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Murey v. City of Chickasaw

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

October 19, 2018

CARLOS FERNANDO REIXACH MUREY, as Administrator for the Estate for Carlos Lens Fernandez a/k/a Carlos Lens, Plaintiff,
v.
THE CITY OF CHICKASAW, et al., Defendants.

          REPORT AND RECOMMENDATION

          KATHERINE P. NELSON, UNITED STATES MAGISTRATE JUDGE.

         This 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.[1]

         Procedural History

         On May 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 consideration.

         Analysis

         A. Motion to Conduct Discovery

         Plaintiff 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.).

         As a 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.

         Based 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.

         B. Motion to Remand

         Alternatively, 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.” (Doc. 8).

         In 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).

         In 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 ...


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