The rules for refiling a voluntarily dismissed complaint don’t allow for filing under the original case number, a state appeals panel ruled Thursday in response to a certified question.
The 1st District Appellate Court ruled that the language in Section 2-1009 of the Code of Civil Procedure require a plaintiff refiling a case after a voluntary dismissal to file it under a new case number.
In the case of plaintiff Stanley Eighner, who sued defendant Patricia Tiernan in 2014 alleging injuries in a November 2012 car crash, the ruling means Eighner’s updated lawsuit wasn’t properly refiled within the one-year window allowed under state law, and the appeals panel ordered his case dismissed on remand.
In May 2017, he moved to voluntarily dismiss the complaint with leave to refile, which a judge granted. And he did attempt to refile within a year, but under the old case number.
In April 2018, Eighner filed a “Notice of Refiling Complaint Being Reinstated Within One Year of Voluntary Dismissal” in the original case, along with a copy of the new complaint. The court never initiated any management of the case, and the court clerk’s office advised Eighner to refile the case under a new number. He did that in October 2018.
Tiernan quickly moved to dismiss the new case, arguing the October 2018 filing came too late.
Circuit Judge Moira S. Johnson denied the defense’s motion, but certified the question for appeal.
The appellate justices looked directly at the wording of Section 13-217 of the Code of Civil Procedure, which allows a plaintiff to voluntarily dismiss his or her own complaint, then reinstate it within a year or until the statute of limitations expires, whichever is longer.
Justice Jesse G. Reyes, writing for the court, found the statute language unforgiving to Eighner’s approach.
“Applying the rules of statutory construction, we conclude the plain language of [S]ection 13-217 does not support plaintiff’s interpretation that reinstating the complaint under the original case number satisfies the ‘new action’ requirement,” Reyes wrote.
The term “new” requires a new case number, new filing fees and new summons, he continued.
“Had the legislature intended to allow a plaintiff to file an action after a dismissal under the old case number, it would have so provided and would not have used the words ‘new action’ in [S]ection 13-217. In addition, the legislature would have provided a vehicle in which to vacate the dismissal,” Reyes wrote.
Even though the court was addressing a certified question, the justices found that their answer pointed to a certain outcome in the underlying case.
“As we have concluded that plaintiff’s actions here did not effectuate a proper refiling of the case, we find the circuit court erred in denying defendant’s motion to dismiss,” Reyes wrote. “Accordingly, we reverse the judgment of the circuit court and remand this cause to the circuit court with direction to grant the motion to dismiss.”
Justices Robert E. Gordon and Bertina E. Lampkin concurred in the opinion.
Eighner was represented on appeal by John P. DeRose of John P. DeRose & Associates in Hinsdale. He could not be reached for comment.
Tiernan was represented on appeal by Michael J. Ripes and Keith J. Rhine of Ripes Nelson Baggot & Kalobratsos P.C. Ripes could not be reached for comment.
The case is Stanley Eighner v. Patricia J. Tiernan, 2020 IL App (1st) 191369.