United States District Court, S.D. Alabama, Southern Division
CARLOS FERNANDO REIXACH MUREY, as Administrator for the Estate for Carlos Lens Fernandez a/k/a Carlos Lens, Plaintiff,
THE CITY OF CHICKASAW, et al., Defendants.
REPORT AND RECOMMENDATION
KATHERINE P. NELSON, UNITED STATES MAGISTRATE JUDGE.
action is before the Court on the Motion for Time to Conduct
Discovery to Determine Identities of Fictitious Parties or,
in the Alternative, to Remand (Doc. 8) filed by Plaintiff
Carlos Fernando Reixach Murey, (“Murey”). The
City of Chickasaw et. al., (“Defendants”) filed a
response in opposition (Doc. 11), and Murey filed a reply.
(Doc. 12). This matter is now ripe for consideration and has
been referred to the undersigned Magistrate Judge for entry
of a report and recommendation under 28 U.S.C. §
636(b)(1)(B)-(C) and Federal Rule of Civil Procedure 72(b).
Upon consideration, and for the reasons stated herein, the
undersigned RECOMMENDS that Murey's
Motion to Conduct Discovery to Determine Identities of
Fictitious Parties (Doc. 8) be DENIED as
moot and that Murey's Motion in the Alternative,
to Remand (Doc. 8) be DENIED.
26, 2018, Murey, as Personal Representative of the Estate of
Carlos Lens filed a complaint in the Circuit Court of Mobile
County. Among the other individually named defendants, Murey
listed eight fictitious party defendants. The Complaint
alleges Fourteenth Amendment violations and a state law cause
of action arising from the wrongful death of Carlos Lens.
(Doc. 2-1). On June 15, 2018, Defendants, City of Chickasaw,
Michael E. Reynolds (“Reynolds”) and Officer C.
Robinson (“Robinson”) removed the case to this
Court under 28 U.S.C. § 1331 and 1441(a). (Doc. 1). On
July 8, 2018, Murey filed the instant motion to conduct
discovery on the identities of fictitious parties, or
alternatively to remand this case. Defendants filed a
response on July 19, 2018. Murey filed his reply to the
response on July 30, 2018. The motion is now ripe for
Motion to Conduct Discovery
first moves the court for an extension of time in which to
conduct discovery into the identities of fictitious parties
named in the complaint. Plaintiff's complaint lists eight
fictitious parties A, B, C, D, E, F, G and H as “police
officers, police supervisors, jail employees, jail
supervisors, or other persons who were employed by, or acting
on behalf of, the City of Chickasaw on the date of Carlos
Lens' death and who actions or omissions contributed to
the death of Carlos Lens”. (Circuit Court Doc. 2).
Plaintiff makes no specific allegations as to the conduct of
any of the fictitious defendants. Moreover, in the Eleventh
Circuit, fictitious party pleading does not allow for a class
of fictitious parties to be plainly named, rather, the
fictitious party must be a real person whose identity is
unknown. See Quad Intern., Inc. v. Doe¸ 2013
WL 105268, *3 (S.D. Ala.).
general matter, fictitious party pleading is not permitted in
federal court. Richardson v. Johnson, 598 F.3d 734,
738 (11th Cir. 2010); however, the Eleventh Circuit has
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.”
Id. In Richardson v. Johnson¸ the plaintiff
identified a fictitious defendant as “John Doe (unknown
legal name), guard, Charlotte Correctional Institute”
in his complaint. The court held that the description in the
complaint was insufficient to identify the defendant among
the many guards employed at the correctional institute and
the district court properly dismissed this claim. Likewise in
the present action, Murey has not given the name of the
fictitious entities coupled with adequate description of some
kind which is sufficient to identify the person.
on the foregoing, the undersigned finds that the bare bones
description provided by the Plaintiff is insufficient to
establish the need to conduct discovery in order to uncover
the defendants' actual names. Accordingly, it is the
recommendation of the undersigned that the Plaintiff's
motion for an extension of time to conduct discovery be
DENIED as moot.
Motion to Remand
Plaintiff seeks to remand this matter to state court. As
grounds for the motion Plaintiff argues, in sum, that,
“[s]ince Rule 9 of the Alabama Rules of Civil Procedure
allows fictitious party pleading that would give Plaintiff
time to conduct discovery necessary to determine who
contributed to the death of Carlos Lens and then substitute
those persons for the fictitious parties, Plaintiff seeks to
have this case remanded to state court if this Court will not
allow Plaintiff reasonable time for discovery and allow
amendment of the Complaint to properly name those persons
once their names are determined through discovery.”
opposition to the motion Defendants correctly note that
“…Plaintiff's motion cites no case law in
support of his request to remand a case that was properly
removed under 28 U.S.C. § 1441(a).” (Doc. 11).
reply, Plaintiff relies, in part, on Muhammad v.
Tuskegee76 F.Supp.2d 1293 (M.D.Ala. 1999). In Muhammad
the court held that the plaintiff's state law claims were
improperly removed from the Circuit Court of Macon County and
that the plaintiff's state law claims were not separate
and independent from her federal claim, maintaining that the
state law claims were not removable under §1441(c).
Id. at 1296. In Muhammad, Plaintiff filed a
complaint in the Circuit Court of Macon County, Alabama
against the City of Tuskegee, and two officers for various
state law torts and violation of the 42 U.S.C. §1983.
Id. The court reasoned that the case was not
removable under §1441(b) because diversity of
citizenship did not exist, therefore the court was unable to
exercise original jurisdiction. In addition, since the state
law tort claims were not removable under 1441(d), the court
would not exercise supplemental jurisdiction pursuant to
§1367. Murey asks that this court “adopt the
reasoning of the United States ...