Guava LLC v. John Doe
Order that plaintiff Show Cause by 11/28/2012 why the fictitious party, John Doe, should not be stricken from the complaint and the complaint dismissed. Signed by Magistrate Judge Katherine P. Nelson on 11/13/2012. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CIVIL ACTION NO. 12-678-N
On November 6, 2012, the court entered an Order to Show Cause (doc. 3) why the
fictitious defendant should not be stricken. Plaintiff filed a Response (doc. 4).
As previously noted in the court’s order, fictitious party pleading is not generally
permitted in federal court. See, e.g., New v. Sports & Recreation, Inc., 114 F.3d 1092,
1094 n. 1 (11th Cir. 1997); Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010); see
also Dean v. Barber, 951 F.2d 1210, 1215-16 (11th Cir. 1992) (recognizing limited
exception to general rule); Moulds v. Bullard, 345 Fed.Appx. 387, 390 (11th Cir.
2009)(same). Plaintiff filed this complaint against a single fictitious defendant, with no
named defendant, and seeks limited discovery to determine the real name of that party.
In its response, plaintiff’s counsel asserts that the Eleventh Circuit approved
fictitious party practice for the instant situation in Dean. Counsel misconstrues the Dean
court’s reference to Bryant v. Ford Motor Co., 832 F.2d 1080, 1096 n.19 (9th Cir. 1987).
In Dean, the Court considered a former inmate’s use of a “John Doe” defendant in his
proposed amendment to his §1983 complaint, where the pro se plaintiff described the
unnamed defendant in highly specific terms but did not know the name of the official.
Dean, 951 F.2d at1215-16. In the relevant passage in Dean, the panel quoted a portion of
Bryant which discussed the need to “distinguish suing fictitious parties from real parties
sued under a fictitious name.” Id., at 1215-16 (quoting Bryant). The quoted language
from Bryant described both situations. Id. The panel did not purport to adopt the holding
reached in Bryant1, or to hold that fictitious party practice was generally available in all
situations in which a plaintiff sought to sue a real but unknown person; that issue was not
before the Court at that time and such a holding would have constituted a much greater
exception to the general rule against fictitious party practice than the panel was prepared
to adopt. Rather, the panel found a narrow exception: the Court noted plaintiff’s pro se
status and the named defendants’ failure to file their special report (which would have
allowed plaintiff to include the new defendant’s name), but principally relied on the
thoroughness of the description given by plaintiff. “Dean attempted to add as a defendant
the ‘Chief Deputy of the Jefferson County Jail’-what Alabama calls the Chief
Correctional Officer.” Id. The Court held that plaintiff had provided a description which
was all but complete, and characterized the use of the name “John Doe” as being “at the
very worst, surplusage.” Id. at 1215 n.6; see Richardson, 598 F.3d at 738 (Dean created
“limited exception…when the plaintiff’s description of the defendant is so specific as to
be ‘at the very worst surplusage.’”).
The Eleventh Circuit has never recognized an exception to the general rule against
fictitious party practice which would apply to the instant action. Plaintiff has provided
Indeed, in its response to the court’s show cause order, plaintiff strenuously argues against this
court adopting the Bryant holding. See doc. 4 at 2 n.1 (Bryant “is inapplicable for two reasons.
First, its analysis focused on whether the assertion of a claim against a Doe Defendant defeated
diversity jurisdiction. Here, there is federal question jurisdiction, so diversity analysis does not
apply. Second, Bryant is a Ninth Circuit case, and is thus of little precedential value to this
Court’s analysis of the exceptions under which a Doe Defendant may be named.”).
substantially all of the identifying information which it has in its possession, but unlike
the situation in Dean, that information is not sufficient, without more, to identify the
defendant or to allow service of process on the defendant.
Plaintiff has failed to demonstrate that the courts of this Circuit would allow use
of a “John Doe” defendant under those circumstances, particularly in the absence of at
least one non-fictitious defendant upon whom service may issue. Nonetheless, the court
is aware that some courts in other circuits have allowed such cases to proceed. While it is
not the responsibility of this court to make such an argument for the plaintiff, it is within
the court’s discretion to allow plaintiff an additional opportunity to brief that matter
rather than immediately striking the fictitious party and, in the absence of any nonfictitious party, dismissing the complaint. Plaintiff may thus seek to brief the state of the
law on this issue and to demonstrate that the courts of this Circuit should adopt a similar
exception to the general rule precluding fictitious party practice.
Accordingly, it is hereby ORDERED that, no later than November 28, 2012,
plaintiff shall SHOW CAUSE why the fictitious party, “John Doe,” should not be
stricken from the complaint and the complaint dismissed.
DONE this the 13th day of November, 2012.
/s/ Katherine P. Nelson
UNITED STATES MAGISTRATE JUDGE
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