The opinion of the court was delivered by: Reagan, District Judge:
On January 10, 2012, Plaintiffs Judy Boothe and Patrick E. Boothe filed suit in this United States District Court, invoking subject matter jurisdiction under the federal diversity statute, 28 U.S.C. 1332 (Doc. 2). Plaintiffs' claims stem from how Patrick E. Booth was treated when he suffered a stroke and was taken to Marshall Browning Hospital in DeQuoin, Illinois on March 22, 2010. Plaintiffs assert a claim for negligence and a claim for vicarious liability against Defendant Marshall Browning Hospital. Defendant Dr. Warrier is designated a respondent in discovery, pursuant to 735 ILCS 5/2-402.*fn1 Plaintiffs allege that Warrier is "believed to have information essential to the resolution of this cause of action." The complaint concludes by praying for money damages and costs against "Defendants," "each of them."
Before the Court is Dr. Warrier's motion to dismiss him as a respondent in discovery and from this action, pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of jurisdiction, and Rule 12(b)(6) for failure to state a claim upon which relief can be granted (Doc. 23). Plaintiffs have filed a response to the motion to dismiss and, in the alternative, they seek leave to amend the complaint to state a claim of negligence against Dr. Warrier (Doc. 28). Neither Dr. Warrier nor Marshall Browning Hospital has responded to Plaintiffs' alternative motion for leave to amend. However, Plaintiffs assert that the Hospital has consented to the proposed amended complaint, but Dr. Warrier has specifically not consented.
1. Applicable Legal Standards
Dr. Warrier contends that the complaint, with respect to him, fails to allege a case and controversy, so the Court lacks subject matter jurisdiction. If a Court lacks subject matter jurisdiction over a claim, it must dismiss that claim pursuant to Federal Rule of Civil Procedure 12(b)(1). Insofar as Dr. Warrier asserts that Plaintiffs have failed to allege a viable claim, in ruling on a Rule 12(b)(6) motion to dismiss, a plaintiff is required to include allegations in the complaint that "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level' " and "if they do not, the plaintiff pleads itself out of court." E.E. O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting in part Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)); see also Ashcroft v. Iqbal, 556 U.S. 662 (2009)). In either situation, the Court treats all well-pleaded allegations as true, and draws all reasonable factual inferences in Plaintiffs' favor. Patel v. City of Chicago, 383 F.3d 569, 572 (7th Cir. 2004) (regarding Rule 12(b)(1)); Justice v. Town of Cicero, 577 F.3d 768, 771 (7th Cir. 2009) (regarding Rule 12(b)(6)).
Dr. Warrier characterizes 735 ILCS 5/2-402 as a procedural rule-a discovery mechanism. He argues that, because Plaintiffs invoke subject matter jurisdiction under the federal diversity statute, 28 U.S.C. 1332, federal law, not state law, governs matters of procedure in federal court. See Hanna v. Plumer, 380 U.S. 460, 464-465 (1965); Kijowska v. Haines, 463 F.3d 583, 589 (7th Cir. 2006); Camp v. TNT Logistics Corp., 553 F.3d 502, 505 (7th Cir. 2009). More specifically, Warrier contends that because federal and state precedents do not equate a respondent in discovery to a party (a defendant), there is no case and controversy, as required by Article III § 2 of the Constitution (see also Allen v. Wright, 468 U.S. 737, 750 (1984)).
Plaintiffs cite Moomaw v. Mentor H/S, Inc., 731 N.E.2d 816, 821-822 (Ill. App. 4th Dist. 2000), which held that Section 2-402 was applicable in a diversity action in federal court because it was intended to influence substantive outcomes, and to treat it as a pure procedural rule could defeat the proper joinder of defendants. However, Plaintiffs' counsel notes that Moomaw was called into question in Montclair-Bohl v. Janssen Pharmaceutical, Inc., 2006 WL 2700013 (N.D.Ill. 2006). Although Plaintiffs do not concede Dr. Warrier's motion, they alternatively seek leave to amend the complaint to add a negligence claim against Dr. Warrier, in place of the respondent in discovery count in the original complaint.
This Court's first task is to verify that subject matter jurisdiction lies. See, e.g., Avila v. Pappas, 591 F.3d 552, 553 (7th Cir. 2010); Winters v. Fru-Con, Inc., 498 F.3d 734, 740 (7th Cir. 2007).Therefore, the Court will first analyze the complaint under Rule 12(b)(1).
In principal part, Section 2-402 states: § 2-402. Respondents in discovery. The plaintiff in any civil action may designate as respondents in discovery in his or her pleading those individuals or other entities, other than the named defendants, believed by the plaintiff to have information essential to the determination of who should properly be named as additional defendants in the action.
Persons or entities so named as respondents in discovery shall be required to respond to discovery by the plaintiff in the same manner as are defendants and may, on motion of the plaintiff, be added as defendants if the evidence discloses the existence of probable cause for such action.
A person or entity named a respondent in discovery may upon his or her own motion be made a defendant in the action, in which case the provisions of this Section are no longer applicable to that person.
A copy of the complaint shall be served on each person or entity named as a ...