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.
- 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.