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Kole v. Brubaker

October 31, 2001


The opinion of the court was delivered by: Justice Cerda.

Appeal from the Circuit Court of Cook County.

Honorable Kathy M. Flanagan, Judge Presiding.

Plaintiff, Karen Kole, appeals the order of the circuit court dismissing with prejudice her medical negligence complaint against defendants, Linda Brubaker, M.D., and University Urogynecologists ("University"), pursuant to Supreme Court Rule 103(b) (177 Ill. 2d R. 103(b)) for failing to exercise reasonable diligence in effectuating service of process. Plaintiff primarily takes issue with the trial court's finding of a lack of diligence on her part, arguing that the record amply demonstrates that defendants were served in a timely fashion. Plaintiff alternatively maintains that, even if the trial court's determination was correct, dismissal of her claims should not have been with prejudice and that the trial court erred in not affording her an opportunity to refile. For the following reasons, we affirm.


Prior to the instant action, plaintiff, an attorney who suffers from multiple sclerosis, had been a regular patient of Dr. Brubaker and University since 1982. On January 27, 1999, plaintiff filed a two-count pro se complaint charging defendants with negligence allegedly arising from defendants' care and treatment of certain complications experienced by plaintiff due to her multiple sclerosis. *fn1 Summons directed against the defendants was placed with the sheriff at the time. After two unsuccessful attempts, the summons was returned on February 16, 1999 "not served" due to an incorrectly stated address. The return of service indicates the address stated on the face of the summons was the office location of Dr. Brubaker's husband. According to the return, the serving deputy was told by defendant's husband that Dr. Brubaker did not conduct, and had never conducted, her practice at that location.

The record discloses that plaintiff undertook no action in the case from the time the original summons was returned on February 16 until some unspecified date in June 1999 when plaintiff hired attorney Corey Meyer to represent her. Notwithstanding the retainment of counsel, plaintiff's case was dismissed for want of prosecution on July 29, 1999, due to Meyer's failure to attend a scheduled case management conference.

Meyer responded on August 13, 1999 by moving the trial court to vacate its dismissal order and reinstate plaintiff's claims. A hearing on said motion was set for August 23, 1999. However, because Meyer misdiaried the hearing date, plaintiff's motion was not heard until September 27, 1999. Following a hearing, the trial court granted plaintiff's motion and reinstated plaintiff's cause. The court additionally allowed Meyer leave to enter an appearance on plaintiff's behalf and appointed a special process server to effectuate an alias summons on defendants.

Meyer entered his appearance and issued an alias summons directed to defendants on October 1, 1999. Defendants were ultimately served with process on October 24, 1999, and two days later, the law firm of Cassidy, Schade & Gloor, through attorney Joseph Camarra, formally appeared on defendants' behalf.

On October 27, 1999, defendants moved to dismiss plaintiff's complaint pursuant to Supreme Court Rule 103(b), which allows a defendant to seek dismissal of a plaintiff's claim or claims against it when the plaintiff has failed to exercise reasonable diligence to obtain service. 177 Ill. 2d R 103(b). Defendants claimed plaintiff's service of summons upon them (October 24, 1999), almost nine months after the filing of the complaint (January 27, 1999), and more than eight months after the return of the original summons as not served (February 16, 1999), demonstrated a lack of reasonable diligence on plaintiff's part under Rule 103(b). Defendant's motion was supported by the affidavit of Dr. Brubaker which avers that the doctor, at all relevant times, was a physician licensed to practice medicine in the State of Illinois and an employee and principle of University. For the five years preceding the filing of defendant's Rule 103(b) motion, Dr. Brubaker's home and business addresses had respectively been the same. In addition, according to the affidavit, plaintiff resided at all relevant times approximately two blocks from Dr. Brubaker's home in River Forest, Illinois, and, further, that plaintiff's husband was a physician on the staff of Rush-Presbyterian Medical Center (Rush) where Dr. Brubaker conducted a majority of her practice. Dr. Brubaker maintained she never attempted to avoid service by plaintiff, either individually or as a principal of University, at any time prior to October 24, 1999. *fn2

In response, plaintiff maintained the facts and circumstances of the case show she exercised reasonable diligence in effectuating service on defendants. In support of her contention, plaintiff specifically stressed that: she was acting pro se until October 1, 1999, and, while an attorney, had no experience in civil litigation matters; summons directed at defendants had been placed with the sheriff when the complaint was filed but, due to the listing of an incorrect address, was returned "not served"; counsel was ultimately secured in June 1999 and, following counsel's "extensive investigation" of the matter, an attempt was made to issue an alias summons on August 1, 1999; at that time, counsel learned the case had been dismissed for want of prosecution on July 29; counsel responded promptly by seeking to have the dismissal vacated, which was ultimately achieved on September 27; shortly thereafter, counsel entered his appearance and, slightly less than a month later, an alias summons was served on defendants.

Plaintiff notably did not submit an affidavit with her response or any other evidentiary materials that detailed her activities from the time of the complaint's filing and the date defendant's were actually served, or that explained why it took so long for her to provide process. Plaintiff's attorney similarly did not file an affidavit stating what action he undertook on plaintiff's behalf or efforts he expended to serve defendants. Plaintiff simply relied on the events of the case as depicted by the record materials.

After considering "the totality of the circumstances and evidence, and weighing all of the relevant factors," the trial court concluded that plaintiff had "failed to demonstrate *** due diligence in effectuating service on defendants" and, thus, granted defendant's motion to dismiss in a written decision issued on January 24, 2000. In deciding whether dismissal should be with or without prejudice, the court determined that the two-year statute of limitations applicable to medical negligence actions (735 ILCS 5/13-212(a) (West 1998)) began to run no later than July 30, 1997, when plaintiff sent a letter to the Chairmen of the OB/Gyn Department at Rush which was critical of Dr. Brubaker's care and treatment. Because "service on *** defendants on October 24, 1999 was past the expiration of the limitations period", the court ordered its dismissal to be with prejudice.


Plaintiff initially challenges the trial court's finding that she did not act with reasonable diligence in serving defendants. Rule 103(b) does not set forth a specific time in which a defendant must be served but, rather, simply requires a plaintiff to exercise reasonable diligence to provide service in a timely manner. The rule was adopted to effectuate the historical and constitutional mandate that justice be fairly and promptly rendered (Womick v. Jackson County Nursing Home, 137 Ill. 2d 371, 377, 561 N.E.2d 25, 27 (1990)), and, to the end of promoting the expeditious handling of lawsuits, the trial courts are permitted broad discretion to dismiss a case when service is not effected in a diligent manner. Segal v. Sacco, 136 Ill. 2d 282, 285-86, 555 N.E.2d 719, 720 (1990). Rule 103(b) further aims to protect a defendant from unnecessary delay in the service of process and to prevent the plaintiff from circumventing the applicable statute of limitations, which are designed to afford the defendant a fair opportunity of investigation, by filing suit before the expiration of the limitations period but taking no action to have the ...

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