Opinion
NO. CIV. S-08-2737 LKK/DAD.
June 2, 2009
ORDER
The court is in receipt of a document filed by plaintiffs on May 13, 2009 entitled "Identification of Doe Defendants." Plaintiffs have not filed nor moved to file an amended complaint naming those defendants.
The Federal Rules of Civil Procedure include no provision permitting the use of fictitious defendants. McMillan v. Department of Interior, 907 F.Supp. 322, 328 (D. Nev. 1995),aff'd, 87 F.3d 1320 (9th Cir. 1996), cert. denied, 519 U.S. 1132, 117 S.Ct. 995, 136 L.Ed.2d 875 (1997); see also Fifty Associates v. Prudential Ins. Co., 446 F.2d 1187, 1191 (9th Cir. 1970) ("Doe" practice not advisable in federal courts, as they are courts of limited jurisdiction). As a general rule, the use of John Doe to identify a defendant is not favored. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980).
Once the defendant's true identity is known, he must "substitute the true name of this defendant and effect service at the earliest opportunity." Plumb v. Prinslow, 847 F. Supp. 1509, 1523 (D. Ore. 1994). Substitution of Doe defendants and questions of relation back are resolved through Rule 15, Fifty Associates, 446 F.2d at 1191, except where the case was removed from state court, in which case state relation-back rules apply. Lindley v. Gen. Elec. Co., 780 F.2d 797 (9th Cir. 1986). Under California's statute regarding fictitiously named defendants, the pleading must be amended upon discovery of the defendant's actual identity. Cal. Code Civ. Proc. § 474.
Consequently, under either the federal or state rules, plaintiffs must amend their pleadings to reflect the identity the Doe defendants. A separate statement of identification of the defendants will not suffice. Accordingly, the court ORDERS as follows:
1. Plaintiffs SHALL file and serve a motion to amend their complaint not later than fifteen (15) days from the date of this order. The motion shall be noticed to be heard on August 3, 2009 at 10:00 AM in Courtroom 4. The motion shall be accompanied by an affidavit justifying the addition of the new defendants.
2. Defendants' opposition or statement of non-opposition SHALL be filed and served not later than June 29, 2009.
3. Plaintiffs' reply, if any, SHALL be filed an served not later than July 7, 2009.
4. Plaintiffs' moving brief and defendants' opposition SHALL not exceed twenty-five pages. Plaintiffs' reply, if any, shall not exceed fifteen pages. The parties SHALL e-mail a Word or WordPerfect version of their briefs to lkk-pleadings@caed.uscourts.gov.
IT IS SO ORDERED.