Torrijos v. Int'l Paper Co.
| Decision Date | 22 June 2021 |
| Docket Number | 2-19-1150 |
| Citation | 2021 IL App (2d) 191150,191 N.E.3d 182,455 Ill.Dec. 223 |
| Parties | Lucila TORRIJOS, Plaintiff-Appellant, v. INTERNATIONAL PAPER COMPANY; Tecasa Industries USA, Inc.; and Cano Container Corporation, Defendants (International Paper Company and Cano Container Corporation, Defendants-Appellees). |
| Court | United States Appellate Court of Illinois |
Adrian Vuckovich and Kathryne Hayes, of Collins Bargione & Vuckovich, of Chicago, for appellant.
Jennifer L. Dlugosz, of Husch Blackwell LLP, of Chicago, and Joseph C. Orlet and Mohsen Pasha, of Husch Blackwell LLP, of St. Louis, Missouri, for appellee International Paper Company.
Christopher G. Buenik, Christopher M. Cano, and Meredith B. Fileff, of Franco Moroney Buenik LLC, of Chicago, for other appellee.
¶ 1 Plaintiff, Lucila Torrijos, appeals from the trial court's orders granting summary judgment in favor of defendant, International Paper Company (IPC); granting with prejudice Cano Container Corporation's (Cano) motion to dismiss plaintiff's amended complaint pursuant to section 2-619(a)(5) of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-619(a)(5) (West 2018)); and denying plaintiff's motions to reconsider.
¶ 2 The trial court held that plaintiff's personal injury action against IPC was barred by the exclusive-remedy provision of the Workers’ Compensation Act (Act) ( 820 ILCS 305/5(a) (West 2016)) because there were no genuine issues of material fact with respect to the existence of a borrowed-employee relationship as set forth in section 1(a)(4) of Act (id. § 1(a)(4)). The trial court also held that plaintiff's personal injury action against Cano was barred by the statute of limitations because plaintiff failed to comply with the requirements for converting Cano from a respondent in discovery to a defendant pursuant to section 2-402 of the Code ( 735 ILCS 5/2-402 (West 2018) ).
¶ 3 For the reasons set forth below, we affirm.
¶ 5 The following is derived from the pleadings, depositions, and documents on file.
¶ 7 IPC and Cano are both packaging companies. On August 25, 2015, IPC purchased from Cano corrugated packaging equipment, including a flexo-folder-glue machine, allegedly designed and manufactured by defendant Tecasa Industries USA, Inc. (Tecasa), and assumed Cano's lease of a packaging plant in Aurora. IPC contracted with Kane County Personnel, Inc., doing business as Manpower (Manpower), a temporary staffing agency, for the provision of temporary workers.
¶ 8 Manpower hired plaintiff as a temporary worker on January 15, 2016. Thereafter, Manpower instructed plaintiff to report to IPC's Aurora plant to interview for a position with responsibilities to include "performing general labor and eventually operating machines that produce corrugated paper products used for packing purposes" and "additional production duties as needed." Plaintiff interviewed and completed an employment application with IPC. Manpower then assigned plaintiff to work at IPC, beginning January 28, 2016, and instructed plaintiff to report to Javier Cano, an IPC supervisor. Plaintiff's schedule at IPC was Monday through Friday from 7 a.m. to 3:30 p.m.—the same shift as IPC employees.
¶ 9 Plaintiff testified that, on her first day of work, she met Javier prior to the start of her shift. Javier provided plaintiff with safety equipment—ear plugs, goggles, and gloves. They proceeded to "an area outside the cafeteria" where "everybody gathered" and Javier gave the daily assignments. Javier instructed plaintiff that her initial duty would be "piling up boxes" and that she "had to be working at all times." Gradually, plaintiff also worked on loading the cardboard "paper" into the machines. Specifically, she and another employee began to alternate, with Javier's approval, the "box stacking" and "feeding" duties at their assigned machine.
¶ 10 Plaintiff testified that no Manpower representative ever came to IPC to supervise her work, that she considered Javier her supervisor, and that Javier was the only person who provided her job assignments. According to plaintiff, "Manpower was the only one that could remove me from *** where I was assigned to work," but Javier "could tell Manpower not to send me anymore." However, plaintiff testified that she understood that her employer was Manpower. Manpower paid plaintiff her wages. The employee handbook that Manpower gave plaintiff provided in bold print: "Manpower is your employer." Plaintiff was directed to call Manpower's office if she were sick or late to work.
¶ 11 Plaintiff testified that, when she reported to work on February 8, 2016, Javier assigned her to the flexo-folder-glue machine. Plaintiff began the shift as the paper loader. At one point, when the machine stopped and in light of Javier's instruction to "always be busy," plaintiff stepped down from the platform of the loading station, picked up a towel, and began to clean the flexo-folder-glue machine table. As she was wiping, the machine restarted. Plaintiff's hand was pulled under the front barrier guard and became trapped inside the machine. Paramedics extracted plaintiff's hand from the machine, and she subsequently underwent multiple surgeries. Plaintiff alleges permanent disability and disfigurement of her hand. Plaintiff testified that she filed a workers’ compensation claim and is "now on [workers’] compensation."
¶ 13 Almost two years later, on February 2, 2018, plaintiff filed a complaint against IPC and Tecasa, in the circuit court of Kane County (state court action).1 Count I against IPC alleged negligent maintenance of the flexo-folder-glue machine. Count II against Tecasa alleged negligent design and manufacturing of the flexo-folder-glue machine. However, the parties represent that Tecasa is a defunct entity and that service was never effectuated. Plaintiff also named in the complaint Cano and Manpower as respondents in discovery pursuant to section 2-402 of the Code (id. ). The following month, plaintiff issued to Cano a summons for discovery, interrogatories, and a request to produce documents.
¶ 14 Upon the filing of the complaint in state court, the case was scheduled for a case management conference on April 24, 2018. On April 11, 2018, however, IPC removed the case to the United States district court for the Northern District of Illinois based upon diversity jurisdiction (federal court action). See 28 U.S.C. §§ 1332(a), 1441(b) (2018). The notice of removal provided that the amount in controversy exceeded $75,000 and that there was complete diversity of citizenship among the parties: plaintiff was an Illinois citizen; IPC was a New York and Tennessee citizen; and Tecasa was a Maryland citizen. The notice of removal further provided that the citizenship of Cano and Manpower was not relevant, because they were respondents in discovery, not defendants, citing in support Allen v. Thorek Hospital , 275 Ill. App. 3d 695, 703, 212 Ill.Dec. 74, 656 N.E.2d 227 (1995) (), and Jass v. Prudential Health Care Plan, Inc. , 88 F.3d 1482, 1485 n.3 (7th Cir. 1996) ().
¶ 15 Notwithstanding removal of the case to federal court, the case remained on the state court's case management call. On April 24, 2018, the state court entered an order, inter alia , stating that Cano, "having been served and failed to appear, is defaulted and shall answer outstanding discovery by May 31, 2018," directing plaintiff to serve the order on Cano, and continuing the matter to June 27, 2018, for a status hearing. On May 15, 2018, Cano filed a motion in state court to vacate the April 24, 2018, order on the ground that the state court lost jurisdiction over the case upon removal to federal court.
¶ 16 On May 23, 2018, the state court entered an order, providing: "All orders stayed until further order of the court." The motion to vacate was continued several times. Ultimately, on July 25, 2018, following a status hearing, the state court entered an agreed order granting Cano's motion to vacate the April 24, 2018, order and stating that "[t]he parties, including the Respondents in Discovery, agree the case has been removed to Federal Court for all purposes and is no longer pending before this court."
¶ 18 Upon removal, discovery proceeded in federal court. On July 17, 2018, plaintiff filed a "Motion To Extend Time To Convert Respondents In Discovery To Defendants And To Compel Discovery." According to plaintiff's extension motion, Cano never responded to the discovery requests that plaintiff issued when the case was initially pending in state court. Plaintiff's position was that discovery was not intended to be stayed by the state court's May 23, 2018, order. In fact, plaintiff pointed out, Cano had requested additional time to comply with the discovery requests while the matter was on the state court's docket. Plaintiff further stated in her extension motion that, subsequently, Cano's position was that, as a nonparty, it would not file an appearance in federal court and that a third-party subpoena for discovery was required. Therefore, on July 10, 2018, plaintiff issued to Cano a third-party subpoena for documents. Given the delay occasioned by the foregoing, plaintiff requested a two-month extension of time, to October 2, 2018, to convert respondents in discovery to defendants pursuant to section 2-402 and an order compelling respondents in discovery to respond to discovery requests within 14 days.
¶ 19 Following argument, on July 24, 2018, the federal court granted plaintiff's extension motion. The federal court stated, "I'm going to grant plaintiff's motion for extension of time to amend his [sic ]...
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