99 F.3d 231 (7th Cir. 1996), 96-1270, Arendt v. Vetta Sports, Inc.

Docket Nº:96-1270.
Citation:99 F.3d 231
Party Name:Nancy ARENDT, Independent Administrator of the Estate of Michael Arendt, deceased, Plaintiff-Appellant, v. VETTA SPORTS, INC., Defendant-Appellee.
Case Date:October 28, 1996
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 231

99 F.3d 231 (7th Cir. 1996)

Nancy ARENDT, Independent Administrator of the Estate of

Michael Arendt, deceased, Plaintiff-Appellant,

v.

VETTA SPORTS, INC., Defendant-Appellee.

No. 96-1270.

United States Court of Appeals, Seventh Circuit

October 28, 1996

Argued Sept. 12, 1996.

Page 232

Charles A. Janda (argued), Chicago, IL, for Plaintiff-Appellant.

Michael A. Reiter (argued), Julie L. Schulz, Chicago, IL, for Defendant-Appellee.

Before BAUER, FLAUM, and MANION, Circuit Judges.

FLAUM, Circuit Judge.

Two days before the expiration of the statute of limitations, Nancy Arendt filed suit against Vetta, S.r.L. ("SRL"), an Italian corporation,

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asserting claims of negligence and strict products liability arising from the death of her husband, whom she alleged died while wearing a bicycle helmet designed and manufactured by SRL. Unfortunately for Arendt, SRL has never designed or manufactured bicycle helmets. Consequently, one year after the statute of limitations period for her wrongful death claims expired, Arendt sought to amend her complaint to substitute Vetta Sports, Inc. ("Vetta Sports") as defendant. Vetta Sports moved for summary judgment on the ground that the statute of limitations barred Arendt's claims. The district court, sitting in diversity, held that the Illinois "misnomer statute," 735 ILCS 5/2-401(b) (West 1992), was inapplicable as Arendt sought to add a new defendant rather than merely to correct the name of a party. The district court also held that Arendt's amended complaint did not relate back to the date of the filing of her original complaint under either Illinois law, 735 ILCS 5/2-616(d) (West 1992), or under Federal Rule of Civil Procedure 15(c). 1 We agree and therefore affirm the district court's grant of summary judgment for Vetta Sports.

I.

On July 15, 1994, Arendt filed her complaint against SRL in Illinois state court alleging that her husband Michael Arendt was wearing a bicycle helmet "designed, manufactured, advertised, distributed and/or sold" by SRL when he sustained head injuries in the July 17, 1992 bicycle accident that caused his death. At the time of the accident, Michael Arendt was wearing a bicycle helmet bearing the name "Vetta." Arendt addressed her original summons to SRL at its corporate office in Italy.

Arendt was unsuccessful in her attempts to serve SRL in Italy, however, and subsequently sought to have an alias summons issued in the name of "Vetta, SRL aka Vetta Sports." This summons was mistakenly served on Vetta Sports' registered agent in California on November 23, 1994, 130 days after Arendt filed her complaint against SRL. The record is silent as to what prompted Arendt to issue the alias summons in the name of "Vetta, SRL aka Vetta Sports" and to serve Vetta Sports' California agent. SRL filed a motion to quash the summons for insufficient service of process on February 9, 1995, asserting that Vetta Sports was not SRL's agent for service of process.

Arendt then initiated discovery to determine the relationship between SRL and Vetta Sports. She learned that SRL had never designed or manufactured bicycle helmets, nor had it ever distributed or sold bicycle helmets in the United States. As for its relationship with the similarly named Vetta Sports, SRL revealed that it became an indirect subsidiary of Vetta Sports in October of 1993 when Vetta Sports purchased all of the shares of SRL. The two companies also share some common officers and directors. Arendt consequently sought leave to amend her complaint to name Vetta Sports as defendant. On July 17, 1995, one year after the statute of limitations expired on her wrongful death claim, Arendt filed her First Amended Complaint naming Vetta Sports as the defendant. The First Amended Complaint also added a count for breach of the implied warranty of fitness for a particular purpose.

Vetta Sports then removed the action to federal court and moved for summary judgment. The district court granted Vetta Sports' motion on the ground that the statute of limitations barred Arendt's claims. Arendt appeals and argues (1) that the district court erred in finding that Arendt's naming of SRL rather than Vetta Sports was not a "misnomer" so as to permit correction of the defendant's name under 2-401(b) of the Illinois Code of Civil Procedure; (2) that the district court erred in finding that Arendt's amended complaint did not relate back to the date of the filing of her original complaint

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under Illinois law; and (3) that the district court erred in dismissing her claim for breach of implied warranty. We address each of her arguments in turn.

II.

Arendt first argues that the naming of SRL instead of Vetta Sports was a case of "misnomer." In Illinois, "[m]isnomer of a party is not a ground for dismissal but the name of the party may be corrected at any time...." 735 ILCS 5/2-401(b) (West 1992). However, this rule is a "narrow one" and Illinois courts have "consistently distinguished the misnomer rule from rules applicable to a mistake in identity." Barbour v. Fred Berglund & Sons, Inc., 208 Ill.App.3d 644, 153 Ill.Dec. 551, 553-54, 567 N.E.2d 509, 511-12 (1990). The distinction is critical in this case.

"A misnomer occurs where the plaintiff brings an action and serves summons upon the party intended to be made the defendant, thus giving actual notice of the lawsuit to the real party in interest, but the process and complaint do not refer to the person by his correct name. Mistaken identity, on the other hand, occurs when the wrong person is named and served."...

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