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Park v. Hari Krishna Mcfarland, Inc.

United States District Court, N.D. Georgia, Atlanta Division

September 22, 2017

ELIZABETH PARK, Plaintiff,
v.
HARI KRISHNA MCFARLAND, INC., D/B/A MARCO'S PIZZA #8162, AND JOHN DOE, Defendants. ELIZABETH PARK, Plaintiff,
v.
HARI KRISHNA MCFARLAND, INC., D/B/A MARCO'S PIZZA #8162, AND BENJAMIN KRUKE, Defendants.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Plaintiff Elizabeth Park's (“Plaintiff”) Motion for Leave to File Amended Pleadings to Substitute a Party Defendant [8] (“Motion to Substitute Party”) and Plaintiff's Motion to Consolidate Two Cases That Arise From the Same Facts and Circumstances [12] (“Motion to Consolidate”).

         I. BACKGROUND

         There are two actions before the Court brought by Plaintiff. In both, Plaintiff states identical facts and asserts identical claims for federal race discrimination in violation of 42 U.S.C. §§ 1981 and 2000a(a), conspiracy in violation of 42 U.S.C. § 1985, and intentional and negligent infliction of emotional distress.

         On June 5, 2017, Plaintiff filed the first action, 1:17-cv-2050, (the “2050 Action”) against Hari Krishna McFarland, Inc. d/b/a Marco's Pizza #8162 (“Marco's Pizza”) and John Doe. Plaintiff named John Doe as a defendant because she did not know the name of the employee who allegedly discriminated against her and caused her emotional distress. (Motion to Substitute Party at 5-6). When Defendant Marco's Pizza filed its Answer and Certificate of Interested Persons in the 2050 Action, Plaintiff contacted Marco's Pizza's counsel, who identified John Doe as Benjamin Kruke. (Id. at 6). On July 10, 2017, the second anniversary of the incident, Plaintiff filed her Motion to Substitute Party and her second action, 1:17-cv-2590, (the “2590 Action”), against Hari Krishna McFarland, Inc. d/b/a Marco's Pizza #8162 and now naming Benjamin Kruke as a defendant. Plaintiff filed the 2590 Action “out of an abundance of caution” because she thought the Court would not be able to rule on the Motion to Substitute Party before the two-year statute of limitations expired. (Motion to Consolidate at 2-3). Plaintiff, besides moving to substitute Benjamin Kruke for John Doe in the 2050 Action, also moves to consolidate the 2050 and 2590 cases. The Motion to Substitute Party and Motion to Consolidate are unopposed by Defendants.

         II. DISCUSSION

         A. Substitution of Party Defendant

         “As a general matter, fictitious-party pleading is not permitted in federal court.” Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010). Fictitious party pleading is allowed only in the limited case when a plaintiff's description of a fictitious defendant is specific enough to identify an actual person, although the name of the person is unknown. Dean v. Barber, 951 F.2d 1210, 1215-16 (11th Cir.1992); see also Richardson, 598 F.3d at 738. “One may be able to describe an individual (e.g., the driver of an automobile) without stating his name precisely or correctly.” Dean, 951 F.2d at 1215-1216.

         Plaintiff's use of fictitious pleading here is improper. Plaintiff states in the 2050 Complaint that a male employee working at one of Defendant Marco's Pizza's stores assisted her in ordering a pizza “on or about July 10, 2015.” (2050 Action Complaint at 2). Plaintiff provides no additional details. Plaintiff's description of an individual defendant does not meet the requirement of the exception to the rule prohibiting pleading fictitious parties. It is unclear how many other employees were working at the pizza store on the day the incident occurred or when Plaintiff interacted with the fictitious “John Doe” defendant. Plaintiff's description did not put the real “John Doe, ” Benjamin Kruke, on notice of the lawsuit. In Moulds v. Bullard, 345 Fed. App'x 387, 390, 2009 WL 2488182, at *2 (11th Cir. 2009), the Eleventh Circuit affirmed the dismissal of “John Doe” defendants where the plaintiff “completely failed to describe some of [them]” and “gave general descriptions of others.” The description here is even more uncertain.

         Defendant John Doe is dismissed from the 2050 Action. Plaintiff's Motion to Substitute Party is moot.[1]

         B. Consolidation of the Actions

         Rule 42 of the Federal Rules of Civil Procedure provides:

If actions before the court involve a common question of law or fact, the court may: (1) join for hearing or trial any or all matters at issue in the actions; (2) consolidate the actions; or (3) issue any other orders to avoid unnecessary cost or delay.

Fed. R. Civ. P. 42(a). “A district court's decision under Rule 42(a) is purely discretionary, ” but trial judges are encouraged to use the rule “to expedite the trial and eliminate unnecessary repetition and confusion.” Melgarejo v. Nationstar Mortgage LLC, No. 1:12-CV-01494-RWS, 2012 WL 5077363, at *1 (N.D.Ga. Oct. 17, 2012) ...


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