No. 2--07--0690 Filed: 5-20-08

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ DEBRA HATCHETT, ) Appeal from the Circuit Court ) of Wi nn eb ag o C ou nt y. Plaintiff -Appella nt, )

) v. ) No. 06--L--303 ) LARRY SWANSON, d/b/a Lig htning ) Bolt Cycling Club, ) Honorab le ) Janet R. Holmgren, Defendant-Appellee. ) Judge , Pres idin g.

_________

______________________________________________________________________ _ _ JUSTICE CALL UM delive

red the o pinion of t

he court : Plaintiff, Debra Hatchett, appea ls fro m an orde

r of the c ircuit co

urt of Winne

bago Cou nty dism issi ng, with prej udice, he r personal injury

lawsuit a

gainst d efenda nt, La rry Swanso n, d/b/ a Lightning Bolt Cy cling Clu b. The tri al court

grante d defend

ant's mo tion to dismi ss th e a ction pursuant to Supreme

Court Rule 103(b) (177 Ill. 2d R. 103(b)), on the g rounds that plaintiff

failed to exercise diligence in obtaining service on de fendant. Plaintiff had previo usly filed a la wsuit against defendant concerning the same subject ma

tter, but she volunta

rily dismissed i

t pursuan t to section2--1009 of the Code of Civil Procedure (Code) (735 ILCS 5/2--1009 (West 2004)). Plaintiff argues that the trial court improperly considered the circumstances of the original lawsuit in ruling
ondefenda

nt's motion to dism iss. We disagree. Nevertheless, we c onclude that the trial court improper ly considered the length of time that elapsed betwe en the dismissal of the original suit andNo. 2--07--0690

-2-

the commencement

of this one. Accordingly , we vacate the dismissal and remand to the trial court for reconsideration of its decision. This lawsuit arose from injuries that plaintiff allegedly suffered on November 22, 1998, while she was a spectator at a bicy cle race sponsored by

defendant. Plaintiff filed her earlier lawsuit on Novem ber

20, 2000--just two days befor e the expiration of the two-ye ar statute of limitations fo r personal in

ju ry a ct io ns . S um mo ns wa s s er ve d o n d ef en da nt tw o d ays later. On September 24, 2003,
anorder was entered setting the ca se for trial on May 3, 2004. Four days befor e t rial was

to commence, the trial court entered an order g ranting plaintiff's motion for a continuance, a nd the trial date was stricken. On Augu st 19, 2004 , the tria l court se t the cas e for trial on February 7, 2005. On February 2, 2005, the case was taken off the trial call. Subsequently , a pretrial conference wa s scheduled for Aug ust 23, 2005. A

t the pretrial conferenc e, plaint iff volun tarily dismissed the action pursuant to section 2--1009 of the Code. Despite the expira

tion of the

applica ble statut e of limitations, plaintiff refiled the action on August 21, 2006, pursuant to s ection 13-- 217 of the Code, whic

h provide s that, if a

n action i s voluntar ily dismissed or dismissedfor want of prosecution, the plaintiff "may commence a new actionwithin one year or

within the remaining period of limitation, whichever is grea ter, *** after the a ction is voluntarily dismissed by the plaintiff, or the action is dismissed for want of prosecution." 735 IL CS 5/13--217 (West 1994). The comp laint was served on defend

ant roug hly 17 weeks lat er, on D ece mb er 1 9, 2 006 . De fen dan t m ove d t o di sm is s pu rsu ant to Ru le 1 03( b). In determiningthat the time taken to obtain service showed a lack of diligence, the trial court noted, inter alia , that the lawsuit arose from an accident in 1998; that plaintiff filed the origina l lawsuit near the end of the

applica ble limitations period; that the trial was continued twice on plaintiff's motionNo. 2--07--0690

-3-

before the case was voluntarily dismissed; and that the action was re filed near the end of the one-ye ar period set forth in section 13--217 of the Code. Supreme Court Rule 103(b) has been amended several times since it was originally adopted. From 197 0 throug

h June 1997, the rule

provided as follow s: "If the plaintiff fails to exercise reasonable diligence to ob tai n service prior to the expiration of

the applicable statute of limitations, the action as a whole or as to any unserve d defendant may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain service occurs after the expiration of the app lica ble statute of limitations, the dism issal shall be w

ith prejud

ice. I n either case the dismissal ma

y be made on the application of any de fendant or on the court's own motion." 58 I ll. 2d R. 103(b). Pursuant to an amendment that took effect July 1, 1997, the r ule provided: "If the plaintiff fails to exercise reasonable diligence to obtain service on

a defen dant, the acti on as to tha

t defend ant may be dismisse d without pr

ejudice , with the r

ight to r efile if the statute of limitation has not run. The dismissal may be made on the application of any defendant or on the court's own motion." 177 I ll. 2d R. 103(b). According

to the Committee Comments to Rule 103(b), the 1997 amendment "eliminates the res judic ata

effect (but not the statute of limitation effect) of a Rule 103(b) dismissal." 177 Ill. 2d R. 103(b), Committee Comments. As the Committee Comments explain:

"Bec ause a Rule 103(b ) dism issal will be 'wit hout preju dice' for res judica ta purposes , the dismissal will not extinguish any claims that the plaintiff might have against an undismisseddefendant. Whether the dismissal will extinguish the plain tiff's claims against the dismissed defendant will depend on whether the dismissal occurs before or after theNo. 2--07--0690

-4-

statute of limitation has run. If

before, the plaintiff will be able to refile; if after , the plaintiff will be unable

to refile because the claim s wil l be time-bar red." 177 Ill. 2d R. 103(b), Committee C omments. This version of the rule was in effect on April 3, 2007, when the trial court entered its order dismissing pl ai nt if

f' s c om pl ai nt wi th pr ej ud ic e ( ev en th ou gh th e r ul e e xp re ss ly provided for dismissa l withoutprejudice). However, another a mendment to the rule took effect on July 1, 2007. Pursuant to that ame

ndment, Ru

le 103(b) curren tly p rovides: "If the plain tiff fai ls to exercise reasonable diligence to obtain servic e on a defendant prior to the expiration of the applicable statute of limitations, the action as to that defendant may be d is mi ss ed w it hou t p rej udi ce. If the failu re to exer cise reasona

ble dilig ence to o

btain service on a defendant occurs after the e xpiration of

the applicable statute of

limitations, the dismissal shall be with prejudice as to that d efenda nt only and shall not bar a ny c laim ag ainst any other pa rty based on vicario us liability

for that d

ismisse d defendant's conduct. The dismissal may be made

on the application of any par ty or on t he c our t's own mo ti on. In consideringthe ex ercise of reasonable diligenc e, the court shall review the totality of the circumst ances, including both lack of reasonable diligence

in any previous case vol untarily dismissedor dismisse d for wa nt of pros ecution, and the exercise of reasona ble dilig ence in obtaining service in any

case refiled under

section 13--217 of the Code of Civil Procedure." Official Reports Advance Sheet No. 13 (June 20, 2007), Rule 103(b), eff . July 1, 2007. The Committee Comments pertaining to this amendment state that it "clarified that a Rule 103(b) dismissal which oc curred after the expirati on of the a pplicabl e statute of

limitations shall be made with prejudice as to that defendant if the failure to exercise reasonable diligenc e to obtain serviceNo. 2--07--0690

-5-

onthe defendant occurred afte r the expiration of the applicable statute of limitations" and that the amendment

"applies the holding in Martinez v. Erickson , 127 Ill. 2d 112, 121-22 (1989), requiring
a trial judge 'to consider service a fter refiling in the light of the entire history of the case' including
reasona ble diligence by

plaintiff after refiling." Off icial Reports Advance Sheet No. 13 (June 20, 2007), R. 103, Committee Comments, eff. July 1, 2007. The trial cou rt's r uling on a

motion to dismiss pursuant

to Rule 103 (b) will not be distu r bed absent an abuse of discretion. Case v. Galesburg Cottage Hospital , 227 Ill. 2d 207, 213 (2007). Plaintiff argues that

the amount of time that passed from the day her complaint was refiled to the day ser

vice was obtained--17 weeks--wa s not long enough to warran t dismiss al under

Rule 103(b). Plaintiff relies on our supreme court's decision in Segal v. Sacco , 136 I ll. 2d 282 ( 1990), in whichthe plaintiff

"inadvertently

forgot" to place the complaint with a spe cial pro cess ser ver until 19 weeks after the complaint was filed. Segal , 136 Ill. 2d at 287. The court observed:

"Different factors which a court may consider in determining whether to allow or deny a Rule 103 (b) motion

inclu de, but are not l imited to, ( 1) the le ngth of t ime used to obtain service of process; (2) the activities of plaintiff; (3) pla intiff's knowledge of defend ant's location; (4) the ease w ith which defendant's whereabouts could ha ve been ascertained; (5) actual knowledge on the part of the defendant of pendency of the action as
a result of ineffec tive serv

ice; (6)special

circumst ances w hich woul d affect plaintif

f's ef forts; and (7) actual service on defe ndant." Segal , 136 Ill. 2d at 287. Inconcludi

ng that t he trial c ourt abus ed its disc retion in d

ismissi ng the action un

der Rule 103(b), the Segal court reasoned:No. 2--07--0690

-6- "Dismissal of

a cause with prejudice under Rule 103(b)is a harsh penalty which is justified when the delay in servic e of process is of a length which denies a defenda nt a 'fa ir opportuni ty to investigate the circumstances upon which liability against [the defe

ndant] is pred icated wh ile the fac ts ar e ac cess ible. ' [Cit

ation .] In thi s case, d

efenda nts were de

puty sheriff s. Plaintiff knew defendants were employ ed in the office which normally ef fectuates service of proce ss on defe ndants in civil suits. Upon discovery that defendants had not been served, it was not unreasonable for plaintiff to have moved for the appointment of special process servers. After the special proce ss servers were appointed, both def endan ts were served w ithin 12 da

ys. Inthis case, becau se 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 t he delay pr

esen t in this case if the delay occ urs under circumstances which serve to deny the defe ndants a ' fair opp ortunity

to investig ate the circ

umstance s upon whic

h liability against[ the defendants] is predicated while the facts a re acc essible. ' [Citation .] Under su ch circ umstance s, the purpose of Rule 103(b), the protection of defendants from unnecessar y delay and the prevention of th e circumvention

of the statu te of limi tations, would be pro moted." Segal , 136 Ill. 2d at 288-89. Plaintiff notes that the delay in ser ving process here was shorter tha n the delay in Segal
. She argues that the delay did not result in the sort of pr ejudice Segal describ ed, so dismissal was an abuse of discreti on. Plainti ff ackn owledg es that Segal differs from t he present case because it did notNo. 2--07--0690

-7-

involve an action that had been re filed af

ter volu ntary di smissal of

a case c oncerni

ng the sa me
s ubjectma tter. However, she argue s, in essence, that the fact that an action has been r efiled following a volunta

ry dismissal is

germa ne under Rule 103(b) only

if the plain tiff fai led to exer

cise diligence to serve the defendant in the original action. There is no question that plain tiff dilig ently
o b tained service in the first action. Thus, according to plaintiff, Segal is controlling. Defendant responds that, in ruling on a Rule 103(b) motion, the trial court should consider the entire history of the case an

d base its decision on the tota

lity of th e circu

mstances. Cons equen tly, in d efenda nt's view, the relevance of the first action g oes beyond the question of

how quickly service

was obtained in that action. Ona number of occasions, our supreme court has c onsidered Rule 103(b)'s diligence requirement

in connection with an action that was refiled

after a voluntary

dismissal or a dismissal for want of prose cution. Fi ve d ecisions-- Aranda v. Hobart Manufacturing Corp. , 66 Ill. 2d 616 (1977), O'Connell v. St. Francis Hospital , 112 Ill. 2d 273 (1986), Catlett v. Novak , 116 Ill. 2d 63 (1987), Muskat v. Sternberg , 122 Ill. 2d 41 (1988), and Martinez --merit some discussion here. In Aranda , the court

held that , when a s

uit is refiled after a dismissal for want of prosec ution, the trial court, in assessing diligence for purpose s of Rule 103(b), may c onsider the overall span of time between the filing of the first complaint and the ultimate servic e of summons in the second
case. The court emphasized, however, that "the period of time within

which pla

intiff mus t obtain service following the refiling of his suit *** cannot be so abbreviated as to make th e right

*** [to refile] mean ingless." Aranda , 66 Ill. 2d at 620. In O'Conne ll , the court held that a plaintiff should not be permitte d to volunta rily dismiss a complaint so as to thwart a defendant's motion to dismiss with prejudice under Rule 103(b). When,No. 2--07--0690

-8-

inresponse

to a defe ndant' s Rule 103(

b) motion, the plain

tiff move s to volunta

rily dismiss the action, the trial cou

rt must con sider th e defendant's mo tion on th e meri ts bef ore rul ing on the pl ainti ff's mot ion for voluntary dismissal. O'Conne ll , 112 Ill. 2d at 283. The court further held that, whe n ruling on a Rule 103(b) motion, "the trial court may consider the circumstances surrou ndin g plain tiff's service of process on his original as well as his re filed complaint." O'Conne ll , 112 Ill. 2d at 283. The court rea soned tha t " [n]othing is more critical to the judicial function than the administration of justice w ithout de lay" ( O'Conne ll , 112 Ill . 2d at 282) a nd th at, to prope rly disch arge this function, "the judiciary must be unimpeded in considering and rendering judgments on matters befo re it" ( O'Conne ll , 112 I ll. 2d at 28 2). Acc ording t o the cour

t, "[w]her e a plain tiff (1)fails to exercise due diligence, particularly w here his failur

e continu es long a fter the expiration

of the sta tute of limitations; (2) takes a voluntary dismissal pursua nt to se ction 2-- 1009 when his dilige

nce is chall enged b y a Rule 10 3(b) m otio n; and (3) ref iles h is act ion u nder s ectio n 13-- 217, e ven th ough promptly effecting service on his ref iled complain

t, justice is truly and unnecessa rily delay ed." O'Conne ll , 112 Ill. 2d at 282. Catl ett extended the rule in O'Conne ll to cases where the defendant is never served in the original case and therefore has no opportunity to file a Rule 103(b) m otion i n the original case. Catlett , 116 Ill. 2d at 70. The court condemned the practice of employ ing the right to dismiss and refile "so as to protract unduly

and unfa irly the service of pr

ocess on a

defenda nt and def

eat Rule 103(b )'s effort to in sure the prom pt admini stration o f justice." Catlett , 116 I ll. 2d at 70. In Muskat , the court reaffirmed its holdings in O'Conne ll and Catlett , observi ng that " [t]he ration

ale of those
cases is that this court may not be thwarted in its constitutional mandate to render

justice fairly andNo. 2--07--0690

-9-

promptly by the manipulation of the statutory provisions relating to dismissal and the refiling of suits." Muskat , 122 Ill. 2d at 48. In Martinez , the plai

ntiff file d two factually

related medical malpractice lawsuits on th e d ay,
or the day before , the statu

te of limita

tions expire d. The pla

intif f v ol un ta ri ly dismissed t

he first lawsuit about nine

months af

ter it wa s filed. T

he other lawsuit wa s dismi ssed for want of prosecution

about seven months after it was filed. The plaintiff did not attempt to obtain service on the defenda

nts in eithe

r lawsuit . Almost

one y ear af ter the f irst lawsuit was voluntarily dismissed, the plaintiff

refiled a single lawsuit a gainst a ll of the de fendant s in

both of the

prior actions. All of the defendants were served within abou t 21⁄2 weeks from the day the lawsuit was filed. The trial court grante d the def

endant' s motion to di smiss pursuant to Rule 103(b), but the appellate court reversed. Martinez v. Erickson , 155 Ill. App. 3d 1093 ( 1987), rev'd ,127 Ill. 2d 112 (1989). The appell ate court re asoned that O'Conne ll did not apply retroac tively. Our supreme c ourt disagree d and held that the trial court properly considered the lack of di ligence in obtaining service in the original suits. Nonetheless, our supreme court expressed concern that, in g rantingthe moti on to dismiss, the trial court may have g iven too mu

ch weig ht to the lack of diligence in the earlier a ctions and not enough weight to the plaintiff's c onduct after refiling. The Martinez court stated:

" According

to the O'Connell standard, as devel oped, the circuit judge is to consider service after refiling in light of the entire history of the case. He cannot disregard obvious diligence
onthe part

of the pla

intiff af ter ref il ing. T he deter

mination of

diligence must be

made in light of the tota

lity of the ci rcumstan ces. Theref

ore, we believe that a ne w hearin g should be conducte d by

the circ uit judge , so that he may re consider the defendants' motions in light of the views expressed here." (Emphasis added.) Martinez , 127 Ill. 2d at 121-22.No. 2--07--0690

-10-

Ineach of these ca ses, the plaintiff failed to exercise diligence to obtain service in the origina l lawsuit. It seems clear that the holding s in Aranda , O'Conne ll , Catlett , Muskat , and Martinez were animated by the conce

rn that a plaintif

f could a buse sections 2--1 009 and 13 --217 of the Code in order to circumvent

Rule 103(b) in the original lawsuit. Without the supreme court's interdiction, suchabuse could be accomplished e ither by filing a section 2 --1009 mo tion in ord er to pre empt a Rule 103(b) mo tion filed

by a tardily served d efenda nt or by simply failing to serve the defendant at all. The decisions are therefore dire ctly releva nt in situations where the plaintiff's conduct in the original lawsuit would have justified a dismissal under Rul e 103(b). A s plaintif f astutel y ob serves, however, that is not the case here
. Th e c om pl ai nt in th e o ri gi na l a ct io n w as se rv ed on ly t wo da ys after it was filed. Although not directly on point, these decisions are instructive, inasmuch as they evince

an overarching

poli cy t hat justice should be administered without delay
. E.g. , O'Conne ll , 112 Ill. 2d at 282. As Martinez broadly states, the det ermination of diligence must be made "in light of the totality of the circum stances." Martinez , 127 Ill. 2d at 122. One might conclude that, whe n consi dered i n cont ext, the co urt's remark refers only to the need to consider diligence in obtaining service in both the original and the refiled cases. That, e ssentially, is pl ainti ff's position. She contends that circumstances of theoriginal case that do not relate to service of process should not be considered. Our supreme court seems to have ta ken a broader view of the totality-of- thecircumstances test. The

most rece

nt amendment t o Rul e 103 (b) a dded the d irective t hat, "[i]n consideringthe exercise of reasonable diligence , the court shall re vie w the totality of the circumst ances, including both lack of re asonable diligence in any previous case voluntarily dismissed
or dismissed f

or want o f prosec

ution, and the exerc ise of reas onable diligence in obtaining serviceNo. 2--07--0690

-11-

inany ca se refiled under section 13--217 of the Code of Civil Procedure ." (E mphasis adde d.) Official Reports A dva nce Sheet No. 13 (June 20, 2007), R. 103(b), eff. July 1, 2007. T he word "incl udin g" indicates that the relevant circumstances are not limited to diligence in obtaining service ina refile d lawsuit

and the lack thereof in a previously dismissed suit, although those circumstances are of sufficient importance to rece ive specific mention. Of course, the 2007 amendment to Rule 10 3(b) to ok effe ct after the trial court en tered its dismissal order. If the dire ctive that the trial court consider th e totality of the circumstances reflected
a change in the law, a potentially thorny question

might ar ise as to whether the

amendme

nt should apply retroactively . However, we do not believe that the amendm ent changed the law. The Committee Comments in dic a te that the amendment was designed to codify the principles of Martinez , so in this regard the amendments were declarative of e xisting law (rather than a

departure from it). Inour view , examinati on of the t otality of the circumstances properly includes consideration of whether the action is

an original one or one refiled af ter either a voluntary

dismissal or a dismissal for want of prosecution. When assessing diligence in obtaining service in a

refiled action, it is clear that diligen ce in obta ining se rvice in the original acti on is a par ticularl y si gnif icant consideration. However, it is also appropriate to consider how long the original ac tion was pen ding and other circumstances bearing

on Rule 103 (b)'s o

bjective of affording de fendant s justic e w it ho ut de la y. Accord Case , 227 I ll. 2d at 20 9, 222 (where ori ginal a ction was voluntar ily dismissed25 days afte

r it was filed, action

was ref iled 11 mon

ths later , and def

endants were ser

ved 8 to 14 days later, tria l court could consider only the pe riods during which laws uit was pending in determining whether plaintiff was diligent in obtaining service). Moreover, the conduct of the parties in contributing toNo. 2--07--0690

-12-

any delay in the original action would also s eem to be germane under the " totality of the circumst ances" app roach. F or purposes of determining what Rule 103(b)' s diligence requirement entails, an orig inal laws

uit stands on a diffe

rent f ooti ng from

a refile d suit; wha

t might am

ount to diligence in the former case mig ht not in the latter. Plaintiff contends that the tr ial cour

t should not

get "b ogge d down" i

n conside ration of all of the circumstances of the original action. We agree that the tria l court need

not mire itself in an exhaustive survey of e

very possible source of delay

in the original action. However, where the trial court is familiar with the original action or, from examination of the record, is able to d raw rel iable general concl usio ns abo ut th e plai ntiff 's diligence, we see no reason why the trial court

should not consider the rel evant circum stanc es of t he ori gi nal laws uit in rulin g on a Rul e 103(b)motion to dis m iss th e re fil ed a cti on. The tri al j udg e in th is cas e al so p res id ed o ver th e or igi nal act io n. In determ inin g wheth er the d elay in ob taini ng serv ice was antit hetic al to R ule 10 3(b)'s objective, the court was entit led to con sider the

length of time the original case was pending and the fact that the matter was set f or trial t wice be fore pla

intiff vol untarily dismissed the action, and it cou ld reasonably conclude that plaintiff had not acted with diligence. Alth ough the trial cou

rt was en titled to consider the circumstances of the origina l action, the court should not have considered the leng thof time plaintiff waited before refiling her suit. During the pendency

of this appeal, our supreme court issued its decision in Case , specifically holding that "the time that elapses betwe e n the dismis sal of a p laintiff 's compl aint and i

ts refilin g pursuant to section13--217 is not to be considered by a court when ruling on a motion to dismiss for violation of Rule 103(b )." Case , 227 Ill. 2d at 222. Obviously , the tria l court c annot be f

aulted f or failin g to anticipa te the holding in Case
. However , because the court's considera tion of an improper factorNo. 2--07--0690

-13-

may have affected its decision, we vaca te the order granting def endan t's motion to dismiss and remand the cause for reconsider ation in light of Case
. Vacated and remanded. BOWMAN and GROMETER, JJ., concur.