ON THE HORIZON
Tips for Determining and Locating DefendantsKathleen Reade
Most determination of defendants will be done through in-house investigation, although occasionally it will be necessary for an investigator with more extensive resources to locate a defendant or research information regarding a defunct partnership or corporation.
It is sometimes difficult to identify and locate defendants. Occasionally, discovery will have to be sent to known defendants to obtain information about potential defendants. Check the rules in your jurisdiction to see if pre-litigation discovery is allowed. If not, discovery will have to be propounded in time to receive the answers before the statute of limitations runs.
Be sure you have the correct defendants before you send a notice of injury or file a lawsuit. This is important because if you notice and/or sue the wrong defendant, there is the potential for problems. The attorney or firm may be subject to a lawsuit or grievance for suing the wrong individual or company. Also, if you have noticed or sued the wrong defendant, the statute of limitations, or a notice requirement, may run on your lawsuit without you having noticed or sued the correct defendant.
Check all your resources to make sure you have the correct individual or company. Just because a company in the telephone book has a similar name, don't assume you have the right one. It's not always that easy. A few simple steps can be taken to assure you have the correct defendant, for example:
Look through every piece of paper you have regarding your case, not just the obvious sources, such as police reports. Look at letters, invoices, leases, and any other documents. Sometimes you will find a clue to determine a defendant name, address, or parent company name from the fine print on a letterhead or other documents.
Make telephone calls. If a shopping center, apartment complex or similar business or building is involved, chances are someone at the office will tell you who the owners are or give you the name of the management company.
Most jurisdictions require that corporations be registered with the state in which they are incorporated and in which they are doing business. You may have to make a few phone calls if you have a company name to find the parent corporation name and the main headquarters.
For service of process information, contact the Corporate Section of the office of the Secretary of State. The service information can be obtained over the telephone or on-line. Additional information such as copies of Articles of Incorporation can also be ordered.
There are also numerous directories of businesses, corporations, and brand names of products which contain information. If it is necessary to consult these directories, check with the public library or any university library in your area. Chances are these volumes will not be available in the county law library. There are also business directories available on CD ROM that contain thousands of business listings and are updated on a regular basis.
If you need additional information on a potential defendant, such as assets, sources of information are company annual reports, the state attorney general's office and the Department of Commerce. Also consider ordering, or researching on CD ROM, the reports that companies are required to file with the Securities and Exchange Commission which go beyond the scope of the annual reports to stockholders.
Partnerships can be more elusive than corporations. Investors sometimes form partnerships for specific projects, such as shopping centers or housing developments, and then disband after the project is complete. Some jurisdictions require that partnerships be registered and they can be located through the partnership section of the office of Secretary of State. However, in some states there are fewer requirements for registration of partnerships than there are for corporations. Most jurisdictions allow service on any partner as notice on the partnership.
Many jurisdictions require that anyone doing business under a name different from their own file an "assumed name" certificate. It sets out the names of the people doing business and their addresses. This usually must be filed in the County Clerk's office in the county in which the people are doing business.
Sometimes ambulance and fire department personnel, the very people that are called upon for assistance, can end up being defendants in a lawsuit. Consider some fact situations in which this may occur:
The agency they are working for would usually be added to the lawsuit for such things as failure to supervise, failure to properly train, or failure to provide equipment which was appropriate and functioning properly. The issues, of course, would depend on the circumstances.
The fire department or ambulance service will often be owned or supervised by a governmental agency. This will usually be the city, county, or town. Be sure to follow statutes or rules of the jurisdiction for requirements of notice to governmental agencies.
Small towns, or rural unincorporated areas may have volunteer organizations. If so, their contract or agreement with the cities or counties in the service areas should be reviewed. Some cities contract out ambulance services to private companies. Ambulances are also sometimes owned and operated by hospitals and funeral homes.
In handling reports from situations where negligence may be a factor, study them not only from the standpoint of determining the facts of what happened, but also who was responsible. Be sure you understand the rules regarding joint and several liability when research and naming defendants. It is also important to be sure the trial team is aware of all the contributing factors by each potential defendant so appropriate decisions can be made before the lawsuit is filed.
Kathleen Reade has over 20 years' experience as a paralegal and has authored several books and articles for paralegals. She is an instructor and has written course material for the Legal Assistant Certificate Program at the University of Texas at Arlington. She is a full time litigation paralegal.
TEXAS PARALEGAL JOURNAL
Winter 1996
©1996 Legal Assistants Division, State Bar of Texas