1. 46 Trial Journal Volume 19, Number 1 l Winter 2017
Ideally, when filing the original
complaint, you have identified and
named all defendants who are or could
potentially be responsible for your
client’s injuries. In reality though,
the need to add newly discovered
defendants often arises during
litigation, either through mistake or,
inadvertence, or because of other
factors simply beyond your control that
are first revealed in discovery. Maybe
time simply did not permit ample
opportunity to fully investigate before
a statute of limitations expired and suit
hadtobefiled,orthecurrentdefendants
devised a maze of corporate shells to
hide assets behind obscure subsidiaries
that could only be exposed through
discovery. If the applicable statute of
limitations has not expired, the solution
is simple: present a motion for leave
to file an amended complaint naming
the newly identified person or entity as
a defendant. The current defendants
will rarely challenge the addition of
new defendants and will have little
basis to do so if the motion to amend
is made within the time set by the court
for amending pleadings, and the newly
added defendant will have no basis
to challenge the amended pleading.
Unfortunately, often the statute of
limitations has expired, making the
outcome of any attempted amendment
uncertain and the path to overcoming
a pleading challenge more complicated.
The newly named defendant will almost
certainly file a motion to dismiss the
amended complaint as time-barred. To
defeat the motion to dismiss, you must
be able to establish that the amended
complaint “relates back” to the original
complaint. A firm grasp on the current
state of the law on this issue will be
essential to defeating the motion to
dismiss. Fortunately for plaintiffs
faced with this dilemma, the standards
associated with the relation back
doctrine have recently been relaxed.
In 2002, the Illinois statutory
requirements to establish that an
amended complaint adding a new
party relates back to the original
complaint changed to more closely
reflect federal law. Because of the
statutory amendment and a watershed
ruling by the United States Supreme
Court, Illinois courts have become
more permissive to amendments. The
most significant development in the
state and federal case law has been the
shift from a focus on what the plaintiff
knew at the time of filing the original
complaint to instead what the new
defendant knew or should have known
during that relevant time period. Zlatev
v. Millette is the most recent example
of the Illinois courts’ more liberal
treatment of plaintiffs’ attempts to
add new parties after the statute of
limitations has expired.1
The legislative history of Illinois’
relation back statute provides a
blueprint for the case law’s current
trend. The statute covers not only
the addition of new parties but also
other amendments such as adding new
claims.2
The Zlatev court addressed the
amendment of a new party, governed
by Section 616(d), which is the focus of
this article.
The current version of Section
616(d) provides in pertinent part:
d) A cause of action against a
person not originally named a
defendant is not barred by lapse of
time under any statute or contract
prescribing or limiting the time
within which an action may be
brought or right asserted, if all the
following terms and conditions
are met: (1) the time prescribed
or limited had not expired
when the original action was
commenced; (2) the person, within
the time that the action might have
been brought or the right asserted
against him or her plus the time for
service permitted under Supreme
Court Rule 103(b), received such
notice of the commencement
of the action that the person will
not be prejudiced in maintaining a
defense on the merits and knew or
should have known that, but for a
mistake concerning the identity of
the proper party, the action would
have been brought against him or
her; and (3) it appears from the
original and amended pleadings
that the cause of action asserted
in the amended pleading grew
out of the same transaction or
occurrence set up in the original
pleading, even though the original
pleading was defective in that it
failed to allege the performance
of some act or the existence of
some fact or some other matter
which is a necessary condition
precedent to the right of recovery
when the condition precedent has
in fact been performed, and even
though the person was not named
originally as a defendant. For the
purpose of preserving the cause
of action under those conditions,
an amendment adding the person
by Thomas H. Murphy
adding a new party continued on page 48
2. 48 Trial Journal Volume 19, Number 1 l Winter 2017
adding a new party continued from page 46
as a defendant relates back to the
date of the filing of the original
pleading so amended.3
The Illinois legislature’s 2002
revision of Section 2-616 (d) relaxed
the standard for plaintiffs to add
defendants after the applicable statute
of limitations as to the newly added
defendants had expired.4
Lawmakers
removed the “inadvertence”
requirement with the goal of tracking
Federal Rule of Civil Procedure 15(c)
(1)(C).5
The statutory change in effect
established that the federal cases that
addressed relation back would serve
as precedent for Illinois cases on the
issue. As a result, Illinois courts look
to Rule 15 and the federal decisions
that interpret it when faced with
disputes over the relation back doctrine
pursuant to Illinois’ 2-616(d).6
e United States Supreme Court’s
Decision in Krupski v. Costa Crociere
S.p.A
Given the Illinois courts’ deference
to the federal courts on relation back,
the most important case on the issue
is Krupski v. Costa Crociere S.p.A.7
In
Krupski, the United States Supreme
Court addressed the split among the
federal courts of appeal on the relation
back doctrine and ruled in favor of the
plaintiff by allowing an amendment.
The plaintiff in Krupski, a passenger on
a cruise ship who sustained an injury
on board, sued both a sales agent for
the carrier and the putative carrier,
Coaster Cruise Lines, the entity whose
name and address was listed on the
front and back of the passenger ticket.
The actual carrier was Costa Crociere
S.p.A, which was also listed on the back
of the ticket.8
The plaintiff filed the complaint
against Costa Cruise Lines only shortly
before the statute of limitations
expired. The passenger alleged that
Coasta Cruise Lines owned, operated,
managed, supervised and controlled
the subject ship. Over the next several
months – after the limitations period
had expired – Costa Cruise revealed
Costa Crociere S.p.A. as the carrier
to the plaintiff on three separate
occasions.9
First, in its answer to the
original complaint, Costa Cruise Lines
denied that it was the proper party
defendant as it was only a sales agent
for Costa Crociere S.p.A.10
Next,
in a corporate disclosure, it listed
S.p.A. as the interested party. Finally,
it reiterated that Costa Crociere
S.p.A. was the carrier in a motion for
summary judgment.11
The plaintiff
nevertheless did not file an amended
pleading naming Costa Crociere S.p.A.
until approximately five months after
filing the initial complaint.
The Kruspski trial court dismissed
the amended complaint on the ground
that it was untimely and the 11th Circuit
affirmed. It held that the amended
complaint did not relate back to the
filing of the original complaint because
the plaintiff knew or should have
known the correct defendant’s identity
based on the information obtained on
the ticket. The 11th
Circuit reasoned
that the plaintiff named Coaster Cruise
Lines deliberately, not by “mistake”
under Rule 15(c). Moreover, the
3. Volume 19, Number 1 l Winter 2017 Trial Journal 49
adding a new party continued on page 50
11th
Circuit cited the plaintiff’s lack
of diligence in filing an amended
complaint as a bases for its ruling.12
The United States Supreme Court
overruled the 11th
Circuit’s decision.13
First, the Supreme Court began by
rejecting, as inconsistent with 15(c)’s
focus, the 11th circuit’s conclusion that
the plaintiff had not made a mistake
within Rule 15(c) simply because the
plaintiff either knew or should have
known of the correct defendant’s
identity before filing suit. The Supreme
Court stated, “15(c) asks what the
prospective defendant knew or should
have known during the relevant period,
not what the plaintiff knew or should
have known at the time of filing the
complaint.”14
The Supreme Court
held that the plaintiff’s knowledge
or conduct is of little relevance in
determining whether a claim relates
back. The Supreme Court refused
to construe narrowly the reference
to “a mistake concerning the proper
party’s identity.” Rather, the Supreme
Court defined the term “mistake”
broadly as “an error, misconception,
or misunderstanding; an erroneous
belief.”15
It stated, “[t]hat a plaintiff
knows of a party’s existence does not
preclude her from making a mistake
with respect to that party’s identity.”16
The Supreme Court reasoned that
the complaint made clear that [the
passenger] meant to sue the company
that owned and operated the ship. The
court found that Costa Crociere S.p.A.
should have known that it was not
named as a defendant originally only
because of a misunderstanding about
which “Costa” entity was in charge of
the ship-clearly a “mistake concerning
the proper parties identity.”17
The Supreme Court explained that
its broad interpretation of the term
“mistake” was necessary to give effect
to the purpose of the relation back
doctrine: The Supreme Court stated,
“This reading is consistent with
the purpose of relation back:
to balance the interests of the
defendant protected by the statute
of limitations with the preference
expressed in the Federal Rules of
Civil Procedure in general, Rule 15
in particular, for resolving disputes
on their merits. A prospective
defendant who legitimately
believes that the limitations period
had passed without any attempt
to sue him has a strong interest
in repose. But repose would
be a windfall for a prospective
defendant who understood, or
should have understood, that he
escapes suit during the limitations
period only because the plaintiff
misunderstood a crucial fact about
his identity.”18
The Supreme Court also rejected
the 11th
Circuit’s reliance on the
plaintiff’s lack of diligence in amending
the complaint to support its decision to
deny the amendment. The Supreme
Court explained that “the Rule
mandates relation back once the Rule’s
requirements are satisfied; it does not
leave the decision whether to grant
relation back to the court’s equitable
4. 50 Trial Journal Volume 19, Number 1 l Winter 2017
adding a new party continued from page 49
discretion.19
The Court emphasized
that the plaintiff’s conduct or speed in
which he or she moves to amend has
no bearing on whether the complaint
relates back.20
Maggi v. RAS Development, Inc.
The Illinois courts now apply the
relation back doctrine as our nation’s
Supreme Court does. In Maggi, the
appellate court specifically followed
Krupski and applied the same analysis
in allowing a plaintiff to add a new
party under Section 2-616.21
Indeed,
the Maggi court solidified the precedent
in Illinois that the issue of whether the
amendment can relate back hinges on
the defendant’s knowledge, not the
plaintiff’s.
In Maggi, the plaintiff’s family
filed a wrongful death case stemming
from a construction site incident.
A jury returned a verdict against a
defendant general contractor RAS
Development (“RAS”), who plaintiff
sued with an amended complaint only
after the applicable four year statute of
limitations had expired. The plaintiff
dropped the entity previously thought
to be the general contractor upon filing
the amended complaint. The RAS
defendant appealed the judgment and
appealed the trial court’s original denial
of its motion to dismiss. RAS argued
that the plaintiffs should have known
that it was the general contractor when
they filed the original complaint. The
first district affirmed the trial court’s
decision to allow the case to proceed
against RAS even though the applicable
statute of limitations expired at the
time of filing the amended complaint.22
The Maggi opinion, written by
Justice Terrence Lavin, first addressed
the distinction between misnomer
and mistaken identity. In the case of
misnomer, the relation back doctrine
would automatically apply, and the
amended complaint naming the proper
defendant would be considered filed
upon the filing date of the original
complaint, without further analysis.23
In contrast, in a case of mistaken
identity, the court needs to analyze
the three factors provided in section
2-616(d) to determine whether a
plaintiff’s amended complaint relates
back.24
The Maggi court explained
that whether a case involves mistaken
identity or misnomer depends on the
intent of the plaintiff as established by
the plaintiff’s objective manifestations
of that intent is contained in the
record. “The most probative evidence
of whom the plaintiff intended to sue
is the party named in the complaint.”25
“If the named party in fact exists but
is not a real party in interest, a court
can conclude that the plaintiff has
mistakenly sued the wrong party.”26
The Maggi court determined that the
case before it was clearly a case of
mistaken identity and analyzed the case
accordingly.
The Maggi court reiterated that
what plaintiff actually knew or should
have known is irrelevant based on
the specific language of 2-616(d).27
Referring to Krupski, the Maggi court
clarified that for purposes of relation
5. Volume 19, Number 1 l Winter 2017 Trial Journal 51
back, the question is whether the proper
defendant knew or should have known
that it would have been named as a
defendant but for an error.28
The Maggi
court also found Krupski particularly
applicable to the case before it because,
as in Krupski, the defendants in Maggi
were related corporate defendants
with similar names, “one of whom
surely contributed to the confusion.”29
Other than receiving formal service of
a complaint, the RAS defendant was
as aware of the original complaint as
the related defendants who plaintiff
originally sued.30
The Maggi court further referenced
Krupski’s direction to balance the
respective parties’ positions with a
preference – expressed in the Federal
Rule 15 – to resolve disputes on their
merits.31
Also, just as the Supreme Court
did in Krupski, the Maggi court rejected
the defendant’s attempt to dismiss
the amended complaint because the
plaintiff was not diligent in filing the
amendment.32
The Maggi court stated
that the Supreme Court made it clear
in Krupski that a plaintiff’s diligence is
not a factor enumerated in Federal Rule
15(c). The Maggi court confirmed that
the plaintiff’s diligence is likewise not a
factor in Section 2-616(d).
Borchers v. Franciscan Tertiary
Province of the Sacred Heart, Inc.
The same year as the Maggi
decision, Illinois’ Second District
Court of Appeals also followed
Krupski in Borchers v. Franciscan Tertiary
Province of the Sacred Heart, Inc.,33
where
a former employee sought to add
two individuals as defendants in an
employment discrimination case after
the applicable statutes of limitations
had expired.34
The plaintiff had
originally sued her former employer
and “unknown persons” for accessing
her personal email account, only later
learning that two specific individuals
were responsible for the conduct at
issue.35
The defendants brought a
motion to dismiss which the trial court
granted finding that the plaintiff’s
amended complaint did not relate back
because the individual defendants were
known to the plaintiff at the time that
she filed suit. The appellate court
reversed as to one of the individual
defendants, holding that under Krupski,
the amended complaint related back
to the original complaint, as “the
plaintiff’s failure to name [the two
individuals] in her initial complaint was
a “mistake” derived from her lack of
knowledge about the nature of their
involvement.36
The Borchers Court stated
that in construing Section 2-616(d), it
must interpret the language liberally,
bearing in mind the jurisprudential
policy that claims should be decided
on their merits if possible. The Borchers
court stated, “This policy suggests that
we should select the construction of
§2-616 that would lead to resolution on
the merits.”37
The appellate court further
explained that, previously, the federal
courts of appeals were divided as to
whether the relation back doctrine
adding a new party continued on page 52
6. 52 Trial Journal Volume 19, Number 1 l Winter 2017
embodied in Rule 15(c) could be
applied to situations outside of the
quintessential case of misnomer
or mistaken identity. The Borchers
court reiterated the Maggi court’s
interpretation of Krupski and the
impact the removal of the inadvertence
requirement has on the analysis. The
Borchers court ruled that “in light of
these policies, Rule 15(c) [and therefore
2-616(d)] must be understood to freely
permit amendment of pleadings and
relation back so long as the policies
of statute of limitations have been
effectively served.”38
The Borchers case further confirms
that any attempts by newly named
defendants to assert that a plaintiff’s
lack of diligence in amending a
complaint bars the amendment should
be rejected. The defendant in Borchers
argued that by waiting four months
after learning of the new defendants,
the plaintiff did not exercise diligence
and therefore the requirements of
section 2-616(d) could not be satisfied.
The Borchers court explained that, when
the Illinois legislature amended section
2-616(d) to mirror Federal Rule 15(c),
it rendered the plaintiff’s diligence
virtually irrelevant just as the Supreme
Court has determined.39
The Borchers court addressed
in depth the most contentious
requirement for relation back – notice.
The defendants in Borchers argued that
because plaintiff did not serve them
with any notice, she failed to satisfy
requirement (2) of Section 2-616(d) –
notice of the suit within the limitations
period.40
One of the newly added
defendants argued that she only knew
of the suit in and around the time
that she was deposed about seven
months after the statute of limitations
had expired and before the plaintiff
amended her complaint. She argued
that she was not part of the employer’s
management and therefore knew
nothing of the suit when it was first
commenced. The plaintiff responded
that, even if that defendant did not
have actual notice of the suit until
later, she had constructive or imputed
knowledge because she was employed
by the defendant employer which did
have timely notice of the suit and is
represented by the same attorneys that
represented said employer.
Again, the Borchers court turned to
federal precedent for guidance. Borchers
relied on federal courts, which have
held that, “where the named defendant
and the prospective defendant are
closely related and also share the same
attorney, that attorney’s knowledge
of the suit may be imputed to the
prospective defendant under certain
circumstances.41
Borchers follows the
logicof thefederalcourts’interpretation
of Rule 15(c) in that – “notice” for
purposes of Rule 15(c) – is not the
same as service of a complaint, and may
be satisfied by knowledge gained by
informal means.”42
However, because
one of the newly added defendants
was a nonmanagerial employee
whose awareness of the suit could
not be presumed from the employer’s
knowledge, the court granted her
motion to dismiss.43
In contrast,
the other individual defendant was
involved early on in defending the case
and answering discovery. The court
found that noticed was established as
to that defendant.44
Zlatev v. Millette
This brings us back to the Zlatev
case, the most recent example of the
Illinois courts’ evolution in how it
applies the relation back doctrine.45
In
Zlatev, certain tenants in an apartment
building were involved in a fight which
resulted in plaintiff’s personal injuries.
The plaintiff added a new defendant
after the statute of limitations expired.
The difficulty the plaintiff encountered
in naming the proper defendant arose
from the fact that he could not identify
who hit him during the melee. A
police report identified the assailant
as “male, white, 22 years old, 5’7” to
5’8”, 170 pounds, short blonde hair
and wearing a red shirt.” The plaintiff
filed his original complaint naming
certain defendants and later amended
the complaint adding an additional
individual as a new party defendant.
The plaintiff filed various amended
complaints adding other individuals
as defendants. Well after the statute of
limitations had expired, the plaintiff
filed the pleading at issue - a fourth
amended complaint alleging in the
alternative [to the other previously
named defendants] that an individual
named Grant Millett was the party who
struck him.46
Millett moved to dismiss the
complaint based on a statute of
limitations, arguing that there was
no mistake in identity because the
plaintiff did not remove the original
defendants from the complaint. The
trial judge denied Millett’s motion to
dismiss but certified two questions
for interlocutory appeal. They were:
(1) whether an amended complaint
relates back to the original complaint
if the original defendants remain as
defendants; and the charges are the
same; and, (2) whether the plaintiff’s
lack of knowledge regarding a party’s
identity – or, for that matter, a lack of
knowledge regarding a known party’s
involvement in events giving rise to
the cause of action – may constitute
mistake under 2-616(d).47
The Zlatev
court answered yes to both questions.48
InspecificallyfollowingKrupski,the
Zlatev court noted Krupski’s importance
on the issue of relation back and
focused on what the party to be added
[as a defendant] knew or should have
known, not in the amending party’s
knowledge or timeliness in seeking to
amend the pleading.”
The Zlatev court stated that it
was irrelevant that other defendants
remained in the case and were not
dismissed when the plaintiff filed his
fourth amended complaint, so long as
the defendant either knew or should
have known that he escaped suit only
because the plaintiff was mistaken
about his identity. The appeals
panel firmly asserted that a lack of
adding a new party continued from page 51
7. Volume 19, Number 1 l Winter 2017 Trial Journal 53
adding a new party continued on page 54
knowledge about an identity “certainly
may constitute a mistake concerning
the identity of the proper party.”49
The Zlatev case is interesting
because it arguably goes beyond even
Maggi or Borchers. It is important to
remember that the case law has shifted
to the defendants’ knowledge of a
claim at the time of filing the original
complaint. When the newly added
defendant is merely another business
entity closely related to a current
party and is hiding behind a shadow
designation or is an employee of an
entity already a party defendant, the
plaintiff can often establish notice by
at least informal means. Nevertheless,
the notice requirement is still strictly
enforced, as demonstrated by the
appellate court‘s favorable treatment
of one of the defendants in Borchers.
But the defendant in Zlatev was just one
of several persons involved in a street
fight. There was no cited evidence
that he knew that a complaint had
been filed. The Zlatev court simply
found that if he did not know of the
complaint, he should have known that the
plaintiff meant to sue him.50
According
to the court, that factor alone satisfied
the notice requirement pursuant to
2-616(d).51
Given the liberalizing trend of
Illinois courts on the scope of the
relation back doctrine, you would be
doing your client a great disservice if
you assumed that you could not add
as an additional defendant a person
or entity that you discovered to be
culpable after the statute of limitations
had expired. While your attempt to add
another defendant is likely to be met
with a motion to dismiss, the recent
authority considered here provides
you with more ammunition than
ever before to defeat the challenge.
In surmounting that challenge, it is
worth pointing out to the judge that
the standards governing the relation
back doctrine have been relaxed by
the Supreme Court and Illinois courts
because of their adherence to the
fundamental preference that disputes
be decided on their merits.
Endnotes
1
43 N.E.3d 153, 2015 Ill. App (1st)
143173 (2015).
2
See 735 ILCS 5/2-616 (West 2002).
Amendments (a), (b), (c) and (e).
3
735 ILCS 5/2-616(d) (West 2002).
4
735 ILCS 2-616 (West 1991).
Amendments (a) At any time before
final judgment amendments may be
allowed on just and reasonable terms,
introducinganypartywhooughttohave
been joined as plaintiff or defendant,
dismissing any party, changing the
cause of action or defense or adding
new causes of action or defenses,
and in any matter, either of form or
substance, in any process, pleading, bill
of particulars or proceedings, which
may enable the plaintiff to sustain the
claim for which it was intended to be
brought or the defendant to make a
defense or to assert a cross claim.
(d) A cause of action against a person
not originally named a defendant is
not barred by lapse of time under
any statute or contract prescribing or
limiting the time within which an action
8. 54 Trial Journal Volume 19, Number 1 l Winter 2017
may be brought or right asserted, if all
the following terms and conditions are
met:
(1) the time prescribed or limited
had not expired when the original
action was commenced; (2) failure
to join the person as a defendant was
inadvertent; (3) service of summons
was in fact had upon the person, his or
her agent or partner, as the nature of
the defendant made appropriate, even
though he or she was served in the
wrong capacity or as agent of another,
or upon a trustee who has title to but
no power of management or control
over real property constituting a trust
of which the person is a beneficiary;
(4) the person, within the time that the
action might have been brought or the
right asserted against him or her knew
that the original action was pending
and that it grew out of a transaction
or occurrence involving or concerning
him or her; and (5) it appears from the
original and amended pleadings that
the cause of action asserted in the
amended pleadings grew out of the
same transaction or occurrence set up
in the original pleading, even though
the original pleading was defective in
that it failed to allege the performance
of some act or the existence of some
fact or some other matter which is a
necessary condition precedent to the
right of recovery when the condition
precedent has in fact been performed,
and even though the person was not
named originally as a defendant. For
the purpose of preserving the cause
of action under those conditions, an
amendment adding the person as a
defendant relates back to the date of
the filing of the original pleading so
amended.
5
(a) AMENDMENTS BEFORE
TRIAL
(c) RELATION BACK OF
AMENDMENTS
(1) When an Amendment Relates Back.
An amendment to a pleading relates
back to the date of the original pleading
when:
(C) the amendment changes the
party or the naming of the party against
whom a class is asserted,if Rule15(c)(1)
(B) is satisfied and if, within the period
provided by Rule 4(m) for serving the
summons and complaint, the party to
be brought in by amendment:
(i) received such notice of the
action that it will not be prejudiced in
defending on the merits; and
(ii) knew or should have known that
the action would have been brought
against it, but for a mistake concerning
the proper party’s identity.
6
Polites v. U.S. Bank Nat. Ass’n, 361
Ill. App. 3d 76, 836 N.E.2d 133 (2005).
7
560 US 538, 130 S.Ct. 2485 (2010)
8
“Crociere” means cruise in Italian.
Cassel’s Italion Dictionary 137, 670
(1967)
9
Id.
10
Id.
11
Id.
12
Id.
13
Id.
14
130 S.Ct. at 2494 (2010).
15
Krupski, 130 S.Ct. at 2494 (quoting
Black’s Law Dictionary 1092 (9th
adding a new party continued from page 53
9. Volume 19, Number 1 l Winter 2017 Trial Journal 55
ed.2009) (Emphasis added).
16
Id.
17
Id. at 2497.
18
Id. at 2494.
19
Id.
20
Id. at 2496-7.
21
Maggi v. RAS Development, Inc., 2011
IL App. (1st) 091955, 949 N.E.2d 731
(1st Dist. 2011)
22
Id.
23
Id. at 740, citing Fassero v. Turigliatto,
349 Ill. App. 3d 368, 380 (4th Dist.
2004)
24
Id.
25
Id.
26
Id.
27
Maggi, 2011 IL App. (1st) 091955 at
¶28
28
Id. at 745.
29
Id. at 743.
30
Id. at 745.
31
Id. at 745.
32
Id.
33
2011 Ill.App.2nd 101257, 962
N.E.2nd 29, (2nd Dist. 2012)
34
Id.
35
Id.
36
Id.
37
Id. at 46.
38
Id. at 48.
39
Id. at 51.
40
735 ILCS 5/2-616(d)(2) (West
2002) The person, within the time that
the action might have been brought or
the right asserted against him or her
plus the time for service permitted
under Illinois Supreme Court Rule
103(b), received such notice of the
commencement of the action that
the person will not be prejudiced in
maintaining a defense on the merits and
knew or should have known that, but
for a mistake concerning the identity
of the proper party, the action would
have been brought against him or her.
41
Id. at 50.
42
See Singletary v. Pennsylvania
Department of Corrections, 266 F.3d 186,
195 (3d Cir. 2001).
43
Id. at 51.
44
Id. at 51.
45
Zlatev, 43 N.E.3d 153 (First Dist.
2015).
46
Id.
47
Id. at 154.
48
Id.
49
Id.
50
Id. at 160.
51
Id.
omas Murphy is a partner at the law
rm of Cogan & Power P.C. His practice
focuses on catastrophic injury cases,
wrongful death and medical malpractice.
He obtained his juris doctor from John
Marshall Law School, cum laude and his
undergraduate degree from the University
of Arizona.