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. The trial judge ultimately denied the motion but did certify the above-referenced question under Illinois Supreme Court Rule 308. Although counsel did so, the filing occurred approximately five months after the expiration of the one-year period allowed under section 13-217.Īfter 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. 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. Plaintiff’s counsel then informed defense counsel of the refiling. 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 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. In Eighner, plaintiff alleged that he was injured in a motor vehicle collision with defendant. The defendant is served in the new suit, and the litigation essentially picks up where it let off before the voluntary dismissal.īut 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. 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. 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. Any defense practitioner who frequently litigates in Illinois state court has seen this situation before.
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