Klancir v. BNSF Ry. Co.

40 N.E.3d 438

Stephen J. KLANCIR, Plaintiff–Appellant

v.BNSF RAILWAY COMPANY, Defendant–Appellee.

No. 1–14–3437.

Appellate Court of Illinois, First District, Fourth Division.

Sept. 10, 2015.

Ryan Brennan, of Brennan Law Firm, and Christie R. Deaton, both of Belleville, for appellant.

Judge, James & Kujawa, LLC, Park Ridge (Michael E. Kujawa, Erika G. Baldonado, and Deborah A. Ostvig, of counsel), for appellee.

OPINION

Justice HOWSE delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Stephen J. Klancir, was allegedly injured on January 6, 2009 during the course of his employment with Defendant, BNSF Railway Company. On June 24, 2009, Plaintiff filed a complaint against Defendant pursuant to the Federal Employer's Liability Act (FELA). FELA carries a three-year statute of limitations. 45 U.S.C. § 56 (2006). On October 23, 2012, Plaintiff moved to voluntarily dismiss his complaint pursuant to section 2–1009 of the Code of Civil Procedure (Code) (735 ILCS 5/2–1009 (West 2012) ).

¶ 2 On October 21, 2013, Plaintiff filed his second complaint against Defendant based on the January 6, 2009 injury. Defendant moved to dismiss the 2013 complaint pursuant to section 2–619(a)(5) of the Code (735 ILCS 5/2–619(a)(5) (West 2012)). The trial court granted Defendant's motion to dismiss Plaintiff's 2013 complaint. This appeal followed.

¶ 3 For the following reasons, we affirm.

¶ 4 BACKGROUND

¶ 5 The facts are not in dispute but the context of Plaintiff's motion to voluntarily dismiss the complaint in 2012 is necessary to an understanding of Plaintiff's arguments in this appeal. This matter was scheduled to proceed to trial. On October 23, 2012, the parties appeared in the circuit court of Cook County with “a problem about scheduling.” The trial was supposed to have begun the previous Friday but because defense counsel had another trial, the trial of this matter did not begin on that date. Plaintiff's attorney informed the court that because of the remaining matters to be addressed before trial began, counsel would be unable to present his economics expert witness. The expert had to testify by noon the following day because of another obligation and Plaintiff's counsel feared that given the pretrial matters left to be addressed and the order in which counsel wanted to present his witnesses, he would not get to that witness in time. The judge asked Plaintiff's counsel how he wanted to proceed and counsel responded as follows: “Well, what I suggest is we maybe mis-try it and get a new date to set the case, because this is the key witness on our case.”

¶ 6 The trial judge informed Plaintiff's counsel he could not proceed in that way because he (the judge) did not set trial dates. The judge stated that if Plaintiff took “a voluntary” and refiled within a year the case would go to a motion call and the trial judge suggested Plaintiff might be able to “get an agreement with the defense to fast track it.” The judge then suggested that Plaintiff present the witnesses out of order and start with the expert. Plaintiff stated doing so would be detrimental to his case and rejected the judge's suggestion. Plaintiff's counsel and the trial judge were discussing the pretrial matters left to be addressed, and Plaintiff's ability to have his expert testify if trial did begin, when Plaintiff's counsel inquired about the trial judge's statement that Plaintiff had an absolute right to voluntarily dismiss the complaint. The judge reiterated Plaintiff's absolute right to voluntarily dismiss the case without stating a reason for doing so. Plaintiff's counsel then requested to confer off the record with defense counsel.

¶ 7 When proceedings on the record resumed, the trial judge asked Plaintiff's counsel how counsel wished to proceed. Plaintiff's counsel responded: “The only alternative that I could see would be a continuance, but that would take agreement of all the parties.” The trial judge told Plaintiff's counsel “I don't have the power to give a continuance.” Plaintiff's counsel then asked: “If we nonsuit it, can we have an agreement, is there such a thing as a fast track?” The judge stated he could not order it and that it would be up to the defense. Plaintiff's counsel asked defense counsel if he would agree to fast track the case because Plaintiff's counsel was unable to present his expert witness in the way he wanted (stating he could not present the witness “in a timely manner”). Plaintiff's counsel stated “[t]hat judgment has already been made” in an apparent reference to the decision not to proceed with the trial that day. Plaintiff's counsel stated he was asking the defense to agree to a fast track because he was seeking to “cut the delay as short as possible with a nonsuit.”

¶ 8 Defense counsel responded as follows:

“And I guess—I don't know what the term fast track means or what it entails, so I mean if the idea is that you guys are going to go refile next week and we're going to go in and ask for an early trial date as soon as the court will accommodate us based on everybody's schedule with the witnesses, I'm good with that.”

¶ 9 Plaintiff's counsel stated, “That's all we can do.” After clarifying that any new trial date would depend on their respective schedules, defense counsel later said he had no problem with trying “to get it back going as soon as we can.” Plaintiff's counsel then said: “Well then, with that being the case, I will make a record that we will do a nonsuit.”

¶ 10 The record Plaintiff's counsel made was as follows:

“Based on the scheduling, for the record, we find ourself with our key witness not being available, which we knew was going to happen, and that is the reason why we moved the case to start last Friday. Unfortunately we couldn't do that. Now the schedule is closed and it's critical to our case that we present our evidence in a prescribed manner. We cannot do that, therefore we will nonsuit the case and go to the court and refile it and ask that it be put on the fast track.”

¶ 11 The trial judge instructed the parties to prepare an order. The order, dated October 23, 2012, reads as follows: “Plaintiff moves for a voluntary nonsuit, without prejudice. Plaintiff's motion is granted without prejudice. Plaintiff may refile this cause within one year pursuant to statute. Plaintiff shall pay Defendant's statutory costs upon refiling.” Plaintiff did not refile his complaint until October 21, 2013. Defendant received service of the refiled complaint on February 26, 2014.

¶ 12 On April 17, 2014, Defendant filed a motion to dismiss Plaintiff's complaint on the grounds the statute of limitations for Plaintiff's claim expired prior to the filing of the complaint and Illinois's saving statute does not apply to Plaintiff's claim under FELA. Alternatively, Defendant argued Plaintiff's complaint should be dismissed pursuant to Illinois Supreme Court Rule 103(b) (eff. July 1, 2007) because Plaintiff delayed four months to serve Defendant. In opposition to Defendant's motion to dismiss Plaintiff's refiled complaint, Plaintiff's attorney averred that “Before Judge Varga would sign the Order with the language ‘without prejudice’, he first demanded that I call counsel for the Defendant to confirm that that was our understanding and agreement.” “In response to my query, Erika G. Baldonado ( [Defendant's attorney] ) confirmed that the dismissal was ‘without any prejudice.’ ” (Emphasis in original.)

¶ 13 On June 23, 2014, following briefing by the parties, the circuit court of Cook County granted Defendant's motion to dismiss with prejudice pursuant to section 2–619(a)(5) and (a)(9) of the Code. 735 ILCS 5/2–619(a)(5), (a)(9) (West 2012). On July 21, 2014, Plaintiff filed a motion to reconsider. On September 24, 2014, the court denied Plaintiff's motion to reconsider. This appeal followed.

¶ 14 ANALYSIS

¶ 15 The trial court entered judgment granting Defendant's motion to dismiss Plaintiff's complaint pursuant to section 2–619(a) of the Code, which allows for the involuntary dismissal of an action that “was not commenced within the time limited by law.” (Internal quotation marks omitted.) Carlson v. Fish, 2015 IL App (1st) 140526, ¶ 22, 391 Ill.Dec. 728, 31 N.E.3d 404 (quoting 735 ILCS 5/2–619(a)(5) (West 2012)). “Whether a cause of action was properly dismissed under section 2–619(a)(5) of the Code based on the statute of limitations is a matter we review de novo. [Citation.]” Id.

¶ 16 Plaintiff nonsuited his cause of action on October 23, 2012. The Illinois saving statute (735 ILCS 5/13–217 (West 2012) ) allows plaintiffs who nonsuit cases to refile their cases within one year regardless of whether a limitation period set by Illinois statutes has expired. “Section 13–217 grants a plaintiff who voluntarily dismisses his complaint the right to refile within one year or within the remaining period of limitation, whichever is greater.” (Internal quotation marks omitted.) Case v. Galesburg Cottage Hospital, 227 Ill.2d 207, 215, 316 Ill.Dec. 693, 880 N.E.2d 171 (2007). Under Illinois law, Plaintiff had an absolute right to take a nonsuit. However, the Illinois saving statute tolls the statute of limitations only where the statute of limitations is set by Illinois law. See Nichols v. G.D. Searle & Co., 282 Ill.App.3d 781, 784, 218 Ill.Dec. 269, 668 N.E.2d 1101 (1996) (rejecting plaintiffs' argument saving statute applied where under Illinois borrowing statute, statute of limitations in plaintiffs' home jurisdictions where the causes of action arose applied to their claims, and claims were time-barred under the laws of their home jurisdictions); Evans v. Lederle Laboratories, a Division of American Cyanamid Co., 904 F.Supp. 857, 859 (C.D.Ill.1995) (section 13–217 is “part and parcel” of Illinois total statute of limitations (internal quotation marks omitted)).

¶ 17 The limitations period in Plaintiff's case is set by federal law. Plaintiff's action was governed by FELA, which limits the time to commence the action to “three years from the...