Illinois Appellate Court Affirms Dismissal of Lawsuit Because Plaintiff Failed to Exercise Reasonable Diligence in Obtaining Service on the Defendant

On July 18, 2010 Geraldine Mular was a guest of the home of Dawn Ingram. Mular fell into a backyard pool and was injured. No lawsuit was filed until July 16, 2012, just one day before the statute of limitations would have expired. The lawsuit named Ingram as the defendant.

In the complaint, Mular alleged that Ingram failed to keep “the area around the premises’ pool maintained and properly constructed.” Notably, Mular did not allege that Ingram either constructed the pool or was involved in its design, but she did claim that Ingram had failed to keep the area clear of tripping hazards, failed to provide safe ingress and egress and had allowed the area to become unsafe due to poor maintenance.

In the lawsuit, Ingram’s home was correctly listed as 1694 Van Buren Ave., Des Plaines, Ill. However, the summons that was issued on July 16, 2012 listed Ingram’s residence as 1649 Van Buren Ave., transposing the last two digits of the address. The court noted that “the clerk’s docket does not reflect that the summons was ever placed with the Sheriff for service.”

It was not until six weeks later that Mular “caused an alias summons to be issued.” However, the summons was issued to the erroneous address.

Service was attempted and filed as non-served with a note that after “1649, next address is 1653.” Mular’s next attempt to perform service didn’t come until a full six months later. On March 8, 2013, Mular caused another summons to be issued to the same incorrect address. Again, no such address was found. When Mular’s lawyer failed to appear for a case management conference on April 12, 2013, her complaint was dismissed for want of prosecution; however, she managed to get it reinstated.

Nonetheless, another 7 weeks passed before Mular issued a third summons. This one was issued on July 9, 2013, and the correct address and was served on Ingram.

On Aug. 15, 2013, Ingram filed a motion to dismiss arguing that Mular had failed to exercise reasonable diligence to obtain service on a defendant prior to the expiration of the statute of limitations.

Ingram argued that the delay between the July 16, 2012 filing of the lawsuit and the July 9, 2013 issuing of a proper service was a failure to exercise reasonable diligence on the part of Mular. The trial court agreed and Mular appealed.

The appellate court emphasized that even the 6-month delay that occupied the majority of the time between July 16, 2012 and July 9, 2013, might not necessarily be unreasonable, and that the length of time of the lapse between filing and service does not provide a bright line.

Moreover, the appellate court noted that it accepted Mular’s delay as inadvertent. However, whether the delay was inadvertent or not, the appellate court found that Mular should have checked on the status of the service within 30 days and then failed to do so for a 6-month period instead. The appellate court also emphasized that the fact that the lawsuit was filed a single day prior to the expiration of statute of limitations, noting that “a delay in service in a case filed well in advance of the expiration of the statute of limitations may be excused where the same delay in a suit filed close to its expiration may not.” As a result, the appellate court found no special circumstances to justify Mular’s delay in serving the defendant and affirmed the decision of the trial judge dismissing the lawsuit.

Geraldine Mular v. Dawn Ingram, 2015 IL App (1st) 142439.

Kreisman Law Offices has been handling automobile accidents, premises liability injury cases, nursing home abuse cases and motorcycle accident cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Willow Springs, Tinley Park, Prospect Heights, Riverdale, River Forest, Riverside, Palos Heights, Palos Park, Hickory Hills, Hazelcrest, Harwood Heights, Harvey, Glenwood, Northbrook, Northlake, North Riverside, Oak Forest, Olympia Fields, Franklin Park and Forest Park, Ill.

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