NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

In this unusual factual scenario, plaintiff Glendora Draughn, Administratrix ad Prosequendum of the Estate of her deceased husband, Richard Draughn, appeals from a series of orders entered by the court that ultimately resulted in the dismissal of all of plaintiff's claims for medical negligence against defendant, Dr. R. Sweeting. For the reasons set forth below, we affirm.2

On February 20, 2002, plaintiff filed a complaint seeking damages for the death of Richard Draughn who died while a patient at Bergen Regional Medical Center3 on July 28, 2000. The original complaint alleged medical malpractice against the Medical Center, Dr. Kenneth Conti, and John Doe nurses and doctors who treated the deceased prior to his death. In addition, plaintiff named the Bergen County Jail and fictitious employees of the county jail for negligence that resulted in Richard Draughn's death. Sweeting was not named in the original complaint.

On November 8, 2002, plaintiff was granted leave to file an amended complaint to name individual defendants as parties in place of previously pled fictitious parties. The first amended complaint was filed on November 21, 2002, which was beyond the applicable statute of limitations, but which related back to the filing of the original complaint listing fictitious defendants. The caption now included several doctors including Sweeting, misspelled as Sweetins. Yet Sweeting was not named in the body of the complaint.

Within the counts of the complaint, plaintiff simply alleged, in general terms, medical negligence and deviations from the standard of care by all the defendants, and made claims for wrongful death. A summons for Sweeting, again misspelled as Sweetins, was issued, and the summons and the complaint were served at Bergen County Medical Center on a clerk who was authorized to accept service. Sweeting claims he never saw the complaint until May, 2011. There is no evidence to refute this claim. The circumstantial evidence supports his claim since Sweeting did not notify his insurance carrier, and no answer was filed on his behalf. Aside from Sweeting, all the other defendants filed answers, and had their cases voluntarily dismissed with prejudice, or dismissed by summary judgment. Thus, Sweeting is the only respondent in this appeal.

After dismissal of all claims against all the other defendants, plaintiff proceeded with a proof hearing against Sweeting. On February 17, 2004, judgment was entered against Sweeting for $320,000. The judgment, like the complaint, identified defendant as Sweetins instead of Sweeting. Plaintiff did not serve defendant by mail with notice of the entry of default as required by Rule 4:43-1. Plaintiff did not serve defendant with notice of the scheduled proof hearing as required by Rule 4:43-2(b). Finally, in violation of Rule 4:43-2(c), plaintiff did not serve a copy of the judgment on defendant. Plaintiff then did not contact defendant for seven years to attempt to collect the judgment, which, while not a violation of a rule, is certainly extraordinary. Plaintiff finally contacted Sweeting in 2011.

When Sweeting was advised of the judgment against him, he immediately notified the hospital's insurance carrier. Counsel for Sweeting moved to vacate the default judgment that had been entered in 2004. The judge granted the motion under Rule 4:50-1(f), a catch-all provision which gives the court the right to vacate a judgment at any time for "any other reason justifying relief." We review his decision under an abuse of discretion standard. The trial court's "judgment will be left undisturbed unless it represents a clear abuse of discretion." Housing Auth. of Town of Housing Auth. of Town of Morristown v. Little, 135 N.J. 274, 283 (1994).

R. 4:50-1(f) has been construed to provide extraordinary relief under extraordinary circumstances. Baumann v. Marino, 95 N.J. 380, 393 (1984). The rule is "designed to reconcile the strong interests in finality of judgments and judicial efficiency with the equitable notion that courts should have authority to avoid an unjust result in any given case." Id. at 392 (quoting Manning Eng'g, Inc. v. Hudson Cnty. Park Comm'n, 74 N.J. 113, 120 (1977)). Motions to vacate default under the enumerated grounds articulated in R. 4:50-1 are "left to the sound discretion of the trial court." F.B. v. A.L.G., 176 N.J. 201, 207 (2003).

In this case, the judge found that, although service of the complaint at the place of defendant's employment was proper service, Sweeting was never personally given the complaint and had no knowledge of it until 2011. The judge also found the defendant was denied knowledge of the judgment, preventing him from filing a timely motion to vacate, due to plaintiff's violation of the rules as discussed above.

Specifically, plaintiff failed to provide defendant with required notice of the entry of default, failed to provide notice of the proof hearing, and failed to provide notice to defendant of the entry of the judgment against him for years. In addition to the above, the judge also noted that Sweeting's name was repeatedly misspelled. The judge held it would be unjust to allow a default judgment for over $300,000 to remain in place against a defendant who had no knowledge a complaint had been filed against him, and therefore had no opportunity to defend himself.

Although a default judgment will generally not be disturbed absent excusable neglect and a meritorious defense, subsection (f) of Rule 4:50-1 provides more liberal relief. F.B., supra, 176 N.J. at 208; Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966); Pressler & Verniero, Current N.J. Court Rules, comment 4.1 and 5.6.1 on R. 4:50-1 (2015).

Section (f) deals with exceptional circumstances, and thus, "each case must be resolved on its own particular facts." Baumann, supra, 95 N.J. at 395.

In the instant matter, the trial court properly vacated the default judgment under R. 4:50-1(f). The relief sought was substantiated by extraordinary circumstances. Thus, we affirm the decision to vacate the default judgment for the reasons set forth by the Honorable Menelaos Toskos in his oral decision placed on the record on August 10, 2012.

After the judgment was vacated, Judge Toskos heard argument on a motion by the defendant to dismiss the amended complaint for failure to plead a cause of action, and a cross motion by plaintiff to file a second more detailed amended complaint. The judge found the first amended complaint was sufficient to set forth a cause of action and denied both motions.

Defendant then filed a motion to vacate the prior order of November 2, 2002, that allowed plaintiff to file the first amended complaint under R. 4:26-4, replacing a fictitious John Doe defendant and adding Dr. Sweeting as a defendant after the statute of limitations had run. R. 4:26-4 states in pertinent part:

Fictitious party names in a complaint will typically suspend the running of the statute of limitations where the plaintiff does not know the true identity of the defendant. Mears v. Sandoz Pharms. Inc., 300 N.J.Super. 622, 628 (App. Div. 1997). Thus, when the plaintiff discovers the party's name, "amendment of the complaint may relate back to allow an action otherwise time barred." Brown v. Kennedy Mem'l Hosp. Univ. Med. Ctr., 312 N.J.Super. 579, (App. Div.), certif. denied, 156 N.J. 426 (1998); see R. 4:9-3 (allowing an amended complaint to relate back to the initial complaint). However, "[t]he rule will not protect a plaintiff who had ample time to discover the unknown defendant's identity before the running of the statute of limitations." Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 4:26-4 (2015) (citing Matynska v. Fried, 175 N.J. 51, 53 (2002))4.

In Matysnka, supra, the New Jersey Supreme Court affirmed the denial of a plaintiff's motion to amend her complaint. There, the plaintiff attempted to replace "John Doe" in the initial complaint with the name of a particular doctor. 175 N.J. at 53. In denying the plaintiff's motion, the court noted the doctor's name "appeared twice in [plaintiff's] hospital records," and the plaintiff did not attempt to amend the complaint until two years after the action was instituted. Ibid. The Court also found that the plaintiff would have discovered the doctor's name had she "undertaken adequate investigation and preparation;" and that "even a cursory look at the telephone book or a call to ... the hospital would have uncovered [the doctor's] status." Ibid. Accordingly, the plaintiff's effort in Matysnka did not demonstrate due diligence, and did not satisfy the obligation to investigate responsible parties. Ibid.

Consistent with the above, fictitious party rules only apply where "defendant's true name cannot be ascertained by the exercise of due diligence prior to filing the complaint." Claypotch v. Heller, Inc., 360 N.J.Super. 472, 479-80 (App. Div. 2003) (citing Mears, supra, 300 N.J. Super. at 631-33 (emphasis added)). "In determining whether a plaintiff has acted with due diligence in substituting the true name of a fictitiously identified defendant, a crucial factor is whether the defendant has been prejudiced by the delay in its identification as a potentially liable party and service of the amended complaint. Ibid. (citing Farrell v. Votator Div. of Chemetron Crop., 62 N.J. 111, 122-23 (1973)).

Here, the court noted in its oral decision, Dr. Sweeting's identity was available to plaintiff. Notably, the court stated:

In light of the above, we find that plaintiff did not exercise due diligence identifying the fictitiously pled parties, and should not have been entitled to a substitution of names under R. 4:26-4. Just as our Supreme Court held in Matysnka, if plaintiff had investigated or attempted "a cursory look at the telephone book or a call to ... the hospital," she would have been able to identify all potential defendants.

Judge Toskos also found significant prejudice to Sweeting. Specifically, he noted that Dr. Sweeting, "having only discovered the fact that there was a lawsuit against him in 2011; 11 years after the occurrence of the alleged malpractice" would be prejudiced by the delay. In light of the fact that plaintiff had access to Sweeting's name in the medical records, and that all other defendants had been dismissed from the case, the prejudice to Sweeting would be significant. In determining whether a plaintiff has acted with due diligence in substituting the true name of a fictitiously identified defendant, an important consideration is whether defendant has been prejudiced by the delay in its identification as a potentially liable party and service of the amended complaint. Farrell v. Votator Div. of Chemetron Crop., 62 N.J. 111, 122-23 (1973). Given the totality of the circumstances, we affirm Judge Toskos's decision to vacate the November 8, 2002 order.

Affirmed.