fictitious party

Be Specific: description AND alleged responsibility In Viviano v. The decedent had been drinking in a bar in Atlantic City. A fictitious party is a party in whose name an action has been brought without any authority from him. A defendant also should move early for dismissal of fictitious defendants. However, as in Harrison, the amendment to substitute a newly determined party for a formerly fictitious party will not relate back to the original pleading under R. 4:9-3 unless the fictitious defendant description and allegations has the requisite level of specificity.
Harrison v. Trump Plaza: factual summary While federal courts generally do not permit fictitious party pleading, Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. And, as one might suspect, a removing defendant need not obtain a fictitious defendant's consent before removing the action. Kelley v. Vt. Mut. After the two year statute of limitations expired, plaintiff sought to substitute the both the architect/designer and construction manager/contractor for the John Doe defendants included in the complaint. The guidance issued by the New Jersey Supreme Court was clear that both specificity in the description and basis of the missing defendant’s responsibility would be required to comply with R. 4:26-4 and permit relation back to the original complaint under R. 4:9-3 and avoid the claim being barred by any applicable statute of limitations. However, failure to properly describe the fictitious parties and causes of action in the pleading will render the allegations against the fictitious parties useless. Balazik v. County of Dauphin, 44 F.3d 209, 213 & n.4 (3d Cir. First, some good news for any defendant contemplating removal to federal court: certain hurdles to removal do not apply to fictitious parties. In Harrison, plaintiffs named fictitious defendants who “maintained, controlled, supervised, managed and were responsible for the properties” however sought to include both the architect/designer and construction manager/contractor. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. . Rule 4:26-4, also known as the fictitious party rule, provides in pertinent part: In any action, … if the defendant’s true name is unknown to the plaintiff, process may issue against the defendant under a fictitious name, stating it to be fictitious and adding … In the king's superior courts, it was punishable as a high contempt to bring an action in the name of a person … Both before and after removal, plaintiff's counsel should use diligence in identifying fictitious defendants. Defense counsel should seek early removal to federal court and dismissal of fictitious defendants to preserve diversity of citizenship and limit the plaintiff's claims. /content/aba-cms-dotorg/en/groups/litigation/committees/products-liability/practice/2017/061317-resolving-fictitious-party-pleading-after-removal. Attorneys should understand the interplay between the relevant rules on relation back and fictitious party pleading. The preceding advice for plaintiffs provides direct corollaries for defendants. If removal is likely, plaintiff's counsel should include unidentified defendants as fictitious parties in the state court complaint and describe them with as much detail as possible. § 1447(e) rather than the more permissive standard of Rule 15. A fictitious party is a party in whose name an action has been brought without any authority from him. Moreover, the relation-back rules for a number of states expressly permit plaintiffs to utilize fictitious party pleading to relate newly-added claims back to the date of the initial pleading. Moreover, a plaintiff may lose certain claims if it does not diligently seek to discover the identity of a fictitious defendant. 1980); Harris v. Beaulieu Group, LLC, 394 F. Supp. Stephen C. Rogers is an associate at Maynard, Cooper & Gale, P.C.

A recent decision rendered in the matter of Estate of Harrison v. Trump Plaza Hotel & Casino, Civil No: 12-6683 (Judge Robert Kugler) addressed the adequacy of pleadings pertaining to the fictitious defendant rule in New Jersey. Co., 407 F. Supp. Some federal courts have considered whether the state court complaint included the non-diverse defendant as a fictitious defendant as a relevant factor under § 1447(e) in weighing the plaintiff's motive for substituting the defendant after removal. In the king's superior courts, it was punishable as a high contempt to bring an action in the name of a person who did not exist, or of one who was ignorant of the suit. In Viviano v. CBS, Inc., 101 N.J. 538, 548 (1986), the New Jersey Supreme Court provided specific guidance regarding the level of specificity required. Copyright © 2017, American Bar Association. Be Specific: description AND alleged responsibility

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