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

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(iii.) The “Same Parties” Requirement The “same parties” requirement of subdivision (a)(3) does not require that the parties be identical in both actions; a substantial similarity is sufficient. Phillips Electronics v. New Hampshire Ins. Co., 295 Ill. App. 3d 895, 904-05, 692 N.E.2d 1268, 1276 (1 st Dist. 1998). (iv) Balancing of Factors In considering a 2-619(a)(3) motion, courts will also consider whether the policy of avoiding duplicative litigation outweighs any prejudice to the non-movant, whether the action has a legitimate and substantial relation to Illinois, whether the Illinois filing represents forum shopping, and whether Illinois law applies to the action. A.E. Staley Mfg. Co. v. Swift & Co., 84 Ill. 2d 245, 253, 419 N.E.2d 23, 27 (1980); Kapoor v. Fujisawa Pharm. Co., 298 Ill. App. 3d 780, 785-86, 699 N.E.2d 1095, 1099-1110 (1 st Dist. 1998); Doutt v. Ford Motor Co., 276 Ill. App. 3d 785, 790, 659 N.E.2d 89, 93 (1 st Dist. 1995); Philips Electronics v. New Hampshire Ins. Co., 295 Ill. App. 3d 895, 908, 692 N.E.2d 1268, 1277-78 (1 st Dist. 1998). (v) Option To Stay Proceedings The following facts should be considered in determining whether a stay is warranted under subsection (a)(3): comity, the prevention of multiplicity, vexation, and harassment, the likelihood of obtaining complete relief in the foreign jurisdiction, and the res judicata effect of a foreign judgment in the local forum. A.E. Staley Mfg. Co. v. Swift & Co., 84 Ill. 2d 245, 254, 419 N.E.2d 23, 27-28 (1980); Phillips Electronics v. New Hampshire Ins. Co., 295 Ill. App. 3d 895, 908, 692 N.E.2d 1268, 1277 (1 st Dist. 1998). (vi) Forum Non Conveniens- Distinguished Litigants may cite A.E. Staley Mfg. Co. v. Swift & Co., 84 Ill. 2d 245, 253, 419 N.E.2d 23, 27, 50 Ill. Dec. 156, 160 (1980) in arguing that a Section 2-619(a)(3) motion for dismissal must be denied if the court has rejected forum non conveniens as a basis for dismissal. The Illinois First District has rejected this interpretation of Staley and held that a Section 2-619(a)(3) motion may be granted even where a motion for dismissal based on forum non conveniens is denied. Natural Gas Pipeline Co. v. Phillips Petroleum Co., 163 Ill. App. 3d 136, 144-47, 516 N.E.2d 527, 532-34, 114 Ill. Dec. 372, 377 (1st Dist. 1987) (“[w]e do not read [Staley] to mean that whenever a trial court denies a forum non conveniens motion a plaintiff has, ipso facto, shown a 'legitimate and substantial' relation between the litigation and the Illinois forum requiring a denial of a Section 2- 619(a)(3) dismissal unless the defendant presents additional grounds justifying that relief.") (4) Res Judicata 5/2-619(a)(4) provides that an action may be dismissed because the cause of action is barred by a prior judgment. An action may be dismissed with prejudice under the doctrine of res judicata where the claim is barred by a prior judgment. Papers Unlimited v. Park, 253 Ill. App. 3d 150, 153, 625 N.E.2d 373, 375 (1 st Dist. 1993). 12
The doctrine of res judicata is based on the public policy which favors judicial economy and the finality of litigation. Papers Unlimited v. Park, 253 Ill. App. 3d 150, 153, 625 N.E.2d 373, 376 (1 st Dist. 1993). For the doctrine of res judicata to apply, three requirements must be met: (1) there was a final judgment on the merits by a court of competent jurisdiction; (2) there was an identity of causes of action; and (3) there was an identity of parties or their privies.” Currie v. Wisconsin Central, Ltd., 2011 WL 4579598 (1st Dist. Sept. 20, 2011). The doctrine requires an identity of parties or their privies, identity of the cause of action and subject matter, and a final judgment on the merits in an earlier suit. Papers Unlimited v. Park, 253 Ill. App. 3d 150, 625 N.E.2d 373 (1 st Dist. 1993). To apply the doctrine of res judicata, a court must determine whether the two lawsuits involve the same cause of action; the test that Illinois courts generally use to determine this is whether the evidence needed to sustain the second action would have sustained the first action. Torcasso v. Standard Outdoor Sales, Inc., 157 Ill. 2d 484, 491, 626 N.E.2d 225, 228 (1992). (5) Statute Of Limitations 5/2-619(a)(5) provides that a claim may be dismissed because “…the action was not commenced within the time limited by law.” A defendant may be permitted to raise a statute of limitations defense in a motion to dismiss pursuant to Section 2-619(a)(5) even though the defendants did not raise the defense in their responsive pleading or seek leave to amend to their pleading. Dever v. Simmons, 292 Ill. App. 3d 70, 684 N.E.2d 997 (1 st Dist. 1997). Compare Laches: The defense of laches may be resolved on a motion to dismiss if its applicability appears from the face of the complaint or by affidavit submitted with the motion. Jameson Realty Group v. Kostiner, 351 Ill. App. 3d 416, 432, 813 N.E.2d 1124, 1137 (1 st Dist. 2004). Where laches is not apparent from the face of the Complaint, a motion to dismiss based on laches should be brought under Section 2-619(a)(9) and supported with an affidavit. Summers v. Village of Durand, 267 Ill. App. 3d 767, 770, 643 N.E.2d 272, 275-76 (2d Dist. 1994). (6) Release, Satisfaction Or Discharge 5/2-619(a)(6) provides that a claim may be dismissed because “…the claim set forth in the plaintiff’s pleading has been released, satisfied of record, or discharged in bankruptcy.” Where a defendant moving for dismissal pursuant to Section 2-619(a)(6) shows a facially valid release, the burden of proof shifts to the plaintiff to prove that a material issue of fact exists which would invalidate the agreement. Dickman v. E.I. Du Pont De Nemours & Co., 278 Ill. App. 3d 776, 663 N.E.2d 507 (3d Dist. 1996); Roberts v. Dow Chemical Co., 244 Ill. App. 3d 253, 614 N.E.2d 252 (1 st Dist. 1992). (7) Statute Of Frauds 5/2-619(a)(7) provides that a claim may be dismissed because “…the claim asserted is unenforceable under the provisions of the Statute of Frauds.” 13
Page 1 and 2: MOTIONS TO DISMISS PURSUANT TO 735
Page 3 and 4: 3. Fact-Pleading Required Illinois
Page 5 and 6: 10. 2-615 Motions Other Than Motion
Page 7 and 8: (1) That the court does not have ju
Page 9 and 10: If the “affirmative matter” on
Page 11: (2) Legal Capacity 5-2-619(a)(2) pr
Page 15 and 16: of material fact as to one or more
Page 17 and 18: counteraffidavit will be taken as t
Page 19 and 20: absence of evidence. See R. Michael

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

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