A party who improperly names a defendant may seek to amend the complaint to name the correct party through the relation-back doctrine.  To do so, the plaintiff must establish that (1) the claims arose out of the same conduct, transaction, or occurrence, (2) the new party is united in interest with the original defendant, and by reason of that relationship, can be charged with notice of the institution of the action and will not be prejudiced in maintaining his or her defense on the merits by virtue of the delayed assertion of those claims against him or her, and (3) the new party knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been timely commenced against the new party. The mistake need not be excusable for the relation-back doctrine to apply.

In Castagna v. Almaghrabi, the plaintiff tripped and fell on a public sidewalk when he stepped on construction debris. Plaintiff initially sued DCI Contracting, but when plaintiff learned that the company had dissolved before the accident, he amended the caption to add DDBI, another contractor. After the three-year statute of limitations expired, DDBI moved for summary judgment on the basis that it did not perform work on the sidewalk until several months after the accident. Around this time, the plaintiff learned that Anthony Sawaya, a principal in both DDBI and DCI, had continued to perform work under DCI’s name even though it was dissolved and renewed a permit in his own name after DCI’s dissolution.

Knowing that his complaint against Sawaya would be time-barred, the plaintiff moved to add Sawaya by relying on the relation back doctrine.   The court recognized that denying plaintiff the amendment would not be fair or equitable and granted the plaintiff’s motions. It found that Sawaya was united in interest with the defunct DCI and was on notice that his own conduct might be at issue.

The simple lesson here is failing to maintain corporate formalities will typically come back to bite you, regardless of the motivation. When in doubt, incur the minimal expense of incorporating and protect yourself from personal liability.

Thanks to Gabe Darwick for his contribution.

For more information, contact Denise Fontana Ricci at