The Journal of The DuPage County Bar Association

Back Issues > Vol. 19 (2006-07)

Motions To Strike And Dismiss In Domestic Relations Cases
By Timothy M. Daw

In the domestic relations practice, some of the most common pleadings drafted and presented are Motions to Strike (735 ILCS 5/2-615) ("2-615"), Motions to Dismiss (735 ILCS 5/2-619) ("2-619") or hybrid motions seeking either or both types of this relief (750 ILCS 5/2-619.1) ("2-619.1 "). These can be very useful tools in the progression of the case. However, these motions are frequently used as knee jerk reactions by some practitioners to delay the proceedings or prevent the court from dealing with the ultimate substantive issues (i.e. Motions to Strike). The focus needs to be not how smart the lawyer is; rather, what is permissible and is in the client’s best interests in advancing or defending the cause of action.

A. Read the Statute:

Irrespective of one’s years of practice, the starting place of any inquiry is the statutory language. Even though a practitioner has read it before, it should be read again. The particular language of the statutes can be the key to success or failure. Understanding the nuances of the various statutes is extremely important.

735 ILCS 5/2-615 provides as follows:

"Sec. 2-615. Motions with respect to pleadings. (a) 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 misj oined parties be dismissed, and so forth. (b) 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.(c) Upon motions based upon defects in pleadings, substantial defects in prior pleadings may be considered. (d) 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. (e) Any party may seasonably move for judgment on the pleadings." (Emphasis added)

735 ILCS 5/2-619 provides as follows:

"Sec. 2-619. Involuntary dismissal based upon certain defects or defenses. (a) Defendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds. If the grounds do not appear on the face of the pleading attacked the motion shall be supported by affidavit:

(1) That 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.

(2) That the plaintiff does not have legal capacity to sue or that the defendant does not have legal capacity to be sued.

(3) That there is another action pending between the same parties for the same cause.

(4) That the cause of action is barred by a prior judgment.

(5) That the action was not commenced within the time limited by law.

(6) That the claim set forth in the plaintiffs pleading has been released, satisfied of record, or discharged in bankruptcy.

(7) That the claim asserted is unenforceable under the provisions of the Statute of Frauds.

(8) That the claim asserted against defendant is unenforceable because of his or her minority or other disability.

(9) That the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.

(b) A similar motion may be made by any other party against whom a claim is asserted.

(c) If, upon the hearing of the motion, the opposite party presents affidavits or other proof denying the facts alleged or establishing facts obviating the grounds of defect, the court may hear and determine the same and may grant or deny the motion. If a material and genuine disputed question of fact is raised the court may decide the motion upon the affidavits and evidence offered by the parties, or may deny the motion without prejudice to the right to raise the subject matter of the motion by answer and shall so deny it if the action is one in which a party is entitled to a trial by jury and a jury demand has been filed by the opposite party in apt time.

(d) The raising of any of the foregoing matters by motion under this Section does not preclude the raising of them subsequently by answer unless the court has disposed of the motion on its merits; and a failure to raise any of them by motion does not preclude raising them by answer.

(e) Pleading over after denial by the court of a motion under this Section is not a waiver of any error in the decision denying the motion."

(f) The form and contents of and procedure relating to affidavits under this Section shall be as provided by rule." (Emphasis added).

750 ILCS 512-619.1 provides as follows:

"Sec. 2-619.1. Combined motions. Motions with respect to pleadings under Section 2-615, motions for involuntary dismissal or other relief under Section 2-619, and motions for summary judgment under Section 2-1005 may be filed together as a single motion in any combination. A combined motion, however, shall be in parts. Each part shall be limited to and shall specify that it is made under one of Sections 2-615, 2-619, or 2-1005. Each part shall also clearly show the points or grounds relied upon under the Section upon which it is based." (Emphasis added)

B. Are These Motions Even Permissible in Certain Situations?

As evidenced in section A above, the statutory language of 735 ILCS 512-615 applies to "pleadings" (... all objections to pleadings ... ). The statutory language of 735 ILCS 5/2-619 applies to the dismissal of an "action" (... Defendant may, within the time for pleading, file a motion for dismissal of the action ... ) and also specifically refers to "pleading" ( ...If the grounds do not appear on the face of the pleading ... ). Section 2-619.1 also applies to pleadings. The statutes described the document attaching as a "motion". A "motion" and a "pleading" have been construed differently. Under two Appellate Court decisions the distinction was determinative.

In the case of In Re The Marriage of Sutherland, 251 I11.App.3d 411,190 I11.Dec. 695, 622 N.E.2d 105 (2nd Dist. 1993), the underlying action filed was a Petition to Modify Child Support. The petition was stricken when the former wife’s counsel failed to appear on a court date. This was accomplished at the former husband’s oral request citing to the local rule that all "motions" be called for hearing within 60 days of filing (local rule 6.04(f)). The former wife filed a Petition to Vacate the dismissal (735 ILCS 5/2-1203). While not specifically designated, the Appellate Court eventually construed the motion to vacate as a 735 ILCS 5/2-1203 motion. The former husband filed a Motion to Dismiss which the Appellate Court construed as a Motion to Strike pursuant to 2-615. The Court granted the former husband’s motion. The Appellate Court reversed the trial court.

The analysis of the Appellate Court is somewhat confusing in that it construed the underlying and subsequent documents contrary to the designation of the documents. This could

be viewed as the Appellate Court being judicial activists or the attorneys being sloppy. Essentially, the analysis when simplified is as follows:

1. The Petition to Modify Child Support was a "pleading". Sutherland, 251 I11.App.3d at 414, 190 I11.Dec. at 697-98,622 N.E.2d at 107-08. The following facts were relied upon in reaching this conclusion:

a. 750 ILCS 5/511(a) governing the procedures for the modification of child support refers to the initiation of this type of proceeding with the filing of a "Petition".

b. Citing to 735 ILCS 5/2-201(a) (Commencement of actions-forms to process) requiring the issuance of summons for the commencement of an action, and 735 ILCS 5/2-602 (Designation and Order of Pleadings), the Appellate Court reasoned that the Petition to Modify Child Support was a new proceeding. The Appellate Court further cited to case law in support of the proposition so this was further justification that the underlying document was a "pleading".

Practice Note: When seeking to modify support, based on the Sutherland decision, a summons may need to be issued. A Notice of Motion is technically insufficient. In the vast majority of cases, the Notice of Motion is the process accompanying such a pleading.

2. Since the local rule by its terms only referred to a "motion", the trial court’s dismissal of what was deemed by the Appellate Court to be a "pleading" was improper.

3. While designated a Petition to Vacate by the former wife’s counsel without any statutory citation as to the basis for the relief requested, the Appellate Court correctly construed this as a 735 ILCS 5/2-1203 "motion". Id. at 114, 190 I11.Dec. at 695, 622 N.E.2d at 108. The Appellate Court defined a "motion" as being "... an application to the court for a ruling on an order in a pending case. (Citation omitted)." Id. at 113, 190 Ill.Dec. at 697, 622 N.E.2d at 107. A "pleading" was defined as "", a party’s formal allegations of his claims or defenses." Id.

4. Because the Petition to Vacate was in reality a "motion" pursuant to 735 ILCS 5/2-1203, the Motion to Dismiss construed as a Motion to Strike was not appropriate. The Appellate Court held that 2-615 only applied to a "pleading" and not a "motion".

In a recent decision, citing Sutherland as authority, the case of In Re The Marriage of Wolff, 355 Ill.App.3d 403,290 I11.Dec.1011, 822 N.E.2d 596 (2nd Dist. 2005) revisited this issue.

An Amended Motion to Reconsider pursuant to 735 ILCS 512-1203 was filed. A Motion to Dismiss was filed pursuant to 2-619. The Motion to Dismiss challenged jurisdiction and raised additional issues. The Motion to Dismiss was denied and the trial court ultimately granted the Motion to Reconsider. The former husband appealed the case and one of the issues challenged was the denial of the Motion to Dismiss.

In affirming the trial court’s denial of the Motion to Dismiss, the Appellate Court cited to the fact that the Motion to Dismiss "... was a procedural nullity." Id., at 407, 290 Ill.Dec. at 1016, 822 N .E.2d at 601. In explaining the conclusion reached, the Appellate Court restated that a Motion to Dismiss (a 2-619 motion as opposed to a 2-615 motion) only applies to a "pleading" and a 735 ILCS 5/2-1203 motion is a "motion" Id. As in Sutherland, the Appellate Court in Wolf adopted the same definitions of a "motion" and a "pleading". As additional authority the Appellate Court in Wolff cited to William J. Templeman Co. v. Liberty Mut. Ins. Co. 316 Ill.App.3d 379, 249 Ill.Dec. 65, 735 N.E.2d 669 (1sl Dist. 2000). In Templeman the Court construed a motion seeking Illinois Supreme Court Rule 137 sanctions as a "motion" and not a "pleading" using identical definitions. The Templeman court was not dealing with a 2-615 or 2--619 motion. Only the Second District Appellate Court has specifically ruled on this particular issue.

Using the above definitions, a Motion to Strike or a Motion to Dismiss may not be an appropriate vehicle to challenge discovery requests, a Motion to Compel discovery, a Motion for 604(b) appointment, a Motion for Rule 215 examination, Notice to Appear Produce pursuant to Illinois Supreme Court Rule 237, etc.

Practice Note: Using the analysis of the Appellate Court, the better practice is to file objections raising the issues as to the insufficiency of the underlying document or defenses which may exist. Technically, the party advancing the Motion needs to notice the objection for hearing. However, if it is in the client’s interests to have the objection heard, accompanied with the objection should be a simple motion to set a hearing date on the objection.

Esoterically, what does all this mean in terms of proceedings for temporary support, attorney’s fees, summary judgment, declaratory judgment, and other such actions? All of these statutes refer to the documents in question as "motions". For appeal purposes, a dissolution ofmarriage action represents a single "claim". In Re The Marriage of Leopando, 96 Ill.2d 114, 120, 70 Ill.Dec 263, 266, 449 N.E.2d 137, 140 (1983). In Leopando the issue was an award of temporary custody. The issue becomes whether a "claim" for purposes of appeal is identical to the definitions of a "claim or defense" in the definition of a "pleading" in Sutherland and Wolff. In Leopando the Illinois Supreme Court held:

"A petition for dissolution of marriage advances a single claim that is, a request for an order dissolving the parties’ marriage. The numerous other issues involved, such as custody, property dissolution and support are merely questions which are ancillary to the cause of action." Id.

While this issue is undecided, an appropriate interpretation of this dichotomy is that there IS a difference between a case being capable of being appealed verses substantive rights/procedural rights. The right to support, attorney’s fees, the granting of a summary judgment or declaratory judgment all establish substantive rights of the parties. These issues mayor may not be appealable but they also establish rights and obligations. Discovery matters, on the other hand, are issues before the court to eventually get to the meat of the case. This unfortunately is inconsistent with 735 ILCS 5/2-1203 proceedings being deemed "motions". The granting or denials of this motion create substantive rights.

An alternative, more simplistic, view is if the pleading/motion in question requires the presentation of evidence as opposed to mere argument, and the result is a benefit to the client (support, fees, custody, etc.), this may be a "pleading". The request is an evidentiary, substantive determination.

C. If Appropriate. A Decision Needs To Be Made Whether To File Such A Motion:

When presented with a "claim", and the "pleading" is clearly defective (for example, no affidavit supporting a Motion for Temporary Support (750 ILCS 5/501)), the first decision is whether to attack or merely defend. Part of the consideration is who is the audience (Judge). Some judges can be strict with pleadings. If the pleading does not allege it, it is not a material issue. If the facts are not alleged, the filing of the motion alerts opposing counsel to the potential deficiencies and weaknesses in the case. A decision not to attack may be a good tactical decision given the case. If a Judge is not hyper-technical with pleadings (i.e. form over substance), the motion attacking the pleading can be used to delay the relief and potentially influence the court as to the merits of the issues a practitioner wishes to present. Even if denied, the Judge has been educated as to issues or defenses in a client’s favor. Motion practice is not always about winning the motion. An appropriate focus is whether the motion, even if denied, advances the client’s cause of action or defenses.

For example, in DuPage County, at the time of the filing of any proceeding for support, to modify support, for attorney’s fees and the like, there is a requirement that the request be accompanied by a Comprehensive Financial Statement ("CFS") with supporting documents including three (3) years of tax returns. (See local rule 15.01.3 of the Eighteenth Judicial Circuit). If this is complied with, the response must be accompanied by the opponent’s CFS with the supporting documents. In the early stages of a case, where discovery has not commenced or been completed, it is tactically useful to attack the pleadings for two reasons: first, this will allow one to see the opposition’s information even before beginning to prepare a response; and second, the opposition will not be able to see your financial information prior to committing to their financial position. Strategically, the practitioner may not want to educate the opposition so that he or she has the ability to improve his or her case. This is especially true for proceedings to modify maintenance and child support. It is generally unwise to provide more ammunition to the opponent when he, she or they are trying to create their "claim".

On the other hand, when defending a Petition which in part states a "claim", it is sometimes wise to obtain a quick response on file even to a defective pleading to create an argument that the parties are now at issue to push the matter to a quick resolution. The point here is to focus discovery and avoid protracted litigation which may mire the case in discovery issues.

Another reason to ignore defective pleadings is to prevent emphasizing the ineffectiveness of counsel. By attacking the pleading, the result may be an emphasis on the ineffectiveness of counsel. Repeatedly exposing the ineptitude or ineffectiveness of opposing counsel may lead to a discharge of counsel and then having to deal with more competent counsel. By keeping an inept attorney involved, chances are better the Judge will view the practitioner, and his or her and the client’s position in a more favorable light. Any advantage is a good starting point.

D. The Law:

The case law distinguishing Motion to Strike and Motions to Dismiss is somewhat confusing. The standards employed in evaluating these motions are blurred. In dealing with a particular motion, any case referring to a Motion to Strike or Motion to Dismiss must be carefully read to make sure the case truly pertains to a 2-615 or a 2-619 motion.

1. Cite the Statutory Basis Under Which You Are Proceeding:.

It is important to cite to the statute you are proceeding under. Failure to cite the statutory grounds for the relief requested may be the basis for reversal. People v. Elkow, 167 Ill.App.3d 187, 192, 118 Ill.Dec. 222, 226, 521 N.E.2d 290,294 (4th Dist. 1988). The person attacking the pleading has the opportunity to choose between a 615, 619 motion or a combination of both in accordance with 619.1. Dunn v. Baltimore & Ohio RR, 162 Ill.App.3d 97, 104, 113 Ill.Dec. 868, 873, 515 N.E.2d 1027, 1032 (4th Dist. 1987) rev’d on other grounds, 127 Ill.2d 350, 130 Ill.Dec. 409, 537 N.E.2d 738 (1989). Prior to the enactment of 619.1, on appeal if the underlying motion did not specify the grounds for the relief, the Appellate Court could review the issues presented under either 615 or 619 for reasons of judicial economy. Harris v. Johnson, 218 Ill.App.3d 588, 592, 161 Ill.Dec. 680, 682, 578 N.E.2d 1325, 1328 (2nd Dist 1991), Seibring v. Parcell’s Inc., 178 Ill.App.2d 62, 70, 127 Ill.Dec. 326,331,532 N.E.2d 1335, 1340 (4th Dist. 1988). Even if labeled, Courts have held that despite the label, the Appellate Court is permitted to look to the substance of the Motion to determine which section applies. Mass v. Cohen Assocs., 112 Ill.App.3d 191,195,68 Ill.Dec. 69, 71-72, 445 N.E.2d 517, 519-20 (1st Dist. 1983); Davis v. Keystone Printing Serv., Inc., 111 Ill.App.3d 427, 432, 67 Ill.Dec. 214, 216, 444 N.E.2d 253, 255 (2nd Dist. 1982).

The cases thus far cited demonstrate that there was and is great confusion in dealing with these motions. This is primarily the fault of the attorneys who present these motions without citing the statute and mix and match relief under 615 and 619 within the same Motion, and incorrectly cite the statutory basis. This allows the reviewing Court great latitude in dealing with the appropriateness of the underlying motion. The Supreme Court has made it quite clear that the practice of combining such Motions is expressly disfavored. Rothe v. Maloney Caddilac, Inc., 142 Ill.App.3d 937, 939, 97 Ill.Dec. 61, 62-63, 492 N.E.2d 497, 498-99 (1st Dist. 1986) rev’d on other grounds 119 Ill2d 288, 116 I11.Dec. 207, 518 N.E.2d 1028 (1988). In 1986 the Illinois Code of Civil Procedure was amended to add section 619.1 (750 ILCS 5/2-619.1) to require separate and distinct pleading. The Courts have recognized as follows:

"Meticulous practice dictates a lawyer specifically designate whether her (or his) motion to dismiss is pursuant to section 2-615 or section 2-619. (See: Galayada v. Penman (1980), 80 I11.App.3d 423, 424-25, 35 I11.Dec. 590, 399 N.E.2d 656 (additional citations omitted)".

Illinois Graphics Co. v. Nickum, 159 I11.2d 469, 484, 203 I11.Dec. 463, 470, 639 N.E.2d 1282, 1289 (1994).

Practice Note: Always specify which statute you are proceeding under. It is helpful to specifically cite the subsection of the statute that is the basis for the relief being requested. This will help focus the practitioner and the Court on the issue or argument being advanced. When defending a Motion that does not specify the statutory basis or mixes and matches the provisions of both statutes, it is also good practice and a sound tactical decision to file an objection. This will force the opposition to declare its intentions and may result in a substantial portion of the motion being ignored. This allows insight to the opposition’s thought process and strategy.

2. Motions to Strike (2-615).

The filing of a Motion to Strike and Dismiss pursuant to 2-615 results in all well-pled facts being admitted, as well as all reasonable inferences drawn from the facts. Douglas Theatre Co. v. Chicago Title & Trust Co., 288 I11.App.3d 880, 883, 224 I11.Dec. 249, 251, 681 N.E.2d 564, 566 (18t Dist. 1997); See Also Barham v. Knickrehm, 227 I11.App.3d 1034, 214 I11.Dec. 721, 661 N.E.2d 1166 (3rd Dist. 1996); Lake County Grading Co., v. Advanced Mech. Contractors, Inc., 275 I11.App.3d 452, 211 I11.Dec. 299, 654 N.E.2d 1109 (2nd Dist. 1995); Weinberger v. Bell Fed. Savs and Loan, 262 I11.App.3d 1047,200 I11.Dec. 308,635 N.E.2d 647 (18t Dist. 1994). In construing the allegations and facts, the Court is required to view the facts in a light most favorable to the proponent of the pleading being attacked. Vernon v. Schuster, 179 I11.2d 338, 344, 228 I11.Dec. 195, 198, 688 N.E.2d 1172, 1175 (1997). A dismissal is only appropriate if the Court concludes that it "... clearly appears that no set of facts can be proved which will entitle the Plaintiff to recover." Id.; See Also Douglas Theatre, 228 IIl.App.3d at 883,224 IIl.Dec. at 251, 681 N.E.2d at 566 and Barham, 227 Ill.App.3d at 1037,214 IIl.Dec. at 723,661 N.E.2d at 1168.

As it relates to "conclusions", a 2-615 motion does not admit legal or factual conclusions, to the extent such exist, the test to be applied is whether if the conclusions are ignored, will the remaining facts state a cause of action. Lake County Grading Co., 275 Ill.App.3d at 457, 211 IIl.Dec. at 304, 654 N.E.2d at 1114. Ultimate facts may be pled; however, under Illinois law what constitutes an "ultimate fact" in one case may be a conclusion of fact or law in another case. J. Eck & Sons, Inc. v. Rueben H. Donnelly Corp., 213 IIl.App.3d 510, 514, 157 Ill.Dec. 626,629, 572 N.E.2d 1090, 1093 (1 st Dist. 1991). The focus of the inquiry becomes whether the allegations "... give sufficient information to an opponent of the character of evidence to be introduced or of the issues to be tried." Id.

Regarding exhibits, to the extent these are attached to a pleading, the exhibits become part of the pleading. Brock v. Anderson Rd. Assoc., 287 Ill.App.3d 16, 21, 222 Ill.Dec. 451, 455, 677 N.E.2d 985, 989 (2nd Dist. 1997); Matrick v. Chatz, 266 Ill.App.3d 649, 653, 203 IIl.Dec. 159, 162,639 N.E.2d 198,201 (1 st Dist. 1994).

On the other hand, be aware that 735 ILCS 5/2-612(b) provides as follows:

"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."

Depending upon the judge, this provision can provide a potent defense to these motions—no harm, no foul.

There is frequently great confusion whether the motion should be brought pursuant to 2--615, 2-619 or a combination 2-619.1. As noted above, the proper approach in distinguishing how to proceed is answering the question of whether the motion itself needs to have any extraneous or affirmative factual allegations beyond the four (4) corners of the pleading. "In a Section 2-615 motion, unlike a 2-619 motion, a party generally may not raise affirmative matters outside of the four corners of the complaint." Advocate Health and Hosp. Corp. v. Bank One, N.A., 348 IIl.App.3d 755, 758,284 IIl.Dec. 710, 714, 810 N.E.2d 500, 504 (1 st Dist 2004). A 2-615 Motion does not raise affirmative factual defenses. Urbaitis v. Commonwealth Edison, 143 Ill.2d 458, 465, 159 Ill.Dec. 50, 55, 575 N.E.2d 548, 555 (1991). If a litigant labels a motion with affirmative or factual matters as a combined motion under both sections 2-615 and 2-619, defendants’ motion to dismiss can be construed as a section 2-619 motion only.

"Generally, a motion to dismiss made under section 2-619 admits the legal sufficiency of a plaintiffs complaint but raises defects, defenses, or other affirmative matters that appear on the face of the complaint or that are established by external submissions acting to defeat the allegations of the complaint. Barret v. Funorow, 343 I11.App.3d 1184, 1189, 279 I11.Dec. 113, 799 N.E.2d 916 (2003)"

Hamilton vs. Conley, 356 I11.App.3d 1048, 1053, 293 Ill.Dec. 68, 73, 827 N.E.2d 949, 984 (2nd Dist. 2005).

3. Motions to Dismiss (2-619).

A 2-619 Motion is a very factually specific motion to dismiss the cause of action based upon facts which may or may not appear on the face of the complaint. In subsection (a) of the statute, there are nine bases which exist for the relief requested. The first eight bases are traditional affirmative defenses recognized under the law. The ninth basis by statute is a catch all provision should the first eight not apply.

While most practitioners’ main focus is subsection (a) as basis for the motion and the requested relief, equally important is subsection (c). This subsection has been recognized as being the test by which the Court may grant or deny the relief requested. Ramer v. Storment, 119 Ill.App.3d 79, 83, 74 I11.Dec. 896,899,456 N.E.2d 617,620 (5th Dist. 1983); Land v. Auler, 186 Ill.App.3d 382, 384-85, 134 I11.Dec. 330, 332, 542 N.E.2d 509, 511 (4th Dist. 1989). In Land the Court held as follows:

"Where an affirmative defense negates the alleged cause of action, the circuit court may properly dismiss the pleading with prejudice. (Citation Omitted)." Id.

One of the most important facets of subsection (c) is the "may". The plain reading of the statute shows that if a Motion is filed and the relief is appropriate "... the court may hear and determine the same and may grant or deny the motion ... ". If the facts are such that the Motion should be granted, the Court has the discretion not to hear the Motion. If the Court hears the Motion and the facts show the Motion should be granted, the Court has the discretion not to grant the Motion. Recognizing this, Courts have held that the granting or denial of these motions is completely discretionary. McGann v. Ill. Hosp. Assoc., 172 Ill.App.3d 560, 565, 122 Ill.Dec. 509,511, 526 N.E.2d 902,904 (4th Dist 1988). For example, consider the situation where there is a prior cause of action filed (2-619(a)(3)). This sometimes occurs when one spouse files, for example, in DuPage County and the other files in Will County. Assuming venue in both counties is appropriate, in the later matter there will likely be a Motion to Dismiss filed. The fact that there is a first filed cause of action in of itself is not determinative for the dismissal of the second filed cause of action. Ill. Central Gulf RR v. Goad, 168 Ill.App.3d 541, 544, 119 I11.Dec. 183, 185,522 N.E.2d 845,847 (4th Dist. 1988):

"The fact that one action is filed prior to the other is not determinative to the application of this section. (A.E. Staley Mfg. Co. v. Swift Co. (1980), 84 Ill.2d 245,252,50I11.Dec. 156, 159-60,419 N.E.2d 23,26-27)." Id.

The purpose of a dismissal based upon a prior pending cause of action is to promote the public policy of avoiding duplicative litigation which drains judicial resources. Doutt v. Ford, 276 I11.App.3d 785, 789, 213 I11.Dec. 459, 462, 659 N.E.2d 89, 92 (1st Dist. 1995); Arthur Young & Co. v. Bremer, 197 Ill.App.3d 30, 47, 143 I11.Dec. 736, 748, 554 N.E.2d 671, 683 (5th Dist. 1990); Ill. Central Gulf R.R. v. Goad, 168 Ill.App.3d 541, 544, 119 Ill.Dec. 183, 185, 522 N.E.2d 845, 847 (4th Dist. 1988). Yet, despite this public policy, even where there is the same action pending between the same parties, the dismissal is discretionary. Quantum Chemical Corp. v. Hartford Steam Boiler Inspection and Ins. Co., 246 Ill.App.3d 557, 560, 186 Ill.Dec. 496,498,616 N.E.2d 686,688 (3rd Dist., 1993); Golden Rule Ins. Co. v. Robeza, 194 I11.App.3d 468,471, 141 Ill.Dec. 506, 509, 551 N.E.2d 693,696 (5th Dist. 1990).

Practice Note: The "may" provides to the Court the ability to do equity when the facts and circumstances for dismissal under the statute would seem to dictate otherwise. When facing the wrong end of one of these motions, the equitable considerations need to be considered as opposed to just caving in.

A related issue to a prior pending cause of action is the doctrine of forum non conveniens.

Frequently, where the Courts before which the actions are pending are not close in proximity, the request for dismissal will frequently be met with a motion to transfer under the doctrine of forum non conveniens. While these two issues have been found to be interrelated (Natural Gas Pipeline Co. v. Phillips Petro Co., 163 I11.App.3d 136, 144, 114 Ill.Dec. 372, 377, 516 N.E.2d 527,532 (1 st Dist. 1987), the case law of forum non conveniens can be found under 2-619. There are other rules, however, which also come into play on this issue (Illinois Supreme Court Rule 187).

The catch-all provision as previously noted is contained in 2-619(a)(9) where the defense sought to be imposed does not clearly fit into the defenses allowed in subsection (a)(1) through (8), the broad language in 2-619(a)(9) may apply (" ... other affirmative matters ... "). It has been held that while the other subsections contain recognized affirmative defenses, the language of (a)(9) also includes those defenses that may not be true affirmative defenses. (Michel v. Gard, 181 I1l.App.3d 630, 635, 130 Ill.Dec.164, 168, 536 N.E.2d 1375, 1379 (3rd Dist. 1989)). Consider a situation involving a Petition for Contribution to Attorneys Fees where there is no fee agreement. Under the theory that a litigant may not seek to impose an obligation on the other spouse for his or her fees if that litigant has no obligation to pay those fees (In Re the Marriage of Magnuson, 156 I1l.App.3d 691, 702, 109 I1l.Dec 569, 576, 510 N.E.2d 437, 444 (2nd Dist. 1987)), this situation may lend itself nicely to a Motion to Dismiss under section (a)(9). Is the Motion being attached a "pleading"?

Much of the law with respect to 2-615 motions (well pled facts, conclusions, exhibits) also applies to 2-619 Motions. See: Advocate Health and Hosp. Corp. v. Bank One, 348 Ill.App.3d 755, 759, 284 I1l.Dec 710, 714, 810 N.E.2d 500,504 (1 st Dist. 2004); Timberline, Inc. v. Towne 225 I1l.App.3d 433, 439,167 I1l.Dec. 534, 538, 587 N.E.2d 1149, 1153 (2nd Dist. 1992). The critical difference is the ability to raise defenses outside of the four (4) corners of the pleading with supporting affidavits. These defenses create the basis for the dismissal. This is the purest form of a Motion to Dismiss.

Section 2-619(c) allows for an expanded use of these Motions enabling the trier of fact to determine issues of fact much like a Motion for Summary Judgment (735 ILCS 5/2-1005). As recognized in Advocate Health, 348 Ill.App.3d at 759,284 Ill.Dec at 714,810 N.E.2d at 504:

"A section 2-619 Motion is similar to a Motion for Summary Judgment, although it is usually presented early in a case, before there is an opportunity for discovery. Redwood v. Lierman, 331 I1l.App.3d 1073, 1091, 265 Ill. Dec. 432, 772 N.E.2d 803, 819 (2002). Section 2-619 allows for the dismissal of a complaint on the basis of issues of law or easily proven issues of fact (Neppl, 316 I1l.App.3d at 385, 249 Ill.Dec. at 736, 736 N.E.2d at 1179; McCoy v. International Port District, 334 Ill.App.3d 462, 466, 268 I1l.Dec. 439, 778 N.E.2d 705, 709 (2002)) while disputed questions of fact are reserved for trial proceedings, if necessary. McCoy, 334 I1l.App.3d at 466, 268 I1l.Dec. 439, 778 N.E.2d at 709.... As long as there is no genuine issue of material fact and the defendant is entitled to judgment as a matter of law, the complaint may be properly dismissed."

See a/so Michel v. Gard, 181 Ill.App.3d 630,635, 130 Ill.Dec.164, 168, 536 N.E.2d 1375, 1379 (3rd Dist. 1989).

Be aware other Court’s have criticized the use of a Motion to Dismiss instead of a Motion for Summary Judgment. See Gribble v. Willeford, 190 Ill.App.3d 610, 613, 137 I11.Dec. 881, 883,546 N.E.2d 994, 996 (5th Dist. 1989); Austin View Civic Ass’n v. City of Palos Heights, 85 I11.App.3d 89, 93, 40 I11.Dec. 164, 169, 405 N.E.2d 1256, 1261 (1 st Dist. 1980); Brewer ex reI. Wilson v. Stoval, 54 I11.App.3d 261, 265-66, 11 I11.Dec. 911, 915 ,369 N.E.2d 365, 369 (4th Dist. 1977). Some courts have held the Motion to Dismiss must defeat the entire cause of action. Koester v. Weber, Cohn & Riley Inc., 193 I11.App.3d 1045, 1049-60, 140 I11.Dec. 879, 881, 550 N.E.2d 1004, 1006 (1 st Dist. 1989). Other courts have seemingly relaxed this requirement. See Mayfield v. Acme Barrel Co., 259 I11.App.3d 32, 34-35, 196 Ill.Dec. 145, 148, 629 N.E.2d 690, 693 (1st Dist. 1994), Egidi v. Town of Libertyville, 181 Ill.App.3d 542,546, 130 Ill.Dec. 302, 305, 537 N.E.2d 369, 372 (2nd Dist. 1989), Austin Civic Assoc. v. City of Palos Heights, 85 I11.App.89, 94, 40 I11.Dec. 164, 170, 405 N.E.2d 1256, 1262 (1 st Dist. 1980). To the extent the more restrictive application of this statute is utilized, where the relief sought is the elimination of issues as opposed to the entire cause of action, the more appropriate pleading may very well be a Motion for Partial Summary Judgment (735 ILCS 5/2-1005 (d)). However, as inferred in Advocate Health, 348 Ill.App.3d at 759, 284 Ill.Dec. at 714, 810 N.E.2d at 504, there may be a tactical advantage to filing this motion very early in the proceedings in hopes of avoiding unnecessary discovery. The difference in these motions has been recognized to include under 2--619 the ability of the Court to decide questions of fact (a hearing). AFP Enter. v. Cresent Park Inc., 243 Ill.App.3d 905,912-13, 183 Ill.Dec. 356, 361, 611 N.E.2d 619,624 (2nd Dist. 1993).

Practice Note: It would appear that it is better practice to file a Motion to Dismiss if the purpose is to dismiss the entire course of action as opposed to dissecting and removing issues of primary importance in a matter with a Motion for Partial Summary Judgment.

The standard employed in evaluating this Motion is whether the Court can determine with certainty whether the defense exists and therefore render the dismissal as appropriate. If that certainty does not exist, the motion should not be granted. Sjogren v. Maybrooks, Inc., 214 I1l.App.3d 888, 891, 158 I1l.Dec. 182, 183, 573 N.E.2d 1367, 1362 (1 st Dist. 1991). It must appear that no set of facts can be proved which would entitle the litigant whose pleading is attacked to the relief that they seek. Robinson ex rei. LaCasa Grande Condo. Assoc., 204 I1l.App.3d 853, 856, 150 I1l.Dec. 148, 151, 562 N.E.2d 678, 681 (4th Dist. 1990). In reviewing the Motion, the Court is allowed to determine the existence or absence of a material fact based upon the affidavits, pleadings, depositions, admissions, exhibits as if the relief requested was for summary judgment. In Re Rosewell, 148 I1l.App.3d 297,302, 101 I1l.Dec. 466, 469, 498 N.E.2d 790, 793 (1 st Dist. 1986).

In formulating the Motion when a practitioner has a good case for dismissal, great care must be taken in creating the affidavits, selecting the exhibits and the admissions (whether in depositions, pleading, a response to a request to admit, etc.). The affidavits are usually the key. They must be drafted from the standpoint of making a single statement of fact to prevent denial. The detail must be as if the affiant were on the witness stand. Any statements must have the necessary foundation of actual knowledge. Any exhibits must have evidentiary foundation (true, accurate and complete copy; a document kept in the ordinary course of business and it was that affiant’s responsibility to maintain same; the identification of signatures; etc.).

If the motion is a 2-615 motion, the Court cannot consider any affidavits. Barham v. Knickrehm, 277 I1l.App.3d 1034, 1036,214 I1l.Dec. 721, 723, 661 N.E.2d 1166, 1168 (3rd Dist. 1996); Curtis v. Cook County, 109 I1l.App.3d 400,409,65 Ill.Dec. 87,93,440 N.E.2d 942, 948 (1st Dist. 1982) rev’d on the grounds 98 I1l.2d 158,74 I1l.Dec. 614,456 N.E.2d 116 (1983). If there are facts supporting the defense outside of the four (4) comers of the pleading being attacked, (a 2-619 motion) these facts and defenses must be established by affidavit. Mogul v. Tucker, 152 I1l.App.3d 610, 612, 105 I1l.Dec. 587,589,504 N.E.2d 872, 874 (1 st Dist. 1987). If a sufficient affidavit is presented, the failure to provide a counter-affidavit denying the facts results in the facts alleged in the affidavit being taken as true. Kawaguchi v. Gainer, __ I1l.App.3d _, _, 296 Ill.Dec. 401, 835 N.E.2d 435, 441 (2nd Dist. 2005) The Court is not allowed to weigh conflicting affidavits (Michel v. Gard, 181 I1l.App.3d 630, 636, 130 I1l.Dec. 164, 169, 536 N.E.2d 1375, 1380 (3rd Dist. 1989) yet can actually have a hearing (i.e. evidence) to decide the motion (2-619(c)). Id. The Court must either hear and decide the conflicting proof or deny the Motion. Gilbert Brothers, Inc. v. Gilbert, 258 I1l.App.3d 395,398, 196 Ill.Dec. 492, 494, 630 N.E.2d 189, 191 (4th Dist. 1994); Glass Specialty Co. v. Litwiller, 147 II1.App.3d 653, 655,101 II1.Dec. 552, 554, 498 N.E.2d 876,878 (3rd Dist. 1986).

4. Hybrid Motions (2-619.1).

In 1986, the Illinois Code of Civil Procedure was formally amended to legislate that combined Motions pursuant to 2-615, 2-619 or 2-1005 be stated in separate counts or as referred to in the statute as "parts". The "parts" must specify the statutory basis for the relief being requested and "clearly show" the facts upon which the request to strike, dismiss or summary judgment is based.

CONCLUSION

It is critical to understand the differences in the various motions with respect to pleadings. Decisions need to be made whether such a motion attacking the pleadings is appropriate. Strategically, the presentation of such a motion may only educate the opposition as to the deficiency in their case. If a decision is made to attack, the decision needs to be made as to what is the basis of the attack. This is largely determined by the nature of the deficiency claimed. If the deficiency is solely based on the four (4) corners of the pleading being attacked, it is likely the procedure comes within the 2-615 statutory provisions. If the claimed deficiency is based upon assertions and defenses outside of the four (4) corners of the pleading being attacked, it is likely the procedure comes within the 2-619 statutory provisions. If there are multiple defenses, within the 4 corners and outside the 4 corners, the appropriate motion may be a hybrid multi-count attack pursuant to 2-619/1. Understanding the statutes and the applicable provisions allows the practitioner to more capably prosecute or defend against these motions. Being able to define and limit issues provides the practitioners an ability to control issues which are important to his or her client and eliminate issues or entire proceedings which is ultimately in the client’s interests.failure to provide a counter-affidavit denying the facts results in the facts alleged in the affidavit being taken as true. Kawaguchi v. Gainer, __ I1l.App.3d _, _, 296 Ill.Dec. 401, 835 N.E.2d 435, 441 (2nd Dist. 2005) The Court is not allowed to weigh conflicting affidavits (Michel v. Gard, 181 I1l.App.3d 630, 636, 130 I1l.Dec. 164, 169, 536 N.E.2d 1375, 1380 (3rd Dist. 1989) yet can actually have a hearing (i.e. evidence) to decide the motion (2-619(c)). Id. The Court must either hear and decide the conflicting proof or deny the Motion. Gilbert Brothers, Inc. v. Gilbert, 258 I1l.App.3d 395,398, 196 Ill.Dec. 492, 494, 630 N.E.2d 189, 191 (4th Dist. 1994); Glass Specialty Co. v. Litwiller, 147 II1.App.3d 653, 655,101 II1.Dec. 552, 554, 498 N.E.2d 876,878 (3rd Dist. 1986).

4. Hybrid Motions (2-619.1).

In 1986, the Illinois Code of Civil Procedure was formally amended to legislate that combined Motions pursuant to 2-615, 2-619 or 2-1005 be stated in separate counts or as referred to in the statute as "parts". The "parts" must specify the statutory basis for the relief being requested and "clearly show" the facts upon which the request to strike, dismiss or summary judgment is based.

CONCLUSION

It is critical to understand the differences in the various motions with respect to pleadings. Decisions need to be made whether such a motion attacking the pleadings is appropriate. Strategically, the presentation of such a motion may only educate the opposition as to the deficiency in their case. If a decision is made to attack, the decision needs to be made as to what is the basis of the attack. This is largely determined by the nature of the deficiency claimed. If the deficiency is solely based on the four (4) corners of the pleading being attacked, it is likely the procedure comes within the 2-615 statutory provisions. If the claimed deficiency is based upon assertions and defenses outside of the four (4) corners of the pleading being attacked, it is likely the procedure comes within the 2-619 statutory provisions. If there are multiple defenses, within the 4 corners and outside the 4 corners, the appropriate motion may be a hybrid multi-count attack pursuant to 2-619/1. Understanding the statutes and the applicable provisions allows the practitioner to more capably prosecute or defend against these motions. Being able to define and limit issues provides the practitioners an ability to control issues which are important to his or her client and eliminate issues or entire proceedings which is ultimately in the client’s interests.

Timothy M. Daw, a partner with Schiller, DuCanto & Fleck, has over 20 years experience in litigating complex financial/custody cases. He received his Bachelor of Science in Business Administration from the University of Illinois at Champaign/Urbana and his J.D., with distinction, from DePaul University College of Law. Mr. Daw is a graduate of the American Bar Association Family Law Advocacy Institute. Mr. Daw was a member of the Supreme Court Committee on Character and Fitness by appointment of the Illinois Supreme Court from 1991-2000. Mr. Daw is a member of the American Bar Association and serves on the Family Law Section Committee on Alimony & Spousal Support, the Family Law Section Trial Practice and Techniques Committee, and the Family Law Section Child Support Committee. Mr. Daw also is a member of the Illinois State Bar Association and the DuPage County Bar Association, where he formerly served as the Chairman and Vice-Chairman of the Family Law Committee.


 
 
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