- Granted by the IL constitution

- Cannot be waived by the parties Lack of SMJ may be raised at any time by the parties or by the court on its own motion If a court lacks subject matter jurisdiction, any judgment it renders is void

1. Service Within the State

2. Consent

3. Residence

4. Jurisdiction over Property

5. Minimum Contacts: Long-Arm Statute

6. Substantial Contacts: Long-Arm Jurisdiction

1. Forms of Notice Through Service

a. In Hand Service

b. Agent

i. Individual - in hand at home or 13-year-old

ii. Corporation/Partnership-registered agent or officer

c. Waiver

2. Service Makers

a. Sherriff

b. Coroner

c. 18 year old non-party

1. Civil actions: 5 years

2. Special statutes of limitations include:

a. 2 years for personal injury actions

b. 1 year for slander, libel, invasion of privacy

c. 10 years for written contracts, leases, notes and other evidence of indebtedness

3. When D is outside of IL, generally the limitations periods are tolled

- Begin to run without regard to whether injuries have occurred, have become visible, or have been linked to the potential D

a. Attorney malpractice claims: 2-year statutory limitations period and 6-year repose period

b. Physician or hospital malpractice claims: 2-year statutory limitations period and 4-year repose period, excluding claims involving care to minors

1. Governed by the doctrine of laches

2. Laches analyses includes considerations of the requirements of limitations periods for comparable common law claims

IL Civ. Pro.: Proper Venue in IL: Statutory Standards on Choice of Forum

Individual: venue is proper in IL where:

(1) The D resides

(2) The transaction giving rise to the cause of action occurred   

Corporation: A private corp organized in IL or a foreign corp authorized to do business in IL is a resident, for venue purposes, of any county in which it has its registered office or other office, or is doing business

Partnership: A partnership sued in its firm name is a resident of any county in which any partner resides or in which it has an office or is doing business

Voluntary Unincorporated Association: A voluntary unincorporated association sued in its own name is a resident of any county in which: the association has an office, or if no office can be found, in any county in which an officer of the association resides

1. Transfer permitted for the convenience of parties and witnesses and in the interest of justice

2. Transfer not permitted if D fails to meet the high burden that there is a more convenient court

3. Factors considered in transfer include:

a. The ease of access to sources of proof

b. Availability of compulsory process for attendance and cost of obtaining unwilling witnesses

c. Proximity to the homes of the P and D

d. Ease of applying any relevant local law and whether another forum could take jurisdiction of all factually related claims

1. If a more convenient forum is in another state or in a federal or foreign court, a circuit court must dismiss the suit as it cannot transfer it

2. Factors considered in deciding dismissal:

a. Ease of access to sources of proof

b. Difficulty of applying foreign or other state law in an IL court and Unfairness in burdening another judicial system with claims unrelated to the people of that system

c. Whether all factually related claims can be joined elsewhere

1. General Pleadings Standards

a. Federal requirements: 1) a statement about the claim; 2) a statement for relief; 3) subject matter jurisdiction, and 4) notice pleading

b. Illinois requirements: 1) a statement about the claim; 2) a statement for relief; and 3) fact pleading

c. Insufficient Complaint: the failure to include any required element: can lead to a response by the defending party that the complaint is insufficient

2. Special Pleading Standards: replace general pleading in cases such as medical malpractice where in addition to the affidavits, a certificate of merit must also be provided to certify the claim is meritorious

- All objections to pleadings must be raised by motions that point out specifically the alleged defects and that ask for appropriate relief (ILCS 615 & 619)

(1) Motion to strike the pleading or a portion thereof;

(2) Motion to dismiss the action;

(3) Motion for a more definite and certain pleading in a specific particular;

(4) Motion to strike out immaterial matter;

(5) Motion to add necessary parties; or

(6) Motion to dismiss misjoined parties

- If any pleading is insufficient in substance or form, the court may order a fuller or more particular statement or may order other pleadings prepared

- All defects in pleadings (except SMJ) not properly objected to in the circuit court are deemed waived

1. General Standards for All Pleading Amendments: permitted on just and reasonable terms at any time before final judgment for purposes including:

1) Joinder; 2) Dismissing a party; 3) Changing cause of action or defense; 4) Adding a new cause of action or defense; or 5) Addressing a matter that will help the P or D

2. Relation Back Rule When Adding New Parties: Adding a person not originally named a D is not time-barred if all of the following conditions are met:

i) Statute of limitations had not run when original action was commenced

ii) New person received notice and knew or should have known that but for a mistake on the ID of the party they would have been sued

3. Supplemental Pleadings: may be filed within a reasonable time by either party or by leave of court, upon terms ordered by the court

1. The basic joinder rules in IL do not follow the permissive/mandatory language, as well as other attributes, of the FRCP

2. When joining another party to an action a claimant may join two or more claims against a single D

3. Factually-related claims must all be joined against one D under res judicata/claim preclusion principles

- Though the statute says ‘may’, the joinder is a ‘must’, as when a claimant has both an unintentional and a factually related intentional tort claim against the same D

- In IL, res judicata applies to claims that received final judgments and those that could have, such as voluntary dismissal

a. Any person may be a D who is alleged to have, claims an interest in, or has liability arising out of the controversy or the transaction out of which the controversy arose; or whose presence is necessary for a complete determination

b. The P can add an unrelated claim against the newly joined D with no P.J. issues, but there may be SMJ issues

c. If the claimant is in doubt as to the person from whom he or she is entitled to recover, the claimant may join two or more D’s, state the claim against them in the alternative, and allow the question of which of the D’s is liable, and to what extent, to be determined as between them

CounterClaims

1. Permissive in IL: Unlike the FRCP, there is no explicit compulsory counterclaim rule under the ILCP

2.  However, a D may lose a claim if he fails to raise it: in a counterclaim where the claim arises out of the same transaction or occurrence that is already before the court, under re judicata precedents

Cross-Claims

IL does not explicitly differentiate between cross-claims and counter-claims; failure to plead a factually related cross claim may lead to its loss under res judicata; Once a D has been properly sued, all claims that are factually related to the claims pending should be joined even though the code provision only says cross-claims ‘may’ be pleaded

- A D may bring a third-party complaint against a person who is not a party to the action but who is or may be liable to the D for all or a part of the P’s claim

- P.J. is required

- Third party D may claim against the P separate from the original D’s defense or counterclaim with no jurisdictional issues

1. The court may direct other new parties to be brought in if a complete determination of the controversy cannot be had without their presence

2. This is in addition to a voluntary impleader by the D

1. There are two types of intervention under Illinois law:

a. Intervention as of right

b. Permissive intervention

1. Interpleader is used where a P has some holding that would expose the P to multiple liability from adverse claims

2. There are two types of interpleader:

a. Rule Interpleader: no applicable monetary threshold, required in federal

b. Statutory interpleader: no nationwide service of process, allowed in federal

3. The most significant problem with bringing an interpleader action in Illinois is: there must still be personal jurisdiction over all of the parties and there is no in rem jurisdiction

a. The federal interpleader standard resolves this: through nationwide service of process

1. IL does not require additional conditions beyond the basic fed. prerequisites

2. IL class action rule, like the federal rule, requires:

a. Numerosity

b. Commonality

c. Adequacy of representation

3. The IL notice requirements are not as stringent as the federal requirements

a. Individual notice to all members in a class is not contained in the IL rule

b. An IL court has discretion to order such notice as it deems necessary to protect the interests of the class and the parties

c. IL does not require notice to all members before dismissal or compromise if a class action; court's discretion

a. All matters that are privileged from disclosure at trial are also privileged against disclosure through discovery

b. Statutory privileges in IL: husband/wife, physician/patient, informant/police, clergy/church-member, reporter/informant, language interpreters

c. Attorney-client communication privilege in Illinois is defined by case law

d. In IL, the rule for corporate attorney work product is governed by the ‘control group’ test

- In IL, the rule for corporate attorney work product is: governed by the ‘control group’ test which narrows the privilege for corporate attorney communications with corporate employees

- If the communication is not in the control group, then it is not protected by the attorney/client privilege but may be considered work product if the information may be secured elsewhere

- Control group is considered to be the agents, officers, or others in the organization (such as executives) who are speaking with the attorney regarding the legal strategy or other strategies – would not be the janitor, for example

(1) With respect to former employees: the communication is not privileged if the person was not in the control group; for those in the control group, the court will take the view that the communications were privileged

a. Opinion work product is never discoverable in IL; material prepared by or for a party in preparation for trial that contains the theories, mental impressions, or litigation plans of the party’s attorneys

b. Ordinary work product is discoverable in IL; does not contain attorney theories, and so on

c. Consultant: a person retained or specially employed in anticipation of litigation or in preparation for trial; identity, opinions, and work product is discoverable only upon a showing of exceptional circumstances under which it is impracticable for the party seeking discover to obtain facts or opinions on the same subject matter by other means

d. Experts whose opinions may be presented at trial are discoverable and subject to depositions before trial

1. IL does not require disclosures (even of names and addresses of witnesses) prior to a discovery request. This is unlike federal court practice, which requires initial disclosure of a long list of items; later disclosure related to expert testimony; and even later pretrial disclosure regarding evidence.

2. However, in civil actions seeking money damages of $50,000 or less, each party in an IL circuit court case must disclose the following matters to every other party within 120 days after the filing of a responsive pleading to the complaint, unless the parties otherwise agree or the court lengthens or shortens the time:

a. Name and address of witnesses

b. What the damages request is and how you computed it

c. Names of all people who may have information

1. Depositions: IL recognizes 2 types; 1) Depositions for purposes of Discovery; and 2) Depositions for uses as Evidence

a. Cannot be taken w/in 21 days of trial and ony 3 hours long

b. Non-party MD -both parties and MD must agree and deposing party pays for it

2. Interrogatories: limit of 30 in IL; duty to supplement

3. Requests to Admit: 28 days to respond or admitted

4. Inspections: must allow at least 28 days notice

5. Physical and Mental Exams: can be on parties and non-parties in party's custody or control

1. A P may voluntarily dismiss an action though there is no settlement by filing a notice of dismissal with each party who has appeared and by paying costs

2. After the trial or hearing begins, the plaintiff may dismiss voluntarily: 1) upon filing a stipulation signed by the D; or 2) on motion specifying the ground for dismissal, supported by affidavit or other proof

3. Voluntary dismissal of a claim followed by a timely refilling may be subject to res judicata even when the claim is said to be dismissed without prejudice when the claim is split from another factually related claim that was resolved on the merits or could have been resolved on the merits

1. Upon motion by the D may be granted for certain procedural defects or defenses, including: 1) No SMJ; 2) Limitations period was not met; 3) substantive issue such as Statute of Frauds; 4) Insufficient claim in the law where the law does not support the allegation

2. Court must deny motion if a relevant factual issue in dispute on the procedural law defense prompts a right to jury trial and a jury demand has been timely filed

3. Operates as an adjudication on the merits except for lack of jurisdiction, improper venue, or failure to join an indispensable party

a. An adjudication on the merits means res judicata applies and is final

4. Malpractice Suits: IL allows a defending party to an action involving medical, hospital, or other healing art malpractice, in lieu of answering or otherwise pleading, to file an affidavit certifying that he was not directly or indirectly involved

1. Demand: A P who wants a jury trial must file a demand with the court clerk at the time the action is commenced; a D who wants a jury trial must file a demand no later than the time required for filing an answer

2. Jury Selection: Each party is also entitled to five peremptory challenges

3. Number of Jurors: A 12 person jury is mandated in IL when a party demands a jury trial; if the claim for damages is $50K or less the case will be tried by a 6-person jury unless either party demands a jury of 12

IL generally requires post-trial motions in jury trial cases to be filed within 30 days after the entry of judgment or the discharge of the jury if no verdict is reached; federal is 28 days

1. Illinois Court Judgments: Except upon revival, no judgment shall be enforced after the expiration of 7 years from the time the judgment is rendered

2. Judgments from American Courts Outside Illinois: Federal district court judgments may be registered IL circuit courts which shall then afford them the recognition afforded IL circuit court judgments

(1) Exception: If the other state judgment is based on a case where there was no personal or SMJ, then there is no responsibility for the IL court to enforce the other state’s judgment

b. State court judgments from outside IL, entitled to full faith and credit, are enforceable in IL circuit courts

3. Judgments from Foreign Courts: Foreign state money judgments may be enforced in IL circuit courts

IL Civ. Pro.: Circuit and Appellate Court Review of Administrative Agency Decisions in IL

1. A Circuit court may exercise what is generally considered appellate court authority relative to administrative decisions

2. Chevron Deference: Agency determinations with respect to questions of law: able to be decided by appellate or trial but b/c the administrative agencies are considered to be experts in the area, there is deference to the Administrative agency – this is the Chevron deference – IL courts have to respect the decisions of the administrative agencies and give the agency deference

3. Agency determinations with respect to questions of fact: agency determinations with respect to factual matters are prima facia true and correct; there is a narrow realm of review of administrative agency’s decisions in the courts and the agency is given the deference and their expertise is deferred to

Under the doctrine of Stare Decisis, a final court judgment embodying a necessary decision on a question of law usually becomes either persuasive authority or binding precedent when the same legal question arises in a later case before the same or a different court

1. Applies when factual issues are sought to be foreclosed due to an earlier judicial order

a. Offensive use of collateral estoppel occurs when a party seeks to foreclose the other party from litigating an issue that party had previously litigated unsuccessfully.

2. Commonly arises in the situation where other victims seek to utilize affirmatively an earlier victim’s win against a wrongdoer who hurt them all

a. The second P wants to use a decision from the judgment of the first P where it is in the second P’s favor and use that offensively to show affirmatively that, for example, the driver was negligent b/c he was already found negligent in the first suit