will have up to fifteen minutes for arguments your palm off you have five minutes for a bottle you'll see the digital time keeping the price on my spring when time is expired i'll have to gavel and please remember only the court of the core is permitted to record these proceedings today and i think of judge do going to have the ability to see into the future two or three months and head in to support it this code would shut down that all cases have gone through we wouldn't be here today but unfortunately he didn't have that foresight and none of us did so this case really boils down to whether a plaintive should suffer the harsh penalty of a dismissal when there's been no prejudice and the uncontroverted evidence created by outside counsel and returned the traveller's for them and that was done on january th two thousand and seventeen so once again we're still within a month of the that travelers has already one of the inquiries what talk about later talk about later d is that they have an opportunity to conduct their investigation and if at some point within a month of the accident or from having your client do private counsel attest to the extent of their liability coverage and tendering that back to the plaintiff's counsel i think you've done your investigation or certainly you had the opportunity to do so but nevertheless the case didn't get some of that point and on june st two thousand and associates advised that they were taking over from the original plaintiff's counsel and that they would be handing the claim from there for out you know on june rd of two thousand and eighteen scene which would be four days before the expiration of the statute of limitations and there was no service on the defendant until aug th two thousand and nineteen which is roughly eight months from the date of service or thirty two weeks and then the dismissal order was entered on december th two thousand and nineteen so within about six months or so from  in that case well in siegel st arco the court said that there was no bright line rule but whether there was a balancing test and that's the supreme court legs and siegel also goes on to state that the harsh penalty of dismissal is only justified when the delay in service of process is  which denies a fair opportunity to investigate in this case it was thirty two dollars weeks eight months now we want to characterize it but the opportunity to investigate was never abridged it was never they had an opportunity and in fact they had filled out an affidavit attesting to the extent of that or insurance coverage within a year i mean within a month of the date and the defendant has never argued in the trial court or in this court that they were actually in any way prejudiced as a result of this delay there's no argument to that effect all others doing is in this case getting lost in the in the shuffle at their office which resulted in a delay in filing but also a delay in the process service a process and you know one of the factors laid out by the courts is whether the defendant or the plaintiff could have done more if the defendant was easily located things along those lines those all go for the defendant in this case there's nothing that we're arguing that you know other than inadvertent and lack of understanding as to how the summons were issued in the circuit clerk of madison county at that time so there's no question that the plaintiffs could have had this summons issued sooner they could observe the defendant sooner but that's not this that's not the end of the inquiry the inquiry truly should be whether or not there was any prejudice that resulted from this bank or prejudiced of such a sort that a plaintive should suffer this harsh reality of having her lawsuit d dismissed with prejudice and if you balance those factors justify this missile with prejudice because the defendant has never even alleged any element of prejudice or bias as a result of this delay of thirty two months pretty standard practice i thought it was reasonable diligence it is reasonable diligence but to determine whether or not someone has acted reasonably one of the factors to due diligence if it's merely a factory of the passage of time then i don't i think that's what the court lower court did the court just said hey eight months that's a long period of time and left its inquiry there and that's why i think that this is an arbitrary ruling of course that the the standard we're required to meet is  discretion was because you really only looked at the one time which was the passage of time the passage of time eight months you know it is what it is i mean we can't argue around that but the this that passage of time didn't cause any problem it didn't cause any delay in this case i mean it did cause celeb but it didn't cause any harm in this case and there's a rd district case from two months is the minimum delay that has to occur before the defense can even make a prime official showing of lack of due diligence so if you follow the star district case burglar it says they could have even made the prime aphasia case until they were within that window and were just slightly outside that window so then once they've made their prime aphasia case i think you have to look that's what judge good then should have done i believe in my opinion he should have looked down the other factors and really focused in on well ok so what what what is the downside of what's really happened because of this delay is that is that is there a harm present that i need to rectify by dismissing this lady's lawsuit analysis you consider of practice i think it's easily said no there's there's no harm here to rectify the harm was to the plaintiffs in delaying the resolution of a claim with the defendant hasn't played any type of harm thank you and once again that case says that the that the window is about five percent is five to seven months for a crime a facial showing and once again the punishment in this case certainly outweighs the harm in this case  you know once again we've said that the reason for the delay in there was a reason for the delay which was the passing of mr savan days and then the rest of his office not finding the case last minute and then  going out on medical leave right counsel didn't warn the complaint was filed he did he did he die several months before the complaint was filed so i'm not understanding how his well it doesn't really go into the delay of service it goes into a judge who can made a finding that they waited until the last couple days before the statute expired to file suit that went to why they waited so long to file suit then when they can't got out of wins once it was filed there was just i mean  leave but there was also just a misunderstanding or of how to get the summons issued from the circuit clerk i mean i don't think there's any way to slice that other than to say that was that i'm not sure i follow well it's important to know that back that you just mentioned that it was statue of limitations was almost expired in a couple of days  in then it was another eight months later whereas if they filed it a year before it would have not backward in the statute  i think if you i mean if there was a delay before the statute in the sense of he would have found it a year before and then not perfected service that would be in a different section of the of one of those three and it would justified under the circumstances of this case when the circumstances of the case being that there's no bias or prejudice by any of this activity i mean there's a lot of cases that you know a lot of states that aren't involved here passage of a year or year and a half or two and a half years doesn't really come into the equation just by the passage of time and there's got to be some other inquiry that's necessary or we could just have a rule that s ruiz is asking this court to affirm the order granting the defendants motion to dismiss pursuant to supreme court rule one hundred and three b as their trial court did not abuse its discretion i think i'd like to st with counsel's assertion with respect to that the passage of time is not the sole inquiry and in fact i would agree with that assertion i believe that when you look to the case law that both parties have presented here and that was considered by the lower court was considered by judge do again that this is a factor test and one of those factors that we look to is initially the amount of time it took for service and that's what the defendant could forward that's what we provided to the lower court to the trial court was the fact that it was eight months and it was as is justice justice moore inquired about it wasn't that eight months after the statute of limitations which is also addressed in the case law that this is a consideration and it's a consideration because when you file on the eve of the expiration of the statute if there  test between whether it's before the statute of limitations or after it's not whether or lease desire read the rule it's not whether it was four days before or eight days report two months before it's whether service was attempted before or after am i wrong about it your honor i do believe that that is it is a strict reading of the rule within the key saw that it's been cited there is an indication that that there is greater emphasis placed issued and there was never a return of summons filed no but that's different the clerk issues the summons and is supposed to send it to the attorney for service she claims she never got it is there anybody who refutes that no your honor i and how i would phrase it is it's not that we reviewed that she never got it but i think it's the reasoning that she never got it there is no reflection or indication that it wasn't provided serve mechanism it was simply that she was unfamiliar with that procedure to know that the summons had been returned to her so that she could then place it for service that's been provided within the record as well so that's something we have to assume based the fact of the filing and and her have a date and then we have her being out on medical leave because she has multiple sclerosis and and there's nothing that refutes that as far as to a two month period that's correct your honor and for that timeframe i would also like to adding a few was not ill during that time period that month or two mines i believe she indicated it was april and may of two thousand and nineteen i think or the end were in inquiry turns further though is that setting aside those two months what occurred other than that under rule one hundred and two we know that there's an obligation to that or if there is something spiraling of the original summons and no confirmation occurred that summons had been issued at that point we know then by counsel's own at test station that she wasn't familiar with that the keys had been set for case management in july of two thousand and nineteen she became aware of that and then there after sought the alias summons on august th two thousand and nineteen so even after that time for your period of returning from from being ill which is unfortunate obviously there there doesn't appear to have been diligence during those times or other efforts taken so what wasn't there wasn't there some notice she received when she came back from her medical illness about a case management order being set i believe that counsel had indicated she reviewed the court jacket and realized that it had been sat in july th that was after she had returned she she then realized that there had been a case management that caused her to inquire further pulled the file and realized that there was not service on the defendant at that time it's not clear why between whatever date in july until august th there was no summons requested but then once the summons was blasted on august th two thousand and nineteen service was affected within eleven days at the address that had always been provided forward and defend it so my question is then why isn't her after her illness reasonable i mean the issue here is coaxed statute of limitations is it what did she exercise reasonable and how was your client prejudiced in your honor i think i'd like to address that in two parts i think st i think it's a disservice to the defendant if we don't also focus on that time period between december th of two thousand and eighteen up through the illness and april that alone could be potentially four months of timeframe itself talks about that the court has to look at what the plaintiff did to attempt or locate or serve the defendant during that time period that case actually goes on to talk about situations where four months was enough and we know that why i say i think that that yes we do know that there is potentially up to a two month period in the midst of that time frame work counsel was undergoing illness i'm in we do not dispute that do not refute that but is simply what to after that time frame i  don't think is an correct analysis because we have the timeframe from the tiling right wing of the suit almost four months at the original illness time frame after the suit and any efforts that could have been made during that time frame and i think that the key issue is as your honor is already indicated is there's no attempt to serve the original summons what's whatsoever and i don't think that's disputed and then once the alias summons is requested there was significant ease in that service illness but we do know that there was an intentional we do know that according to her affidavit which isn't refuted that she didn't receive the summons if you can't if you don't receive it how do you serve it kind of thing you know that's my question you know what in your honor i'd like to go back and address that then because maybe when i wasn't clear previously i think the question of receiving summons here is is also a legal issue that once we have moved into this territory of eve filing where we are required as counsel to be able to interact with the courts but i had that that electronic filing process i would dispute that she did not receive it i mean it was provided to counsel the fact that counsel did not know apparently had to go in and get the summons and then place it for service nor did she and her role want to be in january when she was still in the office  say you know do i have service do i need to request an alias if i didn't get service how do i go go back in high tech or can obtain that so so i would i would make that distinction that i don't think it's a matter of she didn't receive see the summons it was  she did not apparently understand how to access that summons and pull it down to be able to them place so it would be your contention that two or three month period before she became ill is so unreasonable that it would require dismissal your honor i don't know that that standing alone but i think when we look to all the balancing all of the factors which the task i also would point out is not based a balancing balancing factor test where we look at jack diddly to the attempts that were made and unfortunately that requires us here to consider what attempts were were made unfortunately for counsel with the set of circumstances plaintiff's counsel what  factors and consider those objective analysis it's it there doesn't have to be a malicious intent there does not have to be over arching prejudice although i would every t issue with that if i may in a moment as well in terms of the  being investigation affidavit that verifies insurance coverage is nowhere near as investigation of a claim and that's the only evidence of any interaction with defendant ruiz any other communications after that time when be some type of intent and result and prejudiced or this two way in the favor of defendant i don't believe that that is correctly characterizing the case law that has analyzed this rule and i think that plaintiff's counsel is independence kind counsel is correct that there's not been a focus placed upon that question the record however does indicate the circumstances of this accident and it wasn't in unfortunate accident but it is one with with questionable liability given the fact that the individual was and it heavily traveled area a roadway at night time no reason to expect that that individual would have been crossing the road roadway so in terms accident but after that timeframe there is nothing more that happens in the defendant and there's nothing in the record that indicates that the defendant had any other notice or contact never knew that the suit had actually been filed until eight months after the ancyl did provide the affidavit assisting with the affidavit we were just discussing in january of seventy right so the insurance company we don't know as we sit here today whether the insurance company went out investigate it has a complete guy all i mean there at least from the defendant's point of view the individual defendant who kill was involved in the depth of this person we don't know that there's any prejudice to your client not the insurance company but the individual it just just the same the same indication that we discussed an inability to whether or not there was any ability to investigate obviously understand that there are insurers that may or may not be investigating behind that but i don't know that overtly the insurance company is where that analysis is directed because what he's not discussed is whether or not the defendant has noticed and i'm i'm not disputing with with your honor that it may be irrelevant inferring i just have not seen that the keys are discusses notice to the insurer as a separate but that was my question i think that was justice was questioned as far as this record go we have no effort by you to show credulous to your individual defend beyond indicating burden to then to to then justify i do see that over my time and i wonder if i might just provide one concluding its sentence or common law and i've simply i'm asking that when the court here  associate left a law firm around the same time in the in the defense was got really short handed and the case got lost in the shuffle and the court said that was a reasonable or was not a factor and i think clearly the court and couldn't going back to siegel says you've got to look at was were they trying to actually pull the statute of limitations by not infecting so they're trying to gain some sort of tactical advantage once again in this case there was no advantage to be had by drawing this out except to delay resolution and then my last comment would be on this affidavit in which the defense count private counsel and the insurance company counsel were communicating and perfected the release of this it's some point jim and we don't have this in the record but terms company took the under the insurance code the insurance company is required under certain circumstances to verify their level of coverage i think it's section one hundred and twenty four under the insurance gonaives could very well be wrong on that but they don't have the obligation to go on and prove all of their other potential coverages where this insured and that's what they did in this case so then it seems to me that they had made the decision that they were going to tender this policy and somebody was telling them i want to make sure there is no other policies i don't want just your verification as to coverage i want verification as to other available every just and that's when they they had outside counsel and  she prepared an affidavit and this was all done within a month of the accident so clearly they had knowledge they had the ability to do their investigation and i would suggest that  the circumstantial evidence suggests that they did do an investigation and they went out and said this is all we have here we've got an affidavit which was not by us by outside counsel so i can listen to anything else