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Misnomer, Mistaken Identity and Diligence in Obtaining Service of Process – 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 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 establish five (5) conditions:

(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.

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).

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).

There is no magic number of days for a plaintiff to serve a defendant. Basically, the longer it takes a plaintiff to serve a defendant, the better chance a defendant can get a case dismissed under Rule 103(b). In addition, if a defendant can point to a plaintiff’s pattern of repeated delays and failure to adhere to certain deadlines, the defendant has an argument that the plaintiff case should be dismissed for lack of diligence in serving the defendant.

Source: Guiffrida v. Boothy’s Palace Tavern, Inc., 2014 IL App (4th) 131008


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