WILLIAM SEGAL, Plaintiff-Appellant, v. EUGENE SACCO et al., Defendants-Appellees.
No. 87-1445
First District (3rd Division)
September 28, 1988
175 Ill. App. 3d 504
The judgment of the circuit court of Cook County, which granted an evidentiary hearing and quashed the search warrant, is reversed and the matter is remanded for further proceedings.
Reversed and remanded.
WHITE, P.J., and RIZZI, J., concur.
Louis S. Goldstein, of Chicago (Michael W. Rathsack, of counsel), for appellant.
Richard M. Daley, State‘s Attorney, of Chicаgo (Joan S. Cherry, Myra J. Brown, and Rebecca J. Davidson, Assistant State‘s Attorneys, of counsel), for appellees.
JUSTICE McNAMARA delivered the opinion of the court:
The sole issue on appeal is whether plaintiff William Segal showed that he exercised reasonable diligence where he waited 4 1/2 months to obtain service of process on defendants Eugene Sacco and Charles Thornton. The trial court dismissed the complaint for failure to show due diligence pursuant to
On December 8, 1983, plaintiff was allegedly assaulted by defendants, both deputy sheriffs. On December 9, 1985, рlaintiff filed this action. The complaint was not placed for service at that time. On April 24, 1986, plaintiff moved for the appointment of a special process server, and defendants were served on April 29, and May 5, 1986. On November 17, 1986, the court granted defendants’
Dismissal under
The key dates here are the December 9, 1985, filing of the complaint, and the April 24, 1986, placement of the summonses for service. The first factor, length of time used to obtain service of process, is determinativе here. The other factors need not be addressed at length in a case such as this, where plaintiff makes no pretense of having searched telephone books, various registration directories, or performed other activities in search of defendants. Plaintiff acknowledges that he simply did not place the summonses for service after filing the action.
We find the vast majority of cases dismissing an action pursuant to
For cases where the court found the time unreasonable and dismissed the case, see, e.g., Viking Dodge Inc. v. Hofmann (1987), 161 Ill. App. 3d 186, 514 N.E.2d 248 (16 months between expiration of statute of limitations and service), North Cicero Dodge, Inc. v. Victoria Feed Co. (1987), 151 Ill. App. 3d 860, 503 N.E.2d 868 (20 months), Penrod v. Sears, Roebuck & Co. (1986), 150 Ill. App. 3d 125, 501 N.E.2d 367 (seven months between issuance of summons and delivery to sheriff for service), Gatto v. Nelson (1986), 142 Ill. App. 3d 284, 492 N.E.2d 1 (27 months), People ex rel. Margetich v. McCarroll (1981), 97 Ill. App. 3d 502, 423 N.E.2d 266 (27 months), Wallace v. Smith (1979), 75 Ill. App. 3d 739, 394 N.E.2d 665 (2 1/2 years), Piscitello v. Barton (1978), 66 Ill. App. 3d 451, 384 N.E.2d 47 (13 months after original summons returned unserved), Luebbing v. Copley Memorial Hospital (1978), 60 Ill. App. 3d 780, 377 N.E.2d 345 (summons obtained 10 months after complaint filed), Phifer v. Hayes (1974), 20 Ill. App. 3d 635, 314 N.E.2d 473 (five years), Lee v. Decker (1974), 17 Ill. App. 3d 93, 307 N.E.2d 773 (42 months), Department of Mental Health v. Kendall (1973), 15 Ill. App. 3d 881, 305 N.E.2d 389 (3 1/4 years after first summons returned unserved), Alsobrook v. Cote (1971), 133 Ill. App. 2d 261, 273 N.E.2d 270 (2 1/2 years), Ray v. Bokorney (1971), 133 Ill. App. 2d 141, 272 N.E.2d 836 (three years after filing, trial court dismissed, followed by plaintiff‘s first attempt to find defendant and serve him), Mosley v. Spears (1970), 126 Ill. App. 2d 35, 261 N.E.2d 510 (13 months), Karpiel v. La Salle National Bank (1970), 119 Ill. App. 2d 157, 255 N.E.2d 61 (14 months), and Caliendo v. Public Taxi Service, Inc. (1966), 70 Ill. App. 2d 86, 217 N.E.2d 369 (30 months).
Even the cases involving shorter lengths of time, where the court found unreasonable delay, do not approach the 19-week delay presented here. (See, e.g., O‘Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 492 N.E.2d 1322 (eight months).) There are few cases available which involve either a very short period of time, or a finding that the cause should not have been dismissed for lack of due diligence. See, e.g., Dupon v. Kaplan (1987), 163 Ill. App. 3d 451, 516 N.E.2d 727 (10 months not unreasonable where eight unsuccessful attempts in three months to serve defendant аt his office); Licka v. William A. Sales, Ltd. (1979), 70 Ill. App. 3d 929, 388 N.E.2d 1261 (service 13 months after filing complaint, efforts to find defendant extensive); Schultz v. McElroy (1973), 9 Ill. App. 3d 940, 293 N.E.2d 353 (seven months after
We conclude that the trial court abused its discretion in dismissing this action.
For the foregoing reasons, the order of the circuit court of Cook County dismissing the cause with prejudice is reversed, and the cause is remanded for further proceedings cоnsistent with the views contained herein.
Judgment reversed and remanded.
FREEMAN, J., concurs.
PRESIDING JUSTICE WHITE, dissenting:
The majority misapprehends the issue in this appeal. I note that because the mistake leads to error in its conclusion. The issue here is not, as the majority says, “whether plaintiff William Segal showed that he exercised reasonable diligence where he waited 4 1/2 months to obtain service of process on defendants” (175 Ill. App. 3d at 505); rather, it is whether the trial court abused its discretion in holding that plaintiff failed to exercise reasonable diligence and granting defendants’ motion to dismiss pursuant to
The subject of this appeal is an order entered by the circuit court of Cook County which dismissed plaintiff‘s complaint with prejudice.
The record reveals that on December 9, 1985, рlaintiff filed a complaint seeking damages for personal injuries allegedly suffered by him
Defendants’ motion to dismiss was scheduled for hearing on October 16, 1986. On that date, plaintiff‘s cоunsel appeared and requested a continuance of the hearing. The court allowed plaintiff‘s request and the matter was set for November 17, 1986. Plaintiff failed to appear on that date and defendants’ motion to dismiss was granted. Plaintiff thereafter filed а motion to vacate the order of dismissal which was denied by the trial court. On appeal, plaintiff claims that he exercised reasonable diligence in obtaining service upon defendants and that the trial court erred in dismissing his cause of action.
“If the plaintiff fails to exercise reasonable diligence to obtain service prior to the expiration of the applicable statute of limitations, the action as a whole or as to any unserved defendant may be dismissed without prejudice. If the failure to еxercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice. In either case the dismissal may be made on the application of any defеndant or on the court‘s own motion.”
107 Ill. 2d R. 103(b) .
The purpose of this rule is to protect defendants from unnecessary delays in the service of process and to prevent the circumvention of statutes of limitation. (Hanna v. Kelly (1980), 91 Ill. App. 3d 896, 414 N.E.2d 1262.) Yet, this rule is not based upon the subjective test of plаintiff‘s intent but rather upon the objective test of reasonable diligence in effecting service. (Phifer v. Hayes (1974), 20 Ill. App. 3d 635, 314 N.E.2d 473.) The burden is on the plaintiff to show that he has exercised reasonable diligence to obtain service, and the defendant need not establish that he has been prejudiced by the delay. Gatto v. Nelson (1986), 142 Ill. App. 3d 284, 492 N.E.2d 1; Greenwood v. Blondell (1980), 85 Ill. App. 3d 186, 406 N.E.2d 204.
Although each case must be decided on its own particular facts and circumstances, six factors commonly have been used in evaluating dismissals under
In the instаnt case, plaintiff filed his complaint on December 9, 1985, just before the two-year statute of limitations expired. He knew where defendants worked and could have located defendants for service at their place of employment or through their employer. Yet, plaintiff made no effort to have summonses issued by the clerk or served until 4 1/2 months after the complaint was filed and the statute of limitations had expired. There is no evidence that plaintiff had any difficulty in locating defendants or that there were prior unsuccessful attempts at service. Indeed, plaintiff offered no excuse for failing to have the summonses issued and served earlier.
A party to a lawsuit has a nondelegable duty to take all necessary steps to bring his case to a prompt conclusion. It wаs the plaintiff‘s duty here to (1) assure that the summonses were issued by the clerk; (2) deliver the summonses for service by the sheriff or a special process server; and (3) see that a prompt and proper return was made by the process server. Plaintiff‘s failure for over four months to obtain prompt issuance of the summonses and to deliver them for service shows a lack of due diligence. (See Penrod v. Sears, Roebuck & Co. (1986), 150 Ill. App. 3d 125, 501 N.E.2d 367; Luebbing v. Copley Memorial Hospital (1978), 60 Ill. App. 3d 780, 377 N.E.2d 345.) In the words of the majority, “Plaintiff acknowledges that he simply did not place the summonses for service after filing the action.” (175 Ill. App. 3d at 506.) In the absence of a satisfactory explanation, the delay in effecting service on defendants clearly was unreasonable. Gatto v. Nelson (1986), 142 Ill. App. 3d 284, 492 N.E.2d 1.
In light of the passage of time, plaintiff‘s inactivity, his knowledge of defendants’ whereabouts, and the ease with which service could have been accomplished, I cannot conclude with the majority that the trial court‘s dismissal of plaintiff‘s complaint was an abuse of its discretion.
Therefore, I dissent.