What Happens If You Don’t Know Who To Sue? Fictitious Party Pleading and Due Diligence in New Jersey

Sometimes it is not so easy to determine the correct person or entity to sue.  We see this often in a number of cases – including those with multiple causes of damages, multiple companies who had a hand in manufacturing a defective product, multiple entities or contractors working on a project, a hit and run motor vehicle accident, or any other instance when the identity of a tortfeasor is just not known for various reasons.  Not knowing who to sue can obviously be a serious problem, especially when there are strict timeframes when a lawsuit must be filed by.  The statute of limitations, in fact, usually starts from the day of the event that caused the injury or damages, and if a lawsuit against the person or entity responsible is not brought within the time that window closes - a person’s ability to recover may be completely lost forever.  Under certain circumstances, however, individuals can rely on fictitious party pleading to prevent the loss of their lawsuit.


The fictitious-party practice under Rule 4:26-4 was developed to protect individuals in these exact situations, i.e. one cannot figure out who to sue within the statute of limitations.  The rule renders timely the complaint filed by a plaintiff who is aware of a cause of action, but not the defendant’s name.  See Greczyn v. Colgate-Palmolive, 183 N.J. 5, 17-18 (N.J. 2005).  The rule is not, however, without limits.  In fact, the “first prerequisite to a fictitious name designation in a pleading is that the true identity of the defendant be ‘unknown’ to the plaintiff.” Marion v. Borough of Manasquan, 231 N.J. Super. 320, 334 (App. Div. 1989).  If the identity of a defendant is unknown, plaintiff must then make diligent efforts to ascertain the identity of the defendant.  See Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 115 (1973).


The rule will not protect a plaintiff who had ample time to discover the unknown defendant's identity before the running of the statute of limitations. See Matynska v. Fried, 175 N.J. 51, 53 (2002) (affirming denial of right to amend complaint when plaintiff failed to investigate all potentially responsible parties in a timely manner, thus failing “to cross the due diligence threshold”).  As the New Jersey Supreme Court stated in the seminal case of Farrell v. Votator Div. of Chemetron Corp. : when a plaintiff “knows or has a reason to know,” that a suit exists against an identifiable defendant and “voluntarily sleeps on his rights so long as to permit the customary period of limitations to expire, the pertinent considerations of individual justice as well as the broader considerations of repose, coincide to bar his actions.” Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 115 (1973).


Indeed, the New Jersey Appellate Division, in the unpublished decision Delligatti v. Summit Oaks Hosp., recently upheld the dismissal of a previously unnamed entity, finding the plaintiff could not rely on the fictitious defendant rule, when there was no diligence to identify the true identity of the so-called fictitious defendant. 

          One can see from the facts in Delligatti how common this situation can arise, and the pitfalls of same.  In Delligatti, the plaintiff was injured after a shower chair collapsed during a hospital visit.  Just before the statute of limitations had run, plaintiff filed an action against a number of named defendants, including the hospital, and multiple manufacturers for defective design and distribution of the shower chair.  The plaintiff also named fictitious defendants identified as John Does and ABC Corporations.   During written discovery, one of the named manufacturers advised plaintiff that the true manufacturer of the shower chair was actually an entity who had not been previously named.  Over seven months later, plaintiff filed an amended complaint to substitute the manufacturer for one of the previously named fictitious defendants under Rule 4:26-4.  After being added to the lawsuit, however, the newly named defendant manufacturer was then successful in moving to be dismissed from the case under the statute of limitations.  Plaintiff appealed the decision, arguing that the fictitious party rule provided protection from dismissal of previously unidentified defendant. 

          In upholding the dismissal, the Appellate Division noted that the party who seeks to invoke the fictitious party practice bears the burden of establishing compliance with the rule.  Lopez v. Swyer,  62 N.J. 267, 276 (1973).  The crux of the dismissal in Delligatti, as well as the theme that runs through all the cases on the issue, is the threshold requirement of due diligence.  The Appellate Division in Delligatti pointed out that prior to the filing of the original complaint, Plaintiff did not take many steps to identify the true manufacturer of the defective chair, other than simply searching the internet.  Furthermore, once the identity of the true defendant was known, Plaintiff waited seven months to file an amended complaint and substitute the fictitious defendant.  Under those facts, the court agreed there was not enough due diligence to invoke the rule. 

As such, it is clear that in order to invoke the fictitious party rule, a Plaintiff must exercise due diligence at multiple steps.  First, one must show diligence in trying to identify the responsible defendants before even filing the original complaint.  It is simply not enough to just name a “John Doe,” or “ABC Corp.” and plan to figure out their identify later.  Second, if a diligent endeavor to ascertain the identify of a responsible party remains unknown pre-suit, then a plaintiff must take prompt steps to substitute the defendant's true name after they learn it later.  Only then can a plaintiff show the type of diligence required to invoke the fictitious party rule.  See Baez v. Paulo,  453 N.J. Super. 422, 439 (App. Div. 2018).  While “prompt” steps is not defined under the law, it is clear from the decision in Delligatti that waiting seven months is probably too long. 

          Identifying the correct person or entity to sue is not always simple, clear, or even knowable at the time of filing a complaint.  The failure to do so, however, can easily result in the loss of a case forever.  Therefore, lawyers must act diligently in ascertaining the identity of the correct person or entity prior to filing suit on behalf of their client.  This process may require actions such as conducting site inspections, a review of dense medical records, corporate filings, private investigations, and conducting pre-suit interviews where appropriate.  If after substantial steps have been taken, and diligence in trying to ascertain a defendant’s identity can be demonstrated, plaintiffs may use the safe harbor from the statute of limitations in the form of the fictious party rule. 

          PRACTICE TIPS:

  1. As soon as a new case comes in, identify all potential claims and parties.  For any unknown defendants, identify the steps to take in order to ascertain the identity and document same.
  2. Do not wait until the last minute to file suit.  As answer to interrogatories come in, new parties may be identified.  It is always safer to amend your complaint within the statute of limitations.
  3. Draft discovery to defendants to identify potentially liable parties immediately upon filing suit.
  4. Read discovery responses carefully to identify potentially liable parties and promptly file a motion to amend.