The inclusion of fictitious defendants in complaints is prevalent in most litigation practice, felt by most to provide a belt and suspenders approach to inclusion of all possible defendants after the expiration of the applicable statute of limitations. However, failure to properly describe the fictitious parties and causes of action in the pleading will render the allegations against the fictitious parties useless. A recent decision rendered in the matter of Estate of Harrison v. Trump Plaza Hotel & Casino, Civil No: 12-6683 (Judge Robert Kugler) addressed the adequacy of pleadings pertaining to the fictitious defendant rule in New Jersey.
Harrison v. Trump Plaza: factual summary
The Harrison matter arose from a wrongful death claim that sounded in premises liability and dram shop allegations. The decedent had been drinking in a bar in Atlantic City. He walked through an exit of a restaurant, became trapped in an employee area and fell down a "man-lift" shaft, sustaining fatal injuries. After the two year statute of limitations expired, plaintiff sought to substitute the both the architect/designer and construction manager/contractor for the John Doe defendants included in the complaint.
Why assert allegations against a fictitious defendant?
Pursuant to R. 4:26-4, fictitious defendants may be included if "the defendant's true name is unknown to the plaintiff. . . stating it to be fictitious and adding an appropriate description sufficient for identification." The purpose of R. 4:26-4 "is to allow a plaintiff faced with a time limitation to institute an action and thereafter, upon learning the true name of the 'John Doe' defendant, amend the complaint to specifically name the defendant." Harrison v. Trump Plaza Hotel & Casino, citing, Cruz v. City of Camden, 898 F.Supp. 1100, 1107 (D.N.J. 1995). However, as in Harrison, the amendment to substitute a newly determined party for a formerly fictitious party will not relate back to the original pleading under R. 4:9-3 unless the fictitious defendant description and allegations has the requisite level of specificity.
Be Specific: description AND alleged responsibility
In Viviano v. CBS, Inc., 101 N.J. 538, 548 (1986), the New Jersey Supreme Court provided specific guidance regarding the level of specificity required. The guidance issued by the New Jersey Supreme Court was clear that both specificity in the description and basis of the missing defendant's responsibility would be required to comply with R. 4:26-4 and permit relation back to the original complaint under R. 4:9-3 and avoid the claim being barred by any applicable statute of limitations.
Lack of Specificity: fatal to fictitious defendant designations
The failure to provide sufficient description of the missing defendants and its' responsibility was the death knell for plaintiff's attempted amendments in the Harrision matter. In Harrison, plaintiffs named fictitious defendants who "maintained, controlled, supervised, managed and were responsible for the properties" however sought to include both the architect/designer and construction manager/contractor. In addition, the description of the alleged responsibility of the fictitious defendants simply sounded in premises liability and did not include any allegation regarding design or construction defects. Due to the failure to provide the requisite specificity in both the fictitious party description and alleged responsibility, plaintiff was not permitted to avoid dismissal under the applicable statute of limitations of the claims against those involved in the design, construction and/or construction management of the alleged dangerous condition.
Lessons Learned
When drafting a complaint you must identify all potential causes of action the plaintiff may have against known and unknown entities. The complaint should be drafted with the same level of specificity as any other allegation in the complaint, absent the actual name of the defendant, to comply with R. 4:26-4 and avail yourself of the opportunity to avoid the dismissal of such claims under the statute of limitations.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
