Legal Question in Civil Litigation in Illinois

Re: Filing For A Motion To Dismiss in Court

If you plan on filing a motion to dismiss, do NOT answer the complaint yet. However, you should file an appearance. Once you file your motion, the plaintiff has a chance to file a written response, then you get to file a reply to the response, the the court has a hearing to hear oral arguments or it will make a ruling on the briefs.

There are two statutes in Illinois that you will need to look at to do your Motion to Dismiss: 735 ILCS 5/2-615 and 735 ILCS 5/2-619. The first statute deals with motions to dismiss when the complaint doesn't conform to the pleading requirements of Illinois. It ONLY attacks the sufficiency of the pleading and you don't get to argue any facts to support your motion. If you win a 2-615 motion to dismiss, all it means is that the plaintiff will be given some time to amend his/her complaint and refile it. It won't make the claim go away.

The 2-619 motion asserts an affirmative matter which defeats the claim. For example, if you were sued for breach of contract and you can show that there was no contract between you and the plaintiff, you would set this up in a 2-619 motion to dismiss. If you win one of these, the plaintiff will still get to amend his/her complaint, but they might not have any basis for a new complaint at that point.

And you can also bring a combined 2-615/2-619 motion under 735 ILCS 5/2-619.1.

Check the rules I've cited. That should help you put something together.