Thorpe v. Wilson

1 Citing case

  1. O'Nan v. Nationwide Ins. Co.

    DOCKET NO. 1:17-CV-5 (W.D.N.C. Jul. 11, 2017)

    e's correct name was caused by the Defendants - and particularly by the franchisee itself, and since the pro se Plaintiff has managed to allege all of the alternatively used names of the franchisee, it is hard to imagine that the state court would not allow the Plaintiff to amend her Complaint on remand to substitute J.L. Kuder Enterprises, Inc., d/b/a Servpro of McDowell & Rutherford Counties for "Servpro of Marion" as a defendant in this matter. See also Langley v. Baughman, 195 N.C. App. 123, 126, 670 S.E.2d 913, 915 (2009) (applying Liss to allow amendment to relate back where "defendant received notice of the original claim despite the error in his name"); Pierce v. Johnson, 154 N.C. App. 34, 571 S.E.2d 661 (2002) (applying Liss where the named defendant, unbeknownst to plaintiff, was deceased and service of summons and complaint was unintentionally effected on the individual who had been named the personal representative of his estate and was the proper defendant in the matter); Thorpe v. Wilson, 58 N.C. App. 292, 297, 293 S.E.2d 675, 679 (1982) ("If, as here, the effect of amendment is merely to correct the name of a person already in court, there is no prejudice. This is true even though the change relates back to the date of the original complaint."). Moreover, because Plaintiff's claims against this defendant relate back, Defendants' argument regarding the statute of limitations is inapplicable.