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Voluntary Dismissal

01 Apr 2003

Plaintiff's original complaint was dismissed with leave to amend Count III within 60 days. Within those 60 days, but prior to filing an amended complaint, plaintiff filed a motion to voluntarily dismiss Count III pursuant to 735 ILCS 5/2-1009(a). In direct conflict to a prior Illinois Fifth District Appellate Court Opinion, the Fourth District Appellate Court denied plaintiff's motion to voluntarily dismiss his complaint as improper. The basis of this order was that the motion to dismiss was a "nullity" because there was no Count III on file and the motion would have the effect of avoiding the trial court's prior ruling as opposed to correcting a procedural or technical defect as intended. Smith v. Central Illinois Regional Airport, No. 4-02-0353, 335 Ill.App.3d 1089, 782 N.E.2d 973, 270 Ill.Dec. 414 (4th Dist. Jan. 8, 2003).

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