Naming Your Defendant in a Small Claims Lawsuit

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You are allowed to sue just about any defendant–a person, sole proprietorship, partnership, corporation, LLC, or government entity–in small claims court. Let's go over the different types of defendants and how you decide who to name in your lawsuit.

An Individual

If you are suing an individual, simply name the person on the form, using the most complete name that you know for that person. If the person calls himself J.R. Smith and you don't know what the J.R. stands for, simply sue him as J.R. Smith. However, if with a little effort you can find out that J stands for James, it's better to sue him as James R. Smith.

What to do if a person uses several names. Lots of people use two or more names. Thus Jason Graboskawitz may also use J.T. Grab. When in doubt, list the name the person uses most often for business purposes first, followed by the words "also known as" (or "a.k.a.") and any other names. Thus you might sue Jason Graboskawitz, a.k.a. J.T. Grab.

Two or More People

If you are suing more than one person on a claim arising from the same incident or contract, list the complete names of all defendants. Then you must "serve" (deliver copies of court papers to) each of them to bring them properly before the court. Listing both names is also required when the defendants are married: List the defendants as John Randolph Smith and Jane Smith, husband and wife (or "spouses" if the partners are in a same-sex marriage in one of the states that allow it). Or, if you don't know the name of one spouse: John Randolph Smith and Mrs. John Randolph Smith, husband and wife.

EXAMPLE: J.R. and June Smith, who are married, borrow $1,200 from you to start an avocado pit polishing business. Unfortunately, in the middle of the polishing, the seeds begin to sprout. J.R. and June get so furious that they refuse to repay you. If you wish to sue them and get a judgment, you should list them as James R. Smith and June Smith–not Mr. and Mrs. Smith. But now suppose that J.R. borrowed $1,200 for the avocado pit business in January, June borrowed $1,000 to fix her motorcycle a month later, and neither loan was repaid. In this situation, you would sue each in separate small claims actions.

 Two defendants are better than one, and three are better than two. If two or more people are responsible for your loss (for example, if three tenants damaged your apartment), sue them all. This will enable you to get judgments against several people. You'll be glad you did when you try to collect–if one defendant turns out to be an artful dodger, you can go after the others.

Individually-Owned Businesses

List the name of the owner and the name of the business (Ralph C. Jones, individually and doing business as [d.b.a.] Jones's Texaco). But never just assume that the name of the business is really the same as the name of the owner. For all you know, Jim's Garage may be owned by Pablo Garcia Motors, Inc. If you get a judgment against Jim's Garage and there is no Jim, it will be worthless unless you take steps to have the judgment changed to reflect the correct name. This can take extra time and trouble. Far better to be sure you sue the right person in the first place.

A few states have liberalized their rules and do not penalize plaintiffs who incorrectly state the business defendant's name. New York allows a plaintiff to sue a defendant under any name used in conducting business if it is impossible to find out the defendant's true name. California allows a plaintiff to correct a defendant's name at the time of the hearing and, in some cases, after judgment, if the defendant is a business person using a fictitious name.

Partnerships

All partners in a general partnership business are individually liable for all the acts of the business. You should list the names of all the business partners, even if your dispute is only with one (Patricia Sun and Farah Moon, d.b.a. Sacramento Gardens). Check with the local business tax and license office or recorder's office to find out who owns a particular partnership.

Special procedures to sue limited partnerships. Limited partnerships usually consist of one or more general partners who are subject to being sued, and a number of limited partners who, as investors, normally can't be sued. So if you are suing a limited partnership, list the name of the partnership itself and the general partner or partners. Do not list the limited partners. Limited partnerships must register with the secretary of state. For information on who to sue and serve with papers, contact the secretary of state.

Corporations and Limited Liability Companies

Corporations and limited liability companies (LLCs) are legal people. This means that you can sue, and enforce a judgment against, the business entity itself. You should not sue the owners, officers, or managers of the corporation or LLC as individuals, unless you have a personal claim against them that is separate from their role in the corporation or LLC. That's because in most situations, the real people who own or operate the corporation or LLC aren't themselves legally liable to pay the corporation's or LLC's debts (unless there was fraud or a personal guaranty). This concept is called personal limited liability and is a big reason many people choose to incorporate or form an LLC in the first place.

Be sure to list the full name of the corporation or LLC when you file suit (John's Liquors, Inc., a Corporation, or John's Liquors, LLC). Here again, the name on the door or on the stationery may not be the organization's real name, as corporations and LLCs sometimes use fictitious names. To be sure, check with the city or county business license office where the corporation or LLC is headquartered. Information is also usually available from either the secretary of state or the corporations commissioner's office for your state. 

You may sue a corporation or LLC in your state if it does business there, even if its headquarters are in another state.

Motor Vehicle Accident Cases

Special rules apply when it comes to motor vehicle accidents. In most states, if your claim arises from an accident with an automobile, motorcycle, truck, or RV, you should name both the driver of the vehicle and the registered owner as defendants. This is because the vehicle's owner may be liable even if that person wasn't driving. Most of the time, you will obtain this information at the time of the accident. If the police make an accident report, it will contain this information. You can get a copy of any police report from the police department for a modest fee. If there was no police report–and assuming you have the license number of the offending vehicle–contact the Department of Motor Vehicles. Tell them you want to find out the name and address of the vehicle's owner for purposes of filing and serving a lawsuit based on a motor vehicle accident. This is a legitimate reason in most states, and you will get the information you need. However, in some states, you may need to complete some forms or jump through some other hoops to learn the owner's name, and the owner of the car may be notified of your request.

Remember, when you sue more than one person (in this case the driver and the owner, if they are different), serve papers on both. When a business owns a vehicle, sue both the driver and the owners of the business. If a minor child is driving the car, find out the parents' names and, if possible, whether they gave their child permission to drive. 

 

 

 

by: Ralph Warner

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