjoyment of life,” all of which she
will continue to suffer from “for an indefinite time in the
future.”

[Id.]

She also alleges that she has encountered

various medical expenses, which will continue into the future,
and she has suffered “a loss of earnings and/or earning power,”
which may too continue into the future.

[Id. ¶¶ 20-21.]

Plaintiff initially brought this case in the Superior Court
of New Jersey, Camden County, Law Division on November 17, 2017.
[Docket No. 1-2.]

The original complaint listed several

defendants, including several fictitious defendants (John Does
1-6).

[Id.]

defendants.

Harvard Services was not one of the listed
[Id.]

The Complaint identified John Does 1-3 as

“corporations or other duly authorized legal entities in the
State of New Jersey which were responsible for the management,
day to day operation, supervision and overall operation of the
subject premises.”

[Id. ¶ 9.]

It identified John Does 4-6 as

“corporations or duly authorized legal entities operating in the
State of New Jersey responsible for security, safety and well
being of business invitees and/or pedestrians traversing on the
3

subject premises of the Defendants.”

[Id. ¶ 10.]

On January 10, 2018, the case was removed to this Court.
[Docket No. 1.]

The next day, the case was referred to

arbitration, which was evidently unsuccessful, and its initial
conference was scheduled for March 1, 2018.

[See Docket.]

The

parties began to engage in discovery and on or about June 20,
2018, the Aquarium responded to Plaintiff’s interrogatories with
specific information about the Aquarium’s retention of Harvard
Maintenance, Inc. (“Harvard Maintenance”) to provide third-party
cleaning services. 1

[Docket No. 49, Ex. D, ¶¶ 2-3 (stating that

the Aquarium “ha[d] a contract pursuant to which a cleaning
company, Harvard Maintenance, does regular cleaning and
housekeeping”).]
Then, on August 16, 2018, Plaintiff sent a letter to the
Aquarium seeking additional information about Harvard
Maintenance.

[Docket No. 48-6.]

The Aquarium responded via

letter on September 4, 2018, stating, “[T]he Harvard Maintenance
contract you have requested is that of Harvard Services and is
protected by a strict confidentiality agreement.”
48-7.]

[Docket No.

The letter went on: “Thus, kindly direct a subpoena to

1

Harvard Services alleges that “Plaintiff was made aware of
Harvard Services’ relationship with [the] Aquarium” as a result
of the Aquarium’s response to the interrogatories. [Docket No.
48-1, at 2.] The Court cannot accept this version of events to
be true, as the Aquarium’s response mentioned only Harvard
Maintenance, and not Harvard Services. [See Docket No. 48-5.]
4

Harvard Services if you wish to obtain a copy of same as my
client is not at liberty to produce it.

Thank you.” 2

[Id.]

Next, on September 7, 2018, Plaintiff sought leave to file
an amended complaint that included Harvard Maintenance as a
defendant.

[Docket No. 11.]

The Court denied that motion

without prejudice on procedural grounds.

[Docket No. 14.]

Plaintiff filed a corrected motion seeking to amend the
complaint on November 7, 2018, which the Court granted on March
1, 2019.

[Docket Nos. 16, 19.]

On March 5, 2019, Plaintiff

filed the First Amended Complaint, which named Harvard
Maintenance as a defendant.

[Docket No. 20.]

issued to Harvard Maintenance on the same day.

The summons was
[Docket No. 22.]

On March 19, 2019, the Aquarium filed a motion to dismiss.
[Docket No. 24.]

On March 20, 2019, the Aquarium responded to

Plaintiff’s inquiry as to the purpose of the motion to dismiss
with a letter asserting that Plaintiff “was supposedly filing an
Amended Complaint to add Harvard Maintenance as a defendant; not
to complicate matters with two dozen new vague allegations.”
[Docket No. 49, Ex. I.]

2

Harvard Services, in its Motion to Dismiss, attempts to
construe the text of the September 4, 2018 letter as having
“advised Plaintiff in writing . . . that the actual entity that
was contracted to provide janitorial services to the Aquarium
was Harvard Services.” [Docket No. 48-1, at 2.] While that may
have been Defendant’s intent, the letter is not as clear as
Defendant suggests.
5

Based on that feedback, the parties stipulated on March 26,
2019, that Plaintiff be permitted to file a Second Amended
Complaint.

[Docket No. 25.]

The Second Amended Complaint,

which still named Harvard Maintenance as a defendant, addressed
the Aquarium’s concerns with the First Amended Complaint.

[See

id.; Docket No. 49, Ex. I (“In fact, I encourage you to [file a
Second Amended Complaint] — such that we are on notice of what
your client is actually alleging — so we can move this case
along.”).]
On April 9, 2019, Harvard Maintenance filed an application
seeking additional time to respond to the Second Amended
Complaint, which was granted the same day and gave Harvard
Maintenance until April 23, 2019, to respond.
31.]

[Docket Nos. 29-

On April 15, 2019, the Honorable Judge Williams held a

telephone conference with the parties, during which Plaintiff
was notified for the first time by Harvard Maintenance that
Harvard Services was actually the correct defendant.
No. 50, at 5.]

[Docket

In the call, Harvard Maintenance requested to be

voluntarily dismissed as a defendant.

[Id.]

It made the same

request in an April 17, 2019 letter, which said that “Harvard
[Maintenance] had no involvement in this action, as it never
provided, nor contracted to provide, services to the codefendant, Aquarium, at any time.”

[Docket No. 49, Ex. K.]

At this point, Plaintiff’s counsel researched the location
6

and corporate information of Harvard Services and found that its
and Harvard Maintenance’s corporate headquarters were at the
same address in Miami 3 and that they shared another address in
Iselin, New Jersey. 4

[Docket No. 49, Exs. G and L.]

Then, on

April 23, 2019, Harvard Maintenance sent a letter to Plaintiff
asserting that Harvard Maintenance and Harvard Services were
“two distinct and separate entities.”

[Id., Ex. M.]

Attached

to that letter were various corporate documents that showed,
among other things, that the two entities share a corporate
executive. 5

[Id.]

Further research revealed that Harvard

Services’s website states that “Harvard Services Group is a
strategic partner of Harvard Maintenance.”

[Id., Ex. O.]

Also on April 23, 2019, counsel for Harvard Maintenance
stated in an email to Plaintiff’s counsel, “I have spoken to my
client and they will agree to stipulate to the amendment to add
Harvard Services as a direct defendant, so long as the
stipulation includes language that this will not be deemed a
waiver of the statute of limitations and that it will not be

3

This address is 201 South Biscayne Boulevard, 24th Floor,
Miami, Florida 33131. [See Docket No. 49, Exs. G and L.]
4

This address is 33 S. Wood Ave., Suite 600, Iselin, New Jersey
08830. [See Docket No. 49, Exs. G and L.]
5

Namely, Nathalie R. Doobin is the Vice President of Harvard
Maintenance and the CEO of Harvard Services. [Docket No. 49,
Ex. M.]
7

precluded from moving to dismiss in the future, if necessary.”
[Id., Ex. P.]

Plaintiff’s counsel sought clarification as to

whether opposing counsel was representing both Harvard
Maintenance and Harvard Services, given that counsel had agreed
to a stipulation that directly invoked Harvard Services as a
defendant.

[Docket No. 50, at 6-7.]

Counsel responded by

stating, “We represent Harvard Maintenance.

However, while I

cannot state with certainty, given the facts and circumstances
of this case, it is possible that we will be retained to
represent Harvard Services in the event claims are brought
against it.” 6

[Docket No. 49, Ex. Q.]

Indeed, this turned out

to be the case, as the same counsel represented both Harvard
Maintenance and Harvard Services.

[See Docket.]

As a result of the above circumstances, Plaintiff’s counsel
agreed to voluntarily dismiss Harvard Maintenance as a party to
this action on April 24, 2019, and the late Honorable Jerome B.
Simandle ordered said dismissal on April 25, 2019.
36-37.]

[Docket Nos.

Then, on May 1, 2019, Plaintiff and the Aquarium

entered into yet another stipulation, permitting Plaintiff to
file her Third Amended Complaint.

6

[Docket No. 38.]

The Third

It is difficult to reconcile this statement with actions taken
by counsel two weeks before making the above assertion. On
April 9, 2019, Counsel filed two items on the docket on behalf
of “Defendant Harvard Services Group, LLC i/s/h/a ‘Harvard
Maintenance.’” [Docket Nos. 29-30.]
8

Amended Complaint, which is the operative complaint in this
case, was filed on May 2, 2019, and named Harvard Services as a
defendant.

[Docket No. 39.]

Services on May 6, 2019.

The summons was served on Harvard

[Docket No. 43.]

On May 28, 2019, the

Court granted Harvard Services an extension to respond to the
Third Amended Complaint [Docket No. 47], and on June 11, 2019,
Harvard Services timely filed the present Motion to Dismiss
[Docket No. 48].
In its Motion to Dismiss, Harvard Services argues that the
statute of limitations bars this suit.

[See id.]

Plaintiff’s

timely filed Response argues that the relation back doctrine
applies here, thereby precluding the action from being dismissed
on statute of limitations grounds. 7

[See Docket No. 50.]

Harvard Services addresses those arguments in both its initial
Motion and its timely filed Reply [Docket No. 52].
JURISDICTION
The Court exercises jurisdiction over this case pursuant to
28 U.S.C. § 1441.

Diversity exists because Plaintiff is a

citizen of Pennsylvania while the named defendants are citizens

7

Plaintiff also alleges that she would have timely named Harvard
Services as a defendant if not for the Aquarium’s repeated
misrepresentations and concealment of Harvard Services’
identity. [See Docket No. 50, at 1.] However, Plaintiff’s
brief does not flesh out this legal theory as a separate ground
for denying the Motion to Dismiss, so the Court will not address
it as one. [See generally id.]
9

of Missouri, Florida, and New Jersey.

The amount-in-controversy

requirement is also met as the parties concede the amount in
controversy at the time of the removal exceeded $75,000.
Therefore, the Court has jurisdiction over this matter.
DISCUSSION
A.

Motion to Dismiss Standard
To withstand a motion to dismiss under Federal Rule of

Civil Procedure 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.”

Id. at 662.

“[A]n unadorned, the

defendant-unlawfully-harmed-me accusation” is insufficient 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
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
10

as all reasonable inferences that can be drawn from them, and
construe those allegations in the light most favorable to the
plaintiff.”
2012).

Bistrian v. Levi, 696 F.3d 352, 358 n.1 (3d Cir.

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).

When considering a motion to

dismiss a complaint for failure to state a claim upon which
relief can be granted pursuant to Federal Rule of Civil
Procedure 12(b)(6), a court must accept all well-pleaded
allegations in the complaint as true and view them in the light
most favorable to the plaintiff.

Evancho v. Fisher, 423 F.3d

347, 351 (3d Cir. 2005).
A court in reviewing a Rule 12(b)(6) motion must only
consider the facts alleged in the pleadings, the documents
attached thereto as exhibits, and matters of judicial notice.
S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp. Ltd.,
181 F.3d 410, 426 (3d Cir. 1999).

If any other matters outside

the pleadings are presented to the court, and the court does not
exclude those matters, a Rule 12(b)(6) motion will be treated as
a summary judgment motion pursuant to Rule 56. FED. R. CIV. P.
11

12(b).
B.

Statute of Limitations
It is undisputed in this case that the incident in question

took place on November 14, 2015.

It is also undisputed that, in

New Jersey, the statute of limitations in negligence actions
expires two years after the date of the alleged injury.

N.J.

STAT. ANN. § 2A:14-2. Therefore, it is undisputed that the statute
of limitations expired in this case on November 14, 2017.
Plaintiff did not name Harvard Services as a defendant in this
case until she filed her Third Amended Complaint on May 2, 2019,
nearly 18 months after the expiration of the statute of
limitations.

Therefore, Harvard Services argues that any claims

asserted against it must be barred by the statute of
limitations.
As noted above, Plaintiff relies on Federal Rule of Civil
Procedure 15(c)’s relation back doctrine to oppose Harvard
Services’ Motion.

The Court agrees with Plaintiff’s argument

and will therefore deny Harvard Services’ Motion.
A.

Relation Back Doctrine
Federal Rule of Civil Procedure 15 (“Rule 15”) governs

amended and supplemental pleadings.

Subsection (c) provides for

three circumstances in which “[a]n amendment to a pleading
relates back to the date of the original pleading.”
P. 15(c)(1).

FED. R. CIV.

The effect of this doctrine is to preclude an
12

amended pleading from being barred by the statute of
limitations.

It is relevant when a pleading that was filed

prior to the expiration of the statute of limitations is amended
after the expiration of the statute of limitations.

If Rule

15(c) is satisfied in a case, then the amended pleading will
relate back to the original pleading for statute of limitations
purposes — in other words, a party opposing the amended pleading
will not be able to successfully argue that it is barred by the
statute of limitations.
Only two of the three circumstances under Rule 15(c) apply
to a case in which a new party is added to a suit after the
expiration of the statute of limitations.
15(c)(1)(A), (C).

See FED. R. CIV. P.

In this case, the parties dispute whether

either of those circumstances applies.

Because the Court will

rule that Rule 15(c)(1)(C) is satisfied here, it need not
address the parties’ arguments about Rule 15(c)(1)(A). 8
1.

Rule 15(c)(1)(C)

Rule 15(c)(1)(C) provides for the relation back of an

8

Federal Rule 15(c)(1)(A) applies when “the law that provides
the applicable statute of limitations allows relation back.”
FED. R. CIV. P. 15(c)(1)(A). In this case, the statute of
limitations is governed by Section 2A:14-2 of the New Jersey
Statutes, and New Jersey Court Rules 4:9-3 and 4:26-4 provide
for relation back under the fictitious party pleading doctrine.
The Court reserves judgment on whether New Jersey Court Rules
4:9-3 and 4:26-4, and therefore Federal Rule 15(c)(1)(A), are
satisfied here.
13

amended pleading when certain elements are met.

Interpreting an

old version of that rule in Schiavone v. Fortune, the Supreme
Court of the United States laid out four such elements:
(1) [T]he basic claim must have arisen out of the
conduct set forth in the original pleading; (2) the
party to be brought in must have received such notice
that it will not be prejudiced in maintaining its
defense; (3) the party must or should have known that,
but for a mistake concerning identity, the action
would have been brought against it; and (4) the second
and third requirements must have been fulfilled within
the prescribed limitations period.
477 U.S. 21, 29 (1986).
In this case, the parties’ analyses revolve around the
Schiavone elements.

[See Docket No. 48-1, at 10 (Harvard

Services); Docket No. 50, at 9 (Plaintiff).]

However, Rule 15

was amended in 1991 specifically “to change the result in
Schiavone” because it “was inconsistent with the liberal
pleading practices secured by Rule 8.”

See FED. R. CIV. P. 15(c),

Advisory Committee Notes (1991 Amendment); Jacobsen v. Osborne,
133 F.3d 315, 319-20 (5th Cir. 1998).

Specifically, the fourth

element was changed, with the goal of making it so an added
party need not receive notice within the limitations period, but
rather merely within the parameters set out by Rule 4(m).

See

Barrow v. Wethersfield Police Dep’t, 66 F.3d 466, 469 (2d Cir.
1995), modified by 74 F.3d 1366 (2d Cir. 1996); Skoczylas v.
Federal Bureau of Prisons, 961 F.2d 543, 545 (5th Cir. 1992).
The current rule — which was further amended in ways that do not
14

affect this analysis in 1993, 2007, and 2009 — allows for a
pleading to relate back to the date of the original pleading
when:
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 against it,
but for a mistake concerning the proper
party’s identity.
FED. R. CIV. P. 15(c)(1)(C).
As one can see, Rule 15(c)(1)(C) implicates Rule
15(c)(1)(B) and Rule 4(m).

Rule 15(c)(1)(B) requires that “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.”

FED. R. CIV. P. 15(c)(1)(B).

Rule 4(m) requires that a defendant be served within 90 days of
the complaint being filed, unless “the plaintiff shows good
cause” for failing to meet that deadline, in which case “the
court must extend the time for service for an appropriate
period.”

FED. R. CIV. P. 4(m).

Therefore, after the relevant

changes to Rule 15(c)(1)(C), the four elements that must be met
for relation back to apply are: (1) the amendment asserts a
claim or defense that arose out of the conduct, transaction, or

15

occurrence set out — or attempted to be set out — in the
original pleading; (2) the party to be brought in by the
amendment received such notice of the action that it will not be
prejudiced in defending on the merits; (3) the party to be
brought in by amendment knew or should have known that the
action would have been brought against it, but for a mistake
concerning the proper party’s identity; and (4) the third and
fourth requirements must have been fulfilled within 90 days
after the original complaint was filed, or longer if good cause
See FED. R. CIV. P. 15(c)(1)(C); FED. R. CIV. P. 4(m);

is shown.

see also Singletary v. Pa. Dep’t of Corr., 266 F.3d 186, 194 (3d
Cir. 2001).
There can be no dispute that the first element is met in
this case.

Therefore, only the second, third, and fourth

elements are in dispute here.

It is the fourth element that the

parties mischaracterize in their briefings.

For instance,

Harvard Services incorrectly asserts that it “must have received
notice of Plaintiff’s action within 90 days of the filing of the
complaint, as per [Rule] 15(c)(1)(C), or within the statute of
limitations period.”

[Docket No. 48-1, at 13-14.]

In its Reply

brief, Harvard Services, incorrectly relying on a case that was
decided under an old version of Rule 4(m), states that the
second and third elements must have been satisfied “within 120
days after the filing of the complaint.”
16

[Docket No. 52-1, at

5.]

Meanwhile, Plaintiff also misses the mark wrongly asserting

that because she “satisfied the second and third prongs of the
relation back test, [she] . . . has similarly satisfied the
fourth prong of the relation back test, as the notice
requirement has been met.”

[Docket No. 50, at 17.]

In actuality, as outlined above, the second and third
elements must have been satisfied either within 90 days of the
complaint being filed or within a longer time period if good
cause exists.

While the parties spend significant portions of

their briefs arguing whether and when Harvard Services received
imputed notice, see Docket No. 48-1, at 11 (Harvard Services)
and Docket No. 50, at 11 (Plaintiff), the Court need not rely on
imputed notice here, because Harvard Services received actual
notice within the time limits prescribed by Rule 4(m). 9

Harvard

Services received actual notice of this lawsuit on May 6, 2019.
[Docket No. 43.]

As the Court will explain in further detail

below, good cause exists to extend the Rule 4(m) deadline to no
earlier than that date.

Therefore, the issue to resolve is

whether the second and third elements were satisfied by May 6,
2019.

They were.

9

Therefore, the Court need not address the parties’ arguments
about whether notice to the Aquarium should be imputed to
Harvard Services, and reserves judgment on that issue. However,
the Court will hold infra that notice to Harvard Maintenance
does constitute imputed notice to Harvard Services.
17

a.

The Fourth Element: Rule 4(m) Timing

The Court will begin this analysis with the fourth
requirement of the relation back test.

The purpose for

discussing the final element first is that it dictates the time
by which the second and third elements must have been satisfied.
Typically, that date is easy to ascertain, since one option
under Rule 4(m) is simply a 90-day deadline.

In cases where

that option applies, no heavy lifting is required to determine
the time by which the second and third elements must have been
satisfied.

However, the deadline in this case will be

determined subject to the other option under Rule 4(m): “[I]f
the plaintiff shows good cause for the failure [to make service
within 90 days], the court must extend the time for service for
an appropriate period.”

FED. R. CIV. P. 4(m) (emphasis added).

Therefore, the Court must answer two questions.
good cause exist for extending the deadline?

First, does

And second, how

long an extension is “appropriate” under the circumstances of
this case?

The answers to those questions are as follows: Yes,

good cause exists, and an appropriate extension is to no earlier
than May 6, 2019, the date that Harvard Services was served in
this case.
The Third Circuit has interpreted Rule 4(m) to require a
court to extend time for service if good cause exists.

See

McCurdy v. Amer. Bd. of Plastic Surgery, 157 F.3d 191, 196 (3d
18

Cir. 1998); Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298,
1305 (3d Cir. 1995).

The Third Circuit “has equated [Rule

4(m)’s] ‘good cause’ with the concept of ‘excusable neglect’ of
Federal Rule of Civil Procedure 6(b)(2), which requires ‘a
demonstration of good faith on the part of the party seeking an
enlargement and some reasonable basis for noncompliance within
the time specified in the rules.’”

MCI Telecomms. Corp. v.

Teleconcepts, Inc., 71 F.3d 1086, 1097 (3d Cir. 1995) (quoting
Petrucelli, 46 F.3d at 1312 (Becker, J., concurring in part and
dissenting in part))).
That standard is easily met here.

Plaintiff initially

included six John Doe defendants in this suit.

The first

indication that she received from the Aquarium — initially the
only specifically named defendant — as to the identity of those
John Doe defendants came in the form of the Aquarium’s June 20,
2018 response to Plaintiff’s interrogatories.

The Aquarium’s

response stated that the Aquarium “ha[d] a contract pursuant to
which a cleaning company, Harvard Maintenance, does regular
cleaning and housekeeping.”

[Docket No. 49, Ex. D, ¶¶ 2-3.]

This was the first time that Plaintiff was made aware of Harvard
Maintenance.

Having received that information, Plaintiff then

sought more information from the Aquarium about Harvard
Maintenance on August 16, 2018.

The Aquarium responded on

September 4, 2018, that such information was in the possession
19

of Harvard Services, and not of the Aquarium.

The Aquarium’s

response did not indicate that Harvard Maintenance was the wrong
defendant.
At this point, Plaintiff did its own research on Harvard
Maintenance and, attempting to add it as a defendant, filed a
motion to amend on September 7, 2018.

Two months later, the

Court dismissed that motion without prejudice for procedural
reasons; within two days, Plaintiff corrected those mistakes and
refiled the motion to amend.

The Court granted that motion

approximately four months later, on March 1, 2019.

Four days

after that, Plaintiff filed the First Amended Complaint, naming
Harvard Maintenance as a defendant for the first time.

Two

weeks after that, the Aquarium filed a motion to dismiss, which
focused on the substance of the First Amended Complaint, but
made no suggestion that Harvard Maintenance was the wrong
defendant.

Based on that issue, the parties agreed to allow

Plaintiff to file a Second Amended Complaint on March 26, 2019,
which still named Harvard Maintenance as the defendant.
It was not until April 15, 2019, that Plaintiff finally
learned that Harvard Services, and not Harvard Maintenance, was
the correct defendant.

After researching Harvard Services and

finding that it shared many characteristics with Harvard
Maintenance, Plaintiff agreed to voluntarily dismiss Harvard
Maintenance and file a Third Amended Complaint naming, for the
20

first time, Harvard Services as a defendant.

That was filed on

May 2, 2019, and was served on Harvard Services on May 6, 2019.
The above facts easily demonstrate a good faith effort made
by Plaintiff to name the correct defendant in as timely a manner
as possible.

Be as it may that Harvard Services was not served

until nearly 1.5 years after the suit was filed and 3.5 years
after the incident in question, the delay is nothing more than a
product of Plaintiff’s excusable neglect — if it even reaches
that level.

Plaintiff diligently sought out the correct party.

The necessarily lengthy nature of motions practice surely cannot
be blamed on Plaintiff, nor can the fact that, despite her
reasonable efforts, the Aquarium and Harvard Maintenance dragged
their feet in indicating who the correct defendant was.

The

fact is that Plaintiff was made aware of Harvard Services’
identity, named Harvard Services in the Third Amended Complaint,
and served said complaint on Harvard Services all within a span
of a mere three weeks.
Based on the above analysis, good cause exists here for
extending the Rule 4(m) deadline.

As a result, the Court is

required to extend the deadline for a reasonable amount of time.
Given Plaintiff’s diligence and efforts to obtain Harvard
Services’ identity in spite of the Aquarium’s and Harvard
Maintenance’s lack of forthrightness, the Court finds that
extending the deadline to no earlier than May 6, 2019, is
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reasonable.
Therefore, the deadline by which the second and third
relation back elements must have occurred is May 6, 2019.
b.

The Second Element: Notice and Prejudice

The Court will next address whether the second element —
that, by May 6, 2019, Harvard Services received such notice of
the institution of the action that it was not prejudiced in
maintaining a defense on the merits — has been met here.

This

element has two parts, “notice and absence of prejudice, each of
which must be satisfied.”

Urrutia v. Harrisburg Cty. Police

Dep’t, 91 F.3d 451, 458 (3d Cir. 1996).
Harvard Services received actual notice of this suit on May
6, 2019, so the only remaining question is whether that notice
was sufficient to not prejudice Harvard Services.
prejudice must be actual, not hypothetical.”

“The

Id. at 461 (citing

Bechtel v. Robinson, 886 F.2d 644, 652 (3d Cir. 1989)); see also
Bechtel, 886 F.2d at 652 (requiring in the context of opposing a
motion to amend that the party “show that it was unfairly
disadvantaged or deprived of the opportunity to present facts or
evidence which it would have offered had the . . . amendments
been timely” (quoting Heyl & Patterson Int’l, Inc. v. F.D. Rich
Housing, 663 F.2d 419, 426 (3d Cir. 1981))).
Harvard Services argues that it was prejudiced because by
the time it received actual notice, which was nearly 1.5 years
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after the suit was filed and 3.5 years after the incident
occurred, it had been “deprived of an opportunity to promptly
investigate the claims asserted against it by” Plaintiff.
[Docket No. 52-1, at 7.]

Specifically, it argues that even if

it is able to overcome the difficulty of locating identified and
located, “their memories will have likely faded” in the
intervening time.

[Id.]

It also points out the inherent

difficulty of the situation given that it no longer provides
services to the Aquarium.

[Id.]

In spite of the time that has passed since the incident in
question occurred, this case was still in the initial stages of
discovery as of May 6, 2019.

[See Docket No. 56 (ordering

pretrial factual discovery by December 6, 2019).]

Harvard

Services had the opportunity to fully participate in the
discovery process beginning in May, and they will continue to
have that opportunity as this case progresses.

The challenges

that Harvard Services suggests will result from its delay in
receiving notice, while they may in fact be borne out, are not
so substantial for the Court to hold that Harvard Services is
prejudiced.

There is insufficient evidence that this delay

unfairly disadvantaged or deprived Harvard Services of the
opportunity to present facts or evidence in its defense.
Therefore, the second element of the relation back test is
met.

Harvard Services received actual notice of this suit on
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May 6, 2019, such that the it was not be prejudiced in
maintaining a defense on the merits.

The Court will not, then,

grant the Motion to Dismiss on that basis.

Instead, it will now

turn to the third element of the relation back test.
c.

The Third Element: Mistake

The third element of the relation back test requires that
the party to be brought in by amendment knew or should have
known that the action would have been brought against it, but
for a mistake concerning the proper party’s identity.

As with

the second element, this must have been true by May 6, 2019.
Here, because Harvard Services received actual notice of the
institution of this suit on May 6, 2019, this element is met.
In fact, the latest that this element was satisfied was on
March 19, 2019, the date on which Plaintiff’s First Amended
Complaint was served on Harvard Maintenance.

This is because

the notice that Harvard Maintenance received of this suit can be
imputed to Harvard Services.

Briefly, one way in which notice

to one party can be imputed to another entity is called identity
of interest.

“Identity of interest generally means that the

parties are so closely related in their business operations or
other activities that the institution of an action against one
serves to provide notice of the litigation to another.”
Singletary, 266 F.3d at 197 (quoting 6A CHARLES ALAN WRIGHT

ET AL.,

FEDERAL PRACTICE & PROCEDURE § 1499, at 146 (2d ed. 1990)); Garvin v.
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City of Philadelphia, 354 F.3d 215, 220 (3d Cir. 2003) (quoting
the same); see also Schiavone, 477 U.S. at 29 (“Timely filing of
a complaint, and notice within the limitations period to the
party named in the complaint, permit imputation of notice to a
subsequently named and sufficiently related party.”).
Identity of interest applies in this case, as between
Harvard Maintenance and Harvard Services.

They share multiple

addresses as well as one corporate executive.

These basic facts

indicate that any action filed against one of the parties
constitutes notice of the litigation to the other party.
Therefore, when Plaintiff mistakenly named Harvard
Maintenance as a defendant in the First Amended Complaint,
Harvard Services knew or should have known that the action would
have been brought against it, but for Plaintiff’s mistake
concerning the correct identity.

Even if identity of interest

did not apply here, the third element would still be satisfied
because, at the risk of stating the obvious, Harvard Services
knew or should have known that it was the proper defendant by
May 6, 2019, because it was properly served as a defendant in
this case on May 6, 2019.
Therefore, under multiple theories, the third element of
the relation back test is satisfied here: by no later than May
6, 2019, Harvard Services knew or should have known that this
action would have been brought against it, but for Plaintiff’s
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mistake.
CONCLUSION
In summary, all four elements of the relation back test
have been met here, meaning that the statute of limitations does
not bar Plaintiff’s complaint as against Harvard Services.
Therefore, Harvard Services’ Motion to Dismiss will be denied.
An accompanying order shall issue.

March 6, 2020
DATE

s/Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

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