NOTICE OF MOTION AND MOTION TO CORRECT MISJOINDER IN PLAINTIFF’S COMPLAINT

TO PLAINTIFF AND PLAINTIFF’S ATTORNEY OF RECORD:
PLEASE TAKE NOTICE THAT on [ENTER DATE] at [ENTER TIME], or as soon thereafter as Defendant can be heard, in Division 4 of the above-captioned Court, the Hon. Happe, David A. presiding, Defendant Roosevelt Smith (“Defendant”) will bring on for hearing this Motion to Correct misjoinder in Plaintiff’s Complaint pursuant to Rule 21 of the Indiana Rules of Trial Procedure.
The Motion is supported by this Notice of Motion, the Memorandum of Points and Authorities in Support of the Motion, and the Court’s file for this lawsuit. Defendant files this Motion on the following ground, to wit, the Plaintiff erroneously included Defendant instead of suing Defendant’s company, which is a separate legal entity from Defendant.

Dated:

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO CORRECT MISJOINDER IN PLAINTIFF’S COMPLAINT
I
FACTUAL BACKGROUND
On or about January 29, 2021, Plaintiff filed a Complaint against Defendant alleging breach of contract. The said contract was entered between Plaintiff and Defendant’s company namely, ACS Cleaning Systems, LLC.
It is worth noting that in Plaintiff’s caption, Plaintiff includes Defendant and ACS Cleaning Systems, LLC as Defendants. It is clear from Plaintiff’s Complaint that Plaintiff failed to consider the corporate status of ACS Cleaning Systems, LLC, or to conduct any due diligence to ascertain the nature of the said Company. Finally, Plaintiff alleges that Defendant should be held liable under the contract.
II
LEGAL ARGUMENT
A. Defendant’s Company is a separate legal entity from Defendant.
“Under Indiana law, a corporation is a legal entity separate from its shareholders, and corporate shareholders . . . are not personally liable for acts attributable to the corporation.” McQuade v. Draw Tite, Inc., 659 N.E.2d 1016, 1020 (Ind. 1995) (citations omitted).
.A Corporation maintains its separate legal existence even though one shareholder owns all its stock. See, Amsted Industries, Inc. v. Pollak Industries, Inc., (1978) 65 Ill. App.3d 545, 549, 22 Ill. Dec. 73, 77, 382 N.E.2d 393, 397; see also, Benson v. Warble, (1970) 146 Ind. App. 307, 310, 255 N.E.2d 230, 232 (separate corporate entity exists even though one person owns majority of stock).
In the instant action, Defendant maintains that ACS Cleaning Systems, LLC is a separate legal entity form Defendant. It is worth noting that the Plaintiff had a duty to do due diligence to ascertain the nature of the Company that Plaintiff was contracting with. Defendant was not bound to inform Plaintiff about the nature of the Company. It remains; therefore, Defendant should not be included in Plaintiff’s Complaint for this reason.

B. Defendant should be removed from the Action.
According to Rule TR. 21(A) of the Indiana Rules of Procedure we find: “. . . Incorrect names and misnomers may be corrected by amendment … at any time.” See Mays v. Parker (1970), 147 Ind. App. 81, 258 N.E.2d 666. The said Rule TR. 21(A) states in this regard that:

Subject to its sound discretion and on motion of any party or of its own initiative, the court may order parties dropped … at any stage of the action and on such terms as are just and will avoid delay. Any claim against a party may be severed and proceeded with separately. Incorrect names and misnomers may be corrected by amendment … at any time.

In the instant action, Defendant has been erroneously included in the Complaint. It follows; the Court should drop Defendant from the action. Besides, it would be in the interest of justice to avoid subjecting Defendant to unnecessary litigation.
C. The Court’s denial of Defendant’s Motion would amount to an abuse of the Court’s discretion.
A motion for misjoinder of parties or claims is subject to the trial court’s sound discretion. Collins Burdick Hunter of Utah, Inc. v. Bd. of Trustees of Ball State Univ., 665 N.E.2d 914, 920 (Ind.Ct.App. 1996). An abuse of discretion occurs where the trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court. Allen v. Proksch, 832 N.E.2d 1080, 1102 (Ind. Ct. App. 2005).
In light of the foregoing, Defendant has clearly alleged how he is erroneously included in the Complaint. It would beat logic, and it would be unreasonable to deny the instant Motion and thus subject Defendant to unnecessary litigation.
III
CONCLUSION
For the foregoing reasons, Defendants respectfully request that the Honorable Court allows Defendant’s Motion to Correct Misjoinder in Plaintiff’s Complaint and:

  1. Issue an Order directing Plaintiff to drop Defendant from the Complaint.
  2. Any and all cause(s) of action against Defendant be dropped.
  3. The Court grants any other relief that this Honorable Court deems just and proper.

Dated:

CERTIFICATE OF SERVICE

The undersigned hereby certifies that the foregoing Motion to Correct Misjoinder in Plaintiff’s Complaint has been served upon the Plaintiff by mail, email/e-filing or personal delivery a copy of the same to the Plaintiff or Plaintiff’s Attorney. 

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