Molnar v. National Broadcasting Company
Decision Date | 04 January 1956 |
Docket Number | No. 14712.,14712. |
Citation | 231 F.2d 684 |
Parties | Ellen MOLNAR, Appellant, v. NATIONAL BROADCASTING COMPANY, Inc., a corporation, Appellee. |
Court | U.S. Court of Appeals — Ninth Circuit |
Vivian M. Feld, William Jerome Pollack, Los Angeles, Cal., William R. Lund, Van Nuys, Cal., for appellant.
No appearances for appellee.
Before FEE and CHAMBERS, Circuit Judges, and WALSH, District Judge.
This action was brought by plaintiff against defendants described in the original title as follows: "National Broadcasting Company, Inc., a corporation, Doe 1-X, Defendants." As to these defendants it is alleged:
Jurisdictional amount is properly alleged. It is set up that "defendants" owned, operated, managed and controlled a building containing a stairway located in Los Angeles, California. It is alleged that plaintiff was injured by a fall on this stairway, which was carelessly and negligently maintained by "defendants."
The trial court dismissed the complaint because it did not appear clearly that none of the persons named as "Does" was a citizen of California. The dismissal was without prejudice. The order of the trial court1 dismissing the action reads as follows:
This appeal followed.
Unquestionably, if plaintiff had offered to amend by striking "Doe 1-X" from the title and the allegations relating to these from the complaint even after the order was entered, the court would have permitted the order to be set aside and the cause to proceed. A complaint defective in allegation of diversity of citizenship can be amended to show the true state of facts even in the United States Supreme Court.2 The incident is alleged to have occurred on May 21, 1954. The complaint was filed on February 8, 1955. There would have been plenty of time, had the cause been allowed to remain or be reinstated against National Broadcasting Company, Inc., alone, to pursue the liberal procedures as to discovery and to turn up other postulated persons who might eventually have been found to have the citizenship and connection with the alleged occurrence requisite to joinder as defendants. Even a new complaint naming the Broadcasting Company only as defendant could have been filed with like opportunities. Plaintiff availed herself of none of these courses and made no showing whatever to the trial court, before or after, that there were citizens of Delaware in addition to National Broadcasting Company, Inc., a corporation, involved. Instead, she promptly appealed the ruling on one of the minutiæ of practice to this Court. This bitter insistence upon shallow technicality by a lawyer is not to be commended. If the identity of defendants were known so that the pleader could state they were citizens of Delaware, she could also state their names and allege what part each had in the management and control of the stairway. But, if the allegation that they are citizens of Delaware be, as on the face of the complaint it is, unfounded guesswork, the jurisdiction of the court is not established.3
Were the courts to allow such complaints to be filed unchallenged, a great opportunity for confusion would arise. See Roth v. Davis, 9 Cir., 231 F.2d 681. The allegations, if suffered to remain in the complaint, might cause apparent technical difficulties later. Delay in bringing the cause to issue and trial is the immediate consequence. Such allegations might be used in terrorem to give validity to a suit which had no foundation.
Plaintiff alleges there were actual persons thus joined as defendants under fictitious designations, but she does not describe them or make any allegation about the respective function of each or the connection of each with the accident. It is clear, in the absence of this identification or connection or name, that the allegation of citizenship in Delaware is illusory. It was impossible for the court to say that defendants thus joined were not indispensable from the face of the complaint. At the stage where the...
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Brink v. First Credit Resources
...names is not generally favored, there are exceptional circumstances in which the practice is allowed. See Molnar v. Nat'l Broad. Co., 231 F.2d 684, 687 (9th Cir.1956) (Plaintiff could not join fictitious parties to extend jurisdiction), Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.198......
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Bryant v. Ford Motor Co.
...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 Cir.1956). Nevertheless, in a more recent case, we held, that a plaintiff is entitled to the benefit of the California Doe pl......
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Bryant v. Ford Motor Co.
...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 Cir.1956). Nevertheless, in a more recent case, we held that a plaintiff is entitled to the benefit of the California Doe ple......
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Rojas v. Sea World Parks & Entm't, Inc.
...been overruled, have repeatedly held that federal courts do not permit the use of doe defendants. See, e.g. , Molnar v. Nat'l Broad. Co. , 231 F.2d 684, 687-88 (9th Cir. 1956) (noting that the "attempt to join fictitious defendants is said to be justified in California practice," but "no on......