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Illinois Litigation: Motions To Dismiss Explained

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Article written by Attorney Kevin O'Flaherty
Updated on
November 1, 2019

A lawsuit is initiated in Illinois when the Plaintiff files a document called a Complaint, stating a cause of action which would entitle the plaintiff from relief from the court, and requesting damages or other relief from the court.  The complaint lays out the relevant allegations in the case that would entitle the plaintiff to a claim against the defendant.

‍After the complaint has been filed, the defendant can either file an Answer, which admits or denies the allegations of the plaintiff and raises any affirmative defenses that would defeat the plaintiff claims; or, the defendant can file a Motion to Dismiss, which states that there is either a defect in the Complaint or some other affirmative matter which requires the court to dismiss the case. 

‍There are two types of Motions to Dismiss: 2-615 Motions and 2-619 Motions.  The names of these motions are based on the statute that provides for them (735 ILCS 5/2-615 and 735 ILCS 5/2-619 respectively).  2-615 Motions and 2-619 Motions serve different purposes.

2-615 Motions to Dismiss

‍In a 2-615 Motion to Dismiss, the defendant argues that there is some defect on the face of the Complaint that makes it improper and makes dismissal of the case appropriate.  Typically, 2-615 Motions are granted when the Complaint fails to state allegations which amount to a cause of action.  For example, a cause of action for civil assault requires the plaintiff to plead the following elements: (1) an intentional act; (2) directed toward the plaintiff; (3) that causes the plaintiff a reasonable apprehension of an imminent offensive contact with the plaintiff's person.  If the plaintiff fails to allege in her complaint that the offensive action was intentional, she has failed to allege facts amounting to a cause of action for assault, and a 2-615 Motion to Dismiss will result in her case being dismissed.  

‍When deciding a 2-615 motion to dismiss, the court will construe the Complaint liberally and view the allegations in the light most favorable to the plaintiff.  The court is not trying to decide the truth of any factual issues in the case, but instead the court determines whether the plaintiff would be entitled to relief from the court if all of the plaintiff's allegations are assumed to be true.  

‍Another basis for dismissal of a Complaint is that the complaint fails to allege facts rather than mere conclusions.  In the case of our assault example, the case may be dismissed if the plaintiff simply states that the defendant made an intentional act which caused apprehension of offensive contact, rather than alleging what exactly that act was.  

‍If a 2-615 Motion to Dismiss is granted, the plaintiff will be allowed to amend her complaint to correct any defects, unless the court determines that amendment would not possibly resolve the issue that is the basis for the motion.  If the plaintiff is permitted to file an Amended Complaint, the case will be dismissed without prejudice and leave will be granted by the court to file the Amended Complaint.  If the defects in the Complaint are not capable of being fixed by amendment, the court will dismiss the case with prejudice and the case will be over. 

2-619 Motions to Dismiss

While 2-615 Motions to Dismiss allow for dismissal based on a failure to properly plead a cause of action, a 2-619 Motion requests that the case be dismissed based on certain specific defects or defenses in the complaint.  A 2-619 Motion must argue one of the following specific points:

  1. The court does not have jurisdiction to hear the case; 
  2. The plaintiff or the defendant do not have legal capacity to sue or be sued, respectively; 
  3. There is another lawsuit pending between the same parties based on the same cause of action; 
  4. There is a prior judgment based on the present cause of action that bars the current lawsuit; 
  5. The lawsuit was not commenced within the time required by the statute of limitations; 
  6. The claim in question has been previously released, satisfied, or discharged in bankruptcy; 
  7. The claim is unenforceable under the Statute of Frauds, which requires that certain types of contracts be in writing; 
  8. The claim is unenforceable because the defendant is not an adult or has a disability; 
  9. The claim is barred by some other affirmative matter that legally defeats it.  

‍Unlike a 2-615 motion, a 2-619 motion must be supported by an affidavit of the Defendant.  

The Process

‍If the defendant files a 2-615 Motion to Dismiss, the plaintiff's attorney must decide whether the motion has merit.  If it does, the plaintiff's attorney will often not contest the motion, but will instead simply seek leave of court to file an amended complaint to correct the defects claimed in the motion.  

‍If the plaintiff's attorney disputes the merit of either a 2-615 or 2-619 motion to dismiss, then the motion will be briefed by both sides and an oral argument will be held before the court.  Typically, when the motion is initially filed by the plaintiff, it will be filed along with a brief or memorandum that makes the legal argument to the court as to why the motion should be granted.  The plaintiff's attorney will then file a Response brief, in which he or she will make his or her counter-argument.  Finally, the defendant will file a Reply brief responding to the arguments made by the plaintiff's attorney in the Response brief.  Once all three briefs have been presented to the court, a hearing will be held, during which both attorneys will debate the merits of their arguments before the judge and answer any questions posed by the judge.  

If the plaintiff successfully defends the Motion to Dismiss, the defendant will then be required to file an Answer to the Complaint, and written discovery will commence. 

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Illinois Litigation: Motions To Dismiss Explained

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