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

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________

DEBRA HATCHETT, ) Appeal from the Circuit Court

) of Winnebago County.

Plaintiff-Appellant, )

)

v. ) No. 06--L--303

)

LARRY SWANSON, d/b/a Lightning )

Bolt Cycling Club, ) Honorable

) Janet R. Holmgren,

Defendant-Appellee. ) Judge, Presiding.

_________________________________________________________________________________

JUSTICE CALLUM delivered the opinion of the court:

Plaintiff, Debra Hatchett, appeals from an order of the circuit court of Winnebago County

dismissing, with prejudice, her personal injury lawsuit against defendant, Larry Swanson, d/b/a

Lightning Bolt Cycling Club. The trial court granted defendant's motion to dismiss the action

pursuant to Supreme Court Rule 103(b) (177 Ill. 2d R. 103(b)), on the grounds that plaintiff failed

to exercise diligence in obtaining service on defendant. Plaintiff had previously filed a lawsuit

against defendant concerning the same subject matter, but she voluntarily dismissed it pursuant to

section 2--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

on defendant's motion to dismiss. We disagree. Nevertheless, we conclude that the trial court

improperly considered the length of time that elapsed between the dismissal of the original suit and
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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 onNovember 22, 1998,while

she was a spectator at a bicycle race sponsored by defendant. Plaintiff filed her earlier lawsuit on

November 20, 2000--just two days before the expiration of the two-year statute of limitations for

personal injury actions. Summons was served on defendant two days later. On September 24, 2003,

an order was entered setting the case for trial on May 3, 2004. Four days before trial was to

commence, the trial court entered an order granting plaintiff's motion for a continuance, and the trial

date was stricken. On August 19, 2004, the trial court set the case for trial on February 7, 2005. On

February 2, 2005, the case was taken off the trial call. Subsequently, a pretrial conference was

scheduled for August 23, 2005. At the pretrial conference, plaintiff voluntarily dismissed the action

pursuant to section 2--1009 of the Code.

Despite the expiration of the applicable statute of limitations, plaintiff refiled the action on

August 21, 2006, pursuant to section 13--217 of the Code, which provides that, if an action is

voluntarily dismissed or dismissed for want of prosecution, the plaintiff "may commence a new

action within one year or within the remaining period of limitation, whichever is greater, *** after

the action is voluntarily dismissed by the plaintiff, or the action is dismissed for want of

prosecution." 735 ILCS 5/13--217 (West 1994). The complaint was served on defendant roughly

17 weeks later, on December 19, 2006. Defendant moved to dismiss pursuant to Rule 103(b). In

determining that 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 original lawsuit near

the end of the applicable limitations period; that the trial was continued twice on plaintiff's motion
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before the case was voluntarily dismissed; and that the action was refiled near the end of the one-year

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 1970 through June 1997, the rule provided as follows:

"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 exercise 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 defendant or on the court's own motion." 58 Ill. 2d R. 103(b).

Pursuant to an amendment that took effect July 1, 1997, the rule provided:

"If the plaintiff fails to exercise reasonable diligence to obtain service on a defendant,

the action as to that defendant may be dismissed without prejudice, with the right to refile

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 Ill. 2d R. 103(b).

According to the Committee Comments to Rule 103(b), the 1997 amendment "eliminates the

res judicata 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:

"Because a Rule 103(b) dismissal will be 'without prejudice' forresjudicata purposes,

the dismissal will not extinguish any claims that the plaintiff might have against an

undismissed defendant. Whether the dismissal will extinguish the plaintiff's claims against

the dismissed defendant will depend on whether the dismissal occurs before or after the
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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 claims will be time-barred." 177 Ill. 2d R. 103(b),

Committee Comments.

This version of the rule was in effect on April 3, 2007, when the trial court entered its order

dismissing plaintiff's complaint with prejudice (even though the rule expressly provided for dismissal

without prejudice). However, another amendment to the rule took effect on July 1, 2007. Pursuant

to that amendment, Rule 103(b) currently provides:

"If the plaintiff fails to exercise reasonable diligence to obtain service on a defendant

prior to the expiration of the applicable statute of limitations, the action as to that defendant

may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain

service on a defendant occurs after the expiration of the applicable statute of limitations, the

dismissal shall be with prejudice as to that defendant only and shall not bar any claim against

any other party based on vicarious liability for that dismissed defendant's conduct. The

dismissal may be made on the application of any party or on the court's own motion. In

considering the exercise of reasonable diligence, the court shall review the totality of the

circumstances, including both lack of reasonable diligence in any previous case voluntarily

dismissed or dismissed for want of prosecution, and the exercise of reasonable diligence 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 occurred after the expiration of the applicable statute of limitations shall be made

with prejudice as to that defendant if the failure to exercise reasonable diligence to obtain service
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on the defendant occurred after 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 after refiling in the light of the entire history of the case' including

reasonable diligence by plaintiff after refiling." Official Reports Advance Sheet No. 13 (June 20,

2007), R. 103, Committee Comments, eff. July 1, 2007. The trial court's ruling on a motion to

dismiss pursuant to Rule 103(b) will not be disturbed 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 service was obtained--17 weeks--was not long enough to warrant dismissal under Rule

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

which the plaintiff "inadvertently forgot" to place the complaint with a special process server 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 include, but are not limited to, (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 ofineffective service; (6) special circumstances which would affect plaintiff's efforts;

and (7) actual service on defendant." Segal, 136 Ill. 2d at 287.

In concluding that the trial court abused its discretion in dismissing the action under Rule

103(b), the Segal court reasoned:
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"Dismissal of a cause with prejudice under Rule 103(b) is a harsh penalty which 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.' [Citation.] In this case, defendants were deputy

sheriffs. Plaintiff knew defendants were employed in the office which normally effectuates

service of process on defendants 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 process servers were appointed, both defendants were

served within 12 days.

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

delay 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.' [Citation.] Under such circumstances, the purpose of Rule

103(b), the protection of defendants from unnecessary delay and the prevention of the

circumvention of the statute of limitations, would be promoted." Segal, 136 Ill. 2d at 288-89.

Plaintiff notes that the delay in serving process here was shorter than the delay in Segal. She

argues that the delay did not result in the sort of prejudice Segal described, so dismissal was an abuse

of discretion. Plaintiff acknowledges that Segal differs from the present case because it did not
No. 2--07--0690

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involve an action that had been refiled after voluntary dismissal of a case concerning the same

subject matter. However, she argues, in essence, that the fact that an action has been refiled

following a voluntary dismissal is germane under Rule 103(b) only if the plaintiff failed to exercise

diligence to serve the defendant in the original action. There is no question that plaintiff diligently

obtained 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 and base its decision on the totality of the circumstances. Consequently, in defendant's

view, the relevance of the first action goes beyond the question of how quickly service was obtained

in that action.

On a number of occasions, our supreme court has considered Rule 103(b)'s diligence

requirement in connection with an action that was refiled after a voluntary dismissal or a dismissal

for want of prosecution. Five decisions--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 suit is refiled after a dismissal for want of prosecution,

the trial court, in assessing diligence for purposes of Rule 103(b), may consider the overall span of

time between the filing of the first complaint and the ultimate service of summons in the second

case. The court emphasized, however, that "the period of time within which plaintiff must obtain

service following the refiling of his suit *** cannot be so abbreviated as to make the right *** [to

refile] meaningless." Aranda, 66 Ill. 2d at 620.

In O'Connell, the court held that a plaintiff should not be permitted to voluntarily dismiss a

complaint so as to thwart a defendant's motion to dismiss with prejudice under Rule 103(b). When,
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in response to a defendant's Rule 103(b) motion, the plaintiff moves to voluntarily dismiss the action,

the trial court must consider the defendant's motion on the merits before ruling on the plaintiff's

motion for voluntary dismissal. O'Connell, 112 Ill. 2d at 283. The court further held that, when

ruling on a Rule 103(b) motion, "the trial court may consider the circumstances surrounding

plaintiff's service of process on his original as well as his refiled complaint." O'Connell, 112 Ill. 2d

at 283. The court reasoned that "[n]othing is more critical to the judicial function than the

administration of justice without delay" (O'Connell, 112 Ill. 2d at 282) and that, to properly discharge

this function, "the judiciary must be unimpeded in considering and rendering judgments on matters

before it" (O'Connell, 112 Ill. 2d at 282). According to the court, "[w]here a plaintiff (1) fails to

exercise due diligence, particularly where his failure continues long after the expiration of the statute

of limitations; (2) takes a voluntary dismissal pursuant to section 2--1009 when his diligence is

challenged by a Rule 103(b) motion; and (3) refiles his action under section 13--217, even though

promptly effecting service on his refiled complaint, justice is truly and unnecessarily delayed."

O'Connell, 112 Ill. 2d at 282.

Catlett extended the rule in O'Connell to cases where the defendant is never served in the

original case and therefore has no opportunity to file a Rule 103(b) motion in the original case.

Catlett, 116 Ill. 2d at 70. The court condemned the practice of employing the right to dismiss and

refile "so as to protract unduly and unfairly the service of process on a defendant and defeat Rule

103(b)'s effort to insure the prompt administration of justice." Catlett, 116 Ill. 2d at 70. In Muskat,

the court reaffirmed its holdings in O'Connell and Catlett, observing that "[t]he rationale of those

cases is that this court may not be thwarted in its constitutional mandate to render justice fairly and
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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 plaintiff filed two factually related medical malpractice lawsuits on the day,

or the day before, the statute of limitations expired. The plaintiff voluntarily dismissed the first

lawsuit about nine months after it was filed. The other lawsuit was dismissed for want of

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

the defendants in either lawsuit. Almost one year after the first lawsuit was voluntarily dismissed,

the plaintiff refiled a single lawsuit against all of the defendants in both of the prior actions. All of

the defendants were served within about 21⁄2 weeks from the day the lawsuit was filed. The trial

court granted the defendant's motion to dismiss 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

appellate court reasoned that O'Connell did not apply retroactively. Our supreme court disagreed

and held that the trial court properly considered the lack of diligence in obtaining service in the

original suits. Nonetheless, our supreme court expressed concern that, in granting the motion to

dismiss, the trial court may have given too much weight to the lack of diligence in the earlier actions

and not enough weight to the plaintiff's conduct after refiling. The Martinez court stated:

"According to the O'Connell standard, as developed, the circuit judge is to consider service

after refiling in light of the entire history of the case. He cannot disregard obvious diligence

on the part of the plaintiff after refiling. The determination of diligence must be made in

light of the totality of the circumstances. Therefore, we believe that a new hearing should

be conducted by the circuit judge, so that he may reconsider the defendants' motions in light

of the views expressed here." (Emphasis added.) Martinez, 127 Ill. 2d at 121-22.
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In each of these cases, the plaintiff failed to exercise diligence to obtain service in the original

lawsuit. It seems clear that the holdings in Aranda, O'Connell, Catlett, Muskat, and Martinez were

animated by the concern that a plaintiff could abuse sections 2--1009 and 13--217 of the Code in

order to circumvent Rule 103(b) in the original lawsuit. Without the supreme court's interdiction,

such abuse could be accomplished either by filing a section 2--1009 motion in order to preempt a

Rule 103(b) motion filed by a tardily served defendant or by simply failing to serve the defendant

at all. The decisions are therefore directly relevant in situations where the plaintiff's conduct in the

original lawsuit would have justified a dismissal under Rule 103(b). As plaintiff astutely observes,

however, that is not the case here. The complaint in the original action was served only two days

after it was filed.

Although not directly on point, these decisions are instructive, inasmuch as they evince an

overarching policy that justice should be administered without delay. E.g., O'Connell, 112 Ill. 2d

at 282. As Martinez broadly states, the determination of diligence must be made "in light of the

totality of the circumstances." Martinez, 127 Ill. 2d at 122. One might conclude that, when

considered in context, the court's remark refers only to the need to consider diligence in obtaining

service in both the original and the refiled cases. That, essentially, is plaintiff's position. She

contends that circumstances of the original case that do not relate to service of process should not

be considered. Our supreme court seems to have taken a broader view of the totality-of-thecircumstances test. The most recent amendment to Rule 103(b) added the directive that, "[i]n

considering the exercise of reasonable diligence, the court shall review the totality of the

circumstances,including both lack of reasonablediligence in anyprevious case voluntarily dismissed

or dismissed for want of prosecution, and the exercise of reasonable diligence in obtaining service
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in any case refiled under section 13--217 of the Code of Civil Procedure." (Emphasis added.)

Official Reports Advance Sheet No. 13 (June 20, 2007), R. 103(b), eff. July 1, 2007. The word

"including" indicates that the relevant circumstances are not limited to diligence in obtaining service

in a refiled lawsuit and the lack thereof in a previously dismissed suit, although those circumstances

are of sufficient importance to receive specific mention.

Of course, the 2007 amendment to Rule 103(b) took effect after the trial court entered its

dismissal order. If the directive that the trial court consider the totality of the circumstances reflected

a change in the law, a potentially thorny question might arise as to whether the amendment should

apply retroactively. However, we do not believe that the amendment changed the law. The

Committee Comments indicate that the amendment was designed to codify the principles of

Martinez, so in this regard the amendments were declarative of existing law (rather than a departure

from it).

In our view, examination of the totality of the circumstances properly includes consideration

of whether the action is an original one or one refiled after 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 diligence in obtaining service in the original action is a particularly significant consideration.

However, it is also appropriate to consider how long the original action was pending and other

circumstances bearing on Rule 103(b)'s objective of affording defendants justice without delay.

Accord Case, 227 Ill. 2d at 209, 222 (where original action was voluntarily dismissed 25 days after

it was filed, action was refiled 11 months later, and defendants were served 8 to 14 days later, trial

court could consider only the periods during which lawsuit was pending in determining whether

plaintiff was diligent in obtaining service). Moreover, the conduct of the parties in contributing to
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any delay in the original action would also seem to be germane under the "totality of the

circumstances" approach. For purposes of determining what Rule 103(b)'s diligence requirement

entails, an original lawsuit stands on a different footing from a refiled suit; what might amount to

diligence in the former case might not in the latter.

Plaintiff contends that the trial court should not get "bogged down" in consideration of all

of the circumstances of the original action. We agree that the trial court need not mire itself in an

exhaustive survey of every 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 draw reliable

general conclusions about the plaintiff's diligence, we see no reason why the trial court should not

consider the relevant circumstances of the original lawsuit in ruling on a Rule 103(b) motion to

dismiss the refiled action. The trial judge in this case also presided over the original action. In

determining whether the delay in obtaining service was antithetical to Rule 103(b)'s objective, the

court was entitled to consider the length of time the original case was pending and the fact that the

matter was set for trial twice before plaintiff voluntarily dismissed the action, and it could reasonably

conclude that plaintiff had not acted with diligence.

Although the trial court was entitled to consider the circumstances of the original action, the

court should not have considered the length of 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 between the dismissal of a plaintiff's complaint and its refiling pursuant to

section 13--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 trial court cannot be faulted for failing to

anticipate the holding in Case. However, because the court's consideration of an improper factor
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may have affected its decision, we vacate the order granting defendant's motion to dismiss and

remand the cause for reconsideration in light of Case.

Vacated and remanded.

BOWMAN and GROMETER, JJ., concur.