Incopero v. Farmers Insurance Exchange

113 F.R.D. 28, 7 Fed. R. Serv. 3d 976
CourtDistrict Court, D. Nevada
DecidedSeptember 8, 1986
DocketNo. CV-R-86-99-ECR
StatusPublished
Cited by2 cases

This text of 113 F.R.D. 28 (Incopero v. Farmers Insurance Exchange) is published on Counsel Stack Legal Research, covering District Court, D. Nevada primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Incopero v. Farmers Insurance Exchange, 113 F.R.D. 28, 7 Fed. R. Serv. 3d 976 (D. Nev. 1986).

Opinion

ORDER

EDWARD C. REED, Jr., Chief Judge.

On January 17, 1986, plaintiff commenced this action by filing a complaint in the Second Judicial District Court of the State of Nevada. In the complaint, the plaintiff alleges that defendants Farmers Insurance Exchange and Truck Insurance Exchange are liable to him on contract and tort theories for general and punitive damages in excess of $10,000. These actions arise out of a claim which the plaintiff filed upon his insurance policy issued by the defendants. In addition, the complaint alleges in its first paragraph that

[T]he true names and capacities whether individual, corporate, associate or otherwise of Defendants, DOES I through X, inclusive, are unknown to Plaintiff who therefore sues said Defendants by such fictitious names. Plaintiff is informed and believes and therefore, alleges that each of the Defendants designated herein as a DOE is legally responsible in some manner for the events and happenings herein referred to and legally caused injury and damages proximately thereby to Plaintiff as herein alleged. Plaintiff is informed and believes and thereon alleges that DOES I through X, inclusive, are residents and citizens of the State of Nevada or are corporations doing business in the State of Nevada. Plaintiff is informed and believes and thereon alleges that Defendants participated in processing Plaintiff’s claim for benefits under the contract for insurance, which is the subject matter of this action.

On February 26, 1986, the defendants filed a petition to remove this action from the state court to this Court. The defendants allege that this claim is one in which the federal courts have original subject matter jurisdiction, as all elements of the diversity statute, 28 U.S.C. § 1332, have been satisfied. In that complete diversity exists among all defendants and. the plaintiff, and that the amount in controversy is greater than $10,000, argue the defendants, the case is one which may be removed pursuant to the provisions of 28 U.S.C. § 1441.

On May 16, 1986, however, the plaintiff filed a motion to remand this action to the state court, contending that the naming of the fictitious defendants in the first paragraph of the complaint destroys complete diversity of citizenship, and that the requirements of the diversity statute are thus not met. Defendants, on the other hand, argue that the naming of the fictitious defendants in this case is a mere sham, perpetrated by the plaintiff to destroy federal subject matter jurisdiction. Therefore, they conclude, removal is proper. Further, the defendants contend that [30]*30the plaintiff has alleged these “Doe” defendants to be mere “residents” of the State of Nevada, whereas an allegation of state citizenship is required to satisfy the diversity statute.

FICTITIOUS DEFENDANTS AND REMOVAL JURISDICTION

The United States Supreme Court has spoken only once on the relationship of the fictitious defendants to diversity subject matter jurisdiction. In Pullman Company v. Jenkins, 305 U.S. 534, 59 S.Ct. 347, 83 L.Ed. 334 (1939), the Court noted that the presence of a fictitious defendant in a state court case may, in certain circumstances, defeat diversity jurisdiction on a petition for removal. In this case, the plaintiff had charged the Pullman company and a Pullman porter designated as “John Doe One” with negligence in allowing a disorderly passenger to board a train. The plaintiff was a citizen of California, and the defendant was a citizen of Illinois. The complaint, however, contained no allegation as to the citizenship of the fictitiously named porter. The defendant removed the case to federal court, but the plaintiff petitioned for remand, arguing that the presence of the fictitious defendant destroyed the complete diversity necessary to create federal subject matter jurisdiction. Id. at 536-37, 59 S.Ct. at 348.

The Court held that the fictitious naming of the porter prevented removal. Id. at 540, 59 S.Ct. at 350. Stressing that the Doe defendant’s “relation to the Pullman Company and his negligence as its servant were fully alleged,” the Court found it incumbent upon the Company “to show that [the porter] was a non-resident in order to justify removal.” Id. Anticipating that the useful procedure of naming fictitious defendants might be abused as a means of defeating federal subject matter jurisdiction as a result of its holding, the Court also noted that the Doe defendant in this case had not been fraudulently named. Id. at 541, 59 S.Ct. at 350. If the fictitious defendant had been fraudulently named, the Court cautioned, then it would be “open to the Non-resident defendant to show that the resident defendant has not been joined in good faith and for that reason could not be considered in determining the right to remove.” Id.

In the wake of Pullman, the Ninth Circuit has issued a long line of decisions on fictitious defendants, culminating in Bryant v. Ford Motor Co., 794 F.2d 450 (9th Cir.1986). In that case, the plaintiff originated the action for negligence, breach of warranty, and strict liability in the state courts of California. In the complaint, the plaintiff named not only the Ford Motor Company, but also fifty Doe defendants which were allegedly related to Ford as “agents, servants, employees and/or joint venturers.” Id., at 451. The plaintiff further alleged that Ford and all of the defendants were involved in the design, production, inspection, and the distribution of the vehicle which had caused the plaintiff’s injury. Id.

Ford then removed the case to federal court, and immediately moved for summary judgment, arguing that it had produced only the chassis of the vehicle, whereas the plaintiff’s injuries were actually caused by the passive restraint system produced by other companies as part of a joint venture. The district court granted this motion, in that there were no material facts implicating Ford in the production of the passive restraint system. The plaintiff then moved, under Fed.R.Civ.P. 60(b) to add as defendants City Ford, General Seating, and Grumman Olson, but the district court denied the motion, finding that such a request was not proper under Rule 60(b). Following this refusal to join these parties, the plaintiff sought relief from the Ninth Circuit.

Initially, the court found that it was always incumbent upon the district courts to evaluate the identity and citizenship of Doe defendants, in that the resolution of that question bears upon diversity subject matter jurisdiction. Id. at 452 (citing Hartwell Corp. v. Boeing Co., 678 F.2d 842, 842-43 and n. 1 (9th Cir.1982); Chism v. National Heritage Life Insurance Co., 637 F.2d 1328, 1330 (9th Cir.1981)). In addition, the [31]*31court noted, the presence of Doe defendants ordinarily defeats diversity jurisdiction. Id., at 452 (citing Othman v. Globe Indemnity Co.,

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113 F.R.D. 28, 7 Fed. R. Serv. 3d 976, Counsel Stack Legal Research, https://law.counselstack.com/opinion/incopero-v-farmers-insurance-exchange-nvd-1986.