Florida Appeals Court Nixes Use Of "John Doe" Defendants In Lawsuit Absent Statute Authorizing Otherwise; More Hot Water For Foreclosure Mills?

A Florida appeals court recently affirmed a lower court ruling disallowing the practice of filing "John Doe" complaints by a plaintiff when the names of certain potential defendants are unknown. From the ruling:

• We affirm the order granting the motion to quash service of process as to defendant Krieger-Martin (one of the “unknown John Does”). Krieger-Martin was not named in the style of the complaint, nor was she referenced in any allegation contained in the body of the complaint.
  
  In the absence of a statute authorizing such a procedure, the filing of a “John Doe” complaint is not sufficient to commence an action against a real party in interest. Grantham v. Blount, Inc., 683 So. 2d 538 (Fla. 2d DCA 1996).(1) The complaint failed to give this ostensible defendant actual notice that a lawsuit was being commenced against her. Liebman’s attempted service of process upon this individual (in which the summons described the person to be served as “unknown John Doe #5”) cannot serve to satisfy this notice requirement. Gilliam v. Smart, 809 So. 2d 905, 909 (Fla. 1st DCA 2002) (“The service of process on an individual cannot be used to broaden the scope of the pleadings to add a defendant who is not named as a party in the complaint.”).(2)

Unless there is a statute authorizing this "John Doe" procedure in a foreclosure action, does this mean more hot water for the foreclosure mills who may have improperly loaded up their lawsuits against homeowners with "John Doe" defendants (possibly in an attempt to inflate the process server fees these cases generate)? How about an additional cause of action in a countersuit against them for a possible violation of the Federal Fair Debt Collection Practices Act?

For the ruling, see Liebman v. Miami-Dade County Code Compliance Office, No. 3D10-43 (Fla. App. 3d DCA, February 9, 2011).

(1) From Grantham v. Blount, Inc., 683 So. 2d 538 (Fla. 2d DCA 1996) (bold text is my emphasis):

• Some states have statutes or rules of civil procedure that permit a plaintiff to file a fictitious or "John Doe" pleading if the true name of the defendant is not known. Once the true identity of the defendant is ascertained, the plaintiff then files an amendment naming the defendant. This amendment relates back to the date the original complaint was filed. See Mass. Gen. Laws Ann. ch. 223, § 19 (West 1995); Ala. R. Civ. P. 9(h) and 15(c)(4). See generally Joel E. Smith, Annotation, Relation Back of Amended Pleadings Substituting True Name of Defendant for Fictitious Name Used in Earlier Pleading So as to Avoid Bar of Limitations, 85 A.L.R.3d 130 (1978); Note, Designation of Defendants by Fictitious Names—Use of John Doe Complaints, 46 Iowa L.Rev. 773, 776 n.15 (1961) [hereinafter 46 Iowa L.Rev.]. Florida is not one of these states.
  
  In the absence of a substantive or remedial statute permitting John Doe actions as a method to extend the limitations period, the legislature requires this court to consider whether the English common law permitted such actions on July 4, 1776. § 2.01, Fla. Stat. (1995). We have found no English common law authorizing John Doe pleading in this fashion.

(2) From Gilliam v. Smart, 809 So. 2d 905 (Fla. 1st DCA 2002) (bold text is my emphasis):

• In Florida, the filing of a "John Doe" complaint, without more, does not commence an action against a real party. See Grantham, 683 So.2d at 538.