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"Relation Back"

You inadvertently named the wrong defendant in a timely filed lawsuit, but thereafter you named the proper defendant in an amended complaint filed after the statute of limitation expires. It relates back you say. Well, that is if all five statutory requirements of 735 ILCS 5/2-616(d) are met at the time plaintiff seeks to amend his complaint, including the requirement that service of summons was in fact had upon the proper defendant, albeit in the wrong capacity. The Illinois Supreme Court so held in interpreting § 2-616(d) in Morton v. Madison County Nursing Home Aux., No. 90796, 2001 WL 1474952 (Ill. S. Ct., Nov. 21, 2001). The plaintiff was poured out in that case because the proper defendant was not served until he was served with the amended complaint.

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