Ollins v. Karl

2022 IL App (1st) 220150
Opinion filed: August 25, 2022
FIRST DISTRICT
FOURTH DIVISION

No. 1-22-0150

LARRY OLLINS, OMAR MUHAMMAD, ) Appeal from the
CALVIN OLLINS, and MARCELLIA ) Circuit Court of
BRADFORD, ) Cook County.
)
Plaintiffs-Appellants, )
)
v. ) No. 2020 L 003676
)
PETER KARL; AMAZON.COM, INC.; and )
TELEMACHUS PRESS, LLC, )
)
Defendants, ) Honorable
) John H. Ehrlich,
(Peter Karl, Defendant-Appellee). ) Judge, presiding.

JUSTICE ROCHFORD delivered the judgment of the court, with opinion.
Presiding Justice Reyes and Justice Lampkin concurred in the judgment and opinion.

OPINION

¶1 Plaintiffs, Larry Ollins, Omar Muhammad, Calvin Ollins, and Marcellia Bradford, brought

a five-count complaint against defendants, Peter Karl, Amazon.com, Inc. (Amazon), and

Telemachus Press, LLC, alleging defamation, false light invasion of privacy, public disclosure of

private facts, appropriation of another’s name or likeness, and intrusion upon seclusion. The circuit

court granted defendant-appellee (defendant) Karl’s motion to dismiss the complaint against him

with prejudice pursuant to Illinois Supreme Court Rule 103(b) (eff. July 1, 2007) for plaintiffs’

failure to exercise reasonable diligence to obtain service of process. The court made a finding

pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016) that there was no just reason

for delaying either enforcement or appeal of the dismissal order.

¶2 On appeal, plaintiffs argue that the circuit court abused its discretion in finding that they

failed to exercise reasonable diligence in serving defendant under Rule 103(b). Plaintiffs further
No. 1-22-0150

argue that, under Rule 103(b), the complaint could be dismissed “with prejudice” only if the circuit

court found that their failure to exercise reasonable diligence in serving defendant occurred after

the expiration of the applicable statute of limitations and prejudiced him; however, the circuit court

here made inconsistent findings regarding when the limitations period had expired and whether

plaintiffs’ failure to exercise reasonable diligence in serving defendant occurred before or after the

expiration of the limitations period. The circuit court made no finding that defendant was

prejudiced by plaintiffs’ failure to exercise reasonable diligence in serving him. We affirm the

circuit court’s finding that plaintiffs failed to exercise reasonable diligence under Rule 103(b) in

serving defendant. We reverse the dismissal order and remand for the court to clarify its findings

regarding whether plaintiffs’ failure to exercise reasonable diligence in serving defendant occurred

before or after the expiration of the limitations period and whether defendant was prejudiced

thereby.

¶3 Plaintiffs filed their complaint on March 27, 2020. In count I for defamation, plaintiffs

alleged that they were convicted and sentenced for the murder and rape of Lori Roscetti, which

occurred on October 18, 1997. Subsequent to their conviction, plaintiffs hired a new attorney to

prove their innocence. Multiple DNA tests were conducted establishing that the two DNA profiles

found on Roscetti did not belong to plaintiffs and instead matched two different individuals, Duane

Roach and Eddie Harris. Roach and Harris were arrested, and they each pleaded guilty to the rape

and murder of Roscetti. Plaintiffs’ convictions were vacated in 2001, and they were released from

prison. Governor Ryan pardoned plaintiffs in 2002. Plaintiffs filed a civil rights action based on

the wrongful conviction, which was settled for several million dollars.

¶4 Defendant subsequently wrote a book titled “On the Night of a Blood Moon: A Peter

Michaels Thriller” that was published on March 29, 2019, in the form of an audio book, paper

-2-
No. 1-22-0150

book, and digital book and sold on Amazon. In the book, defendant wrote that while Roach and

Harris raped, robbed, and injured Roscetti, plaintiffs actually killed her. The book further contained

plaintiffs’ juvenile criminal histories, adjudications, and sentences, all of which were private and

confidential under the Juvenile Court Act of 1987 (705 ILCS 405/1-7 (West 2020)).

¶5 Plaintiffs alleged in count I that the book is defamatory, as they did not kill Roscetti.

Plaintiffs requested an award of compensatory damages and that the distribution of the book be

stopped.

¶6 In count II for false light invasion of privacy, plaintiffs alleged that while acting with actual

malice, defendant placed them in a false light by falsely accusing them of murdering Roscetti. The

false light in which plaintiffs were placed would be highly offensive to a reasonable person.

¶7 In count III for public disclosure of private facts, plaintiffs alleged that defendant gave

publicity to plaintiffs’ private facts when he published their juvenile criminal histories, sentences,

and adjudications.

¶8 In count IV for appropriation of another’s name or likeness, plaintiffs alleged that

defendant appropriated their name and likeness within his book without their consent and for the

commercial benefit of selling his book.

¶9 In count V for intrusion upon seclusion, plaintiffs alleged that, without authorization,

defendant intruded upon and gained access to their private juvenile criminal records and published

them. Such an intrusion was highly offensive to a reasonable person and caused plaintiffs anguish

and suffering.

¶ 10 Subsequent to the filing of the complaint, plaintiffs requested on August 27, 2020, that the

circuit court clerk issue summons to defendant at his address in Marco Island, Florida. The clerk

-3-
No. 1-22-0150

issued the summons, leaving the date of service blank, to be filled in when the officer served

defendant. However, plaintiffs did not effectuate service of the summons on defendant.

¶ 11 Instead, on August 31, 2020, plaintiffs prepared a request for waiver of service (the waiver

request) pursuant to section 2-213(a) of the Code of Civil Procedure (Code) (735 ILCS 5/2-213(a)

(West 2020)) and delivered it to defendant by three-day priority mail. 1 Section 2-213(a) provides

that a plaintiff may notify a defendant of the commencement of an action and request that he waive

service of a summons. The notice and waiver request shall be addressed and “dispatched” to the

defendant “through first class U.S. mail or other equally reliable means”; contain a copy of the

complaint; inform the defendant of the consequences of compliance and noncompliance with the

request to waive service; allow the defendant “a reasonable time to return the waiver, which shall

be at least *** 30 days from the date on which the request is sent”; and provide the defendant with

an extra copy of the notice and request and prepaid means of compliance in writing. Id. Section 2-

213(e) provides that if the defendant does not timely return the waiver of service, “plaintiff must

serve summons on that defendant as otherwise provided by this Code and Supreme Court rules.”

Id. § 2-213(e).

¶ 12 Defendant here did not complete and return the waiver within 30 days.

¶ 13 On February 23, 2021, plaintiffs obtained an alias summons and engaged a private

detective who served the complaint on defendant at his Marco Island, Florida, address on March

2, 2021. Defendant’s counsel entered an appearance on March 26, 2021, and sought a 45-day

1
The record on appeal contains the United States Postal Service priority mailing label and tracking
number, as well as a notification of delivery status from the United States Postal Service, showing that a
priority mail package from plaintiffs’ attorney was delivered to defendant at his Marco Island, Florida,
address on September 8, 2020.

-4-
No. 1-22-0150

extension of time to file his responsive pleading to plaintiffs’ complaint. The circuit court granted

the extension request.

¶ 14 On May 17, 2021, defendant filed two motions. First, at 3:29 p.m. he filed a motion to

dismiss pursuant to section 2-619(a)(5) of the Code (id. § 2-619(a)(5)). Seven minutes later, at

3:36 p.m., he filed a motion to dismiss pursuant to Rule 103(b).

¶ 15 In his section 2-619(a)(5) motion, defendant argued that the statute of limitations for a

claim of defamation and/or publication of matters violating the right of privacy is one year. See id.

§ 13-201; Ciolino v. Simon, 2020 IL App (1st) 190181, ¶ 42; Webb v. CBS Broadcasting, Inc., 08

C 6241, 2009 WL 1285836, at *3 (N.D. Ill. May 7, 2009). Generally, in defamation cases, “the

cause of action accrues, and the statute of limitation begins to run, on the date the allegedly

defamatory statement is published.” Ciolino, 2020 IL App (1st) 190181, ¶ 42. Defendant argued

that his book was published on March 20, 2019, meaning that the limitations period expired on

March 20, 2020. Plaintiffs’ complaint was not filed until March 27, 2020, one week after the

limitations period had expired.

¶ 16 Defendant argued that the Uniform Single Publication Act (740 ILCS 165/1 (West 2020))

applies here. The Uniform Single Publication Act states the rule that “[n]o person shall have more

than one cause of action for damages for libel or slander or invasion of privacy or any other tort

founded upon any single publication or exhibition or utterance, such as any one edition of a

newspaper or book or magazine ***.” Id. Pursuant to this rule:

“defamation and privacy actions are ‘complete at the time of the first publication, and any

subsequent appearances or distributions of copies of the original publication are of no

consequence to the creation or existence of a cause of action, but are only relevant in

computing damages.’ *** [Citation.] The subsequent distribution of existing copies of an

-5-
No. 1-22-0150

original publication neither creates a new cause of action nor tolls the applicable statute of

limitations.” (Emphasis in original.) Blair v. Nevada Landing Partnership, RBG, LP, 369

Ill. App. 3d 318, 324-25 (2006).

¶ 17 However, a republication can constitute a new cause of action if the publication is altered

to reach a new audience or promote a different product. Id. at 325.

¶ 18 Defendant argued that the publication of his book in various mediums, such as hard cover,

soft cover, digital, and audiobook, was not a republication that avoided the single-publication rule

and retriggered the one-year statute of limitations but merely constituted delayed circulation of the

original edition and did not create a new cause of action nor toll the limitations period.

¶ 19 Finally, defendant argued that the discovery rule did not apply to toll the limitations period.

“Under the single-publication rule, generally, the cause of action accrues and the period of

limitations commences regardless of when the plaintiff secured a copy or became aware of the

publication.” (Emphasis in original.) Id. at 326. “Indeed, the discovery rule is inapplicable in light

of the single-publication rule unless the publication was hidden, inherently undiscoverable, or

inherently unknowable.” Id.

¶ 20 Defendant asserted that the book’s publication was in no way hidden but was available on

or around March 20, 2019, at Amazon and Barnes and Noble, “platforms that each incontrovertibly

allows easy public access.” As such, the discovery rule was inapplicable and therefore the

limitations period began on the date of publication and ended one year later, before the complaint

was filed.

¶ 21 Plaintiffs filed a response arguing that the single-publication rule did not apply here

because defendant’s book was republished on March 29, 2019, in a Kindle edition and on

September 24, 2019, in an audio book in an effort to reach new and different audiences through

-6-
No. 1-22-0150

different mediums than the original publication. Plaintiffs also argued that the book was not made

widely available to the general public and that they did not discover the book until after June 2019,

when defendant gave an interview to WGN promoting it. Plaintiffs asserted that the limitations

period was tolled until the date of discovery, rendering the complaint timely filed.

¶ 22 On August 31, 2021, the circuit court denied defendant’s section 2-619(a)(5) motion to

dismiss, stating: “There exist questions of fact as to when the plaintiffs first learned of the

publication, the publication’s scope, and whether subsequent publications in other formats

constitute republishing outside the single-publication rule.”

¶ 23 In his Rule 103(b) motion, defendant argued that after filing their complaint on March 27,

2020, plaintiffs delayed almost an entire year before effecting service on him on March 2, 2021.

Plaintiffs thereby failed to exercise reasonable diligence in obtaining service on defendant in

violation of Rule 103(b), which states:

“If the plaintiff fails to exercise reasonable diligence to obtain service on a defendant prior

to the expiration of the applicable statute of limitations, the action as to that defendant may

be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain

service on a defendant occurs after the expiration of the applicable statute of limitations,

the dismissal shall be with prejudice as to that defendant ***.” Ill. S. Ct. R. 103(b) (eff.

July 1, 2007).

¶ 24 Defendant argued that plaintiffs did not serve him with the complaint until after the one-

year limitations had expired on March 20, 2020, thereby necessitating dismissal with prejudice.

Plaintiffs filed a response arguing that by failing to respond to the waiver of service request,

defendant was estopped from asserting plaintiffs’ lack of diligence in serving him; defendant

waived his Rule 103(b) objections by actively participating in the defense of the action on its

-7-
No. 1-22-0150

merits; plaintiffs exercised reasonable diligence to obtain service; and the cause should not be

dismissed “with prejudice” because questions of fact exist regarding when the limitations period

expired and because the delay in serving defendant did not prejudice him by denying him the fair

opportunity to investigate the circumstances upon which liability was predicated.

¶ 25 On September 2, 2021, the circuit court granted defendant’s Rule 103(b) motion, stating in

the dismissal order that “[g]iven the unreasonable delay in serving the defendant, the defendant’s

motion to dismiss must be granted with prejudice.” 2 The order contained no discussion of whether

plaintiffs’ failure to exercise reasonable diligence in serving defendant occurred before or after the

limitations period expired or whether defendant was prejudiced thereby. Plaintiffs filed a motion

to reconsider, which the circuit court denied on December 30, 2021. Plaintiffs appeal the Rule

103(b) dismissal with prejudice of their complaint against defendant.

¶ 26 First, plaintiffs argue that defendant waived any objections under Rule 103(b) by

participating in the case prior to filing the Rule 103(b) motion, specifically, by appearing and filing

for an extension of time to respond to the complaint and by filing a section 2-619(a)(5) motion to

dismiss based on the statute of limitations. In support of their argument that defendant waived his

Rule 103(b) objection by first appearing and filing the motion for an extension of time and the

section 2-619(a)(5) dismissal motion, plaintiffs cite Lovell v. Hastings, 11 Ill. App. 3d 221 (1973).

In Lovell, the defendant delayed four months after filing his appearance before filing a motion to

dismiss under Rule 103(b). Id. at 223. During this time, the defendant filed answers to

interrogatories and took a deposition. Id. We held that the four-month delay in filing the dismissal

2
The dismissal order was made on the parties’ briefings; no hearing was held.

-8-
No. 1-22-0150

motion after his appearance, coupled with his active participation in discovery for the purpose of

defending the case on the merits, constituted a waiver of the Rule 103(b) objection. Id.

¶ 27 Subsequent to Lovell, we have held that a Rule 103(b) motion is not the equivalent of a

motion for dismissal for lack of jurisdiction; rather, defendant invokes the court’s jurisdiction by

requesting that plaintiffs’ claims be dismissed under Rule 103(b). Schusterman v. Northwestern

Medical Faculty Foundation, 195 Ill. App. 3d 632, 636 (1990). Therefore a defendant’s filing of

a general appearance does not constitute a waiver of the right to raise a defense under Rule 103(b).

Id. at 637. Under Lovell, then, it was not the defendant’s appearance that constituted a waiver of

his Rule 103(b) objection but, rather, his four-month delay in filing the objection coupled with his

active participation in discovery for the purpose of defending the case on the merits.

¶ 28 In contrast to Lovell, defendant here did not wait four months before filing his Rule 103(b)

motion but instead filed it less than two months after filing his appearance. 3 On the same day that

he filed his Rule 103(b) motion, defendant also filed a section 2-619(a)(5) motion to dismiss.

Plaintiffs contend that defendant actively participated in the defense of the action on its merits by

filing the section 2-619(a)(5) motion to dismiss, thereby waiving his Rule 103(b) motion as in

Lovell. However, Lovell did not involve the filings of a section 2-619(a)(5) motion and a Rule

103(b) motion, and we note that, in other cases, such motions have been filed at the same time

without any finding of a waiver. See People v. Ramones, 2016 IL App (3d) 140877, ¶ 7; Kelly v.

Mazzie, 207 Ill. App. 3d 251, 252 (1990).

3
Plaintiffs argue that after his appearance in this case, defendant waited four months before filing
his Rule 103(b) motion. The record indicates otherwise. Defendant appeared through counsel on March 26,
2021, and filed his Rule 103(b) motion less than two months later on May 17, 2021.

-9-
No. 1-22-0150

¶ 29 Further, unlike Lovell, defendant participated in no discovery for the purpose of preparing

a defense on the merits; he filed no answers to any interrogatories and took no depositions.

Defendant’s filing of a request for the extension of time to respond to plaintiffs’ complaint and his

filing of a section 2-619(a)(5) motion on the same day as the filing of the Rule 103(b) motion fall

far short of the Lovell state of involvement. Given defendant’s short delay in filing the Rule 103(b)

motion and his minimal participation in the litigation as compared to Lovell, we find no waiver

here. See, e.g., Muskat v. Sternberg, 211 Ill. App. 3d 1052, 1057-58 (1991) (finding that defendants

did not waive their Rule 103(b) objection by filing an appearance, an answer to the complaint,

interrogatories, and a request for production where they never required the plaintiff to answer the

interrogatories or respond to the production request, and they never answered any interrogatories

nor noticed or participated in any depositions); Semersky v. West, 166 Ill. App. 3d 637, 642 (1988)

(finding that defendants did not waive their Rule 103(b) objection by an agreed stipulation to

extend the time for filing an answer and moving for a change of venue, where no discovery ever

was undertaken).

¶ 30 Next, plaintiffs argue that defendant’s failure to timely respond to their section 2-213(a)

request for waiver of service somehow estopped him from later filing his Rule 103(b) objection.

In support, plaintiffs cite only Parker v. Piskur, 258 Ill. App. 3d 344 (1994), which is factually

inapposite as it did not involve a section 2-213(a) waiver request and thus never even considered

whether a defendant’s failure to timely respond to such a request estops him from filing a Rule

103(b) objection. Plaintiffs have forfeited review of their estoppel argument by failing to cite any

relevant authority in support thereof. See Illinois Supreme Court Rule 341(h)(7) (eff. Oct. 1, 2020).

¶ 31 Next, plaintiffs argue that the circuit court denied them procedural due process by failing

to “conduct an inquiry or otherwise address” their waiver and estoppel arguments made in response

- 10 -
No. 1-22-0150

to defendant’s Rule 103(b) motion to dismiss. Plaintiffs’ contention is without merit. Procedural

due process claims concern the constitutionality of the specific procedures employed to deny a

person’s life, liberty, or property interest. Tri-G, Inc. v. Burke, Bosselman & Weaver, 222 Ill. 2d

218, 244 (2006). Fundamentally, procedural due process requires an opportunity to be heard at a

meaningful time and in a meaningful manner. Mathews v. Eldridge, 424 U.S. 319, 333 (1976).

Procedural due process requirements are met “by having an orderly proceeding wherein a person

is served with notice, actual or constructive, and has an opportunity to be heard and to enforce and

protect his rights.” Tri-G, 222 Ill. 2d at 244. In the instant case, plaintiffs had notice of defendant’s

Rule 103(b) motion to dismiss and were given the opportunity to brief their response, including

their waiver and estoppel arguments. Following the dismissal order, plaintiffs also were given the

opportunity to brief their motion to reconsider. This is all that procedural due process requires. See

id. As plaintiffs were given notice and an opportunity to be heard at a meaningful time and in a

meaningful manner, no procedural due process violation occurred here.

¶ 32 Plaintiffs’ argument amounts to nothing more than a contention that they were denied

procedural due process because defendant waived and/or was estopped from raising the Rule

103(b) objections and therefore that the circuit court’s granting of the dismissal motion was

erroneous. As discussed earlier in this opinion, plaintiffs’ waiver and estoppel arguments are

without merit. Regardless, “procedural due process is not a guaranty against erroneous or unjust

decisions, or the incorrect interpretation of statutes or rules of law. Neither an abuse of discretion

nor an erroneous rule of law will support a reversal for a deprivation of procedural due process.”

Id. at 246.

¶ 33 Next, plaintiffs argue that the circuit court erred in finding that they did not exercise

reasonable diligence under Rule 103(b) in serving defendant. The purpose of Rule 103(b)’s

- 11 -
No. 1-22-0150

requirement that the plaintiff exercise reasonable diligence in obtaining service on the defendant

is

“ ‘to protect a defendant from unnecessary delay in the service of process and to prevent

the plaintiff from circumventing the applicable statute of limitations, which is designed to

afford the defendant a fair opportunity of investigation, by filing suit before the expiration

of the limitations period but taking no action to have the defendant[ ] served until the

plaintiff is ready to proceed with the litigation.’ ” Mular v. Ingram, 2015 IL App (1st)

142439, ¶ 20 (quoting Kole v. Brubaker, 325 Ill. App. 3d 944, 949 (2001)).

¶ 34 Rule 103(b) does not dictate a specific time within which the plaintiff must serve the

defendant, and the circuit court is vested with broad discretion in determining whether the plaintiff

has exercised reasonable diligence. Id. We will not disturb the circuit court’s judgment absent an

abuse of that discretion. Id.

¶ 35 In moving for dismissal under Rule 103(b), the defendant initially must make a prima facie

showing that the plaintiff failed to exercise reasonable diligence in effectuating service after filing

the complaint. Emrikson v. Morfin, 2012 IL App (1st) 111687, ¶ 17. Once the defendant establishes

that the time between the filing of the complaint and the date of service suggests a lack of diligence,

the burden shifts to the plaintiff to provide a satisfactory explanation for the delay in service. Id.

“The standard under the rule is objective and the fact that the delay in effecting service may not

have been intentional is not determinative.” Mular, 2015 IL App (1st) 142439, ¶ 21. Still,

“[d]ismissal of a cause with prejudice under Rule 103(b) is a harsh penalty which

is justified when the delay in service of process is of a length which denies a defendant a

‘fair opportunity to investigate the circumstances upon which liability against [the

defendant] is predicated while the facts are accessible.’ ” Segal v. Sacco, 136 Ill. 2d 282,

- 12 -
No. 1-22-0150

288 (1990) (quoting Geneva Construction Co. v. Martin Transfer & Storage Co., 4 Ill. 2d

273, 289-90 (1954)).

¶ 36 Plaintiffs contend that the dismissal order was inappropriate here because defendant did

not make a prima facie showing that they failed to exercise reasonable diligence in serving him.

Plaintiffs’ contention is without merit, as we have held that a delay of four to five months between

the filing of the complaint and subsequent service is sufficient to establish a prima facie showing

of failing to diligently effect service. See Wilder Chiropractic, Inc. v. State Farm Fire & Casualty

Co., 2014 IL App (2d) 130781, ¶ 82; Verploegh v. Gagliano, 396 Ill. App. 3d 1041, 1045 (2009).

Here, plaintiffs delayed almost one year (from March 27, 2020, to March 2, 2021) in effecting

service of summons on defendant.

¶ 37 Plaintiffs argue, though, that in determining whether a prima facie case was made, we may

consider any “unusual circumstances” that would have “prevented or otherwise hindered plaintiff’s

ability to serve defendants.” Kole, 325 Ill. App. 3d at 949. Plaintiffs contend that in the instant

case, the COVID-19 pandemic temporarily interrupted their ability to serve defendant with process

and is just such an unusual circumstance excusing the delay here. In support, plaintiffs cite their

attorney Ilia Usharovich’s affidavit, in which he stated that at the time he filed plaintiffs’ complaint

on March 27, 2020, “the entire court system across the country was [affected] by COVID and not

fully operational”; plaintiffs’ complaint was considered a nonessential court matter; due to the

COVID-19 outbreak, the Office of the Sheriff of Cook County began prioritizing service in

“essential” cases, yielding delays in “non-essential” cases; in response, on March 25, 2020, the

Law Division Motion Section established temporary procedures for presenting motions for

appointment of special process servers, allowing such motions to be heard by emergency motion

judges; counsel believed that he was not going to be able to obtain a private process server who

- 13 -
No. 1-22-0150

would be willing to breach social distancing protocols in order to serve defendant on a nonessential

matter; and counsel issued the request for waiver of service “in that it was the safest way to proceed

in the matter.”

¶ 38 The circuit court considered plaintiffs’ argument that the unusual circumstance of the

pandemic excused the delay in the service of process. The court found that while a two-month

delay was excusable in the early days of the pandemic, defendant had made a prima facie showing

that there was no good excuse for waiting five months from the initial filing date of March 27,

2020, to seeking the issuance of the first summons on August 27, 2020, and then mailing a request

for waiver of service on August 31. Defendant also had made a prima facie showing that there was

no good excuse for plaintiffs to wait an additional five months after he failed to answer the waiver

before obtaining an alias summons and serving it on him on March 2, 2021.

¶ 39 Thus, when considering whether defendant made a prima facie showing of lack of

reasonable diligence on the part of plaintiffs, the circuit court first considered whether plaintiffs

showed reasonable diligence when sending the waiver request. Then the court considered whether

plaintiffs showed reasonable diligence in serving defendant with process after he failed to respond

to the waiver request.

¶ 40 We must determine whether the reasonable diligence requirement of Rule 103(b) applies

to the sending of a request for waiver of service under section 2-213(a) of the Code. No reported

decision has addressed this issue. When construing a supreme court rule, our primary goal is to

ascertain and give effect to the intent of the drafters. In re Michael D., 2015 IL 119178, ¶ 9. The

most reliable indicator of the drafters’ intent is the language used, given its plain and ordinary

meaning. Id.

- 14 -
No. 1-22-0150

¶ 41 A plain reading of Rule 103(b) shows that the supreme court’s intent was to ensure that the

plaintiff exercised reasonable diligence in timely notifying the defendant that a case has been filed

against him prior to the expiration of the statute of limitations so that he can investigate the case

while the facts still are accessible. See Mular, 2015 IL App (1st) 142439, ¶ 20. One way to so

notify the defendant that a case has been filed is to formally serve him with summons and the

complaint; another way is to mail him a waiver of service request with a copy of the complaint

pursuant to section 2-213(a) of the Code. As the supreme court’s intent when drafting Rule 103(b)

was to require the plaintiff to exercise reasonable diligence in timely notifying the defendant of

the filing of his case so as to afford the defendant a fair opportunity to learn of and investigate the

facts of the case, we construe Rule 103(b) as requiring the plaintiff to exercise reasonable diligence

regardless of which notification method is used. In other words, plaintiffs here were required to

use reasonable diligence both when sending defendant the request for waiver of service and when

serving him with process after he failed to respond to the waiver request.

¶ 42 In the instant case, plaintiffs waited five months after the filing of the complaint (from

March 27, 2020, to August 31, 2020) before sending defendant a request for waiver of service,

which was delivered to him on September 8, 2020. The waiver request gave defendant 30 days to

respond and also informed him that he would be formally served a summons and complaint if he

did not timely respond within the 30-day period. After the 30 days expired at the beginning of

October 2020, with no response from defendant, plaintiffs waited an additional five months until

March 2, 2021, to serve him, meaning that defendant was not served until almost one year after

the filing of the complaint. The lengthy delay in sending defendant the waiver request and then in

serving him constitutes a prima facie showing that plaintiffs did not act with reasonable diligence

- 15 -
No. 1-22-0150

as required under Rule 103(b). See, e.g., Wilder Chiropractic, Inc., 2014 IL App (2d) 130781,

¶ 82; Verploegh, 396 Ill. App. 3d at 1045.

¶ 43 We reject plaintiffs’ contention that defendant failed to make a prima facie case because

the COVID-19 pandemic and the sheriff’s office’s decision to temporarily prioritize service in

“essential” cases excused the delay. During the early days of the pandemic, the temporary

prioritizing of service in “essential” cases affected the formal service of process through the

sheriff’s office but did not affect a plaintiff’s ability to mail a request for waiver of service pursuant

to section 2-213(a) of the Code. The United States mail did not stop functioning during the

pandemic. Therefore, plaintiffs’ initial five-month delay in mailing defendant the waiver request

was not excused by the COVID-19 pandemic and by the temporary prioritizing of service in

essential cases.

¶ 44 With respect to plaintiffs’ delay in serving defendant after he failed to timely return the

waiver request, we note that even during the early days of the pandemic when the complaint here

was filed, the Law Division provided special procedures for the presentation to an emergency

motion judge of a “routine” motion for a special process server as a way of obtaining service in a

nonessential case. Plaintiffs did not attempt to take advantage of such procedures. Accordingly, on

the facts before us, defendant made a prima facie showing that plaintiffs failed to exercise

reasonable diligence in effectuating service after filing the complaint, shifting the burden to

plaintiffs to demonstrate, by way of affidavit or other competent evidentiary materials, that

reasonable diligence was exercised and that any delays in effecting service were justified. Mular,

2015 IL App (1st) 142439, ¶ 21.

¶ 45 Plaintiffs argue, though, that we should reverse the dismissal order because in finding that

defendant had made a prima facie case, the circuit court improperly noted that plaintiffs could

- 16 -
No. 1-22-0150

have achieved service on defendant, who was residing in Florida, through the Uniform Interstate

Depositions and Discovery Act (Act), which was adopted by both Illinois and Florida. See 735

ILCS 35/1 et seq. (West 2020); Fla. Stat. § 92.251 (2019). Contrary to the circuit court’s finding,

the Act established a uniform process for obtaining out-of-state depositions and discovery and did

not provide for service of process in this case. The court’s error does not compel reversal in this

case, though, because its finding that defendant made a prima facie showing of plaintiffs’ failure

to exercise reasonable diligence in serving him was based not only on the Act but also on plaintiffs’

lengthy and unexcused delay both in mailing the waiver request and serving him with the

complaint. As we have discussed, the lengthy delay, in and of itself, is a prima facie showing that

plaintiffs failed to exercise reasonable diligence in serving defendant, shifting the burden to

plaintiffs to provide a satisfactory explanation for the delay.

¶ 46 The circuit court may consider several factors to determine whether plaintiffs met their

burden, including (1) the length of time used to obtain service of process, (2) plaintiffs’ efforts to

effect service, (3) whether plaintiffs knew where defendant could be served, (4) whether

information regarding defendant’s whereabouts easily could have been obtained, (5) whether

defendant actually was aware of the lawsuit, (6) any special circumstances bearing on the

reasonableness of plaintiffs’ efforts to serve defendant, and (7) actual service on defendant. Mular,

2015 IL App (1st) 142439, ¶ 23. Further, before dismissing a cause “with prejudice” under Rule

103(b), the court also must determine that plaintiffs’ failure to exercise reasonable diligence when

serving defendant denied him the fair opportunity, while the facts were accessible, to investigate

the circumstances upon which liability was predicated against him. Segal, 136 Ill. 2d at 288.

¶ 47 With regard to the first and second factors, we already have discussed plaintiffs’ unexcused

five-month delay in mailing the request for waiver of service under section 2-213(a) coupled with

- 17 -
No. 1-22-0150

the additional unexcused five-month delay in serving defendant after he failed to respond to the

waiver request.

¶ 48 With regard to the third and fourth factors, plaintiffs knew of defendant’s location and

where to serve him at least six months prior to the service date of March 2, 2021, as his correct

address in Florida was listed on the original summons issued in August 2020 and on the alias

summons issued in February 2021.

¶ 49 With regard to the fifth factor, the circuit court found that plaintiffs offered no evidence

that defendant knew the case was pending prior to the service of process on him in March 2021.

Plaintiffs argue on appeal that the court ignored the evidence that about eight months earlier, on

August 31, 2020, they had mailed defendant a request for a waiver of service notifying him of the

cause of action, which he received on September 8, 2020. However, even assuming that defendant

knew or should have known about this case prior to being served, that knowledge does not

necessarily preclude dismissal under Rule 103(b). See, e.g., Polites v. U.S. Bank National Ass’n,

361 Ill. App. 3d 76, 86 (2005) (the fact that the defendant “had notice of the lawsuit before being

served did not preclude dismissal under Rule 103(b)”).

¶ 50 With respect to the sixth factor, we already have discussed how the COVID-19 pandemic

and the sheriff’s office’s temporary prioritizing of service in “essential cases” were not special

circumstances excusing the delay of service under the facts of this case. Plaintiffs cursorily argue

on appeal that the circuit court failed to properly account for two additional special circumstances,

specifically, that (1) “the case was filed in Cook County where cases routinely pend for several

years before coming to trial” and (2) that defendant rejected the waiver request by failing to

respond to it within 30 days. However, plaintiffs fail to explain how the backlog of cases in the

- 18 -
No. 1-22-0150

Cook County court system and how defendant’s rejection of the waiver of service request in any

way prevented or excused them from timely serving defendant.

¶ 51 With respect to the seventh factor, defendant actually was served on March 2, 2021, almost

one year after the filing of the complaint.

¶ 52 The circuit court concluded that “[t]hese seven factors convincingly establish that the

plaintiffs failed to act diligently in attempting to achieve service of process” on defendant. The

circuit court committed no abuse of discretion in so finding. The seven relevant factors considered

by the circuit court showed that plaintiffs’ unexcused five-month delay in mailing the waiver

request, coupled with their additional unexcused five-month delay in serving defendant after he

failed to timely respond to the waiver request, constituted a lack of reasonable diligence in

obtaining service on him.

¶ 53 Plaintiffs argue that defendant was not prejudiced by the failure to exercise reasonable

diligence in serving him, as there is no indication in the record that the delay between the filing of

the complaint and the service of the summons caused any evidence to grow stale, any witnesses to

become out of reach, or any memories to lapse so as to prevent him from investigating the facts

and circumstances of the charge. As we discussed earlier in this opinion, to enter the “harsh

penalty” of a dismissal with prejudice under Rule 103(b), the circuit court must find that plaintiffs’

failure to exercise reasonable diligence in serving defendant so prejudiced him as to deny him the

fair opportunity, while the facts still are accessible, to investigate the circumstances upon which

liability is predicated against him. Segal, 136 Ill. 2d at 288. The dismissal order contains no

indication that the circuit court made such a determination. In light of the circuit court’s failure to

consider this relevant factor, we reverse and remand for the court to consider whether plaintiffs’

failure to exercise reasonable diligence in serving defendant so prejudiced him as to justify a

- 19 -
No. 1-22-0150

dismissal of their complaint “with prejudice.” See Martinez v. Erickson, 127 Ill. 2d 112, 121-22

(1989) (reversing a Rule 103(b) dismissal and remanding for new hearing where the circuit court

did not accord “adequate weight” to all relevant factors).

¶ 54 In addition, before dismissing plaintiffs’ complaint with prejudice pursuant to Rule 103(b),

the circuit court on remand must consider whether plaintiffs’ failure to exercise reasonable

diligence when serving defendant occurred before or after the expiration of the statute of

limitations. Under Rule 103(b), dismissal with prejudice is mandated when a plaintiff’s “failure to

exercise reasonable diligence to obtain service on a defendant occurs after the expiration of the

applicable statute of limitations.” Ill. S. Ct. R. 103(b) (eff. July 1, 2007). The dismissal must be

without prejudice if “the plaintiff fails to exercise reasonable diligence to obtain service on a

defendant prior to the expiration of the applicable statute of limitations.” Id. To obtain a Rule

103(b) dismissal with prejudice, defendant bears the initial burden of demonstrating that the statute

of limitations has expired before the burden is shifted to plaintiffs to prove that the limitations

period had not expired on their claims. Smith v. Menold Construction, Inc., 348 Ill. App. 3d 1051,

1058 (2004).

¶ 55 In the instant case, on August 31, 2021, when denying defendant’s section 2-619(a)(5)

motion to dismiss based on the one-year statute of limitations applicable to defamation and privacy

claims, the circuit court indicated that there were unresolved questions of fact regarding when the

limitations period expired. Specifically, the court stated: “There exist questions of fact as to when

the plaintiffs first learned of the publication, the publication’s scope, and whether subsequent

publications in other formats constitute republishing outside the single-publication rule.”

However, despite the unresolved questions of fact regarding when the limitations period expired,

the circuit court granted the Rule 103(b) motion to dismiss with prejudice two days later on

- 20 -
No. 1-22-0150

September 2, 2021. The court gave no explanation for why the dismissal order was entered with

prejudice given that the August 31 order indicated that it did not know whether the complaint was

filed before the statute of limitations expired. The court did not explicitly state that defendant met

his burden of demonstrating that the lack of diligence in service occurred after the statute of

limitations had expired.

¶ 56 About four months later, on December 30, 2021, the circuit court denied plaintiffs’ motion

to reconsider the dismissal order, stating that plaintiffs had not cited any new law or previously

unavailable facts and that,

“The plaintiffs’ arguments do not address the basis for this court’s ruling that they

failed to serve [defendant] in a timely fashion and failed to avail themselves of forms of

alternative service. As a result, [defendant] was not served with process until nearly one

year after the plaintiffs filed their complaint, by which time the statute of limitations had

expired.” (Emphasis added.)

¶ 57 The court made no mention of the many unresolved questions of fact referenced in the

August 31, 2021, order regarding when the limitations period expired.

¶ 58 The orders entered on August 31, 2021, September 2, 2021, and December 30, 2021,

conflict with each other with respect to the issue of the expiration of the limitations period. The

August 31, 2021, order denying the section 2-619(a)(5) motion to dismiss stated that numerous

questions of fact exist that precluded the court from finding when the limitations period expired.

The September 2, 2021, order granting defendant’s Rule 103(b) motion “with prejudice” implicitly

indicated otherwise, as such a dismissal order may be entered with prejudice only where the court

determines that the lack of reasonable diligence in serving defendant occurred after the expiration

of the limitations period. The December 30, 2021, order denying plaintiffs’ motion to reconsider

- 21 -
No. 1-22-0150

explicitly conflicted with the August 31, 2021, order by stating that the statute of limitations “had

expired” prior to plaintiffs serving defendant. However, the court never stated for the record the

date on which the limitations period expired or how it came to that conclusion. Nor did it explain

or even acknowledge the discrepancy between the August 31, 2021, order stating that many

questions of fact exist precluding a finding of when the limitations period expired and the

September 2, 2021, and December 30, 2021, orders indicating otherwise.

¶ 59 To determine whether the circuit court abused its discretion in dismissing plaintiffs’

complaint with prejudice under Rule 103(b), we need clarification of its conflicting determinations

in its August 31, September 2, and December 30 orders regarding whether or not there are

unresolved questions of fact surrounding the expiration of the limitations period. If, as indicated

in the August 31 order, questions exist so as to preclude the court from knowing when the

limitations period expired, then the September 2 dismissal order should not have been with

prejudice. A Rule 103(b) dismissal order only may be entered with prejudice when the court knows

the date when the limitations period expired and that plaintiffs’ failure to exercise reasonable

diligence in serving defendant occurred after that date. See Hebting v. Miller Brewing Co., 82 Ill.

App. 3d 981, 983 (1980) (holding that “The express terms of Rule 103(b) indicate that a dismissal

with prejudice is proper only when the failure to obtain service occurs after the expiration of the

statute of limitations.” (emphases omitted)); Ill. S. Ct. R. 103(b), Committee Comments (adopted

June 5, 2007) (stating that a dismissal under the rule “shall be made with prejudice *** if the

failure to exercise reasonable diligence to obtain service on the defendant occurred after the

expiration of the applicable statute of limitations”).

¶ 60 Accordingly, for all the reasons stated in this opinion, we affirm the circuit court’s finding

that plaintiffs failed to exercise reasonable diligence under Rule 103(b) in serving defendant. We

- 22 -
No. 1-22-0150

reverse the dismissal order and remand for the court to (1) decide whether defendant was

prejudiced by plaintiffs’ failure to exercise reasonable diligence when serving him and

(2) reconcile its disparate findings and clarify whether outstanding questions of fact exist regarding

when the limitations period expired. If the court finds, on remand, that no such questions of fact

exist and that plaintiffs’ lack of reasonable diligence in service occurred after the limitations period

expired and prejudiced defendant, it may order the dismissal of plaintiffs’ complaint with

prejudice. If the court finds, on remand, that questions of fact remain such that it cannot determine

whether the limitations period expired prior to the service of process and/or that defendant was not

prejudiced, then the case may not be dismissed with prejudice under Rule 103(b).

¶ 61 For all the foregoing reasons, we affirm the court’s finding that plaintiffs failed to exercise

reasonable diligence under Rule 103(b) in serving defendant. We reverse the September 2, 2021,

order dismissing plaintiffs’ complaint with prejudice and remand for further proceedings

consistent with this opinion.

¶ 62 Affirmed in part and reversed in part, cause remanded.

- 23 -
No. 1-22-0150

Ollins v. Karl, 2022 IL App (1st) 220150

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 2020-L-
003676; the Hon. John H. Ehrlich, Judge, presiding.

Attorneys Ilia Usharovich, of Wheeling, for appellants.
for
Appellant:

Attorneys Samuel Fifer, Taaj M. Reaves, and Gregory R. Naron, of Dentons
for US LLP, of Chicago, for appellee.
Appellee:

- 24 -