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Donald R. Huene v. U.S. Department of the Treasury


May 2, 2012


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Presently before the court*fn1 is the United States'*fn2 motion to dismiss ten fictitious defendants named by plaintiff as "Does I through X" for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), and for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) (Dkt. No. 21). Plaintiff opposes the United States' motion in part (Dkt. No. 33).

Because oral argument would not materially aid the resolution of the pending motion, this matter is submitted on the briefs and record without a hearing. See Fed. R. Civ. P. 78(b); E. Dist. Local Rule 230(g). The undersigned has considered the briefs and appropriate portions of the record in this case and, for the reasons stated below, recommends that the defendants named as "Does I through X" be dismissed without prejudice.


Generally, plaintiff's complaint concerns the alleged actions of the Internal

Revenue Service ("IRS") and its agents in connection with a continuing tax audit of plaintiff.*fn3

Plaintiff named the IRS, agent Anthony Shelly, and "Does I through X" as defendants. Plaintiff asserts three claims for relief and seeks injunctive relief, declaratory relief, and damages. First, plaintiff alleges that defendants' denial of plaintiff's access to plaintiff's tax records violated the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a. (Compl. ¶ 26.) Second, plaintiff alleges that defendants' dissemination of plaintiff's private tax information to third parties without plaintiff's consent or authorization violated the Privacy Act. (Id. ¶¶ 27-28.) Finally, plaintiff alleges a claim pursuant to 42 U.S.C. § 1983, asserting that defendants violated his Fourth Amendment rights.*fn4 (Id. ¶¶ 29-32.)


The United States moves to dismiss Does I through X on several grounds. First, it argues that plaintiff "failed to allege any causes of action against, or request any form of relief with respect to the Does." (Memo. of P. & A. In Supp. of Mot, to Dismiss at 1, Dkt. No. 22.) Additionally, it argues that even assuming the presence of allegations specific to the Doe defendants, the Doe defendants should be dismissed for lack of subject matter jurisdiction and plaintiff's failure to state a claim on which relief can be granted. (Id. at 1-2.)

No federal statute or Federal Rule of Civil Procedure expressly permits the naming of a fictitious defendant or "John Doe" defendant in a federal pleading, see Fifty Assocs. v. Prudential Ins. Co. of Am., 446 F.2d 1187, 1191 (9th Cir. 1970), and the Ninth Circuit Court of Appeals has commented that "[a]s a general rule, the use of 'John Doe' to identify a defendant is not favored." Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980), characterized as dicta in Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999)). However, so-called "Doe pleading" is not prohibited in federal practice. Lopes v. Vieira, 543 F. Supp. 2d 1149, 1152 (E.D. Cal. 2008); cf. Merritt v. County of L.A., 875 F.2d 765, 768 (9th Cir. 1989). Naming Doe defendants might be necessary where the plaintiff has stated a valid claim, but requires discovery to identify the proper defendant. See Wakefield, 177 F.3d at 1163.

Although Doe pleading is not prohibited in federal court, the undersigned recommends that Does I through X be dismissed. Plaintiff's complaint includes no allegations specific to any of the Doe defendants, and plaintiff has not alleged whether or why he was unable to name these Doe defendants. Moreover, plaintiff has not specified which claim or claims he is actually asserting against these Doe defendants. Instead, the only reference to the Doe defendants appears in the caption. In light of these facts, the undersigned recommends that Does I through X be dismissed. Because of this conclusion, the undersigned does not reach the remainder of the United States's arguments in favor of dismissal of the Doe defendants.

Plaintiff's primary concern in regards to the naming of Doe defendants in this case appears to be that the IRS has allegedly withheld informal discovery from plaintiff that would allow plaintiff to allege the actual names of additional defendants. (See Pl.'s Opp'n at 2.) As a result, plaintiff named Doe defendants and will supply the names of those defendants after he conducts discovery. (See id.) In light of this concern, the undersigned recommends that the dismissal of Does I through X be without prejudice. If plaintiff obtains information leading to the identification of additional appropriate defendants, he may diligently seek defendants' stipulation to amend the complaint or move to amend the complaint pursuant to Federal Rule of Civil Procedure 15(a)(2). As stated in Rule 15(a)(2), "the court should freely give leave [to amend] when justice so requires. Fed. R. Civ. P. 15(a)(2); see also Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) (providing that after the filing of a responsive pleading, "leave to amend should be granted unless amendment would cause prejudice to the opposing party, is sought in bad faith, is futile, or creates undue delay"). To the extent that plaintiff is concerned about the running of the applicable statute of limitation, Federal Rule of Rule Civil Procedure 15(c) and case law provide for the relation back of amendments, and the court will consider issues pertaining to the relation back of any amendment at the time plaintiff's moves or proposes to amend the complaint.


For the foregoing reasons, IT IS HEREBY ORDERED that the United States' motion to dismiss the defendants named as "Does I through X" is submitted without a hearing, and the May 17, 2012 hearing on the United States' motion is VACATED.


1. The United States' motion to dismiss (Dkt. No. 21) be granted.

2. The fictitious defendants named as "Does I through X" be dismissed without prejudice.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Id.; see also E. Dist. Local Rule 304(b).

Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed with the court and served on all parties within fourteen days after service of the objections. E. Dist. Local Rule 304(d). Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).


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