Rules Review for Litigation Practice by Donald Patrick Eckler June 8, 2009

1. Rules Review for Litigation Practiceby Donald Patrick EcklerJune 8, 2009

2. 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

3. 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.

4. Scenario #1: Time to RespondYou 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?

5. 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.”

6. 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?

7. 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.

8. 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.

9. 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?

10. 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.

11. 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).

12. 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?

13. 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.

14. 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 been ascertained; (5) special circumstances which would affect plaintiff's efforts; and (6) actual service on the defendant. Womick v. Jackson County Nursing Home, 137 Ill.2d 371, 377, 561 N.E.2d 25 (Ill. 1990).

15. 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).

16. 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).

17. 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).

18. 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?

19. 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.

20. 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?

21. 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?

22. 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).

23. 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, 443- 444 (2006).

24. 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.

25. 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.

26. 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?

27. 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.

28. 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.

29. 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?

30. 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.

31. 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.

32. 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.

33. 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.

34. 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).

35. 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?

36. 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).

37. 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?

38. 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).

39. 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?

40. 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.

41. 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?

42. 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.

43. 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.

44. 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?

45. 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?

46. 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.

47. 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?

48. Yes. There are two deficiencies with the complaint that require a motion. • 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.

49. 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).

50. 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.