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09/28/88 William Segal, v. Eugene Sacco Et Al.

September 28, 1988

WILLIAM SEGAL, PLAINTIFF-APPELLANT

v.

EUGENE SACCO ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

529 N.E.2d 1038, 175 Ill. App. 3d 504, 124 Ill. Dec. 921 1988.IL.1460

Appeal from the Circuit Court of Cook County; the Hon. Thomas E. Hoffman, Judge, presiding.

APPELLATE Judges:

JUSTICE McNAMARA delivered the opinion of the court. FREEMAN, J., concurs. PRESIDING JUSTICE WHITE, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

The sole issue on appeal is whether plaintiff William Segal showed that he exercised reasonable diligence where he waited 4 1/2 months to obtain service of process on defendants Eugene Sacco and Charles Thornton. The trial court dismissed the complaint for failure to show due diligence pursuant to Supreme Court Rule 103(b) (107 Ill. 2d R. 103(b)), and plaintiff appeals that dismissal.

On December 8, 1983, plaintiff was allegedly assaulted by defendants, both deputy sheriffs. On December 9, 1985, plaintiff filed this action. The complaint was not placed for service at that time. On April 24, 1986, plaintiff moved for the appointment of a special process server, and defendants were served on April 29, and May 5, 1986. On November 17, 1986, the court granted defendants' section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619) motion to dismiss the complaint for failure to exercise reasonable diligence in serving defendants.

Supreme Court Rule 103(b) provides that the action may be dismissed with prejudice where "reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations." (107 Ill. 2d R. 103(b).) There is no fixed rule to determine whether plaintiff exercised reasonable diligence. The factors a court may consider include (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 of defendant of pendency of action as a result of ineffective service; (6) special circumstances which would affect plaintiff's efforts; and (7) actual service on defendant. Connaughton v. Burke (1977), 46 Ill. App. 3d 602, 361 N.E.2d 87; Meyer v. Wardrop (1976), 37 Ill. App. 3d 243, 345 N.E.2d 762; 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 trial court, and the court's judgment will not be disturbed absent an abuse of discretion. (Mares v. Metzler (1980), 87 Ill. App. 3d 881, 409 N.E.2d 447.) The burden is on plaintiff to show he exercised reasonable diligence to obtain service. Alsobrook v. Cote (1971), 133 Ill. App. 2d 261, 273 N.E.2d 270.

Rule 103(b) supplements the purpose of statutes of limitations and operates to protect defendants from stale claims. Thus, it affords defendants a fair opportunity to investigate the circumstances while witnesses and facts are accessible. (Meyer v. Wardrop (1976), 37 Ill. App. 3d 243, 345 N.E.2d 762.) Initially we note that there is no indication in the record, nor do defendants argue, 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. Indeed, it would be difficult to establish such a contention where the time period is this short.

The key dates here are the December 9, 1985, filing of the complaint, and the April 24, 1986, placement of the summonses for service. The first factor, length of time used to obtain service of process, is determinative here. The other factors need not be addressed at length in a case such as this, where plaintiff makes no pretense of having searched telephone books, various registration directories, or performed other activities in search of defendants. Plaintiff acknowledges that he simply did not place the summonses for service after filing the action.

We find the vast majority of cases dismissing an action pursuant to Rule 103(b) involve periods of time far beyond the 19 weeks here. While we in no way indicate a rigid comparison of lengths of time necessary to obtain service provides determinative guidelines, the overall pattern of cases indicates the time here was simply too short to permit dismissal with prejudice of the entire action. We cannot find that plaintiff's delay threatened the trial court's ability to "proceed expeditiously to a just resolution of the matter before it" because plaintiff's "failure [to exercise due diligence] [continued] long after the expiration of the statute of limitations." (Emphasis added.) O'Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 282, 492 N.E.2d 1322, 1326.

For cases where the court found the time unreasonable and dismissed the case, see, e.g., Viking Dodge Inc. v. Hofmann (1987), 161 Ill. App. 3d 186, 514 N.E.2d 248 (16 months between expiration of statute of limitations and service), North Cicero Dodge, Inc. v. Victoria Feed Co. (1987), 151 Ill. App. 3d 860, 503 N.E.2d 868 (20 months), Penrod v. Sears, Roebuck & Co. (1986), 150 Ill. App. 3d 125, 501 N.E.2d 367 (seven months between issuance of summons and delivery to sheriff for service), Gatto v. Nelson (1986), 142 Ill. App. 3d 284, 492 N.E.2d 1 (27 months), People ex rel. Margetich v. McCarroll (1981), 97 Ill. App. 3d 502, 423 N.E.2d 266 (27 months), Wallace v. Smith (1979), 75 Ill. App. 3d 739, 394 N.E.2d 665 (2 1/2 years), Piscitello v. Barton (1978), 66 Ill. App. 3d 451, 384 N.E.2d 47 (13 months after original summons returned unserved), Luebbing v. Copley Memorial Hospital (1978), 60 Ill. App. 3d 780, 377 N.E.2d 345 (summons obtained 10 months after complaint filed), Phifer v. Hayes (1974), 20 Ill. App. 3d 635, 314 N.E.2d 473 (five years), Lee v. Decker (1974), 17 Ill. App. 3d 93, 307 N.E.2d 773 (42 months), Department of Mental Health v. Kendall (1973), 15 Ill. App. 3d 881, 305 N.E.2d 389 (3 1/4 years after first summons returned unserved), Alsobrook v. Cote (1971), 133 Ill. App. 2d 261, 273 N.E.2d 270 (2 1/2 years), Ray v. Bokorney (1971), 133 Ill. App. 2d 141, 272 N.E.2d 836 (three years after filing, trial court dismissed, followed by plaintiff's first attempt to find defendant and serve him), Mosley v. Spears (1970), 126 Ill. App. 2d 35, 261 N.E.2d 510 (13 months), Karpiel v. La Salle National Bank (1970), 119 Ill. App. 2d 157, 255 N.E.2d 61 (14 months), and Caliendo v. Public Taxi Service, Inc. (1966), 70 Ill. App. 2d 86, 217 N.E.2d 369 (30 months).

Even the cases involving shorter lengths of time, where the court found unreasonable delay, do not approach the 19-week delay presented here. (See, e.g., O'Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 492 N.E.2d 1322 (eight months).) There are few cases available which involve either a very short period of time, or a finding that the cause should not have been dismissed for lack of due diligence. See, e.g., Dupon v. Kaplan (1987), 163 Ill. App. 3d 451, 516 N.E.2d 727 (10 months not unreasonable where eight unsuccessful attempts in three months to serve defendant at his office); Licka v. William A. Sales, Ltd. (1979), 70 Ill. App. 3d 929, 388 N.E.2d 1261 (service 13 months after filing complaint, efforts to find defendant extensive); Schultz v. McElroy (1973), 9 Ill. App. 3d 940, 293 N.E.2d 353 (seven months after summons returned unserved is not unreasonable period of time in which to again obtain service).) While plaintiff made no attempt to obtain service, and thus several cases may be factually ...


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