APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. Nos. 08 L 13460 & 09 L 7560 HONORABLE LEE PRESTON, JUDGE PRESIDING.
The opinion of the court was delivered by: Justice Hoffman
Whittmanhart, Inc., ("Whittmanhart") appeals from an order of the circuit court dismissing its complaint against CA, Inc., ("CA") and Niku, LLC, ("Niku") pursuant to section 2-619(a)(3) of the Code of Civil Procedure ("the Code") (735 ILCS 5/2-619(a)(3) (West 2008)), on the basis that another action was pending between the parties in New York. For the reasons which follow, we reverse and remand the matter back to the circuit court for further proceedings.
On November 12, 2008, CA and its wholly-owned subsidiary, Niku, filed suit against Whittmanhart in the United States District Court for the Eastern District of New York (hereinafter "the federal action"). According to the federal complaint, Whittmanhart and CA entered into an End User License Agreement ("EULA") in March of 2006. The EULA granted Whittmanhart a license for a group of computer software products marketed by CA under the "Clarity" brand name. The EULA also provided that Whittmanhart was entitled to receive professional services from CA pursuant to a Statement of Work ("SOW") to be agreed upon by Whittmanhart and CA on a future date. In June of 2006, CA and Whittmanhart entered into a SOW, whereby CA agreed to assist Whittmanhart in its implementation and development of the Clarity software. In consideration for CA's performance under the SOW, Whittmanhart was to pay CA an agreed-upon hourly rate for the CA employees working on the project, as well as the expenses incurred by those employees. The federal complaint further alleged that, during the course of the project, CA and Niku issued a number of invoices to Whittmanhart for professional services provided under the EULA and the SOW, which remain unpaid. As relief, CA and Niku sought payment of the outstanding invoices, asserting claims for breach of contract and account stated. CA and Niku also sought attorney fees and costs pursuant to a provision of the SOW which allowed the prevailing party in a judicial action to recover the costs and expenses incurred in enforcing its rights under the agreement.
On December 3, 2008, counsel for Whittmanhart informed the district court of its intention to move to dismiss the federal action due to the lack of subject matter jurisdiction. Counsel explained that, because all three parties were citizens of Delaware, federal diversity jurisdiction did not exist.
On December 3, 2008, at 2:01 p.m. Eastern Standard Time, CA and Niku filed an action against Whittmanhart in the Supreme Court of New York in the County of Suffolk (hereinafter "the first New York State action"). That complaint contained essentially the same allegations and claims as those in the federal action. At 4:13 p.m. Eastern Standard Time, CA and Niku voluntary dismissed the federal action.
Later that same day, at 3:55 p.m. Central Standard Time, Whittmanhart filed a three-count complaint against CA and Niku in the Circuit Court of Cook County (hereinafter "the instant action"). According to the complaint filed by Whittmanhart, the terms of the EULA and the SOW required CA to deliver a fully functional Clarity system by December 31, 2006, and required that all invoices were to be issued monthly. In count I, Whittmanhart sought monetary damages based on CA's and Niku's alleged breach of its obligations under the EULA and the SOW by failing to deliver a fully functioning Clarity system by the stipulated date, failing to issue monthly invoices for services rendered, and failing to provide the agreed-upon professional services necessary to integrate the Clarity software with Whittmanhart's operating systems. In count II, Whittmanhart requested a judgment declaring that it had no obligation to pay CA and Niku any additional amounts under the EULA or the SOW. Finally, in count III, Whittmanhart sought to recover the attorney fees and costs it incurred in bringing the instant action.
After Whittmanhart failed to answer the complaint in the first New York State action, CA and Niku moved for a default judgment. In response, Whittmanhart filed a cross-motion to dismiss, arguing, inter alia, that it had not been properly served. On April 15, 2009, Whittmanhart's cross-motion to dismiss the first New York State action was granted based upon a lack of personal jurisdiction. On June 2, 2009, CA and Niku filed a notice of appeal from the dismissal of that action.
On April 17, 2009, CA and Niku commenced another action in the Supreme Court of New York (hereinafter "the second New York State action"), asserting claims identical to those in the first New York State action. Thereafter, on June 25, 2009, Whittmanhart filed a motion to dismiss the second New York State action based upon the pendency of the instant action and on the ground of forum non conveniens. Whittmanhart's motion was subsequently denied as untimely. Whittmanhart then appealed from the denial of its motion to dismiss the second New York State action.
On July 29, 2009, CA and Niku filed a motion to dismiss the instant action pursuant to section 2-619(a)(3) of the Code (735 ILCS 5/2-619(a)(3) (West 2008)), on the basis that there was another action pending between them and Whittmanhart for the same claims in New York State court. On October 14, 2009, the circuit court issued a written memorandum order in which it granted the motion, finding that the instant and New York actions involved the same parties and the same cause; and that the discretionary factors of comity, the prevention of the multiplicity of lawsuits, Whittmanhart's ability to obtain complete relief in New York, and the res judicata effect of the New York action each weighed in favor of dismissal. This appeal followed.
On appeal, Whittmanhart argues that the circuit court abused its discretion in granting CA's and Niku's motion to dismiss. We agree.
Initially, CA and Niku assert that Whittmanhart has voluntarily agreed to litigate in New York State court. In support of their argument, CA and Niku cite to an answer Whittmanhart filed in the second New York State action on November 24, 2009, asserting affirmative defenses and three counterclaims identical to the claims Whittmanhart set forth in its complaint in the instant action. CA and Niku also cite to a notice from Whittmanhart's attorney, dated March 24, 2010, withdrawing its appeal from the denial of its motion to dismiss the second New York State action.
We note that both the answer and the notice to withdraw the appeal are not contained in the record before us, but only appear in the appendix to CA's and Niku's brief. It is well established, however, that the record on appeal cannot be supplemented by attaching documents to the appendix of a brief. McCarty v. Weatherford, 362 Ill. App. 3d 308, 311, 838 N.E.2d 337 (2005); Jones v. Police Board of the City of Chicago, 297 Ill.
App. 3d 922, 930, 697 N.E.2d 876 (1998). Moreover, the answer and notice withdrawing the appeal were filed after the circuit court's dismissal of the instant action on October 14, 2009. Because new evidence not before the circuit court when it rendered its decision cannot be considered by a reviewing court (Kessler v. Zekman, 250 Ill. App. 3d 172, 188-189, 620 N.E.2d 1249 (1993)), it is inappropriate for us to consider either Whittmanhart's answer or notice withdrawing its appeal in the second New York State action.
Generally, motions to dismiss do not require the circuit court to weigh facts or determine the credibility of witnesses, and, therefore, our standard of review is de novo. Overnite Transportation Co. v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, 332 Ill. App. 3d 69, 73, 773 N.E.2d 26 (2002); Miller v. Thomas, 275 Ill. App. 3d 779, 786, 656 N.E.3d 89 (1995). However, a section 2-619(a)(3) motion to dismiss is inherently procedural and urges the circuit court to weigh several factors when deciding whether it is appropriate for the action to proceed. Overnite Transportation Co., 332 Ill. App. 3d at 73; Hapag-Lloyd, Inc. v. Home Insurance Co., 312 Ill. App. 3d 1087, 1090, 729 N.E.2d 36 (2000). Thus, we review the circuit ...