Misnomer vs. Mistaken Identity – More Than Semantic Hairsplitting?

The misnomer and mistaken identity doctrines apply where a plaintiff sues a defendant too late.

Misnomer occurs when the plaintiff has the wrong name of the right party (ex: I intend to sue Donald Trump but instead name “Ronald Trump” as Defendant). 

Mistaken identity is involved where the plaintiff has named the wrong party. (I sue and serve Marla Maples but later realize I should have served Mr. Trump all along.)

Misnomer is basically a spelling error and the proper party defendant’s name can be corrected at any time, even after judgment.  735 ILCS 5/2-401(b).  

With mistaken identity, Code Section 2-616(d) controls. 

Determining whether misnomer or mistaken identity applies turns on the intent of the plaintiff as established by his objective manifestations of that intent including who the plaintiff actually named in the original complaint.  Maggi v. RAS Development, Inc., 2011 IL App (1st) 091955, ¶ 23. 

In Maggi, a construction negligence case, the First District affirmed the trial court’s ruling that an amended complaint that named the right general contractor (but not until after the statute of limitations ran) – related back to the original complaint’s filing date. 

Maggi followed the US Supreme Court in Krupski v. Costa Crociere, 130 S. Ct. 2485 (2010) and held that the contractor should have known that it was the intended target of plaintiff’s suit; noting the relation-back test is what the defendant to be added knew; not what the adding plaintiff knew.

Code Section 2-616(d)’a three mistaken identity elements are:

(1) whether the original complaint was timely filed;

(2) the defendant to be added – within the time that an action might have been brought against him plus the time for service under Supreme Court Rule 103(b) – received notice of the commencement of the action such that (a) he will not be prejudiced in defending the case and (b) knew or should have known that but for mistaken identity, the action would have been brought against him; and

(3) the original and amended pleadings grew out of the same transaction.  Maggi, ¶ 35.

In finding the amended complaint against the general contractor related back to the original complaint, the Maggi Court analyzed factor (2) above and focused on whether the proper defendant knew or should have known that it would have been named a defendant but for plaintiff’s error and did not focus on what the plaintiff knew (or should have known) .  (¶ 37). 

The Court pointed to evidence that the general contractor defendant knew it was the intended target of plaintiff’s suit.  The plaintiff engaged in extensive discovery to determine the correct identities of the defendants and the general contractor didn’t produce the prime contract (which specifically confirmed the general contractor’s identity) until after the four-year construction repose period lapsed despite repeated requests from the plaintiff. (¶¶ 5, 38). 

Finally, Maggi emphasized that under the Supreme Court Krupski decision, the plaintiff’s speed in moving to amend a complaint (once it has proper defendant info in its possession) is not a factor to consider under Section 2-616(d).  ¶ 39. 

The take-away:

It’s clear that when determining whether a time-barred complaint relates back, the focus is on what the defendant knew or should have known, not on plaintiff’s knowledge, diligence or speed with which he tries to amend a pleading. 

Clearly, the courts are giving primacy to the policies of deciding cases on the merits over a defendant’s competing interest in repose and finality.  

My guess is that cases that follow Maggi and  Krupski will result in more denials of Section 2-619 motions to dismiss based on untimeliness grounds.

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PaulP

Litigation attorney at Fisher Kanaris, P.C. representing businesses and individuals in all types of commercial disputes.

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