Posted by Solomon N. Klein, Litigation Partner
District Judge Sandra J. Feuerstein dismissed an action against a Jane Doe defendant after finding that plaintiffs failed to take reasonable steps to discover the identity of the Jane Doe defendant. The Court held that “while courts ‘typically resist dismissing suits against John Doe defendants until the plaintiff has had some opportunity for discovery to learn the identities of responsible officials’”, plaintiffs must be reasonably diligent and timely in identifying the unnamed defendant. Conley v. Copiague Union Free Sch. Dist., 16-cv-4546 (E.D.N.Y. June 4, 2018) (SJF) (AYS).
In this case, Plaintiffs – a student and his father – initially sued the Copiague Union Free School District (the “District) alleging civil rights violations. Plaintiffs’ claims arose from alleged “racially charged statements made to [the student] by an unidentified ‘school nurse’”.
The Court had previously dismissed the claim against the District itself, but allowed plaintiffs to amend their complaint to allege claims solely against the unidentified school nurse (the Jane Doe 2 defendant). Defendant moved to dismiss the complaint arguing that Jane Doe had not received sufficient notice of the action as she had not been identified and that plaintiffs had two years to identify the Jane Doe.
The Court agreed:
It is beyond dispute that “[u]sing ‘Doe’ in place of specifically naming a defendant does not serve to sufficiently identify the defendant.” Kearse v. Lincoln Hosp. , No. 07–CV–4730, 2009 WL 1706554, at *3 (S.D.N.Y. June 17, 2009); Cruz v. City of New York, 232 F. Supp. 3d 438, 448 (S.D.N.Y. 2017). In addition, while courts “typically resist dismissing suits against John Doe defendants until the plaintiff has had some opportunity for discovery to learn the identities of responsible officials . . . [w]here a plaintiff has had ample time to identify a John Doe defendant but gives no indication that he has made any effort to discover the [defendant’s] name, . . . the plaintiff simply cannot continue to maintain a suit against the John Doe defendant.” Cruz, 232 F. Supp. 3d at 448 (internal citation omitted); see Harewood v. City of New York, No. 09-CV-2874, 2012 WL 12884356, at *2 (E.D.N.Y. Feb. 10, 2012) (same); Coward v. Town & Vill. of Harrison, 665 F. Supp. 2d 281, 300 (S.D.N.Y. 2009) (same); see also Abreu v. City of New York, 657 F. Supp. 2d 357, 363 (E.D.N.Y. 2009) (“Where a plaintiff names ‘John Doe’ as a placeholder defendant because he does not know the identity of an individual defendant, he generally is required to replace the placeholder with a named party within the applicable statute of limitations period.”).
The underlying incident giving rise to this matter occurred on May 19, 2015, see generally Am. Compl., the initial Complaint was filed on August 15, 2016. See Compl. Thus, Plaintiffs have had over three years from time of the incident and almost two years from the time the Complaint was filed to exercise due diligence in order to ascertain the identity of Jane Doe 2. Despite this significant passage of time, the docket does not reflect nor do Plaintiffs assert that any affirmative steps were taken to attempt to ascertain the identity of Jane Doe 2 during the intervening period. Indeed, although Plaintiffs have indicated that they would file a motion to compel in order to obtain the necessary materials to unearth Jane Doe 2’s identity, see Pls.’ Opp’n at 9, to date, no such motion has been filed. However, it is Plaintiffs’ burden to take reasonable steps to discover the identity of a Jane Doe defendant. See Kearse, 2009 WL 1706554, at *3 (recognizing that it is plaintiff who must take steps to identify a John Doe defendant); Reed v. Doe, No. 9:11-CV-250, 2015 WL 902795, at *5 (N.D.N.Y. Mar. 3, 2015) (“plaintiff was directed to take reasonable steps to ascertain the identity of defendant John Doe” and was warned that “failure to ascertain the identity of Defendant John Doe # 1 will result in the dismissal of this action”); see also Doe v. New York, 97 F. Supp. 3d 5, 19 (E.D.N.Y. 2015) (considering viability of relation back doctrine as set forth in CPLR § 1024 to § 1983 claim, recognizing that due diligence within the meaning of CPLR § 1024 “requires that a plaintiff show that he or she made timely efforts to identify the correct party before the statute of limitations expired,” and concluding that “plaintiff cannot satisfy that [ ] requirement, as he failed to act with due diligence in identifying the John Doe Defendants prior to the filing of the Third Amended Complaint”).” Moreover, discovery has not been stayed in this matter pending the Court’s determination of either the instant motion or Defendant’s previously adjudicated motion to dismiss. Thus, Plaintiffs have had an ample opportunity to make full use of the discovery devices set forth in the Federal Rules of Civil Procedure as well as any other alternative means in order to ferret out Jane Doe 2’s identity. Nevertheless, Plaintiffs failed to act.
In light of the fact that Plaintiffs have failed to present the Court with (1) reasonable efforts made to discover Jane Doe 2’s identity or (2) good cause for this failure, their suit against the Jane Doe 2 defendant cannot be maintained. See Watkins v. Doe, No. 04–CV–0138, 2006 WL 648022, at *3 (S.D.N.Y. Mar. 14, 2006) (dismissing without prejudice claims against “John Doe” defendants where “despite having the full opportunity to conduct discovery, plaintiff has not yet identified and served [those] defendants . . . within 120 days of filing the complaint . . . [and] has not sought an extension of the time allowed”); Harewood, 2012 WL 12884356, at *2 (Harewood has had ample time since filing his complaint in July 2009 to identify John Doe . . . [and] [t]here is nothing in the record to show that Harewood has expended any effort to discover the defendant’s identity. Accordingly, Harewood’s claims against John Doe are dismissed.”); United States v. Callard, No. 11-CV-4819, 2013 WL 6173798, at *4 (E.D.N.Y. Nov. 19, 2013) (denying plaintiff’s request to reinstate fictitious parties as defendants where “[p]laintiff has not demonstrated that it has determined or attempted to determine the identities of ‘XYZ Corporation’ or ‘John Does # 1–10,’” after being given a sufficient opportunity to do so).
Posted by Solomon N. Klein, Litigation Partner