Topp v. Lone Tree Athletic Club

Filing 30

MINUTE ORDER granting 28 Plaintiffs Motion to Change Caption to correct the name of Defendant. IT IS FURTHER ORDERED that the caption be amended to reflect that Defendants name is Lone Tree Athletic Club, Inc, by Magistrate Judge Kristen L. Mix on 3/21/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-01645-WYD-KLM
BRIAN TOPP,
Plaintiff,
v.
LONE TREE ATHLETIC CLUB,
Defendant.
______________________________________________________________________
MINUTE ORDER
______________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion to Change Caption [#28]1 (the
“Motion”). In his Motion, Plaintiff asks the Court to change the caption to correct the name
of Defendant. Motion [#28] at 1. This Motion was filed in response to the Court’s Minute
Order [#26] which instructed Plaintiff to provide legal support for the idea that default
judgment may enter against a trade name. Minute Order [#26] at 1. As an initial matter,
the Motion does not comply with D.C.COLO.LCivR 7.1(d), which, among other things,
provides as follows:
Excluding motions filed under Fed. R. Civ. P. 56 or 65, a motion involving a
contested issue of law shall state under which rule or statute it is filed and be
supported by a recitation of legal authority incorporated into the motion.
Plaintiff’s failure to provide any legal basis for the requested relief is even more egregious
because the Motion was filed in lieu of Plaintiff filing the requested brief. See Minute Order
[#26] at 1. The Motion is subject to denial on this basis alone. Nevertheless, in the interest
of expedience, the Court will consider the merits of the Motion.
The general rule is that “[i]n the complaint the title of the action shall include the
names of all the parties.” Fed. R. Civ. P. 10(a). Further, “[t]he summons shall . . . contain
. . . the names of the parties . . . .” Fed. R. Civ. P. 4(b). In the Motion, Plaintiff argues that

1

“[#28]” is an example of the convention I use to identify the docket number assigned to
a specific paper by the Court’s case management and electronic case filing system (CM/ECF). I
use this convention throughout this Minute Order.

1

even though the named Defendant is Lone Tree Athletic Club, “Lone Tree Athletic Club,
Inc. was properly served and is well aware that it is the correct Defendant in this matter .
. . .” Id. Generally, to modify a complaint, a plaintiff must file a motion pursuant to Fed. R.
Civ. P. 15. Here, however, it appears that the Complaint [#1] identifies Defendant as being
“incorporated in Colorado with a registered agent of Edward Pavletich, 1300 West Alameda
Avenue, Denver, Colorado 80223.” Complaint [#1] at ¶ 27. Further, the Complaint was
served on Edward Pavletich at the above address on July 5, 2013. Return of Service
Affidavit [#6] at 1. Accordingly, the registered agent of Lone Tree Athletic Club, Inc.
received notice of the lawsuit. The issue, then, is whether an inaccuracy in a defendant’s
name requires amendment of a complaint when the true defendant has actual notice of the
lawsuit and the only portion of the defendant’s name omitted from the caption is the
designation of what type of entity it is (e.g. “Inc.”).
“Litigation should not be reduced to a game of cat and mouse.” Morel v.
DaimlerChrysler AG, 565 F.3d 20, 27 (1st Cir. 2009) (where complaint conveyed plaintiffs’
attempt to sue automobile manufacturer and erroneously named the manufacturer as
Daimler–Chrysler Corporation instead of the actual manufacturer, a legally distinct but
related entity named DaimlerChrysler AG, the latter should have realized it had not been
named because of plaintiffs’ mistake). Here, Defendant was put on notice of the fact that
it was being sued when it was served with the Summons and Complaint which included its
name without the “Inc.” and the Complaint specifically alleged that Defendant “is
incorporated in Colorado.” Complaint [#1] at ¶ 27; cf. Kroetz v. AFT-Davidson Co., 102
F.R.D. 934, 936-37 (D.C.N.Y. 1984) (defendant “was put on notice of the fact that it was
being sued by the fact that the name used in the summons and complaint is a trade name
of the defendant.”). In addition, “[D]efendant was in no way prejudiced as a result of the
misnaming.” Id. at 937. Further, “Rule 4(a)(1)(B) of the Federal Rules of Civil Procedure
provides only that a summons ‘be directed to the defendant,’ and this rule is ‘to be liberally
construed, to further the purpose of finding personal jurisdiction in cases in which the party
has received actual notice.’” Doe v. Constant, 354 F.App’x 543, 546 (2d Cir. 2009)
(unpublished decision) (quoting Grammenos v. Lemos, 457 F.2d 1067, 1070 (2d Cir.
1972)). Here, Defendant received actual notice and “any defects in the summons were
purely clerical.” Id. at 546.
Accordingly, the Court finds that the Plaintiff’s omission of “Inc.” in Defendant’s name
in the caption of the Complaint was merely a scrivener’s error that does not require
amendment of the Complaint pursuant to Fed. R. Civ. P. 15. Therefore,
IT IS HEREBY ORDERED that the Motion [#28] is GRANTED. Accordingly,
IT IS FURTHER ORDERED that the caption be amended to reflect that Defendant’s
name is Lone Tree Athletic Club, Inc. See United Co. v. Am. Intern. South Co., 2008 WL
4587311, at *1 n.1 (Oct. 15, 2008) (ordering that defendant’s name be corrected to add
“Inc.”); see also Morrell v. Nationwide Mut. Fire Ins. Co., 188 F.3d 218, 224 (4th Cir. 1999)
(“service of process is not legally defective simply because the complaint misnames the
2

defendant in some insignificant way.”).
Dated: March 21, 2014

3