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

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SECTION 2-615 MOTIONS TO DISMISS 1. The Statute The Illinois Civil Practice Act provides that motions attacking the sufficiency of the pleadings should be filed pursuant to § 735 ILCS 5/2-615, which provides: Motions with respect to pleadings. (a) (b) (c) (d) (e) All objections to pleadings shall be raised by motion. The motion shall point out specifically the defects complained of, and shall ask for appropriate relief, such as: that a pleading or portion thereof be stricken because substantially insufficient in law, or that the action be dismissed, or that a pleading be made more definite and certain in a specified particular, or that designated immaterial matter be stricken out, or that necessary parties be added, or that designated misjoined parties be dismissed, and so forth. If a pleading or a division thereof is objected to by a motion to dismiss or for judgment or to strike out the pleading, because it is substantially insufficient in law, the motion must specify wherein the pleading or division thereof is insufficient. Upon motions based upon defects in pleadings, substantial defects in prior pleadings may be considered. After rulings on motions, the court may enter appropriate orders either to permit or require pleading over or amending or to terminate the litigation in whole or in part. Any party may seasonably move for judgment on the pleadings. 2. Pleadings To Be Construed Liberally Section 2-603(c) of the Code further provides that “pleadings shall be liberally construed with a view to doing substantial justice between the parties.” 735 ILCS 5/2-603(c). Under the Illinois Civil Practice Code, “no pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he or she is called upon to meet.” 735 ILCS 5/2-612(b); Forest Preserve District of DuPage County v. Miller, 339 Ill.App.3d 244, 252, 789 N.E.2d 916, 923 (2 d Dist. 2003); People of the State of Illinois ex rel. Hartigan v. Candy Club, 149 Ill.App.3d 498, 500, 501 N.E.2d 188, 190 (1 st Dist. 1986); Kita v. Young Men’s Christian Association of Metropolitan Chicago, 47 Ill.App.2d 409, 425, 198 N.E.2d 174, 182 (1 st Dist. 1964). “A cause of action should not be dismissed pursuant to a section 2-615 motion unless it is clearly apparent that no set of facts can be proved that would entitle the plaintiff to relief.” Pooh- Bah Enterprises, Inc. v. County of Cook, 232 Ill. 2d 463, 473, 905 N.E.2d 781, 789 (2009); Napleton v. Village of Hinsdale, 229 Ill.2d 296, 305, 891 N.E.2d 839, 845 (2008). Kindel v. Tennis, 409 Ill. App. 3d 1138, 949 N.E.2d 1119 (5th Dist. 2011). 2
3. Fact-Pleading Required Illinois is a fact-pleading jurisdiction. A plaintiff must allege facts, not mere conclusions, to establish his or her claim as a viable cause of action. Napleton v. Village of Hinsdale, 229 Ill.2d 296, 305, 891 N.E.2d 839, 845 (2008). Liberal construction will not save a complaint containing legal or factual conclusions unsupported by specific factual allegations. Pooh-Bah Enterprises, Inc. v. County of Cook, 232 Ill. 2d 463, 473, 905 N.E.2d 781, 789 (2009); Mlade v. Finley, 112 Ill. App. 3d 914, 918, 445 N.E.2d 1240, 1243-44 (1 st Dist. 1983). Conclusions of fact will not suffice to state a cause of action regardless of whether they generally inform the defendant of the nature of the claim. Grund v. Donegan, 298 Ill. App. 3d 1034, 1039, 700 N.E.2d 157, 161 (1st Dist. 1998). 4. Limited Scope of Section 2-615 Motion A Section 2-615 motion to dismiss challenges the legal sufficiency of the complaint. Napleton v. Village of Hinsdale, 229 Ill.2d 296, 305, 891 N.E.2d 839, 845 (2008); Zahl v. Krupa, 365 Ill. App. 3d 653, 657, 850 N.E.2d 304, 309 (2d Dist. 2006). The question presented is whether the allegations of the complaint, when viewed in a light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief can be granted. Borowiec v. Gateway 2000, Inc., 209 Ill. 2d 376, 382, 808 N.E.2d 957, 961 (2004). Motions under Section 2-615 may not be supported by reference to any facts or exhibits that are not alleged in or attached to the complaint under attack. Scott Wetzel Servs. v. Regard, 271 Ill. App. 3d 478, 480-81, 648 N.E.2d 1020, 1022-1023 (1 Dist. 1995). 5. Questions of Fact Cannot Be Decided A motion to dismiss pursuant to Section 2-615 does not raise affirmative factual defenses. Borowiec v. Gateway 2000, Inc., 209 Ill. 2d 376, 382, 808 N.E.2d 957, 961 (2004). It is based on the pleadings rather than the underlying facts. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 639 N.E.2d 1282 (1994); Barber-Coleman Co. v. A&K Midwest Insulation Co., 236 Ill. App. 3d 1065, 603 N.E.2d 1215 (5 th Dist. 1992). Cases are not to be tried at the pleadings stage, so a claimant need only show a possibility of recovery, not an absolute right to recovery, to survive a section 2-615 motion. Platson v. NSM America, Inc., 322 Ill.App.3d 138, 143, 748 N.E.2d 1278, 1284 (2 d Dist. 2001). 6. Failure To Adhere To Fact Pleading Requirements To pass muster a complaint must state a cause of action in two ways. First, it must be legally sufficient; it must set forth a legally recognized claim as its avenue of recovery. When it fails to do this, there is no recourse at law for the injury alleged, and the complaint must be dismissed. * * * Second and unlike federal practice, the complaint must be factually sufficient; it must plead facts which bring the claim within the legally recognized cause of action alleged. If it does not, the complaint must be dismissed. Mlade v. Finley, 112 Ill. App. 3d 914, 918, 445 N.E.2d 1240, 1243-44 (1 st Dist. 1983) (citing People ex rel. Fahner v. Carriage Way West, Inc., 88 Ill. 2d 300, 308, 430 N.E.2d 1005 (1981)). 3
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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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