                                                        SECOND DIVISION
                                                        FILED: June 22, 2010




No. 1-09-3136


WHITTMANHART, INC.,                           )         APPEAL FROM THE
                                              )         CIRCUIT COURT OF
       Plaintiff-Appellant,                   )         COOK COUNTY.
                                              )
v.                                            )         Nos. 08 L 13460
                                              )              09 L 7560
                                              )
CA, INC., and NIKU, LLC,                      )         HONORABLE
                                              )         LEE PRESTON,
       Defendants-Appellees.                  )         JUDGE PRESIDING.



       JUSTICE HOFFMAN delivered the opinion of the court:

       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
No. 1-09-3136

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.




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No. 1-09-3136

      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.




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No. 1-09-3136

      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




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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.




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No. 1-09-3136

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 court's decision to dismiss an action pursuant

to section 2-619(a)(3) for an abuse of discretion.                          Continental

Casualty Co. v. Radio Materials Corp., 366 Ill. App. 3d 345, 347,

851 N.E.2d 857 (2006).




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No. 1-09-3136

      Section 2-619(a)(3) is a procedural device designed to avoid

duplicative litigation.         Quantum Chemical Corp. v. Hartford Steam

Boiler Inspection & Insurance Co., 246 Ill. App. 3d 557, 560, 616

N.E.2d 686 (1993).      Specifically, this section allows a defendant

to move for a dismissal or a stay when there is "another action

pending between the same parties for the same cause."               735 ILCS

5/2-619(a)(3) (West 2008).        The movant, in this case CA and Niku,

bears    the   burden   of     demonstrating   by   clear   and   convincing
evidence that the two actions involved the "same parties" and the

"same cause."      Northbrook Property & Casualty Insurance Co. v.

GEO International Corp., 317 Ill. App. 3d 78, 80, 739 N.E.2d 47

(2000).

      There can be no dispute that the instant action and the New

York action involve the same, identical parties. Only their roles

have changed.

      Additionally, the record reflects that the instant action

and the New York action involve the same cause.             Actions present
the     same   cause    when    the   relief   requested     is   based   on

substantially the same set of facts.           In re Estate of Hoch, 382

Ill. App. 3d 866, 869, 892 N.E.2d 30 (2008).           Here, both actions

were based upon the same two contracts, the EULA and the SOW.

While different issues may have been raised in the two actions,

the critical inquiry is whether the Illinois and New York actions

arose out of the same transaction or occurrence, not whether the

legal theories, issues, or requested relief differ.               See Kapoor




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No. 1-09-3136

v. Fujisawa Pharmaceutical Co., 298 Ill. App. 3d 780, 786, 699

N.E.2d 1095 (1998).

      Although CA and Niku established the threshold requirements

of section 2-619(a)(3), the circuit court was not required to

automatically dismiss the instant action.                  See In re Marriage of

Epsteen,    339   Ill.   App.     3d   586,     593,   791   N.E.2d    175    (2003).

Rather, "[m]ultiple actions in different jurisdictions arising

out of the same operative facts may be maintained where the
circuit court, in a sound exercise of its discretion, determines

that both    actions     should    proceed."           Zurich    Insurance    Co.   v.

Baxter International, Inc., 173 Ill. 2d 235, 244-45, 670 N.E.2d

664   (1996).      In    making    this     determination,        a   court     should

consider the following factors:               (1) comity; (2) the prevention

of multiplicity, vexation, and harassment; (3) the likelihood of

obtaining complete relief in a foreign jurisdiction; and (4) the

res judicata effect of a foreign judgment in the local forum.

Combined Insurance Co. v. Certain Underwriters at Lloyd's London,
356 Ill. App. 3d 749, 754, 826 N.E.2d 1089 (2005).

      Turning to the first             factor, courts of different states

having    concurrent     jurisdiction         over     a   controversy    may    both

proceed    simultaneously         until     one      court      reaches   judgment.

Restatement (Second) of Conflicts of Laws § 86 (1971).                    Under the

principles of comity, however, one state may stay or dismiss the

proceeding pending before it out of respect for the other state's

laws and judgments.       See Continental Casualty Co., 366 Ill. App.




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No. 1-09-3136

3d at 347; May v. SmithKline Beecham Clinical Laboratories, Inc.,

304 Ill. App. 3d 242, 248, 710 N.E.2d 460 (1999).

      Prior to the filing of the instant action, CA and Niku filed

two   suits,    the     federal   action     and      the     first    New       York    State

action.     The federal action, however, was voluntarily dismissed

after it was discovered that federal diversity jurisdiction was

lacking.       Additionally,      the   first         New   York    State        action    was

dismissed for want of jurisdiction.                    The second New York State
action,     the    only       foreign     action       where       jurisdiction           over

Whittmanhart      was     effectuated,          was     not     filed        until       after

Whittmanhart      filed    its    Illinois      complaint.            Consequently,         it

appears that the instant action was the first to be properly

filed.    Nevertheless, the Illinois Supreme Court, in A. E. Staley

Manufacturing Co. v. Swift & Co., 84 Ill. 2d 245, 253, 419 N.E.2d

23 (1980) (Staley), held that the fact that one suit was filed

prior to the other is not determinative in resolving a section 2-

619(a)(3)      motion    to    dismiss.         Staley,       84   Ill.       2d    at    252.
Instead, the Staley court focused on whether the cause had a

legitimate and substantial relation to Illinois.                           Staley, 84 Ill.

2d at 253.

      The record before us reflects that Illinois has a legitimate

and      substantial       relation        to         the     underlying            dispute.

Whittmanhart's        principal    place        of    business        is    in     Illinois.

Furthermore, the EULA and the SOW contemplated performance in

Illinois, and Whittmanhart's complaint alleged that a substantial




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No. 1-09-3136

number of the events which led to the breach of the two contracts

took place in Cook County, Illinois.1

       Although CA's and Niku's principal place of business is in

New York and one of the contracts, the SOW, is to be interpreted

pursuant to New York law, we do not believe that New York's

connection to this case outweighs Illinois' strong interest in

the litigation.         The second contract, the EULA, provides that it

is   to     be   interpreted    pursuant     to    the    laws   of   the   state    of
California, which neither Illinois nor New York will have an

expertise in applying.              In addition, no evidence was presented

establishing that any of the events that led to breach of the

EULA       and   the   SOW,   and   the   commencement      of   this   litigation,




       1
           In its briefs before this court, Whittmanhart also alleges
that most of the negotiations leading up to the execution of the

EULA and the SOW occurred in Illinois.               Whittmanhart's complaint,
however, does not indicate where the negotiations for the two

contracts took place, nor did Whittmanhart provide any affidavits

or other evidentiary materials in support of this allegation.                       See

Atkinson v. Affronti, 369 Ill. App. 3d 828, 830, 861 N.E.2d 251

(2007) (In ruling on a 2-619 motion to dismiss, a court will

consider the complaint under attack, taking as true all well-pled

allegations        contained    therein,     and    the    evidentiary      material

submitted both in support of and in opposition to the motion).



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No. 1-09-3136

occurred in New York.              Based on the record before us, Illinois is

clearly the more logical forum for this dispute.

       Given the fact that the instant action appears to have been

the    first    to     be    properly    filed      and     that   this   matter    has    a

legitimate and substantial relation to Illinois, we conclude that

the principles of comity do not require the dismissal of the

instant       action    in     deference       to    the    New    York   State    court.

Accordingly,          this    factor     weighs       against      the    dismissal       of
Whittmanhart's Illinois complaint.

       Next, we consider the prevention of multiplicity, vexation,

and harassment.             Due to the similar nature of both actions, the

dismissal of the instant action would prevent the multiplicity of

lawsuits.        There is no evidence, however, that Whittmanhart's

claims in Illinois are intended to vex or harass CA and Niku.                             On

balance,       this    factor      weighs   in      favor    of    dismissal,     but   not

strongly.

       With     regard       to    Whittmanhart's          likelihood     of    obtaining
complete relief in a foreign jurisdiction, in their New York

action, CA and Niku seek to recover the amount they are allegedly

owed    under    the        EULA   and   the     SOW.       Whittmanhart's        Illinois

complaint contains a similar claim seeking a declaratory judgment

defeating CA's and Niku's ability to recover under the EULA and

the SOW.       However, Whittmanhart also seeks to recover the amount

it alleges it is owed because of CA's and Niku's failure to

comply with the terms of the EULA and the SOW.                        Accordingly, the




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No. 1-09-3136

instant action is the broader and more comprehensive of the two

actions,     and,       therefore,      there    is    a     greater       possibility      of

completely        resolving       the   controversy        between     the      parties    in

Illinois than in New York.

       Furthermore,        the    dismissal      of    the    instant       action   forces

Whittmanhart to assert its claims against CA and Niku by way of a

counterclaim in New York.               In Staley, the supreme court held that

the policy of avoiding duplicative litigation did not require the
filing of a counterclaim in a foreign jurisdiction where the

rules of that jurisdiction do not otherwise require it.                              Staley,

84   Ill.    2d    at     253.      New   York     does      not   require       compulsory

counterclaims.            67-25    Dartmouth       Street     Corp.        v.   Syllman,    29

A.D.3d 888,        889,    817    N.Y.S.2d      299,    301    (N.Y.       2006);    Classic

Automobiles, Inc. v. Oxford Resources, Corp., 204 A.D.2d 209,

209, 612 N.Y.S.2d 32, 33 (N.Y. 1994).                        Under the facts of this

case, we conclude that the instant action is more likely to

provide complete relief to the parties, thereby weighing against
dismissal.

       The final factor to be considered in determining whether the

instant action should be dismissed under section 2-619(a)(3) is

the res judicata effect of a foreign judgment in the local forum.

Like in New York, counterclaims in Illinois are permissive rather

than compulsory.           See 735 ILCS 5/2-608(a) (West 2008); Fuller

Family Holdings, LLC v. Northern Trust Co., 371 Ill. App. 3d 605,

617,   863   N.E.2d        743    (2007).       Consequently,          a    defendant      may




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No. 1-09-3136

generally raise his or her claims against the plaintiff by way of

either a counterclaim or a separate action.                  Corcoran-Hakala v.

Dowd,   362   Ill.   App.   3d    523,    530-31,   840     N.E.2d    286    (2005);

Restatement (Second) of Judgments § 22(1) (1982).                    Res judicata

bars a subsequent action only if the successful prosecution of

the action would in effect nullify the judgment entered in the

prior litigation.       Corcoran-Hakala, 362 Ill. App. 3d at 531;

Restatement     (Second)     of   Judgments     §   22(2)(b)       (1982).         The
rationale behind this rule is that a defendant should not be

required to assert his or her claims in the forum chosen by the

plaintiff but should be allowed to bring suit at a time and place

of his or her own selection.         Restatement (Second) of Judgments §

22, Comment a, at 185-86 (1982).

      As previously discussed, the instant action is broader than

the New York action.        Even if a judgment is entered for CA and

Niku in New York, it is possible that Whittmanhart's claim that

CA and Niku breached their obligations under the EULA and the SOW
could still proceed.        Because it cannot be said that res judicata

would completely bar the instant action, this factor also weighs

against dismissal.

      In sum, we find that, with the exception of the prevention

of   the   multiplicity     of    lawsuits,     none   of    the     discretionary

factors for consideration favor a dismissal of the instant action

under section 2-619(a)(3).          As a consequence, we conclude that

the circuit     court   abused     its    direction    in    granting       CA's   and




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No. 1-09-3136

Niku's motion to dismiss.     We, therefore, reverse the dismissal

of Whittmanhart's complaint and remand the matter back to the

circuit court for further proceedings.

     Reversed and remanded.


     THEIS and KARNEZIS, JJ., concur.




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