Opinion
CASE NO. 2:00-cv-918-MEF (WO).
July 13, 2007
MEMORANDUM OPINION AND ORDER
In this longstanding action, Plaintiffs seek injunctive and declaratory relief regarding the alleged deprivation of their rights under federal law to services for disabled adults. Plaintiffs, who have already filed two amended complaints, now move pursuant to Federal Rules of Civil Procedure 15 and 20 to amend their complaint to include the claims of six further individual parties as well as several "John Doe" parties. This cause is before the Court on Plaintiff's Motion for Leave to File Third Amended Complaint and to Join Additional Plaintiffs (Doc. # 83) filed on April 9, 2007. Defendants oppose this motion. For the reasons set forth below, the Motion is due to be GRANTED IN PART and DENIED IN PART.
One of the six individual parties the Plaintiffs seek to add in their proposed amended complaint is Kelly B., a 33 year old female who suffered from mental retardation, renal disease, kidney failure, digestive disorders, and heart and other circulatory conditions. Kelly B., who brings this action through her mother and next friend, Karen B., died on January 13, 2007. According to the Plaintiffs proposed amended complaint, Kelly B. died of complications related to her renal disease and was, at the time of her death, on the waiting list to obtain services from the Defendants. The Defendants contend that Kelly B. is an improper party because her claim for injunctive relief was rendered moot upon her death. The Court agrees. See, e.g., Golthy v. Alabama, 287 F. Supp. 2d 1259, 1263 (M.D. Ala. 2003 (Albritton, J.). Furthermore, as to the declaratory relief, even if it could be argued that Kelly B.'s estate had standing to pursue such relief, any proposed joinder would be an act of futility. A declaratory judgment would establish only what rights Kelly B. would have had to disability services in the event she had not passed away.
The defendants further object to the inclusion in the proposed amended complaint of fictitious party plaintiffs, "John Does ## 1-6." The Federal Rules of Civil Procedure do not provide for fictitious party practice. See Fed.R.Civ.P. 10(a) ("[i]n the complaint, the title of the action shall include the names of all the parties . . ."); New v. Sports Recreation, Inc., 114 F.3d 1092, 1094 n. 1 (11th Cir. 1997) (fictitious party practice not permitted in federal court and plaintiff's failure to name parties required that court strike parties.) The Plaintiffs cite a recent case from this district in which it was acknowledged that "[s]ome courts have found that, where the name of a specific person whom the plaintiff wishes to join as a defendant is unknown, the plaintiff may substitute an unnamed defendant until the plaintiff is able to discover the defendant's name." Lewis v. City of Montgomery, 2006 WL 1761673 at *2 (M.D. Ala. 2006) (Watkins, J.) (citing Scheetz v. Morning Call, Inc., 130 F.R.D. 34 (E.D. Pa. 1990)). However, what the Plaintiffs omit from Lewis is that despite acknowledging that "some courts" allow fictitious parties, Judge Watkins ultimately dismissed the fictitious defendants. As was the case in Lewis, the John Doe plaintiffs are due to be dismissed.
The Plaintiffs motion is due to be granted in part as to the remaining proposed party plaintiffs because they assert a right to relief arising out the same underlying series of transactions and there is common questions of law or fact. Fed R. Civ. P. 20(a). However, nothing in this Order should be construed as a ruling on the merits of the Plaintiffs' claims. Consequently, Defendants are not precluded from raising a challenge to the claims in the Third Amended Complaint in a properly made dispositive motion.
Therefore, it is hereby ORDERED as follows:
(1) The Plaintiff's Motion (Doc. # 83) is DENIED to the extent it seeks to join either Kelly B. or any John Doe party.
(2) The Plaintiffs' Motion (Doc. # 83) is GRANTED in all other respects.
(3) The Plaintiffs' Motion to Strike Defendants' Response to Plaintiffs Motion for Leave to File Third Amended Complaint and to Join Additional Plaintiffs (Doc. # 86) is DENIED.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST1. Appealable Orders: Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 486 U.S. 196 201 108 S.Ct. 1717 1721-22 LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. 890 F.2d 371 376 Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing: Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal: See also 3pro se 4. Effect of a notice of appeal: 4
Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , , , , , 100 L .Ed.2d 178 (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , 69S.Ct. 1221, 1225-26, (1949); , , (11th Cir. 1989); , , , , , (1964). The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).