TBA Law Blog

Posted by: Donald Paine on Apr 1, 2012

Journal Issue Date: Apr 2012

Journal Name: April 2012 - Vol. 48, No. 4

We usually consult Civil Procedure Rule 15.03 when we have sued the wrong defendant. As I wrote back in April 2006, we should act fast to remedy the situation. Amend to substitute the correct defendant and serve a new summons and complaint within 120 days after commencement. That’s conclusive proof that the correct defendant knew of the mistake.

But what if we sue using the wrong name for our plaintiff? As I suggested in my recent January column, this may become more common with the influx of illegal aliens, who may use false names. Is the man sitting across the desk Señor Carrion-Casillas or Señor Urtuzuastegui?

Once we learn the truth, an amendment correcting the plaintiff’s name is a matter of right and relates back to the filing date of the original complaint. Here is pertinent language in Rule 15.03, rearranged slightly to fit plaintiffs rather than defendants:

An amendment changing … the naming of the party by … whom a claim is asserted relates back if * * * the claim … 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.

To make legal life easier and sleep more peaceful, try to get the plaintiff to tell the truth. But if truth is delayed, the quoted relation back language is welcome medicine.

Donald F. Paine DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, and Bickers LLP. He lectures for the Tennessee Law Institute, BAR/BRI Bar Review, and the Tennessee Judicial Conference.