Tuesday, December 12, 2006

Let's talk about pleadings: Skipping straight to a §2-619 motion may waive a party's right to challenge the sufficiency of a complaint under §2-615

A new case, Cordts v. Chicago Tribune, tackles some pretty thorny and important privacy issues, particularly one's right not to have personal treatment information disclosed under the Mental Health and Developmental Disabilities Confidentiality Act, 740 ILCS 110/1 et seq., but this essay will not address those issues except as they relate to the pleadings issue I do want to discuss.

Michael Cordts was a Tribune employee who made a short term diability claim. The newspaper used Medeval Corporation to evaluate the merits of such claims. In his suit against his employer and Medeval, Cordts alleged that Medeval learned about his treatment for depression in the course of its investigation... and that a Medeval employee disclosed that treatment to Cordts' ex-wife.

Cordts hadn't mentioned this treatment to his ex-wife and he had no intention of doing so. His Complaint against the Tribune and Medeval had four counts. Counts I and III alleged defamation. According to the Defendants, Counts II and IV attempted to state a claim under the common law invasion of privacy. The Defendants filed a §2-615 motion to dismiss the defamation counts. Their motion to dismiss Counts II and IV was brought solely under §2-619.

And that's where the Defendants went fatally off course.

The trial court dismissed the entired case, but Cordts elected to appeal the dismissal of only Counts II and IV.

In Storm & Associates, Ltd. v. Cuculich, 298 Ill.App.3d 1040, 700 N.E.2d 202, 206 (1st Dist. 1998), the Appellate Court explained the difference between §2-615 and §2-6159 motions: "A section 2-615 motion attacks the sufficiency of a complaint and raises the question of whether it states a cause of action upon which relief can be granted." The Storm court goes on to point out that, in deciding a §2-615 motion, "the court may only consider the facts apparent from the face of the complaint, matters of which the court may take judicial notice, and judicial admissions in the record. Mt. Zion State Bank & Trust v. Consolidated Communications, Inc., 169 Ill.2d 110, 115, 660 N.E.2d 863 (1995)." That means that a court can usually only consider what is within the 'four corners' of a pleading in deciding a §2-615 motion.

A motion brought under §2-619 is different. For one thing, a court can consider affidavits or other material competent under Supreme Court Rule 191 in deciding such a motion. Also, as the Storm court points out (700 N.E.2d at 206), "A section 2-619 motion raises certain defects or defenses and poses the question of whether the defendant is entitled to judgment as a matter of law."

Most importantly, however, a §2-619 motion, like a summary judgment motion, "admits the legal sufficiency of a complaint." Joseph v. Collis, 272 Ill.App.3d 200, 649 N.E.2d 964, 969 (1st Dist. 1995). In this sense, the §2-615 and §2-619 motions are contradictory: The 2-615 motion admits well-pleaded allegations, but denies that these allegations together state any cause of action; the 2-619 motion admits that the allegations of the complaint state a cause of action which, if proved, would be successful but for some affirmative matter which defeats the claim.

In the Cordts case, the Defendants had a strategic reason to bring their motion under §2-619: They wanted to use matter outside the four corners of the pleading. Justice Joseph Gordon, writing for a unanimous panel, explained (slip op. at p. 9):
[T]o state a common law claim for invasion of privacy through public disclosure of private facts, a plaintiff must plead that: "(1) publicity was given to the disclosure of private facts; (2) the facts were private, and not public, facts; and (3) the matter made public was such as to be highly offensive to a reasonable person." [Citations omitted.] * * * Generally, to satisfy the publicity element of the tort, a plaintiff must show that the information was disclosed to the public at large; however, the publicity requirement may be satisfied where a disclosure is made to a small number of people who have a "special relationship" with the plaintiff.
Even the Defendants were obliged to concede that the plaintiff's ex-wife was a person with whom the plaintiff had a "special relationship." Getting back to Justice Gordon's opinion (slip op. pp. 10-11):
[D]efendants contend by way of affirmative defense that the disclosure was, nevertheless, excusable because Kathleen had a "natural and proper interest" in the information. Specifically, defendants contend that Kathleen had a right to know the information because Cordts was responsible for helping support their child pursuant to the couple's marital settlement agreement and his mental condition could potentially hinder his ability to meet his obligations, financially and otherwise. Under prevailing law, the "special relationship" exception to the requirement that the disclosure be made to the general public will not apply where the person in the "special relationship" with the plaintiff has a "natural and proper interest" in the information disclosed. [Citations omitted.] We note, however, that although a person in a "special relationship" with a plaintiff is more likely than others to have a "natural and proper interest" in the plaintiff's private information by virtue of that "special relationship," the existence of a "special relationship" does not necessarily create a "natural and proper interest."
The Appellate Court concluded (slip op. at p. 13-14):
[W]e would have to agree with defendants that an ex-wife would have a natural and proper interest in learning about any debilitating condition suffered by her ex-husband that could impact his ability to maintain support of the their children. In this case, no one disputes that Cordts was liable to provide support to his daughter and that if he ceased to be able to support her, that obligation would fall solely to Kathleen, the child's mother. * * * Cordts, by his claim, tacitly concedes that his mental condition was such that a disability claim was appropriate. Therefore, in the absence of any other information tending to minimize the potential effect of his condition, we conclude that the fact that Cordts sought disability benefits was sufficient to indicate that his condition could have potentially impacted his ability to support his daughter and, thereby, could have harmed his ex-wife, Kathleen. Consequently, we cannot disagree with the circuit court's determination that the common law action should be dismissed pursuant to section 2-619.
And if the Appellate Court had agreed with the Defendants that this was all Plaintiff was attempting to plead in Counts II and IV, it would have affirmed the trial court.

But the Appellate Court did not agree.

The court quoted this allegation from Cordt's complaint (slip op. at pp. 2-3):
[Defendants] owed a duty of care to [Cordts] so as not to unreasonably give publicity to the private life of [Cordts] and additionally owed a duty of care to [Cordts] under 740 ILCS 110/3, commonly known as the Mental Health and Developmental Disabilities Confidentiality Act and also under the Defendant Tribune's own privacy policies.
The Appellate Court found (slip op. at 16-17) that this allegation was sufficient to raise a claim -- to put Defendants on notice of a claim -- founded on the Confidentiality Act.

While Cordts' Complaint was "formally defective" because it 'intermingled' the Confidentiality Act claim with the common law invasion of privacy claim, this claim was not "dismissible on that basis" because "neither defendants nor the circuit court ever challenged the sufficiency of Cordts's allegations under the Confidentiality Act." (Slip op. at 17.)

In support of this conclusion, the Appellate Court cited §§2-612(a) & (c)of the Code of Civil Procedure (slip op. at p. 17):
  • "If any pleading is insufficient in substance or form the court may order a fuller or more particular statement. If the pleadings do not sufficiently define the issues the court may order other pleadings."
  • "All defects in pleadings, either in form or substance, not objected to in the trial court are waived"
and this provision of §2-615:
  • "All objections to pleadings shall be raised by motion. The motion shall point out specifically the defects complained of, and shall ask for appropriate relief, such as *** that a pleading be made more definite and certain in a specified *** manner".
I've been waiting a long time for this case. I've been saying for years that -- since a §2-619 motion admits the legal sufficiency of a complaint -- filing such a motion waives a later motion under §2-615. How can you first argue that a complaint states a claim but for some affirmative matter -- and then say, nope, it doesn't state a claim after all? Cordts comes as close as any I've found to standing for this proposition.

Can anyone point me to a better example?