Robinson v. Visual Packaging, Inc.

• Decision Date: 26 January 1989
• Docket Number: Civ. A. No. 86-5059 (JCL).
• Citation: 705 F. Supp. 216
• Parties: Pierre ROBINSON, Plaintiff, v. VISUAL PACKAGING, INC., Homeowners Warehouse, Inc., Service Merchandise Company, Inc., Hub Plastics, Inc., Unocal Chemical Division, Unocal Corp., a Division of Unocal Corp., and Polytop Corp., Individually, Jointly, and Severally, Defendants.
• Court: U.S. District Court — District of New Jersey

705 F. Supp. 216

Pierre ROBINSON, Plaintiff, v. VISUAL PACKAGING, INC., Homeowners Warehouse, Inc., Service Merchandise Company, Inc., Hub Plastics, Inc., Unocal Chemical Division, Unocal Corp., a Division of Unocal Corp., and Polytop Corp., Individually, Jointly, and Severally, Defendants.

Civ. A. No. 86-5059 (JCL).

United States District Court, D. New Jersey.

January 26, 1989.

Thomas R. Ashley, Ashley & Charles, Newark, N.J., for plaintiff Robinson.

John H. Adler, McCarter & English, Newark, N.J., for defendant Homeowners Warehouse.

Jerome J. Graham, Jr., Ribis, Graham, Verdon & Curtin, Morristown, N.J., for defendant Unocal Chemical.

Harry Haushalter, Atty. Gen.'s Office, Trenton, N.J., for Atty. Gen. intervener-plaintiff.

Craig W. Miller, James & Addas, Jersey City, N.J., for defendant Visual Packaging.

James B. Moran, Hoagland, Longo, Oropollo, & Moran, New Brunswick, N.J., for defendant Polytop Corp.

William J. Cook, Brown & Connery, Camden, N.J., for defendant Hub Plastics.

OPINION

LIFLAND, District Judge.

Plaintiff moves to file a Third Amended Complaint. Defendant Polytop moves for summary judgment and to file a third party complaint. Defendant Hub Plastics moves to dismiss the complaint. Defendant Unocal moves for summary judgment. Defendant Visual Packaging moves to file a third party complaint. The State of New Jersey intervenes in favor of upholding the constitutionality of N.J.Stat.Ann. 2A:14-22.

The Second Amended Complaint alleges that "On or about August 18, 1985, while plaintiff was using a container of charcoal lighter fluid for its intended purpose, the container burst open and the contents combusted causing plaintiff to suffer substantial, severe and permanent burns on his body." Second Amended Complaint at ¶ 10. Plaintiff filed the original complaint with this court on December 29, 1986, and an amended complaint on August 14, 1987.

Counsel for plaintiff states by affidavit that on August 26, 1987, shortly after filing the amended complaint, he received a letter from defendant Visual Packaging, Inc., which revealed that several other firms manufactured parts of the container in question. Exhibit B to Affidavit of Cyril S. Hodge. After corroborative discovery plaintiff applied for and was granted leave to amend the complaint adding these firms as defendants. Exhibit C to Hodge Affidavit. Plaintiff filed a second amended complaint on February 16, 1988. Exhibit D to Hodge Affidavit. Plaintiff maintains that he was not aware of these other firms until he received the letter on August 26, 1987, and that there was no intentional delay or lack of due diligence in commencing the action against the defendants. Hodge Affidavit at ¶ 13-14. Plaintiff has provided the court with a copy of the cellophane wrapping of the charcoal lighter fluid container, which states that the container was manufactured by Visual Packaging, Inc. There is no indication from the wrapper that any other firms played a part in manufacturing the container. Exhibit A to Hodge Affidavit.

Discussion

Defendants Hub Plastics, Inc., Polytop Corp., and Unocal Chemicals Division of Union Oil Co. were added as defendants in plaintiff's second amended complaint filed February 16, 1988. Hub Plastics moves to dismiss the complaint. Polytop and Unocal move for summary judgment. All of these defendants argue that any action against them is time-barred by New Jersey's two-year statute of limitations for personal injuries, N.J.Stat.Ann. § 2A:14-2.¹ They argue that the two-year period expired August 18, 1987, two years after plaintiff's injuries occurred, while they were not added as defendants until February 16, 1988, several months after the two-year period expired.

Plaintiff opposes these motions on two grounds. First, he argues that under New Jersey's "discovery rule," plaintiff's cause of action against Polytop and Unocal commenced on August 26, 1987, the day he first learned of their possible role in manufacturing the container, and plaintiff's cause of action against Hub Plastics commenced on January 21, 1988, when he first learned of Hub Plastics' possible role in manufacturing the container in a deposition of the president of defendant Visual Packaging.

Plaintiff advances a second argument against Hub Plastics and Polytop. Plaintiff argues that under N.J.Stat.Ann. § 2A:14-22, which tolls the running of the statute of limitations in actions against nonresident defendants who are not represented within New Jersey during the limitation period, Hub Plastics and Polytop, foreign corporations that have not filed a notice designating a representative to accept service of process, are by the express terms of the statute nonrepresented parties. Therefore, plaintiff claims, the statute of limitations never began to run in their favor in this case.

The constitutionality of § 2A:14-22 has been drawn in question in this case. In Bendix Autolite Corp. v. Midwesco Enterprises, Inc., ___ U.S. ___, 108 S.Ct. 2218, 100 L.Ed.2d 896 (1988), the Supreme Court held that an Ohio statute, which Hub Plastics and Polytop claim is similar to 2A:14-22, was unconstitutional because it violated the Commerce Clause. Hub Plastics and Polytop contend that § 2A:14-22 is unconstitutional under Bendix Autolite.² The Attorney General of New Jersey has intervened in this case and opposes this contention.

Discovery Rule

The discovery rule is a rule of equity and fairness. See, e.g., Lopez v. Swyer, 62 N.J. 267, 300 A.2d 563 (1973). "The essential purpose of the rule is to avoid harsh results that otherwise would flow from mechanical application of a statute of limitations." See Vispisiano v. Ashland Chem. Co., 107 N.J. 416, 426, 527 A.2d 66 (1987). The discovery rule postpones the accrual of the limitations period until the plaintiff learns or with reasonable diligence should have learned of the existence of the facts which would equate with a cause of action. Royal Indem. Co. v. Petrozzino, 598 F.2d 816, 818 (3d Cir.1979); Burd v. New Jersey Tel. Co., 76 N.J. 284, 291, 386 A.2d 1310 (1978).

Whether plaintiff did or did not exercise reasonable diligence in learning of the role of Hub Plastics, Polytop, and Unocal in manufacturing the container need not be decided, because the discovery rule is not applicable in this case. "The discovery rule applies when a party, by the exercise of reasonable diligence, does not know he has a cause of action until some time after the infliction of the injury...." Hernandez v. St. James Hosp., 214 N.J.Super. 538, 543, 520 A.2d 773 (App.Div.1986). Plaintiff "has been in possession of the container of lighter fluid since the date of the accident," Polytop Brief at 2. Although the wrapper on the container does not indicate that any firm other than Visual Packaging manufactured the container, "From the moment the accident occurred, plaintiff knew of facts that equated with a cause of action. ... Thus ... plaintiff is not entitled to protection of the discovery rule, and the statute of limitations began to run on the date of his injury." Viviano v. CBS, Inc., 101 N.J. 538, 503 A.2d 296 (1986). Hub Plastics, Polytop, and Unocal were not added as defendants until after the statute of limitations expired. Plaintiff therefore cannot look to the discovery rule to prevent dismissal of the case as to defendants Hub Plastics, Polytop, and Unocal.³

Therefore, the "period provided by law" in this case is two years from the date of plaintiff's accident. Not having filed suit against Hub Plastics, Polytop, and Unocal within that period, plaintiff is not entitled to have claims against these parties relate back to the filing of the original complaint. See Britt, 590 F.2d at 62.

Constitutionality of N.J.Stat.Ann. § 2A:14-22

For the reasons stated above, summary judgment as to defendant Unocal must be granted, since Unocal has a registered agent for service of process in New Jersey. However, plaintiff argues that Hub Plastics and Polytop's failure to designate an agent in New Jersey to accept service of process in the state tolls the statute of limitations pursuant to N.J.Stat.Ann. § 2A:14-22.

An earlier version of § 2A:14-22 was stricken by the New Jersey Supreme Court in Coons v. American Honda Motor Co., 94 N.J. 307, 463 A.2d 921 (1983), cert. denied, 469 U.S. 1123, 105 S.Ct. 808, 83 L.Ed.2d 800 (1985) hereinafter Coons I, because it required foreign corporations to obtain certificates of authority to do business in New Jersey from the Secretary of State. The New Jersey Supreme Court deemed this to be a "forced licensure." 94 N.J. at 318, 463 A.2d 921. In Coons v. American Honda Motor Co., 96 N.J. 419, 476 A.2d 763 (1984) hereinafter Coons II, the New Jersey Supreme Court held that their earlier ruling was prospective only. The New Jersey legislature added the following to the statute in an effort to preserve the statute: "A corporation shall be deemed represented for purposes of this section if the corporation has filed with the Secretary of State a notice designating a representative to accept service of process." See Senate Judiciary Committee Statement, Senate No. 953-L.1984, c. 131.

Bendix, supra, held that an Ohio tolling statute was unconstitutional because it forced out-of-state corporations to designate agents for service of process within Ohio in order to prevent the tolling of the statute of limitations as to the out-of-state corporation. The Supreme Court held that the tolling statute violated the Commerce Clause because requiring the designation of agents for service of process within Ohio could subject foreign corporations to Ohio's jurisdiction when they would otherwise not be so subject. This would constitute an unreasonably greater burden on out-of-state corporations than Ohio corporations. See, e.g., Brown-Forman Distillers Corp. v. New York State Liquor Auth., 476 U.S. 573, 578-79, 106 S.Ct. 2080, 2084-85, 90 L.Ed.2d 552 (1986), cited in Bendix, 108 S.Ct. at 2220.

The court holds that New Jersey's statute...