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The Perils of Voluntarily Dismissing Without Prejudice: "Beware What You Dream For"

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The Perils of Voluntarily Dismissing Without Prejudice: THE PERILS OF VOLUNTARILY DISMISSING WITHOUT PREJUDICE: "BEWARE WHAT YOU DREAM FOR" AN OVERVIEW ALAN R. BORLACK BAILEY BORLACK NADELHOFFER LLC 135 SOUTH LASALLE STREET #3950 CHICAGO IL 60603 (312) 629-2700 [email protected] 4-27-15 ABOUT THE SPEAKER Alan R. Borlack is a partner in Bailey Borlack Nadelhoffer LLC. A graduate of Harvard Law School, Alan started at Mayer Brown & Platt and has concentrated in complex commercial litigation ever since. He has handled virtually every kind of commercial litigation case, many involving sophisticated issues and sizeable amounts at stake, including actions involving antitrust, securities fraud, consumer fraud, intellectual property, shareholder, derivative, statutory and constitutional issues, covenants not to compete, injunctions, and specific performance. He has handled many appeals and been before the Illinois Supreme Court on five occasions. He has spoken on litigation topics at many seminars. Alan is co-Vice Chair of the Chicago Bar Association Civil Practice Committee and is also Chair of the CBA Animal Law Committee where he gives voice to his personal passion for protecting companion animals and wildlife. Alan suggests that for those of you who have too much time on their hands and want to know more, including a recitation of some of his more memorable cases, go to his firm's website at http://www.bbn-law.com. 2 SECTION 2-1009 PERMITS VOLUNTARY DISMISSAL AT ANY TIME BEFORE TRIAL UPON PAYMENT OF COSTS § 2-1009. Voluntary dismissal. (a) The plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or each such party's attorney, and upon payment of costs, dismiss his or her action or any part thereof as to any defendant, without prejudice, by order filed in the cause. (b) The court may hear and decide a motion that has been filed prior to a motion filed under subsection (a) of this Section when that prior filed motion, if favorably ruled on by the court, could result in a final disposition of the cause. (c) After trial or hearing begins, the plaintiff may dismiss, only on terms fixed by the court (1) upon filing a stipulation to that effect signed by the defendant, or (2) on motion specifying the ground for dismissal, which shall be supported by affidavit or other proof. (d) A dismissal under subsection (a) of this Section does not dismiss a pending counterclaim or third party complaint. (e) Counterclaimants and third-party plaintiffs may dismiss upon the same terms and conditions as plaintiffs. NOTE: NEAR UNFETTERED RIGHT TO VOLUNTARILY DISMISS IS ONLY UNTIL TRIAL BEGINS NOTE: ONCE TRIAL BEGINS, DISMISSAL IS ONLY UPON “TERMS FIXED BY THE COURT” 3 SECTION 2-1009 GIVES A (NEAR) UNFETTERED RIGHT TO VOLUNTARILY DISMISS BEFORE TRIAL---BUT WITH CONDITIONS SUPREME COURT HAS NOTED THAT THERE ARE 3 CONDITIONS TO VOLUNTARILY DISMISS BEFORE TRIAL: (1) PLAINTIFF MUST FILE A MOTION TO VOLUNTARILY DISMISS PRIOR TO BEGINNING OF TRIAL; (2) PLAINTIFF MUST GIVE PROPER NOTICE; (3) PLAINTIFF MUST PAY COSTS BUT ALSO THAT (2) FAILURE TO GIVE NOTICE IS RELAXED WHERE THE DEFENDANT HAS SUFFERED NO PREJUDICE FROM THE LACK OF NOTICE, AND (3) REQUIREMENT OF COSTS IS ALSO RELAXED WHERE PLAINTIFF AGREES TO PAY COSTS AND ORDER REQUIRES PLAINTIFF TO PAY COSTS UPON PRESENTATION. In re Marriage of Tiballi 2014 IL 1163 at ¶¶19-20 (Ill.,2014) SUPREME COURT HAS ALSO NOTED THAT RIGHT TO VOLUNTARILY DISMISS UNDER ¶ 2-1009 BEFORE TRIAL IS “UNFETTERED” BUT SUBJECT TO TWO “QUALIFICATIONS”: (1) WHERE OPPOSING PARTY HAS PREVIOUSLY FILED A POTENTIALLY DISPOSITIVE MOTION; OR (2) DISMISSAL WOULD DIRECTLY CONFLICT WITH A SPECIFIC SUPREME COURT RULE” Morrison v. Wagner, 191 Ill.2d 162, 165 (2000) 4 WHAT “COSTS” DO YOU HAVE TO PAY TO VOLUNTARILY DISMISS? "COSTS" UNDER § 5-108 ARE ONLY “COURT COSTS” AND, GENERALLY PRIOR TO TRIAL, QUITE LIMITED “IT IS UNDISPUTED THAT SECTION 5-108 MANDATES THE TAXING OF COSTS COMMONLY UNDERSTOOD TO BE ʻCOURT COSTS, SUCH AS FILING FEES, SUBPOENA FEES, AND STATUTORY WITNESS FEESʼ" Under its definition of “costs,” Black's Law Dictionary distinguishes between court costs, the “charges or fees taxed by the court, such as filing fees, jury fees, courthouse fees, and reporter fees,” and litigation costs, the “expenses of litigation, prosecution, or other legal transaction, esp [ecially] those allowed in favor of one party against the other.” Black's Law Dictionary 350 (7th ed. 1999). It is undisputed that section 5–108 mandates the taxing of costs commonly understood to be “court costs,” such as filing fees, subpoena fees, and statutory witness fees, to the losing party. Vicencio v. Lincoln–Way Builders, Inc., 204 Ill.2d 295, 302, (2003); In re Marriage of Tiballi 2014 IL 1163 at ¶ 26-27 (Ill.,2014) 5 SECTION 13-217 PROVIDES AT MINIMUM ONE YEAR TO REFILE OR GREATER--EVEN IF LIMITATIONS PERIOD HAS EXPIRED “WITHIN ONE YEAR OR WITHIN THE REMAINING PERIOD OF LIMITATION, WHICHEVER IS GREATER” § 13-217. Reversal or dismissal. 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 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 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. No action which is voluntarily dismissed by the plaintiff or dismissed for want of prosecution by the court may be filed where the time for commencing the action has expired. 6 WHY FILE A MOTION FOR VOLUNTARY DISMISSAL BEFORE TRIAL? PERHAPS ONE CAN SPECULATE THAT DESIRE TO V.D. OFTEN ARISES OUT OF A DISCOMFORT WITH THE JUDGE, ... AND AUTOMATIC RIGHT TO SUBSTITUTE JUDGE UNDER § 2- 1001(a)(2) HAS EXPIRED AS JUDGE HAS RULED ON A SUBSTANTIAL ISSUE OR PLAINTIFF HAS ALREADY USED “ONE FREE” SUBSTITUTION .... AND • PLAINTIFF DOES NOT FEEL COMFORTABLE WITH THE JUDGE DECIDING MOTIONS OR TRYING THE CASE • PLAINTIFF IS WORRIED ABOUT OUTCOME OF A LIKELY MOTION TO DISMISS OR SUMMARY JUDGMENT? • JUDGE HAS SET UNFAVORABLE DISCOVERY OR EVIDENTIARY ORDERS AND DEADLINES? • A TRIAL DATE IS NEARING OR LOOMING? . JUST FILE A MOTION FOR VOLUNTARY DISMISSAL AND THEN REFILE CASE AND GET A NEW JUDGE? . SO WHATS NOT TO LIKE? . NOT SO FAST 7 OLD CHINESE PROVERB: "BEWARE WHAT YOU DREAM FOR" A PARADE OF HORRIBLES: ---IF PART OF YOUR CASE HAS ALREADY BEEN DISMISSED ON THE MERITS, YOU MAY RISK HAVING THE REMAINING CLAIMS IN YOUR REFILED CASE BARRED BY RES JUDICATA • IF THAT HAPPENS, YOUR REFILED CASE IS DISMISSED • YOU MAY RISK A MALPRACTICE ACTION AGAINST YOU ---IF YOU ARE FOUND TO HAVE ENGAGED IN MISCONDUCT BY AVOIDING "COMPLIANCE WITH DISCOVERY DEADLINES, ORDERS OR APPLICABLE RULES" UNDER S.CT RULE 219(e), YOU RISK HAVING YOUR CLIENT BEING ASSESSED WITH OPPOSING PARTIESʼ "REASONABLE EXPENSES" WHICH CAN BE MUCH SUBSTANTIAL THAN MERE "COSTS" ---NEW JUDGE IN REFILED CASE IS CHARGED UNDER RULE 219(e) WITH “CONSIDERING” DISCOVERY UNDERTAKEN OR NOT UNDERTAKEN, ANY MISCONDUCT AND ORDERS ENTERED IN PRIOR CASE AND MAY EVEN REIMPOSE THEM • AS A RESULT, YOU MAY NOT GAIN MUCH RELIEF, IF ANY, BY REFILING ---IT IS POSSIBLE THAT YOUR REFILED CASE MAY BE ASSIGNED TO ORIGINAL JUDGE ---IF BEFORE YOU FILE YOUR MOTION TO VOLUNTARILY DISMISS, OPPOSING PARTY HAS FILED (OR MAYBE EVEN INDICATED) A POTENTIALLY DISPOSITIVE MOTION, PER § 2- 1009(b) JUDGE MAY DECIDE TO RULE ON THAT MOTION BEFORE GRANTING YOUR MOTION TO VOLUNTARILY DISMISS 8 • IF JUDGE GRANTS A DISPOSITIVE MOTION, ITS NOW TOO LATE TO VOLUNTARILY DISMISS--YOU LOST • OR IF JUDGE GRANTS PARTIAL DISPOSITIVE MOTION, YOU NOW FACE RES JUDICATA CLAIM-SPLITTING ISSUE ON THE REMAINING CLAIMS IF YOU THEN SEEK TO VOLUNTARILY DISMISS AND REFILE 9 A REFILED CASE MAY END UP BEING ASSIGNED TO THE SAME JUDGE ----ONE UNPUBLISHED FIRST DISTRICT OPINION SAYS THAT UPON REFILING AN ACTION THE PRESIDING JUDGE "OBVIOUSLY" HAS "THE DISCRETION" TO RETURN THE REFILED CASE TO THE ORIGINAL JUDGE Advantage Equipment Resources, LLC v. Middleby Corp. 2013 IL App (1st) 121778-U ("Clearly, plaintiffs were not entitled to a different judge as a matter of right. ...We note that nothing would prohibit defendants from presenting a motion before the presiding judge requesting the re-filed lawsuit be assigned to Judge McGrath setting forth the reasons why the matter should be returned to her calendar, an administrative decision which is obviously within the discretion of the presiding judge") --ANOTHER FIRST DISTRICT CASE NOTED THAT A MOTION TO RETURN REFILED CASE TO ORIGINAL JUDGE (“ADMINISTRATIVE TRANSFER”) WAS DENIED Quintas v. Asset Management Group, Inc. 395 Ill.App.3d 324, 328 (1st Dist., 2009) (“On July 15, 2005, defendants filed a motion for administrative transfer, requesting that the same judge who presided over Quintas I also preside over Quintas I. Plaintiffs opposed the motion and it was denied.) ----A SECOND DISTRICT CASE (LAKE COUNTY) HINTED THAT BUT FOR ORIGINAL JUDGEʼS RETIREMENT THE REFILED CASE WOULD HAVE BEEN ASSIGNED TO ORIGINAL JUDGE Law Offices of Nye and Associates, Ltd.
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