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07/29/94 TIMOTHY NEUFVILLE v. MERLE DIAMOND

July 29, 1994

TIMOTHY NEUFVILLE, PLAINTIFF-APPELLANT,
v.
MERLE DIAMOND, M.D., EMERGENCY MANAGEMENT SYSTEMS, EMERGENCY MEDICAL ASSOCIATES, EMERGENCY DELIVERY AND ST. FRANCIS HOSPITAL, DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JOSEPH N. CASCIATO, JUDGE PRESIDING.

Cousins, Jr., Gordon, McNULTY

The opinion of the court was delivered by: Cousins

JUSTICE COUSINS, JR. delivered the opinion of the court:

Timothy Neufville (plaintiff) filed an original complaint naming John Doe, M.D. as a defendant and Merle Diamond, M.D. and St. Francis Hospital as respondents in discovery pursuant to 735 ILCS 5/2-402 (West Supp. 1993)(section 2-402 or respondent in discovery statute). Plaintiff later moved to amend his complaint and convert the respondents in discovery to defendants.

Defendant Merle Diamond, M.D. moved to dismiss plaintiff's amended complaint pursuant to 735 ILCS 5/2-619(a)(1)(West Supp. 1993) (section 2-619(a)(1)) for lack of subject matter jurisdiction. The trial court granted defendant Diamond's request and plaintiff appealed. The issues presented for review are (1) whether the trial court properly dismissed plaintiff's case for lack of subject matter jurisdiction and properly ruled that section 2-402 requires the naming of a real person or entity and (2) whether the trial court acted properly by retroactively applying the case law.

We affirm.

BACKGROUND

Plaintiff filed his original complaint on March 19, 1991. Count I alleged a claim against a fictitious "John Doe, M.D." for injuries resulting from "John Doe, M.D.'s" negligent treatment of plaintiff for back pain and paresthesia. Plaintiff requested money damages. No summons was ever served on "John Doe, M.D.," nor was such a summons sought.

Count II set forth allegations against respondents in discovery, including defendants Dr. Diamond and St. Francis Hospital, but stated no allegations of negligence or injuries caused by negligence. Count II did not request money damages.

On September 9, 1991, plaintiff moved for leave to file an amended complaint to convert the respondents in discovery to defendant status pursuant to the provisions of section 2-402. On October 9, 1991, plaintiff filed his first amended complaint naming real defendants for the first time and for the first time making substantive allegations of negligence.

The trial court granted plaintiff leave to convert Dr. Diamond and St. Francis Hospital from respondents in discovery to defendants.

Dr. Diamond and St. Francis Hospital (defendants) moved for dismissal of plaintiff's action pursuant to section 2-619(a)(1) contending that as plaintiff merely named a "Doe" defendant, he failed to comply with the requisites of section 2-402 and, thus, the trial court never acquired subject matter jurisdiction.

The trial court granted defendants' motion and dismissed plaintiff's first amended complaint for lack of subject matter jurisdiction ruling that:

"I read this complaint; and applying the law that's been set down under Theodorokakis [sic] as a justification for bringing John Doe lawsuits, the Court has taken the position that it does not have any jurisdiction * * * and applying Gorten [sic] Gonzales, Armour and Jacobs, I can't say that the statement of one legislator to another actually shows a legislative intent to allow the John Doe lawsuit to be brought."

The court further stated that:

"the protections of the statute were not intended for a single defendant case; they were intended for a nonwide-range complaint naming multiple people who may or may not ...


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