Motion to Dismiss, for Involuntary Dismissal, Forum Non Conveniens in Illinois Circuit Court–At A Glance

Use this At A Glance Guide to learn all of the rules of civil procedure (Illinois Compiled Statutes and Illinois Supreme Court Rules) applicable to bringing a motion to dismiss, a motion for involuntary dismissal or a forum non conveniens motion in the Illinois Circuit Courts.  For a more detailed treatment, including local rules and local motion practice procedures, please see the SmartRules Illinois Circuit Court Guides:  Motion to Dismiss, Opposition to Motion to Dismiss, and Reply in Support of Motion to Dismiss

Timing: 

The deadline for filing a motion attacking the complaint depends on the deadline contained in the summons:  If the summons requires an appearance within thirty (30) days, the deadline for filing a motion attacking the complaint is within the thirty (30) day appearance period. IL Supreme Court R. 181(a).  In an action for money damages, if the summons requires appearance on a specified day, the defendant can file a motion attacking the complaint with the appearance, or within ten (10) days after the appearance, unless the Court directs otherwise. IL Supreme Court R. 181(b)(1).  A motion attacking a pleading other than the complaint must be filed within twenty-one (21) days after the last day allowed for the filing of the pleading attacked. IL Supreme Court R. 182(c).

A motion to dismiss for lack of personal jurisdiction (or a motion to quash service) must be filed prior to the filing of any other pleading or motion, other than a motion for an extension of time to answer or otherwise appear. 735 ILCS 5/2-301(a).  If the objecting party files a responsive pleading or a motion (other than a motion for an extension of time to answer or otherwise appear) prior to the filing of a motion objecting to personal jurisdiction, that party waives all objections to the court’s jurisdiction over the party’s person. 735 ILCS 5/2-301(a-5).

Within the time for pleading, defendant may file a motion for involuntary dismissal. 735 ILCS 5/2-619(a). A motion to dismiss or transfer the action under the doctrine of forum non conveniens must be filed by a party not later than 90 days after the last day allowed for the filing of that party’s answer. IL Supreme Court R. 187(a).

Grounds: 

All objections to a pleading must be raised by motion. A motion attacking a pleading must point out specifically the defects alleged and it must request appropriate relief such as an order:

(1) striking the pleading, or striking part of the pleading because it is substantially insufficient in law;

(2) dismissing the action;

(3) requiring a more definite statement;

(4) striking out designated immaterial matter;

(5) adding necessary parties; or

(6) dismissing designated misjoined parties.

735 ILCS 5/2-615(a).

Any party may file a motion for involuntary dismissal of the action on any of the following grounds.

1. Lack of Jurisdiction: that the court lacks jurisdiction and this flaw cannot be remedied by transfer to another court; 735 ILCS 5/2-619(a)(1).

2. Legal Incapacity: that the plaintiff lacks legal capacity to sue or the defendant lacks legal capacity to be sued; 735 ILCS 5/2-619(a)(2).

3. Duplicative Action: that another action is already pending between the same parties for the same cause; 735 ILCS 5/2-619(a)(3).

4. Res Judicata: that the cause of action is barred by prior judgment; 735 ILCS 5/2-619(a)(4).

5. Statute of Limitations: that the action is time-barred; 735 ILCS 5/2-619(a)(5).

6. Release: that the plaintiff’s claim has been released, satisfied or discharged; 735 ILCS 5/2-619(a)(6).

7. Statute of Frauds: that the claim is unenforceable under the statute of frauds; 735 ILCS 5/2-619(a)(7).

8. Minority: that the claim is unenforceable because of the defendant’s minority or other disability; 735 ILCS 5/2-619(a)(8).

9. Affirmative Bar: that the claim is barred by another affirmative matter avoiding the legal effect of or barring the claim. 735 ILCS 5/2-619(a)(9).

Motion to Dismiss Rules:  

If a motion attacking a pleading is based on an allegation that the pleading is substantially insufficient in law, the motion must specify the portion of the pleading which is legally insufficient. 735 ILCS 5/2-615(b).

The Court may consider insufficiencies in prior pleadings in the action in ruling on a motion attacking a pleading. 735 ILCS 5/2-615(c).

If any pleading is insufficient in substance or form the court may order a fuller or more particular statement. If the pleadings do not sufficiently define the issues the court may order other pleadings prepared. 735 ILCS 5/2-612(a).

No pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he or she is called upon to meet. 735 ILCS 5/2-612(b).

All defects in pleadings, either in form or substance, not objected to in the trial court are waived. 735 ILCS 5/2-612(c).

Motions with respect to the pleadings, motions for involuntary dismissal, and motions for summary judgment may be combined into a single motion or filed in any combination. Combined motions shall be in parts and each part shall specify the relief sought, the statutory authority for seeking such relief, and the grounds relied on. 735 ILCS 5/2-619.1.

If the court determines, on motions directed to the pleadings, or on motion for summary judgment or upon trial, that the plaintiff has pleaded or established facts which entitle the plaintiff to relief, but the plaintiff has sought the wrong remedy, the court “shall permit the pleadings to be amended, on just and reasonable terms.” 735 ILCS 5/2-617.

If the grounds for attacking a pleading do not appear on the face of the pleading, the motion must be supported by affidavit. 735 ILCS 5/2-619(a).  Unless the facts that constitute the basis for an objection to personal jurisdiction are apparent from papers already on file in the case, the motion must be supported by an affidavit setting forth those facts. 735 ILCS 5/2-301(a).The plaintiff (or counterclaimant or third-party plaintiff) may at any time before trial or hearing begins, upon notice to each party who has appeared or each such party’s attorney, and upon payment of costs, dismiss his or her action or any part thereof as to any defendant, without prejudice, by order filed in the cause. 735 ILCS 5/2-1009(a)&(e).

The court may hear and decide a motion that has been filed prior to a motion for voluntary dismissal when that prior filed motion, if favorably ruled on by the court, could result in a final disposition of the cause. 735 ILCS 5/2-1009(b).

After trial or hearing begins, the plaintiff may dismiss, only on terms fixed by the court (1) upon filing a stipulation to that effect signed by the defendant, or (2) on motion specifying the ground for dismissal, which shall be supported by affidavit or other proof. 735 ILCS 5/2-1009(c).

Motion for Involuntary Dismissal Rules:

Raising any matter in a motion for involuntary dismissal does not preclude a defendant from subsequently raising it in the answer unless the court disposes of the motion on its merits. Failure to raise one of the enumerated matters by motion for involuntary dismissal does not preclude the defendant from raising the issue in the answer. 735 ILCS 5/2-619(d).

Pleading over after denial by the court of a motion under this Section is not a waiver of any error in the decision denying the motion. 735 ILCS 5/2-619(e).

Unless the order of dismissal or a statute otherwise specifies, involuntary dismissals other than those for lack of jurisdiction, improper venue, or failure to join an indispensable party act as adjudication on the merits. IL Supreme Court R. 273.

Objection to Personal Jurisdiction

A party may file a motion objecting to the court’s jurisdiction over the party’s person, either on the ground that the party is not amenable to process of a court of this State or on the ground of insufficiency of process or insufficiency of service of process. The party may file either (1) a motion to dismiss the entire proceeding or any cause of action involved in the proceeding or (2) a motion to quash service of process. Such a motion may be made singly or included with others in a combined motion. 735 ILCS 5/2-301(a).  If the objecting party files a responsive pleading or a motion (other than a motion for an extension of time to answer or otherwise appear) prior to the filing of a motion in compliance with subsection (a), that party waives all objections to the court’s jurisdiction over the party’s person. 735 ILCS 5/2-301(a-5).

Unless the facts that constitute the basis for an objection to personal jurisdiction are apparent from papers already on file in the case, the motion must be supported by an affidavit setting forth those facts. 735 ILCS 5/2-301(a).

In disposing of a motion objecting to the court’s jurisdiction, the court shall consider

(1) all matters apparent from the papers on file in the case,

(2) affidavits submitted by any party, and

(3) any evidence adduced upon contested issues of fact. 735 ILCS 5/2-301(b).

No determination of any issue of fact in connection with the objection is a determination of the merits of the case or any aspect of the case. A decision adverse to the objector does not preclude the objector from making any motion or defense which he or she might otherwise have made. 735 ILCS 5/2-301(b).  Error in ruling against the party objecting to personal jurisdiction is waived by the party’s taking part in further proceedings unless the objection is on the ground that the party is not amenable to process issued by an Illinois court. 735 ILCS 5/2-301(c).

While a personal jurisdiction motion is pending, a party may obtain discovery only on the issue of “the court’s jurisdiction over the person of the defendant” unless (a) the parties agree otherwise or (b) the court orders otherwise upon a party’s showing that specific discovery is required on other issues. IL Supreme Court R. 201(l)(1).  The objecting party does not waive any objection to personal jurisdiction by participating in (a) a hearing regarding discovery, or (b) discovery regarding personal jurisdiction. IL Supreme Court R. 201(l)(2).

Forum Non Conveniens Rules

Hearings on motions to dismiss or transfer the action under the doctrine of forum non conveniens shall be scheduled so as to allow the parties sufficient time to conduct discovery on issues of fact raised by such motions. Such motions may be supported and opposed by affidavit. In determining issues of fact raised by affidavits, any competent evidence adduced by the parties shall also be considered. The determination of any issue of fact in connection with such a motion does not constitute a determination of the merits of the case or any aspect thereof. IL Supreme Court R. 187(b).

Dismissal of an action under the doctrine of forum non conveniens shall be upon the following conditions:

(i) if the plaintiff elects to file the action in another forum within six months of the dismissal order, the defendant shall accept service of process from that court; and

(ii) if the statute of limitations has run in the other forum, the defendant shall waive that defense. IL Supreme Court R. 187(c)(2).

If the defendant refuses to abide by these conditions, the cause shall be reinstated for further proceedings in the court in which the dismissal was granted. If the court in the other forum refuses to accept jurisdiction, the plaintiff may, within 30 days of the final order refusing jurisdiction, reinstate the action in the court in which the dismissal was granted. The costs attending a dismissal may be awarded in the discretion of the court. IL Supreme Court R. 187(c).

The authorities cited in this At A Glance Guide are current as of the publication date. For authorities updated in real time, please see the SmartRules Guide for the litigation document you are drafting.

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