May 2018Volume 48Number 10

Defendants dismissed without prejudice can be named as respondents in discovery

The Illinois Appellate Court, Second District, recently joined the First District in holding that a plaintiff may use the respondent in discovery statute, 735 ILCS 5/2-402, to name a person who has already been dismissed as a defendant in the same case.1 The decision carries important implications for parties litigating in Illinois state courts.

Prinova Solutions sued John Witterschein for breach of contract and implied warranties related to allegedly defective food processing equipment that it purchased.2 Witterschein filed a Section 2-615 motion to dismiss because he was not a party to the contract with Prinova Solutions, and the circuit court granted that motion without prejudice.3 Prinova Solutions then amended the complaint, naming a Hong Kong company, Process Technology Corporation, as a defendant, and naming Witterschein as a respondent in discovery under Section 2-402.4 Witterschein filed a motion to dismiss or for a protective order, arguing that Prinova Solutions could not name him as respondent in discovery because he had already been dismissed from the lawsuit.5 The trial court denied the motion and certified the legal question—the proper use of Section 2-402—to the Second District, which granted leave to appeal.6

The Second District, interpreting the statute, held that “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.”7 The decision highlights the great weight that courts assign to the plain language the legislature chooses. Indeed, the Second District rejected each of Witterschein’s arguments that the Second District’s interpretation is contrary to the structure and purpose of Section 2-402, leads to absurd results, and will encourage abuse, among other arguments:

Witterschein’s Argument No. 1: Section 2-402 contemplates a “linear process” where a respondent in discovery might become a defendant, but not vice versa.8Second District’s Response: The legislature did not limit respondents in discovery to entities that had never been named defendants.9

Witterschein’s Argument No. 2: The purpose of Section 2-402 is to allow medical malpractice plaintiffs to identify the correct defendants.10Second District’s Response: Section 2-402 by its language applies to “any civil action.”11

Witterschein’s Argument No. 3: The legislature would not have intended the absurd result of serving a summons (as Section 2-402 requires) on a person who is already a defendant in the suit.12Second District’s Response: A plaintiff may name as a respondent in discovery anyone “other than the named defendants.”13

Witterschein’s Argument No. 4: Under Allen v. Peoria Park District,14 a plaintiff may not conduct discovery to find a cause of action.15Second District’s Response: Allen involved a plaintiff using discovery to determine whether a wrong occurred, not who committed the wrong, and is therefore inapplicable.16

Witterschein’s Argument No. 5: Using Section 2-402 to allow discovery from a dismissed defendant violates the common law rule that discovery is not allowed after a defendant has been dismissed.17 Second District’s Response: If the dismissal was without prejudice, the defendant could have been named as a defendant again and was not free from discovery.18

Witterschein’s Argument No. 6: The court’s interpretation undermines Rule 137’s requirement that the plaintiff know the necessary facts to sue the respondent/former defendant in the first instance.19Second District’s Response: The respondent in discovery can seek sanctions under Rule 137 or other relief “if warranted.”20

Witterschein’s Argument No. 7: Prinova Solutions made no effort to serve the new added defendant despite the passage of years.21Second District’s Response: The respondent in discovery can seek sanctions under Rule 137 or other relief “if warranted.”22

Witterschein’s Argument No. 8: The court’s interpretation opens the door to a cycle in which a defendant is dismissed, named as a respondent, converted into a defendant, again dismissed, and so on.23Second District’s Response: A respondent in discovery can convert itself to a defendant and then seek dismissal with prejudice.24

Witterschein’s Argument No. 9: The court’s interpretation violates the equal protection clause of the Illinois Constitution because it creates two classes of defendants depending on whether there is one or more than one defendant in a case.25Second District’s Response: Similarly situated individuals are not treated differently under Section 2-402, because regardless of whether they are the sole defendant or not, the initial dismissal may be with prejudice or without prejudice.26

Prinova Solutions and Westwood Construction raise important considerations for both plaintiffs and respondents in discovery. Former defendants who are named as respondents in discovery should consider whether to invoke the provision in Section 2-402 allowing them to “be made a defendant in the action, in which case the provisions of [Section 2-402] are no longer applicable….”27 While self-converting into a defendant in a lawsuit should not be taken likely, defendants, unlike respondents in discovery, have reciprocal rights to take discovery and procedural tools for seeking dismissal of the lawsuit.28 And as the Prinova Solutions court explained, a defendant may seek dismissal with prejudice to avoid the potential never-ending cycle of dismissals without prejudice and use of Section 2-402.29

Plaintiffs, for their part, should keep in mind that the use of Section 2-402 could be inappropriate or even sanctionable depending on the circumstances. Specifically, while the First District in Westwood Construction refused to “brood[] over dramatic hypotheticals” implying that “resourceful attorneys were acting in violation of the rules,” it acknowledged that the respondents in discovery could “request[] appropriate relief in the circuit court” if they believe that the plaintiffs violated “statutory or ethical pleading requirements.”30 And the Second District likewise confirmed that a respondent in discovery may seek sanctions “if warranted.”31 It remains to be seen, however, how Illinois courts will guard against the “unintended mischief” that the dissenting Justice in Westwood Construction feared, when it materializes.

1. Prinova Solutions, LLC v. Process Technology Corp., 2018 IL App (2d) 170666, ¶ 1; see also Westwood Construction Group v. IRUS Property, LLC, 2016 IL App (1st) 142490, ¶ 17.

2. Prinova Solutions, supra note 1, ¶ 3.

3. Id. ¶ 4.

4. Id. ¶ 5.

5. Id.

6. Id. ¶¶ 6-8.

7. Id. ¶ 26.

8. 735 ILCS 5/2-402 at ¶ 18.

9. Id. ¶ 27.

10. Id. ¶ 19.

11. Id. ¶ 26.

12. Id. ¶ 18.

13. Id. ¶ 27.

14. Allen v. Peoria Park District, 2012 IL App (3d) 110197.

15. 735 ILCS 5/2-402 at ¶ 17.

16. Id. ¶ 28.

17. Id. ¶ 18.

18. Id. ¶ 30.

19. Id. ¶ 19.

20. Id. ¶ 27.

21. Id. ¶ 20.

22. Id. ¶ 27.

23. Id. ¶ 20.

24. Id. ¶ 27.

25. Id. ¶ 21.

26. Id. ¶ 29.

27. 735 ILCS 5/2-402.

28. See, e.g., 735 ILCS 5/2-615; 735 ILCS 5/2-619; 735 ILCS 5/2-1005; Ill. S. Ct. R. 201.

29. Prinova Solutions, supra note 1, ¶ 27; see also Westwood Construction, supra note 1, ¶ 18 (“In the absence of a prior dismissal with prejudice,” Section 2-402 does not “preclude[] this clearly unconventional pleading sequence” (emphasis supplied)).

30. Westwood Construction, supra note 1, ¶¶ 19-20.

31. Prinova Solutions, supra note 1, ¶ 27.

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