Downard v. Dollar Tree Stores, Inc.

Filing 17

MEMORANDUM AND ORDER......IT IS HEREBY ORDERED that plaintiff shall Plaintiff shall promptly seek to ascertain the identity of the fictitious party defendants through discovery and move for leave to amend her complaint to identify these pers ons by March 14, 2016. Failure to comply timely with this order will result in dismissal without prejudice of plaintiff's claims against any unserved defendants. Response to Court due by 3/14/2016.. Signed by District Judge Charles A. Shaw on 1/20/2016. (MRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JAMIE DOWNARD,
Plaintiff,
v.
DOLLAR TREE STORES, INC., et al.,
Defendants.

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No. 4:15-CV-1365 CAS

MEMORANDUM AND ORDER
This removed diversity matter is before the Court on its own motion. The Court notes that
plaintiff has sued two fictitious parties. In general, it is impermissible to name fictitious parties as
defendants. Phelps v. U.S. Federal Government, 15 F.3d 735 (8th Cir.), cert. denied, 511 U.S. 1114
(1994). “[A]n action may proceed against a party whose name is unknown if the complaint makes
allegations specific enough to permit the identity of the party to be ascertained after reasonable
discovery.” Estate of Rosenberg by Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995) (quoting
Munz v. Parr, 758 F.2d 1254, 1257 (8th Cir. 1985)). “If discovery identifies other persons who
should be named as defendants, it will be simple enough for plaintiff to add them by amendment,
after properly securing leave of court.” Id. In such a case, rather then dismissing a claim, a court
should order the disclosure of the fictitious party’s identity by other defendants named and served,
or permit the plaintiff to identify the person through discovery. Munz, 758 F.2d at 1257.
In this case, the petition assert claims against a named defendant and also “John Doe 1” and
“John Doe 2.” The petition describes the Doe defendants as employees or agents of named
defendant Dollar Tree Stores, Inc. Pet. at 2, ¶ 2. The petition alleges that the Doe defendants were
negligent by failing to remove a slippery substance from the floor of a Dollar Tree Store, barricade

and prevent patrons from stepping on the substance, and warn of the existence of the substance. Pet.
at 3-4, ¶ 8. The Court finds the petition’s allegations against the Doe defendants are specific enough
to permit their identity to be ascertained after reasonable discovery. Plaintiff should promptly seek
leave of Court to amend her complaint after ascertaining the identity of the unknown defendants.
Accordingly,
IT IS HEREBY ORDERED that plaintiff shall Plaintiff shall promptly seek to ascertain
the identity of the fictitious party defendants through discovery and move for leave to amend her
complaint to identify these persons by March 14, 2016.
Failure to comply timely with this order will result in dismissal without prejudice of
plaintiff’s claims against any unserved defendants.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 20th day of January, 2016.

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