Termination of the Case without Trial

Question 1

When may a plaintiff voluntarily dismiss a case without prejudice?

Answer 1

Plaintiff may do this once:

• before the first witness is sworn in at trial; or
• by stipulation among the parties

Plaintiff may then refile:

• within 6 months of dismissal or
• within the limitations period,
• whichever is longer

If a counterclaim is pending against the plaintiff, plaintiff may only voluntarily dismiss if:

• the defendant agrees; or
• the counterclaim is capable of independent adjudication

Question 2

When is plaintiff’s claim subject to involuntary dismissal?

Answer 2

When the plaintiff failed to prosecutive the case with proper diligence

When the plaintiff failed to comply with the Civil Practice Act or a court order

NOTE: An involuntary dismissal operates without prejudice

NOTE: this determination is within the discretion of the court

Question 3

When is plaintiff’s claim subject to automatic dismissal?

Answer 3

If no written order is filed in a case for five years

Costs are taxed to the plaintiff

Plaintiff may refile within 6 months of the dismissal and on the same footing as the original case

Question 4

What are the steps and requirements for default?

Answer 4

Entry of default:

• defendant does nothing with the complaint for 30 days
• simply a status
• defendant may reopen the default as a matter of right and upon payment of costs within 15 days of default

Question 5

What must a defendant in default show after 15 days?

Answer 5

Beyond 15 days, defendant can move to set aside default anytime before entry of default judgment (discretionary):

• 1) providential cause preventing filing;
• 2) excusable neglect; or
• 3) convinced from all facts it would be proper to set aside; AND
• A) be under oath;
• B) include a meritorious defense;
• C) state that defendant is ready to proceed to trial; AND
• D) offer to plead instanter

Question 6

After 15 days, how may a plaintiff obtain a default judgment?

Answer 6

Must file a motion for default judgment

• liability is established automatically
• damages portion is not established automatically

Hearing on damages:

• if the case sounds in tort or there are unliquidated damages

Jury only if the defendant filed a pleading contesting damages

Plaintiff may not recover more than that demanded in the complaint