2013 ISBA CIVIL PRACTICE
HANDBOOK
CHAPTER ON
PROPER PARTIES, AMENDED COMPLAINTS, and RELATION BACK
DOCTRINE
SHAWN S. KASSERMAN
CORBOY & DEMETRIO, P.C.
CHICAGO
TABLE OF CONTENTS
Page
I. PROPER PARTIES
A. Misnomer......................................................................................................................1
B. Respondents in Discovery.............................................................................................4
C. Assignments and Subrogation…....................................................................................7
D. Joinder...........................................................................................................................10
1. Of Plaintiffs ....................................................................................................10
2. Of Defendants.................................................................................................11
E. Third-Party Proceedings.............................................................................................12
F. Change of Party..........................................................................................................16
G. Intervention................................................................................................................17
H. Interpleader................................................................................................................20
I. Actions Against Joint Debtors.....................................................................................22
1. Actions Against Partners.................................................................................22
2. Actions Against Partnerships..........................................................................22
J. Savings Clause as to Change of Parties.......................................................................23
K. Unknown Parties........................................................................................................23
1. 735 ILCS 5/15-1501(c)...................................................................................24
L. Validation of Judgments.............................................................................................25
M. Receivers...................................................................................................................25
N. Small Claims Representation.....................................................................................26
N. Illinois Educational Labor Relations Act……...........................................................27
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II. AMENDED COMPLAINTS..................................................................................................28
A. Supreme Court Rule 218(a)(3)...................................................................................30
III. RELATION BACK DOCTRINE........................................................................................32
IV. PROPER PARTY and PRIMA FACIE ELEMENTS.......................................................39
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I. PROPER PARTIES
1.
2.
3.
Draft your OWN complaint
Know the LAW
Know the FACTS
Avoid the need to amend your pleadings as this option is not always available to you.
Many times, however, the Illinois Code of Civil Procedure will provide safe havens for
amendment. Identifying and timely naming all the proper parties to a lawsuit comprise the most
crucial function any lawyer has. Are all the proper plaintiffs included? Have any potentially
liable defendants been named? What about third-party defendants not directly liable to the
party? Do your pleadings create any conflict among plaintiffs?
The actual identity of all parties may not be known at the time an action is filed.
Different approaches need to be utilized to identify and add proper parties in a timely fashion.
The Illinois Compiled Statutes devote all of Part 4 of the Article on Civil Practice to Parties.
What follows here is a breakdown of the statutes, and the pertinent case law that has come to
define their application.
§ 735 ILCS
5/2-401. Designation of parties - Misnomer - “Real party in interest - wrong name.”
- Action brought and summons served upon the party intended to be made defendant.
(a) The party commencing an action shall be called the plaintiff. The adverse party shall be
called the defendant.
(b) Misnomer of a party is not a ground for dismissal but the name of any party may be
corrected at any time, before or after judgment, on motion, upon any terms and proof that the
court requires.
(c) A party shall set forth in the body of his or her pleading the names of all parties for and
against whom relief is sought thereby.
(d) Unless a contrary meaning is indicated, wherever used in this Act and in rules adopted
pursuant hereto the term "plaintiff" includes counterclaimants and third-party plaintiffs, and the
term "defendant" includes third-party defendants and parties against whom relief is sought by
counterclaim.
(e) Upon application and for good cause shown the parties may appear under fictitious names.
PERTINENT CASE LAW
Definition
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a.
A misnomer occurs where the plaintiff brings an action and serves summons upon
the party intended to be made the defendant, thus giving actual notice of the
lawsuit to the real party in interest, but the process and complaint do not refer to
the person by his correct name. Shaifer v. Folino, 272 Ill. App. 3d 709 (1st Dist.
1995); Fassero v. Turigliatto, 349 Ill. App. 3d 368 (4th Dist. 1995).
Narrow Application
a.
Subsection (b) of this section is narrow and applies only where an action is
brought and summons is served upon the party intended to be made defendant,
thus giving actual notice of the lawsuit to the real party in interest, but the process
and complaint do not refer to the person by his correct name. Perry v. Public
Bldg. Comm'n, 232 Ill. App. 3d 402 (1st Dist.1992).
b.
If subsection (b) of this section applies, service of summons after the expiration of
the statute of limitations does not bar the suit, provided that the plaintiff used
reasonable diligence in obtaining service upon the proper defendant; however, in
cases of mistaken identity, service upon the proper defendant is required before
the expiration of the time provided in the statute of limitations. Barbour v. Fred
Berglund & Sons, 208 Ill. App. 3d 644 (1 Dist. 1990).
c.
The misnomer rule is a narrow one and applies only where a plaintiff brings an
action and a summons is served upon a party intended to be made a defendant.
Zito v. Gonzalez, 291 Ill. App. 3d 389, 392 (1st Dist. 1997). In contrast, mistaken
identity occurs when the wrong party is named and served. In cases of mistaken
identity, section 2-616 of the Code applies, and service is required before the
running of the statute of limitations. Wheaton v. Steward, 353 Ill. App. 3d 67 (1st
Dist. 2004); see 735 ILCS 5/2-616(d).
d.
Illinois courts have identified four points that support the application of the
doctrine of misnomer: (1) all parties were “fully aware” of the identities of the
parties to the case; (2) an actual plaintiff existed; (3) the defendant was aware that
an actual plaintiff existed; and (4) the defendant was not prejudiced. Todd W.
Musburger, Ltd. v. Meier, 394 Ill. App. 3d 781, 807 (1st Dist. 2009).
Actual Notice Required
a.
Actual notice to the true defendant is a prerequisite for correction of a misnomer.
Rapier v. First Bank & Trust Co., 309 Ill. App. 3d 71 (1st Dist. 1999).
b.
In a misnomer case, actual notice of the lawsuit is given to the real party in
interest, but the complaint does not refer to the person by his correct name. Ellis v.
Borisek, 220 Ill. App. 3d 48 (3rd Dist. 1991).
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Use of Pseudonyms
a.
Lawsuits are public events. A plaintiff should be permitted to proceed
anonymously only in those exceptional cases involving matters of a highly
sensitive and personal nature, real danger or physical harm, or where the injury
litigated against would be incurred as a result of the disclosure of the plaintiff’s
identity. The risk that a plaintiff may suffer some personal embarrassment is not
enough. Doe v. Doe, 282 Ill. App. 3d 1078 (1st Dist. 1996).
b.
The cases nationwide that discuss the conditions under which party anonymity is
usually granted look to whether the party seeking to use a pseudonym has shown
a privacy interest that outweighs the public’s interest in open judicial proceedings.
These situations are described as “exceptional” and involve matters of a highly
personal nature, such as abortion, adoption, sexual orientation, and religion. Doe
v. Doe, 282 Ill. App. 3d 1078 (1st Dist. 1996).
c.
The ultimate test for allowing a plaintiff to proceed anonymously is whether the
plaintiff has a substantial privacy right which outweighs the customary and
constitutionally-embedded presumption of openness in judicial proceedings. It is
the exceptional case in which a plaintiff may proceed under a fictitious name.
Doe v. Frank, 951 F.2d 320 (11th Cir. 1992).
d.
In Illinois, jurisdiction to sue unknown or fictitious persons must be obtained
pursuant to some express statute. Those statutes that authorize the use of
fictitious names must do so explicitly. In Illinois, 735 Ill. Comp. Stat. 5/2-401
authorizes the use of fictitious names under certain circumstances. Doe v. Doe,
282 Ill. App. 3d 1078 (1st Dist. 1996).
e.
Although there are situations in which a plaintiff may proceed under a fictitious
name, Illinois law is clear that the privilege of suing or defending under
pseudonyms should not be assumed or granted automatically, even if an opposing
party does not object. The use of pseudonyms is disfavored, and the judge has an
independent duty to determine whether exceptional circumstances justify such a
departure from the normal method of proceeding in courts. The legislature has
enacted a specific procedure for proceeding under a fictitious name. See 735
ILCS 5/2-401(e) (“Upon application and for good cause shown the parties may
appear under fictitious names.”); see also Santiago v. E.W. Bliss Co., 2012 IL
111792.
f.
When an injured plaintiff intentionally files a complaint using a fictitious name,
without leave of court to use the fictitious name pursuant to section 2-401 of the
Code of Civil Procedure, the circuit court may, in its sound discretion, dismiss the
complaint with prejudice as a sanction if there is clear record of willful conduct
showing deliberate and continuing disregard for trial court’s authority. Santiago v.
E.W. Bliss Co., 2012 IL 111792.
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Public Nature of Proceedings
a.
Section 2-401 of the Illinois Code of Civil Procedure, specifically 735 Ill. Comp.
Stat. Ann. 5/2-401(c) (2002), in providing that a party shall set forth in the body
of his or her pleading the names of all parties for and against whom relief is
sought, represents the principle that civil judicial proceedings are to be conducted
in public. Identifying the parties to a proceeding is an important dimension of
publicness; the public has a right to know who is utilizing the courts that its tax
dollars support. There are exceptions; fictitious names are allowed when
necessary to protect the privacy of children, rape victims, and other particularly
vulnerable parties or witnesses. A.P. v. M.E.E., 354 Ill. App. 3d 989 (1st Dist.
2004).
Purpose
a.
One purpose of the misnomer provision is to avoid dismissal of cases on a purely
technical basis and to allow the action to reach its substantive merits. Greil v.
Travelodge Int'l, Inc., 186 Ill. App. 3d 1061 (1st Dist. 1989).
5/2-402. Respondents in Discovery
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 respondent in
discovery.
Each respondent in discovery shall be paid expenses and fees as provided for witnesses.
A person or entity named as a respondent in discovery in any civil action may be made a
defendant in the same action at any time within 6 months after being named as a respondent in
discovery, even though the time during which an action may otherwise be initiated against him
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or her may have expired during such 6 month period. An extension from the original 6-month
period for good cause may be granted only once for up to 90 days for (i) withdrawal of plaintiff’s
counsel or (ii) good cause. Notwithstanding the limitations in this Section, the court may grant
additional reasonable extensions from this 6-month period for a failure or refusal on the part of
the respondent to comply with timely filed discovery.
PERTINENT CASE LAW
Definition
a.
"Respondents in discovery" is a category of non-defendants that under Illinois
procedural rules may be added as parties if, within six months, the plaintiff
obtains information sufficient to suggest that they may be liable. Roe v.
O'Donohue, 38 F.3d 298 (7th Cir. 1994), overruled on other grounds by Murphy
Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999).
Optional but Substantive Nature
a.
This section's procedures are optional; plaintiff's attorney still has the option to
name persons as defendants, rather than as respondents in discovery, at the outset.
Clark v. Brokaw Hosp., 126 Ill. App. 3d 779 (4th Dist. 1984); Arndt v.
Resurrection Hosp., 163 Ill. App. 3d 209 (1st Dist. 1987).
Making Respondents Into Defendants
a.
A respondent in discovery may be made a defendant under this section pursuant
to a motion by the plaintiff for leave to file an amended complaint where the
motion is filed within six months after the respondent is first named in the
complaint as a respondent in discovery, and either (1) the motion indicates on its
face that the purpose of the amendment is to add the respondent in discovery as a
defendant or (2) the amended complaint naming the respondent as a defendant is
presented or filed with the motion. Clark v. Brokaw Hosp., 126 Ill. App. 3d 779
(4th Dist. 1984); Froelich v. Sheehan, 240 Ill. App. 3d 93 (1st Dist. 1992).
b.
Section 5/2-402 provides that as long as a person or entity is named as a
respondent in discovery within the statute of limitations period, a plaintiff then
has an additional six months to obtain information which may indicate that the
person or entity should be made a defendant. The six-month statutory period
begins on the day the plaintiff files a complaint naming respondents in discovery.
The six-month provision of §2-402 may only extend, and not foreshorten, any
limitations period against a respondent in discovery. Robinson v. Johnson, 346
Ill. App. 3d 895, 902 (1st Dist. 2004) (Plaintiff named two doctors as respondents
in discovery on June 15, 2001, prior to the expiration of the two-year statute of
limitations under the Wrongful Death Act, and thus had 84 days after the statute
of limitations expired on September 15, 2001, to name those doctors as
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defendants.)
c.
In an administrator's motion to convert a nursing home from a respondent in
discovery to a defendant in a wrongful death action, given the liberal construction
to be afforded § 2-402 of the Code of Civil Procedure, 735 ILCS 5/2-402,
compliance with § 2-622 [Healing Art Malpractice] of the Code of Civil
Procedure was not required. Jackson-Baker v. Immesoette, 337 Ill. App. 3d 1090
(3rd Dist. 2003).
d.
Where plaintiff made no showing of probable cause and specifically asked the
court not to hold a hearing on a motion to add respondents as defendants by filing
it as a routine motion, plaintiff made no attempt to present the evidence needed to
support his motion within six months of naming them as respondents in
discovery; thus, the trial court properly decided to dismiss the complaint as to
these defendants. Browning v. Jackson Park Hosp., 163 Ill. App. 3d 543 (1st Dist.
1987).
e.
The plaintiff is not required to show a prima facie case in order to require that
respondents in discovery be made defendants. Ingle v. Hospital Sisters Health
Sys., 141 Ill. App. 3d 1057 (4th Dist. 1986).
f.
Like a complaint, a motion to convert a respondent in discovery to a defendant is
distinguishable from other documents. Because the filing of a motion to convert
implicates the statute of limitations, respondents in discovery are entitled to rely
on the certainty the statute provides; extension of the “mailbox rule” to such
circumstances would destroy that certainty. Accordingly, existing Illinois law
does not authorize the filing by mail of a motion to convert respondents in
discovery to defendants. Knapp v. Bulun, 392 Ill. App. 3d 1018, 1026 (1st Dist.
2009).
Six-Month Period
a.
The six-month period in which a plaintiff can convert respondents in discovery to
defendants runs from the date of filing a complaint, not from the date the statute
of limitations expired. Allen v. Thorek Hosp., 275 Ill. App. 3d 695 (1st Dist.
1995), appeal denied, 165 Ill. 2d 547 (1996).
b.
A trial court may not extend 735 Ill. Comp. Stat. Ann. 5/2-402's (1998) six-month
period during which a respondent in discovery may be made a defendant.
Robinson v. Johnson, 346 Ill. App. 3d 895 (1st Dist. 2004).
Discovery
a.
Language of 735 ILCS 5/2-402 addressing discovery has been interpreted to mean
that the power acquired by service of notice that a party is designated as a
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respondent in discovery, permits the circuit court to compel discovery in the same
manner as from a defendant; further, § 2-402 subjects respondents in discovery to
the same procedural and discovery rules and safeguards as defendants. Robinson
v. Johnson, 346 Ill. App. 3d 895 (1st Dist. 2004).
Purpose
a.
The purpose of section is to decrease the number of parties named as defendants
in medical malpractice cases and thereby reduce the insurance costs which
resulted from litigation against unnecessary parties. Perry v.
Rush-Presbyterian-St. Luke's Medical Ctr., 178 Ill. App. 3d 564 (1st Dist. 1988).
b.
In enacting this section, the legislature intended to encourage delaying naming
medical practitioners as defendants in malpractice actions until such time as
probable cause exists to support the allegations of wrongdoing. Bogseth v.
Emanuel, 261 Ill. App. 3d 685 (1st Dist. 1994).
c.
The purpose of this section to permit an aggrieved party in a malpractice case to
name parties not as defendants but as respondents to enable a plaintiff through
liberal discovery rules to determine whether the respondent should be made a
defendant. Hugley v. Alcaraz, 144 Ill. App. 3d 726 (1st Dist. 1986).
d.
The enactment of this section was a legislative effort to reduce spiraling costs of
medical malpractice insurance by providing attorneys with a means to file such
suits without "naming everyone in sight as a defendant," because it was believed
that the designation as a defendant was a contributing factor. Arndt v.
Resurrection Hosp., 163 Ill. App. 3d 209 (1st Dist. 1987).
e.
The Illinois Supreme Court explained that section 2-402 of the Code of Civil
Procedure (735 ILCS 5/2-402 (West 1992)), which allows a plaintiff to designate
individuals as respondents in discovery, rather than defendants, was "an
innovative reform to help avoid the stigma, costs, and burdens thrust upon
individuals being named defendants to litigation unnecessarily. Lewis v. Dillon,
352 Ill. App. 3d 512 (1st Dist. 2004).
5/2-403. Who may be plaintiff - Assignments - Subrogation
(a) The assignee and owner of a non-negotiable chose in action may sue thereon in his or her
own name. Such person shall in his or her pleading on oath allege that he or she is the actual
bona fide owner thereof, and set forth how and when he or she acquired title. The action is
subject to any defense or set-off existing before notice of the assignment.
(b) In all cases in which the chose in action consists of wages due or to become due to the
assignor thereof from the defendant in the action, at least 5 days' written notice of the pendency
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of the action shall be served upon the assignor, before the trial of the same. Upon application of
the assignor of the chose in action the court shall allow him or her to intervene and be made a
party to the action. The assignor, or the defendant to the action on behalf of the assignor, shall
be allowed to set up or affirmatively maintain any just setoff, discount or defense which the
assignor may have to the assignment of the chose in action, or to the indebtedness, the payment
of which is secured by the assignment of the chose in action. The court, by jury or otherwise,
shall ascertain the amount of the indebtedness remaining due and unpaid from the assignor to the
assignee of the chose in action. The judgment, if any, against the defendant shall not exceed the
amount so found to be due and unpaid from the assignor to the assignee of the chose in action.
Judgment for the balance, if any, remaining due from the defendant, upon the assigned chose in
action, shall be rendered in favor of the assignor and against the defendant in the action or
proceeding. The court may enter any order as to costs in the proceeding that may be equitable.
(c) Any action hereafter brought by virtue of the subrogation provision of any contract or by
virtue of subrogation by operation of law shall be brought either in the name or for the use of the
subrogee; and the subrogee shall in his or her pleading on oath, or by his or her affidavit if
pleading is not required, allege that he or she is the actual bona fide subrogee and set forth how
and when he or she became subrogee.
(d) A judgment in an action brought and conducted by a subrogee by virtue of the subrogation
provision of any contract or by virtue of any subrogation by operation of law, whether in the
name of the subrogor or otherwise, is not a bar or a determination on the merits of the case or
any aspect thereof in an action by the subrogor to recover upon any other cause of action arising
out of the same transaction or series of transactions.
PERTINENT CASE LAW
Purpose
a.
Subsection (d) is designed to protect an insured from having a claim for personal
injury barred by res judicata because his subrogated insurance carrier has
previously litigated the issue of property damage arising out of the same accident.
Zurich Ins. Co. v. Amcast Indus. Corp., 318 Ill. App. 3d 330 (1st Dist. 2000).
Sufficient Interest
a.
It is clear that if an insured plaintiff has even a de minimus pecuniary interest in a
suit, that interest is sufficient to allow a subrogation action to be maintained in the
plaintiff's name. Radtke v. International Heater Co., 140 Ill. App. 3d 542 (1st
Dist. 1986).
b.
Where the court found that plaintiff had an interest over and above the amount it
received from its insurer, it was a proper party plaintiff, and the court's denial of
defendants' motion to strike was not error. Chem-Pac, Inc. v. Simborg, 145 Ill.
App. 3d 520 (1st Dist. 1986).
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c.
Where plaintiff denied all allegations with regard to its insurance coverage until it
entered into a stipulation establishing the fact, and that its insurer had
compensated it for all damages it was seeking against defendant, the interest of
the subrogee could not then be concealed; therefore, the action should have been
brought in the name of plaintiff's insurer. Nitrin, Inc. v. Bethlehem Steel Corp.,
35 Ill. App. 3d 577 (1st Dist. 1976).
Concealment
a.
The interest of the subrogee cannot be concealed in any proceeding brought for its
benefit; it must be either named as the plaintiff or disclosed as the real party in
interest. Prudential Ins. Co. v. Romanelli, 243 Ill. App. 3d 246 (1st Dist. 1993).
b.
If plaintiff has no right to recovery, the interest of the subrogee cannot be
concealed, and it must be either named as the plaintiff or disclosed as the real
party in interest. Radtke v. International Heater Co., 140 Ill. App. 3d 542 (1st
Dist. 1986).
c.
The interest of a subrogee cannot be concealed in any proceeding brought for its
benefit; it must be either named as the plaintiff or disclosed as the real party in
interest. Shaw v. Close, 92 Ill. App. 2d 1 (1st Dist. 1968).
Identifying the Cause of Action
a.
The Illinois Supreme Court has definitively opted for the supremacy of the same
transaction test over the same evidence test. The Court has stated that the same
evidence test is not determinative of identity of a cause of action. Instead,
pursuant to the transactional analysis, separate claims will be considered the same
cause of action for purposes of res judicata if they arise from a single group of
operative facts, regardless of whether they assert different theories of relief.
Nevertheless, the Clancey analysis still retains a dispositive foothold in the
context of subrogation actions pursuant to 735 Ill. Comp. Stat. 5/2-403(d). Zurich
Ins. Co. v. Amcast Indus. Corp., 318 Ill. App. 3d 330 (1st Dist. 2000).
5/2-404. Joinder of plaintiffs
All persons may join in one action as plaintiffs, in whom any right to relief in respect of or
arising out of the same transaction or series of transactions is alleged to exist, whether jointly,
severally or in the alternative, whenever if those persons had brought separate actions any
common question of law or fact would arise. If upon the application of any party it shall appear
that joinder may embarrass or delay the trial of the action, the court may order separate trials or
enter any other order that may be expedient. Judgment may be entered for any one or more of
the plaintiffs who may be found to be entitled to relief, for the relief to which he or she or they
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may be entitled.
If any one who is a necessary plaintiff, counterclaimant or third-party plaintiff declines to join,
he or she may be made a defendant, cross defendant or third-party defendant, as the case may be,
the reason therefor being stated in the complaint, counterclaim or third-party complaint.
PERTINENT CASE LAW
Liberal Construction
a.
This section is to be construed with a view toward permitting the liberal joinder of
plaintiffs. Rodriguez v. Credit Sys. Specialists, Inc., 17 Ill. App. 3d 606 (1st Dist.
1974).
b.
This section is remedial and promotes the purpose that the delays and expenses of
litigation shall be lessened where possible, and as such it is to be liberally
construed. Weigend v. Hulsh, 315 Ill. App. 116 (1st Dist. 1942).
Difference from Other Procedures
a.
The Code of Civil Procedure provides the means by which additional parties may
be joined in a pending action (735 ILCS 5/2-404), those interested in the outcome
may intervene (735 ILCS 5/2-408), and a single party may represent a class of
litigants (735 ILCS 5/2-801 et seq.). Sundance Homes v. County of Du Page, 195
Ill. 2d 257 (2001).
Provisions not Mandatory
a.
The argument that joinder as a defendant under this section was the appropriate
solution to a necessary party's unwillingness to be joined as a plaintiff had no
merit because the provisions of this section are not mandatory, and because he
was not properly a party defendant in litigation he initiated through his fictional
identity. In re Busse, 145 Ill. App. 3d 530 (1st Dist. 1986).
Commonality Required
a.
A plaintiff was properly joined pursuant to 735 ILCS 5/2-404, because while they
did not arise out of the same transaction, both claims arose from a series of
transactions and there existed numerous common questions of law and fact; in
particular, plaintiff's claims were based on a bankrupt retail chain's alleged
practice of freshening accounts receivables and both plaintiffs had named the
same parties as persons taking part in the allegedly egregious redating of accounts
receivables in the transactions. Prime Leasing, Inc. v. Kendig, 332 Ill. App. 3d
300 (1st Dist. 2002).
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Unwilling Party
a.
A spouse's loss-of-consortium action against defendant must be against that same
defendant joined, whenever possible, with the impaired spouse's cause of action
for personal injury. The fact that the spouses are estranged will not avoid joinder,
for an unwilling party can be joined as a defendant pursuant to this section.
Brown v. Metzger, 104 Ill. 2d 30 (1984).
5/2-405. Joinder of defendants
(a) Any person may be made a defendant who, either jointly, severally or in the alternative, is
alleged to have or claim an interest in the controversy, or in any part thereof, or in the transaction
or series of transactions out of which the controversy arose, or whom it is necessary to make a
party for the complete determination or settlement of any question involved therein, or against
whom a liability is asserted either jointly, severally or in the alternative arising out of the same
transaction or series of transactions, regardless of the number of causes of action joined.
(b) It is not necessary that each defendant be interested as to all the relief prayed for, or as to
every cause of action included in any proceeding against him or her; but the court may make any
order that may be just to prevent any defendant from being embarrassed or put to expense by
being required to attend any proceedings in which such defendant may have no interest.
(c) If the plaintiff is in doubt as to the person from whom he or she is entitled to redress, he or
she may join two or more defendants, and state his or her claim against them in the alternative in
the same count or plead separate counts in the alternative against different defendants, to the
intent that the question which, if any, of the defendants is liable, and to what extent, may be
determined as between the parties.
PERTINENT CASE LAW
Alternative Pleading Allowed
a.
If plaintiff is in doubt as to the person from whom he is entitled to redress, he may
join two or more defendants, and state his claim against them in the alternative,
and any discussion of the propriety of making a person a party is premature in the
absence of proof. People ex rel. Resnik v. Curtis & Davis, Architects & Planners,
Inc., 78 Ill. 2d 381 (1980).
Necessary Party Defined
a.
A necessary party is one whose participation is required to: (1) protect its interest
in the subject matter of the controversy which would be materially affected by a
judgment entered in its absence; (2) reach a decision protecting the interest of the
parties already before the court; or (3) allow the court to completely resolve the
controversy. Zurich Ins. Co. v. Baxter Int’l, Inc., 275 Ill. App. 3d 30, 37 (2d Dist.
1995).
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All Necessary Parties Required
a.
Although the failure to join an indispensable party does not deprive the court of
jurisdiction over the parties properly before it, a court should not proceed to a
decision on the merits when an indispensable party is absent. City of Evanston v.
Regional Transp. Auth., 209 Ill. App. 3d 447 (1st Dist. 1991).
b.
A necessary party is one whose participation in the lawsuit is required for any of
the following reasons: (1) to protect an interest which the absent party has in the
subject matter of the controversy which would be materially affected by his
absence; (2) to reach a decision that will protect the interests of those before the
court; and (3) to enable the court to make a complete determination of the
controversy. In re Am. Mut. Reinsurance Co., 238 Ill. App. 3d 1 (1st Dist. 1992).
Commonality Required
a.
The determining factors to permit joinder of parties are that the claims arise out of
closely related transactions, and that there be in the case a significant question of
law or fact that is common to the parties. Sommers v. Korona, 54 Ill. App. 2d 425
(1st Dist. 1964).
5/2-406. Bringing in new parties - Third-party proceedings
(a) If a complete determination of a controversy cannot be had without the presence of other
parties, the court may direct them to be brought in. If a person, not a party, has an interest or title
which the judgment may affect, the court, on application, shall direct such person to be made a
party.
(b) Within the time for filing his or her answer or thereafter by leave of court, a defendant may
by third-party complaint bring in as a defendant a person not a party to the action who is or may
be liable to him or her for all or part of the plaintiff's claim against him or her. Subsequent
pleadings shall be filed as in the case of a complaint and with like designation and effect. The
third-party defendant may assert any defenses which he or she has to the third-party complaint or
which the third-party plaintiff has to the plaintiff's claim and shall have the same right to file a
counterclaim or third-party complaint as any other defendant. If the plaintiff desires to assert
against the third-party defendant any claim which the plaintiff might have asserted against the
third-party defendant had he or she been joined originally as a defendant, the plaintiff shall do so
by an appropriate pleading. When a counterclaim is filed against a party, the party may in like
manner proceed against third parties. Nothing herein applies to liability insurers.
(c) An action is commenced against a new party by the filing of an appropriate pleading or the
entry of an order naming him or her a party. Service of process shall be had upon a new party in
like manner as is provided for service on a defendant.
−12−
PERTINENT CASE LAW
Purpose
a.
This section allows a defendant to bring a third-party action against anyone who
is or may be liable to the defendant as a result of the plaintiff's claim against
defendant. FDIC v. Wells, 164 F.R.D. 472 (N.D. Ill. 1995).
b.
This section was modeled after Rule 14(a), F.R.Civ.P., and was only intended to
effect procedural changes. Village of Crainville v. Argonaut Ins. Co., 81 Ill. 2d
399 (1980).
c.
This section and 735 ILCS 5/2-405 and 735 ILCS 5/2-407 are designed and
intended to permit controversies to be determined according to substantial justice
between the parties. Lain v. John Hancock Mut. Life Ins. Co., 79 Ill. App. 3d 264
(1st Dist. 1979).
d.
The purpose of this section is to save time and costs of bringing a separate action,
to ensure consistent results from the same evidence, and to avoid a difference in
time for a defendant between a judgment against him and a judgment in his favor
against a third-party defendant. People v. Fiorini, 143 Ill. 2d 318 (1991);
Filipponio v. Bailitz, 73 Ill. App. 3d 389 (1st Dist. 1978).
Independent Claims not Allowed
a.
This section has been interpreted as preventing a third party plaintiff from joining
independent claims against a third party defendant. Kiest v. Esmond, 179 Ill. App.
3d 1055 (3rd Dist. 1989).
b.
A third-party complaint is properly brought only where a defendant raises a claim
for contribution or indemnity from one jointly liable with the defendant for the
injury or loss asserted by the plaintiff in the original complaint, but where
third-party defendants were alleged to have acted in concert with the plaintiff,
they could not under any allegations of fact be liable to defendant under a
contribution or indemnity theory, and dismissal was proper. Import Sales, Inc. v.
Continental Bearings Corp., 217 Ill. App. 3d 893 (1st Dist. 1991).
Cannot be a New Defendant for Plaintiff
a.
A defendant is permitted to implead only a person who is or may be liable to him
for plaintiff's claim; he cannot tender a new defendant to the plaintiff. Vassolo v.
Comet Indus., Inc., 35 Ill. App. 3d 41 (1st Dist. 1975).
b.
The common law rule that a party "legally interested" in each side of an action
cannot be both plaintiff and defendant does not apply to third-party complaints in
−13−
a suit in equity, and does not preclude the bringing of third-party actions. People
v. Fiorini, 143 Ill. 2d 318 (1991).
Different from Counterclaims
a.
A counterclaim is an action brought by a named party against another existing
party to the action, and is governed by 735 ILCS 5/2-608; whereas a third-party
complaint is an action brought by an existing party against one or more new
parties, none of whom were parties to the original suit. People v. Fiorini, 143 Ill.
2d 318 (1991).
Any Defense Allowed
a.
Third party procedure authorizes the third party defendant to assert any defense it
has to the third party's or original plaintiff's claims. Byron v. Village of Lyons,
148 Ill. App. 3d 1057 (1st Dist. 1986).
Discretionary Nature
a.
Joinder of parties under subsection (a) appears to be discretionary. Safeco Ins.
Co. v. Treinis, 238 Ill. App. 3d 541 (1st Dist. 1992).
b.
The question of allowing a third-party complaint for contribution is clearly
addressed to the broad discretion of the trial court. Winter v. Henry Serv. Co., 143
Ill. 2d 289 (1991).
c.
All the parties that have an interest in a suit should be joined to allow the court to
dispose of the entire controversy. 735 Ill. Comp. Stat. Ann. 5/2-406(a) (2000).
Argonaut Ins. Co. v. Safway Steel Prods., Inc., 355 Ill. App. 3d 1 (1st Dist. 2004).
Appellate Review
a.
The denial of a motion to file a third-party complaint will not be regarded as error
absent a manifest abuse of discretion. Winter v. Henry Serv. Co., 143 Ill. 2d 289
(1991).
Optional Nature
a.
A defendant entitled to bring a third-party indemnity claim has a choice of filing a
third party complaint against a party who may be liable to indemnify him as part
of the original action or of waiting until the original action is over and filing a
separate action for indemnity if he is found liable; thus a third party indemnity
claim can be filed before it accrues in order to facilitate resolution of all claims in
one action. Kerschner v. Weiss & Co., 282 Ill. App. 3d 497 (1st Dist. 1996).
−14−
b.
A Third-party claim is the procedural device by which a defendant may bring an
additional party into a lawsuit. Third-party actions are premised on derivative
liability. In other words, the liability of the third-party defendant is premised on
the liability of the third-party plaintiff to the original plaintiff. Schulson v.
D’Ancona and Pflaum LLC, 354 Ill. App. 3d 572 (1st Dist. 2004).
Requirements of the Defendants
a.
With respect to the third-party claim, defendants were required to make a jury
demand upon filing their third-party complaint. Baldassari v. Chelsa Dev. Group,
Inc., 195 Ill. App. 3d 1073 (2d Dist. 1990).
b.
Obtaining leave of court to bring in an additional party is not a necessary
requirement for the circuit court to have jurisdiction over the proceeding against
that additional party. Ganci v. Blauvelt, 294 Ill. App. 3d 508 (4th Dist. 1998).
c.
A third-party complaint is governed by the same procedural requirements which
apply to other complaints or pleadings. Miller v. DeWitt, 59 Ill. App. 2d 38 (4th
Dist. 1965), rev'd on other grounds, 37 Ill. 2d 273 (1967).
d.
If third-party plaintiffs fail properly to assert a claim based either on the Joint
Tortfeasor Contribution Act (740 ILCS 100/0.01 et seq.) or a recognized method
for obtaining indemnification, then the third-party complaint must fail. People v.
Fiorini, 143 Ill. 2d 318 (1991).
e.
Under section 2-406, a defendant must file a third-party complaint “within the
time for filing his or her answer or thereafter by leave of court.” Thus, if a
defendant fails to file a third-party complaint with his or her answer, the
defendant must obtain permission to do so. Granting leave falls within the circuit
court’s discretion, and the appropriate avenue for challenging denial is file an
appeal, not to proceed with a separate action. Harshman v. DePhillips, 218 Ill.2d
482, 501 (2006).
5/2-407. Nonjoinder and misjoinder of parties - Change of parties
No action shall be dismissed for misjoinder of parties, or dismissed for nonjoinder of necessary
parties without first affording reasonable opportunity to add them as parties. New parties may be
added and parties misjoined may be dropped by order of the court, at any stage of the cause,
before or after judgment, as the ends of justice may require and on terms which the court may
fix.
PERTINENT CASE LAW
Discretion
−15−
a.
This section applies only to necessary parties and vests broad discretion in the
trial court to add new parties. Tomaso v. Plum Grove Bank, 130 Ill. App. 3d 18
(1st Dist. 1985).
b.
When intervention is asserted as a matter of right, as here, the trial court is limited
in its discretion to determining the timeliness of the application, inadequacy of
representation and the sufficiency of the applicant's position in the proceedings.
Citicorp Sav. v. First Chicago Trust Co., 269 Ill. App. 3d 293 (1st Dist. 1995).
c.
Pursuant to § 2-407 of the Illinois Code of Civil Procedure, 735 Ill. Comp. Stat.
5/2-407 (2000), new parties may be added and parties misjoined in an action may
be dropped by order of a court at any stage as the ends of justice require. BHI
Corp. v. Litgen Concrete Cutting & Coring Co., 346 Ill. App. 3d 300 (1st Dist.
2004).
All Necessary Parties Required
a.
It is error for a trial court to proceed to a final judgment without jurisdiction over
all necessary parties to the litigation, and any final order entered under such
circumstances would be null and void as to the nonjoined parties. In re Busse, 145
Ill. App. 3d 530 (1st Dist. 1986).
b.
Although the failure to join an indispensable party does not deprive the court of
jurisdiction over the parties properly before it, a court should not proceed to a
decision on the merits when an indispensable party is absent. City of Evanston v.
Regional Transp. Auth., 209 Ill. App. 3d 447 (1st Dist. 1991).
Proper Remedy
a.
Joinder problems are not grounds for dismissing the entire action or striking the
complaint, the proper remedy for misjoinder or failure to join a necessary party is
to dismiss as to the improper party or to order the missing party added. Horwath
v. Parker, 72 Ill. App. 3d 128 (1st Dist. 1979).
b.
Where necessary party is missing, proper remedy is to order the missing party to
be added. Village of Orland Park v. First Fed. Sav. & Loan Ass'n, 135 Ill. App.
3d 520 (1st Dist. 1985).
Grounds for Dismissal
a.
Trial court did not err in dismissing an action on the basis of nonjoinder of a
necessary party without affording plaintiffs an opportunity to add such party
because plaintiffs had conceded that he could not be joined and they were bound
by that position. Holzer v. Motorola Lighting, Inc., 295 Ill. App. 3d 963 (1st Dist.
−16−
1998).
b.
The nonjoinder of parties is not grounds for the dismissal of a complaint unless a
reasonable opportunity is provided to add them as parties. In re Busse, 145 Ill.
App. 3d 530 (1st Dist. 1986).
5/2-408. Intervention
(a) Upon timely application anyone shall be permitted as of right to intervene in an action: (1)
when a statute confers an unconditional right to intervene; or (2) when the representation of the
applicant's interest by existing parties is or may be inadequate and the applicant will or may be
bound by an order or judgment in the action; or (3) when the applicant is so situated as to be
adversely affected by a distribution or other disposition of property in the custody or subject to
the control or disposition of the court or a court officer.
(b) Upon timely application anyone may in the discretion of the court be permitted to intervene
in an action: (1) when a statute confers a conditional right to intervene; or (2) when an applicant's
claim or defense and the main action have a question of law or fact in common.
(c) In all cases involving the validity of a constitutional provision, statute or regulation of this
State and affecting the public interest, the State upon timely application may in the discretion of
the court be permitted to intervene.
(d) In all cases involving the validity of an ordinance or regulation of a municipality or
governmental subdivision of this State and affecting the public interest, the municipality or
governmental subdivision upon timely application may in the discretion of the court be permitted
to intervene.
(e) A person desiring to intervene shall present a petition setting forth the grounds for
intervention, accompanied by the initial pleading or motion which he or she proposes to file. In
cases in which the allowance of intervention is discretionary, the court shall consider whether the
intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
(f) An intervenor shall have all the rights of an original party, except that the court may in its
order allowing intervention, whether discretionary or a matter of right, provide that the applicant
shall be bound by orders or judgments, theretofore entered or by evidence theretofore received,
that the applicant shall not raise issues which might more properly have been raised at an earlier
stage of the proceeding, that the applicant shall not raise new issues or add new parties, or that in
other respects the applicant shall not interfere with the control of the litigation, as justice and the
avoidance of undue delay may require.
PERTINENT CASE LAW
Purpose and Application
a.
Although a purpose of this section is to liberalize the practice of intervention, it
−17−
must be examined on a case-by-case basis so that unduly disruptive proceedings
are not encouraged. People ex rel. Collins v. Burton, 282 Ill. App. 3d 649 (4th
Dist. 1996).
b.
The overall design of the intervention statute was to liberalize the practice of
intervention, and particularly to relax the requirement that the intervenor have a
"direct" interest in the action. In re Marriage of Perkinson, 147 Ill. App. 3d 692
(4th Dist. 1986).
c.
The purpose of 735 Ill. Comp. Stat. Ann. 5/2-408 (West 2000) is to liberalize the
practice of intervention so as to avoid, upon timely application, the relitigation of
issues in a second suit which were being litigated in a pending action. Although a
party need not have a direct interest in the pending suit, it must have an interest
greater than that of the general public, so that the party may stand to gain or lose
by the direct legal operation and effect of a judgment in the suit. The decision to
allow or deny intervention, whether permissively or as of right, is a matter of
sound judicial discretion that will not be reversed absent an abuse of that
discretion. People ex rel. Birkett v. City of Chicago, 202 Ill. 2d 36 (2002).
Interest Required
a.
An intervenor only needs to show an injury to an enforceable right or interest
which is more than a general interest in the subject matter of the suit. Richter v.
Standard Mut. Ins. Co., 279 Ill. App. 3d 501 (5th Dist. 1996).
b.
The right to intervene is not unqualified and in determining whether to grant a
petition to intervene as of right, a trial court must consider whether the petition to
intervene is timely, whether the petitioner's interest is sufficient, and whether that
interest is being adequately represented by someone else in the lawsuit; in
addition, all of the provisions of the intervention statute must be met. Soyland
Power Coop. v. Illinois Power Co., 213 Ill. App. 3d 916 (4th Dist. 1991).
Modeled After the Federal Rule
a.
This section is modeled after Rule 24(b) F.R.Civ.P. Maiter v. Chicago Bd. of
Educ., 82 Ill. 2d 373 (1980).
Supplemental Nature
a.
Intervention is not an independent proceeding, but is an ancillary and
supplemental one which must be in subordination to the main proceeding.
Ackmann v. Clayton, 39 Ill. App. 3d 1013 (5th Dist. 1976).
Allowed After Judgment
−18−
a.
Intervention, though usually allowed only before judgment, would be granted
after judgment where it was the only way to protect the rights of the intervenor,
indeed, leave to intervene has been granted even after a decree and appeal where
the intervenor's rights were not prejudiced until that time. Wheeling Trust & Sav.
Bank v. Village of Mount Prospect, 29 Ill. App. 3d 539 (1st Dist. 1975).
b.
Where intervention is permitted after the entry of a final order, the time limit
consistently established is that the time for the notice of appeal must not yet have
run. Avery v. Moseley, 19 Ill. App. 3d 1001 (1st Dist. 1974).
c.
Post-judgment intervention is limited to those situations where it is the only way
of protecting the rights of the intervenor; petitioner must make a strong showing
before such intervention will be allowed. Anderson v. Grand Bahama Dev. Co.,
138 Ill. App. 3d 272 (1st Dist. 1985).
Procedural Requirements
a.
Although subsection (e) of this section requires that the party in question file a
petition in the court, intervention may be accomplished by oral motion and a
subsequent filing of an answer setting up their interests. W. H. Lyman Constr. Co.
v. Village of Gurnee, 131 Ill. App. 3d 87 (2d Dist. 1985); In re Arrington, 146 Ill.
App. 3d 121 (1st Dist. 1986).
b.
Where plaintiff did not object in the trial court to insurer's motion to intervene or
the granting thereof, plaintiff waived any argument on insurer's failure to comply
with the procedural requirements of this section. Jorgensen v. Whiteside, 263 Ill.
App. 3d 998 (1st Dist. 1994).
Liberally Allowed
a.
Intervention should be allowed as a matter of right once the court has considered
issues of timeliness, inadequacy of representation and sufficiency of interest. In
re Marriage of Hartian, 172 Ill. App. 3d 440 (1st Dist. 1988).
b.
735 ILCS 5/2-408 liberally allows the practice of intervention so as to avoid the
unnecessary relitigation of issues in a second suit; although a party need not have
a direct interest in the pending suit, it must have an interest greater than that of the
general public, so that the party may stand to gain or lose by the direct legal
operation and effect of a judgment in the suit. In re Estate of K.E.S., 347 Ill. App.
3d 452 (4th Dist. 2004).
Court’s Discretion
a.
The determination of whether a petition for leave to intervene is timely is left
−19−
largely within the sound discretion of the trial court. Bouhl v. Gross, 133 Ill. App.
3d 6 (4th Dist. 1985); Schwechter v. Schwechter, 138 Ill. App. 3d 602 (2d Dist.
1985); Anderson v. Grand Bahama Dev. Co., 138 Ill. App. 3d 272 (1st Dist.
1985); Chicago Title & Trust Co. v. Village of Mount Prospect, 160 Ill. App. 3d
851 (1st Dist. 1987).
b.
In the exercise of discretion in determining whether an application to intervene as
a plaintiff is timely, it is necessary that consideration be given not only to the
claims of the prospective plaintiff, but also fair consideration should be given to
the interests of defendant. County of Cook v. Triangle Sign Co., 40 Ill. App. 2d
202 (1st Dist. 1963); Osman v. Osman, 130 Ill. App. 2d 830 (5th Dist. 1970);
Moore v. McDaniel, 48 Ill. App. 3d 152 (5th Dist. 1977); Chicago Title & Trust
Co. v. Village of Mount Prospect, 160 Ill. App. 3d 851 (1st Dist. 1987).
5/2-409. Interpleader
Persons having claims against the plaintiff arising out of the same or related subject matter may
be joined as defendants and required to interplead when their claims may expose plaintiff to
double or multiple liability. It is not a ground for objection to interpleader that the claims of the
several claimants or the titles upon which their claims depend do not have a common origin or
are not identical, or are adverse to or independent of one another, or that the plaintiff avers that
he or she is not liable in whole or in part to any of or all the claimants. A defendant under
similar circumstances may obtain like relief by counterclaim. The provisions hereof are not a
limitation upon the joinder of parties or causes of action.
PERTINENT CASE LAW
Purpose
a.
The purpose of this section is to avoid exposing a stakeholder to multiple liability.
Franklin v. Anna Nat'l Bank, 115 Ill. App. 3d 149 (5th Dist. 1983).
b.
Where competing claims are made for a fund and where those adverse claims may
expose the holder of the fund to double liability, this section provides for the
remedy of interpleader to relieve the stakeholder of the burden and peril of
weighing the relative merits of the claims. In re Estate of Szorek, 194 Ill. App. 3d
750 (1st Dist. 1989).
c.
The purpose of an interpleader action is to permit a neutral stakeholder to seek a
judicial determination of the rights to a specific fund of money where there are
conflicting or disputed claims to that fund. The stakeholder is not required to
make a determination as to the rights of the prospective claimants, but, rather,
may deposit the contested funds with the court to avoid acting at his own peril and
exposing himself to liability. Kovits Shifrin Nesbit, P.C. v. Rossiello, 392 Ill.
App. 3d 1059, 1066 (1st Dist. 2009).
−20−
Procedure
a.
In interpleader cases, the trial court should first determine whether the
interpleader is rightfully in court, and then should conduct a hearing with respect
to the rights of the various claimants. Steinberg's Dep't Store, Inc. v. Hartford
Fire Ins. Co., 85 Ill. App. 3d 424 (3rd Dist. 1980).
b.
Section 2-409 of the Code does not establish the procedure by which a defendant
in interpleader may assert his claim to a disputed fund. However, where a
defendant in interpleader asserts its right to the fund in an answer or counterclaim,
but asserts no affirmative defense or separate cause of action against another
party, then the claim contained in the answer or counterclaim is sufficient. Kovits
Shifrin Nesbit, P.C. v. Rossiello, 392 Ill. App. 3d 1059, 1066 (1st Dist. 2009).
Requirements
a.
In evaluating the interpleader complaint, it should be noted that a stakeholder is
not required to allege that the adverse claims are utterly baseless, but rather all
that is required is that the stakeholder must be in good faith when asserting that
adverse claims have been presented to him. Steinberg's Dep't Store, Inc. v.
Hartford Fire Ins. Co., 85 Ill. App. 3d 424 (3rd Dist. 1980).
Insurer’s Interpleader
a.
An insurer’s 2-409 interpleader action does not relieve if of the duty to defend, as
it is not required to allege that the adverse claims are utterly baseless, but rather
all that is required is that the stakeholder must be in good faith when asserting that
adverse claims have been presented to him. Steinberg’s Dep’t Store, Inc. v.
Hartford Ins. Co., 85 Ill. App. 3d 424 (3rd Dist. 1980).
5/2-410. Actions against joint debtors or partners
All parties to a joint obligation, including a partnership obligation, may be sued jointly, or
separate actions may be brought against one or more of them. A judgment against fewer than all
the parties to a joint or partnership obligation does not bar an action against those not included in
the judgment or not sued. Nothing herein permits more than one satisfaction.
PERTINENT CASE LAW
Right of Setoff
a.
A bank is not entitled to exercise its right of setoff against an individual partner's
deposit for a partnership debt, although partnership debts are deemed joint and
severable. First Nat'l Bank v. Lewis, 186 Ill. App. 3d 16 (1st Dist. 1989).
−21−
Specific Application
a.
This section refers to joint debtors and partnership obligations, and not to a joint
and several claim in tort. Handley v. Unarco Indus., Inc., 124 Ill. App. 3d 56 (4th
Dist. 1984).
Joint and Several Liability
a.
This section implements the rule that all joint obligations are also declared to be
joint and several obligations, and changes the doctrine of merger insofar as it
formerly applied to actions in contract. Handley v. Unarco Indus., Inc., 124 Ill.
App. 3d 56 (4th Dist. 1984).
i.
b.
Thus, this statute changes the common law rule that taking a judgment
against one of the joint obligors of a contract merged the cause of action
into the judgment and acted to bar a subsequent suit against another party
also alleged to be jointly liable. Id.
Where record indicated defendant had been a partner in a restaurant business, he
was liable for debts of partnership, where other partner's liability had been
discharged in bankruptcy proceeding, and bankruptcy court did not determine
liability for the debt of any other party. Eastern Seafood Co. v. Barone, 252 Ill.
App. 3d 871 (1st Dist. 1993).
5/2-411. Actions by or against partnerships
(a) A partnership may sue or be sued in the names of the partners as individuals doing business
as the partnership, or in the firm name, or both.
(b) An unsatisfied judgment against a partnership in its firm name does not bar an action to
enforce the individual liability of any partner.
PERTINENT CASE LAW
Supplementary Proceedings
a.
A supplementary proceeding to collect a judgment does not constitute an action
within the meaning of this subsection. Therefore, an unsatisfied judgment against
a partnership, in the partnership name, may not be enforced against individual
partners in a supplementary proceeding. Johnson v. St. Therese Medical Ctr., 296
Ill. App. 3d 341 (2d Dist. 1998).
Jurisdiction and Procedure
a.
Although Illinois law permits partnerships to be sued in their firm names, thus
−22−
giving partial recognition to the "entity" theory of the partnership, for federal
jurisdictional purposes the relevant citizenship is that of all partners and not of the
partnership entity. Dragon v. Wolline, 856 F. Supp. 456 (N.D. Ill. 1994).
b.
This section offers the procedural choice of suing a partnership in its firm name or
suing the individual partners. Felicia Ltd. v. Gulf Am. Barge, Ltd., 555 F. Supp.
801 (N.D. Ill. 1983).
5/2-412. Saving clause as to change of parties
No change in parties, made by order of court or otherwise, impairs any previous attachment of
the estate or body of any person remaining a defendant in the action, or bonds or recognizances
of any person remaining a party, either as against such person or his or her sureties, or receipts to
an officer for property attached; and, when parties are changed, the court may order new bonds if
new bonds are necessary.
5/2-413. Unknown parties
If in any action there are persons interested therein whose names are unknown, it shall be lawful
to make them parties to the action by the name and description of unknown owners, or unknown
heirs or legatees of any deceased person, who may have been interested in the subject matter of
the action previous to his or her death; but an affidavit shall be filed by the party desiring to
make those persons parties stating that their names are unknown. Process may then issue and
publication may be had against those persons by the name and description so given, and
judgments entered in respect to them shall be of the same effect as though they had been
designated by their proper names. If there has been a person who may have been interested in
the action, and upon diligent inquiry it cannot be ascertained whether the person is living or
dead, it shall be lawful to make those persons who would be his or her heirs and legatees parties
defendant as unknown owners, the same as if he or she were known to be dead, but in all those
cases an affidavit shall be filed by the party desiring to make any unknown persons who would
be the heirs or legatees of the person not known to be living or dead parties, stating that upon due
and diligent inquiry it cannot be ascertained whether or not the person is living or dead and
further stating that the names of the persons who would be his or her heirs or legatees are
unknown. Process may then issue and publication may be had against all parties by the name
and description of unknown owners, and judgments entered in respect to the unknown parties
shall be of the same effect as though they had been designated by their proper names. Only one
affidavit is necessary under the provisions of this section for the purpose of making persons
described herein parties to the action.
PERTINENT CASE LAW
Purpose
−23−
a.
Purpose of 735 ILCS 5/2-413 is to give notice and afford an opportunity to all
persons claiming an interest to appear and be heard in defense of their claims
before being deprived of them. Wellington v. Heermans, 110 Ill. 564 (1884).
Definition
a.
If tenants in possession are not necessary parties and they are not non-record
claimants, they must perforce be considered unknown owners, who, under 735
ILCS 5/15-1501(c) may be made a party in accordance with 735 ILCS 5/2-413.
Applegate Apts. Ltd. Partnership v. Commercial Coin Laundry Sys., 276 Ill. App.
3d 433 (1st Dist. 1995).
b.
Section 735 ILCS 5/1221 provides that "unknown owner" means the same as
"unknown owner" as used in section 2-413 of the Code. Applegate Apts. Ltd.
Partnership v. Commercial Coin Laundry Sys., 276 Ill. App. 3d 433 (1st Dist.
1995).
Due Diligence Required
a.
The record established, as a matter of law, that the plaintiff did not exercise due
diligence in attempting to ascertain the identity of the defendant tenant in
possession; and the plaintiff failed to establish, as a matter of law, that the
plaintiff did not know of the interest of the defendant tenant in possession.
Applegate Apts. Ltd. Partnership v. Commercial Coin Laundry Sys., 276 Ill. App.
3d 433 (1st Dist. 1995).
b.
An honest and well-directed effort must be made to ascertain the names and
addresses of unknown parties; the inquiry must be as full as the circumstances of
the particular situation will permit. Romain v. Lambros, 12 Ill. App. 2d 64 (1st
Dist. 1956).
PERTINENT STATUTE
735 ILCS 5/15-1501(c)
(c) Unknown Owners. Any unknown owner may be made a party in accordance with Section
2-413 of the Code of Civil Procedure [735 ILCS 5/2-413].
5/2-414. Joint or consolidated affidavits - validation of judgments
(a) If in any action or proceeding the affidavits required by Section 2-206 and Section 2-413 of
this Act [735 ILCS 5/2-206 and 735 ILCS 5/2-413] are joined and submitted as a single affidavit,
or as two affidavits on one sheet, the fact of joinder or of consolidation of the two affidavits into
one shall not deprive the court of the jurisdiction it would have had if the affidavits had been
−24−
filed as two distinct affidavits; however, the facts with reference to the nonresident defendants
required by Section 2-206 of this Act [735 ILCS 5/2-206], and the facts relative to the unknown
parties required by Section 2-413 of this Act [735 ILCS 5/2-413], are otherwise correctly set
forth and properly related in the one affidavit.
(b) Any judgment heretofore entered by the court based upon joint affidavits or a consolidated
affidavit which is regular in other respects is validated as though the affidavits were separate and
distinct.
5/2-415. Appointment of and actions against receivers
(a) Before any receiver shall be appointed the party making the application shall give bond to
the adverse party in such penalty as the court may order and with security to be approved by the
court conditioned to pay all damages including reasonable attorney's fees sustained by reason of
the appointment and acts of such receiver, in case the appointment of such receiver is revoked or
set aside. Bond need not be required, when for good cause shown, and upon notice and full
hearing, the court is of the opinion that a receiver ought to be appointed without such bond.
(b) On an application for the appointment of a receiver, the court may, in lieu of appointing a
receiver, permit the party in possession to retain such possession upon giving bond with such
penalty and with such security and upon such condition as the court may order and approve; and
the court may remove a receiver and restore the property to the possession of the party from
whom it was taken upon the giving of a like bond.
(c) Every receiver of any property appointed by any court of this State may be sued in respect of
any act or transaction of the receiver in carrying on the business connected with the property,
without the previous leave of the court in which the receiver was appointed; but the action shall
be subject to the jurisdiction of the court in which the receiver was appointed, so far as the same
is necessary to the ends of justice.
PERTINENT CASE LAW
Discretionary Nature
a.
While appointment of a receiver is within the discretion of the trial court, it is an
extraordinary and drastic remedy which is in derogation of the fundamental rights
of the owner to possession of his property. Kennedy v. Miller, 174 Ill. App. 3d 48
(2d Dist. 1988).
Requirements
a.
The power to appoint a receiver should be exercised only when the court is
satisfied that receivership is necessary to circumvent the imminent danger of loss.
Kennedy v. Miller, 174 Ill. App. 3d 48 (2d Dist. 1988).
b.
The requirements for appointment of a receiver are that the applicant must show
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that he has a clear right to the property itself or has some lien upon it, or that the
property constitutes a special fund to which he has a right to resort for the
satisfaction of his claim, and that the possession of the property by the defendant
was obtained by fraud, or that the property itself, or the income arising from it, is
in danger of loss from neglect, waste, misconduct or insolvency. Kennedy v.
Miller, 174 Ill. App. 3d 48 (2d Dist. 1988).
Bond
a.
735 Ill. Comp. Stat. Ann. 5/2-415(a) (1992) of the Code of Civil Procedure directs
a party seeking the appointment of a receiver to give a bond and that the bond can
only be waived by the court upon notice and a full hearing. Witters v. Hicks, 338
Ill. App. 3d 751 (5th Dist. 2003).
5/2-416. Representation of corporations in small claims
A corporation may prosecute as plaintiff or defend as defendant any small claims proceeding in
any court of this State through any officer, director, manager, department manager or supervisor
of the corporation, as though such corporation were appearing in its proper person.
No corporation may appear as assignee or subrogee in a small claims proceeding.
For the purposes of this Section, the term "officer" means the president, vice-president,
registered agent or other person vested with the responsibility of managing the affairs of the
corporation, and "small claims proceeding" means a civil action based on either tort or contract
for money not in excess of $ 2,500, exclusive of interests and costs, or for collection of taxes not
in excess of that amount.
PERTINENT CASE LAW
Supreme Court Rule 282 (b) Prevails
a.
Rule 282(b), Supreme Court Rules, which requires corporations to appear in small
claims court through counsel, prevails over 735 ILCS 5/2-416, which allows
corporations to appear pro se in small claims court. Adair Architects, Inc. v.
Bruggeman, 346 Ill. App. 3d 523 (3rd Dist. 2004).
Municipal Corporations
a.
A village trustee who is not a licensed attorney can represent a municipal
corporation in a small claim proceeding where the amount of the claim is the sum
of $2,500. Woerner v. Seneca Petro., Inc., 175 Ill. App. 3d 329 (3rd Dist. 1988).
Purpose
a.
The Illinois Code of Civil Procedure permits a corporation to appear pro se: "a
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corporation may prosecute as plaintiff or defend as defendant any small claims
proceeding in any court of this State through any officer as though the corporation
were appearing in its proper person." 735 ILCS 5/2-416 (2003). Adair Architects,
Inc. v. Bruggeman, 346 Ill. App. 3d 523 (3rd Dist. 2004).
5/2-417. Actions under Illinois Educational Labor Relations Act
Whenever the Illinois Educational Labor Relations Board commences an action under subsection
(b) of Section 16 of the Illinois Educational Labor Relations Act [115 ILCS 5/16] seeking to
enforce a final order of the Board or alleging a violation of a final order, such action shall be
commenced by petition filed in the name of the people of the State of Illinois as Petitioner and
any persons charged with alleged violation of such final order shall be designated Respondents.
Persons charged with alleged violation of such final order may not raise as defenses in such
action any matters that such persons could have raised by initiating judicial review of such final
order in accordance with subsection (a) of Section 16 of the Illinois Educational Labor Relations
Act [115 ILCS 5/16] and Section 3-104 of the Administrative Review Law [735 ILCS 5/3-104].
II. Amended Complaints
The goal of complaints is to articulate as clearly as possible the legal bases for the cause
of action, the facts of the occurrence, and the identity of the parties involved in the occurrence.
Amendments serve to further clarify these issues as discovery and investigation lead to a
delineation of the matters at issue in a particular case. It should be noted that Illinois is a fact
pleading jurisdiction. A complaint must allege sufficient facts to bring plaintiff's claim for a
remedy within the scope of a legally recognized cause of action. The burden is heavier on a
pleader in a fact pleading jurisdiction. Under Illinois' standard, the pleader is required to set out
ultimate facts that support his or her cause of action; notice pleading, conclusions of law, and
conclusions of fact are insufficient. See Johnson v. Matrix Fin. Servs. Corp., 354 Ill. App. 3d
684 (1st Dist. 2004).
§ 735 ILCS 5/2-616. Amendments
(a) At any time before final judgment amendments may be allowed on just and reasonable
terms, introducing any party who ought to have been joined as plaintiff or defendant, dismissing
any party, changing the cause of action or defense or adding new causes of action or defenses,
and in any matter, either of form or substance, in any process, pleading, bill of particulars or
proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be
brought or the defendant to make a defense or assert a cross claim.
(b) The cause of action, cross claim or defense set up in any amended pleading shall not be
barred by lapse of time under any statute or contract prescribing or limiting the time within
which an action may be brought or right asserted, if the time prescribed or limited had not
expired when the original pleading was filed, and if it shall appear from the original and
amended pleadings that the cause of action asserted, or the defense or cross claim interposed in
the amended pleading grew out of the same transaction or occurrence set up in the original
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pleading, even though the original pleading was defective in that it failed to allege the
performance of some act or the existence of some fact or some other matter which is a necessary
condition precedent to the right of recovery or defense asserted, if the condition precedent has in
fact been performed, and for the purpose of preserving the cause of action, cross claim or defense
set up in the amended pleading, and for that purpose only, an amendment to any pleading shall
be held to relate back to the date of the filing of the original pleading so amended.
1.
2.
Original pleading MUST be timely filed in the first place
Amendment must grow out of the same transaction or occurrence
which set up the original complaint
(c) A pleading may be amended at any time, before or after judgment, to conform the pleadings
to the proofs, upon terms as to costs and continuance that may be just.
(d) A cause of action against a person not originally named a defendant is not barred by lapse of
time under any statute or contract prescribing or limiting the time within which an action may be
brought or right asserted, if all the following terms and conditions are met: (1) the time
prescribed or limited had not expired when the original action was commenced; (2) the person,
within the time that the action might have been brought or the right asserted against him or her
plus the time for service permitted under Supreme Court Rule 103(b), received such notice of the
commencement of the action that the person will not be prejudiced in maintaining a defense on
the merits and knew or should have known that, but for a mistake concerning the identity of the
proper party, the action would have been brought against him or her; and (3) it appears from the
original and amended pleadings that the cause of action asserted in the amended pleading grew
out of the same transaction or occurrence set up in the original pleading, even though the original
pleading was defective in that it failed to allege the performance of some act or the existence of
some fact or some other matter which is a necessary condition precedent to the right of recovery
when the condition precedent has in fact been performed, and even though the person was not
named originally as a defendant. For the purpose of preserving the cause of action under those
conditions, an amendment adding the person as a defendant relates back to the date of the filing
of the original pleading so amended.
Relation Back: Realize wrong defendant named and Statute of Limitations passed
(1) Statute of Limitations does not expire when original action commenced
(2) Person added after the statute of limitations - received such notice of the
commencement of the action that he/she will no be prejudiced in maintaining a
defense on the merits and knew or should have known that ‘but for’ the mistake,
re: identity of the proper party, the action would have been brought against him.
(3) Cause of action in amended Complaint at Law grew out of same transaction or
occurrence set up in original pleading.

“grown out of” = if original complaint provided defendant with all
of the necessary information to prepare his defense to the
subsequently asserted claim
(e) A cause of action against a beneficiary of a land trust not originally named a defendant is not
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barred by lapse of time under any statute or contract prescribing or limiting the time within
which an action may be brought or right asserted, if all the following terms and conditions are
met: (1) the cause of action arises from the ownership, use or possession of real estate, record
title whereto is held by a land trustee; (2) the time prescribed or limited had not expired when the
original action was commenced; (3) the land trustee of record is named as a defendant; and (4)
the plaintiff proceeds with reasonable diligence subsequent to the commencement of the action
to serve process upon the land trustee, to determine the identity of the beneficiary, and to amend
the complaint to name the beneficiary as a defendant.
(f) The changes made by this amendatory Act of the 92d General Assembly [P.A. 92-116] apply
to all complaints filed on or after the effective date of this amendatory Act, and to complaints
filed before the effective date of this amendatory Act if the limitation period has not ended
before the effective date.
PERTINENT SUPREME COURT RULE
Supreme Court Rule 218(a)(3). Pretrial Procedure.
(a) Initial Case Management Conference. Except as provided by local circuit court rule, which
on petition of the chief judge of the circuit has been approved by the Supreme Court, the court
shall hold a case management conference within 35 days after the parties are at issue and in no
event more than 182 days following the filing of the complaint. At the conference counsel
familiar with the case and authorized to act shall appear and the following shall be considered:
(1) the nature, issues, and complexity of the case;
(2) the simplification of the issues;
(3) amendments to the pleadings;
PERTINENT CASE LAW
Duty to Update Pleadings
a.
An attorney has a continuing duty of inquiry throughout the pendency of
litigation. Nissenson v. Bradley, 316 Ill. App. 3d 1035 (1st Dist. 2000).
b.
"Rule 137 does not require counsel to amend or withdraw a paper or pleading if
he discovers, after signing, that it is unfounded. An attorney need not revise the
pleadings to conform with newly discovered information." Walsh v. Capital
Eng’g & Mfg. Co., 312 Ill. App. 3d 910 (1st Dist. 2000), citing Chicago Title &
Trust Co. v. Anderson, 177 Ill. App. 3d 615, 626 (1st Dist. 1988).
However:
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c.
"Counsel cannot simply remain silent when faced with newly discovered
information, file additional papers with the court that do not reveal the more
recent discoveries, and by such silence allow court and opposing counsel to draw
erroneous conclusions or proceed on improper assumptions. Instead, once it
appears that the prior factual allegation is in error, this must be brought
forthrightly to the attention of court and opposing counsel, at the least in the next
available court filing." Chicago Title, 177 Ill. App. 3d at 626-27 (1st Dist. 1988);
Nissenson v. Bradley, 316 Ill. App. 3d 1035 (1st Dist. 2000).
Directory Nature
a.
The provisions of the statute are directory, rather than mandatory, and may be
forfeited. Bank One v. Roscetti, 309 Ill. App. 3d 1048 (4th Dist. 1999).
Liberal Construction
a.
Subsection (b) is to be liberally construed so that controversies can be determined
according to the substantive rights of the parties. Doherty v. Cummins-Allison
Corp., 256 Ill. App. 3d 624 (1st Dist. 1993).
b.
Courts have been liberal in permitting amendments of pleadings. O'Neill v.
Chicago Transit Auth., 5 Ill. App. 3d 69 (1st Dist. 1972).
c.
At any time before final judgment, amendments may be allowed on just and
reasonable terms changing the defense or adding defenses. Haffa v. Haffa, 115
Ill. App. 2d 467 (1st Dist. 1969).
d.
The Supreme Court of Illinois has recognized that a liberal construction of the
requirements of 735 Ill. Comp. Stat. Ann. 5/2-616(b) (2000) is necessary in order
to allow the resolution of litigation on the merits and to avoid elevating questions
of form over substance. Chandler v. Ill. Cent. R.R., 207 Ill. 2d 331 (2003).
No Absolute Right
a.
Although this section provides that pleadings may be amended at anytime prior to
trial, it is well settled that parties do not have an absolute right to amend. Intini v.
Schwartz, 78 Ill. App. 3d 575 (1st Dist. 1979).
b.
Parties do not have an absolute and unlimited right to amend. Hastings v.
Abernathy Taxi Ass'n, 16 Ill. App. 3d 671 (1st Dist. 1973).
c.
Parties do not have an absolute right to amend their pleadings; amendments are
only permitted at the trial court's discretion. Ennis v. State Bank, 111 Ill. App. 2d
71 (4th Dist. 1969).
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d.
In Illinois, courts are encouraged to freely and liberally allow the amendment of
pleadings. Notwithstanding that liberal policy, a party’s right to amend is not
absolute and unlimited. Among the factors to be considered in determining
whether or not to permit an amendment to the pleadings are whether the
amendment would cure a defect in the pleadings; whether the other party would
be prejudiced or surprised by the proposed amendment; timeliness of the
proposed amendment; and whether there were previous opportunities to amend
the pleadings. Of course, if the amendment would not have cured a defect in the
pleading, the other factors are superfluous. Cooney v. Magnabosco, 407 Ill. App.
3d 264 (1st Dist. 2011).
Condition Precedent
a.
Former section 46 of the Civil Practice Act (see now this section) permitted an
injured party to have his day in court, without being limited by technicalities of
pleadings, but it was incumbent upon the plaintiff to first prove a cause of action
before liberality of the Civil Practice Act could be applied. Phelps v. Williams,
132 Ill.App.2d 212 (2d Dist. 1971).
Statute of Limitations
a.
This section sets forth the limited situations in which compliance with the statute
of limitations may be excused. Moore v. Jewel Tea Co., 116 Ill. App. 2d 109 (1st
Dist. 1969).
b.
Subsection (b) strikes a balance whereby an amended pleading is deemed to have
grown out of the original complaint if the latter provided defendant with all of the
necessary information to prepare his defense to the subsequently asserted claim.
Doherty v. Cummins-Allison Corp., 256 Ill. App. 3d 624 (1st Dist. 1993).
Amendment After Judgment
a.
A complaint or answer can be amended after judgment only to conform them to
the proof. People ex rel Gustafson v. City of Calumet City, 101 Ill. App. 2d 8 (1st
Dist. 1968).
b.
Plaintiff could not rely on this section to amend his complaint, to add a defendant,
after judgment was entered. Gomez v. Vitino's Pizza, 192 Ill. App. 3d 1046 (1st
Dist. 1989).
c.
A motion to amend under section 2-616(c) is improper where, after judgment, the
moving party seeks to add claims or causes of action that were available at the
time of the original complaint. Mandel v. Hernandez, 404 Ill. App. 3d 701, 708
(1st Dist. 2010).
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d.
Courts consider certain factors in determining whether a court properly ruled on a
motion to amend, such as whether the amendment would cure the defective
pleading, whether it would cause prejudice to other parties, and whether it is
timely. However, those factors are not applicable to motions to amend filed after
judgment. Hassan v. Yusuf, 408 Ill. App. 3d 327 (1st Dist. 2011).
III. Relation Back Doctrine
Relation Back Doctrine is based off of the statute on Amendments, § 735 ILCS 5/2-616,
and case law analyzing amendments which directly or indirectly invoke the Doctrine. It is
important to ensure that any amendments relate back to the same occurrence or set of facts as the
original pleading. In order to avoid any relevant statutes of limitation, any mistake in the
original pleading must be one of fact, not of law.
735 ILCS 5/2-616
(d) A cause of action against a person not originally named a defendant is not barred by lapse of
time under any statute or contract prescribing or limiting the time within which an action may be
brought or right asserted, if all the following terms and conditions are met: (1) the time
prescribed or limited had not expired when the original action was commenced; (2) the person,
within the time that the action might have been brought or the right asserted against him or her
plus the time for service permitted under Supreme Court Rule 103(b), received such notice of the
commencement of the action that the person will not be prejudiced in maintaining a defense on
the merits and knew or should have known that, but for a mistake concerning the identity of the
proper party, the action would have been brought against him or her; and (3) it appears from the
original and amended pleadings that the cause of action asserted in the amended pleading grew
out of the same transaction or occurrence set up in the original pleading, even though the original
pleading was defective in that it failed to allege the performance of some act or the existence of
some fact or some other matter which is a necessary condition precedent to the right of recovery
when the condition precedent has in fact been performed, and even though the person was not
named originally as a defendant. For the purpose of preserving the cause of action under those
conditions, an amendment adding the person as a defendant relates back to the date of the filing
of the original pleading so amended.
Purpose
a.
Section 2-616 governs amendments to pleadings filed after the statute of
limitations period has expired. The purpose of §2-616(b) is to insure fairness to
litigants rather than to unduly enhance the technical considerations of common
law pleadings. In re Wolff, 355 Ill. App. 3d 403, 408 (2d Dist. 2005).
b.
In providing a relation back provision under subsection (b) as an exception to the
generally applicable statute of limitations for personal injury actions, the
legislature struck a balance between a preference for resolving disputes on their
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merits and preventing surprise or prejudice to a party resulting from a lack of
notice of the conduct or condition upon which liability is asserted against him; the
purpose of the "same transaction or occurrence" rule is to insure that this notice
has been communicated within the statutory. Yette v. Casey's Gen. Stores, Inc.,
263 Ill. App. 3d 422 (4th Dist. 1994).
c.
735 Ill. Comp. Stat. 5/2-616(d) was designed to afford relief to the plaintiff who,
after the limitations period has expired, realizes that he has named the wrong
defendant. 735 Ill. Comp. Stat. 5/2-616(d). In such instances of mistaken identity,
735 Ill. Comp. Stat. 5/2-616(d) provides that a statute of limitations will not bar
the action as long as the plaintiff can meet all five of the statutory requirements.
Morton v. Madison County Nursing Home Aux., 198 Ill. 2d 183 (2001).
d.
The purpose of the relation-back doctrine of section 2-616(d) is to preserve causes
of action against loss by reason of technical default unrelated to the merits.
Courts should therefore liberally construe the requirements of section 2-616(d) to
allow resolution of litigation on the merits and to avoid elevating questions of
form over substance. Porter v. Decatur Mem. Hosp., 227 Ill. 2d 343, 355 (2008).
Required Relationship
a.
There can be no relation of an amended complaint back to an original complaint
without an agency, partnership, or trust relationship between the original and
substituted defendants. Gulley v. Fountalas, 153 Ill. App. 3d 100 (1st Dist. 1987).
All Requirements Must be Satisfied
a.
In order for the addition of a defendant to relate back prior to the passage of a
limitation period, all of the requirements of subsection (d) must be met. Osty v.
M.R.V.S., Inc., 282 Ill. App. 3d 834 (1st Dist. 1996).
b.
All of the requirements of subsection (d) must be satisfied for a plaintiff to add a
defendant after the statute of limitations has expired, and even if only one of the
requisite elements of subsection (d) is not met, the amended complaint cannot
relate back. Plooy v. Paryani, 275 Ill. App. 3d 1074 (1st Dist. 1995).
c.
While amendments are liberally allowed, an amended pleading is still subject to
attack via a motion to dismiss, and where plaintiff could not satisfy each and
every prong of subsection (d) of this section, Illinois law does not entitle plaintiff
to have her claims against Caterpillar relate back to her personal injury claim.
Buie v. Woolway, 2000 U.S. Dist. LEXIS 6183, 2000 WL 528645 (N.D. Ill.
2000).
d.
Pursuant to section 2-616(b), a new cause of action alleged in an amended
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complaint, filed after the applicable limitations period has expired, will relate
back to the filing of the original complaint only if: (1) the original pleading was
timely filed; and (2) the original and amended pleadings indicate that the cause of
action asserted in the amended pleading grew out of the same transaction or
occurrence set up in the original pleading. 735 ILCS 5/2-616(b) (West 2000).
Clemons v. Mech. Devices Co., 202 Ill. 2d 344 (2002).
e.
All of the requirements of subsection (d) must be satisfied for a plaintiff to add a
defendant after the statute of limitations period has expired, and even if only one
of the requisite elements of subsection (d) is not met, the amended complaint
cannot relate back. Webb v. Ambulance Serv. Corp., 262 Ill. App. 3d 1039 (1st
Dist. 1994).
Appellate Review
a.
In order to determine whether the trial court has abused its discretion, four factors
are considered: (1) whether the proposed amendment would cure the defective
pleading, (2) whether other parties would sustain prejudice or surprise by virtue of
the proposed amendment, (3) whether the proposed amendment is timely, and (4)
whether previous opportunities to amend the pleading could be identified. Loyola
Academy v. S & S Roof Maintenance, Inc., 146 Ill. 2d 263 (1992).
b.
Trial court abused its discretion by allowing plaintiffs who were injured in an
automobile accident to amend their complaint by adding a claim for negligent
infliction of emotional distress after judgment because defendants had no
opportunity to address the claim before or at trial. Thornton v. Garcini, 237 Ill.
2d 100 (2009).
c.
Where it was not disputed that plaintiff's original complaint was timely filed or
that the cause of action alleged in the amended complaint arose out of the same
occurrence as that in the original pleading and defendant was not prejudiced by
the amendment, the court erred in dismissing the amended complaint as untimely;
the amended complaint related back to the filing of the timely filed original
complaint. Jablonski v. Rothe, 287 Ill. App. 3d 752 (2d Dist. 1997).
Ignorance of the Law not Allowed
a.
Plaintiff's failure to name county state's attorney as defendant because he
mistakenly believed county was his employer resulted from an ignorance of the
law and not ignorance of fact; therefore, trial court properly denied motion for
leave to file an amended complaint naming state's attorney since relation back did
not apply. Biggerstaff v. Moran, 284 Ill. App. 3d 196 (1st Dist. 1996).
Application
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a.
Where plaintiff filed her original complaint in United States district court within
limitations period, and that action was dismissed for lack of diversity jurisdiction,
then plaintiff refiled her action in the county circuit court pursuant to 735 ILCS
5/13-217 and amended that petition to include additional counts, because
defendants were made aware, within the limitations period, of the relevant facts
underlying the additional counts, plaintiff should have been allowed to amend her
petition. Bryson v. News Am. Publ’n, Inc., 174 Ill. 2d 77 (1996).
Place of Injury
a.
The place where plaintiff was injured is a material element in a personal injury
suit, and if an amended pleading describes a different location than the original, it
will not relate back because the change in location changes the occurrence. Wolf
v. Dominick's Finer Foods, Inc., 282 Ill. App. 3d 546 (1st Dist. 1996).
Corporate Identities
a.
The fact that corporations confuse their identities does not alone justify allowing
the relation back of an amended complaint. Behr v. Club Med, Inc., 190 Ill. App.
3d 396 (1st Dist. 1989) (emphasis in original).
Same Transaction
a.
If the cause of action in an amended complaint does not grow out of the same
transaction, or occurrence set up in the original pleading, a new cause of action
has been alleged, and a new cause of action, first introduced by an amended
complaint, is regarded as a new suit commenced on the date the amended
complaint was filed. Perkins v. Pepsi-Cola Gen. Bottlers, Inc., 158 Ill. App. 3d
893 (2d Dist. 1987).
b.
The Supreme Court of Illinois adopted the “sufficiently-close relationship test” as
set forth in In re Olympia Brewing Co. Sec. Litigation, 612 F. Supp. 1370, 1373
(N.D. Ill. 1985), to determine whether new allegations grew out of the transaction
or occurrence set up in the earlier pleadings, and to determine whether a
defendant can be considered to have had adequate notice. Under that test, a new
claim will be considered to have arisen out of the same transaction or occurrence
and will relate back if the new allegations as compared with the timely filed
allegations show that the events alleged were close in time and subject matter and
led to the same injury. Porter v. Decatur Mem. Hosp., 227 Ill. 2d 343, 360
(2008).
Criterion Used
a.
The following criteria are required in determining if an amendment states the
same cause of action: would the same evidence be appropriate to prove both the
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original complaint and amendment, did the original complaint state a cause of
action, although stating such cause of action defectively, does the amendment
relate to a necessary element of the cause of action, and would a judgment on the
original complaint be res judicata to the amended complaint. Zeh v. Wheeler, 111
Ill. 2d 266 (1986).
b.
The ruling of the first judge, allowing plaintiff to add defendant's parent
corporation as a party under former section 46(4) of the Civil Practice Act was not
res judicata and was not dispositive of the issue at the second hearing, because
where the parent corporation's motion to dismiss based on the statute of
limitations was granted, although the same issue was argued at the two hearings,
the parties were not the same, nor were the parties closely enough related to be
privies and thereby bound by res judicata; also, because the court had not yet
acquired jurisdiction over the parent corporation, it could not defend against the
motion to add it as a party at the first hearing. Corn v. Lorain Div., Koehring Co.,
94 Ill. App. 3d 152 (5th Dist. 1981).
c.
Knowledge of the facts or specific conduct allegedly giving rise to liability is the
test for the relation back of amended pleadings, not simply knowledge of the facts
as cited by plaintiffs. Farkas v. Howard, 176 Ill. App. 3d 1005 (1st Dist. 1988).
d.
The right to amend, and the relation back of an amendment, depend on whether
the original complaint furnishes to the defendant all of the information necessary
to prepare its defense to the claim subsequently asserted in the amended
complaint. Jordan v. Lind, 176 Ill. App. 3d 530 (3rd Dist. 1988).
e.
The "relation-back" doctrine does not depend upon the subjective state of mind of
the pleader, rather it depends on whether the original complaint furnished to the
defendant all of the information necessary for him to prepare a defense to the
claim subsequently asserted in an amended pleading. Peoples Gas, Light & Coke
Co. v. Austin, 147 Ill. App. 3d 26 (1st Dist. 1986).
Liberal Construction
a.
Illinois courts liberally construe 735 Ill. Comp. Stat. Ann. 5/2-616(d) (2002) so
that cases are decided on their merits rather than on procedural technicalities.
Moreover, when several corporations have agents who manage a business so that
the public is under the impression that they are all one and the same, the
corporations should not benefit from the confusion that emanates from their
corporate complexities. Wilk v. Wilmorite, Inc., 349 Ill. App. 3d 880 (2d Dist.
2004).
Limitations Period
a.
The Appellate Court of Illinois, Second District, adopts the following construction
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of 735 Ill. Comp. Stat. Ann. 5/2-616(f) (2002). "Limitation period" has no fixed
meaning, but indicates only that a trial court is required to see if, under the factual
circumstances of each case, there is some time remaining in which an original
complaint could be filed as of the effective date of the amendment to § 2-616. If
there is time remaining, then the amended version of § 2-616 applies to any
amended complaint seeking to invoke the relation-back doctrine; if there is no
time remaining in the limitation period as of the effective date of the amendment
to § 2-616, then the previous version of section 2-616 applies to a complaint
seeking to invoke the relation-back doctrine. Compton v. Ubilluz, 351 Ill. App. 3d
223 (2d Dist. 2004).
Failure to Join a Defendant
a.
Ignorance of the facts, not of the law, is the type of ignorance contemplated by
subsection (d) of this section; ignorance connotes a lack of knowledge of the
identity or existence of a defendant, and when a plaintiff is aware of the identity
of a defendant, before the period of limitation has run, but does not seek to amend
his complaint to add that defendant until after the statute has run, failure to join
that defendant is not inadvertent. Newey v. Newey, 215 Ill. App. 3d 993, (1st Dist.
1991).
Actual Notice Required
a.
Courts turn to federal cases for guidance where the current version of §5/2-616(d)
is based on Fed. R. Civ. P. 15(c). Rule 15(c), like §5/2-616(d), allows an
amended complaint to relate back if the new party named in the amended
complaint received notice of the action within the period allowed for service of
process such that it would not be prejudiced in maintaining a defense on the
merits. Federal courts have decided three types of notice comply with Rule 15(c):
(1) actual notice received by the party; (2) actual notice received by the party’s
agent; or (3) constructive notice. Polites v. U. S. Bank Nat’l Ass’n, 361 Ill. App.
3d 76, 88 (1st Dist. 2005); Mann v. Thomas Place, L.P., 2012 IL App (1st)
110625.
b.
Before notice to an agent can be found to meet Fed. Rule 15(c) and §5/2-616(d)
notice requirements, the plaintiff must show that the party he seeks to add
authorized the agent to receive notice of claims on its behalf. Polites v. U. S.
Bank Nat’l Ass’n, 361 Ill. App. 3d 76, 88 (1st Dist. 2005).
c.
Constructive notice occurs where a defendant does not receive notice of an
impending lawsuit, but due to its relationship with an entity that received actual
notice, knowledge of the action is imputed to the defendant for purposes of adding
it as a new party. Under federal law, there are three ways to establish constructive
notice: (1) notice via sharing an attorney with the original defendant; (2) notice
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via an identity of interest with the original defendant; or (3) notice via someone
who handles the would-be defendant's insurance claims. Polites v. U. S. Bank
Nat’l Ass’n, 361 Ill. App. 3d 76, 90-91 (1st Dist. 2005) (Defendant bank had
constructive notice of plaintiff’s complaint, through the copy of the complaint
faxed to an insurance claims service, so as to permit its substitution as a defendant
under plaintiff’s amended complaint.)
d.
Section 2-616(b) was largely designed to notify a party that claims will be
asserted that grow out of the general fact situation set forth in the original
pleading. Porter v. Decatur Mem. Hosp., 227 Ill. 2d 343, 362 (2008).
IV. Proper Parties and Prima Facie Elements
a.
Injured Persons
b.
Injured Persons’ spouse
c.
Injured Persons’ Parent/Caregiver
·
A parent/caretaker plaintiff should be allowed to recover the reasonable
value of caretaking services that would have been allowed if someone had
been employed to take care of their minor child. “The reasonable expense
of necessary help which has been required as a result of his injury [and the
present cash value of such expense reasonably certain to be required in the
future]." Worley v. Barger, 347 Ill. App. 3d 492, 498 (5th Dist. 2004)
d.
Minors
·
Represented by Parent and Next Friend
·
Family Expense Act - 750 ILCS 65/15 (West 2002)

Requires parents to pay for the necessary expenses of their minor
children; this obligation includes the payment of the minor child's
medical payments. Beck v. Yatvin, 235 Ill. App. 3d 1085 (1 Dist.
1992).

Since the obligation to pay medical expenses is on the parent, the
cause of action to recover for the medical expenses lies in the
parent, not in the child. Estate of Hammon v. Aetna Life & Cas.
Co., 141 Ill. App. 3d 963 (1 Dist. 1986).
e.
Disabled Persons
·
Represented by Guardian
·
Represented by Family or Institution in control of the disabled person
How a deceased party can be represented
a.
Wrongful Death Case - deceased represented by a Special Adminsitrator
b.
Survival Action - Estate must be opened before filing complaint
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PRIMA FACIE ELEMENTS
a.
Motor Vehicle
a
Defendant owed a duty to the plaintiff;
b.
Defendant breached that duty;
c.
The plaintiff suffered injuries/damages; and
d.
That the breach was the proximate cause of the plaintiff's injuries/damages.
First Springfield Bank & Trust v. Galman, 188 Ill. 2d 252 (1999).
Possible Defendants and variables for Motor Vehicle Accidents:
·
Driver - Owner - Employer - Parents - Dram Shop
·
Crashworthiness?
·
Defective Car? Defective Maintenance?
·
Spoilation
·
Witnesses actively participating?
·
2.
Products Liability
Strict Liabilitya.
The injury resulted from a condition of the product;
b.
The condition was an unreasonably dangerous one; and
c.
The condition existed at the time the product left the manufacturer's control.
Sollami v. Eaton, 201 Ill. 2d 1 (2002).
Express Warranty/Implied Warrantya.
Defendant is a seller. 810 ILCS 5/2-103(1)(d);
b.
There was a breach of the express or implied warranty;
c.
The plaintiff is any natural person who is in the family or household of his buyer
or who is a guest of his home if it is reasonable to expect that such person may
use, consume, or be affected by the goods. 810 ILCS 5/2-318 (2006);
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d.
The plaintiff has notified the seller within a reasonable time after he or she
discoverd or should have discovered any breach and commences the action within
the four year statute of limitations. Branden v. Gerbie, 62 Ill. App. 3d 138 (1st
Dist. 1978); Maldonado v. Creative Woodworking Concept, Inc., 296 Ill. App. 3d
935 (3rd Dist. 1998).
e.
The plaintiff must have suffered damages as a result of the breach. Recoverable
damages are not limited to personal or property damage; purely economic losses
available. Moorman Mfg. Co. v. National Tank Co., 91 Ill. 2d 69 (1982).
Negligence Theorya.
Defendant owed a duty of reasonable care in connection with the transaction;
b.
The defendant breached the duty by action or omission; and
c.
The injury that resulted was caused by the breach of that duty.
Bailey v. Edward Hines Lumber Co., 308 Ill. App. 3d 58 (1st Dist. 1999).
Possible Defendants and variables for Products Liability:
·
·
3.
Designer - Manufacturer - Distributor - Seller
Statute of Repose: A statute of repose is different from a statute of
limitations, in that after the statutory period has expired it is not possible
to file a lawsuit even if an injury occurs after that time. For example, if
there is a twenty year statute of repose on the manufacture of aircraft, a
claim cannot be filed against the manufacturer more than twenty years
after the date of manufacture, even if a design or manufacturing defect is
responsible for a later accident.

§ 735 ILCS 5/13-213 (Illinois Products Liability Statue of
Repose): In product liability cases, the statute of repose is 12 years
from the date of first sale, lease or delivery of possession by a
seller, or 10 years from the date of first sale, lease or delivery of
possession to its initial user, whichever runs out first. The statute
of limitation for personal injuries is 2 years, and 5 years on
property damage. Other kinds of cases have different statutes of
limitation and repose.
Vicarious Liability
Under the doctrine of respondeat superior, an employer can be held vicariously liable for
the tortious acts of its employees including negligent, willful, malicious, or even criminal
acts of its employees when such acts are committed in the course of employment and in
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furtherance of the business of the employer.
Davila v. Yellow Cab Co., 333 Ill. App. 3d 592 (1st Dist. 2002).
In order to establish a claim for respondeat superior, the plaintiff must allege:
a.
The existence of a valid employer/employee relationship; and
b.
That the tortious conduct occurred within the scope of employment.
In determining whether an employee/employer relationship exists, courts look to several
factors, including:
a.
The right to control the manner, details, and method by which the work is done;
b.
The method of payment;
c.
The right to discharge;
d.
The skill required in the work;
e.
The furnishing of tools, materials, and equipment; and
f.
Whether the person performing the work is engaged in a business apart from the
regular business of the person for whom the work is to be done.
Lang v. Silva, 306 Ill. App. 3d 960 (1st Dist. 1999).
An act is within the scope of employment if it:
g.
Is of the kind the person is employed to performed;
h.
Occurs substantially within the authorized time and space limits; and
i.
Is actuated, at least in part, by a purpose to serve the master.
Davila, 333 Ill. App. 3d 592.
4.
Dram Shop
a.
Intoxicating liquor was served by defendant (person licensed under the laws of
this State or of any other state to sell alcoholic liquor) to the person injuring the
plaintiff;
b.
That such person became intoxicated;
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c.
That the liquor so served contributed to his intoxication; and
d.
That the plaintiff's injury resulted from the intoxication.
Dunkelberger v. Hopkins, 51 Ill. App. 2d 205 (1st Dist. 1964); 235 ILCS 5/6-21 (2006).
Possible Defendants and variables for Dram Shop:
·
·
5.
Bar or restaurant serving the alcohol - liquor license holder - individual
server - AIP
The Dram Shop Act provides that “every person who is injured within this
state, in person or property, by any intoxicated person has a right of action
in his or her own name, severally or jointly, against any person, licensed
under the laws of this State or of any other state to sell alcoholic liquor,
who, by selling or giving liquor, within or without the territorial limits of
this State, causes the intoxication of such person.” 235 ILCS 5/6-21 (West
2002).
Social Host
a.
Any person at least 18 years of age;
b.
Who willfully supplies alcoholic liquor or illegal drugs to a person under 18
years of age; or
c.
Who willfully permits the consumption of alcoholic liquor or illegal drugs on
non-residential premises owned or controlled by the person over the age of 18; or
d.
Who willfully sells, gives, or delivers alcoholic liquor or illegal drugs; and
e.
Causes, or contributes to, the impairment of such person.
Shall be liable for death or injuries to persons or property caused by the impairment of
such person.
Drug or Alcohol Impaired Minor Responsibility Act: 740 ILCS 58/5 (2006).
6.
Medical Malpractice
a.
Plaintiff must prove the proper standard of care by which to measure the
defendant's conduct;
b.
A negligent breach of the standard of care; and
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c.
Resulting injury proximately caused by the defendant's lack of skill or care.
Necessary to the establishment of a prima facie case of medical negligence is the
presentation of expert testimony to establish the applicable standard of care, a deviation
from the standard, and the resulting injury to the plaintiff.
Such expert testimony is not needed where the conduct is so grossly negligent or the
treatment so common that a layperson may understand the conduct without the need for
an expert to establish the standard of care and its breach.
Jones v. Dettro, 308 Ill. App. 3d 494 (4th Dist. 1999).
7.
Premises Liability
a.
A condition on the property presented an unreasonable risk of harm to persons on
the premises;
b.
The defendant knew or should have known that the condition of the property
posed an unreasonable risk of harm to persons on the premises;
c.
The defendant should have anticipated that persons on the premises would fail to
recognize the danger or fail to protect themselves from it;
d.
Some negligence on the part of the defendant;
e.
Injury to the plaintiff; and
f.
The condition of the property was the proximate cause of the injury to the
plaintiff.
Jordan v. National Steel Corp., 183 Ill. 2d 448 (1998).
Possible Defendants and variables for Motor Vehicle Accidents:
·
Owner - Occupier - Maintenance Company - General Contractor Architect

Direct participant liability does not rest on piercing the corporate
veil such that the liability of the subsidiary is the liability of the
parent. On the contrary, this form of liability is asserted, as its
name suggests, for a parent's direct participation, superseding the
discretion and interest of the subsidiary, and creating conditions
leading to the activity complained of. Forsythe v. Clark USA, Inc.,
224 Ill. 2d 274, 297 (2007). (EGW)
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8.
Legal Malpractice
a.
Defendant attorney owed plaintiff a duty of care arising from the attorney-client
relationship;
b.
Defendant breached that duty; and
c.
As a proximate result, the plaintiff suffered injury in the form of actual damages.
In a case involving litigation, the plaintiff must prove that he would have been successful
in the underlying suit “but for” defendant’s negligence.
Governmental Interinsurance Exchange v. Judge, 221 Ill. 2d 195 (2006).
9.
Intentional Infliction of Emotional Distress
a.
The conduct involved must be truly extreme and outrageous;
b.
The actor must either intend that his conduct inflict severe emotional distress, or
know that there is at least a high probability that this conduct will cause severe
emotional distress; and
c.
The conduct must in fact cause severe emotional distress.
Brackett v. The Galesburg Clinic Association, 293 Ill. App. 3d 867, 871 (3rd Dist. 1997).
10.
Negligent Infliction of Emotional Distress
a.
A duty owed by the defendant to the plaintiff;
b.
A breach of that duty; and
c.
An injury that was proximately caused by that breach.
In determining whether to impose a duty upon a defendant, a court looks at various policy
considerations, such as the likelihood of harm, the gravity of the injury, the burden of
guarding against the injury, and the relationship between the parties. The plaintiff must
also allege that the infliction of emotional distress arose out of the negligent acts of a
defendant.
Brackett v. The Galesburg Clinic Association, 293 Ill. App. 3d 867, 872 (3rd Dist. 1997).
11.
Negligent Spoliation of Evidence
a.
The existence of a potential civil action;
−44−
b.
A legal or contractual duty to preserve evidence which is relevant to the potential
civil action;
c.
Destruction of that evidence;
d.
A significant impairment in the ability to prove the lawsuit;
e.
A causal relationship between the evidence destruction and the inability to prove
the lawsuit; and
f.
Damages.
Boyd v. Travelers Insurance Co., 166 Ill. 2d 188, 193 (1995).
12.
Fraudulent Misrepresentation
a.
The defendant intentionally made a false statement of material fact;
b.
The plaintiff had a right to rely on that false statement;
c.
The statement was made for the purpose of inducing reliance thereon;
d.
The plaintiff in fact relied on the statement;
e.
The plaintiff suffered injury as a direct result.
Rolando v. Pence, 331 Ill. App. 3d 40, 46 (2d Dist. 2002).
13.
Negligent Misrepresentation
a.
Duty owed by defendant to plaintiff;
b.
A breach of that duty; and
c.
Injury proximately resulting from the breach.
Negligent misrepresentation involves the breach of a duty to use care in obtaining and
communicating information upon which others may reasonably be expected to rely in the
conduct of their affairs. A claim for negligent misrepresentation requires a showing of
actual reliance. The maker of a negligent misrepresentation is subject to liability to only
those persons whose guidance he knows that the information is to be supplied and to
them only for loss incurred in the kind of transaction in which the information is expected
to influence them.
Cahill v. Eastern Benefit Systems, Inc., 236 Ill. App. 3d 517, 521 (1st Dist. 1992).
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