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10/08/97 CONNIE BILLERBECK v. CATERPILLAR TRACTOR

October 8, 1997

CONNIE BILLERBECK, PLAINTIFF-APPELLEE,
v.
CATERPILLAR TRACTOR COMPANY, A CORPORATION, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Livingston County. No. 94L58. Honorable Harold J. Frobish, Judge Presiding.

Released for Publication October 8, 1997.

Honorable James A. Knecht, J., Honorable Robert J. Steigmann, P.j. - Concur, Honorable Rita B. Garman, J. - Concur. Justice James A. Knecht delivered the opinion of the court.

The opinion of the court was delivered by: Knecht

The Honorable Justice KNECHT delivered the opinion of the court:

On December 4, 1989, in the circuit court of Livingston County, plaintiff Connie Billerbeck filed suit against defendant Caterpillar Tractor Company for injuries she allegedly sustained on December 4, 1987. Approximately four years later, on November 16, 1993, the trial court granted plaintiff's motion for voluntary dismissal. Plaintiff refiled her complaint on October 24, 1994. On November 16, 1995, summons was issued. Summons was served on defendant two weeks later, 13 months and 6 days after plaintiff refiled her complaint.

Defendant filed a motion to dismiss, arguing plaintiff had not acted with reasonable diligence in effecting service upon defendant as required by Supreme Court Rule 103(b) (134 Ill. 2d R. 103(b)). Attached to defendant's motion was an affidavit showing the date of service and a letter dated November 7, 1995, informing plaintiff's counsel that defendant would not accept service of process on its counsel. Plaintiff did not file a response to this motion. The trial court, on May 3, 1996, denied defendant's motion, but certified the following question for interlocutory review pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308):

"Whether a [13]-month and [6]-day lapse between filing of the lawsuit and effecting service of process on defendant constitutes a lack of due diligence pursuant to Supreme Court Rule 103 where the complaint filed was a refiling following a voluntary dismissal, the statute of limitations had run prior to the filing of the complaint, defendant had made it known in writing it would not voluntarily accept service, defendant was a corporation in the same location throughout the pendency of the action, and no efforts to effect service during the [13]-month [6]-day time period were attempted by plaintiff."

(We note the trial court incorrectly included in its certified question "defendant had made it known in writing it would not voluntarily accept service." The letter submitted by defendant clearly informed plaintiff's counsel that defendant would not accept service through its counsel, but plaintiff would have to serve defendant directly.) On July 9, 1996, this court granted leave to appeal.

Rule 103(b) requires a plaintiff to act with reasonable diligence in effecting service of process on a defendant. If the plaintiff fails to act with reasonable diligence after the statute of limitations expires, the cause of action shall be dismissed with prejudice. The plaintiff has the burden of proving reasonable diligence, and the defendant is not required to prove prejudice by the delay. Segal v. Sacco, 136 Ill. 2d 282, 286, 555 N.E.2d 719, 720, 144 Ill. Dec. 360 (1990); Mayoral v. Williams, 219 Ill. App. 3d 365, 370, 579 N.E.2d 1196, 1199, 162 Ill. Dec. 382 (1991).

In O'Connell v. St. Francis Hospital, 112 Ill. 2d 273, 282, 492 N.E.2d 1322, 1326, 97 Ill. Dec. 449 (1986), the Supreme Court of Illinois emphasized the purpose and importance of Rule 103(b):

"Nothing is more critical to the judicial function than the administration of justice without delay. [Citations.] Central to discharging this function, the judiciary must be unimpeded in considering and rendering judgments on matters before it. [Citations.] Rule 103(b) was adopted by this court to effectuate its historical and constitutional mandate to render justice fairly and promptly.

Due diligence in serving process is essential to this purpose, for it is the sole legally sufficient means of alerting defendants to the pendency of a civil suit. In addition, service with due diligence, by promptly placing defendant on notice of a pending action, shortens the time needed to investigate, prepare and litigate the issues raised, thereby allowing the court to proceed expeditiously to a just resolution of the matter before it."

In Segal, the court noted Rule 103(b) is necessary to prevent circumvention of the statute of limitations. Segal, 136 Ill. 2d at 286, 555 N.E.2d at 720. The rules of our supreme court are not aspirational. "They have the force of law, and the presumption must be that they will be obeyed and enforced as written." Bright v. Dicke, 166 Ill. 2d 204, 210, 652 N.E.2d 275, 277-78, 209 Ill. Dec. 735 (1995).

When making a Rule 103(b) determination, a trial court may consider the following factors: (1) amount of time in obtaining service; (2) plaintiff's activities; (3) plaintiff's knowledge of defendant's whereabouts; (4) ease in ascertaining defendant's location; (5) defendant's actual knowledge of the pendency of the suit resulting from ineffective service; (6) special circumstances affecting plaintiff's efforts; and (7) actual service effected on defendant. These factors, which are not exhaustive, must be viewed in light of the rule's purpose. Segal, 136 Ill. 2d at 287, 555 N.E.2d at ...


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