dissenting:
In reaching its conclusion today, the majority relies for support on unenlightened language from a dated case. In doing so, the majority unnecessarily shackles the discretion of the trial courts to enjoin vexatious suits. Because I feel the issue involved here requires actual analysis rather than mere adherence to an aged precedent, I respectfully dissent.
In the Skyline case, Richard Pfaff filed a complaint against Chrysler seeking to recover for personal injuries sustained while working at Chrysler’s plant. Chrysler filed a third-party complaint against Skyline, Pfaff’s employer, alleging common law indemnity, contractual indemnity, and contribution. The trial court held that Illinois does not recognize actions for common law indemnity. It also held that the contractual indemnity provisions would be governed by Illinois law rather than Michigan law. The court then concluded that the counts based on contractual indemnification were void under Illinois law and dismissed, striking the indemnification counts without prejudice and with leave to amend. Chrysler subsequently filed suit against Skyline in Michigan seeking recovery under the same indemnity provisions. On Skyline’s motion, the trial court issued an order enjoining Chrysler from proceeding with the Michigan action. On appeal, the appellate court reversed finding that to justify enjoining Chrysler, a clear equity must be presented, requiring the interposition of the court to prevent manifest wrong and injustice.
In the Daiwa Bank appeal, Daiwa originally filed a mortgage foreclosure action against the defendants alleging, inter alia, that the defendants had breached express representations in the loan agreement and guarantee that there were no actions or suits pending against them which might adversely affect its financial condition or its ability to perform its obligation to Daiwa. Defendants then filed an action in Texas against Daiwa based upon breach of fiduciary duty, breach of good faith, and duress arising from the same transaction. Daiwa responded by filing a motion to enjoin defendants from proceeding against Daiwa in the Texas suit. The trial court entered an order enjoining the defendants from proceeding against Daiwa in the Texas suit or in any other suit involving the same subject matter. On appeal, the appellate court panel found that the proper standard in determining whether to enjoin a party from proceeding with a foreign action, regardless of which action is filed first, is whether the failure to enjoin the foreign action would result in fraud, gross wrong, or oppression.
On appeal to this court, both Skyline and Daiwa argued that where the action in a foreign jurisdiction is instituted after the Illinois action, the court may enjoin a litigant if the foreign action appears “oppressive, vexatious, annoying, harassing, or unduly interfere with the progress of a prior instituted local action.” A majority of this court found, however, that regardless of whether the foreign action is filed before or after the Illinois action, an injunction is appropriate “only when prosecution of the foreign action would result in fraud or gross wrong or oppression, or when a clear equity is presented which requires restraint to prevent a manifest wrong and injustice.” In so holding, the majority reaffirms the language adopted in Royal League v. Kavanagh (1908), 233 Ill. 175, 183 — a case decided nearly 90 years ago— without evaluating that court’s underlying policy reasons. This, I feel, works a great injustice to the litigants and to society as a whole.
As the majority correctly points out, Illinois courts have the equitable power to restrain a person over whom it has jurisdiction from instituting a suit (Harris v. Pullman (1876), 84 Ill. 20, 28) or proceeding with a suit in a foreign State (James v. Grand Trunk Western R.R. Co. (1958), 14 Ill. 2d 356, 363). Royal League v. Kavanagh (1908), 233 Ill. 175, and its progeny have appropriately tempered this equitable power in taking into consideration concerns of interstate comity. Another factor underlying courts’ hesitancy to intervene when it comes to repetitive litigation is the American jurisprudential rule that allows a citizen of any State to go into another State to pursue such remedies as are available there. Thus, in this State, pendency of suit in itself has never been enough to warrant enjoining subsequent foreign litigation.
Although these concerns are valid and appreciable, I feel that in cases such as the ones at hand, numerous policy considerations and recent developments call for a reevaluation of their weight. Put in the proper perspective, these concerns over comity and the rights of the litigant do not necessarily require courts to continue their gentle treatment of such duplicative litigation. Rather, a proper assessment of the policy concerns will argue toward a relaxing of the rigid rule of law set forth in Royal League.
Initially, it should be noted that neither of the appellees in this case were the original plaintiffs. In both these cases, the defendant in the first action — for convenience I shall refer to them as the reactive litigants— has brought an independent action based upon the same factual controversy, against the original plaintiff, while the original plaintiff’s action was pending. (See Vestal, Reactive Litigation, 47 Iowa L. Rev. 11 (1961) (coining the phrase “reactive litigation”).) This is significant because under these circumstances, the policy that plaintiffs be allowed to bring their suit in the jurisdiction of their choice is not as relevant in determining the strictures of an injunction standard. In other words, we are less concerned with these reactive litigants’ choice of jurisdiction because by definition they have already been forced into a jurisdiction not of their own choosing. In such a case, a trial court’s refusal to enjoin these reactive litigants from pursuing their subsequently filed foreign action cannot give back to them the advantage or right of forum selection.
In fact, by making the grounds for a permanent injunction so difficult to satisfy, this court has made the original plaintiff’s right to bring a suit in any appropriate jurisdiction a shadow of a right. What good, indeed, is a rule which enables you to select your battleground but at the same time allows your opponent to drag you across the globe.
A second reason for relaxing the standard in determining whether to enjoin a subsequently filed duplicative foreign suit is judicial economy. The waste involved in allowing the same parties to litigate the same issue seems a ridiculous proposition. The idea that there should be two simultaneous actions pending, both taking up already choked dockets, where one would be res judicata to the other, is almost unjustifiable. In these days, where lawyers and the cost of litigation have been blamed — not always wrongfully — for everything from the cost of health care to the national deficit, disallowing certain vexatious and duplicitous litigation seems not so radical a notion.
The fact that reactive litigation tends to waste judicial resources and thereby strain various aspects of our national welfare was not lost upon the United States Supreme Court when it promulgated Rule 13(a), requiring the assertion of compulsory counterclaims. (Fed. R. Civ. R 13(a).) The requirement of Rule 13(a) that counterclaims arising out of the same transaction or occurrence be stated in the pleadings was specifically designed to prevent multiplicity of actions and to resolve all disputes arising out of common matters in one action. This rule was particularly directed against those litigants who failed to assert counterclaims in one action and then instituted a second action in which the foregone counterclaim became the basis of the complaint. (Southern Construction Co. v. United States (1962), 371 U.S. 57, 9 L. Ed. 2d 31, 83 S. Ct. 108.) Thus, the sort of multiplicity of suits that the Federal bench felt compelled to excise from practice is the exact type of activity which the majority has sought to protect with today’s holding.
Finally, I question the majority’s off-hand dismissal of the appellants’ offered standard. In rejecting the appellants’ proposed standard, the majority staunchly stands by the language introduced in Royal League stating that an injunction in cases like the ones at hand is only appropriate “when prosecution of the foreign action would result in fraud or gross wrong or oppression, or when a clear equity is presented which requires such restraint to prevent a manifest wrong and injustice.” (155 Ill. 2d at 50.) The majority goes on to say that “[t]he fact that a subsequent foreign action may be vexatious and harassing is but a consideration in the overriding standard of analysis, as opposed to being a standard in and of itself.” 155 Ill. 2d at 50.
In analyzing the majority’s opinion, I have attempted to divine a coherent policy — other than strict adherence to aged precedent — on which the majority relies. As argued above, however, reasoned analysis tends to direct this court to a more lenient standard for restraining duplicative litigation, rather than adhering to a rigid one formulated when civil practice must have been much different than it is today. Indeed, the rejection of the appellants’ proposed standard today seems all the more anomalous when viewed in light of the language this court has chosen for imposing attorney sanctions.
In an attempt to limit the abuse of the judicial system, this court adopted Rule 137 (134 Ill. 2d R. 137). Illinois’ version of the Federal Rule 11 sanction, Rule 137 (134 Ill. 2d R. 137) states:
“The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. *** If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction ***.”
In my mind, it is difficult to reconcile how this court can promote the imposition of monetary sanctions for attorneys or their clients for filing pleadings and motions for improper purposes “such as to harass or to cause unnecessary delay or needless increase in the cost of litigation,” and at the same time allow this exact type of behavior in the reactive litigation context.
Arguably, in the reactive litigation context, the party seeking relief in the foreign court has interstate comity concerns in its corner. Given the preceding analysis, however, this consideration appears significantly diminished by other policy interests.
In sum, the public policy concerns of judicial economy, reducing the cost of litigation in general upon society, and preventing vexatious and harassment suits in the interest of justice outweigh any rationale the majority could have considered in reaffirming the language formulated in Royal League. I feel that the standard proffered by appellants strikes the proper balance between the competing interests. Thus, in cases where the defendant brings a subsequent foreign suit against the original plaintiff, based upon the same factual controversy, and the resolution of an issue in one court would be res judicata in the other, then the trial court may at its discretion enjoin a litigant if the foreign action is oppressive, vexatious, annoying, harassing, or unduly interferes with the progress of the prior instituted local action.
In the two instant cases, the trial court found that the later filed foreign suits were pursued purely to harass or unduly delay or unnecessarily increase the cost of litigation and enjoined the subsequently filed actions. Given the facts of these two cases, such a holding would not be a clear abuse of discretion; thus, the trial court should have been affirmed.
For the foregoing reasons, I dissent as to both Skyline and Daiwa.