Roe v. Little Co. of Mary Hosp.

• Decision Date: 18 December 1992
• Docket Number: No. 91 C 1781.,91 C 1781.
• Citation: 815 F. Supp. 244
• Parties: Richard ROE, Plaintiff, v. LITTLE COMPANY OF MARY HOSPITAL, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

815 F. Supp. 244

Richard ROE, Plaintiff, v. LITTLE COMPANY OF MARY HOSPITAL, et al., Defendants.

No. 91 C 1781.

United States District Court, N.D. Illinois, E.D.

December 18, 1992.

Robert B. Patterson, Drumke & Patterson, Ltd., Chicago, IL, for plaintiff.

Richard C. Bollow, Michael T. Brody, Jenner & Block, Joseph A. Camarra, Cassiday, Schade & Gloor, Robert B. Austin, Lord, Bissell & Brook, Ronald L. Lipinski, Seyfath, Shaw, Fairweather & Geraldson, William Rogers, Bollinger, Ruberry & Garvey, Chicago, IL, for defendant.

MEMORANDUM OPINION AND ORDER

PARSONS, District Judge.

This case was removed to federal court by defendant American Red Cross ("Red Cross") pursuant to 28 U.S.C. Section 1441(a). Plaintiff Richard Roe ("Roe") filed a timely objection to the removal, asserting that the Court did not have subject matter jurisdiction over the state negligence claims, nor did the Court gain original jurisdiction by the fact that the Red Cross was created by federal statute. Proceedings were stayed by this Court awaiting the Supreme Court's decision on the issue of federal jurisdiction over the Red Cross in American National Red Cross v. S.G., ___ U.S. ___, 112 S.Ct. 2465, 120 L.Ed.2d 201 (1992). On August 12, 1992, based on the Supreme Court's holding that the Red Cross's charter conferred original jurisdiction, this Court denied Roe's motion for remand.

Roe then filed a Motion to Reconsider the Removal Issue (subsequently titled "Plaintiff's Re-Newed Motion for Remand"), arguing that not all defendants had consented to the removal, violating the procedures set down in 28 U.S.C. 1446. The Court denied Roe's re-newed motion for remand in a Memorandum Opinion and Order dated November 20, 1992.

Pending were two motions to dismiss: (1) Motion to Dismiss by Respondents in Discovery, and (2) Defendant United Blood Services' Motion to Dismiss Count II of Plaintiff's Complaint. It was this Court's opinion that these motions should be addressed by the state court in the event the case was remanded. Since the Court has decided that the case shall remain in federal court, the Court now turns to the first of the two pending motions, the Motion to Dismiss by Respondents in Discovery. For the reasons stated below, their motion is granted.

ANALYSIS

When Roe filed this case in Cook County on February 8, 1991, he named Dr. John O'Donoghue, Dr. Michael O'Donoghue and Dr. Mary Rosenow ("Respondents") as respondents in discovery pursuant to Chapter 110, Ill.Rev.Stat. para. 2-402.¹ Since filing the suit, Roe has failed to name the respondents as defendants. The six months limitation provided by the statute for discovery relative to these respondents has expired, and the statute of limitations of the potential state law claims against them as defendants has also expired. See Ill.Rev.Stat. ch. 110, para. 13-212. For these reasons, the three doctors, still listed as respondents in discovery, have moved move this Court to dismiss them out of the case.

The legislative history of this statute indicates that its purpose was to provide plaintiffs' attorneys in medical malpractice suits with a means for filing medical malpractice suits without naming everyone in sight as a defendant. It was believed by the state legislature that merely naming someone as a defendant in a medical malpractice suit contributed to the spiraling cost of medical malpractice insurance. (See transcript of proceedings, Illinois House of Representatives, June 10, 1976, at 32-33.) The legislature, in coming to this conclusion, had considered evidence that "the insurance carriers have arbitrarily assessed a 15 percent surcharge on a doctor's premium for each time that he was named in a medical malpractice suit." (Transcript of proceedings, Illinois House of Representatives, June 10, 1976, at 35.) A plaintiff who utilizes this statute thereby extends a courtesy to the respondents and at the same time gains the benefit of obtaining discovery from them under court supervision. However, the state courts in Illinois have uniformly held that, where a plaintiff takes advantage of the privileges offered him by paragraph 2-402, he is bound to strictly comply with its provisions. See, e.g., Torley v. Foster G. McGaw Hospital, 116 Ill.App.3d 19, 72 Ill.Dec. 75, 452 N.E.2d 7 (1st Dist. 1983). Illinois courts have carefully outlined how the statute must be used.

First, a complaint must name at least one defendant before a party may employ paragraph 2-402. See Armour v. Petersen, 219 Ill.App.3d 289, 290, 162 Ill.Dec. 374, 579 N.E.2d 1188 (4th Dist.1991); Gonzales v. Pro Ambulance Service, 219 Ill.App.3d 284, 286, 162 Ill.Dec. 370, 579 N.E.2d 1184 (4th Dist. 1991); Jacobs v. Abbott Laboratories, 213 Ill.App.3d 998, 1000-01, 157 Ill.Dec. 767, 572 N.E.2d 1231 (5th Dist.1991); Guertin v. Guertin, 204 Ill.App.3d 527, 531, 149 Ill.Dec. 643, 561 N.E.2d 1339 (3d Dist.1990). A complaint naming only respondents in discovery is not a complaint at law, as it does not charge actionable conduct or seek damages. Id.

Next, a respondent in discovery may be made a defendant in the cause of action, even after the limitation period for that cause has run, as long as such plaintiff moves the court to change the respondent into a defendant within the six months period of time following his having been named as a respondent in discovery. See Clark v. Brokaw Hospital, 126 Ill.App.3d 779, 782-83, 81 Ill.Dec. 781, 467 N.E.2d 652 (4th Dist.1984); Flores v. St. Mary of Nazareth Hospital, 149 Ill. App.3d 371, 374, 103 Ill.Dec. 854, 502 N.E.2d 1 (1st Dist.1986). The six-month period only extends, and never foreshortens, the period of the statute of limitations. Flores, 149 Ill.App.3d at 376, 103 Ill.Dec. 854, 502 N.E.2d 1.

The act of changing a respondent into a defendant may be taken only on the motion of a party, and by leave of the court. Clark, 126 Ill.App.3d at 782, 81 Ill.Dec. 781, 467 N.E.2d 652; Torley, 116 Ill.App.3d at 22, 72 Ill.Dec. 75, 452 N.E.2d 7; Petrella v. Leisky, 92 Ill.App.3d 880, 881-82, 48 Ill.Dec. 732, 417 N.E.2d 134 (1st Dist.1981). At the time that motion is presented, evidence must also be presented that discloses the existence of some probable cause for naming the respondents as defendants. Torley, 116 Ill.App.3d at 22-23, 72 Ill.Dec. 75, 452 N.E.2d 7. However, though the motion to add the respondents as defendants must be made within the six-month period of the statute, the hearings on that motion need not be conducted before the end of that period. Clark, 126 Ill.App.3d at 783, 81 Ill.Dec. 781, 467 N.E.2d 652. Failure to carry out any of these procedures will completely deprive the court of jurisdiction over the respondents in discovery. See, e.g., Guertin, 204 Ill.App.3d at 529, 149 Ill.Dec. 643, 561 N.E.2d 1339; Torley, 116 Ill.App.3d at 23, 72 Ill.Dec. 75, 452 N.E.2d 7.

In the present case, while Drs. O'Donoghue, O'Donoghue and Rosenow were properly named respondents in discovery, Roe has never obtained discovery from them nor at any time has he moved the Court to make any of them defendants. In this case, however, Roe was removed involuntarily to federal court and he has been seeking remand from the beginning. The question, therefore, becomes whether Roe has been entitled to seek discovery in this Court and, if so, whether the six-month time limit of the Illinois statute was tolled by and during the time the case has been here.

A state court's power to issue orders with respect to a removed case terminates upon removal. Continental Illinois National Bank and Trust Co. of Chicago v. Protos Shipping, Inc., 472 F.Supp. 979 (D.Ill. 1979); 28 U.S.C. Sec. 1446(d). The plaintiff could not, therefore, have gone to the state court to seek discovery with which to comply with the statute, and this Court does not suggest that he should have. Plaintiff, citing Bernstein v. Lind-Waldock & Co., 738 F.2d 179 (7th Cir.1984), argues that plaintiff Roe could not utilize this Court for discovery purposes, either, without waiving his objections to removal.

In Bernstein, the court found that a plaintiff's state claim was not removable to federal court because not all of the defendants had been joined in the removal petition. That court, however, went on to say that a plaintiff waived his right to object to the removal by filing in the federal court an Amended Complaint, thereby affirmatively invoking the jurisdiction of the federal court. Writing for the court, Judge Posner stated:

After Bernstein's motion to remand was denied, he threw in the towel, as it were, and filed an amended complaint in federal court that included an unmistakable federal cause of action.... The amended complaint was thus within the original jurisdiction of the federal district courts and it makes no difference that it was filed only because Bernstein's previous suit had improperly been removed.... Once he decided to take advantage of his involuntary presence in federal court to add a federal claim to his complaint he was bound to remain there.

Bernstein, 738 F.2d at 185. Based on this language, our Roe has urged that he could not have invoked this Court's power to obtain the discovery he needed from the respondents or to move to join the respondents as defendants because, like the plaintiff in Bernstein, he would have been held to have waived his objections to removal.

Bernstein, however, is distinguishable from the present case. In Bernstein, plaintiff had filed an amended complaint that included a federal claim. Bernstein, 738 F.2d at 185. Here, to the contrary, Roe would merely have had to have filed a motion, in compliance with the state statute, within the time given for that purpose, which would have joined respondents as defendants in the state law action. He would in no way have been "taking advantage" of his presence in federal court.

Certainly, it is clear that the Illinois Statutes and Rules of Procedure discourage dismissal on technical grounds without reaching the merits of a lawsuit....