Illinois Civil Procedure Outline PDF

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Illinois Civil Procedure Outline I.

Introduction A. The Process of a Lawsuit in Illinois 1. Filing the complaint 2. Establish Jurisdiction a) Service of summons on the defendant b) Long arm jurisdiction 3. Motion practice 4. Discovery B. Some terminology 1. Motions: either granted or denied, never overruled 2. Objections: either sustained or overruled, never granted or denied 3. Pleading: may be stricken but not dismissed. Striking a pleading does not dismiss the cause of action 4. Cause of action: may be dismissed 5. Judgments: entered by the court 6. Verdicts: in jury trials, the jury returns a verdict then the judge enters a judgment. See 5/2-1201(b) 7. Process: the means used by the court to acquire or exercise its jurisdiction C. The Illinois Judicial System 1. Organization a) 5 judicial districts. Cook County is 1st District; rest of state divided into 4 other districts. b) 22 judicial circuits. Cook County is one circuit; rest of state divided into 21 other circuits. 2. The Supreme Court is made up of 7 justices, each serving 10-year terms. 3 justices from Cook County, 1 from each of the other districts. Original jurisdiction over revenue, mandamus, habius corpus, redistricting, Governor’s fitness. Limited right to appeal. Death Sentences are appealable directly to the Supreme Court 3. The Appellate Court is one court with 5 districts. Judges serve 10-year terms. Automatic right to appeal to the appellate court. 4. The circuit courts are located in each of the 22 judicial circuits. Elected judges serve 6-year terms. Associate judges serve 4-year terms. Circuit courts

have original jurisdiction over all justiciable matters (with some exceptions – bankruptcy, admiralty, etc.) a) Note that lawsuits against the state are heard in the Court of Claims II.

Jurisdiction A. Generally: Courts must have subject matter and personal jurisdiction in order to hear a case. B. Subject Matter: The power of a court to hear and determine the general class of cases to which a particular case belongs. 1. Circuit Courts have original jurisdiction over all matters except those exclusively reserved to the Supreme Court or Federal Courts. 2. State courts have concurrent jurisdiction over federal question matters. 3. Lack of subject matter jurisdiction cannot be waived and can be challenged at any time. C. Personal Jurisdiction: The power of a court to enter a judgment against a person or property. 1. Requirements of 14th Amendment: a) Constitutionally valid basis for assertion of jurisdiction. Traditional Methods: (1) Physical presence in the state, no matter how transitory, at time of service. Exceptions if defendant is privileged against service (defendant or witness in a criminal proceeding or present due to fraud or duress) (a) Corporations are present if incorporated in the state or doing business in the state (2) Domicile in the state (3) Consent, express or implied b) Adequate notice must be given to the defendant. Satisfied by adequate service of process. D. Service of Process (5/2-201 to 5/2-207) 1. Generally a) 5/2-201: Commencement of actions – Clerk of court must issue a summons at the request of the plaintiff. Duplicate summons may be issued. Alias summons may be issued if service is not completed before original summons expires. b) 5/2-202: Sheriff is the normal agent to make service c) Diligence in service (SCR 103(b)): Action may be dismissed w/o prejudice if P fails to exercise diligence to get service of defendant. Factors for determining diligence:

(1) Length of time to get service (2) Activities of P (3) Knowledge of D’s location (4) Ease of finding D (5) D’s knowledge of the action (6) Special circumstances affecting P’s efforts (7) Actual service of the D d) Return is the report stating whether service was completed. A sheriff’s return is presumptively valid indication that service was completed. Need clear and satisfactory proof to rebut presumption. 2. Service on Individuals (5/2-203) can be completed by leaving a copy of the summons with the defendant or with a resident at the defendant’s abode (abode service). a) Special requirements for abode service: (1) Left at usual abode (2) With a resident 13 years or older (3) Person must be informed of contents (4) Must mail copy to defendant b) Service by special order of the court: if service cannot be completed as above, can request to court order an alternative means of service. 3. Service on corporations (5/2-204) can be affected by leaving a copy of the process with any agent or officer found anywhere in the state. a) Agent or officer must be an employee that would be aware of the nature of the summons and can reasonably be expected to forward it to an appropriate person. b) Abode service on an agent of a corporation is not sufficient. 4. Service on partnerships and partners (5/2-205): a) Suing the partnership – leave summons with any partner or any agent of the partnership found anywhere in the state b) Suing a partner – any manner that an individual can be served, or leave copy of summons with any partner and mail copy to defendant. 5. Service on voluntary unincorporated associations (5/2-205.1) by leaving a copy of the process with an officer personally, or an agent at the office of the association. 6. Service on public, municipal, governmental corporations by leaving copy of process with chairperson (county), mayor or clerk (city), president or clerk (village), supervisor (town).

7. Service by publication can only be used to establish in rem jurisdiction, not personal jurisdiction. E. Long Arm Statutes 1. Personal service outside of the state (5/2-208) can be made on any party that is a citizen or resident of the state or has submitted to the jurisdiction of the state. 2. Acts submitting to jurisdiction (5/2-209). Person submits to jurisdiction of state for any causes of action arising out of the following: a) Transaction of business b) Commission of tortuous act c) Ownership of real estate in state d) Contracting to insure persons, property or risk in the state e) Dissolutions of marriage where marital domicile was in state f) Illinois parentage act g) Making of a contract in the state h) Conception in state of child residing in the state i) Failure to support child or spouse residing in the state j) Acquisition of property in the state k) Breach of fiduciary duty in state l) Acting as director of Illinois corporation m) Ownership of trust in state n) Exercise of powers granted by state 3. Catch-all provision of long arm statute: Court may exercise jurisdiction on any other basis permitted by Illinois and US Constitution. 4. Analysis of jurisdiction over non-resident a) Step 1: Has one of the 14 acts listed above occurred? b) Step 2: Meets federal due process requirements: Have there been minimum contacts with the state such that jurisdiction does not offend traditional notions of fair play and substantial justice. (1) Purposeful availment of benefits and protections of laws of the state (2) Doing business – regular and systematic activity (3) Stream of commerce (4) Foreseeability

c) Step 3: Meets state due process requirements: Must be fair, just and reasonable to require a non-resident to defend an action in Illinois d) Adequate notice to defendant III.

Venue A. Generally (5/2-101), an action must be commenced in (1) the county of residence of any defendant joined in good faith, or (2) the county where the transaction or some part thereof occurred out of which the cause of action arose. 1. Can file a lawsuit in any county if none of the defendants reside in the state. 2. Corporations (5/2-102(a)) reside where they maintain a registered office, another office, where it is doing business. 3. Partnerships (5/2-102(b)) reside where any partner resides, where the partnership has an office, or where it does business. 4. Voluntary associations (5/2-102(c)) reside where the association has an office or where any officer resides (if no office can be found) 5. Public corporations (5/2-103) must be sued in the county where its principal office is located, or in the county where the transaction out of which the cause of action arose. 6. Actions for libel on articles printed in the state must be brought where the defendant resides, where the article was composed or printed, or where the defendant has a principal office. For articles printed outside of Illinois, the action can be brought in any county where the article was published or circulated. B. Wrong venue challenges (5/2-104) are waived if not made on or before the date defendant is required to appear. C. Forum non conveniens (SCR 187) – an equitable common law doctrine to transfer or dismiss actions where venue is proper, but it is inequitable for the defendant to defend suit in that forum. Suit is transferred if there is a more convenient forum in the state, dismissed if the more convenient forum is in another state. 1. Factors: a) Location of witnesses b) Convenience of parties c) Convenience of the court d) Burdens on taxpayers and residents e) Ends of justice f) Capacity of court to provide fair trial 2. Heavy burden on D to defeat P’s choice of forum 3. Motion must be filed within 90 days after last day allowed for filing that party’s answer.

4. Court can place conditions on dismissal D. Substitution of judge (5/2-1001) is sometimes referred to as a change of venue. Party gets one SOJ as a matter of right, as long as motion made before a substantive ruling. Can also substitute for involvement of judge IV.

Statute of Limitations A. The time period in which the plaintiff must initiate litigation in a cause of action. Action is commenced when the complaint is filed. B. Parties can contract for shorter limitations periods (disfavored by the law and strictly construed). C. SOL in tort cases begins to run when last essential element occurs. Exception for discovery rule – SOL begins to run when the plaintiff knows or should have known that an injury has occurred and it was wrongfully caused. D. Limitation periods: 1. Written contracts: 10 years (except for certain Ill. Commercial Code and Public Aid Code cases) 2. Unwritten contracts: 5 years 3. Personal injury: 2 years 4. Damage to property: 5 years 5. Medical malpractice: 2 years (discovery rule applies) (4 year statute of repose) 6. Attorney malpractice: 2 years (6 year statute of repose) 7. Defamation: 1 year 8. Other civil actions not provided for: 5 years E. Plaintiff can refile lawsuit within 1 year after reversal or dismissal even if SOL has run. F. Counterclaims may be filed after SOL runs, if counterclaim would not have been barred at time P’s cause of action arose. (Prevents P from sitting on claim until D’s claim is barred) G. Doctrine of relation back allows amended pleadings as long as original pleading was filed on time, and added claim or defense arose from the same transaction or occurrence as that alleged in the original pleading. H. Barrowing statute applies when a cause of action that arose in another state is barred by that state’s SOL. Action cannot be maintained in Illinois if P and D are both nonresidents. I. Tolling applies in the event of a 1. Death of a party, 2. Absence from the state (not amenable to service),

3. Incapacity of a party, stays of a cause of action, 4. Fraudulent concealment of a cause of action. V.

Pleadings A. Generally 1. Types a) Complaint b) Answer c) Reply (to affirmative defenses in answer) d) Counterclaim, answer to counterclaim, reply to affirmative matter in counterclaim, 3rd party complaint, answer to 3rd party complaint, reply to 3rd party complaint. 2. Purpose is to inform court and opposing party of case, jurisdiction, establish a written record for res judicata. 3. Illinois has a fact pleading system, not a notice pleading system like the federal courts. a) Complaint must allege material facts with sufficient specificity to show that the elements of the cause of action exist. b) Need to plead ultimate facts to establish each essential element of cause of action. B. Code Requirements 1. Counts and Paragraphs: Each cause of action asserted in a pleading must be separately designated and numbered paragraphs. 2. Every complaint must contain a prayer for relief that the pleader believes he is entitled. a) Exception for personal injury where you can only plead enough to get assigned to the specific division of the court. 3. Pleadings in the alternative: Pleading, even if inconsistent, may be made in the alternative. Relief may be requested in the alternative. 4. Punitive damages may not be pled in actions for bodily injury and physical damage to property 5. Verified pleadings: once a pleading is verified, every subsequent pleading must be verified. 6. Exhibits: if claim or defense is based on a written instrument, a copy must be attached as an exhibit. a) Adverse party can move to strike pleading if exhibit is missing 7. Bill of particulars: Can file a demand if allegations lack sufficient detail

8. Counterclaims shall be part of the answer and designated as a counterclaim. No mandatory counterclaims in Illinois. No cross claims in Illinois 9. Pleadings must be specific. Every answer and subsequent pleading must specifically admit or deny each allegation. Every allegation not specifically denied is admitted. 10. Insufficient pleadings: A court may order a fuller or more particular statement if the pleading is insufficient. Defects not objected to are waived. 11. Defenses must be separately pled and pled if it would be a surprise to the other party a) Affirmative defenses “give color to the other party’s claim, then assert new matter by which the apparent right is defeated” (1) Payment, release, satisfaction, discharge, license, fraud, duress, estoppel, laches, statute of limitations, illegality, negligence, void or voidable instrument, want of consideration, or any other affirmative matter. 12. Joinder: Any plaintiff may join any cause of action against any defendant. 13. Amendments: Court must liberally allow amended pleadings. Pleadings may be amended at any time before final judgment. Court may consider prejudice to other parties as a result of amended pleadings. a) Mend the hold doctrine: Defendant cannot change position in amended pleading. b) Relation back: amended pleading relates back to date of original pleading (overcomes lapse in statute of limitation) C. Supreme Court Rules 1. SCR 137: Attorney must sign every pleading, motion, paper submitted by a party he represents. a) Signature is a certification that paper is well grounded in fact and warranted by law VI.

Pretrial Motion Practice A. Motions with respect to pleadings (5/2-615) 1. 2-615 Motion is directed to a pleading claimed to be insufficient, in whole or in part, as a matter of law. a) Reasons to object: (1) Irrelevant allegations (2) Non-joinder or mis-joinder of parties (3) Failure in form of pleading (4) Improper prayer for relief

(5) Missing exhibits (6) No separate counts or defenses b) Procedures for 2-615 motion: (1) Specifically point out defects (2) Ask for appropriate relief (a) Strike pleading (b) Dismiss action (c) Request more specific pleading (d) Strike immaterial matter (e) Add parties (f) Dismiss misjoined parties c) All well pled allegations taken as true in a 2-615 motion d) No extraneous evidence considered e) Failure to object defects in a pleading is a waiver 2. 2-615(e) – Any party can move for judgment on the pleadings a) A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts could be proven that would entitle the pleader to relief. B. Motion for involuntary dismissal (2-619) 1. 2-619 motion is used to get summary disposition of a matter that can easily be resolved. 2. Grounds a) No subject matter jurisdiction b) Lack of legal capacity (P or D) c) Another cause of action pending for same cause of action d) Res judicada e) Statute of limitations lapse f) Release, satisfaction, discharged in bankruptcy g) Minority or disability h) Claim barred by another affirmative matter avoiding the legal effect of the claim 3. Fact motion or pleading motion a) Pleading if the grounds for the motion appear on the face of the pleading

b) Fact if the grounds for the motion are supplied by the movant (1) Can attach affidavit to 2-619 motion 4. Procedure a) All well plead allegations taken as true b) All facts in affidavits supporting motion taken as true unless contradicted by counter affidavit or pleading itself c) Exhibits control in factual conflicts between pleadings and exhibits d) Bench trial: judge can resolve disputes of fact e) Jury trial: judge may not weigh facts 5. Raising matters in a 2-619 motion does not preclude raising matters in an answer unless court decides matters on the merits C. Motion for summary judgment (5/2-1005) 1. 2-1005 motion is always a fact motion 2. Elements a) No genuine issue of material fact b) Moving party is entitled to a judgment as a matter of law 3. Evidence considered a) Evidentiary admissions (1) Unverified pleadings in the case (2) Pleadings filed in other cases (3) Answers to interrogatories b) Judicial admissions (evidence that disposes of issue – control over conflicting allegations) (1) Allegations in verified pleadings (2) Responses to requests to admit facts or genuineness of documents D. Motion for voluntary dismissal (5/2-1009) 1. Plaintiff can always dismiss complaint unless there is a dispositive motion pending VII.

Discovery A. Objectives of discovery: 1. Enhancement of truth-seeking process 2. Improvement of preparation 3. Elimination of unfair surprises

B. Scope 1. All matters admissible into evidence and all matters that could lead to admissible evidence 2. Full disclosure of all matters relevant to the subject matter of the suit required. C. Protective orders: Court can limit discovery to prevent harassment, burden, etc. Court can prevent disclosure of discovery outside of lawsuit. D. Timing and sequence: starts after all parties have appeared, parties can go in any sequence E. Disputes: Parties must make a reasonable attempt to resolve disputes before asking court to intervene. Must hold a 201(k) conference. 201(k) conference not required when seeking compliance with a court order. F. Case management conference: SCR 218 G. Sanctions – SCR 219: Failure to comply with discovery. Sanctions not meant to punish, meant to compel compliance with rules. H. Types 1. Depositions (oral or written) – taken from parties or witnesses a) Types (1) Discovery (a) Default type of deposition unless otherwise indicated (b) Used for impeachment, admission of party opponent, any purpose an affidavit may be used (2) Evidence (a) Rules of evidence strictly apply (b) Used for any purpose at trial, including substantive proof if: (i) Deponent is dead, unavailable (age sickness, infirmity, imprisonment), out of country (c) Evidence depositions of physicians may be introduced even if physician is available b) Place: county where the deponent resides c) Subpoena to compel deponent to appear d) Court order required for non-party, non-treating physician e) Notice of deposition, specifying time, place, name of deponent, must be given in a reasonable time in advance 2. Interrogatories (parties only)

a) Limit of 30 without leave of court b) Answers and objections must be served within 28 days c) Can produce documents if documents would answer questions d) Occurrence witnesses – 213(f) (1) Request for identity and subject matter of occurrence witnesses (2) Party cannot call a witness not included in answer e) Opinion witnesses – 213(g) (1) Request for identity and subject matter of opinion witnesses (2) Response must include: (a) Subject matter of opinion (b) Conclusions and opinions (c) Basis for opinion (d) Qualification to render an opinion (e) All reports of the witness f) Affirmative duty to supplement answers g) Answers can by used to impeach, support motion for summary judgment 3. Inspection of documents, objects, and real estate 4. Physical and mental examination of persons 5. Admissions of fact and genuineness of documents a) Must answer with specific admission or denial b) Response must be served within 28 days c) Failure to respond is an admission d) Bright v. Dickie: Party must ...