Motion to Dismiss in Illinois

Illinois law provides for two types of motions to dismiss: 735 ILCS 5/2-615 and 735 ILCS 5/2-619. Defendant’s counsel must review the facts of the case in order to determine which type of motion to dismiss is appropriate. This blog post is meant to provide an introduction to the two types of Illinois motions to dismiss.

In general, Section 2-615 allows for the dismissal of a complaint, if the complaint is “substantially insufficient in law.” 735 ILCS 5/2-615. The main question to be determined “by a motion to dismiss under section 2-615 is whether sufficient facts are contained in the pleadings which, if proved, would entitled the plaintiff to relief.” Barber-Coleman Co. v. A & K Midwest Insulation Co., 236 Ill. App. 3d 1065, 1069 (5th Dist. 1992). There are six bases for attacking pleadings under 2-615: 1. That the pleading be made more definite and certain; 2. That designated immaterial matter be stricken; 3. That necessary parties be added or misjoined partied be dismissed; 4. That the pleading fails to allege essential elements in the cause of action; 5. That the pleadings fail to state a claim upon which relief may be granted and 6. That the pleadings entitle the moving party to judgment. Id.

On the other hand, Section 2-619 allows for dismissal of a complaint for “certain defects or defenses.” Said defects must appear on the face of the pleading or be supported by affidavit. 735 ILCS 5/2-619. 2-619(a) lists nine basis for dismissal: 1. That the court does not have subject matter jurisdiction; 2. That the Plaintiff or Defendant does not have the legal capacity to be sued; 3. That there is another action pending between the same parties for the same cause; 4. That the action is barred by prior judgment; 5. That the action is outside the relevant statute of limitations; 6. That the claim has been release, satisfied of record or discharged in bankruptcy; 7. That the claim is barred by the statute of frauds; 8. That the claim is unenforceable because of Defendant’s minority or other disability; 9. That the claim is barred by other affirmative matter “appearing on the face of the complaint or established by external submissions, which defeats the plaintiff’s claim” or, in other words, “negates the plaintiff’s cause of action.” Abruzzo v. City of Park Ridge, 3870 N.E.2d 1012, 1017-1018 (1st Dist. 2007). In deciding a section 2-619 motion to dismiss, the court must accept the facts of the complaint as true. Leach v. Lauhoff Grain Co., 51 Ill.App.3d 1022, 1026 (4th Dist. 1977). 

If you have any questions or concerns regarding Illinois litigation, please feel free to contact the attorneys at Perl & Goodsnyder (312/243-4500) or visit our website http://www.perlandgoodsnyder.com/. We have over 50 years combined experience and are eager to use our experience to assist you reach the best available outcome.