DENNIS DERIENZO, CAPTAIN, U.S.M.C.; KRISTEN DERIENZO, his wife v. Harvard Industries, Inc.

PRECEDENTIAL
UNITED STATES
COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-4548
DENNIS DERIENZO,
CAPTAIN, U.S.M.C.;
KRISTEN DERIENZO, his wife,
Appellants
v.
HARVARD INDUSTRIES, INC.;
JOHN DOES 1-25 (Unknown
individuals and entities);
LOCKLEY MANUFACTURING
COMPANY;
ENTWISTLE CO.;
LASKO PRODUCTS, INC. f/k/a
LASKO METAL PRODUCTS, INC.
On Appeal from the
United States District Court for the
District of New Jersey
D.C. Civil Action No. 00-cv-05516
(Honorable U.S. Magistrate Judge
John J. Hughes)
Argued October 27, 2003
Before: SCIRICA, Chief Judge,
NYGAARD and AMBRO,
Circuit Judges
(Filed: February 3, 2004 )
ALAN B. HANDLER, ESQUIRE
(ARGUED)
ALAN M. DARNELL, ESQUIRE
Wilentz, Goldman & Spitzer
90 Woodbridge Center Drive, Suite 900
Woodbridge, New Jersey 07095
Attorneys for Appellants
ALBERT J. D'AQUINO, ESQUIRE
(ARGUED)
Goldberg Segalla LLP
120 Delaware Avenue, Suite 500
Buffalo, New York 14202
STEPHEN G. TRAFLET, ESQUIRE
DEBRA M. ALBANESE, ESQUIRE
Traflet & Fabian
Carriage Court Two
264 South Street
Morristown, New Jersey 07960
Attorneys for Appellee,
Lasko Products, Inc. f/k/a
Lasko Metal Products, Inc.
OPINION OF THE COURT
SCIRICA, Chief Judge.
In this products liability case, the
issue on appeal is whether plaintiff should
be allowed to amend his complaint under
Fed. R. Civ. P. 15(c) to substitute
defendant manufacturer for a fictitious
name under New Jersey Rule 4:26-4 after
the statute of limitations had expired. The
court1 held that plaintiff failed to satisfy
1The parties consented to jurisdiction of
a magistrate judge under 28 U.S.C. §

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the due diligence requirement of N.J.R.
4:26-4 and granted defendants’ motion for
summary judgment. We will reverse and
remand.
I.
On February 10, 1999, plaintiff
Dennis DeRienzo, a Captain in the United
States Marine Corps, was grievously
injured when the Cobra helicopter he co-
piloted crashed in a routine training flight
involving a rocket firing exercise. The
crash resulted when a rocket’s aft retainer
ring separated from the rocket launcher
skin and struck the rear stabilizer of the
helicopter, causing loss of control.
DeRienzo sustained severe bodily injuries,
remaining in a body cast for nine months.
On June 11, 1999, four months
later, DeRienzo requested a copy of the
JAG Manual report on the accident under
the Freedom of Information Act (FOIA).
On March 2, 2000, the Naval Air Systems
Command responded by forwarding the
results of the accident investigation
performed December 17, 1999, plus 53
attachments. The report and attachments
recited that the crash occurred because of
a defective LAU-10 rocket launcher but
provided no information about the rocket
launcher’s manufacturer or how to identify
the manufacturer.
On April 19, 2000, DeRienzo’s
military law attorney, Vaughan Taylor,
made a second FOIA request, specifically
asking for the name of the rocket
launcher’s manufacturer. On May 5, 2000,
DeRienzo received a reply from the staff
judge advocate for the United States
Marine Corps which stated:
The manufacturer of the LAU-10
5.0 inch rocket launcher was the
Lockley Manufacturing Company,
Inc. of New Castle, PA. The LAU-
10 was made in the 1960's as a
LAU-10A/A and was subsequently
reworked into a LAU-10D/A in the
1970's by Harvard Interiors [sic] of
St. Lou is, MO . Loc kle y
Manufacturing Company, Inc. has,
we believe, gone out of business. .
. .
Two avenues of inquiry for you
would be the Naval Air Systems
Command and Naval Surface
Warfare Center. . . .
Taylor did not attempt to contact Lockley
Manufacturing because, based on the
letter, he believed the company had gone
out of business. Instead, Taylor sent
additional FOIA requests to the Naval Air
Systems Command and to the Naval
Surface Warfare Center, the two naval
agencies mentioned in the staff judge
advocate’s letter.
On June 22, 2000, in response to
the third FOIA request, the Naval Surface
Warfare Center sent a copy of the
Engineering Investigation Report, dated
June 25, 1999, which stated that “[a]n
investigation into the subject launcher
history revealed that the launcher Lot is
LMP-7-0569.”
On August 4, 2000, the Naval Air
Systems Command responded by letter
directly to DeRienzo on his fourth FOIA
request, stating, “Cognizant personnel
636(c) and Fed. R. Civ. P. 73.

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have determined that the manufacturer of
the LAU-10 on the aircraft involved in the
incident was Lockley Manufacturing
C om pa ny, I n c. o f N e w C a s tle
Pennsylvania . . . . These cognizant
persons also indicated this command does
not have any information not in the JAG
investigation of the incident.”2
On November 8, 2000, DeRienzo
filed a complaint in federal court against
Harvard Industries, the company believed
to have refurbished the rocket launcher
during the period between manufacture
and his accident.3 DeRienzo also named
fictitious defendants John Does 1-25. The
complaint alleged, “Defendant Harvard
Industries . . . designed, manufactured,
a s s e m b l e d , i n s ta l l ed , m o d i f ie d ,
maintained, sold and/or distributed” the
rocket launcher involved in the accident.
DeRienzo did not nam e Lo ckley
Manufacturing as a defendant because he
believed it had gone out of business.
The trial court held an initial
scheduling conference on March 6, 2001
and gave the parties until October 5, 2001
to conclude fact discovery.
On May 29, 2001, an engineering
consultant retained by DeRienzo inspected
the recovered portion of the rocket
launcher. The identification plate on the
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
“CONTRACT NO. N00104-75-C-B002”
and the notation “CONTRACTOR
LOCKLEY MFG CO., INC. NEW
CASTLE.” The tag also had the titles
“INSPECTED,” “MANUFACTURER”
and “LOT NO.,” but the information
following the titles was illegible.
On May 31, 2001, counsel for
DeRienzo and Harvard Industries deposed
Haywood Hedgeman and Charles Paras,
both Navy employees from the Naval
Surface Warfare Center, Indian Head
Division. Hedgeman and Paras testified
they believed Lockley Manufacturing was
t h e r o c k e t l au n c h e r ’ s o r i g in a l
manufacturer. Paras believed the
identification tag was a manufacturer
identification tag, and the lot number
LMP-7-0569 on the tag was short-hand for
“Lockley Manufacturing, Pennsylvania.”
He also believed Lockley manufactured
the rocket launcher in the mid-1960s.
Based on this testimony, DeRienzo
concluded Lockley Manufacturing was the
original manufacturer of the rocket
launcher. DeRienzo amended his
complaint on June 28, 2001, four months
after the statute of limitations expired, to
substitute Lockley Manufacturing and
Entwistle Company, Lockley’s successor
as the result of a merger, for two of the 25
fictitious defendants named in his original
November 8, 2000 complaint. DeRienzo
2The three Navy personnel involved in
drafting the August 20, 2000 FOIA
response letter later testified they had no
personal knowledge regarding which
company man ufac tured th e rocket
launcher, but merely reported information
they had received from Navy employee
Charles Paras.
3By this point, DeRienzo had retained
attorney Alan Darnell as counsel. The
record does not specify the exact date
Darnell began his representation of
DeRienzo.

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retained the other 23 fictitious defendants
in the complaint but ceased taking steps to
locate other defendants.
After being added to the suit,
Entwistle Company retained attorney
Henry Steck as counsel. Steck had
previously worked as a procurement
officer for the United States Air Force and
was familiar with labeling in procurement-
related matters. Based on knowledge
gained during his prior federal contracting
e x p e r i en c e , S te c k b e l ie v e d t h e
identification tag likely indicated that
Lockley Manufacturing was the contractor
for a 1975 fiscal year contract, not the
original manufacturer. His view directly
contradicted the information provided by
Paras and Hedgeman, the persons
identified by the Navy as “cognizant
personnel” regarding the rocket launcher.
Steck reviewed a Lockley Manufacturing
shop order logbook in Entwistle/Lockley’s
possession, which Entwistle Company had
not disclosed to DeRienzo in its Fed. R.
Civ. P. 26 discovery requests.4 The
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
Manufacturing modified LAU-10 rocket
launchers in 1974-75 under Contract
N00104-75-C-B002. This confirmed that
Lockley was the contractor that modified
the rocket launcher, not the original
manufacturer.
On February 28, 2002, counsel for
DeRienzo, Harvard Industries, and
Lockley/Entwistle took second depositions
of Paras and Hedgeman. Paras
acknowledged he was no longer certain
that “LMP” actually referred to Lockley
Manufacturing. Hedgeman testified he
believed Lockley Manufacturing was the
original manufacturer of the rocket
launcher solely because it was listed as the
“contractor” on the identification tag.
Paras also testified he believed that the
r o c k e t l au n ch er w as o r i g i n a l l y
manufactured in May 1969 because
“0569” designated the month and year the
launcher was originally manufactured.5
Based on Paras’s new testimony
that the rocket launcher was manufactured
in May 1969, Steck revisited Lockley’s
logbook. The logbook revealed that
Lockley Manufacturing had ceased
manufacturing LAU-10 rocket launchers
in 1967. The logbook also recited that
Lockley Manufacturing had purchased
13,500 stacking lugs from Lasko Metal
Products on December 2, 1968, but it did
not state for what purposes Lockley
Manufacturing used the lugs. Steck
explained in his affidavit that, “[p]rior to
Paras’ February 28, 2002 testimony, there
was no reason to suspect that this shop
order for LAU-10 components purchased
by Lockley from Lasko Metal Products
had any relationship whatsoever to the
fabrication of the rocket launcher in
question, which Navy personnel had
4Entwistle Company stated in its initial
Rule 26(a)(1) disclosure:
This defendant is unaware of any
documents, data compilations or
tangible things in its possession,
custody or control to support its
defenses in this matter.
5This testimony directly contradicted
Paras’s previous testimony that the rocket
launcher was manufactured in the mid-
1960s.

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previously said was manufactured by
Lockley in the mid-1960s.”
On March 14, 2002, Steck deposed
Lockley Manufacturing’s former president
and chief engineer Norman Smilek.
Smilek had retired from Lockley
Manufacturing in 1992 and was living in
Florida.6 Steck asked Smilek for
information regarding lot number LMP-7-
0569. Smilek replied that Lasko Metal
Products, not Lockley Manufacturing, used
the “LMP” designation on its identification
tags. Steck immediately informed counsel
for DeRienzo and Harvard Industries of
Smilek’s testimony, identifying Lasko
Metal Products as the manufacturer of the
rocket launcher.
DeRienzo requested and was
granted leave to file a second amended
complaint in early April 2002 to substitute
Lasko Metal Products for fictitious
defendant “John Doe 4.” Lasko Metal
Products received its first notice of the suit
when served with a Summons and the
Second Amended Complaint on April 18,
2002, fourteen months after the statute of
limitations had expired. Lasko Metal
Products moved for summary judgment,
arguing DeRienzo had not exercised due
diligence in identifying it as a potential
defendant before the expiration of the
statute of limitations, as required by the
New Jersey Fictitious Pleading Rule,
N.J.R. 4:26-4. The court granted Lasko
Metal Products’ motion for summary
judgment. DeRienzo filed a motion to
reconsider, which the court denied.
DeRienzo appealed.
II.
We have jurisdiction under 28
U.S.C. § 1291. We exercise plenary
review over the court’s entry of summary
judgment. Curley v. Klem, 298 F.3d 271,
276-77 (3d Cir. 2002).
III.
A.
Under certain conditions, Federal
Rule of Civil Procedure 15(c) provides for
relation back, i.e., permitting an amended
pleading to relate back to the date of the
original complaint.7 Under Rule 15(c)(1),
6The record does not specify how Steck
located Smilek, or whether DeRienzo
could have similarly located Smilek.
7Fed. R. Civ. P. 15 provides in part:
(c) Relation Back of Amendments.
An amendment of a pleading
relates back to the date of the
original pleading when
(1) relation back is permitted by the
law that provides the statute of
limitations applicable to the action,
or
(2) the claim or defense asserted in
the amended pleading arose out of
the cond uct, transaction, or
occurrence set forth or attempted to
be set forth in the original pleading,
or
(3) the amendment changes the
party or the naming of the party
against whom a claim is asserted if
the foregoing provision (2) is
satisfied and, within the period
provided by Rule 4(m) for service
of the summons and complaint, the

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“[a]n amendment of a pleading relates
back to the date of the original pleading
when (1) relation back is permitted by the
law that provides the statute of limitations
applicable to the action.” Fed. R. Civ. P.
15(c)(1). The court may apply the state
law that establishes the limitations period
to determine whether relation back is
permissible.8
Personal injury tort actions in New
Jersey are governed by a two-year statute
of limitations, N.J.S.A. 2A:14-2,9 but the
statute may be tolled if the plaintiff
invokes the New Jersey fictitious party
rule before expiration of the limitations
period. This rule provides:
In any action, . . . 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.
N.J.R. 4:26-4.
The fictitious party rule may be
used only if the plaintiff exercised due
diligence to ascertain the defendant’s true
name before and after filing the complaint.
Farrell v. Votator Div. of Chemetron
Corp., 299 A.2d 394, 396 (N.J. 1973);
Claypotch v. Heller, Inc., 823 A.2d 844,
848-49 (N.J. Super. Ct. App. Div. 2003).
But N.J.R. 4:26-4 is not available if a
plaintiff should have known, by exercise
of due diligence, defendant’s identity prior
to the expiration of the statute of
limitations. Mears v. Sandoz Pharms.,
Inc., 693 A.2d 558, 561-63 (N.J. Super. Ct.
App. Div. 1997). The fictitious name
designation also must have appended to it
“an appropriate description sufficient to
identify” the defendant. Rutkowski v.
party to be brought in by
amendment (A) has received such
notice of the institution of the
action that the party will not be
prejudiced in maintaining a defense
on the merits, and (B) knew or
should have known that, but for a
mistake concerning the identity of
the proper party, the action would
have been brought against the
party.
Fed. R. Civ. P. 15 (2003).
8The Advisory Committee’s Note to the
1991 Amendment to Rule 15 explains:
[Rule 15(c)(1)] is new. It is
intended to make it clear that the
rule does not apply to preclude any
relation back that may be permitted
under the applicable limitations
law. Generally, the applicable
limitations law will be state law . .
. . Whatever may be the controlling
body of limitations law, if that law
affords a more forgiving principle
of relation back than the one
provided in this rule, it should be
available to save the claim.
Fed. R. Civ. P. 15 advisory committee’s
note to 1991 amendment.
9The statute provides: “Every action at
law for an injury to the person caused by
the wrongful act, neglect or default of any
person within this state shall be
commenced within two years next after the
cause of any such action shall have
accrued.” N.J.S.A. 2A:14-2.

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Liberty Mut. Ins. Co., 506 A.2d 1302,
1306-07 (N.J. Super. Ct. App. Div. 1986).
Furthermore, application of N.J.R. 4:26-4
must not prejudice the defendant. Farrell,
299 A.2d at 400; Mears, 693 A.2d at 563-
64.
B.
DeRienzo invoked the fictitious
party rule in his initial complaint within
the statute of limitations period. At issue
is whether DeRienzo employed due
diligence in attempting to identify Lasko
M etal Products as the ori g i n al
manufacturer of the rocket launcher before
the statute expired.
The New Jersey Supreme Court has
not provided a standard definition of
diligence, since “the meaning of due
diligence will vary with the facts of each
case.” O’Keefe v. Snyder, 416 A.2d 862,
873 (N.J. 1980). See also Seaman v.
Monmouth County, 191 A. 103, 104 (N.J.
1935) (“[W]hat is due diligence must be
determined on the facts of each particular
case.”).10 In the context of N.J.R. 4:26-4,
plaintiffs must “investigate all potentially
responsible parties in a timely manner” to
cross the threshold for due diligence.
Matynska v. Fried, 811 A.2d 456, 457
(N.J. 2002). DeRienzo contends he
persevered in his efforts to locate all
potentially responsible parties but was
thwarted in his investigation by
m i s i n f ormation fr o m g o v e r n m e nt
witnesses. Lasko Metal Products
maintains DeRienzo has not met his
burden.
New Jersey Supreme Court and
appellate court case law provides helpful
guidance in understanding the parameters
for the exercise of diligence. In Farrell v.
Votator Division of Chemetron Corp., the
New Jersey Supreme Court allowed a
N.J.R. 4:26-4 substitution of a newly-
named defendant ten months after the
statute of limitations had expired. 299
A.2d. at 400. Plaintiff was injured while
cleaning an industrial machine but did not
obtain counsel until 23 months after injury.
Id. at 395. Before the statute of limitations
expired, plaintiff filed a complaint naming
fictitious parties. Ten months later, in a
deposition, plaintiff was able to identify
the machine’s manufacturer and sought
leave to amend his complaint. Id. Even
though the statute of limitations had
expired, the court allowed the substitution,
finding that “plaintiffs in good faith
brought their action expeditiously against
the manufacturer under a fictitious name,
identified it by amendment as soon as they
discovered its true name, and served the
amended complaint diligently thereafter.”
Id. at 400. The court also held that
defendant was not prejudiced by the delay,
and that interests of justice favored
plaintiff receiving his day in court. Id.
By contrast, plaintiff in Mears v.
Sandoz Pharma ceuticals failed to
determine the identity of the general
contractor on the day of his workplace
injury until two and a half years after the
incident. 693 A.2d at 562-63. A New
Jersey appellate court held that plaintiff’s
failure to exercise due diligence precluded
application of the fictitious party rule. Id.
10The dictionary definition of diligence
is the “devoted and painstaking application
to accomplish an undertaking.” Webster’s
Third New Int’l Dictionary 633 (1993).

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at 562. Plaintiff failed to make a “simple
inquiry at the job site,” nor did he obtain
and review the contractor meeting minutes
or the relevant daily force report, on which
the contractor’s letterhead was printed. Id.
at 563. Had plaintiff taken any of these
steps, he would have easily discovered the
identity of the general contractor. Id.
Likewise, in Matynska v. Fried, the
New Jersey Supreme Court held that
plaintiff had not met the N.J.R. 4:26-4
diligence threshold in a medical
malpractice case. 811 A.2d at 457-58.
Plaintiff brought a malpractice suit against
doctors who performed her hip
replacement surgery, including fictitious
parties for unidentified medical personnel.
Id. Although one surgeon (Dr. Feierstein)
had substituted for her regular orthopedic
surgeon (Dr. Fried), plaintiff failed to
discover Dr. Feierstein’s identity until four
years after surgery. Id. Plaintiff was not
permitted to amend her complaint under
N.J.R. 4:26-4, because she had not
investigated “all potentially responsible
parties in a timely manner.” Id. at 458. By
merely looking in a telephone book or
contacting Dr. Fried or the hospital, the
court reasoned, plaintiff could have easily
discovered Dr. Feierstein’s role in her
surgery. Id. at 457. Dr. Feierstein’s name
also appeared twice on her hospital charts.
Id.; see also Johnston v. Muhlenberg Reg’l
Med. Ctr., 740 A.2d 1122 (N.J. Super. Ct.
App. Div. 1999) (denying N.J.R. 4:26-4
substitution for medical malpractice claim
for similar reasons).
C.
Identifying Lasko Metal Products as
a potential defendant proved to be
considerably more difficult than the
situations encountered by plaintiffs in
Matynska and Mears. As noted, the name
“Lasko” was not identified on the rocket
launcher. And significantly, Navy
employees Paras and Hedgeman both
testified they believed the designation
“LMP” stood for “Lockley Manufacturing,
Pennsylvania,” leading DeRienzo to
believe mistakenly the witnesses had
correc tly identif ied the defendant
manufacturer.
It is apparent that DeRienzo
consistently took active steps to identify
the original manufacturer of the rocket
launcher. DeRienzo submitted four FOIA
requests between June 1999 and July 2000.
After learning of Harvard Industries’
involvement in refurbishing the rocket
launcher in May 2000, he filed his initial
complaint six months later. In May 2001,
DeRienzo retained an expert to inspect the
rocket launcher and deposed two Navy
employees, who both confirmed that
Lockley manufactured the rocket launcher.
He substituted Lockley/Entwistle as
defendants one month later, in June 2001.
The court stated here, “[H]ad
Plaintiffs sought the logbook, they would
have discovered Defendant Lasko’s
existence and identity in a timely fashion.”
App. 23a. But DeRienzo did not know
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

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discovery period, more information was
required to link “LMP” to Lasko Metal
Products. The logbook merely mentioned
Lasko Metal Products as a supplier of
stacking lugs. It did not specify that
Lockley Manufacturing had used those
stacking lugs in the production or
modification of the LAU-10 rocket
launcher. Furthermore, Paras initially
testified that the rocket launcher was
manufactured in the mid-1960s. But the
l o g b o o k r e c i t e d t h a t L o c k l e y
Manufacturing purchased stacking lugs
from Lasko Metal Products in December
1968, after the supposed production date
of the rocket launcher. There was no
apparent reason to link the stacking lugs to
their use as components in the LAU-10
rocket launcher until Paras testified on
February 28, 2002 that the rocket launcher
was originally manufactured in May 1969,
not the mid-1960s. The connection
between Lasko Metal Products and
Lockley Manufacturing as documented in
the logbook, therefore, appears tenuous.
This is not to say that DeRienzo
could not have taken further steps to
discover Lasko Metal Product’s identity
before the statute of limitations expired.
DeRienzo’s military attorney might have
contacted the state corporate registry to
determine Lockley Manufacturing’s
successor after receiving the second FOIA
response.11 Or DeRienzo might have
asked Lockley Manufacturing for a list of
former CEOs or chief engineers and
deposed them to discover the meaning of
the LMP designation. Yet it bears noting
that the key that unlocked the identity of
the manufacturer here was not a fact or
expert witness, but Entwistle Company’s
attorney, Henry Steck, whose familiarity
with procurement led him to undertake
additional discovery and draw inferences
not apparent to the other witnesses and
attorneys.
Nevertheless, DeRienzo submitted
four FOIA requests, hired an expert to
examine the rocket launcher, deposed
“cognizant Navy personnel” twice, and
promptly substituted named defendants
after confirming their identities. In
addition, DeRienzo’s efforts were stymied
by misleading information from certain
authoritative witnesses and a lack of
complete disclosure by one of the
defendants. While he might have done
more, we hold DeRienzo satisfied the due
diligence requirements under New Jersey
Rule 4:26-4.
D.
O ne additio nal f actor i n
determining the applicability of N.J.R.
4:26-4 is whether the delay in amending
the complaint prejudiced the newly-named
defendant. Farrell, 299 A.2d at 400;
Garay, 598 A.2d at 24. Because it found
no due diligence, the court here did not
11One New Jersey appellate court has
suggested that a previous attorney’s lack of
diligence should not be attributed to the
current attorney’s efforts. See Garay v.
Star Ledger, 598 A.2d 22, 24 (N.J. Super.
Ct. Law Div. 1991). As noted,
DeRienzo’s current attorney, Alan Darnell,
began his representation in substitution for
his military attorney some time during the
year 2000. In our analysis, we see no need
to address the issue.

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analyze whether Lasko Metal Products
demonstrated substantial prejudice.12
New Jersey courts have noted
certain factors where substitution of a
newly-named defendant would cause
substantial prejudice. These include
destruction or alteration of evidence after
the initial discovery period, frustration of
attempts at subsequent examination, or
witness unavailability or memory lapse
due to delay. Farrell, 299 A.2d at 400;
Mears, 693 A.2d at 563-64; Garay, 598
A.2d at 24. The New Jersey Supreme
Court has not indicated whether the
passage of time alone can prejudice a
newly-named defendant, and if so, the
likely outer limits of delay.13 Some, but
not all, New Jersey appellate courts have
found some prejudice as a result of delay
alone.14
No representation has been made in
this case that the remains of the helicopter
and rocket launcher are no longer available
12The only mention of possible
prejudice appeared as an addendum to the
due diligence analysis:
Furthermore, where the Plaintiffs’
diligence in timely pursuing a claim
must be balanced with any
prejudice to the Defendant in
defending stale claims, justice does
not tip the balance toward the
Plaintiffs having their day “in court
on the merits of [their] claim”
(citations omitted).
App. 2a.
13The Farrell court did not address
whether a lapse of time by itself could
prejudice a defendant. 299 A.2d at 400. It
held instead that, given the facts of the
case, “[t]here is no suggestion that the
lapse of time has resulted in loss of
evidence or impairment of ability to
defend, nor is there any suggestion that the
plaintiffs have been advantaged by it.” Id.
Two other New Jersey Supreme Court
cases have addressed R. 4:26-4, but did not
analyze the issue of prejudice. See
Matynska, 811 A.2d at 457-58 (holding
that plaintiff lacked diligence, and
obfuscatory tactics by defendants should
not be considered); Viviano v. CBS, Inc.,
503 A.2d 296, 306 (N.J. 1986) (noting that
defendant stipulated it had not been
prejudiced by the time delay).
14New Jersey appellate courts have
taken different approaches to the issue of
prejudice resulting from time delay. See
Johnston, 740 A.2d at 1125 (where
plaintiff moved to amend the complaint to
add a named defendant eight months after
the statute of limitations had expired, the
court held that defendant “was prejudiced
by the passage of time, even if only in the
context of her right to repose”); Mears,
693 A.2d at 562-63 (“[T]here cannot be
any doubt that a defendant suffers some
prejudice merely by the fact that it is
exposed to the potential liability for a
lawsuit after the statute of limitations has
run.”). But see Claypotch, 823 A.2d at
850 (holding that, while a defendant may
suffer some prejudice through exposure to
liability, plaintiffs should still have “their
day in court” unless the lapse of time has
resulted in a loss of evidence, advantage to
plaintiffs or impairment of the ability to
defend).

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for inspection, or that relevant witnesses
are no longer available to testify. Lasko
Metal Products contends its inability to
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.
A True Copy:
Teste: Clerk of the United States Court of
Appeals for the Third Circuit

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