Eighner v. Tiernan
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In November 2014, Eighner filed a personal injury complaint (14-L-11428) concerning a November 2012 collision. Eighner paid the filing fee and caused summons to be issued. As the trial approached, Eighner decided to undergo surgery. In May 2017, the court granted a voluntary dismissal without prejudice under 735 ILCS 5/2- 1009(a), with leave to reinstate within one year. In April 2018, Eighner ’s counsel electronically filed a document under the number, 14-L11428, titled “Eighner ’s Notice of Refiling Complaint Being Reinstated.” Eighner paid no filing fee and no summons issued. Eighner ’s counsel received file-stamped copies of the documents, and a “Notice of Electronic Filing,” from the clerk. Defense counsel informed Eighner ’s counsel that he was unable to find the reinstated case on the court website. In October 2018, Eighner’s counsel notified defense counsel that he had tried to file the matter under a different number and had been advised by the clerk’s office to keep the same number. Eighner ’s counsel, unsuccessful in filing a motion under that number, filed a new complaint, number 18-L-11146, and paid a filing fee; a new summons was issued.
The defendant unsuccessfully moved to dismiss the new lawsuit as untimely having been filed five months after the expiration of the one-year period. The appellate court and Illinois Supreme Court concluded that section 13-217 did not permit Eighner to file the previously dismissed action under its original case number, citing the phrase “may commence a new action.” Case 18-L-11146 was untimely and Eighner ’s April 2018 filing was not a new action.
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