Parties

• Author: Jennifer Duncan-Brice
• Pages: 351-406

12-351

Chapter 12

ParTies

QUICK VIEW

Definitions: A party is a person or entity who is suing or being sued in a lawsuit. Only parties are entitled to par-

ticipate directly in the proceedings. Capacity is the right of a person or entity to sue or be sued in its own name.

An interpleader is an action between a party holding property to which it has no claim and two or more parties

who claim an interest in the property. Intervention is the procedure by which a person not named or joined as a

party may become a party to an action. Third-party practice is a method by which a defendant may join parties

alleged to be liable for all or part of the plaintiff’s claim. A respondent in discovery is a person or entity named

in a civil action because he or she may have information essential to determining the identity of who should be

named additional defendants.

Scope of Chapter: Capacity and standing to sue; considerations involved in joining additional parties to a lawsuit

under rules of permissive and necessary joinder; Substitution of parties; rules and procedures for interpleading com-

peting claims to a fund; intervention by parties into a lawsuit already begun by other parties; third party practice;

naming unknown parties; effect of assignment and subrogation; naming respondents in discovery; class actions.

Strategies and Tactics:

• Early in the case, evaluate who might be possible plaintiffs and possible defendants in the action.

• Research the law concerning the capacity of potential parties, their standing to sue or be sued, etc.

• Investigate the status of various parties, their capacity, standing, etc., and whether they are amenable to

service of process in Illinois.

• If representing a defendant, investigate whether there are other parties who should be joined as defendants,

and whether there are other parties who may be responsible for all or part of plaintiff’s claim.

• If an action is already proceeding, determine whether it is in your client’s interest to intervene in the

action, and whether your client is entitled to do so.

• If you represent a client who retains property to which some other party is ultimately entitled, determine

whether an interpleader action, with your client as stakeholder, is an appropriate way for your client to dis-

charge his/her obligations.

• Consider whether to name respondents in discovery to ascertain the names of other potential defendants.

• If there are multiple potential plaintiffs, consider whether a class action is appropriate.

Statutes and Rules: 735 ILCS 5/2-401, 5/2-402, 5/2-403, 5/2-404, 5/2-406, 5/2-407, 5/2-408, 5/2-409, 5/2-413,

5/2-616, 5/1-801 ff, 5/2-1008; 755 ILCS 5/11, 5/11a.

Related Topics: Pleadings, Ch 13; Motion Practice, Ch 14; Attacking the Pleadings, Ch 15.

Forms: See digital access for the following forms:

• Form 12:10, Petition to Appoint a Guardian ad Litem.

• Form 12:20, Order Appointing a Guardian ad Litem.

• Form 12:30, Motion for Leave to Add Additional Parties.

IllInoIs PretrIal PractIce 12-352

• Form 12:40, Order for Leave to Join as Additional Parties.

• Form 12:50, Motion for Substitution of a Party.

• Form 12:60, Notice of Suggestion of Death of a Party.

• Form 12:70, Ex Parte Application for Order Substituting Party.

• Form 12:80, Motion of Executor to Be Substituted as Plaintiff.

• Form 12:90, Order Substituting Executor as Plaintiff.

• Form 12:100, Motion to Appoint a Special Administrator.

• Form 12:110, Motion to Dismiss for Failure to Substitute Party After Plaintiff’s Death.

• Form 12:120, Complaint in Interpleader.

• Form 12:130, Complaint in Intervention.

• Form 12:140, Order Granting Leave to Intervene.

• Form 12:150, Motion for Leave to File Third-Party Complaint.

• Form 12:160, Order Granting Leave to File Third-Party Complaint.

• Form 12:170, Third-Party Complaint.

• Form 12:180, Petition to Proceed Under a Fictitious Name.

• Form 12:190, Order of Petition to Proceed Under Fictitious Name.

TABLE OF CONTENTS

I. General Points

§12:01 Party Defined

§12:02 Typical Parties

II. Capacity to Sue, Be Sued, or Defend and Standing

A. Preliminary Considerations

§12:10 Capacity

§12:11 Effect of Lack of Capacity

§12:12 Standing

§12:13 Challenging Standing

§12:14 Associational Standing

§12:15 Determination From Statutory Scheme

B. Natural Persons: Death, Minority, Incompetency

1. DEATH

§12:20 Decedents Lack Capacity

§12:21 Death of Defendant

§12:22 Wrongful Death Actions

2. MINORS

§12:30 Minors Lack Capacity

§12:31 Suit by Minor

§12:32 Court Approval Required for Settlement of Claims

§12:33 Appointment of a Guardian Ad Litem

§12:34 Minor as a Defendant

§12:35 Next Friend vs. Guardian Ad Litem

§12:36 Ability of Guardian Ad Litem to Hire Counsel

§12:37 Successor Guardian

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3. MENTALLY INCOMPETENT PARTIES

§12:50 Persons Adjudicated Mentally Incompetent Lack Capacity

§12:51 Exception: Dissolution of Marriage

§12:52 Standard for the Appointment of a Guardian

§12:53 Definition of Disabled

§12:54 Appointment of a Guardian Ad Litem

§12:55 Persons Who May Serve as Guardian Ad Litem

§12:56 Settlement By or Against an Incompetent Person Must Be Approved by Court

§12:57 Appointment of a Guardian Ad Litem in the Settlement of a Suit

4. LEGAL CAPACITY

§12:58 Notice

§12:59 Factual Issues to Determine Legal Capacity

C. Estates and Trusts

1. ESTATES

§12:70 Suit Against Estate

§12:71 Suits by Estate

§12:72 Pro Se Representation Prohibited for Decedent’s Estate

2. TRUSTS

§12:80 Definitions

§12:81 Suit on Behalf of Trust

§12:82 The Trust as a Defendant

§12:83 Beneficiaries as a Necessary Party

§12:84 Caption

D. Business Entities

1. CORPORATIONS

§12:90 Illinois Corporations

§12:91 Representation of Corporations in Small Claims

§12:92 Foreign Corporations

§12:93 Dissolved or Expired Corporation

2. PARTNERSHIPS

§12:100 Actions By or Against Partnerships

§12:101 Definition of Partnership

§12:102 Limited Partnership Distinguished

§12:103 Subsequent Actions Against Partners

§12:104 Action Against Fewer Than All Partners

3. JOINT VENTURES

§12:105 Definition

§12:106 Elements

4. OTHER BUSINESS ENTITIES

§12:110 Voluntary Unincorporated Associations

§12:111 Assumed Business Name Act

§12:112 ERISA Plans

§12:113 Mechnanic’s Liens

5. MASTER/AGENTS

§12:115 Actual Agent

§12:116 Apparent Agent