Craig v. United States

Decision Date24 June 1969
Docket NumberNo. 22319.,22319.
PartiesElizabeth Elaine CRAIG, Administratrix of the Estate of Robert J. Craig, Appellant, v. The UNITED STATES of America, Timken Roller Bearing Company, a corporation; Aluminum Company of America, a corporation; Bethlehem Steel Corporation, a corporation; McKiernan-Terry Corporation, a corporation; and Does I through X, Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Walter P. Christensen (argued), San Diego, Cal., for appellant; Roscoe S. Wilkey (argued), Charles W. Rees, Jr., Laurence L. Pillsbury, San Diego, Cal., McInnis, Focth & Fitzgerald, San Diego, Cal., of counsel.

Luce, Forward, Hamilton & Scripps, San Diego, Cal., Wm. Matthew Byrne, Jr., U. S. Atty., Lillick, Geary, McHose & Roethke, Los Angeles, Cal., for appellee.

Before HAMLEY and DUNIWAY, Circuit Judges, and BYRNE, District Judge*.

HAMLEY, Circuit Judge:

Elizabeth Elaine Craig, Administratrix of the Estate of Robert J. Craig, filed this wrongful death action on August 16, 1965. She alleged that, on August 19, 1963, Robert J. Craig was killed on the high seas off Okinawa while attempting to land his military airplane on the aircraft carrier the U.S.S. CONSTELLATION. According to the complaint, the accident was caused by the negligence of the defendants resulting in defects in the arresting equipment of the vessel. District court jurisdiction was based on the Death on the High Seas Act, 46 U.S.C. §§ 761-768 (1964).

The defendants named in the complaint were the United States, Timken Roller Bearing Company, Aluminum Company of America, Bethlehem Steel Corporation, McKiernan-Terry Corporation, and "Does I through X." Plaintiff caused service of an alias citation and a copy of the complaint to be made upon Litton Systems, Inc. (Litton) as "Doe I," on February 28, 1966. Litton appeared specially, contending that the alias citation was issued prematurely and that Litton had not properly been brought before the court.

The court ordered plaintiff to serve and file a motion for leave to amend the complaint to place Litton before the court, postponing argument on Litton's exceptions until argument was had on the motion to amend. The motion was thereafter filed and served. Following argument on the motion and exceptions, the court denied plaintiff's motion to amend the complaint by naming Litton in substitution of "Doe I." Plaintiff appeals.

The limitations period for actions filed under the Death on the High Seas Act is two years from the date of the wrongful act. 46 U.S.C. § 763. Accordingly, the statute of limitations had run with regard to this action by August 19, 1965. As indicated above, the alias citation and a copy of the complaint were served upon Litton on February 28, 1966.

The district court held that the two-year statute of limitations bars plaintiff's claim against Litton unless, applying the principles stated in Rule 15(c), Federal Rules of Civil Procedure, the proposed amendment of the complaint, adding Litton as an additional party, relates back to the date of the original complaint. The district court further held that, applying those principles to the circumstances of the case, plaintiff's proposed amended complaint did not relate back.

Plaintiff argues that, regardless of Rule 15(c), if an action is timely with respect to a fictitiously-named defendant, it is not barred as to an actual defendant named in lieu of the fictitious defendant in an amended complaint filed after the statute has run.

There is no provision in the federal statutes or Federal Rules of Civil Procedure either authorizing or expressly prohibiting the use of fictitious parties. However, this court has at least twice expressed disapproval of the practice. In Tolefree v. Ritz, 9 Cir., 382 F.2d 566, 567, a civil rights action, we held that it was proper to dismiss the action as to fictitious defendants. In Sigurdson v. Del Guercio, 9 Cir., 241 F.2d 480, an action for a declaratory judgment and to enjoin certain action by immigration officers, this court said:

"These John Doe complaints are dangerous at any time. It is inviting disaster to allow them to be filed and to allow fictitious persons to remain defendants if the complaint is still of record. Appropriate action has been taken by the trial court on its own motion in some such cases. Although the fact that the Rules of Civil Procedure, 28 U.S.C.A., contain no express prohibition upon the subject, there is no authority of which we are aware for the joining of fictitious defendants in an action under a federal statute. These defendants should have been eliminated by motion of Del Guercio. * * *" (241 F.2d at 482, footnote omitted)1

This is an action in admiralty, and one district court has expressed approval of the practice of naming fictitious defendants in an admiralty suit, in view of the traditional liberality as to pleadings in admiralty. Phillips v. United States, N.D.Cal., 127 F.Supp. 912. On the other hand, this court has expressed doubt concerning the practice even in admiralty suits. See California Stevedore & Ballast Co. v. Pan-Atlantic S.S. Corp., 9 Cir., 291 F.2d 252, 253.

The only purpose the naming of fictitious defendants could possibly serve is to make it possible to substitute named defendants after the statute of limitations has run. But Rule 15(c), Federal Rules of Civil Procedure, provides the only way in which defendants, not accurately named in a pleading before the limitation period has run, may be accurately named afterwards. That rule, which pertains to the relation back of the pleadings, makes no mention of the pleading of fictitious parties. It is therefore wholly immaterial, insofar as the application of that rule is concerned, whether fictitious defendants were named prior to the running of the statute.2

It may be, although this is not entirely clear, that plaintiff is also arguing that under Rule 15(c) and apart from the naming of fictitious defendants in the original complaint, the amended complaint naming Litton for the first time relates back to the date of the original pleading.

Under Rule 15(c), an amended complaint "changing the party against whom a claim is asserted relates back to the date of the original pleading only if all three of the following conditions are met: (1) the claim asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading; (2) within the period provided by law for commencing the action against him, the party to be brought in by amendment has received such "notice of the institution of the action" that he will not be prejudiced in maintaining his defense on the merits; and (3) within the period provided by law for commencing the action against him, the party to be brought in knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.3

The district court held that Litton did not receive such notice of the institution of this action, prior to the running of the statute of limitations, as to enable it to maintain its defense without prejudice, and that therefore the second of the above-stated conditions of Rule 15(c) had not been met. On this ground, the court denied the motion to amend the complaint to name Litton as an additional party.

The facts concerning Litton's notice of the institution of this action are not in dispute. A seaman who was injured in the same accident in which pilot Craig was killed brought an action for damages within the statutory period against Litton and others in the United States District Court for the Southern District of New York. The action was entitled Sevits v. McKiernan-Terry Corporation et al., 270 F.Supp. 887. Prior to the running of the statute, Litton investigated the facts relevant to that law-suit.

However, while the instant action, involving the death of a pilot in the same accident, was instituted prior to the running of the statute, there is nothing in the record to show that Litton knew or had reason to know of this lawsuit before the statutory period had run. The notes of the Advisory Committee following the 1966...

To continue reading

Request your trial
127 cases
  • Sigler v. LeVan
    • United States
    • U.S. District Court — District of Maryland
    • March 12, 1980
    ...see what legitimate purpose is served by allowing an action for monetary damages against unknown parties to proceed. Craig v. United States, 413 F.2d 854, 856-57 (9th Cir.), cert. denied, 396 U.S. 987, 90 S.Ct. 483, 24 L.Ed.2d 451 (1969); Reaves v. Sieloff, 382 F.Supp. 472, 475-76 (D.Pa.197......
  • Brink v. First Credit Resources
    • United States
    • U.S. District Court — District of Arizona
    • July 12, 1999
    ...avoid prejudice to defendants. Korn v. Royal Caribbean Cruise Line, Inc., 724 F.2d 1397, 1401 (9th Cir.1984) (citing Craig v. United States, 413 F.2d 854, 857-8 (9th Cir.), cert. denied, 396 U.S. 987, 90 S.Ct. 483, 24 L.Ed.2d 451 (1969) (Craig To satisfy the first of these two requirements,......
  • Bryant v. Ford Motor Co.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • November 6, 1987
    ...in federal court. See, e.g., Fifty Assocs. v. Prudential Ins. Co. of Am., 446 F.2d 1187, 1191 (9th Cir.1970); Craig v. United States, 413 F.2d 854, 856 (9th Cir.), cert. denied, 396 U.S. 987, 90 S.Ct. 483, 24 L.Ed.2d 451 (1969); Molnar v. National Broadcasting Co., 231 F.2d 684, 686-87 (9th......
  • Bryant v. Ford Motor Co.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • April 15, 1988
    ...in federal court. See, e.g., Fifty Assocs. v. Prudential Ins. Co. of Am., 446 F.2d 1187, 1191 (9th Cir.1970); Craig v. United States, 413 F.2d 854, 856 (9th Cir.), cert. denied, 396 U.S. 987, 90 S.Ct. 483, 24 L.Ed.2d 451 (1969); Molnar v. National Broadcasting Co., 231 F.2d 684, 686-87 (9th......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT