Illinois Civil Procedure - c.ymcdn.com · Session II from Syllabus Thursday, June 11, 2009 7:10 PM...

Judge Peter FlynnChancery Division2408 R.J. Daley CenterOffice 312-603-7977Mobile [email protected]

Illinois Civil Procedure


Tort reform statute found unconstitutional in Best v. Taylor 1997

General Sources of Ill Civil ProcedureIllinois Supreme Court•Illinois Constitution•Illinois Code of Civil Procedure•

Illinois Supreme Court

7 justices•

Big population in Cook, DuPage, Will○

3 from Cook County•

One each from other 4 judicial districts•

Illinois Appellate Court

One court•

If there is an appellate decision on point in my district, I am bound to follow it, even if other districts disagree○

If there is an appellate court decision anywhere in the state, I am bound to follow it unless there is a contrary decision○

Some pick what they think is the better rule

If there is conflicting decisions, trial judges can pick○

Five districts•

Chicago Title v. Vance○

Bryson v. News America○

Before 1937, appellate court decisions not binding authority•

Supreme Court has Supreme Court rules○

Il Civil Procedure are statutes○

When rules conflict, Supreme Court rules prevail○

Appellate court justices are elected in districts○

Used to have to travel courthouse to courthouse- riding the circuit

Circuit judges are elected by voters○

Judges had to live in their sub-circuit

Cook County divided into 15 sub-circuits○

Then they did not have to live in their sub-circuit

Until recently, judges from sub-circuits were retained county-wide○

Divisions allow for specializing

Downstate judges have to handle all kinds of cases and know a lot

Cook, Will, DuPage○

Cannot preside in a death penalty case w/o supreme court approval

By 1900, Chicago was international information and commerce hub□

Courts critical to function of commercial economy□

Chicago created different kinds of judges & jurisdictional nightmare

Inequalities in judge skills, most poorly qualified judges sent to municipal courts◊1964 judicial Article, Article VI of 1970 Constitution created a single Cook County Circuit

Good place to process simpler cases◊Dollar cap on cases heard in Municipal Courts

JUDICIAL ELECTION KEEPS JUDGES FAMILIAR WITH NEEDS OF POPULATION◊Judicial election v. merit selection

No amendment for 50 years, but no limit on other kinds of judges□

Ill Constitution of 1870 put a limit on 3 of circuit judges allowable in the state

Associate judges are chosen by the circuit judges and assigned by Chief Justice○

State system cannot have courts of limited jurisdiction

State trial courts are courts of general jurisdiction

Federal Constitution created a court system of limited jurisdiction□

Illinois General Assembly has no power to abolish state court system

Congress could abolish lower federal courts, not Supreme Court□

Differences between Federal and Ill State Constitution

Illinois Constitution of 1970○

Freezing assets at filing

Attachment○

Recoverable costs essentially limited to filing fee by Ill Supreme Court

Costs○

Seems like judgment first & trial later

Plaintiff must post a replevin bond in double the amount of property he wants back

Been around forever

Does not offend Due Process

Replevin○

Large amount of concurrent authority•

Rule is aimed at lawyers

General Order affect lawyers but are aimed at administration of court itself

Supreme Court Rule 21-How Rules and General Orders are made•

Administrative agencies part of executive branch of govt□

Legislative branch is mediator

Article VI, section 9 gives General Assembly power to limit administrative review

2 big limits on general jurisdiction of Ill courts○

SMJ- separation of powers issue•

Before Session IISkim Article IIReread in re CMRead Chicago Title v. Anderson

Session I


Legislative branch is mediator□

Abolished in Ill in 1960s, but acknowledged that General Assembly can legislate it□

Yes you can sue the state, but you cannot sue for $□

Sovereign immunity- used to be you couldn't kill the king

Within 35 days requirement is in regard to SMJ□

One day late in filing administrative review complaint, judge does not have SMJ□

Rodriguez v. Sheriffs Merit Commission

Legislatures can impose SOLs□

Truth in lending Act

What if legislature creates a CoA unknown at Common Law?□

If legislature created CoA, then they can create jurisdiction□

Under 1970 Constitution, judicial power is vested in judicial branch, legislature cannot take away their power to determine i f the conditions

exist

□

A void order can be attacked at any time in any way, it can be ignored

Voidable order is wrong, but in effect until it is attacked and struck down, res judicata

Pre-1964 Ill decisions had not distinguished between administrative agencies and courts in limiting jurisdiction□

Complicated with statutes and regulations

Juvenile court system is a legislative creation□

In re: CM

Our rules governing ourselves

Supreme Court said that (we can do anything we want) it's supervisory authority is only limited by Ill constitution and can e xcuse its own

compliance with its own rules.

□

Not so for circuit and appellate courts□

In Wauconda Fire v. Stonewall Orchards

Public interest exception recognized by Ill Supreme Court

Mootness doctrine- case and controversy is settled□

Requires an active party whose interests are adverse

Standing□

Other limits on jurisdiction- justiciable controversy required

Appellate jurisdiction○

Fact pleading v. Notice pleading

Illinois system

Don't want evidentiary facts, but ultimate facts□

Little difference between ultimate facts and conclusion □

Judges need to be able to look at complaint and say that if the P can prove all of this then this is not a waste of time□

What is a fact can be tricky

Start with the legal elements of the CoA- branches

Add facts to support each element CoA- leaves on branches

Federal Notice pleading does not require a pleading of a CoA○

Need discovery to see if CoA exists

Fact pleading○

Bad thinking is that purpose is to win, not considering cost of litigation, financial cost and other

Civil justice system is a dispute resolution system○

Charlie Clark and Discovery○

Discovery became contentious and adversarial○

Appellate court upholds CoA as sufficiently stated in complaint

A more complicated CoA would require a more involved pleading

Kita v. YMCA○

Pleading did not identify a duty to P

Pleading requires a duty, sometimes facts will state it for you (9 year old boy at daycamp falls out of tree - duty to parent)

Richardson v. Eichorn○

affidavit attached by medical professional stating that if this did happen, then malpractice did occur (expert testimony upfront)□

Complaint must have:

Signed statement by P that he did not voluntarily dismiss the same claim earlier□

Encouraged retaliation

Name and address of expert on complaint□

Tort reform added

Medical malpractice section 2-622 has gone through changed & back due to tort reform attempt○

Did not attach affidavit

Healing art malpractice covers beyond purely medical

Jackson v. Chicago Classic○

Declaratory Judgment Cases

Not seeking damages or affirmative relief, but a declaration of rights•Guides parties in their conduct going forward•Cannot use a declaratory judgment to get a declaration on no liability for past conduct•

Trossman v. Trossman

Wife asserts that prenup is invalid•Husband sues for declaration that prenup is binding•


•

Appellate court held that this is a real controversy & parties are using statute exactly as it is meant to be used○

Parties need to sort this out to do estate planning○

Wife argued that there was no controversy•

Interpleader•

After reading complaint, in multi D case, opp for each D

Ds may have one opp to demand a jury○

P has only one opp- at filing○

P does not demand jury to see case reach trial faster (2yrs v. 7 years)

D demands jury, then withdrew his demand after 5 year wait for jury

Appellate court held that is this situation, P should have opp to demand jury

222A limits application of rule

Grady v. Manchini

Cook county had been using the rule as an opt in rule

Grady held hat 222 is an opt out rule that must be applied

Hernandez v. Power Construction○

Jury Demand•


Assignment-ordinarily contractual, a right is transferred to another party•Subrogation- one is substituted for another in having a right, duty, or a claim•

2-403 says that a assignee and owner of a non-negotiable chose in action may sue thereon in his or her own name•Must in pleading and on oath explain how they acquired title to chose•Must be in the name of for the use of subrogee. Subrogee must state in pleading their name•

Walker sued Ridgview who sued Gateway○

Walker does not sue employer because of workers comp

Gateway was Walker's employer○

Ridgview settles with Walker○

Ridgeview asks trial court to amend complaint to name General Casualty as subrogee

Trial court grants motion to amend that appellate court finds improper

Appellate court says that 2-403(c) requires subrogee to be named at time of filing

Trial court enters judgment for $290K for Ridgeview○

Walker v. Ridgeview•

All persons may join in action arising out of same transaction where any common Q of law or fact would arise

Court can order separate trials when necessary

Joinder of P and joinder of D.○

2-404, 2-405•

In Ill ,Res judicata applies to claims brought and claims that could have been brought ○

Ins action could bar your personal injury claim

Client and ins co and considered to be in privity against defendant causing injury○

Il does not have mandatory joinder or counter-claim rule, federal does•

If a complete determination of a controversy cannot be had without the presence of other parties○

Indemnity□

contribution□

Two situations only:

(b) a D can join a 3rd party if the party is or may be liable for all of part of the Ps claim against him○

2-406(a)•

No action shall be dismissed for mis or non joinder of necessary parties without affording reasonable opportunity to add themas parties○

2-407•

Holzer has partnership with Demere forming ProLight○

Who assigned patents to Motorola lighting and Holzer thinks Motorola should give them back○

Motorola asserts that DeMere is necessary party○

Circuit court grants Motorola motion to dismiss○

To protect an absentee party's interest□

To protect the interest of those before the court □

broadest

To enable the court to make a complete determination of the controversy□

Necessary- nice to have

Indespensible- so essential that case would be dismissed without party

Appellate Judge Gordon ○

Findings will not be binding if he is not a party unless someone in the suit has privity with him representing his interests□

If there were a party representing his interests, his interests would be represented□

DeMere cannot be prejudiced in any findings that are not binding on him

Court concludes that he does not have to be in the case to protect his own interest○

DeMere and Motorola are in privity with respect to this case

Court looks at whether Motorola's interests would not ne protected without DeMere's presence○

D denied that they said in trial court that they could not find DeMere

Appellate court found that D did say they could not finf DeMere

Court rules that DeMere is necessary for the court to make a complete determination of the controversy○

Court held that arbitration clause meant that complete determination of controversy could never happen, therefore DeMere not necessary○

Holzer v. Motorola•

No standing case- grandfather had no standing○

Grandfather was given custody of child at divorce proceding○

Mother sought custody one year later○

Custody granted to mother○

No

Is grandfather a necessary party?○

Horn v. Horn•

Unknown parties must be mentioned by filing an affidavit ○

Cannot file an action on behalf of an unknown P or D○

Cannot sue a dead person or file action on behalf of a dead P○

Must have at least one P and D that you know○

2-413•

Name unknown party as "respondents in discovery"2-402- Respondents in discovery•

Session II from SyllabusThursday, June 11, 2009

7:10 PM


Name unknown party as "respondents in discovery"○

You get 6 months to get discovery from them○

Need at least one named and known defendant○

Via petition○

A sort of a lawsuit where you get permission to ask questions of people○

All case law holds that SCR 224 only can be used for ascertaining the identity of UNKNOWN responsible persons○

Gaynor v. Burlington○

Who was playing golf on June 10 between 2and 4pm because they may have broken my window□

Sometimes to find out a person's identity, more info will be needed.

Beale○

SCR 224- Discovery before suit to indentify responsible persons and entities•

2-807•

Federal hates class actions- Class Action Fairness Act○

Federal rule 23 says that a class action has to be the superior way ○

Difference between federal and Ill rules on class actions•

2-807 - class action has to be an appropriate action•

Rights of absent Ps need to be considered in class actions, each class member gives up right to conduct his own case and is bound by outcome○

Joinder on steroids○

Should serve huge economies of scale

Only works if you really can try the case once, if you can't do that then you should not be bothering with a class action○

You can try the case once if the one trial will establish liability or non liability for the D for the whole class○

If you cannot, then Due Process requires that the D is tried for each individual claim○

After trial, an administrative procedure is set up to pay the claims○

If liability across the board cannot be determined then…no class action○

Claim is no good. D should want certification of a class, then let is be dismissed and have res judicata.

They don't because they do not like to send out the notices

When named P has a soft case, they best to not have a class certified unless know P has a good claim

Usually don't & certify class inflicting loss on a lot more people

Named plaintiff must have recoverable cause of action○

If P says no and you offered the maximum of what the P would get, controversy is moot

Il case law says that if the tender is made before case certification if filed then case is over

Labeling something class action does not make if so until class is certified

If the court has certified a class, a tender to the named P does not extinguish the claim for the class unless the tender pay s the whole class

When a class certification has been filed but not ruled on, the court must rule on the motion before deciding whether a tende r to the main P ends the claim

If the named P has refused the tender, then class action goes on

In this situation, court will give authority to do this□

If named P accepts tender he is no longer an adequate rep for class, court may consider asking P's lawyers to find another na med P

Smith v. Illinois Central Railroad

Ps argues that dominant common factor is that all of these people was subjected to the derailment and a class should be certi fied

Ill Supreme Court held that this action would involve individual hearings for each individual injury and property damage

Established in Ill that mass torts are not good subjects for class actions

When D knows he was wrong, he often tries to settle by paying what the P wants and his legal fees○

Wood River v. Germania Federal and other class action cases•

Certified nationwide class○

Nothing forbids certification of nationwide classes as long as they work○

Class actions need to consider how to administer recovery

Lee v. Allstate•


SCR 222- (affidavit filed as OPT-in in Cook county)

Grady v. Marchini

Champaign county- this case was designated as an LM case seeking damages not in excess of $50K, P gave LM designation to case, typed by P, not court clerk

Court case types: LM case numbers are for cases

Appellate court did not appreciate that P lied about how case was designated as LM

Every time an appellate court looks at another case it is because they look at previous holdings in light of the facts in the case at bar

After jury came in with $97K verdict, D moved to reduce amount to $50K

P argued that D chose not to assert SCR222 during trial, he should not be able to assert it now

This is backwards because P acted consistently as if he thought SCR 222 did not apply□

Court ruled as if P thought it did apply□

Court said that P forfeited that point because

Appellate schizophrenia- got something backwards

This case filed as an LM case makes a difference

Cases over $15 but under $50 it is an LM case

Since P designated case as LM, then P knew he wasn't asking for more than $50 when he filed

Work is done on a case according to the value of what case is worth

Changing the value of $ sought after filing complaint is unfair to other party

If a P chooses to file in a certain division the court assumes that P is aware of the $ limits of the division

P sought damages 2-604, complaint is not to state a amount of damages unless it determines jurisdiction of court or shows which department case in heard in

If case is filed in wrong dept, it is just xfered to right court- even a judgment in wrong court is valid

Lecture Topic:

Know SCR 137- Signing of Pleadings, Motions and Other Papers--Sanctions

If you do not follow this rule, you will have committed malpractice

Attorney's signature is a admittance of reading pleading, motion, or other paper and it is true

All proceedings under this rule shall be considered a claim within the same suit

Mortgage

Complaint alleges that D has been in default of mortgage payments for 4 months immediately before lawsuit is filed

Attorney Spivack files answer of behalf of D stating a general denial based on Ds statement that mortgage payments are current

Lawyers are not permitted to blindly believe everything their client says. They are obligated to check because the attorney'sname, reputation, professional standing, etc is on the line

□

Memory editor- involuntary process in human mind edits memories to avoid cognitive dissonance, people think the edited memories are truth□

D stated that former tenants were paying mortgage directly to mortgage holder with 3rd party checks

Not giving client adequate representation□

Charging flat fee and cannot afford to do too much work on a low paying case□

Spivack explained that he did not ask for documents because he never asks for proof in "cases like this"

Sometimes the state's case is so poor and case should go to trial and client would win□

Flat fee makes trial a monetary loss for lawyer- ethical dilemma□

Judge talked about DUI cases and 401 hearings that plead a client guilty, court is required to look at record that exists anddecide whether to accept the plea or not

Flat fees in real estate law prohibit good title search

2 cancelled 3rd party checks to mortgage holder□

Client did not have any more and could not recall how many were missing□

Stevak threatened to withdraw if client could not produce documents□

He does not withdraw□

He does not subpoena tenants who client does not know location of□

Spivack's client still cannot find all payments

735 ILCS 5/2-611 was repealed and SCR 137 replaces it

The problem is that attorney failed to make a reasonable inquiry into client's claim of not being in default□

Attorney should made an objective and independent assessment of what he puts into a pleading not based on client's statementsbut on his knowledge and skill as a lawyer

□

SCR 137 test- Objective standard based on the circumstances present at the time of the filing□

The fact that you lose does not violate SCR137

SCR 137 does not require that attorney immediately disclose new info, he cannot remain silent, but by next court filing should correct error.

Chicago Title v. Anderson

Sanctions for false pleading

Today's Topics:

Session II- what we didn't cover last classTuesday, June 09, 2009

7:05 PM


Homework:

Avery v. State Farm

Accident and state farm repaired car with aftermarket parts○

Can be a perfectly legitimate complaint, if the aftermarket part was of inferior quality and K called for manufacturer brand parts○

Aftermarket parts may be made to the same standards○

Addressed the dysfunction of the class action•

In collisions

What parts were replaced□

Doesn't establish that aftermarket parts were always used

Would have to look at each part & each car to determine if part was inferior or not

Assuming all state farm authorized facilities are instructed to use aftermarket parts wherever possible□

Car repaired by state farm authorized facility

Class of many people○

Bigger class - bigger fee

Moral duty of plaintiffs class action lawyer to do good for all these people

Goal of class action is to have the biggest class possible○

All aftermarket parts are inherently inferior because they are perceived to be of less quality than OEM parts

Justified by car part ads "get genuine gm parts"

These ads have penetrated the consciousness and we, the public, believes it

Resale value depressed by fact car was repaired by a State Farm facility and non -OEM parts may have been installed

With Mrs. Avery as named plaintiff, you have to come up with a theory that says you don't have to look at an aftermarket part to determine it is junk

○

Common car owner does not know ○

The tendency of Plaintiffs lawyers in Class actions to over-abstract to come up with a class action claim○

Asked- what wrongdoing he was referring to

Replied that the wrongdoing the lawyers told him of

Asked is it wrong

Replied-not sure

Replied he could not determine proximate cause for any class member, he just didn't know

Ps got a damage expert who concluded that State Farm's wrongdoing was worth Billions of dollars○

Courts are now more careful to look at class

Legal theory with emphasis on proximate cause

Improved general qua.ity of class action litigations

S.Ct. went out of their way to demolish this○

Nationwide class action to correct State Farm's use of crappy parts•

Weird case○

If detailed and facts are in every complaint, does every complaint contain a motion for class certification? NO

Must contain enough facts

Ill is a fact pleading state- has to meet fact-pleading standard in the complaint○

Calling something a class action in a complaint does not make it one○

Someone had to move to certify the class○

The court has to certify the class, subclass○

Complaints tended to be general and just restating the statute: commonality, issues of commonality○

Policy on part of defendant that effects all of the customers of a certain product = class action○

Weiss v. Waterhouse Security•

Madison county-east st. louis & St. Clair county- belleville○

Very receptive to edgy class action cases○

Latest fad claims○

10 or 20 clone class actions are filed within 24 hours of filing of a large class action suit○

Fee percentages are set by courts

Lead council gets to assign tasks to non-lead council and has an effect on fees○

Reverse auction- lowest bidder wins□

Makes sense because purpose of class action is to benefit class; not lawyers□

Plaintiff's class action lawyers□

Congress took active role in determining who would be lead council

Congress passed Class Action Fairness Act designed to prevent class actions whenever possible○

Whether a action moves on is a big deal

No company wants to send out such a notice to their customers◊

Once a class is certified, notices have to go out to the class

D's fight hard against class certification

P's fight hard for class certification

Certified class means 85% chance of settlement and P will never have to prove their claims

Players spent more time on dynamics of class certification rather than seeing if there is a claim or not

Often there is no damages to collect from defendant◊

Natural tendency for council to overlook determining damages in favor of structuring a claim

Amendment to SCT rule 306- made rulings appealable□

IL

Tort reform= for some this means to abolish tort law; corps should not be subject to liability because they sell things that hurt people

Courts look more skeptically toward class actions○

Judicial Hellhole for defendants •

•

Commencing an Action

Clerk enters it into computer system○

Stamps it filed○

Begins with filing with the clerk in Ill•

Can you file a complaint and let it sit ? NoStops SOL from running•

Session IIITuesday, June 16, 20098:40 PM


Can you file a complaint and let it sit ? No○

If P fails to exercise reasonable diligence to obtain service prior to expiration of SOL, action will be dismissed w/o prejud ice

P injured by driver of D trucks□

P just sued D company, did not sue driver□

OK by tort law, all joint tortfeasors need not be sued□

Amends complaint & serves summons on driver□

Court dismissed

Driver moves to dismiss because SOL had run□

Being sued on vicarious liability theory

Driver case dismissed, primary D out of case

Therefore, no vicarious liability

D company moved to dismiss□

S.Ct. said that there was no trial on the merits, driver case was dismissed on a defense particular to him, it would not be f air to dismiss □

Dismissal of a D on a ground personal to that D does not effect the claim of another D even on a claim based on vicarious lia bility□

Leow v. freight co

SCt rule 103(b)○

Diligence is common sense and reasonable effort

Kole v. Brubaker○

LEAVING COPY OF SUMMONS WITH D PERSONALLY…or

NO substitute service in the workplace, only the ABODE□

LEAVING COPY AT Ds ABODE WITH A MEMBER OF THE FAMILY or a person residing there (substitute service) and mail copy to D (bett er called ABODE service)

2-203 (must not be essential to jurisdiction because we let people waive it in S.Ct. Rule 102(f)○

D staying in hotel

Deputy sheriff and bellboy go to known room of D

D refuses to open door

Deputy tells D he is here to serve him with summons and says he will put it under the door

D says OK

D later objects to service as improper

Court says generally not OK to shove summons under door, but in this case D acquiesced to method of service

Court does not look favorably on people who avoid service of process

Hatmaker v. Hatmaker○

Substitute service to 13 year old brother who did not live there is NOT valid service

Must be reasonable to assume the person receiving the summons will deliver it

Cumbo v. Cumbo○

Term family is not limited to blood relatives

"wife" lived there

Fredman v. Stambaugh○

Abode service to wife, substitute service for husband to wife

Wife never told husband

Judgment against D, mortgage foreclosed, house sold

If you buy at a foreclosure sale you have a due diligence to check and make sure the docket has no defect□

Bonified purchaser protected by 2-1401(e) unless lack of jurisdiction affirmatively appears in record proper

Named in corporate charter

If you can't find the registered agent, you can serve the Secretary of State with an affidavit of service explaining why you cannot find registered agent

No reason for special process server for a corporation

You can serve process on the registered agent for a corporation□

Case law has limited that to somebody who you could reasonable expect the corporation to authorize to accept those sort of things

Not an 18 year old bread receiver who only spoke Italian◊

In a law firm, a receptionist is OK to serve◊

Jansma Transport Case v. Torino

You can serve any agent of the entity□

Read statutes on service on entities

Implied consent (legal fiction) because of using Ill highways□

Secretary of State can be served and include an affidavit□

Attorneys fees apply when this statute is used when it does not apply□

Default judgment against non resident can be petitioned by D within 5 years□

625 ILCS 5/10-301…non resident motorist long arm statute

Any person injured in Ill by drunk can sue the person who sold the liquor within or without the territorial limits of ILL□

Intended to reach outside of Ill□

License often held by owner, not bartender

Landlord liable severally or jointly

Against person licensed to sell liquor□

Dramshop Act 235 ILCS 5/6-21

Mid-America v. Kosiewicz○

Allowed for in rem actions regarding property or status

Publication notice is not notice;

Mortgage foreclosure case □

Son is inmate serving natural life in Joliet CC□

P does not ask them if any other siblings

2 other sons file answers□

P has been getting copies and does not tell court

Inmate son files motions that court does not hear of until later□

Without trial court hearing motions to dismiss

Judgment is entered and foreclosed property is sold□

Trial court vacates judgment of foreclosure and sale

3rd party purchasers sale is validated

Court struggles with statute that protects bonified purchasers 2-1401 (e)□

Not bonified purchaser for value if he has actual or constructive notice of the rights of other parties

Appellate court held that 3rd party purchaser have due diligence to check court records and if they checked they would have s een motions □

Bank of NY v. Unknown Heirs of Ruth Hatch

2-206 service by publication…use with caution○

Dilligence in Serving•


Notice of facts that would put a prudent man on inquiry is chargeable with knowledge of other facts he might have discovered by diligent inquiry

Judge advised never using service by publication without a court order demanding it

No longer have it

2-301 eliminated it and says that the motion has to be filed before any other pleading or motion other than a motion for an ext ension of time to answer

2-301(b)

3 step process in challenging jurisdiction1-read complaint. Does it set forth a prima facia basis that IL had jurisdiction over the D?

Is it unrebutted? Motion to dismiss granted3-

D still free to argue on the merits laterIf rebutted- court holds evidentiary hearing- not a hearing on the merits

2-does the D challenge the facts?

Until the year 2000, a special limited appearance had to be filed for the purpose of challenging personal jurisdiction or els e challenge is waived○

Abode service- officer writes on the return that he served member of the family over 13 years of age …we will allow a D to object

Must be some reason for service of process that goes beyond this, some cases say that actual notice doesn't matterJudge says it is "mysticism"Judge says that certified mail with return receipt is actually more reliable than personal service

Purpose of service is to notify D of pending lawsuit

S.Ct Rule 101(f) WAIVER of SUMMONS○

About personal service, not abode service

S.Ct. says that if a sheriff makes a false return relief may be granted□

The stability of judicial proceedings requires that the return of an officer should not be set aside merely on the uncorrobor ated testimony of the person on whom the process has been served, but only upon clear and satisfactory evidence

□

Failure of officer to remember service is not such clear and satisfactory evidence to impeach the service□

D was at work day and time of alleged time of service

Plane tickets

Employer testimony

Corroboration is key to impeach service□

One state she never served anyone on the street the D lived

Sheriff and deputy cannot remember serving □

Sheriff testified he had no recollection of serving□

S.Ct. does not throw out summons and says that sheriff and deputy testimony does not assist or impeach service□

D claims that he had no knowledge of judgment against him and was not served

Marnik v. Cusack○

If the D was never served, the court never had jurisdiction over him 2-1301, 2-1401

The return of service ends up doing the testifying because process servers cannot remember all the people they serve○

Type of Summons..know which is which

Only for action for money less that $50K not subject to arbitration○

Day for appearance specified in summons must be over 21 days and less than 40 days after issuance of summons○

Rule 101(b) summons on a specified day•

Applies to all other cases○

File answer within 30 days of service of this summons○

Expires 30 days after issuance○

Rule 101(d)•

Another summons when first expires by asking CLERK○

Rule 103 (a) Alias summons•

Rule 101(g) says that the use of a wrong summons shall not affect the jurisdiction of the court…but will probably be misfiled by clerk•Rule 102- Return of Service Form•


To speak the law; to say what the law is

Justice Holmes : "the foundation of jurisdiction is physical power"

Jus dicere

Cornwall, England: The law emanated from the Duke of Cornwall based on physical power; enforcement; "I can beat you up"

Physical boundaries play a part because different people rule different territories

Boundaries are established to sort out who has physical power where

Wars fought over boundaries

People will obey some statements of the law in situations where the immediate threat of actual enforcement was non-existent□

Legitimacy is peoples belief that a particular authority, a govt, had the right to tell them to do things□

In a given society, the members give up certain rights for a common agreement

Includes entitlements, social security, taxes that pay for schools,

Entitlement; the social compact; The Enlightenment□

As some point, the concept of legitimacy crept into our thinking

Law was a product of territorial force

Meaning only because they marked the outer limits of where the duke's troops could go

How do you get an effective central authority? King over lower level dukes?

Eventually power became centered in the crown

Thomas- church's courts- equity courts- (moral force)□

Henry- law courts□

Thomas Becket (priest king) and Henry II both tried to establish a unified England through a unified court system where judgments depended on something less than immediate force

Jurisdiction as brute force; physical power

Didn't work….no centralized power

States wanted individual power, but recognized value of a centralized power

1785 Articles of Confederation-

Convention decided we had to have a centralized government and the states were not independently sovereign

Diversity jurisdiction was created because people figured out that in their own state, they would win□

Federal court supposed to be neutral turf□

What to do if a Pennsylvanian and a Kentuckian had a fight?

1825 Andrew Jackson confronted a belief that a state could succeed from the Union whenever it decided to

1789 US constitution

Not just the P, but the P's home state had a legitimate interest in providing an effective remedy for its citizens against non resident people who do wrong to them

The idea that the forum state has an interest was a new development

SMJ- can't waive it, can't create it

After the automobile, it was clear that questions of jurisdiction needed to be answered

Obviously P submits to jurisdiction, he filed

Jurisdiction over the person, the D,

implied consent indicates a legal fiction, invented and created consent is more accurate

First LONG-ARM STATUTES were non-resident motorists framed in terms of implied consent,

Wisc appliance dealer sends employee to deliver stove to P in Ill

Employee asks P to help unload stove from truck

P loses finger and sues employer appliance dealer

First case where a implied consent was held to exist when a non resident motorist drives on a state's roads

Hess v. Pawloski□

Ill S.Ct. confronts Q whether it is permissible for Ill to assert jurisdiction of

If you bought into implied consent to the use of the highway, you could limit consent to actions arising from using the highway.□

Shaffer recognized that it is about Opportunities of redress in the forum state and is not limited by concepts of implied consent□

Injurious accts performed here

Ill substantive law will govern

Witnesses will likely be found here

While employee was here, he enjoyed the benefits and protection of Ill law, including the right to resort to our courts

Illinois is the proper forum because:□

Justice Shaffer recognized that implied consent is not consent

Nelson v. Miller

Subject to jurisdiction for any action□

Based on residence, whether person or entity(business)□

General jurisdiction

Spartan Motor v. Lube Power quote from syllabus

Illinois Long-Arm Jurisdiction: HISTORY

Parties in default

Rule 105 if new or additional relief is sought

Rule 106-relief from a judgment or revival of a judgment

Rule 107- notice of hearing for an order of replevin

There are some things that need to be served like a summons

Today's Topics:

Announcements:

Homework:

Session IVThursday, June 18, 2009

8:41 PM


Advertises in Ill. availing self of Ill. Law (false advertising would though)–

Plus employee in Ill that does actual sales, or warehouse, office, bank account…something else–

Solicitation plus…mere solicitation isn't enough

Test►

Doing business doctrine◊

Corporation

Subject to jurisdiction for the specific things that give rise to the CoA□

ONLY□

Specific jurisdiction□

D has minimum contacts with the forum state and maintaining a suit against him does not offend traditional notions of fair play and substantial justice

Pennoyer v. Nuff

Stream of Commerce theory

Judge who decided this talks bout general jurisdiction when this isn't about general jurisdiction

Judge seems to place burden of proof on D, when it is on P in jurisdiction cases

If this really were an isolated sale, we would have expected Titan to say so

Tort law is an insurance based risk spreading system□

Judge makes statements about product liability law and applies it to jurisdiction issues: If the manufacturer mad a bum valve it shouldn't matter that it passed through 6 different hands, the liability goes to the person whose fault it was and the best person to insure that defective valves and could take out insurance

Judge Flynn says that this case is goofy

Current jurisdictional thinking has moved past P deserves a right to a forum and now focuses on what did the D reasonable expect

Gray purchased a water heater in Ill, it blew up in Ill and it hurt her

Titan valve lives in Ohio

No connections with Ill

Bought from American Radiator who blamed Titan Valve

Acts happened in place of manufacture

Last event of tort occurred in Ill

Different from Nelson

Privity did not work in product liability law

Privity does not work in long-arm jurisdiction law either

In many 1960 cases…."Product liability law and jurisdiction law were rapidly developing at the same time, and product liability law was driving the bus"

Stream of Commerce theory

Another stream of commerce case

Like gray in the way d never met p

Was there a Tortious act in ill was Q for the Ill.S.Ct.

Connely v. uniroyal

P father bought car from evanston dealer

Uniroyal tires on car- made in belgium

Tire blew injured p in colorado

Statistics need context…this case uses them without much context…

Court assumes that ma

Product liability law is driving the jurisdictional bus and admits it when citing Liberty Mutual v. Williams machine

Real point

Car purchased in NY to NY residents and accident happened in Oklahoma

Put the brakes on stream of commerce thinking

But it really has□

Forseeability alone has never been a sufficient benchmark for personal jurisdiction under Due Process

Separated product liability and jurisdiction□

Forseeability is not mere likelihood, but the D conduct and connection with the forum state that he should reasonably expect to be hailed into court there

Weird decision□

Judg Flynn says the USSCt was unable to articulate what it was trying to say

Stream of commerce theory is really nationwide jurisdiction-dangerous to combine product liability law and jurisdiction

Worldwide Volkswagen U.S. S.Ct.

2007 case. Ill app

Takes us out of connely/grey mold- rejects portably tort theory where D's wrongful act follows P to place of injury

Distinguished between products that travel with people who provide services

Doctors should not be treted like manufacturers of products

Out of state doctor cases

Sabados v. Planned Parenthood of Indiana

Gray v. American Radiator•

Business Disputes; Services, "Minimum Contacts", the "Three-part Test"

Deliberately does a national business

Patients do not go to see them

Sent envelopes & other supplies

Henkla test satisfied- purposeful availment present

Pinkus has a mail order lab

D directed activity in Ill

See 2-209- act submitting to jurisdictionThe Illinois General Assembly cannot determine Due Process2-209(c) is really the only meaningful section.

Pinkus•


Different approach to long-arm K cases

Therefore we approach tort Ds thinking about whether it is really fair to drag the D into the forum

Forum state has an interest in providing a forum for its citizens

Most tort Ds didn't do it on purpose

Business disputes involve consensual purposeful conduct

K

Jx in Ill

Private employment agency- Ill corp

D is Delaware corp doing business in Michigan

D phoned agency expressing interest in one of the resumes sent

P tells D that info would be exchanged for fee if hired

Employee came to Ill to interview with P

Employee eventually hired by D

Most activity between Wisc & mich

Employee calls P to alert them he wants to change jobs

P calls D for fee

Nobody from D ever went to Chicago□

Can Cook Assts in Chicago sue Colonial Broach in Chicago?

Doing business

Residence in the forum state

General jurisdiction□

Court could not find general jurisdiction

The cause of action must arise out of that transaction□

Who started the transaction matters□

Cook initiated the contact by sending out a flyer which was an offer to do business with D not obligated to respond□

D then initiated the transaction by contacting the P for the identity □

Court distinguished between a mass mailing from a specific contact requesting information□

K was created when D agreed that it would pay fee if it were to hire the applicant□

Court starts looking for any business transaction for specific jurisdiction

Ds contact with Ill was one phone call to P

Wasn't really extensive contact with Ill□

Court looked at where a check would be mailed to back then

Now that would be incidental, not real

D knew check would be mailed to Ill □

Seems like the court was saying any reasonable person should have known□

Court said D knew or should have known that it was making a K with an Ill agency

Result hard to argue with

Cook assts v. colonial broach and machine

No jx in Ill

What is the contact of the franchisee with Florida, Nothing, but he signed an agreement□

If there was not forum selection clause, it would have been hard to get D into Fla□

Seems like wagging the dog, like Burger King case with Florida forum selection clause

Cook maintained a branch office in Massachusetts

MacIntosh sent resumes to Runza in Massachusetts with Chicago address on letterhead□

Even though Cook has their home office in Chicago, when Runza talked to MacIntosh, was he thinking that he was submitted self to jurisdiction in Chicago?

□

Runza caled MacIntosh who happened to work for Cook, not Cook

Runza meets potential employee in Chicago who lives in Missouri

MacIntosh stops working for Cook & sets up own shop□

Runza calls Macintosh at home underscoring that Runza's relation ship is with MacIntosh not Cook□

Several interviews later…employee hired

MacIntosh sends resumes including same potential employee□

Here K in q is between Cook and Runza and employee place of hiring has nothing to do with their K□

Potential employee rejected offer

Gotcha jurisdiction OK in Ill for service of process

Yes if it were a personal suit against pres of co.◊

Not transacting the business that is underlying the lawsuitNo if suit against a corporation◊

But is it sufficient to support jurisdiction in Ill?

Cook president served with process while attending Chicago trade convention□

Cook filed for breach against lexington

Cook v. lexington united

Session IV- continuedTuesday, June 23, 2009

5:52 PM


Not transacting the business that is underlying the lawsuit►

Only of lawsuit arising out of a tradeshow, if this were a jobfair, then yes►

No if suit against a corporation

Specific longarm jx only applies when CoA arises out of transaction□

Must file before service of process

Lawsuit had been filed before Pres showed up at tradeshow, so the trade show could not have given rise to the CoA□

Exhibitors were prohibited from selling at trade show - maybe done to avoid submitting attendees to jx in Ill□

Lexington did take orders at trade show in Chicago□

Orders later excepted in Missouri office□

At 2 other shows, same thing□

No, mere solicitation of orders does not equal doing business

Is this doing business?□

All of the Chicago contacts really have nothing to do with Chicago

No offices, no sales, no employees□

Contacts were not of the character to bind self to jx in ill□

No contacts in Ill

Victron case compared to wiles v morita

Victron purchases 4 circuit boards testing machines for each state where plant exists

P Ked to buy machines, 1st to be delivered to CA, 3rd to Ill

Victron cancells deal & sues PDI □

Trial court says no JX

K'ing parties are the parties of the lawsuit◊

Delievery of tester►

Tech support for tester►

There were some Illinois expectations even though actual performance never came about►

PDI sent correspondence to Ill►

Partial perform to be in Ill◊

Appellate says maybe when U look at circumstances surrounding the K.

Who initiated the transaction, not first contact which can be thru an ad,*◊

Where the K was formed- less imp than other 2 things, usually accidental◊

Where performance was to take place*◊

Ideal ins factors

*Rooted in Henson v. Denkla

Selects Ill as forum□

PDI, a CA company, delivers to Victron's CA plant

Victron makes circuit boards in CA, Utah, Fla, Ill

No actual performance in Ill

The K contemplated more than a simple sale of goods, it contemplated a relationship which was intended to last a minimum of 2years.

This relationship is sufficient to establish jx

Is it reasonable for the D to litigate here?

Aimed at something diff than DP

Has to do with the dealings between the parties

Is it reasonable from the conduct to expect to be sued in this court

There is still a fairness inquiry that has tpo be conducted□

The tendency is to think if min contacts are satisfied, then DP is satisfied

Victron talks about federal DP and raises a 3rd consideration

Burden on D in defending action in forum state--all about the lawsuit

The forum state interest in adjudicating the dispute--so state can close its doors to non resident

Ps interest in obtaining effective relief

Interstate judicial system

Shared interest in advancing social policies

Ill DP---jx must be fair, just and reasonable to expect D to defend case here in Ill

Morita has only made 9 in whole history

Sells 4 to Company, Wiles in employee

Which state would it end up in? Ill of NJ□

Company took delivery in Japan□

Morita didn't know what Company was going to do with it

Wiles cannot sue his employer because of workman's comp

Asserting jx over Morita ironworks flunks DP test

Starts out with purposeful availment, but not done there, a D subjects self to possible exercise of jx because of that purposeful availment, have to see if it is fair, just and reasonable to expect D to defend, especially important when dealing with a foreign D

Gets us past stream of commerce thinking

Minimum contacts plus fairness

Wiles is injured by Morita's airforming machine

Addressed after minimum contacts and purposeful availment determined to exist


Business cases don't depend on accidents

Know difference between accidental and real contacts when analyzing for long arm jurisdiction

Cook, cook & victron

Explicitly decouples the Ill DP inquiry from federal DP--cannot assume the 2 are the same

East st louis police arrested speeder and kept him on warrant for someone else

Fugitive warrant for someone else

E St Louis police alert baltimore about fugitive held□

Inquired about use of alias since they have different names□

Baltimore said no alias used□

"fugitive" held anyway and signs waiver of extradiction□

Elwood comes to East St Louis and brings Rollins to Baltimore where trial judge releases him□

Held against will

Unlawfully imprisoned

Rollins sues Elwood for false imprisonment□

We chose to interpret the Ill DP law less broadly◊

Ill SCt says that a cop does what his superior officer tells him to

US S CT has held that for fed DP is makes no difference◊

People are not entitled to stop thinking just because their boss tells them to ◊

Elwood wasn't acting for himself, he was acting for employer

Is Elwood subject to Ill jx?□

3-part inquiry1-minimum contacts under fed DP? If NO, stop here2 Are there min contacts under the Ill constitution? If NO, stop here3- Is the fairness test satisfied?

Held in St Clair county jail

Rollins v Elwood


Subsidiaries and other agents present tricky LAJx problems

Purpose of corp is to insolate shareholders from liability

People cannot insolate themselves from liability to avoid consequences of their wrongdoing

D has opted to live here

Can more comfortably hold them to jx from what their agents do

Doing business□

Extending JX to an agent in specific jx loses its connection with fairness◊

Specific jx from one act from which the CoA arises

Transacting business□

Should different agency standards apply to "doing business" than "transacting any business"?

Said he should be protected from service□

Court said that he should have obtained a protective order to not be subject to service of summons□

Gotcha--Jonas served in Ill while in connection with discovery deposition with pres of P corp

Community Merchant Services v. Jonas

Tokai designed lighter that Scripto sold

Saia sued for wrongful death

Scripto admits Ill jx but not liability

Tokai denies jx as it is in Japan and never left nor dealt with P

This case asks whether a foreign corp that designs a product can immunize itself from liability for negligent design by marketing the product through a subsidiary? NO

Both cases the 3rdparty is held liable□

If you accept the viability of Gray then this case is easier to see where they were coming from.

Here the designer created the distributor

Scripto did not design the lighter, Tokai's defective design caused the death

Seems to put burden of proof on D□

Tokai owns Scripto, Scripto owns manufacturer□

Court quotes Gray and their answer is an unanswer

The law can either require the D to bring in a 3rd party D (stays in line with privity)-imposes excess costs on people in the middle of the chain when it really isn't their fault and it raises the price of the productOR construct a system which allows you to get to the ultimate manufacturer

In a product liability case, commenced against any D other than manufacturer (you don't know who manufactured the product, on ly whose name is on it). That D upon answering or otherwise pleading signs an affidavit certifying the identity of the manufacturer, t hen D gets dismissed as long as D has not exercised some significant control over design or provided warnings to manufacturer or D had actual know ledge of defect or D created defect (by removing safety features)

Avoids untoward consequences by tolling SOL while waiting for manuf to be identified once filed

There is a case where P sues retailer right before SOL runs. Retailer sues manuf. P files against manuf, but dawdles in serv ing process against manuf. Manuf filed motin to dismiss because of no due dilligence. P tries to sue retailer, but cannot because it let case go against manuf by P's own fault.

2-621 operates at intersection of product liability substantive law and jx

Saia v. Scripto

103(d) applies with full force under 2-621.

The parent corporation is not liable for the conduct of the subsidiary unless the corporate veil is pierced and the subsidia ry is a sham and is doing the business of the parent and working to immunize the parent from liability.

Conspiracy and agency relationships--READ syllabus quote

Derivative jX does not exist

Commercial coin dealt with prior owner of Milwaukee apt building

D moves to dismiss for lack of personal jx

Seller of apt would have been subject to jx in Ill

You bought the bldg, then you are subj to jx

Cannot use seller's contemplation of Ill jx to establish min contact for buyer

Seller is not agent of buyer

No relationship between 2

Court said no

Internet LAJx

Serious mismatch in applying territory based jx concept to something that has no territory

Where is amazon.com subject to jx?

Contractual methods to solve these problems have been used

Sliding scale approach is an attempt to put new wine in an old bottle

Session VTuesday, June 23, 2009

7:52 PM


Challenging Jx--READ syllabus quote


Venue & jurisd are both about where lawsuits happen and sometimes they sound similar

Never ask if D should have to come to a location

Asks is it fair to subject D to JX in a location

Jx is never about a location within a state, its about whole states

In Ill, but what county?

Venue assumes there is JX, then looks at where it should be filed

2-209 is a dinosaur, only 2-209© mattters & it sends you to the constitution

Due process is mostly all case law

Case law interprets statutes□

Venue is purely statutory

JX is statutory only in an illusory sense

All tilted in favor of D

Premise assumes JX exists, a lawsuit should be filed in a place reasonable convenient to D and has something to do with the t ransaction

All forum non conveniens start with the premise that the P choice of venue should be respected

(1) in the county of residence of any D that is joined in good faith and not solely for the purpose of fixing venue□

(2) in the county in which the transaction occurred□

Any county if all Ds are non residents□

2-101-every action must be commenced

2-102- where corporations are residents

Actions must be brought in the county in which its principal place of business is located or the county in which the transaction arose

Special provision for airports

Actions to recover damage to real estate must be filed in the county in which the land is located or in the county where the corporation is located

Rule of necessity- when you have an action that involves 2 municipal corporations, as long as the case is filed in the county of one of them you are OK◊

(a fire department is a municipal corporation, also a school district)

(a) actions against a public, municipal, govt or quasi -municipal corp□

In county where land is located

(b) quiet title to real estate, partition or recover possession□

(c) local by statute in the county designated by statute□

Where article was written

Doesn't make a lot of sense◊

Where it was printed, except when D resides or article was printed outside this state

Anywhere the libel was circulated or published

(d) libel□

May be brought in any county where any P resides

(e) actions against ins companies doing business or incorporated in this state □

2-103- special venue

Webb falls in Springfield (Sangamon) files in St. Clair County

St. Clair county is a plaintiff friendly county (like Madison County)(aka judicial hellhole)

He didn't keep his walkway clear, but it doesn't appear that she fell on his walkway◊

There was some dispute as to whose property she fell on►

The appellate court will not say that the trial court ruling that there was no evidence of bad faith was error

A thin case is not the same as no case at all►

The venue statute gives choices and invites shopping

Not many cases claim bad faith- every litigant and D does some forum shopping ►

Court said that it might be a flexible trial strategy and not bad faith◊

Joined her brother as a co-defendant as a resident of St. Clair county maybe to secure venue in St. Clair County

Other D was the mobile home park in Sangamon county

D argued at appeal that co-D was not added in good faith and that co-D actual residence was not in St. Clair county

His intent is what matters, not where he was living◊

Residence means domicile in Webb and in Illinois◊

Once a residence is established it is presumed to continue and the burden is on the other party to prove it has been abandoned and a new residence established

◊

Court said that he never abandoned his St. Clair county residence even though he hasn't lived there for 10 years

Webb v. Morgan□

IN THE COUNTY OF RESIDENCE

Docket # 5-08-0405□

Anna is a city in far downstate Illinois□

Gass files medical malpractice in Williamson county□

Good faith consists of a honest intention to abstain from taking advantage of another◊

Probable cause is a reasonable belief that the claim might be valid◊

determined that one of the Ds was joined in bad faith for the purposes of securing venue

A parent corp is not liable for the acts of its subsidiary unless the subsidiary is a sham◊

Claim can proceed only if the corporate veil is pierced and an "other office" is present

Court looked at bad faith standard and piercing the corporate veil standard □

Gass v. Anna Hospital Corp 6/23/2009

P injured on Ohio river while working for Luhr Bros in Ky□

P seeking to establish venue thru residency not transaction□

County where registered office is◊

Distribution ware house- other office

Storage warehouse- probably not other office because no active activity

Any fixed location purposely selected to carry on an activity in furtherance of the corporation's business activities. ►

The facility may be open to the public or may be a strictly private corporate operation.►

Other office-you can have an "other office" for venue purposes and not be doing business for venue purposes◊

◊

Corp residency for venue

D has a hanger in St. Clair county which is an "other office" □

Mellierre v. Luhr Bros

Venue provisions are in 2-101-2-108

Venue in Civil Cases

Session VIThursday, June 25, 2009

5:52 PM


Corp must be doing its usual and customary business within the county in which venue is sought–

for venue

Doing business for venue purposes is a stricter test than doing business for JX purposes►

Any county in which it is doing business◊

Not directly tied to transaction□

WHERE SOME PART OF IT AROSE

Remember portable tort theory for JX there is no portable tort, judt because you go to Mayoo clinic in Ind. And drop dead in cook county, cook county does not have jx over Mayo clinic

◊

DuPage county - prescribing of drug,

Failure to monitor medication happens in the office where the dr fails to check on med intake

Tail cannot wag the dog◊

Everything relevant happened in DuPage county◊

Ingestion of drug occurred in Cook County

Tipton v. Cusick□

Surgery done here►

All care & tx here►

Tests interpreted here►

Decision making took place here ►

Peoria county◊

Tests done here►

McLean County◊

Jacksons allege that Reid negligently performed surgery in their child

Complaint here is about the surgery, not the tests

If the Ps tests were an integral element of the cause of action, venue would be proper where the tests were conducted.

Jackson v. Reid□

THE TRANSACTION OR SOMEPART THEREOF

Special Venue Requirements

P sues private D and venues case properly

Kicks in a special venue requirement which sets venue where the municipality is□

Private D sues a municipality

Can the contribution part be severed while the original case stays where it is?

REREAD THIS CASE

Cook v. General Electric

All objections to improper venue are waived by D unless a motion to transfer to a proper venue is made by the D on or before the date upon which he is required to appear

Lorenz v. Herrera

2-104 (b) Objections to venue

Very common

Assume printed K include a venue privision

Which law governs the formation and construction of the K1-The residency of the parties involved2-The place of execution and/or performance of the K3-The location of the parties and witnesses4-The inconvenience to the parties of any particular location 5-Whether the clause was equally bargained for6-

Calanca Factors to determine if a form selection clause is unreasonable□

Between 2 businesses, clause is usually upheld

Between a business and a consumer, clause is looked at more closely (the rest of the Calanca factors)

Most imp factor is whether forum selection clause or could have been equally bargained for□

Where it would cost more to get there than the case is worth

Where only one side is able to get its witnesses to court

Party deprived of his day in court□

Calanca v. D&S

Sales K and arbitration agreement signed□

2 separate agreements□

Buyer cannot take seller to court, must arbitrate

Seller can take buyer to court

Arbitration agreement is one-sided□

Code says that a party can exclude liability for consequential damages provided that the exclusion is not unconscionable◊

Quid pro quo-a bargain within a bargain◊

Collateral K- UCC recognizes - an agreement which is part of the parties overall K but operates serapately

Arbitration clause is a forum selection clauseThe civil litigation system is a dispute resolution machineArbitration is a resolution

No consideration for arbitration agreement□

Vassilkovska v. Woodfield Nissan

Choosing venue by K

Wigginton v. Dell may represent the demise of the shrinkwrap doctrine where a consumer can be bound to an arbitration clause the consumer could have not seen before purchasing the goods in question

Shrinkwrap doctrine

REREAD KINKEL v. CINGULAR WIRELESS

815 ILCS 105/5-5- Choice of Law rules---prof thinks these are weird & possibly unenforceable815 ILCS 105/5-10


815 ILCS 105/5-10

FNC assumes the forum starting with is correct, just not convenient

(c) is similar to 2-201

(1) if granted and intrastate, then xfer

P elects to file in another forum w/in 6 months of the dismissal

The D shall accept service of process AND

If the SOL has run, the D shall waive that defense

(2) if granted and interstate, then this court dismisses if

FNC should be reserved for the unusual cases

Very concerned with the particular facts of the particular case

Picks a different forum that is a better place

REREAD….COMPARISONS OF THE 4 BIG ILL SUPREME COURT FORUM NON CONVENIENS CASES:

Accident in DeKalb county

Accident in DeKalb□

Witnesses in DeKalb□

Case does not belong in Cook□

Cook county court looked at facts and said that venue is correct because D lives here, but

FNC in Ill law requires not to look at why this forum is bad, but why the other is more appropriate

Even if 3 other forums are better, FNC says xfer when 1 forum is strongly the best forum

P choice should not be overturned□

No nexus with the forum also requires 1 forum to be strongly better□

Scattered counties doctrine- justice fitzgerald opinion articulates

Judge adds appendix to send message to P friendly courts…Madison & St Clair counties□

This case sends a message the court thinks is very imp to send but it is at odds with the facts of this case

First American Bank v. Guerine

Outlier because issues are to one side of the issues if the other 3

Seems like a different result could have been reached

Sort of a anti-P lawyer case (shouldn't allow forum shopping for Ps)□

Any D who files a FNC is forum shopping too□

Compared to Langenhorst- there is a 3-3 split and a swing vote

Dawdy v. Union Pacific

Gridley v. State Farm

Seems like a different result could have been reached

Langenhorst v. Norfolk

Supreme Ct Rule 187- Motions on grounds of Forum Non Conveniens

Ill appellate court upheld case dismissed when supermarket is in Kenya under FNC even though foreign court does not allow cla ss actions,

Uchimi Supermarkets v. Diners Club

Wholesale justiceLook to establish clean rulesAbstract a lot from particular situations

Appellate courts often use facts as a jumping off point

Retail courtsTrial courts are more concerned with the specific facts of the case at bar


Substitution of judge

When a judges views are known and unfavorable, cannot get SOJ under 2-1001

2-1001(a)(1) when a judge is a party or interested in the action, a substitution

Don't know who you would end up with□

Substantial issue is defined in context of particular case

Also OK if all parties consent

Guardianship, probate judge , police officer taking advantage of old man finances, officer moved for SOJ as a matter of right.

◊

Ruling on discovery motion is considered substantial when it relates to evidentiary matters and interprets a S. Ct Rule even though it is not actually a ruling on the merits.

◊

SOJ may still be denied if the moving party had an opportunity to test the waters and determine the court's disposition on the claim.

◊

Pretrial conferences are best done by a different judge than the one who will try the case

ii. App for SOJ must be made by motion & shall be granted if presented before trial or hearing before judge has ruled on a substantial issue

□

If a judge gives ample opportunity and puts parties on notice that 3rd parties need to be joined before trial or not at all

◊

When a new party to a case is joined…contribution or indemnity, best to serve 3rd party before trial takes place

iii . If any party has not entered an appearance and has not been found in default, a judge's ruling on a substantial issue before the party's appearance shall not be grounds for denying an otherwise timely application for SOJ as a right

□

2-1001(a)(2) each party has right to sub of judge as a right

By petition praying for a SOJ□

Bogus petitions for SOJ for cause are filed□

If it is denied, party is stuck with judge he insulted□

Premise is that original judge is not being fair

If petition is bogus on its face, no hearing by another judge◊

Whether or not bogus on face, another judge should hold a hearing and toss it out if that is the right thing to do

◊

2 different cases hold slightly different findings

iii. As soon as a petition for SOJ for cause is filed, a hearing is held by another judge, □

2-1001(a)(3)substitution for cause (can get as many as it takes, as a right, parties only get one SOJ

2-1001…substitution of judge

Different from concluding during proceedings of case that attorney plays fast and loose with the truth

Should recuse when biased against an attorney going into the case (extrajudicial bias)□

No IL cases that emphasize a judge's duty to sit, there are cases that emphasize duty to recuse□

IL S Ct rule 63(c)(1) requires a judge to recuse self when unable to be impartial

We don't hear secret testimony, jurors should not do secret research

Absolutely forbidden for jurors to do research, particularly internet research

2-1001.5…Change of venue

Not aimed at a particular judge or jury but the prejudiced inhabitants of a county

Not hard to find 12 people who do not read the newspaper or own a television or care

Harder in a smaller county

Rare situations, extremely rare in Cook

Are they opposing because they think the P is right?□

Ds oppose motion for change of venue

Majority's desire not to grant change of venue too quickly may have some value, but not in this particular case

Dissent has a better view

Morgan stillbirth case, mixed race baby in Bond county, Klan friendly county

A SOJ is a big weapon in a case because of a party moves to SOJ a judge and the judge denies it, the denied SOJ sits like an unexploded bomb because the Appellate Court can decide that everything that happens after the SOJ denial can be rendered null. As a result, judges often err on the side of granting a SOJ.

Substitution of judgesTuesday, July 07, 20096:01 PM


4 broad prescriptions for limits

Limits time to bring suit from when the cause of action accrues

1 - a reasonable person has to know he has been injured◊

2 - a reasonable person knows or should know the injury was wrongfully caused◊

Until a reasonable person in the Ps position would be on inquiry notice

Stomachaches can be caused by many things◊

Antacids don't help◊

The clock starts to tick NOW►

Sues Dr

Sues hospital

All operating room staff that day–

Sues respondents in discovery

Not sure who is D►

Dr does xray and sponge is discovered◊

Ex. Appendectomy and has recurring stomachaches

Comes home and finds window broken◊

There was a windstorm- no inquiry notice◊

Have window company come out to examine damage to determine if defect is present►

Q for the jury whether P should have been put on notice►

No storm-◊

Ex. Lives on golf course

Leaky roof◊

It is a Q of fact to determine at what point the SOL began to run◊

It is a REASONABLE person test, not an EXPERT test►

Also not a hindsight test►

Experts know more than normal people◊

Knox College v. Celotex

A layperson is presumptively unable to discern malpractice as it occurs◊

Patent search was not thorough◊

The mere fact an a lawyer has given the client information does not relieve the lawyer of his duty ◊

D always counterclaims for a claim for infringement►

Court finds P's patent invalid►

The first real test of a patent is a declaration of invalidity◊

Lawyer did not inform client of the risk involved in filing ◊

Lawyer keeps telling client to disregard court findings that their patent is fine◊

Court reached a fair result by estopping Leyden from pressing SOL claim when he kept client from filing by assuring him patent was fine

►

At what point should P realize there is professional malpractice?◊

Jackson Jordan v. Leydig Voit & Mayer

When the cause of action accrues□

Discovery rule

COA requires a wrong + an injury

A discernable injury occurs at the time an adverse judgment is entered, even if the amount of damages is uncertain or the jud gment may later be reversed

□

Butler v. Mayer

Trial court stayed case instead of dismissing it to wait to see how the underlying mess turns out to avoid expiration of the SOR□

Appellate court found it was a reasonable solution□

Bass v. Katten

Statutes of Limitations1.

Informal tolling agreements almost never reach the level or fraudulent concealmentrequired to stop the ticking of the clock○

SCT 224- to ascertain identity of the D

D must be affirmatively concealing - actually taking steps to cover up the existence of the claim○

Some objectively identifiable event

SOR said 10 years from date of purchase

10 years & 2 weeks later bolt fails and injury occurs

Thornton v. Mono manufacturing□

Can bar a COA before a P is injured

Statutes of Repose2.

IIED was a continuing tort when employer/therapist □

Pavlik

Exec dir of foundation open savings acct in own name & deposits checks into acct, then drains acct□

Foundation sues bank claiming a continuing tort rather than individual withdrawals to avoid SOL expiration□

Court held that the embezzlement was multiple individual acts of conversion, each withdrawal is an individual tort□

UCC requires depositors to monitor their accounts□

Kidney Cancer

NO CONTINUING COURSE OF REPRESENTATION RULE FOR LAWYERS, even though there is one for lawyers

Continuing violation○

Doctrine of laches3.

LIMITATIONS…prof feels this is tricky & important to know

Today's Topics:

Tension between legislature & courtsLegislature wants clear bright line cut offs

Check section 735 ILCS 5/13 et all for good law on Lexis after PA 89 -7…book is wrong

SOL running will be tolled if there is a statutory stay provision1-federal bankruptcy act auto stay stops running of SOL for Lien Foreclosure and bankrupty2-under S Ct Rule 306(g)- petition for leave to appeal to appellate court when granted the proceedings in the trial court are stayed

Session VIIThursday, June 25, 2009

5:52 PM


Defense

Equity version of limitations

SOLs apply to actions at law

Even equity courts cannot allow lawsuits to happen without an end□

Equity courts did not follow parliaments rules

There is no fixed date for the barring of an equity claim

Factors depend on diligence

Equity courts will look at a SOL

Meyers v. Kissner

Doctrine of laches3.

Main type is in insurance Ks…typically 2 years after the accident

Can't reduce to less than 1 year and may not extend beyond 4 years

Action must be commenced within 4 years of when the COA accrues…SOL□

A COA occurs when a breach occurs whether or not the injured knows of the injury…SOR□

UCC 2-725…sets limits in the original agreement only..does not allow for an amended K to do so

Equitable estoppel can be argued when the seller induces buyer to not file until agreed upon time limit expires

Unless dismissal for neglect or for failure to prosecute

Unless dismissed for voluntary discontinuance

An action can be commenced outside the 4 years so long as it is within 6months of the dismissal□

Suppose you file an action within 4 years and it is dismissed w/o prejudice (not disposition of the merits)

Fraudulent concealment will still extend the time to bring suit□

A minor or legally disabled person will get □

This section does not alter the law on tolling the SOL

Covers exactly the same point as the UCC□

13-217 is similar, but 12 months grace period instead of 6 months and does not bar a case dismissed for voluntary discontinuance

Limitations via K4.

The idea that animated article 2 is that the people who exchange the sale of goods do not write things down and when they do the writings conflictUCC is default set of rules

Burden is on buyer to inspect goods upon delivery

The widgets are not junk and they will do what they are supposed to do when the goods are delivered…warranty of merchantability

Specific mention of warranty past delivery must be explicitly stated

Major premise is that the warranties the UCC sets forth do

Theory behind code is that if the seller breaches a K for the sale of goods, it occurs at or before the delivery of the goods

When conflicting rules, the more specific supersedes the more general

Filing period begins when claim is accepted by clerk not mailed

Deceased P or D•

…no SOLs for counterclaims (when a D sues a D, and when a D sues a P)13-207 the counterclaim ruleWhen you file a lawsuit against somebody, you waive the SOL against the counterclaims they file against you

Canada Life v. Salwan

2 cases involving public policy Both concern uninsured motorist insurancePremise of both cases…although ins companies are entitled to contractual limitations in policies, they cannot use those provi sions to get themselves out of honoring coverage the state says is mandatory

American Service Insurance v. PasalkaKerouac v. Kerouac

IN the context of insurance there may be a public policy argument against enforcing the contractual limitation

A sues BSummons served on B July 1, B wants to sue C, D, & EB has 2 years from date b was served with summons in order to file a claim for contribution or indemnity provided that if A c ould have sued C, D, & E when he filed against B then B can sue despite SOLPoint is to avoid a situation where A & B go after C, D & E when A could not have gone after C, D & E himself

Paszkowski v. Metro Water Reclamation

Barragan v. Casco Design

Does the 2 year after service of process limit of 13-204 only apply in a tort case?

-K liability is not JOINT, it is SEVERAL-tort is joint and usually several

Contribution is pro rataIndemnity is all or nothing

--language in (a) says contributions or indemnity, contribution is tort, indemnity is K-NO,-Maybe,

No implied indemnity in tort actionIndemnity is K

13-204(e)13-204 does not apply to med mal


-tort is joint and usually several

-construction cases are the worst K cases-Concrete falling off of gold coast high-rise-general contractors are responsible for everything that goes wrong-subcontractors indemnify the general-concrete seller may have mixed wrong-rebar may have been uneven-concrete may have been applied wrong-engineering firm may have not overseen well-owner hired expert engineers to determine what went wrong-expert only said that concrete should not be falling-owner now has general -general questions expert-expert does not know and cannot tell without taking top floor off of building-if you cannot prove a K was breached, there is no recovery available-only available evidence said it was just as likely

Contribution Act-only applies in tort; no such thing in K cases-

13-207…counterclaimBarragan -defensive pleading-offensive pleading-only defensive gets benefit of 13-207 where SOL does not bar counterclaim

13-204Contribution claims have to be part of the main action so jury canSort out the whole messDs do not have to file contribution claims against each other if they do not want to

Set-off

MermelsteinP voluntarily dismisses casePreferred had filed a counterclaim againt PPreferred voluntarily dismissed it

ILSCT rule 304(a) says that any judgment that does not adjudicate all of the claims involved is not final nor appealable unti l all claims are adjudicated

In a conflict between 13-217(one year limitation) and 13-207 (nullifies SOL)which wins?-application of 13-207 (counterclaim rule) is based on the theory that the P waives the SOL with regard to potential counterclaims-a P is not free to withdraw this waiver at will-once application of the SOL is waived, it remains waived even if the claim which triggered the waiver is dismissed-But in this case, the D voluntarily dismissed the counterclaim-court admits that these 2 rules clash-right result-Despite the way that 13-217 reads, the Ill S Ct has held that only one refiling can occur whether SOL has run or not and no matter what the reason is-13-217 applies explicitly to a case where a claim is dismissed from a US district court because of lack of jurisdiction-

13-210- the borrowing statute-the COA acrued outside of Illinois-the laws of the jx where the COA arose applies when the SOL is shorter, ours applies when it is longer-applies only if the COA arose in another state or country, the SOL would bar the action AND no party to the suit was an illin ois resident at the time the action acrued

13-212…med malStatute of both limitations and repose(a) no med mal case shall be brought more than 2 years of when the P should have known of the injury (discovery rule) and in no event shall be brought after 4 years of the actual injury occurring (statute of repose)(b) deals with minors, if person entitled to bring action was at time action acrued was under 18, then the SOR is 8 years aft er the act or omission occursAnd in no event after the person's 22nd birthday

-Fergusen v. McKenzie13-212 and 8-101 compete8-101…only one year SOL for municipal entities-adults subject to one year or 8-101 and not 2 year limitation of 13-212

-usually the more specific rule applies over the more general one-8-101 specific to municipal entities-13-212 specific to med mals-8-101 wins because Ill S Ct determined to protect government P

-Fergusen says what if P was a minor when COA acrues?-13-212(b) says until 22nd b-day-8-101 says one yearIll S Ct says under 8-101, the year runs from the date (discovery rule) and SOR after 4 years, does this tight rule apply to minors because the eff ect will be to destroy any COA for any kid under 14 when bad thing happens?-to reconcile this, Furgusen applies minor provision of 13-212(b) to preserve claim until minor becomes 18, then we apply 8-101 so she has one year to bring the claim-court engages in balancing act

Elke v. Zimmer


-13-212 v. 13-213Med mal v. product liabilityHip replacement failed just short of 10 years-sued under product liability theory seeking to not be bound by med mal SOL-sued hospital and manufacturer of prosthesis-clear that manufacturer claim is product liability-unclear whether same theory can be applied to hospital-seems wrong for 2 different SOLs to apply to 2 parties liable for same thing-if P theory is really product liability theory, hospital could have certified manufacturer & been dismissed, right?-court holds that 13-212 applies the hospital and SOL has run

Davis v. Toshiba Machine-Davis sues Toshiba after being injured by a printing press designed by Toshiba-just under 10 years after delivery of product to initial user-files suit 11 months after accident-product liability SOL is 10 years from delivery to initial user-appellate court reversed dismissal holding that v13-213(d) creates an exception to the repose period by saying "notwithstanding" subsection b giving the P 2 years to file from her discovery, and an 8 yr SOR from -13-213(d) does not work unless injury happens within the 13-213(b) 10 year time period

13-214(a) construction injury section covering anything that has anything to do with construction-4 year SOL from discovery of act or omission or reasonably should have known-construction workers bodily injury claim is governed by 13-214, but a wrongful death claim by a surviving spouse is probably covered by Wrongful Death Act 2 year SOL

13-217If a trial court dsimissed because of jx, and P appeals, he must refile in state court within 1 year and ask state court to s tay case while appeal proceeds-


Pleadings…2-605

No tricks in answers

Verifying pleadings have an affidavit attached stating that someone assured the allegations are true

Typically contains verified hearsay

Usually a lawyer will verify, which subjects him to deposition, which is weird□

To get at false pleadings verified or not

Use S CT rule 137 as a remedy□

Some ancient lore says that an injunction request requires a verified complaint

The only time you want verification is when you are seeking an injunction□

If a verified pleading refers to a corporation, the corporation has to verify an answer

No need to verify pleadings although P do sometimes

Bills of particulars …2-607

necessary in Breach of K…request from P each act that forms the breach

Should restrict P from adding to the complaint when it gets to trial

The BOP becomes part of the complaint

2-607(c) …when a claim is of indebtedness…and the D requests a BOP then the invoices are considered admitted unless the D submits an affadavit specifically denying them

Counterclaims…2-608

Should stand in its own by itself

Pleadings to be specific …2-610

Every answer and subsequent pleading shall contain an explicit admission or denial of each allegation

(c) denials cannot be evasive

Reasonable inquiry must be conducted

Attach affidavit of truth

If you have no knowledge or information to form a belief

Separate counts and defenses…2-613

(a) parties may plead as many COAs, counterclaims, defenses

(b)

(d) any defense or anything else that would take the other party by surprise must be plainly set forth in the answer or reply

Flynns rule of pleadingNo more than 5 count complaintShorter is betterLonger invited jury confusion

Intervention…2-408•(e) petitioner shall present a petition setting forth the grounds for intervention accompanied by the initial pleading or motion he intends to file•(f) intervener has the rights of a regular party except that the court may decide that the petitioner be bound by judgments already entered•

Petitioners sought to intervene when village settled with developers○

Petitioners claimed that village stopped adequately representing their interests○

This case shows that you can show up after a final judgment, but the trial court will not be happy○

Standard bank v. village of oak lawn•

The very fact that the government represents all of the people means that they cannot represent the particular interests of any specific person•

Losing bidder filed for TRO○

Winning bidder seeks to intervene○

If board decides that they made a mistake in awarding bid to Klein, then Klein's interests would not be represented

Appellate court found that Board was not adequate representative of Kleins rights because the duty of the municipality is to do the right thing.○

Siegman v. Putnam Board of Ed•

The distributor statute…2-621•

Logan named manufacturer in claim but did not serve process○

Logan v. west Coast supply•

(If a D should be a P, bring them in & court can realign them)○

3rd party must have derivative liability

Cannot be used to maintain a separate claim against the party even if the claim arises out of the same set of circumstances

Bellik v. bank of America○

2-406…(necessary parties)Third parties•

Right of contribution…in tort○

…any D whose fault is >25% of the total fault attributable to the P shall be severally liable for the non -medical damages (except for P's employer since 2003)

□

<25%, then joint and severally liable□

When one joint tortfeasor <25% goes bankrupt, a remaining joint tortfeasor <25% picks up the other's tab□

Personal injury actions…past & future medical expenses

2-1117…Joint liability…undermines pro rata share under 740 ILCS 100-3 when one in uncollectable○

(b) pro rata share and right of contribution

The settled party is immune from contribution from remaining joint tortfeasors□

Settled party cannot collect contribution from remaining joint tortfeasors even if he paid more than his share□

It is up to the court to determine good faith□

(c) a good faith settlement with one joint tortfeasor, does not stop P from pursuing other joint tortfeasors, but the court will deduct from the judgment the amt of the settlement

740 ILCS 100-1 et al…Joint tortfeasor Contribution Act..encourages settlement…seeks to avoid collusion ○

6 year old street skateboarder…hit by Naperville city truck

Parents sue city & driver

City sues grandma babysitter for allowing boy to skateboard in street

Appellate court said that grandma does owe Nicky a duty to watch him

Ryan v. Yarbrough○

Contribution or indemnity•

Session 8Tuesday, June 30, 2009

6:48 PM


Driver also owes him a duty not to run him over□

Appellate court said that grandma does owe Nicky a duty to watch him

The Kotecki Cap…employer is not subject to both workers comp liability and tort liability

Supreme Court of Illinois. Mark A. KOTECKI

v.

CYCLOPS WELDING CORPORATION, Appellee (Carus Chemical Company, Appellant).

No. 68568.

April 18, 1991.

Rehearing Denied Dec. 2, 1991.

Dissenting Opinion on Denial of

Rehearing of Justice Freeman

Feb. 5, 1992.

Products liability claim was filed alleging negligence in design and construction of agitator used on premises of

plaintiff's employer. Designer of agitator filed third-party complaint against employer seeking contribution. The

Circuit Court, La Salle County, denied employer's motion to strike ad damnum clause of third-party complaint for

contribution but certified findings for interlocutory appeal. The Appellate Court denied petition for leave to appeal.

Employee petitioned for leave to Supreme Court. The Supreme Court, Thomas J. Moran, J., granted leave and held

that employer sued as third-party defendant in products liability case was liable in contribution only for amount of

employer's statutory liability under Workers' Compensation Act.

Reversed and remanded with directions.

Pasted from <http://web2.westlaw.com/result/documenttext.aspx?sv=Split&service=Find&rlti=1&cxt=DC&ifm=NotSet&n=1&mt=LawSchoolPractitioner&fn=_top&vr=2.0&utid=3&rlt=CLID_FQRLT423471722127&rp=%2fFind%2fdefault.wl&cite=146+ill.2d+155&cnt=DOC&scxt=WL&rs=WLW9.06&ss=CNT>

Theoretically employer was a party the P "could have sued" under the Contribution Act

Employee sues third party who files a contribution claim against employer2-1117 amended in 2003 throws employer out of calculation where Kotecki assured he was included…leaves out anybody who is not actually a party to the lawsuit

Employee cannot sue employer for injury and gets $ from workers comp□

Employee sues manufacturer of machine that caused injury□

Can manufacturer get contribution from employer who caused conditions for injury?□

Workers comp act

P s got a judgment for 879K, but Ps employer was found to be 99% responsible for injuries and entitled to benefits of Kotecki cap

Since less than 25% liable, then only severally liable, not jointly□

Other party, was 1% liable

Rules that result is not unfair□

P received benefits of Workers Comp □

Il S Ct decided whether this is fair

Unzicker v. Kraft

Ziarko coins term "cross counterclaim"

Can you get contribution for a willful and wanton injury?

Why would a court allow you to put the cost of your intentional damage on someone else?□

Generally accepted that you cannot get contribution for an intentional tort

Intentional OR□

Exhibiting a reckless disregard or failure to exercise ordinary c are (negligent)□

Willful and wanton is not a separate and independant category not clearly defined as solely intentional or negligent

IF intentional…no contribution…Ziarko test

No contribution allowed for punitive damages

Most insurance policies exclude punitive damages

Is common liability the amt of the total settlement or the amount of the jury award?□

Encourages parties to settle◊

Il S Ct concluded that common liability means the total amt of the settlement, so long as the settlement is in good faith□

Bcause Soo Line settled with Z after verdict but before appeal and sought contribution against minor D for what Soo Line said they paid Z over it's apportioned share of common liability

A tortfeasor who settles with a claimant …(didn't catch the rest)

Cross claim is called counterclaim in Illinois

Ziarko v. Soo Line○

Should settling Ds be included or excluded from jury verdict forms in apportioning fault

Il s Ct decisions was based on wording of 2-1117 from 1986 and said that settled Ds should not be on verdict forms

Amended in 2003

Yes, explicitly excludes the employer

Does not address the problem of settling Ds and verdict forms

Does the amendment change the meaning of 2-1117

2-1117 discussion from syllabus○


http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW9.06&ifm=NotSet&fn=_top&sv=Split&tc=-1&docname=0273545701&ordoc=1991077437&findtype=h&mt=LawSchoolPractitioner&db=PROFILER-WLD&utid=3&vr=2.0&rp=%2ffind%2fdefault.wl&pbc=5B8394D7

http://web2.westlaw.com/result/documenttext.aspx?sv=Split&service=Find&rlti=1&cxt=DC&ifm=NotSet&n=1&mt=LawSchoolPractitioner&fn=_top&vr=2.0&utid=3&rlt=CLID_FQRLT423471722127&rp=%2fFind%2fdefault.wl&cite=146+ill.2d+155&cnt=DOC&scxt=WL&rs=WLW9.06&ss=CNT



Dealing with things that happen after the lawsuit

If P dies and a probate estate is opened, then administrator of estate is substituted

(b)(1) court can appoint a special rep for the deceased if no estate

If a party to an action dies and action survives, proper party can be substituted by order of court

If D dies then

Admin of estate is substituted of estate is opened

Usually when P wants to get a judgment to bring to an insurance company□

Liability is limited to amount of insurance□

Court can appoint a special rep if no deceased

2-1008(b)…really about insurance

2-1008

Things that happen before the lawsuit

Same as 2-1008, but before suit filed

13-209 (c) reversed result in (something)…saving provision

13-209

2-616Cannot amend when it will prejudice the other side•If the trial date had not been set, you almost have a right to amend because the other side has time to respond•Tricky parts are limitations and relations back•2-616(b) a COA in an amended pleading relates back to the time the original complaint is filed so long as the original was timely AND it shall appear that the COA asserted grew out of the same transaction or occurrence of the original pleading

•

Porter v. Decatur Memorial Hospital 227 Ill.2d 343Leading case on relations backP is in Jan 2001 auto accident, operated next day Jan 13 2001March 2002 files complaint that Dr Dole diagnosed spinal cord injury and ordered MRI scan and removal of C collar and boardOriginal complaint asserts that Dole was negligent and hospital as respondent in discoveryComplaint focuses on Dole & ERJan 6 2003, 6 days before SOL runs, P files first amended complaint naming hospital as DBefore P files amended complaint, Dr Long who did surgery testifies about CT scan read & interpreted by radiologist & Dr noticed fracture to C5 but it did not explain neurological deficits. Disc injury diagnosis requires a MRIAnother Dr, Cross, read scan & saw no fractureJune 21 2004 P files motion for leave to file 2nd amended complaint alleging hat Dole failed to recognize fracture on CT scanExpert says there are 2 fractures apparent on CT scan and collar should have not been removedHospital objects to motion for leave to amend because claim against hospital and its agent Dr Cross is a new and independent claimCross was not mentioned is earlier complaint or amended complaintP says this is all one occurrence and that prior complaints put the hospital and its agents on noticeCan't just file a general complaint saying something was done wrongIllinois is a fact pleading state and affidavit must have been attached from medical professional certifying what was done wrongHospital says that original complaint was aimed at Dole, not Cross so hospital was not put on noticeP needs relation back to keep case aliveBased on fairness, not allowed to sandbag D with new claim once SOL has runIl S Ct says that statute says "grew out of same transaction or occurrence"Purpose of statute is to preserve COAs from loss from technical defaults unrelated to the merits..2-616(b) should be liberally construed to allow hearings on the merits. If D has had been pointed in the direction of the facts, then he has had notice. He should be on notice of inquiryEntire record including records and exhibits should be looked at to see if D had notice.Under both Ill & fed law you can add a new legal theory and have it relate back without trouble, No relations back when 2 sets of facts describe 2 different injuries or time between facts1-original facts separated by significant lapse of time?2 sets of facts different in character?2-2 sets of facts lead to 2 different injuries?3-Porters case fits the requirements of relations back

2-616(d) is about adding another D( actually replacing a D in practice)…resembles federal approach…very limited provision…hard to satisfy the mistake test-adding D not barred by lapse of time if ALL conditions are met-SOL not run out when original complaint filed-D had notice of the suit so not to be prejudiced in maintaining a defense on the merits-knew or should have known that but for the mistake of the identity of the proper party the complaint would have been filed against him

Misnomer v. Mistaken identityMisnomer can always be corrected, without dismissal... 2-401…suing the right party under the wrong name, but process served on right partyMistaken identity…2-616(d) situation….harder to fix…the right person has not been served with summons-Wheaton v. Steward, Polites v. US Bank…a species of estoppel (equitable remedy not based on statute) is allowed when D lies about identity

Amending pleadings

Johnson v. Harris…Johnson hit by Harris' car…Harris' insurance exclusion did not apply to vehicles in dead storage….amended c omplaint says vehicle was in dead storage…

…amended complaint contradicts a factual allegation in a previous complaint

Session 96:48 PM


Prior rule held that amended pleading, unless it refers to prior pleading stands and the prior pleading ceases to be a part o f the record

Roti v. Roti-Michael's first complaint claimed oral agreement for interest in land which was barred by SOF-amended complaint said it was not land, but for part of the profits-Ok to correct errors, but not to contradict something that was in the personal knowledge of the pleader

Hypo…2 counts of 6 counts pleading dismissed…in fed system no need to replead remaining countsIn Illinois remaining counts must be repleaded or else those counts are waived

Leave of court to amend a complaint should be liberally granted but you must ask for it. An amended pleading without leave of court is a nullity. If na D is added without informing the judge and getting his approval, even if you get a judgment against that party, the judgment is NU LL


Old school lawyers feel threatened by mediation

They didn't have ADR in law school

Can be very quick…days v. months

Not true anymore□

Notion that arbitration is less expensive than litigation

Theory

Should be considered when there is a case involving technical expertise□

Can cut costs by selecting your arbitrators carefully

Cannot overturn arbitration result without fraud□

Arbitrators not bound by law

More freedom than court

Binding◊

Contractual…can be tailored to each situation

S.Ct. Rule 90, 91, 93►

7th amendment…right to jury trial

Arbitration is not jury…you waive your right to a jury trial

Intended to reduce the backlog in the court system–

Jury awards match arb results 75% in Cook

Ins companies like to reject arb awards because they like to delay payment to keep interest on funds in hand

The court system has a major stake in making sure arb is credible–

You can have a jury trial if you insist on it, but you have to try arbitration first

Juries in med mal cases believe the ins rates are high because of these kinds of cases–

Arb better in med mal cases–

P's attorneys sometimes do not show up–

Ps believe the arb system is out to get them

Can the leg or the S.Ct require parties to submit to binding arbitration if they have not agreed among themselves to do so?►

Mandatory arbitration◊

Not contractual, but imposed by rules of civil procedure & Ill S. Ct

Case law interprets(either in person or by counsel) to mean either is OK►

If this happens…panel should note this and court can impose sanctions, bar ability to reject award, and award attorneys fees–

In good faith and in a meaningful manner

Has to be real participation►

Failure to be present, either in person or by counsel) is a waiver of the right to reject the award & consent to enter award by court◊

This allows for attorney mis-diarying the date►

Court may vacate judgment at its discretion if party not present◊

S.Ct. Rule 91

Even error of law not cause for overturning□

Arbitrators can come up with more nuanced results that a court can do

Mandatory arb in auto accident□

D failed to present any evidence to rebut P's case

The purpose of the amendments is to show that arbitration is not just another hurdle to get over before getting to trial

Found D failed to participate in good faith & meaningful manner□

Counsel did appear, not client□

No S.Ct. Rule 237 notice went to client□

Not required in normal civil lawsuit

Court sees showing up at arb hearing more serious

Rule 91 does not apply to trials

Courts think about showing up for arb with slightly different rules□

Martinez v. Gaimari

Trial court barred him from rejection award □

Pre arb discovery violation◊

D failed to appear for deposition & failed to take any action to vacate ruling that barred him from rejecting award◊

Trial court took position that if you conduct yourself pre arb that barred self from presenting all evidence in arb, participation in arb in not in good faith

◊

Good faith extends to the preparation that has to occur prior to arb◊

How did trial court review & reject finding?

Arb panel found that all parties part in good faith & no transcript of arb was available□

Lopez v. Miller

Rule 93…Rejection of Award & request for trial

Practice

P Walker requested D present at arb hearing…D did not show up but his counsel did

Neither party likes arb result

P should have filed without depending on D□

Parties agree that D would file a timely rejection of award

Even though both parties agreed□

Too late for P to reject

Both parties were barred from rejecting because 30 days passed since filing of award□

Court found that D was barred from rejecting award because D did not participate in award

NOTE: good discussion on good faith & when a court cannot bar a party from rejecting an award

Voluntary dismissal is an escape hatch for a P

Walker v. Lewis

Arbitration and MediationThursday, July 09, 2009

6:00 PM


Resulting in waiver of rejecting award

When a P fails to show up at arb hearing□

Ds do not make S.Ct 103b motions unless SOL has run►

If motion granted, P's case is dead►

2-1009 voluntary non suit►

Held that SCT Rule trumps statute

As long as SCt 103b motion is filed first

S.Ct said allowing 2-1009 dismissal would render S.Ct rule 103b mute►

In O'Connell S CT held that of a Civil Proc rule & a S Ct rule clash head on…the S.Ct rule wins◊

Ct says NO can't do that…same reasoning as O'Connell►

P fails to show up at hearing & tries to evade bar of rejection by voluntarily dismissing suit◊

Arnett v. Young

Can P voluntarily dismiss?□

Suppose P files to dismiss under 2-1009 before 103b motion…should be granted as long as it is first filed□

Cole v. Rubaker...rule 103b should not be used for a court to clear its dockets◊

One exception has to do with 103b

Also true with post trial motions

In general it is the time a motion is filed that is counted, not the date it is ruled on to determine whether it is timely filed□

Voluntary dismissal is an escape hatch for a P

Trial judges in Ill can order parties to mediation…cannot order that they agree, but that they try□

No point to it if one party is determined not to agree

Some discovery should be conducted◊

Parties should have enough info so they can talk to each other◊

Should not happen early in a case

Chancery division has similar rule□

More than 5-6 hours, sometimes 5-6 sessions of 5-6 hours◊

Mediation is time intensive

Not enough time◊

Ends up being a focus on what judge is thinking◊

Pretrial is 3 hours max

Each party would have an agenda with some parts open◊

Mediations are most useful in cases requiring a nuanced resolution

Court cannot do a mediation

Diff between mediation & pretrial□

Especially important when parties have to deal with each other in the future

Spouses have to communicate with each other◊

Began in divorce cases having to do with child custody issues

What mediation does when it works is empower the parties to take charge of their own dispute and ideally, resolve it□

MEDIATION


Barber-Coleman case

2-615

2-619

2-615…Motions to DismissAsks…is the pleading sufficient?

-aimed at legal sufficiency of the complaint or pleadingsDoes it have all the necessary legal elements in it?1.Does it have enough facts to support all of the legal elements?2.

Legal elements is tree trunk, facts are leaves

-Motion must point out the specific defects complained of in the pleading-so the pleader can correct the defects-should only be granted when there is no way a P can plead a case

Pleader wants something the law does not have in itPleader has been given opportunities to supply key elements of case and cannot

-Dismiss..if you are sure pleader cannot state a COA

-Strike...if pleader has failed to state a COA

Usually, when the complaint and the answer together show that the P has failed to state a COA

Sometimes the complaint actually kills the claim it is trying to make

2-1005…Summary JudgmentDoesn't care about the pleadings, it's about the trial.Is a trial necessary?Not about credibility, court does not make jury's decision for itDetermines if there is an issue of fact to be tried…not to try any issue of factCannot rely on pleadings because we are past the pleading stage

Summary judgment motion is OK when a directed verdict motion could be granted-says that there is nothing for the jury to decide

-send juries home with a "nevermind"On a DV motion, with very few exceptions, the court does not make credibility determinations because that is for the jury.-on a DV motion, court has heard & seen the witnesses on SJ motion, court is looking at affidavits

-trial judges hate directed verdicts

-put up or shut up…if you have something to say, now is the time to say it

-most SJ motions have as components, depositions which can be considered a long affidavit, movant should submit affidavit because depositions are rarely one-sided

-party admission need not be adverse to the party A party cannot impeach his own deposition by submitting a contrary affidavit in order to defeat SJ. (Meyer v. Pocius rule)

-

Is there a point to having a trial?-are there facts in dispute for a jury to decide?

SCT Rule 191(a)…Motions for Summary Judgment-attach affidavit & copies of papers upon which the affiant relies-requires personal knowledge of the affiants, no hearsay-no conclusions (legal or fact), only facts admissible in evidence

-certification of out of state records-sworn or certified…

-affirmatively show by content of affidavit that this is stuff the affiant really knows-if all the facts are not within the personal knowledge of one person, two or more affidavits should be used.(b) says that discovery needs not to be concluded

Picky because evidence submitted for SJ motion should be the same evidence as would be presented at trialEssentially provide the testimony that would have been presented at trial

-as a general rule a P can rely on statements in his pleading that the Ds motion for SJ does not take issue with

-sandbagging-a P cannot get SJ on a theory not pleaded in his complaint

-the case of gold v. Kismet café

2-1005 says on its face …any time after the A P can move for SJ…do not have to wait until discovery is completed…can focus on a narrowly tailored key issue

In Ill. party can review & sign deposition to correct reporters errors, not own testimony-when client makes a mistake in deposition, send letter to opposing party ASAP to put party on notice & will not be surprised-deprives opponent of ability to say client changing testimony

Another important premise of SJ…SJ should not be granted unless it is quite clear what the truth is…if there is anything that should go to trial, it should go to trial

Kismet says that a P cannot get SJ on an issue not stated in his complaint

Holtz v. Crown

Motions to Dismiss & Summary JudgmentThursday, July 09, 20097:20 PM


Holtz v. Crown-P accepted SJ on adverse possession but said, I have a different claim

Hartzog v. Martinez-P brought personal injury suit on slip & fall on apt bldg stairs-court granted Ds Motion for SJ based on water accumulation was natural and that one has no duty to correct nature's hazards-P wanted to amend complaint to add negligence on light being out-Nothing newly discovered here, this was in depositions-P should have mentioned this at SJ because it was part & parcel of the same slip & fall

-A complaint can be amended after entry of SJ, but under these conditions:

-newly discovered evidence-it would be the standard to be employed be akin to the standard for Motion to Reconsider

-would other party be prejudiced?-Is raising of issue timely?

General standards to amendments under 2-616(a)

-

Celotex MotionSAYs that the D satisfies its initial burden of production when it points out the absence of evidence supporting the Ps position

-

-cannot prove that their products were not the cause of the Ps injuries-The person who has the burden of proof does not have the evidence to support his COA

HutchcraftSalinasConsolino-SJ is proper when there is no genuine dispute about a material fact -if reasonable people could draw different inferences from the raw facts, SJ is not proper because it is the jury's province to do so

-preponderence of the evidence…probably did happen that way-what is an inference as opposed to speculation?

Salinas-P as administratrix of Eugene sues Saradis-P sued Saradis alleging that he had a duty to put road flares out & failure to do so was proximate cause of Busolo's injuries-Court said that this does not prove proximate causation-you cannot go to trial on a guess-where reasonable men could draw inferences from the evidence questions cannot be determined as a matter or law-a speculation is an inference we are not prepared to accept-inference has some kind of basis on fact or law-speculation is more of a guess

ReREAD Barber coleman case and 2-619Surgical strike- if there is a sepa•

Cannot get at the elements of the Ps COA○

If the facts on the face of the complaint show that if the interference may be privileged, you have to prove it was not is your complaint

In a few situations courts have required Ps to plead in the complaint, facts NEGATING certain affirmative defenses

○

2-619 cannot be used to challenge a well -pleaded allegation in the Ps complaint, if you want to do that on the ground that it is false, you have to use SJ

•

2-619 can be used to contradict a conclusion in a Ps complaint•8 specific grounds in 2-619(a) things that are collateral to the merits of the Ps case, they have to do with specific easily bounded surgical strikes that if valid, end the case

•

2-619(a)(9) catch all provision…•


July 14, 2009 - July 9 syllabus discussion

I was a few minutes late and he began talking about two cases not listed in syllabus:Hillary did not get the cites either.

Comply or Die - the Why be lenient? Because dismissal creates new cause of action: legal malpractice.In Legal Mal: Need to show but for legal malpractice, the case would have been decided differently (trial w/I a trial)Why not? people won’t follow rules. SO, after 1990 no continuances were allowed for trial, brutal/unfair-yes, but worked time to completion of trial went from 8yrs to 2 ½

Jenkens, v

Burden of Production v. Burden of ProofCocorar v. County, 317 Ill App 3d 917Facts: County moved to dismiss and for SJ. County contends that b/c P did not present evidence cannot prove prima facie case (like Cellotex). P argue sufficient to survive SJ and County did not meet burden of production as movant for SJ, SO no burden on P.Holding: App Ct Agreed. Burden of proof and burden of production lies with movant b/c movant has to prove entitled to judgment. Proof stays w/ movant but production shifts b/t parties as one party produces evidence shifts to the other party.

Here: Motion did not state P could not produce evidence of drainage issue, just that it had not been presented to county board.

1)Affirmative Method: be reverse P, showing some element has to be proven in P’s favor; beyond trial. P can’t prove and Def can prove evidence does not exist. Def has same burden of production as P would: prima facia case showing Def is right. If can’t P need not respond b/c MSJ is insufficient.2)Cellotex Method: Def shows the P cannot prove an essential element. Mere recital in affidavit is insufficient, may be simply pointing out absence of element. Ill unclear if there must be some showing other than pointing out. Need to point out lack of evidence which can stick (ie: can never get evidence)

Def has two options under SJ:

See Williams, difference b/t stating P has not stated case and P cannot state case

Director of Insurance v. AA (June 2008)Orders stating “dismissed with prejudice but the court retains jurisdiction as to issue of enforcement of settlement.” (Not logical, is it dismissed or does the court have jurisdiction)

Facts: Settling party requested judgment when payments ceased. D argued court lacked jurisdiction

Better are orders 1) Best: consent judgment or 2) dismissed incorporating settlement.

Holding: On issue of jurisdiction: Court retains indefinite jurisdiction to enforce a judgment (inherent authority), but loses jurisdiction to amend a judgment after 30 days.

Reedy v. United G_____ e (previously discussed)Settling defendant issue. Remaining defendant objecting to good faith settlement is not efficient. So, settling defendant’s cannot leave

Where two defs settled out can still present evidence at trail that settling defs were sole prox cause of injury. SO then verdict form has only non-settling def? If statute states % of fault must add up to 100%? Courts may have to modify Rule?

Example problems for 2-619Senario No. 1 (handout)Def should point out what the P didn’t perform. 2-619: cooperation clause breach

Answers don’t know if James filed jury demand, but would conclude does nto have right to jury. So, court can hear motion.

2-619: correct b/c cannot be SJ b/c there is clash of facts which prohibits SJ and not 615 b/c using affidavits SO, 2-619 (c) allows for decision where SJ would be prohibited limited if jury issue. If movant has filed jury demand, it does not prohibit b/c movant can waive jury by 619. Here, non-movant probably wants an order directing insurer to defend him which like specific performance - not jury

Court cannot decide motion w/o hearing, if either party requests evidentiary hearing the court must hold same.When is issue triable by jury decision, see Zurich v. We______, cannot simply call claim declaratory judgment. Like Beacon Theatres,

Session 10? July 14Saturday, July 18, 20097:28 PM


Senario No. 2 (handout)Joining of three claims is allowed, encouraged.1. not under 619 b/c Mary pleaded sam refused, so sam cannot attack a well-pleaded allegation in complaint (see Barber Coleman), better 1004

2. Res Judicata - 619(a)(4) and

Sam’s affidavit does not contradict; P must in complaint plead facts in complaint where on face of complaint. -must plead on complaint SOL if on its face SOL could be issue-if complaint on it’s face looks like barred by SOL must argue not barred by SOL in complaint.2-619 can’t attack, means only those which are essential element or cause of action, so SOL 619(a)(5) is collateral attack on complaint.

3. Personal Injury - No discovery rule application - cannot wait until decide if injury is worth lawsuit Hollander v. Brown, this is obvious traumatic event, not insidious onset case - 619 SOL

4. Mental Illness - letter is not evidence- not affidavit/sworn to and contains pure conclusion. It is legitimate 619(a)(2), but is not properly raised. BUT court can order mental examination under S. Ct. Rule 215. See (d)(1) sua sponti court may order an impartial mental examination. If not competent to bring action, she is not competent to hire an attorney, follow attorney advice, etc.5. Another pending party - 619(a)(3)

Voluntary DismissalMotions In Limine2-1009 right of voluntarily dismiss exists only before trial or hearing begins.

Kahle v. John Deere co. (1984)Facts: Argue trial began b/c was hearing on Motion in LimineHolding: Trial or hearing does not begin w/ pre-trial conference or summoning of jury to court room. Where jury was examined and sworn, trial had begun, SO until jurors examined or sworn trial has not begun and can voluntarily dismiss under 2-1009.

Also, grant of voluntary dismissal is appealable by defendant for dismissal with prejudice.

DWPIs not appealable

Forest v. Dugan Since P has absolute right to refile w/I year and not SOL will barr same, DWP is not appealable; BUT if P already voluntarily dismissed once, he is prejudiced. BUT there is ability to vacate w/I 30 days, so P has another recourse.

If P does not refile in 1 year; DWP become final judgment; court has not determined if DWP then becomes appealable

S Rule 103(b) case can be dismissed if not diligent in serving summons. If dismissed under 103(b) the 13-217 one year refiling provision does not apply. After filing of 103(b) P cannot take voluntary dismissal b/c frustrates 103(b), SO court must decide 103(b). O’Connel v. St Frances Hosp. If direct conflict b/t statue and rule, rule wins. No discretion; Must rule on 103 first.

Gibolina v. Handy, 127 Ill 2d 122, extends O’connel to any other dispositive motions; court may rule on dispositive motion before allowing voluntary dismissal; court has discretion. [2-109(b)]

Rule 273 Involuntary dismissal acts as adjudication on the merits. Rule is misleading b/c meaning of on the merits has different interpretations: 1) ruling which kicks in res judicata, 2) on the merits of the plaintiffs claim as opposed to someother grounds see Loaw, and 3)Loaw v. A&B FreightFacts: P sue Co and not employee, then amends to add employee, employee moves to dismiss on SOL grounds. Tr court grants M to D. Co files Mot to Dismiss b/c only liable on respondeant superior and b/c employee dismissed there is no RS grounds. Holding: No. Dismissal of one Def on ground personal to that def should not effect liability of another defendant. (ie: mental capacity, SOL applicable to one def) This would be different if employee dismissed after trial on the merits.

Downing v. CTAHolding: SJ is not necessarily judgment on the merits. If SJ granted on grounds of SOL it is not on the merits so as to apply res judicata to another party in the action.

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July 14, 2009

Discovery; Privilege; Sanctions

Sedona: Discovery has made cost and time for lawsuits overwhelming. Discovery is not adversarial; the idea is that professionals would cooperate in discovery and the trial would then be adversarial on the facts. There should be a cost/benefit analysis to the marginal utility of asking questions; why not-fear of risk and think can find smoking gun.Pertinent v. Relevant Questions

I. The Limits of Discovery; Relevance and Privilege

Rule 201: very broad standard(b)(1): “any matter relevant to subject matter”; not claim. - very broad. If use six degrees of relevance than every matter is relevant to subject matter. Point is information should not be hidden. Question not if it is relevant but why does it matter?

(3) - consultant is person not to used as expert at trial. If required to disclose, you would not hire until you knew their opinion, which would hinder quest for truth

Exceptions: (2) - Attorney work product.

201(cc)Financial: not priv; relevant (sensible?)Discovery harassment: c1; costs include privacy cost/embarassment, settlement costs (angering other party)Protective order: (c)(1) used broadly; can be sought for witness/non-party; can ask for protective order regarding discovery requests

Supervision: (c)(2) Usually done reluctantly. (ie: don’t know parties budget; these are adults) BUT 218, Case Mangmt at (a)(5) court can limit number of deps, etc. (ie: six appraisers, should only require one per side)

Maddux Rule: Set trial date and attorneys will move the case forward.

201(k)Note: “counsel responsible for trial of the case”; means the people who make litigations decisions are the people who are able to work things out b/c they are high up enough - not the new associate. Also see Sedona paper

201(n): no privilege log will result in no privilege. Log helps the narrow the definition of the privilege claim.

A. Attorney-client and Work Product Privileges

Work Product

Verbatim statement of witness is not work product; but lawyers notes of statement are WP. Can newspaper clipping file can be WP b/c choice of clips are part of thought process?

Work product is different from federal hickman v. tayor, Except allowed if really necessary. Ill defines work product more narrowly and there is no exception. WP= lawyers mental impressions and thought process, not facts. Cannot convert fact into WP by telling lawyer.

Consolidation Coal Co. V. Bucyrus-Eire Co. (1982)Facts: Mining equipment collapsed injuring people. B-E began an internal investigation and did mental stress tests. 8-2101, 2102 is statutory provision to protect medical investigation of hospitals for deaths. No corporate internal investigation privilege, so create this through A/C privilege by hiring attorney to conduct investigation: “Back Cloak” technique.

“Control Group Test” - still exists in Illinois; people protected by privilege in corp context are the members of the control group; the group can change as the decision makers change-functional test, not organizational test-SO janitor could be member if makes recommendations and board is acting on his advice, not simply supplying facts.Employee in advisory role is such that a decision would not be made w/o his advise and whose opinion forms a basis of decision is properly w/I the control group; Person on whom he supplies for info are not in control group. This is difficult test to apply.

Holding: Deliberations regarding tests made by B of D and attorney are privileged, while tests are fact and not privilege.

Common Interest PrivilegeWhere defendants attorneys cooperate with each other and pursue common strategy. A/C waived by communication

More July 14Saturday, July 18, 2009

7:31 PM


Where defendants attorneys cooperate with each other and pursue common strategy. A/C waived by communication with 3rd party. BUT if co-parties with common interest are privileged against 3rd parties. Theses communications are not privilege against each other if there is a falling out b/t them-negative privilege. This happens b/t insurers and insureds.Allianz Ins. Co. V. Guidant Corp. (2d Dist 2007)Facts: Cooperation clause. P argued: consultants' materials were discoverable under Illinois law because the supreme court has held that an insured may not withhold, on the basis of privilege, any documents that relate to the insurance claims.

Holding: 1. Attorney/client privilege is construed strictly

(1) the number and nature of contacts forum has with parties and transaction;(2) the relative materiality of the evidence that is sought to be excluded; (3) the kind of privilege involved; and (4) fairness to the parties. Restatement (Second) of Conflict of Laws ? 139Two in favor of each side is not special reason.

2. Conflict of law: forum state will admit evidence that is not privileged under its local law but is privileged under the law of the state with the most significant relationship with the communication unless it finds that the local policy favoring admission is outweighed by "special reason." Factors considered are:

1) Where legal advise of any kind is sought2) from a professional legal advisor in his capacity as such,3) the communications relating to that purpose,4) made in confidence5) by the client6) are at his instance permanently protected7) from disclosure by himself or the legal adviser8) except the protection be waived. (Only client can waive)Also covers what the lawyer says

Wigmore’s Formulation in Fischell & Kahn v. Van Straaten Gallery

Western States v. O’Hara, Are ins comm priv. There are two lawyers 1) for insured and 2) for insurer to determine coverage. Second type communications should be privileged b/c in this rehlm are adversarial. BUT Western held such communications are discoverable. Could be considered dangerously bad law, but no S. Ct. Contrary holding.

EXCEPTIONS

In re marriage of Decker: for privilege must be professional confidence and professional employment; these do not exist if client has criminal objective (client must conspire w/ or deceive counsel). No good faith, but where client knew or should have known consequences.

Crime-Fraud Exception: If client seeks legal counsel in furtherance of criminal of fraud activity

At-Issue Exception: If client makes the advice of the attorney an issue, he cannot block evidence of the advice received. Really a waiver issue and can be applied inadvertently. In Lama v. Preskill - Husband’s visit to lawyer with W’s medical records, she put at issue the visit by claiming that she learned of injury after visit -this necessarily put the lawyer visit at issue b/c she claimed she later knew of injury to avoid SOL.

Common Interest: (ins. cases) - see above

B. Statutory Privileges

Medical: 8-802 doctor patient (included dentist)

8-2101, 2102 medial peer review740 ILCS 110/3 mental health therapist notesHIPPA, 42 USC Sec. 1320d - Giangiulio v. Ingalls Mem Hosp (1st Dist 2006)

Clergy: 8-803

Marital 8-801

Accountant: 225 ILCS 450/27: Privilege belongs to account, not for information given, or workpapers for preparing taxes.

II. Discovery Mules and Methods

A. The Basic Rules, 202-216

Distinguishes b/t discovery and evidence depositions, unique to Ill. Important b/c evidence dep objections are proper and should be made, but discovery deps are not to be used as evidence so would not have hearsay, foundation objections, but may have privilege.

202 If not specific it is deemed discovery. If want both, must take separately, but discovery dep comes first.


hearsay, foundation objections, but may have privilege.Coaching: “Objection, did you mean ...”

204(a): Like federal rules, EXCEPT 214. SO 204(a) allows for document production from non-party through records only dep.

204(c): Not limited in the taking of deposition of any person EXCEPT doctors206(a)(): Like Fed Rule 30(b)(6), allows to you to make corp tell you who will know the information sought, must state “particularity subject” If no person knows information on all issues, corp may designate several people to cover the particular subjects. Important b/c closure, if corp designates and representative has not additional information, this creates bounds of information and corp cannot use any additional information at trial.206(a)(2): In evidence dep cannot ask leading questions like at trial, but may lead in discovery206(e): May terminate (also called nuclear option). How, if represent deponent, leave and file motion regarding termination or t/c judge.

206(h): Video Conf dep is effective and cost efficient.210: Deposition on Written Questions. Rarely used, cannot follow-up on answer and like interrogatories. May be adequate for depos

BUT may use at trial if: 1), 2) no evidence dep, and 3) deponent cannot attend b/c death or in

Rule 212 (a) Use of DISCOVERY: used only to impeach, as admission, exception to hearsay, or as affidavit (like SJ);

212(b)(1): death, age, sickness or in.....

Longstreet v. Cottrell, Inc. (5th Dist 2007)Fact: P died of cancer after giving discovery dep. Def moved to barr discovery dep. If P could not testify/use dep the case is over.

Holding: Rule 212(a)(5) Court can only allow use of discovery dep UNLESS party. Therefore, use of discovery deposition was denied.

Interrogatories213: Written Interrogatories may only be issued to a party. No more than 30. There are standard forms which must be used if you can, if not must ask court by specific motion and state why need to use non-standard interrogatories.

213(f)Different categories and basis/disclosure information of each is important b/c can barr.Lay witness: fact witness: must identify subjects upon which witness will testify.Independent Expert: Witness will give expert testimony, but is not your witness and may be reluctant to talk to you. “Person who is not the party, a current employee or a hired expert. Must identify subjects and the opinions you expect

2) conclusions and opinions and the basis for conclusions and opinions (w/I 3rd

testimony may be barred

3) C.V.4) Reports

Controlled Expert: 1) subject

New Rule: cannot illicit surprise testimony on direct, cannot illicit on cross testimony from expert on same side as you, BUT on normal cross if you open the door the expert is free to give testimony not previously disclosed.

213(g) Old Rule: Expert cannot give testimony not disclosed in interrogatory or dep. SO, if you do not get it in on cross you cannot use it at trial.

Document Production

[214 is not rule to use for entering real estate and some other actions]

214: Wrong: need not produce in printed form, need to produce in form in which the information is kept (ESI). Seasonable supplement, there is general duty, but should also make request w/I document request. Sensible to do production on a rolling basis. [must eventually produce a certificate of completeness]

Destructive Test: No prohibition on destructive testing, but it is best to get court order to protect against spoliation OR by stipulation.

Spoliation: is the destruction or significant alternation of evidence, or the failure to preserve property for another’s use as evidence in a pending or reasonably foreseeable lawsuit

BUT 219 non-compliance for 216 is not the same as for other discovery rules. Generally, court should ratchet up discovery sanctions for continued failure to respond. Kopple v. Michael

BUT 216 will be deemed admitted (self executing) for failure to respond in 28 days. PRS v. Shred Pax -Like a cause of action death penalty. Must comply with the rule fully or deemed failure to respond. Vision Point of Sale v. Haas. Like 213, 216 requires responding with information reasonably w/I the control of the respondent. Szczblewski v. Gossett If multiple defs, cannot be bound by admission of other defs.

216: Requests for Admission (“Toad in the Garden”) Operates different from other discovery rules. You know fact which is so clear that you want the other side to admit to it an end argument about the fact. Functionally it is used to narrow issues at trial.


the respondent. Szczblewski v. Gossett If multiple defs, cannot be bound by admission of other defs.

BUT other cases have state it is not discovery and at the same time it is. Bright v. Dickey: 216 is “not a discovery rule” (b/c does not relate to finding out stuff?)

Szczblewski v. Gossett (5th dist 2003)Facts: Car Accident where Def denied accident. Both side filed 216.

2. a party has a good-faith obligation to make a reasonable effort to secure answers to requests to admit from persons and documents within the responding party's reasonable control (including attorney and ins company)

Holding: 1. D's conduct as the cause of the occurrence, the necessity and reasonableness of the medical services a plaintiff received to treat his or her injuries, and the reasonable cost of the medical services received are all facts that are proper subjects of 216

PRS Int’l v. Shred Pax corp (1998)Facts: K re: shredder machine. Def failed to answer 216 regarding ultimate facts/conclusions of lawHolding: Failure to response equals admission even as to ultimate facts and legal conclusions.

Vision Point of Sale v. Haas(2007)Facts: Trial court certified question re: extension for Appellate Review. P failed to sign 216; court held responses were stricken; ct then reconsidered allowing P additional time under Rule 183 to amend. (P claimed breach of fiduciary duty, tortious interference with plaintiff's business relationships, unjust enrichment, and violation of the Illinois Trade Secrets Act. Holding: Rule 183 to allow a circuit court discretion to permit a party to file a late response to a Rule 216 request to admit

217: Use if person is about to die or move.

(e) especially important: cannot avoid rules by voluntarily dismissing lawsuit. In comment, rules does not change

Party can weasel out of discovery compliance by voluntary dismissal, but it will be held against the party if they refile. SO, in refiled case discovery misconduct will be considered and the court will look at discovery in prefiled suit - may limit discovery, time for discovery regarding prior litigation.

219: Read carefully

Discovery SanctionsCosts have been defined narrowly (ie: filing and service fees), b/c US system does not desire routine fee shifting for fear of chilling the assertion of rights. May be allowed for bad faith.

BUT costs can have same effect. Federal rules costs include expert witness fees-expenses of litigation. SO, Ill narrows costs, only place where cost-shifting applies is in discovery.

Cost Shifting

201(c): Allows Generally, party producing pays for cost

See: Zubulake cases and the cost shifting factors. Federal case:

Asymmetrical litigation: one side has massive documents/discovery costs, so the other side can impose great cost on the adverse party-especially true for ESI. SO court imposes some sense of risk on asking party to make asking party reasonably limit request.

Zubulake Balancing Test:Courts have devised balancing tests to deal with the issue of the broad scope of discovery allowed by 26(b)(1) and cost -consciousness of

26(b)(2), including cost shifting.CS only when undue bur/expense; usually not for accessible date, but may be allowed for inaccessible dataZubu used a seven factor test for cost shifting (modified from Rowe):1. The extent to which the request is specifically tailored to discover relevant information;

2. The availability of such information from other sources;

3. The total cost of production, compared to the amount in controversy; (this is determined by estimating the reasonable dama ges upon P

wining and determining if cost of restoration is significantly disproportionate 4. The total cost of production, compared to the resources available to each party;

5. The relative ability of each party to control costs and its incentive to do so;6. The importance of the issues at stake in the litigation; and7. The relative benefits to the parties of obtaining the information.

Factors 1 & 2 which comprise the marginal utility test are the most heavily weighted

ALSO, cost shifting may be permitted where production is duplicative 26(2)(b)(i) or past cut -off 26(b)(ii)

(One month ago) $180,000BUT voluntary dismissal is a right. How can 219(e) condition voluntary dismissal on the basis of cost, which include expenses not available if P had lost case. Do this by making costs payable when re-file.

Examples: (2002) $72,000219(e): Party volunatrily dismissing claim may be required to pay for reasonable costs

B. Electronic Discovery Issues

F.R. Ev. 502


F.R. Ev. 502

C. Other Discovery Issues

Rule 218

Rule 222Grady v. Marchini (4th dist 2007)

Rule 224Gaynor v. Burlington Northern (5th dist 2001)

III Discovery Violations and Sanctions; Contempt

Four categories of Contempt

Civil Direct

Criminal Indirect

Coerce = civil - party can get out of contempt at anytime by complying, forward-lookingPunish = criminal, punitive and back-looking - fine, jail sentence or both, compliance will not change sentence

Jury Trial issue (fell asleep)Direct in the immediate presence of the court - ask could the judge competently testify to the act - May or May no be proved or require a jury trial.

Indirect not in immediate presence of the court - in the hall - MUST be provedUnless have to do not act immediately, only do so when it is absolutely necessary.

First ask what is objective:

219: Refusal to comply with discovery orders. [ Read Carefully and throughly]

Kopple v. Michael (1st Dist 2007)Facts: Citizens loan Ds money to start a bank, which they did not repay after starting opening same.

The purpose is to encourage compliance of discovery; to coerce not to punish. Don’t lead with greatest sanction; but if conclude party fails to comply b/c party is deliberate then sanctions can be great - acting with contempt toward the court and the process.

Motion to Dismiss may stay discovery

Holding: Documents were discoverable over objection because objection was not made prior to discovery order.

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July 16, 2009

Trial and Post-Trial Issues; Judgements; Setting Aside Judgments

I. Jury Demand and Waiver; Voir Dire; Setting for TrialPicking the Jury: for 12 person jury 36 venire is usually sufficient; the longer the trial the more jurors will get excuse d

b) Court may grant preference for good cause and in interests of justice.2-1007.1: a) If 70+ have preference for setting trial, UNLESS not have substantial interest

P must file jury demand at time action is commenced.

If for equitable and court determines a party is entitled to jury; P may file JD w/I 3 days and def may file w/I 6 days

After P or other Defs waive JD, D or other Def shall be granted jury trial upon prompt demand

D must file jury demand not later than filing answer.

b) number of jurors/fees

2-1105: When to File

2-1105.1: May challenge for cause. If physical impairment court shall consider ability to perceive and appreciate evidence.

b) court may impanel additional jurors

2-1106: Preemptory challenges: 5 each side; if more than on party on side court may grant up to 3 additional per additional party and than have to offer the other side the same total number

2-1111: Equitable: court may order issue(s) in case seeking equitable relief to be tried by jury

705 ILCS 305: May challenge juror for citizenship and/or ability to speak English; not physical handicaps (including hearing)

1107-1109: Jury Instructions

Voir Dire705 ILCS 305/10-12: Venire705 ILCS 305/21: Shall pass and accept in panels of four, starting with the P“Striking Back”: When confronted with a panel of four and object to a juror you did not object to before.

Grossman v. Gebarowski, (1st Dist 2000) - YESPeople v. Allen (2d Dist 2000) - NOFederal Court - NOBUT Peremptory challenges; better to let counsel to size up potential jurors?

Rule 234: “shall” = must? allow counsel to question panel directly?

Batson v. Kentucky, 476 US 79 (1986):

Can be raised sua sponte

peremptory based solely on race are prohibited, BUT i) how to assert decision made on racial basis - a statistics thing, venire is evenly white and black and all defs peremptory challenges are of blacks, and ii) how to rebut Batson challenge - if prima facie showing (pattern of dismissing protected category), must show a credible but no necessarily rational basis (ie: they are clearly not middle class and client is middle class) Basis need not make sense

Hernandez v. Power Construction (1978)Facts: Holding: Do not play games with jury demands

Noren v. Metro Life and Casualty, 369 ill app 3d 72Issue: Whether entitled to jury in _______ caseIf only relief requested is declaration - NOIf ultimate relief is money, and declaration is only step on way to money - YESLook to nature of ultimate relief requested.

II. Post-Trial Motions

A. Jury cases

July 16Saturday, July 18, 2009

7:37 PM


A. Jury cases

(a) court may rule or reserve until jury comes in.(b) whole dog an pony show

2-1202: Directed Verdict

May be affirmative (def) or negative (P) - no reasonable jury could find for def on the basis of the evidence.Rule 274

Late Filing of Jury DemandPedrick v. Peoria & Eastern RR Co. (1967)Facts: P fell from Scaffold. Def demanded jury trial and w/I drew same immediately b/f trial. P then requested leave to file jury demand. Tr. Court denied. During trial court refused to allow opinions of P’s expert.

2. Timing: Rule 183 court may extend filing time b/f or after expiration of time for good cause.

In instant case would be on prejudice b/c jury was called, BUT this is insufficient must show good cause. Two year delay to wait for jury trial was good cause under facts of this case (no prejudice, jury called, case was on jury docket, P surprised by w/draw)

3. Considerations good cause, the court will [***5] consider inconvenience to the parties and the court, and any possible prejudice to the rights of the opposing party and is discretionary

Holding: 1. Right to jury trial is constitutionally guaranteed by art I, sect 13, of Il Const

Trial court should not weigh credibility, but the weighs the evidence

Directed Verdict StandardWilliams v. Chicago Osteopathic Health (1st Dist 1995)Facts: Still born child had heart rate afterwards. Sued b/c hosp did not tell them, so not spend time with child or request lifesaving efforts. At close of evidence court directed verdict for defs after jury could not reach verdict (SO, how could evidence be plain to allow directed verdict).

- The "presence of some evidence of a fact which when viewed alone may seem substantial, does not always, when viewed in the context of all of the evidence retain such significance," thereby allowing the direction of a verdict, SO court can decide when evidence is so weak in light of all evidence to allow directed verdict based on the language including overwhelmingly.

Holding: STANDARD: motion for a directed verdict should be granted "only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand." from Pedrick.

Court must evaluate in light of entire record. AND in light of burden of proof. – so look at evidence as well as the level of evidence.

Fundatmental Approach: Don’t do jury’s job, but determine if they have job to do. Courts on Directed Verdict should be 13 th

juror, job is to decide if jury has something to do. If there is some eviendece in suuport the court should let the case go to the jury.

Lowenthal v. McDonald (2d Dist 2006)Facts: After winning PI auto case, P filed extension for Posttrial motion, then upon agreement of parties P faxed motion for additional extension; court stated filing was late b/c not file stamped by clerk but allowed extension. Def argued no jurisdiction.

B/c plaintiff did not receive order on extension and did not file NOA, untimely.

Holding: 303(a)(1) requires that a notice of appeal be filed within 30 days of the entry of the final judgment, or, if a t imely posttrial motion directed against the judgment has been filed, within 30 days after the entry of the order disposing of that motion. The failure to timely file a notice of appeal deprives this court of jurisdiction.

Additur and Remittiture allowed in Illinois, 2-1207Additur: Allstate Ins Co. v. MahrRemittiture Haid v. Tingle

n.o.v v. Motion for New Trialn.o.v.: Must include all grounds and reasons - not just new sentences it is a motion and memorandum - there is only one shot so must ask for everything.

Can only get n.o.v. if have real slam dunk, no new trialMotion for new trial: screw up during trial or other error in trial, but don’t entitle judgmentB. Non-Jury CasesDoes not require reasons like 2-1203 , not like jury. Matters b/c it stays the enforcement of judgment w/o posting a bond and stays time for appeal.

2-1110: Def may at P’s close move for judgment in his favor; court will weigh evidence, credibility and quality. Like directed verdict at end of P’s case where judge is the trier of fact.

2-1203: a) In non-jury case, party may, w/I 30 days after the entry-of the judgment or extension thereof, file a motion for a rehearing, retrial, or modification or to vacate or other relief.

In Jury case judge decides whether P presented prima facie case (proffer some evidence on every element essential to causeof action)

In non-jury Two Prong Analsyis

Kingbrook Inc.v. Purpurs (2002)


Kingbrook Inc.v. Purpurs (2002)

Kokinis v. Kotrich (1980):Facts: K matter b/t broker and sellers of motel.Holding: Test is not met prima facie, but analysis of evidence by court to meet required burden.

2) considering the totality of the evidence, weigh the evidence, determine credibility of witnesses and draw inferences court will determine if sufficient evidence to establish prima facie case. If not sufficient court will enter dismissal and not reversed on appeal unless contrary to manifest weight. (the court is not to view the evidence in a light most favorable to the P - strd In Pedrick for jury cases)

*BUT if court finds P failed to adduce any evid appeal review is de novo.

Two Prong Analysis: 1) whether P presented prima facie case (proffer some evidence on every element essential to cause of action) If no, dismiss*, If yes then,

Hays Machinery v. Reo Movers & Van Lines (1st Dist 2003)What is and is not an adequate post judgment motion? Must ask court in some way to change the judgment to stay appeal.Issue: whether a motion, which requests that the court provide the findings of fact and law which formed the basis for a previously entered judgment constitutes a motion for a modification of that judgment or seeks "other relief" within meaning of section 2-1203.

B/c findings does not change or alter it does not fall in “other relief”.Holding: Such does not change or alter the judgment so not modification.

III. Judgments

2-1301:

2-1302

2-1303

2-1602

Rule 272

Rule 276

Craig v. Brown (4th Dist 2005)

Confession of judgment are not favored, even in business transactions. Grundy v. Westfall

Charles v. Gore (1st Dist 1993)Issue: Default judgment reviving older judgment is allowed?

IV. Setting Aside Judgments

2-1301: (e) Applies to motions to vacate judgment or default w/I 30 days of filing of final judgment. Requirements are notstringent; left to discretion of the court b/c goal is to decide case on the merits. BUT this is not as of matter of right.

2-1401: More stringent. Motions to vacate more than 30 days (after time to appeal); cannot use 1401 as alternative to appeal.

A. Within 30 Days

2-1301(e)

Widicus v. Southwestern Elec. Coop (4th Dist 1960)

B. After 30 Days

2-1401

Rule 105

Rule 106

Beauchamps v. Zimmerman (1st Dist 2005)Facts: 622 unsigned and w/I name and address of physician. P voluntarily dismissed under 1009 and relief Holding: Afterthe period for refiling under section 13-217 expires, the


the period for refiling under section 13-217 expires, theDWP order effectively terminates the litigation between

the parties and constitutes a final and appealable order

BUT a plaintiffvoluntarily dismisses his cause, then refiles it, and thecircuit court dismisses the refiled cause for want ofprosecution, the plaintiff has no right to refile a second

time

SO only option was 2-1401 and court properly entertained same.2-1401 more rigid than reconsideration2-1401 elements: affirmatively set forth specific factualallegations showing each of the following elements by a

preponderance of the evidence: (1) the existence of ameritorious defense or claim; (2) due diligence inpresenting this defense or claim to the circuit court in the

original action; [*148] and (3) due diligence in filing thesection 2-1401 petition for relief

Dissent: This is issue of 619 for failure of 622; this motion should be ruled upon first.

Smith v. Airoom, Inc. (1986)Facts: Couple filed compensatory and punitive damages for an alleged breach of contract and breach of express and implied warranties of habitability for solar addition to home. Def defaulted. 7 mos later Def filed 2-1401 arguing default was excusable b/c did not receive notice, denied by trial and appellate ct.

Holding: Evidence showed defendant was served and was aware of suit

(1) the existence of a meritorious defense or claim;(2) due diligence in presenting this defense or claim tin the original action; and(3) due diligence in filing the section 2 -- 1401 petition for reliefProof is preponderance of the evidenceDue Diligence: requires reasonable excuse for failing to act within the appropriate time; through not fault or negligence of his own

must affirmatively set forth specific factual allegations supporting each of the elements:Three Requirements for 2-1401 (strictly applied)

BUT: allowance for some room for equitable, on the merits disposition, UNLESS “gaming the system”.

Cohen v. Wood Bros (1st Dist 2005): discussion re: stricted 2nd dist standard.

Void Judgment: May be attacked directly or collaterally at any time. Sarkinssian v. Board of Ed.

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Session 11July 14, 2009

2-1009 and 13-217 you have 1 year to re-file a dismissed case. From the date of the dismissal, Jenkins v. village of maywood 506 F.3d 622. Does the 1 year period run from the clerks enter of order on the docket or the date when the parties filed their joint stipulation to dismiss. For most purposes the date that counts is the date of the docket entry. (true in fed. Procedure and in state courts). Vol. dismissal under fed rule 41 don’t work that way, no order is needed to effect a dismissal. In state court there needs to be an order from the court granting the dismissal.2-1009 is not effective until it is docketed by the clerk. 323 Ill App3d 917 Pecora v. county of cook. Burden of proof lies with the movant. Stays with the movant all the way along. Burden of production can move back and forth. Similar to directed verdict.

Defendant who moves for sum. Jd.: 1) must prove plaintiffs case is without merit. Goes beyond what it has to do at trial. Affirmative method of proving summary judgment. Same burden of proof as the plaintiff: has to prove a prima facie case that the defendant is right. 2) celotex method: does not affirmatively prove anything, just say plaintiff cannot prove an essential part of the plaintiffs case. Mere recital in defendants affidavit is insufficient. But needs to point out the absence of elements. In Illinois it is not clear. Williams v. covenant: Defendant never pointed out wherein the plaintiffs evidence was insufficient. Burden of production and burden of proof in motion for summary judgment.

Director of ins. v. A & A:

Williams and pecora said he did not have evidence now. Bar order would prove that plaintiff has no case because court said so.

PROCEDURAL POSTURE: Appellee, the Director of Insurance for the State of Illinois, sued appellant company, in the Circuit Court of Du Page County

(Illinois). When the director and the company reached a settlement agreement, the court granted the Director's motion to dismiss the suit against the company with prejudice. The court later entered judgment against the company when the Director moved to reduce the settlement agreement to a judgment. The company appealed.

OVERVIEW: The company contended that the trial court was without jurisdiction to enforce the settlement agreement. On appeal, the court found that the

trial court expressly stated that it retained jurisdiction to enforce the agreement. Further, the court expressly made the di smissal contingent on the terms of the agreement, for it ordered the case dismissed under the terms of the settlement. By doing so, it incorporated the agreement in to the order. Moreover, as the agreement did not just announce a monetary sum but instead required a number of installment payments, the order mandated futu re conduct as well. Additionally, under Illinois case law the court retained the inherent authority to enforce its own orders. Thus, even if the final order could not be modified after

30 days under 735 ILCS 5/2-1203 (2004), the trial court had jurisdiction to enforce the settlement agreement. Finally, there was no reason to give particularsignificance to the fact that the dismissal was with prejudice in that there was no particular reason why the term "with prejudice" was to trump an explicit statement by the trial court that it was retaining jurisdiction for the purpose of enforcing the settlement.

OUTCOME: The judgment was affirmed.

"Although the trial court loses jurisdiction to amend a judgment after 30 days from entry, it retains

indefinite jurisdiction to enforce the judgment". However, a court retains the inherent authority to

enforce its own orders.

The sole issue presented to us is whether the trial court had jurisdiction to enforce the settlement agreement

between plaintiff and WSI.

Ready v. United/Goedecke Services, Inc.,: the Supreme Court held that defendants who settled

before trial should not be included on verdict forms. But that was explicitly based on the 1986

version of Code § 2-1117, which was amended in 2003; and it was further based on the Court's

view that the former (1986) version of § 2-1117 was ambiguous.

The 1986 version of § 2-1117 directed the trier of fact to assess the "total fault attributable

to the plaintiff, the defendants sued by the plaintiff, and any third party who could have been

sued by the plaintiff." After the 2003 amendment, § 2-1117 limits the fault assessment to "the

total fault attributable to the plaintiff, the defendants sued by the plaintiff, and any third

party defendant except the plaintiffs employer."

See Top 10 points about section 2-619, Scenarios.

Big difference b/w 2-619 and Summary judgment. SJ must be denied2-619 (c) gives court and option. Court could decide a factual dispute under 2-619. Zurich v. Reymark: depends on the nature of the relief sought. If it seeks relief where a jury would be avail at common law then there is a right to a jury. Can’t deprive someone right to jury by calling it declaratory judgment.

Court can entertain the motion under 2-619(c). 1.

No.2.

2-619(c) evidentiary hearing, “upon affidavits and evidence offered by the parties” Evidentiary hearing could be requested.

3.

Scenario #1:

Scenario #2:

Barbara Coleman Case – READ IT!!!

Session 11 - RobinTuesday, July 21, 20095:51 PM


http://www.lexis.com/research/buttonTFLink?_m=5761a8f4919810631e5cb373910984f5&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b383%20Ill.%20App.%203d%20721%5d%5d%3e%3c%2fcite%3e&_butType=4&_butStat=0&_butNum=1&_butInline=1&_butinfo=735%20ILL.%20COMP.%20STAT.%205%2f2-1203&_fmtstr=FULL&docnum=2&_startdoc=1&wchp=dGLbVzb-zSkAz&_md5=50893074c5013a3243a929cfa695a534

Barbara Coleman Case – READ IT!!!

Kahle v. John Derre Co.: Motions in limine. 2-1009 the right to voluntarily dismiss the case exists only at anytime before trial or hearing begins. Defendant is saying trial started. Where no jury has been selected; no prospective jurors have been examined or sworn; and counsel has made no opening statement, under the law in effect in Illinois, the trial has not begun.

In this the defendant would seek a dismissal with prejudice from the appellate court. -

An order granting a plaintiff voluntary dismissal without prejudice is final and appealable by the defendant.

DWP= Dismissal for want of prosecution. Flores v. Dugan: was not final order. DWP’s are not appealable by the plaintiff. Can ask the trial court to vacate the DWP.

Rule 103(b) case dismissed and SOL runs out plaintiff is dead. Defendant moves to dismiss under 103(b), case is briefed, so vol. non-suit. 13-217 applies for one year grace period. O’Connel v. St. Francis Hosp. Plaintiff can’t do this because its effect would be repeal Rule 103(b). Any situation in which there is a direct conflict with these ruels and statute, RULE WINS. Rule 103(b) motion has been filed and plaintiff moves to non suit, 103 motion must be heard first.

GibolinaSCtR 273: involuntary dismissal of action operates as an adjudication upon the merits except in 3 situations. “on the merits” Leow v. A&B Freight Co.: employer cannot be dismissed because dismissal of 1 defendant on ground personal to that defendant should not affect the liability of any other defendant.

Be careful on rule 273 when looking at res judicata problems. Because it requires a final judgment on the merits but does not necessarily mean on the underlying merits of the plaintiffs claim.

Downing: “We disagree that a summary judgment, "by definition," means a judgment on the merits. Although a judgment on the merits will oftentimes be the reason for granting summary judgment, this is not always the case. When a summary judgment is granted because the statute of limitations has run, the merits of the action are never examined. To label such an order as anadjudication on the merits would be the quintessential act of exalting form over substance.” Courts cannot ignore the basis o n which the summary judgment was granted. If, as in this case, that basis bears no relationship to the actual merits of the cas e, it would be inappropriate to apply the doctrine of res judicata to another party to the action.

Watch out for words “on the merits” and Rule 273.

The Sedona Conference Cooperation Proclamation.

SCtR 201

Work Product is lawyers impressions. It is not facts. Witness statement verbatim is not work product. Attorneys notes about the interview is work product.

8-2101 and 8-2102. What happens when someone dies on operating table. Statutory privilege.

Consolidation Coal: Pure fact gathering vs. analysis.

Allianz: Lawyer client privilege is waived when communicated to a third party. If 2 defendants have a common interest conversations are privileged as to the third party rule but are not privileged against each other if there is a falling out later.

Rapps v. Keldermans: Western States v. O’hara: (thinks it is bad law, but no appellate law contrary to this decision.)

Crime Fraud and at issue:

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Session 12July 16, 2009

Discovery RulesS. Ct. Rule 201-Personal Financial Information in Discovery. Relevance is outweighed by utility. 201(c)(1) *When thinking about discovery think about cost benefit analysis, think of privacy and dispute resolution costs. 201(c) specifically discusses embarrassment.

201(c)(1) protective orders. “as justice requires” is used very broadly. Burdensome interrogs – go to court and ask for protective order.

Rule 218: case management. 201(k) is critical! Reasonable attempts to resolve differences. (motions should have a 201(k) statement in it and the attorneys should have conferred first!).

201(n) Privilege: must have privilege log! 202: Distinguishes between discovery and evidence depositions, because: idea is if it is an evidence dep (to be used at trial) evidentiary issues should be raised. If discovery don’t need to use evidentiary issues.

Rule 204(a)(4): Records only deposition for non-party. (like a duces tecum). 204(c): physicians depositions. Limits ability to depose doctors. 206: (a)(1) is 30(b)(6): Representative deponent. Make them tell you who knows what you want. Describe with reasonable particularity what you want. Important thing about this is closure! That rep. information is the bounds the corporation is going to testify to. 206(e): Terminate or limit dep. 206 (h) telephone or videoconference deposition. 210: Depositions on written questions: done almost never. Oral interrogatory answers, can’t follow-up on the answer. 212: use of deps. 212(a)(5) death or infirmity. 212(b)(1): death, age, sickness, infirmity, or imprisonment. 212: Longstreet v. Catrell Rule 212(a)(5) only allow use of discovery dep of a discovery witness or a party. Here it was the plaintiff, sorry out of luck.

213: written rogs to a party only! No more than 30 including sub-parts. 213(f) & 213(g): Must disclose. Don’t do trial by ambush.

213(g): cannot on direct elicit surprise testimony. If you open the door, sorry. 214: do not have to print e-discovery. Document production. General duty to supplement and update discovery. (last paragraph)Equitable bill of discovery can be used to get info from third party also can use 224.

216: Admission of fact. It is the toad in the garden. Some say it is not a discovery rule. Not about finding out stuff. Functionally it narrows issue for trial which saves trial and money. Failure to respond deems the admissions admitted. Self-executing if you do not respond within time specified. Only discovery rule that does not allow for sanctions. If you failed to comply you deem them admitted. Read Szczblewski! 216(e) is only for this case, not any other case or party. Personal to the party. 217218219: read all of 219 carefully. 219(e) is important: look at committee comment. 1st sentence means a party can get out of discovery by voluntary dismissal but if re-file lawsuit court will it against him. Court is to look at discovery of previous suit.

219(e): imposition of costs. Fee shifting is not done all the time. 201(c): costs: e-discovery cost shifting. 219(e): 2-1009

Contempt: Shonkwiler:

Civil Direct

Criminal Indirect

4 sorts of contempt, it is either civil or criminal, it is either direct or indirect. Diff. b/w civil and criminal: purpose of the contempt is to coerce and forward looking (can get out of it by doing what the court wants) it is civil, if it is to punish and backward looking it is criminal (a fine or jail sentence or both). Criminal attaches certain rights to it: proof beyond a reasonable doubt, jury trial, etc. Civil example: reporter does not want to give up source, gets jailed, then tells who source is. Criminal example: injunction to not sell land, you sell.

Direct: in the immediate presence of the court. Right then and there. Indirect: not in the presence of the court. Could the judge competently testify to the contempt? If yes then direct. If not indirect.

Session 12- Trial and Post-Trial Issues; Judgments; Setting Aside JudgmentsBatson v. Kentucky: Peremptory challenges.

Session 12 - RobinTuesday, July 21, 20095:55 PM


Batson v. Kentucky: Peremptory challenges.

Noran v. 369 Ill. App.3d 72: entitlement to jury for declaratory judgment action. If ultimate relief is money and declaration is a stepping stone then there might be right to a jury.

Post-trial motions:2-1202: Applies in a Jury case. Motions for directed verdict. Can be affirmative or negative.

Pedrick and Williams cases. If jury could not reach a verdict how can we say evidence is so absolutely plain that a verdict has to be directed?

Williams talks about Pedrick. Some discipline in weighing evidence should be taken. Courts must eval. Relative strength of the non-movants evidence in context of entire record. HSould be reviewed against burden of proof as well. Look at where the evidence has to be to get to jury, not just what it is. (what is the standard, preponderance, clear and convincing, etc?).Courts should not make themselves the 14th juror. Should question whether the jury has something to do.

2-1202: you have 30 days to make a post-trial motion. Must in jury case include all of the grounds you have and must include all of the reasons for all of your grounds. ONLY GET ONE SHOT AT THIS! Can ask for JNOV, Directed Verdict, New Trial,

Non-Jury Cases 2-1110, 2-1203: don’t have to give reasons. Only get one motion. Kingbrook v. Pupurs.

Proper Post Judgment Motions stay any appeals. (won’t have to post appellate bond).

2-1110: did plaintiff bring evidence on the claim? Yes, then you weigh the evidence. If you deny the 2-110 motion then you can’t find for the defendant if you don’t hear anything more.

Hayes:

2-1301 and 2-1401.

Not as a matter of right.

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5 yr oral K SOL10 yr written SOL

3 1/2 hours examShort ans ,mult choice, true/falseBring books, notes, etc

DWPs 13-217Bowers v. Village of Palatine204 Il Ap 3d 135P injured May 1980Complaint DWP 1985P filed motion to vacate DWP within 30 daysMotion heard in 1987Motion judge questioned 20 month delay filing to hearingMotion judges only see motionsP counsel explained that attorney handling case left firm & no one followed upJudge denied motion to vacate DWPIf we don't make lawyers follow the rules, the system will break down

Feb 18 1987, 2 weeks after motion to vacate DWP denied13-217 gives you a year to refile from when?

When a case is dismissed in fed court the year to refile comes from the dismissal even if you are appealing the dismissal, which is an appealable orderIn bowers, because DWP was not a final judgment, the trial court retained jx Time runs from denial of motion to vacate, not from the time of the original DWP

DWP is a non final order, cannot appeal from a DWP, not final until a year after it is entered

Jx in appellate court is for final judgmentsAn appeal from a final judgment allows the app court to review all orders proceeding from the final judgmentA voluntary dismissal is treated as a final and appealable order as far as the D is concerned-does not allow the appellate court to review all orders proceeding to determine if the court correctly decided on the merits

-Judge says it is because a typical final judgment is the outcome of several proceduresA voluntary dismissal has nothing to do with anything else in the case-was the VD correctly entered?...did the trial or hearing begin?-If didn't begin, VD is OK, If it did begin, then VD is error

Collection of judgments (supplemental proceedings)

2-1202 jury2-12-3 bench

1)Timely and proper filing of motion to stay, motion should ask for change in judgment to be proper

-normal collection proceedings, could take years or may never appear, -freezing all of judgment debtor's assets right away could make it impossible for debtor to get an appear bond-you are better with an appeal bond than the normal collection proceedings

Money judgments- must post a bond, no bond=no stay, if you post a bond, you have a right to a stay, the bond secures that the $ is there

Other judgments- can be stayed under 305(b) and are discretionary

Rule 305

2) file timely notice of appeal AND motion under 305 to get a stay

-2 ways to prevent a judgment from being collectable

…proceedings to collect on the judgment

-a creditor cannot be required to proceed against the debtor's assets in any particular order, the creditor gets to pick

-a cash debt: wages, loan-a third party might be holding money for the debtor

-ex. Debtor owns antique cars, in garage for restoration work-restorer has a lien on the cars for the unpaid work done-debtor has sold car to restorer-debtor says I never sold any car-creditor is due money

-all three parties have rights,

-third parties may owe the debtor money

-citations to discover assets or income of the debtor

2-1402 …supplementary proceedings…part of the case in which the judgment was entered, but they are supplementary to the case itself

-the premise of 2-1402 is that Due Process has been satisfied by the entering of a final judgment and deadbeat must pay what he owes-forces judgment debtor to come to court to ask for relief

2-1402(f)(1) citation can enjoin the judgment debtor from making any transfer of property (groceries)

Serving a citation on a bank will freeze the accounts of the judgment debtor---banks usually freeze it all and argue with the order-there are limits on how much a bank can freeze- 2-1402(f) double the amount of the balance due.

Mareva injunction (English law)…purports to enjoin anybody anywhere in the world from using of xfering any assets believed to belong to a defendant-drastic form of prejudgment attachment

Contempt of citation can cause third party to have to pay whatever amount of the balance of the debtor is unpaid

-a lien binds property

Hypo- serve citation on Harris Bank who has account of $1000 owned by judgment debtor -rich uncle wires $250K to account, this money is also bound by the citation

Rule 277 puts an effective time limit on a citation

Session 13 & 14Tuesday, July 21, 20096:00 PM


Rule 277 puts an effective time limit on a citation

-6 months default life of citation-new one can be issued-over and over again

-judge will monitor citation so it doesn't last forever-Court may grant extensions as justice may require

-terminates automatically

Miner case…says you can't have a veil piercing in a supplemental proceeding-D corp owed judgement-judgment creditor wanted to pierce corp veil to collect from individual shareholders-veil piercing action involved allegations that corp itself is a sham, which is not about a corporations's assets-the individuals are not holding property belonging to the corp, veil piercing says that they are the corp

TMRyan v. South ShoreIllustrates 6 month limitation on citation

12-701 through 12-719…Garnishment-proceeding against a third party who has money belonging to the j udgment debtor

-garnishment summons to whoever you think has the property accompanied by interrogatories asking what does the party have that belings to the judgment debtor-if third party has no assets of the judgment debtor, then that's it

Ex. 3rd party is paying on an installment plan to the debtor-if third party has assets of the judgment debtor or will have assets of the judgment debtor

-If third party ignores summons, the party can be held to pay the entire judgment (conditional judgment)

-if state does respond, then that money can be garnished, because it is money doe the debtor, not the state's money-If the state ignores a summons, they cannot be issued a conditional judgment

-if the money due to the garnishee is not due yet, but only when it is due

-wage deductions 12-801 through 12-819-deduction cannot exceed 15% of the judgment debtor's wages

-If the insurer has already been held liable to the insured then that money is garnishable-if the insurer has breached K and is estopped from the defense of asserting that the claim is not covered, then the $ is garnishable

Federal and foreign judgments12-501 and 12-502…register federal judgment in federal court12-650…. Register foreign judgment in Ill and it becomes an Illinois judgment

12-621…when a foreign judgment is inconclusive and not enforceable -no due process (ex parte judgments)-no personal jx (according to who?)-no subject matter jx (Mareva injunction)--something so wrong with it that

Res Judicata (Claim preclusion)…can bar something that was never tried or that the litigants ever intended to tryCollateral Estoppel (Issue Preclusion)…..acts with respect to an issue that was actually tried

-2 step process

Privity - buyer cannot buy more rights than the seller possessed.

River Park v. City of Highland Park

-pragmatic approach-when a final judgment in an action extinguished a claim, all claims arising from the same transaction are extinguished-given weight to consideration whether the facts are related in time, space, or origin-giving weight to whether the facts form a trial unit (if court would have severed it)-giving weight to whether treating claims as a unit conforms to the parties expectations, business understanding or usage

-relies on restatement of judgments section 24 which says any issue which could have been raised

same evidence test…fails…evidence presented will be different in case 2-cause of action test…fails…same technical cause of action

-same transaction- turns upon the same common core of operative facts-Transactional test…does case #2 involve the same transaction as case #1 (judge doesn't like "arise out of")

-if you did not raise something in the first case, you are barred from raising it in the second case if the cases involve the same transaction-creates a compulsory joinder rule...

-If A sues B, given the liberal joinder rules in Ill, , any issue could have been raised,

-if you file a PI suit for $1M you should try all related claims (car, medical)-what if first suit is a property damage suit in small claims court?Should that suit bar a personal injury claim?-

What if your insurer brought the first property damage case?-

The claims do arise out of the same transaction.-

Remedies or forms of relief not asked for in the original action

In cook county, different types of cases are in different divisions, parties have expectations tied into where the case is fi led

No expectation interest in separating a PI claim from a property claim□

Other Illinois counties may have one circuit judge who hears everything

Judge says that barring the second suit violates the expectations of the parties-

-Ill supreme court defined test for "same cause of action"

Claim splitting is barred by res judicata

Hudson v. City of Chicago-negligence claim tossed due to immunity, final judgment on the negligence claim

A final judgment1)On the merits2)Same cause of action (the same mess, the same ball of wax)

3)

Same parties or their privies4)

DWP is not a final judgment on the merits -when a year has passed it is a final judgment, BUT NOT on the MERITS!


-laywer had to choose between appealing dismissal or pursuing willful & wanton count-voluntarily dismissed willful & wanton-refiled within the year-D moved to dismiss on res judicata-trial court granted motion to dismiss-Appellate court affirmed-Ill supreme Court affirmed due to res judicata

-when willful & wanton claim was voluntarily dismissed, it caused a final judgment on the merits (under rule 273)Mr Hudson got screwed…seriously unfair…Relied on Rein v. David A Noyes & Co….commercial dispute where P was not a sympathetic character

Saichek v. LupaSettled with one of 2 concurrent tortfeasors for full amount of recovery , barring recovery against 2nd tortfeasor

Collateral Estoppel-In Ill C E applies to issues of law and issues of fact-Law of the case doesn't even apply unless there has been an appeal-binding on the appellate court in subsequent appeal, even if it is wrong

-judicial estoppel 5 elements

Know the difference between voluntary dismissals and DWPs

Know Hudson and its affect on 2-1009 claims-when you voluntarily drop what is keeping your case alive, the case dies

no leave to amend○

Don't have a CoA○

Dismissal for Failure to State a Claim is an adj on the merits

•

304(a)Any judg that adjs fewer than all the claims is not enforceable or appealable and is subject to revision until a judgment is entered adjudicating all the claims

Rule 274A party may make only one postjudgment motion directed at a judgment that is otherwise final.-if a final judgment is modified then anyone effected by that has an opportunity to file a motion-a proper post trial motion is a freebie stay-mentions 303(a) and 137..don't understand this

2-1202(b)-relief desired after a trial by jury case must be in a single motion stating all points relied upon, the relief desired, relief may be in the alternate

Rule 301Every final judgment of a circuit court in a civil case is appealable as of right. The appeal is initiated by the filing of a timely notice of appeal. (35 days) No other step is jurisdictional. The notice of appeal gives the court jurisdiction.An appeal is a continuation of the preceding. (if a proper appeal is pending, res judicata does not kick in)(this does not mean that the trial court judgment is not enforceable)

-when you file a notice of appeal the appeal gets docketed and under rule 312 the appellant must file a docketing statement within 14 days

Rule 305The enforcement of a judgment for money only shall be stayed if a timely notice of appeal is filed AND an appeal bond is presented (adequate security is posted)

305(k)If a stay is not perfected, the reversal or modification of the judgment does not affect the right, title or interest of anybody who buys the debtors property at an execution sale

A stay stays the enforcement of a judgment

Cannot appeal from a judgment in your favor,If you don't like the judgment You have to attack the judgmentEx. NOV

Rule 302 Addresses direct appeals to the Supreme Court-if a statute of a case involves the constitutionality of the statute and the statute was held to be to be invalid -A case in which the public interest requires prompt adjudication by the S Ct, the S.CT can take the case immediately

General Orders can be declared by a ...Rules can only be adopted by...

Rule 303Notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from OR if a timely posttrial motion directed against the judgment if filed within 30 days after the entry of the order disposing of the last pending postjudgment motion directed against the last judgment-No request for reconsideration of a ruling on a postjudgment motion will toll the running of the time within which a notice of appeal must be filed under this rule 303(a)(2) last sentence-cross-appeal 303(a)(3)…a party files an timely notice of appeal and the other party(s) have 10 days to file a cross-appeal…could cause a problem in a multi party case

303AJudicial waiver of notice under the parental notification of abortion actexpedited procedure

304(a) partial final judgmentstart with the premise that there is not a final judgment adjudicating all the claims of all of the parties-appellate court does not like this rule…they might have to hear a case twice-if multiple claims and multiple parties are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties only of the court has made an express written finding that there

Whatever the court calls a ruling , it isn't final until all claims of all parties are adjudicated


is no reason to delay either enforcement or appeal or both.

A 304(a) is proper when-1) it disposes entirely of whatever it's about and 2) it is separate enough to separate from the rest of the case and really end that part of the dispute

-

Can be entered at anytime-

-not final until all claims are disposed of-

-when the last claim is adjudicated, ask judge to state "this constitutes a final judgment of all claims of all of the parties"

Prado v. Evanston HospitalWuench v. Ford Motorcount 1 negligenceCount 2 res ipsa loquitorRes ipsa dismissed by trial courtNegligence claim difficult to proveGot court to certify res ipsa count under 304(a)-Wuench…OKPrado..not OK res ipsa is a rule not a claim

304(b)Partial final judgments appealable without the magic language

-sometimes you want this to appeal a discovery ruling-contempt of court with monetary penalty, if no sanction, no appeal

-order under 2-1402…supplemental proceedings to collect a judgment-judgment or order granting or denying relief under 2 -1401…

-collateral to pending litigation

-a judgment or order entered in the administration of an estate, guardianship, or similar proceeding which finally determines the right or status of a party-a judgment or order entered in the administration of a receivership, rehabilitation, liquidation, or other similar proceedings which finally determines the rights or status of a party which his not appealable under 307(a)

302 is about where an appeal goes

301 appeal from a final j304 (a) & b from partial final judgments306 by permission from non final judg 307 appeal as of right308 appeals on certified qs

306Ask the appellate court for permission to appeal from a non-final judgment306(g) if leave to appeal is granted, ALL proceedings in the trial court are stayed(a)these kinds of orders are appealable with permission within 30 days of the entry of the order-Time to appeal not tolled by moving to reconsiderorder for a new trial1)Allowing or denying a motion to dismiss on grounds of forum non conveniens or from a transfer to another county or state

2)

Denial of a motion to dismiss on the grounds of no Personal jurisdiction3)Granting or denying a motion for transfer of venue based on assertion that D is not a resident of county where action commenced& no other basis for venue offered by P

4)

Orders affecting care & custody of minors5)Remands6)Granting of a motion disqualifying attorney7)Granting or denying Class certification8)

Rule 307Appeals as a right from interlocutory orders

Granting, modifying, refusing, dissolving or refusing to dissolve or modify an injunction○

Appointing or refusing to appoint a receiver or sequestrator○

Giving or refusing to give other or further power to receiver or sequestrator already appointed○

Placing or refusing to place a mortagee in possession of a mortgaged premise○

Receivor for bank○

Parental rights ,adoption○

Eminent domain○

Deny, grant, change the effects, refuse to change the effects

-covers drastic heavy duty stuff seriously interfering with people's rights...stuff that needs to be determined quickly

307(d) appeal from grant or denial of a TRO or a motion to modify or dissolve a TRO…2 days from the entry of the order-11-101 …motion to dissolve a TRO…2 days notice to the parties-only applies to a TRO entered without notice

Crain v. Bill Kay NissanClark v. Country Mutual

Trial courts lack the authority to excuse compliance with the supreme court rules governing the time for filing a notice of appeal

Only order a court can order nunc pro tunc is a correction of a clerical error (typo)


Rule 308-Voss case-purpose of 308 is to allow the immediate appeal of an issue that would resolve the litigation-not to be routinely used-most order involve a mix of facts and law-trial court has to admit it may be wrong for a 308 appeal to happen…certify a question-Appellate court will not review fact issues on 308 appeals…only issues of law

Ex. Whether Med mal SOL or product liability SOL applies?-a question of law collateral to the merits and its determination would be dispositive

-308(a)


212(a)(5) introducing a discovery dep at trial is possible but not guaranteed; have to prove the witness isn't there because of something that could not be expected

•

Trial begins when one juror had been sworn•

Gives the judge a chance to think○

Rulings are tentative because the judge is trying to predict what will happen in trial○

Motions in limine used before the trial starts to exclude evidence other side is expected to offer •

DWP is not a final judgment○

After a year it is final but still not appealable○

Had a year to vacate the DWP○

File motion within 30 days for easier standard under 2-1301(e)○

Cannot appeal from a non event○

DWP is not appealable•

Airroom case…problem is that Airroom lied to court•

Circuit court of cook county has a 90 day strike rule, permitted to strike, ,not required○

No formal statement in code or rules that gives a motion an expiration date•

Have to specifically id what the P cannot prove OR○

Say why, based on that evidence, you win

If you are saying that the facts are true, but they show you are right, then you have to present it like a motion for summary judgment○

Under both fed law & illinois law, the particular burden of proof can be an important element of a celotex motion○

Celotex says that the D, in his motion, should point out to the court that the P cannot prove his case, the thing must be i dentified•

It is not mandatory that the motion to dismiss is ruled upon first○

If the class is certified first and the motion to dismiss on the named plaintiff is granted, the whole case is final ○

Cannot certify a class if the named P is not an adequate rep for the class

A class action cannot be certified unless the named P has a CoA

P as fiduciary for absent class members should want a motion to dismiss to be ruled upon before a class certification, but th ey always want a class certification first because once the cert id final, the D cannot buy off the named P

○

When there is a motion to dismiss before the class is certified in a class action, should a motion to dismiss be ruled upon•

Illinois is a fact pleading JX•2-622 med mal requires an affidavit attached to the complaint•

Don't have to prove your case, but have to show the case isn't doomed as a matter of law○

To set aside a judgment under 2-1401 there must be a finding on a meritorious claim, without an affidavit, there is no meritorious claim•

Affidavit must be filed whether seeking over $50K or not..in Grady v. Marcini○

Simplified discovery

Gets to trial quicker

Cook county is opt in, they only file it if they want to invoke 222○

Prudent to attach affidavit to be safe○

Rule 222•

a stay of a lawsuit has the effect of stopping the SOL within the suit, if there is a bankruptcy stay, you have 2 years from the stay to file a contribution case

•

A third party suit had to be a contribution or a indemnity…someone who may be liable to you on this claim•

2-615 even if everything this complaint says is true, it's not enough…aimed at only the complaint…NEVER have affidavits○

2-619..assumes that the complaint does state a claim for relief, YES, BUT…other reasons why , like SOL, signed a release, D not competent to be tried…USUALLY have AFFIDAVITS

○

Two kinds of motions to dismiss •

219(e) says if court decides opponent has abused discovery the court can impose costs and expenses if they refile the case u nder 13-217○

2-1009 is a right to voluntary dismissal •

(b) the form

(c) if assets are discovered

Cannot pay out to creditor without notice to the debtor□

(f) injunction, must hold assets until court releases

Citation expires in 6 months, but court can extend it

3rd party should only withold twice the amount of the judgment

Banks will freeze all of the account, court will have to intervene to release funds over twice the amount

2-1402(a) supplementary proceedings commenced by citation…essentially it is a discovery subpoena•

ReviewTuesday, July 28, 2009

5:51 PM


Illinois Civil Procedure - c.ymcdn.com · Session II from Syllabus Thursday, June 11, 2009 7:10 PM...

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Transcript of Illinois Civil Procedure - c.ymcdn.com · Session II from Syllabus Thursday, June 11, 2009 7:10 PM...