Governor Pritzker’s stay-at-home order has been in effect for a little over a month and will continue until at least the end of May, albeit with a slight re-opening of business in the State of Illinois. Courts in Illinois have similarly reacted to the COVID-19 pandemic; for example, the Circuit Court of Cook County has generally continued all civil cases and will only hear “emergency” motions.
This has effectively brought civil litigation in Illinois to a standstill. For parties with pending cases, this means that in many situations they are unable to bring an issue to the court’s attention; for plaintiffs who have not yet filed suit, but have grievances that require court intervention, this means they may not get it for some time. If a party is considering suing to protect their rights, there is almost always a serious need for action, and an issue may certainly be an emergency to them. However, the court is ultimately the gatekeeper for emergency motions, including during this pandemic, and it may not always agree that a party’s situation is an “emergency.”
Emergency motions usually arise when someone wants an immediate court order against their opponent, and requires them to show “immediate and irreparable” damage will occur before they can properly give notice to their opponent. See Nagel v. Gerald Dannen & Co., 272 Ill. App. 3d 516, 522 (1st Dist. 1995). Here, the context is slightly different and depends on whether irreparable damage will occur if the court does not hear a motion before re-opening its operations. Because federal courts publish their opinions much more regularly than state courts, their recent decisions provide a framework on how courts define an emergency during this pandemic.
While different judges may use their own criteria, it appears that threatened injury should relate to COVID-19 in some way, whereas purely economic harm that might have passed muster in normal circumstances may be insufficient until the COVID-19 measures subside. For example, the federal Northern District of Illinois declined to hear an “emergency motion” seeking injunctive relief against a defendant who was selling counterfeit products that infringed on the plaintiff’s trademarks. See Art Ask Agency v. Individuals, 2020 WL 1427085 (N.D. Ill. 2020). In Art Ask, the plaintiff argued it would suffer irreparable injury if the defendant was allowed to continue selling the infringing products. Id.
at 1. However, the court flatly rejected this request, saying the plaintiff’s situation was not a “real emergency” and comparing the plaintiff’s harm with the problems created by COVID-19. Id.
at 1-2.
In contrast, the Northern District granted an emergency motion to prevent a company from terminating its contract to provide services to nursing homes in the Chicago area. See Lexington Healthcare Center v. Morrison Management Specialists, 2020 WL 1820522 (N.D. Ill. 2020). In Lexington, the plaintiff, a nursing home operator, provided a 90-day termination notice to the defendant, who was providing subpar services in the plaintiff’s nursing homes. Id.
at 1-2. In response, the defendant threatened to terminate this contract after only seven days in the midst of the COVID-19 pandemic. Id.
at 2. The court recognized an emergency existed and ordered the defendant to continue providing services for the next two weeks, while also ordering the plaintiff to pay for those services. Id.
at 1. The court largely based this order on the extreme risk that would face the senior citizens under the plaintiff’s care if the defendant immediately stopped performing its work. Id. at 4.
This is not to say that courts will not hear an emergency motion unless it directly relates to COVID-19, and there are some instances where such a motion would need a quick ruling. See, e.g. Savage v. Mui Pho, 312 Ill. App. 3d 553, 559 (5th Dist. 2000) (saying an emergency motion was valid when it sought to amend a complaint before an impending statute of limitations period passed). Certainly, a court may define an “emergency” differently than in the above cases. However, parties should carefully consider the nature of the harm they are facing before bringing their cases to the court’s attention on an emergency motion. While a denial of their emergency motion does not mean they will lose their case, it does not start them off on the right foot either. A poorly thought-out emergency motion may give the opposing party momentum and put movants in a disadvantageous position once litigation fully resumes. As an alternative, most courts are allowing new cases to be filed, and clients facing non-COVID-19-related harm may be better served by simply filing their lawsuit and waiting for an opportune moment for quick injunctive relief.
