“ NOT NOW, NOT HERE : SUPREME COURT RULE 103(b) & FORUM NON CONVENIENS MOTIONS”

1. “NOT NOW, NOT HERE: SUPREME COURT RULE 103(b) & FORUM NON CONVENIENS MOTIONS” Judge Lynn M. Egan Judge Daniel T. Gillespie September 26, 2014

2. 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.

3. 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)

4. 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

5. 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.

6. 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.

7. 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.

8. 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

9. 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

10. 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.

11. 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).

12. RELATION BACK – SECTION 2-616(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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.)