Vergara v. Patel

“If a plaintiff states a name other than defendant’s, but serves the correct entity with a copy of the original complaint, and the correct entity should have understood from the pleadings that it is the entity intended to be sued, then an amendment of the pleadings to correct the misnomer….is not a change in party.” Harmon v. Fred Meyer, 146 Or App 295, 298, 933 P2d 361 (1997).

Appellant brought a wrongful termination claim against her employer under both ORS 654.062(5), ORS 659A.199, and as a common law claim. Appellant amended the claim to change the defendant from an individual to two business entities; this amendment occurred after the statute of limitations. Appellant assigned error to the trial court granting respondent’s summary judgment and argued that the “statutory claims timely commenced under ORCP 23 C” and appellant "was not precluded from asserting a wrongful discharge claim.” The Court found that the appropriate test is the one proposed in Harmon v. Fred Meyer, “[i]f a plaintiff states a name other than defendant’s but serves the correct entity with a copy of the original complaint, and the correct entity should have understood from the pleadings that it is the entity intended to be sued, then an amendment of the pleadings to correct the misnomer….is not a change in party.” The court further found that the original defendant "should reasonably have understood that plaintiff had intended to sue the legal entities” rather than the individual. Additionally, the court found that the “existence of adequate statutory remedies precludes plaintiffs wrongful discharge claim.” The portion of the judgment dismissing plaintiff’s statutory claims reversed and remanded; otherwise affirmed.