Performance Network Solutions v. Cyberklix
966 N.E.2d 396
Ill. App. Ct.2012Background
- Illinois plaintiffs filed a three-count complaint in Cook County seeking breach of contract, declaratory judgment, and injunctive relief against Cyberklix entities and Menezes.
- Canada’s Ontario court had a prior, related suit against the Illinois plaintiffs based on the same asset sale agreement and noncompetition/confidentiality provisions.
- Ontario court issued a partial judgment and reserved damages, stating service of the Illinois plaintiffs and subject matter jurisdiction, while the Illinois suit was filed after the Canadian action.
- Defendants moved to dismiss under 735 ILCS 5/2-619(a)(3) claiming there was another action pending between the same parties for the same cause in Canada.
- Trial court dismissed, weighing comity, multiplicity, relief in foreign forum, and res judicata considerations, and held the Canadian action had proper service and jurisdiction.
- Appellate court affirmed, holding (i) same parties and same cause satisfied 2-619(a)(3); (ii) Kellerman factors supported dismissal; (iii) service issues in Canada did not defeat the pending-foreign-case doctrine.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 2-619(a)(3) dismissal was proper | Illinois plaintiffs contend no prior action pending due to improper service in Canada | Canadian action involved same parties and same transaction; dismissal appropriate | Yes; dismissal proper under 2-619(a)(3) |
| Whether the Kellerman factors weigh in favor of dismissal | Factors favor allowing Illinois action to proceed to determine rights under Illinois contract | Factors favor comity and avoiding multiplicity by recognizing Canadian proceedings | Yes; Kellerman factors weighed in favor of dismissal |
| Whether service and proceeding in Canada negate 'prior action pending' | No proper service in Canada; no pending action | Canadian court reviewed service and acquired jurisdiction; action pending there | No; service issues did not defeat pending foreign action; prior-action doctrine applicable |
Key Cases Cited
- Kellerman v. MCI Telecommunications Corp., 112 Ill.2d 428 (1986) (four Kellerman factors govern 2-619(a)(3) dismissal)
- Combined Insurance Co. of America v. Certain Underwriters at Lloyd's, London, 356 Ill.App.3d 749 (2005) (section 2-619(a)(3) dismissal is discretionary)
- Hapag-Lloyd (America), Inc. v. Home Insurance Co., 312 Ill.App.3d 1087 (2000) (Kellerman factors and comity considerations)
- Kapoor v. Fujisawa Pharmaceutical Co., 298 Ill.App.3d 780 (1998) (courts should consider Kellerman factors but not mandatory)
- Doutt v. Ford Motor Co., 276 Ill.App.3d 785 (1995) (prejudice to nonmovant weighed among Kellerman factors)
- Arthur Young & Co. v. Bremer, 197 Ill.App.3d 30 (1990) (prejudice/duplication considerations in dismissals)
- Morey Fish Co. v. Rymer Foods, Inc., 158 Ill.2d 179 (1994) ( disfavors attacking judgments from courts lacking jurisdiction)
- In re Marriage of Kohl, 334 Ill.App.3d 867 (2002) (comity reflects deference to foreign jurisdiction)