Transcript Rule 103(b) - Circuit Court of Cook County

“NOT NOW, NOT HERE:
SUPREME COURT RULE 103(b)
& FORUM NON CONVENIENS
MOTIONS”
Judge Lynn M. Egan
Judge Daniel T. Gillespie
September 26, 2014
WHAT DOES RULE 103(b)
ALLOW?
Dismissal…
If plaintiff failed to exercise reasonable
diligence in serving defendant.
 Without prejudice if lack of diligence
occurs prior to expiration of limitations
period.
 With prejudice if lack of diligence occurs
after expiration of limitations period.
WHO CAN SEEK DISMISSAL ?
“The dismissal may be made on the
application of any party or on the court’s
own motion.”
Sup.Ct.R.103(b)(West 2014)
WHAT IS THE PURPOSE ?
 To protect defendants from unnecessary
delay in the service of process; and
 To prevent the circumvention of the statute
of limitations.
Emrikson v. Morfin, 2012 IL App (1st) 111687
RULE 103(b) APPLIES TO…
 Original civil & equitable actions;
 Post judgment proceedings, i.e., 2-1401
petitions & petitions to revive judgment;
 Forcible entry & detainer actions;
 Complaints for judgment on arbitration
awards;
 Circuit court actions related to Workers’
Comp awards.
AMENDMENTS
1997
 Eliminated the res judicata effect of a Rule
103(b) dismissal; and
 Refocused the inquiry about whether
refiling after Rule 103(b) dismissal is
permissible…
Focus is now on the date of dismissal. If
prior to expiration of statute of
limitations, refiling allowed.
AMENDMENTS
2007
 Lack of diligence AFTER expiration of
limitations period “shall be with prejudice,”
but does not bar claims against any other
party based on vicarious liability for the
dismissed defendant’s conduct.
 When assessing diligence in the context of a
refiled case per 13-217, must consider the
entire history of the case, both before &
after refiling.
WAIVER
A defendant does not risk waiver of a Rule 103(b)
argument unless it actively defends the case on
the merits.
 Motions to transfer to other county OK
 Subpoenas for medical records OK
 Substantive motions (2-615/2-619/SJ) = Waiver
 Discovery requests/answers & depositions =
Waiver
RELEVANT FACTORS
 Length of time used to obtain service
 Activities of plaintiff
 Plaintiff’s knowledge of defendant’s
whereabouts
 Ease with which plaintiff could find defendant
 Defendant’s actual knowledge of pending suit
 Special circumstances which affected plaintiff’s
efforts
 Whether defendant suffered any prejudice
 Actual service on defendant
RELEVANT FACTORS
 Must be assessed on a case by case basis;
 Within the context of the totality of the
circumstances; and
 With the understanding that Rule 103(b)
does not set forth a specific time within
which service must be accomplished.
REFILED CASES
 Can only consider “the sum total of days
before a dismissal & after a refiling, but
NOT the time that passes in between, when
no action is pending.” Case v. Galesburg
Cottage Hospital, 227 Ill.2d 207, 217 (2007).
 Although both periods of time must be
considered, “an original lawsuit stands on a
different footing from a refiled suit.”
Hatchett v. Swanson, 382 Ill.App.3d 1084, 1092 (2d
Dist., 2008).
RELATION BACK – SECTION 2616(d)
Section 2-616(d) provides for suspension of
the statute of limitations against newly added
defendants under certain circumstances &
includes a Rule 103(b) assessment.
 Must first resolve whether misnomer (right
party sued, wrong name used) or mistaken
identity (wrong party sued).
 If mistaken identity, must satisfy Rule
103(b)
requirement.
NOTE:
2-616(d)
amended in 2002 to eliminate diligence in
naming new defendant.
BURDENS
 Burden-shifting mechanism used.
 Defendant bears initial burden of making a
prima facie showing of lack of diligence by
plaintiff.
 Once defendant makes such a showing, the
burden shifts to plaintiff to offer a
reasonable explanation for any delay in
service.
NOTE: Failure to offer sufficient explanation
will result in assumption of lack of diligence.
CREATING A RECORD
 Plaintiff’s explanation MUST be presented in
a factually specific way that “conforms with
evidentiary rules.” Burns v. Olson, 2014 IL App
(1st) 130649-U.
 Consider the use of affidavits MANDATORY.
 Subjective or conclusory statements about
plaintiff’s service efforts are “immaterial &
insufficient.” Burns, supra.
EXCUSES
 Pro se plaintiff’s lack of knowledge – NO
 Difficulty obtaining 2-622 report – NO
 Insurer’s actual notice of claim – NO
 Plaintiff’s ongoing medical treatment – NO
 Court clerk’s failure to issue proper summons – NO
 Process server’s failure to ensure proper return of
summons – NO
 Settlement discussions with insurer – NO, unless
express & well documented agreement to forego
service.
MISCELLANEOUS
 The trial court is under no obligation to
conduct an evidentiary hearing before
ruling on a Rule 103(b) motion.
 The trial court MUST rule on a Rule 103(b)
motion before ruling on a plaintiff’s motion
to voluntarily dismiss.
STANDARDS
 When considering the relevant factors, the
trial court must utilize an OBJECTIVE
standard. Plaintiff’s subjective intent is
irrelevant.
 On appeal, the standard of review is abuse
of discretion, which is a very forgiving
standard. (Arbitrary, fanciful, unreasonable
or where no reasonable person would adopt
the court’s view.)