Unlike in some states (e.g., California), complaints filed in Virginia typically do not name John Doe defendants. In some cases, however, a plaintiff has little choice if the identity of the alleged wrongdoer is unknown. This is particularly a problem in Internet cases where the actor or speaker is anonymous or otherwise unknown. Virginia has recently taken some steps to make cases against anonymous speakers easier to bring, but Virginia still has no general John Doe practice, nor, apparently, any general statutory basis on which courts can enter relief against an unknown defendant.

These issues were recently addressed in Beutler v. John Doe, CL-2015-13256 (Fairfax Cty. Aug. 16, 2016), where the Circuit Court for Fairfax County denied a motion for default judgment against a John Doe defendant. In that case, the plaintiff had brought a number of claims against an unknown actor who had surreptitiously transferred control over plaintiff’s domain name to a new registry in England. The plaintiff alleged that the defendant had taken steps to hide his identity, which was unknown at the time suit was filed. Despite conducting some discovery while the case was pending by sending subpoenas to various entities, the plaintiff was never able to discover the identity of the defendant. The plaintiff, therefore, moved for default judgment against John Doe after attempting to perfect service by publication.

While the court appeared to empathize with the plaintiff’s situation, the court nevertheless held that it lacked the authority to grant a default judgment against a John Doe defendant. While noting that the General Assembly had permitted John Doe cases in certain uninsured motorist cases, the court found no general statutory authority allowing the court to enter judgment in other matters. While recognizing that the Virginia Supreme Court and the General Assembly had both recognized the use of John Doe pleadings at least in online defamation cases, the court found no statutory basis for actually entering judgment if the plaintiff was unable to discover the identity of the wrongdoer in pretrial discovery. The court found that the failure to name an actual party ultimately would be fatal to the cause of action. Accordingly, the court denied the motion for default judgment without prejudice. In reaching that conclusion, the court also held that service by publication was not sufficient on a John Doe defendant as service could only be completed on a “party,” which did not include unknown wrongdoers.

The outcome in Beutler is not totally surprising. I suspect many lawyers assume that the use of John Doe defendants must be permitted, but few have ever actually attempted to determine the statutory basis for the practice. Coincidentally, in an unpublished order entered earlier this year, the Eastern District of Virginia sua sponte dismissed claims brought in a similar Internet dispute against John Doe defendants. The court went so far as to suggest that a party cannot satisfy the Rule 11 requirements with respect to any John Doe defendant. While some may consider that statement to be inconsistent with the court’s own practice, and other opinions in the Fourth Circuit involving John Doe defendants, it underscores what could be a growing uneasiness with John Doe pleadings. Given the ever-increasing stretch of the Internet, I anticipate that the General Assembly will address this issue again at some point and provide some statutory mechanism for pursuing these types of claims. Until then, litigants will have to do the best they can.

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