Attacking the Pleadings

AuthorJennifer Duncan-Brice
Chapter 15
aTTaCking The PLeadings
Definitions: Pleadings may be challenged by several devices before the case progresses to the merits. A defec-
tive pleading may be challenged by means of a motion to strike or to dismiss under 735 ILCS 5/2-615. Or, a
party challenging a pleading may demand a bill of particulars. Motions to dismiss a pleading for enumerated
bases that may or may not appear on the face of the pleading may be filed under 735 ILCS 5/2-619.
Rules and techniques applicable to using the various motions to challenge the complaint and other pleadings.
Grounds for the various devices.
Procedural requirements.
Each device compared with similar motions and pleas.
Tactical considerations.
Strategies and Tactics:
Review the complaint carefully to determine the appropriate devices to attack it.
Decide whether to raise challenges in the answer or a motion.
Prepare to have your motion heard before trial.
Check local rules and the judge’s individual requirements for your motion.
Prepare for hearing.
Statutes and Rules: 735 ILCS 5/2-615; 2-619; 2-619.1; 2-621—2-623; 2-1005. 750 ILCS 36/101 et seq. SCR 137.
Related Topics: Summary Judgment, Ch 30; Motion Practice, Ch 14; Pleadings, Ch 13.
Forms: See digital access for the following forms:
Form 15:10, Motion to Dismiss for Failure to State Claim.
Form 15:20, Motion to Strike.
Form 15:30, Motion to Dismiss Punitive Damages Claim.
Form 15:40, Demand for Bill of Particulars.
Form 15:50, Response to Demand for Particulars.
Form 15:60, Motion to Dismiss: Claim Released.
Form 15:70, Motion to Dismiss: Statute of Frauds.
Form 15:80, Motion to Dismiss: Immune.
Form 15:90, Motion to Dismiss Pursuant to 2-619.1
IllInoIs PretrIal PractIce 15-536
I. Challenging Defective Pleadings (735 ILCS 5/2-615)
A. Nature and Purpose
§15:01 Motion Attacks Defects in Pleadings
§15:02 Relief Available
B. Legal Requirements
§15:10 Bases for Motion
§15:11 Motion Must Be Designated as Such
§15:12 Only Defects Apparent on Face of Pleading
§15:13 No Affidavits
§15:14 Cannot Raise Affirmative Defenses
§15:15 Judicial Notice of Prior Opinion and Judicial Admissions
§15:16 Specificity Required
§15:17 Pleading Liberally Construed
§15:18 Standard
§15:19 Opportunity to Replead
§15:20 Standing on the Pleadings
§15:21 Adjudication on the Merits
§15:22 Appellate Review
C. Procedure
§15:30 Filing and Serving a 2-615 Motion
§15:31 Time to File
§15:32 Defect Waived if Not Challenged
§15:33 Withdraw Answer and File Motion
§15:34 Combining Motions
§15:35 Court’s Own Motion
§15:36 Briefing Schedule
§15:37 No Evidentiary Hearing
§15:38 Request for Relief
§15:39 Interplay Between Motion to Dismiss and Voluntary Non-Suit
D. Motions to Dismiss and to Strike
§15:50 Motion to Dismiss Under 2-615
§15:51 Motion to Strike
§15:52 Allegations of Pleading Taken as True
§15:53 Substantially Insufficient in Law
§15:54 Facts, Not Conclusions
§15:55 Should Discovery Be Permitted Before Dismissal?
§15:56 Examples of Failure to Allege a Cause of Action
§15:57 Waiver of Defect
§15:58 Withdrawal of Answer to Challenge Complaint
§15:59 Court May Dismiss Without Leave to Replead
15-537 attackIng the PleadIngs
§15:60 Court May Permit Amendment
§15:61 2-615 Motion Decided First
§15:62 No Affidavits
§15:70 Claim Subject to Dismissal
§15:71 Examples: Essential Element Missing
§15:72 Separate Counts and Defenses
§15:73 Common Law Fraud
§15:80 In General
§15:81 Party Made Necessary by Statute
§15:82 New or Amended Statute
§15:90 In General
§15:91 Punitive Damages
E. Other Pleading Defects
§15:100 Types of Motions That May Be Used
§15:101 Immaterial Matters
§15:102 Conclusory Allegations
§15:103 Conclusions of Law
§15:104 Allegations Inconsistent With Exhibits
§15:105 Attachments to 2-615 Motion
§15:106 Plain and Concise Statements
§15:107 Separate Counts
§15:108 Complaint Based on Written Instrument
§15:109 Commingling Counts or Defenses
§15:110 More Definite Statement
§15:111 Statutes Without Extraterritorial Effect
F. Judgment on the Pleadings
§15:120 May Be Sought in 2-615 Motion
§15:121 Compared to Summary Judgment
§15:122 Time to File
§15:123 Any Party May File Motion
§15:124 Evaluating Facts
§15:125 Appellate Review
II. Demanding a Bill of Particulars
§15:130 In General
§15:131 Time to File
§15:132 Failure to Answer Bill or Insufficient Answer
§15:133 Responsibility to Bring Failure to Respond to Court’s Attention
§15:134 Improper Demand for Bill
§15:135 Bill May Seek More Than Ultimate Facts
§15:136 Bill Limits Proofs

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT