Big Lots wants out of dangling cord suit

Ann Knef Nov. 16, 2006, 5:21am

Jeffrey Lowe

Another defendant in Madison County's largest class action lawsuit has moved to dismiss for unreasonable delay in service.

Attorneys for Big Lots Stores wrote that plaintiffs in a suit over dangling cords on window blinds waited more than a year and a half to serve their compaint.

The lawsuit was filed Feb. 18, 2005, by plaintiffs Ronald Alsup of Edwardsville and Robert Crews of Granite City. Big Lots was served Aug. 20, 2006.

"When the delay in service is long enough to show that a plaintiff has been dilatory in serving a defendant, it is the plaintiff's burden to prove that he exercised reasonable diligence and offer a satisfactory explanation for the delay," wrote attorney Charles L. Joley of Donovan, Rose, Nester & Joley of Belleville.

"In this case, plaintiffs have not even begun to meet that burden, and therefore, this court should dismiss all claims asserted against Big Lots," he wrote.

The complaint alleges that at least 60 manufacturers, distributors and retailers conspired to conceal a risk that dangling cords could strangle people.

Plaintiffs claim no personal injury. They seek damages equal to the difference between what they paid for window blinds and what they would have paid if they had known the risk.

Represented by Jeffrey Lowe of Clayton, the plaintiffs seek to represent "hundreds of millions" of window blind buyers.

Last month other defendants moved to dismiss the suit for lack of personal jurisdiction, claiming the suit does not establish a strong enough connection between them and Illinois to justify keeping them in an Illinois court.

Defendant Wal-Mart paved the way for Big Lots, attacking the suit for failure of service.

In October, attorney Cody Moon of O'Fallon wrote, "…plaintiffs made no effort to serve Wal-Mart with summons and complaint for one year and provided no legitimate excuse for doing so."

Joley wrote that plaintiffs attempted to justify the service delay by blaming defendants, the sheriff's office and the court's docket system.

"...But these excuses cannot justify plaintiffs' lack of diligence in serving Big Lots," Joley wrote.

Joley argues that a court can dismiss claims against a defendant when the plaintiff fails to exercise reasonable diligence to obtain service.

He wrote that once a defendant introduces prima facie evidence of such a delay, the plaintiff has the burden to demonstrate that he has exercised reasonable diligence and has a satisfactory explanation for the delay.

"Plaintiffs' nearly eighteen month delay in serving Big Lots clearly evidences a lack of reasonable diligence under the circumstances and warrants dismissal of all claims asserted against Big Lots," Joley wrote.

He wrote that Illinois courts "consistently" have dismissed actions based on much shorter delays.

Steve Korris contributed to this report.

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