By DM Herra | Mar 28, 2018


A defendant dismissed from a lawsuit can later be brought back into the case again, should plaintiffs simply designate the dismissed defendant a respondent in discovery, a state appeals panel has ruled, despite protests from such a dismissed defendant he could be yet named a defendant again and again, until he agrees to settle to end the case.

The question was raised as an interlocutory appeal in a lawsuit by Prinova Solutions LLC against Process Technology Corporation Ltd. Prinova originally had filed suit against John Witterschein, doing business as his company, Process Technology LLC.

Justice Robert B. Spence | Illinoiscourts.gov

In its suit, Prinova claimed it had purchased Process Technology food processing equipment from Witterschein that was defective. It sued for breach of contract and breach of implied warranty. Witterschein moved successfully to be dismissed from the suit, claiming the contract was between Prinova and Process Technology Corporation Ltd. and did not name him or his company.

When Prinova filed its amended complaint, it named Witterschein as a respondent in discovery. Witterschein objected, arguing he had already been dismissed from the case.

In its analysis, the Second District Appellate Court observed that the First District court had ruled on the same question in a 2016 case, with one dissension. That court found there is nothing that prevents a former defendant from being named a respondent in discovery. Prinova argued that the step is reasonable in its case because Witterschein was its only point of contact with the company and may have information that leads to more defendants.

Witterschein asked the Second District court to adopt the reasoning of the dissenting justice in the First District case. He argued the purpose of litigation outlining respondents in discovery is to determine who should be sued – in his case, he said, Prinova’s breach of contract suit could only be brought against the other party to the contract. The court had already dismissed him as a defendant, so there was no reason to involve him, he said, unless Prinova was on a fishing expedition to see if there were charges to be brought.

“Witterschein argues that … if Prinova could not obtain facts to sue him without resorting to discovery first, it never should have sued him in the initial complaint,” the Second District justices wrote.

Witterschein also pointed to procedural rules in place for naming a respondent in discovery. Statute requires respondents in discovery to be served with a complaint and summons, which would have already happened if the person had previously been a defendant.

“Witterschein adds that, if a plaintiff is permitted to convert a dismissed defendant into a respondent in discovery, it opens the door to a cycle in which a defendant is dismissed, converted into a respondent in discovery, converted back into a defendant, and again dismissed,” the justices noted. “The cycle can continue until a defendant is forced to settle to avoid the harassment and litigation expense.”

But the appellate justices were unpersuaded. There was no danger of a cycle, justices said, because a respondent in discovery can always convert himself to a defendant and then ask for a dismissal with prejudice. The court also pointed to the plain language of the statute, which does not limit respondents in discovery to those never before connected to the case.

“If the legislature had intended to limit respondents in discovery to parties who had never been named defendants, it could have done so,” the justices wrote.

Witterschein also argued that allowing former defendants to become respondents in discovery violates the state constitution by creating two classes of defendants: a sole defendant whose case would be terminated after a dismissal and a dismissed defendant in a case with multiple defendants, who could be converted into respondents in discovery.

Prinova held that argument could not hold water. If it had filed a completely new case instead of amending its complaint, Witterschein could not make the same argument without questioning the constitutionality of the entire statute. The court agreed, pointing out that Witterschein himself was a sole defendant in the original filing, and that did not protect him from being named a respondent in discovery in the amended complaint.

The court remanded the case to the DuPage County circuit court.

Justice Robert B. Spence delivered the opinion of the court, with justices Donald C. Hudson and Susan F. Hutchinson concurring.

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