Fictitious defendants in Federal U.S. District Court for the Central District of California

By Michael Reiter, Attorney at Law

 

California Code of Civil Procedure allows fictitious defendants, that is, naming unknown defendants, which you will commonly see in a caption (such as “Doe 1” or “Does 1-50, inclusive”).  See California Code of Civil Procedure § 474.

The use of Doe (fictitiously named defendants) in federal questions cases is permissible when the complaint alleges why the defendant’s real name was not known. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 390, fn. 2, 91 S. Ct. 1999, 2001, 29 L. Ed. 2d 619 (1971). Central District of California Local Rules Rule 19-1 limits the Complaint to no more than ten Doe or fictitiously named parties.

Though there is an easy way to add fictitiously named defendants in California Superior Court, the way to do it in U.S. District the Central District of California is by Federal Rule of Civil Procedure Rule 15(a)(2), and Rule 21:

Federal Rule of Civil Procedure Rule 15(a)(2) reads:

          (a) Amendments Before Trial.

. . .

(2) Other Amendments. In all other cases, a party may amend its pleading

only with the opposing party’s written consent or the court’s leave. The

court should freely give leave when justice so requires. Fed. R. Civ. P.

15(a)(2)

Federal Rule of Civil Procedure Rule 21 provides, in pertinent part, that “[o]n motion or on its own, the court may at any time, on just terms, add or drop a party. . . .” Fed. R. Civ. P. 21.

“Fed.R.Civ.P. 15 places leave to amend, after a brief period in which a party may amend as of right, within the sound discretion of the trial court. [Citations omitted]. In exercising this discretion, a court must be guided by the underlying purpose of Rule 15 to facilitate decision on the merits, rather than on the pleadings or technicalities. [Citations omitted]. Accordingly, Rule 15’s policy of favoring amendments to pleadings should be applied with ‘extreme liberality.’” United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981).

“If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.-the leave sought should, as the rules require, be ‘freely given’.”  Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed. 2d 222 (1962).

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

A: 300 E. State St., Suite 517
Redlands, CA 92373-5235
T: (909) 296-6708

 

 

Filing a 42 United States Code section 1983 Case alleging police misconduct: California Superior Court or United States District Court (Federal)

By Michael Reiter, Attorney at Law

 

Can you file a 42 United States Code section1983 case alleging police misconduct in a California Superior Court?  Yes, but it is in general a poor idea for one reason:  peace officer employment records are protected by the Pitchess Motion process under California law.  As a Deputy City Attorney for the City of San Bernardino and as Assistant City Attorney for the City of Redlands, I handled both defense of Pitchess Motions and Federal Civil Rights cases, so I have some insight into the process.

However, the Federal Courts do recognize some limits to discovery of peace officer personnel records.  For example, in this slip opinion from the Southern District of California:

“Federal Rule of Civil Procedure 26(c) provides that a court may limit discovery to protect from annoyance, embarrassment, oppression, or undue burden or expense. Federal common law recognizes a qualified privilege for official information. Kerr v. United States Dist. Ct. for N.D. Cal., 511 F.2d 192, 198 (9th Cir.1975), aff’d, 426 U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976). Government personnel files are considered official information. See, e.g., Zaustinsky v. University of Cal., 96 F.R.D. 622, 625 (N.D.Cal.1983), aff’d, 782 F.2d 1055 (9th Cir.1985). In determining what level of protection to afford the official information privilege, courts balance the interests of the party seeking discovery against the interests of the governmental entity asserting the privilege. See Kelly v. City of San Jose, 114 F.R.D., 653, 660 (N.D.Cal.1987). The party requesting the information must describe how the information sought is “reasonably calculated to lead to discovery of admissible evidence, identifying interests … that would be harmed if the material were not disclosed, and specifying how that harm would occur and how extensive it would be.” Id. at 671. The courts must weigh the potential benefits of disclosure against the potential disadvantages. If the latter is greater, the privilege bars discovery. Sanchez v. City of Santa Ana, 936 F.2d 1027, 1034 (9th Cir.1990); Jepsen v. Florida Bd. of Regents, 610 F.2d 1379, 1384-85 (5th Cir.1980); Zaustinsky, 96 F.R.D. at 625.”  Snowten v. City of San Diego (2010)  2010 WL 2998846, *2.

In lieu of an in-camera hearing, the parties may agree to a stipulated protective order.  Defendants may be willing to do so to avoid running up plaintiff’s attorneys’ fees, and save their clients fees, as well.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog.  You should consult an attorney for advice regarding your individual situation

Milligan, Beswick, Levine & Knox, LLP
A: 1447 Ford St. #201
      Redlands, CA 92374
T: (909) 296-6708