                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-3-2004

Derienzo v. Harvard Ind Inc
Precedential or Non-Precedential: Precedential

Docket No. 02-4548




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

Recommended Citation
"Derienzo v. Harvard Ind Inc" (2004). 2004 Decisions. Paper 968.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/968


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                      PRECEDENTIAL     ALAN B. HANDLER, ESQUIRE
                                       (ARGUED)
      UNITED STATES                    ALAN M. DARNELL, ESQUIRE
     COURT OF APPEALS                  Wilentz, Goldman & Spitzer
   FOR THE THIRD CIRCUIT               90 Woodbridge Center Drive, Suite 900
                                       Woodbridge, New Jersey 07095
                                             Attorneys for Appellants
           No. 02-4548
                                       ALBERT J. D'AQUINO, ESQUIRE
                                       (ARGUED)
     DENNIS DERIENZO,                  Goldberg Segalla LLP
     CAPTAIN, U.S.M.C.;                120 Delaware Avenue, Suite 500
 KRISTEN DERIENZO, his wife,           Buffalo, New York 14202
                     Appellants
                                       STEPHEN G. TRAFLET, ESQUIRE
                 v.                    DEBRA M. ALBANESE, ESQUIRE
                                       Traflet & Fabian
 HARVARD INDUSTRIES, INC.;             Carriage Court Two
  JOHN DOES 1-25 (Unknown              264 South Street
    individuals and entities);         Morristown, New Jersey 07960
 LOCKLEY MANUFACTURING                        Attorneys for Appellee,
          COMPANY;                            Lasko Products, Inc. f/k/a
       ENTWISTLE CO.;                         Lasko Metal Products, Inc.
 LASKO PRODUCTS, INC. f/k/a
LASKO METAL PRODUCTS, INC.
                                              OPINION OF THE COURT

       On Appeal from the
United States District Court for the   SCIRICA, Chief Judge.
      District of New Jersey
D.C. Civil Action No. 00-cv-05516              In this products liability case, the
(Honorable U.S. Magistrate Judge       issue on appeal is whether plaintiff should
         John J. Hughes)               be allowed to amend his complaint under
                                       Fed. R. Civ. P. 15(c) to substitute
                                       defendant manufacturer for a fictitious
    Argued October 27, 2003            name under New Jersey Rule 4:26-4 after
 Before: SCIRICA, Chief Judge,         the statute of limitations had expired. The
   NYGAARD and AMBRO,                  court 1 held that plaintiff failed to satisfy
         Circuit Judges

                                         1
    (Filed: February 3, 2004 )           The parties consented to jurisdiction of
                                       a magistrate judge under 28 U.S.C. §
the due diligence requirement of N.J.R.        judge advocate for the United States
4:26-4 and granted defendants’ motion for      Marine Corps which stated:
summary judgment. We will reverse and
                                                     The manufacturer of the LAU-10
remand.
                                                     5.0 inch rocket launcher was the
                     I.                              Lockley Manufacturing Company,
                                                     Inc. of New Castle, PA. The LAU-
       On February 10, 1999, plaintiff
                                                     10 was made in the 1960's as a
Dennis DeRienzo, a Captain in the United
                                                     LAU-10A/A and was subsequently
States Marine Corps, was grievously
                                                     reworked into a LAU-10D/A in the
injured when the Cobra helicopter he co-
                                                     1970's by Harvard Interiors [sic] of
piloted crashed in a routine training flight
                                                     St. Lou is, MO .          Loc kle y
involving a rocket firing exercise. The
                                                     Manufacturing Company, Inc. has,
crash resulted when a rocket’s aft retainer
                                                     we believe, gone out of business. .
ring separated from the rocket launcher
                                                     ..
skin and struck the rear stabilizer of the
helicopter, causing loss of control.                 Two avenues of inquiry for you
DeRienzo sustained severe bodily injuries,           would be the Naval Air Systems
remaining in a body cast for nine months.            Command and Naval Surface
                                                     Warfare Center. . . .
        On June 11, 1999, four months
later, DeRienzo requested a copy of the        Taylor did not attempt to contact Lockley
JAG Manual report on the accident under        Manufacturing because, based on the
the Freedom of Information Act (FOIA).         letter, he believed the company had gone
On March 2, 2000, the Naval Air Systems        out of business. Instead, Taylor sent
Command responded by forwarding the            additional FOIA requests to the Naval Air
results of the accident investigation          Systems Command and to the Naval
performed December 17, 1999, plus 53           Surface Warfare Center, the two naval
attachments. The report and attachments        agencies mentioned in the staff judge
recited that the crash occurred because of     advocate’s letter.
a defective LAU-10 rocket launcher but
                                                       On June 22, 2000, in response to
provided no information about the rocket
                                               the third FOIA request, the Naval Surface
launcher’s manufacturer or how to identify
                                               Warfare Center sent a copy of the
the manufacturer.
                                               Engineering Investigation Report, dated
       On April 19, 2000, DeRienzo’s           June 25, 1999, which stated that “[a]n
military law attorney, Vaughan Taylor,         investigation into the subject launcher
made a second FOIA request, specifically       history revealed that the launcher Lot is
asking for the name of the rocket              LMP-7-0569.”
launcher’s manufacturer. On May 5, 2000,
                                                       On August 4, 2000, the Naval Air
DeRienzo received a reply from the staff
                                               Systems Command responded by letter
                                               directly to DeRienzo on his fourth FOIA
                                               request, stating, “Cognizant personnel
636(c) and Fed. R. Civ. P. 73.
have determined that the manufacturer of                 and gave the parties until October 5, 2001
the LAU-10 on the aircraft involved in the               to conclude fact discovery.
incident was Lockley Manufacturing
                                                                  On May 29, 2001, an engineering
C om pa ny, I n c. o f N e w C a s tle
                                                         consultant retained by DeRienzo inspected
Pennsylvania . . . . These cognizant
                                                         the recovered portion of the rocket
persons also indicated this command does
                                                         launcher. The identification plate on the
not have any information not in the JAG
                                                         l a u nc h e r i n c l u d ed t h e n o t a t i o n
investigation of the incident.” 2
                                                         “CONTRACT NO. N00104-75-C-B002”
         On November 8, 2000, DeRienzo                   and the notation “CONTRACTOR
filed a complaint in federal court against               LOCKLEY MFG CO., INC. NEW
Harvard Industries, the company believed                 CASTLE.” The tag also had the titles
to have refurbished the rocket launcher                  “INSPECTED,” “MANUFACTURER”
during the period between manufacture                    and “LOT NO.,” but the information
and his accident. 3 DeRienzo also named                  following the titles was illegible.
fictitious defendants John Does 1-25. The
                                                                 On May 31, 2001, counsel for
complaint alleged, “Defendant Harvard
                                                         DeRienzo and Harvard Industries deposed
Industries . . . designed, manufactured,
                                                         Haywood Hedgeman and Charles Paras,
a s s e m b l e d , i n s ta l l ed , m o d i f ie d ,
                                                         both Navy employees from the Naval
maintained, sold and/or distributed” the
                                                         Surface Warfare Center, Indian Head
rocket launcher involved in the accident.
                                                         Division. Hedgeman and Paras testified
DeRienzo did no t nam e Lo ckley
                                                         they believed Lockley Manufacturing was
Manufacturing as a defendant because he
                                                         t h e r o c k e t l au n c h e r ’ s o r i g in a l
believed it had gone out of business.
                                                         manufacturer.        Paras believed the
      The trial court held an initial                    identification tag was a manufacturer
scheduling conference on March 6, 2001                   identification tag, and the lot number
                                                         LMP-7-0569 on the tag was short-hand for
                                                         “Lockley Manufacturing, Pennsylvania.”
    2                                                    He also believed Lockley manufactured
    The three Navy personnel involved in
                                                         the rocket launcher in the mid-1960s.
drafting the August 20, 2000 FOIA
response letter later testified they had no                      Based on this testimony, DeRienzo
personal knowledge regarding which                       concluded Lockley Manufacturing was the
company man ufac tured th e rocket                       original manufacturer of the rocket
launcher, but merely reported information                launcher.       DeRienzo amended his
they had received from Navy employee                     complaint on June 28, 2001, four months
Charles Paras.                                           after the statute of limitations expired, to
    3
                                                         substitute Lockley Manufacturing and
     By this point, DeRienzo had retained                Entwistle Company, Lockley’s successor
attorney Alan Darnell as counsel. The                    as the result of a merger, for two of the 25
record does not specify the exact date                   fictitious defendants named in his original
Darnell began his representation of                      November 8, 2000 complaint. DeRienzo
DeRienzo.
retained the other 23 fictitious defendants                     On February 28, 2002, counsel for
in the complaint but ceased taking steps to           DeRienzo, Harvard Industries, and
locate other defendants.                              Lockley/Entwistle took second depositions
                                                      of Paras and Hedgeman.                  Paras
           After being added to the suit,
                                                      acknowledged he was no longer certain
Entwistle Company retained attorney
                                                      that “LMP” actually referred to Lockley
Henry Steck as counsel. Steck had
                                                      Manufacturing. Hedgeman testified he
previously worked as a procurement
                                                      believed Lockley Manufacturing was the
officer for the United States Air Force and
                                                      original manufacturer of the rocket
was familiar with labeling in procurement-
                                                      launcher solely because it was listed as the
related matters. Based on knowledge
                                                      “contractor” on the identification tag.
gained during his prior federal contracting
                                                      Paras also testified he believed that the
e x p e r i en c e , S t e c k b e l ie v e d t h e
                                                      r o c k e t l au n ch er w as o r i g i n a l l y
identification tag likely indicated that
                                                      manufactured in May 1969 because
Lockley Manufacturing was the contractor
                                                      “0569” designated the month and year the
for a 1975 fiscal year contract, not the
                                                      launcher was originally manufactured.5
original manufacturer. His view directly
contradicted the information provided by                      Based on Paras’s new testimony
Paras and Hedgeman, the persons                       that the rocket launcher was manufactured
identified by the Navy as “cognizant                  in May 1969, Steck revisited Lockley’s
personnel” regarding the rocket launcher.             logbook. The logbook revealed that
Steck reviewed a Lockley Manufacturing                Lockley Manufacturing had ceased
shop order logbook in Entwistle/Lockley’s             manufacturing LAU-10 rocket launchers
possession, which Entwistle Company had               in 1967. The logbook also recited that
not disclosed to DeRienzo in its Fed. R.              Lockley Manufacturing had purchased
Civ. P. 26 discovery requests.4 The                   13,500 stacking lugs from Lasko Metal
l o g b o o k r e v e al e d t h a t L o c k l e y    Products on December 2, 1968, but it did
Manufacturing modified LAU-10 rocket                  not state for what purposes Lockley
launchers in 1974-75 under Contract                   Manufacturing used the lugs.          Steck
N00104-75-C-B002. This confirmed that                 explained in his affidavit that, “[p]rior to
Lockley was the contractor that modified              Paras’ February 28, 2002 testimony, there
the rocket launcher, not the original                 was no reason to suspect that this shop
manufacturer.                                         order for LAU-10 components purchased
                                                      by Lockley from Lasko Metal Products
                                                      had any relationship whatsoever to the
   4
                                                      fabrication of the rocket launcher in
   Entwistle Company stated in its initial            question, which Navy personnel had
Rule 26(a)(1) disclosure:
      This defendant is unaware of any
                                                          5
      documents, data compilations or                      This testimony directly contradicted
      tangible things in its possession,              Paras’s previous testimony that the rocket
      custody or control to support its               launcher was manufactured in the mid-
      defenses in this matter.                        1960s.
previously said was manufactured by              judgment. DeRienzo filed a motion to
Lockley in the mid-1960s.”                       reconsider, which the court denied.
                                                 DeRienzo appealed.
       On March 14, 2002, Steck deposed
Lockley Manufacturing’s former president                                II.
and chief engineer Norman Smilek.
                                                       We have jurisdiction under 28
Smilek had retired from Lockley
                                                 U.S.C. § 1291. We exercise plenary
Manufacturing in 1992 and was living in
                                                 review over the court’s entry of summary
Florida.6     Steck asked Smilek for
                                                 judgment. Curley v. Klem, 298 F.3d 271,
information regarding lot number LMP-7-
                                                 276-77 (3d Cir. 2002).
0569. Smilek replied that Lasko Metal
Products, not Lockley Manufacturing, used                               III.
the “LMP” designation on its identification
                                                                        A.
tags. Steck immediately informed counsel
for DeRienzo and Harvard Industries of                  Under certain conditions, Federal
Smilek’s testimony, identifying Lasko            Rule of Civil Procedure 15(c) provides for
Metal Products as the manufacturer of the        relation back, i.e., permitting an amended
rocket launcher.                                 pleading to relate back to the date of the
                                                 original complaint. 7 Under Rule 15(c)(1),
        DeRienzo requested and was
granted leave to file a second amended
complaint in early April 2002 to substitute         7
                                                        Fed. R. Civ. P. 15 provides in part:
Lasko Metal Products for fictitious                       (c) Relation Back of Amendments.
defendant “John Doe 4.” Lasko Metal                       An amendment of a pleading
Products received its first notice of the suit            relates back to the date of the
when served with a Summons and the                        original pleading when
Second Amended Complaint on April 18,                     (1) relation back is permitted by the
2002, fourteen months after the statute of                law that provides the statute of
limitations had expired. Lasko Metal                      limitations applicable to the action,
Products moved for summary judgment,                      or
arguing DeRienzo had not exercised due                    (2) the claim or defense asserted in
diligence in identifying it as a potential                the amended pleading arose out of
defendant before the expiration of the                    the cond uct, transaction, or
statute of limitations, as required by the                occurrence set forth or attempted to
New Jersey Fictitious Pleading Rule,                      be set forth in the original pleading,
N.J.R. 4:26-4. The court granted Lasko                    or
Metal Products’ motion for summary                        (3) the amendment changes the
                                                          party or the naming of the party
                                                          against whom a claim is asserted if
  6
   The record does not specify how Steck                  the foregoing provision (2) is
located Smilek, or whether DeRienzo                       satisfied and, within the period
could have similarly located Smilek.                      provided by Rule 4(m) for service
                                                          of the summons and complaint, the
“[a]n amendment of a pleading relates          Jersey are governed by a two-year statute
back to the date of the original pleading      of limitations, N.J.S.A. 2A:14-2,9 but the
when (1) relation back is permitted by the     statute may be tolled if the plaintiff
law that provides the statute of limitations   invokes the New Jersey fictitious party
applicable to the action.” Fed. R. Civ. P.     rule before expiration of the limitations
15(c)(1). The court may apply the state        period. This rule provides:
law that establishes the limitations period
                                                      In any action, . . . if the defendant’s
to determine whether relation back is
                                                      true name is unknown to the
permissible.8
                                                      plaintiff, process may issue against
       Personal injury tort actions in New            the defendant under a fictitious
                                                      name, stating it to be fictitious and
                                                      adding an appropriate description
      party to be brought in by                       sufficient for identification.
      amendment (A) has received such
                                               N.J.R. 4:26-4.
      notice of the institution of the
      action that the party will not be                The fictitious party rule may be
      prejudiced in maintaining a defense      used only if the plaintiff exercised due
      on the merits, and (B) knew or           diligence to ascertain the defendant’s true
      should have known that, but for a        name before and after filing the complaint.
      mistake concerning the identity of       Farrell v. Votator Div. of Chemetron
      the proper party, the action would       Corp., 299 A.2d 394, 396 (N.J. 1973);
      have been brought against the            Claypotch v. Heller, Inc., 823 A.2d 844,
      party.                                   848-49 (N.J. Super. Ct. App. Div. 2003).
Fed. R. Civ. P. 15 (2003).                     But N.J.R. 4:26-4 is not available if a
  8
                                               plaintiff should have known, by exercise
   The Advisory Committee’s Note to the        of due diligence, defendant’s identity prior
1991 Amendment to Rule 15 explains:            to the expiration of the statute of
       [Rule 15(c)(1)] is new. It is           limitations. Mears v. Sandoz Pharms.,
       intended to make it clear that the      Inc., 693 A.2d 558, 561-63 (N.J. Super. Ct.
       rule does not apply to preclude any     App. Div. 1997). The fictitious name
       relation back that may be permitted     designation also must have appended to it
       under the applicable limitations        “an appropriate description sufficient to
       law. Generally, the applicable          identify” the defendant. Rutkowski v.
       limitations law will be state law . .
       . . Whatever may be the controlling
                                                  9
       body of limitations law, if that law        The statute provides: “Every action at
       affords a more forgiving principle      law for an injury to the person caused by
       of relation back than the one           the wrongful act, neglect or default of any
       provided in this rule, it should be     person within this state shall be
       available to save the claim.            commenced within two years next after the
Fed. R. Civ. P. 15 advisory committee’s        cause of any such action shall have
note to 1991 amendment.                        accrued.” N.J.S.A. 2A:14-2.
Liberty Mut. Ins. Co., 506 A.2d 1302,             maintains DeRienzo has not met his
1306-07 (N.J. Super. Ct. App. Div. 1986).         burden.
Furthermore, application of N.J.R. 4:26-4
                                                          New Jersey Supreme Court and
must not prejudice the defendant. Farrell,
                                                  appellate court case law provides helpful
299 A.2d at 400; Mears, 693 A.2d at 563-
                                                  guidance in understanding the parameters
64.
                                                  for the exercise of diligence. In Farrell v.
                      B.                          Votator Division of Chemetron Corp., the
                                                  New Jersey Supreme Court allowed a
         DeRienzo invoked the fictitious
                                                  N.J.R. 4:26-4 substitution of a newly-
party rule in his initial complaint within
                                                  named defendant ten months after the
the statute of limitations period. At issue
                                                  statute of limitations had expired. 299
is whether DeRienzo employed due
                                                  A.2d. at 400. Plaintiff was injured while
diligence in attempting to identify Lasko
                                                  cleaning an industrial machine but did not
M e t a l P r oducts as the ori g i n al
                                                  obtain counsel until 23 months after injury.
manufacturer of the rocket launcher before
                                                  Id. at 395. Before the statute of limitations
the statute expired.
                                                  expired, plaintiff filed a complaint naming
           The New Jersey Supreme Court has       fictitious parties. Ten months later, in a
not provided a standard definition of             deposition, plaintiff was able to identify
diligence, since “the meaning of due              the machine’s manufacturer and sought
diligence will vary with the facts of each        leave to amend his complaint. Id. Even
case.” O’Keefe v. Snyder, 416 A.2d 862,           though the statute of limitations had
873 (N.J. 1980). See also Seaman v.               expired, the court allowed the substitution,
Monmouth County, 191 A. 103, 104 (N.J.            finding that “plaintiffs in good faith
1935) (“[W]hat is due diligence must be           brought their action expeditiously against
determined on the facts of each particular        the manufacturer under a fictitious name,
case.”). 10 In the context of N.J.R. 4:26-4,      identified it by amendment as soon as they
plaintiffs must “investigate all potentially      discovered its true name, and served the
responsible parties in a timely manner” to        amended complaint diligently thereafter.”
cross the threshold for due diligence.            Id. at 400. The court also held that
Matynska v. Fried, 811 A.2d 456, 457              defendant was not prejudiced by the delay,
(N.J. 2002).         DeRienzo contends he         and that interests of justice favored
persevered in his efforts to locate all           plaintiff receiving his day in court. Id.
potentially responsible parties but was
                                                          By contrast, plaintiff in Mears v.
thwarted in his investigation by
                                                  Sandoz Pharma ceuticals failed to
m i s i n f or mation fr o m g o v e r n m e nt
                                                  determine the identity of the general
witnesses.         Lasko Metal Products
                                                  contractor on the day of his workplace
                                                  injury until two and a half years after the
   10
     The dictionary definition of diligence       incident. 693 A.2d at 562-63. A New
is the “devoted and painstaking application       Jersey appellate court held that plaintiff’s
to accomplish an undertaking.” Webster’s          failure to exercise due diligence precluded
Third New Int’l Dictionary 633 (1993).            application of the fictitious party rule. Id.
at 562. Plaintiff failed to make a “simple                          C.
inquiry at the job site,” nor did he obtain
                                                        Identifying Lasko Metal Products as
and review the contractor meeting minutes
                                                a potential defendant proved to be
or the relevant daily force report, on which
                                                considerably more difficult than the
the contractor’s letterhead was printed. Id.
                                                situations encountered by plaintiffs in
at 563. Had plaintiff taken any of these
                                                Matynska and Mears. As noted, the name
steps, he would have easily discovered the
                                                “Lasko” was not identified on the rocket
identity of the general contractor. Id.
                                                launcher.       And significantly, Navy
        Likewise, in Matynska v. Fried, the     employees Paras and Hedgeman both
New Jersey Supreme Court held that              testified they believed the designation
plaintiff had not met the N.J.R. 4:26-4         “LMP” stood for “Lockley Manufacturing,
diligence thresh old in a medical               Pennsylvania,” leading DeRienzo to
malpractice case. 811 A.2d at 457-58.           believe mistakenly the witnesses had
Plaintiff brought a malpractice suit against    correc tly identif ied the defendant
doctors who performed her hip                   manufacturer.
replacement surgery, including fictitious
                                                       It is apparent that DeRienzo
parties for unidentified medical personnel.
                                                consistently took active steps to identify
Id. Although one surgeon (Dr. Feierstein)
                                                the original manufacturer of the rocket
had substituted for her regular orthopedic
                                                launcher. DeRienzo submitted four FOIA
surgeon (Dr. Fried), plaintiff failed to
                                                requests between June 1999 and July 2000.
discover Dr. Feierstein’s identity until four
                                                After learning of Harvard Industries’
years after surgery. Id. Plaintiff was not
                                                involvement in refurbishing the rocket
permitted to amend her complaint under
                                                launcher in May 2000, he filed his initial
N.J.R. 4:26-4, because she had not
                                                complaint six months later. In May 2001,
investigated “all potentially responsible
                                                DeRienzo retained an expert to inspect the
parties in a timely manner.” Id. at 458. By
                                                rocket launcher and deposed two Navy
merely looking in a telephone book or
                                                employees, who both confirmed that
contacting Dr. Fried or the hospital, the
                                                Lockley manufactured the rocket launcher.
court reasoned, plaintiff could have easily
                                                He substituted Lockley/Entwistle as
discovered Dr. Feierstein’s role in her
                                                defendants one month later, in June 2001.
surgery. Id. at 457. Dr. Feierstein’s name
also appeared twice on her hospital charts.            The court stated here, “[H]ad
Id.; see also Johnston v. Muhlenberg Reg’l      Plaintiffs sought the logbook, they would
Med. Ctr., 740 A.2d 1122 (N.J. Super. Ct.       have discovered Defendant Lasko’s
App. Div. 1999) (denying N.J.R. 4:26-4          existence and identity in a timely fashion.”
substitution for medical malpractice claim      App. 23a. But DeRienzo did not know
for similar reasons).                           there was a logbook, and Entwistle
                                                Company did not acknowledge its
                                                existence in its initial Fed. R. Civ. P.
                                                26(a)(1) disclosures. Even if DeRienzo
                                                had obtained the logbook during the initial
discovery period, more information was         asked Lockley Manufacturing for a list of
required to link “LMP” to Lasko Metal          former CEOs or chief engineers and
Products. The logbook merely mentioned         deposed them to discover the meaning of
Lasko Metal Products as a supplier of          the LMP designation. Yet it bears noting
stacking lugs. It did not specify that         that the key that unlocked the identity of
Lockley Manufacturing had used those           the manufacturer here was not a fact or
stacking lugs in the production or             expert witness, but Entwistle Company’s
modification of the LAU-10 rocket              attorney, Henry Steck, whose familiarity
launcher. Furthermore, Paras initially         with procurement led him to undertake
testified that the rocket launcher was         additional discovery and draw inferences
manufactured in the mid-1960s. But the         not apparent to the other witnesses and
logbook recited tha t Lockle y                 attorneys.
Manufacturing purchased stacking lugs
                                                      Nevertheless, DeRienzo submitted
from Lasko Metal Products in December
                                               four FOIA requests, hired an expert to
1968, after the supposed production date
                                               examine the rocket launcher, deposed
of the rocket launcher. There was no
                                               “cognizant Navy personnel” twice, and
apparent reason to link the stacking lugs to
                                               promptly substituted named defendants
their use as components in the LAU-10
                                               after confirming their identities.     In
rocket launcher until Paras testified on
                                               addition, DeRienzo’s efforts were stymied
February 28, 2002 that the rocket launcher
                                               by misleading information from certain
was originally manufactured in May 1969,
                                               authoritative witnesses and a lack of
not the mid-1960s.        The connection
                                               complete disclosure by one of the
between Lasko Metal Products and
                                               defendants. While he might have done
Lockley Manufacturing as documented in
                                               more, we hold DeRienzo satisfied the due
the logbook, therefore, appears tenuous.
                                               diligence requirements under New Jersey
       This is not to say that DeRienzo        Rule 4:26-4.
could not have taken further steps to
                                                                   D.
discover Lasko Metal Product’s identity
before the statute of limitations expired.            O ne    additio nal f a c tor  in
DeRienzo’s military attorney might have        determining the applicability of N.J.R.
contacted the state corporate registry to      4:26-4 is whether the delay in amending
determine Lockley Manufacturing’s              the complaint prejudiced the newly-named
successor after receiving the second FOIA      defendant. Farrell, 299 A.2d at 400;
response.11 Or DeRienzo might have             Garay, 598 A.2d at 24. Because it found
                                               no due diligence, the court here did not
   11
      One New Jersey appellate court has
suggested that a previous attorney’s lack of   DeRienzo’s current attorney, Alan Darnell,
diligence should not be attributed to the      began his representation in substitution for
current attorney’s efforts. See Garay v.       his military attorney some time during the
Star Ledger, 598 A.2d 22, 24 (N.J. Super.      year 2000. In our analysis, we see no need
Ct. Law Div. 1991).             As noted,      to address the issue.
analyze whether Lasko M etal Products          not all, New Jersey appellate courts have
demonstrated substantial prejudice.12          found some prejudice as a result of delay
                                               alone.14
        New Jersey courts have noted
certain factors where substitution of a                No representation has been made in
newly-named defendant would cause              this case that the remains of the helicopter
substantial prejudice.      These include      and rocket launcher are no longer available
destruction or alteration of evidence after
the initial discovery period, frustration of
attempts at subsequent examination, or         Two other New Jersey Supreme Court
witness unavailability or memory lapse         cases have addressed R. 4:26-4, but did not
due to delay. Farrell, 299 A.2d at 400;        analyze the issue of prejudice.         See
Mears, 693 A.2d at 563-64; Garay, 598          Matynska, 811 A.2d at 457-58 (holding
A.2d at 24. The New Jersey Supreme             that plaintiff lacked diligence, and
Court has not indicated whether the            obfuscatory tactics by defendants should
passage of time alone can prejudice a          not be considered); Viviano v. CBS, Inc.,
newly-named defendant, and if so, the          503 A.2d 296, 306 (N.J. 1986) (noting that
likely outer limits of delay.13 Some, but      defendant stipulated it had not been
                                               prejudiced by the time delay).
                                                    14
          12
         The only mention of possible                  New Jersey appellate courts have
prejudice appeared as an addendum to the       taken different approaches to the issue of
due diligence analysis:                        prejudice resulting from time delay. See
       Furthermore, where the Plaintiffs’      Johnston, 740 A.2d at 1125 (where
       diligence in timely pursuing a claim    plaintiff moved to amend the complaint to
       must be balanced with any               add a named defendant eight months after
       prejudice to the Defendant in           the statute of limitations had expired, the
       defending stale claims, justice does    court held that defendant “was prejudiced
       not tip the balance toward the          by the passage of time, even if only in the
       Plaintiffs having their day “in court   context of her right to repose”); Mears,
       on the merits of [their] claim”         693 A.2d at 562-63 (“[T]here cannot be
       (citations omitted).                    any doubt that a defendant suffers some
App. 2a.                                       prejudice merely by the fact that it is
                                               exposed to the potential liability for a
     13
       The Farrell court did not address       lawsuit after the statute of limitations has
whether a lapse of time by itself could        run.”). But see Claypotch, 823 A.2d at
prejudice a defendant. 299 A.2d at 400. It     850 (holding that, while a defendant may
held instead that, given the facts of the      suffer some prejudice through exposure to
case, “[t]here is no suggestion that the       liability, plaintiffs should still have “their
lapse of time has resulted in loss of          day in court” unless the lapse of time has
evidence or impairment of ability to           resulted in a loss of evidence, advantage to
defend, nor is there any suggestion that the   plaintiffs or impairment of the ability to
plaintiffs have been advantaged by it.” Id.    defend).
for inspection, or that relevant witnesses       A True Copy:
are no longer available to testify. Lasko
                                                 Teste: Clerk of the United States Court of
Metal Products contends its inability to
                                                 Appeals for the Third Circuit
participate in discovery “severely
prejudiced . . . its ability to defend against
the merits of the claim” yet provides no
reason why this is necessarily so. Initial
discovery served mainly to identify the
manufacturer of the rocket launcher, so
Lasko’s interests do not appear to have
been harmed.          Should Lasko Metal
Products request additional discovery, we
are confident the court, in the exercise of
its sound discretion, would permit it.
While there has been delay in this case, we
see no prejudice and no apparent reason
why this factor should be dispositive to
defeat plaintiff’s N.J.R. 4:26-4 motion.
See James v. Chevron U.S.A., Inc., 694
A.2d 270, 288 (N.J. Super. Ct. App. Div.
1997) (holding that a plaintiff’s R. 4:26-4
motion should be accepted unless the
relation-back procedure would result in
“perc eivab le undue prejudice” to
defendants); Garay, 598 A.2d at 24
(holding that the passage of time did not
“substantial[ly] prejudice” the defendant).
                     IV.
       For the foregoing reasons, we will
reverse the grant of summary judgment
and remand for further proceedings
consistent with this opinion.
