2021 IL App (5th) 200026
Ill. App. Ct.2021Background
- December 22, 2016: automobile/pedestrian collision killed Steven Greene; wrongful-death complaint filed Dec. 18, 2018 (four days before statute of limitations ran).
- Clerk issued a summons Dec. 20, 2018 via e-file; plaintiff’s counsel says she never received it and took no further action until requesting an alias summons on Aug. 9, 2019.
- Defendant was served Aug. 20, 2019 (≈ eight months after filing); he moved to dismiss under Ill. S. Ct. R. 103(b) for lack of reasonable diligence in service after the limitations period.
- Plaintiff’s counsel explained delay by the unexpected death of supervising attorney (Cervantes), her own extended medical leave for multiple sclerosis, and an asserted e-file/summons delivery problem; counsel also argued defendant suffered no prejudice.
- Trial court granted the Rule 103(b) motion and dismissed with prejudice; the Fifth District Court of Appeal affirmed the dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal under Rule 103(b) was an abuse of discretion | Delay was inadvertent due to death of supervising counsel and counsel’s illness; no prejudice | Eight-month delay, no attempts to serve during that time, defendant readily locatable | No abuse of discretion; dismissal affirmed |
| Whether plaintiff exercised reasonable diligence after the statute of limitations expired | Counsel promptly requested alias summons upon discovering nonservice | Counsel made no meaningful attempts to serve for ~8 months and failed to monitor docket/e-file | Court found plaintiff lacked reasonable diligence |
| Whether "special circumstances" (death, illness, e-file problem) excuse the delay | Combined circumstances created a "perfect storm" that excused inaction | These circumstances did not justify months of inactivity; attorneys must monitor cases | Court rejected special circumstances as insufficient to excuse the delay |
| Whether defendant was prejudiced or had actual notice such that dismissal is improper | Defendant had prior crash affidavit and report—no prejudice from delay | Lack of diligence frustrates Rule 103(b)’s purpose even if defendant had some notice | Lack of prejudice is not dispositive; dismissal still appropriate |
Key Cases Cited
- Segal v. Sacco, 136 Ill. 2d 282 (1990) (Rule 103(b) factors and dismissal only when delay denies defendant a fair opportunity to investigate)
- Womick v. Jackson County Nursing Home, 137 Ill. 2d 371 (1990) (upheld dismissal for ~nine‑month delay where defendant was known and service attempts were absent)
- Sinn v. Elmhurst Medical Building, Ltd., 243 Ill. App. 3d 787 (1993) (special circumstances insufficient where months of inactivity remained unexplained)
- McRoberts v. Bridgestone Americas Holding, Inc., 365 Ill. App. 3d 1039 (2006) (plaintiff bears burden to show reasonable diligence in service)
- Geneva Construction Co. v. Martin Transfer & Storage Co., 4 Ill. 2d 273 (1954) (Rule 103(b) prevents denial of defendant’s fair opportunity to investigate)
- Luebbing v. Copley Memorial Hospital, 60 Ill. App. 3d 780 (1978) (long delays—here ten months—can justify dismissal)
- Penrod v. Sears, Roebuck & Co., 150 Ill. App. 3d 125 (1986) (minimal efforts over several months may support dismissal)