Weaver v. JSL Windy Hill II LLC et al
| Michael Weaver |
| JSL Windy Hill II LLC, Rare Hospitality International Inc doing business as LongHorn Steakhouse #5459, John Doe 1, John Doe 2 and John Doe 3 |
| 4:2023cv01713 |
| April 25, 2023 |
| US District Court for the District of South Carolina |
| R Bryan Harwell |
| P.I.: Other |
| 28 U.S.C. ยง 1332 Diversity-Personal Injury |
| Both |
Docket Report
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| Document Text |
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| Filing 10 Local Rule 26.01 Answers to Interrogatories by Rare Hospitality International Inc.(Roberts, Randi) |
| Filing 9 ANSWER to #1 Complaint by Rare Hospitality International Inc.(Roberts, Randi) |
| Filing 8 CERTIFICATE OF SERVICE by Michael Weaver (Attachments: #1 Affidavit JSL Windy Hill II, LLC)(Diamaduros, Konstantine) |
| Filing 7 CERTIFICATE OF SERVICE by Michael Weaver (Attachments: #1 Affidavit Rare Hospitality International)(Diamaduros, Konstantine) |
Filing 6
TEXT ORDER denying Plaintiff's #5 motion for service of John Doe 1, John Doe 2, and John Doe 3 by publication. As an initial matter, S.C. Code Ann. 15-9-710 provides for service by publication "[w]hen the person on whom the service of the summons is to be made cannot, after due diligence, be found within the State." The statute provides specific circumstances under which service by publication can be had, including: when the defendant, being a resident of this State, has departed therefrom, with intent to defraud his creditors or to avoid the service of a summons or keeps himself concealed therein with like intent, or when the defendant is a resident of this State and after a diligent search cannot be found.Plaintiff has not demonstrated that any of these above criteria have been met. Plaintiff simply does not know the identities of these fictitious defendants. The statute authorizing service by publication contemplates a case involving a known defendant that cannot be found within the State after a diligent search, and does not appear to authorize service by publication when the defendants are merely fictitious parties. The Court is unaware of any legal authority that allows for a "John Doe" defendant in this type of matter to be served by publication. Second, S.C. Code Ann. 15-9-740 requires the order directing service by publication to designate a newspaper most likely to give notice to the person served. Plaintiff's motion does not indicate any such newspaper but states that the identities of the "John Doe" defendants are unknown. Although the proposed order submitted with the motion directs publication to the Myrtle Beach Herald, based on the lack of information provided by Plaintiff, the Court cannot make a determination or designate a newspaper most likely to give notice to the persons Plaintiff seeks to serve by publication.The South Carolina Court of Appeals has cautioned that "[t]o avoid resolving litigation by default, strict compliance with the publication statutes is appropriate." Caldwell v. Wiquist, 741 S.E.2d 583, 588 (S.C. Ct. App. 2013). Here, Plaintiff has failed to show that, after due diligence, the "John Doe" defendants cannot be found within the State. Additionally, Plaintiff has failed to designate a newspaper most likely to give notice to the persons served. Finally, serving a "John Doe" defendant serves no practical purpose in terms of tolling the statute of limitations. See, e.g., Locklear v. Bergman & Beving AB, 457 F.3d 363, 367 (4th Cir. 2006) (noting longstanding federal case law holding that the substitution of named parties for "John Doe" defendants does not constitute a mistake pursuant to Fed. R. Civ. P. 15(c)(3)); Wayne v. Jarvis, 197 F.3d 1098, 110304 (11th Cir.1999); Jacobsen v. Osborne, 133 F.3d 315, 321 (5th Cir.1998); Baskin v. City of Des Plaines, 138 F.3d 701, 704 (7th Cir.1998); Cox v. Treadway, 75 F.3d 230, 240 (6th Cir.1996) (internal quotations and citations omitted); Barrow v. Wethersfield Police Dep't, 66 F.3d 466, 470 (2d Cir.1995), modified 74 F.3d 1366 (2d Cir.1996). In other words, simply serving the fictitious defendants by publication will not accomplish Plaintiff's possible goal of tolling of the statute of limitations in the event Plaintiff determines the identities of the fictitious defendants after the statute of limitations has expired. An amended complaint to substitute a real party in the place of a "John Doe" defendant does not "relate back" for statute of limitations purposes. See, e.g. Herrera v. Cleveland, 8 F.4th 493, 498 (7th Cir. 2021), cert. denied, 142 S. Ct. 1414 (2022) (holding "naming a John Doe defendant does not constitute a 'mistake' within the meaning of Rule 15(c)(1)(C)(ii)").If counsel has any legal authority authorizing service of a "John Doe" defendant by publication, in a case of this type, he should immediately file a motion for reconsideration along with that legal authority. For those reasons, Plaintiff's #5 motion for service of John Doe 1, John Doe 2, and John Doe 3 by publication is DENIED. Signed by Chief Judge R Bryan Harwell on 5/2/2023.(tmcb, )
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| Filing 5 MOTION for Service by Publication by Michael Weaver. Response to Motion due by 5/11/2023. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. Proposed order is being emailed to chambers with copy to opposing counsel.(Diamaduros, Konstantine) |
| Filing 4 Summons Issued as to John Doe 1, John Doe 2, John Doe 3, JSL Windy Hill II LLC, Rare Hospitality International Inc. Service due by 7/24/2023. (hcic, ) |
| Filing 3 Local Rule 26.01 Answers to Interrogatories by Michael Weaver.(hcic, ) |
| Filing 1 COMPLAINT against John Doe 1, John Doe 2, John Doe 3, JSL Windy Hill II LLC, Rare Hospitality International Inc (filing fee $402 receipt number ASCDC-11067017), filed by Michael Weaver. (hcic, ) |
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