Correctly Naming Business Entity Defendants in Business Litigation Complaints

by de Ondarza Simmons, PLLC on July 27, 2011

How we name the proper business defendants in business litigation

What is your business entity defendant’s real name?

People and businesses frequently have disputes with other businesses. Often, that means you or your business may have to file suit against another business or several other businesses. Who do you sue? The standard answer is: sue everyone. If you don’t, by the time you realize you need to add another defendant, the statute of limitations may have run and you may be time barred from recovering from the actual responsible party. But to sue everybody, you have to know their names.

Businesses’ names frequently sound similar, but each separate business entity actually has its own, unique name. “XYC, Corp.” may not be the same entity as “XYZ, Inc.” and is definitely not the same entity as ” XYZ, LLC”. Similarly, “XYZ, Inc., a Delaware corporation” is not the same entity as “XYZ, Inc., a North Carolina corporation”. So, how do you make sure you get the exact, right name of each business defendant?

Read the Contract… Carefully… ALL of it

First, in a contract dispute, you check the contract. That means reading the entire document – including all attachments and other documents that the parties have incorporated by reference – and checking not just the business names at the top of the first page, but throughout the document, and especially in the signature blocks.  Occasionally, the contract will inadvertently name the defendant businesses differently in different places.  So, a business defendant’s name may appear one way in the beginning of the contract and another way in the signature block.

Check the Secretary of State’s Corporations Database

A second, critical step involves checking the database of businesses that is maintained by state office in charge of chartering and registering business entities. In North Carolina, that office is the North Carolina Secretary of State.  For North Carolina business entities, or foreign business entities authorized to do business in North Carolina, you can search the North Carolina Secretary of State’s “corporations” database for each potential corporation or other business entity by name.

Check the Register of Deeds Assumed Name Database

Certain business entity types require a third step, checking the local register of deeds for a certificate of assumed name.  Chapter 66 of the North Carolina General Statutes requires certain businesses operating under an assumed name (a “dba” or “doing business as” name) to file a certificate containing the following information:

“(1) The name under which the business is to be conducted; and

(2) The name and address of the owner, or if there is more than one owner, the name and address of each.”

The statute requires that this certificate of assumed name be filed in any county in which the business “engages in business”.  North Carolina has, of course, 100 counties, and, therefore, 100 registers of deeds.  Many of those registrars now maintain on-line records.  Wake County Register of Deeds Laura Riddick, for example, has developed an outstanding website with a separate Wake County Register of Deeds Assumed Name Search page.

Other Places Might Also Need to be to Checked

Business disputes depend on the facts.  Each case will require analysis to determine, among other things, the level of research required to ensure that your complaint names the exact, right business entities correctly. This, by the way, is true for the potential defendants as well as for your own business entity, the plaintiff in your case. So, the facts of any given case may require further investigation into the issue of who, exactly, are the parties and what, exactly, are their legal names.  Otherwise, you risk losing the opportunity to hold the right parties accountable.

Free Initial Consultations for Business Disputes

North Carolina Business Litigation Attorney - Business Disputes & Commercial LitigationWhen we represent clients in business litigation, we use the above steps as part of our process for drafting complaints in order to ensure that the proper parties are properly named. You may have a dispute with one or more business entities, which will require efficient, but methodical, investigation before your case can be filed correctly.  For potential clients with business disputes, we offer an initial consultation.  To set up an appointment to discuss your business dispute, please click the Contact Us button and call or email us.

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