Andrews et al v. Autoliv Japan, Ltd.

Filing 274

OPINION AND ORDER granting Defendant Autoliv Japan, Ltd.s Motion for Summary Judgment #224 and dismissing Defendants John Does 1-5. This action is dismissed. Signed by Judge William S. Duffey, Jr on 1/10/17. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JAMIE LEE ANDREWS, as
surviving spouse of Micah Lee
Andrews, Deceased, and JAMIE
LEE ANDREWS, as Administrator
of the Estate of Micah Lee Andrews,
Deceased,
Plaintiff,
v.

1:14-cv-3432-WSD

AUTOLIV JAPAN, LTD and JOHN
DOES 1-5,
Defendants.

OPINION AND ORDER
This matter is before the Court on Defendant Autoliv Japan,
Ltd.’s (“Autoliv”) Motion for Summary Judgment [224].
I.

BACKGROUND
A.

Facts
1.

Background

This product liability action arises from the April 12, 2013, death of Micah
Lee Andrews. Mr. Andrews died when his 2005 Mazda3 veered off Interstate 575
and collided with three trees. Plaintiff Jamie Lee Andrews (“Plaintiff”) contends

Autoliv’s driver’s seatbelt assembly (“Seatbelt Assembly”) design should have
incorporated one of two alternate designs: (1) a torsion bar with a higher
deployment threshold, or (2) a “stop” feature. Plaintiff contends Autoliv’s failure
to incorporate these designs into the Seatbelt Assembly render the Restraint
System1 defective.
2.

The Car Accident

On April 12, 2013, Mr. Andrews was involved in a single-car accident while
traveling on I-575 in his 2005 Mazda3. (Autoliv’s Statement of Undisputed
Material Facts [224.2] (“DSUMF”) ¶ 1; Pl.’s Resp. [247.1] ¶ 1). William Kemp, a
witness to the accident, testified that he was driving in the right lane when he saw
Mr. Andrews’ vehicle approaching him in his rearview mirror. (DSUMF ¶ 2; Pl.’s
Resp. ¶ 2). Mr. Kemp testified that he believes the speed limit was 65 miles per
hour on the interstate. (Dep. Of William J. Kemp, II [229] (“Kemp Dep.”) at
13:17-18). Because he “generally drive[s] around the speed limit, Mr. Kemp
believes that, when he first saw Mr. Andrews’ car in his rearview mirror, he was
driving around the speed limit. (Id. at 13:15-23). Mr. Kemp testified that he
slowed down as Mr. Andrews passed him. (Id. at 65:20-25). He stated that
1

The supplemental airbag system (“SAS”), drivers side airbag module (“DAB
Module”), and the Seatbelt Assembly, in addition to other components, constitute
the occupant restraint system (“Restraint System”) of the 2005 Mazda3.

2

Mr. Andrews’ car then left the highway onto a steep embankment, and that it
appeared that Mr. Andrews’ vehicle “left the ground” as it exited the highway. (Id.
at 17:10-25).
Mr. Andrews’ car struck a cluster of trees. (Pl.’s Statement of Additional
Facts [247.1] (“PSAF”) ¶ 68; Autoliv’s Resp. [259.2] ¶ 68). Two experts, Gregory
Stephens and G. Bryant Buchner, opined on the speed at which Mr. Andrews’ car
was traveling at the time it hit the trees. Mr. Buchner opined the car was traveling
around 35 miles per hour, and Mr. Stephens opined that the car was travelling in
the low-to-mid 40s. (See DSUMF ¶ 8; PSAF ¶ 77; [224.3] at 26). The driver’s
side airbag in Mr. Andrews’ vehicle did not deploy during the accident. (DSUMF
¶ 9; Pl.’s Resp. ¶ 9). Mr. Andrews’ head slammed into the steering wheel, (see
PSAF ¶ 73), and he died from injuries he sustained in the collision. (DSUMF ¶ 10;
Pl.’s Resp. ¶ 10). Mr. Andrews was wearing his seatbelt properly at the time of the
accident. (See PASF ¶¶ 87, 88; Autoliv’s Resp. ¶¶ 87, 88).
3.

Restraint System

The 2005 Mazda3 was part of Mazda’s J48C program. (DSUMF ¶ 11; Pl.’s
Resp. ¶ 11). The vehicle platform for the J48C program was jointly engineered by
Mazda, Ford, and Volvo. (DSUMF ¶ 12; Pl.’s Resp. ¶ 12). The Restraint System
comprises multiple parts, including the DAB Module and the Seatbelt Assembly.

3

(DSUMF ¶ 13; Pl.’s Resp. ¶ 13). Autoliv supplied the DAB Module and Seatbelt
Assembly.2
The crux of the parties’ dispute is whether Autoliv designed the Seatbelt
Assembly for the 2005 Mazda3. (See DSUMF ¶ 19; Pl.’s Resp. ¶ 19). Autoliv
contends Mazda made decisions regarding the design of the Restraint System, and
Plaintiff contends that, while some decisions were made by Mazda, Autoliv
manufactured and was heavily involved in the design of the seatbelt. (DSUMF
¶¶ 19, 20; Pl.’s Resp. ¶¶ 19, 20). Plaintiff contends that email communications
between Autoliv and Mazda show that Autoliv analyzed computer simulations of
the seatbelt’s performance in frontal crashes, that Mazda asked Autoliv to look into
“countermeasures” to address that the dummy’s head was slamming into the
steering wheel, and that Autoliv was responsible for analyzing the sled testing that
2

The DAB Module is one component of the airbag system, which also
includes the passenger airbag module, the SAS unit, the upfront impact sensor
(“UFS”), the wiring harness, a clock-spring assembly, and driver seat track
position sensor, the passenger seat weight sensors, buckle sensors, and warning
lamps. (DSUMF ¶ 14; Pl.’s Resp. ¶ 14). The Seatbelt Assembly also has
numerous parts. (DSUMF ¶ 15; Pl.’s Resp. ¶ 15). Other components in the
Restraint System include the vehicle’s structure, its seat backs, and the steering
wheel. No one component in the Restraint System works in isolation. The airbag
system and the Seatbelt Assembly are designed to work together along with all of
the other components of the Restraint System, though the seatbelt is meant to
provide primary restraint, and the airbag is meant to provide supplemental
restraint. (DSUMF ¶ 17; Pl.’s Resp. ¶ 17).

4

Mazda conducted. (Pl.’s Resp. ¶ 21). The Court describes the evidence in detail
below.
B.

Procedural History

On September 18, 2014, Plaintiff filed this product liability action in the
State Court of Fulton County, Georgia.3 On October 24, 2014, this action was
removed to federal court. On March 18, 2015, Plaintiff filed her Second Amended
Complaint [90] (“SAC”). The SAC contains the following state-law claims against
Autoliv: Strict Product Liability under O.C.G.A. § 51-1-11 based on design
defects (Count III); negligence (Count IV); and punitive damages under O.C.G.A.
§ 51-12-5.1 (Count X).
On March 30, 2016, Autoliv filed its Motion for Summary Judgment.
Autoliv argues that, because it was not actively involved in designing the Seatbelt
Assembly, it cannot be held liable for the allegedly defective design of the Seatbelt
Assembly. On April 25, 2016, Plaintiff filed her opposition to Autoliv’s Motion
[247]. Plaintiff argues that the load-limiting device in the seatbelt retractor was
defectively designed, and that this defective design proximately caused

3

Plaintiff brought claims against Mazda Motor Corporation, Mazda Motor of
America, Inc., multiple Autoliv-affiliated entities, Robert Bosch LLC and Robert
Bosch North America Corporation. All defendants other than Autoliv and John
Does 1-5 have been dismissed from this action.

5

Mr. Andrews’ death. Plaintiff argues that, under Georgia law, both a manufacturer
and a designer can be held strictly liable, and that Autoliv is liable under both
theories.
II.

DISCUSSION
A.

Legal Standard

Summary judgment is appropriate where the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter
of law. See Fed. R. Civ. P. 56. The party seeking summary judgment bears the
burden of demonstrating the absence of a genuine dispute as to any material fact.
Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1246 (11th Cir. 1999). Once the
moving party has met this burden, the nonmoving party must demonstrate that
summary judgment is inappropriate by designating specific facts showing a
genuine issue for trial. Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282
(11th Cir. 1999). The nonmoving party “need not present evidence in a form
necessary for admission at trial; however, he may not merely rest on his
pleadings.” Id.
“At the summary judgment stage, facts must be viewed in the light most
favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those

6

facts.” Scott v. Harris, 550 U.S. 372, 380 (2007). Where the record tells two
different stories, one blatantly contradicted by the evidence, the Court is not
required to adopt that version of the facts when ruling on summary judgment. Id.
“[C]redibility determinations, the weighing of evidence, and the drawing of
inferences from the facts are the function of the jury . . . .” Graham, 193 F.3d at
1282. “If the record presents factual issues, the court must not decide them; it must
deny the motion and proceed to trial.” Herzog, 193 F.3d at 1246. The party
opposing summary judgment “‘must do more than simply show that there is some
metaphysical doubt as to the material facts . . . . Where the record taken as a whole
could not lead a rational trier of fact to find for the nonmoving party, there is no
genuine issue for trial.’” Scott, 550 U.S. at 380 (quoting Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). A party is entitled
to summary judgment if “the facts and inferences point overwhelmingly in favor of
the moving party, such that reasonable people could not arrive at a contrary
verdict.” Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir.
2002) (quotations omitted).
B.

Analysis

Under Georgia law, there are three general categories of product defects:
(1) manufacturing defects, (2) design defects, and (3) warning defects.

7

Banks v. ICI Americas, Inc., 450 S.E.2d 671, 672 (Ga. 1994). Plaintiff contends
Autoliv is liable for the negligent design of certain components in the 2005
Mazda3. Georgia law provides for strict liability against a “manufacturer” of a
negligently-designed product. The statute provides:
The manufacturer of any personal property sold as new property
directly or through a dealer or any other person shall be liable in tort,
irrespective of privity, to any natural person who may use, consume,
or reasonably be affected by the property and who suffers injury to his
person or property because the property when sold by the
manufacturer was not merchantable and reasonably suited to the use
intended, and its condition when sold is the proximate cause of the
injury sustained.
O.C.G.A. § 51-1-11. Georgia law also provides that “a product seller is not a
manufacturer as provided in Code Section 51-1-11 and is not liable as such.”
O.C.G.A. § 51-1-11.1(b). A product seller is defined as:
[A] person who, in the course of a business conducted for the purpose
leases or sells and distributes; installs; prepares; blends; packages;
labels; markets; or assembles pursuant to a manufacturer's plan,
intention, design, specifications, or formulation; or repairs; maintains;
or otherwise is involved in placing a product in the stream of
commerce. This definition does not include a manufacturer which,
because of certain activities, may additionally be included within all
or a portion of the definition of a product seller.
O.C.G.A § 51-1-11.1(a). The Georgia General Assembly enacted Section
51-1-11.1 to “overrule those cases that had created a broad category of entities that
had no real role in the creation of products.” Alltrade, Inc. v. McDonald, 445

8

S.E.2d 856, 858 (Ga. Ct. App. 1994) (quoting Freeman v. United Cities Propane
Gas of Ga., 807 F. Supp. 1533 (M.D. Ga. 1992)). Based on these statutory
provisions, Georgia courts have held that, under Section 51-1-11, “strict liability
applies only to those actively involved in the design, specifications, or formulation
of a defective final product or of a defective component part which failed during
use of a product and caused injury.” Davenport v. Cummins Alabama, Inc., 644
S.E.2d 503, 507 (Ga. Ct. App. 2007); see also Carolina Tobacco Co. v. Baker, 670
S.E.2d 811, 815 (Ga. Ct. App. 2008) (noting that Georgia product liability laws
contain complex distinctions between a “manufacturer” subject to strict liability
and a “product seller” who is not, and that the concept of “manufacturer” has been
refined by case law to mean one who is “actively involved in the design,
specifications, or formulation of a defective final product or of a defective
component part which failed during use of a product and caused injury.” (quoting
Davenport, 644 S.E.2d at 507)).
The Georgia Court of Appeals’ decision in Davenport is instructive. In
Davenport, the plaintiff suffered injuries when the tree chipper he was operating
caught fire. 644 S.E.2d at 504. The plaintiff asserted product liability claims
against, among other entities: (i) Precision Husky, the designer and assembler of
the chipper; and (ii) Cummins Alabama, the company that sold Precision Husky

9

the engine it installed in the chipper. Id. at 505. Cummins Alabama
“manufactured” the engine, worked with Precision Husky to determine whether a
particular engine would supply the required horsepower, and performed engine
installation reviews to ensure the engine was installed properly and to identify
issues that might affect the engine’s reliability, durability, or performance to avoid
damage or premature wear to the engine. Id. at 505-506. Due to the use of a new
clutch system, Cummins Alabama instructed Precision Husky to relocate the
chipper’s hydraulic pumps to the rear of the engine, and Precision Husky did so.
Id. at 507. Based on these facts, the Georgia Court of Appeals found that
Cummins Alabama did not actively participate in the conception, design, or
specification of the chipper, and thus was not strictly liable as a manufacturer. The
court noted:
Cummins Alabama’s only input into the design was limited to saying,
in essence, that the particular engine would perform adequately in a
chipper with the intended hydraulic load only if the hydraulic system
was connected to the main drive shaft at the rear of the engine and not
to a front or pad-mounted hydraulic drive at the front of the engine.
Id. at 508. The court distinguished its holding from the holding in Buchan
v. Lawrence Metal Prods., 607 S.E.2d 153 (Ga. Ct. App. 2004), in which the court

10

denied summary judgment where there was evidence that a seller chose, purchased,
and assembled units of a crowd control system according to its own design.4
The allegedly defective component in this case is the Seatbelt Assembly.5
With respect to this component, the evidence shows that Autoliv supplied a
Seatbelt Assembly that met Mazda’s detailed specifications. (DSUMF ¶ 67; Pl.’s
Resp. ¶ 67; Hirobayashi Decl. ¶ 3; Prentkowski Dep. at 60:13-22; Van Arsdell
Dep. at 196:18-197:1). Autoliv provided Mazda with several samples of seatbelt
components that included torsion bars with different deployment thresholds, and
4

Plaintiff attempts to distinguish Davenport, arguing that Cummins Alabama
was a component supplier that did not manufacture the allegedly defective product.
Plaintiff argues that, unlike in Davenport, it is undisputed that Autoliv
“manufactured” the Seatbelt Assembly. Plaintiff argues that Georgia law provides
that a manufacturer or product designer may be held strictly liable, and thus
Autoliv may be liable as either a manufacturer or designer. Plaintiff
misunderstands Georgia law and the definition of “manufacturer” under O.C.G.A.
§ 51-1-11. As explained above, the Georgia General Assembly enacted Section
51-1-11.1 to provide a specific definition of “product seller” to “overrule those
cases that had created a broad category of entities” that qualified as manufacturers.
See Alltrade, 445 S.E.2d at 858. Recognizing the complex distinctions between a
“manufacturer” subject to strict liability and a “product seller” that is not, the
Georgia Court of Appeals in Davenport limited liability under Section 51-1-11 to
those entities “actively involved in . . . design, specifications, or formulation . . . .”
644 S.E.2d at 507; see also Carolina Tobacco, 670 S.E.2d at 815. This is the
standard that governs liability in design defect cases. See Bailey v. Cottrell, Inc.,
721 S.E.2d 571, 573 (Ga. Ct. App. 2011) (citing the Davenport “actively involved”
standard as the standard governing liability in design defect cases).
5
Plaintiff does not appear to contend that the DAB Module contains a design
defect. (See [247] at 9-10).

11

Mazda performed testing and ultimately decided to utilize a load limiting retractor
with a torsion bar with a deployment threshold of 2 ± .5 kN. (Prentkowski Dep. at
131:4-132:13; Van Arsdell Dep. at 197:24-198:14; Hirobayashi Decl. ¶ 8; Hinger
Dep. at 293:17-294:14). Put another way, as Mazda’s expert testified, Mazda
“worked together with [Autoliv] to ensure the appropriateness of th[e] [seatbelt]
design for the vehicle, and then Mazda ultimately decide[d] that it me[t] their
specifications for incorporation into the vehicle.” (Hinger Dep. [233] at 218:9-16).
To rebut this evidence, Plaintiff presents the following evidence it contends
supports that Autoliv helped design the Seatbelt Assembly:
1)

The engineering specification for the Mazda3 seatbelt states that
Autoliv “designed,” “approved,” and “checked the seatbelt
specification,” (PASF ¶ 129);

2)

Autoliv, in its pleadings and discovery responses, states that it “acted
reasonably and in good faith in the design, manufacture, and warnings
related to its products,” and that it “complied with” the scientific,
technical, and commercial-feasibility knowledge available when “the
product at issue was handled with respect to its design, manufacture,
and all warnings, instructions, and labels,” (PASF ¶ 130);

3)

Autoliv’s corporate witness stated that Autoliv and Mazda negotiated
the detailed specification for the seatbelt, and as a result, Autoliv
“actually create[d] the—the Mazda drawings for the program,” (PSAF
¶ 131);

4)

On January 16, 2002, Autoliv employee Manabu Touno wrote to
Mazda that he had analyzed the computer modeling of the Mazda3’s
crash performance in an offset deformable barrier test, (PSAF ¶ 132);

12

5)

Autoliv was responsible for analyzing the sled testing that Mazda
conducted, (PSAF ¶ 135);

6)

Autoliv considered changing its designs for the Mazda3 to a “higher
load level, implement digressive load limiters or retractor
pretensioners instead of R27LL,” (PSAF ¶ 138); and

7)

Mazda asked Autoliv to look into “countermeasures” to address the
fact that the dummy’s head was slamming into the steering wheel,
(PSAF ¶ 134).”

The evidence Plaintiff presents largely does not support Plaintiff’s argument
or is taken out of context. As to the first two categories, boilerplate statements
regarding Autoliv’s “design” of the seatbelt do not support that Autoliv was
actively engaged in determining the specifications of the seatbelt at issue in this
litigation. With respect to the third category, Plaintiff takes the testimony of
Mr. Prentkowski out of context. With the benefit of context, it is clear that
Mr. Prentkowski referred to Autoliv’s negotiation with Mazda regarding how
changes to specification drawings would be recorded. (Prentkowski Dep. [237] at
79:18-81:19) Mr. Prentkowski further testified:
I specifically asked “Did Mazda ask Autoliv Japan for any input on
the system-level design specification?” “Not on the seat”—the
Autoliv Japan response was, “Not on the seat belt systems . . . .”
(Id. at 80:21-25). As to the fourth category, that Autoliv analyzed computer
modeling of the Mazda3’s crash performance does not support that it was actively
involved in the design or specification of the Seatbelt Assembly. With respect to
13

the fifth category, the document upon which Plaintiff relies states in full that
“Mazda formally informed [Autoliv] that the sled testing would be conducted by
Mazda and Autoliv’s role was to analyze and evaluate data only.” (Autoliv’s Resp.
¶ 135). Again, that Autoliv analyzed and evaluated data does not show that
Autoliv actively participated in the design of the Seatbelt Assembly. The sixth
category misstates the document upon which Plaintiff relies. The document states:
“Mazda have [sic] difficulties to achieve their US NCAP targest with the current
restraints system. They intend to change to higher load level, implement
digressive load limiters or retractor pretensioners instead of R27LL. Timing and
costs were submitted[.] Mazda still have not come to a decision.” (Autoliv’s
Resp. ¶ 114). This document supports that Mazda, not Autoliv, designed and set
forth the specifications for the Seatbelt Assembly.
Finally, the seventh category of evidence relies upon a January 8, 2002,
email, from a Mazda employee to an Autoliv employee. The Mazda employee
stated he was writing to “send along” Mazda3 forecast modeling data and
“countermeasure proposals.” ([247.3] at 161). Mazda noted that the modeling
tests showed “bottoming of the head . . . on the STG wheel.” (Id.). Mazda
outlined seven proposed countermeasures, including “Increase power of
pretensioner,” and “Switch to dual pretensioner.” (Id.). Mazda asked Autoliv to

14

“look into” the countermeasure proposals. (Id.). This email does not show that
Autoliv was actively involved in the design of the Seatbelt Assembly. Importantly,
Mazda, not Autoliv, provided the countermeasures Autoliv was to “look into,” and
Plaintiff does not offer any evidence to show that Autoliv’s analysis of the
countermeasures resulted in Autoliv suggesting or enacting any changes to the
Seatbelt Assembly design.
In sum, viewing the evidence in the light most favorable to Plaintiff,
Plaintiff offers only bare speculation to support its argument that Autoliv was
actively involved in the design of the Seatbelt Assembly. The evidence supports
only that Autoliv’s role was limited to choosing the components appropriate for the
Mazda3 based on Mazda’s specifications, while Mazda made the ultimate decision
regarding the types of components to incorporate. This is the type of involvement
the Davenport court found insufficient to create a triable issue with respect to
liability under O.C.G.A. § 51-1-11. Cf. Villegas v. Deere & Co., 135 F. App’x
279, 280-81 (11th Cir. 2005) (evidence that component supplier’s engineers
designed and produced the final products, provided design drawings, gave final
approval of the design plans, and provided specifications for redesigns was
sufficient to create triable issue whether supplier was liable for negligent design).

15

Accordingly, Autoliv’s Motion for Summary Judgment is granted on Plaintiff’s
design defect claim under O.C.G.A. § 51-1-11.
As to Plaintiff’s negligence claim, under Georgia law, “the claim of
negligent design defect has, in effect, merged into the statutory claim of design
defect.” Ga. Products Liability Law § 2:1 (4th ed.); see also Perez-Hernandez
v. Mitsubishi Motors Corp., No. 1:03-cv-1269-WSD, 2005 WL 6032881, at *2 n.3
(N.D. Ga. 2005) (“‘In the subject product-design case, only semantics
distinguishes the cause of action for negligence and a cause of action pursuant to
O.C.G.A. § 51-1-11.’” (quoting Coast Catamaran Corp. v. Mann, 321 S.E.2d 353,
357 (Ga. Ct. App. 1984), aff’d 326 S.E.2d 436 (Ga. 1985))); Ogletree v. Navistar
Int’l Transp. Corp., 522 S.E.2d 467, 469 (Ga. 1999) (design defect and negligence
claims “cannot be treated as distinct theories of recovery”). Thus, because
Plaintiff’s statutory design defect claim fails, her negligence claim also fails.
Because the Court finds Autoliv is entitled to summary judgment on Plaintiff’s
negligence and design defect claims, Plaintiff’s claim for punitive damages under
O.C.G.A. § 51-12-5.1 also fails. See Morris v. Pugmire Lincoln Mercury, Inc.,
641 S.E.2d 222, 241 (Ga. Ct. App. 2007) (“[P]unitive damages under O.C.G.A.

16

§ 51-12-5.1 cannot be awarded where no actual damages are awarded.”). Autoliv’s
Motion for Summary Judgment is granted.6, 7
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Defendant Autoliv Japan, Ltd.’s Motion

for Summary Judgment [224] is GRANTED.
IT IS FURTHER ORDERED that Defendants John Does 1-5 are
DISMISSED.

6

In her brief in opposition to Autoliv’s Motion, Plaintiff, apparently for the
first time, argues that Autoliv failed to warn the public that its seatbelts were
dangerously weak. Plaintiff does not include a failure to warn claim in her Second
Amended Complaint. Even if Plaintiff included such a claim, the claim would be
required to be dismissed. In product liability cases premised on a failure to warn,
“Georgia law insists that a plaintiff show that the defendant had a duty to warn,
that the defendant breached that duty, and that the breach proximately caused the
plaintiff’s injury.” Dietz v. Smithkline Beecham Corp., 598 F.3d 812, 815 (11th
Cir. 2010) (applying Georgia law). Plaintiff does not present any evidence to show
that Autoliv’s failure to warn the public of its “dangerously weak” seatbelt caused
Mr. Andrews’ death.
7
Plaintiff’s Second Amended Complaint also names as defendants John Does
1-5 (the “John Doe Defendants”), and describes them as “additional suppliers of
defective components of the defective occupant restraint system, who are currently
unknown.” (Second Am. Compl. ¶ 26). Fictitious party pleading is not permitted
in federal court, unless plaintiff’s description of the fictitious defendants is so
specific as to be, at the very worst, surplusage. Richardson v. Johnson, 598 F.3d
734, 738 (11th Cir. 2010). Plaintiff has not provided any evidence regarding the
identities or actions of the John Doe Defendants, and the John Doe Defendants are
required to be dismissed from this action.

17

IT IS FURTHER ORDERED that this action is DISMISSED.

SO ORDERED this 10th day of January, 2017.

18