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Refiled Claims: It's Notice, Not Service

Illinois Bar Journal, Vol. 96, March 2008

Posted: 21 Feb 2008 Last revised: 1 Apr 2008

Jeffrey A. Parness

Northern Illinois University - College of Law

Abstract

A voluntary dismissal by a plaintiff of a claim in a pending civil action can often lead to a refiling of the very same claim by the same plaintiff in a second case long after the running of the statute of limitations on the claim. The limitations period is avoided because a procedural law permits such a refiling within a certain period of time after the voluntary dismissal. Such a late filing can harm a defendant who was unaware of the first civil action. Thus, such a refiling should only be permitted when the defendant had notice of the first case. Unfortunately, in Case v. Galesburg Cottage Hospital, in December, 2007 the Illinois Supreme Court permitted such a late filing as long as there was no lack of diligent service of process in the first action and there was diligent service of process in the second action. The court should have considered the lack of notice to the defendant of the first action and any harm this caused that defendant in responding in the second action. It should have focused on notice, not service.

Keywords: Civil Procedure, Voluntary Dismissal, Refiled Claims, Limitations, Service of Process, Notice

Suggested Citation

Parness, Jeffrey A., Refiled Claims: It's Notice, Not Service. Illinois Bar Journal, Vol. 96, March 2008. Available at SSRN: https://ssrn.com/abstract=1095324

Jeffrey A. Parness (Contact Author)

Northern Illinois University - College of Law ( email )

Swen Parson Hall
DeKalb, IL 60115
United States

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