Illinois Supreme Court Rule 103(b) allows dismissal of a case with prejudice when a plaintiff fails to exercise reasonable diligence in obtaining service on a defendant after the statute of limitations has expired. There is no clear line, however, that determines exactly how much delay is too much.
The recent Hernandez case[1] provides an interesting example of when a delay in serving a defendant becomes simply too long.
The Case
In December 2019, Plaintiff filed a slip-and-fall lawsuit against her landlords based on a January 2018 incident. The court issued summonses for defendants on the same day.
By April 2022, at least four more summonses had been issued for defendants, and the court granted leave to issue summonses five other times. (There was no evidence that summonses were actually issued on these five other occasions). The sheriff and special process servers filed affidavits documenting at least 27 separate attempts to serve the defendants at the address listed in the summonses, including repeatedly knocking on the door and a window. By speaking with other tenants, they confirmed that defendants resided at the address on the summonses. On one occasion, they also observed lights on inside the unit, but no service was made on that occasion. In April 2021, a skip trace on defendants confirmed that the address on the summonses was defendants’ most likely address.
After the court granted plaintiff leave to serve defendants by special order of the court, plaintiff’s special process server filed an affidavit stating that the complaint and summonses had been posted on the main door of the building at the address listed in the summonses in April 2022.
Following this, defendants entered an appearance by counsel and were able to get the court to grant defendants’ motion to quash service due to statutory deficiencies in the plaintiff’s motion to serve defendants by special order of the court. The court, however, granted the plaintiff leave to perfect service. Plaintiff’s special process server finally served defendants in September 2022. By this time, the statute of limitations for the plaintiff’s cause of action had expired.
The trial court ended up granting defendants’ subsequent motion to dismiss for lack of due diligence in serving defendants, noting that there was no evidence defendants were being evasive by not responding to the knocks on their doors and windows.
Analysis of the Ruling
The Seven-Factor Test
The First District relied on the seven-factor test established by the Illinois Supreme Court in Segal[2] to determine whether dismissal was proper under Illinois Supreme Court Rule 103(b).
These seven factors included:
- length of time used in obtaining service
- activities of plaintiff
- plaintiff’s knowledge of defendants’ location
- ease with which defendants’ whereabouts could have been ascertained
- defendants’ actual knowledge of the lawsuit despite ineffective service
- special circumstances affecting plaintiff’s efforts
- actual service on defendant
Plaintiff’s Service Efforts Fell Short
With respect to factors one and two, the appellate court found a substantial amount of time elapsed between the filing of the plaintiff’s complaint and when service was actually achieved. The court noted that plaintiff’s efforts were inconsistent and included a substantial period of inactivity, including five times when the trial court ordered summonses to be issued, but none were issued.
With respect to factors three and four, the appellate court noted that plaintiff knew where the defendants lived. The court pointed to the parties’ landlord-tenant relationship and a skip trace report confirming defendants’ residency as evidence that their whereabouts were easily determined.
Court Rejected Plaintiff’s Explanations for the Delay
Although plaintiff apparently provided notice of the lawsuit to defendants’ insurer, the appellate court found that notice was insufficient to establish that defendants had “actual knowledge” of the lawsuit under the fifth factor of the test.
Plaintiff also contended that the COVID-19 pandemic hindered service sufficiently to qualify as a special circumstance under the sixth factor of the test. The appellate court, however, disagreed. It found that plaintiff’s continued use of special process servers undermined that argument.
With respect to the seventh factor, the court simply noted that service was successfully achieved more than two years after the complaint was filed at the same address where plaintiff had first attempted service 32 months earlier.
After considering these factors, the First District found that the trial court did not abuse its discretion in granting the Rule 103(b) motion and affirmed the dismissal.
[1] Hernanez v. Ruiz., 20246IL App (1st) 232519
[2] Segal v Saco, 136 Ill.2d 282, 287 (Ill. 1990)