Zlatev v. Millette
43 N.E.3d 153
Ill. App. Ct.2015Background
- On Sept. 10, 2011, Zlatev was struck in the head with a brick during a fight; he did not see the assailant.
- Initial complaint (Dec. 6, 2011) named James Lee, Zachary Kondratenko, and John Does (including John Doe #5 as the brick-thrower).
- After the limitations period expired, Zlatev amended repeatedly, eventually naming Nick Gianfortune and Tom Pravongviengkham and later adding the appellee (defendant-appellant) as an alternative alleged assailant.
- Defendant moved to dismiss the fourth amended complaint as time-barred; plaintiff argued the amendment related back under 735 ILCS 5/2-616(d) (relation-back/mistaken identity).
- Trial court denied dismissal and certified two Rule 308 questions about (1) whether keeping original defendants defeats relation-back and (2) whether lack of knowledge of identity can be a “mistake.”
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an amended complaint adding a new defendant after the statute of limitations can relate back where original defendants remain | Relation-back applies; plaintiff lacked knowledge and the new defendant should have known plaintiff mistakenly failed to name him earlier | Relation-back cannot apply because plaintiff retained original defendants; keeping them shows no “mistake” of identity | Yes. Relation-back focuses on what the added defendant knew or should have known when the original complaint was filed; retaining original defendants is irrelevant |
| Whether plaintiff's lack of knowledge of a culpable party's identity can qualify as a "mistake" under §2-616(d) | Lack of knowledge about who committed the wrong is a mistake of identity justifying relation-back | Lack of information is not a mistake; plaintiff’s ignorance cannot trigger relation-back | Yes. Lack of knowledge (or uncertainty about a known party's involvement) can constitute a mistake of identity under §2-616(d) |
Key Cases Cited
- Krupski v. Costa Crociere S.p.A., 560 U.S. 538 (2010) (relation-back depends on what the added defendant knew or should have known about whether plaintiff made an identity mistake, not on plaintiff’s knowledge)
- De Bouse v. Bayer AG, 235 Ill. 2d 544 (2009) (Rule 308 appeals are limited to certified questions; de novo review of legal questions)
- Pruitt v. Pervan, 356 Ill. App. 3d 32 (2005) (previously held no relation-back where plaintiff’s pleadings showed intent to sue original defendant)
- Polites v. U.S. Bank Nat’l Ass’n, 361 Ill. App. 3d 76 (2005) (discusses relation-back and plaintiff intent in Illinois precedents)
- Compton v. Ubilluz, 351 Ill. App. 3d 223 (2004) (section 2-616(d) should be interpreted to favor resolution on the merits)
Certified questions answered in favor of plaintiff; cause remanded.