The following article was featured in the July 2016, vol. 61, no. 1 issue of Trial Briefs, the newsletter of the ISBA’s Section on Civil Practice & Procedure.
When an attorney is faced with the challenge of responding to a 2-619 motion to dismiss or motion for summary judgment, he or she may want a continuance to conduct additional discovery in order to adequately respond to such a motion. Illinois Supreme Court Rule 191 (b) governs this situation, as follows:
(b) When Material Facts Are Not Obtainable by Affidavit. If the affidavit of either party contains a statement that any of the material facts which ought to appear in the affidavit are known only to persons whose affidavits affiant is unable to procure by reason of hostility or otherwise, naming the persons and showing why their affidavits cannot be procured and what affiant believes they would testify to if sworn, with his reasons for his belief, the court may make any order that may be just, either granting or refusing the motion, or granting a continuance to permit affidavits to be obtained, or for submitting interrogatories to or taking the depositions of any of the persons so named, or for producing documents in the possession of those persons or furnishing sworn copies thereof. The interrogatories and sworn answers thereto, depositions so taken, and sworn copies of documents so furnished, shall be considered with the affidavits in passing upon the motion.
To comply with Rule 191 (b), an affidavit must contain: (1) a statement that material facts are unavailable due to hostility or otherwise; (2) the names of the people the affiant wants to depose; (3) a showing as to why affidavits could not be procured from those people; (4) a statement as to the expected testimony from those people; (5) the basis for the affiant’s belief that those persons will so testify; and (6) the affiant should be a party to the action. Koukoulomatis by Koukoulomatis v. Disco Wheels, Inc., 127 III.App.3d 95, 99 (1st Dist, 1984 ). Statements made on information and belief (Beattie v. Lindelof, 262 III.App.3d 372, 382 (1st Dist. 1994)) or which are conclusory are inadmissible. Smith v. United Farm Mut. Reinsurance, 249 Ill. App.3d 686, 188 (5th Dist. 1993).
One often overlooked issue is whether the party must sign the affidavit, as opposed to the party’s attorney. Attorneys frequently sign the affidavit because they are the ones most likely to know what additional discovery is needed. Nonetheless, because the plain language of the statute refers to affidavits of a “party,” some courts have held that the affidavit is “fatally defective” if not signed by the party. See Crichton v. Golden Rule Ins. Co., 358 III.App.3d 1137, 1151 (5th Dist. 2005).
The consequences of not supporting a motion for a continuance to conduct additional discovery with an affidavit that complies with Rule 191 (b) are severe. Specifically, if a party does not file a Rule 191 (b) affidavit to support the motion, it forfeits any argument on appeal that additional discovery was needed and that dismissal or summary judgment was therefore premature. The Department of Financial and Professional Regulation v. Walgreen Company, 2012 IL App (2d} 110452, 1121.
There is at least one notable but somewhat obscure exception to Rule 191 (b) compliance, which may occur in the context of a summary judgment motion. In what is generally called a “Celotex motion,” named after Celotex Corp. v. Catrett, 477 U.S. 317 (1986), instead of setting forth affirmative and uncontroverted evidence that entitles the movant to judgment as a matter of law, the movant simply argues that there is an absence of evidence that would allow plaintiff to prove its case at trial. Illinois courts have held that a plaintiff should not be required to comply with Rule 191 (b) when a defendant files a “premature” Celotex motion. “Although a plaintiff must comply with Rule 191 (b) when a defendant has affirmatively shown that it is entitled to judgment, it is quite another matter to require such compliance when defendant, at an early stage, merely suggests that plaintiff is unable to prove his case. At that time, a plaintiff may not know what the witnesses will testify to before discovery is taken and accordingly be unable to comply with Rule 191 (b). Rule 191 (b) was adopted before Celotextype motions were widely used and was never intended to apply to them.” Williams v. Covenant Medical Center, 316 III.App.3d 682, 692 (4th Dist. 2000).
The short takeaway from the foregoing is that, when in doubt, seek a continuance supported by an affidavit, signed by your client, that complies with Rule 191 (b). Failure to do so will likely constitute a waiver of any subsequent argument that dismissal or summary judgment was premature.