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2009AP2549 Johnson v. Cintas Corp. No. 2

By: WISCONSIN LAW JOURNAL STAFF//November 17, 2010//

2009AP2549 Johnson v. Cintas Corp. No. 2

By: WISCONSIN LAW JOURNAL STAFF//November 17, 2010//

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Civil Procedure
Default judgment; personal jurisdiction

Where the plaintiff named the wrong defendant, and the trial court permitted the plaintiff to amend the complaint and then immediately entered default judgment, the judgment must be reversed.

“Here, the trial court permitted Johnson to amend the pleadings to name Cintas No. 2, and then immediately granted default judgment-without affording Cintas No. 2 service of process. The facts of record clearly indicate that Cintas Corporation and Cintas Corporation No. 2 are legally independent companies. See DOR v. River City Refuse Removal, Inc., 2007 WI 27, ¶43, 299 Wis. 2d 561, 729 N.W.2d 396 (a wholly-owned subsidiary of a company is an independent legal entity). Regardless of how Cintas No. 2 held itself out to the public, the amendment of the summons and complaint had the effect of bringing a new party into the action. Added parties must be served with the summons or voluntarily appear. Wis. Stat. §§ 802.09(1), 801.14(1). Here, the plaintiff named the wrong defendant. Johnson advised the court, prior to entry of default judgment, that this was the case.”

“Johnson points to facts justifying his confusion over the correct corporate entity, and the trial court later, upon reconsideration, found that Cintas No. 2 effectively operated under the name Cintas Corporation in Wisconsin and in relation to Johnson. However, these facts would be relevant considerations for purposes of permitting amendment and/or relation back, neither of which are contested here. Johnson provides no authority for entry of a default judgment without service after amendment substituting one incorrect existing separate corporate entity for another as defendant. Thus, in keeping with Bulik, we conclude that Johnson’s summons and complaint failed to recite the name of the party he intended to sue.”

Reversed and Remanded.

Recommended for publication in the official reports.

2009AP2549 Johnson v. Cintas Corp. No. 2

Dist. II, Kenosha County, Bastianelli, J., Neubauer, J.

Attorneys: For Appellant: Johnson, Terry E., Milwaukee; Van Den Elzen, Ahndrea Renae, Milwaukee; For Respondent: DuMez, Robert I., Kenosha; O’Connor, John V., Kenosha

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