Molnar v. National Broadcasting Company

Decision Date04 January 1956
Docket NumberNo. 14712.,14712.
Citation231 F.2d 684
PartiesEllen MOLNAR, Appellant, v. NATIONAL BROADCASTING COMPANY, Inc., a corporation, Appellee.
CourtU.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.

JAMES ALGER FEE, Circuit 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:

"I. The true names or capacities, whether individual, corporate, associate or otherwise, of defendants Doe 1-X are unknown to plaintiff who therefore sues said defendants by such fictitious names. When the true names and capacities of such fictitiously designated defendants are ascertained, plaintiff will ask leave of court to amend this complaint to insert said true names and capacities, together with the proper charging allegations. Plaintiff is informed and believes and thereon alleges that each of the defendants sued herein as a Doe is responsible in some manner for the events and happenings herein referred to, and caused injury and damages proximately thereby to the plaintiff as herein alleged.
"II. Plaintiff is a citizen and resident of the State of California; defendants, and each of them, are citizens and residents of the State of Delaware.
"III. This is an action wholly between citizens of different states involving an amount in controversy in excess of $3,000.00, exclusive of interest and costs.
"IV. Defendant National Broadcasting Company, Inc., a corporation, is now, and at all times mentioned herein, was a corporation organized and existing under and by virtue of the laws of the State of Delaware and authorized to do and engaged in doing business in the State of California."

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:

"In the United States District Court for the Southern District of California, Central Division
"No. 17853-WM — Civil

"Ellen Molnar, Plaintiff vs "National Broadcasting Company Inc., a corporation, Doe I-X Defendants.

"Order Dismissing Action for Want of Jurisdiction over the Subject Matter
"It appearing to the Court:
"(1) that the record in this cause does not disclose complete diversity of citizenship between the parties 28 U.S.C. § 1332; City of Indianapolis v. Chase National Bank, 314 U.S. 63, 69-70, 76-77 62 S.Ct. 15, 86 L.Ed. 47 (1941); Parker v. Overman, 18 How. 137, 141, 59 U. S. 137, 141 15 L.Ed. 318 (1855); Mullen v. Torrance, 9 Wheat. 537, 538, 22 U.S. 537, 538 6 L.Ed. 154 (1824);
"(2) that there is no claim or cause of action asserted in the complaint which `arises under the Constitution, laws or treaties of the United States\' 28 U.S.C. § 1331; Gully v. First National Bank, 299 U.S. 109, 112- 114 57 S.Ct. 96, 81 L.Ed. 70 (1936); People of Puerto Rico v. Russell & Co., 288 U.S. 476, 483-484 53 S.Ct. 447, 77 L.Ed. 903 (1933); Hooe v. United States, 218 U.S. 322, 335-336 31 S.Ct. 85, 54 L.Ed. 1055 (1910); Scribner v. Straus, 210 U.S. 352 28 S.Ct. 735, 52 L.Ed. 1094 (1908); Wade v. Lawder, 165 U.S. 624 17 S.Ct. 425, 41 L.Ed. 851 (1897); Dale Tile Mfg. Co. v. Hyatt, 125 U.S. 46 8 S.Ct. 756, 31 L.Ed. 683 (1888); Republic Pictures Corp. v. Security, etc., Bank, 197 F. 2d 767 (9 Cir., 1952);
"(3) that inasmuch as facts requisite to federal jurisdiction Fed. Rules Civ.Proc., Rule 8(a) (1), 28 U.S.C.A. 252 (1950) do not affirmatively appear Robertson v. Cease, 97 U.S. 646, 648-650 24 L.Ed. 1057 (1878); Ex parte Smith, 94 U.S. 455, 456 24 L.Ed. 165 (1876), this court of limited jurisdiction Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-109 61 S.Ct. 868, 85 L.Ed. 1214 (1941) presumably lacks jurisdiction of the cause Bors v. Preston, 111 U.S. 252, 255 4 S.Ct. 407, 28 L.Ed. 419 (1884); Grace v. American Central Ins. Co., 109 U.S. 278 3 S. Ct. 207, 27 L.Ed. 932 (1883); Turner v. Bank of North America, 4 Dall. 7, 11, 4 U.S. 7, 11 1 L.Ed. 718 (1800); New York Life Ins. Co. v. Kaufman, 78 F.2d 398, 400 (9 Cir., 1935);
"It is Ordered upon the Court\'s own initiative Fed.Rules Civ.Proc., Rule 12(h), 28 U.S.C.A. that the action is hereby dismissed for lack of jurisdiction over the subject matter Fed. Rules Civ.Proc., Rule 12(b) (1), 28 U.S.C.A..
"It Is Further Ordered that this dismissal shall not operate as an adjudication upon the merits Fed.Rules Civ.Proc., Rule 41(b), 28 U.S.C.A.. "It Is Further Ordered that the Clerk this day serve copies of this order by United States mail upon the attorneys for the parties appearing in this cause."

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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    ...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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    ...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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