McGaw Med. Ctr. v. Dept. of Employment Sec., 1-05-2916.

• Decision Date: 11 December 2006
• Docket Number: No. 1-05-2916.,1-05-2916.
• Citation: 307 Ill.Dec. 817,860 N.E.2d 471
• Parties: McGAW MEDICAL CENTER OF NORTHWESTERN UNIVERSITY, Plaintiff-Appellant, v. The DEPARTMENT OF EMPLOYMENT SECURITY, an Administrative Agency; Brenda A. Russell, in her capacity as Director of the Department of Employment Security; and Laura Lucero, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

860 N.E.2d 471

307 Ill.Dec. 817

McGAW MEDICAL CENTER OF NORTHWESTERN UNIVERSITY, Plaintiff-Appellant, v. The DEPARTMENT OF EMPLOYMENT SECURITY, an Administrative Agency; Brenda A. Russell, in her capacity as Director of the Department of Employment Security; and Laura Lucero, Defendants-Appellees.

No. 1-05-2916.

Appellate Court of Illinois, First District, First Division.

December 11, 2006.

COPYRIGHT MATERIAL OMITTED

Kenneth T. Lopatka, Scott H. Gingold, J. Bates McIntyre, of Perkins Coie LLP, Chicago, for Appellant.

Lisa Madigan, Attorney General, Gary Feinerman, Solicitor General, Richard S. Huszagh, Assistant Attorney General, Chicago, for Appellee.

Justice CAHILL delivered the opinion of the court:

This is an administrative review action brought by plaintiff McGaw Medical Center of Northwestern University against defendants the Illinois Department of Employment Security (IDES), Brenda A. Russell, in her capacity as the Director of the IDES, and Laura Lucero. Plaintiff's complaint seeks review of a decision by the IDES Board of Review (Board) awarding Lucero unemployment compensation benefits under the Unemployment Insurance Act (820 ILCS 405/100 et seq. (West 2004)). Plaintiff failed to name the Board as a defendant and its complaint was dismissed with prejudice. We affirm.

Plaintiff is a nonprofit organization comprised of five independent hospitals affiliated with the Northwestern University Feinberg School of Medicine. The five hospitals act through plaintiff to manage the school's residency program. Lucero was a student in the school's residency program and performed her internship at one of the five hospitals.

Lucero was unable to obtain employment after her residency. She filed a claim for unemployment compensation benefits, naming plaintiff as her former employer. Lucero was awarded benefits and plaintiff appealed to the Board. The Board affirmed the decision for Lucero.

Plaintiff filed this administrative review action within 35 days of the Board's decision, as required under section 3-103 of the Administrative Review Law (Review Law) (735 ILCS 5/3-103 (West 2004)). The complaint named the Department and its Director as defendants but did not name the Board. Defendants moved to dismiss the complaint after the expiration of the 35-day limitation period. Defendants argued plaintiff's failure to name the Board as a defendant deprived the trial court of subject matter jurisdiction. Plaintiff moved to amend its complaint in response to defendants' motion to dismiss. The trial court granted defendants' motion to dismiss, denied plaintiff's motion for leave to amend and dismissed the complaint with prejudice. Plaintiff appeals.

Our standard of review is de novo. See ESG Watts, Inc. v. Pollution Control Board, 191 Ill.2d 26, 29, 245 Ill.Dec. 288, 727 N.E.2d 1022 (2000).

We begin with the relevant statutory law. Decisions by the Board are reviewable "only under and in accordance with" the Review Law (735 ILCS 5/3-101 et seq. (West 2004)). 820 ILCS 405/1100 (West 2004); see also 735 ILCS 5/3-102 (West 2004) (review of a Board decision must be brought "within the time and in the manner" provided under the Review Law); Lockett v. Chicago Police Board, 133 Ill.2d 349, 353, 140 Ill.Dec. 394, 549 N.E.2d 1266 (1990) (the Review Law is a departure from common law and the procedures it establishes must be strictly followed). Section 3-103 of the Review Law requires an action for administrative review to be brought within 35 days from the date the decision sought to be reviewed was served on the affected party. 735 ILCS 5/3-103 (West 2004). Unless the action is commenced within the 35 days, the trial court lacks subject matter jurisdiction and the complaining party is barred from obtaining judicial relief. Nudell v. Forest Preserve District of Cook County, 207 Ill.2d 409, 422-23, 278 Ill.Dec. 542, 799 N.E.2d 260 (2003). Section 3-107 of the Review Law specifies that the complaint must name as defendants "the administrative agency and all persons, other than the plaintiff, who were parties of record to the proceedings before the administrative agency." 735 ILCS 5/3-107 (West 2004). "This requirement is mandatory and specific, and admits of no modification." Lockett, 133 Ill.2d at 354, 140 Ill. Dec. 394, 549 N.E.2d 1266.

Sections 3-103 and 3-107 have been interpreted by our supreme court to require dismissal of a cause of action for administrative review, without leave to amend, where a necessary party was not made a defendant within the 35-day limitation period. See Collinsville Community Unit School District No. 10 v. Regional Board of School Trustees of St. Clair County, 218 Ill.2d 175, 183, 300 Ill.Dec. 15, 843 N.E.2d 273 (2006); ESG Watts, 191 Ill.2d 26, 245 Ill.Dec. 288, 727 N.E.2d 1022; McGaughy v. Illinois Human Rights Comm'n, 165 Ill.2d 1, 13-14, 208 Ill.Dec. 348, 649 N.E.2d 404 (1995); Lockett, 133 Ill.2d at 354-56, 140 Ill.Dec. 394, 549 N.E.2d 1266. Plaintiff does not dispute the Board is a necessary party in this case or that it failed to join the Board within the 35-day time period. Rather, plaintiff argues it should have been allowed to amend its complaint to join the Board under section 2-616(d) of the Code of Civil Procedure (Code) (735 ILCS 5/2-616(d) (West 2004)). This precise argument was rejected in Shaw v. Department of Employment Security, 243 Ill.App.3d 844, 848-49, 184 Ill.Dec. 43, 612 N.E.2d 919 (1993).

Section 2-616(d) of the Code allows, under certain circumstances, a plaintiff to amend his complaint to name additional parties after the time in which to bring the action has lapsed. 735 ILCS 5/2-616(d) (West 2004). The plaintiffs in Shaw argued section 2-616(d) authorizes the amendment to an administrative review complaint to add necessary parties despite the running of the 35-day time period under section 3-103 of the Review Law. Relying on Lockett, the court rejected this argument. The court concluded that, while Lockett did not explicitly say so, "[i]t is clear that the supreme court considered the significance of [s]ection 2-616 of the Code and that the court rejected the position now advanced by [the plaintiffs]." Shaw, 243 Ill.App.3d at 849, 184 Ill.Dec. 43, 612 N.E.2d 919, citing Lockett, 133 Ill.2d at 356, 140 Ill.Dec. 394, 549 N.E.2d 1266. See also New York Carpet World, Inc. v. Department of Employment Security, 283 Ill.App.3d 497, 504, 218 Ill.Dec. 795, 669 N.E.2d 1321 (1996) ("[e]ven if Lockett did not decide by implication the availability of section 2-616(d), we find that the specific requirement that an administrative-review summons issue against required defendants within 35 days controls over the more general Code section 2-616(d) permitting the addition of defendants").

Plaintiff maintains Shaw is no longer good law because, since that case was decided, section 2-616(d) was amended to apply more liberally. See Pub. Act 92-116. eff. January 1, 2002. Before the amendment, the statute read:

"A cause of action against a person not originally named a defendant is not barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if all the following terms and conditions are met: (1) the time prescribed or limited had not expired when the original action was commenced; (2) failure to join the person as a defendant was inadvertent; (3) service of summons was in fact had upon the person, his or her agent or partner, as the nature of the defendant made appropriate, even though he or she was served in the wrong capacity or as agent of another, or upon a trustee who has title to but no power of management or control over real property constituting a trust of which the person is a beneficiary; (4) the person, within the time that the action might have been brought or the right asserted against him or her, knew that the original action was pending and that it grew out of a transaction or occurrence involving or concerning him or her; and (5) it appears from the original and amended pleadings that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery when the condition precedent has in fact been performed, and even though the person was not named originally as a defendant. For the purpose of preserving the cause of action under those conditions, an amendment adding the person as a defendant relates back to the date of the filing of the original pleading so amended." 735 ILCS 5/2-616(d) (West 2000).

The statute was then amended in 2002 to modify the conditions that must be met before an amendment to add a party will relate back to the date the original action was filed. See Pub. Act 92-116. eff. January 1, 2002. Plaintiff concedes the amendment brought about only two significant changes to the statute: "the type of mistake that would justify relation back[] and the requirements for the timing of service." We fail to see how these changes would affect the applicability of section 2-616(d) to actions brought under the Review Law. They address only the conditions that must be met before an amended complaint will relate back in time to the originally filed complaint to avoid expiration of statutes of limitation.

Plaintiff next argues the language of section 2-616(d) makes clear that the statute applies to cases brought under the Review Law. Plaintiff cites the first sentence of paragraph (d): "A cause of action against a person not originally named a defendant is not barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if all the following terms and conditions are met * * *." (Emphasis added.) 735 ILCS...