Text Size:

« back

Civil Litigation FLASHPOINTS June 2019

June 14, 2019Print This Post Print This Post

Tae Y. Kim, Freeborn & Peters LLP, Chicago
312-360-6821 | E-mail Tae Y. Kim

Defendants Can Dismiss Lawsuit Even After They Have Answered Complaint

It is widely unknown that Illinois law allows a defendant to file a motion to dismiss after that defendant has answered a complaint. However, “[f]iling an answer does not preclude filing a section 2-619 motion.” Thompson v. Heydemann, 231 Ill.App.3d 578, 596 N.E.2d 664, 667, 173 Ill.Dec. 40 (1st Dist. 1992); Dever v. Simmons, 292 Ill.App.3d 70, 684 N.E.2d 997, 1000, 226 Ill.Dec. 1 (1st Dist. 1997); Outlaw v. O’Leary, 161 Ill.App.3d 218, 514 N.E.2d 208, 210, 112 Ill.Dec. 742 (3d Dist. 1987); Clemons v. Nissan North America, Inc., 2013 IL App (4th) 120943, ¶33, 997 N.E.2d 307, 375 Ill.Dec. 304; Burks Drywall, Inc. v. Washington Bank & Trust Co., 110 Ill.App.3d 569, 442 N.E.2d 648, 651, 66 Ill.Dec. 222 (2d Dist. 1982). Moreover, “[t]he question whether a complaint discloses a cause of action is always open to consideration in a court of review.” Swager v. Couri, 77 Ill.2d 173, 395 N.E.2d 921, 925, 32 Ill.Dec. 540 (1979), quoting Lasko v. Meier, 394 Ill. 71, 67 N.E.2d 162 (1946). Even “[a] defendant’s failure to object to the complaint prior to verdict does not completely waive the question of whether the complaint failed to state a cause of action.” 395 N.E.2d at 924. The issue for the court deciding whether to grant the late-filed motion to dismiss is whether it will prejudice the plaintiff. Tyler v. J.C. Penney Co., 145 Ill.App.3d 967, 496 N.E.2d 323, 326, 99 Ill.Dec. 748 (4th Dist. 1986). See also Kothe v. Jefferson, 97 Ill.2d 544, 455 N.E.2d 73, 75, 74 Ill.Dec. 43 (1983).

Although there is no bright-line test for what constitutes prejudice, the Illinois Supreme Court and appellate courts have given some examples of what did and did not prejudice the plaintiffs.

In Kothe, supra, the defendants answered the complaint, without filing a motion to dismiss, but in opposition to a motion for summary judgment, argued plaintiff’s complaint failed to state a cause of action. Id. The plaintiffs argued that the defendants waived the right to raise the issue of whether the complaint failed to state a cause of action because they filed an answer, and that allowing the defendants’ dismissal would cause them prejudice. Id. However, the Illinois Supreme Court held that the defendants did not waive their right to argue whether the complaint failed to state a cause of action, and, even though the defendants already filed an answer to the complaint, the plaintiff was not prejudiced by the dismissal because the plaintiff was afforded the opportunity to respond to the defendants’ theory for dismissal, and opposed it. Id., citing Swager, supra, 395 N.E.2d at 924.

In Tyler, supra, the defendant answered the complaint and then, two years later, without leave of the court or a request for leave to withdraw its answer, filed a 2-619 motion to dismiss. 496 N.E.2d at 326. Although the appellate court did not condone the defendant’s conduct by defending the case for over two years before filing its motion to dismiss, it affirmed the dismissal of the complaint because an objection to a complaint as being void can be raised at any time. Id.

In Dever, supra, there was no prejudice to the plaintiff when the defendant filed a §2-619 motion to dismiss after nearly a year and a half of litigation, and after the “[p]laintiffs’ attorney . . . serv[ed] interrogatories and requests for production of documents on defendants, and by attending court hearings concerning discovery deadlines.” 684 N.E.2d at 999.

In In re Custody of McCarthy, 157 Ill.App.3d 377, 510 N.E.2d 555, 557, 109 Ill.Dec. 687 (2d Dist. 1987),the respondent filed a motion to dismiss nine months after child custody hearings began. The appellate court ruled that the petitioner was prejudiced by the “late motion to dismiss” because “petitioners had to endure a prolonged and difficult custody hearing which was spread out over almost 11 months. They, undoubtedly, incurred large legal fees. The emotional toll of the proceeding must have been significant. Also, petitioners and the minor children were doubtless growing accustomed to living with the petitioners.” Id.

The Proper Procedure for Filing a Motion To Dismiss After Answering a Complaint

Because a motion to dismiss is usually filed before an answer, the favored procedure for dismissing a complaint after an answer has been filed is to first withdraw the answer and then file the motion to dismiss. Tyler, supra, 496 N.E.2d at 326 – 327. However, failing to withdraw the answer prior to filing the motion to dismiss is not fatal to the motion to dismiss. 496 N.E.2d at 326.

For more information about civil litigation, see CIVIL PRACTICE: TRYING THE CASE — 2019 EDITION. Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.


Subscribe to FLASHPOINTSFree monthly e-updates in 15 practice areas.