E-Filing: Waiting Until the Last-Minute May Be Too Late
Pursuant to Illinois Supreme Court Rule 9, it became mandatory to file all documents in civil cases electronically with the clerk of the circuit court in 2018. Many of us “old timers” may have been initially resistant to e-filing (why change the old way if it worked?), and the initial services were sometimes unreliable or confusing.
For those of us that are somewhat computer-challenged, there was a learning curve and some anxious moments while navigating the system. The Supreme Court apparently anticipated that there would be some hiccups in the process, as well as mistakes made by filers, and therefore including the following:
(d)(1) If a document is untimely filed due to any court-approved electronic filing system technical failure, the filing party may seek appropriate relief from the court, upon good cause shown.
(d)(2) If a document is rejected by the clerk and is therefore untimely, the filing party may seek appropriate relief from the court, for good cause shown.
Ill. Sup. Ct. R. 9.
Paragraph (d)(2) is often relied upon by filers who attempt to file a time-sensitive document near the deadline and end up having to file again after the deadline because the initial filing is rejected.
Initially, the appellate courts were sympathetic. In Davis v. Village of Maywood, 2020 IL App (1st) 191011, plaintiff’s attorney e-filed a personal injury complaint at 10:32 AM on the last day of the statute of limitations (a Friday). On the following Tuesday, around noon, the clerk rejected the filing because the attorney failed to put his Cook County Attorney Code in the “Case Cross Reference Field” box. The attorney then re-filed the complaint, which was accepted and file-stamped at 4:21 PM that afternoon. The trial court granted the defendant’s motion to dismiss the action as time-barred and denied plaintiff’s Supreme Court Rule 9(d)(2) motion.
The Appellate Court reversed, noting that the broad relief language of Rule 9(d)(2) indicated that the court must consider the totality of the circumstances. Finding that the e-filing system was approximately two weeks old at the time of the filing, that during the transition period from paper filing to electronic filing the procedures were unfamiliar to both the clerk and litigants, and that the “Case Cross Reference Field” was confusing, the totality of the circumstances favored the filer. The Court also relied on the fact that the clerk eventually accepted the identical document initially filed.
However, the Court in O’Gara v. O’Gara, 2022 IL App (1st) 2100013 was not so forgiving when the filer attempted to e-file a motion for reconsideration at 11:52 PM on the 30th day following the granting of a motion to dismiss. The filing was rejected by the clerk due to the failure of the attorney to select the correct filing type and pay the accompanying fee. The attorney made the correction the following day and the filing was accepted, but the trial court denied the filer’s Rule 9(d)(2) motion to backdate the filing date nunc pro tunc, and the Appellate Court affirmed. The Court distinguished the case before it from the Davis case on the basis that, while the attorney may have been unfamiliar with the e-filing system, it had been in place for two years and he waited until 11:52 PM of the last possible day to file it. Davis had specifically pointed out that it may have come to a different result if the initial filing in that case had been right before midnight as opposed to 10:30 AM in the morning.
Later, the Court in Kilpatrick v. Baxter Healthcare Corporation, 2023 IL App (2d) 230088 signaled that the honeymoon may be over for last minute filers. The plaintiff’s attorney attempted to file a personal injury complaint at 1:06 PM on the last day of the statute of limitations, but it was rejected by the clerk the next day because the attorney “inadvertently included his firm’s attorney number rather than his (ARDC) number.” The attorney filed the complaint the day after receiving the rejection notice, and it was accepted.
Defendant brought a motion to dismiss, and plaintiff requested relief under Rule 9(d)(2). The trial court granted the defendant’s motion, holding that “plaintiff was unable to demonstrate good cause to modify her complaint nunc pro tunc to comply with the statute of limitations.”
The Appellate Court affirmed, citing four reasons: 1) in the present case, unlike Davis, the e-filing system had been functional for years; 2) again, unlike Davis, the attorney’s error was not understandable under the circumstances, rather, it was “an entirely avoidable attorney error”; 3) waiting until the last day is not a factor that favors the filer; and 4) a document is not considered “filed” until it has the court’s approval and an attorney should be aware that the automated response for filing submissions states the user will be notified “within 24-48 hours whether the filing has been accepted or rejected.”
The harsh reasoning in Kilpatrick was the basis for another similarly unsympathetic result in McNulty v. Lapp Chiropractors, 2025 IL App (2d) 240429-U.
Apparently recognizing the severe results of the Appellate Cout decisions, the Illinois Supreme Court recently amended Rule 9(d) to be more forgiving. The new rule requires the trial court to allow a back-dated filing so long as the new filing corrects the old one and an application is made within five court days.
According to the Committee Comments:
d. The May 21, 2025, amendment to Rule 9(d) replaces the “good cause” standard for seeking relief from the effects of rejection of an electronic filing on the timeliness of the document. The rule now provides that the trial court “shall” grant a motion seeking to establish an earlier effective filing date if the relevant requirements are met.
There may be more help on the way if the Amendment to Senate Bill 328 (amending 735 ILCS 5/2-616) becomes law, by granting the filer seven days from the date of rejection to re-file, effectively relating back to the original file date.
The e-filing system has proved to be a godsend, especially for those solo and small firm practitioners among us who do not have a team of law clerks/paralegals to run over to the courthouse to do our filing – but it is better practice to give yourself a couple of days (if not more) of cushion when filing a time sensitive document to account for potential human error.
Michael K. Muldoon is a partner with Muldoon & Muldoon LLC.
This article was originally published in General Practice, Solo & Small Firm (July 2025, Vol. 54, No. 1), the newsletter of ISBA’s Section on General Practice, Solo & Small Firm.