Rule Text
(a) Alias Summonses. On request of any party, the clerk shall issue successive alias summonses, regardless of the disposition of any summons or alias summons previously issued.
(b) Dismissal for Lack of Diligence. 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 only and shall not bar any claim against any other party based on vicarious liability for that dismissed defendant’s conduct. The dismissal may be made on the application of any party or on the court’s own motion. In considering the exercise of reasonable diligence, the court shall review the totality of the circumstances, including both lack of reasonable diligence in any previous case voluntarily dismissed or dismissed for want of prosecution, and the exercise of reasonable diligence in obtaining service in any case refiled under section 13-217 of the Code of Civil Procedure.
(c) Summonses for Additional Parties. On request, the clerk shall issue summonses for third- party defendants and for parties added as defendants by order of court or otherwise.
Amendment history: Amended October 21, 1969, effective January 1, 1970; amended May 28, 1982, effective July 1, 1982; amended May 20, 1997, effective July 1, 1997; amended June 5, 2007, effective July 1, 2007.
Plain-English Summary (for reference only — not a substitute for the rule text above)
This summary is not the rule. The rule text controls.
If you filed a lawsuit but are having trouble serving the defendant with court papers, you can ask the court clerk to issue new summonses as many times as needed. This gives you more chances to officially notify the defendant about the lawsuit.
However, you must keep trying to serve the defendant without long delays. If you do not make reasonable efforts to serve them before the deadline to file your case runs out, the court can dismiss your case without prejudice, meaning you may be able to refile. If you wait too long after that deadline has already passed, the dismissal will be permanent for that defendant, and you will not be able to sue them again.
When deciding if you tried hard enough, the judge will look at the full picture. This includes whether you also dragged your feet in any earlier version of the same case that was dismissed or dropped. The court wants to see that you took real steps to move the case forward.
If your case adds new defendants later on, the clerk will also issue summonses for those people when you ask.
Committee Notes
(June 5, 2007) The 2007 amendment clarified that a Rule 103(b) dismissal which occurred after the expiration of the applicable statute of limitations shall be made with prejudice as to that defendant if the failure to exercise reasonable diligence to obtain service on the defendant occurred after the expiration of the applicable statute of limitations. However, even a dismissal with prejudice would not bar any claim against any other party based on vicarious liability for that dismissed defendant’s conduct. Further, the last sentence of Rule 103(b) addresses situations where the plaintiff has refiled a complaint under section 13-217 of the Code of Civil Procedure within one year of the case either being voluntarily dismissed pursuant to section 2-1009 or being dismissed for want of prosecution. If the statute of limitations has run prior to the plaintiff’s refiled complaint, the trial court has the discretion to dismiss the refiled case if the plaintiff failed to exercise reasonable diligence in obtaining service. The 2007 amendment applies the holding in Martinez v. Erickson, 127 Ill. 2d 112, 121-22 (1989), requiring a trial judge “to consider service after refiling in the light of the entire history of the case” including reasonable diligence by plaintiff after refiling. Because public policy favors the determination of controversies according to the substantive rights of the parties, Rule 103(b) should not be used by the trial courts to simply clear a crowded docket, nor should they delay ruling on a defendant’s dismissal motion until after the statute of limitations has run. See Kole v. Brubaker, 325 Ill. App. 3d 944, 954 (2001).
(Revised May 1997) This rule, except for paragraph (b), is former Rule 4, as it existed prior to 1967. Paragraph (b) was changed in the 1967 revision to provide that the dismissal may be with prejudice, and was further revised in 1969 to provide that a dismissal with prejudice shall be entered only when the failure to exercise due diligence to obtain service occurred after the expiration of the applicable statute of limitations. Prior to the expiration of the statute, a delay in service does not prejudice a defendant. The 1997 amendment eliminates the power to dismiss an entire action based on a delay in serving some of the defendants if the plaintiff has exercised reasonable diligence with respect to other defendants. The amendment also eliminates the res judicata effect (but not the statute of limitation effect) of a Rule 103(b) dismissal. Rule 4(m) of the Federal Rules of Civil Procedure has similar provisions regarding dismissals for delay in serving process in federal court actions. Because a Rule 103(b) dismissal will be “without prejudice” for res judicata purposes, the dismissal will not extinguish any claims that the plaintiff might have against an undismissed defendant. Whether the dismissal will extinguish the plaintiff’s claims against the dismissed defendant will depend on whether the dismissal occurs before or after the statute of limitation has run. If before, the plaintiff will be able to refile; if after, the plaintiff will be unable to refile because the claims will be time-barred.
