Transcript Rules Review for Litigation Practice

RULES REVIEW FOR
LITIGATION PRACTICE
by Donald Patrick Eckler
June 8, 2009
Attention to procedural details is important for
several reasons and can serve many purposes:
•
attack the opposing parties’ submissions
•
ensure our own submissions are proper and
avoid the time of expense of defending improper
pleadings
•
gain tactical advantage
•
obtain additional information without discovery
SCR 137 and FRCP 11 guides and
form the basis for all other rules.
•
Our obligation to follow the rules in part
flows from our duty to represent our
clients zealously and adhere to our oaths.
•
Knowing and following the rules is
necessary to effective representation.
Scenario #1: Time to Respond
You receive an assignment to defend a
client on June 8, 2009. The client was
served on June 1, 2009. When is the
responsive pleading due?
Pursuant to Supreme Court Rule 181(a), the
responsive pleading is due July 2, 2009.
Supreme Court Rule 181(a) states: “[w]hen the
summons requires appearance within 30 days
after service, exclusive of the day of service, the
30 day period shall be computed from the day
the copy of the summons is left with the person
designated by law.”
Scenario #2: Time to File Reply
You timely file your answer to the complaint
and with it file several affirmative defenses
and a counterclaim. When is the reply to your
affirmative defenses due? When is the answer
to your counterclaim due?
•
Pursuant to Supreme Court Rule 182, the
responsive pleading to an affirmative defense
or a counterclaim is due 21 days after the last
day the allowed for the filing of the answer.
In this case by July 23, 2009.
• Accordingly, there is no advantage to filing
affirmative defenses or counterclaims early
because all you are doing is giving the
opponent extra time.
•
One of the most important reason to
pay attention to the dates of service
is to ensure that you do not miss the
filing date for a counterclaim for
contribution.
•
Under 735 ILCS 5/13-204 you have 2
years from the date of service to file.
•
This is particularly important in
cases transferred from other firms.
Scenario #3: Personal Jurisdiction
Your client was served on June 1, 2009 in
Georgia with a summons for a complaint
filed in Illinois. Your client is a resident of
Georgia and has never been to Illinois and
has no contacts with Illinois. You want to
challenge jurisdiction. What is the proper
procedure?
• You should file your appearance with either a
motion to dismiss for lack of personal
jurisdiction under 735 ILCS 5/2-301 or a
motion for extension of time. Any other
actions will waive your planned jurisdictional
argument.
• The amended version of 735 ILCS 5/2-301,
does not differentiate between general and
special and limited appearances.
• Under Illinois law the reach of the jurisdiction of
Illinois courts is coextensive with federal due process.
See 735 ILCS 5/2-209. This renders the specific acts
which subject a party to jurisdiction, in large part,
obsolete.
• However, Illinois constitution has been found to
provide protection in addition to that provided by
federal constitution. Rollins v. Ellwood, 141 Ill.2d
244, 277 (1990).
• Further, Illinois courts have rejected “conspiracy
theory” of jurisdiction despite the fact that federal
courts have embraced it. Ploense v. Electrolux Home
Products, Inc., 377 Ill.App.3d 1091 (4th Dist. 2007)
and Knaus v. Guidry, 2009 Ill.App. LEXIS 143 (1st
Dist. March 27, 2009).
Scenario #4: Service of Process and
Diligence
Your client, a corporation, has been served with
process on June 1, 2009 by special process server.
You notice upon your investigation that the
complaint was filed in June 2007 in DuPage County
and that because the action arises out of alleged
construction negligence the statute of limitations ran
in May 2009. Your client has had the same
registered agent for the past 10 years. The registered
agent is located in Cook County. Finally, you notice
that the plaintiff first issued a summons for your
client by the Circuit Court of DuPage County in
March 2009. Other than the issuance of the
summons the plaintiff has taken no other efforts for
service. What action should you take?
•
First, you should move to quash service.
Pursuant to 735 ILCS 5/2-202(f), if
defendant is located in Cook County, even
though the case is pending outside of Cook
County the plaintiff must get leave to appoint
special process server, even if case is pending
outside Cook County. Schorsch v. Fireside
Chrysler-Plymouth Mazda, Inc., 172
Ill.App.3d 993, 998 (2nd Dist. 1998).
•
After that motion is granted, and your client
is served again, this time properly, you
should file a motion to dismiss with prejudice
under Supreme Court Rule 103(b). If the
statute had not yet run then the dismissal
would be without prejudice.
Analysis under Supreme Court Rule 103(b) considers the following
factors:
(1)
the length of time used to obtain service of process;
(2)
the activities of the plaintiff;
(3)
plaintiff's knowledge of the defendant's location;
(4)
the ease with which the defendant's whereabouts could have
ascertained;
(5)
special circumstances which would affect plaintiff's efforts; and
(6)
actual service on the defendant.
been
Womick v. Jackson County Nursing Home, 137 Ill.2d 371, 377, 561 N.E.2d 25
(Ill. 1990).
•
All of these factors are to be considered with
a view toward fulfilling the constitutional
mandate of rendering justice fairly and
promptly. Womick v. Jackson County Nursing
Home, 137 Ill.2d 371, 377, 561 N.E.2d 25 (Ill.
1990).
•
Time is the most important factor. Mosley v.
Spears, 126 Ill.App.3d 35, 40- 41, 261 N.E.2d
510 (1st Dist. 1970).
Cases in which relatively short amounts of time were sufficient
to support a dismissal:
•
Riopelle v. Northwest Community Hospital, 195 Ill.App.3d 750, 552,
N.E.2d 1220 (1st Dist 1990) (103(b) motions to dismiss were upheld
where Plaintiff served one defendant 5 ½ weeks after refilling and
another 4 months after refiling);
•
Tischer v. Jordan, 269 Ill.App.3d 301 645 N.E.2d 991 (1st Dist 1995)
(where six months after the complaint was filed was no reasonable
diligence);
•
Penrod v. Sears, Roebuck, & Company, 150 Ill.App.3d 125, 501 N.E.2d
367 (4th Dist 1986) (the court finding that eight months after statute of
limitations ran was too long);
•
Womick v. Jackson County Nursing Home, 137 Ill.2d 371, 561 N.E.2d
25 (Ill. 1990) (nine months was not a reasonable time to serve
defendant); and
•
Leubbing v. Copley Medical Center, 60 Ill.App.3d 780, 377 N.E.2d 345
(2nd Dist 1978) (court finding 10 months too long to serve).
•
Courts may not consider any act taken
before the statute of limitations ran.
Langford v. Sentry Insurance of Illinois,
Inc., 193 Ill.App.3d 386, 388, 549 N.E.2d
951 (5th Dist 1990).
•
Courts may not consider any acts which
were quashed by the court and thereby
declared invalid. Viking Dodge
Incorporated v. Hoffmann, 161 Ill.App.3d
186, 189, 514 N.E.2d 248 (3rd Dist. 1987).
Scenario #5: Venue
Your clients are a corporation and its
employee. The corporation is a nursery
located in DuPage County. While in the scope
of employment, one of the corporation’s
employees (your client), a resident of Lake
County, was involved in an automobile
accident in DuPage County. The plaintiff, a
resident of Cook County, files a complaint
against your clients in Cook County. What
action should you take?
•
There is no venue over the employee. 735 ILCS
5/2-101(a). There may be venue over the corporation
if it does business in Cook County, but this is
something you will have to investigate. If venue is
proper over the corporation then venue is proper for
the entire action. Id.
•
The timing of your motion to transfer, if there is
one, is within the time for an answer to be filed and it
must be filed with the responsive pleading, else it is
waived. 735 ILCS 5/2-104(b). Sullivan v. Sullivan,
110 Ill.App.3d 714 (1st Dist. 1982); Pet Rescue, Inc.
v. Doherty, 302 Ill.App.3d 274 (2nd Dist. 1999).
•
In support of any motion you should attach an
affidavit of your allegations that venue is not
proper over either of your clients.
Scenario #6: Forum
Your client is a foreign corporation licensed to do
business in Illinois. It has no facilities in Illinois
other than its registered agent, which is in Cook
County. The plaintiff was injured in Quincy,
Illinois, which is in Adams County, while using
one of your client’s products. The plaintiff files its
complaint against your client in Cook County.
You would rather not litigate in Cook County. Do
you have an argument to transfer venue? If you
cannot transfer venue, what other action should
you take?
• Venue is proper against your client because your
client is a foreign corporation licensed to do
business in Illinois. Accordingly, venue is
proper in Cook County because your client has a
registered agent in Cook County. See 735 ILCS
5/2-102.
• However, you are not without options to
transfer. What is your other option? When do
you have to file that motion by in order to be
timely?
•
You may be able to file a motion to transfer
forum under the doctrine of forum non
conveniens pursuant to Supreme Court
Rule 187.
•
A motion to transfer under Supreme Court
Rule 187 presupposes that venue is proper
in the chosen forum. Dawdy v. Union
Pacific Railroad Co., 207 Ill.2d 167, 171
(2003).
In addition to the strong preference to the plaintiff’s
forum selection, the factors to be considered are, the
private and public interest factors.
The private interest factors are:
1) convenience of the parties;
2) the relative ease of access to the sources of
testimonial, documentary, and real evidence; and
3) all other practical problems that make trial of
a case easy, expeditious and inexpensive Langenhorst
v. Norfolk Southern Railway Co., 219 Ill.2d 430, 443444 (2006).
The public interest factors are:
1) the interest in deciding controversies
locally;
2) the unfairness of imposing trial expense
and burden of jury duty on residents of a forum
that has little connection to the litigation; and
3) the administrative difficulties presented by
adding litigation to a already congested court
dockets. Id.
A motion to transfer pursuant to Supreme Court Rule 187
must be filed within 90 days of the time for the responsive
pleading to be filed.
Rule 187 was adopted ... to provide for timely filing of
motion on forum non conveniens grounds ...
*
*
*
*
*
[p]aragraph (a) calculates the period for a filing a forum
non conveniens motion from the last day allowed for the
filing of the party’s answer. (Compare Rule 182(a).)
Paragraph (a) refers to “that party’s answer” to insure that a
later-joined defendant is not foreclosed from filing a forum
non conveniens motion by the failure of another defendant
to do so in a timely manner.
Scenario #7: Forum continued
Changing the facts from Scenario #6, what effect
would the fact that the plaintiff was a resident of
Lake County have on the motion to transfer? A
resident of Wisconsin?
As the Supreme Court has stated:
• “[w]hen the plaintiff is foreign to the forum chosen and the
action that gives rise to the litigation did not occur in the
chosen forum, this assumption [of convenience] is no
longer reasonable. Instead, it is reasonable to conclude
that the plaintiff engaged in forum shopping to suit his
individual interests, a strategy contrary to the purposes
behind the venue rules.” Dawdy v. Union Pacific Railroad
Co., 207 Ill.2d 167, 174 (2003).
• Accordingly, if the plaintiff is not from the county where
the accident occurred and the accident did not occur in the
chosen forum, the forum shopping can be assumed.
Other issues to consider in filing a motion to transfer pursuant to
Supreme Court Rule 187:
•
Subsequent treating physicians is not to be given undue
weight, given the obvious incentive it would create for
potential plaintiffs to seek care in the forum they would
prefer their case to be tried. Bland v. Norfolk & Western
Railway Co., 116 Ill.2d 217, 226-227 (1987).
•
Affidavits should be offered in support of motion to
transfer in order to establish inconvenience of the chosen
forum. Langenhorst, 219 Ill.2d at 450.
•
The Annual Report of the Administrative Office of the
Illinois Courts is the proper reference in assessing court
congestion. Dawdy, 207 Ill.2d at 181.
Scenario # 8: Appeals of transfer and
personal jurisdiction motions
Your motion to dismiss for lack of personal
jurisdiction, transfer venue, or to transfer under
forum non conveniens is denied. Do you have
any recourse for appeal?
•
Under Supreme Court Rule 306 you have
an option appeal a denial of motions to
dismiss for lack of personal jurisdiction,
transfer of venue, and transfer pursuant to
forum non conveniens.
•
The Appellate Court must grant a petition to
pursue such an appeal but the option is
available and should be at least considered.
Other useful appeal rules to keep in mind:
Supreme Court Rule 304 – applies
when some of the claims or some of the
parties are dismissed.
The party must ask for the court to put
language into the order that is
consistent with the findings necessary
for an appeal under this Rule.
Supreme Court Rule 307 – certain
appeals of interlocutory orders are
appealable as of right.
Supreme Court Rule 308 – in cases
where you believe you have a novel
issue of law you can petition the trial
court to certify a question to the
appellate court and then you petition
the appellate court to answer your
certified question.
Scenario #9: Answers to Complaints
You receive a complaint containing standard allegations of
negligence. There is no basis to dismiss and so you have to
answer to the complaint. Some of the allegations you do not
have the information to admit or deny. Is the response
below a proper response to such allegations?
Defendant is without sufficient information to admit or
deny the allegations of Paragraph 1 of Count III of the
Third Amended Complaint, and therefore demand strict
proof thereof, and denies the same.
•
No.
•
This response is an internally inconsistent and the
response violates SCR 137. It is not possible to have
sufficient information and then deny.
•
735 ILCS 5/2-610 provides three possibilities:
admit, deny, or a claim of want of knowledge.
To do both with respect to a single allegation is
not proper.
•
In order to properly claim want of knowledge
claim you must attach an appropriate affidavit
pursuant to 735 ILCS 5/2-610(b).
Scenario #10: Exhibits to complaints
You receive a complaint based on a claim of
breach of contract. The complaint does not
have attached the contract upon which the
claim is based. What action should you take?
•
Pursuant to 735 ILCS 5/2-606 a motion to
dismiss is proper. If a complaint is based on a
written instrument, the instrument must be
attached to the complaint.
•
What is more important, and more common, is
for there to be a contradiction between the
attached documents and the allegations. The
exhibits, whether they are contracts or other
documents, control over the contrary pleadings.
Mars, Inc. v. Heritage Builders of Effingham,
327 Ill.App.3d 346, 355 (4th Dist. 2002).
Scenario #11: Proper answer to
complaint
You receive a complaint based on a breach of
contract and the contract is attached as an exhibit
to the complaint. Some of the allegations refer to
and quote the contract. Is it proper to answer the
complaint and state the contract speaks for itself?
No. As Judge Shadur put it in State Farm v. Riley, 199 FRD
276 (ND.Ill. 2001):
[a]nother unacceptable device, used by lawyers who would
prefer not to admit something that is alleged about a
document in a complaint (or who may perhaps be too lazy to
craft an appropriate response to such an allegation), is to say
instead that the document “speaks for itself.” This Court has
been attempting to listen to such written materials for years
(in the forlorn attempt that one will indeed give voice) - but
until some such writing does break its silence, this Court will
continue to require pleaders to employ one of the three
alternatives that are permitted. (emphasis in original).
Scenario #12: Pleading punitive of
damages
You receive a complaint sounding in fraud and
breach of contract. In this initial complaint the
plaintiff seeks punitive damages. Is this proper?
Do you have basis for a motion to strike the claims
for punitive damages?
•
No.
•
Under 735 ILCS 5/2-604.1 only claims for bodily injury
or property damage forbid the initial pleading of
punitive damages. However, in those cases if punitive
damages are pled a motion to strike should be filed.
•
The purpose of 2-604.1 is to limit use of punitive
damages. Spires v. Mooney Motors, Inc., 229
Ill.App.3d 917, 919 (4th Dist., 1992); McCann v.
Presswood, 308 Ill.App.3d 1068, 1071 (4th Dist., 1999).
Accordingly, the plaintiff must file a motion with 30
days of the close of discovery and seek leave to file a
complaint seeking punitive damages.
Scenario #13: Verified pleadings
You receive a verified complaint for which you must
file a responsive pleading. The complaint has
exhibits attached to it which seem to contradict
with the allegations pled in the complaint. Can you
use the verification to argue for a dismissal with
prejudice?
•
Yes.
•
As discussed earlier the exhibit control over the
allegations. In addition, after a verified
pleading the allegations stand as judicial
admissions. Yarc v. American Hospital Supply
Corp., 17 Ill.App.3d 667, 670 (1st Dist. 1974).
•
When responding to a verified complaint always
look to see if there are allegations that
contradict the pleading and if there are
allegations that formulate the cause of action.
•
Another important issue in answering a v
verified complaint is that once a complaint
is verified all of the subsequent pleadings
must be verified, including answers,
counterclaims, affirmative defenses, and
replies.
•
You do not want to have a problem of
admitting allegations by not properly
responding to a verified pleading.
Scenario #14: Pleading affirmative
defenses
You receive and reply to a counterclaim you have
filed that includes affirmative defenses. The
affirmative defenses do not include allegations of
fact, just a description of the legal theory. Is this
proper? What is the appropriate response?
•
No.
•
Under Illinois affirmative defenses must
be pled “facts constituting any affirmative
defense.” 735 ILCS 5/2-613(d); Knox College v.
Celotex Corp., 88 Ill.2d 407, 426-27 (1981);
735 ILCS 5/2-613(d).
•
The appropriate response to this situation is a
motion to strike under 735 ILCS 5/2-615.
•
Why would you do this?
•
It is often important to draw the other side
out with respect to the facts they are relying
on for their legal theories. If pressed, you
will often find that they will drop the issue.
At the very least you will get valuable
information as to the other side’s thinking.
•
The pleadings will set the stage for the
remainder of the case and sets for the issues.
Scenario #15: Multiple allegation
paragraphs and multiple party counts
You receive a complaint that is pled with
paragraphs that are several sentences in length
and has combined allegations against two
defendants into one count. If you have no legal
theory to attack the pleading, can you file a motion
to strike? Should you?
• Yes. There are two deficiencies with the complaint that
require a motion.
1) 735 ILCS 5/2-603(b) states: “all pleadings contain a
plain and concise statement of the pleader’s cause of
action” and “that each separate cause of action upon
which a separate recovery might be had ... shall be
divided into paragraphs numbered consecutively,
each paragraph containing, as nearly as may be, a
separate allegation.” 735 ILCS 5/2-603(a) and (b)
•
In held Rubino v. Circuit City Stores, Inc., 324
Ill.App.3d 931, 938 (1st Dist. 2001) the court held that
a complaint may be dismissed for failure to comply
with the statutory pleading requirements.
2) Under 2-603(b) each count must be
against a different defendant for each
cause of action. See Hartshorn v. State
Farm Insurance Company, 361
Ill.App.3d 731, 735 (2nd Dist. 2005).
•
These issues are important because if because
the pleading has multiple allegations per
paragraph you risk admitting an allegation you
intended to deny. Under 735 ILS 5/2-610(b) if
you fail to deny an allegation it is admitted.
•
You also want to have the opportunity to
determine which allegations of negligence are
against which defendant and if they plead more
than one defendant in a count you cannot do
that.
Scenario #16: Affidavits
You want to draft a motion for summary judgment.
You have an expert’s affidavit you want to offer in
support. What is the standard for the expert’s
knowledge for the affidavit?
•
All affidavits in support of motions to challenge
personal jurisdiction, to dismiss under 2-619,
and for summary judgment must follow
Supreme Court Rule 191.
•
That rule requires the affidavit be made upon
personal knowledge of the expert and based on
facts that are admissible. The fullest discussion
of this issue is in Robidoux v. Oliphant, 201
Ill.2d 234 (2002).
•
The other important issue resolved in
Robidoux was the issue of the proper the
verification of an affidavit pursuant to
Supreme Court Rule 191.
•
The verification that is proper is the
verification under 1-109 of the Illinois
Code of Civil Procedure. No notarization
is required.
Scenario #17: Discovery requests to
dispositive motions
You file your motion for summary judgment
and the plaintiff asks the court for some
discovery in order to respond. What is the
proper procedure?
•
The proper procedure is for the plaintiff to
file an affidavit under Supreme Court Rule
191(b).
•
This is important because it forces the
plaintiff to articulate and limit the amount
of discovery, otherwise it could be
unlimited. One of the considerations
however, is that if you are on a motion to
dismiss you may have to offer you witness
two times for deposition, but a SCR 191(b)
allows you to limit the scope of the
deposition.
Scenario #18: Requests to admit
You receive a set of requests to admit on
June 8, 2009. The requests were mailed on
June 1, 2009. When are they due?
•
Under SCR 216, the responses must be
served 28 days after service.
•
Pursuant to Supreme Court Rule 12 the
requests are deemed to be served on June
5, 2009 and they must be served on the
plaintiff, and if in Cook County must be
filed, by July 6, 2009.
•
They are due to be served by July 6, 2006
because they were deemed served four
days after posting, even though you did
not receive them until June 8.
•
They are not due July 3, because July 3 is
court holiday and so you go to the next
court day, which is July 6.
Scenario #19: Requests to admit
continued
Because of the delay in service and problems
with communications with your client you
would like an extension, what is the proper
procedure?
•
The basis for any motion for extension is
brought pursuant to Supreme Court Rule
183.
•
A motion under SCR 183 can be brought
before or after the expiration of the time,
but it is better practice to file it before the
expiration of the period allowed.
•
Notice must be provided and good cause
must be shown.
•
After Bright v. Dicke there developed
some extreme case law regarding good
cause, but the Supreme Court in Vision
Point of Sale, Inc. v. Haas, 226 Ill.2d 334
(2007) overruled those cases.
•
This case did not remove the usefulness of
requests to admit, just the good cause
extension that had gotten a little out of
control.
•
One of the effective ways to use requests
to admit is to ask for the plaintiff to admit
or deny the reasonableness and necessity
of medical care or the costs of care.
Szczeblewski v. Gossett, 342 Ill.App.3d
344 (5th Dist. 2003).
Other procedural issues with requests to admit:
• Party and not attorney must sign requests to admit.
Brookbank v. Olson, 2009 LEXIS 231 (1st Dist. April 8,
2009.
• It is improper to both answer and object to a request to
admit City of Chicago for Use of Schools v. Albert J.
Schorsch Realty Co., 95 Ill.App.2d 264, 279-280 (1st Dist.
1968).
• The proper procedure for responding to request to admit is
to object to the request and let the court decide whether the
objection is proper. Banks v. United Insurance Company of
America, 28 Ill.App.3d 60, 63 (1st Dist. 1975).
Scenario #20 : Local Rules
You are handling a case in Lake County.
You file a motion for summary
judgment, but with no memorandum of
law. What is likely to happen to that
motion?
In Lake County, which is in the
Nineteenth Judicial Circuit, your
motion is likely to be stricken.
It is important in practicing in the
outlying jurisdictions to check their
local rules on all manner of issues and
judges standing orders in Cook County
and in Federal Court.