Gary Bryant v. Ford Motor Co.

844 F.2d 602 Gary BRYANT, Plaintiff-Appellant, v. FORD MOTOR CO., Defendant-Appellee. Nos. 84-6389, 85-5698. United States Court of Appeals, Ninth Circuit. Argued En Banc and Submitted July 16, 1987. Decided Nov. 6, 1987. As Amended on Denial of Rehearing and Rehearing En Banc April 15, 1988. Michael L. Goldberg and Charles B. O'Reilly, Los Angeles, Cal., for plaintiff-appellant. Richard A. Goette, McCutchen, Black, Verleger & Shea, Los Angeles, Cal., for defendant-appellee. Appeal from the United States District Court for the Central District of California. Before BROWNING, Chief Judge, and GOODWIN, SNEED, ANDERSON, CANBY, NORRIS, REINHARDT, HALL, KOZINSKI, THOMPSON, and O'SCANNLAIN, Circuit Judges. CYNTHIA HOLCOMB HALL, Circuit Judge: 1 Plaintiff-appellant Gary Bryant appeals from the decision of the district court granting summary judgment in favor of defendant-appellee Ford Motor Company. We conclude that the district court lacked jurisdiction over this action because of the presence of Doe defendants at the time of removal from state court. I. 2 Bryant initiated this action for negligence, breach of warranty, and strict liability in California state court against Ford and…

Plaintiff-appellant Gary Bryant appeals from the decision of the district court granting summary judgment in favor of defendant-appellee Ford Motor Company. We conclude that the district court lacked jurisdiction over this action because of the presence of Doe defendants at the time of removal from state court.

I.

Bryant initiated this action for negligence, breach of warranty, and strict liability in California state court against Ford and Does 1 through 50. Ford removed the action to the United States District Court for the Central District of California based upon diversity of citizenship. 1 o Bryant did not object to removal. The district court took no action with respect to the Doe defendants.

Bryant seeks recovery for injuries he sustained in an accident while driving a Ford van for United Parcel Service on March 1, 1983. Bryant contends that the passive restraint system in the van was defective because it did not include a shoulder harness. Bryant’s complaint alleges that Does 1 through 50 are related to each other and to Ford as “agents, servants, employees and/or joint venturers.” Bryant claims that Ford and each of the Doe defendants were involved in the design,…

concurring:

I concur in the judgment because I agree that the district court lacked jurisdiction at the time of removal. Bryant’s complaint alleged that Ford and each of the 50 Doe defendants were involved in the design, production and distribution of the Ford van which Bryant claimed had a defective passive restraint system because it did not include a shoulder harness. At the time of removal, Ford made no effort to show that no California resident could have committed acts within the charging allegations of the complaint and thus failed to carry its burden of establishing complete diversity. See Pullman Co. v. Jenkins, 305 U.S. 534, 540 , 59 S.Ct. 347, 350 , 83 L.Ed. 334 (1939) (named defendant bound to show unnamed defendant a nonresident to justify removal). It made no effort, for example, to show that no one who had any involvement in the design, production or distribution of the van was a resident of California. Consequently, I believe we should decide this case on the narrow ground that the district court lacked jurisdiction because of Ford’s failure to show complete diversity at the time of removal.

Although I concur in the judgment, I cannot join the court’s opinion…

with whom Circuit Judge O’SCANNLAIN joins, dissenting.

The court has taken this case en banc to resolve a problem that has vexed our district courts for some time: how to treat fictitious parties — so-called Doe defendants —when a case is removed from state court on the basis of diversity of citizenship. That the problem is real and serious is without doubt. 1 Far more in doubt is the court’s solution. The court does not explain why it has chosen that particular approach to the problem, nor does it consider alternatives that might better reconcile the relevant state and federal interests.

The court’s lack of analysis reflects, perhaps, the dearth of briefing and argument on the issue. The case was presented to the en banc panel on the basis of the petition for rehearing, the opposition thereto and the reply. No additional briefing was called for. The rule the court now adopts as the law of the circuit — the so-called CTS Printex rule, named after the district court case where it was first announced, CTS Printex, Inc. v. American Motorists Ins. Co., 639 F.Supp. 1272 (N.D.Cal.1986)—was mentioned only in passing in the opposition to the petition for rehearing and the reply. It was…