One of the trickiest parts of sending a Demand Letter or filing a small claims suit is figuring out whom to list as the other party. The other party is referred to as the defendant in a lawsuit. The process is the same for a Demand Letter or for filing court documents.
Discovering the legal name of the defendant(s) is particularly tricky when suing a business because many businesses operate under a fictitious business name (dba or DBA, which stands for “Doing Business As”). After you’ve figured that out, the next part of the challenge is to decide whom to include as a defendant and how to write their name(s) in your complaint (and in your letter demanding payment), which may be less complicated, but not entirely obvious. This article will guide you through properly naming a defendant in a demand letter and in a lawsuit.
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Naming an individual as a defendant is easy. All you need to do is provide the individual’s name along with any aliases, which are other names you know the person goes by. If you know the person’s middle name (or middle initial), then write that down as well. When writing the person’s alias, write “a.k.a,” which stands for “also known as.” If you are suing multiple people, write each of their names.
- If you are suing a person named Theodore Nicholas Tooley, but you know that he usually goes by “TNT,” then you will write: “Theodore Nicholas Tooley” or “Theodore Nicholas Tooley, a.k.a. TNT.”
- If you were suing Benjamin and Jennifer Jones, a married couple, do not write “Mr. And Mrs. Jones” (or any nickname the couple is known by, such as “the Joneses” or “Bennifer”). List their individual, full names: “Benjamin Jones and Jennifer Jones.”
Defendants in Motor Vehicle Accidents
When you sue over an accident involving a car, motorcycle, truck, RV, or any other type of motor vehicle, you should list both the vehicle’s owner and the person who was driving during the accident as defendants. If you were involved in a multi-vehicle crash, you would need to list the driver and owner of each vehicle.
- If Joseph Jones is both the owner and driver of the vehicle, then you will write: “Joseph Jones, owner and driver.”
- If Joseph Jones is the driver and Amy Lee the owner, then you will write: “Joseph Jones, driver, and Amy Lee, owner.”
When suing a business, the type of business determines whom to list as a defendant. At this point, you might be thinking, “If I have the legal name of the business, shouldn’t I just put that down, since that single business is all I’m trying to sue?” If you’re suing a corporation or limited liability company (LLC), then it is almost that straightforward. But if the business is a sole proprietorship or partnership, then you would need to list either some or all of the individuals who own the business, along with the fictitious name they call the business.
Identifying a business’s type
You can figure out a business’ type by first following the steps listed in our article on how to find the business’s legal name. Once you have the business’s legal name, then you can determine what type of business it is.
- If the business has “Inc” or “Corp” attached to its name, then it’s a corporation. While there are different types of corporations, like “S” and “C” corporations, you don’t need to concern yourself with what type of corporation the business is. All you need to know is that it is a corporation.
- If the business has “LLC” in its name, then it’s a limited liability company.
- If the business has “LP” in its name, then it’s a limited partnership.
- If it has an “LLP” in its name, then it’s a limited liability partnership.
Sole proprietorship/partnership businesses
Many small businesses use fictitious business names and are owned by an individual or a group of individuals. A business that is owned by one individual is called a “sole proprietorship,” whereas one that is owned by a group of people is called a “partnership.” It’s important to note that a partnership is not the same thing as a limited partnership (designated by “LP”) or a limited liability partnership (designated by “LLP”), which we will discuss later.
One way to discover whether a business is owned by a person or a group of people is through a fictitious business name search with the county in which the business operates. The business owner would register the fictitious business name (our article on how to find a business’s legal name can walk you through a fictitious business name search). That means that a business is a sole proprietorship if its fictitious name was registered by an individual person (as opposed to by a business like a corporation or an LLC), and it’s a partnership if it was registered by several individuals.
As an example, let’s say that you run a fictitious business name search in Orange County, California and you discover that the Italian restaurant you would like to sue, “Tustin Tortellini,” is owned by John Rutger, Sally Henderson, and Joseph Park. In that case, you would know that the business is a partnership, because it is owned by several individual people. If it were just owned by Joseph Park, then you would know that it is a sole proprietorship.
As discussed in our article on how to find a business’s legal name (link above), not all sole proprietorships or general partnerships use fictitious business names. If a business is named after its owner, then its name is not legally considered fictitious (and, accordingly, the owner wouldn’t need to register a fictitious business name for it). For example, if Joseph Park were the sole owner of Tustin Tortellini and he named it “Joseph Park’s Tortellini,” then he wouldn’t need to register a fictitious business name. In this case, you would be able to confirm that Joseph Park’s Tortellini is owned by Joseph Park by searching for the appropriate business license at the city level because there would be no fictitious business name listing at the county level.
When you sue a sole proprietorship or general partnership, you are suing the individual owner(s) of the business. You should list their legal names just as you would if you were suing a person, but you should also list the business separately, and specify the type of business that it is. Here is the proper format:
- Suing a business owned by one individual:
- If you were suing John’s Juice Bar, owned by John Wright Smith, then you would write: “John Wright Smith, individually, and doing business as John’s Juice Bar, and John’s Juice Bar, a proprietorship”
- Suing a business owned by multiple individuals:
- If you were suing Tustin Tortellini, owned by John Allen Rutger, Sally Jane Henderson, and Joseph Allan Park, then you would write: “John Allen Rutger, Sally Jane Henderson, and Joseph Allan Park, individually, and doing business as Tustin Tortellini, and Tustin Tortellini, a partnership”
Corporation, limited liability company, limited partnership, or limited liability partnership businesses
When you sue a corporation (Inc or Corp), limited liability company (LLC), limited partnership (LP), or limited liability partnership (LLP), you only need to list the legal name of the business along with its fictitious business name. The fictitious business name is optional, but it can help to clarify the relationship between the business name and the corporation, making your claim more easily understood by the court. You shouldn’t list the individual owners of these types of businesses unless you also have a claim against them personally. These types of businesses generally shield their owners and officers from being sued for something the business has done. When you list the name of the business, include its business type identifier (such as Inc or LLC).
- If you were to sue the Electric Can Opener, Inc., which goes by the fictitious name of “Open Sesame,” then you could write: “Electric Can Opener, Inc., individually, and doing business as Open Sesame.
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