Suing John Doe

A tenant filed a personal injury lawsuit against his landlords one day before the statute of limitations was to run. The complaint named the landlord and “John Does 1-20,” but did not name the owners of the property, or describe facts that would make it clear the tenant intended to name the owner as well as the landlord.

Later, the tenant’s attorney attempted to add the owners of the property (which were not the same persons as the tenant’s landlord).  The statute of limitations had run in the meantime. The trial court granted the owners’ motion to dismiss. The tenant appealed.[1]

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The tenant argued that the amended complaint related back to the original complaint under applicable court rules and statutes, and that “fundamental fairness” required the denial of the owners’ motion to dismiss. The Washington Court of Appeals rejected both arguments and upheld the dismissal.

The tenant argued that because he amended the complaint and served it within 90 days, the amended complaint relates back to the original, allowing the tenant to add the owners to the lawsuit. The 90-day statute does not, however, extend the statute of limitations as to defendants not already named. The statute provides a 90-day period in which to perfect commencement of a lawsuit against named defendants; it does not allow a 90-day period within which to add new defendants.

The Court of Appeals held the tenant failed to meet requirements of court rules that allow amended pleadings to relate back to the original.  The rule requires that a party brought in by amendment must have had actual knowledge of the lawsuit, and that but for a mistake concerning identity, the action would have been brought against him. The tenant’s complaint did not mention the owners – whether named John Doe or otherwise – were being sued.

The tenant also failed to show excusable neglect. The tenant could have discovered the owners of the property with a simple search of public records.

The tenant failed to cite any authority for the “fundamental fairness” argument. The Court of Appeals therefore rejected it.

The gist of this case sounds familiar. Over the course of any given year a handful statute of limitations cases go up on appeal. While each case is unique, there is a common theme. Plaintiff files at the last minute. There is some issue with service of the complaint, or there is a need to add a new party. The case is dismissed. Plaintiff appeals, and usually loses.

The solution is simple. Get an attorney early so filing it at the last minute can be avoided. It is generally it is not a good idea to wait until the last minute.

At our firm, while we always strive for an out of court settlement when feasible, if a case must be filed we will file it generally no later than six months before the statute of limitations expires. If you call us at the last minute we may consider taking your case – but we very well may refuse.

If you have an injury claim, it is best to get a free personal injury case evaluation as early as possible.

[1] Gallard v. Anderson, unpublished (NO. 68512-1-1 November 18, 2013). Available at (last accessed 11/23/13).

Posted in Washington Personal Injury Law and tagged , .