In Illinois, plaintiffs have an unfettered right to voluntarily dismiss a claim and refile it within one year. But plaintiffs only get to do that once. As such, plaintiffs are reluctant to use their voluntary dismissal unless absolutely necessary.
To preserve their right to the voluntary dismissal, many plaintiffs will resort to what our firm calls the “stealth voluntary dismissal”.
In this maneuver, the plaintiff seeks leave to amend the complaint and then files an amended complaint deleting the subject claim. They then take discovery and just before trial, file a motion to amend their complaint which conveniently resurrects the previously deleted claim.
In a pending matter, Brennan Burtker decided to challenge the stealth voluntary dismissal. We argue the plaintiff, in substance, took a voluntary dismissal when deleting the subject claim and then failed to refile the subject claim within one year. A ruling from the Appellate Court is expected this summer.
