Plaintiffs Beware of Voluntary Dismissal and Refilling Under 735 ILCS 5/2-1009; Hudson v. City of Chicago

Great caution must be taken when multi-count lawsuits are filed and a voluntary dismissal considered. Suppose one of the three counts of the complaint turns out to be unsustainable and a voluntary dismissal is taken as to Count II leaving Counts I and III.  The voluntary dismissal as to that count II amounts to a dismissal with prejudice.

Suppose further that as the case remains, the case reaches a point where the plaintiff makes a decision to voluntarily dismiss without the remaining two-count complaint under Illinois Code of Civil Procedure §2-1009, which allows the refiling of the case within one year.

This is where it becomes very tricky. Under the Hudson v. City of Chicago, the Illinois Supreme Court set out the issue as:  “Whether the involuntary dismissal of plaintiffs’ negligence claim and plaintiffs’ subsequent voluntary dismissal of their remaining willful and wanton misconduct claim (against the City of Chicago) barred the refiling of their willful and wanton misconduct claim under the doctrine of res judicata.” What the Illinois Supreme Court was looking at is that in Hudson, the original complaint was two counts. The first count sounded in negligence and the second willful and wanton misconduct.  Under the law, the City and its employees had immunity under the Emergency Medical Services Systems Act. 210 ILCS 50/3.150.

When the plaintiffs realized that they had no viable negligence claim, the defendants were successful in moving to dismiss the negligence count with prejudice on the ground that the city and its employees had that immunity.

Later, the plaintiffs voluntarily dismissed the remaining willful and wanton misconduct count pursuant to §2-1009 of the Illinois Code of Civil Procedure and refiled within one year as it allowed. 

However, the defendants in the Hudson case moved to dismiss pursuant to §2-619 of the Code maintaining that the refiled case was barred by res judicata.

With the trial court granting the motion and the appellate court affirming, Hudson appealed to the Illinois Supreme Court.  In the Supreme Court decision, it laid out three requirements that must be satisfied for res judicata to apply:  (1) a final judgment on the merits has been rendered by a court of competent jurisdiction; (2) the identity of a cause of action exists; and (3) the parties or their privies are identical in both actions.

In the Hudson case, the plaintiff conceded that the requirements 2 and 3 were met, but that there was no final judgment on the merits of the willful and wanton count.  However, the Illinois Supreme Court applied Rein v. David A. Noyes & Co., 172 Ill.2d 325 (1996) which stated that, “A plaintiff who splits his claims by voluntarily dismissing and refiling part of an action after a final judgment has been entered on another part of the case subjects himself to a res judicata defense.”  Accordingly, the Illinois Supreme Court affirmed the trial court’s and the appellate court’s decisions dismissing with prejudice Hudson’s case.  The lesson learned from Hudson and its progeny is that a dismissal on the merits of one part of the case may serve as a dismissal of the entire case even if a voluntary dismissal is taken under §2-1009.  The court’s decision prevents litigants from claim-splitting or bringing multiple causes of action arising out of the same transaction.  There were 6 exceptions set out in the Hudson decision.  But particular care must be taken because of what apparently become exceptions to the exception.  Therefore, a plaintiff should make sure that there is very certain language in an involuntary dismissal order of a multi-count complaint to preserve the right to refile and reinstate the remaining claims should the voluntary dismissal occur later.

Hudson v. City of Chicago, 228 Ill. 2d 462 (Ill. 2008). 

Kreisman Law Offices has been handling trial work for individuals, families and businesses for more than 37 years, in and around Chicago, Cook County and its surrounding areas, including Antioch, Palos Hills, Bensenville, Clarendon Hills, Westchester, Schaumburg, Arlington Heights, Evanston, Waukegan, Orland Park, Chicago (Chatham), Chicago (Jefferson Park), Naperville and Glenview, Ill.

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