2013-00153410-CU-PA

Rodney Galgiani vs. Deborah Duey

Nature of Proceeding:  Motion to Quash Service of Summons

Filed By: Luckey, Kent M.

Defendant James Duey’s (“James”) Motion to Quash Service of Summons is
CONTINUED to July 11, 2014 at 9:00 a.m. in this Department.

This is a personal injury action arising out of an accident between two vehicles.  On
October 22, 2013, Plaintiff filed a complaint against defendant Deborah Duey and
DOES 1-25, alleging that he was injured by Deborah Duey and DOES in a motor
vehicle collision that occurred on November 18, 2011.  On March 26, 2014, Plaintiff
named James as DOE 1.  Plaintiff served him with the summons and complaint on
May 5, 2014.

James now moves to quash the service of summons on the basis that Plaintiff was not
genuinely ignorant of James’s name when he filed the complaint, and consequently
the statute of limitations did not stop running on that date.  James argues that when
Plaintiff amended the complaint to name James as DOE 1, the two year statute of
limitations had already run, and therefore the summons should be quashed.

Plaintiff offers evidence in his Opposition to show that he was genuinely ignorant of
James’s name until he learned it through discovery.  In turn, James’s Reply includes
several pieces of evidence, which are intended to show that Plaintiff was not ignorant
of James’s name when he filed the complaint.  Plaintiff then filed objections to the new
evidence offered in James’s Reply, arguing that new evidence is not permitted with
reply papers, and that the Court should refuse to consider the evidence or grant
additional time for responsive briefing.            Plaintiff’s objections are warranted.  This motion presents a factual dispute and the
majority of James’s evidence is presented in his Reply brief, to which Plaintiff has not
had the opportunity to respond.

The matter is continued to allow Plaintiff an opportunity to respond to the newly
produced evidence.  Plaintiff may serve and file a response to Defendant’s Reply by
no later than July 2, 2014.