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

7. Pleading of Affirmative Defenses
Illinois law requires that the facts establishing an affirmative defense must be pleaded with
the same degree of specificity required of a plaintiff to sufficiently state a cause of action.
International Ins. Co. v. Sargent & Lundy, 242 Ill. App. 3d 614, 630, 609 N.E.2d 842, 853 (1st
Dist. 1993)
8. Effect Of Dismissal Pursuant To Section 2-615
In granting a 2-615 motion to dismiss, a trial judge may grant plaintiff a certain number of
days, typically twenty-eight, to file an amended complaint. If, however, the judge determines that
that plaintiff cannot plead a cause of action under the apparent facts and circumstances of the case,
the judge may dismiss the pleading with prejudice. People ex rel. Daley v. Datacom Systems
Corp., 146 Ill. 2d 1, 5, 585 N.E.2d 51, 55 (1991).
A dismissal of a pleading pursuant to a 2-615 motion that fails to allow plaintiff to file an
amended pleading, or which fails to specify that the dismissal is without prejudice, is considered a
dismissal with prejudice. Dunavan v. Calandrino, 167 Ill. App. 3d 952, 957, 522 N.E.2d 347, 349
(5 Dist.), appeal denied, 122 Ill. 2d 573, 530 N.E.2d 243 (1988).
9. Granting Or Denial Of Leave To Amend Complaint
The right to file an amended complaint under Section 2-616 of the Code of Civil Procedure
is very broad, and is to be permitted at “any time before final judgment” upon “just and reasonable
terms.” 735 ILCS 5/2-616. The Illinois Supreme Court has interpreted that language as “requiring
the trial court to permit amendment if it will further the ends of justice.” In re Estate of Hoover,
155 Ill. 2d 402, 416, 615 N.E.2d 736, 742 (1993).
Plaintiffs generally are granted at least one opportunity to amend their pleadings. Sinclair
v. State Bank, 226 Ill. App. 3d 909, 910, 589 N.E.2d 862, 863 (4 Dist.), appeal denied, 145 Ill. 2d
644, 596 N.E.2d 637 (1992). Plaintiff may be given several opportunities. The key factor is not
the number of times plaintiff is allowed to refile, but whether it appears plaintiff may be able to
cure a defect with a refiled complaint. Where plaintiff’s third amended complaint cured a prior
defective pleading by stating a cause of action and, the amendment was timely and would not have
surprised or prejudiced defendant, the trial court was found to have erred when it denied plaintiff
leave to file his third amended complaint. Palmer v. Chicago Park Dist., 277 Ill. App. 3d 282,
289, 660 N.E.2d 146, 150 (1 Dist. 1995), appeal denied, 166 Ill. 2d 543, 664 N.E.2d 643 (1996).
In Loyola Academy v. S&S Roof Maintenance, Inc., 146 Ill. 2d 263, 273-74, 586 N.E.2d
1211, 1216 (1992), the court adopted four factors to be used in determining whether the trial
court’s denial of a party’s motion to amend constituted an abuse of discretion: (1) whether the
proposed amendment would cure the defective pleading; (2) whether other parties would sustain
prejudice or surprise by virtue of the proposed amendment; (3) whether the proposed amendment
is timely; and (4) whether there were prior opportunities to amend. Where the proposed
amendment meets all four factors, it is an abuse of discretion for the trial court to deny the
amendment. Loyola Academy, 146 Ill. 2d at 276, 586 N.E.2d at 1217.
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