Unreported / Non-Citable
Background
Stephen M. Farmer sued Foot Locker Retail, Inc. and “Employee Doe” in California state court asserting only state-law claims. Foot Locker removed the case to federal court on diversity grounds. Farmer then filed a Corrected First Amended Complaint identifying “Employee Doe” as “Employee Sam,” alleging Sam was a California citizen because he worked at one of Foot Locker’s California stores. Plaintiff is a California citizen; Foot Locker is a New York citizen.
Farmer moved to remand, arguing that with both himself and the in-state employee as parties, complete diversity was lacking. Foot Locker opposed, arguing that “Employee Sam” — identified only by a first name and physical description — remained a fictitious defendant whose citizenship must be disregarded under 28 U.S.C. § 1441(b)(1).
The Court’s Holding
Judge R. Gary Klausner denied the motion to remand. Section 1441(b)(1) provides that “in determining whether a civil action is removable on the basis of [diversity] jurisdiction . . . the citizenship of defendants sued under fictitious names shall be disregarded.” Even though Farmer alleged that the employee’s first name was “Sam” and that he worked at a California store, the FAC did not identify the employee’s full identity or other pertinent information that would distinguish him from any other “Sam.” That left him a fictitious defendant under the plain text of § 1441(b).
The court was aware of nonbinding district-court decisions holding that a “sufficiently identified” fictional defendant may count for diversity analysis, but found that approach incompatible with § 1441’s plain language and declined to follow it (citing Bee v. Walmart, 2022 WL 782382). The court noted that Farmer had since learned the employee’s full name (“Sam Rodriguez”) and filed a motion to amend the FAC to add him; that motion was still pending and did not affect the present analysis. The court left open the possibility of revisiting jurisdiction once Sam Rodriguez was actually substituted as a defendant.
Key Takeaways
- Under 28 U.S.C. § 1441(b)(1), the citizenship of defendants sued under fictitious names must be disregarded for purposes of removal-based diversity analysis.
- Identifying a defendant only by first name and general physical description leaves him a “fictitious” defendant — additional facts (last name, official identification) are needed to count him as a real party.
- Some district courts apply a “sufficiently identified” exception treating Doe defendants with detailed allegations as real, but Judge Klausner has consistently rejected that approach as inconsistent with § 1441(b)’s plain language.
- Once a plaintiff actually amends to substitute a real, fully identified non-diverse defendant, the court may need to revisit subject-matter jurisdiction.
- Plaintiffs hoping to defeat diversity removal should identify and properly join in-state defendants by full name before seeking remand, not after.
Why It Matters
This order continues a long-running disagreement among Central District judges about whether plaintiffs can defeat removal by alleging detailed but unnamed Doe defendants. Judges who follow the plain language of § 1441(b)(1) — like Judge Klausner — disregard such defendants entirely; other judges accept “sufficiently identified” Does as real parties for diversity analysis. The split makes case assignment important for plaintiffs’ counsel.
Practitioners on the plaintiff side should aim to identify and serve in-state defendants by full name as quickly as possible after suit is filed — and certainly before any removal motion is briefed — to avoid this question altogether.