Motion to Dismiss Due to Lack of Diligence In Serving the Lawsuit
In O'Connell v. St. Francis Hospital, 112 Ill. 2d 273, 492 N.E.2d 1322, 97 Ill. Dec. 449 (1986), the plaintiff filed suit against the defendants for alleged medical malpractice. O'Connell, 112 Ill. 2d at 276.
The defendants filed a motion to dismiss pursuant to Supreme Court Rule 103(b) (87 Ill. 2d R. 103(b)), based upon the plaintiff's lack of diligence in serving process. O'Connell, 112 Ill. 2d at 276-77.
The plaintiff then filed a motion to voluntarily dismiss his complaint pursuant to section 2-1009 of the Code, which the trial court granted. O'Connell, 112 Ill. 2d at 277.
The plaintiff then refiled his complaint as provided under section 13-217 of the Code. O'Connell, 112 Ill. 2d at 277.
The defendants again filed a Rule 103(b) motion to dismiss, based upon the plaintiff's lack of diligence in serving the original lawsuit, but the trial court denied the defendants' motion. O'Connell, 112 Ill. 2d at 277.
On appeal, the supreme court noted that the plaintiff filed his complaint on the last day of the limitations period, and then waited eight months before attempting service of process, despite the fact that the plaintiff's wife (according to the defendants) was an employee of the defendant hospital at the time of the plaintiff's injury. O'Connell, 112 Ill. 2d at 282-83.
The court held that, "[u]nder such circumstances," sections 2-1009 and 13-217 infringed upon the judiciary's fair and expeditious discharge of its duties, and that section 2-1009, insofar as it directs the trial court to dismiss a case, also infringes upon the exclusive authority of the judiciary's rendering of judgments. O'Connell, 112 Ill. 2d at 283.
The court then held that, "where a plaintiff relies on sections 2-1009 and 13-217 in response to a pending Rule 103(b) motion, the Rule 103(b) motion must be heard on its merits prior to a ruling on plaintiff's motion to dismiss under section 2-1009." O'Connell, 112 Ill. 2d at 283.