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No. 3--01--0982

Plaintiff filed a complaint alleging negligence in the careprovided to him at St. Francis in June 1999. At the end of hiscomplaint, plaintiff listed several individuals, including Dr.Adkins (respondent), as respondents in discovery pursuant tosection 2-402 of the Code of Civil Procedure. (735 ILCS 5/2-402(West 1998)).

Respondent was a medical resident at St. Francis whenplaintiff was treated there in 1999. Respondent's residency at St.Francis ended on August 1, 2000, when he moved to Idaho. Hecurrently works at a hospital in Oregon.

On August 1, 2001, plaintiff served respondent with a summonsand a copy of the complaint. Respondent moved to quash servicebecause the court lacked personal jurisdiction over him. The trialcourt determined that it had jurisdiction and denied the motion.

I.

Respondent contends that since a respondent in discovery isnot a party to an action (See Delestowicz v. Labinsky, 288 Ill.App. 3d 637, 639, 681 N.E.2d 1008, 1009 (1997)), and since he nolonger resides or works in Illinois, he can only be considered awitness in the lawsuit and cannot be required to appear fordiscovery.

The legislature created the unique right to name an individualas a respondent in discovery by enacting section 2-402 of the Codeof Civil Procedure (735 ILCS 5/2-402). Bogseth v. Emanuel, 261Ill. App. 3d 685, 690, 633 N.E.2d 904, 908 (1994). "Thelegislative history of section 2-402 indicates that its purpose[is] to provide plaintiffs in medical malpractice actions with ameans of filing suit without naming everyone in sight as adefendant." Bogseth, 261 Ill. App. 3d at 690, 633 N.E.2d at 908. By enacting section 2-402, the legislature balanced the need toprotect physicians from the increasing costs of medical malpracticeinsurance caused by the filing of frivolous lawsuits with theinjured plaintiff's difficulties in determining the surroundingcircumstances and involvement of each person. Bogseth, 261 Ill.App. 3d at 690-91, 633 N.E.2d at 908.

An action filed pursuant to section 2-402 is a specialstatutory action which "creates a procedural right to name a partyas a respondent in discovery for the purpose of discovery againstwhom one may or may not have a cause of action." Hugley v.Alcaraz, 144 Ill. App. 3d 726, 734, 494 N.E.2d 706, 710 (1986). Itprovides that "respondents in discovery shall be required torespond to discovery by the plaintiff in the same manner as aredefendants ***." 735 ILCS 5/2-402 (West 1998). Moreover, theCommittee Comments to section 2-402 indicate that procedural rulesapply "in the same manner [to] the respondent [as if] a partydefendant at the outset." Ill. Ann. Stat., ch. 110, par. 2-402,Committee Comments, at 342 (Smith-Hurd 1983); Anderson v. Intengan,191 Ill. App. 3d 1001, 1005, 548 N.E.2d 479, 481 (1989).

Further, we note that "[p]rocess, by which the court acquirespower or jurisdiction over the person, can take the form of asummons [citation] or of a subpoena [citation]." Whitley v.Lutheran Hospital, 73 Ill. App. 3d 763, 766, 392 N.E.2d 729, 732(1979). The service of a summons empowers the court to compeldiscovery from parties to an action, while the service of asubpoena permits the court to compel discovery from nonpartydeponents. Whitley, 73 Ill. App. 3d at 766, 392 N.E.2d at 732. Section 2-402 provides that "[a] copy of the complaint shall beserved on each person *** named as a respondent in discovery." (735 ILCS 5/2-402).

The power acquired by service of notice of designation as arespondent in discovery permits the circuit court to compeldiscovery in the same manner as from a defendant. Whitley, 73 Ill.App. 3d at 766, 392 N.E.2d at 732. The service of process requiredby section 2-402 is the same as that required for a party, not awitness. Presumably, if the legislature had intended respondentsin discovery to be treated as witnesses, it would have provided forservice by subpoena, not summons. Once a party has been named arespondent in discovery and service of summons has been properlyexecuted upon him, the court acquires in personam jurisdiction overthat party for all purposes. Whitley, 73 Ill. App. 3d at 766, 392N.E.2d at 732-33.

A respondent in discovery is a hybrid litigant: not an actualparty defendant, but more than simply a witness. The purpose ofsection 2-402 is to enable a plaintiff, through liberal discoveryprocedures, to determine whether the respondent should be made adefendant. Hugley, 144 Ill. App. 3d at 734, 494 N.E.2d at 711.

Section 2-402 subjects respondents in discovery to the sameprocedural and discovery rules and safeguards as defendants. Wecan find no compelling reason not to treat respondent as thestatute directs, that is, to require him "to respond to discoveryby the plaintiff in the same manner as are defendants ***." 735ILCS 5/2-402 (West 1998). To find otherwise would penalizeplaintiff for filing pleadings that the legislature intended toencourage when it enacted section 2-402. Respondent's argumentthat he is merely a witness is unpersuasive. Accordingly, weaffirm the trial court's order. Respondent must comply withdiscovery.

II.

Respondent also argues that the trial court's assertion of inpersonam jurisdiction is unconstitutional and violates section 2-209(c) of the Code of Civil Procedure (long-arm statute). (735ILCS 5/2-209(c) (West 2000)). Respondent's argument, however, isat least partially based on his contention that he is merely arespondent in discovery. Because we have found that thelegislature intended that respondents in discovery have the samestatus as defendants with respect to discovery, we will apply thelong-arm statute to respondents in discovery as if they were nameddefendants.

Sub-section c of the long-arm statute provides: "A court mayalso exercise jurisdiction on any other basis now or hereafterpermitted by the Illinois Constitution and the Constitution of theUnited States." (735 ILCS 5/2-209(c) (West 2000)). A court'sassertion of personal jurisdiction satisfies the United StatesConstitution when it comports with "traditional notions of fairplay and substantial justice." International Shoe Co. v.Washington, 326 U.S. 310, 316, 90 L. Ed. 95, 102, 66 S. Ct. 154,158 (1945). Due process is satisfied when (1) the nonresident had"minimum contacts" with the state forum such that he had "fairwarning" that he might be required to defend there; (2) the actionarose out of or related to the defendant's contacts with the forum;and (3) it is reasonable to require the defendant to litigate inthe forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462,472-78, 85 L. Ed. 2d 528, 540-44, 105 S. Ct. 2174, 2182-85 (1985).

Here, respondent was a medical resident at St. Francis andresided in Peoria during the time that plaintiff's cause of actionarose. Respondent's designation as a respondent in discovery arosedirectly from his employment with St. Francis. These factsestablish sufficient minimum contacts required to give respondent"fair warning." Respondent purposefully availed himself of theprivilege of conducting his work-related activities in Illinois. As a result, we find that it is reasonable to compel respondent tocomply with discovery in Illinois.

The judgment of the circuit court of Peoria County isaffirmed.

Affirmed.

BRESLIN and SLATER, JJ., concur.