282 F.R.D. 431
E.D. Wis.2012Background
- Conner-Cooley pursued EEOC and Wisconsin DRL discrimination proceedings alleging disability-based discrimination by her employer, American General Life Companies; no liability finding and right-to-sue notice issued August 18, 2009.
- Plaintiff filed a complaint on November 17, 2009 against 'AIG Life Brokerage,' identifying the employer and a Milwaukee address as the principal place of business.
- Service of process on the defendant occurred March 18, 2010 via its authorized agent CSC, but CSC subsequently rejected the service per its policy.
- Judge found potential misnaming but held service sufficient and allowed plaintiff to pursue default judgment; she later pursued a default judgment based on different employee-count caps.
- Default was entered December 9, 2010; after multiple orders, the court entered a December 8, 2011 default judgment totaling $373,443.36 against AIG Life Brokerage.
- Defendant American General Life Companies, LLC moved to set aside the default judgment, arguing lack of proper service and misnomer; the court treated AIG Life Brokerage as the defendant for purposes of the judgment and denied the motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was service valid despite misnaming the defendant? | Plaintiff argues service identified the intended defendant; no confusion about who was sued. | Defendant argues misnaming undermines proper service. | Service valid despite misnaming; no reasonable doubt about intended defendant. |
| Should the default judgment be set aside for improper service/misnomer? | Plaintiff contends service was proper and judgment should stand. | American General argues lack of proper service warrants setting aside the judgment. | Denies motion to set aside; judgment remains. |
| Does the misnomer affect enforceability or require dismissal? | Identified entity is the defendant; misnaming does not prevent enforcement against American General. | Misnomer could affect enforceability; dismissal may be required. | Enforcement possible against American General despite misnomer; dismissal unnecessary. |
Key Cases Cited
- Tremps v. Ascot Oils, Inc., 561 F.2d 41 (7th Cir. 1977) (misnomer not fatal if intended defendant identifiable)
- O’Brien v. R.J. O'Brien & Assocs., Inc., 998 F.2d 1394 (7th Cir. 1993) (signed return of service constitutes prima facie evidence of valid service)
- Quality Oil, Inc. v. Kelley Partners, Inc., 657 F.3d 609 (7th Cir. 2011) (arguments raised for first time at oral argument are waived)