Summary
holding that plaintiff could not substitute the real names of the defendants for the John Doe defendants upon discovery of their true identity because doing so would not correct a misnomer in the complaint but actually add new defendants
Summary of this case from Tremblay v. WebsterOpinion
No. 36 42 40
March 25, 1992
MEMORANDUM OF DECISION
This action is brought by the plaintiff, Connecticut Resources Recovery Authority (CRRA), against Refuse Gardens, Inc., a dissolved Connecticut corporation, and its shareholders, who are alleged to have received distribution of the corporate assets, and who are therefore alleged to be liable to the creditors of Refuse Gardens, Inc. to the extent of such distributions. The original complaint named as defendants, shareholders Anthony Botticello, Michael Botticello, and Dennis Botticello, and included fictitious names "John Doe I" and "John Doe II" in lieu of additional unnamed shareholders.
On July 16, 1991, the plaintiff requested leave to amend its revised complaint to include as the additional unnamed shareholder defendants, Richard Botticelli and Robert Botticelli, as well as an additional corporate defendant, Botticelli, Inc. which is not a party to this motion. This request was not objected to by any of the defendants. On July 31, 1991, an appearance was filed for Richard Botticello and Robert Botticello.
Within two months after the complaint was filed, the plaintiff served its first set of interrogatories upon the defendants. These interrogatories disclosed the identity of the additional unnamed shareholders to be Richard Botticello and Robert Botticello. On September 19, 1991, the plaintiff filed a motion to substitute Richard Botticello and Robert Botticello for the originally-named "John Doe" defendants on the ground that the true identity of these defendants was not known at the time the original complaint was filed, and was subsequently ascertained only through discovery. This motion was denied by the court, Schaller, J., on October 1, 1991. The plaintiff filed a motion for reargument and reconsideration of the motion for substitution. The motion for reargument and reconsideration was heard by the court, Schaller, J., on December 9, 1991.
The issue raised by the present motion is whether a person suing the shareholders of a dissolved corporation may substitute for named "John Doe" shareholders the names of the actual shareholders.
In "actions or proceedings which are not strictly in rem but are in personam or quasi in rem, there is generally no authority to proceed against unknown persons in the absence of a statute" permitting such an action. 85 A.L.R.3d 2, 134; see also 59 Am.Jur.2d, Parties 16, 401. There is no authority to proceed against unknown persons in actions in Connecticut courts and, therefore, no authority to substitute the additional ascertained shareholders for the originally-named "John Doe" defendants.
Furthermore, in Pack v. Burns, 212 Conn. 381, CT Page 2747 562 A.2d 24 (1989), it was held that a complaint may be amended to include persons or entities not named in the original complaint only if an amendment "simply corrects a misnomer, rather than substitutes a new party." Id., 385.
`The effect given to such a misdescription usually depends upon whether it is interpreted as merely a misnomer or defect in description, or whether it is deemed a substitution or entire change of party; in the former case an amendment will be allowed, in the latter it will not be allowed.'
Id., 384-85, quoting World Fire Marine Ins. Co. v. Alliance Sandblasting Co., 105 Conn. 640, 642, 136 A. 681 (1927); see also Kaye v. Manchester, 20 Conn. App. 439, 444-45, 568 A.2d 459 (1990). Because Richard Botticelli and Robert Botticelli are separate persons or entities from "John Doe I" and "John Doe II," the substitution sought by the plaintiff does not merely correct a misdescription of the real party being sued, but rather "affect[s] the identity of the party sought to be described," and attempts to "substitute or bring in a new party" Kaye v. Manchester, supra, 445 (citations omitted) (emphasis in original). Therefore, the specific relief sought here — substitution — is not proper under the rule of Pack v. Burns, supra.
Because fictitious name pleading is not authorized under Connecticut law, and because the proffered substitution seeks to add new defendants, rather than merely correct a misnomer, the court denies plaintiff's motion to substitute without prejudice to employing other procedures that may apply.
SCHALLER, JUDGE