June 13, 2017 Practice Points

Resolving Fictitious Party Pleading after Removal

By Stephen C. Rogers

"I should be extremely sorry to find that in a fictitious proceeding, instituted for the more easy attaining of justice, different rules were to obtain in the different Courts."

—Lord Kenyon, C.J., Goodright v. Rich (1797), 7 T.R. 334

While federal courts generally do not permit fictitious party pleading, Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010)—a principle of law Lord Chief Justice Kenyon would no doubt have approved—the wary litigant will recognize that removing an action from state court complicates this general prohibition. First, some good news for any defendant contemplating removal to federal court: certain hurdles to removal do not apply to fictitious parties. Federal courts will not consider the citizenship of any fictitious party when analyzing the parties' citizenship in any action removed on the basis of diversity of citizenship. 28 U.S.C. § 1441(b)(1). And, as one might suspect, a removing defendant need not obtain a fictitious defendant's consent before removing the action. Balazik v. County of Dauphin, 44 F.3d 209, 213 & n.4 (3d Cir. 1995).

For any state court action that may be removed, plaintiff's counsel should recognize that the specificity with which the complaint describes fictitious defendants will determine how the federal court treats the pleading. If removal is likely, plaintiff's counsel should include unidentified defendants as fictitious parties in the state court complaint and describe them with as much detail as possible. Federal courts may permit fictitious pleading if the complaint sufficiently describes a defendant so that its name would be mere "surplusage" and could be identified readily through discovery. Dean v. Barber, 951 F.2d 1210, 1215–16 & n.6 (11th Cir. 1992). If a newly-identified defendant would destroy diversity of citizenship, remember that the proposed amended complaint likely will fall subject to scrutiny under the exacting standard of 28 U.S.C. § 1447(e) rather than the more permissive standard of Rule 15. Hensgens v. Deere & Co., 833 F.2d 1179, 1181–82 (5th Cir. 1987). Some federal courts have considered whether the state court complaint included the non-diverse defendant as a fictitious defendant as a relevant factor under § 1447(e) in weighing the plaintiff's motive for substituting the defendant after removal. Smith v. Catosouth, LLC, 432 F. Supp. 2d 679, 681 (S.D. Miss. 2006).

Both before and after removal, plaintiff's counsel should use diligence in identifying fictitious defendants. If a federal court tolerates fictitious party pleading, it will likely do so for only a short period of time to allow limited discovery to identify a fictitious defendant. Gillespie v. Civiletti, 629 F.2d 637, 642–43 (9th Cir. 1980); Harris v. Beaulieu Group, LLC, 394 F. Supp. 2d 1348, 1356–57 (M.D. Ala. 2005). Moreover, a plaintiff may lose certain claims if it does not diligently seek to discover the identity of a fictitious defendant. When conducting a § 1447(e) analysis of a proposed amended complaint adding a non-diverse defendant, a federal court likely will consider whether the plaintiff diligently sought to discover the defendant's identity. Kelley v. Vt. Mut. Ins. Co., 407 F. Supp. 2d 301, 305–08 (D. Mass. 2005).

The interplay between a state's rules on relation back and fictitious party pleading provides another incentive to a plaintiff in an action removed on the basis of diversity of citizenship to diligently identify a fictitious defendant. In such actions, federal courts typically will look to the state's relation-back rules to determine if a later-added claim was timely under the relevant statute of limitations. Saxton v. ACF Indus., Inc., 254 F.3d 959, 963 (11th Cir. 2001). Moreover, the relation-back rules for a number of states expressly permit plaintiffs to utilize fictitious party pleading to relate newly-added claims back to the date of the initial pleading. Id. at 964–66 (considering Alabama's rules); DeRienzo v. Harvard Indus., Inc., 357 F.3d 348, 352–54 (3d Cir. 2004) (analyzing New Jersey's rules). However, some states will only allow relation back if a plaintiff diligently sought to discover the defendant's identity. Saxton, 254 F.3d at 965; DeRienzo, 357 F.3d at 353–54. Thus, a plaintiff should diligently identify fictitious defendants to preserve claims that might otherwise be untimely.

The preceding advice for plaintiffs provides direct corollaries for defendants. A defendant should remove a state court action as early in the litigation as possible. A defendant also should move early for dismissal of fictitious defendants. These aggressive steps will shorten the window of time for a plaintiff to properly identify a fictitious defendant that would destroy diversity of citizenship, prolong the litigation or possibly create additional liability for the primary defendant. Shrewd defense counsel will take advantage of federal courts' bias against fictitious pleading to minimize exposure for the client.

Practice Points:

  • A complaint should describe fictitious parties with as much detail as possible if removal to federal court is likely.
  • Plaintiff's counsel should quickly identify fictitious defendants.
  • Attorneys should understand the interplay between the relevant rules on relation back and fictitious party pleading.
  • Defense counsel should seek early removal to federal court and dismissal of fictitious defendants to preserve diversity of citizenship and limit the plaintiff's claims.

Stephen C. Rogers is an associate at Maynard, Cooper & Gale, P.C. in Huntsville, Alabama.


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