Motions to Dismiss Where The Same Parties Are (Already) Litigating In Another Forum

In Hergan v. Pawlan Law, LLC (2013 IL App 1st) 113812-U, the First District applies the “same parties, same cause” motion to dismiss rule.

The plaintiff sued defendant and her lawyer based on fraudulent statements made in connection with various loan transactions stemming from a realty investment contract. There were some four (4) other lawsuits pending at the time plaintiff sued.  The Court granted the defendants’ 2-619(a)(3) motion based on the multiple pending cases involving the litigants.

Illinois Code Section 2-619(a)(3) governs dismissal of a complaint where there is “another action pending between the same parties for the same cause.” 735 ILCS 5/2-619(a)(3).  This section is a procedural device aimed at avoiding duplicative litigation. It applies where there is a pending case involving the same parties for the same cause.

The “same parties” requirement doesn’t require that the parties be identical; all that’s required is that the litigants’ interests be sufficiently similar. The 2-619(a)(3) movant demonstrate by clear and convincing evidence that the two (or more) actions stem from the same underlying transaction and involve parties whose interests are substantially aligned. ¶¶ 26-27.

The test is whether the different actions stem from the same underlying transaction; not whether the specific legal theories or causes of action are the same. So, if in the prior case, the complaint sounds in breach of contract and in the later filed case, the complaint seeks rescission, the second case can still be dismissed if it derives from the same underlying facts.

Once the movant establishes that the same parties and same cause are involved in two (or more) separate suits, the Court examines four factors: (1) comity (giving respect to another forum’s decisions); (2) preventing multiplicity, vexation and harassment; (3) the likelihood of obtaining complete relief in another forum; and (4) the res judicata effect of a foreign judgment on the local forum.

The Court doesn’t have to weigh all four factors; just the one(s) applicable to a given case.  Here, the only factor that applied was the “multiplicity” one. Clearly, the five pending suits involved the same parties and the same transaction: the loans and investment contract. As a result, there was clear multiplicity among the various actions involving the parties. The other factors didn’t apply because all five suits were pending in the same forum – the Cook County Circuit Court. ¶¶ 29, 33-36.


Hergan provides a cogent summary of the elements that a 2-619(a)(3) movant must establish when trying to dismiss an action based on a pending suit involving the same parties and same cause;

The case demonstrates that where multiple suits are filed involving common litigants, principles of judicial economy and efficiency will weigh in favor of dismissing repetitive actions and instead consolidating them into already pending cases.