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Suing John Doe

You're up against the statute of limitations, and, despite your best efforts, you're not sure you've got all the defendants.  Hey, no problem, right?  After all, that's what John Doe defendants are for:  you name the defendants you know, stick a few John Does in the caption, and when you find out who they are, you amend the complaint to include them, and it all relates back to the time of filing of the original complaint.  What could be simpler?

Be afraid.  Be very afraid.

The perils of using this procedure were on vivid display again in the 12th District's recent decision in Lawson v. Holmes.  The plaintiff had been injured in a tow-motor accident, but because counsel hadn't been able to determine the identity of the manufacturer, he used a John Doe defendant when he filed the complaint on the day before the statute ran.

Now, if you do that right, when you determine John Doe's identity, you can file an amended complaint naming him, and under Civil Rule 15(C) it relates back to the date you filed the complaint.  The converse of that is true, too:  if you screw it up, it doesn't.  How did the plaintiff screw up?  By not stating in the original complaint, or the amended one, that he hadn't been able to discover the real name of the defendant.

The problem here actually dates back to a 1989 case, Amerine v. Haughton Elevator Co., where the Ohio Supreme Court found that the plaintiff's attempt to add a John Doe defendant failed because service of the amended complaint was done by certified mail, rather than personally; Rule 15(D) clearly requires the latter:

When the plaintiff does not know the name of a defendant, that defendant may be designated in a pleading or proceeding by any name and description. When the name is discovered, the pleading or proceeding must be amended accordingly. The plaintiff, in such case, must aver in the complaint the fact that he could not discover the name. The summons must contain the words "name unknown," and a copy thereof must be served personally upon the defendant.

Ever since then, courts of appeals have had a field day looking through the entrails of the rule to detect any failure, no matter how inconsequential, to adhere to its terms.  If you don't include language stating that you couldn't discover the names of the John Doe defendants in the original complaint, you're out of luck.  (Although there's a 1990 8th District case contra.)  Ditto, if you don't serve the newly-named defendant with a summons for the original complaint.  Ditto, if you do serve the newly-named defendant with a summons for the original complaint, but don't put "name unknown" on it.

This slavish devotion to form, which evokes comparisons to demurrer practice in Colonial times, seems to run contrary to the general spirit of liberality in applying the rules.  Lawson's defense of this, that strict compliance is required because the legislature hasn't evinced a desire to loosen the restrictions of the statutes of limitations, hardly addresses the point:  the rules are a creature of the courts, not the legislature.  Still, as popular but meaningless phrases go, the expression "it is what it is" applies here as much as it does to most human endeavor, so deal with it.  You can minimize the chances of running afoul of 15(D) if you follow this checklist each time you sue a John Doe defendant:

  • Put "name and address unknown" after each John Doe in the caption of the original complaint
  • In the body of the complaint, for each John Doe, state "John Doe No. X, whose name and address are unknown and could not be discovered through reasonable effort"
  • When you find out the name, move to amend the complaint to include the name, stating in the motion that you could not discover the name previously
  • In the body of the amended complaint, identify the new defendants; attach a copy of that to the motion to amend
  • After the court grants you leave to amend, file a motion with the court asking for a process server to be appointed to serve the original and amended complaints on the new defendant
  • Have the clerk prepare a summons for the original complaint, stating "John Doe, name and address unknown" as the defendant.  Also have the clerk prepare a regular summons for the amended complaint
  • Have your process server serve the original and amended compaints, with the summons for each, on the new defendant by personal service

I might have missed something; there may be a case out there saying that the process server can't be named Bob, that he has to serve it on a Tuesday or Thursday, and that when he hands it to the defendant, he has to say, "Mother, may I?"

Oh, one other thing:  keep in mind that the requirement that you obtain service within one year after filing in order for the action to be considered commenced applies to John Doe defendants as well.  That means you only have a year to get service on them.


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