MOTIONS TO DISMISS

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

By Daniel T. Gillespie* and

P. Shawn Wood**

* The Honorable Daniel T. Gillespie is a Judge in the Law Division of the Circuit Court
of Cook County

** Shawn Wood is partner in the law firm of Seyfarth Shaw LLP and the national chair
of its Commercial Litigation Practice Group.
SECTION 2-615 MOTIONS TO DISMISS

1. The Statute
The Illinois Civil Practice Act provides that motions attacking the sufficiency of the
pleadings should be filed pursuant to § 735 ILCS 5/2-615, which provides:

Motions with respect to pleadings.

(a) All objections to pleadings shall be raised by motion. The motion shall point out
specifically the defects complained of, and shall ask for appropriate relief, such as:
that a pleading or portion thereof be stricken because substantially insufficient in
law, or that the action be dismissed, or that a pleading be made more definite and
certain in a specified particular, or that designated immaterial matter be stricken out,
or that necessary parties be added, or that designated misjoined parties be dismissed,
and so forth.

(b) If a pleading or a division thereof is objected to by a motion to dismiss or for

judgment or to strike out the pleading, because it is substantially insufficient in law,
the motion must specify wherein the pleading or division thereof is insufficient.

(c) Upon motions based upon defects in pleadings, substantial defects in prior pleadings
may be considered.

(d) After rulings on motions, the court may enter appropriate orders either to permit or
require pleading over or amending or to terminate the litigation in whole or in part.

(e) Any party may seasonably move for judgment on the pleadings.

2. Pleadings To Be Construed Liberally

Section 2-603(c) of the Code further provides that “pleadings shall be liberally construed
with a view to doing substantial justice between the parties.” 735 ILCS 5/2-603(c).

Under the Illinois Civil Practice Code, “no pleading is bad in substance which contains
such information as reasonably informs the opposite party of the nature of the claim or defense
which he or she is called upon to meet.” 735 ILCS 5/2-612(b); Forest Preserve District of
DuPage County v. Miller, 339 Ill.App.3d 244, 252, 789 N.E.2d 916, 923 (2d Dist. 2003); People of
the State of Illinois ex rel. Hartigan v. Candy Club, 149 Ill.App.3d 498, 500, 501 N.E.2d 188, 190
(1st Dist. 1986); Kita v. Young Men’s Christian Association of Metropolitan Chicago, 47
Ill.App.2d 409, 425, 198 N.E.2d 174, 182 (1st Dist. 1964).

“A cause of action should not be dismissed pursuant to a section 2-615 motion unless it is
clearly apparent that no set of facts can be proved that would entitle the plaintiff to relief.” Pooh-
Bah Enterprises, Inc. v. County of Cook, 232 Ill. 2d 463, 473, 905 N.E.2d 781, 789 (2009);
Napleton v. Village of Hinsdale, 229 Ill.2d 296, 305, 891 N.E.2d 839, 845 (2008). Kindel v.
Tennis, 409 Ill. App. 3d 1138, 949 N.E.2d 1119 (5th Dist. 2011).

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 3. Fact-Pleading Required
Illinois is a fact-pleading jurisdiction. A plaintiff must allege facts, not mere conclusions,
to establish his or her claim as a viable cause of action. Napleton v. Village of Hinsdale, 229 Ill.2d
296, 305, 891 N.E.2d 839, 845 (2008).

Liberal construction will not save a complaint containing legal or factual conclusions
unsupported by specific factual allegations. Pooh-Bah Enterprises, Inc. v. County of Cook, 232 Ill.
2d 463, 473, 905 N.E.2d 781, 789 (2009); Mlade v. Finley, 112 Ill. App. 3d 914, 918, 445 N.E.2d
1240, 1243-44 (1st Dist. 1983). Conclusions of fact will not suffice to state a cause of action
regardless of whether they generally inform the defendant of the nature of the claim. Grund v.
Donegan, 298 Ill. App. 3d 1034, 1039, 700 N.E.2d 157, 161 (1st Dist. 1998).

4. Limited Scope of Section 2-615 Motion

A Section 2-615 motion to dismiss challenges the legal sufficiency of the complaint.
Napleton v. Village of Hinsdale, 229 Ill.2d 296, 305, 891 N.E.2d 839, 845 (2008); Zahl v. Krupa,
365 Ill. App. 3d 653, 657, 850 N.E.2d 304, 309 (2d Dist. 2006). The question presented is whether
the allegations of the complaint, when viewed in a light most favorable to the plaintiff, are
sufficient to state a cause of action upon which relief can be granted. Borowiec v. Gateway 2000,
Inc., 209 Ill. 2d 376, 382, 808 N.E.2d 957, 961 (2004).

Motions under Section 2-615 may not be supported by reference to any facts or exhibits
that are not alleged in or attached to the complaint under attack. Scott Wetzel Servs. v. Regard, 271
Ill. App. 3d 478, 480-81, 648 N.E.2d 1020, 1022-1023 (1 Dist. 1995).

5. Questions of Fact Cannot Be Decided

A motion to dismiss pursuant to Section 2-615 does not raise affirmative factual defenses.
Borowiec v. Gateway 2000, Inc., 209 Ill. 2d 376, 382, 808 N.E.2d 957, 961 (2004). It is based on
the pleadings rather than the underlying facts. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469,
639 N.E.2d 1282 (1994); Barber-Coleman Co. v. A&K Midwest Insulation Co., 236 Ill. App. 3d
1065, 603 N.E.2d 1215 (5th Dist. 1992). Cases are not to be tried at the pleadings stage, so a
claimant need only show a possibility of recovery, not an absolute right to recovery, to survive a
section 2-615 motion. Platson v. NSM America, Inc., 322 Ill.App.3d 138, 143, 748 N.E.2d 1278,
1284 (2d Dist. 2001).

6. Failure To Adhere To Fact Pleading Requirements

To pass muster a complaint must state a cause of action in two ways. First, it must be
legally sufficient; it must set forth a legally recognized claim as its avenue of recovery. When it
fails to do this, there is no recourse at law for the injury alleged, and the complaint must be
dismissed. * * * Second and unlike federal practice, the complaint must be factually sufficient; it
must plead facts which bring the claim within the legally recognized cause of action alleged. If it
does not, the complaint must be dismissed. Mlade v. Finley, 112 Ill. App. 3d 914, 918, 445 N.E.2d
1240, 1243-44 (1st Dist. 1983) (citing People ex rel. Fahner v. Carriage Way West, Inc., 88 Ill. 2d
300, 308, 430 N.E.2d 1005 (1981)).
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 7. Pleading of Affirmative Defenses
Illinois law requires that the facts establishing an affirmative defense must be pleaded with
the same degree of specificity required of a plaintiff to sufficiently state a cause of action.
International Ins. Co. v. Sargent & Lundy, 242 Ill. App. 3d 614, 630, 609 N.E.2d 842, 853 (1st
Dist. 1993)

8. Effect Of Dismissal Pursuant To Section 2-615

In granting a 2-615 motion to dismiss, a trial judge may grant plaintiff a certain number of
days, typically twenty-eight, to file an amended complaint. If, however, the judge determines that
that plaintiff cannot plead a cause of action under the apparent facts and circumstances of the case,
the judge may dismiss the pleading with prejudice. People ex rel. Daley v. Datacom Systems
Corp., 146 Ill. 2d 1, 5, 585 N.E.2d 51, 55 (1991).

A dismissal of a pleading pursuant to a 2-615 motion that fails to allow plaintiff to file an
amended pleading, or which fails to specify that the dismissal is without prejudice, is considered a
dismissal with prejudice. Dunavan v. Calandrino, 167 Ill. App. 3d 952, 957, 522 N.E.2d 347, 349
(5 Dist.), appeal denied, 122 Ill. 2d 573, 530 N.E.2d 243 (1988).

9. Granting Or Denial Of Leave To Amend Complaint

The right to file an amended complaint under Section 2-616 of the Code of Civil Procedure
is very broad, and is to be permitted at “any time before final judgment” upon “just and reasonable
terms.” 735 ILCS 5/2-616. The Illinois Supreme Court has interpreted that language as “requiring
the trial court to permit amendment if it will further the ends of justice.” In re Estate of Hoover,
155 Ill. 2d 402, 416, 615 N.E.2d 736, 742 (1993).

Plaintiffs generally are granted at least one opportunity to amend their pleadings. Sinclair
v. State Bank, 226 Ill. App. 3d 909, 910, 589 N.E.2d 862, 863 (4 Dist.), appeal denied, 145 Ill. 2d
644, 596 N.E.2d 637 (1992). Plaintiff may be given several opportunities. The key factor is not
the number of times plaintiff is allowed to refile, but whether it appears plaintiff may be able to
cure a defect with a refiled complaint. Where plaintiff’s third amended complaint cured a prior
defective pleading by stating a cause of action and, the amendment was timely and would not have
surprised or prejudiced defendant, the trial court was found to have erred when it denied plaintiff
leave to file his third amended complaint. Palmer v. Chicago Park Dist., 277 Ill. App. 3d 282,
289, 660 N.E.2d 146, 150 (1 Dist. 1995), appeal denied, 166 Ill. 2d 543, 664 N.E.2d 643 (1996).

In Loyola Academy v. S&S Roof Maintenance, Inc., 146 Ill. 2d 263, 273-74, 586 N.E.2d
1211, 1216 (1992), the court adopted four factors to be used in determining whether the trial
court’s denial of a party’s motion to amend constituted an abuse of discretion: (1) whether the
proposed amendment would cure the defective pleading; (2) whether other parties would sustain
prejudice or surprise by virtue of the proposed amendment; (3) whether the proposed amendment
is timely; and (4) whether there were prior opportunities to amend. Where the proposed
amendment meets all four factors, it is an abuse of discretion for the trial court to deny the
amendment. Loyola Academy, 146 Ill. 2d at 276, 586 N.E.2d at 1217.

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 10. 2-615 Motions Other Than Motions To Dismiss
Beyond challenging whether the Complaint fails to state a claim, Section 2-615 provides
the authority for filing any motion directed to the pleadings. This includes motions for a more
definite statement, motions to strike immaterial matter, motions to dismiss misjoined parties, or
motions for judgment on the pleadings. See 725 ILCS 5/2-615(a), (e).

======================================================

PRACTICE TIP: The Impropriety of Motions to Strike Motions

Section 2-615 authorizes the filing of motions “with respect to pleadings.”

As a motion is not a pleading, motions to strike motions are generally held to
be improper. See generally Motions Attacking Motions, A Plea To End The
Violence, 53 ISBA Trial Briefs, No. 8 (March 2008); In re Marriage of
Sutherland, 251 Ill. App. 3d 411 (2d Dist. 1993) (ruling that the trial court
had improperly granted a motion to strike a motion for reconsideration,
noting that motions to strike under 2-615 relate to striking of pleadings, not
motions). See also Iacovetti v. Kindercare Learning Centers, 2011 Ill. App.
Fist. Dist. 091541-U (October 2011) (unreported decision) (affirming trial
court’s ruling that a motion to strike a motion for summary judgment was
procedurally improper).

=======================================================

COMBINED 2-615 AND 2-619 MOTIONS

1. The Statute
The Illinois Civil Practice Act allows the filing of a combined 2-615 and 2-619 motion,
under Section 2-619. 1, which provides:

Combined motions. Motions with respect to pleadings under Section

2-615 [735 ILCS 5/2-615], motions for involuntary dismissal or other
relief under Section 2-619 [735 ILCS 5/2-619], and motions for
summary judgment under Section 2-1005 [735 ILCS 5/2-1005] may
be filed together as a single motion in any combination. A combined
motion, however, shall be in parts. Each part shall be limited to and
shall specify that it is made under one of Sections 2-615 [735 ILCS
5/2-615], 2-619 [735 ILCS 5/2-619], or 2-1005 [735 ILCS 5/2-1005].
Each part shall also clearly show the points or grounds relied upon
under the Section upon which it is based.

Section 2-619.1 “allows a litigant to combine a Section 2-615 motion to dismiss and a
Section 2-619 motion to dismiss in one pleading.” Northern Trust Co. v. County of Lake, 353 Ill.
App. 3d 268, 278, 818 N.E.2d 389, 398 (2d Dist. 2004).

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 While “considerations of judicial and client economy” might favor the joining of all
grounds for dismissal in a single motion under Section 2-619.1, this section does not require a
party to file all of its challenges within a combined motion. Therefore, a defendant who first files
a challenge to the plaintiff’s pleading under Section 2-615 is not barred from subsequently moving
for dismissal under Section 2-619. Lamar Whiteco Outdoor Corp. v. Cit of West Chicago, 355 Ill.
App. 3d 352, 366, 823 N.E.2d 610, 622 (2d Dist. 2005); River Park, Inc. v. City of Highland Park,
295 Ill. App. 3d 90, 93, 692 N E 2d 369, 372 (2d Dist. 1998), aff’d in part and rev’d in part on
other grounds, 184 Ill. 2d 290, 703 N E 2d 883 1998.

2. Designation Of Challenges Under 2-615 Versus 2-619

Although Section 2-619.1 allows a party to file a joint motion for dismissal under Sections
2-615 and 2-619, it does not authorize “hybrid motion practice.” Northern Trust Co. v. County of
Lake, 353 Ill. App. 3d 268, 278, 818 N.E.2d 389, 398 (2d Dist. 2004). A hybrid motion is one in
which the movant fails to designate whether the motion is filed under Section 2-615 or Section 2-
619 or otherwise fails to identify the grounds for dismissal under the separate sections of the Code.
Jenkins v. Concorde Acceptance Corp., 345 Ill. App. 3d 669, 802 N.E.2d 1270 (1st Dist. 2003).

3. Wrong Label Not Fatal

The failure to specifically designate whether a motion to dismiss is brought under Section
2-615 or 2-619 is inappropriate, but not always fatal. Premier Elec. Construction Co. v. LaSalle
Nat’l Bank, 115 Ill. App. 3d 638, 642, 450 N.E.2d 1360, 1363 (2d Dist. 1983). Improper labeling
of a motion to dismiss under Section 2-619 warrants reversal only if the non-moving party is
prejudiced by the error. Northern Trust Co. v. County of Lake, 253 Ill. App. 3d 268, 278, 818
N.E.2d 389, 398 (2d Dist. 2004); Universal Underwriters Group v. Pierson, 337 Ill. App. 3d 893,
897-898, 787 N.E.2d 296, 299-300 (1st Dist. 2003); Storm & Assoc. v. Cuculich, 298 Ill. App. 3d
1040, 1046, 700 N.E.2d 202, 206 (1st Dist. 1998).

The substance of a motion, rather than its label, will determine the code section under
which the motion should be analyzed. Loman v. Freeman, 375 Ill. App. 3d 445, 448, 874 N.E.2d
542, 545 (4th Dist. 2006). Thus, where a party files a motion that purports to be filed under 2-619,
but actually attacks the legal sufficiency of the complaint, the mislabeling of the motion is not fatal
and the court may resolve the substance of the motion under Section 2-615. Id.; Winters v.
Wangler, 386 Ill. App. 3d 788, 898 N.E.2d 776 (4th Dist. 2008); Worley v. Barger, 247 Ill. App.
3d 492, 807 N.E.2d 1222 (5th Dist. 2004).

SECTION 2-619 MOTIONS TO DISMISS

1. The Statute
5/2-619 provides: Involuntary dismissal based upon certain defects or defenses.

(a) Defendant may, within the time for pleading, file a motion for dismissal of the
action or for other appropriate relief upon any of the following grounds. If the
grounds do not appear on the face of the pleading attacked the motion shall be
supported by affidavit:
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 (1) That the court does not have jurisdiction of the subject matter of the action,
provided the defect cannot be removed by a transfer of the case to a court
having jurisdiction.

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

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

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

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

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

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

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

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

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

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

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

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

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

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 2. Distinguished From Section 2-615 Motions To Dismiss
A 2-619 motion can be distinguished from a 2-615 motion in that a motion to dismiss under
735 ILCS 5/2-615 attacks only the legal sufficiency of the complaint and does not raise affirmative
factual defenses, as does a motion under 2-619. Urbaitis v. Commonwealth Edison, 143 Ill. 2d
458, 575 N E 2d 548 (1991).

=======================================================

PRACTICE TIP: “So What” Motions vs. “Yes, But” Motions

In Winters v. Wangler, 386 Ill. App. 3d 788, 898 N.E.2d 776 (4th Dist. 2008)
and Barbar-Colman Co. v. A&K Midwest Insulation Co., 236 Ill. App.3d
1065, 603 N.E.2d 1215 (4th Dist. 1992), the courts outline the differences
between dispositive motions under Sections 2-615, 2-619 and 2-1005. The
Winters court explains that 2-619 motions are sometimes called “Yes, But”
motions because the defendant is saying “Yes, the complaint was legally
sufficient, but an affirmative matter exists that defeats the claim.” By
contrast, the court explains that 2-615 motions are sometimes called “So
What” motions because the defendant is saying “So what? The facts the
plaintiff has pleaded do not state a cause of action against me.”

=======================================================

3. Distinguished From Section 2-1005 Summary Judgment Motions

Although similar to a summary judgment motion, a section 2-619 motion differs in that the
court may, in its discretion, decide questions of fact “upon the hearing of the motion.” Consumer
Electric Co. v. Cobelcomex, Inc., 149 Ill. App. 3d 699, 703, 501 N.E.2d 156, 159 (1st Dist. 1986).
See also Barbar-Colman Co. v. A&K Midwest Insulation Co., 236 Ill. App.3d 1065, 603 N.E.2d
1215 (4th Dist. 1992) (listing five key differences between 2-619 and 2-1005 motions).

4. Affidavits And Other Evidence In Support Of 2-619 Motion

Affidavits filed in support of Section 2-619 motions are controlled by Illinois Supreme
Court Rule 191. Elliot v. LRSL Enterprises, Inc., 226 Ill. App. 3d 724, 589 N.E.2d 1074 (2d Dist.
1992). Rule 191(a) should be construed according to the plain and ordinary meaning of its
language. Its requirements should be adhered to as written, Ribidoux v. Oliphant, 201 Ill. 2d 324,
337, 775 N. E. 2d 987 (2002), citing Bright v. Dicke, 166 Ill. 2d 204, 210. 652 N. E. 2d 275
(1995). An affidavit will be stricken if it does not have attached sworn or certified copies of all
papers upon which the affiant relied, Robidoux, 201 Ill. 2d at 343, 775 N. E. 2d 987.

Although the statute speaks only of supporting a 2-619 motion with affidavits, other
evidence may also be submitted in support of the motion. Fremont Comp. Ins. Co. v. Ace Chicago
Great Dane Corp., 304 Ill. App. 3d 734, 710 N.E.2d 132 (1st Dist. 1999). Urban v. Loham, 227 Ill.
App. 3d 772, 592 N.E.2d 292 (1st Dist. 1992).

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 If the “affirmative matter” on which the Section 2-619 motion is based is not apparent on
the face of the complaint, the motion must be supported by affidavit or other evidence. Kedzie and
103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116, 619 N.E.2d 732 (1993).

If evidentiary facts asserted in an affidavit filed in support of a motion to dismiss are not
refused by counteraffidavit, the court will take those facts as true, notwithstanding contrary
unsupported allegations in the plaintiff’s pleading. Marriage of Kohl, 334 Ill. App. 3d 867, 877,
778 N.E.2d 1169, 1178 (1st Dist. 2002); Pryweller v. Cohen, 282 Ill. App. 3d 899, 907, 668 N.E.2d
1144, 1149 (1st Dist. 1996).

By presenting adequate affidavits supporting the asserted defense, the defendant satisfies
the initial burden of going forward on the motion. The burden then shifts to the plaintiff. A
counteraffidavit is necessary to refute evidentiary facts properly asserted by the defendant’s
affidavit supporting the motion, or else the fact are deemed admitted. If, after considering the
pleadings and affidavits, the trial judge finds that the plaintiff has failed to carry the shifted burden
of going forward, the motion may be granted and the cause of action dismissed. Kedzie and 103rd
Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116, 619 N.E.2d 732, 735 (1993). Accord Van
Meter v. Darien Park District, 207 Ill. 2d 359, 377 799 N.E.2d 273, 284 (2003).

5. 2-619 Motion Resolves Issues Of Law Or Easily Proved Facts

A motion under this section affords a means of disposing of issues of law or of easily
proved facts at the outset of a case. Torcasso v. Standard Outdoor Sales, Inc., 157 Ill. 2d 484, 486,
626 N.E.2d 225, 226 (1992); Turner v. 1212 S. Michigan Partnership, 355 Ill. App. 3d 885, 823
N.E.2d 1062 (1st Dist. 2005). If the defects are not apparent on the face of the pleadings, affidavits
may be employed to bring affirmative matters to light which would bar the litigation. Cramsey v.
Knoblock, 191 Ill. App. 3d 756, 764, 547 N.E.2d 1358, 1364 (4 Dist. 1989).

This section affords a defendant an expeditious means to obtain a summary disposition of

an action based upon an affirmative bar to the plaintiffs right to recovery. Mayfield v. Acme Barrel
Co., 258 Ill. App 3d 32, 629 N.E.2d 690, 693 (1 Dist. 1994).

6. Deciding Issues Of Fact / Evidentiary Hearings Under 2-619

In resolving a Section 2-619 motion, “[a] court will take as true those facts in defendant’s
affidavit supporting his motion to dismiss if the plaintiff fails to refute those facts in a
counteraffidavit, notwithstanding contrary unsupported allegations in the plaintiff’s pleadings.”
Pryweller v. Cohen, 282 Ill. App. 3d 899, 907, 668 N.E.2d 1144, 1149 (1st Dist. 1996).

If the affidavits presented on a Section 2-619 motion present disputed facts, and there is no
jury issue or demand, the court may resolve disputed issues of fact through an evidentiary hearing.
Consumer Electric Co. v. Cobelcomex, Inc., 149 Ill. App. 3d 699, 703-04, 501 N.E.2d 156, 159 (1st
Dist. 1986). See also Hernandez v. New Rogers Pontiac, Inc., 332 Ill. App. 3d 461, 773 N.E.2d 77
(1st Dist. 2002) (resolving 2-619 motion based on res judicata following an evidentiary hearing);
Kirby v. Jarrett, 190 Ill. App. 3d 8, 13, 545 N.E.2d 965 (1989) (where the trial court conducts an
evidentiary hearing on a Section 2-619 motion to dismiss, the appellate court will not reverse the
court’s factual findings unless they are against the manifest weight of the evidence.)
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 The circuit court may decide easily proved issues of fact “upon the hearing of the motion”
to dismiss pursuant to Section 2-619, but in deciding the merits of the motion, the court cannot
determine disputed factual issues presented solely upon affidavits and counter affidavits. Curtis
Casket Co. v. D.A. Brown & Co., 259 Ill. App. 3d 800, 632 N.E.2d 204 (1st Dist. 1994); Thompson
v. Heydemann, 231 Ill. App. 3d 578, 596 N.E.2d 664 (1st Dist. 1992).

7. Scope Of Section 2-619 Motion

A motion to dismiss pursuant to Section 2-619 asserts an affirmative defense or other
matter that avoids or defeats the plaintiff’s claim. DeLuna v. Burciaga, 223 Ill.2d 49, 59, 857
N.E.2d 229, 236 (2006); Borowiec v. Gateway 2000, Inc., 209 Ill. 2d 376, 413, 808 N.E.2d 957
(2004).

The term “affirmative matter” encompasses any defense other than a negation of the
essential allegations of the plaintiff’s cause of action. Kedzie and 103rd Currency Exchange, Inc.
v. Hodge, 156 Ill. 2d 112, 115, 619 N.E.2d 732, 735 (1993).

“For a motion to be properly brought under section 2-619, the motion (1) must be filed
‘within the time for pleading’; and (2) must concern one of nine listed grounds” set forth in §2-
619(a)(1) through (a)(9). River Plaza Homeowners’ Assn’ v. Healey, 389 Ill. App. 3d 268, 275,
904 N.E.2d 1102 (2009).

A motion to dismiss pursuant to Section 2-619 should invoke one of the nine grounds
which bar relief as identified in 735 ILCS 5/2-619(a), and where a defendant’s motion and
supporting affidavit do not raise any of those nine grounds but instead seek only to deny the factual
allegations of plaintiff’s complaint, such a motion is not properly made under Section 2-619. Hill
v. Butler, 107 Ill. App. 3d 721, 728, 437 N.E.2d 1307, 1313 (4th Dist. 1982).

8. Standard Of Appellate Review On A Section 2-619 Motion

An appeal from an order of dismissal under Section 2-619 is subject to the same standards
as an appeal of an order granting summary judgment. Pryweller v. Cohen, 282 Ill. App. 3d 899,
907, 668 N.E.2d 1144, 1149 (1st Dist. 1996).

9. Particular Grounds For Granting Of 2-619 Motions

(1) Subject Matter Jurisdiction

5/2-619(a)(1) provides that a claim may be dismissed because “...the court does not have
jurisdiction of the subject matter of the action, provided the defect cannot be removed by a transfer
of the case to a court having jurisdiction.”

If the defendant is aware of facts which demonstrate that the circuit court is without subject
matter jurisdiction, defendant should file a motion to dismiss pursuant to Section 2-619(a)(1),
supported by affidavit, in order to bring these facts to the court’s attention. McGee v. Ractian
Constr. Co., 231 Ill. App. 3d 929, 934, 596 N.E.2d 1261, 1265 (4th Dist. 1992).

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 (2) Legal Capacity

5-2-619(a)(2) provides that the action may be dismissed because the plaintiff does not have
legal capacity to sue or that the defendant does not have legal capacity to be sued.

To possess capacity, a natural person must be living at the time of the commencement of
the action; a dead person cannot sue or be sued. Bavel v. Cavaness, 12 Ill. App. 3d 633, 637, 299
N.E.2d 435, 437-38 (5th Dist. 1973); Accord Bogseth v. Emanuel, 261 Ill. App. 3d 685, 689, 633
N.E.2d 904, 907 (1st Dist. 1994).

Individual shareholders of a corporation do not have standing to prosecute claims which are
the property of the corporation in which they invested. Northern Trust Co. v. VIII. South Michigan
Assoc., 276 Ill. App. 3d 355, 363, 657 N.E.2d 1095, 1101 (1st Dist. 1995). Where the only injury
complained of consists of an alleged diminution in the value of the plaintiff’s shares, the plaintiff
cannot sue directly for such losses, but rather, must proceed by means of a derivative suit. Id.
Accord Small v. Sussman, 306 Ill. App. 3d 639, 644, 713 N.E.2d 1216, 1216 (1st Dist. 1999)

(3) Another Pending Action

5/2-619(a)(3) provides that a pleading may be dismissed because there is another action
pending between the same parties for the same cause. Arthur Young & Co. v. Bremer, 197 Ill.
App. 3d 30, 46, 554 N.E.2d 671, 682 (1 Dist. 1990). Dismissal of a Complaint pursuant to 2-
619(a)(3) is authorized only when another proceeding was pending before a body which would
adjudicate the merits of a claim and render a final, binding and enforceable decision. Ransom v.
Marrese, 122 Ill. 2d 518, 529, 524 N.E.2d 555, 560 (1988).

An order dismissing an action on the basis of Section 2-619(a)(3) should contain language
stating that the dismissal is not on the merits.

(i) Timing Of Filing Not Dispositive

Illinois courts have refused to adopt a “first to file” rule with respect to Section 2-619(a)(3)
motions to dismiss. See Continental Grain Co. v. FMC Corp., 27 Ill. App. 3d 819, 824, 327
N.E.2d 371, 375 (1st Dist. 1975). While the order of filing is usually not determinative, courts will
look to the progress of the competing action. Continental Grain, 27 Ill. App. 3d at 824, 327 N.E.2d
at 375.

(ii) The “Same Cause” Requirement

The “same cause” requirement of subdivision (a)(3) mandates only substantial similarity,
not identical causes of action. The court should consider whether the actions arose out of the same
transaction or occurrence and not whether the legal theory, issues, burden of proof, or the remedy
materially differ between them. Phillips Electronics v. New Hampshire Ins. Co., 295 Ill. App. 3d
895, 692 N.E.2d 1268 (1st Dist. 1998).

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 (iii.) The “Same Parties” Requirement

The “same parties” requirement of subdivision (a)(3) does not require that the parties be
identical in both actions; a substantial similarity is sufficient. Phillips Electronics v. New
Hampshire Ins. Co., 295 Ill. App. 3d 895, 904-05, 692 N.E.2d 1268, 1276 (1st Dist. 1998).

(iv) Balancing of Factors

In considering a 2-619(a)(3) motion, courts will also consider whether the policy of
avoiding duplicative litigation outweighs any prejudice to the non-movant, whether the action has
a legitimate and substantial relation to Illinois, whether the Illinois filing represents forum
shopping, and whether Illinois law applies to the action. A.E. Staley Mfg. Co. v. Swift & Co., 84
Ill. 2d 245, 253, 419 N.E.2d 23, 27 (1980); Kapoor v. Fujisawa Pharm. Co., 298 Ill. App. 3d 780,
785-86, 699 N.E.2d 1095, 1099-1110 (1st Dist. 1998); Doutt v. Ford Motor Co., 276 Ill. App. 3d
785, 790, 659 N.E.2d 89, 93 (1st Dist. 1995); Philips Electronics v. New Hampshire Ins. Co., 295
Ill. App. 3d 895, 908, 692 N.E.2d 1268, 1277-78 (1st Dist. 1998).

(v) Option To Stay Proceedings

The following facts should be considered in determining whether a stay is warranted under
subsection (a)(3): comity, the prevention of multiplicity, vexation, and harassment, the likelihood
of obtaining complete relief in the foreign jurisdiction, and the res judicata effect of a foreign
judgment in the local forum. A.E. Staley Mfg. Co. v. Swift & Co., 84 Ill. 2d 245, 254, 419 N.E.2d
23, 27-28 (1980); Phillips Electronics v. New Hampshire Ins. Co., 295 Ill. App. 3d 895, 908, 692
N.E.2d 1268, 1277 (1st Dist. 1998).

(vi) Forum Non Conveniens- Distinguished

Litigants may cite A.E. Staley Mfg. Co. v. Swift & Co., 84 Ill. 2d 245, 253, 419 N.E.2d 23,
27, 50 Ill. Dec. 156, 160 (1980) in arguing that a Section 2-619(a)(3) motion for dismissal must be
denied if the court has rejected forum non conveniens as a basis for dismissal. The Illinois First
District has rejected this interpretation of Staley and held that a Section 2-619(a)(3) motion may
be granted even where a motion for dismissal based on forum non conveniens is denied. Natural
Gas Pipeline Co. v. Phillips Petroleum Co., 163 Ill. App. 3d 136, 144-47, 516 N.E.2d 527, 532-34,
114 Ill. Dec. 372, 377 (1st Dist. 1987) (“[w]e do not read [Staley] to mean that whenever a trial
court denies a forum non conveniens motion a plaintiff has, ipso facto, shown a 'legitimate and
substantial' relation between the litigation and the Illinois forum requiring a denial of a Section 2-
619(a)(3) dismissal unless the defendant presents additional grounds justifying that relief.")

(4) Res Judicata

5/2-619(a)(4) provides that an action may be dismissed because the cause of action is
barred by a prior judgment.

An action may be dismissed with prejudice under the doctrine of res judicata where the
claim is barred by a prior judgment. Papers Unlimited v. Park, 253 Ill. App. 3d 150, 153, 625
N.E.2d 373, 375 (1st Dist. 1993).

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 The doctrine of res judicata is based on the public policy which favors judicial economy
and the finality of litigation. Papers Unlimited v. Park, 253 Ill. App. 3d 150, 153, 625 N.E.2d 373,
376 (1st Dist. 1993). For the doctrine of res judicata to apply, three requirements must be met: (1)
there was a final judgment on the merits by a court of competent jurisdiction; (2) there was an
identity of causes of action; and (3) there was an identity of parties or their privies.” Currie v.
Wisconsin Central, Ltd., 2011 WL 4579598 (1st Dist. Sept. 20, 2011).

The doctrine requires an identity of parties or their privies, identity of the cause of action
and subject matter, and a final judgment on the merits in an earlier suit. Papers Unlimited v. Park,
253 Ill. App. 3d 150, 625 N.E.2d 373 (1st Dist. 1993).

To apply the doctrine of res judicata, a court must determine whether the two lawsuits
involve the same cause of action; the test that Illinois courts generally use to determine this is
whether the evidence needed to sustain the second action would have sustained the first action.
Torcasso v. Standard Outdoor Sales, Inc., 157 Ill. 2d 484, 491, 626 N.E.2d 225, 228 (1992).

(5) Statute Of Limitations

5/2-619(a)(5) provides that a claim may be dismissed because “…the action was not
commenced within the time limited by law.”

A defendant may be permitted to raise a statute of limitations defense in a motion to

dismiss pursuant to Section 2-619(a)(5) even though the defendants did not raise the defense in
their responsive pleading or seek leave to amend to their pleading. Dever v. Simmons, 292 Ill.
App. 3d 70, 684 N.E.2d 997 (1st Dist. 1997).

Compare Laches: The defense of laches may be resolved on a motion to dismiss if its
applicability appears from the face of the complaint or by affidavit submitted with the motion.
Jameson Realty Group v. Kostiner, 351 Ill. App. 3d 416, 432, 813 N.E.2d 1124, 1137 (1st Dist.
2004). Where laches is not apparent from the face of the Complaint, a motion to dismiss based on
laches should be brought under Section 2-619(a)(9) and supported with an affidavit. Summers v.
Village of Durand, 267 Ill. App. 3d 767, 770, 643 N.E.2d 272, 275-76 (2d Dist. 1994).

(6) Release, Satisfaction Or Discharge

5/2-619(a)(6) provides that a claim may be dismissed because “…the claim set forth in the
plaintiff’s pleading has been released, satisfied of record, or discharged in bankruptcy.”

Where a defendant moving for dismissal pursuant to Section 2-619(a)(6) shows a facially
valid release, the burden of proof shifts to the plaintiff to prove that a material issue of fact exists
which would invalidate the agreement. Dickman v. E.I. Du Pont De Nemours & Co., 278 Ill. App.
3d 776, 663 N.E.2d 507 (3d Dist. 1996); Roberts v. Dow Chemical Co., 244 Ill. App. 3d 253, 614
N.E.2d 252 (1st Dist. 1992).

(7) Statute Of Frauds

5/2-619(a)(7) provides that a claim may be dismissed because “…the claim asserted is
unenforceable under the provisions of the Statute of Frauds.”
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 (8) Unenforceable Claim Due To Minority Or Other Disability

5/2-619(a)(8) provides that a claim may be dismissed because “… the claim asserted
against defendant is unenforceable because of his or her minority or other disability.”

This provision is applicable to circumstances where a contract claim is barred based on the
defendant’s lack of capacity to contract due to his or her age or mental incompetence. It has
seldom been used since the 1955 amendments which revised the second ground for dismissal (i.e.
Section 2-619(a)(2) to include lack of capacity of the defendant as well as the plaintiff.

(9) Barred By Other Affirmative Matter Defeating The Claim

5/2-619(a)(1) provides that a claim may be dismissed because “…the claim asserted against
defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.”

The term “affirmative matter” is broader than “affirmative defense.” Hermes v. William F.
Meyer Co., 65 Ill. App. 3d 745, 382 N.E.2d 841 (2d Dist. 1978). It encompasses any defense other
than a negation of the essential allegations of the plaintiff’s cause of action. Kedzie and 103rd
Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 115, 619 N.E.2d 732, 735 (1993). Accord In
Re Marriage of Vaughn, 403 Ill. App. 3d 830, 935 N.E.2d 123 (1st Dist. 2010).

“Affirmative matter” has been held to include a type of defense that either defeats an
alleged cause of action completely or refutes crucial conclusions of law or conclusions of material
fact contained in or inferred from the complaint. Zahl v. Krupa, 365 Ill. App. 3d 653, 659, 850
N.E.2d 304, 310 (2d Dist. 2006); Consumer Electronics Co. v. Cobelcomex, Inc., 149 Ill. App. 3d
699, 703, 501 N.E.2d 156, 159 (1st Dist. 1986). Accord Pryweller v. Cohen, 282 Ill. App. 3d 899,
907, 668 N.E.2d 1144, 1149 (1st Dist. 1996).

SECTION 2-1005 MOTIONS FOR SUMMARY JUDGMENT

1. The Statute
5/2-1005 provides:

Sec. 2-1005. Summary judgments. (a) For plaintiff. Any time after the opposite party has
appeared or after the time within which he or she is required to appear has expired, a plaintiff may
move with or without supporting affidavits for a summary judgment in his or her favor for all or
any part of the relief sought.
(b) For defendant. A defendant may, at any time, move with or without supporting affidavits for a
summary judgment in his or her favor as to all or any part of the relief sought against him or her.
(c) Procedure. The opposite party may prior to or at the time of the hearing on the motion file
counteraffidavits. The judgment sought shall be rendered without delay if the pleadings,
depositions, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter
of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability
alone although there is a genuine issue as to the amount of damages.
(d) Summary determination of major issues. If the court determines that there is no genuine issue

14
of material fact as to one or more of the major issues in the case, but that substantial controversy
exists with respect to other major issues, or if a party moves for a summary determination of one or
more, but less than all, of the major issues in the case, and the court finds that there is no genuine
issue of material fact as to that issue or those issues, the court shall thereupon draw an order
specifying the major issue or issues that appear without substantial controversy, and directing such
further proceedings upon the remaining undetermined issues as are just. Upon the trial of the case,
the facts so specified shall be deemed established, and the trial shall be conducted accordingly.
(e) Form of affidavits. The form and contents of and procedure relating to affidavits under this
Section shall be as provided by rule.
(f) Affidavits made in bad faith. If it appears to the satisfaction of the court at any time that any
affidavit presented pursuant to this Section is presented in bad faith or solely for the purpose of
delay, the court shall without delay order the party employing it to pay to the other party the
amount of the reasonable expenses which the filing of the affidavit caused him or her to incur,
including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of
contempt.
(g) Amendment of pleading. Before or after the entry of a summary judgment, the court shall
permit pleadings to be amended upon just and reasonable terms.
(Source: P.A. 84-316.)

2. Distinguished From Section 2-615 Motion To Dismiss

A 2-1005 motion can be distinguished from a 2-615 motion in that a motion to dismiss
under 735 ILCS 5/2-615 attacks only the legal sufficiency of the complaint and does not raise
affirmative factual defenses. Urbaitis v. Commonwealth Edison, 143 Ill. 2d 458, 575 N E 2d 548
(1991). A 2-1005 summary judgment motion is appropriate where the pleadings, affidavits,
depositions and admissions on file, when viewed in the light most favorable to the nonmoving
party, demonstrate that there is no issue of material fact and that the moving party is entitled to
judgment as a matter of law. West Bend Mutual Insurance v. Norton, 406 Ill. App. 3d 741, 744,
346 Ill. Dec. 572, 940 N. E. 2d 1176, 1179. (3rd Dist. 2010), citing Smithberg v. Illinois Municipal
Retirement Fund, 192 Ill. 2d 291, 735 N.E.2d 560, 248 Ill. Dec. 909 (2000).

3. Distinguished from 2-619 Motion to Dismiss

Dismissal under section 2-619 is appropriate when an affirmative matter bars or defeats the
plaintiff's claim. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 115, 619 N.E.2d
732, 189 Ill. Dec. 31 (1993). Hodge, 156 Ill. 2d at 115. "Affirmative matter" means some kind of
defense "other than a negation of the essential allegations of the plaintiff's cause of action." Hodge, 156
Ill. 2d at 115. A defendant moving for dismissal under 2-619 otherwise admits the sufficiency of
plaintiff’s cause of action. Hodge, 256 Ill. 2d at 115. In contrast, a movant for summary judgment is
asserting that, viewing all the pleadings, affidavits, depositions and other documents on file in a light
most favorable to the nonmoving party, that the moving party is entitled to judgment as a matter of
law. Smithberg v. Illinois Municipal Retirement Fund, 192 Ill. 2d 291, 735 N.E.2d 560, 248 Ill. Dec.
909 (2000).

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 4. Time to file a summary judgment motion

While motions to dismiss must be filed within the time for a defendant to answer, the time
to file a summary judgment motion is more relaxed. A plaintiff may file a summary judgment
motion any time after the defendant has appeared or after the time when the defendant is required
to appear. 735 ILCS 5/2-1005(a). A defendant, however, may move for summary judgment at any
time, with or without supporting affidavits. 735 ILCS 5/2-1005(b).

PRACTICE TIP: Check the time for filing in your Circuit

Different circuits have different rules for the filing of summary judgment
motions. Cook County Circuit Court Rule 2.1 (f) provides that all motions for
summary judgment in the law division shall be filed and duly noticed for hearing
such that the motion comes before the court for initial presentation and entry of a
briefing schedule not later than forty-five (45) days before the trial date, except by
prior leave of court and for good cause shown or unless a deadline for dispositive
motions is otherwise specified in the case management order.

The 16th Circuit Court Rule 6.06(a) provides that all dispositive motions must
be filed, noticed and set at least 120 days before the trial date, except by leave of
court upon good cause shown.

The 18th Circuit Court Rule 6.04(a) provides that dispositive motions shall be
filed no later than 63 days before the scheduled trial date, except by prior leave of
court and for good cause shown.

5. Affidavits and Other Evidence In Support of a Summary Judgment

Motion
Affidavits filed in support of Section 2-1005 motions are controlled by Illinois Supreme
Court Rule 191. Robidoux v. Oliphant, 201 Ill. 2d 324 (2002). An affidavit must be based on the
actual, personal knowledge of the affiant. A statement that the affiant understood something was
found to be insufficient because the affiant was stating assumptions, not facts. Extel v. Cermetek
Microelectronics, 183 Ill. App. 3d 688 (1st Dist. 1989). Allegations cannot be made upon
information and belief because a trial court cannot determine which part of the affidavit is based
on the affiant’s knowledge and which part is based upon information and belief. Fooden v. Board
of Governors of State Colleges and Universities of Illinois, 48 Ill. 2d 580 (1971). An affidavit
which does not have any basis to show how the affiant acquired the knowledge of the facts does
not comply with Rule 191(a). Steuri v. Prudential Insurance Co., 282 Ill. App. 3d 753 (1st Dist.
1996). Affidavits cannot simply state that the allegations contained in a pleading are true or false.
Roe v. Jewish Children’s Bureau, 339 Ill. App. 3d 119 (1st Dist. 2003). Where the movant seeks to
establish evidentiary facts in support of a motion for summary judgment by way of affidavit, Rule
191, Supreme Court Rules, requires that the affidavits relied upon consist of facts admissible in
evidence, not mere conclusions; facts in an affidavit which are not contradicted by a
16
counteraffidavit will be taken as true despite contrary averments in the pleadings. Motz v. Central
Nat'l Bank, 119 Ill. App. 3d 601, 456 N.E.2d 958 (1 Dist. 1983).

Answers to interrogatories may be treated like affidavits for purposes of summary

judgment. Answers to interrogatories to be treated as affidavits for summary judgment purposes,
which, if uncontradicted, stand as admitted. Estate of Henderson ex rel. Henderson v. W.R. Grace
Co., 185 Ill. App. 3d 523, 541 N.E.2d 805 (3 Dist. 1989).

PRACTICE TIP: DOCUMENTS SUBMITTED IN SUPPORT OF AN

AFFIDAVIT MUST THEMSELVES BE SWORN TO OR CERTIFIED.

If the documents submitted in support of or in response to a Rule 191(a)

affidavit are not sworn to, certified or otherwise authenticated, there should be an
affidavit setting forth the proper foundation for those documents. Robidoux v.
Oliphant, 201 Ill. 2d 324 (2002). In Oliphant, a doctor’s affidavit was submitted in
which he stated that he relied on certain medical records in reaching his opinion.
Those medical records were not attached to his affidavit. His affidavit was
accordingly stricken for noncompliance with Rule 191(a)’s requirement that the
affidavit “… shall have attached thereto sworn or certified copies of all papers upon
which the affiant relies…” As the Illinois Supreme Court emphatically declared,
“Supreme Court Rules are neither aspirational nor are they suggestions; they have
the force of law, and the presumption must be that they will be enforced as written,”
Oliphant, 201 Ill. 2d at 332, citing Bright v. Dicke, 166 Ill. 2d 204, 210, 652 N. E.
2d 275 (1995).

6. Summary Judgment is Viewed as a “Drastic Remedy”

Summary judgment is a drastic means of disposing of litigation and a reviewing court has a
duty to construe the record strictly against the movant and liberally in favor of the nonmoving
party. Murray v. Chicago Youth Center, 224 Ill. 2d 213, 246 (2007). Summary judgment should
not be allowed unless the moving party’s right to judgment is clear from doubt because the
plaintiff is not required to prove his case at the summary judgment stage. Id. Any inferences which
may be reasonably drawn from the evidence are resolved in favor of the non-movant. Frazier v.
Smith & Wesson, 140 Ill. App. 3d 963, 967 (1st Dist. 1986). An issue should be decided by the trier
of fact and summary judgment must be denied where reasonable persons could draw divergent
inferences from disputed facts. The purpose of summary judgment is not to try an issue of fact, but
to determine whether a triable question of fact exists. Miller v. Smith, 137 Ill. App. 3d 192, 196 (5th
Dist. 1985). Summary judgment should be granted only if the pleadings, affidavits, depositions,
admissions, and exhibits on file, when viewed in the light most favorable to the nonmovant, show
that there is no genuine issue as to any material fact and that the movant is entitled to judgment as
a matter of law. Although summary judgment is to be encouraged to expedite the disposition of
lawsuits, it is a drastic procedure and should be allowed only when the right of the moving party to

17
summary judgment is clear and free from doubt. Nowak v. Coghill, 296 Ill. App. 3d 886, 695
N.E.2d 532, (1 Dist. 1998).

7. Summary Judgment Is Also An Important Tool In the Administration of Justice

Summary judgment “is an important tool in the administration of justice, and its use in a
proper case is to be encouraged because its benefits inure not only to the litigants in the savings of
time and expenses, but to the community in avoiding congestion of trial calendars and the
expenses of unnecessary trials.” Safeway Ins. Co. v. Hister, 304 Ill. App. 3d 687, 690, 710 N.E.2d
48, 51 (1st Dist. 1999).

8. No Genuine Dispute of Material Fact.

The factual issues in dispute must be material to the essential elements of the cause of
action or defense; those which are unrelated, regardless of how sharply controverted, do not
warrant the denial of summary judgment. Boylan v. Martindale, 103 Ill. App. 3d 335, 431 N.E.2d
62 (2nd Dist. 1982).

9. Evidence As To Each Element of Each Claim

A defendant moving for summary judgment meets its burden of production by presenting
evidence that, left unrebutted, would entitle it to judgment as a matter of law or by demonstrating
that the plaintiff will be unable to prove an element of its cause of action. McGath v. Price, 342
Ill. App. 3d 19, 30, 793 N.E.2d 801, 810 (1st Dist. 2003). Once the defendant produces such facts,
the burden then shifts to the plaintiff to present some evidence allowing the imposition of liability
on the defendant and supporting each element of his cause of action, thereby defining a material
issue of fact to be determined at trial. (Id.)

10. Two Ways for Defendant to Meet its Initial Burden of Production

A defendant who moves for summary judgment may meet its initial burden in two ways.
See R. Michael, Illinois Practice sec. 40.2, at 271-72 (1989) (Civil Procedure Before Trial). The
first is similar to the way a plaintiff would establish his right to summary judgment: by
affirmatively showing that some element of the case must be resolved in his favor. A defendant
who uses that method is required to prove something he or she would not have to prove at trial,
because at trial the burden of proof would be on the plaintiff to prove the element, not on the
defendant to disprove it. Hutchinson v. Independent Mechanical Industries, Inc., 312 Ill. App. 3d
351, 355, 726 N. E. 2d 1171 (4th Dist. 2000).

The second method for a defendant to meet its initial burden was recognized in Celotex
Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 275, 106 S. Ct. 2548, 2553-54 (1986). In
that case, Celotex, the movant, could not prove that its products were not the cause of plaintiff’s
injuries. Celotex was nevertheless entitled to summary judgment because plaintiff, who had the
burden of proof, likewise could not produce any proof that a Celotex product was involved.
Celotex held that the defendant satisfies its initial burden of production when it points out the
absence of evidence supporting the plaintiff’s position. Celotex, 477 U.S. at 325, 91 L. Ed. 2d at
275, 106 S. Ct. at 2554. Illinois cases require a defendant to do more than just point out the

18
absence of evidence. See R. Michael, Illinois Practice, Sec. 40.3 at 272 (1989) (Civil Procedure
Before Trial). Professor Michael observes that this burden may not be met by a simple recital in
the defendant’s affidavit to that effect. In Kimbrough v. Jewel Cos., 92 Ill. App. 3d 813, 817, 416
N. E. 2d 328, 331 (1st Dist. 1981), the defendant was able to produce a deposition for plaintiff in
which plaintiff stated she did not know why she fell as well as answers to interrogatories in which
plaintiff admitted that there were no eyewitnesses. In Eric Hutchcraft v. Independent Mechanical
Industires, Inc., 312 Ill App. 3d 351, 726 N. E. 2d 1171 (4th Dist. 2000), the appellate court
affirmed the granting of a Celotex summary judgment motion because plaintiff was unable to show
that the defendant contractor was in control of the premises under construction. Accordingly no
duty was owed by the contractor to the injured plaintiff. 312 Ill. App 3d at 358-360. Defendant’s
burden of production is accordingly reduced in a Celotex-type motion. However, whether it is a
Celotex motion or a traditional summary judgment motion, once defendant has satisfied its initial
burden of production, the burden shifts to plaintiff to present some factual basis that would
arguably entitle it to a judgment under the applicable law. Kimbrough, 92 Ill. App. 3d at 819, 416
N. E. 2d at 333.

11. The Burden Shifts

As discussed above, once the burden of production has been met by the defendant in a
summary judgment motion, the burden shifts to the plaintiff, respondent. The respondents to a
summary judgment motion which is supported by an affidavit cannot rely on their unverified
complaint alone. This is true even if the complaint is verified. Doherty v. Kill, 140 Ill. App. 3d 158,
488 N.E. 2d 629 (1st Dist. 1986). Once the movant has met its initial burden of going forward, the
burden shifts to the respondent, who must then come forward with evidentiary material to create a
genuine issue of fact, thereby defeating the motion for summary judgment, Pecora v. County of
Cook, 323 Ill. App 3d 917, 933, 752 N.E. 2d 532 (1st Dist. 2001).

12. Discovery

Rule 191(b) provides for discovery in a summary judgment motion when material facts are not
obtainable. Agency's contention had to be rejected that the trial court should have allowed it to
conduct additional discovery before finding that certain records it sought from the company
regarding medication errors that three pharmacists it employed may have committed were
privileged. Since the agency failed to file an affidavit in the trial court, pursuant to Rule 191(b),
stating that it needed to conduct additional discovery, it forfeited any argument that the trial court
prematurely granted the company's motion to dismiss. Dep't of Fin. & Professional Regulation v.
Walgreen Co., Ill. App. 3d , 970 N.E.2d 552 (2nd Dist. 2012). Where plaintiff did not file an
affidavit containing a statement that material facts were known only to persons whose affidavits
the plaintiff was unable to procure by reason of hostility or otherwise, identifying the persons, and
showing why their affidavits could not be procured and what the plaintiff believed they would
testify to if sworn, along with the reasons for this belief, plaintiff could not claim that the entry of
summary judgment must be reversed because plaintiff required additional discovery in order to
oppose the motion for summary judgment. Intercontinental Parts, Inc. v. Caterpillar, Inc., 260 Ill.
App. 3d 1085, 631 N.E.2d 1258 (1st Dist. 1994).

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 13. No “One Summary Judgment” Rule / No Res Judicata

Since it is not a final order, a trial court's earlier denial of a motion for summary judgment
cannot form the basis of a claim of res judicata. Pagano v. Occidental Chem. Corp., 257 Ill. App.
3d 905, 196 Ill. Dec. 24, 629 N.E.2d 569 (1 Dist.), appeal denied, 155 Ill. 2d 566, 198 Ill. Dec.
545, 633 N.E.2d 7 (1994). It was not error for trial judge to grant summary judgment where the
motion consisted of the same arguments and contentions found in a motion for summary judgment
filed two years earlier which a previous judge had denied. Pearson v. Partee, 218 Ill. App. 3d 178,
578 N.E.2d 81 (1 Dist. 1991). Trial court acted within the bounds of its authority in ruling on
defendants' motion for summary judgment after another judge had already denied the same
dispositive motions, where there was no evidence of bad faith on the part of defendants in
renewing their motions, nor evidence of "judge shopping." Dowd & Dowd, Ltd. v. Gleason, 284
Ill. App. 3d 915, 672 N.E.2d 854 (1 Dist. 1996), affirmed as modified, 181 Ill. 2d 460, 230 Ill.
Dec. 229, 693 N.E.2d 358 (1998).

14. Appeals

The granting of a summary judgment motion may be appealable under Rule 304(a). This
Rule requires an express finding by the judge that there is no just reason for delaying the appeal.
155 Ill. 2d R. 304(a).A summary judgment order may also be appealable under Rule 301, which
states that every final judgment of a circuit court in a civil case is appealable as of right. 155 Ill. 2d
R. 301.A denial of a summary judgment motion is generally a non-final order and therefore not
appealable. Chavda v. Wolak, 188 Ill. 2d 394, 403, 721 N. E. 2d 1137 (1999). There is an
exception to the general rule that a denial of a summary judgment motion is a non-final and
therefore non-appealable order where the parties filing opposing motions on the same claim and
the trial court grants one and denies the other. In Arangold Corp. v. Zelender, 187 Ill. 2d 341, 358,
718 N. E. 2d 240 (1999), the Illinois Supreme Court explained that the reasoning for that rules is
that in such a case the resulting order granting one motion and denying the other is final and
appealable because it entirely disposes of the litigation.

The appellate court's review of summary judgment motion is de novo. Sollami v. Eaton,
319 Ill. App. 3d 612, 254 Ill. Dec. 335, 747 N.E.2d 375, 2001 Ill. App. LEXIS 250 (1 Dist. 2001).

20