Opinion
CASE NO. 2:09-cv-193-MEF.
May 29, 2009
MEMORANDUM OPINION AND ORDER
This cause is before the Court on Defendant's Motion to Strike (Doc. # 18) filed on April 21, 2009. In his motion, the named defendant, Officer East ("East") moves to strike the fictitious defendant described in the Amended Complaint as "Officer A." In response, Plaintiff filed a Motion to Open Discovery (Doc. #25) on April 25, 2009 so that he could ascertain Officer A's identity. Also before the Court is Defendant's Motion to Dismiss (Doc. #15) filed on April 21, 2009, in which East contends that he is entitled to qualified immunity from Plaintiff's claims. In this Memorandum Opinion and Order, the Court will discuss Plaintiff's Motion to Open Discovery and Defendant's Motion to Strike.
Plaintiff's Motion to Open Discovery
In federal courts, qualified immunity is "an immunity from suit rather than a mere defense to liability." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis in original). The purpose of immunity is to "avoid subject[ing] government officials either to the costs of trial or to the burdens of broad-reaching discovery." Id. The Eleventh Circuit has also recognized the importance of preventing discovery in cases where a defendant asserts qualified immunity. See Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003) (stating that a defendant pleading qualified immunity is entitled to a stayed discovery until resolution of the defense).
In his motion, Plaintiff asks the Court for leave to conduct limited discovery to determine the identity of Officer A. Plaintiff acknowledges that fictitious party pleading is not allowed in federal court but argues that "Plaintiff has precisely described Officer A with all but his/her name and that name may be easily ascertained through limited discovery." (Doc. # 28, pg. 3). East contends that Plaintiff's motion is unsupported by Eleventh Circuit case law, which does not allow discovery until resolution of the defendant's qualified immunity defense. The Court agrees that Plaintiff may not conduct discovery even for the limited purpose of discovering Officer A's identity because East has asserted a qualified immunity defense. Consequently, he is entitled to a ruling on that assertion of immunity from suit prior to having to participate in discovery in this case. Therefore, Plaintiff's Motion to Open Discovery (Doc. # 25) is due to be DENIED.
Defendant's Motion to Strike
In Defendant's Motion to Strike, East moves to strike the fictitious defendant described in the Amended Complaint as "Officer A." There is no fictitious party practice in federal courts. See, e.g., Fed.R.Civ.P. 10(a); New v. Sports Recreation, Inc., 114 F.3d 1092, 1094 n. 1 (11th Cir. 1997); Harris v. Palm Harbor Homes, Inc., 198 F. Supp. 2d 1303, 1304 n. 6 (M.D. Ala. 2002); Edwards v. Alabama Dep't of Corr., 81 F. Supp. 2d 1242, 1257 (M.D. Ala. 2000). Therefore, Defendant's Motion to Strike (Doc. #18) is due to be GRANTED.
Conclusion
It is hereby
ORDERED that Defendant's Motion to Strike (Doc. # 18) is GRANTED and Plaintiff Motion to Open Discovery (Doc. #25) is DENIED.
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CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 486 U.S. 196 201 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. 890 F.2d 371 376 Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4
Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , , , , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) : The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , 69S.Ct. 1221, 1225-26, (1949); , , (11th Cir. 1989); , , , , , (1964). Rev.: 4/04 : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).