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03/30/95 ELIZABETH SANDER ET AL. v. DOW CHEMICAL

March 30, 1995

ELIZABETH SANDER ET AL., APPELLEES,
v.
DOW CHEMICAL COMPANY ET AL., APPELLANTS.



The Honorable Justice McMORROW delivered the opinion of the court.

The opinion of the court was delivered by: Mcmorrow

JUSTICE McMORROW delivered the opinion of the court:

The issue raised in this appeal is whether Illinois Supreme Court Rule 219(c) (134 Ill. 2d R. 219(c)) authorizes a trial court to dismiss a cause of action with prejudice due to repeated violations of court orders to file amended pleadings and the failure to respond to a discovery-related defense motion, We also determine whether, notwithstanding Rule 219(c), a trial court has the inherent power to dismiss a cause of action with prejudice because of such violations.

Plaintiffs, Elizabeth and James Sander and their two minor children, filed a one-count complaint in the circuit court of Cook County against 26 chemical manufacturing companies (chemical companies) and the Des Plaines park district on February 27, 1990. The complaint alleged injuries caused by plaintiffs' exposure to the products of the chemical companies. According to the complaint, Sander was exposed to these products during the course of his employment as a pesticide applicator for the park district, and his wife and children were exposed to the products as a result of their contact with his body, breath, clothing and automobile. The complaint alleged that as a result of the unreasonably dangerous nature of the products of the chemical companies and the willful and wanton negligence of the park district, Sander and his wife and children suffered injuries and developed sensitivities which caused various health problems.

On December 5, 1991, the trial court dismissed plaintiffs' action with prejudice pursuant to Supreme Court Rule 219(c) for plaintiffs' failure to comply with certain court orders. The court denied plaintiffs' motion to vacate the order dismissing the complaint and plaintiffs appealed. The appellate court reversed the judgment of the trial court, holding that the trial court was without authority to dismiss plaintiffs' action with prejudice for plaintiffs' failure to comply with the court's orders to amend the complaint. (252 Ill. App. 3d 403.) A recitation of the history of this case is necessary to determine whether the trial court properly dismissed plaintiffs' action.

FACTS

Plaintiffs filed their original complaint on February 27, 1990. By agreement of the parties, the court entered an order striking plaintiffs' complaint and allowed plaintiffs leave to file an amended complaint on or before September 7, 1990. On September 7, 1990, plaintiffs filed a motion for leave to file an amended complaint instanter and an accompanying draft of a "First Amended Complaint." The draft of the complaint contained counts alleging products liability, negligence and fraud counts against only the Dow Chemical Company and only on behalf of plaintiff James Sander. The motion for leave to file instanter stated that the first-amended complaint was a "draft" and asserted claims only against Dow Chemical. The motion also sought additional time to "draft additional theories of recovery" and to prepare an amended complaint.

On September 26, 1990, the trial court held a hearing on plaintiffs' motion, and granted plaintiffs 14 additional days to file an amended complaint. During the hearing, the court informed plaintiffs' counsel that plaintiffs could not plead a claim for punitive damages, as was pleaded in count III of the "draft" of the first-amended complaint.

On October 9, 1990, plaintiffs filed a pleading entitled "Part One As To Dow Only Of Multiple Party Defendant Complaint, Entitled As To All Parts, First Amended Complaint, Additional Parts Being Separately Stated And Filed" (hereinafter referred to as the first-amended complaint). This complaint again alleged products liability, negligence and fraud on behalf of James Sander and added counts IV, V, and VI, which repeated the same allegations on behalf of Elizabeth Sander and the two children. The first-amended complaint charged only Dow Chemical and again included a claim for punitive damages. All defendants other than Dow Chemical filed a motion to dismiss for want of prosecution on November 8, 1990. On November 28, 1990, the trial court ordered plaintiffs' complaint as to all defendants except Dow stricken, and ordered that "plaintiffs shall file an amended complaint against said defendants on or before December 5, 1990." The court further struck the charge in the first-amended complaint seeking punitive damages against Dow Chemical.

On December 5, 1990, the plaintiffs filed a pleading entitled "Motion [to] Use Sample Form Complaint for Service on Codefendants Not Named in Counts Being Served ***." The motion requested that the plaintiffs be allowed to serve each defendant with only one copy of the complaint bearing the name of that defendant and its product. Plaintiffs further sought to serve each defendant with one form copy of the same complaint used for every other defendant. The form copy contained blanks on which the names of the other defendants and their respective products were to be inserted, along with a list of the names of the other defendants and their products. Plaintiffs explained in their motion that the purpose of the request was to reduce the excessive cost of "serving a copy of every defendant's complaint on every other defendant." A copy of the proposed form complaint was attached and exceeded 400 pages. The complaint against Dow Chemical contained a claim for punitive damages similar to the claim that the court had previously ordered stricken.

The case was transferred to Judge Michael Gallagher on December 21, 1990. Judge Gallagher ordered a status hearing to be held on January 24, 1991, and further granted plaintiffs leave to file a second-amended complaint on or before January 11, 1991. Plaintiffs' attorney failed to file a second-amended complaint by January 11, 1991, and also failed to appear at the January 24, 1991, hearing. On January 24, 1991, pursuant to the defendants' motion to dismiss, the trial court dismissed plaintiffs' action for want of prosecution. The court stated in its order that the action was dismissed "in light of plaintiff's failure to file a second amended complaint in violation of the court's order of December 21, 1990."

On February 6, 1991, plaintiffs filed a "Motion for Leave to File and Reset for Status," in which plaintiffs asked the court to permit them to file a second-amended complaint instanter. On February 21, 1991, the court held a hearing on plaintiffs' motion. During this hearing, the court asked for an explanation as to why plaintiffs' counsel failed to appear at the January 24 hearing:

"THE COURT: We waited until 1:18 p.m., and you never appeared, or we never heard from you until this motion was filed. I would like some explanation as to what happened.

***

MR. CARLSON [plaintiffs' attorney]: Well, what happened is that there was a failure to diary the date in the office diary ***. It was just simply a lapse of memory. That's all."

Thereupon the court vacated its January 24 order dismissing plaintiffs' action and granted plaintiffs' motion for leave to file a second-amended complaint instanter. The court further ordered defendants to answer plaintiffs' second-amended complaint on or before March 28, 1991, and directed plaintiffs to file responses to all outstanding written discovery requests and to all outstanding requests to admit on or before April 9, 1991. Plaintiffs were ordered to respond to any motions to dismiss filed by the defendants by May 2, 1991. The court scheduled a hearing on May 16, 1991, on any pleading-related motions filed by the defendants.

Plaintiffs filed their second-amended complaint on February 21, 1991. The second-amended complaint contained one products liability count and one negligence count on behalf of James Sander, Elizabeth Sander and the two children against each of the 26 chemical companies. The complaint also contained two counts alleging fraud against Dow Chemical and one count which alleged both negligence and strict liability against the park district on behalf of all four plaintiffs.

On March 28, 1991, all of the defendants collectively filed a motion to dismiss plaintiffs' second-amended complaint for failure to state a cause of action pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1992)). Plaintiffs failed to respond to defendants' discovery requests by April 9, 1991. Consequently, several defendants filed motions to compel discovery. Plaintiffs filed a response to the chemical companies' motion to dismiss on May 3, 1991 (one day later than the deadline set by the court).

At the May 16, 1991, hearing on the defendants' motions to dismiss, the court noted the repeated tardiness of plaintiffs' counsel for court hearings:

"THE COURT: By my watch it is now 1:15 p.m. We've all been waiting for Mr. Carlson to appear. We have not heard word as to whether he is on his way or anything as to his whereabouts.

This is, I believe, the fourth time that this has occurred, including the time when I dismissed the case for want of prosecution ***."

At the hearing on the defendants' motions to dismiss, the trial court dismissed with prejudice all claims of plaintiffs James and Elizabeth Sander against the park district and the strict liability claims of the two children against the park district. The court made the dismissals final and appealable pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). The court further ordered the negligence claims of the two minor children against the park district stricken from the complaint, and struck various other portions of the complaint which affected all 106 counts against the chemical companies. Plaintiffs did not request an order making these rulings final and appealable. The court granted plaintiffs 45 days to file an amended complaint and replead the negligence count against the park district on behalf of the children.

On June 28, 1991, the court granted plaintiffs additional time to file their amended complaint and ordered plaintiffs to file amendments to the complaint by July 15, 1991. The court further ordered plaintiffs to reply to a motion for a protective order filed on behalf of defendant Monsanto Corporation by July 25, 1991. Plaintiffs failed to file either an amended complaint or a response to Monsanto Corporation's motion within the time limit ordered by the court. Instead, on August 2, 1991, plaintiffs filed a motion for leave to file their amended complaint instanter. On August 7, 1991, the court granted plaintiffs leave to file the amended complaint prior to August 12, 1991, and ordered plaintiffs to file the response to Monsanto Corporation's motion by August 22, 1991.

Plaintiffs failed to file either the amended complaint or the response by the August 12 and August 22 deadlines. On August 21, 1991, counsel for defendant Dow Chemical received a letter from plaintiffs dated August 20, 1991, and a copy of a document entitled "Amendment To Complaint Filed On 2/21/91." The letter described the proposed amendment as "a redraft of the first four counts of the complaint against Dow which will serve as a model, subject to various deletions, for most of the remaining defendants." The letter explained that "we are tardy in filing the currently required amended complaint and need a couple of more days to get the entire document on one disk and get it copied for all parties ***. In addition to the burdens of this lawsuit, the burdens of the rest of my practice interfere with the constant demands of this file." Plaintiffs did not file the proposed amended complaint with the court.

On August 27, 1991, Dow Chemical and 13 other defendants filed a motion to dismiss plaintiffs' cause of action with prejudice, based on plaintiffs' failure to comply with the court's orders. Six other defendants filed motions to dismiss which adopted the averments set forth in the motion to dismiss filed by Dow Chemical. On August 29, 1991, plaintiffs filed a motion to file their amended complaint instanter. At a hearing held on September 3, 1991, defendants pointed out that plaintiffs had twice failed to file their amended complaint within the time ordered by the court, and that the amendments plaintiffs tendered to the defendants restated many of the paragraphs and subparagraphs that the court had ordered stricken from the complaint.

Plaintiffs' attorney stated that the reason he included stricken allegations in the amended complaint was to avoid waiving review of the stricken allegations on appeal. The court explained to plaintiffs' attorney that restating the stricken language in the amended complaint was improper. The court denied the defendants' motion to dismiss and ordered plaintiffs to delete the stricken paragraphs and file their third-amended complaint by October 8, 1991. The court ...


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