Howard v. Antilla

• Court: District Court, D. New Hampshire
• Decided: June 10, 1998
• Docket: CV-97-053-M
• Status: Published

Opinion

Howard v. Antilla CV-97-053-M 06/10/98 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Robert Howard, Plaintiff

v. Civil No. 97-53-M

Susan Antilla and John Doe, Defendants

O R D E R

Plaintiff, Robert Howard, brings state law tort claims that

defendants, Susan Antilla and "John Doe," defamed him and invaded

his privacy in a newspaper story that falsely identified him as

Howard Finkelstein who had been convicted of securities fraud.

Defendant Antilla moves to dismiss Howard's suit for lack of

personal jurisdiction, or, alternatively, to transfer the case to

the southern district of New York. Upon review of the file in

connection with defendant's motion, the court has noted an issue

of subject matter jurisdiction that must be resolved before

defendant's motion may be considered. See In re Recticel Foam

Corp. , 859 F .2d 1000, 1002 (1st Cir. 1988).

Plaintiff bears the burden of establishing this court's

subject matter jurisdiction. Aversa v. United States, 99 F.3d

1200, 1209 (1st Cir. 1996). In his complaint, plaintiff asserts

subject matter jurisdiction based on the parties' diverse

citizenship. 28 U.S.C.A. § 1332. He says that he is a citizen of the United States and that his "domicile" is in New York,

making him a citizen of New York for purposes of diversity

jurisdiction. See Robertson v. Cease, 97 U.S. 649, 648-49

(1878); Coury v. Prot, 85 F.3d 244, 250 (5th Cir. 1996). "John

Doe" is described in the complaint as "one or more persons or

organizations that are the undisclosed source for the articles

that appeared in the New York Times concerning Robert Howard. It

is believed that they are in fact short sellers whose intent was

to drive down the price of stock in Presstek, Inc. for financial

gain." The citizenship of the "John Doe" defendant is not

established in the complaint, or sufficiently described to limit

citizenship to a particular state, leaving open the possibility

that one or more unidentified "John Doe" defendants may be New

York citizens, which would destroy complete diversity of the

parties and deprive the court of subject matter jurisdiction.

The practice of naming "John Doe" defendants in a diversity

suit filed in federal court without identifying their citizenship

obviously raises subject matter jurisdiction issues. Most courts

do not allow the practice. See, e.g., Howell by Goerdt v.

Tribune Entertainment Co., 106 F.3d 215, 218 (7th Cir. 1997);

Central Assoc. Carriers, Inc. v. Nickelberry, No. 98-5002-CV-S-3,

1998 WL 89660 *2 (W.D. Mo. Feb. 24, 1998). The "John Doe"

defendant in this case sufficiently undermines the basis for

2 diversity jurisdiction to make it improvident for the court to

consider defendant's pending motion before subject matter

jurisdiction is properly established.

To maintain his suit in this court, therefore, plaintiff

must amend his complaint either to dismiss the "John Doe"

defendant from the case or to identify the "John Doe" defendant

with a sufficient allegation of citizenship to permit the

exercise of subject matter jurisdiction in federal court. See

Fed. R. Civ. P. 8. Plaintiff shall file an amended complaint

within thirty days of the date of this order, or file an

appropriate pleading for dismissal without prejudice. Failure to

comply with the terms of this order shall result in dismissal of

the case pursuant to Federal Rule of Civil Procedure 1 2 (h)(3).

SO ORDERED.

Steven J. McAuliffe United States District Judge

June 10, 1998

cc: Charles G. Douglas, III, Esg. Peter W. Mosseau, Esg.