Any defense practitioner who frequently litigates in Illinois state court has seen this situation before. You are defending an action, and at some point, and for whatever reason, the plaintiff moves for a voluntary dismissal under 735 ILCS 5/2-1009. The dismissal order includes language giving plaintiff “leave to replead, with costs to be repaid upon refiling, etc.” Oftentimes, plaintiff does in fact refile the action within one year, pursuant to 735 ILCS 5/13-217, in the form of a new complaint with a new case number. The defendant is served in the new suit, and the litigation essentially picks up where it let off before the voluntary dismissal.
But what happens when a plaintiff refiles the original complaint under the original case number in the previously dismissed lawsuit instead of filing a new action with a new case number? Does that method satisfy the language of section 13-217, which states that a plaintiff may commence a “new action” after the case is voluntarily dismissed pursuant to section 2-1009? That is the certified question the Illinois Appellate Court was asked to answer in Eighner v. Tiernan, 2020 IL App (1st) 191369.
In Eighner, plaintiff alleged that he was injured in a motor vehicle collision with defendant. Plaintiff eventually voluntarily dismissed the case under section 2-1009, and the dismissal order indicated that the dismissal was without prejudice and that plaintiff had leave to reinstate the case within one year pursuant to section 2-1009. Approximately 25 days before the expiration of that one-year deadline, plaintiff’s counsel filed a document under the original case number entitled “Notice of Refiling Complaint Being Reinstated within One Year of Voluntary Dismissal,” along with a copy of the original complaint. Plaintiff’s counsel then informed defense counsel of the refiling. After several months went by without the case being reinstated, plaintiff’s counsel contacted the Cook County Clerk’s office and was told to refile the complaint under a new case number. Although counsel did so, the filing occurred approximately five months after the expiration of the one-year period allowed under section 13-217.
After defendant was served in the newly filed case, she filed a motion to dismiss under section 2-619(a)(5), arguing that because plaintiff filed the new complaint more than one year after the original complaint was dismissed, the new complaint was untimely filed and the case should be dismissed with prejudice. The trial judge ultimately denied the motion but did certify the above-referenced question under Illinois Supreme Court Rule 308.
Appellate Court Decision
On appeal, plaintiff argued that section 13-217 is not limited to only those actions filed under a new case number and that there was no rule that required him to do so to comply with the requirement in section 13-217. Plaintiff maintained that the trial correctly determined that his refiling of the original complaint was sufficient under the statute.
At the heart of the First District’s analysis was determining what was meant by the phase “may commence a new action” as set forth in section 13-217. Ultimately, the court sided with defendant and agreed that under the plain language of section 13-217, plaintiff was required to file a new lawsuit to comply with the “new action” requirement in the statute. In addition to applying the rules of statutory interpretation, the court relied on the Fourth District’s decision in Richter v. Prairie Farms Dairy, Inc., 2016 IL 119518, which held that a refiled action pursuant to section 13-217 is not a restatement of the old action, but an entirely new and separate action. The First District added that if the Legislature intended to allow plaintiff to refile under the old case number, it would not have used the words “new action” and would have provided a means to vacate the prior dismissal, which the court pointed out was absent from the statute. Finding that plaintiff failed to comply with section 13-217, the trial court’s ruling was reversed and the case was dismissed with prejudice.
From the standpoint of most litigation attorneys, it is a matter of course for plaintiff attorneys to refile a complaint under a new case number following a voluntary dismissal. Plaintiff’s counsel’s decision to do otherwise here is certainly bizarre. While the opinion itself does not provide an explanation, for what it’s worth, plaintiff’s counsel did admit at oral argument that the appeal resulted from “a comity of errors.”
Regardless, it is interesting that the court did not take its analysis a step further by addressing the hypothetical in which plaintiff would have vacated the prior dismissal before refiling under the old case number. While this arguably would have been more procedurally proper than plaintiff merely moving to reinstate the old case, it remains an open question whether this would have cured the defect and rendered plaintiff compliant with section 13-217.
The factual twist in this case turned a rather common scenario into a rather uncommon one. Still, defense counsel should take comfort knowing that arguments based on strict adherence to procedural rules can and should prevail despite seemingly harsh results, particularly against a plaintiff in the plaintiff-friendly venue of the Circuit Court of Cook County.