Kim v. Cho

By JUDGE RICHARD J. JAMBORSKY This matter is before the Court on the Plaintiff Nae Hyung Kim’s motion to change the style of the lawsuit to reflect the correct first name of the defendant. Mr. Kim initially brought the suit against E. J. Cho; Mr. Kim subsequently learned that James S. Cho is the true name of the person whom Mr. Kim seeks to sue. The Court will grant Mr. Kim leave to amend his motion for judgment for the following reasons. Mr. Kim alleges that he was assaulted by the defendant while visiting the defendant’s home. Mr. Kim had known his alleged assailant only as "Doc" Cho. When Mr. Kim decided to sue Mr. Cho, he verified the address by looking in the telephone book; he styled the lawsuit using the initials of the Cho listed beside the address of the place where he had been assaulted. Those initials actually stand for Eun Joon Cho, who is the wife of Mr. Cho. The return of the process shows that when the Sheriff attempted to serve E. J. Cho, the Sheriff did not find him at home; the return of process also shows that the Sheriff delivered the papers to Eun Joon Cho, who received them as the wife of E. J. Cho. The general rule is that when a plaintiff has mistakenly served a person under the erroneous belief that he 287 is serving another, the Court will not allow that plaintiff to correct his mistake by amending as for a misnomer. See, e.g., Rockwell v. Allman Adm’r, 211 Va. 560, 561, 179 S.E.2d 471 (1971) (when the wrong person is named and served as the party, the complaint cannot be amended to bring in the proper party). Mrs. Cho’s receipt of service for the defendant as his wife takes this case out of the general rule. Based on that service and the return of process, the Court finds that James S. Cho is before the Court in this action. Fairness suggests that Mr. Kim should be allowed to amend the motion for judgment to correct the misnomer.