Issue: Under Illinois law, may a plaintiff bring a motion for involuntary dismissal under [statref]735 ILCS 5/2-619(a)[/statref]?
|Area of Law:||Litigation, Litigation Practice & Procedure, Litigation Practice and Procedure|
|Keywords:||; Involuntary Dismissal; Affirmative Defense; Summary Determination|
Section 2-619(a), by its very terms, is a motion pursuant to which a defendant is able to move for an involuntary dismissal of a plaintiff’s complaint based upon certain enumerated grounds. [statref]735 ILCS 5/2-619(a) (West 2012)[/statref]. A section 2-619 motion is not the appropriate means by which a plaintiff seeks relief of any kind, including an order striking a defendant’s affirmative defenses.
If a plaintiff contends that an affirmative defense is substantially insufficient at law, the proper motion to be employed is a motion to strike brought pursuant to section 2-615 of the Code ([statref]735 ILCS 5/2-615 (West 2012) [/statref]). If a plaintiff contends that an affirmative defense pled by a defendant is lacking in factual support due to the absence of a genuine issue as to any material fact alleged in an affirmative defense, the appropriate motion is one for a summary determination of a major issue pursuant to section 2-1005(d) of the Code (7[statref]35 ILCS 5/2-1005(d) (West 2012) [/statref]), properly supported by affidavit or other evidentiary material.
Meticulous practice dictates that parties properly designate the section of the Code pursuant to which their pre-trial motions are brought. See Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 484 (1994). Although misdesignation of a motion is not always fatal to a movant’s right to prevail (see Scott Wetzel Services v. Regard, 271 Ill. App. 3d 478, 481 (1995)), reversal will follow in circumstances where there is prejudice to the non-moving party (see Illinois Graphics Co., […]