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Howell v. Tribune Entertainment Co.

February 5, 1997

TAMMY HOWELL, A MINOR, BY HER GUARDIAN AD LITEM, CHARLES GOERDT,

PLAINTIFF-APPELLANT,

v.

TRIBUNE ENTERTAINMENT COMPANY AND ABC INSURANCE COMPANY,

DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Western District of Wisconsin.

No. 96-C-0177-S John C. Shabaz, Chief Judge.

Before POSNER, Chief Judge, and COFFEY and DIANE P. WOOD, Circuit Judges.

POSNER, Chief Judge.

ARGUED JANUARY 8, 1997

DECIDED FEBRUARY 5, 1997

This is a diversity suit, governed by Wisconsin law, mainly complaining of an invasion of the right of privacy by publicizing facts about the plaintiff's private life, Wis. Stat. sec. 895.50(2)(c). But we must begin our consideration with an issue of jurisdiction not remarked by the district judge or the parties. The plaintiff, Tammy Howell, is a citizen of Wisconsin. There are two defendants. One, Tribune Entertainment Company, is a corporate citizen of Delaware and (at the time the suit was filed, which is the relevant time) of Illinois. The other, the ABC Insurance Company, is of unknown citizenship. The complaint alleges that "jurisdiction in this Court [the district court] is founded upon diversity of citizenship," and properly indicates the citizenship of the plaintiff and of the defendant Tribune. There is no further mention of ABC in any of the papers in the case except a brief reference in Tribune's appellate brief to ABC as an "unidentified insurance company" that had been named as a defendant. ABC disappeared from the caption (we have restored it), but there is no order dismissing it from the case. At argument, neither lawyer was able to give us any information about ABC, including which state or states it is a citizen of. Howell's lawyer believes that ABC is the Tribune's liability insurer. Wisconsin is a direct-action state, Wis. Stat. sec. 803.04(2), making it possible to name the defendant's insurer as an additional defendant in a tort suit.

For almost two centuries the diversity statute has been interpreted to require "complete" diversity of citizenship (meaning that none of the parties on either side of the litigation may be a citizen of a state of which a party on the other side is a citizen). Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806); Caterpillar Inc. v. Lewis, 117 S. Ct. 467, 472 (1996); Fidelity & Deposit Co. v. City of Sheboygan Falls, 713 F.2d 1261, 1264 (7th Cir. 1983). The only excuse that Howell's lawyer offered for having named ABC as a defendant without ascertaining whether naming it would destroy complete diversity is that he had been unable to find out anything about ABC. We can imagine a case in which, with the statute of limitations about to run out (not a problem here), the plaintiff is unable with all due diligence to ascertain the state or states of citizenship of a potential defendant. In such a case he can proceed without that defendant and add it later (with relation back, to the extent permitted by Fed. R. Civ. P. 15(c)(3), to the date of filing of the original complaint), when the necessary information is obtained. At argument, defendant Tribune chimed in with the suggestion that since ABC was (naturally) never served, it never became a defendant. But in the federal judicial system a party becomes a defendant not when he is served but when the complaint naming him is filed. That is when the suit against the defendant is commenced. Fed. R. Civ. P. 3. Service is not due until 120 days later, and the time can be extended. See Fed. R. Civ. P. 4(m). This rule authorizes the district court to dismiss the defendant from the suit if service is not accomplished within the 120 days, and it wasn't accomplished within that time here; nor was any extension of the deadline for service sought or granted. Still, the court didn't, in fact, dismiss the unserved defendant; and the rule does not bring about an automatic dismissal, without judicial action.

States often allow a plaintiff to name an unknown party as an additional defendant. E.g., Wis. Stat. sec. 807.12; Carol M. Rice, "Meet John Doe: It Is Time for Federal Civil Procedure to Recognize John Doe Parties," 57 U. Pitt. L. Rev. 883, 892 n. 27 (1996). For that matter, so does federal law in a suit based on the federal question jurisdiction, see, e.g., Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), which does not depend on the parties' addresses. But because the existence of diversity jurisdiction cannot be determined without knowledge of every defendant's place of citizenship, "John Doe" defendants are not permitted in federal diversity suits. Moore v. General Motors Pension Plans, 91 F.3d 848, 850 (7th Cir. 1996) (per curiam); United States Fire Ins. Co. v. Charter Financial Group, Inc., 851 F.2d 957, 958 n. 3 (7th Cir. 1988); 14 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure sec. 3642, pp. 144-46 (2d ed. 1985).

To this as to most legal generalizations there are exceptions. The obvious one, inapplicable to this case however, is if the "John Does" are merely nominal parties, irrelevant to diversity jurisdiction. Moore v. General Motors Pension Plans, supra, 91 F.3d at 850; United States Fire Ins. Co. v. Charter Financial Group, Inc., supra, 851 F.2d at 958 n. 3. And naming a John Doe defendant will not defeat the named defendants' right to remove a diversity case if their citizenship is diverse from that of the plaintiffs. 28 U.S.C. sec. 1441(a). That exception is also inapplicable to this case, which was not removed. Salzstein v. Bekins Van Lines, Inc., 747 F. Supp. 1281, 1283 (N.D. Ill. 1990). A quasi-exception, also inapplicable, is that the domicile of a fugitive defendant will be taken to be his domicile before he fled, Lloyd v. Loeffler, 694 F.2d 489, 490 (7th Cir. 1982), to discourage defendants from trying to defeat federal jurisdiction by such a tactic. So none of the exceptions applies here, and the plaintiff doesn't even have the excuse (not justification) of not knowing the defendant's name. It should not be difficult to determine an insurance company's state or states of citizenship.

Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826 (1989), authorizes us, however, to restore complete diversity, even when the case is on appeal and diversity was incomplete in the district court, by dropping a party whose presence is unnecessary to the proper resolution of the controversy. That describes ABC Insurance Company to a T. It is not a nominal party, but its only role in the case is as a kind of guarantor of the defendant insured's ability to pay a judgment; and as no one doubts the ability of the Tribune Entertainment Company, a part of the Chicago Tribune's media empire, to pay any damages judgment that Tammy Howell would be likely to obtain, the insurance company is superfluous. At argument we asked Howell's lawyer whether he would prefer us to dismiss ABC or dismiss the suit. He replied that he would prefer us to dismiss ABC and we hereby do so and proceed to the merits. Since no one wants to retain ABC in the case, there is no need to consider whether to remand for a determination of its citizenship as in Singletary v. Continental Ill. Nat'l Bank, 9 F.3d 1236, 1238 (7th Cir. 1993).

Tammy Howell, the plaintiff, was a 16-year-old schoolgirl living in LaCrosse, Wisconsin when she learned that the Charles Perez Show, a television talk show produced by the defendant and broadcast nationwide, was planning to tape a show about how ever since Cinderella's day stepparents and their stepchildren have had trouble getting along. The show broadcast a call for participants. Tammy, her older sister, their stepmother, Karen Hoeppner, and Karen's daughter volunteered. After being interviewed by a member of the show's staff, the four of them flew to New York for a taping in front of a live studio audience. Although the suit was dismissed on the pleadings, a copy of the tape is in the appellate record and Tammy's lawyer urged us to watch it, which we have done. It opens with three of the four women sitting side by side: Tammy, a visibly pregnant quiet blonde girl at one end of the row (seven months pregnant, not married or, so far as appears, intending marriage to the father), the stepmother at the other end, and Tammy's very loquacious twenty-year-old sister in the middle. (Karen's daughter was offstage at the beginning.) The sister opens up by accusing the stepmother --married to the sister's father for only six months -- of having begun an affair with him before his divorce from his wife, her mother, the critical evidence being a 2 a.m. phone call from the now-stepmother to the father before the divorce. (Murmurs of disapproval from the very active studio audience.) The stepmother denies this, adding that the wife had filed for divorce five times and enigmatically relating the phone call to this conduct. The sister keeps accusing the stepmother of adultery (a felony, be it noted, in Wisconsin, Wis. Stat. sec. 944.16(2)), with Tammy adding supportive remarks from time to time. The stepmother pulls a sheet of paper from her pocket and starts to read, and Tammy asks whether it's her school attendance record. It isn't. It's a police report, the stepmother explains to the oohs and aahs of the increasingly vocal studio audience, and she reads a portion of it: Tammy "has been engaged in violent, abusive, indecent, profane, boisterous, unreasonably loud behavior. She has threatened or hit others. She has referred to herself as the biggest gangster ___ in town." (The word we have left blank, apparently an obscenity expunged by the producer, cannot be understood.) Tammy rises, smirks, does a 360 degree turn, displaying her pregnant state, and asks rhetorically, "Do I look like a gangster ___ ?"

Now the stepmother's own daughter enters dramatically, to lend her mother support against the two stepdaughters. Accusations are traded back and forth for a while; then the subject changes to Tammy's pregnancy. It emerges that the father of her fetus is black, and host Perez raises the question whether the stepmother's tensions with Tammy may have something to do with race. Indignant denials. The stepmother's daughter announces that her own boyfriend is black. The panelists vie to outdo each other in proclaiming their delight in "colored babies." Black members of the studio audience protest the term and there is a further round of denials of racial animus. End of segment. We add, to avoid any misimpression created by our summary, that the exchanges among the antagonists, while unfriendly, do not appear to reflect any deep animosity. The record is silent on whether the women were paid to participate in the show, although the sisters mention the financial straits in which Tammy's pregnancy has placed her, supplying a financial motive for a paid television appearance.

The program had been taped, as we said, and the tape was not broadcast for another two weeks. During this time Tammy did not ask that it be withdrawn or that the portion of the program to which she now objects -- the disclosure of the contents of the police report -- be deleted. After the program was broadcast, however, Tammy's life at school became unbearable (according to allegations of the complaint that we must accept as true for purposes of the appeal) because of teasing by other kids, and eventually she had to change schools. She seeks damages for the humiliation and mental anguish inflicted by the publicity that the broadcast gave to the contents of the police report.

Wisconsin law limits the disclosure of police reports about juveniles. Wis. Stat. sec. 48.396(1). Whether the prohibition was violated here may be doubted; the stepmother appears to have obtained a copy of the report in accordance with the statute, see Wis. Stat. sec. 48.396(1b), and furthermore it is unclear whether disclosure by a private individual, as distinct from the government, is covered. But even if there was no violation of the disclosure statute, there may have been a violation of Wisconsin's privacy law. Tammy argues that either Perez should have interrupted the program ...


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