Full question:
Can I dismiss my own malpractice complaint and resubmit a complaint before the statue of limitation have expired in Illinois (even if an attorney realized that I was missing a note from a specialist and would want the case dismissed with prejudice)?
- Category: Civil Actions
- Subcategory: Dismissal
- Date:
- State: Illinois
Answer:
Generally, a claim dismissed without prejudice for the first time may be refiled later before the statute of limitations expires. It is unclear what the note’s significance is. In order to file a claim, the plaintiff must have a good faith belief in the merits of the claim. Frivolous, in general, means lacking in substance. In a legal context, frivolous claims are those which have no basis in fact or for which the law provides no remedy. A frivolous appeal of a lawsuit is one clearly lacking any merit and the attorney bringing a frivolous lawsuit may be assessed money damages, including attorneys' fees and compensatory costs.
Please see the following IL statute to determine applicability:
735 ILCS 5/2-1009 (from Ch. 110, par. 2-1009)
Sec. 2-1009. Voluntary dismissal.
(a) The plaintiff may, at any time before trial or hearing
begins, upon notice to each party who has appeared or each
such party's attorney, and upon payment of costs, dismiss
his or her action or any part thereof as to any defendant,
without prejudice, by order filed in the cause.
(b) The court may hear and decide a motion that has been
filed prior to a motion filed under subsection (a) of this
Section when that prior filed motion, if favorably ruled on
by the court, could result in a final disposition of the
cause.
(c) After trial or hearing begins, the plaintiff may
dismiss, only on terms fixed by the court (1) upon filing a
stipulation to that effect signed by the defendant, or (2)
on motion specifying the ground for dismissal, which shall
be supported by affidavit or other proof.
(d) A dismissal under subsection (a) of this Section does
not dismiss a pending counterclaim or third party complaint.
(e) Counterclaimants and third-party plaintiffs may dismiss
upon the same terms and conditions as plaintiffs.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
