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Connaughton v. Burke

OPINION FILED MARCH 7, 1977.

MARTIN E. CONNAUGHTON ET AL., PLAINTIFFS-APPELLANTS,

v.

ROBERT BURKE ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. DANIEL A. COVELLI, Judge, presiding.

MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

Plaintiffs, Martin E. Connaughton and 14 others, employees of Great Lakes Towing Company (Great Lakes), brought suit in chancery against Local Union 374-2 of the Licensed Tugmen's & Pilots' Protective Association (Local), the Grand Lodge of the Licensed Tugmen's & Pilots' Protective Association (Grand Lodge) and The International Longshoremen's Association (ILA). The trial court quashed service on ILA and denied a motion to vacate that order; subsequently it dismissed plaintiffs' second amended complaint for lack of diligence, pursuant to Supreme Court Rule 103(b) (Ill. Rev. Stat. 1973, ch. 110A, par. 103(b)), and denied plaintiffs leave to file a third amended complaint. From these orders plaintiffs appeal, contending (1) the trial court abused its discretion in dismissing the suit pursuant to Rule 103(b); (2) the trial court erred in quashing service on ILA; and (3) the trial court improperly denied plaintiffs leave to file a third amended complaint.

Plaintiffs are 15 tugboat captains who formed their own labor association in 1966 because they were dissatisfied with their representatives, Local, Grand Lodge and ILA. Subsequent to the formation of their own association, plaintiffs were discharged by their employer, Great Lakes.

The original complaint, filed August 16, 1966, alleged inter alia that plaintiffs' discharge was caused by the coercive and threatening conduct of Local and ILA against their former employer, Great Lakes. Plaintiffs prayed for the enjoining and restraining of the unlawful conduct of defendants and for compensatory and punitive damages. Summonses issued for Local through its president, Rufus Young, and for ILA through its president, Thomas W. Gleason. (Grand Lodge was not a defendant in this complaint.) Gleason was served in New York on October 11, 1966. On November 10, 1966, ILA filed a special appearance. On February 23, 1967, Local removed the case to the United States District Court. The case was remanded to the circuit court of Cook County on May 29, 1968.

Subsequent to the remand and after a hearing, the circuit court on December 10, 1968, quashed service on ILA, dismissed the complaint against each of the defendants and granted plaintiffs leave to file an amended complaint.

On January 10, 1969, an amended complaint was filed. Named as defendants were Rufus Young as president of Local, Patrick Cullnan as president of Grand Lodge, and James Gleason as president of ILA. Young (Local) was served on November 13, 1969; Cullnan (Grand Lodge) was not served, but its attorney was advised of the pendency of the complaint; and Gleason (ILA) was served on January 30, 1970. Young (Local) and ILA specially appeared on December 12, 1969, and February 27, 1970, respectively, and moved to quash the service against them. On March 10, 1970, Young's motion was continued.

Three and one-half years later, on September 28, 1973, plaintiffs moved to reinstate the case on the trial call in the circuit court. On October 5, 1973, the case was set on the trial call for December 3, 1973. On November 19, 1973, the case was removed from the December 3, 1973, call and the pending motions were continued. On November 30, 1973, Robert Burke, as president of Local, was substituted as a defendant in place of Rufus Young.

On December 3, 1973, a second amended complaint was filed, naming as defendants Burke as president of Local, Cullnan as president of Grand Lodge, and Gleason as president of ILA. The pending motions to quash were continued several times to March 28, 1974. Neither Burke nor Cullnan was ever served with reference to the second amended complaint. On February 11, 1974, ILA filed a memorandum in support of its motion to quash. On April 26, 1974, counsel for defendants appeared and counsel for plaintiffs did not; the trial court granted the motion to quash service "as to certain defendants." On May 20, 1974, plaintiffs moved to vacate the order quashing service "as to certain defendants." On that same date, the trial court denied plaintiffs' motion to vacate the order quashing service of summons "on defendant William Gleason."

Subsequently, on July 26, 1974, defendants moved, pursuant to Supreme Court Rule 103(b), to dismiss for plaintiffs' lack of reasonable diligence in serving defendants and plaintiffs asked leave to file a third amended complaint, naming as defendants Burke as president of Local, Jerry Williams as president of Grand Lodge, and Gleason as president of ILA. The trial court on that same day granted defendants' motion to dismiss for lack of diligence and denied plaintiffs' motion to file a third amended complaint.

On August 22, 1974, plaintiffs appealed from the judgment entered July 26, 1974, in favor of Burke as president of Local and in favor of Williams as president of Grand Lodge, from the judgment entered on April 26, 1974, in favor of Gleason as president of ILA, and from the order of May 20, 1974, denying plaintiffs' motion to vacate the order of April 26, 1974. Plaintiffs also appealed from the order of July 26, 1974, denying them leave to file a third amended complaint.

Plaintiffs contend that the trial court abused its discretion in granting defendants' motion to dismiss for failure to exercise reasonable diligence in obtaining service on defendants. Supreme Court Rule 103(b) (Ill. Rev. Stat. 1973, ch. 110A, par. 103(b)).

• 1 Under Rule 103(b) the burden of showing reasonable diligence is on the plaintiff. (Martin v. Lozada (1974), 23 Ill. App.3d 8, 318 N.E.2d 334.) The standard for determining reasonable diligence is objective. (Phifer v. Hayes (1974), 20 Ill. App.3d 635, 314 N.E.2d 473.) Factors to be considered are (1) the time sequence, (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) defendant's knowledge of the pendency of the action, (6) the special circumstances affecting plaintiff's efforts, and (7) actual service on defendant. Alsobrook v. Cote (1971), 133 Ill. App.2d 261, 273 N.E.2d 270; Felton v. Coyle (1965), 66 Ill. App.2d 4, 214 N.E.2d 359.

In Phifer v. Hayes (1974), 20 Ill. App.3d 635, 314 N.E.2d 473, a dismissal was upheld because the service was more than five years after suit had been filed. In Pisciotto v. National Heater Co. (1974), 21 Ill. App.3d 73, 315 N.E.2d 121, service 17 months after the filing of a complaint was held to be a lack of reasonable diligence.

As to Grand Lodge, the record shows that during the entire pendency of this suit plaintiffs have not obtained service on Grand Lodge. In the five years that plaintiffs sosght to make Grand Lodge a defendant, only two attempts were made to serve Cullnan as president, the last one on March 22, 1969. It was only when plaintiffs sought to file a third amended complaint in 1974 that Cullnan's successor as president was sought to ...


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