The lawsuit brought by Patricia Emrickson against Fernando Morfin was dismissed with prejudice because Ms. Emrickson’s attorney relied on an online search service that had inaccurate information about the current address for the defendant, Mr. Morfin. Under Illinois Supreme Court Rule 103(b), a suing plaintiff has a duty to use reasonable diligence in serving a defendant with the complaint.
In this case, the lawsuit was filed by Ms. Emrickson just a short time before the two-year statute of limitations had run out. Although the lawsuit was filed in a timely fashion, Mr. Morfin was not served immediately with the complaint, which alleged that Ms. Emrickson was injured in a car accident. It took 13 months before Mr. Morfin was finally served with a summons.
According to the Illinois Appellate Court, Ms. Emrickson chose not to use reasonable diligence in having Mr. Morfin served before the statute of limitations expired, opening the way for Mr. Morfin to dismiss the case with prejudice under Rule 103(b).
In this case, the court pointed out that the lawyer for Mr. Emrickson chose not to check the accident report, which included Mr. Morfin’s current address. On that basis, the trial judge granted the motion to dismiss without specifying whether he was considering a period of delay of 7 or 13 months. Ms. Emrickson’s attorney argued that it was really only a 7-month delay in serving Mr. Morfin.
However, the Illinois Appellate Court affirmed the trial court’s ruling, concluding that it was not an abuse of discretion in granting the motion. The court also stated that Rule 103(b) allows for the dismissal of a complaint based on plaintiff’s failure to exercise reasonable diligence in effectuating service upon a defendant. The rule allows for the dismissal with prejudice when the lack of diligence in service occurs after the running of the statute of limitations.
The law was passed to prevent the intentional delay of service of summons on a defendant for an indefinite amount of time in order to circumvent the applicable statute of limitations. Karpiel v. LaSalle National Bank, 119 Ill.App.2d 157 (1970). In Karpiel, the court stated that, “The rule has an essential purpose in promoting an expeditious handling of suits by giving a trial court wide discretion to dismiss when service is not effected with reasonable diligence.”
Under Rule 103(b), there is no specific time limit in which to serve a defendant but, it requires the exercise of reasonable diligence in timely serving a defendant in a lawsuit.
In moving to dismiss a case under Rule 103(b), a defendant must make a prima facie showing that the plaintiff failed to exercise reasonable care in serving the defendant with the complaint. Kole v. Bubaker, 325 Ill.App.3d 944 (2001).
Under 103(b) and the case law, once the defendant establishes that the time between the filing of the complaint and the date of service is suggestive of a lack of diligence, the burden then shifts to the plaintiff to show a reasonable explanation as to why there was a delay.
In this case, the plaintiff filed the lawsuit on Feb. 13, 2009 and perfected service on the defendant 13 months later, March 17, 2010. It has been shown in other cases that even 5 months between the filing of the complaint and service is sufficient to establish a prima facie showing of a failure to diligently effect service. Verploegh v. Gagliano, 396 Ill.App.3d 1041 (2009).
It was pointed out in this decision that Rule 103(b) is based on the objective test of reasonable diligence. The plaintiff’s subjective intent is immaterial. Christian v. Lincoln Automotive, 403 Ill.App.3d 1038 (2010).
It was said that a trial court may consider several elements in determining whether the plaintiff has met the burden of diligence, but is not limited to these:
1. The length of time used to obtain service of process;
2. The activities of the plaintiff;
3. The plaintiff’s knowledge of the defendant’s location;
4. The ease with which the defendant’s whereabouts could have been ascertained;
5. Actual knowledge on the part of the defendant of the action pending and ineffective service;
6. Special circumstances which affect the plaintiff’s efforts; and
7. Actual service on the defendant.
Segal v. Sacco, 136 Ill.2d 282 (1990).
In this case, the Illinois Appellate Court found that there were no peculiar circumstances that would have been a reasonable cause of the delay in diligently serving the defendant. Therefore, the court found that there was no abuse of discretion in dismissing the plaintiff’s complaint with prejudice.
Emrickson v. Morfin, 2012 IL App. (1st) 111687.
Kreisman Law Offices has been handling car accidents, truck accidents, motorcycle accidents, pedestrian accidents, bike accidents and nursing home abuse cases for individuals and families for more than 36 years, in and around Chicago, Cook County and its surrounding areas including, Lockport, Burbank, Summit, Westmont, Carol Stream, Elgin, Aurora, Winfield, Round Lake Beach and Harvey, Ill.
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