Appeal from the Circuit Court of Cook County. No. 99 L. 007779 Honorable Diane Larsen, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Hall
The plaintiff, Overnite Transportation Company (Overnite) filed a complaint seeking damages for trespass, tortious interference with existing and prospective business relationships and civil conspiracy against the defendants, the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, Teamsters Local Union Numbers 41, 120, 135, 414, 705, 710, 714 and 781, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, certain named officers and agents and unknown individuals. The circuit court dismissed the suit pursuant to section 2-619(a)(3) of the Code of Civil Procedure (the Code) (735 ILCS 5/2-619(a)(3) (West 1998)). Overnite filed this timely appeal.
After the briefs were filed in this case, the defendant-appellees filed a motion requesting oral argument which we ordered taken with the case. Subsequently, this court allowed oral argument in this case. We therefore strike the motion requesting oral argument as moot. We now turn to the merits of this appeal.
On July 14, 1999, Overnite filed the instant complaint against the defendants in the circuit court of Cook County. It is not disputed that, prior to filing the complaint, on June 15, 1999, Overnite filed an unfair labor practice charge with the National Labor Relations Board (NLRB) based upon the same facts that it set forth in the complaint filed in this case. Other factual allegations pertinent to our review are taken from the complaint and are set forth below.
Overnite is a common carrier engaged in the interstate transportation of freight and maintains a freight service center in Bedford Park, Illinois. Beginning in the fall of 1994, the defendants engaged in efforts to organize Overnite's freight-handling employees and to gain collective bargaining agreements for various separate units of Overnite's employees. Sometime prior to June 14, 1999, the defendants conspired to commit various tortious and criminal acts against Overnite and its employees to force them to accept union representation and a Teamster contract. On June 15, 1999, the defendants, some armed with axe handles disguised as picketing posters, arrived at Overnight's Bedford Park facility, where they forced their way into the facility, injured security persons and marched around the facility making obscene gestures and shouting obscenities and threats at Overnite employees who refused to support them. After some 20 to 30 minutes, the defendants left the facility but threatened to return and repeat their unlawful acts unless Overnite and its employees capitulated to their demands.
The defendants filed a motion to dismiss Overnite's complaint. Specifically, the defendants alleged that the complaint should be dismissed pursuant to section 2-619(a)(3) of the Code, which provides as follows:
"(a) Defendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds. ***
(3) That there is another action pending between the same parties for the same cause." 735 ILCS 5/2-619(a)(3) (West 1998).
The sole issue on appeal is whether the circuit court erred in dismissing Overnite's complaint pursuant to section 2-619(a)(3).
Generally, a court of review applies a de novo standard to a motion to dismiss because the motion does not require the trial court to weigh facts or determine credibility. Hapag-Lloyd (America), Inc. v. Home Insurance Co., 312 Ill. App. 3d 1087, 1090, 729 N.E.2d 36, 39 (2000). However, when such a motion to dismiss is inherently procedural, such as a section 2-619(a)(3) motion seeking dismissal because another action is pending between the parties or the same cause, the motion urges the trial court to weigh several factors to determine if it is appropriate for the action to proceed. Hapag-Lloyd, 312 Ill. App. 3d at 1090, 1096, 729 N.E.2d at 39, 43. Where the trial court has weighed the factors in determining whether to grant a dismissal or stay of the proceedings, the trial court's decision is reviewed under an abuse of discretion standard. See Hapag-Lloyd, 312 Ill. App. 3d at 1090-91, 729 N.E.2d at 39.
The record in this case reveals that the circuit court based its decision on the factors it believed that it was required to consider. Therefore, we will review the circuit court's decision under the abuse of discretion standard. *fn1
Section 2-619(a)(3) is designed to avoid duplicative litigation and is to be applied to carry out that purpose. Kellerman v. MCI Telecommunications Corp., 112 Ill. 2d 428, 447, 493 N.E.2d 1045, 1053 (1986). Pursuant to section 2-619(a)(3), the defendant may move for a dismissal or stay of the action. Kellerman, 112 Ill. 2d at 447, 493 N.E.2d at 1053. It is the burden of every section 2-619(a)(3) movant to demonstrate through clear and convincing evidence that the two actions involve both the same parties and the same cause. Hapag-Lloyd, 312 Ill. App. 3d at 1091, 729 N.E.2d at 40.
Overnite begins by contending that the NLRB proceeding is not an "action" within the meaning of section 2-619(a)(3). Previous cases have not addressed this precise issue. In fact, the Illinois Supreme Court has specifically declined to decide whether a proceeding before an administrative tribunal with the power to issue a final, binding and enforceable decision constitutes an "action" within the meaning of section 2-619(a)(3). Tumminaro v. Tumminaro, 198 Ill. App. 3d 686, 692, 556 N.E.2d 293, 297 (1990); see Ransom v. Marrese, 122 Ill. 2d 518, 530-31, 524 N.E.2d 555, 561 (1988).
In Ransom, our supreme court held that a proceeding before a medical review board did not qualify as a judicial proceeding, i.e., its members were not judicial officers, no hearing or trial was conducted, and it did not render a decision or ...