Negligence Prosecution for Failure to File Lawsuit In the Correct Forum

The Iowa Supreme Court in Sautter v. Interstate Power Co., 563 N.W.2d 609, 611 (Iowa 1997) held that when plaintiffs had knowledge of the facts that would deny them jurisdiction, their failure to file in the correct forum constituted "negligence in the prosecution." See also Wetter v. Dubuque Aerie No. 568 of the Fraternal Order of Eagles, 588 N.W.2d 130, 132 (Iowa Ct. App. 1998) (where the ultimate and determinative jurisdictional fact was implicitly and peculiarly known only to the defendants and there was no evidence plaintiff was less than diligent in choosing a forum, the Iowa Savings Statute applies). In White v. Tucker, 53 Ill. App. 3d 862, 369 N.E.2d 90, 11 Ill. Dec. 636 (Ill. App. Ct. 1977), the Illinois Court of Appeals held that the plaintiff must have commenced his original cause of action with an honest but mistaken belief that he was doing so in a court of proper jurisdiction in order to be entitled to the benefits of the Illinois Savings Statute. 369 N.E.2d at 92-93. The court in White explained the rationale for the due diligence requirement: unless the applicability of the savings statute is restricted to those cases where any problem with jurisdiction is based on an honest but mistaken belief on the part of a plaintiff, the plaintiff could file a complaint in any jurisdiction at any time prior to the expiration of the limitation period secure in the knowledge that the mere filing of a complaint in any jurisdiction would automatically entitle the plaintiff to re-file the same action in Illinois. Id. at 92-93. The Savings Statute is intended to protect those who prosecute their action in a non-negligent manner; the plaintiff must choose a forum that arguably has the power to decide the matter involved.