Should you list Doe Defendants in federal court complaints?

No. While naming “Does from 1 through 50, inclusive,” may be a common practice in California state court complaints, naming Doe defendants is generally not done in federal court. The naming of Doe defendants in federal question cases should be permissible when the complaint alleges why a defendant’s real name was not known. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 390, fn. 2 (1971). However, some federal courts have dismissed claims against Doe defendants, holding that Doe pleading is improper in federal court. See Graziose v. Am. Home Prod. Corp., 202 F.R.D. 638, 643 (D. Nev. 2001) (finding that there is no provision in the federal rules permitting the use of fictitious defendants).

Even when permissible, a federal court may limit the number of Doe defendants that can be listed in a complaint. In the Central District of California, Local Rule 19-1 provides that no complaint or petition shall be filed that includes more than ten (10) Doe or fictitiously named parties. The Eastern, Southern, and Northern Districts of California currently have no Local Rules addressing the number of Doe defendants that may be named in a complaint or petition.

Instead of naming a laundry list of Doe defendants, as is typical in CA state court, federal practitioners should instead move under FRCP 15 to amend the complaint before trial to add newly discovered defendants.

Lost in state court? Under the Rooker-Feldman doctrine, you don’t get second chances in federal court.

A litigant may lose in state court, whether at trial or on a motion to dismiss, and decide to give it a second try by refiling the case in federal court. Pro se litigants are more likely to seek second chances in federal court. A state court loser might, for example, file an expanded suit in federal court with additional claims that were not decided by the state court.  Pro se litigants have also filed suit in federal court complaining that a state court judge was biased or misapplied the law. Some pro se litigants have even filed suit in federal court seeking to overturn a judgment entered pursuant to a stipulated settlement, claiming that the state court settlement was procured as a result of fraud or duress.

Under the Rooker-Feldman doctrine, lower federal courts do not have subject matter jurisdiction to review state court judgments. Rather, the only federal court that can review state court judgments is the United States Supreme Court. The Rooker-Feldman doctrine arises in two Supreme Court decisions: Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). Federal courts care very much about subject matter jurisdiction and will not hesitate to dismiss a case if jurisdiction is lacking.

In application, the Rooker-Feldman doctrine can be confusing. The most common test used by federal courts is whether the claims now presented before them are “inextricably intertwined” with the state court action. If a claim before the federal court is independent of the state court action, then the federal court may have subject matter jurisdiction to hear the claim.

The Ninth Circuit approach to the Rooker-Feldman can be summarized as follows:

“The Rooker—Feldman doctrine instructs that federal district courts are without jurisdiction to hear direct appeals from the judgments of state courts.” (citation omitted). “The doctrine bars a district court from exercising jurisdiction not only over an action explicitly styled as a direct appeal” and also “the ‘de facto equivalent’ of such an appeal.” (citation omitted). “The purpose of the doctrine is to protect state judgments from collateral federal attack.” (citation omitted). The Rooker–Feldman doctrine applies where a party is: “[1] assert[ing] as her injury legal error or errors by the state court and [2] seek[ing] as her remedy relief from the state court judgment.” (citation omitted).

If a plaintiff is “bring[ing] a forbidden de facto appeal” such that the Rooker–Feldman doctrine applies, the doctrine will not only prohibit the Plaintiff from litigating the de facto appeal, but also any issue that is “inextricably intertwined” with the state court’s judgment. (citation omitted). The “inextricably intertwined” test is only applied if the Court has already determined that Rooker–Feldman applies because the plaintiff is seeking a prohibited de facto appeal. (citation omitted). A claim is “inextricably intertwined” with a state court judgment “if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it,” i.e. “[w]here federal relief can only be predicated upon a conviction that the state court was wrong.” (citations omitted). Thompson v. Santa Cruz County Human Services Dept. 2013 WL 1750960, *5 (N.D. Cal. 2013)(internal citations omitted).

There are exceptions to the Rooker-Feldman doctrine. In Kougasian v. TMSL, Inc., 359 F.3d 1136, 1140 (9th Cir. 2004), the Ninth Circuit held that Rooker–Feldman doctrine did not apply where plaintiff sought relief from a state court judgment based on extrinsic fraud by her adversaries in those proceedings. The court reasoned that “[e]xtrinisic fraud on a court is, by definition, not an error by [the state] court.” Id. at 1141. Similarly in Noel v. Hall, 341 F.3d 1148, 1155 (9th Cir. 2003), the Court held that the Rooker–Feldman doctrine did not bar the plaintiff’s claims alleging that his adversaries in the state court proceedings illegally wire-tapped him because the “plaintiff assert[ed] as a legal wrong an allegedly illegal act or omission by an adverse party.” Id. at 1164.

But where Rooker–Feldman does apply, federal courts are required to decline to exercise jurisdiction over any claim that is inextricably intertwined with the state court’s judgment, even if those claims allege misconduct by an adversary. Thompson v. Santa Cruz County Human Services Dept. 2013 WL 1750960, *8 (N.D. Cal. 2013). In Thompson, the Northern District of California held that the Rooker–Feldman doctrine did apply because Plaintiffs were, in addition to alleging misconduct by adverse parties, also asserting legal errors by the Juvenile Court and seeking relief from its judgment.

The above was only a cursory overview of the doctrine. The point is that anytime a claim presented to federal court has a history in state court, Defendants should pause to consider whether all or part of the suit can be dismissed for lack of subject matter jurisdiction under the Rooker-Feldman doctrine.

Affirmative Defenses in Federal Court Answers

In federal court, as in California state court, the affirmative defenses you list in your Answer will depend on an individualized analysis of the complaint and the facts of the case. Reference to treatises such as California Affirmative Defenses may be helpful. There are no mandatory affirmative defenses that must appear in a federal court Answer. However, you should check the list of suggested affirmative defenses set forth in FRCP 8(c)(1), which reads:

(c) Affirmative Defenses.

(1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including:

• accord and satisfaction;
• arbitration and award;
• assumption of risk;
• contributory negligence;
• duress;
• estoppel;
• failure of consideration;
• fraud;
• illegality;
• injury by fellow servant;
• laches;
• license;
• payment;
• release;
• res judicata;
• statute of frauds;
• statute of limitations; and
• waiver.

“Injury by fellow servant”? Sounds a defense from the 1800s. Of course, you should also include language reserving your right to assert additional affirmative defenses as you discover them. If you need to, you can move under FRCP 15 to amend your Answer.

Is there a federal equivalent to the CCP 998 Offer in Compromise?

Sort of. There is a similar mechanism under Rule 68 of the Federal Rules of Civil Procedure, called a statutory offer of judgment, but unlike California law only defendants can utilize it. If a plaintiff turns down defendant’s Rule 68 offer and obtains judgment for less than the offer, plaintiff must pay “the costs incurred after the offer was made,” which includes any attorneys’ fees recoverable by statute as part of “costs”. (FRCP 68(d).)

Unless Waived, An FRCP Rule 68 Offer Includes An Agreement to Pay the Plaintiff’s Costs!

In contrast to California law, a federal Rule 68 offer is not effective unless the defendant(s) includes a clear agreement to pay all Plaintiff’s costs incurred to the date of the offer. (Cruz v. Pacific American Ins. Co. (9th Cir. 1964) 337 F.2d 746, 750.) However, there is also authority suggesting that even if the Rule 68 offer omits to mention costs, then the Court will award accrued costs as long as the offer does not explicitly or implicitly provide that the judgment does not include costs. (Marek v. Chesny (1985) 473 US 1, 6, 105 S.Ct. at 3015; Le v. University of Pa. (3rd Cir. 2003) 321 F.3d 403, 409.) Importantly, if pre-offer attorneys’ fees are recoverable as “costs,” then a Rule 68 offer to pay all costs incurred to date necessarily includes those attorneys’ fees.

A Rule 68 offer can, however, be conditioned on plaintiff’s waiving statutory attorneys’ fees that would otherwise be recoverable as “costs.” Any waiver of attorneys’ fees must be explicit to be effective. For example, Plaintiff’s acceptance of a lump sum offer in “total settlement of all claims” (with no mention of costs) does not affect the right to recover accrued costs in addition to the “total” amount.

FRCP 68 requires that an offer of judgment be “served” on opposing parties, so that only a written offer satisfies Rule 68. The terms of a Rule 68 offer may also include non-monetary relief, such as injunctions, rescission or reformation of contract. An offer may be made at any time up to fourteen (14) days before the trial date. To be effective, an acceptance must be made in writing within fourteen (14) days of service (presumably extended by 3 days for mail under FRCP 6(d)). Once accepted, the offer and acceptance should be filed with the Court so that judgment may be entered.

What exactly is the “discovery cutoff date”?

Magistrate Judges in federal court usually issue the scheduling orders, which inform the litigants of discovery deadlines, pretrial motion deadlines, settlement conference date, pretrial conference date, and trial date. Some scheduling orders are more detailed than others. Nearly all of them have a “discovery cutoff date”. It may be a non-expert discovery cut-off date, or an expert discovery cut-off date. Still, it causes confusion. Some people wonder if it’s the last date by which you can get discovery requests out the door. Others think it’s also the last date for filing discovery-related motions.

To make sure you don’t miss any deadlines, you should always check the Local Rules and the Judge’s standing orders, if any. If the Court’s orders seem vague at all, you should confirm the deadlines with a clerk. Northern District of California Local Rule 37-3, for example, defines discovery cutoff date as “the date by which all responses to written discovery are due and by which all depositions must be concluded.”

The nearly uniform meaning of discovery cutoff date in federal court scheduling orders refers to the last date by which depositions must be completed and the last date by which responses to all previously served discovery requests must be served. The discovery cut-off date is not the last date on which discovery motions can be filed. While some scheduling orders will designate a separate discovery motion filing date, most of them simply designate a pretrial motion cutoff date.

Check the Local Rules frequently, as they are updated throughout the year.

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