LUKASEWICZ v. VALTRIS SPECIALTY CHEMICAL COMPANY et al

Filing 55

OPINION. Signed by Magistrate Judge Cathy L. Waldor on 5/9/2022. (ld, )

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
TADEIUZ LUKASEWICZ,
Plaintiff,
Civil Action No. 2:21-cv-04128-SRC-CLW

v.
VALTRIS SPECIALTY CHEMICAL
COMPANY, SOLUTIA, INC., JOHN
DOES 1-10 and ABC CORPORATIONS
1-10,

OPINION

Defendants.

I.

Introduction
This matter is before the Court on the motion of plaintiff Tadeiuz Lukasewicz

(“Plaintiff”) seeking to amend his complaint by (i) correcting the name of Defendant Valtris
Specialty Chemical Company (“Valtris”); (ii) adding Plaintiff’s wife Cecylia Lukasewicz
(“Cecylia”) as a per quod plaintiff; and (iii) correcting the names of certain fictitious defendant
entities and adding others. ECF No. 44. The motion has been referred to the undersigned by the
Honorable Stanley R. Chesler, and it is fully briefed. The Court decides the matter without oral
argument per FED. R. CIV. P. 78(b) and Local Civil Rule 78.1. For the reasons stated below,
Plaintiff’s motion is GRANTED IN PART and DENIED IN PART.
II.

Background
Plaintiff filed this action in New Jersey state court in September 2020, claiming injuries

from an alleged accident occurring on September 25, 2018. See ECF No. 1-1, Exhibit A (the
“Complaint”). After the action was removed to this Court, ECF No. 1, Plaintiff moved (i) to
remand; and (ii) to amend his Complaint to add a non-diverse defendant and to remand, both of

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which motions were denied (as was Plaintiff’s motion for reconsideration of the latter). See ECF
No. 12, 22, 23, 26, 38, 39, 41.
III.

Legal Standard
As Plaintiff’s motion is timely under the Court’s scheduling order, ECF No. 21 at ¶ 2, it

is governed by FED. R. CIV. P. 15(a)(2), under which “a party may amend its pleading only with
the opposing party’s written consent or the court’s leave. The court should freely give leave
when justice so requires.” The “three instances when a court typically may exercise its discretion
to deny a Rule 15(a) motion for leave to amend [are] when ‘(1) the moving party has
demonstrated undue delay, bad faith or dilatory motives, (2) the amendment would be futile, or
(3) the amendment would prejudice the other party.’” United States ex rel. Customs Fraud
Investigations, LLC v. Victaulic Co., 839 F.3d 242, 249 (3d Cir. 2016) (quoting U.S. ex rel.
Schumann v. Astrazeneca Pharm. L.P., 769 F.3d 837, 849 (3d Cir. 2014)).
IV.

Analysis
a. Correction to Valtris’ Name
Plaintiff’s proposed amended complaint changes Valtris’ name from “Valtris Specialty

Chemical Company” to “Polymer Additives, Inc. d/b/a Valtris Specialty Chemicals.” See ECF
No. 44-2, Exhibit 1 (the “PAC”). Valtris raises no objection to this ministerial correction, which
the Court will therefore permit. 1
b. Addition of Cecylia
Plaintiff seeks to add Cecylia as a party; specifically, for her to assert a per quod claim
for loss of consortium due to Plaintiff’s alleged injuries. See PAC, Fifth Count. This proposed
amendment must be denied as untimely and therefore futile under Rule 15.
The Court will also remove from the case caption defendant Solutia, Inc., as to which the matter has
been dismissed, see ECF No. 37, and change the spelling of Plaintiff’s name as reflected in the PAC.

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It is settled that New Jersey’s “two year personal injury statute of limitations applies to [a
spouse’s] per quod claim.” Goodman v. Mead Johnson & Co., 534 F.2d 566, 574 (3d Cir. 1976).
Under the well-known “discovery rule,” however, “a statute of limitations begins to run when a
plaintiff discovers or should have discovered the injury that forms the basis of his claim.” Miller
v. Fortis Benefits Ins. Co., 475 F.3d 516, 520 (3d Cir. 2007) (citing Romero v. Allstate Corp.,
404 F.3d 212, 222 (3d Cir. 2005)). “Before applying the discovery rule a court must . . . first
address ‘the ability of the injured party, exercising reasonable diligence, to know that she has
been injured by the act of another.’” Parkhill v. Gordon, 80 F. App’x 223, 225-26 (3d Cir. 2003)
(quoting Murphy v. Saavedra, 560 Pa. 423, 746 A.2d 92, 94 (Pa. 2000) (emphasis removed)).
“Under New Jersey law, the burden of proof with respect to the application of the discovery rule
rests with the party seeking to claim the benefit of that rule.” Yarchak v. Trek Bicycle Corp., 208
F. Supp. 2d 470, 487 (D.N.J. 2002) (citing Lopez v. Swyer, 62 N.J. 267 (1973)).
The crux of Plaintiff’s argument on this point is that Cecylia’s “loss of consortium is ever
evolving as she discovers new activities she can no longer do with her husband after the
accident.” ECF No. 44 at 4. This argument is not completely without potential merit: courts have
recognized, for statute of limitations purposes, “[a] complication [that] arises when the injury . . .
develops over time.” Vitalo v. Cabot Corp., 399 F.3d 536, 538 (3d Cir. 2005); see, e.g., Rivera v.
Hovensa, LLC, 2012 U.S. Dist. LEXIS 83977, at *17 (D.V.I. June 18, 2012) (“[W]ith regard to
the applicability of the discovery rule, . . . the date of Plaintiffs’ harm, and the resulting accrual
date of their injuries, is difficult to identify” since “[i]t appears that [plaintiffs] may have suffered
harm over time . . . .”). Thus, Plaintiff may have a viable argument if he can demonstrate that
Cecylia only recently began to suffer the injuries alleged in her proposed per quod claim.

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Ultimately, though, Plaintiff fails to meet his burden to justify application of the
discovery rule. The main problem is that Plaintiff fails to support his argument with competent
evidence, instead presenting statements by his attorney concerning Cecylia’s alleged damages.
This is not enough. As stated by the New Jersey Appellate Division in Baranyi v. Penn, 2010
N.J. Super. Unpub. LEXIS 3102 (Super. Ct. App. Div. Dec. 27, 2010),
our review of the allegations set forth in the present case leads us
to conclude that [plaintiff] has failed to set forth a factual
foundation for his claim that he did not and could not have known
of the existence of a cause of action at the time that the motor
vehicle accident occurred and thus is entitled to a discovery rule
hearing to determine the date of accrual of his cause of action.
Indeed, the record is devoid of any certification by [plaintiff] as to
the nature of his injuries and the date of their manifestation, any
medical records or reports, or any competent evidence in any form
that might serve as a basis for [plaintiff’s] discovery rule claim.
Id. at *4-5. The same is true here, where Plaintiff submits no evidence that his wife only recently
learned or should have learned of the injuries giving rise to a possible claim against Valtris.
Additionally, even counsel’s self-serving statement provides only that Cecylia’s claim is
“evolving” and involving “new activities she can no longer do with her husband after the
accident.” ECF No. 44 at 4 (emphasis added). This suggests that there previously existed some
activities that Cecylia was unable to perform due to the alleged accident. The fact that these
restrictions did not trigger Cecylia to investigate her rights against Valtris constitutes a lack of
reasonable diligence under the discovery rule. See Vitalo, 399 F.3d at 543 (reasonable diligence
“requires that putative plaintiffs ‘exhibit[] those qualities of attention, knowledge, intelligence
and judgment which society requires of its members for the protection of their own interests and
the interests of others’”) (quoting Cochran v. GAF Corp., 666 A.2d 245, 249 (Pa. 1995)). Thus,

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even if counsel’s statements were certified by Cecylia herself, they would not suffice to warrant
application of the discovery rule to salvage this claim. 2
Plaintiff’s discovery rule argument thus fails. As a result, the proposed per quod claim is
untimely and therefore rejected as futile.
c. Fictitious Entities
Plaintiff requests to make two changes to the fictitious defendants currently named as
John Does 1-10 and ABC Corporations 1-10. He first wants to delineate these parties as John
Does and ABC Corporations 1-5 representing property owners and John Does and ABC
Corporations 6-10 as property managers and/or operators. He also seeks to add John Does 11-15
and ABC Corporations 11-15 to include parties “charged with the installation, design, and/or
maintenance of the door, doorway and/or walkway/ramp at the entryway of the guardhouse on
the premises.” PAC at ¶ 5.
New Jersey’s fictitious party rule provides that “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 . . . .” N.J. Court
Rules, R. 4:26-4. “Fictitious-party practice renders the initial filing against the identified but
unnamed defendant timely in the first instance, subject only to diligent action by the plaintiff to
insert defendant’s real name.” Greczyn v. Colgate-Palmolive, 183 N.J. 5, 17 n.3 (2005).
Plaintiff’s first request is denied. Initially, it is unnecessary. The Complaint alleges that
on the date of the alleged injury, “Plaintiff was on property owned, operated, [and] managed . . .
The Court also rejects any argument that Plaintiff should be afforded additional time for this claim due
to the substitution of counsel in February 2021. Plaintiff provides no support for this contention, and in
any event, he was represented by his current counsel for more than eight months before bringing this
motion. See ECF No. 44-2, Exhibit 3.

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by defendants . . . John Does (1-10 fictitiously named persons) and ABC Corporations 1-10
(fictitiously named entities.).” Complaint at ¶ 2 (emphasis added). Thus, John Does 1-10 and
ABC Corporations 1-10 may refer to property owners, managers, and/or operators. It is unclear
what Plaintiff seeks to accomplish by specifying that certain of these (still-unidentified) parties
are owners and certain others are managers or operators.
Moreover, “at a minimum, ‘plaintiffs must investigate all potentially responsible parties
in a timely manner’ in order to satisfy the diligence requirement” under the fictitious party rule.
Scanlon v. Lawson, 2020 U.S. Dist. LEXIS 24007, at *19 (D.N.J. Feb. 6, 2020) (quoting
DeRienzo v. Harvard Indus., Inc., 357 F.3d 348, 354 (3d Cir. 2004)). Although, as noted,
Plaintiff’s motion seeks not to identify the proper parties, but merely to adjust the Complaint’s
reference to them, the fact that Plaintiff has made no effort to identify these parties in the year
between the filing of the Complaint and the present motion only reinforces the notion that
Plaintiff has not been acting diligently to identify the correct defendants. While the Court will
not rule on Plaintiff’s right to do so under R. 4:26-4 — that question is not raised on this motion
— it sees no reason to grant Plaintiff’s request to adjust the fictitious party names.
The Court will likewise deny Plaintiff’s request to add fictitious entities 11-15, as there is
no reason why Plaintiff waited until the filing of this motion to add these fictitious parties. As
above, this conclusion does not grow directly from the diligence requirement under the fictitious
party rule, which pertains to “insert[ing a] defendant’s real name”, Greczyn, supra, but instead
from Rule 15’s undue delay element. Being that these proposed parties themselves are fictitious,
there is no reason why Plaintiff could not have moved earlier to add them: Plaintiff would not
even have needed to investigate and ascertain their identities in order to name them as John Does
and ABC Corporations 11-15. Plaintiffs’ delay of one full year to even insert placeholders for

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these putative defendants constitutes an undue delay. See, e.g., Wagner v. Pat Salmon & Sons,
Inc., 2021 U.S. Dist. LEXIS 11934, at *8 (M.D. Pa. Jan. 22, 2021) (“Because Plaintiffs have
offered no cogent explanation for why they waited . . . nine months to seek leave to amend, the
Court also denies the motion . . . based on undue delay.”). 3
V.

Conclusion
An Order consistent with this Opinion follows.

Dated: May 9, 2022
/s/ Cathy L. Waldor
Cathy L. Waldor, U.S.M.J.

The Court also notes that Plaintiff seems intent on having this case remanded to state court. See ECF
No. 12, 26, 39. The Court has determined on at least one occasion that “the only possible purpose for
[Plaintiff’s] proposed amendment is to destroy diversity.” See ECF No. 38 at 3. This potential dilatory
motive reinforces the Court’s hesitance to permit Plaintiff to introduce new undefined parties at this stage
in the litigation.
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