Wednesday, March 16, 2011

Dismissals for Want of Prosecution

If a plaintiff in a civil action fails to actively pursue his or her case, the court may dismiss the case for want of prosecution.  This happens most often when the plaintiff's attorney fails to appear for a previously scheduled court date.  In legal parlance, you will hear this process referred to as a DWP.

What happens when your case gets DWP'd?  First, you probably have some explaining to do to your client.  Full disclosure is usually the best option.  This will present a minor setback to your case and will delay the proceedings for a month or two while you get the case reinstated.  Also, you probably shouldn't bill the client for the time or costs involved with reinstating the case, absent special circumstances.

Next, you need to determine whether you want to move to vacate the DWP or refile the case.  If you are still within 30 days of the DWP, it is a generally cheaper vacate the DWP considering that most circuit clerks will charge between $40 and $60 for that motion.  I see those types of motions filed all of the time, and judges routinely grant them without question.

If you have really lost track of the case, however, and it has been more than 30 days since the DWP, you still have options.  The Illinois Supreme Court addressed this issue in S.C. Vaughan Oil Company v. Caldwell, Troutt & Alexander, 181 Ill.2d 489 (1998).  In that case, the court held that if a plaintiff's action is dismissed for want of prosecution, that plaintiff has the option, pursuant to 735 ILCS 5/13-217, to refile the action within one year of the entry of the DWP order or within the remaining period of limitations, whichever is greater.  Section 217 is referred to as a savings statute, with the purpose of facilitating the disposition of litigation on the merits and to avoid its frustration upon grounds unrelated to the merits.  Vaughan Oil at 497.

So, on a case involving a ten year statute for breach of a written contract, you potentially have a long, long time to refile the case.  I would be careful, however, and try to get the case refiled before the expiration of the statute.  The Supreme Court gives you the extra year following the DWP, even if it is outside of the statute, but I believe that conflicts with the actual statutory language.  The statute specifically provides that "no action which is voluntarily dismissed by the plaintiff or dismissed for want or prosecution by the court may be filed where the time for commencing the action has expired."  See Section 217.  So, to be absolutely safe, get the case refiled before the statute runs...or just show up to court in the first place. 

4 comments:

Nate Nieman said...

That seems kind of unfair from the defense's standpoint. The plaintiff drags the defendant into court, doesn't even show up, and then gets to still hold the suit over the defendant's head for a year or more? What ever happened to one bite at the apple?

Perry Grimaldi said...

Your comment that:

The statute specifically provides that "no action which is voluntarily dismissed by the plaintiff or dismissed for want or prosecution by the court may be filed where the time for commencing the action has expired."

is wrong.

You are using the language of Section 13-217, amended by Public Act 89-7, which was held unconstitutional by Best v. Taylor Machine Works.

The language of Section 13-217 prior to the amendment by Public 89-7 does not contain the provision you quoted.

Illinois law has been so polluted by the Illinois Legislative over the last 20 years it's regularly hard for me to figure out...just what is the LAW!

Michael W. Huseman said...

Excellent. Thank you for the clarification.

Brian M. Krause said...

Very good post Mike! Chris and I sometimes purposely get DWP'd when our client wants to buy time. This way, you have to file within the time frame but it is usually much longer before the motion is heard. It is almost always granted and then you get additional time to answer otherwise plead.