Bryant v. Ford Motor Co.

• Decision Date: 04 August 1986
• Docket Number: Nos. 84-6389,85-5698,s. 84-6389
• Citation: 794 F.2d 450
• Parties: Gary BRYANT, Plaintiff-Appellant, v. FORD MOTOR CO., Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 450

794 F.2d 450

5 Fed.R.Serv.3d 538

Gary BRYANT, Plaintiff-Appellant, v. FORD MOTOR CO., Defendant-Appellee.

Nos. 84-6389, 85-5698.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 5, 1985.

Decided July 11, 1986.

As Amended July 18 and Aug. 4, 1986.

Michael L. Goldberg, Washington, D.C., for plaintiff-appellant.

Richard A. Goette, McCutchen, Black, Verleger & Shea, Los Angeles, Cal., for defendant-appellee.

Appeal from the United States District Court Central District of California.

Before WALLACE, HUG, and HALL, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Plaintiff-appellant Gary Bryant appeals from the decision of the district court granting summary judgment in favor of defendant-appellee Ford Motor Company. We conclude that the district court lacked jurisdiction over this action because of the presence of potentially non-diverse Doe defendants at the time of removal from state court.

I

Bryant originated this action for negligence, breach of warranty, and strict liability in California state court against Ford and Does 1 through 50. Ford removed the action to the United States District Court for the Central District of California.

Bryant seeks recovery for injuries he sustained in an accident while driving a Ford van for United Parcel Service on March 1, 1983. Bryant contends that the passive restraint system in the van was defective because it did not include a shoulder harness. Bryant's complaint alleges that Does 1 through 50 are related to each other and to Ford as "agents, servants, employees and/or joint venturers." Bryant claims that Ford and each of the Does were involved in the design, production, inspection, and distribution of the van which Bryant was driving at the time of the accident.

A joint inspection of the van by the parties on May 10, 1984 revealed that Ford had produced only the chassis of the van. The body and other components, including the passive restraint system, were produced by other companies as part of the joint venture. The companies responsible for producing the component parts could not be identified at the time of removal or the time of inspection because the van was produced in 1968 and Ford destroys records of this type after ten years. Bryant subsequently identified City Ford Company as the seller of the van, General Seating and Sash Company (General Seating) as the producer of the seats, and Grumman-Olson Company as the producer of the body. City Ford and Grumman-Olson are California corporations.

The district court granted Ford's motion for summary judgment, concluding that there were no material facts as to Ford's liability because of the inspection evidence that Ford was not involved in the production of the passive restraint system. Bryant then moved the court to add City Ford, General Seating, and Grumman-Olson to the cause of action. The district court refused Bryant's motion, finding that the presence of non-diverse parties was not new evidence justifying relief from judgment under Rule 60(b). Bryant appealed the grant of summary judgment. We granted a limited remand at Bryant's request for the district court to again reconsider its previous rulings. The district court again refused to join the additional parties, and this appeal of the district court's rulings followed.

II

The presence of unidentified Doe defendants at the time of removal creates difficulties for federal courts in determining whether diversity jurisdiction is present, and hence whether removal is proper. Despite state law rules of procedure which permit the filing of actions against Doe defendants without any evidence of the Doe's identity, see, e.g., Cal.Code Civ.Proc. Sec. 474, the district court must determine the identity and citizenship of Doe defendants in order to evaluate diversity of citizenship. See, e.g., Hartwell Corp. v. Boeing Co., 678 F.2d 842, 842-43 & n. 1 (9th Cir.1982); Chism v. National Heritage Life Insurance Co., 637 F.2d 1328, 1330 (9th Cir.1981). Ordinarily the presence of Doe defendants defeats diversity jurisdiction. Othman v. Globe Indemnity Co., 759 F.2d 1458, 1462 (9th Cir.1985). We have recognized exceptions to this rule when the Does are wholly fictitious, see, e.g., Grigg v. Southern Pacific Co., 246 F.2d 613, 619 (9th Cir.1957), or when the charges against the Does are so general that no clue is given as to their identity or their relationship to the cause of action, see, e.g., Hartwell, 678 F.2d at 842-43; Chism, 637 F.2d at 1330. ¹ The rationale for both of these exceptions is a balance between the limited jurisdiction of federal courts and the need to prohibit plaintiffs who initiate actions in state court from defeating removal jurisdiction by the use of pleading fictions.

The exception for wholly fictitious Does simply recognizes that diversity jurisdiction, and hence the availability of removal, cannot possibly be affected by Does which are included in the state court complaint as a matter of course even though no other possible parties to the action exist. As we stated in Grigg, "Does [who] live not and are accused of nothing, should not divert the course of justice." 246 F.2d at 620. When the Does in state court pleadings are wholly fictitious, the federal district court can judge diversity on the basis of the citizenship of the named parties to the action without fear that its determination will be affected by the later discovery of non-diverse parties.

The exception for Doe pleadings which give no clue as to the identity of the Does or their relationship to the cause of action is essentially a practical application of the exception for wholly fictitious Does. In some instances the Doe pleadings are so general that the district court may conclude that the Does do not exist or do not have any relationship to the action even though the parties have not conceded that the Does are fictitious. For example, if the Does are mentioned in the caption to the case or listed as parties but no indication is given regarding their identity or how their activities give rise to a cause of action, the district court may conclude that the Does will never be parties to the action and evaluate removal jurisdiction accordingly. See, e.g., Hartwell, 678 F.2d at 842 (Does mentioned in caption and described generally as participating in the alleged wrongdoing without any description of their role); Chism, 637 F.2d at 1330 (Does not included in any charging allegations); Asher v. Pacific Power & Light Co., 249 F.Supp. 671, 675-77 (N.D. Cal.1965) (Does not included in charging allegations, and nature of nuisance cause of action indicated that only appropriate defendant was the company, not Does). We emphasize that this is a very limited exception to the general rule that Does defeat diversity jurisdiction, and we will treat it as such. If the pleadings provide any information regarding the identity of the Does and their relationship to the action, the district court should remand the case to the state court. See, e.g., Pullman Co. v. Jenkins, 305 U.S. 534, 540, 59 S.Ct. 347, 350, 83 L.Ed. 334 (1939) (Doe identified as allegedly negligent porter but citizenship unknown); Preaseau, 591 F.2d at 77 n. 2 (Does identified as agents or employees of other defendants) (dicta). ² Once the existence of the Does, their citizenship, and their...