United States Court of Appeals

For the Eighth Circuit

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No. 14-3081

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Darren Lee

lllllllllllllllllllll Plaintiff - Appellant

v.

Airgas - Mid South, Inc.; John Does 2-10

lllllllllllllllllllll Defendants - Appellees

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Appeal from United States District Court 

for the Western District of Arkansas - Fayetteville

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 Submitted: April 14, 2015

 Filed: July 16, 2015

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Before RILEY, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.

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RILEY, Chief Judge.

After Darren Lee was blinded in one eye while attaching an oxygen tank to his

welder, he brought this diversity suit against the manufacturer of the pressure

regulator and several John Doe defendants. Lee voluntarily dismissed the claims

against the regulator manufacturer, but moved to amend his complaint to substitute

Airgas USA, LLC (Airgas LLC), and Airgas - Mid South, Inc. (Airgas Mid-South),
the alleged supplier of Lee’s oxygen tank, for John Does 1 and 2. The district court

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permitted the amendment as to Airgas Mid-South but ultimately dismissed the suit,

reasoning (1) Lee’s claims against Airgas Mid-South were time-barred, and (2) the

district court lacked diversity jurisdiction over the claims against the John Does. We

affirm the dismissal.

I. BACKGROUND

On August 20, 2013, Lee, an Arkansas citizen, commenced this diversity suit

in the United States District Court for the Western District of Arkansas against Victor

Technologies International, Inc. (VTI) and ten John Does. Lee’s complaint alleged

that while preparing for a welding project on August 21, 2010, he attached a newly

purchased oxygen tank to his existing pressure regulator, manufactured by VTI. Lee

“tried withoutsuccess to adjust the regulator pressure” when “[s]uddenly, and without

warning, the metal crimped end of the oxygen hose came loose from the metal handpiece, striking him in the right eye.” Alleging defects in the regulator system, Lee

raised several claims against VTI.

On December 18, 2013, Lee moved for leave to amend his complaint “to

substitute [Airgas LLC], and [Airgas Mid-South] for defendants John Doe 1 and John

Doe 2.” The district court denied the motion, noting Lee failed to allege (1) Airgas 2

Mid-South’s principal place of business, (2) the citizenship of Airgas LLC’s

members, and (3) the citizenship of any John Doe defendants. The order imposed a

deadline by which Lee was to correct these errors and advised that should Lee fail to

do so, “the Court WILL dismiss this action without prejudice for lack of subject

matter jurisdiction.”

The Honorable P.K. Holmes III, Chief Judge, United States District Court for

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the Western District of Arkansas.

Lee settled his claims against VTI, which were voluntarily dismissed with

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prejudice in January 2014.

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Within the deadline, Lee again moved to amend the complaint, this time

proposing to drop Airgas LLC and alleging Airgas Mid-South was a foreign

corporation with a principal place of business outside Arkansas. The court granted

this motion on February 13, 2014, and Lee filed his amended complaint on February

20, 2014, alleging defects in both his regulator system and the oxygen tank he

purchased on the day of the incident.

Although the amended complaint named only Airgas Mid-South, Airgas LLC

responded, explaining it had been “incorrectly identified as Airgas [Mid-South].” 

Airgas LLC, a Delaware company, claimed it was the true defendant because Airgas

Mid-South and Airgas LLC had merged in 2012, leaving Airgas LLC asthe surviving

entity. Airgas LLC moved for dismissal, arguing the claims against it were timebarred. The district court agreed, reasoning Lee filed the amended complaint outside

the three-year statute of limitations and the claims did not relate back to the date of

Lee’s initial complaint because Airgas LLC had no “actual or constructive notice” of

the suit within 120 days of the action’s commencement. See Fed. R. Civ. P. 4(m),

15(c)(1). The district court also dismissed Lee’s claims against the John Does for

failing to allege their citizenship. Lee appeals.

II. DISCUSSION

A. Airgas LLC

1. Jurisdiction and Justiciability

Lee devotes approximately five pages of his opening brief to attacking the

district court for “never address[ing] the lack of standing or jurisdiction issues as to

Airgas [LLC],” which he claims “should have been raised by the court on its own

motion.” Lee’s contentions fall short.

Lee first believes Airgas LLC had “no standing . . . to file the motion to

dismiss” because (1) Airgas LLC never “made clear that it assumed the debts and

liabilities of Airgas [Mid-South],” and (2) “no Airgas entity has admitted that it

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supplied the oxygen tank at issue.” However, Airgas LLC conceded that, as the

surviving entity of the merger, it assumed by statute the liabilities of Airgas MidSouth, and for the purposes of this action, “Airgas [LLC] is Airgas [Mid-South].” 

See Del. Code Ann. tit. 6, § 18-209(g) (“[A]ll debts, liabilities and duties of each of

the said domestic limited liability companies and other business entities that have

merged or consolidated shall thenceforth attach to the surviving orresulting domestic

limited liability company . . . , and may be enforced against it to the same extent as

if said debts, liabilities and duties had been incurred or contracted by it.”). Lee’s

claims are therefore assertions of Airgas LLC’s liability, against which Airgas LLC

has every right to defend. 

Despite Lee’s claims to the contrary, the existence of a case or controversy here

does not depend upon proof or concession, particularly at the pleading stage, that

Airgas LLC (or any other Airgas entity) actually supplied the oxygen tank in

question. See Hutterville Hutterian Brethren, Inc. v. Sveen, 776 F.3d 547, 553-54

(8thCir. 2015) (explaining that generalfactual allegations may suffice at the pleading

stage and standing does not depend on the plaintiff’s ability to prove misconduct). 

Lee, apparently dissatisfied with his own choice of forum, also questions

diversity of citizenship, believing the district court failed to inquire about the

citizenship of Airgas LLC’s members and “should have . . . raised” the issue “on its

own motion.” Yet, it is undisputed Airgas LLC’s only member is Airgas, Inc., and

Airgas, Inc. is not a citizen of Arkansas. See GMAC Commercial Credit LLC v.

Dillard Dep’t Stores, Inc., 357 F.3d 827, 829 (8thCir. 2004) (“[A]n LLC’s citizenship

is that of its members for diversity jurisdiction purposes.”).

2. Timeliness

Lee does not dispute the three-year statute of limitations applicable to his

product liability claims, see Ark. Code Ann. § 16-116-103, ran in August 2013. Lee

first named Airgas Mid-South as a defendant in his February 20, 2014 amended

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complaint, but he argues these claims are not time-barred because the amended

complaint relates back to his original August 20, 2013, complaint.

“Such an amendment ordinarily will not be treated asrelating back to the prior

pleading, unless certain conditions set forth in Fed. R. Civ. P. 15(c) are satisfied.”

Foulk v. Charrier, 262 F.3d 687, 696 (8th Cir. 2001) (citing Barrow v. Wethersfield

Police Dep’t, 66 F.3d 466, 467 (2d Cir. 1995), modified, 74 F.3d 1366 (2d Cir.

1996)). An amendment which “changes the party or the naming of the party against

whom a claim is asserted” relates back if (1) “the amendment asserts a claim or

defense that arose out ofthe conduct, transaction, or occurrence set out—or attempted

to be set out—in the original pleading”; (2) “the party to be brought in by the

amendment . . . received such notice of the action that it will not be prejudiced in

defending on the merits”; (3) that party “knew or should have known that the action

would have been brought against it, but for a mistake concerning the proper party’s

identity”; and (4) the second and third of these requirements were met “within the

period provided by Rule 4(m) for serving the summons and complaint.” Fed. R. Civ.

P. 15(c)(1)(B), (C). The district court determined, and we agree, that even if Lee

satisfies the first three of these requirements, Lee’s case fails on the fourth.

Lee must show Airgas LLC received notice of this lawsuit “within 120 days

after the complaint [wa]s filed.” Fed. R. Civ. P. 4(m). Lee provides neither

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argument nor evidence showing Airgas LLC had notice of the action any earlier than

March 10, 2014, when Lee served Airgas LLC’s agent. Instead, Lee proposes his

The 120-day requirement also can be extended by any service-of-process

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extensions the district court might grant for “good cause.” See Fed. R. Civ. P. 4(m);

Fed. R. Civ. P. 15, advisory committee’s note (1991) (“[T]hisrule allows not only the

120 days specified in [Rule 4(m)], but also any additional time resulting from any

extension ordered by the court pursuant to that rule.”). Lee never asked for an

extension and does not appeal the district court’s conclusion that he failed to establish

good cause for delay.

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December 18, 2013, motion for leave to file an amended complaint “tolled” the 120-

day service period for purposes of Rule 15(c)(1)(C).

We cannot accept Lee’s tolling proposal. “[F]iling an amended complaint in

itself does not toll the service period” or reset the 120-day clock; at best, “adding a

new party through an amended complaint initiates a new 120-day timetable for

service upon the added defendant.” 4B Charles Alan Wright, et al., Federal Practice

and Procedure § 1137 (4th ed. 2015) (emphasis added); see also Bolden v. City of

Topeka, Kan., 441 F.3d 1129, 1148 (10th Cir. 2006) (“[T]he 120-day period provided

by Rule 4(m) is not restarted by the filing of an amended complaint except as to those

defendants newly added in the amended complaint.”);see, e.g., Carmona v. Ross, 376

F.3d 829 (8th Cir. 2004) (per curiam) (affirming the finding of late service of

defendants named in initial complaint but giving plaintiff a new 120-day clock for

serving newdefendants added in amended complaint). And for Lee’s purposes, a new

120-day timetable for newly added defendants isirrelevant because Rule 15(c)(1)(C)

looks to the Rule 4(m) period for serving the original complaint. See, e.g., Garvin

v. City of Philadelphia, 354 F.3d 215, 220 (3d Cir. 2003) (noting the newly added

defendants “must have received notice of the institution of the action within 120 days

following the filing of the action”); Barrow, 66 F.3d at 469 (explaining Rule

15(c)(1)(C) requires notice “within 120 days of the filing of the original complaint”). 

Were Rule 15(c)(1)(C) to reset its 120-day requirement every time a defendant is

added, its notice requirement would be a practical nullity with the plaintiff’s existing

obligation under Rule 4(m) to serve the new defendant within 120 days of the

amended complaint (which would notify him of the lawsuit). Rule 15(c)(1)(C)

imposes an independent requirement for relation back, not satisfied here, that the

newly added defendant must have had notice of the suit within 120 days of filing the

original complaint.

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This result is not altered by Lee’s use of John Doe pleadings under Ark. Code 4

Ann. § 16-56-125. In Arkansas, “before a real party can be substituted for a John Doe

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B. John Does

Invoking Federal Rule of Civil Procedure 21, the district court dismissed the

John Doe defendants, ruling they were dispensable parties whose diverse citizenship

had not been established. See Fed. R. Civ. P. 21; Buckley v. Control Data Corp., 923

F.2d 96, 97-98 (8th Cir. 1991) (observing that under Rule 21, even appellate courts

may dismiss dispensable, diversity-destroying parties). The district court reasoned

“Lee’s bare allegation[] that none of the John Doe defendants are believed to be

citizens of the State of Arkansas is purely speculative” and solely relies on an

“affidavit of Lee’s counsel . . . which is itself speculative.” Lee contends he “is not

required to allege citizenship of nominal John Doe defendants in a 28 U.S.C. § 1332

diversity action” because 28 U.S.C. § 1441(b)(1) requires that we ignore the

citizenship of “defendants sued under fictitious names” in removal cases. Lee

believes “[i]t would make no legal sense for a plaintiff in a § 1332 case to be treated

differently than a party in a case involving Doe defendants under § 1441.”

“For almost two centuries the diversity statute has been interpreted to require

‘complete’ diversity of citizenship,” Howell by Goerdt v. Tribune Entm’t Co., 106

F.3d 215, 218 (7th Cir. 1997) (citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267

(1806)), a crucial prerequisite which every plaintiffseeking diversity jurisdiction has

the burden of alleging and eventually proving, see Hertz Corp. v. Friend, 559 U.S. 77,

96-97 (2010). Given this burden, “[t]he general rule . . . has been that, on challenge,

the diverse citizenship of the fictitious defendants must be established by the plaintiff

defendant in the original complaint, such pleadings must still meet the requirements

of Rule 15(c).” Berryhill v. Synatzske, 432 S.W.3d 637, 642 (Ark. 2014) (discussing

Rule 15(c) of the Arkansas Rules of Civil Procedure, which is equivalent to Rule

15(c) in the Federal Rules of Civil Procedure). Assuming “the John Doe statute were

to apply in this case,” the statute of limitations still bars Lee’s claim, even in

Arkansas state court, because he “failed to comply with the strictures of Rule 15 so

as to permit the amended complaint to relate back to the time of the filing of the first

complaint.” Stephens v. Petrino, 86 S.W.3d 836, 842 (Ark. 2002).

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in order to continue a federal court action.” 13F Charles Alan Wright, et al., Federal

Practice & Procedure § 3642 (3d ed. 2009). Lee looks to equate removed and original

federal cases in their treatment of John Does, but just because a plaintiff cannot

protect his state action from federal jurisdiction by inserting a fictitious non-diverse

John Doe, see 28 U.S.C. § 1441(b)(1), does not mean a plaintiffseeking federal court

can ignore the strictures of diversity jurisdiction, see id. § 1332(a) (omitting language

with regard to ignoring fictitious defendants).

Lee inadvertently avoids this jurisdictional quandary and satisfies diversity by

failing to levy a single claim against a John Doe defendant. In Lee’s amended

complaint, the John Does are mentioned precisely twice, and in both instances the

complaintstates only that the John Does “are persons or corporations or other entities

whose identity and whereabouts are unknown at the time of filing this Complaint. 

None of the John Doe defendants are believed to be citizens of Arkansas.” The John

Does are obviously fictional placeholders, and because Lee raises no claim against

them, their presence in the complaint is also nominal and, as such, cannot affect

diversity jurisdiction. See Midwestern Indem. Co. v. Brooks, 779 F.3d 540, 544 (8th

Cir. 2015); Howell, 106 F.3d at 218 (concluding diversity is unaffected where John

Does are nominal parties). 

For the same reason—there being no claim against them—the John Does are

irrelevant to the merits of Lee’s case, and they therefore were properly dismissed,

without prejudice, with the remainder of the case. See Fed. R. Civ. P. 12(b)(6);

Benton v. Merrill Lynch & Co., 524 F.3d 866, 870 (8th Cir. 2008) (“The complaint

must allege facts, which, when taken as true, raise more than a speculative right to

relief.”); accord, e.g., Moore v. Gen. Motors Pension Plans, 91 F.3d 848, 850 (7thCir.

1996) (per curiam) (ignoring the citizenship of nominal John Does for diversity

jurisdiction because no claims were raised against them and dismissing themwith the

remainder of the case where the claims against the named parties were meritless).

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III. CONCLUSION

We affirm the district court’s dismissal of this action.5

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We deny Airgas LLC’s motion to strike the addendum to Lee’s reply brief. 5

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