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

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SIXTH DIVISION


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 policy of avoiding duplicative litigation. Arthur Young & Co. v. Bremer (1990), 197 Ill. App. 3d 30, 554 N.E.2d 671, 143 Ill. Dec. 736.

Plaintiffs contend that there is no risk of duplicative litigation now that Doutt I has been voluntarily dismissed and the Portwood stay has been lifted. Thus, plaintiffs urge, this court should reverse the trial court's dismissal of Doutt II and remand it so that Portwood and Doutt II can be consolidated. Plaintiffs state that because Doutt I was stayed and the trial court was aware of plaintiffs' intentions to voluntarily dismiss Doutt I once the stay was lifted, the trial court abused its discretion in dismissing Doutt II. Otherwise, plaintiffs only point to the current circumstances, with Doutt I dismissed as of May 1995 and the Portwood stay lifted as of June 1995, in trying to convince us to reverse the trial court's dismissal of Doutt II.

In Arthur Young & Co. v. Bremer, this court reiterated the importance of deferring to a trial court's reasoning in reviewing a section 2-619(a)(3) dismissal. In Arthur Young, the trial court dismissed a complaint it considered duplicative of an action already pending in California. On appeal, the plaintiffs urged the court to follow A.E. Staley Manufacturing Co. v. Swift & Co. (1980), 84 Ill. 2d 245, 419 N.E.2d 23, 50 Ill. Dec. 156, where the supreme court found that the trial court had acted as if it had no discretion and failed to conduct a proper analysis when it dismissed a complaint as duplicative. The A.E. Staley court consequently had no conclusions to defer to and conducted a de novo review. ( A.E. Staley, 84 Ill. 2d 245, 419 N.E.2d 23, 50 Ill. Dec. 156.) The Arthur Young court, however, found itself in an entirely different situation, stating that "the trial court here conducted a thorough analysis of the propriety of granting defendants' section 2-619(a)(3) motion." ( Arthur Young, 197 Ill. App. 3d at 48, 554 N.E.2d at 683.) The Arthur Young court found that the trial court carefully considered all the relevant factors in granting the motion and thus the court found no abuse of discretion. Arthur Young, 197 Ill. App. 3d 30, 554 N.E.2d 671, 143 Ill. Dec. 736.

Likewise, we refuse to ignore the trial court's reasoning here. The report of proceedings manifests the trial court's careful analysis of the situation and its efforts to take into consideration the present and future implications of dismissing Doutt II. At the time the trial judge dismissed Doutt II on August 30, 1994, Doutt I was stayed in Pennsylvania at plaintiffs' request. The 17 plaintiffs in Doutt II were the same 17 plaintiffs in Doutt I. As the trial court stated:

"Your 17 people in this case are also class members in the other cases, and the complaints are identical, and the relief sought is identical, and the underlying facts are identical."

In trying to dissuade the trial judge from dismissing Doutt II, plaintiffs informed the court of their intentions to voluntarily dismiss Doutt I. Plaintiffs' counsel told the trial judge that he expected the Pennsylvania court to find Doutt I time-barred. Thus, plaintiffs planned to voluntarily dismiss Doutt I and to consolidate Doutt II with Portwood once the Portwood stay was lifted. Aware of plaintiffs' strategy, the trial court described it as an obvious case of forum shopping. The trial judge then dismissed Doutt II under section 2-619(a)(3).

As in Arthur Young, we find no abuse of discretion in the trial court's reasoning. At the time of the ruling, Doutt I was still pending in Pennsylvania, where the same 17 plaintiffs were alleging the same cause of action. Also, the court anticipated the possibility of the circumstances we have here, with Doutt I dismissed and the Portwood stay lifted, and the court recognized that there would still be grounds to dismiss under section 2-619(a)(3). The trial judge realized that plaintiffs would qualify as absent class members of Portwood, which is now in active litigation in Illinois. Thus, the record here shows that the trial court carefully analyzed the circumstances and exercised its discretion to avoid a multiplicity of actions. Absent abuse of that discretion, we refuse to disturb the court's ruling.

Finally, we disagree with plaintiffs that this court's reversal of the Portwood stay compels reversal of the trial court's dismissal of Doutt II. Portwood was stayed because Walsh, Thoubboron, and Doutt I were pending in other jurisdictions. As of June 1995, when the third division of this court lifted the stay, all three of those actions had been resolved. Furthermore, the Portwood court indicated that continuing the stay would prejudice some of the plaintiffs who had never filed individual actions elsewhere. Portwood (1st Dist. 1995), No. 1-92-2098 (unpublished order under Supreme Court Rule 23).

On the contrary, all 17 of the Doutt II plaintiffs were named plaintiffs in Walsh and Doutt I. Also, these same 17 individuals chose not to join as named plaintiffs in Portwood in 1991. In effect, they actually avoided the centralization of their individual claims in Illinois which they claim is now their primary goal. Thus, plaintiffs' argument that they will be prejudiced because they have lost their chance to file individual claims is unpersuasive. That is the strategy plaintiffs chose when they voluntarily dismissed their individual claims in Pennsylvania during the pendency of this appeal.

In sum, we find that the trial court did not abuse its discretion in dismissing plaintiffs' complaint. The trial court balanced the interests of both sides and found Doutt II duplicative of actions already pending. We refuse to disturb the court's sound exercise of discretion under section 2-619(a)(3).

For the above reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

EGAN and RAKOWSKI, JJ., concur.

19951215

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