Illinois Appellate Court Agrees that Plaintiff Did Not Timely Name the Correct Defendant; Case Dismissed

Ann E. Guiffrida’s personal injury case against the owner of a bar called The Palace in downstate Hamburg, Ill., was dismissed because the plaintiff had mixed up the names of two corporations. One was The Palace Inc. and the other was Boothy’s Palace Tavern Inc.

Guiffrida filed a lawsuit in the federal district of the Central District of Illinois naming the defendant The Palace Inc. When venue was challenged, Hamburg, Ill., located on the Mississippi River, 80 miles north of St. Louis, is in the Southern District of Illinois, not the Central District. Guiffrida voluntarily dismissed the federal case and then filed the state claim in Madison County, Ill., although Hamburg is actually in Calhoun County, Ill.

When Guiffrida found out that she should have sued and served Boothy’s Palace Tavern Inc., she argued that this was merely a case of misidentifying the correct name or a misnomer that is covered by Section 2-401 of the Illinois Code of Civil Procedure. Rather than a mistake of the identify by the defendant, which would have required Guiffrida to satisfy Section 2-616(d) as to relating back, the judge in Madison County concluded that the mix-up fell within the category of misnomer.

The correct classification was crucial because the registered agent of Boothy’s Palace was served with a summons on May 21, 2012 — 90 days after the Madison County complaint was filed and 43 days after the statute of limitations had expired.

If this was a case of mistaken identity governed by Section 616(d), Guiffrida also had to satisfy Illinois Supreme Court Rule 103(b), which obligated her “to exercise a reasonable diligence” in serving summons on Boothy’s Palace.

When the case was at last transferred to Calhoun County from Madison County, the judge there ruled that this was a case of mistaken identity and dismissed the lawsuit based on a finding that Guiffrida chose not to satisfy the requirements of Section 2-616(d) and Rule 103(b).

“Although Defendant received actual notice of the commencement of the proceedings within (1) 90 days from the filing of the Madison County complaint, and (2) 43 days of the expiration of the statute of limitations, we conclude, in light of plaintiff’s activities, defendant did not receive notice of the commencement of the proceedings within the time permitted for service under Rule 103(b). Accordingly, the trial court properly concluded plaintiff’s amended complaint did not relate back to the date she filed her Madison County complaint naming The Palace Inc., as defendant, and granted defendant’s motion to dismiss.” That was the conclusion reached by the Illinois Appellate Court reviewing this case.

The court said that in the case of a misnomer of a party, the relation-back doctrine applies. In that case, the amended complaint naming the proper defendant is considered filed upon the filing date of the original complaint. Fassero v. Turigliatto, 349 Ill. App. 3d 368 (2004). In that setting, service upon the misnamed party after the statute of limitations has run does not bar the lawsuit.

But in this case of mistaken identity, Section 616(d) of the Code applies, and the plaintiff must satisfy the requirements of that subsection before the complaint will relate back. If the plaintiff does not satisfy Section 616(d), the plaintiff is required to have sued the proper defendant within the applicable statute of limitations.

The court stated that in order to know whether the case involves a misnomer or mistaken identity, it must determine the intent of the plaintiff. This requires that it “is not controlled by plaintiff’s subjective intention of whom he intended to sued, but rather, by the objective manifestations of that intent as contained in the record.” Fassero at 371-72.

The most probative evidence of plaintiff’s intent is to look at the name of the party that was named in the complaint. If the name of the party named in the complaint actually exists, but is not a real party in interest, the court can conclude that plaintiff mistakenly sued the wrong party. The appeals panel stated that it would not overturn a trial court’s determination on misnomer absent an abuse of discretion.

In this case, the plaintiff filed suit against an actual corporate entity, The Palace Inc., and served its registered agent with summons and copy of the complaint. The Palace Inc., however, is not a real party-in-interest to this action and the registered agent has no connection to the defendant. On that basis alone, the trial court could have properly concluded that this was a case of mistaken identity. Plaintiff argued that she intended at all times to sue the defendant and focused on the fourth paragraph of her complaint in which she alleged she was at a business commonly known as The Palace that is located at RR1 in Hamburg, Ill. The plaintiff argues that that paragraph of her complaint is an objective manifestation of her intent to sue the owner and operator of the bar commonly known as The Palace located in Hamburg, Ill. She contended that the allegations clearly established that she misnamed the correct party in her complaint.

The court looked at the facts of the actions taken by the plaintiff. The appeals panel said that the complaint named The Palace and not Boothy’s Palace Tavern, the complaint stated that the registered agent resided in Madison County, even though the registered agent had no connection to Boothy’s Palace Tavern, the plaintiff served The Palace Inc. by leaving the summons and a copy of the complaint with the registered agent’s husband at her home and the plaintiff imitated default proceedings against The Palace Inc. when that entity failed to appear or answer the complaint within 30 days.

The court concluded that taken those facts together, that plaintiff did not sue the right party under the wrong name, but rather sued the wrong party altogether.

Because this case is one of mistaken identity and not misnomer, we must determine whether plaintiff’s proposed amended complaint relates back under Section 616(d) of the Code, to the date of the original complaint was filed.

Under 2-616(d), a cause of action against a person not originally named a defendant is not barred by the lapse of time under any statute or contract prescribing or limiting the time if all of the following terms and conditions are met:

“(1) The time prescribed or limited had not expired when the original action was commenced;

(2) The person, within the time that the action might have been brought or the right asserted against him or her plus the time of service permitted under Supreme Court Rule 103(b), receives such notice of the commencement of the action that the person would not be prejudiced in maintaining a defense on the merits and knew or should have known that, but for a mistake concerning the identity of the property party, the action would have been brought against him or her; and

(3) It appears from the original and amended pleadings that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading. For the purpose of preserving the cause of action under those conditions, an amendment adding the person as a defendant relates back to the date of the filing of the original pleading so amended.”

The plaintiff contended that the defendant had noticed at the beginning of the lawsuit, no later than May 31, 2012, when Gary Booth was served with a copy of the complaint. The court, however, disagreed and found that the plaintiff’s activities throughout the entire history of the case demonstrated her failure to exercise reasonable diligence. Accordingly, the trial court did properly dismiss the plaintiff’s amended complaint, which did not relate back to the date she filed her Madison County complaint naming The Palace Inc. as defendant and granted the defendant’s motion to dismiss.

Guiffrida v. Boothy’s Palace Tavern, 2014 IL App (4th) 131008 (Aug. 12, 2014).

Kreisman Law Offices has been handling injury cases, wrongful death actions, car accident cases, bicycle accident cases and truck accident cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 38 years in and around Chicago, Cook County and its surrounding areas, including New Lenox, Libertyville, Rolling Meadows, Northfield, Northbrook, Winnetka, Highland Park, Highwood, Homewood, Hillside, Elmwood Park, Melrose Park, Blue Island, Calumet City, Lake Bluff and Grayslake, Ill.