Illinois Civil Procedure

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Illinois Civil Procedure
2011-07-16 18:56:27
Illinois Civil Procedure

Illinois Civil Procedure
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  1. Ten Regularly Tested Issues
    • 1) Subject Mater Jurisdiction
    • 2) Personal Jurisdiction
    • 3) Service of PRocess
    • 4) Venue and Related Issues
    • 5) Amendments
    • 7) Joinder
    • 8) Discovery
    • 9) Motions
    • 10) Finality
  2. Subject Matter Jurisdiction
    Definition: power of the IL Court over the subject matter of an action; power over the nature or kind of action
  3. Illinois Court System
    • Three-tiered and Unified System
    • 1) IL Circuit Courts (trial courts)
    • 2) IL Appellate Courts
    • 3) IL Supreme Court
  4. Subject Matter Jurisdiction of Circuit Courts
    Rule: IL Circuit courts are courts of original and general jurisdiction. Therefore, they have SMJ over all kinds of actions

    Exceptions: if there is exclusive jurisdiction in some other forum.

    • Two Courts w/ exclusive power:
    • 1) IL Supreme Court - original and exclusive jurisdiction over issues involving (i) a governor's vacancy; and (ii) the issue involving legislative redistricting
    • 2) Federal Courts have exclusive jurisdiction over select matters including bankruptcy and maritime matters
  5. Subject Matter Jurisdiction of IL Appellate Courts
    • Rule(1): IL Appellate Courts are courts of appellate jurisdiction and therefore have jurisdiction only over appeals.
    • Rule(2): Only final orders may be appealed. A final order is one that leaves nothing left to be done in the lower court.

    • Exceptions:
    • 1) Partial Final Orders - an order that resolves some claim, but not all claims. Partial final orders can be appealed if the lower court finds no just reason to delay the appeal.
    • 2) Significant Order - a non-final order if both the lower and appellate courts find doubt on that order involving a controlling issue of law such that appellate review would materially advance the litigation.
  6. Subject Matter Jurisdiction of the Illinois Supreme Court
    • Original Jurisdiction: governor's vacancies and legislative redistricting
    • Mandatory Appellate Jurisdiction: any order entered by any IL court declaring any statute unconstitutional
    • Discretionary Appellate Jurisdiction: any other order it pleases
  7. How do you appeal from an order entered by the Circuit Court
    File a notice of appeal within 30 days of the entry of the order from which you are appealing in the lower court.
  8. Waiver and Consent of Subject Matter Jurisdiction
    SMJ can never by waived or consented by the parties
  9. Subject Matter Jurisdiction Analysis
    • 1) IL circuit courts have general juris and the power to hear all actions
    • 2) Exception is if another court has exclusive jurisdiction.
    • 3) In this case...
    • 4) Therefore...
  10. Personal Jurisdiction
    Definition: the power of the IL courts over D's person or property

    Rule: IL Courts have personal jurisdiction if (1) IL law grants PJ and (2) IL law granting jurisdiction is constitutional.
  11. Three bases for Personal Jurisdiction
    • 1a) Express Consent: 3 ways
    • (i) D expressly appointed its agent to accept process on its behalf in IL.
    • (ii) D entered into a contract with a clause expressly agreeing to being sued in IL state courts
    • (iii) D expressly consents to PJ (unlike SMJ)
    • 1b) Implied Consent: D impliedly consents where he fails to object to PJ in its first response to the complaint. The first response must be filed within 30 days of service, or within 60 days if D waives formal process.
    • 2) Presence: 3 kinds
    • (i) actual, voluntary, physical presence of D in IL while served with process
    • (ii) domicile - D is not actually present in IL, but her domicile/home is in IL and she intends to return
    • (iii) Doing Business - regular, systematic & continuous in-state business; mere solicitation is insufficient.
    • 3) Long-Arm Statute
  12. Illinois Long-Arm Statute
    • One of three ways to establish PJ. There is PJ over a D who performs one of the following acts, so long as there is a specific connection between the act and the lawsuit filed: LIMIT
    • Land - D owns or possess land in IL from which the lawsuit derives
    • Injury - injury in IL from D's torts
    • Matrimony - D performs and act in iL which gives rise to action for separation, anullment or divorce (SAD)
    • Insurance Contract - D enters an insurance K for a risk located in IL
    • Transaction of Business - can be a single transaction so long as the suit derives from that transaction.
  13. Constitutional Requirements for Personal Jurisdiction
    • Assertion of PJ is constitutional if D engaged in such minimum contacts that it would not offend traditional notions of fair play and substantial justice.
    • The issue becomes whether D has purposefully availed itself of the benefits of IL.
    • Put another way, could D reasonably expect to be sued in IL state court?
  14. Personal Jurisdiction Analysis
    • 1) PJ is the power of the IL Ct over D's person or property
    • 2) IL cts have PJ if (i) IL grants PJ and (2) if IL Law is constitutional
    • 3) Under IL law, there are three bases for PJ: consent, presence, and long-arm.
    • 4) two forms of consent: express and implied
    • 5) In this case...
    • IL cts also have personal jurisdiction to the maximum extent allowed by the Constitution.
    • 6) Even if IL law grants PJ, IL Law must be constitutional... minimum contacts & purposeful availment & reasonable expectation of being sued
    • 7) Therefore...
  15. Who is authorized to serve process
    • 1) Sheriff; or
    • 2) Deputy; or
    • 3) Any non-party over 18 years of age may be authorized by the court to serve process in the court's discretion upon motion
  16. Time Frame for effective service
    summons expires 30 days after issuance BUT the authorized server may reissue the summons and continue trying to serve it as long as it uses reasonable diligence
  17. How is process properly served?
    • Process is proper if two things are true:
    • 1) method of process must be proper under IL rules; and
    • 2) it must also be constitutional.

    Service of process is constitutional if it is reasonably calculated to apprise parties of litigation
  18. Basic methods of proper service on individuals
    1) Personal Service - an authorized server makes personal, in-hand delivery on the process of the D; can also be within the vicinity of a reluctant D (requires evidence of reluctance; 'vicinity' means w/in the D's wing span)

    2) Abode Service - authorized server leaves the process at D's last and usual abode with a 13+ yr old household member informing him of the contents and mailing a copy to that address

    3) Waiver - P mails the complaint to D with a request that D waive formal process methods
  19. Basic Methods of Process on entities
    Rule for Corporations and Partnerships: personal service on or send a request to waive an authorized agent of D, a qualified agent of D, or any partner if D is a partnership.

    Partnership Exception: if you serve one partner personally, you may then mail process to all other D partners so long as there is an IL connection. Partner's receiving service by mail must be from IL or is being sued on a IL transaction.

    • Notice by Publication: only available if -
    • 1) the action must involve D's real property in IL; and
    • 2) affidavit swearing that either (i) D is outside of IL; or (ii) after due inquiry D could not otherwise served; and
    • 3) must mail to D's last known address if known
    • 4) process must be published once per week for three consecutive weeks.
  20. Venue
    • General Rule: Venue is proper in a county where either (a) any D resides. D resides where he is domiciled; entities reside in any county they are doing business, have any office, or any single partner resides in a partnership context; or (b) where any part of the cause of action arose.
  21. Exceptions to Venue
    • GRAIL
    • Government - governmental units must e sued din the county where its principal office is located;
    • Real Property - only where the land is located;
    • Absent Ds - if no Ds reside in IL, venue becomes proper in any county, including where P resides
    • IL Insurance Co. Contracts - suit may be filed in the county where P resides, in addition to where any D resides or any part of the claim arose;
    • Libel - suit may be filed where any D resides and also in the county where the libelous article was composed.
  22. Remedy for Improper Venue
    Motion to transfer venue to a proper venue must be submitted in the first response. It will be granted in the court's discretion for the convenience of the parties, witnesses, and in the interest of justice.
  23. Motion to Change Venue
    • Definition - motion to relocate the action based upon a fear of bias by the county's inhabitants
    • Requirements - (1) file motion & affidavit swearing fear of bias; and (2) two supporting affidavits from inhabitants of a county
    • Time Limit - must file before the judge resolves any substantial merits-based issue
  24. Forum Non Conveniens
    Definition - in IL, though there is proper SMJ & PJ & Venue, nonetheless, the court has discretion to dismiss the action for forum non conveniens

    • Characteristics
    • 1) Discretionary - unlimited discretion to dismiss on the grounds of inconvenience
    • 2) Dismissal
    • 3) Gross inconvenience - forum must be grossly inconvenient
    • 4) Conditional - D must agree to waive any objection to being re-sued in some other forum within six months
  25. Complaints
    • IL is a liberal fact pleading state.
    • Complains must contain facts that make up a cause of action, but pleadings are construed liberally to do justice
  26. Verified Complaints
    • Def. - a complaint that is sworn to by someone with personal knowledge on the facts alleged.
    • Complaints need not be verified, but may be verified.
    • If, however, a complaint is verified, every future pleading by any party must be verified as well.
  27. Complaints Based on a Written Instrument (Deed or contract)
    a copy of that instrument must be attached to the complaint as an exhibit
  28. Complaints & Requests for Punitive Damages
    Complaints may not initially request punitive damages. Instead, P must convince the judge at a hearing that punitive damages may be appropriate. If successful, the judge will allow P leave to amend the complaint to include the prayer for punitive damages.
  29. Complaints & Medical Malpractice
    P must include an affidavit with complaint swearing a qualified health care professional has or will within 90 days file a report certifying the action has merit.
  30. Trial By Jury
    • Demand: plaintiff must demand a jury trial in the complaint, otherwise it is waived.
    • Constitutional Right: if the claim seeks monetary damages, there is a constitutional right to trial by jury
  31. Answers
    • The Answer must:
    • 1) precisely admit the allegations are true;
    • 2) may precisely deny untrue allegations; or state
    • 3) D has insufficient info to admit or deny; in this case, D must attach an affidavit swearing after due inquiry he doesn't know the answer.
    • Affirmative Defenses: true affirmative defenses must appear in the answer or else it is waived. D assumes arguendo all allegations are true, but nonetheless asserts an affirmative matter that defeats the claim.
    • Trial by Jury: if D wants trial by jury, he must demand it in its answer
  32. Amendments
    General Rule: liberal amendment policy. Amendments shall be liberally granted on just and reasonable terms to serve the merits.
  33. Amendment: Relation Back
    An amendment to the complaint which is not timely but which relates back in time to the date of an earlier and timely filed complaint.
  34. Amendment: Requirement for relation back of claims
    an amendment adding a new claim relates back if the new claim derives from the same transaction or occurrence as the earlier, timely filed claim.
  35. Amendment: Requirement for relation back of parties
    • An amendment adding a new party relates back if two things are true:
    • 1) claims against the new party must arise from the same transaction or event of the earlier-filed claim; and
    • 2) the new D must acquire knowledge that but for a mistake in name, it would have been sued within the period of reasonable diligence allowed for service of process
  36. Statute of Limitations: Personal Injury Tort Claims
    Deadline: 2 years from discovery of a personal injury tort claim to file.
  37. Statute of Limitations: Statute of Repose
    an absolute time limit on filing claims that that runs from the occurrence, not the discovery those claims. Absolute time bar.

    E.g. Medical Malpractice - four years
  38. Extension of the Limitations Period
    If P is under 18 years old or otherwise legally disabled from filing, P gets two more years to file a claim from the date the disability is removed.
  39. Amendment Analysis
    • 1) Statute of limitations
    • 2) Was the statute of limitations extended by virtue of disability?
    • 3) If the statute of limitations has passed, IL has a liberal amendment policy.
    • 4) Even if amendment itself would not be timely, the complaint may be amended if it relates back.
  40. Joinder
    • Joinder of Claims: P may join as many claims as it has against a D regardless of whether there is any connection b/t the joint claimants.
    • Joinder of Parties: P may join parties so long as the claims involving those parties derive from the same transaction, occurrence, or the same series of common transactions or occurrences.
    • Types of Joinder:
    • Impleader
    • Interpleader
    • Intervention
  41. Impleader
    D may implead a new claim against a new third party of the third party may be liable to D for all or part of D's same liability to the P.
  42. Interpleader
    holder of a common fund may file a suit as a P and interplead as Ds all rival claimants to its common fund (e.g. insurance companies).

    Requires (1) a common fund + (2) rival claimants
  43. Intervention
    Definition: act of a non-party to intervene

    As of Right: intervenor has a right to intervene if it has interests, which as a practical matter, will be adversely affected by the lawsuit and not protected by the parties

    Permissive: Court has discretion to grant permissive intervention if there is a commonality of issues b/t those in the ongoing law suit & those affecting the intervenor
  44. Class Actions
    • Definition: an action in which a named P represents a class of commonly situated absent Ps
    • Tremendous Judicial Interference:
    • 1) judge must grant a motion for class certification
    • 2) judge must order notice that is reasonably calculated to inform interested class members
    • 3) Judge must approve of any settlement at all
  45. Five Class Certification Requirements for All types of Class Actions
    • NAACP
    • 1) Numerosity - class must be so numerous that joinder of them would be impracticable; rule of thumb is 40+ claimants
    • 2) Adequacy - named P and class counsel must fairly and adequately protect the class
    • 3) Appropriateness - the class action device must be an appropriate method for resolving the class's claims
    • 4) Commonality - common issues of fact or law that pertain to the class
    • 5) Predominance - common issues must predominate over the individual issues.
  46. Discoverability
    • Material is discoverable if two things are true:
    • 1) Method of discovery must be proper; and
    • 2) material sought must be within the proper scope
  47. Proper Methods of Discovery
    • 1) Automatic Prompt Disclosure
    • 2) Depositions (Discovery & Evidence)
    • 3) Pre-trial Disclosure of Testifying Witnesses
    • 4) Duty to Supplement
  48. Proper Methods for Discovery: Automatic Prompt Disclosure
    if the action is one in which the amount in controversy is $50,000 or less then automatic prompt disclosure is required.

    Each side, without awaiting any request must be automatically disclose the following: (1) all factual & legal bases for claims and defenses; (2) all potential Ws; (3) all relevant documents; (4) damages computation; (5) relevant insurance coverage
  49. Proper Methods for Discovery: Depositions
    Depositions are the only discovery method that can be used on non-parties.

    Discovery: all depositions are presumed to be for discovery purposes. They can last no more than three hours. The depositions can be used at trial only (i) to impeach or (ii) as an admission or (iii) in the court's discretion if the deponent becomes unavailable.

    Evidence: Must be identified as such in the notice of deposition. No time limit. May be used at trial for any purpose if W is unavailable or is a healthcare professional.
  50. Proper Methods for Discovery: Pre-trial Disclosure of Testifying Witnesses
    • Parties may serve interrogatories requesting info about testifying Ws which must be answered within 28 days.
    • Controlled Testifying Experts: classic experts retained by a party for trial; require full disclosure of qualifications and a full report of their opinions.
    • Independent Testifying Experts: must disclose a summary of topics and opinions
    • Lay Witnesses: must disclose topics only
  51. Proper Methods for Discovery: Duty to Supplement
    each side has an automatic and ongoing duty to update its prior disclosures within a reasonable time of discovering any new information.
  52. Proper Scope of Discovery
    • Material is within the scope of discovery if it is relevant and not privileged.
    • Relevance: relevant to any part of any claim or defense and need not be admissible at trial
    • Not privileged: material that is privileged is not discoverable
    • Work Product: any material that has been prepared for litigation and not in the ordinary course of business.
    • Mental Impressions of an Attorney: generally never discoverable unless it would be impossible to get the info any other way.
    • All other types: generally freely discoverable, except for consulting experts (which require exceptional grounds for disclosure)
  53. Pre-trial Judgments
    • 1) Motion to Substitute Judges
    • 2) P's Motion for Voluntary Dismissal w/o Prejudice
    • 3) D's S2-615 Motions Attacking the Complaint
    • 4) D's S2-619 Motions to Dismiss the Complaint
    • 5) Motion for Summary Judgment
  54. Motion to Substitute Judges
    Each side has the absolute right to remove the judge one time without? cause if filed before the judge resolves any substantial merits-based issue.
  55. Motion for Voluntary Dismissal Without Prejudice
    • P has the right to take one voluntary dismissal w/o prejudice before trial begins unless D has filed a counterclaim.
    • If P has taken that right, P has a period of time up to one year after dismissal to refile, even if it goes beyond the statute of limitations
  56. Section 2-615 Motions Attacking the Complaint
    • pre-answer motion that strikes an allegation or moves to dismiss a claim for failure to state facts that make up the claim.
    • Judge may not consider any material outside the complaint.
  57. Section 2-619 Motion to Dismiss the Complaint
    • may be filed in the answer
    • Motion based on an affirmative matter that defeats the claim.
    • Judge may consider material outside the complaint resolving the matter.
  58. Motion for Summary Judgment
    granted if no genuine issue of material fact for trial judgment becomes proper as a matter of law.
  59. Motions During and After Trial
    • 1) Motion for Directed Verdict (JMOL)
    • 2) Motion for JNOV (Renewed JMOL)
    • 3) Motion for New Trial
    • 4) Motion to vacate a default judgment
    • 5) Motion for Relief from a judgment
  60. Motion for Directed Verdict (JMOL)
    • Can be filed after the adversary has rested its case.
    • Granted if evidence so overwhelmingly favors the moving party.
  61. Motion for JNOV (Renewed JMOL)
    • Can be filed within 30 days of a judgment.
    • Granted if the evidence so overwhelmingly favored the moving party, despite the jury's verdict.
  62. Motion for a new trial
    • Can be filed within 30 days of judgment.
    • Granted in the court's discretion for either: (1) errors at trial affecting the parties' substantial trial rights; or (2) if the verdict was merely against the manifest weight of the evidence
  63. Motion to vacate a default judgment
    • D will suffer a default judgment if he fails to respond to the complaint in a timely manner (either 30 or 60 days if D waived formal process)
    • If filed within 30 days of judgment, the motion will be liberally granted.
  64. Petition for Relief from a Judgment
    • Definition: extraordinary remedy for a judgment tainted by fraud or perjury
    • Time Requirement: must be filed between 30 days and 2 years after the judgment
    • Showing Required: MEND
    • Merit - merit to your claim or defense
    • Equity - demands relief b/c it would be inequitable to let judgment stand in the wake of fraud or perjury
    • New Facts - new facts have come to light since the judgment which cast doubt on that judgment
    • Due Diligence - despite due diligence movant was unable to discover the new facts until after the judgment.
  65. Res Judicata
    a claim which has been fully and fairly litigated to a final judgment on the merits cannot be re-litigated by the parties
  66. Collateral Estoppel
    an issue which has been fully and fairly litigated as part of a final judgment on the merits cannot be re-litigated by the parties
  67. Finality Rule
    parties are barred from re-litigating claims or issues which they have already litigated to a final judgment on the merits.

    Note - If P1 sues D and a final judgment on the merits is entered, D is then barred from re-litigating that same issue if sued by P2. E.g. Attorney General brings a consumer fraud case against D and obtains a final judgments against D. Afterwards, P files a consumer action alleging the same fraud. D is barred from re-litigating the fraud claim. Therefore, P wins on summary judgment.