                                                   NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                 ________________

                        No. 13-1061
                     ________________


                   ANTHONY MCGILL,

                                   Appellant

                              v.

            JOHN DOES A-Z; JANE DOES A-Z;
       SSA WILLIAM EVANINA; SA RAY LOVETT;
       SA STEPHEN EGBERT; SA JAMES TARECO;
        SA KEVIN CONKLIN; SA DAVE MAGNESS;
 SA ANGEL ALICEA; SA STEPHEN SIEGEL; SA H. GULICK;
     SA MICHAEL ADAMS; SA CHRIS SETTEMBRINO;
SA ANDREW KLOPFER; SA JASON BEVAN; SA DENNIS ENG

                     ________________

         Appeal from the United States District Court
                 for the District of New Jersey
           (D.C. Civil Action No. 2-11-cv-03254)
         District Judge: Honorable Faith S. Hochberg
                      ________________

         Submitted Under Third Circuit LAR 34.1(a)
                    September 23, 2013

  Before: AMBRO, FISHER, and HARDIMAN, Circuit Judges

              (Opinion filed October 10, 2013)

                     ________________

                         OPINION
                     ________________
AMBRO, Circuit Judge

       Plaintiff Anthony McGill has sued 14 named Federal Bureau of Investigation

(FBI) special agents. He claims that a raid on his home by the agents in May 2007, when

he was 16 years old, resulted in physical injury and property damage. He filed his initial

complaint three days before the statute of limitations, which was extended for two years

due to his age, elapsed. McGill did not name individual defendants in his pleadings until

nearly a year after the extended statute of limitations expired. The District Court

dismissed the amended complaint naming individual defendants as barred by the statute

of limitations.

       The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction

over this appeal under 28 U.S.C. § 1291. We review an order granting a motion to

dismiss de novo. Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012) (citing

Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009)).

       When federal statutory law does not specify a statute of limitations for an action,

we look to state law to determine both the limitation period and its application, as well as

the effect of any alleged period of tolling. Wilson v. Garcia, 471 U.S. 261, 266-67, 269

(1985). For actions under 42 U.S.C. § 1983 and claims under Bivens v. Six Unknown

Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the statute of

limitations is taken from the forum state’s personal injury statute. See Kost v.

Kozakiewicz, 1 F.3d 176, 190 (3d Cir. 1993) (holding that “§ 1983 actions should be

classified as claims for personal injury for the purpose of determining the limitations


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period under the applicable state law” (citing Garcia, 471 U.S. at 272-76, 280)); see also

King v. One Unknown Fed. Corr. Officer, 201 F.3d 910, 913 (7th Cir. 2000) (noting that

the same statute of limitations applies to Bivens and § 1983 claims).

       In New Jersey, the statute of limitations for personal injury claims is two years.

N.J.S.A. 2A:14-2. In a § 1983 action, the statute of limitations begins to run “when the

plaintiff knew or should have known of the injury upon which its action is based.”

Sameric Corp. v. City of Phila., 142 F.3d 582, 599 (3d Cir. 1998) (citing de Botton v.

Marple Twp., 689 F. Supp. 477, 480 (E.D. Pa. 1988)). Where the person injured was a

minor at the time of the injury, the statute of limitations is tolled and does not begin to

run until the plaintiff turns 18 years old. See N.J.S.A. 2A:14-21 (tolling personal injury

actions until age 21); N.J.S.A. 9:17B-1 (modifying 2A:14-21 to allow 18-year-olds to sue

and be sued).1

       Because McGill was a minor at the time of the alleged injury, the statute of

limitations was tolled until his 18th birthday on April 30, 2009. Under the tolled statute

of limitations he had until April 30, 2011 to file his complaint. McGill filed his initial

complaint (naming, among others, the FBI and individual “John Does” as defendants) on

April 27, 2011. He filed a Second Amended Complaint, replacing the John Doe

defendants with named agents on March 26, 2012, almost a year after the extended

statute of limitations elapsed. The Second Amended Complaint is therefore only timely

1
  After the incident here, New Jersey amended N.J.S.A. 2A:14-21 to toll actions only
until age 18, rather than 21. See 2013 N.J. Sess. Law Serv. 103 (West). Because, prior to
this amendment, N.J.S.A. 9:17B-1 already modified N.J.S.A. 2A:14-21 to limit in
practice the tolling to age 18 rather than 21, the amendment would have no practical
effect in this case.
                                              3
as to those defendants if it relates back to the initial filing date under either the relation

back rule or the fictitious party rule. See N.J.R. 4:9-3 (allowing for relation back of

amendments); N.J.R. 4:26-4 (allowing naming fictitious defendants and later substituting

true names); see also Viviano v. CBS, Inc., 503 A.2d 296, 301 (N.J. 1986) (holding that,

under N.J.R. 4:26-4, “an amended complaint identifying the defendant by its true name

relates back to the time of filing of the original complaint”).

       The relation back rule under New Jersey’s Rule 4:9-3 is not in play here.2 The

Rule “permits the addition of a new claim or a new party when the initial complaint did

not contemplate the need for such an amendment,” Viviano, 503 A.2d at 304, such as

where there was a mistake as to the identity of the proper party, N.J.R. 4:9-3. Here,

McGill filed suit against the John Does, presupposing a need for later amendment, rather

than mistakenly identifying incorrect defendants. Thus, as the District Court concluded,

the fictitious party rule is the appropriate rule under which to consider the amendments in

this case.

       The fictitious party rule applies only where a plaintiff has proceeded with due

diligence to ascertain the name of the defendant(s). See DeRienzo v. Harvard Indus.,

Inc., 357 F.3d 348, 353 (3d Cir. 2004); Greczyn v. Colgate-Palmolive, 869 A.2d 866, 870

(N.J. 2005). There is no “standard definition of diligence, since ‘the meaning of due


2
 Because New Jersey law, rather than federal law, sets the relevant statute of limitations,
we analyze this claim under the New Jersey rather than federal relation back rule. See
Fed. R. Civ. P. 15(c)(1)(A) (“An amendment to a pleading relates back to the date of the
original pleading when: (A) the law that provides the applicable statute of limitations
allows relation back . . . .”).

                                                4
diligence will vary with the facts of each case.’” DeRienzo, 357 F.3d at 354 (quoting

O’Keeffe v. Snyder, 416 A.2d 862, 873 (N.J. 1980)). At a minimum, plaintiffs must

“investigate all potentially responsible parties in a timely manner” in order to satisfy the

diligence requirement. Matynska v. Fried, 811 A.2d 456, 457 (N.J. 2002).

       McGill failed to exercise the required diligence here, as the District Court

correctly concluded. After filing the sparse Tort Claims Notice on January 14, 2009,

almost two years after the alleged incident took place, McGill failed to submit an SF-95

federal claim notice form despite being provided one by the FBI. In the two years

between the filing of the initial notice and the filing of the initial complaint, McGill took

no steps known to us to determine the identity of the FBI agents and had virtually no

communication with the FBI. Although, as the District Court noted, he did make efforts

to identify the agents after filing his complaint, these efforts cannot make up for his lack

of diligence in the four years prior to filing. Therefore, because he has failed to

demonstrate the required diligence, McGill’s claims will not relate back under the

fictitious party rule.

       Because the claims do not relate back for the individual defendants and the Second

Amended Complaint naming the individual defendants was not filed until after the statute

of limitations had elapsed, McGill’s claims are barred by the statute of limitations. We

therefore affirm the District Court’s dismissal of this case.




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