Let’s face it, while sometimes it just feels better to accuse your opposing counsel of incompetence, the fact of the matter is that sooner or later, regardless of expertise or intelligence, a real lawyer practicing real law will miss a deadline for the filing of a pleading, and that has nothing to do with incompetence. It is in this context that Supreme Court Rule 183 was intended to provide relief, for it gives "the court the power to extend the time for filing any pleading or the doing of any act which is required by the rules to be done within a limited period, either before or after the expiration of that time." This article will examine how the courts have sought to define the application of Rule 183. While the courts differ widely in their interpretation and application of Supreme Court Rule 183, there is a trend in Illinois courts to hold litigants and their attorneys to the strictest requirements and interpretation of that Rule.
Part I of this article will review the application of Supreme Court Rule 183 in the context of (A) requests to admit and (B) other pleadings, such as late answers to counterclaims and affirmative defenses; untimely motions to reinstate; answers to complaints; and amended complaints. The three commonly used standards exercised by the courts under Rule 183 for the extension and/or denials of tardy filings are (a) "for good cause shown"; (b) "wide discretion"; and (c) "where the failure to respond within the time provided is the result of circumstances beyond the control of the litigant."1 Part II will discuss Supreme Court Rule 183 and its applicability to statutes.
(A) "for Good Cause Shown - Prejudice"
In Daleanes v. Board of Education2, the court enunciated the "for good cause shown" standard which considers the lack of prejudice to the nonmoving party as an element in determining whether to allow a late filing pursuant to Rule 183.
(i) Applying Rule 183 to Untimely Responses to Request to Admit
In Rybak v. Dressler,3 the defendants did not file a timely response to the plaintiff’s request for admission of facts.4 Instead, defendants filed a memorandum with an affidavit and exhibits which showed that an answer to the request denying the genuineness of the documents had been properly prepared within the 28-day period, but that the answer was misfiled in counsel’s office and therefore was not timely filed with the court.5 The Rybak court determined that there was no evidence of prejudice to the nonmoving party and that the nonmoving party herself did not suggest any prejudice caused to her by the late filing; therefore, the court allowed the late filing.6
(B) "Wide Discretion" – Justice
Bluestein v. Upjohn7 enunciated the "wide discretion" standard8 used to show good cause for the extension of time to file an untimely pleading where allowing a late filing would prevent injustice.
(i) Applying Rule 183 to Untimely Responses to Requests to Admit
In Bluestein, the defendants filed their response to the plaintiff’s request to admit well beyond the 28-day period, in fact nine months after the answer was due.9 In allowing the late responses, the Bluestein court stated, "[I]f I were to find those requests have been admitted by a lawyer’s carelessness, without more, I would be depriving a party of his right to a trial by jury on a basic issue in this case." 10 But, in Johannsen v. General Foods Corp.,11 the Bluestein standard, where it allowed a late filing to prevent injustice, was reinterpreted as mere "inadvertence" by an attorney, and the client-litigant was held bound by his attorney’s behavior regardless of the issue of justice or fairness to the client-litigant.
(C) Circumstances beyond the control of the litigant - Amendments:
In Redmond v. Central Community Hospital,12 the court held that where the failure to respond within the time provided was the result of circumstances beyond the control of the litigant, the court could allow the filing of a late response under its inherent power to prevent injustice.13
(i) Applying Rule 183 to Untimely Responses to Requests to Admit
In Redmond, the plaintiff tendered discovery requests to defendants.14 The defendant did not comply with the plaintiff’s discovery requests, but instead filed and served a request to admit or deny certain allegations on the plaintiff.15 The plaintiff did not respond to defendant’s request within the required time period, but was subsequently allowed to file a late answer.16 The defendant argued that the 28 day requirement was mandatory and not under the purview of judicial discretion17 and, therefore, the plaintiff should not have been allowed to file late answers. The Redmond court reasoned that this was not a situation that was beyond the control of the parties, because the plaintiff could have requested relief for the defendant’s failure to respond to her discovery request18 and the defendant could have objected to the plaintiff’s late response to the request for admissions. Yet, the court allowed the plaintiff’s late answers and by the same token, it determined that since the defendant failed to object to the plaintiff’s late response to the request for admissions, it waived the late answer objection.19
(ii) Applying Rule 183 to Timely Unsworn Responses to Requests to Admit
In Tires ‘N Tracks, Inc. v. Fiordirosa Construction Company, Inc.,20 the plaintiff served defendant with a request to admit facts. Unlike in Redmond, the defendant in Tires ‘N Tracks did respond on a timely basis to the request to admit facts, but its responses were "unsworn."21 When the plaintiff filed its motion for summary judgment based on the defendant’s failure to submit timely sworn denials, the defendant argued that its previous verified answer to the plaintiff’s complaint coupled with the fact that it had submitted a timely, albeit unsworn, response to the defendant’s request to admit should not be considered a nullity.22 The defendant further requested leave to amend its previous timely filed unsworn responses23 in order to swear its responses by verification.
The court denied the defendant’s request for leave to file an amended response to the request to admit facts and required defendant to show good cause.24 On appeal, the defendant argued that the court erred in requiring the defendant to show "good cause" in order to amend its previous timely filed response to the request to admit. 25 The Appellate Court affirmed the trial court’s decision and stated, "we adhere to the strict application of the rule under Bright. It was defendant’s duty to provide timely, sworn denials in response to plaintiff’s request to admit…Defendant’s unsworn denials are ineffective. Furthermore, we do not believe defendant can circumvent Rule 216(c ) as strictly construed by our supreme court in Bright under the guise of ‘amending’ its responses."26
In Bright v. Dicke,27 the defendant was served with a Rule 216 request to admit facts which she failed to timely answer. Subsequently, when her request to file an untimely response was denied, she sought the relief of Supreme Court Rule 183.28 The defendant argued that allowing an untimely response would not prejudice the plaintiff.29 In Bright, the Illinois Supreme Court has now in essence rewritten the Daleanes lack of prejudice test, and has set the standard that a lack of prejudice does not constitute an independent ground of good cause.30 Consequently, Bright sharply contrasts with the Rybak decision.
The standard enunciated in Bluestein "to prevent injustice" is concerned about the ramifications to the client-litigants rather than intent to punish the lawyer. In Johanssen, the court is concerned about promoting efficiency, narrowing the issues and punishing lawyers and their clients, for the lawyer’s "inadvertence" regardless of the impact on justice. Mere "inadvertence" is not a viable explanation for the failure to file a timely response to a request to admit.
In Redmond, the court looked specifically to the behavior of the parties in determining whether or not to allow the tardy filing. In Tires ‘N Tracks, the court looked to the form of the pleading that it was "unsworn" albeit timely and therefore not amenable to Section 616. The court seems to take a position that Section 616 doctrine of relation back customarily applied to allow amendment is inapplicable in the contexts of requests to admit facts even though 735 ILCS 616 makes no distinction to the type of pleading. Section 616 Amendments in relevant part states: (a) At any time before final judgment amendments may be allowed on just and reasonable terms, introducing any party who ought to have been joined as plaintiff or defendant, dismissing any party, changing the cause of action or defense or adding new causes of action or defenses, and in any matter, either of form or substance, in any process, pleading, bill of particulars or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be brought or the defendant to make a defense or assert a cross claim. (c) A pleading may be amended at any time….
When the court recently stated, "rules are not mere suggestions and not aspirational in nature…[they] are meant to be followed by all who seek justice in the court system,"31 it summed up the trend to strictly interpret Rule 183, particularly as it applies to responses to request to admit facts.
2. (A) "for Good Cause Shown - Prejudice"
(i) Applying Rule 183 to Late Answers to Counterclaims and Affirmative Defenses:
In McGrath Heating & Air Conditioning v. Gustafson,32 the defendant filed affirmative defenses and a counterclaim, the plaintiff did not file its answers until after the trial and the close of all evidence during closing argument.33 The plaintiff argued that since the tardiness of the filing was inadvertent, no new matters were raised in the late pleadings, and that there was no prejudice to defendant, the late filings were proper.34 The court seemed to agree and further noted that the defendant counterplaintiff proceeded to trial without either an answer to his counterclaim or reply to his affirmative defense and presented no motions to require the plaintiff’s answers or for default judgments.35 The court here also placed the burden of showing prejudice by the late filings on the nonmovant and indicated that since it did not show any prejudice caused to it by the late filing the filings were proper.36
(B) "Wide Discretion" - Justice
(i) Applying Rule 183 to Untimely Motions to Reinstate
In Ryan v. Kontrick,37 the plaintiff filed a motion to reinstate after a stay was lifted in a bankruptcy proceeding 290 days late. Here the plaintiff argued that he would be "inequitably and grievously harmed" and that the defendant would receive an "undeserved windfall" if his untimely motion to reinstate were denied.38 The defendant in Ryan argued that just as a lack of prejudice was not a substitute for good cause, it was also no substitute for due diligence.39 But, the court seemed to disagree and stated, "while we do not condone [plaintiff’s] failure to file his motion to reinstate in compliance with Rule 369 (c), after reviewing the totality of the circumstances, we find that [plaintiff] exercised due diligence in filing his petition to reinstate."40 The court allowed the motion.41
(ii) Applying Rule 183 to Late Answers to a Complaint
In Thompson Electronics Company v. Easter Owens/Integrated Systems, Inc.,42 the plaintiff filed a complaint for declaratory judgment against defendant ISI.43 The defendant filed a timely appearance and a motion to dismiss.44 After the defendant’s motion to dismiss was denied, the plaintiff agreed to extend the time in which ISI could file its answer.45 ISI did not file its answer to the complaint on the date it had agreed with the plaintiff.46 Instead, it sought leave of court to file a late answer beyond the originally agreed date.47 Relying on Supreme Court Rule 183, the court indicated that leave to file a late answer is generally permitted by the trial court.48 The court found that the numerous contested motions coupled with the first agreed extension to the late filing of the answer by the plaintiff constituted "good cause" for the purposes of Supreme Court Rule 183.49
(C) Circumstances beyond the control of the litigant - Amendments:
(i) Applying Rule 183 to Amended Complaint:
In Century v. Tracy,50 when the plaintiff requested leave to file a third amended complaint, the court required the plaintiff to file the reasons why the third amended complaint had not been filed. The request was subsequently denied with a determination by the trial court that "a proper showing of good cause" had not been made.51
On appeal to determine good cause to allow the filing of the third amended complaint, the court considered four factors: (1) whether the amendment cured the defective pleading; (2) whether the amendment prejudiced or surprised the other parties; (3) whether the amendment was timely; and (4) whether previous opportunities to amend were identifiable. It then reversed the trial court’s decision and determined that the third amended complaint should have been allowed.52
McGrath, Thompson, Ryan, Century all dealt with the applicability of Rule 183 in a variety of different circumstances. Just as the situations in those cases were varied, the reasoning utilized in those cases likewise varied. Although the lack of prejudice argument is irrelevant in late responses to requests to admit facts, in McGrath the lack of prejudice is still a relevant factor as it concerns late answers to counterclaims and affirmative defenses. Thompson involved a late answer to a complaint, and Century involved a request to amend a complaint. Yet how the courts arrived at those decisions is interesting. In Thompson, unlike in Century, the focus was on the behavior of the parties. In Thompson, the court considered the party’s "numerous contested motions" and the "agreed extension" as constituting good cause, whereas in Century the court focused on the resulting effect of the extension. In other words, if the extension to amend is granted, what is the effect of that amendment? Further, in Century, by applying the four prong amendment test the court inevitably summon back some of the same elements that have already been determined to be obsolete in other contexts.
In Ryan, while considering the totality of the circumstances, the court implicitly determined that due diligence constitutes good cause.
(A) Applying Rule 183 to a Statute
In Ford v. Herman,53 the plaintiffs filed a motion to amend their complaint to add a prayer for relief seeking punitive damages pursuant to 735 ILCS 5/2-604.1. Pursuant to Section 604, "any motion to amend the complaint to include a prayer for relief seeking punitive damages shall be made not later than 30 days after the close of discovery." In its case management order, the trial court did not set a discovery cut-off date, but set the case for trial on September 8, 1998.54 The trial was subsequently continued to January 11, 1999, when the matter actually proceeded to trial.55 The defendant argued that the trial court should not have allowed the plaintiffs’ motion for leave to amend their complaint to seek punitive damages, because their motion was not timely.56 The plaintiffs argued that January 11, 1999, was the date that the trial court reasonably expected to commence the trial and therefore their motion to amend the complaint was timely filed.57 The plaintiffs argued that since their motion to amend was filed on October 27, 1998, it was well within the time provisions of section 604.58 The defendant argued that the motion was untimely because the original trial date was September 8, 1998.59 It was held that the trial court’s order allowing the request for punitive damages after the initial trial setting was also authorized by Supreme Court Rule 183, regardless of the trial’s anticipated commencement and the 60-day rule60 mandated by Supreme Court Rule 218.61
In Ford v. Herman, the court did not engage in a lengthy analysis and application of Rule 183, perhaps because of its implicit recognition that Rule 183 should trump a legislatively enacted statute given the power granted to courts in the 1964 amendments to the judicial article of the Illinois Constitution. In a recent opinion, Circuit Judge Kathy Flanagan wrote, "Supreme Court Rule 183 has been used to extend statutory provisions in 33 separate cases, extending the time normally provided to do something, pursuant to statutory enactments…Supreme Court Rules are constitutionally derived, rather than legislatively enacted, so the Rules, in essence operate with more weight, if you will than does a regular statute section." Nevertheless, the Illinois Supreme Court recently noted that "pre-1964 rules of law [which do not grant the court’s jurisdiction over legislatively enacted statutes] continue to be cited by some Illinois courts further creating confusion and imprecision in [this area] of case law."62
While the courts have not been consistent in their application of Supreme Court Rule 183, it has been applied to late responses to requests to admit and many other different forms of pleadings. But, as it pertains to request to admit, the rules are more delineated and strict. Whereas for the other garden variety situations involving late pleadings, such as, answers to complaints, affirmative defenses, amendments to complaints and the like, the rules are more flexible and yet chaotic. While the Illinois Supreme Court has addressed Rule 183 in Bright, its interpretation of the Rule and its opinion was limited to the context of requests to admit. In light of the confusion and inconsistency involved in the application of Rule 183 as it pertains to other miscellaneous pleadings, the Illinois Supreme Court needs to offer more definitive guidance in this area of the law to the practitioner.
It is the effect of the failure to obtain an extension pursuant to S.Ct.Rule 183 that is common in all these cases and scenarios. Its effect may be to (1) expose an attorney to malpractice, and/or (2) can have very negative ramifications on a litigant’s case. Because most of the variations of legal arguments for a Rule 183 extension have all been made at some time or another, attorneys will need to be more creative in their legal arguments. Outside of a legal argument, and in an attempt to meet the "good cause" requirement of Rule 183, there is a higher probability of malpractice.
1 In the context of request to admit facts the "ultimate issues in the cause" can be perceived as a fourth possible standard. This article will not address this possible fourth standard.
2 Daleanes v. Board of Education of Benjamin Elementary School District 25, DuPage County, 120 Ill.App.3d 505, 457 N.E.2d 1382 (2nd Dist. 1983)(holding that confusion resulting from the changing of attorneys constituted good cause).
3 178 Ill.App.3d 569, 532 N.E.2d 1375, 127 Ill.Dec. 366 (2nd Dist. 1988).
4 178 Ill.App.3d at 583.
6 178 Ill.App.3d at 584-585.
7 Stewart R. Bluestein v. The Upjohn Company, 102 Ill.App.3d 672, 430 N.E.2d 580, 58 Ill.Dec. 548 (1st Dist. 1981).
8 Wide discretion standard: a court may in its discretion permit a tardy response to a request to admit.
9 Bluestein, 102 Ill.App.3d at 677.
10 Id at 678.
11 146 Ill.App.3d 296, 496 N.E.2d 544, 99 Ill.Dec. 851 (3d Dist. 1986).
12 65 Ill.App.3d 669, 382 N.E.2d 95, 21 Ill.Dec. 801 (1st Dist. 1978).
13 65 Ill.App.3d at 678.
14 Id.at 672.
15 Id.at 677-678.
16 Id.at 678.
19 Id at 678-679..
20 331 Ill.App.3d 87, 771 N.E.2d 612, 264 Ill.Dec. 908 (2nd Dist. 2002).
21 331 Ill.App.3d at 93.
22 Id. at 90.
25 Id. at 91.
26 Id. at 93-94.
27Bright v. Dicke, 166 Ill.2d 204, 652 N.E.2d 275, 209 Ill.Dec. 735 (1995).
28 Id.at 206.
30 Id. at 209.
31 Id at 210. See also Trentman v. Kappel, 333 Ill.App.3d 440, 775 N.E.2d 1041, 266 Ill.Dec. 969 (5th Dist. 2002).
32 38 Ill.App. 3d 465, 348 N.E.2d 223 (1st Dist. 1976).
33 38 Ill.App. 3d at 466.
34 Id. at 466-467.
35 Id. at 467.
37 779 N.E.2d 287, 268 Ill.Dec. 673 (1st Dist. 2002).
41 Cf. Smith v. Airoom Inc., 114 Ill.2d 209, 499 N.E.2d 1381, 102 Ill.Dec. 368 (1986) where the court held that even where the requirement of due diligence is not satisfied, where justice and good conscience required it a default judgment may be vacated.
42 301 Ill.App.3d 203, 702 N.E.2d 1016, 234 Ill.Dec. 362 (3rd Dist. 1998).
43 301 Ill.App.3d at 205.
48 Id at 209, citing Straub v. Zollar, 278 Ill.App.3d 556, 663 N.E.2d 80, 215 Ill.Dec. 330 (1st Dist. 1996).
49 Id at 209.
50 316 Ill. App. 3d 639, 737 N.E.2d 353, 249 Ill. Dec. 963 (2nd Dist. 2000).
51 Id. at 649.
52 Id. at 649-651.
53 316 Ill.App. 3d 726, 737 N.E.2d 332, 249 Ill.Dec. 942 (5th Dist. 2000).
54 Id. at 732.
60 "The Illinois Supreme Court has indicated that when no discovery cutoff date is specified, discovery must be completed no later than 60 days ‘before the date on which the trial court reasonably anticipates the trial will commence. Supreme Court Rule 218.
61 316 Ill.App.3d at 733.
62 Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill.2d 325, 770 N.E.2d 177, 264 Ill.Dec. 283 (2002).
Myrna G. Smith of the Law Firm of Fuentes-Smith & Associates, located in Bensenville, Illinois, received her B.A., from the University Of Illinois-Chicago in 1986, her J.D. from the University of Iowa in 1990 and her Master’s of Laws from the John Marshall Law School in 1993. Her practice is concentrated in General Civil Litigation. Ms. Smith wishes gratefully to acknowledge the documentary assistance and support of the Honorable Kathy Flanagan and Mr. Robert Ward, Esq. in the preparation of this article.