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Does the Savings Statute save the day?
A wise government lawyer once opined that there are very few genuine mistakes that cannot be rectified by a motion, an apology, and a smile. But even these tricks-of-the-trade may not save a case that is not re-filed in State court within a year of being dismissed by a federal court for lack of jurisdiction. In situations where the Illinois Savings Statute1 allows a plaintiff one year to re-file a cause of action, this time limit may not be tolled by a pending appeal. If a plaintiff waits beyond one year to the end of the appeal process to re-file, even the most heartfelt apology could be of no use.
The Savings Statute allows a plaintiff to file a cause of action within the remaining statute of limitations, or, if the statute has lapsed, within one year after a federal court dismisses the action for lack of jurisdiction.2 This statute should be read in conjunction with the Illinois Stay of Action statute that tolls the time period to file a claim if it is subject to: (1) an injunction; (2) an order of a court; or (3) a statutory prohibition.3 In other words, if a plaintiff is unable to proceed with a cause of action by law, the limitation period is tolled.
Lawyers can face a quandary in determining whether the limitations period is tolled because of a “statutory prohibition.” Section 2-619(a)(3) of the Code of Civil Procedure provides for dismissal of a second, duplicative action that arises out of the same set of facts and is pleaded against the same parties as a currently pending action.4 If a federal case is on appeal after dismissal, and the plaintiff re-files the State law claims during the appeal, the newly-filed complaint may be subject to dismissal under this Section as a duplicative action. There is conflicting case law on whether this is a “statutory prohibition” that tolls the one-year limitations period to re-file State law claims.
In Suslick v. Rothschild Sec. Corp.,5 the executor of an estate claimed that the defendant defrauded the estate in the handling of certain stock option trades.6 The estate filed in federal District Court, alleging violations of federal securities law and state-based common law claims.7 The District Court found that the estate failed to State a claim under federal law, then dismissed the State law claims by declining to accept supplemental jurisdiction over them.8 Plaintiff appealed to the Seventh Circuit, which ultimately affirmed the dismissal of the federal claims.9
Subsequent to the appellate mandate, but more than one year after the District Court’s decision, the estate filed an action in Cook County Circuit Court that re-alleged the common law claims.10 Applying the Savings Statute, the Supreme Court of Illinois found that the estate had not timely filed the State court action because it was commenced more than one year after the federal court’s dismissal.11 The Supreme Court found that the action was not pending following the dismissal of the plaintiff’s action by the District Court, notwithstanding the appeal.12 The parties in Suslick did not raise the “statutory prohibition” language in Section 2-619(a)(3).
The Suslick holding was reiterated by the Appellate Court of Illinois for the First District in Wade v. Byles.13 The fact pattern in Wade was substantially similar to Suslick: the plaintiff filed a complaint in District Court making both federal and State law claims; the District Court dismissed and was affirmed on appeal; within one year after the affirmance, but more than one year after the District Court dismissed the State law claims, plaintiff re-filed the State law claims in the Cook County Circuit Court.14 The First District found that “the language of section 13-217...is clear: there is no tolling while a case dismissed for lack of jurisdiction is on appeal.”15
The Wade court also found that Section 2-619(a)(3) is not a “statutory prohibition” to the re-filing of a complaint in State court while a federal appeal is on-going.16 The Wade court reasoned that the plain meaning of the language of this section permits a court to dismiss (or stay) a duplicate action; it is not mandatory.17 Thus, the court reasoned, it is not a “statutory prohibition” to filing a duplicate claim as that phrase is contemplated by Section 2-619(a)(3).18 As such, the court found that the tolling mechanism contained in that Section did not apply, and the one-year period to re-file a claim after a federal court dismisses it for lack of jurisdiction begins to run at the time of the federal trial court’s dismissal.19
In contrast to these decisions, the Seventh Circuit has determined that Section 619(a)(3) is a “statutory prohibition” for filing another action while an appeal is pending, thus tolling the one-year limitation period.20 In Locke v. Bonello, the plaintiff filed a case in Champaign County.21 After the plaintiff voluntarily dismissed the action, defendants appealed to the Fourth District Appellate Court, seeking to compel a settlement.22 The Fourth District denied the appeal, and plaintiff subsequently re-filed the case in federal court.23 The Seventh Circuit found it was inherently unjust to allow a defendant to appeal a State court decision while simultaneously using Section 2-619(a)(3) to block the plaintiff’s attempt to re-file the claims while the appeal was pending.24 Consequently, in order to avoid giving the defendants “the keys to the courthouse,” the Seventh Circuit ruled that Section 2-619(a)(3) served as a “statutory prohibition” to filing a duplicative action while the first action was pending on appeal.25 Thus, the one-year limitation period to re-file an action was tolled while the appeal was pending by operation of the Stay of Action statute.26
While Illinois courts are bound to follow Illinois Supreme Court decisions, not Federal appellate authority,27 the Locke decision has support in Illinois law—it was cited with approval by the First District Appellate Court in Schnitzer v. O’Connor.28 That case involved two related shareholder derivative actions, both filed in State court.29 At the time plaintiff filed the second action, the first one was on appeal following a dismissal on the merits.30 The First District expressed approval of the Locke determination that a case is still “pending” while on appeal for purposes of Section 2-619(a)(3).31
In essence, there are a number of factual distinctions between these cases, and there does not appear to be a bright-line test for when the one-year limitations period is tolled by a pending appeal. Defense counsel should keep in mind the potential to dismiss a case based upon failure to timely file. Meanwhile, the more cautious plaintiff’s counsel should consider re-filing the claims within one year of the trial court’s dismissal of the actions. This would avoid any potential argument that the claims are time-barred. As it is with most issues, the final determination of whether a claim is timely filed in any given case is up to the sound discretion of the trial judge. ■
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