MOTIONS TO DISMISS PURSUANT TO 735 ILCS 5/2-615 AND 2-619

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The circuit court may decide easily proved issues of fact “upon the hearing of the motion” to dismiss pursuant to Section 2-619, but in deciding the merits of the motion, the court cannot determine disputed factual issues presented solely upon affidavits and counter affidavits. Curtis Casket Co. v. D.A. Brown & Co., 259 Ill. App. 3d 800, 632 N.E.2d 204 (1 st Dist. 1994); Thompson v. Heydemann, 231 Ill. App. 3d 578, 596 N.E.2d 664 (1 st Dist. 1992). 7. Scope Of Section 2-619 Motion A motion to dismiss pursuant to Section 2-619 asserts an affirmative defense or other matter that avoids or defeats the plaintiff’s claim. DeLuna v. Burciaga, 223 Ill.2d 49, 59, 857 N.E.2d 229, 236 (2006); Borowiec v. Gateway 2000, Inc., 209 Ill. 2d 376, 413, 808 N.E.2d 957 (2004). The term “affirmative matter” encompasses any defense other than a negation of the essential allegations of the plaintiff’s cause of action. Kedzie and 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 115, 619 N.E.2d 732, 735 (1993). “For a motion to be properly brought under section 2-619, the motion (1) must be filed ‘within the time for pleading’; and (2) must concern one of nine listed grounds” set forth in §2- 619(a)(1) through (a)(9). River Plaza Homeowners’ Assn’ v. Healey, 389 Ill. App. 3d 268, 275, 904 N.E.2d 1102 (2009). A motion to dismiss pursuant to Section 2-619 should invoke one of the nine grounds which bar relief as identified in 735 ILCS 5/2-619(a), and where a defendant’s motion and supporting affidavit do not raise any of those nine grounds but instead seek only to deny the factual allegations of plaintiff’s complaint, such a motion is not properly made under Section 2-619. Hill v. Butler, 107 Ill. App. 3d 721, 728, 437 N.E.2d 1307, 1313 (4 th Dist. 1982). 8. Standard Of Appellate Review On A Section 2-619 Motion An appeal from an order of dismissal under Section 2-619 is subject to the same standards as an appeal of an order granting summary judgment. Pryweller v. Cohen, 282 Ill. App. 3d 899, 907, 668 N.E.2d 1144, 1149 (1 st Dist. 1996). 9. Particular Grounds For Granting Of 2-619 Motions (1) Subject Matter Jurisdiction 5/2-619(a)(1) provides that a claim may be dismissed because “...the court does not have jurisdiction of the subject matter of the action, provided the defect cannot be removed by a transfer of the case to a court having jurisdiction.” If the defendant is aware of facts which demonstrate that the circuit court is without subject matter jurisdiction, defendant should file a motion to dismiss pursuant to Section 2-619(a)(1), supported by affidavit, in order to bring these facts to the court’s attention. McGee v. Ractian Constr. Co., 231 Ill. App. 3d 929, 934, 596 N.E.2d 1261, 1265 (4 th Dist. 1992). 10
(2) Legal Capacity 5-2-619(a)(2) provides that the action may be dismissed because the plaintiff does not have legal capacity to sue or that the defendant does not have legal capacity to be sued. To possess capacity, a natural person must be living at the time of the commencement of the action; a dead person cannot sue or be sued. Bavel v. Cavaness, 12 Ill. App. 3d 633, 637, 299 N.E.2d 435, 437-38 (5 th Dist. 1973); Accord Bogseth v. Emanuel, 261 Ill. App. 3d 685, 689, 633 N.E.2d 904, 907 (1 st Dist. 1994). Individual shareholders of a corporation do not have standing to prosecute claims which are the property of the corporation in which they invested. Northern Trust Co. v. VIII. South Michigan Assoc., 276 Ill. App. 3d 355, 363, 657 N.E.2d 1095, 1101 (1st Dist. 1995). Where the only injury complained of consists of an alleged diminution in the value of the plaintiff’s shares, the plaintiff cannot sue directly for such losses, but rather, must proceed by means of a derivative suit. Id. Accord Small v. Sussman, 306 Ill. App. 3d 639, 644, 713 N.E.2d 1216, 1216 (1 st Dist. 1999) (3) Another Pending Action 5/2-619(a)(3) provides that a pleading may be dismissed because there is another action pending between the same parties for the same cause. Arthur Young & Co. v. Bremer, 197 Ill. App. 3d 30, 46, 554 N.E.2d 671, 682 (1 Dist. 1990). Dismissal of a Complaint pursuant to 2- 619(a)(3) is authorized only when another proceeding was pending before a body which would adjudicate the merits of a claim and render a final, binding and enforceable decision. Ransom v. Marrese, 122 Ill. 2d 518, 529, 524 N.E.2d 555, 560 (1988). An order dismissing an action on the basis of Section 2-619(a)(3) should contain language stating that the dismissal is not on the merits. (i) Timing Of Filing Not Dispositive Illinois courts have refused to adopt a “first to file” rule with respect to Section 2-619(a)(3) motions to dismiss. See Continental Grain Co. v. FMC Corp., 27 Ill. App. 3d 819, 824, 327 N.E.2d 371, 375 (1 st Dist. 1975). While the order of filing is usually not determinative, courts will look to the progress of the competing action. Continental Grain, 27 Ill. App. 3d at 824, 327 N.E.2d at 375. (ii) The “Same Cause” Requirement The “same cause” requirement of subdivision (a)(3) mandates only substantial similarity, not identical causes of action. The court should consider whether the actions arose out of the same transaction or occurrence and not whether the legal theory, issues, burden of proof, or the remedy materially differ between them. Phillips Electronics v. New Hampshire Ins. Co., 295 Ill. App. 3d 895, 692 N.E.2d 1268 (1 st Dist. 1998). 11
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MOTIONS TO DISMISS PURSUANT TO 735 ILCS 5/2-615 AND 2-619

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