Rowan v. SIU Physicians and Surgeons, Inc.

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

LYNDA ROWAN & RICHARD )

ROWAN, )

)

Plaintiffs, )

)

vs. ) Case No. 3:23-cv-01212-GCS

)

SIU PHYSICIANS AND SURGEONS )

INC. & KYAW NAING, )

)

Defendant, )

)

vs. )

)

WILSON CUEVA, )

)

Respondent In Discovery, )

MEMORANDUM & ORDER

SISON, Magistrate Judge:

Pending before the Court is Respondent in Discovery Wilson Cueva’s Motion to

Dismiss. (Doc. 11). Dr. Wilson Cueva (“Cueva”) was named a respondent in discovery

pursuant to 735 ILL. COMP. STAT. § 5/2-402 when Plaintiffs filed their case in Illinois

State Court on September 16, 2022. (Doc. 12, p. 1). On May 5, 2023, Cueva filed a Motion

to Dismiss along with a Memorandum of Law in Support, arguing for his dismissal

pursuant to Section 2-402 as Plaintiffs have failed to convert him to a named defendant

within six months of filing their complaint.1 (Doc. 11, 12). Plaintiffs filed an Objection to

1 Cueva does not specify in his Motion to Dismiss whether the Motion was brought

pursuant to Federal Rule of Civil Procedure 12(b)(1) or 12(b)(6). However, Cueva’s statement

that “a respondent in discovery cannot be converted to a defendant until the plaintiff obtains

the leave of court” makes it appear as though the Motion was brought under Rule 12(b)(1). This

Cueva’s Motion to Dismiss on May 15, 2023. (Doc. 21). Plaintiffs assert that the Court

lacks jurisdiction to consider a motion by a Respondent in Discovery. Id. at p. 1.

Ultimately, because the Court lacks subject matter jurisdiction over Cueva as a non-

party respondent in discovery the Court must GRANT the Motion to Dismiss. (Doc.

11).

LEGAL STANDARDS

The purpose of a motion to dismiss is to test the sufficiency of plaintiff’s

complaint. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). On a motion

to dismiss, the district court must accept all well pleaded factual allegations as true and

view those allegations in the light most favorable to the plaintiff. See Gillman v.

Burlington Northern R.R. Co., 878 F.2d 1020, 1022 (7th Cir. 1989). In accordance with

Federal Rule of Civil Procedure 12(b)(1), a court must dismiss a claim if it lacks subject

matter jurisdiction over the claim. See FED. R. CIV. PROC. 12(b)(1).

DISCUSSION

As an initial matter, Plaintiffs cite to Cartegena v. Martino-Villanueva as support

for their proposition that the Court cannot consider a Motion to Dismiss filed by

respondent in discovery Cueva. 619 F.Supp.3d 1145, 1152 (M.D. Fla. 2022). However,

the case does not address the proposition that Plaintiffs assert. Cartegena does not

address whether the Court lacks the jurisdiction to address a motion submitted by a

respondent in discovery, rather it only re-states the notion that “[a] federal court does

is because the Court of Appeals for the Seventh Circuit has noted that respondents in discovery

are not parties. See Jass v. Prudential Health Care Plan Inc., 88 F.3d 1482, 1485 n.3 (7th Cir. 1996).

Accordingly, the Court will conduct its analysis under Federal Rule of Civil Procedure 12(b)(1).

not have jurisdiction over a suit under the FTCA unless the claimant files an

administrative claim with the appropriate agency . . . .” Id. While this is a correct

statement of law, it is not dispositive to Plaintiffs’ argument regarding respondents in

discovery. Thus, the Court will address Cueva’s substantive argument.

Section 2-402 of the Illinois Code provides the statutory procedure by which a

plaintiff is permitted to designate individuals or entities as respondents in discovery.

See 735 ILL. COMP. STAT. § 5/2-402. The statute allows plaintiffs to designate an

individual a “respondent in discovery” if they believe an individual could have

information essential to the determination of who should be named as additional

defendants to the case. Id. Originally, the statute was applied primarily in medical

malpractice cases and was intended to help defendants avoid the costs and burdens of

litigation while assisting plaintiffs in discovering parties against whom a cause of action

might lie. See Robinson v. Johnson, 809 N.E.2d 123, 129 (Ill. App. Ct. 1st Dist. 2003).

Plaintiffs have six months from the date of filing the complaint to convert the

respondent in discovery to a named defendant.2 See 735 ILL. COMP. STAT. § 5/2-402. See

also Allen v. Thorek Hosp., 656 N.E.2d 227, 231 (Ill. Ct. App. 1st Dist. 1995) (explaining that

the six-months begins to run from the date of filing a complaint.). A respondent in

discovery cannot be converted to a defendant until the party obtains leave of the court.

See Froehlich v. Sheehan, 608 N.E.2d 889, 894-895 (Ill. Ct. App. 1st Dist. 1992). “Scrupulous

adherence to the requirements of section 2-402 is a condition precedent to the plaintiff’s

2 The statute allows plaintiff to request an extension from the six-month period for good

cause only once for up to 90 days. 735 ILL. COMP. STAT. § 5/2-402. Plaintiff did not request an

extension within the six-month period.

right to seek a remedy.” Knapp v. Bulun, 911 N.E.2d 541, 548 (Ill. App. Ct. 1st Dist. 2009).

See also Robinson, 890 N.E.2d at 129 (noting that meeting the statutory requirements set

forth in section 2-402 “[are] a condition of the liability itself and not of the remedy

alone.”).

Here, Plaintiffs failed to convert Cueva to a defendant as required by the statute.

Given the September 16, 2022, filing date, Plaintiffs had until March 22, 2023, to move

for a probable cause hearing if they wished to convert Cueva to a defendant. See 735 ILL.

COMP. STAT. § 5/2-402. The six-month deadline has long passed, and Plaintiffs have not

moved to convert Cueva to a defendant as required by Section 2-402. See, e.g., Browning

v. Jackson Park Hosp., 516 N.E.2d 797, 801 (Ill. Ct. App. 1st Dist. 1987) (affirming dismissal

where plaintiff failed to follow section 2-402 requirements for converting respondents in

discovery within the required 6 months). Thus, if the Court were to apply Illinois

procedural rules, Plaintiffs are precluded from adding Cueva as a defendant.

More importantly and for purposes of applying Rule 12(b)(1), because Cueva is

not a party to the case, there is no case or controversy involving this particular

defendant. In Boothe v. Marshall Browning Hosp., this Court analyzed Section 2-402 under

Rule 12(b)(1) and concluded that it lacked subject matter jurisdiction over a claim

against a respondent in discovery because respondents in discovery are non-parties.

Case No. 12-cv-025-MJR-SCW, 2012 WL 3308778 (S.D. Ill. Aug. 13, 2012). Specifically,

the Court noted that:

It is axiomatic that if the statute provides a process by which a respondent

in discovery may become a defendant, then a respondent in discovery is

not a defendant to an action. Similarly, the distinction between a

respondent in discovery and a defendant - particularly the provision for

paying a respondent in discovery like a witness - re-enforces that Section

2-402 is a procedural mechanism for discovery and does not create a

substantive cause of action. Rather, Section 2-402 is wholly dependent

upon there being a predicate substantive claim.

Id. at *2. The Court then cited several Illinois cases that came to the same conclusion,

finding that respondents in discovery are a category of non-defendants unique to

Illinois law. See, e.g., Westmeyer v. Flynn, 889 N.E.2d 671, 673 n.2 (Ill. Ct. App. 15 Dist.

2008); Shanklin v. Hutzler, 691 N.E.2d 7, 13 (Ill. Ct. App. 1st Dist. 1997); Engel v. St. Mary's

Hosp. of Decatur, 555 N.E.2d 810, 811 (Ill. Ct. App. 4th Dist. 1990). Thus, the Court in

Boothe granted the respondent in discovery’s motion to dismiss, because as a non-party,

no case or controversy existed as between him and the plaintiffs under Article II, § 2 of

the United States Constitution. Id. at *3. The same result is required in the instant

matter. As such, the Court GRANTS Cueva’s Motion to Dismiss. (Doc. 11).

CONCLUSION

For the foregoing reasons, the Court GRANTS Dr. Cueva’s Motion to Dismiss

pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter

jurisdiction.

IT IS SO ORDERED.

Digitally signed

DATED: March 25, 2024. Bitkee ¢ -byJudge Sison

on Date: 2024.03.25

14:16:40 -05'00'

GILBERT C. SISON

United States Magistrate Judge

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