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(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version (NOTE: The status of this decision is Unpublished.)

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1067-10T1

RANDALL KIDD,

Plaintiff-Appellant,

v.

PEDERSEN BUILDING SYSTEMS, LLC, and MARCH ASSOCIATES CONSTRUCTION, INC.,

Defendants-Respondents,

and

NUCOR BUILDING SYSTEMS, BUTLER BUILDING SYSTEMS, E.I. DUPONT DE NEMOURS AND COMPANY CORPORATION, and SCANNELL PROPERTIES,

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Defendants. ________________________________________________________________ May 8, 2012 Submitted April 24, 2012 - Decided

Before Judges Baxter, Nugent and Carchman.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-3768-08.

Gill & Chamas, L.L.C., attorneys for appellant (Stephen A. Mennella and James Pagliuca, on the briefs).

Law Offices of Brian M. Murphy, attorneys for respondent Pedersen Building Systems, L.L.C. (Patrick M. Little, on the brief).

Hardin, Kundla, McKeon & Poletto, P.A., attorneys for respondent March Associates Construction, Inc. (Albert N. Montano, of counsel; Candice H. Rienzo, on the brief).

PER CURIAM

Plaintiff Randall Kidd appeals from two Law Division orders entered on September 17, 2010, which, in combination, resulted in the dismissal of his complaint against defendants Pedersen Building Systems, LLC (Pedersen), and March Associates Construction, Inc. (March). As to defendant Pedersen, the judge refused to reconsider his earlier July 23, 2010 order that had barred plaintiff from calling Vincent Gallagher as an expert witness because plaintiff had not demonstrated exceptional circumstances justifying the reopening of discovery ten days before trial. As to defendant March, the judge held that plaintiff was not entitled to the tolling of the statute of limitations, as March's role in the incident leading to plaintiff's injuries could have been discovered with the exercise of due diligence within the applicable two-year limitations period. We

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affirm. I. On May 1, 2006, plaintiff, an ironworker employed by Pravco, Inc. (Pravco), was installing safety netting on a Federal Express building under construction in Dover when a strong gust of wind blew him to the ground twenty-five feet below. Plaintiff sustained injuries from the fall. March was the general contractor on the project, and Pedersen was the subcontractor hired by March to supply and erect the pre-engineered building. Pedersen hired Pravco to unload and erect the building at the site. A detective who arrived at the scene to investigate the accident prepared a police report listing the following individuals as "foremen and supervisors that were on the scene" when the accident occurred: Pete Topping, who was identified as "ironworkers foreman"; Kevin M. Perrier, who was identified as "construction super"; and Daniel R. Merlonghi, who was identified as a "witness." The police report listed the address, cell phone number and date of birth for each of these three individuals. On March 10, 2008, plaintiff filed a complaint naming as defendants only Pedersen and Nucor Building Systems, in addition to various fictitious parties. Plaintiff did not name March as a defendant. Although plaintiff filed an amended complaint some six months later, he again did not name March as a defendant. In its answer to plaintiff's complaint, Pedersen denied that it had been the general contractor on the job, but did not indicate the business entity that served in that capacity. Pedersen asserted crossclaims for contribution and indemnification against the defendants named in plaintiff's amended complaint. Along with his complaint, plaintiff propounded interrogatories on Pedersen, which Pedersen answered ten months later on January 9, 2009. In its interrogatory answers, Pedersen provided plaintiff with a copy of the police report listing the three individuals who were present when the accident occurred, and also provided the following answers to plaintiff's interrogatories: 7. Do you, or does any person, have any reports concerning the occurrence of plaintiff's injury?

[Answer]: None other than the police report and OSHA report.

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....

13. Pursuant to R. 4:10-2(b), state whether there are any insurance agreements . . . under which any person or firm . . . may be liable to satisfy part or all of a judgment that may be entered in this action[.] . . . [A]ttach a copy of each insurance agreement or policy[.]

[Answer]: At the time of the accident, this defendant had a liability insurance policy with Selective Insurance . . . coverage is being provided by QBE Insurance Corp. through policy #HBG01360 issued to Pravco, Inc. See Certificate of Insurance.

[(Emphasis added).]

The one-page certificate of insurance, which Pedersen provided to plaintiff in its January 9, 2009 answers to plaintiff's interrogatories, identified Pravco as the primary insured, and named March as an additional insured: March Associates Construction. Inc., Scannell Properties #39. LLC. SW Dover I. L.P., U.S. Bank National Association. Town of Dover, Morris County NJ. Fed-Ex Distribution Center, Dover NJ. Pedersen Building System are all named as additional insured[s] as per the written contract.

[(Emphasis added).] The discovery end date lapsed on March 16, 2009. Ten months later, on January 18, 2010, plaintiff moved to extend discovery and to adjourn the scheduled February 16, 2010 trial. In a supporting certification, plaintiff's counsel stated that he "has retained a safety expert, [named] Vincent Gallagher" who "will need additional time to review the deposition transcripts," and will thereafter issue a report. Counsel did not allude to the marital difficulties upon which he later relied in opposing Pedersen's motions to bar Gallagher's report and for summary judgment. On February 10, 2010, the judge denied plaintiff's motion to extend the discovery end date and adjourn the trial, noting that the relief plaintiff sought required a showing of "'exceptional circumstances' . . . , as a trial date has [already] been set." The judge noted that plaintiff's "certification merely relates that the parties have not completed . . . discovery" and that the discovery end date had lapsed ten months prior. The judge
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concluded that "[n]o grounds have been shown to permit the court to reasonably exercise its discretion to [extend the discovery end-date and adjourn the trial]." After the discovery end date had passed, the parties continued to engage in discovery. Plaintiff was deposed on January 28, 2010, and Pedersen's owner, Ernest Pedersen, was deposed on April 13, 2010. Pedersen testified to the contractual relationships between the parties, stating that March was the general contractor on the project; Pedersen was the subcontractor hired by March; and Pedersen had hired Pravco. During the deposition, Pedersen produced two contractor/subcontractor agreements identifying Pedersen and Pravco as the contractor and subcontractor on the project, respectively, and listing the owner of the property as: "Scannell Properties c/o March Associates." In April 2010, Pedersen moved for summary judgment, asserting that plaintiff had not identified any acts or omissions on the part of Pedersen that caused, or contributed to, the injuries plaintiff sustained on May 1, 2006. On May 5, 2010, plaintiff opposed Pedersen's motion, and requested leave to file a second amended complaint naming March as a defendant. In a supporting certification, plaintiff's counsel maintained that he had been experiencing significant marital difficulties that interfered with "completing work on [his] files," and prevented him from pursuing pretrial discovery on plaintiff's behalf. Plaintiff's counsel's May 5, 2010 certification stated: [S]ince August, 2009, I ha[ve] been undergoing an intensely personal and difficult domestic situation that prevented me for a number of months from completing work on [my] files. I discussed this personal matter with counsel in February and it was agreed that we would continue working and that my expert report would be forthcoming after the deposition of the Pedersen 1 representative.

The next day, on May 6, 2010, more than a year after the discovery end date had lapsed, and six weeks after the judge denied plaintiff's motion to extend discovery, plaintiff resubmitted his opposition to Pedersen's summary judgment motion and, for the first time, attached a copy of Gallagher's expert report. In that report, Gallagher opined that Pedersen was negligent and that Pedersen's negligence contributed to the happening of the May 1, 2006 incident. Notably, at the time plaintiff submitted Gallagher's report on May 6, 2010, the trial was scheduled for May 16, 2010, a mere ten days later. The judge denied Pedersen's summary judgment motion, and by order of May 28, 2010, extended the

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discovery end date to September 2, 2010. Also on May 28, 2010, more than four years after the incident in question, plaintiff filed a second amended complaint, which, for the first time, named March as a defendant. Two weeks later, Pedersen moved to exclude Gallagher's expert report and to bar Gallagher from testifying at trial, asserting that at the time plaintiff served Gallagher's expert report against Pederson on May 6, 2010, the discovery end date had lapsed more than a year earlier on March 16, 2009; and on February 10, 2010, the judge had refused to extend it. In opposition to Pedersen's June 2010 motion to exclude Gallagher's report and bar him from testifying at trial, plaintiff's counsel submitted a certification dated July 13, 2010, essentially repeating the information he had provided in May 2010 in support of his motion for leave to file a second amended complaint. In particular, plaintiff's counsel's July 13, 2010 certification explained that counsel had been "battling . . . [a] personal and domestic situation," and that "[f]or many months, [he] dealt with extraordinary circumstances that prevented [him] from completing work on files as [he] had intended." Plaintiff's lawyer stated that he "believe[d] these circumstances . . . should be considered 'exceptional,'" and that "[b]ecause of the intensely personal nature of the circumstances," he had not previously revealed them to the court. By order of July 23, 2010, the judge granted Pedersen's motion to exclude Gallagher's report and bar his testimony, reasoning that plaintiff should not be permitted to "unilaterally name[] an expert literally at the last minute and well after discovery has ended," noting that "[t]he trial is scheduled for 9/13/2010 [and] [t]he allowance of this expert will plainly generate further delay of a substantial nature." Plaintiff moved for reconsideration of the July 23, 2010 order barring his expert. Pedersen cross-moved for summary judgment, contending that plaintiff should not be permitted to proceed against Pedersen at trial without an expert, as a jury would not have sufficient expertise, without testimony from an expert, to evaluate Pedersen's responsibilities as a subcontractor or to determine whether Pedersen had breached those duties. Shortly thereafter, March moved to dismiss plaintiff's complaint, asserting that plaintiff's claims were time-barred. At the ensuing motion hearing on September 16, 2010, Judge David Rand denied plaintiff's motion for reconsideration of the order barring plaintiff's expert. The judge also granted Pedersen's motion for summary judgment and March's motion to dismiss. The judge entered three confirming orders the next
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day. When denying plaintiff's motion for reconsideration, the judge reasoned that the "personal difficulties" plaintiff's counsel had experienced did "not amount to the extraordinary circumstances which can justify burdening . . . Pedersen" with a newly-named expert on the eve of trial. In reaching that conclusion, the judge rejected plaintiff's reliance on Tucci v. Tropicana Casino & Resort, Inc., 364 N.J. Super. 48 (App. Div. 2003), and Vitti v. Brown, 359 N.J. Super. 40 (Law Div. 2003), finding that the circumstances presented in each of those opinions were distinguishable from the facts before him. The judge acknowledged that the deadlines established by the Rules of Court can be relaxed in appropriate circumstances, but noted that "there is a limit," and permitting plaintiff to serve Gallagher's expert report on Pedersen ten days before the scheduled trial date "would be grossly unfair, unjustified and a complete perversion of the [R]ules[.]" Thereafter, the judge granted summary judgment in Pedersen's favor. The judge reasoned that because plaintiff's injuries arose from a construction site accident, any duty of Pedersen to supply harnesses or protective netting was so "clearly and totally beyond the scope of any common knowledge of the average [juror]" that expert testimony was required. Because plaintiff now had no expert, Pedersen was entitled to summary judgment. Turning to March's motion to dismiss, the judge noted that March, who was the general contractor, was not named by plaintiff as a defendant "until four years after the accident," which was two years after the applicable statute of limitations had expired. The judge observed that "March was not a phantom general contractor," but was "present, openly, obviously, and consistently on the . . . project site," with a trailer bearing its name. The judge also pointed out that in the certificate of insurance that Pedersen supplied to plaintiff in Pedersen's January 2009 answers to interrogatories, March was named as an additional insured. The judge found that after receiving the certificate of insurance naming March, plaintiff should have propounded interrogatories "to sort out the roles of [the] various parties, [who were] either in the case . . . at that time or could have been added in[to] the case promptly." Concluding that plaintiff "had an obligation to act with due diligence to attempt to identify the [culpable] parties," and had not done so, the judge granted March's motion to dismiss, finding that plaintiff's cause of action against March accrued on May 1, 2006, and yet,
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inexcusably, plaintiff did not file a complaint against March until more than four years later on May 27, 2010, two years after the statute of limitations had expired. On appeal, plaintiff argues that the barring of his liability expert report constituted reversible error, as the "reason for the delay in providing the report was due to exceptional circumstances" in plaintiff's counsel's personal life, and the delay in serving Gallagher's report "was neither shown to cause any prejudice to [Pedersen] nor result in any sufficient delay of the trial." As to the judge's dismissal of plaintiff's complaint against March, plaintiff asserts that nothing in the discovery he received from the then-parties could reasonably have alerted him to "the identity of March Associates as a potentially culpable party until [the] deposition testimony [of Pedersen] on April 13, 2010," by which time "the statute of limitations had [already] expired."

II. We begin by addressing the order barring plaintiff's expert report, which we review for an abuse of discretion. Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011) (holding that an appellate court reviews orders relating to discovery for an abuse of discretion, and will defer to the trial court's determination of such matters barring the judge's mistaken understanding of the law). We find no error, much less an abuse of discretion, in the trial judge's denial of plaintiff's last minute attempt to amend his answers to interrogatories by supplying Gallagher's expert report. Rule 4:24-1(c) prohibits extensions of time for discovery after an arbitration or trial date has been fixed absent "exceptional circumstances." After a trial date has been set, to establish exceptional circumstances, a party seeking an extension of time for discovery must show why the discovery was not completed on time; why the additional discovery is essential; why counsel failed to request an extension of time within the original discovery period; and, lastly, how the circumstances presented were beyond the control of the attorney seeking the extension of time. Rivers v. LSC P'ship, 378 N.J. Super. 68, 79 (App. Div.), certif. denied, 185 N.J. 296 (2005). Generally, an inexplicable delay by counsel to supply discovery in a timely manner does not constitute exceptional circumstances. Huszar v. Greate Bay Hotel & Casino, Inc., 375 N.J. Super. 463, 473-74 (App. Div.), remanded on other grounds, 185 N.J. 290 (2005).

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We conclude the judge properly exercised his discretion. At the time plaintiff served Gallagher's expert report on Pedersen, trial was scheduled to begin a mere ten days later on May 16, 2010. That date was more than eighteen months after plaintiff served his answers to Pedersen's interrogatories on October 16, 2008. By the time plaintiff served Gallagher's report on Pedersen on May 6, 2010, the pretrial discovery period had ended fourteen months earlier, on March 16, 2009. The first time that plaintiff disclosed he would rely on Gallagher as an expert was January 18, 2010, ten months after the discovery end date. To justify this violation of Rule 4:17-4(b) and to satisfy the "exceptional circumstances" requirement of Rule 4:24-1(c), plaintiff's counsel points to the marital difficulties he was experiencing during the years in question. As we have noted, the first time plaintiff's counsel mentioned these circumstances was May 5, 2010, more than a year after the pretrial discovery period had come to a close. In his May 5, 2010 certification, counsel confined his explanation of that situation to the following remarks: [S]ince August 2009, I [have] been undergoing an intensely personal and difficult domestic situation that prevented me for a number of months from completing work on [my] files.

Counsel later certified that because of the "intensely personal" nature of the circumstances, he had not revealed this problem before May 2010. It bears repeating that more than two years elapsed between the time counsel filed the complaint on plaintiff's behalf on March 10, 2008, and the time counsel served Gallagher's report on Pedersen on May 6, 2010. No matter how unpleasant counsel's marital life had become, counsel's May 2010 and July 2010 certifications failed to address, much less explain, why in the 787 days that elapsed after he filed the complaint against Pedersen he did not retain an expert and secure the report. Moreover, the letterhead of plaintiff's law firm, which is part of the record on appeal, reveals that plaintiff's attorney was one of thirteen lawyers in the firm at the relevant time. Counsel's certification fails to explain why he could not have asked one of his partners, or one of his associates, to take over the handling of plaintiff's file in light of his personal difficulties. In the end, however much as we might sympathize with plaintiff's counsel over the breakup of his marriage, those circumstances do not explain why securing an expert in a timely fashion was beyond counsel's control. Rivers, supra, 378 N.J. Super. at 79, requires such a showing, and plaintiff, or more particularly his former attorney, has failed to provide it. We agree with the trial judge's conclusion
2

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that plaintiff failed to demonstrate the "exceptional circumstances" required by Rule 4:24-1(c) when a party seeks to reopen discovery after a trial date has been set. Moreover, Rule 4:17-7 requires untimely requests to amend interrogatories to be accompanied by a showing of due diligence: [I]f a party who has furnished answers to interrogatories thereafter obtains information that renders such answers incomplete or inaccurate, amended answers shall be served not later than 20 days prior to the end of the discovery period. . . . Amendments may be allowed thereafter only if the party seeking to amend certifies therein that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date.

[(Emphasis added).]

No showing of such "due diligence" was made here. We concur in the trial judge's determination that the vague and conclusory statements in counsel's May 5, 2010 and July 13, 2010 certifications fail to address the requirements of Rules 4:17-7 and 4:24-1(c).
3

Plaintiff's reliance on Tucci, supra, 364 N.J. Super. at 51-52 is misplaced. There, unlike here, the expert report was produced a mere thirty-nine days after the court-ordered deadline, id. at 51, and the delay was, again, unlike the circumstances here, beyond the control of the plaintiffs' attorney because "[t]here were legitimate problems caused by the late submission to [plaintiffs] of the elevator maintenance records . . . as well as difficulties in arranging for the inspection [of the elevator]," id. at 52. Additionally, unlike in Tucci, where the report was served more than two months before trial, id. at 51, here by the time plaintiff submitted Gallagher's report, the trial date was a mere ten days away. While it is true that the death of the plaintiffs' attorney's mother also played a role in our conclusion in Tucci that the trial judge erred in barring the expert report, id. at 51-52, that factor was but one of three upon which we relied. The principal reasons for the ruling in Tucci were factors outside of the plaintiffs' control, namely the difficulty in securing the elevator maintenance records and the problems in scheduling an inspection. The circumstances here are not remotely similar to those presented in Tucci. We affirm the order barring Gallagher's expert report.

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III. We now address the judge's order dismissing plaintiff's complaint against March on grounds of the statute of limitations. "The statute of limitations sets forth the period of time within which a party may file a complaint." Szczuvelek v. Harborside Healthcare Woods Edge, 182 N.J. 275, 281 (2005). A personal injury complaint must be filed within two years of the date the cause of action accrued. N.J.S.A. 2A:14-2. "The fictitious party rule suspends the running of the statute of limitations when a plaintiff does not know the true identity of a defendant." Mears v. Sandoz Pharms., Inc., 300 N.J. Super. 622, 628 (App. Div. 1997). Rule 4:26-4, the fictitious party 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. Plaintiff shall on motion, prior to judgment, amend the complaint to state defendant's true name, such motion to be accompanied by an affidavit stating the manner in which that information was obtained.

The fictitious party rule "stems from the courts' 'attempt to balance the defendant's interest in repose with the plaintiff's interest in a just determination of his or her claim.'" Mears, supra, 300 N.J. Super. at 628 (quoting Viviano v. CBS, Inc., 101 N.J. 538, 547 (1986)). As the Court explained: Where . . . the plaintiff does not know or have reason to know that he has a cause of action against an identifiable defendant until after the normal period of limitations has expired, the considerations of individual justice and the considerations of repose are in conflict and other factors may fairly be brought into play.

[Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 115 (1973) (emphasis added).]

A plaintiff is prohibited from relying upon the fictitious party rule when the identity of the defendant could have been discovered through the exercise of reasonable diligence. Ibid. Our decision in Mears, which applies this principle, is directly on point and is based upon nearly identical facts. In Mears, we affirmed summary judgment in the defendant's favor, finding that the plaintiff was unable to invoke the fictitious party rule, and that his claims were time-barred. Mears, supra, 300 N.J. Super. at 633. There, the plaintiff was an ironworker injured during a construction site accident when he fell from a building scaffolding. Id. at

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625-26. In holding that the plaintiff was not entitled to invoke the fictitious party rule, we observed that the plaintiff "knew or should have known [the defendants' identities], through the exercise of diligence . . . long before he claim[ed] that he did." Id. at 631. Our holding in Mears was premised on three reasons, id. at 629-31, which are equally applicable here. First, in concluding the general contractor's identity was not "unknown" to the plaintiff, we noted that, in his deposition, the plaintiff had recalled that Walsh was a "'big name' in the contracting business," and that Walsh "had a trailer with its name on it at the [plaintiff's] job site." Id. at 631. We noted that, for that reason alone, the plaintiff was disqualified from invoking the fictitious party rule. Ibid. Here, as in Mears, plaintiff, who was an experienced construction worker, had actual notice of March's presence at the job site. As in Mears, supra, March had a large noticeable trailer on the construction site, and advertised its presence with a "huge sign" bearing the name "March Associates." Because the site was "landlocked by . . . forest," workers arriving to the site each day, such as plaintiff, would have to pass the sign bearing March's name. As we observed in Mears, such notice would, alone, be sufficient to preclude plaintiff from invoking the fictitious party rule. Id. at 631. Second, in Mears, we held that, even if the plaintiff had not known the general contractor's identity before filing his complaint, he "should have known" Walsh's identity through an exercise of diligence. Ibid. We stated: [A] simple inquiry to [the premises owner] or Walsh itself would have revealed that Walsh was indeed the general contractor on the job. . . . [N]othing . . . show[s] or even suggest[s] that [the] plaintiff could not have obtained th[is] information from [the premises owner] or [from] Walsh. . . . [I]f plaintiff had made a simple inquiry at the job site . . . he would have learned that Walsh was the general contractor.

[Id. at 631-32.]

Here too, basic follow-up or a preliminary investigation would have revealed March's identity. In the police report filed on the date of plaintiff's injury, "Kevin Perrier," March's construction superintendent, was one of only three persons identified by the detective as present at the site when plaintiff was injured. While the

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report evidently contained a minor misspelling of Perrier's last name, which is correctly spelled "Perriet," the report provided his address, cell phone number, and date of birth, so that plaintiff's counsel could easily have telephoned Perriet, or sent him a letter asking him to identify his role on the project, or the name of his employer. Additionally, before the statute of limitations lapsed, plaintiff could have served a demand for the production of documents, requesting that Pedersen supply all contractor/subcontractor agreements between Pedersen and its subcontractors on the project. Instead, plaintiff did nothing after serving his initial interrogatories on Pedersen. Further, in Mears, in concluding the general contractor's "identity . . . was quite easily discoverable," so as to preclude the plaintiff from invoking the fictitious party rule, we reasoned that, if the plaintiff's counsel had simply reviewed two documents provided in discovery, he would have seen Walsh's name, as it "conspicuous[ly]" appeared on the documents' face. Id. at 632 (citation and internal quotation marks omitted). Here again, as in Mears, March's identity was easily discoverable had plaintiff reviewed the one-page certificate of insurance, where March's name conspicuously appeared on the face of the document. The one-page certificate listed Pravco as the insured and, specifically identified "March Associates Construction, Inc." as one of the "additional insured[s] as per the written agreement." We recognize that by the time plaintiff received Pedersen's interrogatory answers, the statute of limitations had already run against March, but this was a risk plaintiff took by waiting until two months before the statute of limitations expired to file his complaint. We do not disagree with plaintiff's contention that Pedersen should have named March in answer to plaintiff's interrogatory question number four, which asked Pedersen to provide the names and addresses "of all persons who have knowledge of any relevant facts relating to the case." Pedersen's answer to interrogatory four was: "The parties, their representatives and/or employees, all treating and examining physicians, all responding and investigating police officers and all such person[s] named in discovery, and all such persons that continuing discovery and investigation may reveal." However, by the time plaintiff received Pedersen's interrogatory answers in January 2009, the statute of limitations had long since run against March. For that reason, we reject plaintiff's contention that he relied to his detriment on Pedersen's interrogatory answers.

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We conclude that when viewed in the overall context of the information available to plaintiff before the statute of limitations expired against March in 2008, plaintiff had more than ample facts at hand to identify March as a party before the two-year statute of limitations elapsed. Had plaintiff contacted Perriet, who was identified on the police report as the "construction super," plaintiff would have learned that March was the general contractor on the project. Plaintiff would then have been able to institute suit against March before the statute of limitations expired. Yet, even though the information pertaining to March was readily available before the limitations period expired, plaintiff made no attempt to identify March. Because plaintiff failed to name March as a defendant before the statute of limitations expired, and because plaintiff failed to exercise the diligence required to invoke the fictitious party rule, the judge properly granted March's motion to dismiss. A party who waits until two months before the statute of limitations expires to serve his complaint and his initial interrogatories, and who waits three years and eleven months after the date of the accident to take the deposition of the adverse party, and only then learns the identity of an additional defendant, does so at his peril. As he did in connection with his challenge to the barring of Gallagher's expert report, plaintiff again argues that his lawyer's unpleasant personal circumstances should excuse any deficiencies in counsel's investigation concerning March or in counsel's efforts at pretrial discovery. We need not repeat our conclusions on that subject. Suffice it to say, we do not agree that counsel's marital problems excuse such pronounced inattention to the file. We affirm the order dismissing plaintiff's complaint against March. A

ffirmed. 1 Pedersen denies that such an agreement was made. 2 In a reply brief, the law firm representing plaintiff advises us that the lawyer in question, who was then a partner at Gill & Chamas, is no longer associated with the firm. 3 Counsel submitted a far more detailed certification in plaintiff's appellate brief, which sets out all of the unpleasant circumstances surrounding the breakup of counsel's marriage. We will not consider that certification as it was not submitted to the trial judge. Contrary to the rules of appellate practice, plaintiff failed to seek leave to expand the record on appeal before including the undated certification in the record on appeal.
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