Illinois dismissal for want of prosecution: one year to refile, or the rest of the limitation period

A dismissal for want of prosecution in Illinois is not usually the end of the case. The refiling statute gives a plaintiff one year or the remaining limitation period, whichever is greater, and it applies whether the dismissal was involuntary or the plaintiff walked away.

But there is a wrinkle in the statute itself that trips people up, and it is visible on the face of the Code.

Two versions of the same section

Section 13-217 appears in two forms — one with the changes made by P.A. 89-7, and one without. P.A. 89-7 was held unconstitutional, so the operative provision is the version without those changes.

The distinction matters enormously, because the two say opposite things about DWP dismissals. The unconstitutional version ended with:

No action which is voluntarily dismissed by the plaintiff or dismissed for want of prosecution by the court may be filed where the time for commencing the action has expired.

That sentence — which would have barred refiling once limitations ran — is not operative. Anyone relying on a version of the statute containing it is reading the wrong text.

The operative refiling right

The version without the P.A. 89-7 changes:

In the actions specified in Article XIII of this Act or any other act or contract where the time for commencing an action is limited, if judgment is entered for the plaintiff but reversed on appeal, or if there is a verdict in favor of the plaintiff and, upon a motion in arrest of judgment, the judgment is entered against the plaintiff, or the action is voluntarily dismissed by the plaintiff, or the action is dismissed for want of prosecution, or the action is dismissed by a United States District Court for lack of jurisdiction, or the action is dismissed by a United States District Court for improper venue, then, whether or not the time limitation for bringing such action expires during the pendency of such action, the plaintiff, his or her heirs, executors or administrators may commence a new action within one year or within the remaining period of limitation, whichever is greater, after such judgment is reversed or entered against the plaintiff, or after the action is voluntarily dismissed by the plaintiff, or the action is dismissed for want of prosecution, or the action is dismissed by a United States District Court for lack of jurisdiction, or the action is dismissed by a United States District Court for improper venue.

And the crucial clause in the middle: "whether or not the time limitation for bringing such action expires during the pendency of such action." The limitation period running out while the case was alive does not defeat the refiling right.

The window is measured from the dismissal — or the reversal, or the entry of judgment against the plaintiff — not from accrual.

Voluntary dismissal is the deliberate version

735 ILCS 5/2-1009 is the provision a plaintiff uses on purpose, and it pairs with 13-217: a voluntary dismissal is one of the listed triggers, so it carries the same one-year refiling right.

That combination is why Illinois practitioners sometimes take a voluntary dismissal rather than fight an adverse ruling — it resets the clock in a way most states do not permit.

Getting the case reinstated instead

Refiling is not always the best answer. A new case means a new filing fee, new service, and the loss of everything done in the old one — and where the DWP order is recent, a motion to vacate it may be preferable.

The route depends on how old the order is:

• Within 30 days of a final order, the trial court retains broad power to vacate or modify it.
• After 30 days, relief runs on 735 ILCS 5/2-1401, which has its own requirements and a two-year outer limit.

Because a DWP dismissal is often entered without the plaintiff present, the first question is always when the order was entered and whether the 30-day window is still open.

Discovery sanctions can produce the same result

A DWP is not the only way a case ends without a decision. Ill. S. Ct. R. 219 sets out the consequences of refusing to comply with discovery, and dismissal is among them. A dismissal entered as a discovery sanction raises different questions from an ordinary DWP — including whether it was with or without prejudice — so the order itself has to be read carefully before assuming 13-217 applies.

For the discovery mechanics behind that, see Illinois requests to admit and quashing an Illinois subpoena.

For a defendant

Three things worth knowing on the other side:

A DWP is usually not the end. Expect a refiling within a year, and diary it.

The refiling right is generally understood to be a single one. Section 13-217 is written around commencing "a new action" after the listed events; a plaintiff who has already used it once is in a materially weaker position, and that is worth checking against the docket history.

Check what the order actually says. A dismissal with prejudice, or one entered as a sanction under Rule 219, is a different animal from a routine DWP.

How Illinois compares

A short checklist

1. Read the order. DWP, voluntary dismissal, with prejudice, or a Rule 219 sanction — they are not the same.
2. Find the entry date. Within 30 days the trial court can still vacate it.
3. If more than 30 days have passed, look at 735 ILCS 5/2-1401 and its two-year limit.
4. Compute the refiling window — one year from dismissal, or the remaining limitation period, whichever is greater.
5. Do not assume limitations bars you. The statute expressly covers a period that expired while the case was pending.
6. Make sure you are reading the operative text. The version incorporating P.A. 89-7 was held unconstitutional, and it says the opposite about DWP and voluntary dismissals.
7. Check whether the refiling right has already been used before relying on it.
8. Weigh reinstatement against refiling — a new case loses the service, the discovery and the fee.

Where these rules live

• 735 ILCS 5/13-217 — Reversal or dismissal
• 735 ILCS 5/2-1009 — Voluntary dismissal
• 735 ILCS 5/2-1401 — Relief from judgments
• 735 ILCS 5/2-1301 — Judgments; default; entry
• Ill. S. Ct. R. 219 — Consequences of Refusal to Comply

This page explains what the statute says. It isn't legal advice, and the effect of a second refiling under 735 ILCS 5/13-217, and the requirements of a petition under 2-1401, are developed in case law this site doesn't cover.