Arendt v. Vetta Sports, Inc., 96-1270

• Citation: 99 F.3d 231
• Decision Date: 28 October 1996
• Docket Number: No. 96-1270,96-1270
• Parties: Nancy ARENDT, Independent Administrator of the Estate of Michael Arendt, deceased, Plaintiff-Appellant, v. VETTA SPORTS, INC., Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 231

99 F.3d 231

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.

Argued Sept. 12, 1996.

Decided Oct. 28, 1996.

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 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 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." Shaifer v. Folino, 272 Ill.App.3d 709, 208 Ill.Dec. 900, 903, 650 N.E.2d 594, 597 (1995) (citations omitted) (emphasis added); Barbour, 153 Ill.Dec. at 553, 567 N.E.2d at 511. In other words, the misnomer provision applies only when the right defendant has been sued by the wrong name, not when the wrong defendant has been sued. Schryver v. Eriksen, 255 Ill.App.3d 418, 194 Ill.Dec. 175, 176, 627 N.E.2d 291, 292 (1993); Vaughn v. Speaker, 126 Ill.2d 150, 127 Ill.Dec. 803, 806, 533 N.E.2d 885, 888 (1988), cert. denied, 492 U.S. 907, 109 S.Ct. 3218, 106 L.Ed.2d 568 (1989).

In distinguishing cases involving mere misnomer from those involving mistaken identity, Illinois courts have consistently held that whom the plaintiff intended to sue is the pivotal inquiry. Greil v. Travelodge Int'l, Inc., 186 Ill.App.3d 1061, 133 Ill.Dec. 850, 852, 541 N.E.2d 1288, 1290 (1989); Vaughn, 127 Ill.Dec. at 806, 533 N.E.2d at 888; Thielke v. Osman Construction Corp., 129 Ill.App.3d 948, 85 Ill.Dec. 206, 208, 473 N.E.2d 574, 576 (1985). This "determination is not controlled by the plaintiff's subjective intent, but rather by the objective manifestations of that intent as contained within the record." Schryver, 194 Ill.Dec. at 176, 627 N.E.2d at 292; Clinton v. Avello, 105 Ill.App.3d 336, 61 Ill.Dec. 202, 203, 434 N.E.2d 355, 356 (1982). Illinois courts have found that "the most probative evidence of whom a plaintiff intended to sue is the party named by the plaintiff in the complaint. If such party in fact exists, but is not the real party in interest, a court can conclude that the plaintiff has mistakenly sued the wrong party." Clinton, 61 Ill.Dec. at 203, 434 N.E.2d at 356.

In the instant case, Arendt named SRL as the defendant in her original complaint. Unlike many of the cases in which the Illinois courts and this court have applied the misnomer statute, the named defendant in this case, SRL, does in fact exist. See Diaz v. Shallbetter, 984 F.2d 850, 854 (7th Cir.1993) (stating that changing defendant's name from "John Shullbetter" to "Dennis Shallbetter" "would be problematic if Chicago's police force had both a Shullbetter and a Shallbetter, or if it had a John Shallbetter and a Dennis Shallbetter"); Schryver, 194 Ill.Dec. 175, 627 N.E.2d 291 (plaintiff named "P. Eriksen, M.D." as defendant rather than "R. Eriksen, M.D."); Thielke, 85 Ill.Dec. at 208-09, 473 N.E.2d at 576-77 (stating that the conclusion that plaintiff who named "Osmond & Associates" rather than "Osman & Associates" was not mistaken as to the identity of the defendant was "enforced by the fact that there is no corporation in existence named Osmond"). Cf. Greil, 133 Ill.Dec. 850, 541 N.E.2d 1288 (plaintiff sued defendant under its trade name rather than corporate name). Arendt did not merely misspell Vetta Sports' name or sue it under a common trade name; Arendt named a different corporate entity. ² Because SRL exists but is not the real party in interest, it is logical to conclude that Arendt mistakenly sued the wrong party.

Arendt contends that the body of her complaint manifests an objective intent to sue Vetta Sports, not SRL, because she "intended to sue whatever 'Vetta' was engaged in the 'designing, manufacturing, advertising, distributing, and/or selling certain products, including bicycle helmets.' " In rejecting the identical argument in the past, the Appellate Court of Illinois explained, "We do not believe that such general descriptive language in a complaint is sufficient evidence of whom the plaintiff intended to sue. It merely begs the question for a plaintiff to contend that he intended to sue the party who caused his injuries." Clinton, 61 Ill.Dec. at 203, 434 N.E.2d at 356. "While the plaintiff in this case may have intended to sue the party who caused [her] injuries, [she] did not do so." Barbour, 153 Ill.Dec. at 556, 567 N.E.2d at 514.

Arendt correctly argues that, while the party named in the complaint is the most probative evidence of whom the plaintiff intended to sue, it is not the only evidence to be considered. In Shaifer v. Folino, an Appellate Court of Illinois decision on which Arendt strongly relies, the court held that "other objective manifestations of an intent to sue another in a given case are also relevant in determining whether a misnomer exists." 208 Ill.Dec. at 904-05, 650 N.E.2d at 598-99. The facts of Shaifer illustrate the type of "other objective manifestations" that cour...