Relation Back Case Changes Focus to Defendant’s Knowledge

Illinois courts have not been consistent in how they analyze cases where a plaintiff adds a party after the statute of limitations has expired. A plaintiff may add a new defendant to the lawsuit after the statute of limitations has run if the claim “relates back” to the filing date of the original complaint when: (1) the original action was filed timely; (2) the new defendant received timely notice of the lawsuit and knew or should have known that, but for a mistake concerning the identity of the proper party, the lawsuit would have been brought against him or her; and (3) the cause of action in the new pleading grew out of the same occurrence in the original pleading.  735 ILCS 5/2-616(d). The second prong of this test requires a mistaken identity in order to add a new defendant after the limitations period. But courts seem to be creeping toward a different standard that looks to whether the new defendant should have known about the lawsuit rather than mistaken identity.

In Zlatev v. Millette, 2015 IL App (1st) 143173, certain tenants of an apartment building where a fight took place were added to the complaint after the limitations period. The newly added defendants moved to dismiss, arguing that there was no mistake in identity because plaintiffs did not remove the original defendants from the complaint. But the appellate court held that “when evaluating a mistake under section 2-616(d), the proper focus is not on whether plaintiff made a reasonable mistake, but whether or not the defendant could reasonably believe that plaintiff had made a mistake in not naming the defendant in the initial complaint.”  Zlatev specified that relation back still applied even if the defendants named in the original complaint remain in the amended complaint. In other words, no mistaken identity is required.

Interestingly, the Zlatev decision focused on the defendant's knowledge of his potential culpability rather than whether he had notice of the lawsuit: “If, as plaintiff alleges, defendant was the person who struck plaintiff with the brick, [defendant] knew or at least should have known that plaintiff meant to sue him.” This places the burden on the potential defendant to anticipate a lawsuit because of its conduct rather than on the plaintiff to identify the proper party.