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12/15/95 RAYMOND B. DOUTT v. FORD MOTOR COMPANY

December 15, 1995

RAYMOND B. DOUTT, EILEEN H. THOUBBORON, ESTATE OF WILLIAM W. BUCKINGHAM, ROBERT C. MCINTYRE, RONALD P. DAWLEY, MARTHA D. MEIDINGER, DONALD D. CAPODANNO, FLOYD E. FLOOD, WILLIAM A. AND CLARA E. COLLINS, JAMES B. GILBERT, FOSTER A. GUFFEY, PETER J. BENEDETTI, HORACE T. AND ELIZABETH M. SULLIVAN, ROY V. BARKER, AND MARCHILENA ELECTRIC COMPANY, FOR THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS,
v.
FORD MOTOR COMPANY, DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE DOROTHY K. KINNAIRD, JUDGE PRESIDING.

Presiding Justice McNAMARA delivered the opinion of the court: Egan and Rakowski, JJ., concur.

The opinion of the court was delivered by: Mcnamara

PRESIDING JUSTICE McNAMARA delivered the opinion of the court:

Plaintiffs appeal the dismissal of their complaint proposing a nationwide class action against defendant Ford Motor Company. The complaint sought relief for 17 named plaintiffs and all others similarly situated for damages and injuries allegedly caused by certain defective Ford vehicles manufactured during the 1976-1979 model years. The trial court granted Ford's motion to dismiss the complaint on the basis that the action would be duplicative of litigation already pending. We affirm.

As evidenced by the ages of the Ford vehicles sued upon, this action has a long history. Prior to the complaint at issue here, four proposed nationwide class actions had already been filed by plaintiffs' counsel concerning Ford vehicles manufactured from 1976 through 1979. The four previous actions are: (1) Walsh v. Ford Motor Co., No. 81-1998 (D.D.C., filed August 21, 1981); (2) Thoubboron v. Ford Motor Co., No. 91-CA-01642 (D.C. Super. Ct., filed February 6, 1991); (3) Doutt v. Ford Motor Co., No. 212 (Pa. C.P. Phila. Co., filed April 1, 1991) (Doutt I); and (4) Portwood v. Ford Motor Co., No. 91 CH 4442 (Ill. Cir. Ct. Cook Co., filed May 14, 1991). At the time the trial court dismissed this complaint (Doutt II), Walsh and Thoubboron had been resolved, but Doutt I and Portwood were still pending. We will briefly set forth the procedural posture of each of these four cases before turning to Doutt II.

Walsh v. Ford Motor Co. was filed in the United States District Court for the District of Columbia in 1981. The Walsh complaint named approximately 200 plaintiffs, including the 17 named plaintiffs-appellants in the present case. Generally, the complaint alleged injuries and property damage occurring when plaintiffs' vehicles would suddenly "jump out of park" or shift from park to reverse. After nine years of litigation in the Federal system, the district court denied class certification and dismissed Walsh. ( Walsh v. Ford Motor Co. (D.D.C. 1990), 130 F.R.D. 260.) In October 1991, the D.C. Circuit dismissed an appeal of the district court's decision on jurisdictional grounds. Walsh v. Ford Motor Co. (D.C. Cir. 1991), 292 U.S. App. D.C. 32, 945 F.2d 1188.

In February 1991, Thoubboron v. Ford Motor Co. was filed in the superior court of the District of Columbia. The Thoubboron complaint named 34 plaintiffs, including 16 of the 17 plaintiffs-appellants in the present case. Ford moved to dismiss the action on statute of limitations grounds. Plaintiffs opposed Ford's motion and also filed a motion for voluntary dismissal. While these motions were pending, Doutt I was filed in Pennsylvania and Portwood was filed in Illinois. In September 1991, the trial court in Thoubboron granted Ford's motion to dismiss, but that judgment was vacated on appeal. ( Thoubboron v. Ford Motor Co. (D.C. 1993), 624 A.2d 1210.) Thereafter, in January 1994, the Thoubboron trial court granted plaintiffs' motion for voluntary dismissal without prejudice.

Doutt I was filed in Pennsylvania in April 1991 during the pendency of Ford's motion to dismiss Thoubboron. The Doutt I complaint named 35 plaintiffs -- the 34 Thoubboron plaintiffs and Raymond B. Doutt. All 17 plaintiffs-appellants in the present case were named in Doutt I.

Portwood v. Ford Motor Co. was filed in May 1991 in the circuit court of Cook County in Illinois. The Portwood complaint named 52 plaintiffs, including 18 of the 35 Doutt I plaintiffs. The remaining 17 Doutt I plaintiffs were not named in Portwood, but as we will explain, they are the 17 plaintiffs-appellants before this court.

In June 1991, Doutt I was stayed pending the final resolution of Walsh and Thoubboron. After the resolution of those two cases, Ford moved to lift the stay of Doutt I in May 1994. The Doutt I plaintiffs then moved to continue the stay pending developments in Portwood, whose plaintiffs were appealing a stay of that action. In the alternative, plaintiffs moved to voluntarily dismiss all claims in Doutt I except for Mr. Doutt's. The Pennsylvania court elected to continue the Doutt I stay.

On May 3, 1994, the Doutt II complaint, directly at issue here, was filed in the circuit court of Cook County. This complaint named the 17 Doutt I plaintiffs who had not been named in Portwood. The Doutt II complaint was filed while Doutt I was stayed in Pennsylvania and while the Portwood stay was on appeal. Plaintiffs filed the complaint after the trial court denied their motion to intervene into Portwood for lack of jurisdiction over Portwood. On August 30, 1994, the trial court granted Ford's motion to dismiss the present complaint on the basis that duplicative actions, Doutt I and Portwood, were already pending. In dismissing the complaint, the trial court characterized the circumstances as an obvious case of forum shopping.

On September 9, 1994, the Doutt I plaintiffs moved to voluntarily dismiss all claims in Pennsylvania, including Mr. Doutt's, but the court again continued the stay of that action. In May 1995, the stay was lifted and the Pennsylvania court dismissed Doutt I at plaintiffs' request. In June 1995, this court released an unpublished Rule 23 order reversing the Portwood stay and remanding the matter for further proceedings. (Portwood v. Ford Motor Co. (1st Dist. 1995), No. 1-92-2098 (unpublished order under Supreme Court Rule 23).) Plaintiffs now appeal the trial court's August 30, 1994, order which dismissed the Doutt II complaint as duplicative of Doutt I and Portwood.

Under section 2-619(a)(3) of the Illinois Code of Civil Procedure, a defendant may seek dismissal of an action on the grounds "that there is another action pending between the same parties for the same cause." (735 ILCS 5/2-619(a)(3) (West 1992).) The purpose of this section is to further judicial economy by avoiding duplicative litigation. ( Forsberg v. City of Chicago (1986) 151 Ill. App. 3d 354, 502 N.E.2d 283, 104 Ill. Dec. 20.) Multiple actions involve the "same cause" within the meaning of section 2-619(a)(3) when relief is requested on substantially the same set of facts. ( Katherine M. v. Ryder (1993), 254 Ill. App. 3d 479, 627 N.E.2d 42, 193 Ill. Dec. 883.) The "same parties" requirement of section 2-619(a)(3) is met where the litigants' interests are sufficiently similar, even though the litigants differ in name or number. Skipper Marine Electronics, Inc. v. Cybernet Marine Products (1990), 200 Ill. App. 3d 692, 558 N.E.2d 324, 146 Ill. Dec. 361.

Determination of whether a section 2-619(a)(3) motion to dismiss should be granted is within the discretion of the trial court and will not be disturbed absent abuse of that discretion. ( Katherine M., 254 Ill. App. 3d 479, 627 N.E.2d 42, 193 Ill. Dec. 883; Terracom Development Group, Inc. v. Village of Westhaven (1991), 209 Ill. App. 3d 758, 568 N.E.2d 376, 154 Ill. Dec. 376.) In exercising its discretion, the trial court is to weigh the prejudice that would result to the nonmovant if the motion is granted against the ...


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