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State Supreme Court to take up name game issue

By: David Ziemer, [email protected]//November 21, 2011//

State Supreme Court to take up name game issue

By: David Ziemer, [email protected]//November 21, 2011//

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A misnomer in the summons and complaint against a corporate defendant can really foul up court proceedings.

Next month, the Wisconsin Supreme Court will review whether default judgment was properly entered against a corporation, when the original summons and complaint named a similarly named corporation, of which it was a wholly-owned subsidiary. Johnson v. Cintas Corp. No. 2, Case No. 2009AP2549.

The plaintiff, Robert Johnson, sued Cintas Corp. (Cintas), which he believed to be his employer, but actually, he was employed by Cintas Corp. No. 2 (Cintas No. 2), a wholly-owned subsidiary of Cintas Corp.

Johnson served the registered agent for Cintas No. 2 (Cintas has no registered agent in Wisconsin). No party responded to the complaint, and a hearing was scheduled on Johnson’s motion for default judgment.

The circuit court amended the summons and complaint, and then entered default judgment against Cintas No. 2. It later vacated the default judgment, but on reconsideration, reinstated the judgment. The court based its decision on the fact that Cintas No. 2 had, on numerous occasions, used the name, “Cintas Corporation,” including on Johnson’s paychecks.

The Court of Appeals reversed in a published decision, Johnson v. Cintas Corp. No. 2, 2011 WI App 5. Distinguishing cases in which the plaintiff incorrectly stated the defendant’s corporate name — defects found merely technical — the court noted that, here, the plaintiff named a wholly different entity.

The court acknowledged that Johnson’s confusion may have been understandable, and that would be relevant for purposes of permitting amendment of the pleadings. But the court held it could not justify entry of default judgment without proper service.

The court wrote, “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.”

Before the Supreme Court, Johnson argues that such authority does exist, Ness v. Digital Dial Communications Inc., 227 Wis.2d 592, 596 n.W.2d 365 (1999).

Johnson contends in his brief, “Ness stands for the proposition that when a plaintiff has served the party he or she intended to sue, a misnomer is subject to correction, without re-serving the defendant, even if the misnomer corresponds to the actual name of someone else. Like all technical defects, the only time a misnomer deprives the court of jurisdiction is when it causes the defendant to suffer actual prejudice.”

Asserting lack of actual prejudice, Johnson requests reinstatement of the default judgment.

Cintas No. 2 argues in its response brief, “Baseball Hall of Famer Frank Robinson aptly said: ‘Close don’t count in baseball. Close only counts in horseshoes and grenades.’ Close also does not count in service of process.”

Cintas No. 2 argues to the court that Ness is distinguishable, because the plaintiff in that case ultimately did serve the correct defendant.

It argues, in contrast, that in the case at bar, “[T]here are two separate and distinct corporate entities involved. One corporation was sued and another was served, resulting in the court having jurisdiction over neither.”

Cintas No. 2 dismisses the arguments in Johnson’s brief as relevant only to whether amendment should have been allowed, and not whether it was proper to enter default judgment against it.

In brief

Case:
Johnson v. Cintas Corp. No. 2,  Case No. 2009AP2549

Attorneys:
For Johnson: Robert DuMez and John V. O’Connor of O’Connor, DuMez, Alia & McTernan SC, Kenosha
For Cintas: Terry E. Johnson and Ahndrea Van Den Elzen of Peterson, Johnson & Murray SC, Milwaukee

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