Mitchell v. the TimbersMitchell v. the Timbers
Plaintiff appeals from the trial court’s judgment dismissing this personal injury action with prejudice. We reverse.
Plaintiff was injured on November 17, 1995, when he was assaulted by two patrons in The Timbers, a tavern in Bend. On April 2, 1997, plaintiff filed a complaint, seeking damages for negligence, that named “THE TIMBERS” as the only defendant. The Timbers (defendant) is an assumed business name,
see
ORS 648.005(1), registered to Stanley Sanglier.
1
The trial court denied plaintiffs motion for leave to file the second amended complaint and granted defendant’s motion to dismiss plaintiffs first amended complaint. It reasoned that the action was not commenced against Sanglier within the statute of limitations, ORS 12.020, and that plaintiffs proposed amendment could not relate back to the action to avoid the statute of limitations. See ORCP 23 C. On appeal, plaintiff assigns error to the court’s ruling granting defendant’s motion to dismiss and the denial of plaintiffs motion to file a second amended complaint.
Plaintiffs principal argument on appeal is that ORCP 23 C allows the filing of an amended complaint after a statute of limitations has run if it relates back to an original filing made before the expiration of the statute of limitations. Plaintiff asserts that Sanglier had notice of the action before the statute of limitations expired. ORCP 23 C provides:
“Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against the party to be brought in by amendment, such party (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining any defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party brought in by amendment.”
See also Welch v. Bancorp Management Services,
ORCP 23 C may, in some circumstances, be used either to substitute one defendant for another or to correct the name of a defendant who was named incorrectly in the original complaint.
Compare Herman v. Valley Ins. Co.,
Plaintiff argues that the focus of ORCP 23 C is notice to the defendant of the plaintiffs claim before the expiration of the statute of limitations. He asserts that, because it is undisputed that Sanglier received notice of the claim within the statute of limitations and has not been prejudiced by plaintiffs failure to name him as a defendant, we should reverse the trial court’s dismissal of the action and allow the second amended complaint to be filed.
Defendant responds that a complaint against a “fictitious name, a non-entity, which does not name or refer to any individual living person or entity capable of being sued, does not commence an action[,]” citing
Robinson v.
Scott,
In reviewing the granting of a motion to dismiss, we assume the truth of all allegations, as well as any inferences that may be drawn, and view them in the light most favorable to the nonmoving party.
Jaqua v. Nike, Inc.,
As noted above, defendant’s assertion that the proposed second amended complaint does not relate back rests on the proposition that a complaint naming a defendant that is not a living person or a legal entity capable of being sued does not actually commence an action. Robinson, the case on which defendants rely, did indeed stand for that proposition:
“When the complaint was filed it named J. S. Walker as the sole defendant, but he had died several months before the filing of the complaint, and consequently there was in reality no defendant at all. The very existence of a cause of suit implies that there is some competent person to be sued, and for that reason a suit cannot be maintained if a defendant is lacking * * *. There was no existing defendant at the time the complaint was filed, and therefore there was no action to abate or to continue * * *. A judgment against J. S. Walker would have been a nullity * * *, and the complaint upon which judgment was based would be as much of a nullity as the judgment itself. Since there was no action, there was nothing to amend or continue * * Robinson,81 Or at 29 (citations omitted).
However,
Robinson
was decided well before the modem rule of procedure found in ORCP 23 C. In
Smith v. Wells,
Robinson
is analytically irreconcilable with case law applying ORCP 23 C to situations where a defendant has been misnamed in a complaint. In
Harmon v. Fred Meyer,
“If a plaintiff states a name other than defendant’s, but serves the correct entity with a copy of the original complaint, and the correct entity should reasonably have understood from the pleadings that it is the entity intended to be sued, then an amendment of the pleadings to correct the misnomer does not bring in a new entity and is not a change in party. That conclusion is consistent with the requirements stated in ORCP 12 that pleadings be liberally construed and that defects in the pleadings be disregarded if they do not affect the substantial rights of the adverse party.” Id. at 299-300.
We went on to conclude that the test had been satisfied, taking into account several factors: that the name shown in the caption of the original complaint was substantially similar to the defendant’s correct name; that the allegations in the complaint accurately described the defendant’s business and its relationship to the plaintiff; and that the summons correctly stated the defendant’s name and was properly served. Id. at 302.
We turn to the application of the rule set forth in
Harmon
to the present case. First, it is clear that, in this case, plaintiff misnamed the defendant, rather than naming the wrong defendant. Thus, the case is analogous to
Harmon
and
Johnson; it is not analogous to
Herman,
where an incorrect entity that had nothing to do with the cause of action was named and served, while the entity that the plaintiff meant to sue had no notice of the suit. The correct entity to be sued in the present case is “Stanley Sanglier, dba The Timbers.” The question before us is whether Sanglier, when served with a lawsuit naming “The Timbers” as defendant, “should reasonably have understood from the pleadings that [he] is the entity intended to be sued[.]”
Harmon,
We have no doubt on this record that Sanglier understood from the pleadings that he was the entity intended to be sued. First, the summons correctly stated his name and was properly served. Second, the allegations in the complaint described the activity at Sanglier’s tavern, “The Timbers,” and the nature of the injury plaintiff sustained at the tavern. Third, the name shown in the original caption “THE TIMBERS” — is at least somewhat similar to the amended caption, “STANLEY P. SANGLIER d.b.a. THE TIMBERS.” Several other factors, as well, lead us to conclude that Sanglier did, in fact, understand that he was the entity intended to be sued. There is, for example, no suggestion that there was any actual confusion about the nature or identity of “The Timbers” tavern where plaintiff sustained his injuries; there is no argument that any entity or individual other than Sanglier did business as “The Timbers,” or that Sanglier was misled or prejudiced in any way by the misnaming. Moreover, before plaintiff moved to file the amended complaint, the parties engaged in a substantial amount of discovery, wherein defendant, as named, agreed to provide documents showing the ownership of The Timbers at the relevant times, as well as documents identifying the employees who were employed by The Timbers at the relevant times. Given that it is undisputed that Sanglier was doing business as The Timbers at the relevant times, it can be inferred from the discovery activities that Sanglier understood that he, doing business as The Timbers, was being sued.
Under the circumstances presented in this case, we conclude that plaintiffs proposed
Reversed and remanded.
Notes
The record contains a certificate from the Corporation Division of the Office of the Secretary of State indicating that “THE TIMBERS” was an inactive assumed business name on May 22, 1998. The certificate also indicates that The Timbers was filed as an assumed business name on April 5, 1991, and administratively canceled on April 6, 1995, for failure to renew. Neither party argues that the status of the registration affects this appeal.