Legal Question in Personal Injury in Illinois

How long does a plaintiff have to serve a defendant after a complaint is filed?

I had a fire which the statute of limitations (2 years) ran

out in the beginning of January. A complaint was filed

against me 11/01, but was never served. How long

does a plaintiff have to serve, and what can I do to have

the case thrown out or dismissed?


Asked on 1/23/03, 8:16 am

3 Answers from Attorneys

Zachary Bravos Law Offices of Zachary M. Bravos

Re: How long does a plaintiff have to serve a defendant after a complaint is fil

I see two other lawyers have already responded to your question. Both have offered you sound and sensible advice. Please permit me to add:

Illinois Supreme Court Rule 103(b) provides “Dismissal for Lack of Diligence. If the plaintiff fails to exercise reasonable diligence to obtain service on a defendant, the action as to that defendant may be dismissed without prejudice, with the right to refile if the statute of limitation has not run. The dismissal may be made on the application of any defendant or on the court's own motion.”

Under this rule, a plaintiff cannot excuse failure to exercise reasonable diligence in effecting service by relying on the defendant's knowledge of the pendency of the lawsuit provided that the defendant had been available for service at all times and had made no attempt to evade service.

You ask what can I do? First, you should wait to be served. The longer it takes for the plaintiff to do this, the better for your chances of having it dismissed for lack of diligence when you are finally served. A wise person in your position would also monitor the court file at the circuit court clerk’s office to see what is happening. It is even possible (the court file would show) that you have been served already and don’t even know it (the explanation for how this can happen is too long to set out here).

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Answered on 1/27/03, 5:04 pm

Lawrence A. Stein Aronberg Goldgehn Davis & Garmisa, LLC

Re: How long does a plaintiff have to serve a defendant after a complaint is fil

Upon the filing of a complaint by a plaintiff, the plaintiff becomes obligated to attempt to serve a summons on the defendant "with reasonable diligence." There is no time limit, but if the court finds that the plaintiff failed to use the requisite diligence, then the court can dismiss the case. If the state of limitations had passed at the time the of the lack of diligence, then the plaintiff may not refile the case against you, but if the lack of diligence was before the statute of limitations passed, the plaintiff can refile the case. You should hire a competent lawyer to present to the court the facts establishing lack of diligence. I would be more than happy to help you. Larry Stein (630) 221-1755

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Answered on 1/23/03, 10:05 am
Nima Taradji Taradji Law Offices

Re: How long does a plaintiff have to serve a defendant after a complaint is fil

Under the Illinois Supreme Court Rule 103(b), a party whop initiates a lawsuit must move with dilligence in its efforts to serve papers on the other party. If you still have not been served with papers, you have nothing to worry about. Nothing can happen to you until and unless you are served with the paperes. If the lawsuit in your case was filed in 11/01 and you have only been served recently, you may have a chance to win under the 103(b) motion. If granted, the lawsuit will be thrown out and since the statute has passed, the plaintiff is SOL (pun intended!).

103(b) requires certain elements before it can be granted. You need to do your research before getting into it or have an attorney do it for you (for a fee). If you have insurance, you need to pass the papers (if you have been served with them) to them so that they can provide you with a defense.

I hope this helps,

Good Luck

Nima Taradji

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Answered on 1/23/03, 10:08 am

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