By Adam Willfond, Office of Corporation Counsel
Here's a scenario I’ve encountered in federal court one too many times: Paul Plaintiff timely sues ABC Corporation, and a few "John Doe Defendants." Paul sues the John Does because he doesn't yet know their proper identities or names, but intends to find out through discovery. After all, these John Does are ABC Corp.'s employees. Meanwhile, the statute of limitations lapses, and maybe Paul's lawyer wasn’t as diligent about serving those discovery requests as soon as he’d hoped. The requests are responded to, and those employees are identified. Paul then moves for leave to amend his complaint to substitute them for the John Does even though the statute has expired—without objection from yours truly (note: this is a matter of discretion and strategy.) Paul's claims against the newly added employees relate back under Fed. R. Civ. P. 15 to his original complaint, so it's all good, right? Wrong.
For starters, as a matter of practice, the Seventh Circuit has long held that "it is pointless to include a list of anonymous defendants in federal court; this type of placeholder does not open the door to relation back under Fed. R. Civ. P. 15, nor can it otherwise help the plaintiff." Wudke v. Davel, 128 F.3d 1057, 1060 (7th Cir. 1997). See also Munden v. Brown, 2021 WL 165163 (S.D. Ind. Jan. 19, 2021) (dismissing claims against John Doe defendants on Rule 12(b)(6) grounds).
Beyond that, it is also well settled in this circuit that a plaintiff’s decision to name a John Doe defendant "because he does not know who harmed him" is not a mistake under Rule 15(c). Hall v. Norfolk S. Ry. Co., 469 F.3d 590, 596 (7th Cir. 2006); Worthington v. Wilson, 8 F.3d 1253, 1257 (7th Cir. 1993) (explaining that a plaintiff's "lack of knowledge" as to the defendants' identities does not amount to "a mistake in their names"); Wood v. Worachek, 618 F.2d 1225, 1230 (7th Cir. 1980) (stating that Rule 15(c) "does not permit relation back where...there is a lack of knowledge of the proper party.")
Importantly, the Seventh Circuit recently said that the Supreme Court’s decision in Krupski v. Costa Crociere S.p.A., 560 U.S. 538 (2010) did not alter the John Doe rule. See generally Herrera v. Cleveland, 8 F.4th 493 (7th Cir. 2021). For some background, in Krupski, the Supreme Court examined whether Rule 15(c)(1)(C) allowed amended pleadings to relate back when the plaintiff mistakenly sued a subsidiary, only to later realize that she meant to sue its parent corporation. 560 U.S. at 543–44.
Holding that the plaintiff made a "mistake" allowing her pleadings to relate back, the court explained that whether an amended pleading relates back depends on "what the prospective defendant knew or should have known" and "not what the plaintiff knew or should have known." Id. at 548. In reaching this conclusion, the court defined mistake as "[a]n error, misconception, or misunderstanding; an erroneous belief," id. (alteration in original) (quoting Black's Law Dictionary 1092 (9th ed. 2009)), and further described the word to include "'a misunderstanding of the meaning or implication of something;' 'a wrong action or statement proceeding from faulty judgment, inadequate knowledge, or inattention;' 'an erroneous belief;' or 'a state of mind not in accordance with the facts.'" Id. (quoting Webster's Third New International Dictionary 1446 (2002)).
A few courts in this circuit had held that Krupski had overruled the John Doe rule. See, e.g., Miller v. Panther II Transp., Inc., 2018 WL 3328135, at *6 (S.D. Ind. July 6, 2018) (concluding that "inadequate knowledge can constitute a mistake"); White v. City of Chi., 2016 WL 4270152, at *15–17 (N.D. Ill. Aug. 15, 2016) (reasoning that Krupski applies in the John Doe context).
Not so, held the Seventh Circuit in Herrera, 8 F.4th 493. In Herrera, the plaintiff, Herrera, sued three John Doe correctional officers about two weeks before the statute of limitations lapsed. Id. at 495. Then he wrote letters to the sheriff to identify the names and badge numbers of the correctional officers, and the sheriff provided Herrera the same. Id. About a year after the statute lapsed, Herrera amended his complaint to add the correctional officers by name to replace the John Doe defendants. Id. at 495-96. The officers moved to dismiss the complaint—arguing that although the initial complaint naming the John Doe officers was timely, the amendment adding the officers by name was not, and did not relate back under Rule 15(c)(1)(C)(ii) because Herrera made no mistake about their identity.
The Seventh Circuit again held that naming a John Doe defendant does not constitute a mistake under Rule 15(c)(1)(C)(ii) for three reasons. Id. at 498. First, it said that naming a John Doe is not based on an error, misconception, misunderstanding, or "mere slip of the pen." Id. It's an intentional and informed decision—the opposite of a mistake. Id.
Second, the court emphasized the difference between a John Doe case and a Krupski one, where in the latter circumstance a plaintiff is unaware that he or she lacks knowledge of the proper defendant's identity. But with John Does, a plaintiff is aware that they lack knowledge of the defendant's identity. Id. In other words, the plaintiff in Krupski did not know what she did not know; but Herrera did know what he did not know. Id.
Finally, Herrera said that the definition of "mistake" under Rule 15(c)(1)(C)(ii) does not extend to a John Doe scenario. Id. This is because Krupski did not treat "inadequate knowledge" and "mistake" as the same. Id. In short, because Herrera’s amended complaint did not relate back to his original one, it was untimely. Id. at 499.
Herrera thus reaffirms the Seventh Circuit's rule that naming a John Doe defendant is not a mistake under Rule 15(c), and when a plaintiff attempts to add individual defendants after the statute of limitations has expired, it will be untimely. And the United States Supreme Court denied Herrera's petition for a writ of certiorari to review the Seventh Circuit's decision on March 28, 2022. See Herrera v. Cleveland, --- S. Ct. ---, 2022 WL 892109 (Mar. 28, 2022).
In sum, plaintiffs and defendants alike should be aware of the John Doe rule when litigating civil claims in federal court.
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