Ramirez v. Calderon , 2022 IL App (2d) 210332-U ( 2022 )

2022 IL App (2d) 210332-UNo. 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-Ufiled 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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2022 IL App (2d) 210332-U¶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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2022 IL App (2d) 210332-U¶ 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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2022 IL App (2d) 210332-U¶ 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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2022 IL App (2d) 210332-Usheriffs 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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2022 IL App (2d) 210332-Usummons 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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