*1 Illinois Official Reports
Appellate Court
Kramer v. Ruiz
,
Appellate Court MARC KRAMER, Personal Representative of the Estate of Steven Caption Greene, Deceased, Plaintiff-Appellant, v. GABRIEL RUIZ,
Defendant-Appellee. District & No. Fifth District
No. 5-20-0026 Filed May 20, 2021
Rehearing denied June 23, 2021
Decision Under Appeal from the Circuit Court of Madison County, No. 18-L-1710; the Hon. David W. Dugan, Judge, presiding. Review Judgment Affirmed.
Counsel on Lanny Darr, of Darr Law Offices, Ltd., of Alton, and Jennifer Suttmoeller Bernacki, of Cervantes & Associates, of St. Louis, Appeal
Missouri, for appellant.
Jane Unsell and Erin M. Phillips, of Unsell, Schattnik & Phillips, P.C., of Wood River, for appellee.
Panel JUSTICE MOORE delivered the judgment of the court, with opinion.
Justice Welch concurred in the judgment and opinion.
Justice Cates dissented, with opinion.
OPINION Plaintiff Marc Kramer, personal representative of the estate of Steven Greene, deceased, filed a complaint in the circuit court of Madison County for wrongful death against the defendant, Gabriel Ruiz. After the defendant was served with an alias summons, he filed a motion to dismiss the complaint pursuant to Illinois Supreme Court Rule 103(b) (eff. July 1, 2007), asserting that the plaintiff failed to exercise reasonable diligence in effectuating the service on the defendant. Following a hearing on the motion, the circuit court granted the defendant’s motion and dismissed the complaint with prejudice. For the reasons that follow, we affirm the circuit court’s dismissal of the plaintiff’s case. I. BACKGROUND The underlying matter arises out of a December 22, 2016, automobile/pedestrian collision
that resulted in the death of Steven Greene. On December 18, 2018, four days prior to the expiration of the applicable statute of limitations, the plaintiff filed a complaint and summons against the defendant for wrongful death arising from that accident. The circuit court’s docket sheet reveals that, on December 20, 2018, a summons was issued for the defendant and sent to the plaintiff’s counsel via “efile” [1] for counsel to effectuate service. No further action was taken on this case by the plaintiff or plaintiff’s counsel. On May 1, 2019, the circuit court set the matter for a case management conference to be held on August 21, 2019. On August 9, 2019, nearly eight months after the complaint was filed and the statute of
limitations had expired, plaintiff’s counsel, Jennifer Suttmoeller, took her first action towards effecting service on the defendant when she requested, аnd the circuit clerk issued via “efile,” an alias summons for the defendant. Eleven days later, on August 20, 2019, the defendant was served with the alias summons and a copy of the plaintiff’s complaint. On September 19, 2019, counsel for the defendant entered his appearance and filed a
motion to dismiss the plaintiff’s complaint pursuant to Illinois Supreme Court Rule 103(b) (eff. July 1, 2007). The motion alleged that the plaintiff failed to exercise reasonable diligence in serving process on the defendant after the expiration of the statute of limitations. The defendant also attached to his Rule 103(b) motion the Illinois traffic crash report regarding the accident at issue and an affidavit, dated September 18, 2019, which had been executed by the defendant. In his affidavit, the defendant listed his address at the time of the accident and asserted that he had not changed addresses since December 2016. The defendant further stated that he had not been employed outside of his home since December 18, 2018, and that he did not attеmpt to
evade service. The Illinois traffic crash report listed the defendant’s address as the same set forth in the defendant’s affidavit.
¶ 6 On November 20, 2019, the plaintiff filed a response to the defendant’s motion to dismiss.
In his response, the plaintiff argued that the defendant was not deprived of a fair opportunity to investigate the circumstances upon which liability against the defendant was predicated while the facts were accessible and that the plaintiff had not intentionally delayed service of process on the defendant. Attached to his response to the defendant’s motion to dismiss, the plaintiff also submitted several documents, including (1) an affidavit that had been executed by the defendant on January 17, 2017, (2) correspondence between the defendant’s co- attorneys Kacerovskis and Unsell, (3) correspondence from the plaintiff’s attorney Leonard Cervantes, (4) a computer printout of the circuit court docket, (5) an affidavit from the plaintiff’s counsel, and (6) a copy of the alias summons served upon the defendant. The defendant’s January 17, 2017, affidavit stated that he “was involved in a motor vehicle collision on December 22, 2016[,] in Madison County, Illinois” and that he had only one insurance policy that was applicable to the accident, which was from Traveler’s Insurance. He also provided the policy number for the insurance policy. On January 18, 2017, Unsell sent the defendant’s affidavit to Kacerovskis. The Leonard Cervantes correspondence attached to the plaintiff’s response was faxed to
Traveler’s Insurance on June 21, 2017. That document stated that Cervantes & Associates had assumed representation of the plaintiff regarding the December 22, 2016, automobile/ pedestrian accident. The letter stated that the firm of Cervantes & Associates was to receive a percentage of any amount recovered “whether by compromise or by suit.” Plaintiff’s counsel, Jennifer Suttmoeller, also filed an affidavit to support the plаintiff’s response. In that affidavit, plaintiff’s counsel stated that she was the attorney for the plaintiff and had requested a summons on the date she filed the wrongful death complaint against the defendant. She further denied that she ever received notice that the summons was issued on December 20, 2018, as reflected by the “Madison County Circuit Court Docket Sheet.” She also denied she ever received notice that the court, on May 1, 2019, set the matter for a case management conference. Instead, plaintiff’s counsel alleged that she discovered the notice of the case management conference on “the Madison County Circuit Court’s website” sometime in July 2019. Plaintiff’s counsel then alleges that this event led to the realization that the original summons was never served and prompted her to request that an alias summons be issued by the circuit court on August 9, 2019. The affidavit also indicated that plaintiff’s counsel was out of the office for extended periods of time during the months of March and April 2019. On Novеmber 21, 2019, the circuit court heard arguments from the parties regarding the
defendant’s motion to dismiss. Following the hearing, the court took the matter under advisement. The court also directed the plaintiff to file a supplemental affidavit and allowed the defendant to file a brief in response to the plaintiff’s cases cited during the hearing. On November 26, 2019, plaintiff’s counsel filed her supplemental affidavit. In the affidavit, counsel stated that she was an associate with the law firm of Cervantes & Associates in St. Louis, Missouri, and that the law firm was owned and operated by Leonard Cervantes “until his unexpected death on June 23, 2018.” Plaintiff’s counsel attested that “[p]rior to his death, this matter was solely being handled by Leonard Cervantes.” Further, she stated that Mr. Cervantes’s “untimely and unexpected death left the office personnel to figure out the status *4 of several matters previously *** handled by Mr. Cervantes, including administrative issues.” The plaintiff’s file was ultimately identified, and the lawsuit was filed four days prior the expiration of the statute of limitations. The plaintiff’s counsel next averred that she had never handled any Illinois cases without
supervision from Cervantes and she “mistakenly believed the Madison County Circuit Clerk’s office would prepare and return the summons to [her] for service.” Plaintiff’s counsel denied receiving the summons issued by the circuit clerk’s office. Plaintiff’s counsel went on to explain that when she did not receive the summons shortly after filing the complaint on December 18, 2018, she assumed it was due to the Christmas and New Year’s Eve holidays. Plaintiff’s counsel admitted that, “[d]ue to the press of other business, [she] failed to follow up to secure the summons.” Plaintiff’s counsel then stated that she suffered from a chronic medical condition, multiple sclerosis, that required her to take an extended leave of absence from her work during March and April of 2019. This leave of absence “compounded the backload of work at Cervantes & Associates,” which was still shorthanded due to Cervantes’s unexpected death. Finally, plaintiff’s counsel ended her affidavit by stating that her “failure to serve [the defendant] shortly after the expiration of the statute of limitations was due to inadvertence” and further that she could not identify any “harm or prejudice that resulted to [the defendant] for the delay in service of summons.” On November 27, 2019, the defendant filed his memorandum in support of his motion to
dismiss, which addressed the cases they had referenced during the hearing on the motion to dismiss. On December 30, 2019, the circuit court entered its order granting the defendant’s motion
to dismiss. In its order, the court found that the “record reflects that nothing transpired in the case until an [a]lias [s]ummons was issued by the [c]lerk on August 9, 2019” and that the “record does not reveal an affidavit of service,” but that the defendant had testified he was served on August 20, 2019, and had entered his appearance for the purposes of filing the motion to dismiss. In its analysis, the circuit court stated:
“In this case, the [p]laintiff waited until just before the expiration of the statute of limitation before filing suit. There was no apparent attempt оn the part of the [p]laintiff to secure service on the [d]efendant during the period of over 8 months following filing suit. And, the [p]laintiff offers very little in way of reason or excuse for the delay in obtaining service except to say that counsel ‘was out of the office for an extended period of time in March and April, 2019.’ *** [The p]laintiff provides the [c]ourt with no justification for the delay of the remaining 6 month period.” The circuit court then found that “there is nothing in the record that would suggest that the activities of the [d]efendant served to inhibit or prevent service of process upon him,” noting that his address was the same as that listed on the accident report. The circuit court acknowledged that the plaintiff’s prior counsel had communicated with the defendant regarding a possibility of a claim, but that “contact predated the filing of the lawsuit, and it appears from the record that more than 2 ½ years would pass before Defendant heard from the Plaintiff or his counsel again.” Further, nothing suggests that the dеfendant was aware of the pendency of the case or that he was a named party in the case until he was served with the complaint.
¶ 17 The circuit court then determined that the passage of eight months was “lengthy” and that
“inaction for that period of time tends to frustrate the purpose of and policy behind Rule 103(b).” The court concluded that, under the facts of this case, “it cannot be said that the [p]laintiff was reasonably diligent in effectuating or even attempting service after filing suit” and, further, that the plaintiff failed to provide “a countervailing explanation for the delay and inaction.” This appeal followed. II. ANALYSIS On appeal, the plaintiff contends that the circuit court abused its discretion in dismissing
the plaintiff’s complaint with prejudice pursuant to Rule 103(b). We disagree. For the reasons that follow, we find that the circuit court did not abuse its discretion in dismissing the plaintiff’s lawsuit. Rule 103(b) provides that, if the plaintiff fails to exercise reasonable diligence to obtain
service on a defеndant after the statute of limitations has expired, the circuit court may dismiss
the matter and that such dismissal shall be with prejudice. Ill. S. Ct. R. 103(b) (eff. July 1,
2007). In considering whether the plaintiff exercised reasonable diligence, the circuit court is
to consider the totality of the circumstances.
Id.
This court reviews the circuit court’s grant of
a dismissal pursuant to Rule 103(b) for an abuse of discretion.
Segal v. Sacco
,
be served, but the rule has the essential purpose of promoting the expeditious handling of
lawsuits by giving the circuit courts wide discretion to dismiss when service is not effectuated
with reasonable diligence.
Segal
,
reasonable diligence in effecting service of process, with each case turning on its own specific
facts.
Id.
at 1042. The determination of whether a plaintiff failed to exercise reasonable
diligence is a fact-intensive inquiry suited to balancing, not bright lines.
Id.
When deciding
whether to grant dismissal pursuant to Rule 103(b), the circuit court should consider the
following factors: (1) the length of time used to obtain service of process, (2) the activities of
the plaintiff, (3) the plaintiff’s knowledge of the defendant’s location, (4) the ease with which
the defendant’s whereabouts could have been ascertained, (5) the defendant’s knowledge of
the pendency of the lawsuit, (6) special circumstances which would affect the plaintiff’s
efforts, and (7) actual service on the defendant.
Segal
,
finding that the plaintiff did not use reasonable diligence in obtaining service upon the defendant. In other words, we must decide whether the circuit court’s determination that the plaintiff failed to use reasonable diligence in serving the defendant following the filing of the lawsuit was arbitrary, fanciful, unreasonable, or whether no reasonable person would adopt the circuit court’s view. We find this standard is not met. As noted above, in
“making a decision on a Rule 103(b) motion, the trial court should consider the following factors: (1) the length of time used to obtain the serviсe of process, (2) the activities of the plaintiff, (3) the plaintiff’s knowledge of the defendant’s location, (4) the ease with which the defendant’s whereabouts could have been ascertained, (5) special circumstances that would affect the plaintiff’s rights, and (6) actual service on the defendant.” McRoberts ,365 Ill. App. 3d at 1042-43 (citing Womick v. Jackson County Nursing Home ,137 Ill. 2d 371 , 377 (1990)).
“The plaintiff has the burden of showing reasonable diligence in the service of process and
must give a reasonable explanation for any apparent lack of diligence.” at 1043 (citing
Marks v. Rueben H. Donnelley, Inc.
,
between the filing of the lawsuit and the ultimate service on the defendant was approximately
eight months. While it is true that Rule 103(b) does not set forth any specific limitation within
which a defendant must be served, Illinois courts have held on numerous occasions that such
a delay is sufficient to warrant dismissal. See,
e.g.
,
Womick
, 137 Ill. 2d at 380-81 (Illinois
Supreme Court found dismissal with prejudice not an abuse of discretion where plaintiff never
attempted to serve the defendant at a known location for a period of nine months following the
filing of the lawsuit);
Luebbing v. Copley Memorial Hospital
,
finding of the plaintiff’s lack of due diligence in serving the defendant is unreasonable. When considering the factors the circuit court weighed, it is evident that nearly all the factors weigh in support of the defendant’s position and the circuit court’s determination to dismiss. Specifically, the factors included an eight-month delay in completing the service, the plaintiff’s failure to attempt to serve the defendant from the time of filing until the actual service, [2] the plaintiff’s counsel’s knowlеdge of the defendant’s location as it was listed on the
Illinois traffic crash report, the fact that the defendant’s address did not change during the three years following the accident prior to service, and, finally, the short time it took for the defendant to be served following the first attempt of service by the plaintiff’s counsel in August 2019. They all demonstrate the ease with which service could have occurred earlier. Therefore, the only factor that could weigh in favor of nondismissal is the special circumstances factor. The plaintiff’s counsel argues that the following circumstances combined together to result in the eight-month delay: (1) the unexpected death of her supervising attorney 6 months prior to the expiration of the statute of limitations and 14 months prior to service on the defendant, (2) the counsel’s failure to receive the summons from the Madison County circuit clerk’s office, and (3) the counsel’s having to take an extended leave of absence during March and April of 2019 duе to her chronic medical condition, multiple sclerosis. The plaintiff’s counsel explains that the death of her colleague combined with her leave of absence created a backlog of work in the law firm. In considering whether these special circumstances rise to a level to excuse such a delay in
service, we find
Sinn v. Elmhurst Medical Building, Ltd.
,
with his former attorneys and the illness of his mother during the pendency of the suit,” which prevented him from being able to timely serve the defendants. Id. at 790. However, our colleagues in the Second District upheld the circuit court’s dismissal under these circumstances. Id. at 790-92. The court found that the plaintiff had made no effort to serve the defendants between the time of filing and actual service. at 792. Additionally, the plaintiff that summons on the defendant or any attempt by her to follow up with the circuit clerk’s office as to
the reason she did not receive it.
offered no reasons or special circumstances as to why no attempts were made to serve the
defendants during the 4½ months following the settling of the dispute with Ramsell and the
obtaining of his file.
Id.
at 791-92. The court found that the only factors the plaintiff identified
as being favorable to him were that the defendants had actual notice of the occurrence and
presumably were not prejudiced by the delay.
Id.
at 790, 792. The court then noted that the
Illinois Supreme Court in
Womick
“held that actual notice of the suit and a lack of prejudice
will not necessarily preclude dismissal under Rule 103(b), since these are merely two of the
factors to be considered.” at 792 (citing
Womick
,
more, special circumstances explaining the service delay than the present matter, yet the Sinn court, applying the abuse of discretion standard, still upheld the circuit court’s dismissal. In Sinn , the plaintiff was not certain of who owned the property, and thus, the defendants were not exactly known at the time of filing. Here, the defendant was known and so was the defendant’s address. In Sinn , the plaintiff lost three or four months, during which time service could have been effectuated, due to the change of attorneys and subsequent fee dispute that resulted in his file being “held hostage.” In this matter, time is also claimed to have been lost due to the plaintiff’s counsel’s illness of approximately two months. When considering that circumstance in Sinn , the court chose to exclude that amount of time and, instead, focused on the 4½ months in which the plaintiff could have served the defendants but failed to do so. While we make no determination of whether or not a court is required to take such a step, likewise, here, once we remove the two months due to illness, we are left with six months in which service could have been effectuated—approximately two months more than that available to the plaintiff in Sinn . Finally, when we examine the circumstances more broadly, we have two significant special circumstances offered in both cases which the plaintiffs claim combined to form a perfect storm resulting in delayed service of process. In Sinn , it was the plaintiff’s file being held hostage and his mother’s illness; here, it is the plaintiff’s counsel’s illness and the sudden death of a colleague resulting in an increased workload. While special circumstances are offered by plaintiff’s counsel to explain portions of the delay, there exists in the present case, as in Sinn , several months оf time in which the defendant could have been served and was not, without any attempt at service or any sufficient explanation for the lack of an attempt at service. Additionally, we acknowledge that, according to plaintiff’s counsel, an issue with the
summons occurred that resulted in her never receiving it following the filing of the lawsuit.
However, this “special circumstance” does not weigh in her favor. As plaintiff’s counsel states
in her own affidavit, she was aware that she never received the summons from the circuit
clerk’s office, and she failed to follow up with it regarding the status of the summons “due to
the press of other business.” It is well established that attorneys have a duty to track and
monitor their cases and learn of developments in said cases, such as upcoming hearing dates.
Tiller v. Semonis
,
for the adоption of the rule and its predecessors, Rule 103(b) is not based upon the subjective
test of plaintiff’s intent, but, rather, upon the objective test of reasonable diligence in effecting
service.”
Cannon v. Dini
,
however, this reliance is misplaced. In
Segal
, a 4½-month delay in the service of process
occurred because the plaintiff’s counsel simply forgot to have the summons issued and served
on the defendant.
Id.
at 287. The circuit court granted the defendants’ subsequent Rule 103(b)
motion to dismiss with prejudice.
Id.
at 285. The appellate court found that the “length of time
used to obtain service of process[ ] is determinative,” and “the time here was simply too short
to permit dismissal with prejudice of the entire action.”
Segal v. Sacco
,
“In this case, because the length of the delay in the service of process was such that
the purpose of Rule 103(b) would not be served by dismissing plaintiff’s action, the
allowance of defendants’ Rule 103(b) motion by the circuit court was an abuse of
discretion. It would not be an abuse of discretion for a circuit court to allow a dismissal
with prejudice under Rule 103(b) for a delay equal to or shorter than the delay present
in this case if the delаy occurs under circumstances which serve to deny the defendants
a ‘fair opportunity to investigate the circumstances upon which liability against [the
defendants] is predicated while the facts are accessible.’ ” (quoting
Geneva
Construction Co. v. Martin Transfer & Storage Co.
,
Nursing Home
, 137 Ill. 2d 371 (1990).
Womick
was a unanimous decision by the supreme
court, decided only seven days following
Segal
. In
Womick
, the supreme court upheld the
*11
circuit court’s granting of the defendant’s Rule 103(b) motion to dismiss where the plaintiff’s
counsel failed to serve the defendant until nine months after filing the action. Factually, the
Womick
case is similar to the present case in that the plaintiff’s counsel knew where to serve
the defendant, the defendant had knowledge of the intention of the plaintiff to file a lawsuit,
the filing of the lawsuit occurred just before the expiration of the statute of limitations, and the
plaintiff’s counsel made no attempts to serve the defendant until service was effectuated nine
months after filing. The supreme court, in upholding the circuit court’s dismissal, looked at
other cases of similar lengths of delay in service, such as
Luebbing
,
¶ 37 Reiterating the words of our supreme court, “[i]n determining whether thеre has been an
abuse of discretion, we may not substitute our judgment for that of the trial court, or even
determine whether the trial court exercised its discretion wisely.”
Simmons
,
affirm the dismissal of the lawsuit with prejudice. Affirmed. JUSTICE CATES, dissenting: Illinois Supreme Court Rule 103(b) (eff. July 1, 2007) is intended to protect defendants
from stale claims resulting from unnecessary delay in the service of process and to prevent
circumvention of the statute of limitations.
Segal
,
service on a defendant after the statute of limitations has expired, the circuit court may dismiss
the matter and that such dismissal shall be with prejudice. Ill. S. Ct. R. 103(b) (eff. July 1,
2007). Rule 103(b) does not set forth any specific time limit within which a defendant must be
served. The rule has an essential purpose of promoting the expeditious handling of lawsuits by
giving the circuit court wide discretion to dismiss when service is not effectuated with
reasonable diligence.
Segal
, 136 Ill. 2d at 286. The plaintiff bears the burden of showing
reasonable diligence in the service of process and must provide a reasonable explanation for
any apparent lack of diligence.
McRoberts
,
to consider when deciding whether to grant dismissal pursuant to Rule 103(b):
“(1) the length of time used to obtain service of process; (2) the activities of plaintiff; (3) plaintiff’s knowledge of defendant’s location; (4) the ease with which defendant’s whereabouts could have been ascertained; (5) actual knowledge on the part of the defendant of pendency of the action as a result of ineffective service; (6) special circumstances which would affect plaintiff’s efforts; and (7) actual service on defendant.” Segal ,136 Ill. 2d at 287 .
Although not determinative, courts may also consider аdditional factors, such as a defendant’s
knowledge of the lawsuit prior to service of process, the lack of prejudice to the defendant, the
plaintiff’s efforts to obtain service through an alias summons, the occurrence of settlement
negotiations during the delay, and the plaintiff’s full or timely use of all available resources for
determining the defendant’s whereabouts. See
McRoberts
,
the discretion of the circuit court, the standard to be applied when determining whether a
plaintiff exercised reasonable diligence in effecting service of process is an objective one, with
each case turning on its own specific facts.
McRoberts
, 365 Ill. App. 3d at 1042. The
determination of whether a plaintiff failed to exercise reasonable diligence is a “fact-intensive
inquiry suited to balancing, not bright lines.” (Internal quotation marks omitted.)
Silverberg
,
process. The circuit court correctly noted that a police report was written and that the defendant’s address was on it. The circuit court further noted that the defendant was readily *13 available for service of process to be had upon him. While these were proper factors to consider, they were only two pieces of a much more complex analysis, which the circuit court declined to undertake. A review of the order of dismissal indicates that the circuit court failed to consider highly
relevant facts, which gave rise to the special circumstances underlying the plaintiff’s delay in serving the defendant. In its order, the court stated,
“There was no apparent attempt on the part of the Plaintiff [to] sеcure service on the Defendant during the period of over 8 months following filing suit. And, the Plaintiff offers very little in way of reason or excuse for the delay in obtaining service except to say that counsel ‘was out of the office for an extended period of time in March and April, 2019.’ ” Notably, the circuit court did not address the unique circumstances set forth in plaintiff’s
pleadings, affidavits, and arguments. One of the special circumstances that the plaintiff identified was the untimely death of the senior attorney, Mr. Cervantes, who had been handling the plaintiff’s case. According to the record, Mr. Cervantes was the only person in the firm who had worked on this case before his death in June 2018. He died, unexpectedly, prior to filing a complaint in this case, leaving three associates to manage his entire caseload, along with their own, and handle the administrative business of the office. In her initial and supplemental affidavits, plaintiff’s counsel of record acknowledged that the complaint was filed on Dеcember 18, 2018, four days before the expiration of the two-year statute of limitations. She also noted that a request for summons was made at that time. That request is set forth in the court’s docket sheet. Thus, there is some objective evidence of an attempt to obtain service on the defendant in a timely fashion. In her affidavit and supplemental affidavit, plaintiff’s counsel averred that while the circuit
court’s docket sheet indicated that the summons was issued, she never received notice of that, via the efile system. She further averred that she did not receive notice of an initial case management conference from the court or via the efiling system. Plaintiff’s counsel acknowledged that she had not previously handled cases in Illinois without the supervision of Mr. Cervantes and was unfamiliar with the filing system in Illinois. My colleagues have pointed out that the circuit court’s electronic docket sheet contains entries which indicate that a summons was issued to plaintiff’s counsel via efile, that a case management conference was scheduled, and that this information was always available electronically. Those facts, however, cannot be viewed in isolation, but instead must be considered as a part of the totality of the circumstances. That is the rule of law applicable to this case. In this case, there are additional facts and circumstances in the record that were not considered by the trial court and the majority. As set forth in plaintiff’s counsel’s supplemental affidavit, her leave of absence following the death of Mr. Cervantes “compounded” the backlog of work at the law firm. In addition to the untimely death of the senior attorney, the increased demands on plaintiff’s counsel resulting therefrom, and the difficulties with receiving communications and efiled notices from the court, plaintiff’s counsel also experienced a health issue. Within two months after the complaint was filed, plaintiff’s counsel required a two-month leave of absence due to an exacerbation of a chronic health condition—multiple sclerosis. The absence of discussion of these circumstances by the circuit court demonstrated a true lack of appreciation for what the majority has described as the “perfect storm.” *14 Plaintiff’s counsel also offered additional reasons to demonstrate that the delay in this case
was due to inadvertence. Once plaintiff’s counsel filed the complaint, she indicated a summons was requested but not received by counsel. Plaintiff’s counsel, incorrectly, assumed that the holidays had delayed the issuance of the summons. She admitted that she failed to follow up due to the press of other business. When plaintiff’s counsel discovered that the defendant had not been served, she requested an alias summons, and the defendant was promptly served. Thus, there are additional objective facts demonstrating that the failure to serve the original summons was inadvertent, resulting from unique special circumstances, rather than a lack of due diligence. Again, the circuit court failed to consider these facts in its order of dismissal. The circuit court also noted that plaintiff “waited until just before the expiration of the statute of limitation before filing suit.” This finding carries little weight where, as here, the lawsuit was timely filed. The circuit court’s finding only highlights its failure to consider the special circumstances factor in this case. As noted earlier, just six months prior to the unexpected death of Mr. Cervantes, the firm’s staff was required to determine the status of all the cases in the firm and handle other administrative matters formerly handled by the senior attorney. Once this case was identified, a complaint was placed on file before the statute of limitations expired. Therefore, Rule 103(b) was not used to subvert the expiring of the statute of limitations. Additionally, the circuit court failed to address the plaintiff’s arguments and supporting
exhibits regarding a lack of prejudice to the defendant. The record demonstrates thаt the
defendant and his attorneys were aware of the facts and circumstances of this case, as well as
the potential for litigation. On January 17, 2017, just one month after the accident, the
defendant executed an affidavit, admitting he was involved in the accident. Defendant’s
counsel and his insurance company were in possession of that affidavit, as well as the Illinois
Traffic Crash Report, which also referenced a police report No. 16-1183. The Traffic Crash
Report was attached to the defendant’s motion to dismiss. The occurrence witnesses to the
automobile/pedestrian accident were identified, and these witnesses were occupants in the
defendant’s vehicle. During the hearing on the motion to dismiss, the defendant’s counsel
advised the court that the liability was contested. Counsel claimed, “It is down on 111 in a dark
area, no lighting. The plaintiff ran across the road in front of my client’s vehicle and was struck.
So there—it is contested liability.” Based upon this record, it does not аppear, nor did the
defendant ever allege, that he was denied a fair opportunity to investigate the facts and
circumstances upon which liability was predicated while the facts were fresh and readily
accessible. See
Segal
,
them in its analysis. My colleagues have rejected the special circumstances, finding them subjective. I disagree. The plaintiff identified facts in the record that gave rise to special circumstances, and these facts cannоt be disregarded as we consider whether the circuit court abused its discretion in dismissing this case. In determining whether the circumstances offered by the plaintiff rise to a level to excuse
the delayed service of process, the majority finds the decisions in
Sinn v. Elmhurst Medical
*15
Building, Ltd.
,
there was no attempt to placе summons for a period of almost nine months after the expiration
of the statute of limitations and that no explanation had been offered for this inactivity.
Womick
,
not fit neatly within the cases discussed by the circuit court and by the majority. Indeed, the circumstances surrounding the untimely death of Mr. Cervantes—including that he had been exclusive counsel on this case, that his death left three younger associates to manage his firm, and that plaintiff’s counsel suffered a debilitating medical condition—constituted special circumstances that excused the delay in serving the defendant. The record clearly shows the delay in service in this case was due to inadvertence and was
not an intentional act. As noted earlier, our supreme court has recognized that the dismissal of
a cause with prejudice is “a harsh penalty” that is justified when the delay in service of process
is of a length which “denies a defendant a ‘fair opportunity to investigate the circumstances
upon which liability against [the defendant] is predicated while the facts are accessible.’ ”
Segal
,
the lack of prejudice to the defendant. Thus, dismissal of the plaintiff’s complaint was an abuse of discretion. Therefore, I dissent from the majority’s opinion.
Notes
[1] On January 22, 2016, the Illinois Supreme Court entered an order amending M.R. 18368, announcing mandatory e-filing or electronic filing of civil cases in the Illinois supreme, appellate, and circuit courts. Ill. S. Ct., M.R. 18368 (eff. Jan. 22, 2016). That same order required the electronic filing through a single, centralized electronic filing manager called eFileIL. That databased is often simply referenced using the term “efile.”
[2] Following the filing of the lawsuit, the court’s docketing sheet indicates that on December 20, 2018, a summons was issued and forwarded to the plaintiff’s counsel via efile for service on the defendant. Plaintiff’s counsel, in her supplemental affidavit responding to the defendant’s Rule 103(b) motion, denies ever receiving this summons, stating: “I did not receive [the summons] shortly after filing, [and] I assumed it was due to the Christmas and New Year’s holiday. Due to the press of other business, I failed to follow up to secure the summons.” Thus, while a summons appears to have been issued following the filing of the case, there was never an attempt by the plaintiff’s counsel to serve
[3] This court “may take judicial notice of readily verifiable facts if doing so ‘will “aid in the efficient
disposition of a case,” ’ even if judicial notice was not sought in the trial court.”
Aurora Loan Services,
LLC v. Kmiecik
, 2013 IL App (1st) 121700, ¶ 37 (quoting
Department of Human Services v.
Porter
,