2018 IL App (2d) 170666
Ill. App. Ct.2018Background
- Prinova sued John Witterschein (d/b/a Process Technology, LLC) for defective food-processing equipment alleging breach of contract and implied-warranty claims.
- The trial court granted Witterschein’s section 2-615 motion and dismissed him without prejudice; Prinova later filed an amended complaint naming Process Technology Corporation Ltd. (Hong Kong) as defendant and Witterschein as a respondent in discovery under 735 ILCS 5/2-402.
- Witterschein moved to dismiss or for a protective order, arguing a previously dismissed defendant cannot be converted into a respondent in discovery.
- The trial court, relying on the First District’s decision in Westwood Construction Group, denied the motion and certified the legal question for interlocutory appeal under Illinois Supreme Court Rule 308.
- The Second District reviewed whether section 2-402 permits a defendant dismissed without prejudice to be later designated a respondent in discovery (and potentially reconverted to defendant) and answered the certified question affirmatively.
Issues
| Issue | Plaintiff's Argument (Prinova) | Defendant's Argument (Witterschein) | Held |
|---|---|---|---|
| Can a defendant dismissed without prejudice be later named a respondent in discovery under 735 ILCS 5/2-402? | Section 2-402 has no timing or sequencing restriction; a dismissed party is not a "named defendant" in the amended pleading and may be designated a respondent in discovery. | Statute contemplates a linear process (respondent → defendant); converting a dismissed defendant into a respondent undermines Rule 137, allows fishing, and risks harassment cycles. | Yes. The court held the statute’s plain language permits naming a previously dismissed defendant as a respondent in discovery. |
| Does use of section 2-402 here conflict with common-law and Rule 137 limits on discovery after dismissal? | Section 2-402 applies to any civil action and authorizes discovery of respondents (who are not parties) to determine proper defendants. | Allowing this reverses common-law limits (no discovery to create a cause of action) and enables improper fishing expeditions. | Rejected. The court distinguished Allen and found Prinova alleged a wrong and may use 2-402 to identify additional defendants. |
| Do procedural safeguards prevent abuse (e.g., repeated cycles of dismissal→respondent→defendant)? | Respondents may self-convert to defendants, seek dismissal with prejudice, or obtain relief; sanctions and other remedies remain available. | The statute permits potential harassment and repeated litigation expense. | Court found available remedies (self-conversion, sanctions, dismissal with prejudice) mitigate abuse concerns. |
| Do equal protection or due process concerns bar this use of 2-402? | No; statute treats similarly situated persons alike and leaves procedural protections intact. | Converting dismissed defendants into respondents creates unequal classes and denies finality/substantive rights. | Rejected. Dismissal without prejudice preserves the possibility of reassertion; available procedural protections and remedies defeat constitutional claims. |
Key Cases Cited
- Flores v. St. Mary of Nazareth Hospital, 149 Ill. App. 3d 371 (1986) (respondent who elects to be made a defendant loses protections of 2-402)
- Wilde v. First Federal Savings & Loan Ass'n of Wilmette, 134 Ill. App. 3d 722 (1985) (contract-party principles governing proper defendant in breach-of-contract actions)
- Kellett v. Roberts, 276 Ill. App. 3d 164 (1995) (Rule 137 requires factual and legal inquiry before filing pleadings)
- Williams v. Manchester, 228 Ill. 2d 404 (2008) (statutory construction principles regarding statutes in derogation of common law)