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Plaintiff May Lose Right to Voluntarily Dismiss

01 Mar 2003

Although a plaintiff may have a right to voluntarily dismiss the case without prejudice under Section 2-1009 of the Illinois Code of Civil Procedure, that right can instead be denied if the plaintiff didn't replead within a time specified by the Court. Smith v. Central Illinois Regional Airport, No. 4-02-0353, 782 N.E.2d 973, 270 Ill.Dec. 414, 2003 WL 105326 (4th Dist. Jan. 8, 2003). Contra, Bailey v. State Farm Fire & Casualty Co., 137 Ill.App.3d 155, 484 N.E.2d 522, 92 Ill.Dec. 7 (5th Dist. 1985). Recognizing "an ever-increasing number of plaintiffs [who] are using a section 2-1009 motion to avoid a potential decision on the ˜merits™ or to avoid an adverse ruling as opposed to using it to correct a procedural or technical defect," the appellate court affirmed denial of plaintiff's motion to voluntarily dismiss where the time to replead had expired. "Simply put, no matter how unfettered the right to voluntarily dismiss one™s claim, such a claim must exist before it can be dismissed."

Practice tip for defendants: Make sure that if an order granting your motion to dismiss is to be without prejudice to repleading, the new pleading must be filed within a specified time.

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