Judicial Challenges The Honorable Janet Stauffer, 7th Judicial Circuit (August/September 2017)
Use of Fictitious Names for Parties in Civil Litigation in Oregon The Honorable James Hargreaves (Senior Judge, retired), Lane County Circuit Court (June/July 2017)
The Judge's Pledge The Honorable Susan Tripp, Marion County Circuit Court (May/June 2017)
Organizing for the Courtroom The Honorable Daniel R. Murphy, Linn County Circuit Court (March/April 2017)
A Two Year Journey with Odyssey in Juvenile Court The Honorable Lindsay Partridge, Marion County Circuit Court (January/February 2017)
Lane County Streamlined Jury Trial Project The Honorable Curtis Conover, Lane County Circuit Court (November/December 2016)
20 Ways to Further Justice The Honorable Ilisa Rooke-Ley, Lane County Circuit Court (October/November 2016)
Managing Multi-Party/Complex Litigation without Driving Your Judge Crazy (and maybe even making it easier for everyone) The Honorable Henry Kantor, Multnomah County Circuit Court (September 2016)
Managing Multi-Party/Complex Litigation without Driving the Judge's Staff Crazy The Honorable Eve L. Miller, Clackamas County Circuit Court (August 2016)
Do's and Don'ts in the Courtroom The Honorable Lisa Greif, Jackson County Circuit Court (June/July 2016)
Preparation for a Status, Case Management, or Pretrial conference - or how to get more out of a non-evidentiary proceeding in criminal and family court cases The Honorable Kirsten E. Thompson, Washington County Circuit Court (April/May 2016)
Postponements The Honorable Richard Barron, Presiding Judge, Coos/Curry County Circuit Court (March 2016)
Consider Trying More Cases The Honorable Suzanne Chanti, Lane County Circuit Court Judge (February 2016)
Professionalism - It Counts Both In and Out of the Courtroom The Honorable Brian Dretke, Union County Circuit Court Judge (January 2016)
Changes to Sex Changes The Honorable Beth A. Allen, Multnomah County Circuit Court Judge (December 2015)
Top 25 Tips from a Senior Judge The Honorable Michael C. Sullivan, Senior Judge (retired), Deschutes County (November 2015)
How to Succeed at Power Point In the Courtroom The Honorable Michael McShane, US District Court (October 2015)
Effective Use of Evidence At Jury Trial The Honorable Matthew Donohue, Benton County Circuit Court (September 2015)
Making a Record for Appeal, The Honorable Charles M. Zennaché, Lane County Circuit Court (August 2015)
Access to Civil Justice in Oregon's State Courts, The Honorable David Brewer, Associate Justice, Oregon Supreme Court (July 2016)
What Jurors Want: A Look Into the Minds of Jurors, The Honorable John V. Acosta, United States Magistrate Judge (June 2015)
Handling the "Half-se" Hearing, The Honorable Mustafa Kasubhai, Lane County Circuit Court (May 2015)
Effective Voir Dire, Judge Thomas Hart, Marion County Circuit Court (April 2015)
The New Judge on the Block, Judge Lung S. Hung, Malheur County Circuit Court (March 2015)
The Gift of Finality: One PJ's Perspective, Judge Karsten H. Rasmussen, Lane County Circuit Court (February 2015)
ORCP 68 Attorney Fees - when, why and how to seek them, Judge Deanne L. Darling, Clackamas Juvenile Court (January 2015)
Difficult questions must be answered before they are asked, Judge Edward J. Jones, Multnomah County Circuit Court (December 2014)
Judicially Hosted Settlement Conferences, Judge Jamese L. Rhoades and Sr. Judge Don Dickey, Marion County Circuit Court (November 2014)
Working together to make discovery more efficient, The Honorable Youlee Yim You, Multnomah County Circuit Court (October 2014)
Court Trials - A Jury of One, The Honorable Katherine E. Tennyson, Multnomah County Circuit Court (September 2014)
Making the Most of Short Evidentiary Hearings, The Honorable Daniel R. Murphy, Linn County Circuit Court (August 2014)
Vouching, The Honorable Jay McAlpin, Lane County Circuit Court (July 2014)
Appropriate Jury Instructions Can Help Litigators Win Trials, The Honorable Paula Brownhill, Clatsop County Circuit Court (June 2014)
Evidentiary Hearings and Motion Practice in the era of Oregon e-court, The Honorable Benjamin Bloom, Jackson County Circuit Court (May 2014)
Motions in Limine - Tips for "Newer" Litigators, The Honorable Jodie Mooney, Lane County Circuit Court (April 2014)
The Honorable James Hargreaves (Senior Judge, retired)
Lane County Circuit Court
Use of Fictitious Names for Parties in Civil Litigation in Oregon
Over the last 20 years or so there have been a number of cases in the Oregon Reports that reflect the use of fictitious names for parties in civil litigation, particularly plaintiffs. Certainly, the "poster child" example of this type of pleading is found in a case that arose out of Multnomah County Circuit Court and is styled, John Roe, v. Jane Doe, 161 Or. App. 477(1999), where both parties appeared under fictitious names. At the trial court level, essentially all documents in the case, as well as the recorded record of the proceedings, were "sealed" by judge so that nowhere in the trial court records of the case can the true names of the parties be ascertained. The appeal was filed in the Court of Appeals, heard and decided under the fictitious names, without any disclosure of the true names of the parties, and without comment by the Court of Appeals regarding the fact that neither party is actually named anywhere in the litigation.
In support of this secretive litigation process, two counties, Multnomah and Clackamas, have adopted essentially identical Supplemental Local Court Rules permitting this practice if approved by a judge. The Multnomah rule reads as followed:
"SLR 2.035 DESIGNATION OF KNOWN PARTIES BY FICTITIOUS NAME
In civil actions, the designation of a known party by a name other than the party's true name shall be allowed only upon an order of the court. If ordered, the designation of such party shall be by use of such party's initials or a fictitious name other than "Jane Doe" or "John Doe". The name "Jane Doe" or "John Doe" is reserved to be used for a party whose identity is unknown and the party is being designated as provided in ORCP 20 H."
The Clackamas rule reads as follows:
"SLR 2.016 DESIGNATION OF KNOWN PARTIES BY FICTITIOUS NAMES
In civil actions, the designation of a known party by a name other than the party's true name shall be allowed only upon an order of the Court. If ordered, the designation of such party shall be by use of such party's initials or a fictitious name other than "Jane Doe" or "John Doe". The name "Jane Doe" or "John Doe" is reserved for a party whose identity is unknown and the party is being designated as provided in ORCP 20H"
These Supplemental Court Rules are not supported by any Oregon law, are in direct conflict with Oregon Rules of Civil Procedure 16A, 20H and 26A as approved by the legislature, and constitute an attempt by these courts to adopt substantive law affecting the jurisdiction of the Circuit Court under the guise of the authority of the courts to adopt rules of procedure.
Oregon Law and Fictitious Party Pleading
Despite what one might assume given the existence of the number of appellate cases in Oregon that clearly reflect the use of fictitious party designations, Oregon law, with two limited exceptions, in fact prohibits fictitious party pleading.
The Prohibition and Exceptions
In understanding the law in Oregon regarding the pleading of fictitious parties in civil actions, it is necessary to understand the interplay between ORCP Rule 26A, Rule 16A and Rule 20H.
This analysis begins with ORCP 26A which declares:
"A Real party in interest. Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian, conservator, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in that party's own name without joining the party for whose benefit the action is brought; and when a statute of this state so provides, an action for the use or benefit of another shall be brought in the name of the state. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest." (Emphasis added)
Then follows Rule 16A which reads:
"A Captions; names of parties. Every pleading shall contain a caption setting forth the…title of the action… In the complaint, the title of the action shall include the names of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties." (Emphasis added)
And, finally, Rule 20H which reads:
"H Fictitious Parties. When a party is ignorant of the name of an opposing party and so alleges in a pleading, the opposing party may be designated by any name, and when such party's true name is discovered, the process and all pleadings and proceedings in the action may be amended by substituting the true name." (Emphasis added)
Even though these rules are quite straight forward in their language, two things are worth noting. First, each of these rules speaks in terms of "the name" of the party. They do not say "a name" or "some name", or any other equivocal language. ORS 174.010 directs that:
"In the construction of a statute, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted…"
Thus, in interpreting these rule (which are in fact statutes passed by the legislature) it is not legally permissible to read words into or out of these rules to get around the clear restriction that it is "the name" of a party that must be used in pleadings.
From a reading of these three rules and applying the restrictions of ORS 174.010, we can easily glean the following; 1) 26A - An action must be brought in the name of the real party in interest; 2) 16A - The names of the parties must be set forth in the caption of the case; and 20H - The name of any party must be their true name.
In addition to just a simple reading of the wording of the three rules set out above to arrive at the clear conclusion also set forth, there are two cases from the Court of Appeals that assist in avoiding any misunderstanding of the provisions of Rule 26. In Reutter v. RWS Construction Inc. 128 Or. App. 365 (1994) the Court of Appeals reviewed the genesis of Rule 26 at some length and explained that the importance of the rule is to see to it that the proper parties are before the court to accurately resolve the issues presented so that subsequent litigation will not ensue. In addition, the court pointed out that the second sentence of Rule 26A regarding amendment of the pleading to correct the pleading as necessary to ensure the proper parties are before the court, was added to the rule in the interest of justice so that it was easy to amend pleadings to take care of inadvertence and mistakes in naming parties. It was never intended to be "permissive" in the sense that once the true name of a party was discovered it was optional whether or not to amend the pleading to proceed under the party's true name.
In the subsequent case of Quail Hollow West v. Brownstone West 206 Or. App. 321 (2006) the Court of Appeals reiterated its position that Rule 26A was to ensure that subsequent litigation of the same issue would not occur. However, the Court also spoke to the issue of who in fact is a "real party in interest." It said:
"Case law describes the rule as recognizing two classes of persons who may be regarded as "real parties in interest" under ORCP 26 A. First, there is the class of parties who will be "benefitted or injured by the judgment in the case." Association of Unit Owners v. Dunning, 187 Or. App. 595, 607, 69 P.3d 788 (2003). Second, there is the class of persons who are "statutorily authorized to bring an action." Id."
From the Quail Hollow case, it is clear that to be a real party in interest, each of the parties must be, "benefitted or injured by the judgement in the case" or be "statutorily authorized" to bring the action. When there are one or more parties appearing under a fictitious name, and thus not a real person or someone statutorily authorized, such parties simply do not meet the test set out in Quail Hollow and there is no party. Assuming that the case is carried out under one or more fictitious names, when judgment is entered for or against a fictitious party, the true party, or parties, are neither benefitted nor burdened by the judgement. Not only that, the same litigation could be pursued again under the true names of the parties, thus violating the central purpose of the rule as discussed above.
While the Oregon Rules of Civil Procedure make it perfectly clear that civil actions can only be prosecuted by the real party in interest and in the true name of that party, there are two exceptions to this rule in ORCP. One is the listing in Rule 26A of various guardians, trustees, bailee etc. who are allowed by law to sue in their own name on behalf of the real party in interest for whose benefit the action is being brought. The second is the provision of Rule 20H where pleading in a fictitious name is allowed when the true name of the party is unknow. Those are the only exceptions.
There is one other exception outside of ORCP that can also be viewed as an exception. That is ORS 648.135.
To begin with, ORS 648.007 provides that any person or legal entity that carries on a business under an assumed business name must register that name with the State of Oregon. That registration process includes the requirement of revealing the true name of the person or legal entity that has assumed the name. ORS 648.135 then provides:
"648.135 Effect of violation of ORS 648.007; damages and attorney fees; effect on other laws. (1) A person who carries on, conducts or transacts business in violation of ORS 648.007 shall lack standing before the courts of this state to maintain a cause of action for the benefit of the business. The person may cure the incapacity at any time by complying with ORS 648.007."
The effect of ORS 648.007 and 648.135 is that if a person or legally recognized entity assumes a fictitious name under which to do business, that fictitious name may not be used in any court proceeding unless it has been duly registered with the State, thus becoming an "official" name of the person or legal entity.
While the discussion regarding the concept of real party in interest is instructive in helping to understand Rules 16A, 20H and 26A, the issue under discussion here-the pleading of a fictitious party-really goes beyond the real party in interest concept. What in fact is presented in this situation is the difference between having a litigant who is a real person or legally recognized entity as a party and having no party at all. John Doe, Richard Roe etc. are just names. There is no corporeal being or legally recognized entity attached to them. They are simply universal straw men, unable to legally stand on their own, and have no legal authority to act on behalf of anyone else. That being the case, the concept of a fictitious "party" in the law is really an oxymoron. One either has a legally recognized entity or corporeal being as a party proceeding under that party's true name, or there is no party at all. With no party plaintiff, the court has no jurisdiction and no law suit. With no party defendant, the case is subject to dismissal because there is no one to serve and no one to appear to move the case forward. There simply is no defendant, so there is no case. There is no case because the court lacks jurisdiction.
Given the perfectly clear requirements of the Oregon Rules of Civil Procedure that all civil actions must be carried out in the true names of the real parties in interest, and the further fact that there is no case law in Oregon that in any way abrogates the requirement of this rule, a failure to follow that rule seems to warrant a reminder regarding another section of ORCP. Rule 17C deals with the certifications an attorney makes to the court when signing a pleading. The provision relevant to the issue under discussion is:
"C (3) An attorney certifies that the claims, defenses, and other legal positions taken in the pleading, motion or other document are warranted by existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law." (Emphasis added)
In addition to the above, it is important to also remember the admonition of the Oregon Rules of Professional Conduct 3.1 which mirrors the requirements of ORCP 17C and reads in relevant part as follows:
"RULE 3.1 MERITORIOUS CLAIMS AND CONTENTIONS
In representing a client or the lawyer's own interests, a lawyer shall not knowingly bring or defend a proceeding, assert a position therein, delay a trial or take other action on behalf of a client, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law... "(Emphasis added)
By inserting a fictitious name into a pleading when the true name of the party is known, an attorney is in fact taking the legal position that such a pleading is, "…warranted by existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law." This means that an attorney must then be prepared to present to the court a cogent legal argument in defense of such a pleading or face having violated not only his or her pleading certification but also Rule 3.1 of the Oregon Rules of Professional Conduct. It is not readily apparent how an attorney can make such an argument. Given that ORCP exists through a legislative act and that current law clearly does not support fictitious party pleading, any argument would necessarily have to focus on a "nonfrivolous…extension, modification or reversal" of existing law. Again, since the Oregon Rules of Civil Procedure are legislative constructs, the power of the courts to extend, modify or reverse what the legislature has directed seems to be lacking.
Given that there is no statutory or case law to support fictitious name pleading in Oregoni outside of Rule 20H, the pertinent question is; why are there all these fictitious party cases in the Oregon Reports? The answer seems fairly clear. There are agreements between attorneys in such cases, either express or tacit, to not raise any complaint regarding this practice. With the agreement of the attorneys to overlook the clear violation of Oregon law, trial and/or appellate judges, either expressly or tacitly, join in the agreement to ignore the clear requirements of the law as well. This appears to be a clear violation of the Oregon Code of Judicial Conduct Rule 3.3 which requires in part, "(A) A judge shall uphold and apply the law…" That should mean that when a judge-trial or appellate-identifies a civil action in which a fictitious party has been clearly pled, the judge should recognize that the court has no jurisdiction and give the parties an opportunity to correct this defect by repleading in the true name of the party or parties. If the party or parties fail to avail themselves of the court's offer to allow them to replead, the case should be dismissed for lack of jurisdiction. See Hood River County v. Stevenson 177 Or. App. 78 (2001).
i Footnote 9 of Doe v. LDS 352 Or. 77 (2012) appears to be the only decision in the Oregon Court of Appeals or the Supreme Court that has even acknowledged the issue of the use of fictitious names for parties in litigation. In that footnote the Supreme Court points out-citing no authority-that it and the Court of Appeals routinely substitutes initials for the names of children in various types of cases. This statement by the Supreme Court is in keeping with the provisions of a joint order of the Chief Justice of the Supreme Court and the Chief Judge of the Court of Appeals designated as Chief Justice Order 10-060 and Chief Judge Order 10-06 and styled, "Order Adopting Criteria for Redaction of Names of Persons from Published Appellate Court Decisions". While the Courts granted themselves this authority in a somewhat limited subset of cases, the Courts granted themselves this power without providing any legal analysis or authority to support such action. This order only applies to the two appellate courts and their published opinions.