United States District Court, N.D. Illinois, Eastern Division
C. Seeger United States District Judge
can give rise to emergencies. Grease fires. Gas leaks. Burnt
fingers. Even a pumpkin cake gone wrong. Bad things can
happen whenever a home appliance climbs hundreds of degrees.
Especially when a person is in a “rush, ”
see Cplt. at ¶ 10, as plaintiff can painfully
experienced a stove emergency of his own, or so he claims.
One day, plaintiff was working at home in the kitchen of his
apartment, and he became hungry. He heated a pot of noodles
on the stovetop, and began cooking a “skillet of turkey
bacon, ” too. Id. at ¶ 3. But lunch
wasn't the only thing consuming his attention. He
prepared noodles and bacon “[w]hile working on his
laptop in the kitchen.” Id. The multi-tasking
became a real-world recipe for disaster.
laptop apparently was more engrossing than the food, which
continued to heat on the stove. The sizzle turned to smoke.
Plaintiff - “while working in the kitchen on his
laptop, ” he reminds us - “smelled the turkey
bacon burning on the island range.” Id. at
¶ 10. Plaintiff sprung into action. He
“rushed” - his word, twice - to remove the
skillet from the gas flame. Id. at ¶¶
10-11. And in the process, he smacked his head “with
great force” on the island canopy range hood.
Id. at ¶ 11.
Whirlpool, blaming the company for his injuries. His theory
appears to be that the range hood was unreasonably dangerous
because it was too low, and he faults the installation
instructions. They “mentioned 24 inches [from the
stovetop] as an installation height, ” but failed to
mention that the range hood could be higher. Id. at
¶ 14. At that height, someone like plaintiff - who is
“five feet eleven inches tall” - could hit his
head in a rush to save lunch. Id. at ¶ 9.
originally filed suit in Illinois state court. He named
Whirlpool as the only defendant. But he also named his two
landlords as “respondents in discovery, ” a
special category under the Illinois procedural rules.
Respondents in discovery are “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.” See 735 ILCS 5/2-402. As the name
suggests, respondents in discovery must “respond to
discovery by the plaintiff in the same manner as are
defendants.” Id. And in the meantime, the
statute of limitations against respondents in discovery is
tolled for six months. Id.
attached interrogatories and document requests to his
Complaint. He asked the respondents in discovery to tell him
who installed the range hood, and when. See Dckt.
No. 7. He also requested an “inspection of the
kitchen.” Id. at p.12 of 29.
promptly removed the case to federal court. Plaintiff
responded by filing an emergency motion, asking for immediate
leave to “inspect and photograph” the range hood.
See Emergency Motion for Non-Destructive Inspection,
at ¶ 5 (Dckt. No. 11). He wants to lay eyes on the range
hood “before the statute of limitations runs and/or
before any change to the product occurs.” Id.
He invokes Rule 34 as the basis for immediate discovery.
emergency request suffers from a number of problems. For
starters, he invokes a rule that, by its plain text, does not
apply. Rule 34 authorizes a party to serve an inspection
request “on any other party.” See Fed.
R. Civ. P. 34(a). The text reiterates that the property must
be “possessed or controlled by the responding
party.” See Fed. R. Civ. P. 34(a)(2); see
also Fed. R. Civ. P. 45 (confirming that the Federal
Rules know how to distinguish between a “party”
and a “person”).
respondents in discovery are not parties. At best, they are
third parties who might, in theory, be sued someday. The
statute itself says so: a respondent in discovery “may
be made a defendant” down the road, but isn't a
defendant in the meantime. See 735 ILCS 5/2-402.
Whirlpool is the only other party, and Whirlpool doesn't
possess or control the apartment.
plaintiff really wants is early discovery from a third party,
before the parties have had their initial conference under
Rule 26. See Fed. R. Civ. P. 26(d)(1) (“A
party may not seek discovery from any source before the
parties have conferred as required by Rule 26(f), ”
absent court order.). The Federal Rules do allow early
discovery in special limited circumstances, such as
preserving testimony from an ill witness. See Fed.
R. Civ. P. 27. But as a general matter, the Federal Rules do
not allow early discovery for the purpose of gathering
information for future claims against non-parties. True,
Illinois procedural rules take a different approach, but that
makes no difference. The Federal Rules (not state rules)
govern federal procedure in federal court, and there is no
corollary for respondents in discovery.
is no apparent need for an immediate inspection, either.
Stoves aren't exactly mobile, and there is no indication
in the motion that it is going anywhere anytime soon.
Plaintiff does not contend that the stove is about to be
removed or destroyed. And there is no apparent need for more
information. In fact, the Complaint includes detailed
measurements - to the fraction of an inch - about the height
of the stove. The cooking surface was precisely
“thirty-eight and three-fourths inches from the floor,
” and the range hood was “twenty-four inches
above the cook [sic] surface.” See Cplt. at
¶¶ 7-8. Taken together, the range hood was
“five feet, two inches from the floor.”
Id. at ¶ 8. Plaintiff apparently got out a tape
measure before moving out - in December, 2017. See
Motion at ¶ 4.
waited too long, too. The accident took place on October 18,
2017, see Cplt. at ¶ 2, but he didn't file
his emergency motion until October 1, 2019, roughly two weeks
before the statute of limitations lapses. He waited almost
two years to try to inspect the stove. Plaintiff did not
treat the situation as an emergency, and neither will this
is no harm in denying the motion, either. Plaintiff freely
admits that he is unlikely to sue his landlords anyway.
“[I]t is not likely that Plaintiff will seek to convert
Respondents in Discovery to Defendants.” See
Motion at ¶ 8. The statute of limitations doesn't