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ROE v. LITTLE CO. OF MARY HOSP.

December 9, 1992

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


Parsons


The opinion of the court was delivered by: JAMES B. PARSONS

MEMORANDUM OPINION AND ORDER

 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., 120 L. Ed. 2d 201, 112 S. Ct. 2465 (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

 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, 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.

 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 ...


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