top of page


Procedural Slip Nearly Ices Personal Injury Action (NJ)

November 27, 2013

Share to:

Procedural issues can be critical in litigation.  Even the simplest filing can sometimes have unexpected consequences.  In <em>Boker v. Wal-Mart Stores, Inc.</em>, <a href="http://pdf/">http://pdf/</a>, the plaintiff's case was nearly lost until salvaged by the Appellate Division due to a procedural hiccup.
The plaintiff, an employee of Wal-Mart, was injured at work in a fall on ice in the parking lot in February 2010.  His attorney wrote to Wal-Mart to request the name of the snow removal contractor later that year.  Wal-Mart failed to respond.  Counsel then filed a complaint just days before the statute of limitations would run naming Wal-Mart along with fictitious defendants.  Finally, Wal-Mart supplied the contractor's name, and the plaintiff agreed to dismiss the case against his employer.
The slip came when the plaintiff allowed Wal-Mart's attorney to file a stipulation of dismissal before he amended the complaint to substitute the contractor for one of the John Does.  When the plaintiff ultimately did so, the court rejected the amended complaint as the case was already closed.  The Court then denied plaintiff's motion to reinstate the complaint and permit the filing.
Since the statute of limitations had run by this time, the plaintiff appealed.  The Appellate Division turned to the court rule that permits a plaintiff to dismiss any action prior to the filing of an answer.  It noted specifically that only a plaintiff may do so.   Thus, even though the plaintiff signed the stipulation, the court held that the filing was improper resulting in improvident dismissal of the action.
While the Appellate Division remanded with instructions for the case to be reinstated to permit the filing, it opened the door to the defense on a possible statute of limitations defense.
The moral of the story is when all else fails, read the rules!
For more information, contact Denise Fontana Ricci at <a href=""></a>.


bottom of page