Attorneys in Illinois, notably Chicago medical malpractice lawyers, must exercise “reasonable diligence to obtain service on a defendant” after filing a lawsuit; otherwise, the case may be dismissed. Illinois Supreme Court Rule (“Rule”) 103(b).
In Case v. Gallesburg Cottage Hosp., 227 Ill. 2d 207 (Ill. 2007), the Illinois Supreme Court held that a trial court should not include the time that elapses between a voluntary dismissal of a complaint pursuant to section 2-1009 of the Code of Civil Procedure (“Code”) and its refiling under section 13-217 of the Code when ruling on a motion to dismiss a case for violating Rule 103(b).
The plaintiffs filed a medical malpractice action on April 25, 2003 against various defendants. The complaint did not have an attached medical report, as required by section 2-622(a) of the Code. Instead, plaintiffs’ counsel attached an attorney’s affidavit requesting 90 days to file a report, as allowed by section 2-622(a)(2) of the code. Upon filing the complaint, “plaintiffs instructed the clerk not to issue a summons” to any defendant.
On May 20, 2003, plaintiffs voluntarily dismissed their lawsuit pursuant to section 2-1009(a) of the Code, which allows plaintiffs to dismiss their action “without prejudice.”
Nearly a year later, on April 12, 2004, plaintiffs refiled their complaint under section 13-217 of the Code, which allows plaintiffs to re-file their complaint “within one year or within the remaining period of limitation, whichever is greater, . . . after the action is voluntarily dismissed by the plaintiff.” This time, the required medical report was attached to the complaint. The defendants were served on April 20 and April 26, 2004.
The defendants moved to dismiss the complaint for “lack of reasonable diligence in serving process” in violation of Rule 103(b). The trial court granted the motion based on a number of factors, including the fact that “the length of time used in serving the defendants was a few days short of one year after filing” the original complaint. The appellate court affirmed the dismissal.
However, the Illinois Supreme Court reversed the dismissal. The Court listed numerous “factors” a court may consider when determining whether or not to deny a Rule 103(b) motion, including “the length of time used to obtain service of process.”
The Court held that it was improper for the trial court to have counted the approximately 11 months that passed between the voluntary dismissal of plaintiffs’ complaint on May 20, 2003, and its refiling on April 12, 2004, in determining whether plaintiffs obtained service of process on defendants with “reasonable diligence.” Instead, the Court held that the trial court should have considered the plaintiffs’ diligence in servicing defendants “prior to dismissal and after refiling, but not the period in between when no complaint existed.”
According to the Court, by including the time between dismissal and refiling in its consideration of reasonable diligence, “the appellate court [and trial court] has limited prlaintiffs’ use of section 13-217 to the extent that the right to refile granted by that statute is essentially meaningless.”
The Court distinguished O’Connell v. St. Francis Hospital, 112 Ill. 2d 273 (1986), where the plaintiff filed a motion to voluntarily dismiss while a Rule 103(b) motion was “pending.” Here, a Rule 103(b) was not pending at the time plaintiffs voluntarily dismissed the action.
Therefore, the Court held that “the time that elapses between the dismissal of a plaintiff’s complaint and its refiling pursuant to section 13-217 is not to be considered by a court when ruling on a motion to dismiss for violation of Rule 103(b).” The Court also noted that the length of time used to obtain service is “not the only factor a court must consider” when ruling on such motion. Rather a court must consider the passage of time “in relation to all the other facts and circumstances of each case individually.”