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Civil Litigation FlashPoints February 2013

What’s in a Name?

Can your client’s case be thrown out for filing the complaint under a fictitious name without leave of the court? The Illinois Supreme Court took up this issue in Santiago v. E.W. Bliss Co., 2012 IL 111792, 973 N.E.2d 858, 362 Ill.Dec. 462 (2012), and held . . . it depends. 

The plaintiff in Santiago filed a products-liability complaint after he was injured on the job. He identified himself him in the complaint as “Juan Ortiz”, a name he was known by in the workplace. Juan Ortiz’s legal name, however, was Rogasciano Santiago. The defendant learned of the plaintiff’s “real” name a year after the complaint was filed when, during his deposition, he indicated that his birth name was Rogasciano Santiago.

Shortly thereafter, the plaintiff sought leave to file an amended complaint to add Rogasciano Santiago as his birth name. The trial court permitted the amendment over the defendant’s objection. The defendant then filed a motion to dismiss, arguing that the plaintiff committed fraud on the court and that the case should be dismissed with prejudice as a sanction. In the alternative, the defendant argued that the complaint must be dismissed with prejudice because the original complaint was a nullity, and therefore the amended complaint would not relate back to the original complaint and the statute of limitations had expired on his claim. The trial court denied the defendant’s motion to dismiss and certified the following two questions for appeal: (1) whether the circuit court should dismiss plaintiff’s cause of action with prejudice as a sanction for filing a complaint using a fictitious name; and (2) whether the circuit court should dismiss the cause of action with prejudice because the original complaint was a nullity, the limitations period had expired, and the amended complaint could not relate back to the initial filing.

The appellate court held that when an injured plaintiff intentionally filed a complaint using a fictitious name, without leave of court, the court may exercise its discretion and dismiss the complaint with prejudice as a sanction. In addressing the second question, the appellate court held that “the circuit court must dismiss the plaintiff's cause of action with prejudice ‘because the original complaint is a nullity, the limitations period has expired, and the amended complaint cannot relate back to the initial filing.’ ” 2012 IL 111792 at ¶2.

On appeal, the Illinois Supreme Court agreed with the appellate court that that a circuit court has discretion to dismiss a complaint with prejudice as a sanction for filing under a fictitious name without leave of the court. The court went further and held that while dismissal is neither mandatory nor precluded in such circumstances, it is a drastic remedy and is justified only when there is (1) a clear record of willful conduct showing deliberate and continuing disregard for the court’s authority, and (2) a finding that lesser sanctions are inadequate to remedy both the harm to the judiciary and the prejudice to the other party. The Supreme Court remanded the case back to the appellate court for a hearing to determine if dismissal was warranted under the two-part test. 

Regarding the second issue, the Supreme Court reversed and held that a complaint filed using a fictitious name without prior court approval is not a nullity and that the amended complaint, therefore, can relate back to the prior pleading and should not have been dismissed as untimely. In explaining its holding, the Supreme Court recognized the principle that a lawsuit that is brought in a name that is not of a natural person, a corporation, or a partnership is a nullity, but rejected the appellate court’s finding that a fictitious name is not that of a natural person. In support of its position, the court cited People v. Montgomery, 271 Ill. 580, 111 N.E.578 (1916), which recognized that a person may be named in legal proceedings by a generally known name. Section 2-401 of the Code of Civil Procedure, which expressly permits a litigant to file a complaint under a fictitious name, albeit with leave of court, only further supports the court’s conclusion that a litigant who proceeds under a fictitious name is nonetheless proceeding under the name of a “natural person.” 735 ILCS 5/2-401.

While the precise issue before the Supreme Court in Santiago involved appropriate sanctions for filing a complaint under a fictitious name without approval from the court, the court’s opinion generally confirms the accepted notion that a circuit court has the discretion to dismiss a cause for willful violations of its authority. While such a drastic remedy is likely rare in instances in which the plaintiff files its complaint under anything but its legal name, a cautious lawyer should heed the admonition set forth in Alton Evening Telegraph v. Doak, 11 Ill.App.3d 381, 296 N.E.2d 605, 606 (5th Dist. 1973), that “a lawyer should know his client when he files suit.”