All experienced lawyers handling personal injury negligence actions in Illinois are familiar with section 2-402 of the Code of Civil Procedure (“the Code”) dealing with “respondents in discovery.” A recent appellate court case, Knapp v. Serdar Bulun, No.1-08-2299 (Ill. App. 2d Dist. June 30, 2009), stresses the importance of adhering to this statute when naming respondents in discovery and converting them to defendants.
Section 2-402 of the Code provides the statutory framework by which a plaintiff is permitted to designate individuals or other entities as respondents in discovery, as opposed to defendants, “believed by the plaintiff to have information essential to the determination of who should properly be named as additional defendants in the action.” 735 ILCS 5/2-402 (West 2006). Persons or entities named as a respondent in discovery are required to respond to discovery in the same manner as defendants.
Further, a plaintiff may convert respondents in discovery to defendants within 6 months after being named as a respondent in discovery, even if the statute of limitations has expired. The court may grant a single extension of this six-month period for up to 90 days based on (1) the withdrawal of plaintiff’s counsel or (ii) a showing of good cause. Also, the court may grant additional reasonable extensions of this six-month period based on a failure or refusal of the respondent to comply with timely filed discovery.
The plaintiff is required to serve upon each respondent in discovery a copy of the complaint together with a summons for discovery. The failure to serve respondents in discovery with the complaint “deprives the circuit court of jurisdiction.” Knapp, citing Allen v. Thorek Hospital, 275 Ill. App. 3d 695 (1995).
In Knapp, a medical malpractice and wrongful death action against a hospital and various doctors (and their practice groups), the appellate court held that the plaintiffs failed to comply with the terms of section 2-402 because they did inot file their motion to convert within six months of the filing of their complaint. The plaintiff’s attempt to file a motion to convert was ineffective for two reasons: (1) a motion to convert must be filed with the circuit court, and cannot be accomplished by mail; and (2) the proof of service list must include the clerk of the court.
Further, the court held that the plaintiffs failed to serve upon each respondent in discovery a copy of the original complaint or summons for discovery until after expiration of the six-month period.
Word to the wise for all personal injury attorneys in Illinois: pay close attention to section 2-402 when naming and converting respondents in discovery.