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Buttram v. City of Bessemer

United States District Court, N.D. Alabama, Southern Division

January 17, 2018

CITY OF BESSEMER, a municipal corporation, and EBBONI PERDUE, in her official and individual capacity, Defendants.



         This civil action was originally filed in the Circuit Court of Jefferson County, Alabama by the Plaintiff, Nancy Buttram, against the City of Bessemer (the “City”), and Ebboni Perdue, a police officer with the City of Bessemer police department. The Complaint also names four “fictitious defendants.” The Plaintiff sets out the following counts against all Defendants: negligence (Count One); negligent supervision, hiring, and maintenance (Count Two); excessive force (Count Three), and a count entitled “Violations of 42 U.S.C. § 1983[:] False Arrest[, ] False Imprisonment [, ] & Unlawful Detention” (Count Four). All counts arise out of the following facts, taken directly from the Complaint:

On or about April 5, 2015 at the Beer Garden Facility in Bessemer, Alabama, the Plaintiff was detained by Defendant Perdue in a response to a call made from The Beer Garden Facility. That upon Defendant Perdue detaining the Plaintiff, Defendant Perdue grabbed the Plaintiff by the back of her head, slammed Plaintiff into the trunk of her vehicle and hit the Plaintiff in the back of her head with a clipboard. Moreover, after Plaintiff was detained, Plaintiff was not secured in the patrol car unit in which she was traveling in as she was being transported to the Bessemer City Jail. As a result of Plaintiff being unsecured, Defendant Perdue on multiple occasion while traveling slammed on her brakes causing the Plaintiff to slam her head against the police vehicle glass shield. After said arrival to the Bessemer Jail, Defendant Perdue shoved the Plaintiff thereby causing her to fall and hit her head against an object inside of the jail cell.

(Doc. 1-2 at 3, ¶7).

         The case was removed to this Court on May 22, 2017. (Doc. 1). After removal, Office Purdue filed an Answer to Counts One and Three. (Doc. 8). Thereafter, both Defendants filed a Motion To Dismiss, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, alleging that the Complaint failed to state a claim upon which relief may be granted. (Doc. 5). That Motion is before the Court now. In it, Officer Price seeks dismissal of Counts Two and Four, and the City seeks dismissal of all Counts. Also before the Court is the Defendants' Motion To Strike the fictitious parties. (Doc. 7). For the reasons stated herein, the Motion To Strike will be GRANTED and the Motion To Dismiss will be GRANTED in part and DENIED in part.


         The Eleventh Circuit has stated:

As a general matter, fictitious-party pleading is not permitted in federal court. See, e.g., New v. Sports & Recreation, Inc., 114 F.3d 1092, 1094 n. 1 (11th Cir.1997). We have created a limited exception to this rule when the plaintiff's description of the defendant is so specific as to be “at the very worst, surplusage.” Dean v. Barber, 951 F.2d 1210, 1215-16 (11th Cir.1992).

Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010). In the caption of the Complaint, the “fictitious defendants” are described as follows:

A, whether singular or plural, being the correct legal name of the entity known only to the Plaintiffs [sic] as the City of Bessemer; B, whether singular or plural, being any officer in the police vehicle who or assisted in unlawful detention and arrest of the Plaintiff which made the basis of this lawsuit, or any component part thereof; C, whether singular or plural, that individual, entity or entities who negligence, wantonness or other wrongful conduct caused or contributed to cause the injuries and damages complained herein; D, whether singular or plural, being that entity or individual who are or which is or are successor in interest of any of the Defendants name or described herein[.]

(Doc. 1-2 at 1). In the body of the Complaint, they are described as follows:

Fictitious Defendant A, B, C, and D are those individuals, entities, corporations or partnerships who are not known at this time, but will be added by amendment when ascertained including one of the following:
a. Parties responsible in some manner for the events and happenings herein referred to that caused injuries and damages proximately thereby to the Plaintiff as herein alleged;
b. Parties that are the agents, servants, employees, employers, and/or contractors of the Defendant, each of them acting within the course and scope of their agency, employment or contract[.]

(Doc. 1-2 at 3, ¶4). The quoted passages do not describe specific individuals or entities who are responsible for the alleges injuries to the Plaintiff. The fictitious defendants will be STRICKEN.


         A. Standard

         Generally, the Federal Rules of Civil Procedure require only that the complaint provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). However, to survive a motion to dismiss brought under Rule 12(b)(6), a complaint must “state a claim to relief that is plausible on ...

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