Like much of our country, Illinois has lots of folks who are using fake ID’s and phony names to get along. The problem is what to do when they come to our court system to redress wrongs and use the same fake names in sworn pleadings? In our view, this situation is a litmus test for the willingness of our courts to protect Plaintiffs and their attorneys. We assure our readers ITLA and the Plaintiff bar want such lawsuits to remain active and withstand motions to dismiss so they get paid.
We feel the only reason a claimant would file a suit in a fake name is either passive stupidity or to actively hide something in their past. If the defense can prove the claim was filed in a fake name to actively hide something, it might not turn out well for Plaintiff, even after this ruling. Our strong practice tip for the Plaintiff bar in the GL, EPLI and WC arenas is to file suits or Applications in every name a Plaintiff/Petitioner has ever been known. We still believe you are taking a major risk/chance not to follow that practice. If you carefully read this hotly divided ruling, the Illinois courts retained the ability to dismiss a claim when Plaintiff files an action in a faked name. The IL Supreme Court just better outlined what would be needed to do so.
In Santiago v. E.W. Bliss Company, et. als., claimant filed suit in the phony name “Juan Ortiz.” He later admitted his given name was Rogasciano Santiago. Upon learning of the fake name, Defendants moved to dismiss as a sanction for Plaintiff intentionally filing a complaint using a fictitious name without leave of court. Defendants also argued the original complaint was a nullity, because it was filed in a fake name. When it was later amended to substitute Plaintiff’s real name, Defendants argued the later amendment, after the statute of limitations, could not “relate back” and the matter was therefore time-barred.
The Circuit Court denied Defendants’ motions to dismiss but certified their order, pursuant to Supreme Court Rule 308, to resolve the issues on an expedited basis. The Appellate Court held:
(1) The Circuit Court has discretion to dismiss such a claim as a sanction, and
(2) The Circuit Court must dismiss the matter because the original complaint was a nullity and the amendment after the limitations period expired cannot relate back to make the claim viable.
On review, the IL Supreme Court reversed in part and remanded the matter. The majority opinion held the Circuit Court had discretion to dismiss with prejudice under these circumstances. However, it held dismissal was justified only when
(1) There is a clear record of willful conduct showing deliberate and continuing disregard for the court’s authority; and
(2) There is a finding lesser sanctions were inadequate to remedy both the harm to the judiciary and the prejudice to the opposing party.
Our highest state court disagreed with the Appellate Court as to the nullity issue. It held the use of a fictitious name, without court approval, did not automatically render the original complaint a nullity and an amended complaint correcting the name may relate back to the initial filing to avoid the effect of the statute of limitations.
The decision brought a special concurrence by Justice Karmeier who defined the difference between a “fictitious person or party” and a “fictitious name.” The decision brought the concurrence by Justice Karmeier, a special concurrence by Justice Ann Burke, and a strong dissent by Justice Thomas, joined by Justice Garman that also discussed the interplay of “misnomer” under Code of Civil Procedure section 2-401.
The decision is on the web at: http://www.state.il.us/court/opinions/SupremeCourt/2012/111792.pdf. We appreciate your thoughts and comments.