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    Locke Lord QuickStudy: Have Another Bite at the Respondent in Discovery Apple: Illinois Appellate Courts Allow Plaintiffs to File an Amended Complaint Naming a Dismissed Defendant a Respondent

    Locke Lord Publications
    Insurance

    On March 23, 2018, the Second District of the Illinois Appellate Court joined the First District in allowing plaintiffs to invoke the Illinois’ Respondent in Discovery Statute (735 ILCS 5/2-402) to file an amended complaint which names a previously-dismissed defendant as a Respondent in Discovery. In Prinova Solutions, LLC v. Process Technology Corporation Ltd., 2018 IL App (2d) 170666, the Second District affirmatively answered the following certified question: “Can the respondent in discovery statute, 735 ILCS 5/2-402, operate in reverse, such that after a defendant has already been dismissed from the lawsuit, without prejudice, he may be converted into a respondent in discovery, and thereafter be converted to a defendant again?” The Prinova Solutions court cited favorably to the First District’s decision in Westwood Construction Group, Inc. v. Irus Property, LLC, 2016 IL App (1st) 142490 (2016) to find “nothing in section 2-402’s plain language precludes a party who was previously named as a defendant and dismissed without prejudice from being named as a respondent in discovery in an amended complaint. Prinova Solutions at ¶26.

    The First and Second District focused their attention on the following language from § 2-402:

    The plaintiff in any civil action may designate as respondents in discovery in his or her pleading those individuals or other entities, other than the named defendants, believed by the plaintiff to have information essential to the determination of who should properly be named as additional defendants in the action.

    The Appellate Court noted previously that the “legislative history of section 2-402 indicates that its purpose was to provide plaintiff's attorneys with a means of filing medical malpractice suits without naming everyone in sight as a defendant. It was believed that the label of ‘defendant’ in a medical malpractice suit contributed to the spiraling cost of medical malpractice insurance.” Clark v. Brokaw Hospital, 126 Ill.App. 3d 779, 467 N.E.2d 652 (4th Dist. 1984). However, prior to Westwood Construction, Illinois law was silent on whether the statute permitted plaintiffs to name a party a respondent in discovery more than one time in a single case.

    In Westwood Construction, plaintiffs’ original complaint was dismissed without prejudice with leave to replead. Plaintiffs filed an amended complaint, naming as respondents in discovery some of the parties named previously as defendants in the original complaint. The circuit court granted the respondents’ motion to dismiss, which had argued § 2-402 “does not permit a previously named defendant to be designated as a respondent in discovery in a subsequent amended complaint.” Id. at ¶6. Plaintiffs appealed.

    On appeal, the First District found that “a plain reading of section 2-402 and a review of the relevant case law makes clear that section 2-402 may be employed against a former defendant, dismissed without prejudice, as a respondent in discovery. Section 2-402 contains no limitation as to when or in what sequence a plaintiff may designate a person or entity as a respondent in discovery. The only limitation is that the designated persons or entities be ‘believed by the plaintiff to have information essential to the determination of who should properly be named as additional defendants in the case.’ If the legislature intended to restrict a plaintiff in the designation of a respondent in discovery to the initial filing, for example, it would have done so. Westwood Construction at ¶17 The dissent took issue with the majority’s analysis, stating “the [ ] interpretation increases inconvenience and expense by letting a plaintiff keep a defendant “on the hook,” so to speak, for limited discovery and possible reappearance as a defendant. The decision may lead to all sorts of unintended mischief.” Id. at ¶42.

    Two years later, the Second District took up this same issue in Prinova Solutions involving a procedural history nearly identical to Westwood Construction. However, in Prinova Solutions, the circuit court denied the respondent’s motion to dismiss, relying on the intervening decision in Westwood Construction which decision. Respondent appealed the denial based on the certified question of whether § 2-402 permitted a plaintiff to file an amended complaint naming as a respondent a previously dismissed defendant.

    The Second District affirmed the circuit court’s decision and adopted the analysis from Westwood Construction. The Prinova Solutions court rejected the respondent’s “linear” argument that a plaintiff may not name a party a respondent after the dismissed party was previously named a defendant. The court held “a plaintiff may name as a respondent in discovery anyone ‘other than the named defendants, believed by the plaintiff to have information essential to the determination of who should properly be named as additional defendants in the action,’ and when [plaintiff here] filed its amended complaint, [respondent] was not a named defendant…. [The] statute contains no limitation as to when or in what sequence a plaintiff may designate a person or entity as a respondent in discovery.” Id. at ¶¶26-27.

    The Westwood Construction and Prinova Solutions decisions firmly establish the ability of plaintiffs in Illinois state court actions the opportunity to rejoin a defendant dismissed without prejudice from the case as a respondent in discovery. The full effect of these decisions remains to be seen, but it is easy to envision that Justice Hyman’s concerns raised in his Westwood Construction dissent of these interpretations “do[ing] violence to [§ 2-402’s] language, thwart[] legislative intent, and enable[] plaintiffs here—and future plaintiffs—to use the ‘respondent-in-discovery’ process in a way that would be highly injurious to civil litigation” (Id. at ¶30) will prove prescient. Allowing plaintiffs multiple bites at the jurisdictional apple under the ruse of obtaining discovery ignores a plaintiff’s ability to obtain such discovery via subpoena. Instead, the potential for repeated naming of a party to an action will drive up litigation expenses with no tangible benefit other than providing plaintiffs a means to exert financial pressure on a party who, having obtained a dismissal, should not be dragged through the mud of litigation as a means of pressuring a settlement. As Justice Hyman noted, “I do not believe that we should interpret rules of civil procedure to encourage wiliness in litigation; there is enough of it out there already.” Id. at ¶35. The Appellate Court’s decisions in Westwood Construction and Prinova Solutions only serve to encourage more wiliness.



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