Misnomer, Mistaken Identity and Rule 103(b) – Illinois Standards

The misnomer and mistaken identity doctrines each involve situations where a plaintiff has sued a defendant too late.   Misnomer is basically a spelling error. The plaintiff can correct a misspelled defendant’s name at any time, even after judgment.  735 ILCS 5/2-401(b).  

With mistaken identity, the analysis is more intricate: the court applies Code Section 2-616(d) to determine whether the time-barred complaint relates back to the original (timely) filing date. 

In Guiffrida v. Boothy’s Palace Tavern, Inc., 2014 IL App (4th) 131008, the court examines the misnomer and mistaken identity doctrines and Rule 103(b)’s diligence in service rules. There, the plaintiff didn’t serve the right defendant until several weeks after the personal injury limitations period lapsed.  The trial court dismissed the complaint as untimely on and plaintiff appealed.

Held: Affirmed.

Reasons:

In a case of misnomer – a drafting error, basically – the amended complaint that names the proper defendant relates back to the filing date of the original complaint. 

With mistaken identity, Code Section 2-616(d) applies.  The plaintiff must show (1) the original complaint was timely filed;

(2) the person intended to be sued received notice of suit within the time the action might have been brought against him plus the time for service permitted under Supreme Court Rule 103(b);

(3) the person to be sued received notice of the lawsuit and won’t be prejudiced in maintaining a defense to the case;

 (4) that person knew, or should have known, that he was the intended target of the plaintiff’s suit, and

(5) the amended and original complaints both stem from the same transaction or occurrence. 

To determine whether misnomer or mistaken identity applies, the court looks to the plaintiff’s objective manifestation of intent as to whom it meant to sue.  If the person named in a complaint actually exists but has no interest in the lawsuit, mistaken identity applies and the plaintiff must satisfy the Code Section 2-616(d) factors. (¶¶ 36-37). 

Here, mistaken identity applied.  The plaintiff sued the wrong party.   She sued a corporation that actually existed and served that corporation’s registered agent.  But that corporation wasn’t involved in the underlying facts giving rise to the lawsuit.  

Plaintiff didn’t realize she served the wrong corporation and wrong agent until after the limitations period expired.

Supreme Court Rule 103(b) allows a court to dismiss a suit where a plaintiff fails to exercise diligence in serving a defendant. 

The factors a court considers in determining whether a party has been diligent in trying to serve a defendant include

(1) defendant’s actual knowledge of the pending suit;

(2) whether the defendant suffered any prejudice by the late service;

(3) the length of time it takes to obtain service on the defendant;

(4) the plaintiff’s activities and knowledge of defendant’s location;

(5) the ease with which the plaintiff could determine defendant’s location;

(6) any special circumstances that affected plaintiff’s efforts; and

(7) whether the defendant was actually served(¶ 49).

Here, the Court looked to the plaintiff’s pattern of delay and lackadaisical litigation efforts in finding that the target defendant didn’t have notice of plaintiff’s suit within the time contemplated by Rule 103(b).  

The court noted that plaintiff filed suit improperly in Federal court and later sued in the wrong state court venue.  She also named and served the wrong corporate defendant.  Later, after the statute of limitations period expired, plaintiff served the right corporate agent but still sued under the wrong defendant name.

And even though the proper corporate defendant received notice of the suit within 43 days of the expiration of the limitations period, the Court found that, on the whole, plaintiff failed to exercise diligence under Rule 103(b). 

 Take-aways:

This case shows that a court can look at more than just the bare number of days it took to serve a defendant when assessing a plaintiff’s diligence as part of the relation-back inquiry. 

The case especially illustrates the importance of (a) suing the proper corporate defendant, (b) in the proper venue; (c) serving the right defendant before the statute of limitations period ends.

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.