Segal v. Sacco

• Decision Date: 23 May 1990
• Docket Number: No. 68038,68038
• Citation: 144 Ill.Dec. 360,555 N.E.2d 719,136 Ill.2d 282
• Parties: , 144 Ill.Dec. 360 William SEGAL, Appellee, v. Eugene SACCO, Deputy Sheriff, et al., Appellants.
• Court: Illinois Supreme Court

Page 719

555 N.E.2d 719

136 Ill.2d 282, 144 Ill.Dec. 360

William SEGAL, Appellee, v.Eugene SACCO, Deputy Sheriff, et al., Appellants.

No. 68038.

Supreme Court of Illinois.

May 23, 1990.

Richard M. Daley, Cecil A. Partee, State's Attys., Chicago (Joan S. Cherry, Deputy State's Atty., Myra J. Brown, Kenneth T. McCurry and Frank J. Oles, Asst. State's Attys., of counsel), for appellants.

Michael W. Rathsack, Chicago (Louis S. Goldstein and Cindy G. Fluxgold, of counsel), for appellee.

James T. Newman, Robert J. Cooney & Associates, Chicago, for amicus curiae Illinois Trial Lawyers Ass'n.

Justice CALVOdelivered the opinion of the court:

On December 9, 1985, plaintiff, William Segal, filed a complaint in the circuit court of Cook County against defendants, Deputy Sheriffs Eugene Sacco and Charles Thornton.Plaintiff alleged that defendants assaulted him while defendants were executing a levy on December 8, 1983.Plaintiff did not place his complaint for service with the sheriff.

On April 24, 1986, plaintiff filed a motion in the circuit court for leave to have a special process server appointed; the motion was granted.Defendants were subsequently served on April 29, 1986, and May 5, 1986.Nineteen weeks passed between the filing of plaintiff's complaint and placement of the complaint for service with the special process server.

On July 2, 1986, after a determination was made by the office of the State's Attorney to represent defendants in this matter, counsel from the State's Attorney's office filed a motion to vacate any technical defaults and for leave to file appearances for defendants.Also filed by defendants was a section 2-619 motion(Ill.Rev.Stat.1985, ch. 110, par. 2-619) to dismiss plaintiff's complaint with prejudice based upon Supreme Court Rule 103(b)(107 Ill.2d R. 103(b)).The motions were scheduled to be heard on October 16, 1986.On that date, plaintiff requested and received a continuance until November 17, 1986.On November 17, 1986, plaintiff failed to appear and the circuit court allowed defendants' motion to dismiss with prejudice based upon Supreme Court Rule 103(b) for failure to exercise reasonable diligence to obtain service.

On April 3, 1987, plaintiff's motion to vacate the dismissal order was denied, and plaintiff appealed to the appellate court.On September 28, 1988, the appellate court, with one justice dissenting, reversed the circuit court's order of dismissal with prejudice.(175 Ill.App.3d 504, 124 Ill.Dec. 921529 N.E.2d 1038.)On December 20, 1988, defendants filed a motion before this court for leave to file their petition for leave to appeal instanter.This court allowed defendants' motion on December 27, 1988, and allowed defendants' petition for leave to appeal on April 15, 1989(107 Ill.2d R. 315).An amicus curiae brief was filed by the Illinois Trial Lawyers Association.

Defendants' section 2-619 motion was based upon Supreme Court Rule 103(b).Rule 103(b) provides:

"(b) Dismissal for Lack of Diligence.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."107 Ill.2d R. 103(b).

Rule 103(b) does not state a specific time limitation within which a defendant must be served.The rule "has an essential purpose in promoting the expeditious handling of suits by giving trial courts wide discretion to dismiss when service is not effected with reasonable diligence."(Karpiel v. LaSalle National Bank(1970), 119 Ill.App.2d 157, 161, 255 N.E.2d 61.)The plaintiff has the burden of showing reasonable diligence in service of process.(Alsobrook v. Cote(1971), 133 Ill.App.2d 261, 273 N.E.2d 270.)Dismissal under Rule 103(b) is within the sound discretion of the circuit court.Mosley v. Spears(1970), 126 Ill.App.2d 35, 261 N.E.2d 510.

The issue is whether the circuit court abused its discretion by dismissing plaintiff's action with prejudice.

The appellate court majority reversed the decision of the circuit court, finding the circuit court to have abused its discretion.The majority found "the circumstances presented here do not justify an order of dismissal."(175 Ill.App.3d at 508, 124 Ill.Dec. 921, 529 N.E.2d 1038.)The dissenting justice disagreed, finding plaintiff failed to meet his burden of showing he had exercised reasonable diligence in effecting service.We agree with the majority that, under the circumstances, an order of dismissal was not justified.

The purpose of Rule 103(b) is to protect defendants from unnecessary delay in the service of process on them and to prevent the circumvention of the statute of limitations.(Hanna v. Kelly(1980), 91 Ill.App.3d 896, 900, 47 Ill.Dec. 146, 414 N.E.2d 1262;Galvan v. Morales(1972), 9 Ill.App.3d 255, 258, 292 N.E.2d 36.)

"Statutes of limitation, like other statutes, must be construed in the light of their objectives.The basic policy of such statutes is to afford a defendant a fair opportunity to investigate the circumstances upon which liability against him is predicated while the facts are accessible."(Geneva Construction Co. v. Martin Transfer & Storage Co.(1954), 4 Ill.2d 273, 289-90, 122 N.E.2d 540.)

(Mathis v. Hejna(1969), 109 Ill.App.2d 356, 248 N.E.2d 767.)It has long been noted that "[p]revention of intentional delay in the service of summons which would postpone service for an indefinite time after a statutory period of limitations has run, was a primary reason for the passage of Supreme Court Rule 103(b) and its predecessors."Karpiel, 119 Ill.App.2d at 160, 255 N.E.2d 61;Meyer v. Wardrop(1976), 37 Ill.App.3d 243, 345 N.E.2d 762.

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 of ineffective service; (6) special circumstances which would affect plaintiff's efforts; and (7) actual service on defendant.(SeeWallace v. Smith(1979), 75 Ill.App.3d 739, 31 Ill.Dec. 463, 394 N.E.2d 665;Connaughton v. Burke(1977), 46 Ill.App.3d 602, 5 Ill.Dec. 87, 361 N.E.2d 87.)These factors must be considered in light of the purpose of Rule 103(b).

In this case, the reason given by plaintiff for failure to place the summonses for service for 19 weeks after the filing of his complaint was that plaintiff inadvertently forgot to do so.Upon realization of this, plaintiff moved for leave to have a special process server appointed, which was allowed by the circuit court on April 24, 1986.Defendants were subsequently served on April 29, 1986, and May 5, 1986.

Defendants agree with the dissent in the appellate court and argue there was no abuse of discretion on the part of the circuit court in dismissing plaintiff's action with prejudice due to the passage of 19 weeks between the filing of plaintiff's complaint and the placement of the summonses for service.

Plaintiff agrees with the majority in the appellate court that "the time here was simply too short to permit dismissal with prejudice of the entire action."(175 Ill.App.3d at 506, 124 Ill.Dec. 921, 529 N.E.2d 1038.)Plaintiff argues that a dismissal with prejudice of his cause, based solely on an unintentional delay of 19 weeks in the service of process, does not serve the purpose of Rule 103(b).Because the delay was inadvertent, plaintiff argues he was not undermining, or attempting to circumvent, the statute of limitations.According to plaintiff, the appellate court was correct when it noted there was "no indication * * * that the 19 weeks of inactivity between filing the complaint and issuing summons caused evidence to grow stale, witnesses to become out of reach, or memories to lapse."(175 Ill.App.3d at 506, 124 Ill.Dec. 921, 529 N.E.2d 1038.)Plaintiff argues the purpose of protecting defendants from stale claims would not be served by barring him from asserting his cause of action.

It should be noted this cause arose in Cook County, where it is not uncommon for a trial not to occur until years after the filing of a complaint.We agree with the majority in the appellate court that the inadvertent delay of 19 weeks did not threaten the circuit court's ability to " 'proceed expeditiously to a just resolution of the matter before it.' "(175 Ill.App.3d at 506-07, 124 Ill.Dec. 921, 529 N.E.2d 1038, quotingO'Connell v. St. Francis Hospital(1986), 112 Ill.2d 273, 282, 97 Ill.Dec. 449, 492 N.E.2d 1322.)The delay in this case did not "continue[ ] long after the expiration of the statute of limitations."O'Connell, 112 Ill.2d at 282, 97 Ill.Dec. 449, 492 N.E.2d 1322.

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."(Geneva Construction Co., 4 Ill.2d at 289-90, 122 N.E.2d 540.)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...