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Clark v. TAP Pharmaceutical Products Inc.

June 4, 2002

ACIE C. CLARK, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF-APPELLEE,
v.
TAP PHARMACEUTICAL PRODUCTS, INC., TAP PHARMACEUTICALS, INC., AND ABBOTT LABORATORIES, INC., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Williamson County. No. 01-L-132 Honorable Phillip G. Palmer, Judge, presiding.

The opinion of the court was delivered by: Justice Welch

Released for publication.

ACIE C. CLARK, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF-APPELLEE,
v.
TAP PHARMACEUTICAL PRODUCTS, INC., TAP PHARMACEUTICALS, INC., AND ABBOTT LABORATORIES, INC., DEFENDANTS-APPELLANTS.

Appeal from the Circuit Court of Williamson County. No. 01-L-132 Honorable Phillip G. Palmer, Judge, presiding.

Attorneys for Appellants: Joshua T. Buchman, McDermott, Will & Emery, 227 West Monroe Street, Chicago, IL 60606 (for Abbott Laboratories, Inc.)

Daniel E. Reidy, Tina M. Tabacchi, Anastasia Katinas, Jones, Day, Reavis & Pogue, 77 West Wacker Drive, Chicago, IL 60601 (for Tap Pharmaceutical Products, Inc. and Tap Pharmaceuticals, Inc.)

Attorneys for Appellee: Robert M. Foote, Craig S. Mielke, Foote, Meyers, Mielke & Flowers, Llc, 13 South Seventh Street, Geneva, IL 60134; Barry Wesley, Barrett, Twomey, Broom, Hughes & Wesley, 100 N. Illinois Avenue, P.O. Box 3747, Carbondale, IL 62902-3747

The opinion of the court was delivered by: Justice Welch

The issue before this court is whether the date that a jurisdictional document is placed in the custody of a private courier for transmittal to the reviewing court may be treated as its constructive filing date for the purpose of Supreme Court Rule 373 (155 Ill. 2d R. 373) if it is received by the reviewing court after the expiration of the appeal period.

The defendants, TAP Pharmaceutical Products, Inc., TAP Pharmaceuticals, Inc., and Abbott Laboratories, Inc. (collectively referred to as TAP), petitioned this court pursuant to Supreme Court Rule 306(a)(2) (166 Ill. 2d R. 306(a)(2)) for leave to appeal from an order entered in the circuit court of Williamson County denying TAP's motion to transfer the case to Lake County under the doctrine of intrastate forum non conveniens. The plaintiff, Acie C. Clark, who brought this action on behalf of himself and others similarly situated, contends that the petition for leave to appeal is untimely and fails to vest this court with jurisdiction because it arrived beyond the obligatory 30-day filing period (166 Ill. 2d R. 306(b)). At the court's direction, the parties have briefed the issue of the timeliness of the petition for leave to appeal.

The following facts and chronology are not in dispute. The order denying TAP's motion to transfer venue was entered on January 7, 2002. TAP's petition for leave to appeal was sent to this court for filing by private courier, Federal Express, on Wednesday, February 6, 2002. The petition arrived in this court and was filed on February 8, 2002, which was 32 days after the entry of the order and 2 days after the expiration of the 30-day appeal period (166 Ill. 2d R. 306(b)). Although a private courier was used to transmit the petition to the reviewing court, the proof of service indicates that copies of the petition were served on opposing counsel on February 6, 2002, by first-class mail, with postage prepaid.

Clark challenges the timeliness of the petition for leave to appeal because it was not received and filed in this court within the original filing period and was not accompanied by a certificate of mailing indicating that it had been mailed to this court for filing no later than the last day of the appeal period. Clark asserts that had the petition been accompanied by a certificate of mailing in the manner prescribed by Supreme Court Rule 12(b)(3) (145 Ill. 2d R. 12(b)(3)), indicating that it had been placed in the United States mail no later than February 6, 2002, with postage fully prepaid, the date of mailing would have served as the petition's constructive filing date by operation of Supreme Court Rule 373. Rule 373 provides that in the event that a paper arrives after its due date, it is deemed to be constructively filed in the reviewing court on the date it is mailed to the court. TAP asserts that the petition for leave to appeal was timely filed under Supreme Court Rule 373, because it was delivered to Federal Express on February 6, 2002, for transmittal to the appellate court. In an affidavit accompanying TAP's joint brief in response to this court's briefing order, counsel avers:

"On January 29, 2002, I communicated via telephone with the Fifth District Appellate Court Clerk's Office at telephone number 618- 242-3120. In response to my inquiry regarding the filing of [TAP's] Petition, the Clerk's Office stated that it was proper to send the Petition to the Court for filing on the due date, February 6, 2002, via overnight courier service, Federal Express."

Counsel further avers that Federal Express's online tracking service confirmed that the petition was shipped on February 6, 2002, that it arrived at the appellate courthouse on February 7, 2002, after the office was ...


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