JUSTICE TURNER delivered the opinion of the court:

In December 2002, plaintiff, Randell L.D. Smith, filed afive-count complaint against defendant, Menold Construction, Inc.,doing business as Menold Restoration. Defendant did not receiveservice of process until June 2003. In July 2003, defendant filed amotion to dismiss, asserting, inter alia, plaintiff's complaintshould be dismissed pursuant to Supreme Court Rule 103(b) (177 Ill.2d R. 103(b)) because plaintiff failed to exercise due diligence toobtain service on defendant. After a hearing on defendant's motion,the trial court granted the motion and dismissed the action withprejudice because the statute of limitations had expired.

Plaintiff appeals pro se, asserting (1) the trial courterred in finding he had not exercised due diligence in servingdefendant and (2) the statutes of limitations had not expired onthree of his five claims. We affirm in part, reverse in part, andremand with directions.

In May 1998, plaintiff's home located on Ireland GroveRoad in Bloomington, Illinois, was severely damaged by fire. Defendant admitted in a prior case that the parties had entered into awritten agreement, under which defendant would repair the fire damageto plaintiff's home. Smith v. Menold Construction, No. 01-L-25 (Cir. Ct. McLean Co.).

In the prior case, plaintiff filed a February 2001 complaint against defendant, asserting breach of contract and common-lawnegligence. Defendant filed an answer to the breach-of-contractcount and a motion to dismiss the common-law negligence count. InMay 2001, the McLean County circuit court approved defendant'scurrent counsel to be substituted as defendant's counsel inthat matter. Plaintiff later amended his complaint to includeclaims of the following: common-law fraud, a violation of theIllinois Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 through 12 (West 1998)), theft andconversion, and aggravated home repair fraud (815 ILCS 515/5 (West1998)). In August 2001, the circuit court dismissed the theft andconversion count and the aggravated home repair fraud count. InFebruary 2000, plaintiff rejected the arbitrator's award that hadfound in favor of defendant on all of the remaining counts. In June2002, plaintiff filed a motion for voluntary dismissal, which thecircuit court granted. Smith v. Menold Construction, No. 01-L-25 (Cir. Ct. McLean Co.).

On December 27, 2002, plaintiff filed pro se the complaintat issue, asserting the following claims: (1) breach of contract(count I), (2) common-law fraud (count II), (3) a violation of theConsumer Fraud Act (count IV), (4) theft and conversion (count V),and (5) aggravated home repair fraud (count VI). Plaintiff attachedto his complaint (1) a June 6, 1998, repair estimate from defendant;(2) a June 8, 1998, proposal from defendant, for which the acceptanceof proposal had not been signed; and (3) correspondence between theparties regarding responsibility for unfinished work (including a May27, 1999, letter written by plaintiff). The trial court entered aMay 1, 2003, docket entry, noting plaintiff failed to appear at thecase-management conference and ordering plaintiff to obtain serviceand to set the matter for another conference within 30 days. On June11, 2003, defendant received service of process.

In July 2003, defendant filed a motion to dismiss plaintiff's complaint for several reasons, including lack of due diligencein service of process pursuant to Rule 103(b). In its request fordismissal under Rule 103(b), defendant asserted plaintiff's complaintshould be dismissed with prejudiced because "the appropriate statuteof limitations has expired."

In turn, plaintiff filed a motion to strike defendant'smotion to dismiss as well as a reply to defendant's motion. With his reply, plaintiff attached his affidavit and several exhibits. Inhis affidavit, plaintiff stated that, on December 27, 2002, he sent acopy of the summons and complaint to Developmental Research Consultants, Inc. (DRC), a process server. A copy of the December 27,2002, letter to DRC was attached as an exhibit. The letter listedDRC's address as 7501 North University, Suite 17A, Peoria, Illinois,and defendant's address as 1050 West Jefferson Street, Morton,Illinois. The letter also requested DRC to bill plaintiff for itsservices. According to plaintiff, that letter was returned to him.

On January 2, 2003, plaintiff sent another letter to DRC,which was also attached to his affidavit. That letter is the same asthe first except that it listed DRC's address as 414 Hamilton Boulevard, Peoria, Illinois. Plaintiff did not hear back from DRC andassumed it had served defendant. Plaintiff later received a copy ofthe trial court's May 1, 2003, docket entry, which was when he firstlearned DRC had not served defendant. The record indicates a copy ofthe docket entry was mailed to plaintiff on June 5, 2003.

Upon receiving the docket entry, plaintiff went to theMcLean County circuit clerk's office and requested the issuance of analias summons. The record indicates the alias summons was issued onJune 9, 2003. After receiving the summons, plaintiff wrote a letterthat same day to another process server, Sloan Investigation andProcess Service (Sloan), which listed the same address for defendantas the letters to DRC. Plaintiff then received a bill dated June 11,2003, from Sloan. The record indicates Sloan served defendant onJune 11, 2003. Plaintiff later learned DRC went out of business inSeptember 2002. Plaintiff filed another reply to the motion todismiss, asserting that, if he had known the first process server hadgone out of business, he would have immediately hired another processserver to do the job.

In August 2003, defendant filed a supplement to its motionto dismiss, attaching copies of the documents filed in the priorcase, requesting the trial court to take judicial notice of the priorcase, and asserting plaintiff knew where defendant could be servedand the identity of defendant's counsel. Plaintiff also supplementedhis evidence with an affidavit from Susan Foster and a page from the2002-03 Peoria area Yellow Book that listed DRC under the title"process servers" with the University Street address. Foster statedshe informed plaintiff on June 9, 2003, that, to her knowledge, DRCwas no longer in business. Thereafter, she spoke to NatalieStoessel, a former DRC employee, who stated DRC had gone out ofbusiness around September 2002.

In August 2003, the trial court held a hearing ondefendant's motion to dismiss only as it related to Rule 103(b). Atthe hearing, the court asked plaintiff why he was not obligated tocheck and make sure the process server had in fact served defendant. He also inquired if plaintiff had a tickler system. Plaintiffreplied that, when he sent the letter to DRC, he assumed it wasprocessed because he had "stuff" to do besides work on this case. Plaintiff also stated he knew Sloan had served defendant because hereceived a bill. Additionally, plaintiff admitted he knew, from theprior lawsuit, what law firm represents defendant. Near the end ofthe hearing, the court explained that, if the case was dismissed, itwould be with prejudice because it was past the statute oflimitations.

On September 16, 2003, the trial court entered a writtenorder, considering the applicable factors and concluding plaintifffailed to show he acted with reasonable diligence in obtainingservice on defendant. The court found plaintiff (1) knew wheredefendant was located and who its attorneys were and (2) did not havea system to check on whether service had been accomplished because"he had 'other things to do.'" Accordingly, the court dismissed thecase with prejudice "since the statute of limitations has nowexpired." This appeal followed.

Defendant asserts the trial court erred in finding he hadnot exercised due diligence in serving defendant. The determinationof whether a plaintiff has exercised reasonable diligence under Rule103(b) rests within the trial court's sound discretion, and thiscourt will not disturb the trial court's judgment absent an abuse ofthat discretion. Kole v. Brubaker, 325 Ill. App. 3d 944, 950, 759N.E.2d 129, 134 (2001). A court abuses its discretion only if itsdecision was "clearly against logic." State Farm Fire & Casualty Co.v. Leverton, 314 Ill. App. 3d 1080, 1083, 732 N.E.2d 1094, 1096(2000).

Under Rule 103(b), the plaintiff has the burden of showingreasonable diligence in service of process. Segal v. Sacco, 136 Ill.2d 282, 286, 555 N.E.2d 719, 720 (1990). In ruling on a Rule 103(b)motion, a court may consider the following nonexclusive factors: (1)the length of time used to obtain service of process; (2) theplaintiff's activities; (3) the plaintiff's knowledge of thedefendant's location; (4) the ease with which the defendant'swhereabouts could have been ascertained; (5) the defendant's actualnotice or knowledge of the pendency of the suit or the lack ofprejudice to the defendant; (6) special circumstances that wouldaffect the plaintiff's efforts; and (7) actual service on thedefendant. These factors must be considered "with a view towardfulfilling the constitutional mandate of rendering justice fairly andpromptly." Womick v. Jackson County Nursing Home, 137 Ill. 2d 371,377, 561 N.E.2d 25, 27 (1990). Additionally, while the court mayconsider the defendant's lack of prejudice, the defendant does nothave the burden to establish he was prejudiced by the delay. SeeTischer v. Jordan, 269 Ill. App. 3d 301, 307, 645 N.E.2d 991, 995(1995).

Here, plaintiff served defendant more than five months (23weeks) after his complaint had been filed. Courts have found theplaintiff lacked due diligence in service where a delay of similarlength occurred. See Kreykes Electric, Inc. v. Malk & Harris, 297Ill. App. 3d 936, 943, 697 N.E.2d 885, 890 (1998) (five months);Paglis v. Black, 178 Ill. App. 3d 1062, 1064, 534 N.E.2d 206, 208(1989) (5 1/2 months).

As to plaintiff's activities, he did immediately attemptto serve defendant by trying to deliver the summons to a processserver, which suggests diligence (see Kincaid v. Ames DepartmentStores, Inc., 283 Ill. App. 3d 555, 563, 670 N.E.2d 1103, 1109(1996)). However, once plaintiff sent the second letter to theprocess server, he did nothing. At the time of its ruling, the trialcourt concluded defendant still would not have been served had it notnotified plaintiff that he failed to appear at a case-managementconference.

This court has found a plaintiff has a nondelegable dutyto (1) assure the clerk issued the summons, (2) deliver the summonsto the process server for service, and (3) see the process servermade a prompt and proper return. Penrod v. Sears, Roebuck & Co., 150Ill. App. 3d 125, 129, 501 N.E.2d 367, 369 (1986). While plaintiffdid not know DRC was out of business when he requested DRC to servedefendant, he had a duty to ensure an actual process server receivedthe summons and then served defendant. Thus, plaintiff's failure toverify that DRC did receive the summons and serve defendant indicateda lack of due diligence.

Moreover, plaintiff knew where defendant was located andknew who defendant's attorneys were and their location. Defendantalso had no knowledge of the case until it received service but didnot appear to suffer prejudice from the delay.

Additionally, while plaintiff was proceeding pro se, the recordindicates he was familiar with the legal process, and no specialcircumstances existed.

Based on the above facts, we find the trial court did notabuse its discretion in finding plaintiff lacked due diligence inserving defendant, requiring dismissal under Rule 103(b).

Plaintiff also contends the trial court erred indismissing his case with prejudice because the statutes oflimitations had not run on his breach of contract, common-law fraud,and theft and conversion claims (counts I, II, and V). Defendantasserts plaintiff has forfeited this argument by failing to raise itin the trial court.

We decline to address whether plaintiff has forfeited thisargument. The rule of forfeiture is a limitation on the parties, notthe court. In re D.F., 208 Ill. 2d 223, 238, 802 N.E.2d 800, 809-10(2003). A reviewing court may override considerations of forfeiturein furtherance of its responsibility to maintain a sound and uniformbody of precedent. D.F., 208 Ill. 2d at 239, 802 N.E.2d at 810. Thus, even if plaintiff has forfeited his argument, we would chooseto address the issue on the merits.

Under Rule 103(b), a dismissal will be with prejudice onlywhere the statute of limitations has expired before the trial courtenters its dismissal order. See Kole, 325 Ill. App. 3d at 954, 759N.E.2d at 137; 177 Ill. 2d 103(b), Committee Comments, at xxvii.

In this case, defendant's petition simply stated thedismissal should be with prejudice because the statute of limitationshad run. Defendant offered no law or facts in support of itsconclusion. Plaintiff did not address the statutes of limitations inhis reply to defendant's motion to dismiss. At the hearing on themotion, neither party addressed the statutes of limitations. However, near the end of the hearing, the trial court explained toplaintiff that, if it dismissed the case, it would be with prejudicebecause the statute of limitations had expired.

In support of its forfeiture argument, defendant argues nofacts were presented to form a basis for applying the discovery rulein determining the applicable statutory period, and thus this courtlacks the facts needed to determine whether the statutes oflimitations has expired. Moreover, defendant argues a questionexists as to what statute is applicable. Defendant points toplaintiff as the party responsible for addressing the statutes oflimitations at the Rule 103(b) hearing.

While the case law is clear that the plaintiff has theburden of showing reasonable diligence (Sacco, 136 Ill. 2d at 286,555 N.E.2d at 720), the question of who bears the burden of provingthe applicable statute of limitations has expired with a Rule 103(b)motion is a matter of first impression. This question is animportant one in a case such as this where plaintiff has raised fivedifferent causes of action against defendant with potentially fivedifferent statutes of limitations.

A dismissal with prejudice under Rule 103(b) is similar toa dismissal pursuant to section 2-619(a)(5) of the Code of CivilProcedure (735 ILCS 5/2-619(a)(5) (West 2002)), which allowsdismissal on the ground "[t]hat the action was not commenced withinthe time limited by law." With such a motion, the defendant bearsthe initial burden of going forward on the motion; the burden thenshifts to the plaintiff, who must establish the ground assertedeither is unfounded as a matter of law or requires the resolution ofan essential element of material fact before it is proved. Epsteinv. Chicago Board of Education, 178 Ill. 2d 370, 383, 687N.E.2d 1042, 1049 (1997).

Accordingly, we find that, with a Rule 103(b) motion, thedefendant bears the initial burden of demonstrating the statute oflimitations period has expired (or will expire before the trial courtrules) before the burden is shifted to the plaintiff. Our conclusionis also supported by the fact that a statute of limitations is anaffirmative defense, which a defendant forfeits if not raised. SeeGoldman v. Walco Tool & Engineering Co., 243 Ill. App. 3d 981, 989,614 N.E.2d 42, 48 (1993).

In this case, defendant's conclusory statement that "theapplicable statute of limitations has expired" was insufficient tomeet its initial burden, and thus plaintiff did not have the burdento prove the statutes of limitations had not expired on his claims. Since defendant did not meet its burden of showing the statutes oflimitations had expired, the trial court erred in dismissing withprejudice plaintiff's complaint.

On appeal, plaintiff has only challenged the trial court'sruling as to three of his five counts. Since this is an issue offirst impression, we remand the case to the trial court for a hearingconsistent with this opinion on the sole issue of whether theSeptember 16, 2003, dismissal should have been with prejudice as tocounts I, II, and V.

For the reasons stated, we affirm the trial court'sfinding plaintiff did not exercise due diligence in serving defendantand its dismissal of counts IV and VI with prejudice; reverse thecourt's dismissal with prejudice of counts I, II, and V; and remandfor further proceedings consistent with this opinion.

Affirmed in part and reversed in part; cause remanded withdirections.

KNECHT, P.J., and STEIGMANN, J., concur.