[12 FSM Intrm. 506]
* * * *
[12 FSM Intrm. 507]
* * * *
DENNIS YAMASE, Associate Justice:
On June 7, 2004, the plaintiffs filed a response memorandum addressing the court’s May 21, 2004 order concerning the ten Doe defendants listed in the caption. The court noted its intention to dismiss the Doe defendants from this action and delete them from the caption unless the plaintiffs provided points and authorities to support the practice of naming Doe defendants. The court also noted that, although the Plaintiffs’ Verified Complaint in Rem and in Personam listed in its caption as defendants, unnamed, and possibly fictitious, persons or entities denominated as Does 1-10, such parties are not referred to in the body of the verified complaint, and no authority was given for proceeding against unknown defendants. Proceeding against unknown defendants has not been authorized by the FSM Rules of Civil Procedure. See Foods Pacific, Ltd. v. H.J. Heinz Co. Australia, 10 FSM Intrm. 409, 412 n.1 (Pon. 2001); Amayo v. MJ Co., 10 FSM Intrm. 244, 254 (Pon. 2001); Moses v. Oyang Corp., 10 FSM Intrm. 210, 213 (Chk. 2001).
The plaintiffs rely on four U.S. cases, Gillespie v. Civiletti, 629 F.2d 637 (9th Cir. 1980); Elysian Fed. Sav. Bank v. First Interregional Equity Corp., 713 F. Supp. 737 (D.N.J. 1989); Does 1-60 v. Republic Health Corp., 669 F. Supp. 1511 (D. Neb. 1987); Swartz v. Gold Dust Casino, Inc., 91 F.R.D. 543 (D. Nev. 1981), to support the practice of naming Doe defendants. The plaintiffs have not addressed any of the three reported FSM cases.
Even those U.S. cases that allow it recognize that the practice of naming Doe defendants is disfavored. Gillespie, 629 F.2d at 642 ("As a general rule, the use of ‘John Doe’ to identify a defendant is not favored."); Swartz, 91 F.R.D. at 546 ("[a]s a general rule the use of a fictitious name to identify a defendant is not favored"). The court has reviewed the cases the plaintiffs have cited.
[12 FSM Intrm. 508]
In those cases, specific allegations were made against parties whose identities were not known. Generally, those cases held that when an alleged defendant’s identity would not be known prior to the complaint’s filing, "the plaintiff should be given an opportunity through discovery to identify the unknown defendants, unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds." Gillespie, 629 F.2d at 642. In Gillespie, the plaintiff sought from the named defendants the names and addresses of the superintendents of the eight different federal, state, and local holding facilities in which he was allegedly unconstitutionally mistreated over a two and a half month period. Id. at 642-43. In Swartz, the premises’s true owner was unknown, but since it was known that some entity owned the premises where the plaintiff was injured, discovery was utilized to ascertain the owner’s true identity. Swartz, 91 F.R.D. at 546; see also Elysian Fed. Sav. Bank, 713 F. Supp. at 751 n.19 (identity of another member of conspiracy found through discovery); Republic Health Corp., 669 F. Supp. at 1518 (plaintiff allowed opportunity through discovery to identify as yet unknown co-conspirators).
In the present case, the verified complaint makes no allegations against persons known or thought to exist but whose identities are unknown. The Doe defendants are only mentioned in the caption. They may, quite possibly, be nonexistent. It does not appear any purpose would be served by leaving them in the caption.
The court notes that even if it permitted the inclusion of Doe defendants, in order to replace a Doe defendant with a named party, the plaintiffs would still have to move, under Civil Procedure Rule 15, to amend the pleadings to replace the Doe defendant with a named defendant, and that to do so, all the Rule 15’s specifications must be met. Cf. Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1075 (2d Cir. 1993) ("John Doe" pleadings cannot be used to circumvent the statute of limitations; Rule 15(c) must be followed). Even in the absence of John Doe defendants, the plaintiffs can still move to amend their pleadings should the plaintiffs identify through discovery other persons who may be liable on the plaintiffs’ claims in this case.
Lastly, the plaintiffs’ memorandum also states that they do not have any objection to a dismissal without prejudice of the Doe defendants as no reference was made to them in the complaint’s body. Now therefore it is further ordered that defendants Does 1-10 are dismissed without prejudice from this action and deleted from the caption.
* * * *