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Friday, February 28, 2014

Ducking Service -- can I hide from a lawsuit?

Question:

Can I hide?
How important is it to have the parties' names spelled correctly on the complaint and other documents? An unhappy individual is attempting to sue my small corporation and me personally. If my name is John Smith and the corporation is ABC Inc. but the named defendants are John Smyth and ABCs Inc., could eventual default judgments be enforced against the correctly named parties? “John Smyth” has been "served" by posting at an incorrect address and the sheriff has been unable to locate a registered agent for the non-existent corporation, but I noticed in courthouse records that the plaintiff recently gave the sheriff a new address for an uninvolved person bearing my registered agent’s name. (Does the sheriff ask “Are you John Doe, registered agent for ABCs Inc.” or does the sheriff merely ask “Are you John Doe?”)

I know the State Corporation Commission FAQ specifically says that ABC Inc. is distinguishable from ABCs Inc., but I don’t know if the same principle applies to individuals. I’m debating whether or not to respond, despite the misspellings.

Answer:

Do names matter?
The answer is -- sort of. A typo is not going to invalidate a suit. If the Court can determine who was meant, then the name itself will not be a bar. Often, when a defendant is unknown, a suit will be brought in the name of Jane or John Doe, and only after discovery will the actual parties be named.

However, of more importance is service. Unless there has been service on the defendant, corporation of individual, the suit cannot go forward. There are ways to serve a party by publication, but this is much more difficult, and generally frowned upon.

You should be careful, however. In almost every circumstance, the Virginia Corporation Commission requires that every company, other than a sole proprietorship, have a registered agent in Virginia who is authorized to accept service on behalf of the company. If you don't have that, the person trying to sue your company can serve notice on the Corporation Commission itself, and this can, in most instances, act as sufficient service to move forward in the suit. Not to mention, you can get in hot water for not have a registered agent. Not advisable.

Also, in Virginia, other than in small claims, a corporation may only be represented by an attorney (in small claims, attorneys are not permitted in VA).

So -- as to personal service for a suit naming you -- probably can be avoided by ducking service. As to your company -- probably cannot be avoided without defaulting. Best to get an attorney and head that one off at the pass. By the way, an attorney can represent your company, but not be authorized to accept service on your personal behalf. Hence, you could still remain anonymous. At least until you had to come to court for your company...

If you need further help with company, corporation, or personal service questions, feel free to give us a ring at 703-402-2723.

Sean Hanover, Esq.
Hanover Law
www.hanoverlawpc.com
Offices in Fairfax and DC
888 16th St. NW
Washington, DC 20006

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