{ "id": 1073694, "name": "JOHN N. KAPOOR, Plaintiff-Appellant, v. FUJISAWA PHARMACEUTICAL COMPANY, LTD., et al., Defendants-Appellees", "name_abbreviation": "Kapoor v. Fujisawa Pharmaceutical Co.", "decision_date": "1998-08-11", "docket_number": "No. 1-97-3212", "first_page": "780", "last_page": "791", "citations": [ { "type": "official", "cite": "298 Ill. App. 3d 780" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "936 F. Supp. 455", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7652147 ], "year": 1996, "pin_cites": [ { "page": "457" } ], "opinion_index": 0, "case_paths": [ "/f-supp/936/0455-01" ] }, { "cite": "618 N.E.2d 531", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "533" } ], "opinion_index": 0 }, { "cite": "248 Ill. App. 3d 398", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2942819 ], "year": 1993, "pin_cites": [ { "page": "400" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/248/0398-01" ] }, { "cite": "297 Ill. App. 3d 375", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 910280 ], "year": 1998, "pin_cites": [ { "page": "382", "parenthetical": "\"The doctrine of res judicata provides that a final judgment on the merits rendered by a court of competent jurisdiction bars a subsequent action involving the same claims or demands by the same parties\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/297/0375-01" ] }, { "cite": "627 N.E.2d 42", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "47", "parenthetical": "where, because of doctrine preventing plaintiffs from bringing pendent state law claims against state officers in federal courts, the plaintiffs were unable to assert their state law claims, appellate court found that fact irrelevant to the determination of the section 2 - 619(a)(3" } ], "opinion_index": 0 }, { "cite": "254 Ill. App. 3d 479", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2980879 ], "year": 1993, "pin_cites": [ { "page": "487" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/254/0479-01" ] }, { "cite": "56 A.L.R.2d 335", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1968, "pin_cites": [ { "page": "337", "parenthetical": "\"a stay should be distinguished from *** dismissal of an action pending determination of another action between the same persons and on the same cause of action in another jurisdiction\"" } ], "opinion_index": 0 }, { "cite": "554 N.E.2d 671", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "683" } ], "opinion_index": 0 }, { "cite": "197 Ill. App. 3d 30", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2485058 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "47-48" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/197/0030-01" ] }, { "cite": "558 N.E.2d 441", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1990, "pin_cites": [ { "page": "442-43" }, { "page": "442-43", "parenthetical": "finding that \"considerations of comity, multiplicity of actions and res judicata\" did not apply" } ], "opinion_index": 0 }, { "cite": "200 Ill. App. 3d 736", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2461281 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "738-39" }, { "page": "738-39" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/200/0736-01" ] }, { "cite": "599 N.E.2d 1323", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "1325" } ], "opinion_index": 0 }, { "cite": "236 Ill. App. 3d 199", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5783020 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "203" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/236/0199-01" ] }, { "cite": "439 N.E.2d 475", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "pin_cites": [ { "page": "482-83", "parenthetical": "section 2 - 619(a)(3) dismissal proper where \"the very use of certain evidence in the first case was the violation charged in the second case\"" } ], "opinion_index": 0 }, { "cite": "108 Ill. App. 3d 732", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3011220 ], "year": 1982, "pin_cites": [ { "page": "743-44", "parenthetical": "section 2 - 619(a)(3) dismissal proper where \"the very use of certain evidence in the first case was the violation charged in the second case\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/108/0732-01" ] }, { "cite": "444 N.E.2d 736", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "111 Ill. App. 3d 922", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5441752 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ill-app-3d/111/0922-01" ] }, { "cite": "522 N.E.2d 846", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "522 N.E.2d 845", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "168 Ill. App. 3d 541", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3512445 ], "weight": 4, "year": 1988, "pin_cites": [ { "page": "542-43" }, { "page": "545" }, { "page": "543-45" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/168/0541-01" ] }, { "cite": "692 N.E.2d 1268", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "page": "1277" } ], "opinion_index": 0 }, { "cite": "295 Ill. App. 3d 895", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 45758 ], "year": 1998, "pin_cites": [ { "page": "906" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/295/0895-01" ] }, { "cite": "414 N.E.2d 533", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "534" } ], "opinion_index": 0 }, { "cite": "91 Ill. App. 3d 865", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3148699 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "867" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/91/0865-01" ] }, { "cite": "584 N.E.2d 948", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "223 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5255899 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-app-3d/223/0001-01" ] }, { "cite": "502 N.E.2d 283", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "pin_cites": [ { "page": "297" } ], "opinion_index": 0 }, { "cite": "151 Ill. App. 3d 354", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3539870 ], "year": 1986, "pin_cites": [ { "page": "372" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/151/0354-01" ] }, { "cite": "568 N.E.2d 376", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "378" } ], "opinion_index": 0 }, { "cite": "209 Ill. App. 3d 758", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2541557 ], "year": 1991, "pin_cites": [ { "page": "762" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/209/0758-01" ] }, { "cite": "659 N.E.2d 89", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "91-92" } ], "opinion_index": 0 }, { "cite": "276 Ill. App. 3d 785", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 927698 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "788-89" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/276/0785-01" ] }, { "cite": "493 N.E.2d 1045", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "1053-54", "parenthetical": "stating that the factors should be considered when deciding whether a section 2 - 619(a)(3) stay is warranted" } ], "opinion_index": 0 }, { "cite": "112 Ill. 2d 428", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5537948 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "447-48", "parenthetical": "stating that the factors should be considered when deciding whether a section 2 - 619(a)(3) stay is warranted" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/112/0428-01" ] }, { "cite": "672 N.E.2d 271", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "275" } ], "opinion_index": 0 }, { "cite": "284 Ill. App. 3d 449", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1260445 ], "year": 1996, "pin_cites": [ { "page": "456" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/284/0449-01" ] }, { "cite": "670 N.E.2d 664", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "parenthetical": "Freeman, J\u201e, specially concurring, joined by McMorrow, J." } ], "opinion_index": 0 }, { "cite": "173 Ill. 2d 235", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 147642 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "248", "parenthetical": "Freeman, J\u201e, specially concurring, joined by McMorrow, J." } ], "opinion_index": 0, "case_paths": [ "/ill-2d/173/0235-01" ] }, { "cite": "653 N.E.2d 825", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1995, "pin_cites": [ { "page": "828-30" } ], "opinion_index": 0 }, { "cite": "274 Ill. App. 3d 314", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 291671 ], "weight": 4, "year": 1995, "pin_cites": [ { "page": "318" }, { "page": "318-22" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/274/0314-01" ] }, { "cite": "656 N.E.2d 89", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "page": "93" } ], "opinion_index": 0 }, { "cite": "275 Ill. App. 3d 779", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 906695 ], "year": 1995, "pin_cites": [ { "page": "786" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/275/0779-01" ] }, { "cite": "115 F.3d 1332", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11992746 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "1338" } ], "opinion_index": 0, "case_paths": [ "/f3d/115/1332-01" ] }, { "cite": "18 U.S.C. \u00a7 1962", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1994, "pin_cites": [ { "page": "(c)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1111, "char_count": 28203, "ocr_confidence": 0.724, "pagerank": { "raw": 1.9687686215815275e-07, "percentile": 0.7390392258390354 }, "sha256": "2e5aa4fb1897fbe3adf9cee4c69834a2d319f4a822815f67ba04e91dd1d7edf4", "simhash": "1:07bd59f607c6d951", "word_count": 4534 }, "last_updated": "2023-07-14T16:29:38.148323+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JOHN N. KAPOOR, Plaintiff-Appellant, v. FUJISAWA PHARMACEUTICAL COMPANY, LTD., et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE TULLY\ndelivered the opinion of the court:\nPlaintiff, John N. Kapoor, filed a five-count action against defendants which alleged: breach of a hold-harmless agreement against Fujisawa USA, Inc. (FUSA); breach of a merger agreement against Fujisawa Pharmaceutical Co., Ltd. (Fujisawa), and FUSA; tortious interference with contract against the individual defendants; tortious interference with business expectancy against all defendants; and defamation against FUSA and Noboru Maeda. The trial court dismissed plaintiffs complaint pursuant to section 2 \u2014 619(a)(3) of the Code of Civil Procedure (735 ILCS 5/2 \u2014 619(a)(3) (West 1996)), finding that there was another pending federal action between the \u201csame parties\u201d for the \u201csame cause.\u201d Plaintiff appeals the trial court\u2019s order pursuant to Supreme Court Rule 301 (155 111. 2d R. 301).\nFor the reasons that follow, we affirm.\nFACTUAL BACKGROUND\nPlaintiff is the former chairman and chief executive officer of Lyphomed, Inc., a manufacturer of proprietary and generic drugs. Defendant Fujisawa is a Japanese pharmaceutical company. Defendant FUSA is a Delaware corporation and a wholly owned subsidiary of Fujisawa. The remaining individual defendants served at relevant times as officers and/or directors of Lyphomed, Fujisawa and/or FUSA. Between 1980 and 1986, Lyphomed filed false applications and information with the Food and Drug Administration (FDA) in connection with applications to manufacture and sell generic drugs. In 1983, Lyphomed filed an initial public offering with the Securities and Exchange Commission (SEC) but did not disclose its FDA violations. In December 1984, Fujisawa purchased Lyphomed shares from Lyphomed and plaintiff, who at that time did not disclose any information about Lyphomed\u2019s FDA violations. Fujisawa continued to purchase Lyphomed stock from Lyphomed and plaintiff in several transactions. According to Fujisawa, when it bought the stock, it relied on various forms, annual reports and other statements that plaintiff issued, none of which disclosed the FDA application violations. By 1986, Fujisawa replaced plaintiff as Lyphomed\u2019s largest shareholder. During 1987 and 1988, the FDA cited Lyphomed as having good manufacturing practices (GMP) problems at some of its factories. The FDA later issued Lyphomed a regulatory letter which stated that Lyphomed would not receive any new approvals for generic or patented drugs until it cured the GMP problems. Plaintiff and Lyphomed then reassured Fujisawa that Lyphomed was addressing the problems. Lyphomed cured the problems.\nOn April 28, 1989, as part of a stipulation and settlement of certain derivative and class action suits against them \u2014 Murphy v. Kapoor and Harman v. Lyphomed, Inc. \u2014plaintiff and Lyphomed entered into an indemnification agreement, pursuant to which Lyphomed agreed that it:\n. \u201cshall indemnify [plaintiff] for all amounts paid by [him] or that [he is] legally obligated to pay in settlement of the Litigations for an amount up to $9.99 million (the \u2018Settlement Amount\u2019) plus interest and for [his] reasonable expenses incurred in connection with the Litigations (including attorneys\u2019 fees) and shall further indemnify [him] and hold [him] harmless from and against any other claim, loss, liability or expense arising out of the Litigations, any facts alleged or conclusions asserted therein, the settlement of the Litigations, their indemnification by [Lyphomed], and any subsequent litigation concerning any of the foregoing matters.\u201d\nMurphy was a stockholder derivative action based on breach of fiduciary duty and gross negligence theories. The complaint alleged that, to obtain growth, plaintiff was responsible for Lyphomed operating \u201cat or beyond capacity\u201d and for Lyphomed\u2019s lack of adequate quality control procedures, which led to Lyphomed\u2019s failure to comply with FDA requirements. Harman was a class action which alleged that plaintiff and Lyphomed violated federal securities laws by failing to disclose discrepancies and alterations in Lyphomed\u2019s laboratory records and by concealing Lyphomed\u2019s FDA violations.\nOn August 31, 1989, Lyphomed, Fujisawa and FUSA executed a merger agreement, pursuant to which Fujisawa and FUSA agreed to honor Lyphomed\u2019s obligations under the April 28 indemnification agreement. In addition, Fujisawa and FUSA agreed to indemnify and hold harmless'plaintiff and other Lyphomed officers and directors \u201cto the fullest extent permitted by law\u201d for claims asserted by Lyphomed or its shareholders based on acts or omissions that occurred before the effective date of the merger. In addition to the Lyphomed stock it bought earlier, Fujisawa purchased more Lyphomed stock on the open market and acquired Lyphomed on April 5, 1990. It merged Lyphomed into FUSA the next day.\nIn August 1992, Fujisawa and FUSA sued plaintiff in the United States District Court for the Northern District of Illinois. Their complaint alleged that, as a result of Lyphomed\u2019s false and misleading FDA generic drug applications, FUSA was required to withdraw several drugs from the market and was unable to obtain FDA approval of other drugs. In addition, the complaint alleged that plaintiff knew of and participated in fraud against the FDA and failed to disclose material facts about the FDA generic drug applications to Fujisawa in connection with Fujisawa\u2019s purchase of Lyphomed\u2019s stock. The complaint asserted claims for violations of federal securities laws and the Racketeer Influenced and Corrupt Organizations (RICO) Act (18 U.S.C. \u00a7 1962(c) (1994)), as well as claims for state law fraud, breach of fiduciary duty, and breach of warranty. Fujisawa and FUSA alleged that they suffered damages of more than $100 million.\nOn July 25, 1996, the federal district court granted summary judgment for plaintiff on the securities fraud claims because they were time-barred. Finding that the complaint failed to plead adequately a \u201cpattern\u201d of racketeering by plaintiff, the court dismissed the RICO count for failure to state a claim upon which relief may be granted. In addition, the court declined to exercise supplemental jurisdiction over the remaining state law claims and dismissed them without prejudice. Fujisawa Pharmaceutical Co., 936 F. Supp. at 458-67. On July 31, 1996, FUSA and Noboru Maeda issued a press release regarding the court\u2019s July 25 decision. On June 16, 1997, the Seventh Circuit Court of Appeals reversed the dismissal of the RICO claim, holding that FUSA had adequately pleaded a \u201cpattern\u201d of racketeering by plaintiff. Fujisawa Pharmaceutical Co. v. Kapoor, 115 F.3d 1332 (7th Cir. 1997). According to the appellate court:\n\u201cKapoor controlled Lyphomed and, if those allegations are believed, used his control to conduct the business of Lyphomed through a pattern of racketeering activity extending over six years and consisting of innumerable mail and wire frauds successfully designed to lure Fujisawa into investing more and more of its money in Lyphomed, much of which went into Kapoor\u2019s pocket.\u201d Fujisawa Pharmaceutical Co., 115 F.3d at 1338.\nThe appellate court remanded the case to the district court for further proceedings, and the action is still pending.\nBefore the federal court of appeals issued its decision, plaintiff filed his state action. In his amended complaint plaintiff alleged that Fujisawa and FUSA, by proceeding with the federal action, breached the April 28, 1989, and August 31, 1989, contracts under which they expressly agreed to hold plaintiff harmless for the claims made in the federal action. Plaintiff also alleged that the individual defendants tortiously interfered with those contracts and that defendants defamed him in the July 31, 1996, press release. The amended complaint contained the following claims: (1) breach of a hold-harmless agreement against FUSA; (2) breach of a merger agreement against Fujisawa and FUSA; (3) tortious interference with contract against the individual defendants; (4) tortious interference with business expectancy against all defendants; and (5) defamation against FUSA and Noboru Maeda.\nThe trial court dismissed the amended complaint pursuant to section 2 \u2014 619(a)(3). The trial court found:\n\u201c[I]t is clear from reading the intendment of the averments of the Amended Complaint in the light most favorable to Kapoor, that the grievances he has and the causes of action he seeks to state in this Illinois trial court all arise out of and are inextricably intertwined with the transactional occurrences that form the core subject matter of the ongoing federal district court litigation. This court finds that for purposes of [section 2- \u2014 619(a)(3)] there is another cause of action currently pending between the \u2018same parties\u2019 for the \u2018same cause\u2019 and that for reasons of comity, judicial economy and the efficient overall administration of justice it would be prudent to dismiss this state court suit.\u201d\nAt the time of plaintiffs state action, there was another pending suit in Delaware. In Kapoor v. Fujisawa Pharmaceutical Co., plaintiff sued Fujisawa and FUSA, seeking indemnification for fees and expenses he incurred in defending the federal action. His amended complaint sought fees and expenses for prosecuting the Illinois state action. The amended complaint alleged in part that his Illinois action was \u201casserted as part of his defense to Fujisawa\u2019s and FUSA\u2019s claims in the Federal Action.\u201d In addition, plaintiff alleged that the Illinois action sought \u201cto defeat Fujisawa\u2019s Federal Action and to secure his rights to be \u2018held harmless\u2019 by Fujisawa and FUSA for his losses and expenses as a result of the unfounded allegations by Fujisawa and FUSA in the Federal Action.\u201d The Delaware action is still pending.\nISSUE PRESENTED FOR REVIEW\nOn appeal, plaintiff argues that the trial court erred in granting defendants\u2019 section 2 \u2014 619(a)(3) motion to dismiss his complaint because the pending federal court action is not for the \u201csame cause\u201d or between the \u201csame parties\u201d as his state court action.\nOPINION\nA defendant may move for dismissal of an action under section 2 \u2014 619(a)(3) upon the grounds that there is \u201canother action pending between the same parties for the same cause.\u201d 735 ILCS 5/2\u2014 619(a)(3) (West 1996). Section 2 \u2014 619(a)(3) is an \u201cinherently procedural\u201d device aimed at avoiding duplicative litigation (Miller v. Thomas, 275 Ill. App. 3d 779, 786, 656 N.E.2d 89, 93 (1995)), and it should be construed liberally (Schnitzer v. O\u2019Connor, 274 Ill. App. 3d 314, 653 N.E.2d 825 (1995)). Even if the threshold \u201csame parties\u201d and \u201csame cause\u201d requirements are met, section 2 \u2014 619(a)(3) relief is not mandatory. Zurich Insurance Co. v. Baxter International, Inc., 173 Ill. 2d 235, 248, 670 N.E.2d 664 (1996) (Freeman, J\u201e, specially concurring, joined by McMorrow, J.). A court should consider the following factors when deciding whether to dismiss an action pursuant to section 2 \u2014 619(a)(3): \u201c(1) comity; (2) the prevention of multiplicity, vexation, and harassment; (3) the likelihood of obtaining complete relief in the foreign jurisdiction; and (4) the res judicata effect of a foreign judgment in the local forum.\u201d In re M.K., 284 Ill. App. 3d 449, 456, 672 N.E.2d 271, 275 (1996), citing Kellerman v. MCI Telecommunications Corp., 112 Ill. 2d 428, 447-48, 493 N.E.2d 1045, 1053-54 (1986) (stating that the factors should be considered when deciding whether a section 2 \u2014 619(a)(3) stay is warranted). Furthermore, the trial court must weigh the prejudice to the nonmovant if the motion is granted against the policy of avoiding duplicative litigation. Doutt v. Ford Motor Co., 276 Ill. App. 3d 785, 659 N.E.2d 89 (1995). We will reverse the trial court\u2019s decision on a section 2 \u2014 619(a)(3) motion to dismiss only if it abused its discretion. Zurich Insurance Co., 173 Ill. 2d 235, 670 N.E.2d 664; Kellerman, 112 Ill. 2d 428, 493 N.E.2d 1045.\nIn defining whether the parties are the same, the parties need not be identical. Schnitzer, 274 Ill. App. 3d at 318. The \u201csame parties\u201d requirement is satisfied where the litigants\u2019 interests are sufficiently similar, even if the litigants differ in name or number. Schnitzer, 274 Ill. App. 3d 314, 653 N.E.2d 825.\nIn evaluating whether two actions are for the same cause, a crucial inquiry is \u201cwhether the two actions arise out of the same transaction or occurrence [citation], not whether the legal theory, issues, burden of proof or relief sought materially differ between the two actions.\u201d Terracom Development Group, Inc. v. Village of West-haven, 209 Ill. App. 3d 758, 762, 568 N.E.2d 376, 378 (1991). \u201cNeither the parties nor the cause need be identical to the prior pending suit.\u201d Forsberg v. City of Chicago, 151 Ill. App. 3d 354, 372, 502 N.E.2d 283, 297 (1986). Section 2 \u2014 619(a)(3) refers to the \u201csame cause,\u201d not to the \u201csame cause of action,\u201d (Bank of Northern Illinois v. Nugent, 223 Ill. App. 3d 1, 584 N.E.2d 948 (1991)) and it may be invoked \u201cwhere there is a substantial similarity of issues\u201d between the two actions (Tarn-bone v. Simpson, 91 Ill. App. 3d 865, 867, 414 N.E.2d 533, 534 (1980)). \u201cThe central inquiry, then, is whether the relief requested rests on substantially the same facts.\u201d Philips Electronics, N.V. v. New Hampshire Insurance Co., 295 Ill. App. 3d 895, 906, 692 N.E.2d 1268, 1277 (1998). The inquiry is guided by common sense. Illinois Central Gulf R.R. Co. v. Goad, 168 Ill. App. 3d 541, 522 N.E.2d 845 (1988).\nPlaintiff contends that the trial court erred in dismissing his complaint pursuant to section 2 \u2014 619(a)(3) because the pending federal court action is not for the \u201csame cause\u201d or between the \u201csame parties\u201d as his state court action. We disagree.\nFirst, the trial court did not abuse its discretion in finding that the actions were for the \u201csame cause.\u201d In this case, the two actions arose out of the same occurrence, which is plaintiffs alleged concealment of Lyphomed\u2019s FDA violations from Fujisawa while it was buying Lyphomed stock. The federal action involved those allegations, which are contained in the remaining pending RICO cause of action. Although the state action involves different causes of action alleged by plaintiff, they arose out of plaintiffs alleged concealment of the FDA violations. In the state action, plaintiff sought primarily to prevent defendants from suing him for the alleged concealment and sought to defeat alleged defamatory statements that he is a racketeer. As plaintiff himself alleged in his Delaware action against Fujisawa and FUSA, plaintiffs state action seeks to avoid liability for the allegations in the federal action. In the state action, plaintiff alleged that Fujisawa and FUSA breached its contracts, which agreed to \u201cindemnify [him] and hold [him] harmless from and against any other claim, loss, liability or expense\u201d resulting from the settled derivative and class actions \u201cand any subsequent litigation concerning any of the foregoing matters.\u201d The settled derivative and class actions involved substantially the same allegations against plaintiff as in the federal action.\nThe present case is similar to Illinois Central, in which a railroad employee initiated a federal suit against his employer for work-related injuries. Illinois Central, 168 Ill. App. 3d at 542-43, 522 N.E.2d 846-47. The parties reached a verbal settlement, but the plaintiff refused to sign the written settlement agreement. The defendant then filed a state action seeking a declaration that the verbal settlement agreement was binding and enforceable. The circuit court dismissed the complaint pursuant to section 2 \u2014 619(a)(3) because it found that there was a pending federal action for the \u201csame cause\u201d between the \u201csame parties.\u201d On appeal, this court found that the sole purpose of the state action was to create a defense to the federal action and that, regardless of the outcome of the state action, the prevailing party would use the result in the federal action. The same is true in the present case. The primary reason for the state action is to defeat defendants\u2019 action against plaintiff for his alleged concealment of facts during the sale of Lyphomed stock. As plaintiff himself asserted in the Delaware action, the Illinois state action was asserted as part of the defense to the federal action and it sought \u201cto defeat Fujisawa\u2019s Federal Action and to secure his rights to be \u2018held harmless\u2019 by Fujisawa and FUSA for his losses and expenses as a result of the unfounded allegations\u201d in the federal action. If plaintiff would have prevailed in the state action, he would have used that ruling against Fujisawa and FUSA in the federal action. Furthermore, the state and federal actions would involve overlapping evidence regarding whether plaintiff concealed information and committed securities fraud. See International Games, Inc. v. Sims, 111 Ill. App. 3d 922, 444 N.E.2d 736 (1982); see also McDonald\u2019s Corp v. Levine, 108 Ill. App. 3d 732, 743-44, 439 N.E.2d 475, 482-83 (1982) (section 2 \u2014 619(a)(3) dismissal proper where \u201cthe very use of certain evidence in the first case was the violation charged in the second case\u201d). As in Illinois Central, \u201cfor us to hold the cases do not arise from the same occurrence would be contrary to common sense and [would] defeat the purpose of [section 2 \u2014 619(a)(3)].\u201d Illinois Central, 168 Ill. App. 3d at 545, 522 N.E.2d at 847.\nIn support of his argument that the actions were not for the same cause, plaintiff relies on Steiner Diamond & Co. v. Flashner Medical Partnership, 236 Ill. App. 3d 199, 599 N.E.2d 1323 (1992), and Southwest Financial Bank v. McGrath, 200 Ill. App. 3d 736, 558 N.E.2d 441 (1990). Both cases are distinguishable from the present case. First, Steiner involved compulsory counterclaim issues, not a section 2 \u2014 619(a)(3) dismissal. At trial, the plaintiff\u2019s state contract-based indemnification claim was dismissed because it was held to be a compulsory counterclaim to a related federal action. A compulsory counterclaim is one that \u201c \u2018arises out of the same transaction or occurrence that is the subject matter of the opposing party\u2019s claim.\u2019 \u201d Steiner, 236 Ill. App. 3d at 203, 599 N.E.2d at 1325, quoting Fed. K Civ. P. 13(a). The federal action against the plaintiff alleged the plaintiff\u2019s role in drafting a prospectus and requested contribution from the plaintiff if any misstatement or omission in the prospectus was proven. The plaintiffs state claim was for the indemnification of its expenses in defending the federal action and relied on an indemnification clause in the parties\u2019 underwriting agreement. The appellate court reversed the judgment in plaintiffs favor, finding that the state claim did not arise out of the same transaction or occurrence because the proofs necessary for the state claim were not the same as the proofs necessary in the federal action. Such is not the case here, where plaintiff primarily sought to defeat the federal action and where, as we have discussed, the evidence in the state action would overlap with the evidence in the federal action. In the state action, plaintiff alleged that Fujisawa and FUSA had no evidence upon which, to bring the federal action. Therefore, the allegations in the federal action would be contested in the state action and the evidence in both cases would overlap. Southwest is also distinguishable from the present case. In that case, the plaintiffs state suit was a mortgage foreclosure action. In the federal suit, the defendant alleged economic coercion and tort claims based on the plaintiffs assertion of a claim against life insurance proceeds. The appellate court concluded that the trial court\u2019s sua sponte dismissal of the state action was an abuse of discretion because \u201c[t]he issue of mortgage foreclosure is not before the Federal court, nor are any of the underlying facts or documents which would support foreclosure.\u201d Southwest, 200 Ill. App. 3d at 738-39, 558 N.E.2d at 442-43. Southwest is not similar to the present case. As we have discussed, the state and federal causes are substantially the same for purposes of the section 2 \u2014 619(a)(3) dismissal in the present case.\nIn addition, the trial court\u2019s finding that the actions are between the \u201csame parties\u201d for section 2 \u2014 619(a)(3) purposes was not an abuse of discretion. The parties need not be identical. The test is satisfied if the litigants\u2019 interests are sufficiently similar, as they are in the present case. Plaintiffs interests in both actions are sufficiently similar because in both he seeks to avoid liability for allegedly concealing information about Lyphomed\u2019s FDA violations from Fujisawa. Fujisawa\u2019s and FUSA\u2019s interests in both actions are also substantially similar because they involve their cause of action against plaintiff and recovering damages from him for committing RICO violations. The fact that the individual defendants, who are officers and directors of Fujisawa and FUSA, are not parties to the federal action does not change the result. See Tambone, 91 Ill. App. 3d 865, 414 N.E.2d 533. The fact that Kapoor is the plaintiff in the state action and the defendant in the federal action does not change the result either (see Arthur Young & Co. v. Bremer, 197 Ill. App. 3d 30, 554 N.E.2d 671 (1990)), because section 2 \u2014 619(a)(3)\u2019s purpose is to preserve judicial economy and to avoid a multiplicity of actions. Accordingly, the litigants\u2019 interests in both actions are substantially similar to satisfy the \u201csame parties\u201d requirement.\nMoreover, we do not find that the trial court abused its discretion by failing to address any of the factors cited in Kellerman \u2014 comity, prevention of multiplicity, likelihood of obtaining complete relief in the foreign jurisdiction, or res judicata. Kellerman applied the factors in its review of a section 2 \u2014 619(a)(3) stay. Subsequent cases have extended the Kellerman factors to apply to section 2 \u2014 619(a)(3) dismissals. The present case involves a dismissal. The trial court articulated that its decision was based in part on \u201creasons of comity, judicial economy and the efficient overall administration of justice.\u201d Plaintiff argues that the trial court failed to cite the proper factors and performed no analysis. We first note that courts are not required to apply the factors; Kellerman and its progeny state that courts should, not must, consider them. In addition, several Illinois appellate cases have affirmed section 2 \u2014 619(a)(3) dismissals with no citation to the Kellerman factors or analysis of fewer than all of them. See Doutt, 276 Ill. App. 3d at 788-89, 659 N.E.2d at 91-92; Schnitzer, 274 Ill. App. 3d at 318-22, 653 N.E.2d at 828-30; Arthur Young & Co., 197 Ill. App. 3d at 47-48, 554 N.E.2d at 683; Illinois Central, 168 Ill. App. 3d at 543-45, 522 N.E.2d at 846-47. In fact, not all four Kellerman factors necessarily apply to each section 2 \u2014 619(a)(3) dismissal. See Southwest, 200 Ill. App. 3d at 738-39, 558 N.E.2d at 442-43 (finding that \u201cconsiderations of comity, multiplicity of actions and res judicata\u201d did not apply); see also Annotation, 56 A.L.R.2d 335, 337 (1968) (\u201ca stay should be distinguished from *** dismissal of an action pending determination of another action between the same persons and on the same cause of action in another jurisdiction\u201d).\nIn the present case, plaintiff contends that \u201c[cjontrary to the Circuit Court\u2019s Order, allowing Kapoor\u2019s suit to proceed would not offend the principle of judicial comity\u201d because the causes of action in the federal and state actions differed and \u201cneither suit infringes upon the other forum\u2019s jurisdiction or judicial decisions.\u201d As we have discussed, the inquiry here does not focus on whether the causes of action were identical. The two actions arose out of the same occurrence. Contrary to plaintiffs argument, we do not see how the consideration of comity precludes dismissal of the state action. In addition, dismissal of the state action prevents a multiplicity of actions, as well as any associated vexation and harassment. Plaintiff also contends that dismissal was improper because he would not be able to obtain complete relief in the federal action. Plaintiff argues that he could not have brought his state action in the federal action as either a compulsive or a permissive counterclaim. See Fed. R Civ. E 13(a), (b). Even assuming that plaintiff is correct, any such inability to bring the counterclaims is irrelevant for purposes of a section 2 \u2014 619(a)(3) dismissal because the statute is designed to avoid duplicative actions and the central inquiry is \u201cnot whether the legal theories or the relief sought materially differs between the two actions.\u201d See Katherine M. v. Ryder, 254 Ill. App. 3d 479, 487, 627 N.E.2d 42, 47 (1993) (where, because of doctrine preventing plaintiffs from bringing pendent state law claims against state officers in federal courts, the plaintiffs were unable to assert their state law claims, appellate court found that fact irrelevant to the determination of the section 2 \u2014 619(a)(3) dismissal). Finally, we do not see how res judicata is a relevant consideration in the context of a dismissal, as opposed to a stay. After a dismissal, there is no remaining action to which res judicata principles can be applied. See Much Shelist Freed Denenberg & Ament, P.C. v. Lison, 297 Ill. App. 3d 375, 382 (1998) (\u201cThe doctrine of res judicata provides that a final judgment on the merits rendered by a court of competent jurisdiction bars a subsequent action involving the same claims or demands by the same parties\u201d) (Emphasis added).\nIn sum, the trial court did not abuse its discretion in finding that the state and federal actions were for the \u201csame causes\u201d between the \u201csame parties.\u201d The two actions arose out of plaintiffs alleged concealment of Lyphomed\u2019s FDA violations from Fujisawa while it was buying Lyphomed stock and the litigants\u2019 interests in both actions were sufficiently similar. Moreover, the trial court did not abuse its discretion in its application of the Kellerman factors. In light of the foregoing, we affirm the circuit court\u2019s order dismissing plaintiffs state action pursuant to section 2 \u2014 619(a)(3).\nAffirmed.\nMcNULTY, EJ., and RAKOWSKI, J., concur.\nInitially, we note that compliance with Supreme Court Rule 341 (134 Ill. 2d R. 341) is of importance in eveiy appeal. Specifically, Rule 341(e)(6) requires that the statement of facts in the appellant\u2019s brief shall he \u201cstated accurately and fairly without argument or comment, and with appropriate reference to the pages of the record on appeal.\u201d 134 Ill. 2d R. 341(e)(6). Plaintiff disregarded this rule by including arguments, with no citations to the record, in the fact section of his brief such as \u201ccertain defendants decided that extorting money from Kapoor would allow them to save face within the organization,\u201d and \u201c[rlather than take the heat for their own mismanagement, defendants decided to deflect internal and public criticism by falsely blaming Dr. Kapoor for FUSA\u2019s troubles.\u201d This court has held that the supreme court rules are not merely suggestions and that \u201cit is within our discretion to strike [plaintiffs] brief and dismiss the appeal based on violations of these rules. [Citation.]\u201d Geers v. Brichta, 248 Ill. App. 3d 398, 400, 618 N.E.2d 531, 533 (1993). However, we decline to take such a severe action at this time.\n\u201cA proprietary drug is a new patented drug, while generic drugs are versions of patented drugs ordinarily sold after the patent on the proprietary drug expires.\u201d Fujisawa Pharmaceutical Co. v. Kapoor, 936 F. Supp. 455, 457 (N.D. Ill. 1996).\nMurphy v. Kapoor, No. 89 \u2014 C\u20143265 (N.D. Ill.); Harman v. Lyphomed, Inc., No. 88 \u2014 C\u20140476 (N.D. Ill.)\nKapoor v. Fujisawa Pharmaceutical Co., No. 96C \u2014 06\u201450 (Del.).", "type": "majority", "author": "JUSTICE TULLY" } ], "attorneys": [ "Dan K. Webb, W Gordon Dobie, Jennifer J. Demmon, John E. Mooney, and Cornelius M. Murphy, all of Winston & Strawn, of Chicago, for appellant.", "Robert J. Kopecky, Sallie G. Smylie, and Maria R. Ticsay, all of Kirkland & Ellis, of Chicago, and Richards & O\u2019Neil, LLR of New York, New York, for appellees." ], "corrections": "", "head_matter": "JOHN N. KAPOOR, Plaintiff-Appellant, v. FUJISAWA PHARMACEUTICAL COMPANY, LTD., et al., Defendants-Appellees.\nFirst District (2nd Division)\nNo. 1\u201497\u20143212\nOpinion filed August 11, 1998.\nDan K. Webb, W Gordon Dobie, Jennifer J. Demmon, John E. Mooney, and Cornelius M. Murphy, all of Winston & Strawn, of Chicago, for appellant.\nRobert J. Kopecky, Sallie G. Smylie, and Maria R. Ticsay, all of Kirkland & Ellis, of Chicago, and Richards & O\u2019Neil, LLR of New York, New York, for appellees." }, "file_name": "0780-01", "first_page_order": 800, "last_page_order": 811 }