Fictitious Defendants

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Fictitious defendants are unknown defendants that plaintiffs include in their pleading in order to avoid the statute of limitations. Including the fictitious defendant in the pleading allows the plaintiff to relate back to that time whenever the true identity of the defendant is found. Otherwise, a plaintiff often would not be able to include defendants that appear later on during discovery because the statute of limitations would have run. In order to include a fictitious defendant, the plaintiff must actually not know who the defendant is and must amend the pleading to include the true name of the defendant as soon as ascertained. Federal courts do not allow fictitious defendants, and states vary as to the time periods and procedures for using them. 

[Last updated in July of 2021 by the Wex Definitions Team]