357 F.3d 348 | 3rd Cir. | 2004
United States District Court for the SCIRICA, Chief Judge .
District of New Jersey In this products liability case, the D.C. Civil Action No. 00-cv-05516 (Honorable U.S. Magistrate Judge issue on appeal is whether plaintiff should be allowed to amend his complaint under
John J. Hughes) Fed. R. Civ. P. 15(c) to substitute defendant manufacturer for a fictitious name under New Jersey Rule 4:26-4 after
Argued October 27, 2003 the statute of limitations had expired. The Before: SCIRICA, Chief Judge , court [1] held that plaintiff failed to satisfy NYGAARD and AMBRO, Circuit Judges the due diligence requirement of N.J.R. judge advocate for the United States 4:26-4 and granted defendants’ motion for Marine Corps which stated: summary judgment. We will reverse and
The manufacturer of the LAU-10 remand. 5.0 inch rocket launcher was the Lockley Manufacturing Company, I. Inc. of New Castle, PA. The LAU- On February 10, 1999, plaintiff 10 was made in the 1960's as a Dennis DeRienzo, a Captain in the United LAU-10A/A and was subsequently States Marine Corps, was grievously reworked into a LAU-10D/A in the injured when the Cobra helicopter he co- 1970's by Harvard Interiors [sic] of piloted crashed in a routine training flight St. Lou is, MO . Loc kle y involving a rocket firing exercise. The Manufacturing Company, Inc. has, crash resulted when a rocket’s aft retainer we believe, gone out of business. . ring separated from the rocket launcher . . skin and struck the rear stabilizer of the helicopter, causing loss of control. Two avenues of inquiry for you DeRienzo sustained severe bodily injuries, would be the Naval Air Systems remaining in a body cast for nine months. Command and Naval Surface
Warfare Center. . . . On June 11, 1999, four months later, DeRienzo requested a copy of the Taylor did not attempt to contact Lockley JAG Manual report on the accident under Manufacturing because, based on the the Freedom of Information Act (FOIA). letter, he believed the company had gone On March 2, 2000, the Naval Air Systems out of business. Instead, Taylor sent Command responded by forwarding the additional FOIA requests to the Naval Air results of the accident investigation Systems Command and to the Naval performed December 17, 1999, plus 53 Surface Warfare Center, the two naval attachments. The report and attachments agencies mentioned in the staff judge recited that the crash occurred because of advocate’s letter. a defective LAU-10 rocket launcher but
On June 22, 2000, in response to provided no information about the rocket the third FOIA request, the Naval Surface launcher’s manufacturer or how to identify Warfare Center sent a copy of the the manufacturer. Engineering Investigation Report, dated On April 19, 2000, DeRienzo’s June 25, 1999, which stated that “[a]n military law attorney, Vaughan Taylor, investigation into the subject launcher made a second FOIA request, specifically history revealed that the launcher Lot is asking for the name of the rocket LMP-7-0569.” launcher’s manufacturer. On May 5, 2000,
On August 4, 2000, the Naval Air DeRienzo received a reply from the staff Systems Command responded by letter directly to DeRienzo on his fourth FOIA request, stating, “Cognizant personnel
636(c) and Fed. R. Civ. P. 73. have determined that the manufacturer of and gave the parties until October 5, 2001 the LAU-10 on the aircraft involved in the to conclude fact discovery. incident was Lockley Manufacturing
On May 29, 2001, an engineering C om pa ny, I n c. o f N e w C a s tle consultant retained by DeRienzo inspected Pennsylvania . . . . These cognizant the recovered portion of the rocket persons also indicated this command does launcher. The identification plate on the not have any information not in the JAG l a u nc h e r i n c l u d ed t h e n o t a t i o n investigation of the incident.” [2]
“CONTRACT NO. N00104-75-C-B002”
On November 8, 2000, DeRienzo and the notation “CONTRACTOR filed a complaint in federal court against LOCKLEY MFG CO., INC. NEW Harvard Industries, the company believed CASTLE.” The tag also had the titles to have refurbished the rocket launcher “INSPECTED,” “MANUFACTURER” during the period between manufacture and “LOT NO.,” but the information and his accident. [3] DeRienzo also named
following the titles was illegible. fictitious defendants John Does 1-25. The On May 31, 2001, counsel for complaint alleged, “Defendant Harvard DeRienzo and Harvard Industries deposed Industries . . . designed, manufactured, Haywood Hedgeman and Charles Paras, a s s e m b l e d , i n s ta l l ed , m o d i f ie d , both Navy employees from the Naval maintained, sold and/or distributed” the Surface Warfare Center, Indian Head rocket launcher involved in the accident. Division. Hedgeman and Paras testified DeRienzo did no t nam e Lo ckley they believed Lockley Manufacturing was Manufacturing as a defendant because he t h e r o c k e t l au n c h e r ’ s o r i g in a l believed it had gone out of business. manufacturer. Paras believed the The trial court held an initial identification tag was a manufacturer scheduling conference on March 6, 2001 identification tag, and the lot number LMP-7-0569 on the tag was short-hand for “Lockley Manufacturing, Pennsylvania.” He also believed Lockley manufactured [2] The three Navy personnel involved in the rocket launcher in the mid-1960s. drafting the August 20, 2000 FOIA response letter later testified they had no
Based on this testimony, DeRienzo personal knowledge regarding which concluded Lockley Manufacturing was the company man ufac tured th e rocket
original manufacturer of the rocket launcher, but merely reported information launcher. DeRienzo amended his they had received from Navy employee complaint on June 28, 2001, four months Charles Paras.
after the statute of limitations expired, to substitute Lockley Manufacturing and [3] By this point, DeRienzo had retained Entwistle Company, Lockley’s successor attorney Alan Darnell as counsel. The as the result of a merger, for two of the 25 record does not specify the exact date fictitious defendants named in his original Darnell began his representation of November 8, 2000 complaint. DeRienzo DeRienzo. retained the other 23 fictitious defendants On February 28, 2002, counsel for in the complaint but ceased taking steps to DeRienzo, Harvard Industries, and locate other defendants. Lockley/Entwistle took second depositions
of Paras and Hedgeman. Paras After being added to the suit, acknowledged he was no longer certain Entwistle Company retained attorney that “LMP” actually referred to Lockley Henry Steck as counsel. Steck had Manufacturing. Hedgeman testified he previously worked as a procurement believed Lockley Manufacturing was the officer for the United States Air Force and original manufacturer of the rocket was familiar with labeling in procurement- launcher solely because it was listed as the related matters. Based on knowledge “contractor” on the identification tag. gained during his prior federal contracting Paras also testified he believed that the e x p e r i en c e , S t e c k b e l ie v e d t h e r o c k e t l au n ch er w as o r i g i n a l l y identification tag likely indicated that manufactured in May 1969 because Lockley Manufacturing was the contractor “0569” designated the month and year the for a 1975 fiscal year contract, not the launcher was originally manufactured. [5] original manufacturer. His view directly contradicted the information provided by Based on Paras’s new testimony Paras and Hedgeman, the persons that the rocket launcher was manufactured identified by the Navy as “cognizant in May 1969, Steck revisited Lockley’s personnel” regarding the rocket launcher. logbook. The logbook revealed that Steck reviewed a Lockley Manufacturing Lockley Manufacturing had ceased shop order logbook in Entwistle/Lockley’s manufacturing LAU-10 rocket launchers possession, which Entwistle Company had in 1967. The logbook also recited that not disclosed to DeRienzo in its Fed. R. Lockley Manufacturing had purchased Civ. P. 26 discovery requests. [4] The
13,500 stacking lugs from Lasko Metal l o g b o o k r e v e al e d t h a t L o c k l e y Products on December 2, 1968, but it did Manufacturing modified LAU-10 rocket not state for what purposes Lockley launchers in 1974-75 under Contract Manufacturing used the lugs. Steck N00104-75-C-B002. This confirmed that explained in his affidavit that, “[p]rior to Lockley was the contractor that modified Paras’ February 28, 2002 testimony, there the rocket launcher, not the original was no reason to suspect that this shop manufacturer. order for LAU-10 components purchased
by Lockley from Lasko Metal Products had any relationship whatsoever to the fabrication of the rocket launcher in [4] Entwistle Company stated in its initial question, which Navy personnel had Rule 26(a)(1) disclosure: This defendant is unaware of any previously said was manufactured by judgment. DeRienzo filed a motion to Lockley in the mid-1960s.” reconsider, which the court denied.
DeRienzo appealed. On March 14, 2002, Steck deposed Lockley Manufacturing’s former president II. and chief engineer Norman Smilek.
We have jurisdiction under 28 Smilek had retired from Lockley U.S.C. § 1291. We exercise plenary Manufacturing in 1992 and was living in review over the court’s entry of summary Florida. [6] Steck asked Smilek for judgment. Curley v. Klem, 298 F.3d 271, information regarding lot number LMP-7- 276-77 (3d Cir. 2002). 0569. Smilek replied that Lasko Metal Products, not Lockley Manufacturing, used III. the “LMP” designation on its identification
A.
tags. Steck immediately informed counsel Under certain conditions, Federal for DeRienzo and Harvard Industries of Rule of Civil Procedure 15(c) provides for Smilek’s testimony, identifying Lasko Metal Products as the manufacturer of the relation back, i.e., permitting an amended pleading to relate back to the date of the rocket launcher.
original complaint. [7] Under Rule 15(c)(1), DeRienzo requested and was granted leave to file a second amended complaint in early April 2002 to substitute [7] Fed. R. Civ. P. 15 provides in part: Lasko Metal Products for fictitious
(c) Relation Back of Amendments. defendant “John Doe 4.” Lasko Metal An amendment of a pleading Products received its first notice of the suit relates back to the date of the when served with a Summons and the original pleading when Second Amended Complaint on April 18, (1) relation back is permitted by the 2002, fourteen months after the statute of law that provides the statute of limitations had expired. Lasko Metal limitations applicable to the action, Products moved for summary judgment, or arguing DeRienzo had not exercised due (2) the claim or defense asserted in diligence in identifying it as a potential the amended pleading arose out of defendant before the expiration of the the cond uct, transaction, or statute of limitations, as required by the occurrence set forth or attempted to New Jersey Fictitious Pleading Rule, be set forth in the original pleading, N.J.R. 4:26-4. The court granted Lasko or Metal Products’ motion for summary (3) the amendment changes the party or the naming of the party against whom a claim is asserted if [6] The record does not specify how Steck the foregoing provision (2) is located Smilek, or whether DeRienzo satisfied and, within the period could have similarly located Smilek. provided by Rule 4(m) for service
of the summons and complaint, the “[a]n amendment of a pleading relates Jersey are governed by a two-year statute of limitations, N.J.S.A. 2A:14-2, [9] but the back to the date of the original pleading when (1) relation back is permitted by the statute may be tolled if the plaintiff law that provides the statute of limitations invokes the New Jersey fictitious party applicable to the action.” Fed. R. Civ. P. rule before expiration of the limitations 15(c)(1). The court may apply the state period. This rule provides: law that establishes the limitations period
In any action, . . . if the defendant’s to determine whether relation back is true name is unknown to the permissible. [8] plaintiff, process may issue against Personal injury tort actions in New the defendant under a fictitious name, stating it to be fictitious and adding an appropriate description party to be brought in by sufficient for identification. amendment (A) has received such
N.J.R. 4:26-4.
notice of the institution of the action that the party will not be The fictitious party rule may be prejudiced in maintaining a defense
used only if the plaintiff exercised due on the merits, and (B) knew or diligence to ascertain the defendant’s true should have known that, but for a
name before and after filing the complaint. mistake concerning the identity of Farrell v. Votator Div. of Chemetron the proper party, the action would Corp., 299 A.2d 394, 396 (N.J. 1973); have been brought against the
Claypotch v. Heller, Inc., 823 A.2d 844, party. 848-49 (N.J. Super. Ct. App. Div. 2003). Fed. R. Civ. P. 15 (2003). But N.J.R. 4:26-4 is not available if a plaintiff should have known, by exercise [8] The Advisory Committee’s Note to the of due diligence, defendant’s identity prior 1991 Amendment to Rule 15 explains: to the expiration of the statute of [Rule 15(c)(1)] is new. It is limitations. Mears v. Sandoz Pharms., intended to make it clear that the Inc., 693 A.2d 558, 561-63 (N.J. Super. Ct. rule does not apply to preclude any App. Div. 1997). The fictitious name relation back that may be permitted designation also must have appended to it under the applicable limitations “an appropriate description sufficient to law. Generally, the applicable identify” the defendant. Rutkowski v. limitations law will be state law . . . . Whatever may be the controlling
Liberty Mut. Ins. Co., 506 A.2d 1302, maintains DeRienzo has not met his 1306-07 (N.J. Super. Ct. App. Div. 1986). burden. Furthermore, application of N.J.R. 4:26-4
New Jersey Supreme Court and must not prejudice the defendant. Farrell, appellate court case law provides helpful 299 A.2d at 400; Mears, 693 A.2d at 563- guidance in understanding the parameters 64. for the exercise of diligence. In Farrell v. B. Votator Division of Chemetron Corp., the New Jersey Supreme Court allowed a DeRienzo invoked the fictitious N.J.R. 4:26-4 substitution of a newly- party rule in his initial complaint within named defendant ten months after the the statute of limitations period. At issue statute of limitations had expired. 299 is whether DeRienzo employed due A.2d. at 400. Plaintiff was injured while diligence in attempting to identify Lasko cleaning an industrial machine but did not M etal P ro duc ts as the o ri g i n al obtain counsel until 23 months after injury. manufacturer of the rocket launcher before Id. at 395. Before the statute of limitations the statute expired. expired, plaintiff filed a complaint naming The New Jersey Supreme Court has fictitious parties. Ten months later, in a not provided a standard definition of deposition, plaintiff was able to identify diligence, since “the meaning of due the machine’s manufacturer and sought diligence will vary with the facts of each leave to amend his complaint. Id. Even case.” O’Keefe v. Snyder, 416 A.2d 862, though the statute of limitations had 873 (N.J. 1980). See also Seaman v. expired, the court allowed the substitution, Monmouth County, 191 A. 103, 104 (N.J. finding that “plaintiffs in good faith 1935) (“[W]hat is due diligence must be brought their action expeditiously against determined on the facts of each particular the manufacturer under a fictitious name, case.”). [10] In the context of N.J.R. 4:26-4, identified it by amendment as soon as they plaintiffs must “investigate all potentially discovered its true name, and served the responsible parties in a timely manner” to amended complaint diligently thereafter.” cross the threshold for due diligence. Id. at 400. The court also held that Matynska v. Fried, 811 A.2d 456, 457 defendant was not prejudiced by the delay, (N.J. 2002). DeRienzo contends he and that interests of justice favored persevered in his efforts to locate all plaintiff receiving his day in court. Id. potentially responsible parties but was
By contrast, plaintiff in Mears v. thwarted in his investigation by Sandoz Pharma ceuticals failed to m i s i n f orma tion fr o m g o v e r n m e nt determine the identity of the general witnesses. Lasko Metal Products contractor on the day of his workplace injury until two and a half years after the incident. 693 A.2d at 562-63. A New [10] The dictionary definition of diligence Jersey appellate court held that plaintiff’s is the “devoted and painstaking application failure to exercise due diligence precluded to accomplish an undertaking.” Webster’s application of the fictitious party rule. Id. Third New Int’l Dictionary 633 (1993). at 562. Plaintiff failed to make a “simple C. inquiry at the job site,” nor did he obtain
Identifying Lasko Metal Products as and review the contractor meeting minutes a potential defendant proved to be or the relevant daily force report, on which considerably more difficult than the the contractor’s letterhead was printed. Id. situations encountered by plaintiffs in at 563. Had plaintiff taken any of these Matynska and Mears. As noted, the name steps, he would have easily discovered the “Lasko” was not identified on the rocket identity of the general contractor. Id. launcher. And significantly, Navy Likewise, in Matynska v. Fried, the employees Paras and Hedgeman both New Jersey Supreme Court held that testified they believed the designation “LMP” stood for “Lockley Manufacturing, plaintiff had not met the N.J.R. 4:26-4 diligence thresh old in a medical Pennsylvania,” leading DeRienzo to malpractice case. 811 A.2d at 457-58. believe mistakenly the witnesses had correc tly identif ied the defendant Plaintiff brought a malpractice suit against doctors who performed her hip manufacturer. replacement surgery, including fictitious
It is apparent that DeRienzo parties for unidentified medical personnel. consistently took active steps to identify Id. Although one surgeon (Dr. Feierstein) the original manufacturer of the rocket had substituted for her regular orthopedic launcher. DeRienzo submitted four FOIA surgeon (Dr. Fried), plaintiff failed to requests between June 1999 and July 2000. discover Dr. Feierstein’s identity until four After learning of Harvard Industries’ years after surgery. Id. Plaintiff was not involvement in refurbishing the rocket permitted to amend her complaint under launcher in May 2000, he filed his initial N.J.R. 4:26-4, because she had not complaint six months later. In May 2001, investigated “all potentially responsible DeRienzo retained an expert to inspect the parties in a timely manner.” Id. at 458. By rocket launcher and deposed two Navy merely looking in a telephone book or employees, who both confirmed that contacting Dr. Fried or the hospital, the Lockley manufactured the rocket launcher. court reasoned, plaintiff could have easily He substituted Lockley/Entwistle as discovered Dr. Feierstein’s role in her defendants one month later, in June 2001. surgery. Id. at 457. Dr. Feierstein’s name also appeared twice on her hospital charts. The court stated here, “[H]ad Plaintiffs sought the logbook, they would Id.; see also Johnston v. Muhlenberg Reg’l Med. Ctr., 740 A.2d 1122 (N.J. Super. Ct. have discovered Defendant Lasko’s App. Div. 1999) (denying N.J.R. 4:26-4 existence and identity in a timely fashion.” App. 23a. But DeRienzo did not know substitution for medical malpractice claim for similar reasons). there was a logbook, and Entwistle
Company did not acknowledge its existence in its initial Fed. R. Civ. P. 26(a)(1) disclosures. Even if DeRienzo had obtained the logbook during the initial
discovery period, more information was asked Lockley Manufacturing for a list of required to link “LMP” to Lasko Metal former CEOs or chief engineers and Products. The logbook merely mentioned deposed them to discover the meaning of Lasko Metal Products as a supplier of the LMP designation. Yet it bears noting stacking lugs. It did not specify that that the key that unlocked the identity of Lockley Manufacturing had used those the manufacturer here was not a fact or stacking lugs in the production or expert witness, but Entwistle Company’s modification of the LAU-10 rocket attorney, Henry Steck, whose familiarity launcher. Furthermore, Paras initially with procurement led him to undertake testified that the rocket launcher was additional discovery and draw inferences manufactured in the mid-1960s. But the not apparent to the other witnesses and l o g b o o k r e c i t e d t h a t L o c k l e y attorneys. Manufacturing purchased stacking lugs
Nevertheless, DeRienzo submitted from Lasko Metal Products in December four FOIA requests, hired an expert to 1968, after the supposed production date examine the rocket launcher, deposed of the rocket launcher. There was no “cognizant Navy personnel” twice, and apparent reason to link the stacking lugs to promptly substituted named defendants their use as components in the LAU-10 after confirming their identities. In rocket launcher until Paras testified on addition, DeRienzo’s efforts were stymied February 28, 2002 that the rocket launcher by misleading information from certain was originally manufactured in May 1969, authoritative witnesses and a lack of not the mid-1960s. The connection complete disclosure by one of the between Lasko Metal Products and defendants. While he might have done Lockley Manufacturing as documented in more, we hold DeRienzo satisfied the due the logbook, therefore, appears tenuous. diligence requirements under New Jersey This is not to say that DeRienzo Rule 4:26-4. could not have taken further steps to
D.
discover Lasko Metal Product’s identity before the statute of limitations expired. O ne additio nal f a ctor i n DeRienzo’s military attorney might have determining the applicability of N.J.R. contacted the state corporate registry to 4:26-4 is whether the delay in amending determine Lockley Manufacturing’s the complaint prejudiced the newly-named defendant. Farrell, 299 A.2d at 400; successor after receiving the second FOIA response. [11] Or DeRienzo might have Garay, 598 A.2d at 24. Because it found
no due diligence, the court here did not analyze whether Lasko M etal Products not all, New Jersey appellate courts have demonstrated substantial prejudice. [12]
found some prejudice as a result of delay alone. [14]
New Jersey courts have noted certain factors where substitution of a No representation has been made in newly-named defendant would cause this case that the remains of the helicopter substantial prejudice. These include and rocket launcher are no longer available destruction or alteration of evidence after the initial discovery period, frustration of
Two other New Jersey Supreme Court attempts at subsequent examination, or cases have addressed R. 4:26-4, but did not witness unavailability or memory lapse
analyze the issue of prejudice. See due to delay. Farrell, 299 A.2d at 400; Matynska, 811 A.2d at 457-58 (holding Mears , 693 A.2d at 563-64; Garay , 598 that plaintiff lacked diligence, and A.2d at 24. The New Jersey Supreme
obfuscatory tactics by defendants should Court has not indicated whether the not be considered); Viviano v. CBS, Inc., passage of time alone can prejudice a 503 A.2d 296, 306 (N.J. 1986) (noting that newly-named defendant, and if so, the defendant stipulated it had not been likely outer limits of delay. [13] Some, but
prejudiced by the time delay). for inspection, or that relevant witnesses A True Copy: are no longer available to testify. Lasko
Teste: Clerk of the United States Court of Metal Products contends its inability to Appeals for the Third Circuit participate in discovery “severely prejudiced . . . its ability to defend against the merits of the claim” yet provides no reason why this is necessarily so. Initial discovery served mainly to identify the manufacturer of the rocket launcher, so Lasko’s interests do not appear to have been harmed. Should Lasko Metal Products request additional discovery, we are confident the court, in the exercise of its sound discretion, would permit it. While there has been delay in this case, we see no prejudice and no apparent reason why this factor should be dispositive to defeat plaintiff’s N.J.R. 4:26-4 motion. See James v. Chevron U.S.A., Inc., 694 A.2d 270, 288 (N.J. Super. Ct. App. Div. 1997) (holding that a plaintiff’s R. 4:26-4 motion should be accepted unless the relation-back procedure would result in “perc eivab le undue prejudice” to defendants); Garay, 598 A.2d at 24 (holding that the passage of time did not “substantial[ly] prejudice” the defendant).
IV.
For the foregoing reasons, we will reverse the grant of summary judgment and remand for further proceedings consistent with this opinion.
NOTES
[1] The parties consented to jurisdiction of (Filed: February 3, 2004 ) a magistrate judge under 28 U.S.C. §
[5] This testimony directly contradicted documents, data compilations or tangible things in its possession, Paras’s previous testimony that the rocket custody or control to support its launcher was manufactured in the mid- defenses in this matter. 1960s.
[9] The statute provides: “Every action at body of limitations law, if that law affords a more forgiving principle law for an injury to the person caused by of relation back than the one the wrongful act, neglect or default of any provided in this rule, it should be person within this state shall be available to save the claim. commenced within two years next after the Fed. R. Civ. P. 15 advisory committee’s cause of any such action shall have note to 1991 amendment. accrued.” N.J.S.A. 2A:14-2.
[11] One New Jersey appellate court has suggested that a previous attorney’s lack of DeRienzo’s current attorney, Alan Darnell, diligence should not be attributed to the began his representation in substitution for current attorney’s efforts. See Garay v. his military attorney some time during the Star Ledger, 598 A.2d 22, 24 (N.J. Super. year 2000. In our analysis, we see no need Ct. Law Div. 1991). As noted, to address the issue.
[14] New Jersey appellate courts have
[12] The only mention of possible taken different approaches to the issue of prejudice appeared as an addendum to the prejudice resulting from time delay. See due diligence analysis: Johnston, 740 A.2d at 1125 (where Furthermore, where the Plaintiffs’ plaintiff moved to amend the complaint to diligence in timely pursuing a claim add a named defendant eight months after must be balanced with any the statute of limitations had expired, the prejudice to the Defendant in court held that defendant “was prejudiced defending stale claims, justice does by the passage of time, even if only in the not tip the balance toward the context of her right to repose”); Mears, Plaintiffs having their day “in court 693 A.2d at 562-63 (“[T]here cannot be on the merits of [their] claim” any doubt that a defendant suffers some (citations omitted). prejudice merely by the fact that it is App. 2a. exposed to the potential liability for a
[13] The Farrell court did not address lawsuit after the statute of limitations has whether a lapse of time by itself could run.”). But see Claypotch, 823 A.2d at prejudice a defendant. 299 A.2d at 400. It 850 (holding that, while a defendant may held instead that, given the facts of the suffer some prejudice through exposure to case, “[t]here is no suggestion that the liability, plaintiffs should still have “their lapse of time has resulted in loss of day in court” unless the lapse of time has evidence or impairment of ability to resulted in a loss of evidence, advantage to defend, nor is there any suggestion that the plaintiffs or impairment of the ability to plaintiffs have been advantaged by it.” Id. defend).
