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Rogasciano Santiago, A/K/A Juan Ortiz v. E.W. Bliss Company

December 21, 2010


Appeal from the Circuit Court of Cook County No. 08 L 5175 Honorable Ronald S. Davis, Judge Presiding

The opinion of the court was delivered by: Justice Connors

JUSTICE CONNORS delivered the judgment of the court, with opinion. Presiding Justice Cunningham and Justice Karnezis concur in the judgment and opinion.


This consolidated appeal presents the following certified question: When an injured plaintiff intentionally files a complaint using a fictitious name, without leave of court to use the fictitious name pursuant to section 2-401 of the Code of Civil Procedure (735 ILCS 5/2-401 (West 2008)), then subsequent to the expiration of the statute of limitations, files an amended complaint with the correct plaintiff's name, should the court dismiss the cause with prejudice on the motion of a defendant as a sanction or because the limitations period has expired and the amended complaint does not relate back to the initial filing? For the reasons that follow, we answer the first part of the certified question in the affirmative with qualifications, and the second part in the affirmative.


We limit our recitation of the facts of this case to only those facts that are relevant to our answer to the certified question. On May 12, 2006, plaintiff was injured while working with a punch press. Components of the machine were manufactured by defendants, and on May 9, 2008, plaintiff filed a product-liability complaint against defendants in the circuit court of Cook County. The initial complaint identified plaintiff as "Juan Ortiz," and it did not indicate whether he had ever been known by any other name. Plaintiff filed his first amended complaint on November 4, 2008, naming additional defendants that had been identified during discovery. The first amended complaint also named "Juan Ortiz" as the sole plaintiff.

During written discovery, plaintiff received at least three sets of interrogatories from various defendants. Among other information, each set of interrogatories asked plaintiff to disclose personal identification information, including his name, work history, and social security number. Plaintiff answered the interrogatories on February 25, 2009, identifying himself as "Juan Ortiz." As required by section 1-109 of the Code of Civil Procedure (735 ILCS 5/1-109 (West 2008)), plaintiff signed and verified each interrogatory with the signature "Juan Ortiz."

Defendants deposed plaintiff on May 19, 2009. When defendants asked plaintiff to state his full name, however, plaintiff responded that his name was Rogasciano Santiago, not Juan Ortiz. This was the first time during the course of litigation that plaintiff had used this name, and defendants had not previously been aware that plaintiff's true name was not Juan Ortiz. The record does not disclose whether plaintiff's attorney was aware of plaintiff's true name.

Plaintiff revealed during his deposition that he had held a number of different jobs over the years under both his assumed name and his real name. When using the false name Juan Ortiz, plaintiff had also used a false birth date. Plaintiff testified that he had obtained a state identification card in the false name Juan Ortiz, but also that he had held a driving permit in his true name. On advice of counsel, plaintiff did not disclose whether he had ever used a false social security number or filed taxes under his false name.

Plaintiff attempted to remedy this situation on May 26, 2009, and June 2, 2009, by asking leave of court to file a second amended complaint that would reflect plaintiff's true name. Over defendants' objections, the circuit court allowed plaintiff to file his second amended complaint on September 18, 2009, which substituted the name Rogasciano Santiago for the name Juan Ortiz throughout the complaint but remained the same as the previous complaints in all other respects.

Defendants then moved to dismiss the complaint on numerous grounds, including sections 2-619(a)(5) and 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(5), (a)(9) (West 2008)), and Illinois Supreme Court Rule 219(c) (eff. July 1, 2002). Defendants primarily argued that plaintiff had committed a fraud on the court and that the complaint should be dismissed with prejudice as a sanction or, alternatively, that plaintiff's original complaint was null and void as a matter of law and that the second complaint did not relate back and was therefore barred by the statute of limitations. After extensive briefing by the parties and oral argument before the circuit court, the circuit court denied defendants' motion to dismiss on February 24, 2010.

However, the circuit court observed sua sponte that Illinois courts have not considered this issue before and that there is no controlling precedent that the circuit court could consult for guidance. With the input of the parties, the circuit court certified the instant question pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 1, 1994). Defendants timely filed petitions for leave to appeal, which we consolidated and granted on May 11, 2010.


The effect of intentionally filing a complaint using a false name without court authorization is a question of first impression in Illinois. The certified question presents two separate issues that we will consider in turn, namely, whether a complaint filed in such a manner should be dismissed with prejudice either (1) as a sanction, or (2) due to the statute of limitations and the doctrine of relation back. We review questions of law in an appeal pursuant to Supreme Court Rule 308 de novo. See Eads v. Heritage Enterprises, Inc., 204 Ill. 2d 92, 96 (2003).

A. Sanctions

The first issue that the certified question presents is whether the complaint should be dismissed with prejudice as a sanction. In order to properly address this issue, we must resolve several questions. First, under what authority can the circuit court sanction a plaintiff for intentionally filing a complaint using a false name without court authorization? Second, is dismissal with prejudice the necessary remedy in such a situation? Finally, if dismissal with prejudice is not mandatory, is it an appropriate remedy?

1. Basis of sanction authority

We first consider whether plaintiff's action is subject to sanctions. The certified question asks about sanctions in general, rather than in response to a specific rule violation. We therefore read the certified question as asking whether plaintiff's action is sanctionable under any theory. We perceive three potential bases for the circuit court's authority to sanction plaintiff's action in this case: (1) the contempt power, (1) supreme court rules, and (3) the circuit court's inherent power to control its docket.

The fundamental method for imposing sanctions is through the circuit court's inherent contempt power, which may be employed by a court "to enforce its orders and preserve its dignity." People v. Warren, 173 Ill. 2d 348, 368 (1996). Contempt is usually described as either "civil" or "criminal," but contempt proceedings "are, strictly speaking, neither. They may best be described as sui generis, and may partake of the features of either." Id. As our supreme court has summarized, "civil contempt occurs when the contemnor fails to do that which the court has ordered, whereas criminal contempt consists of doing that which has been prohibited." Id. at 369.

The type of action presented in the instant case does not warrant the use of the contempt power. Civil contempt proceedings are designed to compel obedience to a court order. See Felzak v. Hruby, 226 Ill. 2d 382, 391 (2007). However, in the case at bar there is no specific order of the circuit court that the plaintiff failed to comply with. Moreover, a valid contempt order must contain a purge provision, which lifts the sanction when the contemnor complies with the order. See id. The certified question contemplates dismissing the complaint with prejudice, which is necessarily antithetical to the concept of a purge condition. Plaintiff's action therefore cannot be addressed through civil contempt proceedings.

Neither do we believe that plaintiff's action can be addressed by criminal contempt proceedings. Criminal contempt is designed to punish a contemnor for "conduct which is designed to embarrass, hinder or obstruct a court in its administration of justice or derogate from its authority or dignity, thereby bringing the administration of law into disrepute. [Citations]." (Internal quotation marks omitted.) People v. Simac, 161 Ill. 2d 297, 305 (1994). However, both our supreme court and the U.S. Supreme Court have cautioned that "the exercise of such power is 'a delicate one, and ...

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