Misnomer of a Corporate Defendant in a Lawsuit
This article deals with misnomers, misspellings of the correct name, of corporate defendants in lawsuits. See Estate of Henry by Henry v. Folk, 674 N.E.2d 102, 104 (Ill. App. Ct. 1996) (“A misnomer exists where a plaintiff sues and serves the correct party, but calls that party by the wrong name. Mistaken identity occurs when the wrong party is named and served.”). “When businesses are being sued, it is not uncommon for the name of the defendant to be stated inexactly. It is then important to determine if the parties will be misled by the name given in the summons.” 62B Am. Jur. 2d Process § 90.
“A person who is named as a party to an action and subjected to the jurisdiction of the court is a party to the action.” Restatement (Second) of Judgments § 34(1) (1982). This rule “applies even though the person designated as a party has been identified by an erroneous or fictitious name.” Id. at cmt. d (emphasis added).
With respect to corporations and other such legal entities … the action is binding if the designation substantially conforms to the correct one and if notice of the proceeding is given to a person whose being apprised of the action is effective as notice to the entity ….
Id. (emphasis added). “Generally, an objection that the defendant was sued by the wrong name … will not avoid a judgment against a defendant who has been actually served.” 62B Am. Jur. 2d Process § 71. “If a defendant … is served personally with process in which his or her name is misspelled, such person cannot safely ignore it on account of the misnomer.” Id. “[A] default judgment against that defendant is valid although in the summons the defendant is misnamed.” Id. (emphasis added).
“If so served, the defendant must appear and set up the misnomer and whatever defense he or she may have.” 62B Am. Jur. 2d Process § 71. “The test in such cases is whether the defendant could have been misled by the error in the name.” Id.
Generally, a defective summons will be regarded as aided or cured by the pleadings served with the summons when, with all the information contained in these two papers in his or her possession, the defendant could not be misled as to the nature of the relief demanded or as to the court in which the proceedings are to be instituted.
Id. at § 81 (emphasis added). Stated another way:
A misnomer does not destroy the effectiveness of a petition. The general rule is that … the mere misnomer of a corporate defendant in words and syllables is immaterial … provided there is no substantial mistake so as to indicate a different entity. A misnomer is not fatal when it is sufficiently close to the corporation’s true name as to distinguish it from other corporations.
19 Am. Jur. 2d Corps. § 1907 (emphasis added). “The misnomer of a corporation generally will not be treated by the courts as material if the identity of the corporation is reasonably clear or can be ascertained by sufficient evidence.” 18 C.J.S. Corps. § 138 (emphasis added). See also, Fletcher-CYC § 4446 (“Misnomer of a corporation in the return of service does not invalidate the return nor defeat the service. Courts generally permit amendments to the service or return for the purpose of correcting the name of the corporation.”).
A company doing business in Florida is required to maintain a registered agent for purposes of service of process of lawsuits. See Fla. Stat. § 607.0501(1); Fla. Stat. § 48.091(1). “Florida is among the majority of states that provide for service of process on a registered agent instead of the corporation.” Fla. Corp. Prac., CP FL-CLE 4-1, § 4.1 (2017). “The corporation … is subject to the court’s jurisdiction regardless of whether it ever received notice, as long as [its] designated registered agent is properly served.” Id. at § 4.10 (emphasis added).