MOTIONS TO DISMISS PURSUANT TO 735 ILCS 5/2-615 AND 2-619
MOTIONS TO DISMISS PURSUANT TO 735 ILCS 5/2-615 AND 2-619
MOTIONS TO DISMISS PURSUANT TO 735 ILCS 5/2-615 AND 2-619
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<strong>MOTIONS</strong> <strong>TO</strong> <strong>DISMISS</strong><br />
<strong>PURSUANT</strong> <strong>TO</strong><br />
<strong>735</strong> <strong>ILCS</strong> 5/2-<strong>615</strong> <strong>AND</strong> 2-<strong>619</strong><br />
By Daniel T. Gillespie* and<br />
P. Shawn Wood**<br />
* The Honorable Daniel T. Gillespie is a Judge in the Law Division of the Circuit Court<br />
of Cook County<br />
** Shawn Wood is partner in the law firm of Seyfarth Shaw LLP and the national chair<br />
of its Commercial Litigation Practice Group.
SECTION 2-<strong>615</strong> <strong>MOTIONS</strong> <strong>TO</strong> <strong>DISMISS</strong><br />
1. The Statute<br />
The Illinois Civil Practice Act provides that motions attacking the sufficiency of the<br />
pleadings should be filed pursuant to § <strong>735</strong> <strong>ILCS</strong> 5/2-<strong>615</strong>, which provides:<br />
Motions with respect to pleadings.<br />
(a)<br />
(b)<br />
(c)<br />
(d)<br />
(e)<br />
All objections to pleadings shall be raised by motion. The motion shall point out<br />
specifically the defects complained of, and shall ask for appropriate relief, such as:<br />
that a pleading or portion thereof be stricken because substantially insufficient in<br />
law, or that the action be dismissed, or that a pleading be made more definite and<br />
certain in a specified particular, or that designated immaterial matter be stricken out,<br />
or that necessary parties be added, or that designated misjoined parties be dismissed,<br />
and so forth.<br />
If a pleading or a division thereof is objected to by a motion to dismiss or for<br />
judgment or to strike out the pleading, because it is substantially insufficient in law,<br />
the motion must specify wherein the pleading or division thereof is insufficient.<br />
Upon motions based upon defects in pleadings, substantial defects in prior pleadings<br />
may be considered.<br />
After rulings on motions, the court may enter appropriate orders either to permit or<br />
require pleading over or amending or to terminate the litigation in whole or in part.<br />
Any party may seasonably move for judgment on the pleadings.<br />
2. Pleadings To Be Construed Liberally<br />
Section 2-603(c) of the Code further provides that “pleadings shall be liberally construed<br />
with a view to doing substantial justice between the parties.” <strong>735</strong> <strong>ILCS</strong> 5/2-603(c).<br />
Under the Illinois Civil Practice Code, “no pleading is bad in substance which contains<br />
such information as reasonably informs the opposite party of the nature of the claim or defense<br />
which he or she is called upon to meet.” <strong>735</strong> <strong>ILCS</strong> 5/2-612(b); Forest Preserve District of<br />
DuPage County v. Miller, 339 Ill.App.3d 244, 252, 789 N.E.2d 916, 923 (2 d Dist. 2003); People of<br />
the State of Illinois ex rel. Hartigan v. Candy Club, 149 Ill.App.3d 498, 500, 501 N.E.2d 188, 190<br />
(1 st Dist. 1986); Kita v. Young Men’s Christian Association of Metropolitan Chicago, 47<br />
Ill.App.2d 409, 425, 198 N.E.2d 174, 182 (1 st Dist. 1964).<br />
“A cause of action should not be dismissed pursuant to a section 2-<strong>615</strong> motion unless it is<br />
clearly apparent that no set of facts can be proved that would entitle the plaintiff to relief.” Pooh-<br />
Bah Enterprises, Inc. v. County of Cook, 232 Ill. 2d 463, 473, 905 N.E.2d 781, 789 (2009);<br />
Napleton v. Village of Hinsdale, 229 Ill.2d 296, 305, 891 N.E.2d 839, 845 (2008). Kindel v.<br />
Tennis, 409 Ill. App. 3d 1138, 949 N.E.2d 1119 (5th Dist. 2011).<br />
2
3. Fact-Pleading Required<br />
Illinois is a fact-pleading jurisdiction. A plaintiff must allege facts, not mere conclusions,<br />
to establish his or her claim as a viable cause of action. Napleton v. Village of Hinsdale, 229 Ill.2d<br />
296, 305, 891 N.E.2d 839, 845 (2008).<br />
Liberal construction will not save a complaint containing legal or factual conclusions<br />
unsupported by specific factual allegations. Pooh-Bah Enterprises, Inc. v. County of Cook, 232 Ill.<br />
2d 463, 473, 905 N.E.2d 781, 789 (2009); Mlade v. Finley, 112 Ill. App. 3d 914, 918, 445 N.E.2d<br />
1240, 1243-44 (1 st Dist. 1983). Conclusions of fact will not suffice to state a cause of action<br />
regardless of whether they generally inform the defendant of the nature of the claim. Grund v.<br />
Donegan, 298 Ill. App. 3d 1034, 1039, 700 N.E.2d 157, 161 (1st Dist. 1998).<br />
4. Limited Scope of Section 2-<strong>615</strong> Motion<br />
A Section 2-<strong>615</strong> motion to dismiss challenges the legal sufficiency of the complaint.<br />
Napleton v. Village of Hinsdale, 229 Ill.2d 296, 305, 891 N.E.2d 839, 845 (2008); Zahl v. Krupa,<br />
365 Ill. App. 3d 653, 657, 850 N.E.2d 304, 309 (2d Dist. 2006). The question presented is whether<br />
the allegations of the complaint, when viewed in a light most favorable to the plaintiff, are<br />
sufficient to state a cause of action upon which relief can be granted. Borowiec v. Gateway 2000,<br />
Inc., 209 Ill. 2d 376, 382, 808 N.E.2d 957, 961 (2004).<br />
Motions under Section 2-<strong>615</strong> may not be supported by reference to any facts or exhibits<br />
that are not alleged in or attached to the complaint under attack. Scott Wetzel Servs. v. Regard, 271<br />
Ill. App. 3d 478, 480-81, 648 N.E.2d 1020, 1022-1023 (1 Dist. 1995).<br />
5. Questions of Fact Cannot Be Decided<br />
A motion to dismiss pursuant to Section 2-<strong>615</strong> does not raise affirmative factual defenses.<br />
Borowiec v. Gateway 2000, Inc., 209 Ill. 2d 376, 382, 808 N.E.2d 957, 961 (2004). It is based on<br />
the pleadings rather than the underlying facts. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469,<br />
639 N.E.2d 1282 (1994); Barber-Coleman Co. v. A&K Midwest Insulation Co., 236 Ill. App. 3d<br />
1065, 603 N.E.2d 1215 (5 th Dist. 1992). Cases are not to be tried at the pleadings stage, so a<br />
claimant need only show a possibility of recovery, not an absolute right to recovery, to survive a<br />
section 2-<strong>615</strong> motion. Platson v. NSM America, Inc., 322 Ill.App.3d 138, 143, 748 N.E.2d 1278,<br />
1284 (2 d Dist. 2001).<br />
6. Failure To Adhere To Fact Pleading Requirements<br />
To pass muster a complaint must state a cause of action in two ways. First, it must be<br />
legally sufficient; it must set forth a legally recognized claim as its avenue of recovery. When it<br />
fails to do this, there is no recourse at law for the injury alleged, and the complaint must be<br />
dismissed. * * * Second and unlike federal practice, the complaint must be factually sufficient; it<br />
must plead facts which bring the claim within the legally recognized cause of action alleged. If it<br />
does not, the complaint must be dismissed. Mlade v. Finley, 112 Ill. App. 3d 914, 918, 445 N.E.2d<br />
1240, 1243-44 (1 st Dist. 1983) (citing People ex rel. Fahner v. Carriage Way West, Inc., 88 Ill. 2d<br />
300, 308, 430 N.E.2d 1005 (1981)).<br />
3
7. Pleading of Affirmative Defenses<br />
Illinois law requires that the facts establishing an affirmative defense must be pleaded with<br />
the same degree of specificity required of a plaintiff to sufficiently state a cause of action.<br />
International Ins. Co. v. Sargent & Lundy, 242 Ill. App. 3d 614, 630, 609 N.E.2d 842, 853 (1st<br />
Dist. 1993)<br />
8. Effect Of Dismissal Pursuant To Section 2-<strong>615</strong><br />
In granting a 2-<strong>615</strong> motion to dismiss, a trial judge may grant plaintiff a certain number of<br />
days, typically twenty-eight, to file an amended complaint. If, however, the judge determines that<br />
that plaintiff cannot plead a cause of action under the apparent facts and circumstances of the case,<br />
the judge may dismiss the pleading with prejudice. People ex rel. Daley v. Datacom Systems<br />
Corp., 146 Ill. 2d 1, 5, 585 N.E.2d 51, 55 (1991).<br />
A dismissal of a pleading pursuant to a 2-<strong>615</strong> motion that fails to allow plaintiff to file an<br />
amended pleading, or which fails to specify that the dismissal is without prejudice, is considered a<br />
dismissal with prejudice. Dunavan v. Calandrino, 167 Ill. App. 3d 952, 957, 522 N.E.2d 347, 349<br />
(5 Dist.), appeal denied, 122 Ill. 2d 573, 530 N.E.2d 243 (1988).<br />
9. Granting Or Denial Of Leave To Amend Complaint<br />
The right to file an amended complaint under Section 2-616 of the Code of Civil Procedure<br />
is very broad, and is to be permitted at “any time before final judgment” upon “just and reasonable<br />
terms.” <strong>735</strong> <strong>ILCS</strong> 5/2-616. The Illinois Supreme Court has interpreted that language as “requiring<br />
the trial court to permit amendment if it will further the ends of justice.” In re Estate of Hoover,<br />
155 Ill. 2d 402, 416, <strong>615</strong> N.E.2d 736, 742 (1993).<br />
Plaintiffs generally are granted at least one opportunity to amend their pleadings. Sinclair<br />
v. State Bank, 226 Ill. App. 3d 909, 910, 589 N.E.2d 862, 863 (4 Dist.), appeal denied, 145 Ill. 2d<br />
644, 596 N.E.2d 637 (1992). Plaintiff may be given several opportunities. The key factor is not<br />
the number of times plaintiff is allowed to refile, but whether it appears plaintiff may be able to<br />
cure a defect with a refiled complaint. Where plaintiff’s third amended complaint cured a prior<br />
defective pleading by stating a cause of action and, the amendment was timely and would not have<br />
surprised or prejudiced defendant, the trial court was found to have erred when it denied plaintiff<br />
leave to file his third amended complaint. Palmer v. Chicago Park Dist., 277 Ill. App. 3d 282,<br />
289, 660 N.E.2d 146, 150 (1 Dist. 1995), appeal denied, 166 Ill. 2d 543, 664 N.E.2d 643 (1996).<br />
In Loyola Academy v. S&S Roof Maintenance, Inc., 146 Ill. 2d 263, 273-74, 586 N.E.2d<br />
1211, 1216 (1992), the court adopted four factors to be used in determining whether the trial<br />
court’s denial of a party’s motion to amend constituted an abuse of discretion: (1) whether the<br />
proposed amendment would cure the defective pleading; (2) whether other parties would sustain<br />
prejudice or surprise by virtue of the proposed amendment; (3) whether the proposed amendment<br />
is timely; and (4) whether there were prior opportunities to amend. Where the proposed<br />
amendment meets all four factors, it is an abuse of discretion for the trial court to deny the<br />
amendment. Loyola Academy, 146 Ill. 2d at 276, 586 N.E.2d at 1217.<br />
4
10. 2-<strong>615</strong> Motions Other Than Motions To Dismiss<br />
Beyond challenging whether the Complaint fails to state a claim, Section 2-<strong>615</strong> provides<br />
the authority for filing any motion directed to the pleadings. This includes motions for a more<br />
definite statement, motions to strike immaterial matter, motions to dismiss misjoined parties, or<br />
motions for judgment on the pleadings. See 725 <strong>ILCS</strong> 5/2-<strong>615</strong>(a), (e).<br />
======================================================<br />
PRACTICE TIP: The Impropriety of Motions to Strike Motions<br />
Section 2-<strong>615</strong> authorizes the filing of motions “with respect to pleadings.”<br />
As a motion is not a pleading, motions to strike motions are generally held to<br />
be improper. See generally Motions Attacking Motions, A Plea To End The<br />
Violence, 53 ISBA Trial Briefs, No. 8 (March 2008); In re Marriage of<br />
Sutherland, 251 Ill. App. 3d 411 (2d Dist. 1993) (ruling that the trial court<br />
had improperly granted a motion to strike a motion for reconsideration,<br />
noting that motions to strike under 2-<strong>615</strong> relate to striking of pleadings, not<br />
motions). See also Iacovetti v. Kindercare Learning Centers, 2011 Ill. App.<br />
Fist. Dist. 091541-U (October 2011) (unreported decision) (affirming trial<br />
court’s ruling that a motion to strike a motion for summary judgment was<br />
procedurally improper).<br />
=======================================================<br />
COMBINED 2-<strong>615</strong> <strong>AND</strong> 2-<strong>619</strong> <strong>MOTIONS</strong><br />
1. The Statute<br />
The Illinois Civil Practice Act allows the filing of a combined 2-<strong>615</strong> and 2-<strong>619</strong> motion,<br />
under Section 2-<strong>619</strong>. 1, which provides:<br />
Combined motions. Motions with respect to pleadings under Section<br />
2-<strong>615</strong> [<strong>735</strong> <strong>ILCS</strong> 5/2-<strong>615</strong>], motions for involuntary dismissal or other<br />
relief under Section 2-<strong>619</strong> [<strong>735</strong> <strong>ILCS</strong> 5/2-<strong>619</strong>], and motions for<br />
summary judgment under Section 2-1005 [<strong>735</strong> <strong>ILCS</strong> 5/2-1005] may<br />
be filed together as a single motion in any combination. A combined<br />
motion, however, shall be in parts. Each part shall be limited to and<br />
shall specify that it is made under one of Sections 2-<strong>615</strong> [<strong>735</strong> <strong>ILCS</strong><br />
5/2-<strong>615</strong>], 2-<strong>619</strong> [<strong>735</strong> <strong>ILCS</strong> 5/2-<strong>619</strong>], or 2-1005 [<strong>735</strong> <strong>ILCS</strong> 5/2-1005].<br />
Each part shall also clearly show the points or grounds relied upon<br />
under the Section upon which it is based.<br />
Section 2-<strong>619</strong>.1 “allows a litigant to combine a Section 2-<strong>615</strong> motion to dismiss and a<br />
Section 2-<strong>619</strong> motion to dismiss in one pleading.” Northern Trust Co. v. County of Lake, 353 Ill.<br />
App. 3d 268, 278, 818 N.E.2d 389, 398 (2d Dist. 2004).<br />
5
While “considerations of judicial and client economy” might favor the joining of all<br />
grounds for dismissal in a single motion under Section 2-<strong>619</strong>.1, this section does not require a<br />
party to file all of its challenges within a combined motion. Therefore, a defendant who first files<br />
a challenge to the plaintiff’s pleading under Section 2-<strong>615</strong> is not barred from subsequently moving<br />
for dismissal under Section 2-<strong>619</strong>. Lamar Whiteco Outdoor Corp. v. Cit of West Chicago, 355 Ill.<br />
App. 3d 352, 366, 823 N.E.2d 610, 622 (2d Dist. 2005); River Park, Inc. v. City of Highland Park,<br />
295 Ill. App. 3d 90, 93, 692 N E 2d 369, 372 (2d Dist. 1998), aff’d in part and rev’d in part on<br />
other grounds, 184 Ill. 2d 290, 703 N E 2d 883 1998.<br />
2. Designation Of Challenges Under 2-<strong>615</strong> Versus 2-<strong>619</strong><br />
Although Section 2-<strong>619</strong>.1 allows a party to file a joint motion for dismissal under Sections<br />
2-<strong>615</strong> and 2-<strong>619</strong>, it does not authorize “hybrid motion practice.” Northern Trust Co. v. County of<br />
Lake, 353 Ill. App. 3d 268, 278, 818 N.E.2d 389, 398 (2d Dist. 2004). A hybrid motion is one in<br />
which the movant fails to designate whether the motion is filed under Section 2-<strong>615</strong> or Section 2-<br />
<strong>619</strong> or otherwise fails to identify the grounds for dismissal under the separate sections of the Code.<br />
Jenkins v. Concorde Acceptance Corp., 345 Ill. App. 3d 669, 802 N.E.2d 1270 (1 st Dist. 2003).<br />
3. Wrong Label Not Fatal<br />
The failure to specifically designate whether a motion to dismiss is brought under Section<br />
2-<strong>615</strong> or 2-<strong>619</strong> is inappropriate, but not always fatal. Premier Elec. Construction Co. v. LaSalle<br />
Nat’l Bank, 115 Ill. App. 3d 638, 642, 450 N.E.2d 1360, 1363 (2d Dist. 1983). Improper labeling<br />
of a motion to dismiss under Section 2-<strong>619</strong> warrants reversal only if the non-moving party is<br />
prejudiced by the error. Northern Trust Co. v. County of Lake, 253 Ill. App. 3d 268, 278, 818<br />
N.E.2d 389, 398 (2d Dist. 2004); Universal Underwriters Group v. Pierson, 337 Ill. App. 3d 893,<br />
897-898, 787 N.E.2d 296, 299-300 (1 st Dist. 2003); Storm & Assoc. v. Cuculich, 298 Ill. App. 3d<br />
1040, 1046, 700 N.E.2d 202, 206 (1 st Dist. 1998).<br />
The substance of a motion, rather than its label, will determine the code section under<br />
which the motion should be analyzed. Loman v. Freeman, 375 Ill. App. 3d 445, 448, 874 N.E.2d<br />
542, 545 (4th Dist. 2006). Thus, where a party files a motion that purports to be filed under 2-<strong>619</strong>,<br />
but actually attacks the legal sufficiency of the complaint, the mislabeling of the motion is not fatal<br />
and the court may resolve the substance of the motion under Section 2-<strong>615</strong>. Id.; Winters v.<br />
Wangler, 386 Ill. App. 3d 788, 898 N.E.2d 776 (4th Dist. 2008); Worley v. Barger, 247 Ill. App.<br />
3d 492, 807 N.E.2d 1222 (5th Dist. 2004).<br />
SECTION 2-<strong>619</strong> <strong>MOTIONS</strong> <strong>TO</strong> <strong>DISMISS</strong><br />
1. The Statute<br />
5/2-<strong>619</strong> provides: Involuntary dismissal based upon certain defects or defenses.<br />
(a)<br />
Defendant may, within the time for pleading, file a motion for dismissal of the<br />
action or for other appropriate relief upon any of the following grounds. If the<br />
grounds do not appear on the face of the pleading attacked the motion shall be<br />
supported by affidavit:<br />
6
(1) That the court does not have jurisdiction of the subject matter of the action,<br />
provided the defect cannot be removed by a transfer of the case to a court<br />
having jurisdiction.<br />
(2) That the plaintiff does not have legal capacity to sue or that the defendant<br />
does not have legal, capacity to be sued.<br />
(3) That there is another action pending between the same parties for the same<br />
cause.<br />
(4) That the cause of action is barred by a prior judgment.<br />
(5) That the action was not commenced within the time limited by law.<br />
(6) That the claim set forth in the plaintiff’s pleading has been released, satisfied<br />
of record, or discharged in bankruptcy.<br />
(7) That the claim asserted is unenforceable under the provisions of the Statute<br />
of Frauds.<br />
(8) That the claim asserted against defendant is unenforceable because of his or<br />
her minority or other disability.<br />
(9) That the claim asserted against defendant is barred by other affirmative<br />
matter avoiding the legal effect of or defeating the claim.<br />
(b)<br />
(c)<br />
(d)<br />
(e)<br />
(f)<br />
A similar motion may be made by any other party against whom a claim is asserted.<br />
If, upon the hearing of the motion, the opposite party presents affidavits or other<br />
proof denying the facts alleged or establishing facts obviating the grounds of defect,<br />
the court may hear and determine the same and may grant or deny the motion. If a<br />
material and genuine disputed question of fact is raised the court may decide the<br />
motion upon the affidavits and evidence offered by the parties, or may deny the<br />
motion without prejudice to the right to raise the subject matter of the motion by<br />
answer and shall so deny it if the action is one in which a party is entitled to a trial<br />
by jury and a jury demand has been filed by the opposite party in apt time.<br />
The raising of any of the foregoing matters by motion under this Section does not<br />
preclude the raising of them subsequently by answer unless the court has disposed of<br />
the motion on its merits; and a failure to raise any of them by motion does not<br />
preclude raising them by answer.<br />
Pleading over after denial by the court of a motion under this Section is not a waiver<br />
of any error in the decision denying the motion.<br />
The form and contents of and procedure relating to affidavits under this Section<br />
shall be as provided by rule.<br />
7
2. Distinguished From Section 2-<strong>615</strong> Motions To Dismiss<br />
A 2-<strong>619</strong> motion can be distinguished from a 2-<strong>615</strong> motion in that a motion to dismiss under<br />
<strong>735</strong> <strong>ILCS</strong> 5/2-<strong>615</strong> attacks only the legal sufficiency of the complaint and does not raise affirmative<br />
factual defenses, as does a motion under 2-<strong>619</strong>. Urbaitis v. Commonwealth Edison, 143 Ill. 2d<br />
458, 575 N E 2d 548 (1991).<br />
=======================================================<br />
PRACTICE TIP: “So What” Motions vs. “Yes, But” Motions<br />
In Winters v. Wangler, 386 Ill. App. 3d 788, 898 N.E.2d 776 (4th Dist. 2008)<br />
and Barbar-Colman Co. v. A&K Midwest Insulation Co., 236 Ill. App.3d<br />
1065, 603 N.E.2d 1215 (4th Dist. 1992), the courts outline the differences<br />
between dispositive motions under Sections 2-<strong>615</strong>, 2-<strong>619</strong> and 2-1005. The<br />
Winters court explains that 2-<strong>619</strong> motions are sometimes called “Yes, But”<br />
motions because the defendant is saying “Yes, the complaint was legally<br />
sufficient, but an affirmative matter exists that defeats the claim.” By<br />
contrast, the court explains that 2-<strong>615</strong> motions are sometimes called “So<br />
What” motions because the defendant is saying “So what The facts the<br />
plaintiff has pleaded do not state a cause of action against me.”<br />
=======================================================<br />
3. Distinguished From Section 2-1005 Summary Judgment Motions<br />
Although similar to a summary judgment motion, a section 2-<strong>619</strong> motion differs in that the<br />
court may, in its discretion, decide questions of fact “upon the hearing of the motion.” Consumer<br />
Electric Co. v. Cobelcomex, Inc., 149 Ill. App. 3d 699, 703, 501 N.E.2d 156, 159 (1 st Dist. 1986).<br />
See also Barbar-Colman Co. v. A&K Midwest Insulation Co., 236 Ill. App.3d 1065, 603 N.E.2d<br />
1215 (4th Dist. 1992) (listing five key differences between 2-<strong>619</strong> and 2-1005 motions).<br />
4. Affidavits And Other Evidence In Support Of 2-<strong>619</strong> Motion<br />
Affidavits filed in support of Section 2-<strong>619</strong> motions are controlled by Illinois Supreme<br />
Court Rule 191. Elliot v. LRSL Enterprises, Inc., 226 Ill. App. 3d 724, 589 N.E.2d 1074 (2d Dist.<br />
1992). Rule 191(a) should be construed according to the plain and ordinary meaning of its<br />
language. Its requirements should be adhered to as written, Ribidoux v. Oliphant, 201 Ill. 2d 324,<br />
337, 775 N. E. 2d 987 (2002), citing Bright v. Dicke, 166 Ill. 2d 204, 210. 652 N. E. 2d 275<br />
(1995). An affidavit will be stricken if it does not have attached sworn or certified copies of all<br />
papers upon which the affiant relied, Robidoux, 201 Ill. 2d at 343, 775 N. E. 2d 987.<br />
Although the statute speaks only of supporting a 2-<strong>619</strong> motion with affidavits, other<br />
evidence may also be submitted in support of the motion. Fremont Comp. Ins. Co. v. Ace Chicago<br />
Great Dane Corp., 304 Ill. App. 3d 734, 710 N.E.2d 132 (1 st Dist. 1999). Urban v. Loham, 227 Ill.<br />
App. 3d 772, 592 N.E.2d 292 (1 st Dist. 1992).<br />
8
If the “affirmative matter” on which the Section 2-<strong>619</strong> motion is based is not apparent on<br />
the face of the complaint, the motion must be supported by affidavit or other evidence. Kedzie and<br />
103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116, <strong>619</strong> N.E.2d 732 (1993).<br />
If evidentiary facts asserted in an affidavit filed in support of a motion to dismiss are not<br />
refused by counteraffidavit, the court will take those facts as true, notwithstanding contrary<br />
unsupported allegations in the plaintiff’s pleading. Marriage of Kohl, 334 Ill. App. 3d 867, 877,<br />
778 N.E.2d 1169, 1178 (1 st Dist. 2002); Pryweller v. Cohen, 282 Ill. App. 3d 899, 907, 668 N.E.2d<br />
1144, 1149 (1 st Dist. 1996).<br />
By presenting adequate affidavits supporting the asserted defense, the defendant satisfies<br />
the initial burden of going forward on the motion. The burden then shifts to the plaintiff. A<br />
counteraffidavit is necessary to refute evidentiary facts properly asserted by the defendant’s<br />
affidavit supporting the motion, or else the fact are deemed admitted. If, after considering the<br />
pleadings and affidavits, the trial judge finds that the plaintiff has failed to carry the shifted burden<br />
of going forward, the motion may be granted and the cause of action dismissed. Kedzie and 103rd<br />
Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116, <strong>619</strong> N.E.2d 732, <strong>735</strong> (1993). Accord Van<br />
Meter v. Darien Park District, 207 Ill. 2d 359, 377 799 N.E.2d 273, 284 (2003).<br />
5. 2-<strong>619</strong> Motion Resolves Issues Of Law Or Easily Proved Facts<br />
A motion under this section affords a means of disposing of issues of law or of easily<br />
proved facts at the outset of a case. Torcasso v. Standard Outdoor Sales, Inc., 157 Ill. 2d 484, 486,<br />
626 N.E.2d 225, 226 (1992); Turner v. 1212 S. Michigan Partnership, 355 Ill. App. 3d 885, 823<br />
N.E.2d 1062 (1 st Dist. 2005). If the defects are not apparent on the face of the pleadings, affidavits<br />
may be employed to bring affirmative matters to light which would bar the litigation. Cramsey v.<br />
Knoblock, 191 Ill. App. 3d 756, 764, 547 N.E.2d 1358, 1364 (4 Dist. 1989).<br />
This section affords a defendant an expeditious means to obtain a summary disposition of<br />
an action based upon an affirmative bar to the plaintiffs right to recovery. Mayfield v. Acme Barrel<br />
Co., 258 Ill. App 3d 32, 629 N.E.2d 690, 693 (1 Dist. 1994).<br />
6. Deciding Issues Of Fact / Evidentiary Hearings Under 2-<strong>619</strong><br />
In resolving a Section 2-<strong>619</strong> motion, “[a] court will take as true those facts in defendant’s<br />
affidavit supporting his motion to dismiss if the plaintiff fails to refute those facts in a<br />
counteraffidavit, notwithstanding contrary unsupported allegations in the plaintiff’s pleadings.”<br />
Pryweller v. Cohen, 282 Ill. App. 3d 899, 907, 668 N.E.2d 1144, 1149 (1 st Dist. 1996).<br />
If the affidavits presented on a Section 2-<strong>619</strong> motion present disputed facts, and there is no<br />
jury issue or demand, the court may resolve disputed issues of fact through an evidentiary hearing.<br />
Consumer Electric Co. v. Cobelcomex, Inc., 149 Ill. App. 3d 699, 703-04, 501 N.E.2d 156, 159 (1 st<br />
Dist. 1986). See also Hernandez v. New Rogers Pontiac, Inc., 332 Ill. App. 3d 461, 773 N.E.2d 77<br />
(1st Dist. 2002) (resolving 2-<strong>619</strong> motion based on res judicata following an evidentiary hearing);<br />
Kirby v. Jarrett, 190 Ill. App. 3d 8, 13, 545 N.E.2d 965 (1989) (where the trial court conducts an<br />
evidentiary hearing on a Section 2-<strong>619</strong> motion to dismiss, the appellate court will not reverse the<br />
court’s factual findings unless they are against the manifest weight of the evidence.)<br />
9
The circuit court may decide easily proved issues of fact “upon the hearing of the motion”<br />
to dismiss pursuant to Section 2-<strong>619</strong>, but in deciding the merits of the motion, the court cannot<br />
determine disputed factual issues presented solely upon affidavits and counter affidavits. Curtis<br />
Casket Co. v. D.A. Brown & Co., 259 Ill. App. 3d 800, 632 N.E.2d 204 (1 st Dist. 1994); Thompson<br />
v. Heydemann, 231 Ill. App. 3d 578, 596 N.E.2d 664 (1 st Dist. 1992).<br />
7. Scope Of Section 2-<strong>619</strong> Motion<br />
A motion to dismiss pursuant to Section 2-<strong>619</strong> asserts an affirmative defense or other<br />
matter that avoids or defeats the plaintiff’s claim. DeLuna v. Burciaga, 223 Ill.2d 49, 59, 857<br />
N.E.2d 229, 236 (2006); Borowiec v. Gateway 2000, Inc., 209 Ill. 2d 376, 413, 808 N.E.2d 957<br />
(2004).<br />
The term “affirmative matter” encompasses any defense other than a negation of the<br />
essential allegations of the plaintiff’s cause of action. Kedzie and 103rd Currency Exchange, Inc.<br />
v. Hodge, 156 Ill. 2d 112, 115, <strong>619</strong> N.E.2d 732, <strong>735</strong> (1993).<br />
“For a motion to be properly brought under section 2-<strong>619</strong>, the motion (1) must be filed<br />
‘within the time for pleading’; and (2) must concern one of nine listed grounds” set forth in §2-<br />
<strong>619</strong>(a)(1) through (a)(9). River Plaza Homeowners’ Assn’ v. Healey, 389 Ill. App. 3d 268, 275,<br />
904 N.E.2d 1102 (2009).<br />
A motion to dismiss pursuant to Section 2-<strong>619</strong> should invoke one of the nine grounds<br />
which bar relief as identified in <strong>735</strong> <strong>ILCS</strong> 5/2-<strong>619</strong>(a), and where a defendant’s motion and<br />
supporting affidavit do not raise any of those nine grounds but instead seek only to deny the factual<br />
allegations of plaintiff’s complaint, such a motion is not properly made under Section 2-<strong>619</strong>. Hill<br />
v. Butler, 107 Ill. App. 3d 721, 728, 437 N.E.2d 1307, 1313 (4 th Dist. 1982).<br />
8. Standard Of Appellate Review On A Section 2-<strong>619</strong> Motion<br />
An appeal from an order of dismissal under Section 2-<strong>619</strong> is subject to the same standards<br />
as an appeal of an order granting summary judgment. Pryweller v. Cohen, 282 Ill. App. 3d 899,<br />
907, 668 N.E.2d 1144, 1149 (1 st Dist. 1996).<br />
9. Particular Grounds For Granting Of 2-<strong>619</strong> Motions<br />
(1) Subject Matter Jurisdiction<br />
5/2-<strong>619</strong>(a)(1) provides that a claim may be dismissed because “...the court does not have<br />
jurisdiction of the subject matter of the action, provided the defect cannot be removed by a transfer<br />
of the case to a court having jurisdiction.”<br />
If the defendant is aware of facts which demonstrate that the circuit court is without subject<br />
matter jurisdiction, defendant should file a motion to dismiss pursuant to Section 2-<strong>619</strong>(a)(1),<br />
supported by affidavit, in order to bring these facts to the court’s attention. McGee v. Ractian<br />
Constr. Co., 231 Ill. App. 3d 929, 934, 596 N.E.2d 1261, 1265 (4 th Dist. 1992).<br />
10
(2) Legal Capacity<br />
5-2-<strong>619</strong>(a)(2) provides that the action may be dismissed because the plaintiff does not have<br />
legal capacity to sue or that the defendant does not have legal capacity to be sued.<br />
To possess capacity, a natural person must be living at the time of the commencement of<br />
the action; a dead person cannot sue or be sued. Bavel v. Cavaness, 12 Ill. App. 3d 633, 637, 299<br />
N.E.2d 435, 437-38 (5 th Dist. 1973); Accord Bogseth v. Emanuel, 261 Ill. App. 3d 685, 689, 633<br />
N.E.2d 904, 907 (1 st Dist. 1994).<br />
Individual shareholders of a corporation do not have standing to prosecute claims which are<br />
the property of the corporation in which they invested. Northern Trust Co. v. VIII. South Michigan<br />
Assoc., 276 Ill. App. 3d 355, 363, 657 N.E.2d 1095, 1101 (1st Dist. 1995). Where the only injury<br />
complained of consists of an alleged diminution in the value of the plaintiff’s shares, the plaintiff<br />
cannot sue directly for such losses, but rather, must proceed by means of a derivative suit. Id.<br />
Accord Small v. Sussman, 306 Ill. App. 3d 639, 644, 713 N.E.2d 1216, 1216 (1 st Dist. 1999)<br />
(3) Another Pending Action<br />
5/2-<strong>619</strong>(a)(3) provides that a pleading may be dismissed because there is another action<br />
pending between the same parties for the same cause. Arthur Young & Co. v. Bremer, 197 Ill.<br />
App. 3d 30, 46, 554 N.E.2d 671, 682 (1 Dist. 1990). Dismissal of a Complaint pursuant to 2-<br />
<strong>619</strong>(a)(3) is authorized only when another proceeding was pending before a body which would<br />
adjudicate the merits of a claim and render a final, binding and enforceable decision. Ransom v.<br />
Marrese, 122 Ill. 2d 518, 529, 524 N.E.2d 555, 560 (1988).<br />
An order dismissing an action on the basis of Section 2-<strong>619</strong>(a)(3) should contain language<br />
stating that the dismissal is not on the merits.<br />
(i)<br />
Timing Of Filing Not Dispositive<br />
Illinois courts have refused to adopt a “first to file” rule with respect to Section 2-<strong>619</strong>(a)(3)<br />
motions to dismiss. See Continental Grain Co. v. FMC Corp., 27 Ill. App. 3d 819, 824, 327<br />
N.E.2d 371, 375 (1 st Dist. 1975). While the order of filing is usually not determinative, courts will<br />
look to the progress of the competing action. Continental Grain, 27 Ill. App. 3d at 824, 327 N.E.2d<br />
at 375.<br />
(ii)<br />
The “Same Cause” Requirement<br />
The “same cause” requirement of subdivision (a)(3) mandates only substantial similarity,<br />
not identical causes of action. The court should consider whether the actions arose out of the same<br />
transaction or occurrence and not whether the legal theory, issues, burden of proof, or the remedy<br />
materially differ between them. Phillips Electronics v. New Hampshire Ins. Co., 295 Ill. App. 3d<br />
895, 692 N.E.2d 1268 (1 st Dist. 1998).<br />
11
(iii.)<br />
The “Same Parties” Requirement<br />
The “same parties” requirement of subdivision (a)(3) does not require that the parties be<br />
identical in both actions; a substantial similarity is sufficient. Phillips Electronics v. New<br />
Hampshire Ins. Co., 295 Ill. App. 3d 895, 904-05, 692 N.E.2d 1268, 1276 (1 st Dist. 1998).<br />
(iv)<br />
Balancing of Factors<br />
In considering a 2-<strong>619</strong>(a)(3) motion, courts will also consider whether the policy of<br />
avoiding duplicative litigation outweighs any prejudice to the non-movant, whether the action has<br />
a legitimate and substantial relation to Illinois, whether the Illinois filing represents forum<br />
shopping, and whether Illinois law applies to the action. A.E. Staley Mfg. Co. v. Swift & Co., 84<br />
Ill. 2d 245, 253, 419 N.E.2d 23, 27 (1980); Kapoor v. Fujisawa Pharm. Co., 298 Ill. App. 3d 780,<br />
785-86, 699 N.E.2d 1095, 1099-1110 (1 st Dist. 1998); Doutt v. Ford Motor Co., 276 Ill. App. 3d<br />
785, 790, 659 N.E.2d 89, 93 (1 st Dist. 1995); Philips Electronics v. New Hampshire Ins. Co., 295<br />
Ill. App. 3d 895, 908, 692 N.E.2d 1268, 1277-78 (1 st Dist. 1998).<br />
(v)<br />
Option To Stay Proceedings<br />
The following facts should be considered in determining whether a stay is warranted under<br />
subsection (a)(3): comity, the prevention of multiplicity, vexation, and harassment, the likelihood<br />
of obtaining complete relief in the foreign jurisdiction, and the res judicata effect of a foreign<br />
judgment in the local forum. A.E. Staley Mfg. Co. v. Swift & Co., 84 Ill. 2d 245, 254, 419 N.E.2d<br />
23, 27-28 (1980); Phillips Electronics v. New Hampshire Ins. Co., 295 Ill. App. 3d 895, 908, 692<br />
N.E.2d 1268, 1277 (1 st Dist. 1998).<br />
(vi)<br />
Forum Non Conveniens- Distinguished<br />
Litigants may cite A.E. Staley Mfg. Co. v. Swift & Co., 84 Ill. 2d 245, 253, 419 N.E.2d 23,<br />
27, 50 Ill. Dec. 156, 160 (1980) in arguing that a Section 2-<strong>619</strong>(a)(3) motion for dismissal must be<br />
denied if the court has rejected forum non conveniens as a basis for dismissal. The Illinois First<br />
District has rejected this interpretation of Staley and held that a Section 2-<strong>619</strong>(a)(3) motion may<br />
be granted even where a motion for dismissal based on forum non conveniens is denied. Natural<br />
Gas Pipeline Co. v. Phillips Petroleum Co., 163 Ill. App. 3d 136, 144-47, 516 N.E.2d 527, 532-34,<br />
114 Ill. Dec. 372, 377 (1st Dist. 1987) (“[w]e do not read [Staley] to mean that whenever a trial<br />
court denies a forum non conveniens motion a plaintiff has, ipso facto, shown a 'legitimate and<br />
substantial' relation between the litigation and the Illinois forum requiring a denial of a Section 2-<br />
<strong>619</strong>(a)(3) dismissal unless the defendant presents additional grounds justifying that relief.")<br />
(4) Res Judicata<br />
5/2-<strong>619</strong>(a)(4) provides that an action may be dismissed because the cause of action is<br />
barred by a prior judgment.<br />
An action may be dismissed with prejudice under the doctrine of res judicata where the<br />
claim is barred by a prior judgment. Papers Unlimited v. Park, 253 Ill. App. 3d 150, 153, 625<br />
N.E.2d 373, 375 (1 st Dist. 1993).<br />
12
The doctrine of res judicata is based on the public policy which favors judicial economy<br />
and the finality of litigation. Papers Unlimited v. Park, 253 Ill. App. 3d 150, 153, 625 N.E.2d 373,<br />
376 (1 st Dist. 1993). For the doctrine of res judicata to apply, three requirements must be met: (1)<br />
there was a final judgment on the merits by a court of competent jurisdiction; (2) there was an<br />
identity of causes of action; and (3) there was an identity of parties or their privies.” Currie v.<br />
Wisconsin Central, Ltd., 2011 WL 4579598 (1st Dist. Sept. 20, 2011).<br />
The doctrine requires an identity of parties or their privies, identity of the cause of action<br />
and subject matter, and a final judgment on the merits in an earlier suit. Papers Unlimited v. Park,<br />
253 Ill. App. 3d 150, 625 N.E.2d 373 (1 st Dist. 1993).<br />
To apply the doctrine of res judicata, a court must determine whether the two lawsuits<br />
involve the same cause of action; the test that Illinois courts generally use to determine this is<br />
whether the evidence needed to sustain the second action would have sustained the first action.<br />
Torcasso v. Standard Outdoor Sales, Inc., 157 Ill. 2d 484, 491, 626 N.E.2d 225, 228 (1992).<br />
(5) Statute Of Limitations<br />
5/2-<strong>619</strong>(a)(5) provides that a claim may be dismissed because “…the action was not<br />
commenced within the time limited by law.”<br />
A defendant may be permitted to raise a statute of limitations defense in a motion to<br />
dismiss pursuant to Section 2-<strong>619</strong>(a)(5) even though the defendants did not raise the defense in<br />
their responsive pleading or seek leave to amend to their pleading. Dever v. Simmons, 292 Ill.<br />
App. 3d 70, 684 N.E.2d 997 (1 st Dist. 1997).<br />
Compare Laches: The defense of laches may be resolved on a motion to dismiss if its<br />
applicability appears from the face of the complaint or by affidavit submitted with the motion.<br />
Jameson Realty Group v. Kostiner, 351 Ill. App. 3d 416, 432, 813 N.E.2d 1124, 1137 (1 st Dist.<br />
2004). Where laches is not apparent from the face of the Complaint, a motion to dismiss based on<br />
laches should be brought under Section 2-<strong>619</strong>(a)(9) and supported with an affidavit. Summers v.<br />
Village of Durand, 267 Ill. App. 3d 767, 770, 643 N.E.2d 272, 275-76 (2d Dist. 1994).<br />
(6) Release, Satisfaction Or Discharge<br />
5/2-<strong>619</strong>(a)(6) provides that a claim may be dismissed because “…the claim set forth in the<br />
plaintiff’s pleading has been released, satisfied of record, or discharged in bankruptcy.”<br />
Where a defendant moving for dismissal pursuant to Section 2-<strong>619</strong>(a)(6) shows a facially<br />
valid release, the burden of proof shifts to the plaintiff to prove that a material issue of fact exists<br />
which would invalidate the agreement. Dickman v. E.I. Du Pont De Nemours & Co., 278 Ill. App.<br />
3d 776, 663 N.E.2d 507 (3d Dist. 1996); Roberts v. Dow Chemical Co., 244 Ill. App. 3d 253, 614<br />
N.E.2d 252 (1 st Dist. 1992).<br />
(7) Statute Of Frauds<br />
5/2-<strong>619</strong>(a)(7) provides that a claim may be dismissed because “…the claim asserted is<br />
unenforceable under the provisions of the Statute of Frauds.”<br />
13
(8) Unenforceable Claim Due To Minority Or Other Disability<br />
5/2-<strong>619</strong>(a)(8) provides that a claim may be dismissed because “… the claim asserted<br />
against defendant is unenforceable because of his or her minority or other disability.”<br />
This provision is applicable to circumstances where a contract claim is barred based on the<br />
defendant’s lack of capacity to contract due to his or her age or mental incompetence. It has<br />
seldom been used since the 1955 amendments which revised the second ground for dismissal (i.e.<br />
Section 2-<strong>619</strong>(a)(2) to include lack of capacity of the defendant as well as the plaintiff.<br />
(9) Barred By Other Affirmative Matter Defeating The Claim<br />
5/2-<strong>619</strong>(a)(1) provides that a claim may be dismissed because “…the claim asserted against<br />
defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.”<br />
The term “affirmative matter” is broader than “affirmative defense.” Hermes v. William F.<br />
Meyer Co., 65 Ill. App. 3d 745, 382 N.E.2d 841 (2d Dist. 1978). It encompasses any defense other<br />
than a negation of the essential allegations of the plaintiff’s cause of action. Kedzie and 103rd<br />
Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 115, <strong>619</strong> N.E.2d 732, <strong>735</strong> (1993). Accord In<br />
Re Marriage of Vaughn, 403 Ill. App. 3d 830, 935 N.E.2d 123 (1st Dist. 2010).<br />
“Affirmative matter” has been held to include a type of defense that either defeats an<br />
alleged cause of action completely or refutes crucial conclusions of law or conclusions of material<br />
fact contained in or inferred from the complaint. Zahl v. Krupa, 365 Ill. App. 3d 653, 659, 850<br />
N.E.2d 304, 310 (2d Dist. 2006); Consumer Electronics Co. v. Cobelcomex, Inc., 149 Ill. App. 3d<br />
699, 703, 501 N.E.2d 156, 159 (1 st Dist. 1986). Accord Pryweller v. Cohen, 282 Ill. App. 3d 899,<br />
907, 668 N.E.2d 1144, 1149 (1 st Dist. 1996).<br />
SECTION 2-1005 <strong>MOTIONS</strong> FOR SUMMARY JUDGMENT<br />
1. The Statute<br />
5/2-1005 provides:<br />
Sec. 2-1005. Summary judgments. (a) For plaintiff. Any time after the opposite party has<br />
appeared or after the time within which he or she is required to appear has expired, a plaintiff may<br />
move with or without supporting affidavits for a summary judgment in his or her favor for all or<br />
any part of the relief sought.<br />
(b) For defendant. A defendant may, at any time, move with or without supporting affidavits for a<br />
summary judgment in his or her favor as to all or any part of the relief sought against him or her.<br />
(c) Procedure. The opposite party may prior to or at the time of the hearing on the motion file<br />
counteraffidavits. The judgment sought shall be rendered without delay if the pleadings,<br />
depositions, and admissions on file, together with the affidavits, if any, show that there is no<br />
genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter<br />
of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability<br />
alone although there is a genuine issue as to the amount of damages.<br />
(d) Summary determination of major issues. If the court determines that there is no genuine issue<br />
14
of material fact as to one or more of the major issues in the case, but that substantial controversy<br />
exists with respect to other major issues, or if a party moves for a summary determination of one or<br />
more, but less than all, of the major issues in the case, and the court finds that there is no genuine<br />
issue of material fact as to that issue or those issues, the court shall thereupon draw an order<br />
specifying the major issue or issues that appear without substantial controversy, and directing such<br />
further proceedings upon the remaining undetermined issues as are just. Upon the trial of the case,<br />
the facts so specified shall be deemed established, and the trial shall be conducted accordingly.<br />
(e) Form of affidavits. The form and contents of and procedure relating to affidavits under this<br />
Section shall be as provided by rule.<br />
(f) Affidavits made in bad faith. If it appears to the satisfaction of the court at any time that any<br />
affidavit presented pursuant to this Section is presented in bad faith or solely for the purpose of<br />
delay, the court shall without delay order the party employing it to pay to the other party the<br />
amount of the reasonable expenses which the filing of the affidavit caused him or her to incur,<br />
including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of<br />
contempt.<br />
(g) Amendment of pleading. Before or after the entry of a summary judgment, the court shall<br />
permit pleadings to be amended upon just and reasonable terms.<br />
(Source: P.A. 84-316.)<br />
2. Distinguished From Section 2-<strong>615</strong> Motion To Dismiss<br />
A 2-1005 motion can be distinguished from a 2-<strong>615</strong> motion in that a motion to dismiss<br />
under <strong>735</strong> <strong>ILCS</strong> 5/2-<strong>615</strong> attacks only the legal sufficiency of the complaint and does not raise<br />
affirmative factual defenses. Urbaitis v. Commonwealth Edison, 143 Ill. 2d 458, 575 N E 2d 548<br />
(1991). A 2-1005 summary judgment motion is appropriate where the pleadings, affidavits,<br />
depositions and admissions on file, when viewed in the light most favorable to the nonmoving<br />
party, demonstrate that there is no issue of material fact and that the moving party is entitled to<br />
judgment as a matter of law. West Bend Mutual Insurance v. Norton, 406 Ill. App. 3d 741, 744,<br />
346 Ill. Dec. 572, 940 N. E. 2d 1176, 1179. (3 rd Dist. 2010), citing Smithberg v. Illinois Municipal<br />
Retirement Fund, 192 Ill. 2d 291, <strong>735</strong> N.E.2d 560, 248 Ill. Dec. 909 (2000).<br />
3. Distinguished from 2-<strong>619</strong> Motion to Dismiss<br />
Dismissal under section 2-<strong>619</strong> is appropriate when an affirmative matter bars or defeats the<br />
plaintiff's claim. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 115, <strong>619</strong> N.E.2d<br />
732, 189 Ill. Dec. 31 (1993). Hodge, 156 Ill. 2d at 115. "Affirmative matter" means some kind of<br />
defense "other than a negation of the essential allegations of the plaintiff's cause of action." Hodge, 156<br />
Ill. 2d at 115. A defendant moving for dismissal under 2-<strong>619</strong> otherwise admits the sufficiency of<br />
plaintiff’s cause of action. Hodge, 256 Ill. 2d at 115. In contrast, a movant for summary judgment is<br />
asserting that, viewing all the pleadings, affidavits, depositions and other documents on file in a light<br />
most favorable to the nonmoving party, that the moving party is entitled to judgment as a matter of<br />
law. Smithberg v. Illinois Municipal Retirement Fund, 192 Ill. 2d 291, <strong>735</strong> N.E.2d 560, 248 Ill. Dec.<br />
909 (2000).<br />
15
4. Time to file a summary judgment motion<br />
While motions to dismiss must be filed within the time for a defendant to answer, the time<br />
to file a summary judgment motion is more relaxed. A plaintiff may file a summary judgment<br />
motion any time after the defendant has appeared or after the time when the defendant is required<br />
to appear. <strong>735</strong> <strong>ILCS</strong> 5/2-1005(a). A defendant, however, may move for summary judgment at any<br />
time, with or without supporting affidavits. <strong>735</strong> <strong>ILCS</strong> 5/2-1005(b).<br />
PRACTICE TIP: Check the time for filing in your Circuit<br />
Different circuits have different rules for the filing of summary judgment<br />
motions. Cook County Circuit Court Rule 2.1 (f) provides that all motions for<br />
summary judgment in the law division shall be filed and duly noticed for hearing<br />
such that the motion comes before the court for initial presentation and entry of a<br />
briefing schedule not later than forty-five (45) days before the trial date, except by<br />
prior leave of court and for good cause shown or unless a deadline for dispositive<br />
motions is otherwise specified in the case management order.<br />
The 16 th Circuit Court Rule 6.06(a) provides that all dispositive motions must<br />
be filed, noticed and set at least 120 days before the trial date, except by leave of<br />
court upon good cause shown.<br />
The 18 th Circuit Court Rule 6.04(a) provides that dispositive motions shall be<br />
filed no later than 63 days before the scheduled trial date, except by prior leave of<br />
court and for good cause shown.<br />
5. Affidavits and Other Evidence In Support of a Summary Judgment<br />
Motion<br />
Affidavits filed in support of Section 2-1005 motions are controlled by Illinois Supreme<br />
Court Rule 191. Robidoux v. Oliphant, 201 Ill. 2d 324 (2002). An affidavit must be based on the<br />
actual, personal knowledge of the affiant. A statement that the affiant understood something was<br />
found to be insufficient because the affiant was stating assumptions, not facts. Extel v. Cermetek<br />
Microelectronics, 183 Ill. App. 3d 688 (1 st Dist. 1989). Allegations cannot be made upon<br />
information and belief because a trial court cannot determine which part of the affidavit is based<br />
on the affiant’s knowledge and which part is based upon information and belief. Fooden v. Board<br />
of Governors of State Colleges and Universities of Illinois, 48 Ill. 2d 580 (1971). An affidavit<br />
which does not have any basis to show how the affiant acquired the knowledge of the facts does<br />
not comply with Rule 191(a). Steuri v. Prudential Insurance Co., 282 Ill. App. 3d 753 (1 st Dist.<br />
1996). Affidavits cannot simply state that the allegations contained in a pleading are true or false.<br />
Roe v. Jewish Children’s Bureau, 339 Ill. App. 3d 119 (1 st Dist. 2003). Where the movant seeks to<br />
establish evidentiary facts in support of a motion for summary judgment by way of affidavit, Rule<br />
191, Supreme Court Rules, requires that the affidavits relied upon consist of facts admissible in<br />
evidence, not mere conclusions; facts in an affidavit which are not contradicted by a<br />
16
counteraffidavit will be taken as true despite contrary averments in the pleadings. Motz v. Central<br />
Nat'l Bank, 119 Ill. App. 3d 601, 456 N.E.2d 958 (1 Dist. 1983).<br />
Answers to interrogatories may be treated like affidavits for purposes of summary<br />
judgment. Answers to interrogatories to be treated as affidavits for summary judgment purposes,<br />
which, if uncontradicted, stand as admitted. Estate of Henderson ex rel. Henderson v. W.R. Grace<br />
Co., 185 Ill. App. 3d 523, 541 N.E.2d 805 (3 Dist. 1989).<br />
PRACTICE TIP: DOCUMENTS SUBMITTED IN SUPPORT OF AN<br />
AFFIDAVIT MUST THEMSELVES BE SWORN <strong>TO</strong> OR CERTIFIED.<br />
If the documents submitted in support of or in response to a Rule 191(a)<br />
affidavit are not sworn to, certified or otherwise authenticated, there should be an<br />
affidavit setting forth the proper foundation for those documents. Robidoux v.<br />
Oliphant, 201 Ill. 2d 324 (2002). In Oliphant, a doctor’s affidavit was submitted in<br />
which he stated that he relied on certain medical records in reaching his opinion.<br />
Those medical records were not attached to his affidavit. His affidavit was<br />
accordingly stricken for noncompliance with Rule 191(a)’s requirement that the<br />
affidavit “… shall have attached thereto sworn or certified copies of all papers upon<br />
which the affiant relies…” As the Illinois Supreme Court emphatically declared,<br />
“Supreme Court Rules are neither aspirational nor are they suggestions; they have<br />
the force of law, and the presumption must be that they will be enforced as written,”<br />
Oliphant, 201 Ill. 2d at 332, citing Bright v. Dicke, 166 Ill. 2d 204, 210, 652 N. E.<br />
2d 275 (1995).<br />
6. Summary Judgment is Viewed as a “Drastic Remedy”<br />
Summary judgment is a drastic means of disposing of litigation and a reviewing court has a<br />
duty to construe the record strictly against the movant and liberally in favor of the nonmoving<br />
party. Murray v. Chicago Youth Center, 224 Ill. 2d 213, 246 (2007). Summary judgment should<br />
not be allowed unless the moving party’s right to judgment is clear from doubt because the<br />
plaintiff is not required to prove his case at the summary judgment stage. Id. Any inferences which<br />
may be reasonably drawn from the evidence are resolved in favor of the non-movant. Frazier v.<br />
Smith & Wesson, 140 Ill. App. 3d 963, 967 (1 st Dist. 1986). An issue should be decided by the trier<br />
of fact and summary judgment must be denied where reasonable persons could draw divergent<br />
inferences from disputed facts. The purpose of summary judgment is not to try an issue of fact, but<br />
to determine whether a triable question of fact exists. Miller v. Smith, 137 Ill. App. 3d 192, 196 (5 th<br />
Dist. 1985). Summary judgment should be granted only if the pleadings, affidavits, depositions,<br />
admissions, and exhibits on file, when viewed in the light most favorable to the nonmovant, show<br />
that there is no genuine issue as to any material fact and that the movant is entitled to judgment as<br />
a matter of law. Although summary judgment is to be encouraged to expedite the disposition of<br />
lawsuits, it is a drastic procedure and should be allowed only when the right of the moving party to<br />
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summary judgment is clear and free from doubt. Nowak v. Coghill, 296 Ill. App. 3d 886, 695<br />
N.E.2d 532, (1 Dist. 1998).<br />
7. Summary Judgment Is Also An Important Tool In the Administration of Justice<br />
Summary judgment “is an important tool in the administration of justice, and its use in a<br />
proper case is to be encouraged because its benefits inure not only to the litigants in the savings of<br />
time and expenses, but to the community in avoiding congestion of trial calendars and the<br />
expenses of unnecessary trials.” Safeway Ins. Co. v. Hister, 304 Ill. App. 3d 687, 690, 710 N.E.2d<br />
48, 51 (1st Dist. 1999).<br />
8. No Genuine Dispute of Material Fact.<br />
The factual issues in dispute must be material to the essential elements of the cause of<br />
action or defense; those which are unrelated, regardless of how sharply controverted, do not<br />
warrant the denial of summary judgment. Boylan v. Martindale, 103 Ill. App. 3d 335, 431 N.E.2d<br />
62 (2 nd Dist. 1982).<br />
9. Evidence As To Each Element of Each Claim<br />
A defendant moving for summary judgment meets its burden of production by presenting<br />
evidence that, left unrebutted, would entitle it to judgment as a matter of law or by demonstrating<br />
that the plaintiff will be unable to prove an element of its cause of action. McGath v. Price, 342<br />
Ill. App. 3d 19, 30, 793 N.E.2d 801, 810 (1st Dist. 2003). Once the defendant produces such facts,<br />
the burden then shifts to the plaintiff to present some evidence allowing the imposition of liability<br />
on the defendant and supporting each element of his cause of action, thereby defining a material<br />
issue of fact to be determined at trial. (Id.)<br />
10. Two Ways for Defendant to Meet its Initial Burden of Production<br />
A defendant who moves for summary judgment may meet its initial burden in two ways.<br />
See R. Michael, Illinois Practice sec. 40.2, at 271-72 (1989) (Civil Procedure Before Trial). The<br />
first is similar to the way a plaintiff would establish his right to summary judgment: by<br />
affirmatively showing that some element of the case must be resolved in his favor. A defendant<br />
who uses that method is required to prove something he or she would not have to prove at trial,<br />
because at trial the burden of proof would be on the plaintiff to prove the element, not on the<br />
defendant to disprove it. Hutchinson v. Independent Mechanical Industries, Inc., 312 Ill. App. 3d<br />
351, 355, 726 N. E. 2d 1171 (4 th Dist. 2000).<br />
The second method for a defendant to meet its initial burden was recognized in Celotex<br />
Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 275, 106 S. Ct. 2548, 2553-54 (1986). In<br />
that case, Celotex, the movant, could not prove that its products were not the cause of plaintiff’s<br />
injuries. Celotex was nevertheless entitled to summary judgment because plaintiff, who had the<br />
burden of proof, likewise could not produce any proof that a Celotex product was involved.<br />
Celotex held that the defendant satisfies its initial burden of production when it points out the<br />
absence of evidence supporting the plaintiff’s position. Celotex, 477 U.S. at 325, 91 L. Ed. 2d at<br />
275, 106 S. Ct. at 2554. Illinois cases require a defendant to do more than just point out the<br />
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absence of evidence. See R. Michael, Illinois Practice, Sec. 40.3 at 272 (1989) (Civil Procedure<br />
Before Trial). Professor Michael observes that this burden may not be met by a simple recital in<br />
the defendant’s affidavit to that effect. In Kimbrough v. Jewel Cos., 92 Ill. App. 3d 813, 817, 416<br />
N. E. 2d 328, 331 (1 st Dist. 1981), the defendant was able to produce a deposition for plaintiff in<br />
which plaintiff stated she did not know why she fell as well as answers to interrogatories in which<br />
plaintiff admitted that there were no eyewitnesses. In Eric Hutchcraft v. Independent Mechanical<br />
Industires, Inc., 312 Ill App. 3d 351, 726 N. E. 2d 1171 (4 th Dist. 2000), the appellate court<br />
affirmed the granting of a Celotex summary judgment motion because plaintiff was unable to show<br />
that the defendant contractor was in control of the premises under construction. Accordingly no<br />
duty was owed by the contractor to the injured plaintiff. 312 Ill. App 3d at 358-360. Defendant’s<br />
burden of production is accordingly reduced in a Celotex-type motion. However, whether it is a<br />
Celotex motion or a traditional summary judgment motion, once defendant has satisfied its initial<br />
burden of production, the burden shifts to plaintiff to present some factual basis that would<br />
arguably entitle it to a judgment under the applicable law. Kimbrough, 92 Ill. App. 3d at 819, 416<br />
N. E. 2d at 333.<br />
11. The Burden Shifts<br />
As discussed above, once the burden of production has been met by the defendant in a<br />
summary judgment motion, the burden shifts to the plaintiff, respondent. The respondents to a<br />
summary judgment motion which is supported by an affidavit cannot rely on their unverified<br />
complaint alone. This is true even if the complaint is verified. Doherty v. Kill, 140 Ill. App. 3d 158,<br />
488 N.E. 2d 629 (1 st Dist. 1986). Once the movant has met its initial burden of going forward, the<br />
burden shifts to the respondent, who must then come forward with evidentiary material to create a<br />
genuine issue of fact, thereby defeating the motion for summary judgment, Pecora v. County of<br />
Cook, 323 Ill. App 3d 917, 933, 752 N.E. 2d 532 (1 st Dist. 2001).<br />
12. Discovery<br />
Rule 191(b) provides for discovery in a summary judgment motion when material facts are not<br />
obtainable. Agency's contention had to be rejected that the trial court should have allowed it to<br />
conduct additional discovery before finding that certain records it sought from the company<br />
regarding medication errors that three pharmacists it employed may have committed were<br />
privileged. Since the agency failed to file an affidavit in the trial court, pursuant to Rule 191(b),<br />
stating that it needed to conduct additional discovery, it forfeited any argument that the trial court<br />
prematurely granted the company's motion to dismiss. Dep't of Fin. & Professional Regulation v.<br />
Walgreen Co., Ill. App. 3d , 970 N.E.2d 552 (2 nd Dist. 2012). Where plaintiff did not file an<br />
affidavit containing a statement that material facts were known only to persons whose affidavits<br />
the plaintiff was unable to procure by reason of hostility or otherwise, identifying the persons, and<br />
showing why their affidavits could not be procured and what the plaintiff believed they would<br />
testify to if sworn, along with the reasons for this belief, plaintiff could not claim that the entry of<br />
summary judgment must be reversed because plaintiff required additional discovery in order to<br />
oppose the motion for summary judgment. Intercontinental Parts, Inc. v. Caterpillar, Inc., 260 Ill.<br />
App. 3d 1085, 631 N.E.2d 1258 (1 st Dist. 1994).<br />
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13. No “One Summary Judgment” Rule / No Res Judicata<br />
Since it is not a final order, a trial court's earlier denial of a motion for summary judgment<br />
cannot form the basis of a claim of res judicata. Pagano v. Occidental Chem. Corp., 257 Ill. App.<br />
3d 905, 196 Ill. Dec. 24, 629 N.E.2d 569 (1 Dist.), appeal denied, 155 Ill. 2d 566, 198 Ill. Dec.<br />
545, 633 N.E.2d 7 (1994). It was not error for trial judge to grant summary judgment where the<br />
motion consisted of the same arguments and contentions found in a motion for summary judgment<br />
filed two years earlier which a previous judge had denied. Pearson v. Partee, 218 Ill. App. 3d 178,<br />
578 N.E.2d 81 (1 Dist. 1991). Trial court acted within the bounds of its authority in ruling on<br />
defendants' motion for summary judgment after another judge had already denied the same<br />
dispositive motions, where there was no evidence of bad faith on the part of defendants in<br />
renewing their motions, nor evidence of "judge shopping." Dowd & Dowd, Ltd. v. Gleason, 284<br />
Ill. App. 3d 915, 672 N.E.2d 854 (1 Dist. 1996), affirmed as modified, 181 Ill. 2d 460, 230 Ill.<br />
Dec. 229, 693 N.E.2d 358 (1998).<br />
14. Appeals<br />
The granting of a summary judgment motion may be appealable under Rule 304(a). This<br />
Rule requires an express finding by the judge that there is no just reason for delaying the appeal.<br />
155 Ill. 2d R. 304(a).A summary judgment order may also be appealable under Rule 301, which<br />
states that every final judgment of a circuit court in a civil case is appealable as of right. 155 Ill. 2d<br />
R. 301.A denial of a summary judgment motion is generally a non-final order and therefore not<br />
appealable. Chavda v. Wolak, 188 Ill. 2d 394, 403, 721 N. E. 2d 1137 (1999). There is an<br />
exception to the general rule that a denial of a summary judgment motion is a non-final and<br />
therefore non-appealable order where the parties filing opposing motions on the same claim and<br />
the trial court grants one and denies the other. In Arangold Corp. v. Zelender, 187 Ill. 2d 341, 358,<br />
718 N. E. 2d 240 (1999), the Illinois Supreme Court explained that the reasoning for that rules is<br />
that in such a case the resulting order granting one motion and denying the other is final and<br />
appealable because it entirely disposes of the litigation.<br />
The appellate court's review of summary judgment motion is de novo. Sollami v. Eaton,<br />
319 Ill. App. 3d 612, 254 Ill. Dec. 335, 747 N.E.2d 375, 2001 Ill. App. LEXIS 250 (1 Dist. 2001).<br />
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