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Illinois Motion to Dismiss

In Illinois you move to dismiss under 735 ILCS 5/2-615 for pleading defects or 2-619 on affirmative matter.

Introduction

In Illinois the pre-answer dismissal vehicle is a motion to dismiss under the Code of Civil Procedure, and it runs on two distinct tracks. A motion under 735 ILCS 5/2-615 attacks defects in the pleading and tests whether the complaint states a cause of action, decided on the face of the complaint, and it must specify exactly where the pleading is insufficient. A motion under 735 ILCS 5/2-619 is an involuntary dismissal that admits the pleading is legally sufficient but raises an enumerated affirmative matter, such as the statute of limitations, lack of subject-matter jurisdiction, a prior judgment, a release, or the Statute of Frauds, and it must be supported by affidavit when the ground does not appear on the face of the complaint. A defendant may join both, plus a 2-1005 summary-judgment motion, in one combined motion under 735 ILCS 5/2-619.1, but each part must be clearly labeled and specify the section it is brought under. The motion is filed in lieu of an answer in the Circuit Court within the same 30-day appearance window the answer would use, under Ill. Sup. Ct. R. 181(a). Missing that window risks default. DocDraft drafts an Illinois-formatted motion from your facts, with attorney review available before you file.

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Key Things to Know

  1. 1

    The Illinois vehicle is a motion to dismiss under the Code of Civil Procedure, split into a 735 ILCS 5/2-615 motion for pleading defects and a 735 ILCS 5/2-619 motion for involuntary dismissal on affirmative matter, with combined motions allowed under 735 ILCS 5/2-619.1.

  2. 2

    A 2-615 motion challenges the legal sufficiency of the complaint on its face and must specify wherein the pleading is insufficient; a 2-619 motion enumerates nine grounds, including lack of subject-matter jurisdiction, no legal capacity to sue, another action pending, prior judgment, statute of limitations, release or discharge in bankruptcy, the Statute of Frauds, minority or disability, and other affirmative matter defeating the claim.

  3. 3

    The motion is filed in lieu of an answer within the same window, which for a general civil complaint is 30 calendar days from service; under Ill. Sup. Ct. R. 181(a) the defendant may appear by filing a motion within the 30-day period.

  4. 4

    A 2-619 motion must be filed within the time for pleading, so a defendant who needs more time after a ruling should request leave; the Code sets no automatic separate clock, and any extension to plead after denial is governed by the court and local circuit practice.

  5. 5

    Illinois has no statewide meet-and-confer precondition to filing a motion to dismiss in the Code of Civil Procedure or the Supreme Court Rules, but some circuits impose local motion-call procedures, so check the local rule for the county of filing.

  6. 6

    The most common ground is failure to state a cause of action, which is a 735 ILCS 5/2-615 motion arguing the complaint is substantially insufficient in law; the motion must point out specifically where the pleading falls short.

  7. 7

    File in the Circuit Court of the county named in the summons, in the Law or Municipal Division depending on county and amount in controversy; e-filing is mandatory for civil cases under Ill. Sup. Ct. R. 9(a) unless an exemption applies.

Key Decisions

Choosing the Grounds for Dismissal

Timing and Strategy

Filing and Serving the Motion

Customize your Motion to Dismiss Template with DocDraft

IN THE CIRCUIT COURT OF THE ____ JUDICIAL CIRCUIT [OR: IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS] ____________ COUNTY, ILLINOIS [LAW DIVISION / MUNICIPAL DIVISION]

____________________________, Plaintiff,

v.                                          No. ______________

____________________________, Defendant.

DEFENDANT'S MOTION TO DISMISS UNDER 735 ILCS 5/2-615 AND 5/2-619 [combined motion brought under 735 ILCS 5/2-619.1, in separately labeled parts]

NOW COMES the Defendant, ____________________, by and through counsel [or, if self-represented, appearing pro se], and pursuant to the Illinois Code of Civil Procedure moves this Court to dismiss the Complaint. In support, Defendant states:

PART I. MOTION UNDER 735 ILCS 5/2-615 (DEFECTS IN THE PLEADINGS)

  1. This part is brought under 735 ILCS 5/2-615. The Complaint is substantially insufficient in law and fails to state a cause of action upon which relief can be granted.

  2. Specifically, the Complaint is insufficient in the following particulars: ____________________ [state precisely wherein the pleading is insufficient; 2-615 requires the motion to point out specifically the defects complained of].

PART II. MOTION UNDER 735 ILCS 5/2-619 (INVOLUNTARY DISMISSAL ON AFFIRMATIVE MATTER)

  1. This part is brought under 735 ILCS 5/2-619(a)(__) and, without conceding the legal sufficiency of the Complaint, raises affirmative matter that defeats the claim, namely: ____________________ [e.g., (5) the action was not commenced within the time limited by law; (1) lack of subject-matter jurisdiction; (4) prior judgment; (6) release, satisfaction, or discharge in bankruptcy; (7) the Statute of Frauds].

  2. The grounds asserted in this part do not appear on the face of the Complaint and are supported by the affidavit of ____________________, attached hereto as Exhibit ___. [Omit if the ground appears on the face of the pleading.]

MEMORANDUM IN SUPPORT

Defendant submits the following points and authorities in support of this Motion. [Set out the legal argument; confirm any briefing length or format set by the local circuit rules of the county of filing.]

A. A 735 ILCS 5/2-615 motion tests the legal sufficiency of the Complaint on its face and admits all well-pleaded facts for purposes of the motion.

B. A 735 ILCS 5/2-619 motion admits the legal sufficiency of the Complaint but asserts affirmative matter that avoids or defeats the claim, and may be supported by affidavit.

WHEREFORE, Defendant respectfully requests that this Court dismiss the Complaint [with prejudice / without prejudice], and grant such other and further relief as the Court deems just.

Respectfully submitted,

Signature [signed under Ill. Sup. Ct. R. 137] Name: ____________________ [Attorney for Defendant, ARDC No. ______ / Defendant, pro se] Address: ____________________ Phone / Email: ____________________

CERTIFICATE / PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing Motion to Dismiss was served on all parties of record on ____________ [date], by ____________ [method of service permitted under the Illinois Supreme Court Rules / the court's e-filing system].

Signature

Illinois Requirements for Motion to Dismiss

File within the 30-day appearance window, in lieu of an answer

The motion to dismiss is filed instead of an answer within the same appearance window. For a general civil complaint that is 30 calendar days from service. Under Ill. Sup. Ct. R. 181(a), when the summons requires appearance within 30 days, the defendant may appear by filing a motion within the 30-day period, and a 735 ILCS 5/2-619 motion must be filed within the time for pleading.

Confirm your service date to compute the deadline

Count 30 calendar days from the date you were served, exclusive of the day of service, to fix the last day to appear and file under Ill. Sup. Ct. R. 181(a). Confirm the exact service date and the response time stated in your summons before you calendar the deadline.

Choose the right track: 2-615, 2-619, or a combined 2-619.1 motion

Bring a 735 ILCS 5/2-615 motion for defects in the pleadings, including failure to state a cause of action, decided on the face of the complaint. Bring a 735 ILCS 5/2-619 motion for an enumerated affirmative matter. Under 735 ILCS 5/2-619.1 the two, plus a 2-1005 summary-judgment motion, may be combined in one motion, but each part must be clearly labeled and specify the section it is brought under.

Identify the specific 2-619 affirmative matter

735 ILCS 5/2-619 lists nine grounds: lack of subject-matter jurisdiction not curable by transfer; no legal capacity to sue or be sued; another action pending between the same parties for the same cause; a prior judgment; the statute of limitations; release, satisfaction of record, or discharge in bankruptcy; the Statute of Frauds; minority or other disability; and other affirmative matter avoiding or defeating the claim. State which subsection applies to your facts.

State precisely where the complaint is insufficient (2-615)

A 735 ILCS 5/2-615 motion arguing the complaint is substantially insufficient in law must specify wherein the pleading is insufficient. A general assertion that the complaint fails to state a claim is not enough; the motion must point out specifically the defects complained of.

Attach an affidavit when the 2-619 ground is not on the face of the complaint

Under 735 ILCS 5/2-619(a), if the grounds do not appear on the face of the pleading attacked, the motion must be supported by affidavit. Caption and document format follow Ill. Sup. Ct. R. 131, and the motion must be signed under Ill. Sup. Ct. R. 137.

Check the local circuit rules for briefing length and motion-call procedure

No statewide page limit or mandatory supporting-memorandum length for a 2-615 or 2-619 motion appears in the Illinois Supreme Court Rules; briefing format and any meet-and-confer or motion-call procedure are set by local circuit rule and vary by county, so check the local rules of the county where you file.

File in the Circuit Court named in the summons and e-file

File in the Circuit Court of the county named in the summons, in the Law or Municipal Division depending on county and amount in controversy. Illinois trial courts of general jurisdiction are the Circuit Courts. E-filing is mandatory for civil cases under Ill. Sup. Ct. R. 9(a) unless an exemption applies, and you must serve a copy on all parties of record.

Frequently Asked Questions

File a written motion to dismiss in the Circuit Court of the county named in the summons, in lieu of an answer. Bring it under 735 ILCS 5/2-615 for pleading defects, under 735 ILCS 5/2-619 for an enumerated affirmative matter, or as a combined motion under 735 ILCS 5/2-619.1 with each part separately labeled. A 2-619 motion needs a supporting affidavit when the ground is not on the face of the complaint. E-filing is mandatory for civil cases under Ill. Sup. Ct. R. 9(a).

The motion is filed in lieu of an answer within the same appearance window the answer would use. For a general civil complaint that is 30 calendar days from service. Under Ill. Sup. Ct. R. 181(a), when the summons requires appearance within 30 days, the defendant may appear by filing a motion within that 30-day period, and a 735 ILCS 5/2-619 motion must be filed within the time for pleading. Missing the window risks a default judgment.

A 735 ILCS 5/2-615 motion argues the complaint is substantially insufficient in law, including failure to state a cause of action. A 735 ILCS 5/2-619 motion raises one of nine affirmative matters: lack of subject-matter jurisdiction, no legal capacity to sue or be sued, another action pending, a prior judgment, the statute of limitations, release or discharge in bankruptcy, the Statute of Frauds, minority or disability, or other affirmative matter that defeats the claim.

Illinois statewide law does not require a meet-and-confer before filing a motion to dismiss. No such precondition appears in the Code of Civil Procedure sections governing these motions or in the Illinois Supreme Court Rules. Some circuits set their own motion-call and scheduling procedures, so check the local rules of the county where the case is filed before noticing the motion for hearing.

If the court denies the motion, the case continues and the defendant must plead. Because a 735 ILCS 5/2-619 motion is filed within the time for pleading, the Code sets no automatic separate answer clock after denial, so the time to answer is set by the court and local circuit practice. A defendant who needs more time to answer after a ruling should request leave from the court.

File in the Circuit Court of the county named in the summons. Illinois trial courts of general jurisdiction are the Circuit Courts, and the matter sits in the Law or Municipal Division depending on the county and the amount in controversy. E-filing is mandatory for civil cases under Ill. Sup. Ct. R. 9(a) unless an exemption applies.