Hannah v. Majors , 35 F.R.D. 179 ( 1964 )

BECKER, District Judge.

In Count I plaintiff Alma Ruth Hannah, a resident citizen of Missouri, sued Jerry Leon Majors, a minor, Melvin Majors and Louise Majors for damages from personal injuries. These defendants are alleged to be residents of Kansas. Also named as defendants are John Doe, Mary Roe and John Doe Company, a corporation. These last defendants are not shown to exist. No service has been had on any such defendants. Obviously this is a device to permit the amendment of the complaint if the real names of other defendants are discovered by plaintiff. No residence is stated concerning the Doe defendants.

The same general condition exists in Counts II, III, IY and V except that in Count III the real plaintiff is an infant daughter of the plaintiff in Count I. No state of residence or citizenship of this infant is stated but its residence will be presumed to be Missouri, the residence of its surviving parent.

Defendants move to dismiss for lack of diversity because the state of residence of the Doe defendants is not stated, and because the state of residence of the infant plaintiff in Count III is not stated.

The motion should be denied because no amendment has been permitted to make anyone really existing a defendant in the place of a Doe defendant, and until such an amendment has been permitted the Doe defendant allegations are surplusage. As stated earlier the infant plaintiff in Count III is presumed to have the same residence and citizenship as its mother, namely, Missouri. Therefore it is

Ordered that the motion to dismiss be, and the same is hereby, denied. It is further

Ordered that Melvin Majors be, and he is hereby, appointed guardian ad litem for the defendant Jerry Leon Majors, a minor.