Ramirez v. Calderon

2022 IL App (2d) 210332-U

• Court: Appellate Court of Illinois
• Decided: February 9, 2022
• Docket: 2-21-0332
• Status: Unpublished

Opinion

2022 IL App (2d) 210332-U No. 2-21-0332 Order filed February 9, 2022

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(l). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

ROXANA RAMIREZ, ) Appeal from the Circuit Court ) of Kane County. Plaintiff-Appellant, ) ) v. ) No. 20-L-288 ) ELIZABETH CALDERON, CLAUDIA ) YOHANA FORENO NINO, and AMPM ) EXPRESS LLC, ) ) Defendants ) Honorable ) Susan Clancy Boles, (Elizabeth Calderon, Defendant-Appellee). ) Judge, Presiding. _____________________________________________________________________________

JUSTICE McLAREN delivered the judgment of the court. Justices Hudson and Brennan concurred in the judgment.

ORDER

¶1 Held: The trial court did not abuse its discretion in dismissing plaintiff’s complaint with prejudice due to her seven-month delay in serving defendant after filing the complaint. Plaintiff did not exercise reasonable diligence in attempting service but admitted that the delay was due to her inadvertence.

¶2 Plaintiff, Roxana Ramirez, sued defendants, Elizabeth Calderon, Claudia Yohana Foreno

Nino, and AMPM Express, LLC (AMPM). Defendants moved to dismiss, alleging that plaintiff

had failed to diligently serve them with process. The trial court granted the motion, and plaintiff 2022 IL App (2d) 210332-U

filed a timely notice of appeal. Several months later, AMPM filed a motion in this court to dismiss

the appeal, alleging that plaintiff had settled with Nino and AMPM. Plaintiff did not oppose the

motion, and we granted it. Thus, we consider the issues only concerning defendant Calderon,

whom we refer to here as “defendant.”

¶3 On appeal, plaintiff contends that the trial court erred in granting the motion to dismiss her

complaint where there was no evidence that she intentionally delayed service or that the relatively

brief seven-month delay prejudiced defendant. We affirm.

¶4 I. BACKGROUND

¶5 On June 12, 2020, plaintiff filed her complaint. She alleged that, on June 26, 2018, she

was a passenger in a car driven by Calderon when it collided with a vehicle driven by Nino in her

capacity as an employee of AMPM.

¶6 The court called the case on August 11, 2020, and continued it to December 4, 2020, for

“[s]tatus on service.” On December 4, 2020, the court continued the case to February 4, 2021, for

an unspecified reason. The court called the case again on January 14, 2021, and continued it for

“[s]tatus on [s]ervice” to the previously set date of February 4, 2021. On January 22, 2021, the

court issued a summons to defendant.

¶7 Defendant moved to dismiss with prejudice, arguing that plaintiff was not diligent in

effecting service. The trial court granted the motion. The court stated that it had considered the

factors listed in Segal v. Sacco, 136 Ill. 2d 282, 287 (1990). In explaining its decision, the court

noted that (1) the complaint was filed just before the limitations period expired, (2) defendant was

ultimately served at the address listed on the police report, and (3) no special circumstances

justified the late service. The court noted that plaintiff’s attorney’s only explanation was that he

forgot. Plaintiff timely appealed.

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¶8 II. ANALYSIS

¶9 Plaintiff argues that the trial court erred by dismissing her complaint with prejudice where

the failure to serve defendant immediately was “inadvertent[ ]” and defendant’s ability to defend

the suit was not compromised.

¶ 10 Initially, we note that plaintiff’s brief fails to comply with the applicable Illinois Supreme

Court Rules. It does not contain a statement of the standard of review as required by Illinois

Supreme Court Rule 341(h)(4) (eff. Oct. 1, 2020). Further, the statement of facts consists of one

sentence, unaccompanied by a citation to the record. See Ill. S. Ct. R. 341(h)(6) (eff. Oct. 1, 2020).

Defendant argues that we would be “more than justified” in dismissing the appeal for these

violations. However, plaintiff supplies many of the missing facts in her argument section.

Defendant supplies the remaining facts and the applicable standard of review. We thus proceed to

consider the issue on the merits.

¶ 11 Illinois Supreme Court Rule 103(b) (eff. July 1, 2007) provides as follows:

“If the plaintiff fails to exercise reasonable diligence to obtain service on a defendant

prior to the expiration of the applicable statute of limitations, the action as to that

defendant may be dismissed without prejudice. If the failure to exercise reasonable

diligence to obtain service on a defendant occurs after the expiration of the applicable

statute of limitations, the dismissal shall be with prejudice as to that defendant only and

shall not bar any claim against any other party based on vicarious liability for that

dismissed defendant’s conduct. The dismissal may be made on the application of any

party or on the court’s own motion.”

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¶ 12 The purpose of Rule 103(b) is to prevent “intentional delay in the service of summons

which would postpone service for an indefinite time after a statutory period of limitations has run.”

(Internal quotation marks omitted.) Verploegh v. Gagliano, 396 Ill. App. 3d 1041, 1044-45 (2009).

¶ 13 In considering whether a plaintiff exercised due diligence, a trial court “shall review the

totality of the circumstances.” (Internal quotation marks omitted.) Id. at 1044.

“Once the defendant establishes that the time between the institution of the suit and

the date of actual service is indicative of a lack of diligence in the absence of any patently

unusual circumstances, the burden shifts to the plaintiff to demonstrate, with specificity

and in conformity with the rules of evidence, that reasonable diligence was exercised and

to offer an explanation to satisfactorily justify any delay in service.” Kole v. Brubaker, 325

Ill. App. 3d 944, 949-50 (2001).

Generally, delay over five to seven months is prima facie lack of due diligence. Verploegh, 396

Ill. App. 3d at 1045. A court’s ruling on a motion to dismiss under Rule 103(b) will not be

disturbed absent an abuse of discretion. Case v. Galesburg Cottage Hospital, 227 Ill. 2d 207, 213

(2007).

¶ 14 In Segal, the court promulgated a nonexhaustive list of factors to consider in deciding

whether the plaintiff exercised due diligence in effecting service:

“(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 on the part of the

defendant of pendency of the action as a result of ineffective service; (6) special

circumstances which would affect plaintiff’s efforts; and (7) actual service on defendant.”

Segal, 136 Ill. 2d at 287.

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¶ 15 Here, plaintiff filed her complaint approximately two weeks before the limitations period

expired. Therefore, any failure to exercise reasonable diligence occurred after that time, which

requires dismissal with prejudice. Despite the “harsh” sanction of dismissal with prejudice (id. at

288), we cannot say that the trial court abused its discretion.

¶ 16 The trial court carefully considered the Segal factors and found that none militated in

plaintiff’s favor. The court noted that plaintiff undertook no activity to serve defendant for more

than seven months even though her whereabouts were readily discernible from the police report.

The court found no evidence of any special circumstances justifying the delay; rather, plaintiff’s

attorney’s only explanation was that he forgot.

¶ 17 The court’s analysis was reasonable. The court continued the case on August 11, 2020, to

December 4, 2020, for status on service. Thus, as of at least August 11, 2020, plaintiff should

have known that service had not been effected—yet, apparently, she did nothing. On December

4, 2020, the court continued the case again (for an unspecified reason), and on January 14, 2021,

it continued the case once more for status on service. Eight days later, the court issued a summons

for defendant. Rule 103(b)’s plain language requires that a plaintiff exercise “reasonable

diligence” in obtaining service. Ill. S. Ct. R. 103(b) (eff. July 1, 2007). Plaintiff virtually concedes

that she did not, contending only that her “inadverten[ce]” should be excused.

¶ 18 Plaintiff relies on Segal, where the supreme court held that an “inadvertent” 19-week delay

(nearly five months) in obtaining service did not justify dismissal with prejudice. Segal, 136 Ill.

2d at 287. However, having set out the factors listed above, the Segal court did not analyze how

they applied to the facts before the court. See id. at 292-93 (Ryan, J., dissenting). The court relied

on the “special circumstances” that (1) the complaint was filed in Cook County where, at that time,

cases routinely pended for several years before coming to trial and (2) the defendants were deputy

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sheriffs who would normally have been responsible for serving summonses. Id. at 288. Neither

of these circumstances applies here.

¶ 19 Plaintiff cites additional cases, which are likewise distinguishable. In Verploegh, which

involved a similar delay, the court detailed the plaintiff’s efforts to ascertain the defendant’s

address and serve him. The defendant apparently moved at least twice during that time. Verploegh,

396 Ill. App. 3d at 1045-46. Similarly, in Jarmon v. Jinks, 165 Ill. App. 3d 855, 859-860 (1987),

Licka v. William A. Sales, Ltd., 70 Ill. App. 3d 929, 937-38 (1979), and Galvan v. Morales, 9 Ill.

App. 3d 255, 258 (1972), the plaintiffs diligently attempted to locate the defendants but had

difficulty doing so.

¶ 20 Plaintiff focuses on the interval between filing the complaint and the service in the

foregoing cases, arguing that it was equal to or greater than the seven-month delay here. However,

she fails to account for the “activity of [the] plaintiff[s]” (Segal, 136 Ill. 2d at 287) in locating the

defendants. Here, by contrast, plaintiff admittedly did nothing for more than seven months before

ultimately serving defendant at the address listed in the original police report. 1 Generally,

dismissals have been affirmed in cases involving seven or more months of delay if the plaintiff

was not actively attempting to locate and serve the defendant.

¶ 21 For example, in Penrod v. Sears, Roebuck & Co., 150 Ill. App. 3d 125 (1986), the court

held that the plaintiff’s failure to serve the defendant for more than seven months showed a lack

of reasonable diligence. The plaintiff knew where to find the defendant yet did not even ask the

clerk’s office about the status of the summons for more than four months. After the plaintiff

learned that no summons had issued, he waited an additional three months before having a

1 It appears that defendant Nino was never served.

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summons issued. Id. at 126. In Kole, after the plaintiff’s initial summons was returned unserved,

she waited seven months to have an alias summons served. Kole, 325 Ill. App. 3d at 950-51.

¶ 22 Thus, the trial court did not abuse its discretion in dismissing the action where the delay of

more than seven months was attributable to nothing more than inadvertence.

¶ 23 III. CONCLUSION

¶ 24 For the reasons stated, we affirm the judgment of the circuit court of Kane County.

¶ 25 Affirmed.

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