Timberlake v. Illini Hospital

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the filing of the opinion to request a rehearing. Also, opinions
are subject to modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The
official copy of the following opinion will be published by the
Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.

Docket No. 80700--Agenda 14--November 1996.
BARBARA TIMBERLAKE, Appellant, v. ILLINI HOSPITAL, an Illinois
Not-For-Profit Corporation, Appellee.
Opinion filed January 30, 1997.

JUSTICE HARRISON delivered the opinion of the court:
The issue before this court is whether section 13--217 of the
Code of Civil Procedure (735 ILCS 5/13--217 (West 1994)) permits
plaintiff to refile her state law claims in state court within the
applicable limitations period after she has already taken a
voluntary dismissal without prejudice pursuant to section 2--1009
of the Code of Civil Procedure (735 ILCS 5/2--1009 (West 1994)) and
made an unsuccessful attempt to pursue her claims in federal
district court, which declined to exercise supplemental
jurisdiction. The circuit court held that section 13--217 did not
permit plaintiff to refile under these circumstances, and the
appellate court affirmed (277 Ill. App. 3d 1041). We granted
plaintiff's petition for leave to appeal. 155 Ill. 2d R. 315. For
the reasons which follow, we affirm.
On October 20, 1992, plaintiff, Barbara Timberlake, filed a
four-count complaint against her former employer, defendant, Illini
Hospital, in the circuit court of Rock Island County. Count I
alleged breach of contract, count II asserted a claim based on a
theory of promissory estoppel, count III alleged retaliatory
discharge in violation of Illinois law, and count IV asserted a
separate retaliatory discharge claim for violation of the Employee
Retirement Income Security Act (ERISA) (29 U.S.C. 1001 et seq.
(Supp. 1990)). On January 6, 1993, defendant filed a motion to
dismiss this complaint asserting that state court jurisdiction was
preempted by ERISA. On March 5, 1993, Timberlake voluntarily
dismissed her complaint without prejudice pursuant to section 2--
1009 of the Code of Civil Procedure (735 ILCS 5/2--1009 (West
1994)).
Plaintiff subsequently refiled her complaint in federal
district court on March 31, 1993, asserting claims for retaliatory
discharge in violation of ERISA, breach of contract, and promissory
estoppel. The claims contained in this complaint arose out of the
same set of facts and pleaded the same causes of action as
plaintiff's first complaint filed in state court. Plaintiff's
complaint invoked federal subject matter jurisdiction as to the
ERISA claim, and federal supplemental jurisdiction (28 U.S.C. 1367
(Supp. 1990)) as to the state common law claims.
Defendant filed a motion in the district court for summary
judgment, contending that under the undisputed facts of this case,
defendant committed no violation of ERISA. On August 18, 1994, the
district court granted defendant's motion, reasoning that plaintiff
did not qualify for protection under ERISA because she was not a
participant in defendant's ERISA plan at the time defendant
allegedly discriminated against her. The district court further
held that because plaintiff's ERISA claim failed, it could not
exercise supplemental jurisdiction over plaintiff's state common
law claims concerning breach of contract and promissory estoppel.
The district court concluded that it must remand these common law
claims to state court for further action. Timberlake did not appeal
the district court's order.
On December 29, 1994, Timberlake filed a notice of remand and
motion to reinstate her original cause of action in the circuit
court of Rock Island County. That motion was denied on January 3,
1995. The circuit court found that it was without authority to
vacate the earlier order of voluntary dismissal that plaintiff had
asked the court to enter. Timberlake then refiled her cause of
action in the circuit court on January 11, 1995, within the
applicable statute of limitations. Timberlake also asked the
circuit court to reconsider its order of January 3, 1995, denying
her motion to reinstate he original cause of action.
On March 5, 1995, the circuit court denied Timberlake's motion
for reconsideration. The court also dismissed Timberlake's current
cause of action pending before the circuit court on the grounds
that section 13--217 did not authorize her to renew her action in
state court under the circumstances present here. The appellate
court subsequently affirmed that judgment, holding that section 13-
-217 of the Code of Civil Procedure entitles a plaintiff to only
one refiling after taking a voluntarily dismissal without prejudice
even if the statute of limitations has not expired, and plaintiff
here exhausted her one-time right to refile when she filed her
complaint in federal district court. 277 Ill. App. 3d 1041. Because
Timberlake's federal suit amounted to the single allowable
refiling, the appellate court held that Timberlake was not
permitted a second refiling in state court under section 13--217.
We granted leave to appeal (155 Ill. 2d R. 315) and now affirm.
As both parties to this litigation acknowledge, the question
of when a plaintiff can refile an action after taking a voluntary
dismissal is controlled by section 13--217 of the Code of Civil
Procedure. That statute is a saving provision which allows
plaintiffs to refile a cause of action if its prior disposition was
based on reasons outlined in the statute. Specifically, section 13-
-217 provides:
"In the actions specified in Article XIII of this
Act or any other act or contract where the time for
commencing an action is limited, if judgment is entered
for the plaintiff but reversed on appeal, or if there is
a verdict in favor of the plaintiff and, upon a motion in
arrest of judgment, the judgment is entered against the
plaintiff, or the action is voluntarily dismissed by the
plaintiff, or the action is dismissed for want of
prosecution, or the action is dismissed by a United
States District Court for lack of jurisdiction, or the
action is dismissed by a United States District Court for
improper venue, then, whether or not the time limitation
for bringing such action expires during the pendency of
such action, the plaintiff, his or her heirs, executors
or administrators may commence a new action within one
year or within the remaining period of limitation,
whichever is greater, after such judgment is reversed or
entered against the plaintiff, or after the action is
voluntarily dismissed by the plaintiff, or the action is
dismissed for want of prosecution, or the action is
dismissed by a United States District Court for lack of
jurisdiction, or the action is dismissed by the United
States District Court for improper venue." 735 ILCS 5/13-
-217 (West 1994).
Section 13--217 provides plaintiffs with the absolute right to
refile their complaint within one year or within the remaining
period of limitations, whichever is greater. Gendek v. Jehangir,
119 Ill. 2d 338, 340 (1988). However, it was not intended to permit
multiple refilings of the same action. This court has interpreted
section 13--217 as permitting only one refiling even in a case
where the applicable statute of limitations has not yet expired.
Flesner v. Youngs Development Co., 145 Ill. 2d 252, 254 (1991).
In Flesner, plaintiffs initiated their lawsuit in United
States District Court for the Central District of Illinois in May
of 1981. The district court dismissed plaintiffs' cause of action
for lack of subject matter jurisdiction in November of 1981.
Plaintiffs refiled their action in state court in April of 1982 and
later voluntarily dismissed their lawsuit.
Subsequently, plaintiffs refiled their suit for a second time
in state court within the applicable limitations period. Their suit
was dismissed, but the circuit court granted plaintiffs' motion to
reconsider and reinstated the lawsuit. This court reversed the
reinstatement of plaintiffs' suit, reasoning that "section 13--217
expressly permits one, and only one, refiling of a claim even if
the statute of limitations has not expired." Flesner, 145 Ill. 2d
at 254. According to Flesner, after the United States district
court dismissed plaintiff's suit for lack of jurisdiction, section
13--217 permitted only a single refiling.
As in Flesner, the refiling provisions specified in section
13--217 clearly apply in the case at bar. Section 13--217
specifically provides that after taking a voluntary dismissal, a
plaintiff may commence a new action within one year or within the
remaining period of limitation, whichever is greater. Accordingly,
Timberlake was entitled to a single refiling of her claim after
taking a voluntary dismissal of her original cause of action filed
in the circuit court of Rock Island County. Timberlake exercised
her one opportunity to refile when she filed her complaint in
federal district court.
In an effort to avoid this conclusion, Timberlake argues that
the federal district court's subsequent refusal to exercise
supplemental jurisdiction over her state law claims here is
distinguishable from the dismissal for lack of subject matter
jurisdiction that was involved in Flesner. In support of her
position, Timberlake cites Fanaro v. First National Bank, 160 Ill.
App. 3d 1030 (1987), but that case predates our decision in Flesner
and is based on the erroneous assumption that pendent jurisdiction,
now part of what is known as supplemental jurisdiction (28 U.S.C.
1367 (Supp. 1990)), is different from subject matter jurisdiction.
In fact, supplemental jurisdiction is a form of subject matter
jurisdiction. See Myers v. County of Lake, 30 F.3d 847, 850 (7th
Cir. 1994); 28 U.S.C.A. 1367, Practice Commentary, at 829 (West
1993). Accordingly, a dismissal for lack of supplemental
jurisdiction has no different effect on a plaintiff's right to
refile under section 13--217 than does a dismissal for lack of
subject matter jurisdiction generally. Raper v. St. Mary's
Hospital, 181 Ill. App. 3d 379, 382 (1989).
The reasoning of Fanaro is flawed for another reason as well.
Fanaro assumes that where a plaintiff has taken a voluntary
dismissal in state court and then had her case dismissed by the
federal court, the reason for the federal court's decision is
relevant in assessing whether she should be permitted to refile her
cause of action yet again under section 13--217. This is incorrect.
Under the statute, the reason a cause of action was originally
dismissed is important in determining whether a plaintiff can
subsequently refile, but after the case has been filed a second
time, the reason for the second dismissal is of no consequence at
all. No matter why the second dismissal took place, the statute
does not give plaintiff the right to refile again. As this court
expressly held in Flesner, 145 Ill. 2d 252, section 13--217 permits
one, and only one, refiling of a claim.
For the foregoing reasons, the judgment of the appellate court
is affirmed.

Affirmed.