Motion for Voluntary Dismissal
(IL)

Summary

This template is a motion for voluntary dismissal without prejudice in an Illinois circuit court civil case. This template includes practical guidance, drafting notes, and alternate and optional clauses. In Illinois, the legal standards governing motions for voluntary dismissal vary depending on whether you are seeking dismissal before or after the trial or hearing has begun. Before trial. Before trial, a plaintiff may dismiss its case as a matter of right, without prejudice, if the plaintiff both: • Provides notice to each party who has appeared • Pays costs See 735 ILCS 5/2-1009(a). If the plaintiff complies with those requirements, its right to voluntarily dismiss its claims before trial is virtually unfettered. See Valdovinos v. Luna-Manalac Med. Ctr., 328 Ill. App. 3d 255, 265 (1st Dist. 2002). However, if an opposing party has filed a motion that could result in a final disposition of the case, the court may hear and rule on that motion before granting the voluntary dismissal. See 735 ILCS 5/2-1009(b); Zuniga v. Dwyer, 323 Ill. App. 3d 508, 512 (1st Dist. 2001). In addition, if the voluntary dismissal would conflict with a specific Illinois Supreme Court Rule (Supreme Court Rule), the Supreme Court Rule controls over the plaintiff's general right to take a voluntary dismissal. See Zuniga, 323 Ill. App. 3d at 512. Once trial begins. Once trial or hearing has begun, a plaintiff may voluntarily dismiss its claims only at the discretion of the court and on terms that the court deems appropriate. See 735 ILCS 5/2-1009(c); Midwest Rem Enters. v. Noonan, 2015 IL App (1st) 132488, ¶ 53. Note that in this context, a "hearing" is the equitable equivalent of trial—in other words, a bench trial before a chancery court. See Espedido v. St. Joseph Hosp., 172 Ill. App. 3d 460, 470 (2d Dist. 1988). After the trial or hearing begins, a plaintiff seeking to voluntarily dismiss its claims must file either: • A stipulation signed by the defendant agreeing to the dismissal • A motion in which the plaintiff specifies the basis for the dismissal See 735 ILCS 5/2-1009(c). If the plaintiff is filing a motion, it must support the motion with affidavits or other evidence. See 735 ILCS 5/2-1009(c). Note that a "hearing" in this context While the court has discretion to deny a motion for voluntary dismissal once the trial or hearing has begun, a court will rarely do so unless the court believes you are engaged in gamesmanship, such as forum shopping or an effort to avoid an unfavorable ruling. Regardless of whether you are seeking dismissal before or after the trial or hearing has begun, Supreme Court Rule 219(e) provides that a plaintiff cannot avoid complying with discovery deadlines, court orders, or applicable rules by voluntarily dismissing the case. See Ill. Sup. Ct. R. 219(e). If a plaintiff dismisses its claims to avoid discovery deadlines or discovery rulings, the court may order the plaintiff to pay the opposing party's reasonable expenses in defending the case, including discovery expenses, expert witness fees, copying costs, travel expenses, postage, and phone charges. See Ill. Sup. Ct. R. 219(e). When a party refiles its claims after taking a voluntary dismissal, the court must also consider any discovery deadlines, discovery rulings, and discovery misconduct from the prior litigation. See Ill. Sup. Ct. R. 219(e). A plaintiff who voluntarily dismisses its claims can take advantage of Illinois's savings statute, which tolls the statute of limitations for a refiled claim. Specifically, a plaintiff who voluntarily dismisses a case has the longer of: (1) One year (2) The remaining statute of limitations period, whichever is longer, to refile the case See 735 ILCS 5/13-217. Note, however, that res judicata may bar refiling of claims if you proceed to trial on other claims that you have not voluntarily dismissed. See Hudson v. City of Chicago, 228 Ill. 2d 462, 473 (2008). For a related practice note, see Voluntary Dismissal (IL). For a related template, see Stipulation of Dismissal (IL).