Pleadings - The Roadmap Through Trial
2013 Update
Robert R. Duncan
DUNCAN LAW GROUP, LLC
161 N. Clark, Suite 2550
Chicago, IL 60601
(312)202-3283
www.duncanlawgroup.com
rrd@duncanlawgroup.com
1
Table of Contents
1.
Complaint & Answer
a.
Substance of Pleadings (735 ILCS 5/2-601)
b.
Designation and Order of Pleadings (735 ILCS 5/2-602)
c.
Form of Pleadings (735 ILCS 5/2-603)
d.
Prayer for Relief (735 ILCS 5/2-604)
2.
Cross-claims, Counterclaims, Third-party actions
a.
Counterclaims (735 ILCS 5/2-608)
3.
Affirmative Defenses
a.
Separate Counts and Defenses (735 ILCS 5/2-613)
4.
Class Action Requirements
a.
Section 5/2-801: Prerequisites for the maintenance of a class action. (735
ILCS 5/2-801)
Section 5/2-1006. Consolidation and severance of cases. (735 ILCS
5/2-1006)
b.
5.
Punitive Damages
a.
Pleading of Punitive Damages (735 ILCS 5/2-604.1)
6.
Verified Pleadings & Exhibits
a.
Verification of Pleadings (735 ILCS 5/2-605)
b.
Exhibits (735 ILCS 5/2-606)
7.
Bill of Particulars
a.
Bills of Particulars (735 ILCS 5/2-607)
8.
Illinois Supreme Court Rules Affecting Pleadings
a.
Rule 131: Form of Papers
b.
Rule 133: Pleading Breach of Statutory Duty; Judgment or Order; Breach of
Condition Precedent
c.
Rule 135: Pleading Equitable Matters
2
9.
d.
Rule 137: Signing of Pleadings, Motions and Other Papers - Sanctions
e.
Rule 181: Appearances - Answers - Motions
g.
Rule 182: Time for Pleadings and Motions Other than those Directed to
Complaint.
Other Resources
a.
ISBA Website
b.
Illinois Trial Log Blog
3
Introduction
Whether the case involves a complex contract dispute, a two-car collision, or a party
seeking equitable relief, the vast majority of claims begin with begin by filing a complaint.
Illinois, a fact pleading state, maintains numerous statutory requirements for pleadings. The
importance of proper pleadings cannot be overlooked or overstated. Pleadings shape the form of
the litigation. Failing to know the applicable rules and identify the necessary requirements can
be embarrassing, harm the client, and result in wasted time and effort.
Too often, pleadings are viewed as viewed as a hurdle rather than a tool. This section is
intended to operate as an informational resource, providing statutory language and relevant case
law allowing the user to use the rules surrounding pleadings as a tool for building and shaping
their case.
Pleading requirements are found throughout the Illinois Code of Civil Procedure, the
Illinois Supreme Court Rules, and the local rules of the various Circuit Courts throughout the
State of Illinois. Not every section of the Illinois Code of Civil Procedure involving pleadings is
addressed in this Chapter - some are addressed in other Chapters and some are left unaddressed.
However, the most commonly encountered sections are identified and expanded upon in the
following pages.
4
1.
Complaint & Answer
A complaint initiates litigation. Clearly, the party filing the complaint is the plaintiff, and
the responding party is the defendant. In an ideal world, the parties to a case would be limited to
a single plaintiff and single defendant. However, as all practitioners know, this is rarely the case.
What begins with a simple complaint often results in multi-party litigation, with cross-claims,
counterclaims, third-party defendants and sometimes intervening parties. At the initial stage, it is
important to carefully draft a complaint with the proper substance, order and prayer for relief.
a.
Section 5/2-601 - Substance of pleadings (735 ILCS 5/2-601)
In all actions, pleadings shall be as specified in Article II of this Act and the rules. This
section does not affect in any way the substantial allegations of fact necessary to state any
cause of action.
Case Law:
Liberal Construction
Despite the requirement of fact pleading, court are required to construe pleadings
liberally to do substantial justice between the parties. Lempa v. Finkel, 278
Ill.App.3d 417, 663 N.E.2d 158, 215 Ill.Dec 408 (2d Dist. 1996).
Nevertheless, a complaint must contain facts necessary to state a cause of action.
Ritchey v. Maskin, 71 Ill.2d 470, 376 N.E.2d 991, 17 Ill.Dec. 662 (1978).
Fact Pleading
Illinois is a fact pleading state in which plaintiffs are required to allege facts
giving rise to their causes of action. Schal Bovis, Inc. v. Casualty Ins. Co., 314
Ill.App.3d 562, 732 N.E.2d 1082, 247 Ill.Dec 750 (1st Dist. 1999).
Facts, and not legal conclusions, should be alleged in pleadings. Adkins v. Sarah
Bush Lincoln Health Center, 129 Ill.2d 497, 519, 136 Ill.Dec.47, 58, 544 N.E.2d
733, 744 (1989).
To be factually sufficient, a complaint must plead facts which bring the claim
within a legally recognized cause of action. Bank of Lincolnwood v. Comdisco,
Inc., 111 Ill.App.3d 822, 444 N.E.2d 657, 67 Ill.Dec 421 (1st Dist. 1982).
Under the Civil Practice Act, notice pleading is insufficient. Knox College v.
Celotex Corp., 88 Ill.2d 407, 430 N.E.2d 976, 58 Ill.Dec. 725 (1981).
b.
Section 5/2-602 - Designation and order of pleadings (735 ILCS 5/2-602)
5
The first pleading by the plaintiff shall be designated a complaint. The first pleading by
the defendant shall be designated an answer. If new matter by way of defense is pleaded
in the answer, a reply shall be filed by the plaintiff, but the filing of a reply is not an
admission of the legal sufficiency of the new matter. Further pleadings may be permitted
as required by the court.
[Emphasis added.]
Case Law:
Failure to file an answer
Failure to file an answer results in well-pleaded facts being deemed admitted.
Pinnacle Cop. v. Village of Lake in the Hills, 258 Ill.App.3d 205, 630 N.E.2d 502,
196 Ill.Dec. 567 (2d Dist. 1994).
Purpose of a reply
The function of a reply is to reply to any new matter asserted or alleged in an
answer or a plea. Spence v. Washington National Insurance Co., 320 Ill.App.149,
50 N.E.2d 128 (1943).
A reply cannot supply omissions in a complaint, add new grounds of action, or
permit the taking of a position inconsistent with that alleged in the complaint.
Spence v. Washington National Insurance Co., 320 Ill.App.149, 50 N.E.2d 128
(1943).
Failure to reply
A party’s failure to reply to new matters raised by affirmative defense or
countercomplaint constitutes admission to those allegations. Sobel v. Franks, 261
Ill.App.3d 670, 633 N.E.2d 820, 199 Ill.Dec. 24 (1st Dist 1994).
c.
Section 5/2-603 - Form of Pleadings (735 ILCS 5/2-603)
(a) All pleadings shall contain a plain and concise statement of the pleader’s cause of
action, counterclaim, defense, or reply.
(b) Each separate cause of action upon which a separate recovery might be had shall be
stated in a separate count or counterclaim, as the case may be and each count,
counterclaim, defense or reply, shall be separately pleaded, designated and numbered,
and each shall be divided into paragraphs numbered consecutively, each paragraph
containing, as nearly as may be, a separate allegation.
(c) Pleadings shall be liberally construed with a view to doing substantial justice between
the parties.
[Emphasis added.]
6
Case Law:
Generally
The form of an action is determined by the pleadings. Fine v. Unschuld, 324
Ill.App. 274, 58 N.E.2d 251 (1944).
Pleadings are to be construed liberally with a view towards doing substantial
justice between the parties. Arnold v. Leahy Home Building Co., Inc., 95
Ill.App.3d 501, 420 N.,E.2d 699, 51 Ill.Dec. 285 (1981); Haas v. Westlake
Community Hospital, 82 Ill.App.3d 347, 402 N.E.2d 883, 37 Ill.Dec. 881 (1980).
A liberal construction must be afforded to a litigant in determining sufficiency of
a pleading. Stelloh v. Cottage, 52 Ill.App.2d 168, 201 N.E.2d 672 (1964).
Construed against the pleader
Pleadings are construed most strongly against the pleader. Garofalo Co. v. St.
Marys Packing Co., 339 Ill.App. 412, 90 N.E.2d 292 (1950); Hall v. Shinadle,
336 Ill.App. 155, 83 N.E.2d 32 (1949).
Substantial justice / Reasonably inform
Under the Civil Practice Act, pleadings are to be liberally construed with a view
towards doing substantial justice between the parties, and no pleading is to be
deemed bad in substance which shall contain such information as shall reasonably
inform the opposite party fo the nature of the claim. Herman v. Prudence Mus.
Cas. Co., 92 Ill.App.2d 222, 235 N.E.2d 346 (1968) (Emphasis added).
No pleading is bad in substance where it reasonably informs the opposite party of
the nature of the claim. Fisher v. Holt, 52 Ill.App.3d 164, 367 N.E.2d 370 (1st
Dist. 1977).
Illinois: Fact pleading state
In Illinois, in order to set forth good and sufficient claims or defenses, pleadings
must allege ultimate facts sufficient to satisfy each element of the cause of action
or the affirmative defense pled. Richco Plastic Co. v. IMS Co., 288 Ill.App.3d
782, 681 N.E.2d 56, 224 Ill.Dec. 74 (1st Dist. 1997).
Effect of conclusions
Conclusional statements of fact or law will not suffice to state a cause of action
regardless of whether they successfully inform the defendant of the claim against
him or her. Dowd and Dowd, Ltd. v. Gleason, 284 Ill.App.3d 915, 672 N.E.2d
854, 220 Ill.Dec. 37 (1st Dist. 1996). [
7
Mere allegations of legal conclusions are insufficient to set forth a cause of action
on which relief may be granted, and such allegations need not be accepted by a
court. Farns Associates, Inc. v. Sternback, 77 Ill.App.3d 249, 395 N.E.2d 1103,
32 Ill.Dec. 722 (1st Dist. 1979).
Affect of Amending a complaint
An amendment which is complete in itself and which does not refer to or adopt
the prior pleading, supersedes it and the prior pleading ceases to be a part of the
record, being, in effect, abandoned or withdrawn. Gardner v. Village of Chicago
Ridge, 71 Ill.App.2d 373, 219 N.E.2d 147 (1966). [Emphasis added.]
Wrong venue
The defense of wrong venue may be raised by an answer. Dever v. Bowers, 341
Ill.App.444, 94 N.E.2d 518 (1950).
Admissions
An admission in an answer is binding on the party making it and as to such party,
it is conclusive as to the admitted fact. Western Life Ins. Co. of America v.
Chapman, 31 Ill.App.3d 368, 334 N.E.2d 806 (1st Dist. 1975).
Waiving affirmative defenses
Failure to adequately raise affirmative defenses in pleadings effectively waives
the defenses. Huszagh v. City of Oak Brook Terrace, 89 Ill.App.2d 115, 231
N.E.2d 189 (1967).
d.
Section 5/2-604 - Prayer for relief (735 ILCS 5/2-601)
Every count in every complaint and counterclaim shall contain specific prayers for the
relief to which the pleader deems himself or herself entitled except that in actions of
injury to the person, no ad damnum may be pleaded except to the minimum extent
necessary to comply with the circuit rules of assignment where the claim is filed. Relief
may be requested in the alternative. Prayers for relief which the allegations of the
pleadings do not sustain may be objected to on motion or in the answering pleading. In
actions for injury to the person, any complaint filed which contains an ad damnum,
except to the minimum extent necessary to comply with the circuit rules of assignment
where th claim is filed, shall, on motion of a defendant or on the court’s own motion be
dismissed without prejudice. Except in the case of default, the prayer for relief does not
limit the relief obtainable, but where other relief is sought the court shall, by proper
orders, and upon terms that may be just, protect the adverse party against prejudice by
reason of surprise. In case of default, if relief is sought, whether by amendment,
counterclaim, or otherwise, beyond that prayed in the pleading to which the party is in
default, notice shall be given the defaulted party as provided by rule.
8
Nothing in this section shall be construed as prohibiting the defendant from requesting of
the plaintiff by interrogatory the amount of damages which will be sought.
[Emphasis added.]
Case Law:
Purpose
Purpose of the statute requiring that separate claims be stated in separate counts is
to give notice to court and to parties of claims being presented and relief being
sought. Wong v. Stevens, 216 Ill.App.3d 299, 576 N.E.2d 1069, 160 Ill.Dec. 115
(1st Dist. 1991).
Purpose of provision of this paragraph requiring specific prayer for relief in
complaint is to appraise defendant of nature of plaintiffs claim and extent of
damages sought, so that defendant may prepare to meet demand or permit default
to be taken. Kryl v. Zelenzny, 290 Ill.App.599, 8 N.E.2d 223 (1937).
Alternative prayers for relief
Plaintiff has the right to plead and introduce proof upon all theories of recovery
which he desires and has the right to have a jury clearly and fairly instructed upon
each theory which is supported by the evidence. Ervin v. Sears Roebuck & Co.,
65 Ill.2d 140, 357 N.E.2d 500, 2 Ill.Dec. 333 (1976).
Prayer for relief does not limit relief obtainable
With the exception of default judgments and cases involving prejudice to the
adverse party by reason of surprise, prayer for relief will not limit the relief
obtainable. Dils v. City of Chicago, 62 Ill.App.3d 474, 378 N.E.2d 1130, 19
Ill.Dec. 255 (1st Dist. 1978).
Generally, an award for damages in excess of the prayer for relief is proper. Dils
v. City of Chicago, 62 Ill.App.3d 474, 378 N.E.2d 1130, 19 Ill.Dec. 255 (1st Dist.
1978); Johnston v. Basic, 16 Ill.App.3d 453, 306 N.E.2d 610 (1st Dist. 1973).
Default judgments
A party has a right to assume that the relief granted on a default will not exceed or
substantially differ from that described in the complaint. Dils v. City of Chicago,
62 Ill.App.3d 474, 378 N.E.2d 1130, 19 Ill.Dec. 255 (1st Dist. 1978).
Accordingly, the party may safely allow a default to be taken in reliance upon this
assumption. Park Ave. Lumber & Supply Co. v. Nils A. Hofverberg, Inc., 76
Ill.App.2d 334, 222 N.E.2d 49 (1966).
The relief granted on default must not exceed or substantially differ from the
relief sought, in the absence of notice to the defaulted party. Safety-Kleen Corp.
9
v. Canadian Universal Insurance Ltd., 258 Ill.App.3d 298, 305, 631 N.E.2d 475,
197 Ill.Dec. 472 (2d Dist. 1994 ) citing Albany Bank & Trust Co. NA v. Albany
Bank & Trust Co. NA, 142 Ill.App.3d 390, 392, 491 N.E.2d 1234, 96 Ill.Dec. 774
(1986).
A general prayer for relief does not suffice to permit a default judgment in excess
of the ad dannum clause. Safety-Kleen Corp. v. Canadian Universal Insurance
Ltd., 258 Ill.App.3d 298, 305, 631 N.E.2d 475, 197 Ill.Dec. 472 (2d Dist. 1994 )
citing Rauscher v. Albert, 145 Ill.App.3d 40, 44, 495 N.E.2d 149, 99 Ill.Dec. 84
(1986).
Expectation
A party has a right to assume that the relief granted by a default judgment will not
exceed or substantially differ from that requested in the complaint. Eckel v.
Bynum, 240 Ill.App.3d 867, 877, 608 N.E.2d 167, 181 Ill.Dec. 94 (1992).
2.
Cross-claims, Counterclaims & Third-party Actions
Once the initial complaint is filed, the answering defendant is placed in a position to
initiate a cross-claim against a codefendant, a counterclaim against the plaintiff, or a third-party
action against a party not already named in the lawsuit. Filing a cross-claim, counterclaim, or
pleading in a third-party is often an effort to equitably attribute or apportion liability. Complex
litigation often involves multiple parties with multiple cross-claims, counterclaims and thirdparty actions combined with affirmative defenses.
It is important to understand the difference between a cross-claim, counterclaim and
third-party action and an affirmative defense. The case law contained below highlights the
difference between the two forms of pleadings.
Third-party actions are addressed in a subsequent section of the seminar.
a.
Section 5/2-608 - Counterclaims (735 ILCS 5/2-608)
(a) Any claim by one or more defendants against one or more plaintiffs, or against one or
more codefendants, whether in the nature of setoff, recoupment, cross claim or otherwise,
and whether in tort or contract, for liquidated or unliquidated damages, or for other relief,
may be pleaded as a cross claim in any action, and when so pleaded shall be called a
counterclaim.
(b) The counterclaim shall be a part of the answer, and shall be designated as a
counterclaim. Service of process on parties already before the court is not necessary.
(c) Every counterclaim shall be pleaded in the same manner and with the same
particularity as a complaint, and shall be complete in itself, but allegations set forth in
other parts of the answer may be incorporated by specific reference instead of being
repeated.
10
(d) An answer to a counterclaim and pleadings subsequent thereto shall be filed as in the
case of a complaint and with like designation and effect.
Case Law:
Distinguished
A counterclaim is not a defense on the merits, rather it is an independent cause of
action in favor of defendant against the plaintiff seeking affirmative relief.
Citicorp Savings of Illinois v. Rucker, 295 Ill.App.3d 801, 692 N.E.2d 1319, 230
Ill.Dec. 153 (1st Dist. 1998).
A counterclaim differs from an affirmative defense in that a counterclaim is used
when seeking affirmative relief and an affirmative defense seeks to defeat a
plaintiff’s claim. Norman A. Koglin Associates v. Valenz Oro, Inc., 176 Ill.2d
385, 680 N.E.2d 283, 223 Ill.Dec. 550 (1997); Dudek, Inc. v. Shred Pax Corp.,
254 Ill.App.3d 862, 626 N.E.2d 1204, 223 Ill.Dec. 653 (1st Dist. 1993).
Pleading
When deciding whether facts have been sufficiently stated to allege a cause of
action, courts look to the plain and fair intendment of counterclaimant’s language
and will consider facts which may reasonably be implied from such language.
Moroni v. Intrusion-Prepakt, Inc., 24 Ill.App.2d 534, 165 N.E.2d 346, (1960).
A counterclaim is an affirmative action and must contain all of the elements of an
original action. Holzmann v. Holzmann, 4 Ill.App.2d 82, 123 N.E.2d 351 (1954).
[Emphasis added.]
Filing
A party does not have an absolute right to file counterclaim any time he wishes.
National Educational Music Co., Ltd. v. Rieckhoff, 292 Ill.App.3d 260, 684
N.E.2d 1084, 226 Ill.Dec. 88 (4th Dist. 1997). [Emphasis added.]
If a counterclaim is filed, it is required to be filed as part of the answer. National
Educational Music Co., Ltd. v. Rieckhoff, 292 Ill.App.3d 260, 684 N.E.2d 1084,
226 Ill.Dec. 88 (4th Dist. 1997).
However, a party may obtain leave of court to file a counterclaim after it has filed
an answer. The decision to grant leave to file a counterclaim rests within the
discretion of the trial court. Scentura Creations, Inc. v. Long, 325 Ill.App.3d 62,
756 N.E.2d 451, 258 Ill.Dec. 469 (2d Dist. 2001).
11
Where a counterclaim was filed without leave of court and was not filed with the
original answer, it was within the court’s discretion to strike the counterclaim.
Wolf v. Parker Holsman Co., 309 Ill.App. 446, 33 N.E.2d 235 (App. 1941).
Amending complaint
In determining whether to grant a party leave to amend a pleading, a court should
consider the timeliness of the amendment and whether other parties have been
prejudiced or surprised by the proposed amendment. Scentura Creations, Inc. v.
Long, 325 Ill.App.3d 62, 756 N.E.2d 451, 258 Ill.Dec. 469 (2d Dist. 2001).
(Emphasis added.)
A counterclaim is a complete pleading in itself and does not need to be replead
each time the original complaint is amended in order to preserve the effect it has
on the subsequent complaint. Anderson v. Sconza, 179 Ill.App.3d 202, 534
N.E.2d 445, 128 Ill.Dec. 263 (1st Dist. 1989) (Emphasis added.); Norhtbrook
National Ins. Co. v. Nehoc Advertising Service, Inc., 196 Ill.App.3d 448, 554
N.E.2d 251, 143 Ill.Dec. 316 (1st Dist. 1989).
Dismissal of Complaint
Where the counterclaim sets up new facts and prays for affirmative relief and
establishes grounds by which the jurisdiction of the court may be upheld
independent of original complaint, dismissal of complaint does not dismiss the
counterclaim. Wilson-Jump Co. v. McCarthy-Hundrieser and Assoc., Inc., 85
Ill.App.3d 179, 405 N.E.2d 1322, 40 Ill.Dec. 230 (1980). (Emphasis added.)
3.
Affirmative Defenses
Identified above, the difference between a counterclaim and an affirmative defense is
significant. An affirmative defense is a defense on the merits, and the party asserting the
affirmative defense is not seeking affirmative damages or relief. An affirmative defense, in its
most simple form, identifies an action of the plaintiff as impinging the plaintiff’s right to recover.
Whereas a counterclaim pleads facts which entitle a defendant to recover from the plaintiff.
a.
Section 5/2-613 - Separate counts and defenses
(a) Parties may plead as many causes of action, counterclaims, defenses, and matters in
reply as they may have, and each shall be separately designated and numbered.
(b) When a party is in doubt as to which of two or more statements of fact is true, he or
she may, regardless of consistency, state them in the alternative or hypothetically in the
same or different counts or defenses. A bad alternative does not affect a good one.
12
(c) Defenses to jurisdiction of the subject matter or in abatement or in bar may be pleaded
together, without waiving any defense so pleaded, but the court may order defenses to
jurisdiction of the subject matter or in abatement to be tried first. An answer containing
only defenses to jurisdiction of the subject matter or in abatement does not constitute an
admission of the facts alleged in the complaint, counterclaim or third-party complaint.
(d) The facts constituting any affirmative defense, such as payment, release, satisfaction,
discharge, license, fraud, duress, estoppel, laches, statute of frauds, illegality, that the
negligence of a complaining party contributed in whole or in part to the injury of which
he complains, that an instrument or transaction is either void or voidable in point of law,
or cannot be recovered upon by reason of any statute or by reason of nondelivery, want or
failure of consideration in whole or in part, and any defense which by other affirmative
matter seeks to avoid the legal effect of or defeat the cause of action set forth in the
complaint, counterclaim, or third-party complaint, in whole or in part, and any ground or
defense, whether affirmative or not, which, if not expressly stated in the pleading would
be likely to take the opposite party by surprise, must be plainly set forth in the answer or
reply. [Emphasis added.]
Case Law:
Purpose
Statute requiring that affirmative defenses be expressly set forth in answer or
reply is to avoid surprise to an opposite party. City of Chicago v. Brgard, 285
Ill.App.3d 478, 673 N.E.2d 1082, 220 Ill.Dec. 661 (1st Dist. 1996); Halladay v.
Boyd, 285 Ill.App.3d 1006, 675 N.E.2d 262, 221 Ill.Dec. 355 (1st Dist. 1996).
Alternative Pleading
At the pleading stage, where the issue is solely the sufficiency of the pleadings
and whether plaintiffs can conceivably prove a set of facts which would entitle
them to recovery, plaintiffs may plead factual allegations and legal theories in the
alternative and, at trial, choose which theories of recovery to pursue. Bureau
Service Co. v. King, 308 Ill.App.3d 835, 721 N.E.2d 159, 242 Ill.Dec. 191 (3rd
Dist. 1999).
Where a party lacks knowledge of facts, he may plead inconsistently. Daehler v.
Oggoian, 72 Ill.App.3d 360, 390 N.E.2d 417, 28 Ill.Dec. 250 (1st Dist. 1979).
However:
Alternative pleading is not permitted when the pleader must know which of the
inconsistent averments is true and which is false. Church v. Adler, 350 Ill.App.
471, 113 N.E.2d 327 (1953).
Alternative Pleading & Admissions
13
Alternative fact allegations, made in good faith and based on genuine doubts are
not admissions against interest and are not admissible in evidence against the
pleader. Nystrom v. Bub, 36 Ill.App.2d 333, 184 N.E.2d 273 (1962).
For example, a hospital’s third-party complaint against a physician for indemnity
and contribution could not be introduced in a wrongful death medical malpractice
action as an admission of facts alleged therein, where the complaint was pled in
the alternative to the hospital’s answer to the original complaint. Patch v. Glover,
248 Ill.App.3d 562, 618 N.E.2d 583, 188 Ill.Dec. 13 (1st Dist. 1993).
Generally
An affirmative defense is raised by defendant, and if plaintiff is convinced that
facts set up do constitute affirmative defense, he then files a reply to arrive at
issue as to such facts, otherwise he moves to strike such alleged defense on basis
that in law it does not constitute a defense. Noyes v. Gold, 310 Ill.App. 1, 34
N.E.2d 1 (1941).
Usury is an affirmative defense. Andrews v. Cramer, 256 Ill.App.3d 766, 629
N.E.2d 133 (1st Dist. 1993).
Accord and satisfaction is an affirmative defense. Employment Counsel v. Szarek,
350 Ill.App. 201, 112 N.E.2d 524 (1953).
Provocation in a dramshop case is an affirmative defense. Tresch v. Nielsen, 57
Ill.App.2d 469, 207 N.E.2d 109 (1965).
Arbitration is an affirmative defense which must be expressly stated in pleading.
International Ass’n of Firefighters Local No. 23 V. City of East St. Louis, 213
Ill.App.3d 91, 571 N.E.2d 1198, 157 Ill.Dec. 179 (5th Dist. 1991).
Assumption of the risk is recognized as an affirmative defense in products
liability cases. Russo v. Range, Inc., 76 Ill.App.3d 236, 395 Ne. 2d 10, 32 Ill.Dec.
63 (1st Dist. 1979).
Governmental tort immunity under Tort Immunity Act must be raised and applied
as an affirmative defense or else it is waived, even if evidence supports existence
or appropriateness of the defense. Martin v. Chicago Housing Authority, 264
Ill.App.3d 1063, 637 N.E.2d 506, 201 Ill.Dec. 917 (1st Dist. 1994).
Statutes of limitations are affirmative defenses. Paxson v. Bd. of Ed., 276
Ill.App.3d 912, 658 N.E.2d 1309, 213 Ill.Dec. 288 (1st Dist. 1995); See also
Goldman v. Walco Tool & Engineering Co., 243 Ill.App.3d 981, 614 N.E.2d 42,
184 Ill.Dec. 841 (1st Dist. 1993).
14
Lack of standing is an affirmative defense. Amtech Systems Corp. v. Illinois State
Toll Highway Authority, 264 Ill.App.3d 1095, 637 N.E.2d 619, 202 Ill.Dec. 80 (1st
Dist. 1994).
Failure to mitigate damages is an affirmative defense which must be pleaded and
proved by defendant. Rozny v. Marnul, 43 Ill.2d 54, 250 N.E.2d 656 (1969).
Contributory negligence is an affirmative defense which must be pled, however,
plaintiff bears no burden to prove absence of contributory negligence. Carlson v.
City Construction Co., 239 Ill.App.3d 211, 606 N.E.2d 400, 179 Ill.Dec. 568 (1st
Dist. 1992).
Failure or want of consideration is an affirmative defense in an action on a note,
and must be specifically pled. M. Loeb Corp. v. Brychek, 98 Ill.App.3d 1122, 424
N.E.2d 1193, 54 Ill.Dec. 290 (1st Dist. 1981).
Novation is an affirmative defense to a contract action. Phillips and Arnold, Inc.
v. Frederick J. Borgsmiller, Inc. 123 Ill.App.3d 95, 462 N.E.2d 924, 78 Ill.Dec.
805 (5th Dist. 1984).
Breach of implied warranty of habitability is an affirmative defense which must
be pleaded. Vanlandingham v. Ivanow, 246 Ill.App.3d 348, 615 N.E.2d 1361,
186 Ill.Dec. 304 (4th Dist. 1993).
What Constitutes an Affirmative Defense
Test for whether defense is affirmative defense which must be pled is whether
defense gives color to opposing party’s claim and then asserts new matter by
which apparent right is defeated. Ferris Elevator Co. v. Neffco, Inc., 285
Ill.App.3d 701, 674 N.E.2d 449, 220 Ill.Dec. 906 (3rd Dist. 1996).
Facts constituting any affirmative defense must be plainly set forth in answer or
reply to complaint, so as to give color to the opposing party’s claim and assert a
new matter by which the apparent right is defeated. Goldman v. Walco Tool &
Engineering Co., 243 Ill.App.3d 981, 614 N.E.2d 42, 184 Ill.Dec. 841 (1st Dist.
1993).
Timeliness
Circuit court may allow defendant to file amended answer containing affirmative
matter at any time prior to final judgment. Rognant v. Palacios, 224 Ill.App.3d
418, 586 N.E.2d 686, 166 Ill.Dec. 728 (1st Dist. 1991).
Allowing a defendant in a personal injury action to file affirmative defense of
contributory negligence three days before trial was not prejudicial; the defense
had been raised earlier by another defendant and plaintiff did not claim surprise
15
before trial court or ask for additional time to prepare to meet the defense. Healy
v. Bearco Management Inc., 216 Ill.App.3d 945, 576 N.E.2d 1195, 160 Ill.Dec.
241 (2d Dist. 1991).
Waiver
Failure to raise affirmative defense constitutes waiver of that defense. Mountain
States Mortgage Center, Inc. v. Allen, 257 Ill.App.3d 372, 628 N.E.2d 1052, 195
Ill.Dec. 588 (1st Dist. 1983).
Affirmative defense which is not timely pleaded cannot be considered, even if the
evidence suggests its existence. First National Bank of Lake Forest v. Village of
Mendelein, 166 Ill.App.3d 83, 519 N.E.2d 476, 116 Ill.Dec. 584 (2d Dist. 1988).
Failure to Reply
Failure of a party to reply to new matters raised by way of affirmative defense
constitutes admission of those allegations. Romano v. Village of Glenview, 277
Ill.App.3d 406, 660 N.E.2d 56, 213 Ill.Dec. 799 (1st Dist. 1995).
Burden of Proof
Burden of proving an affirmative defense is on the party asserting it. Baylor v.
Thiess, 2 Ill.App.3d 582, 277 N.E.2d 154 (1971).
4.
Class Action Requirements
A class action is a term familiar to nearly all practitioners. However, the requirements
for properly pleading and maintaining a class-action may be unclear, given the case law
surrounding certifying a class. There is a difference between a class action and consolidating
similarly situated plaintiffs or defendants. Below is the statute identifying the requirements for
maintaining a class action in the State of Illinois. The requirements of a class action in state
court are similar to those brought in federal court: numerosity, commonality, representativeness,
and appropriateness.
Alternatively, a party can request that two or more cases be consolidated for discovery or
trial purposes. The statute and relevant case law is contained below. While not necessarily
pleadings, per se, consolidation and class action certification are important considerations at the
outset of litigation.
a.
Section 5/2-801: Prerequisites for the maintenance of a class action. (735 ILCS 5/2801).
An action may be maintained as a class action in any court of this State and a party may
sue or be sued as a representative party of the class only if the court finds:
(1)
The class is so numerous that joinder of all members is impracticable.
16
(2)
(3)
(4)
There are questions of fact or law common to the class, which common
questions predominate over any questions affecting only individual
members.
The representative parties will fairly and adequately protect the interest of
the class.
The class action is an appropriate method for the fair and efficient
adjudication of the controversy.
Case Law:
Pleadings
A plaintiff needs to allege a viable individual cause of action, indicate that claim
is being brought as a class action lawsuit, and contain factual allegations that are
broad enough in scope to establish possible existence of class action suit. Weiss v.
Watehouse Securities, Inc., 335 Ill.App.3d 875, 781 N.E.2d 1105 269 Ill.Dec. 915
(1st Dist. 2002).
A lawsuit does not qualify as a class action merely because parties allege that it is
a class action. Kittay v. Allstate Ins. Co., 78 Ill.App.3d 335, 397 N.E.2d 200, 33
Ill.Dec. 867 (1st Dist. 1979).
Prerequisites
For an action to maintained as a class action, trial court must find four
prerequisites: class is so numerous that joinder of all members is impracticable,
there are questions of fact or law common to class which predominate over any
questions affecting only individual members, representative parties will fairly and
adequately protect interest of class, and class action is appropriate method for fair
and efficient adjudication of controversy. Gordon v. Boden, 224 Ill.App.3d 195,
586 N.E.2d 461, 166 Ill.Dec. 503 (1st Dist. 1991).
b.
Section 5/2-1006. Consolidation and severance of cases. (735 ILCS 5/2-1006).
An action may be severed, and actions pending in the same court may be consolidated, as
an aid to convenience, whenever it can be done without prejudice to a substantial right.
17
5.
Punitive Damages
Punitive damages are an often contemplated but rarely pursued element of
damages. Given the case law, it is clear that obtaining punitive damages is an uphill
battle. However, if a party has the necessary evidence to bring before the trial court to
move to amend its complaint to add a punitive component, it can increase the moving
party’s bargaining power and increase the value of the case.
Section 5/2-604.1 - Pleading of punitive damages 1
In all actions on account of bodily injury or physical damage to property, based
on negligence, or product liability based on strict tort liability [any theory or
doctrine], where punitive damages are permitted no complaint shall be filed
containing a prayer for relief seeking punitive damages. However, a plaintiff
may, pursuant to a pretrial motion and after a hearing before the court, amend the
complaint to include a prayer for relief seeking punitive damages. The court shall
allow the motion to amend the complaint if the plaintiff establishes at such
hearing a reasonable likelihood of proving facts at trial sufficient to support an
award of punitive damages. Any motion to amend the complaint to include a
prayer for relief seeking punitive damages shall be made not later than 30 days
after the close of discovery. A prayer for relief added pursuant to this Section
shall not be barred by lapse of time under any statute prescribing or limiting the
time within which an action may be brought or right asserted if the time
prescribed or limited had not expired when the original pleading was filed.
[Emphasis added.]
Case Law:
Application
Statute governing pleading of punitive damages provides that no
complaint based upon bodily injury can contain prayer for punitive
damages and that a plaintiff may move for a pretrial hearing thereby
seeking leave to amend the complaint to include a prayer for punitive
damages, but must do so within 30 days of the close of discovery.
Masciola v. Chicago Metropolitan Ski Council, 257 Ill.App.3d 313, 628
N.E.2d 1067, 195 Ill.Dec. 603 (1st Dist. 1993).
Failure to seek leave of court
Failure to seek and obtain leave of court before filing a claim for punitive
damages can warrant the imposition of Rule 137 sanctions for frivolous
1
The act which amended this Section, P.A. 89-7, was held unconstitutional in its
entirety by Best v. Taylor Machine Works, 179 Ill.2d 367, 689 N.E.2d
1057, 228 Ill.Dec. 636 (1997). The language added by P.A. 89-7 is
contained in brackets.
18
pleadings. Penn v. Gerig, 334 Ill.App.3d 345, 778 N.E.2d 325, 268
Ill.Dec. 339 (4th Dist 2002).
Additionally, the trial court can strike a punitive damage claim from a
complaint where the filing party failed to obtain leave of court. Halle v.
Robertson, 219 Ill.App.3d 564, 579 N.E.2df 1243, 162 Ill.Dec. 429 (2d
Dist. 1991).
Complaint not entirely based on negligence
Even where a complaint is based partially on negligence, the filing party is
precluded from seeking punitive damages without first obtaining leave of
court. McCann v. Presswood, 308 Ill.App.3d 1068, 721 N.E.2d 811, 242
Ill.Dec. 532 (4th Dist. 1999).
Standard
Punitive or exemplary damages may be awarded when torts are committed
with fraud, actual malice, deliberate violence or oppression, or when the
defendant acts willfully, or with such gross negligence as to indicate a
wanton disregard of the rights of others. Barton v. Chicago and North
Western Transportation Co., 325 Ill.App.3d 1005, 757 N.E.2d 533, 258
Ill.Dec. 844 (1st Dist. 2001).
Punitive damages are not awarded for acts of ordinary negligence.
Stojkovich v. Monadnock Bldg., 281 Ill.App.3d 733, 666 N.E.2d 704, 217
Ill.Dec. 35 (1st Dist. 1996).
Question of law reserved for trial judge
Whether the circumstances of a given case justify an award of punitive
damages is a question of law to be decided by the trial judge. Stojkovich
v. Monadnock Bldg., 281 Ill.App.3d 733, 666 N.E.2d 704, 217 Ill.Dec. 35
(1st Dist. 1996).
Question of fact for the jury
While it is a question of law for the trial judge to determine whether the
circumstances of a given case can justify an award of punitive damages,
whether the defendant’s conduct was sufficiently willful and wanton to
justify the imposition of punitive damages is a question of fact for the jury
to decide. Cruthis v. First Star Bank, 2004 WL 2809999; Smith v. Hill, 12
Ill.2d 588, 595, 147 N.E.2d 321 (1958).
6.
Verified Pleadings & Exhibits
Verified pleadings require attention at the outset of the litigation. Every
subsequent pleading following a verified complaint must also be verified, unless excused
by the court. Failing to identify a complaint as verified can result in wasted time and
19
effort. However, failing to object to an unverified answer will waive the objection. Civil
procedure, as mentioned before, is largely self-correcting, and the ultimate goal is to
efficiently and effectively maximize the time we spend on a case.
Section 5/2-605 - Verification of Pleadings (735 ILCS 5/2-605)
(a) Any pleading, although not required to be sworn to, may be verified by the
oath of the party filing it or of any other person or persons having knowledge of
the facts pleaded. Corporations may verify by the oath of any officer or agent
having knowledge of the facts pleaded. If any pleading is so verified, every
subsequent pleading must also be verified, unless verification is excused by the
court. In pleadings which are so verified, the several matters stated shall be stated
positively or upon information and belief only, according to the fact. Verified
allegations do not constitute evidence except by way of admission.
(b) The allegation of the execution or assignment of any written instrument is
admitted unless denied in a pleading verified by oath, except in cases in which
verification is excused by the court. If the party making the denial is not the
person alleged to have executed or assigned the instrument, the denial may be
made on the information and belief of that party.
[Emphasis added.]
Case Law:
General rule
Generally, civil pleadings need not be verified; however, where a pleading
is verified, all subsequent pleadings must be verified, unless excused by
the court. In re Andrea D., 342 Ill.App.3d 233, 794 N.E.2d 1043, 276
Ill.Dec. 793, (2d Dist. 2003); Pinnacle Corp. v. Village of Lake in the
Hills, 258 Ill.App.3d n205, 630 N.E.2d 502, 196 Ill.Dec. 567 (2d Dist.
1994).
Amended pleadings
Although an original pleading was verified, an amended pleading need not
be verified. In re Andrea D., 342 Ill.App.3d 233, 794 N.E.2d 1043, 276
Ill.Dec. 793, (2d Dist. 2003).
Failure to verify pleadings
Where a pleading is verified, and subsequent pleadings are not verified, it
is as if the unverified pleading was never filed, and it must be disregarded.
Pinnacle Corp. v. Village of Lake in the Hills, 258 Ill.App.3d 205, 630
N.E.2d 502, 196 Ill.Dec. 567 (2d Dist. 1994).
However:
20
Where a party files a subsequent, unverified answer, and where no
objection to the unverified answer is asserted, the objection is waived. In
re County Collector, 295 Ill.App.3d 711, 692 N.E.2d 1290 (1st Dist. 1998)
citing Padgett v. A & M Insulation Co., 266 Ill.App.3d 320, 323, 640
N.E.2d 21, 203 Ill.Dec. 594 (1994) (the purpose of requiring that defects
in pleadings be attacked by motion is to allow the parties to cure them
before trial.)
Attorney verification
An attorney having personal knowledge of facts set out in the pleadings
may verify the document. Schwartz v. Great Cent. Insurance Co., 188
Ill.App.3d 264, 544 N.E.2d 131, 135 Ill.Dec. 774 95th Dist 1989). Where
an attorney has personal knowledge of the facts set out in the pleadings,
the verification has the same effect as if the party signed the pleading
themselves. Bank v. Coleman Air Transport, 134 Ill.App.3d 699, 481
N.E.2d 54, 89 Ill.Dec. 702 (1st Dist. 1985).
Section 5/2-606 - Exhibits (735 ILCS 5/2-606)
If a claim or defense is founded upon a written instrument, a copy thereof, or of so
much of the same as is relevant, must be attached to the pleading as an exhibit or
recited therein, unless the pleader attaches to his or her pleading an affidavit
stating facts showing that the instrument is not accessible to him or her. In
pleading any written instrument a copy thereof may be attached to the pleading as
an exhibit. In either case the exhibit constitutes a part of the pleading for all
purposes.
Case Law:
Generally
The statute providing that exhibits are considered to be part of a complaint
generally applies to instruments being sued upon, such as contracts or
agreements. Garrison v. Choh, 308 Ill.App.3d 48, 719 N.E.2d 237, 241
Ill.Dec. 376 (1st Dist. 1999).
Required Exhibits
This paragraph requires the attachment to complaint of only those
instruments upon which action is brought and does not contemplate
annexation of every paper which may properly be offered in evidence.
Heuvelman v. Triplett Elec. Instrument Co., 23 Ill. App.2d 231, 161
N.E.2d 875 (1959).
Part of the Pleadings
21
Any document attached to the pleading will be treated as part of the
pleading if the pleading specifically incorporates it by reference. Garrison
v. Choh, 308 Ill.App.3d 48, 719 N.E.2d 237, 241 Ill.Dec. 376 (1st Dist.
1999).
Attachment of a promissory note to complain without specific reference to
the identified instrument in the body of the complaint was a violation of
this paragraph. Wolford v. Household Finance Corp., 105 Ill.App.3d
1102, 435 N.E.2d 528, 61 Ill.Dec. 831 (4th Dist. 1982).
Pleadings must make reference to specifically identified instrument and it
must be made clear that instrument is intended to be incorporated as part
of the pleadings for that instrument to be made part of the pleading. Camp
Creed Duck Farm, Inc. v. Shell Oil Co., 103 Ill.App.3d 81, 430 N.E.2d
385, 58 Ill.Dec. 443 (4th Dist. 1981).
When Document is Unavailable
Insured who did not attach a copy of the automobile policy to pleadings,
but who pled that he did not have a copy of the policy in his possession,
described the policy in the body of the complaint, and was sworn and
subscribed to, substantially complied with this paragraph. Christoffel v.
Country Mutual Insurance Co., 183 Ill.App.3d 32, 538 N.E.2d 1171, 131
Ill.Dec. 615 (5th Dist. 1989).
Facts Contained in Exhibit
Facts stated in exhibits attached to a complaint are considered as having
been alleged in the complaint. First Nat’l Bank of Oak Lawn v. Minke, 99
Ill.App.3d 10, 425 N.E.2d 11, 54 Ill.Dec. 499 (1st Dist 1981).
Conflicts Between Pleadings and Exhibit
Where there is a conflict between the allegations contained in pleadings
and the facts disclosed in attached exhibits, the allegations in the pleadings
are not admitted as true, rather, the exhibit controls. Evers v. Edward
Hospital Ass’n., 247 Ill.App.3d 717, 617 N.E.2d 1211, 187 Ill.Dec. 490
(2d Dist. 1993).
However:
When an exhibit is not an instrument upon which the claim or defense is
founded but, rater, is merely evidence supporting the pleaders allegations,
the rule that the exhibit controls over conflicting averments in the pleading
is inapplicable. Garrison v. Choh, 308 Ill.App.3d 48, 719 N.E.2d 237,
241 Ill.Dec. 376 (1st Dist. 1999).
See also Bajwa v. Metropolitan Life
Ins. Co., 208 Ill.2d 414, 804 N.E.2d 519, 281 Ill.Dec. 554 (2004).
22
7.
Bill of Particulars
A bill of particulars is a defense tool to sharpen the focus of the plaintiff’s
complaint. Often, a bill of particulars is filed when the allegations contained in the
plaintiff’s complaint fail to clearly identify the basis for the complaint or the cause of
action. A complaint may be well-pled but fail to provide the defendant with information
sufficient to defend the claims. A bill of particular is a tool that plaintiff’s can use when
faced with a counterclaim, for the same purpose.
Section 5/2-607 - Bills of particulars
(a)Within the time a party is to respond to a pleading, that party may, if
allegations are so wanting in details that the responding party should be entitled to
a bill of particulars, file and serve a notice demanding it. The notice shall point
out specifically the defects complained of or the details desired. The pleader shall
have 28 days to file and serve the bill of particulars, and the party who requested
the bill shall have 28 days to plead after being served with the bill.
(b)If the pleader does not file and serve a bill of particulars within 28 days of the
demand, or if the bill of particulars delivered is insufficient, the court may, on
motion and in its discretion, strike the pleading, allow further time to furnish the
bill of particulars or require a more particular bill to be filed and served.
(c)If a bill of particulars, in an action based on a contract, contains the statement
of items f indebtedness and is verified by oath, the items thereof are admitted
except in so far as the opposite party files an affidavit specifically denying them,
and as to each item denied states the facts upon which the denial is based, unless
the affidavit is excused by the court.
(d)If the party on whom a demand for a bill of particulars has been made believes
that the party demanding it is not entitled to the particulars asked for, he or she
may move the court that the demand be denied or modified.
Case Law:
Purpose
Where allegations of a pleading are wanting in details, opposing party is
entitled to a bill of particulars. In Interest of Walton, 79 Ill.App.3d 485,
398 N.E.2d 409, 34 Ill.Dec. 734 (1979); City of Chicago v. Hertz
Commercial leasing Corp, 38 Ill.App.3d 835, 349 N.E.2d 902 (1976;
Hemingway v. Skinner Engineering Co., 117 Ill.App.2d 452, 254 N.E.2d
133 (1969).
A pleader is obligated to set out ultimate facts that support the cause of
action and legal conclusions unsupported by allegations of specific facts
23
are insufficient. Kling v. Landry, 292 Ill.App.3d 329, 335, 686 N.,E.2d
33, 226 Ill.Dec. 684 (2d Dist 1997) citing Estate of Johnson v. Condell
Memorial Hospital, 119 Ill.2d 496, 509-10, 520 N.E.2d 37, 117 Ill.Dec. 47
(1988).
Failure to produce bill
Court is not permitted to dismiss plaintiff’s complaint with prejudice as a
sanction for failing to provide a bill of particulars. The most severe
sanction authorized by the rule is striking the pleading to which the bill
relates. Kling v. Landry, 292 Ill.App.3d 329, 686 N.E.2d 33, 226 Ill.Dec
684 (2d Dist. 1997).
The most severe sanction authorized is the striking of the pleading to
which the bill of particulars relates. Bejda v. SGL Industries, Inc., 82
Ill.2d 322, 329 412 N.E.2d 464, 45 Ill.Dec. 113 (1980).
Insufficient bill
Proper remedy when the bill of particulars produced is deficient is to strike
the pleading to which the bill of particulars relates. Porter v. UrbanaChampaign Sanitary District, 237 Ill.3d 296, 604 N.E.2d 393 (4th Dist.
1992).
Upon motion, the court may require that a party produce a more sufficient
bill of particulars. Martin v. Svoboda, 335 Ill.App. 379, 82 N.E.2d 76
(1948).
Dismissal of a complaint with prejudice for failure to provide a bill of
particulars is not permitted by section 2-607 of the Code. Kling v. Landry,
292 Ill.App.3d 329, 335, 686 N.,E.2d 33, 226 Ill.Dec. 684 (2d Dist 1997)
citing Bejda v. SGL Industries, Inc., 82 Ill.2d 322, 329 412 N.E.2d 464, 45
Ill.Dec. 113 (1980).
The most severe sanction authorized is the striking of the pleading to
which the bill of particulars relates. Bejda v. SGL Industries, Inc., 82
Ill.2d 322, 329 412 N.E.2d 464, 45 Ill.Dec. 113 (1980).
Amendment of bill
Amendment of bill of particulars lies within the sound discretion of the
trial court. Harris v. Faultfinders, Inc. 103 Ill.App.3d 785, 431 N.E.2d
1205, 59 Ill.Dec. 448 (1st Dist. 1981).
Part of pleadings
A bill of particulars is part of the complaint which it particularizes. City of
Chicago v. Hertz Commercial Leasing Corp., 38 Ill.App.3d 835, 349
N.E.2d 902 (1976).
24
Amending complaint
Where a plaintiff files an amended complaint and the defendant fails to
demand a bill of particulars, the previous demand for a bill of particulars is
waived. Chicago v. Hertz Commercial Leasing Corp., 38 Ill.App.3d 835,
349 N.E.2d 902 (1976).
8.
Illinois Supreme Court Rules
In addition to the Code of Civil Procedure (735 ILCS 5/2, et seq.), the Illinois
Supreme Court Rules contain certain requirements for properly pleading and answering a
complaint.
Rule 131: Form of Papers
a) Legibility
b) Titles
c) Multiple Parties
d) Name, Address and Telephone Number of Responsible Attorney or
Attorneys
Rule 133: Pleading Breach of Statutory Duty; Judgment or Order; Breach of
Condition Precedent
a) Statutory duty
b) Judgment or Order
c) Condition Precedent
Rule 135: Pleading Equitable Matters
a) Single Equitable Cause of Action
b) Joinder of Legal and Equitable Matters
Rule 137: Signing of Pleadings, Motions and Other Papers - Sanctions
Rule 181: Appearances - Answers - Motions
a) When Summons Requires Appearance Within 30 Days After Service
b) When Summons Requires Appearance on Specified Day
Rule 182: Time for Pleadings and Motions Other than those Directed to Complaint.
a) Replies
b) Responding to Counterclaims
c) Motions
Other Resources:
1.
Illinois State Bar Association Website (www.isba.org)
2.
The Illinois Trial Practice Weblog (www.illinoistrialpractice.com)
25
CIVIL PRACTICE UPDATE:
PRE-SUIT CONSIDERATIONS
Presentation By
Cathy A. Pilkington, Esq.
Law Offices of Cathy A. Pilkington
For The Illinois State Bar Association
Civil Practice Committee
2013
I.
PERSONAL JURISDICTION - SPECIFIC, GENERAL AND LONG ARM1
A.
Section 209 Cases
1. Aason v. Delaney, 2011 Ill. App. (2d) 101125 (12/2/11)
§ 2-209. Illinois consulting company brought fraud and breach of contract action against
non-resident New York computer consultant and her limited liability company. Based solely on
documentary evidence, the Trial Court dismissed for lack of personal jurisdiction. Appellate
review was de novo. The Second District Appellate Court reversed. "Minimum contacts"
analysis depends on whether general or specific personal jurisdiction is asserted. General
jurisdiction exists when company has an office and regularly transacts business in a forum.
Specific jurisdiction exists when the Defendant purposefully directs activities at the forum's
residents and the cause of action arouse out of those contacts. The contract contained a (nondispositive) Illinois forum selection clause. Defendants argued that their work was not directed
toward Plaintiff, but rather the clients, none of whom were Illinois residents. The Second District
Appellate Court found Defendants' relationship with Plaintiff to be the central component to the
contractual relationship. Defendants failed to establish a compelling case that being required to
defend in Illinois was unfair, and the contractual forum selection clause would severely undercut
any argument that defending in Illinois was unfair.
2.
Bell v. Don Prudhomme Racing, 405 Ill.App.3d 223 (2010).
Plaintiff, a terminated employee sued former employer, a California corporation allegedly
doing business in Champaign County, Illinois. Defendant filed a Section 2-301 motion to
dismiss for lack of personal jurisdiction asserting no contract was signed in Illinois and no
tortious act occurred in Illinois. Defendant attached an affidavit that it had no Illinois office, but
that its crew did two events in Illinois and maintained that the decision to terminate occurred in
California. Plaintiff responded with a counter-affidavit describing Illinois activity and
maintained that he was terminated by phone while at his home in Illinois. The First District
Appellate Court held that the actual tort of retaliatory discharge occurred when Defendant
communicated the termination to Plaintiff in Illinois, rather than when the decision to terminate
was made in California. Defendant was thus required to defend the claim for retaliatory
discharge in Illinois.
3.
Old Orchard v. Rosen, 389 Ill.App.3d 58 (1st Dist. 2009), leave to appeal denied,
233 Ill.2d 564 (2009)
Following entry of default judgment in Federal Court against dissolved parent holding
company of commercial lessee, lessor brought action against Canadian parent corporation,
seeking declaration that lessee and holding company were parent's alter egos and requesting
enforcement of default judgment against parent. Canadian parent filed special appearance and
1
Vyta Zukauskaite and Carin Sporrer, Candidates for the Illinois Bar, and Law Clerks at Law Offices of Cathy A.
Pilkington, assisted Ms. Pilkington in the preparation of this paper.
2
motion to dismiss for lack of personal jurisdiction. The trial court granted the motion and
dismissed. The First District Appellate Court held that no general jurisdiction over non-resident
parent exists unless the trial court finds subsidiary is actually conducting parent's business rather
than its own. For specific jurisdiction over a non-resident parent based on agency, the question
is whether the parent is using subsidiary to shield from lawsuits. Courts look to unity of interest
and ownership. However, common officers and directors who shared office space is insufficient.
Exercise of personal jurisdiction of a subsidiary's parent simply because it is a parent is not
permitted in Illinois.
4.
Community Merchant Services, Inc. v. Jonas, 354 Ill.App.3d 1077,822 NE.2d 515,
290 Ill. Dec. 930 (4th Dist. 12/23/04)
§ 2-209. Community Merchant, an independent ATM operator, filed a complaint in the
Circuit Court of McLean County based on a letter agreement and a signed addendum for the sale
of its business, Kahuna. Community Merchant alleged breach of contract and other claims
against two Colorado corporations, Cash Resources and CTV, as well as the President, Jonas,
based on a claimed default on the contract for purchase. CTV admitted personal jurisdiction.
Cash Resources and Jonas challenged personal jurisdiction. The Fourth District Appellate Court
reviewed Section 2-209(b)(4) for a "foreign corporation found to be doing business within the
state" as well as Section 2-209(a)(1)'s alternative for "transaction of business in the state and the
cause of action arises from that activity." The Fourth District Appellate Court found both that
Cash Resources was doing business in the State and also that long-arm jurisdiction existed by
virtue of the signed contract, the meetings and other communications within the State as well as
the performance within the State.
Morecambe Maritime v. National Bank of Greece, 354 Ill.App.3d 707, 821 N.E.2d
5.
780,290 Ill. Dec. 468 (1st Dist. 12/23/2004) .
Liberian corporation brought suit against a Greek Bank in the Circuit Court of Cook
County for breach of contract. The Greek Bank had sold its Chicago Branch, but had a local
subsidiary. Approximately two years after the Bank sold its Chicago Branch, the parties entered
into a financing contract in London for a ship. As part of the contract, the parties agreed to
England as a governing law and venue choice. Subsequently, the ship was severely damaged.
After an insurance claim was paid, the Bank's employee agreed to forego. mortgage payments
while the ship was repaired. Employee lacked authority to make the agreement. Several
payments were missed, the debt was accelerated, and the loan was called due. Plaintiff sued, and
served the Greek Bank in Athens, Greece. The 'Greek .Bank moved for dismissal for lack of
personal jurisdiction. On appeal, Plaintiff contended that the Greek Bank's local subsidiary had
common officers, and such was sufficient to obtain personal jurisdiction over the Greek Bank.
Affirming the trial court's dismissal, the First District held that the existence of a local subsidiary
with common officers was insufficient to establish personal jurisdiction. The test for minimum
contacts, where a business contract is involved, requires consideration of the following factors:
(1) who initiated the contract; (2) where the negotiations occurred; (3) where payments were
made; and (4) where the decision makers were located. The governing law and venue provision
was held not dispositive, but relevant.
3
6.
Flanders v. California Coastal Communities, Inc., 356 Ill.App.3d 1113, 828
N.E.2d 793, 293 Ill. Dec. 483 (5th Dist. 2005)
§ 2-209. Discussing corporate successor liability and the long arm statute. This is a
wrongful death suit arising out of asbestos related cancer. Exposure allegedly occurred while
working at a Texaco Refinery on equipment manufactured by Kellogg Company. In the ensuing
50 years, Kellogg Company had been sold, merged, and spun-off and reverse spun-off at varying
times. The responsible successor corporate entity was unclear. The trial court narrowed the
probable responsible entities down to two suspects and decided to proceed against both of them.
The Fifth District Appellate Court held this procedure erroneous. To establish jurisdiction, the
trial judge was required to make a determination that one or the other was the successor
corporation. Without such a finding, no basis in law existed to proceed with the suit.
7.
Palen v. Daewoo Motor Company, Ltd, 358 Ill.App.3d 649, 832 N.E.2d 173, 295
Ill. Dec. 22 (1st Dist. 6/14/05)
§2-209(b)(4). Wrongful death case arising out of a car accident in Poland. Executors
filed suit against various Daewoo corporate entities. Based on corporate interrelationship, the
Executor argued that all corporate entities should be deemed one corporate entity for purposes
of the "doing business" provision of Section 2-209(b)(4). The determination whether a
corporation is doing business in Illinois varies with the facts of each case. As to whether the
defendant's contacts were directed toward Illinois, the factual inquiry is measured from the date
the cause of action arose to the date suit is filed. "Doing business" means not occasionally or
sporadically, but regularly. The First District distinguished precedent which finds personal
jurisdiction over a parent appropriate when the subsidiary is located in Illinois, and, due to the
high degree of control, the parent is effectively doing business through the subsidiary.
8.
West Virginia Laborers Pension Trust Fund v. Caspersen, 357 Ill.App.3d 673,
829 Ill.2d 843, 293 Ill.Dec. 918 (1st Dist. 2005)
A shareholder of a foreign corporation brought a class action against the non-resident
directors of the corporation arising out of a decline in the value of stock after a merger. The
shareholder alleged that the directors, while in New York, failed to conduct a proper due
diligence investigation before the merger and disseminated fraudulent merger materials as a
result of the failed investigation. The directors move to dismiss for lack of personal jurisdiction
and the motion was granted. The shareholder appealed making four arguments for personal
jurisdiction: (1) the directors caused a tortious act to occur in Illinois by disseminating the
merger materials to the shareholders in Illinois; (2) the directors made or performed a contract
connected with Illinois as both the corporation and the merged entity were headquartered in
Illinois; (3) the directors breached their fiduciary duty to the shareholders by disseminating the
fraudulent merger materials in Illinois and (4) personal jurisdiction was proper under a minimum
contacts analysis because the directors directed the merger materials to Illinois and traveled to
Illinois.
The First District affirmed. The First District held that first, as to tortious acts under
Section 2-209(a)(2) and breaches of fiduciary duty under Section 2-209(a)(11), when only an
4
economic harm is realized, merely feeling the harm in Illinois is not enough for personal
jurisdiction. There must be an intent to affect an Illinois interest. Thus, in the instant case the
situs of the tort was not where the harm was felt (Illinois), but where the due diligence
investigation occurred (New York). Next, the First District held that as to contracts made or
performed in Illinois under Section 2-209(a)(2), personal jurisdiction must be based on the acts
of the individuals, not the corporation. Here, the directors entered into the merger contract on
behalf of the corporation, not themselves; thus, no personal jurisdiction existed individually.
Finally, the First District held that under the minimum contacts analysis, due process does not
allow directors of a national corporation to be sued by shareholders anywhere the corporation
happens to be present. Thus, the mailing of merger materials and trips to Illinois were not the
type of act by which the directors could be deemed to have purposefully availed themselves of
the privileges of Illinois.
9.
Sullivan v. Kodsi, 2005 WI 2173662 (1st Dist. 2005)
A plaintiff in a partnership brought an action against his two partners for breach of the
partnership agreement The plaintiff later sought to amend the complaint to add a non-resident
trustee who administered the trust that was established by the partnership and administered in
Illinois. The trustee moved for dismissal based upon lack of personal jurisdiction and the motion
was granted. Plaintiff appealed. The First District reversed. The First District held that Illinois'
courts have jurisdiction over a trust and its trustee where the trust is administered in Illinois and
the cause of action regards the trust. The First District held that this rule is in line with Section 2209(a)(13) of the Code of Civil Procedure, which states Illinois' courts may exercise jurisdiction
over any person with an ownership interest in a trust administered in Illinois and who is
domiciled in Illinois or resides in Illinois when the cause of action arose. Additionally, the First
District found that requiring non-resident trustees to litigate in Illinois when the trust (and its
assets) were subject to Illinois jurisdiction and judgment did not offend traditional notions of fair
play and substantial justice under the minimum contacts analysis.
B.
10.
Dist. 2011)
“Stream of Commerce” Cases
Soria v. Chrysler Canada, Inc., 2011 Il App (2d) 101236, 354 Ill.Dec. 542, (2nd
Soria brought suit against Chrsyler Canada, and various other defendants, alleging
negligence which included the loss of Soria’s eyesight. During an automobile accident involving
a Chrysler minivan Soria was driving, the airbag deployed and sent out plastic fragments, hitting
Soria in the eye. Soria’s complaint alleged that Illinois had jurisdiction over Chrysler Canada, as
it knew that thousands of vehicles it manufactured were sold in the US, including Illinois.
Chrysler Canada moved to dismiss for lack of personal jurisdiction claiming it did not meet the
test for sufficient minimum contacts. The trial and appellate courts disagreed. The Second
District conducted an analysis of Supreme Court precedent, including broad and narrow
interpretations of, under the stream of commerce theory, what constitutes minimum contacts.
The Second District found evidence to satisfy even the narrow interpretation and ruled that
minimum contacts existed in the form of Chrysler Canada’s awareness that its products were
5
distributed in Illinois, as well as purposefully directing its activities toward Illinois. Chrysler
Canada was aware that 82% of its products are distributed within the United States, via an
established distribution channel. Chrysler Canada indirectly shipped its products into the United
States and Illinois, and continuously and intentionally serves or targets Illinois. The Second
District found Plaintiff’s injuries arose out of Chrysler’s conduct in Illinois, it is reasonable for
Illinois to exercise personal jurisdiction over Chrysler Canada, and such comports with the due
process clause of the Illinois Constitution. The trial court was affirmed.
11.
Goodyear Dunlop Tires Operations, S.A. v. Brown, ---U.S.---, 131 S.Ct. 2846
(2011)
Parents of two thirteen-year-old boys killed in a bus accident in France brought a lawsuit
in North Carolina against an Ohio tire manufacturer, and three of its subsidiaries organized and
operating in Luxembourg, Turkey, and France, alleging that the accident resulted from a
defective tire manufactured in Turkey at the tire manufacturer’s foreign subsidiary’s plant. The
foreign defendants moved to dismiss for lack of personal jurisdiction. The North Carolina
Superior Court, Onslow County denied the motions. On appeal, the North Carolina Court of
Appeals affirmed the lower state court. Because the claim arose outside of the United States, the
North Carolina courts relied on a general jurisdiction theory on the ground that the Defendants’
contacts in the state of North Carolina were sufficiently continuous and systematic to establish
general jurisdiction. Because the foreign defendants had no physical presence in North Carolina,
the North Carolina courts relied solely on the sales of tires manufactured by the Defendants in
North Carolina to establish these contacts--the “stream-of-commerce” theory to connect the
foreign defendants with North Carolina. The United States Supreme Court rejected the North
Carolina court’s application of the stream-of-commerce theory in a general jurisdiction context.
The Supreme Court explained that a flow of a manufacturer’s products into the forum might
bolster an affiliation germane to specific jurisdiction. However, ties serving to bolster the
exercise of specific jurisdiction do not support general jurisdiction over a defendant. Thus, the
Supreme Court held that North Carolina had no jurisdiction.
12.
Russell v. SNFA, 2011 IL App (1st) 093012-B (12/16/11)
Decedent died in helicopter crash in Illinois. Executor brought an action against a French
manufacturer, who manufactured the helicopter’s tail-rotor drive-shaft bearings, alleging that the
part was defective and caused the crash (i.e. product liability). The trial court dismissed for lack
of personal jurisdiction. The First District Appellate Court reversed. The First District concluded
that Illinois had specific jurisdiction over Defendant under Sections 2-209(a)(2) because the tort
occurred in Illinois and 2-209(c) because the injuries related to Defendant’s activities were
directed toward the Illinois. The First District discussed McIntyre’s reasoning and determined
that Defendant had minimum contacts in Illinois by way of Defendant’s chain of distribution.
Defendants had manufactured custom bearings with the understanding that parts would find their
way into USA-based helicopters and the injury and tort occurred in Illinois.
13.
J. McIntyre Machinery, Ltd. v. Nicastro, ---U.S.---, 131 S.Ct. 2780 (2011)
A worker injured his hand in New Jersey while using a metal-shearing machine
manufactured in England by a British manufacturer. The injured worker filed a products-liability
6
suit against the manufacturer in a New Jersey state court. The manufacturer sought to dismiss
the suit for want of personal jurisdiction. The worker claimed that the New Jersey state court
had jurisdiction because (1) an American distributor agreed to sell the manufacturer’s machines
in the United States; (2) manufacturer’s officials attended trade shows in several States; and (3)
some machines of the manufacturer ended up in New Jersey. The New Jersey Superior Court
dismissed the worker’s complaint. The Appellate Division reversed and remanded, and the New
Jersey Supreme Court affirmed and held that New Jersey's courts can exercise jurisdiction over a
foreign manufacturer without contravening the Fourteenth Amendment's Due Process Clause so
long as the manufacturer “knew or reasonably should have known” that its products are
distributed through a “nationwide distribution system” that might lead to sales in any of the
States. In reversing, the United States Supreme Court concluded that the worker failed to
establish that the manufacturer engaged in conduct “purposefully directed at New Jersey”
because the manufacturer had no office in New Jersey, paid no taxes nor owned property in New
Jersey and did not advertise in, nor sent any employees to New Jersey. The U. S. Supreme Court
concluded a single isolated sale is insufficient to satisfy due process.
C.
1.
Internet Jurisdiction Cases
BE2 LLC and be2 Holdings, A.G., v. Nikolay Ivanov, 642 F.3d 555, (7th Cir. 2011)
Delaware based online dating brought trademark infringement action against Bulgarian
competitor, alleging Bulgarian defendant’s domain address and design were “confusingly
similar” to plaintiff’s website. Bulgarian defendant did not answer, and United States District
Court entered default judgment. Bulgarian defendant’s motion to vacate default judgment
argued lack of personal jurisdiction in Illinois. The Seventh Circuit held that the defendant did
not deliberately target or exploit the Illinois market. Thus, the District Court lacked personal
jurisdiction over the defendant. The fact that approximately 20 Illinois residents had registered
accounts with the Bulgarian defendant’s website is insufficient for a “minimum contacts”
finding. The accessibility of the website in Illinois is not sufficient from which to conclude that
the Bulgarian defendant targeted Illinois.
2. uBID v. GoDaddy Group, Inc., 623 F.3d 421, (7th Cir. 2010)
Internet auctioneer brought action against Arizona domain name registration corporation,
alleging corporation violated Anti-cybersquatting Consumer Protection Act by intentionally
registering domain names that were confusingly similar to auctioneer's trademarks and domain
names for purposes of profit. The United States District Court for the Northern District of Illinois
granted corporation's motion to dismiss for lack of personal jurisdiction, and auctioneer
appealed. The Court of Appeals held that the corporation was not subject to general personal
jurisdiction but was subject to specific personal jurisdiction. The Seventh Circuit found
GoDaddy thoroughly, deliberately and successful exploited the Illinois market by conducting
extensive national advertising and sales efforts, all of which reached Illinois consumers, and
resulted in much revenue for GoDaddy. Though GoDaddy may not have specifically sought out
Illinois, the marketing campaign was intended to reach as many people as possible, including
7
those in Illinois. The plaintiff’s claims arose out of these contacts, and subjecting GoDaddy to
Illinois jurisdiction is fair as there is minimal burden.
3. Illinois v. Hemi Group, LLC, 622 F.3d 754, (7th Cir. 2010)
State of Illinois brought action against cigarette company, alleging violations of state and
federal law. The United States District Court for the Central District of Illinois denied cigarette
company's motion to dismiss for lack of personal jurisdiction. Cigarette company appealed. The
Seventh Circuit held that Hemi’s maintenance of a commercial website where customers could
make purchases, calculate shipping, and create accounts, was enough to establish minimum
contacts for specific personal jurisdiction. Claims arose out of cigarette company's contacts with
Illinois and exercise of jurisdiction by Illinois courts was fair. By specifically excluding New
York from Hemi’s market, Hemi implicitly stated it was ready and willing to do business with
Illinois. The Seventh Circuit rejected Hemi’s argument that these were merely unilateral actions
by the customers, as Hemi performed many actions leading up to the sales indicated targeting.
Further, the Seventh Circuit declined to apply the Zippo sliding scale approach.
4.
Zippo Mfg. Co. v. Zippo Dot Com. Inc., 952 F.Supp. 1119 (W.D. Pa. 1997)
The Zippo case provided an early analytical method to determine whether specific
personal jurisdiction would be proper in internet cases. Zippo created a “sliding scale” test for
websites of three general categories: (1) passive, (2) interactive or (3) integral to the defendant’s
business. The “passive” website is analogous to an advertisement in Time magazine; it posts
information generally available to any viewer, who has no on-site means to respond to the site. A
“passive” website is generally inconsistent with traditional personal jurisdiction. An “integral”
website is used actively by the operator to conduct transactions with persons in the forum state,
receive on-line orders and push confirmation or other messages directly to specific customers.
Integral websites support personal jurisdiction. The middle category is the “interactive” website
which allows a forum-state viewer to communicate information back to the site, by toll-free
telephone number, regular mail or even e-mail. Under Zippo, exercise of jurisdiction in the
“interactive” context is determined by examining the level of interactivity and the commercial
nature of the site. In Zippo, a non-resident California defendant operated an integral website that
had commercial contacts with some 3,000 Pennsylvania residents and Internet service providers.
The District Court found a high level of intensity. Note: The Seventh Circuit has rejected the
Zippo test. See also Howard v. Missouri Bone & Joint Center, Inc., 373 Ill.App.3d 738 (5th
Dist.), leave to appeal denied, 225 Ill.2d 633 (9/26/07)(rejecting Zippo test).
II.
Forum Non Conveniens
Forum non conveniens is governed by Section 2-101 of the Code of Civil
1.
Procedure. Section 2-101 provides: “Except as otherwise provided in this Act, every action
must be commenced (1) in the county of residence of any defendant who is joined in good faith
and with probable cause for the purpose of obtaining a judgment against him or her and not
8
solely for the purpose of fixing venue in that county, or (2) in the county in which the transaction
or some part thereof occurred out of which the cause of action arose.”
Illinois Supreme Court leading precedent: (1) Lagenhorst v. Norfolk Southern Railway
Co., 219 Ill.2d 430 (2006); (2) First American Bank v. Guerine,198 Ill.2d 511 (2002); (3)
Dawdy v. Union Pacific Railroad Co., 207 Ill.2d 167 (2003). The take away from these
decisions is that in cases in which no clear forum emerges as most convenient (i.e., witnesses and
evidence are scattered), the trial judge’s decision will not be disturbed. Supreme Court Rule 187
governs forum non conveniens motions and provides that each defendant has 90 days after the
last day allowed for the filing of the answer to file a motion for forum non conveniens. The
motion may be supported or opposed by affidavit or by any other “competent evidence.”
2.
Yavuz Arik v. The Boeing Company, 2011 IL App (1st) 100750-U (1/10/12)
In 2007, an Atlasjet Airlines plane crashed into a mountain in Turkey. Relatives of thirty
two victims filed a products liability suit against the airplane’s manufacturers, Boeing,
McDonnell Douglas Corporation, and Honeywell International in the Circuit Court of Cook
County. All but two of the victims were Turkish residents. Defendants filed a motion to dismiss
on grounds of forum non conveniens. Defendants claimed that Turkey or Washington State
where Honeywell is located would be more convenient. The trial court denied the motion.
After being directed to allow leave to appeal, the First District Appellate Court affirmed.
In a Rule 23 order, Yavuz Arik, etc. v. The Boeing Co., et al., 2011 IL App (1st) 100750-U
(1/10/12), the First District Appellate Court concluded that all of the evidence related to design,
manufacture and assembly of the aircraft and its warning system is in the U.S. Product liability
actions are not localized actions; rather, they have international implications. Americans just as
Turks have an interest in the safety of Boeing airplanes. Furthermore, investigation of the crash
took place in the United States and Germany but not Turkey. As the evidence was scattered
throughout different states and countries, no one forum was found to be more convenient than
the other. (See Rule 23 Order attached to this Outline.)
3.
Kahn v. Enterprise Rent-A-Car, 355 Ill.App.3d 13, 822 N.E.2d 94, 290 Ill.Dec.
812 (1st Dist. 12/30/04), leave to appeal denied, 214 Ill.2d 534 (2005)
§ 2-101. Wrongful death suit. The injury occurred in DuPage County, but decedent died
in Cook County as the result of non-elective medical treatment which failed to save his life.
Executor filed suit in Cook County. Plaintiffs admitted in forum non conveniens interrogatories
that the accident took place in DuPage County, all nine potential witnesses were DuPage County
residents and the deceased was a DuPage County resident. Plaintiff also admitted that a local
police department located in DuPage County answered the accident call and the deceased was
initially treated for his injuries in DuPage County. Plaintiffs responded that the deceased died in
Cook County and the autopsy was performed in Cook County. Also, Enterprise did substantial
business in Cook County. The trial court denied the motion to transfer. After a Rule 306 petition
for leave to appeal was denied, plaintiffs filed a motion for a supervisory order. The Supreme
9
Court granted the supervisory order and directed the First District to consider the Rule 306
petition. On appeal, the First District found an abuse of discretion and reversed.
Citing Dawdy v. Union Pacific R.R. Co., 207 Ill.2d 167, 797 N.E.2d 687, 278 Ill.Dec. 92
(2003), the First District explained the defendant's burden as well as the balancing factors the
parties must address and that the trial court must apply. The defendant seeking transfer is not
required to show that plaintiff's choice of forum is inconvenient; rather, transfer is allowed where
defendant's choice of forum is the substantially more appropriate forum. Private interest factors
the trial court should address include "the convenience of the parties; the relative ease of access
to sources of testimonial, documentary and real evidence; the availability of compulsory process
to secure attendance of unwilling witnesses; the cost to obtain attendance of willing witnesses;
the possibility of viewing the premises, if appropriate; and all other practical considerations that
make a trial easy, expeditious, and inexpensive." Public interest factors include the congestion of
the courts and the local interest in the matter. Overall, the First District found that the private
interest factors strongly favored transfer to DuPage County and that the public interests, though
not entitled to substantial weight, indicated that plaintiff's cause of action would be resolved
more expeditiously in DuPage County.
4.
Ellis v. AAR Parts Trading Inc., 357 Ill.App.3d 723, 828 N.E.2d 726, 293 Ill.Dec.
416 (1st Dist. 2005), modified on denial of rehearing (5/10/05), appeal denied by Layog v. AAR
Part Trading, Inc., 216 Ill.2d 690 (9/2005)
Plaintiffs brought a cause of action resulting from a plane crash against the plane lessor
and the lessor's assignee. After plaintiffs filed a first amended complaint, defendants brought a
motion to dismiss based upon the doctrine of forum non conveniens. Before the trial court ruled
on that motion, plaintiffs filed a second amended complaint. The trial court subsequently denied
defendants' motion. Plaintiffs then filed a third amended complaint alleging new facts, new
causes of action and new theories as well as adding a new defendant. One month later, plaintiffs
filed their fourth amended complaint adding 32 new plaintiffs. After answering the fourth
amended complaint, but before the 90-day period prescribed by Supreme Court Rule 187 had
expired, defendants again brought a motion to dismiss based upon the doctrine of forum non
conveniens. Plaintiffs sought to defeat the motion with the argument that Rule 187 only allows
for one forum non conveniens motion, not successive ones. The trial court agreed with plaintiffs
and again denied the motion. Defendants appealed. The First District reversed. Among other
things, the First District held that Supreme Court Rule 187 does not limit defendants to only one
challenge to forum. Instead, defendants may file successive forum non conveniens motions and
challenge forum each time plaintiffs bring forth a new matter, new party, new cause of action
and/or new theory in an amended complaint.
10
II.
STATUTE OF LIMITATIONS AND REPOSE
A.
Conflicting: Which Controls?
1.
Uldrych v. VHS of Illinois, Inc, 239 Ill.2d 532 (1/21/11)
Rudolph sued physician and physicians’ employers for malpractice arising out of a
claimed misconstructed bowel segment. Surgery performed on February 10, 2003. Rudolph
subsequently died, and Special Administrator was appointed. Complaint was amended to
include claims for survival, wrongful death, negligence and employers’ vicarious liability. The
second amended complaint was filed on August 26, 2005. On August 27, 2008, the Hospital
filed a counterclaim alleging that it had agreed to settle for $1 Million Dollars and seeking
indemnification. On September 19, 2008, the medical malpractice action was dismissed
pursuant to settlement. However, Hospital’s counterclaim for indemnification remained
pending. Hospital filed an amended counterclaim against physicians and medical practice
alleging quasi-contractual indemnification and actual or apparent agency. Defendants moved for
Section 2-619 dismissal based on the expiration of the four-year statute of repose for medical
malpractice contained in Section 13-212(a). The trial judge dismissed based on Section 13212(a). The First District Appellate Court affirmed. The Illinois Supreme Court considered the
case de novo and held that the Hospital’s counterclaim was untimely. The Supreme Court
rejected the argument that Section 13-205 applied in that the General Assembly had specifically
addressed the situation before the court. The Supreme Court concluded the medical malpractice
statute of repose applied to claims for contribution and indemnification. Hospital’s counterclaim
for indemnification was filed more than four years after the acts of medical malpractice.
Hospital’s counterclaim was held untimely.
2.
Travelers Casualty & Ins. Co. v. Bowman, 229 Ill.2d 461 (2008)
In 1994 and 1996, Travelers issued construction performance bonds as surety to
Defendants. The underlying construction contracts were breached and Travelers incurred a total
of $500,000.00 in losses on the performance bonds in 1994 and 1996. On October 5, 2004,
Travelers sued Defendants for indemnity. For the first time on appeal, Defendants argued that
the four-year limitations period for construction matters provided in Section 13-214 applied and
barred relief and, alternatively, that the two-year limitations period contained in Section 13-204
should be applied. Travelers countered that ten-year statute of limitation for written contracts
provided by Section 13-206 governed. The Second District Appellate Court concluded that the
ten-year limitations period applied. The Illinois Supreme Court affirmed and reasoned that the
applicable statute of limitations is determined by the nature of the injury. In this case, the injury
arose from breach of the contractual obligation to indemnify rather than defective construction.
The Illinois Supreme Court also determined that the two-year limitations periods provided at
Sections 13-204(a) and (b) are not applicable when a written indemnity agreement is the claimed
basis for indemnity.
11
3.
Koczor v. Melnyk, 407 Ill.App.3d 994 (1st Dist. 2011), leave to appeal denied,
949 N.E.2d 1098 (5/25/11)
In February 2009, Plaintiffs filed a complaint for legal malpractice for failure to record
the deeds for a real estate purchase. Defendant moved for summary judgment arguing that the
six-year statute of repose contained in Section 13-214.3 barred the cause of action. Plaintiffs
argued that the statute of repose was tolled by principles of equitable estoppel. The trial court
granted summary judgment. On appeal, the First Judicial District affirmed. Under Section 13214.3(c) the repose period begins to run with "last act of representation upon which the
malpractice is founded." January 14, 2001, was the last day that defendant could have recorded
the deed for plaintiffs' parcel. Under Section 13–214.3(c) any right to file a legal malpractice
action expired on January 14, 2007. Since Plaintiffs’ attorney did not affirmatively misrepresent
nor preclude Plaintiffs from discovering their cause of action, equitable estoppel did not toll the
statute of repose. Thus, Plaintiff's complaint was untimely.
4.
Paszkowski v. Metropolitan Water Reclamation District of Greater Chicago, 213
Ill.2d 1, 820 N.E.2d 401, 289 Ill.Dec. 625 (2004).
On February 9, 2000, a construction worker brought a personal injury action against the
Metropolitan Water Reclamation District stemming from injuries sustained during construction
work on March 5, 1998. The District, a local public entity, sought to dismiss the suit as untimely
under the one-year statute of limitations found in the previous version of the Tort Immunity Act,
745 ILCS 10/8-101(West 1998). Plaintiff argued that under Section 13-214(a), 735 ILCS 5/13214(a), the four-year statute of limitations for construction related causes of action applied. The
Illinois Supreme Court held that, where applicable, the statute of limitations found in the Tort
Immunity Act would prevail over all other conflicting statutes of limitations or repose because
the legislature intended the Tort Immunity Act to apply broadly to any possible claim against a
local governmental entity or its employees. But see Collins v. Town of Normal, 2011 IL App
(4th) 100694(7/11/11), leave to appeal denied, 962 N.E.2d 480, Ill., Nov. 30, 2011(“enumerated
exception” existed and one year limitations provision of Section 8-101 of Tort Immunity Act did
not apply to actions for retaliatory discharge).
B.
Counterclaims and Section 13-207 Savings Clause
Barragan v. Osman Construction Corporation, 352 Ill.App.3d 33, 815 N.E.2d
1.
842, 287Ill.Dec. 198 (1st Dist. 2004), leave to appeal allowed, 213 Ill.2d 554 (2005), reversed,
Barragan v. Casco Design Corporation, 2005 WL 2298221 (9/22/05)
On July 15, 1997, Plaintiff/subcontractor employee filed a personal injury suit against the
general contractor and the architect for injuries sustained on July 8, 1997 at a construction site.
The general contractor and the architect were served with the suit on August 6, 1997. On July 29,
1999, the architect filed a counterclaim against the general contractor for contribution. On
December 7, 2000, the general contractor filed a counterclaim against the architect for
contribution. The general contractor later settled the case with Plaintiff. The architect then
moved to dismiss the general contractor's counterclaim as time barred by the two-year statute of
limitations for contribution claims found in Section 13-204 of the Code of Civil Procedure, 735
12
ILCS 5/13-204(West 2000). The general contractor argued that his claim was timely under
Section 13-207 of the Code of Civil Procedure, 735 ILCS 5/13-207(West 2000), which allows
defendants to bring otherwise time barred counterclaims against plaintiffs whose own cause of
action accrued before the relevant statute of limitations on defendants' claims lapsed. The First
District Appellate Court held that Section 13-204 Section 13-207 does not provide an exception
to Section 13-204 and the two-year limitations period applied.
In reversing, the Illinois Supreme Court held that at the time the architect filed his
counterclaim against the general contractor, the architect became a plaintiff for purposes of
Section 13-207. Thus, under the waiver principles of Section 13-207, the architect waived any
statute of limitations defenses to any claims held by the general contractor that had not lapsed
before the architect's claim accrued. The Supreme Court reasoned that the waiver principles of
Section 13-207 control in all actions, including counterclaims that would otherwise be time
barred under Section 13-204. (See also Menard v. Countryside Industries, Inc., 2005 WL 576671
(N.D. Ill. 2005) citing Barragan v. Osman, 352 Ill.App.3d at 35 (state statute of limitations
applies in federal diversity case).
2.
Wells Fargo Bank v. Terry, 401 Ill.App.3d 18 (1st Dist. 2010)
Wells Fargo Bank obtained an assignment of Terry’s mortgage loan and note, and then
filed a foreclosure action when the mortgage loan went into default. Terry filed a counterclaim
for “recoupment,” an affirmative defense and third party complaint. Terry sought rescission
based on claimed federal Truth In Lending Act (“TILA”) violations. TILA requires disclosures
concerning lending terms. For certain disclosure violations, TILA permits rescission for up to
three years after the mortgage loan is made. Citing Barragan, Terry argued that the
counterclaim was timely despite the passage of more than three years because the foreclosure
action renewed the three-year period. A statute of repose extinguishes a cause of action after a
fixed period, while a statute of limitations governs when lawsuits may be filed. The First District
agreed that Illinois law would allow the claim if TILA’s three year bar was a statute of
limitations. However, the United States Supreme Court had ruled that TILA’s three-year bar was
a statute of repose, and Illinois law had no law permitting tolling of statute of repose for TILA
violations. Terry’s defensive counterclaim for rescission was barred because not filed within
three years of obtaining the mortgage loan. See also U.S. Bank National Assn v. Manzo, et al,
960 N.E.2d 1238 (1st Dist. 2011)(refusing to distinguish or reject Terry decision).
3.
Deluna v. Burciaga, 233 Ill.2d 49 (2006)
On April 16, 1986 two attorneys filed a medical malpractice action against a doctor and a
hospital on behalf of various plaintiffs, including three minor children. The attorneys deliberately
failed to attach the requisite affidavit under Section 2-622 in order to test the constitutionality of
the affidavit requirement. On February 25, 1987, the case was dismissed with prejudice as to the
doctor. After numerous appeals, plaintiffs were left without a cause of action against the doctor
due to the attorneys' actions and were forced to settle with the hospital. On February 20, 2001,
plaintiffs sued their attorneys for malpractice stemming from their failure to file the requisite
affidavit and carelessness in allowing the case to be dismissed with prejudice. The attorneys
13
moved to dismiss the case contending that plaintiffs' action was not timely because it was filed
nearly 14 years after the injury occurred, well outside the six year statute of repose found in
Section 13-214.3, 735 ILCS 5/13-214.3. After various amended complaints wherein plaintiffs
attempted to plead fraudulent concealment and equitable tolling of their cause of action, the
cause of action was dismissed. Plaintiffs appealed. The First District Appellate Court reversed.
Ultimately, the Illinois Supreme Court held that the statute of limitations and repose in Sections
13-214.3 (b) and (c) are tolled by Section 13-214.3(e). In a lengthy analysis, the Illinois
Supreme Court also held that Section 13-215, pertaining to fraudulent concealment, was intended
to toll the statutes of repose for medical and legal malpractice actions.
IV.
PLEADING
A.
Fact Pleading
1.
Simpkins v. CSX Transportation, Inc., 2012 IL 110662 (3/22/11)
Railroad worker's wife, and subsequently wife's estate, brought action against railroad after wife
contracted mesothelioma, alleging in part that employer negligently failed to take precautions to
protect her from take-home asbestos exposure. Circuit Court of Madison County dismissed
complaint with prejudice. The Estate appealed. The Appellate Court reversed, and leave to
appeal was allowed. The plaintiff alleged that defendant “actively created the relevant risk of
harm by using materials containing a known toxic substance in a way that caused that substance
to escape and directly expose decedent to harm from inhaling the railroad's asbestos.” The
controlling question was whether plaintiff sufficiently alleged facts that, if proven, would
establish a duty of care owed by defendant to the decedent. The Illinois Supreme Court cited the
principle that Illinois is a fact pleading jurisdiction. This standard demands that a plaintiff must
allege facts sufficient to bring a claim within a legally recognized cause of action. Conclusions of
law or fact unsupported by specific factual allegations are insufficient. Defendant has argued
that plaintiff's complaint was insufficient because it relied on the “conclusory allegation” that
defendant “knew or should have known” of the dangers of secondhand asbestos exposure. The
Illinois Supreme Court reversed and remanded to permit the Estate to amend the complaint.
2.
Stone v. Paddock Publications, Inc., 2011 IL App (1st) 093386 (11/17/11)
Mother of newspaper website commentator, as next friend of minor son, filed Supreme
Court Rule 224 petition seeking discovery of another commentator who made allegedly
defamatory comments regarding her minor son. Trial court limited discovery to determine
identity of the commentator. Comcast provided information. Ultimately, the trial court ordered
Comcast to notify its subscriber and permit the subscriber to contest the subpoena. A motion to
quash was filed. The trial court denied the motion to quash and ordered that the subscriber’s
identity be revealed in camera. Comcast complied. The subscriber then filed a motion in
opposition to disclosure of his identity based on failure to plead defamatory comments.
Petitioner moved for disclosure. The trial court ordered that the identity of subscriber to the IP
address of the other commentator be revealed. The First District Appellate Court discussed Rule
224, rejected application of a summary judgment standard and concluded that the level of
specificity for Rule 224 petitions is the same level of specificity required to overcome a Section
2-615 motion to dismiss. The burden remains on the movant to show that discovery is necessary.
14
B.
Amendments and Misnomer
Pruitt v. Pervan, 356 Ill.App.3d 32, 825 N.E.2d 299, 292 Ill.Dec. 43 (1st Dist.
1.
2005), rehearing denied (3/17/05)
Pruitt sued the management company in connection with her fall in a stairwell. Pruitt did
not sue the building's owners due to her ignorance of the fact that the owners were responsible
for maintenance of the stairwell. Pruitt amended her complaint to add the owners more than
seven months after the expiration of the statute of limitations. Pruitt cited Section 2-616(d) for
the proposition that adding the owners as parties related back to her original complaint The trial
court dismissed the complaint, and the First District Appellate Court affirmed. In amending
Section 2-616(d) in2002, the General Assembly intended to parallel F .R.C.P. 15 (c)(2). Section
2-616(d) now requires that would-be defendants "knew or should have known that, but for a
mistake concerning the identity of the proper party, the action wou1d have been brought against
him or her." This was not a case of mistaken identity, but rather of lack of knowledge as to the
true facts. Pruitt intended to sue the property manager and did so. In the absence of a claim of
mistaken identity, Section 2-616(d) did not apply to permit relation back.
2.
Polites v. U S. Bank, National Association, 361Ill.App.3d 76 (1st Dist.2005)
Polites injured his back in a fall from a chair at a Chicago branch bank office of U.S.
Bank, N.A. Prior to filing the complaint, Polites' attorney communicated with an insurance
claims handler for the holding company. U.S. Bankcorp. After many communications regarding
settlement, Polites filed his complaint one day before the statute of limitations expired. He
named U.S. Bankcorp as the sole defendant Months later. after settlement negotiations proved
unsuccessfu4 service was affected on an officer of U.S. Bank, N.A. Later, Polites was granted
leave to amend his complaint and to add U.S. Bank, N.A. as a defendant. Ultimately, the trial
court granted Section 2-619 dismissal upon its conclusion that the amendment did not relate back
pursuant to Section 2-616(d). On appeal, the First District Appellate Court acknowledged that
Polites had intended to sue U.S. Bank, N.A., but was mistakenly led to the conclusion that U.S.
Bancorp was the true owner. In permitting Polites to proceed with his lawsuit, the First District
Appellate Court adopted F.R.C.P.15(c) which allows relation back of amended complaints where
the added party had constructive notice of the commencement of the action. The First District
concluded that though U.S. Bank, N.A. did not have actual notice of the lawsuit, the common
insurer gave it constructive notice.
3.
Borchers v. Francsican Tertiary Province of the Sacred Heart, Inc., 2011 Ill. App
(2d) 101,257, 9623 N.E.2d 29, 356 Ill. Dec. 685, (2nd Dist. 2011)
Plaintiff Borchers filed a complaint against her former employer, Franciscan Tertiary
Province, to which she later added two additional defendants, one managerial, the other nonmanagerial. The complaint alleged that defendants accessed her email and printed over 30
personal emails, thereby violating the federal Electronic Communications Privacy Act of 1986,
and committed the tort of intrusion upon seclusion. The individually named defendants moved
to dismiss arguing that they were not named as defendants until after the statutory period, and
15
that the cause of action did not relate back under the requirements of 2-616(d). Plaintiff did not
originally sue the individual because she did not know which of her former co-workers were
involved. Defendants argued Plaintiff’s lack of knowledge is not the equivalent to a mistake.
(Defendants concede that the cause of action grew out of the same transaction or occurrence, and
the time had not expired when Plaintiff’s original action commenced.) The Court adopted the
ruling in Krupski v. Costa Crociere, S.p.A., 560 U.S. _, 130 S.Ct. 2485, 177 L.Ed.2d 48 (2010).
Krupski addressed a split in the federal circuit courts of appeal as to whether a lack of knowledge
about the identity of the parties involved is equivalent to a mistake for the purpose of the
doctrine of relation back. The Supreme Court concluded that such uncertainty is equivalent to
mistake. The Second District ruled that Plaintiff’s lack of knowledge as to the identity of all
involved in wrongdoing constitutes “mistake” for relation back doctrine.
4.
Dist. 2009)
Musberger v. Meier, 394 Ill. App.3d 781, 914 N.E.2d 1195, 333 Ill.Dec. 383, (1st
Defendant Meier hired the Plaintiff to act as agent for radio entertainment engagements
and “exclusive legal representative to negotiate contracts. Meier later discharged Plaintiff. The
balance for services rendered was $92,750.00. Meier refused to pay. The “Law Offices of Todd
W. Musberger, Ltd.” filed a verified complaint alleging breach of contract, quantum meruit, and
unjust enrichment. Meier raised standing as an affirmative defense in that “The Law Offices of
Todd W. Musburger, Ltd.,” was not a registered Illinois corporation. The trial court struck the
affirmative defense. After trial, the jury returned a verdict in favor of “Law Offices of Todd W.
Musberger.” The trial court entered judgment on the verdict. Meier filed a Section 2-1401
petition to vacate because “The Law Offices of Todd W. Musburger, Ltd.” for lack of standing.
The Section 2-1401 petition was denied. On appeal, Plaintiff claimed misnomer in that styling
the complaint as “The Law Offices of Todd W. Musburger, Ltd.” instead of “Todd W.
Musburger, Ltd.,” should not bar relief. The First District Appellate Court concluded that the
doctrine of misnomer applied insofar as Meier was clearly aware of whom the actual parties
were, an actual plaintiff existed, and Meier suffered no prejudice.
V.
Removal and Remand
A.
Federal Courts Jurisdiction and Venue Clarification Act of 2011
On December 7, 2011, President Obama signed into law the Federal Courts
Jurisdiction and Venue Clarification Act of 2011, H. R. 394, P.L 112-63 (the "Act") with an
effective date of January 6, 2012 which contains significant changes to the federal removal
statute, 28 U.S.C. § 1441. Significant amendments are: (1) resolves the split in the circuit courts
of appeal as to the statutory 30-day period for “the defendant” to remove an action to federal
court. In cases of multiple defendants served at different times, the circuit courts of appeal had
reached different conclusions as to when the clock began to run (i.e., the first served defendant
or the last served defendant.) Each defendant now has 30 days after receipt by or service on that
defendant of the initial pleading or summons to file the notice of removal. 28 U.S.C. §1446
(b)(2)(B). Earlier-served defendants are allowed to join in or consent to removal by another
defendant. 28 U.S.C. §1446 (b)(2)(C). The rule that all defendants must to consent to removal is
codified at 28 U.S.C. §1446(b)(2)(A). The forum defendant rule prohibiting removal based on
16
diversity jurisdiction in the case of a defendant that resides in the forum state is now codified at
28 U.S.C. §1441(b)(2).
(2)
The bar for removal based on diversity after one year has passed in state court has
been amended. Removal is now permitted after one year in diversity cases if the district court
finds that the plaintiff acted in bad faith to prevent a defendant from removing the action. 28
U.S.C. §1446(c)(3)(B).
(3)
Significant changes are made to how the amount in controversy for purposes of
removal is ascertained, alleged and proved. 28 U.S.C. §1446(c)(2)(A). In the event that state
procedure does not permit a specific monetary demand or where recovery may be in excess of
the demand, defendants may allege the amount in controversy in the removal notice when the
initial pleading seeks non-monetary relief. The majority view is adopted that the amount in
controversy need only be shown by a preponderance of the evidence.
(4)
Defendants confronted with a state court pleading without specific allegations of
an amount in controversy may still remove, even after the 30-day period expires, if they receive
discovery from the plaintiff indicating that the jurisdictional amount is met. 28 U.S.C.
§1446(c)(3)(A).
(5)
The venue provisions of 28 U. S. C. §§ 1390 et seq. are also amended. The
circuit split on the question of residency for the purposes of venue is resolved by adopting the
majority standard that residency is a natural person’s state of domicile. 28 U.S.C. §1391(c).
Also, the Act provides that litigants may stipulate to the transfer of venue to a district where the
lawsuit may otherwise have not originally been brought “for the convenience of the parties and
witnesses and in the interest of justice.”
(6)
Fourth, the district court’s discretion to hear state-law claims asserted in a case
removed to federal court based on federal question jurisdiction is eliminated. Under new Section
1441(c), while a case involving a federal question and state-law claims may be removed to
federal court, upon removal, the district court “shall sever from the action all [state-law] claims .
. . and shall remand the severed claims to the State court from which the action was removed.”
The sever-and-remand provisions apply only to separate and independent state-law claims (not
within original or supplemental jurisdiction), thus, preserving a federal court’s authority to hear
state-law claims that form part of the same case or controversy as the federal claims and are
properly in federal court under supplemental jurisdiction pursuant to 28 U.S.C. § 1367.
Section 1404 now allows for transfer “to any district or division to which all
(7)
parties have consented. 28 U.S.C. § 1404. This new procedure allows for transfer to a district
chosen by the parties even if venue would not otherwise be proper in that district.
1.
E.K.D., by her next friend Melissa K. Dawes, et al. and on behalf of all others
similarly situated, vs. Facebook, Inc., 12-cv-01216-JCS (USDC, S. D. Ill. 3/8/12)
As class representatives in a class action, minor plaintiffs challenge Defendant
Facebook’s use of their profiles as “sponsored stories” advertising services. Facebook moved for
17
transfer to the Northern District of California based on a forum selection clause contained in the
terms of service to which plaintiffs were required to “click” their agreement. The Court
examined the Facebook forum selection clause which specified state or federal court in Santa
Clara County, California as the situs for any claim, cause of action, or dispute to be resolved as
to Facebook or the terms of service. The Court found the forum selection clause prima facie
valid and enforceable and no factors made it unreasonable. Though plaintiffs may not have read
the terms, plaintiffs were obliged upon joining Facebook to agree to the terms of service,
including the forum selection clause and were reasonably put on notice of the terms of service.
The Court concluded pursuant to Section 1404, 28 U.S.C. 1404, that the forum selection clause
permitted transfer to the federal district court in the Northern District of California and that
convenience and justice warranted transfer.
18
2011 IL App (1st) 100750-U
SECOND DIVISION
January 10, 2012
No. 1-10-0750
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(l).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
YAVUZ ARIK, Special Administrator, eta!. ,
Plaintiffs-Appellees,
v.
THE BOEING COMPANY, eta!. ,
Defendants-Appellants.
)
)
)
)
)
)
)
)
)
)
)
Appeal from the Circuit Court
of Cook County
Nos. 08 L 12539, 08 L 12599,
08 L 12604, 08 L 12625,
08 L 13147, 08 L 13207,
08 L 13260 & 09 L 6016
Honorable
William D. Maddux,
Judge Presiding.
PRESIDING JUSTICE QUINN delivered the judgment of the court.
Justices Garcia and R.E. Gordon concurred in the judgment.
ORDER
~
1
Held: Trial court's order denying defendants' motion to dismiss onforum non
conveniens grounds is affirmed over defendants' contentions that the court abused
its discretion in failing to grant the motion and transfer the case to the Republic of
Turkey or the state of Washington. 1
1
Justice Robert Cahill participated in the oral argument in this case. Justice Cahill died
on December 4, 2011. Justice Patrick J. Quinn read the briefs, reviewed the record and listened
to oral arguments online.
1-10-0750
~
2
This interlocutory appeal arises from consolidated wrongful death, product liability and
negligence actions filed after an airplane flight crashed near !sparta, Turkey. Plaintiffs, the
representatives of 32 of the 57 decedents who died in the crash, brought suit in Chicago, Illinois,
against defendants, The Boeing Company (Boeing) and McDonnell Douglas Corporation
(McDonnell), the designers and manufacturers of the airplane, and defendant Honeywell
International Inc. (Honeywell), the designer and manufacturer of the airplane's enhanced ground
proximity warning system (warning system). Defendants moved to dismiss on the grounds of
forum non conveniens, arguing that the Republic of Turkey, or alternatively, the state of
Washington was a more convenient forum to resolve this litigation. The circuit court denied the
motion. We affirm.
~
3
On November 30, 2007, Atlasjet Airlines flight No. 4203 , traveling from Istanbul,
Turkey, to !sparta, Turkey, crashed into a mountain near !sparta. All 50 passengers and 7
members of the flight crew died in the crash. The subject aircraft, an MD-83 , was owned by
World Focus Airlines and operated by Atlasjet Airlines. World Focus and Atlasjet are Turkish
corporations with headquarters in Istanbul.
~
4
Plaintiffs are representatives of 32 of the 57 decedents who died in the crash. Of the 32
decedents represented in this action, 31 were Turkish citizens and residents of Turkey. One of
those 31 decedents was a dual Turkish and United States citizen who resided in Turkey at the
time of the accident. One decedent was a citizen and resident of Austria. Plaintiffs are primarily
Turkish citizens and residents. One ofthe plaintiffs, Yavuz Arik, is a United States citizen and
resident of Maryland . Two of the plaintiffs, Tolga Tezcan and Esra Ozdemir, are United States
2
,•
1-10-0750
residents. Tezcan resides in Chicago, Illinois, and Ozdemir resides in Miami Beach, Florida.
One of the plaintiffs, Vedat Kurnaz, is an Austrian citizen and resident.
,-r 5
Defendants are United States corporations. Defendant Boeing is a Delaware corporation
with its headquarters in Chicago. Defendant McDonnell, a Maryland corporation , is a whollyowned Boeing subsidiary with its headquarters in Chicago. McDonnell designed, manufactured
and assembled the subject aircraft in the state of California in 1994. Defendant Honeywell is a
Delaware corporation with its headquarters in Morristown, New Jersey. Honeywell is registered
to do business in Illinois, is a resident of Cook County, Illinois, and maintains a registered agent
for service of process in Illinois. Honeywell designed and manufactured the aircraft's warning
system in the state of Washington and tested the system in the United Kingdom. All three
defendants' attorneys' offices are in Chicago.
,-r 6
Plaintiffs' complaints against defendants included claims for product liability and for the
negligent design, manufacture and assembly of the MD-83 aircraft and its components,
specifically the warning system. The warning system monitors the aircraft's altitude and warns
the flight crew with visual and audio messages when the aircraft's terrain clearance position is
unsafe or when the aircraft's terrain closure rate is excessive. Plaintiffs alleged that the warning
system on the MD-83 aircraft was defectively designed, manufactured and assembled and failed
to provide the necessary visual and audible alerts to the flight crew as the aircraft approached
mountainous terrain near !sparta. Plaintiffs claimed that had the warning system functioned
properly, the accident could have been averted by the pilots.
,-r 7
On April 28, 2009, the trial court consolidated eight cases concerning the plane crash.
3
1-10-0750
Defendants moved to dismiss all eight cases on the ground offorum non conveniens in favor of
an action in the Republic of Turkey. Defendants argued that this action should proceed in
Turkey because it arose out of a domestic Turkish airline crash that occurred in Turkey and a
majority of the victims were Turkish citizens. Defendants also pointed out that much of the
evidence regarding damages was in Turkey. Alternatively, defendants argued that the action
should be transferred to the state ofWashington where the warning system was designed and
manufactured.
,-r 8
Defendants Boeing and McDonnell conceded that the evidence related to the aircraft's
design and assembly, including witnesses and documents, is located in the United States,
specifically in the states of California and Washington. Thomas Dodt, Boeing's chief engineer
for air safety investigation , averred in his affidavit that Boeing's commercial aircraft operations
are based in the state of Washington, with some activity in other states depending on the model
aircraft at issue. Activities in connection with the design, manufacture, assembly and testing of
the subject aircraft were based primarily in the state of California. Documents related to, and
Boeing employees with knowledge of, the design, manufacture, assembly and testing of the
subject aircraft are located primarily in the state of California, although some are in Washington.
,-r 9
Defendant Honeywell conceded that the warning system was designed and manufactured
in the state of Washington and that evidence related to the design and manufacture of the
warning system, including witnesses and documents, is located in the state of Washington.
Honeywell identified various employees in Washington who were involved in the design and
4
1-10-0750
manufacture of the warning system. Honeywell also identified five employees who were
involved in testing the warning system in the United Kingdom before the system was placed into
production. One of those five employees resides in Washington. The other four employees
reside in the United Kingdom. Documentary evidence related to the testing of the warning
system is in Washington and the United Kingdom.
~
10
Because the crash occurred in Turkey, the official investigation into the crash was
conducted by Turkish authorities. The United Sates, as the country of manufacture and design of
the subject aircraft, participated in the investigation. United States accredited representatives
from the National Transportation Safety Board and the Federal Aviation Administration (FAA)
traveled to Turkey and visited the crash site.
~
11
Dodt averred in his affidavit that a member of Boeing's air safety investigation team was
assigned to coordinate Boeing's assistance with the investigation of the crash. Defendants
Boeing and Honeywell served as technical advisors to the United States accredited
representatives. The role of the accredited representatives and the technical advisors was to
assist the Turkish authorities. The Turkish authorities had sole control and authority over the
investigation. Dodt averred that Boeing's role in the investigation was limited.
~
12
During the investigation, the aircraft wreckage was recovered and stored in Turkey. A
portion of the flight deck control pedestal was sent to defendant Boeing in California for
examination and analysis. The examination was conducted by Boeing under FAA supervision.
After the examination, the pedestal was returned to Turkey. Dodt averred that the aircraft
wreckage remained in Turkey in the custody ofthe Turkish authorities. Dodt also averred that
5
1-10-0750
the documentary evidence in Boeing's possession regarding the investigation is located in the
state of Washington or California. He said all Boeing employees with knowledge regarding the
investigation reside in the states of Washington and California. Dodt resides in Washington.
,-r 13
The aircraft's cockpit voice and flight data recorders were sent to Germany and examined
by the German Federal Bureau of Aircraft Accidents Investigation. Both recorders were
returned to Turkey after the examination and are in the custody of the Turkish authorities.
,-r 14
Honeywell conceded that after the crash it inspected, analyzed and tested the warning
system in Washington. Honeywell identified 10 employees who were involved in that
inspection, analysis and testing but did not say where those employees reside. Honeywell also
identified a total of seven employees who participated in the crash investigation and serviced the
warning system before the crash. All seven ofthose employees reside in the United Kingdom.
,-r 15
On February 18,2010, the trial court entered a written order, denying defendants' motion.
The court made the following findings in the order.
,-r 16
First, the court found that Turkey was an adequate alternative forum for this litigation.
Plaintiffs argued that Turkey was not an adequate forum because: (1) a Turkish court may
decline jurisdiction over the defendants; (2) Plaintiffs' claims may be barred by Turkey's statute
of limitations; (3) Turkish law does not provide for pre-trial discovery; and (4) Turkey's
requirement that a claimant pay a court fee of 5.4% of the amount of the substantive claim
imposes a significant barrier on the plaintiffs. In rejecting plaintiffs' arguments, the court noted:
"[d]efendants have agreed to consent to jurisdiction in Turkey and accept
6
1-10-0750
service of process there, which establishes availability. Additionally, any
procedural differences, such as the inability to conduct pre-trial discovery should
not be given much weight. [Citation.]
***
Thus giving undue weight to a lack of
pre-trial discovery would make an American forum more attractive to foreign
litigants. Accordingly, the differences between Illinois and Turkish law do not
completely deprive the plaintiffs of a remedy."
~
17
Second, the court found that plaintiffs' choice of forum , Chicago, was entitled to less
deference given the facts ofthis case. The court noted that the crash occurred in Turkey, 31 of
the 32 decedents represented in this action were Turkish citizens and the overwhelm ing majority
of the plaintiffs are Turkish citizens and residents with only one plaintiff being a United States
citizen.
~
18
Third, the court found that, despite having given less deference to the plaintiffs' choice of
forum , the facts of this case illustrate that the private and publ ic interest factors did not favor
dismissal for forum non conveniens. The private interest factors did not favor dismissal because:
(1) defendants could not claim that Turkey was a more convenient forum for them, since the
defendants are American corporations, two of which are headquartered in Chicago, and their
attorneys' offices were also in Chicago; (2) Turkey did not offer greater ease of access to
documents or witnesses where potential evidence and witnesses were scattered among various
states and countries; (3) the documents re lated to the design and manufacture of the warning
system were in the United States; and (4) the site of the crash in a product liability case is less
important because the jury does not need to view the site of the crash to resolve claims of a
7
1-10-0750
defective product.
,-r 19
The public interest factors did not favor dismissal because: (I) defendants failed to show
that a Turkish trial would be quicker than a trial in Chicago; (2) Illinois residents have an interest
in resolving defective product claims against corporations that are headquartered in Chicago and
taking advantage oflllinois law; and (3) in a product liability case, the location of the crash site
is less important.
,-r 20
With respect to defendants' alternative argument that the case should be transferred to the
state of Washington, the court first found that Washington was an adequate alternative forum
based on defendants' consent to jurisdiction in Washington. However, the court concluded that
the private and public interest factors did not favor dismissal for forum non conveniens. The
private interest factors did not favor dismissal because, as mentioned, documents and trial
witnesses were scattered throughout different states and no one state was more convenient than
another. The public interest factors likewise did not favor dismissal to Washington because,
contrary to defendants' argument, Washington's proximity to California, where the subject
aircraft was designed and manufactured, was not a significant factor given that we live in an "age
of telecommunications" where documents can readily be sent electronically to Tllinois. The
court also rejected defendants' argument that Washington is a more expeditious jurisdiction
because the issue of court congestion can be nullified with strict adherence to case management
orders.
,-r 21
On March 22, 20 I 0, defendants filed a petition with this court for leave to appeal the trial
court's denial ofitsforum non conveniens motion . We denied defendants' petition on Apri129,
8
1-10-0750
2010. On June 3, 2010, defendants petitioned the Illinois Supreme Court for leave to appeal.
Our supreme court denied defendants' petition on September 29, 2010, and issued a supervisory
order, directing us to vacate our April 29, 2010, order and grant defendants' petition for leave to
appeal. On November 10, 2010, we complied with the supreme court's supervisory order and
this interlocutory appeal followed.
~
22
On appeal, defendants contend the trial court erred in denying their motion to dismiss for
forum non conveniens. This is an interlocutory appeal taken under Supreme Court Rule 306 (Ill.
S. Ct. R. 306). The rule provides that a party may petition for leave to appeal to this court "from
an order of the circuit court allowing or denying a motion to dismiss on the grounds offorum
non conveniens***." Ill. S. Ct. R. 306(a)(2).
~
23
Forum non conveniens is an " 'equitable doctrine founded in considerations of
fundamental fairness and the sensible and effective administration of justice.'" Vivas v. The
Boeing Company, 392 Ill. App. 3d 644, 656, 911 N.E.2d 1057 (2009) (quoting Langenhorst v.
Norfolk Southern Ry. Co., 219111. 2d 430,441 , 848 N.E.2d 927 (2006). This doctrine allows a
trial court to transfer a case when a "trial in another forum 'would better serve the ends of
justice.'" Langenhorst, 219 Ill. 2d at 441 (quoting Vinson v. Allstate, 144 Ill. 2d 306, 310, 579
N .E.2d 857 (1991 ).
~
24
The burden is on the party seeking dismissal , in this case defendants, to show that the
relevant factors" 'strongly favor' "transfer. Langenhorst, 219 Ill. 2d at 443 (quoting Griffith v.
Mitsubishi Aircraft International inc., 136111. 2d 101, 107,554 N .E.2d 209 (1990); Vivas, 392
Ill. App. 3d 644 (in product liability and negligence case where airplane crash was in the
9
1-10-0750
Republic of Peru with primarily Peruvian decedents, burden was on defendants to show factors
strongly favoring transfer to Peru); First American Bank v. Guerine, 198 Ill. 2d 511 , 517, 764
N.E.2d 54 (2002) (plaintiffs have a substantial interest in choosing a forum where their rights
will be vindicated , and plaintiffs' forum choice should rarely be disturbed unless other factors
strongly favor transfer).
~
25
In detennining whether other factors strongly favor transfer, the trial court is afforded
"considerable discretion." Langenhorst, 219 Ill. 2d at 441. This court will reverse a circuit
court's decision on aforum non conveniens motion only if the defendants show that the court
abused its discretion in balancing the relevant factors. Vivas, 392 Ill. App. 3d at 657. "A circuit
court abuses its discretion in balancing the relevant factors only where no reasonable person
would take the view adopted by the circuit court." Langenhorst, 219 Ill. 2d at 442. The issue
before us is whether the trial court acted in a way that no reasonable person would, not what
decision we would have reached if we were reviewing the facts on a clean slate. Vivas, 392 TIL
App. 3d at 657.
~
26
Here, we find that a reasonable person could have taken the view adopted by the trial
court. Generally, a plaintiffs choice of forum will prevail if the venue is proper and the
inconvenience factors attached to the chosen forum do not greatly outweigh the plaintiffs
substantial right to try the case in the chosen forum . Guerine, 198 III. 2d at 520. Before
weighing these factors, the trial court must first determine how much deference to give to a
plaintiffs choice of forum. Vivas, 392 Ill. App. 3d at 657; Langenhorst, 219 Ill. 2d at 448. If the
plaintiff chooses a forum other than where he resides, his choice is not entitled to the same
10
1-10-0750
deference as the choice of his home forum. Vivas, 392 Ill. App. 3d at 657. Here, because most
of the plaintiffs were Turkish, their selection of a foreign forum , Chicago, deserved less
deference. See Vivas, 392 Ill. App. 3d at 657; Langenhorst, 219 Ill. 2d at 448; Griffith, 136 III.
2d at 106. The trial cout1 reasonably accorded less deference to plaintiffs' choice of forum.
~
27
Next, the trial court had to consider both the private and public interest factors in
deciding a forum non conveniens motion without emphasizing any one factor. Vivas, 392 Ill.
App. 3d at 658. The private interest factors include: "'(1) the convenience of the parties; (2) the
relative ease of access to sources oftestimonial, documentary, and real evidence; and (3) all
other practical problems that make trial of a case easy, expeditious, and inexpensive.' "
Langenhorst, 219 Ill. 2d at 443 (quoting First American Bank v. Guerine, 198 Ill. 2d 511 , 51617, 764 N.E.2d 54 (2002); Dawdy, 207 Ill. 2d at 172.
~
28
F irst, the convenience of the parties did not weigh in favor of transfer to Turkey.
Defendants failed to show that plaintiffs' chosen forum is inconvenient for them. See
Langenhorst, 219 Ill. 2d at 450 ("the defendant must show that the plaintiffs chosen forum is
inconvenient to the defendant"). Here, defendants are American corporations. Two of the
defendants, Boeing and McDonnell, are headquartered in Chicago, plaintiffs' chosen forum. See
Vivas, 392 Ill. App. 3d at 658. All three defendants' attorneys' offices are also in Chicago.
~
29
Second, the relative ease of access to sources of testimonial , documentary and real
evidence did not require transfer to Turkey. The trial court noted that potential witnesses and
evidence were scattered among different states and countries and correctly concluded that this
factor did not favor any one forum . See Vivas, 392 Ill. App. 3d at 659, and cases cited therein.
11
l-1 0-0750
Contrary to defendants' argument, we cannot say that the trial court abused its discretion because
it misstated, grossly expanded and placed undue weight on this principle. See Woodward v.
Bridgestone/Firestone Inc., 368 Ill. App. 3d 827, 834, 858 N.E.2d 897 (2006) (where potential
witnesses are "scattered among different forums," no one forum is more convenient).
,-r 30
We are likewise unpersuaded by defendants' argument that the trial court abused its
discretion by giving disproportionate weight to plaintiffs' theory of liability and the location of
evidence to support that theory while discounting the enormous concentration of evidence in
Turkey necessary for defendants to receive a fair trial. Although most of the evidence regarding
the crash and potential damages is in Turkey, this is a product liability case and all the evidence
relevant to the design, manufacture and assembly of the aircraft and its warning system is in the
United States. See Vivas, 392 Ill. App. 3d at 658-59 (affirming trial court's denial of a motion to
dismiss for forum non conveniens because witnesses related to design, manufacture and testing
of subject aircraft were scattered throughout the United States); Woodward, 368 Ill. App. 3d at
834 (same).
,-r 31
In considering access to evidence, we note that although some of the documents
regarding the crash are in Turkey, many of the documents regarding the crash are also in the
United States as a result of the American authorities and defendants' cooperation with the
Turkish authorities in the crash investigation. We also note that all of the documents relating to
design, manufacture and assembly of the subject aircraft and the warning system are in the
United States. See Vivas, 392 Ill. App. 3d at 659. But, as noted by the trial court, the location of
documents and records is not a significant factor in forum non conveniens analysis given that in
12
1-10-0750
this modern "age of telecommunications," documents can easily be sent electronically to Illinois.
Vivas, 392 III. App. 3d at 659; Woodward, 368 III. App. 3d at 834.
~
32
Contrary to defendants' argument, the compulsory process of unwilling witnesses and the
cost of obtaining willing witnesses does not favor dismissal in favor of Turkey . " 'If the case
remains in Illinois, witnesses in [Turkey] are not compelled to come to the Untied States, and if
the forum is changed to [Turkey] , American witnesses are not compelled to appear in [Turkey].'
" Vivas, 392 III. App. 3d at 659 (quoting Woodward, 368 Ill. App. 3d at 835).
~
33
Finally, the court was required to consider" 'all other practical problems that make trial
of a case easy, expeditious, and inexpensive.'" Langenhorst, 219 Ill. 2d at 443 (quoting
Guerine, 198 Ill. 2d at 516-17). This factor also does not support transfer to Turkey. All three
defendants' and some of the plaintiffs' attorneys maintain offices in Illinois. See Vivas, 392 III.
App. 3d at 660. Although little weight should accorded this factor, a court may still consider it
in aforum non conveniens analysis. Vivas, 392 III. App. 3d at 660; Dawdy, 207 Ill. 2d at 179.
~
34
For these reasons, we cannot say that the trial court abused its discretion in weighing the
private interest factors.
~
35
The trial court was also required to consider the public interest factors. These factors are:
" '(1) the interest in deciding controversies locally; (2) the unfairness of imposing trial expense
and the burden ofjury duty on residents of a forum that has little connection to the litigation; and
(3) the administrative difficulties presented by adding litigation to already congested court
dockets.' " Vivas, 392 Ill. App. 3d at 660 (quoting Langenhorst, 219 Ill. 2d at 443-44) .
~
36
The second and third factors are not at issue before us because defendants do not
13
1-10-0750
challenge the trial court's application of these two factors. Rather, defendants argue that the
court erred in its analysis of the public interest factors by overemphasizing the location of
defendants' headquarters and the interest that this gives Illinois' citizens in deciding this
litigation. Defendants claim that Turkey has a greater interest in the resolution of this case
because the underlying accident involved a Turkish airline, operating a domestic Turkish flight,
that crashed on Turkish soil and killed primarily Turkish citizens. Defendants maintain that
"whatever general interest U.S. citizens have in ensuring the safety of products made by U.S .
corporations pales in comparison to the much more specific interest of Turkish citizens in
determining who is responsible for this crash."
~
37
We are unpersuaded by defendants' argument because product liability actions are not
localized cases; rather, they are cases with international implications. Woodward, 368 Ill. App.
3d at 836. Americans, just as much as Turks, have an interest in the safety of Boeing airplanes.
Vivas, 392 III. App. 3d at 661. Americans also have an interest in ensuring the safety ofthe
products that American corporations, such as Boeing, McDonnell and Honeywell , build and ship
throughout the world . See Vivas, 392 Ill. App. 3d at 661 and cases cited therein. Although the
location of a corporate headquarters is not a dispositive factor, it is still a factor a court may
consider. Gridley v. State Farm Mutual Automobile Insurance Co. , 217 Ill. 2d 158, 173 , 840
N .E.2d 269 (2005).
~
38
We also note that the strong American interest in this case is highlighted by the
involvement of both the American defendants and American authorities in the Turkish
investigation of this crash . See Vivas, 392 Ill. App. 3d at 661-62. Significant parts recovered
14
1-10-0750
from the aircraft, such as the flight deck control pedestal, the warning system and the cockpit
voice/data recorder, were examined and analyzed in the United States and Germany, not Turkey.
The examination of the flight deck control pedestal was conducted by defendant Boeing under
FAA supervision . The documentary evidence related to Boeing's examination of the control
pedestal is located in the United States. Given defendants' involvement in the investigation and
their knowledge of the American authorities interest in the investigation , it seems disingenuous
for defendants to now claim that the Untied States has little interest in this tragedy . Vivas, 392
Ill. App. 3d at 662. In light of this, Turkey's interest in this litigation does not require a transfer
and the circuit court did not abuse its discretion in concluding that the public interest factors did
not favor transfer to Turkey.
~
39
After considering the private and public interest factors, the court was required to balance
these factors without emphasizing any one factor. Langenhorst, 219 Ill. 2d at 443. Here, the
court did just that and we cannot say it abused its discretion in doing so. Although plaintiffs'
choice of a foreign forum deserved less deference, the private and public interest factors did not
weigh strongly in favor of transfer to Turkey. See Vivas, 392 Ill. App. 3d at 663 , and cases cited
therein.
~
40
We likewise find that the trial court did not abuse its discretion in concluding that the
balance of the private and public interest factors did not favor dismissal with transfer to the state
of Washington. Although Washington was an adequate alternative forum, the private and public
interest factors did not weigh strongly in favor of transfer. Of the private interest factors,
defendants argue that the majority of documents and witnesses related to the design and
15
1-10-0750
manufacture of the airplane's warning system are located in or near Washington. Defendants
also argue that Washington is more proximately located to California, where the subject aircraft
was designed and manufactured. As mentioned, because the evidence in this case is scattered
throughout different states and countries, no one forum is more convenient than another.
Woodward, 368 Ill. App. 3d at 834. As noted by the trial court, Washington's proximity to
California is not a significant factor where documents can bee-mailed, copied, faxed or
otherwise sent to Illinois. Woodward, 368 Ill. App. 3d at 834. With regard to the public interest
factors, defendants argue that Washington is a more expeditious jurisdiction. However, court
congestion is a relatively insignificant factor and the trial court is in a better position than this
court to assess the burdens on its own docket. Berbig v. Sears Roebuck & Co. , 3 78 Ill. App. 3d
185, 189, 882 N.E.2d 601 (2007); Langenhorst, 219 Ill. 2d at 451.
~
41
For the reasons stated, we affirm the trial court's order denying defendants' motion to
dismiss onforum non conveniens grounds.
~
42
Affirmed
16