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Criteria for Amending a Complaint to Replace “John Does” with Named Defendants Explained

Plaintiff alleged he was injured when tackled by police officers. The officers were named in the complaint as “john does.” After the statute of limitations had run, plaintiff sought to amend the complaint to name the officers involved. The Second Department determined the motion was properly denied because plaintiff did not exercise due diligence in discovering the officers’ names:

In order to employ the procedural “Jane Doe” or “John Doe” mechanism made available by CPLR 1024, a plaintiff must show that he or she made timely efforts to identify the correct party before the statute of limitations expired … . “[W]hen an originally-named defendant and an unknown Jane Doe’ [or John Doe’] party are united in interest, i.e. employer and employee, the later-identified party may, in some instances, be added to the suit after the statute of limitations has expired pursuant to the relation-back’ doctrine of CPLR 203(f), based upon postlimitations disclosure of the unknown party’s identity” … . The moving party seeking to apply the relation-back doctrine to a later-identified “Jane Doe” or “John Doe” defendant has the burden, inter alia, of establishing that diligent efforts were made to ascertain the unknown party’s identity prior to the expiration of the statute of limitations … .

Here, the plaintiffs failed to establish that they exercised due diligence to discover the identity of the John Doe defendants prior to the expiration of the statute of limitations. There is no indication in the record that the plaintiffs engaged in any pre-action disclosure or made any Freedom of Information Law requests … . Moreover, there is no indication that the plaintiffs sought assistance from either the Criminal Court or the Supreme Court to learn the identities of the individual officers before the statute of limitations had run … . Although the plaintiffs maintain that, due to a pending investigation by the NYPD’s Internal Affairs Bureau, they did not learn the identities of the subject officers until the injured plaintiff’s criminal trial, the plaintiffs’ submissions failed to show that they diligently sought to gain access to the records contained in the file for the criminal proceeding prior to the expiration of the statute of limitations. Holmes v City of New York, 2015 NY Slip Op 07819, 2nd Dept 10-28-15

 

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