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Grant v. Starck





APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR A. SULLIVAN, JR., Judge, presiding.


This personal injury action was filed in the Circuit Court of Cook County. Defendants moved to dismiss plaintiffs' complaint on the grounds of forum non conveniens. The court denied this motion but certified its ruling under Supreme Court Rule 308 (Ill. Rev. Stat. 1979, ch. 110A, par. 308), and we granted defendants' application for review. We affirm.

On March 26, 1978, plaintiffs were injured when a truck driven by defendant Alan Starck struck the car in which they were riding. The collision occurred in Walworth County, Wisconsin, about one mile north of the Illinois State line, while plaintiffs were en route from Illinois to their new home in Wisconsin. Plaintiffs Ronald, Dale, and Lela Grant were riding in a car driven by Mary Grant, Ronald's wife, who is not a party to this action. Defendants Starck and Lange were driving tractor trailers for defendant Chippewa Motor Freight, Inc. Starck's vehicle struck the plaintiffs' automobile, allegedly when Mary Grant turned left in front of Starck's vehicle as he attempted to pass her car at an intersection.

Plaintiffs initially filed suit in the Federal District Court for the Northern District of Illinois against Starck and Chippewa, alleging jurisdiction on the basis of the parties' diversity of citizenship. *fn1 Plaintiffs dismissed this Federal suit, however, and refiled in the Cook County Circuit Court on June 6, 1979. Defendants filed a motion to dismiss on the grounds of forum non conveniens and requested the court to declare Wisconsin law applicable. In its final order of June 26, 1980, the trial court denied the motion to dismiss but did not rule on the applicability of Wisconsin law.


• 1-3 Although defendants contend that the forum non conveniens doctrine "mandates" dismissal of plaintiffs' lawsuit, the issue may be more accurately framed as whether the trial court abused its discretion in denying defendants' motion. Under this doctrine a court may decline jurisdiction of a case if there is another forum that is more convenient to the parties and more conducive to judicial efficiency. (E.g., People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill.2d 90, 383 N.E.2d 977, cert. denied (1979), 441 U.S. 932, 60 L.Ed.2d 660, 99 S.Ct. 2052.) Its primary purpose is to protect individual defendants from being harassed or oppressed by a plaintiff's choice of an inconvenient forum. Public interest and administrative factors are also important. (See Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508-09, 91 L.Ed. 1055, 1062-63, 67 S.Ct. 839, 843; Air France.) Without question, forum non conveniens is a discretionary doctrine; the trial court must weigh several considerations to determine whether the doctrine should be applied in a particular case. (Gulf Oil.) These factors, which can be divided into two categories, provide a principled basis for the court's exercise of discretion. The first category involves the private interests of the parties in conducting the litigation, such as "the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling [witnesses] and the cost of obtaining attendance of willing witnesses; possibility of view of premises, if * * * appropriate * * *; and all other practical problems that make trial of a case easy, expeditious and inexpensive." (Gulf Oil Corp., 330 U.S. 501, 508-09, 91 L.Ed. 1055, 1062-63, 67 S.Ct. 839, 843.) The second group of factors to be considered in applying the doctrine relate to the public interest. These include administrative difficulties of the chosen forum, such as congested court dockets; the burden of jury duty on people who live in a community that has no relation to the litigation; the interest of a jurisdiction in having local controversies decided locally; and the potential problems facing the forum that must apply the law of a foreign jurisdiction. (Gulf Oil Corp.) Unless the balance of these factors strongly favors defendant, a plaintiff's choice of forum should rarely be disturbed. Stone Container Corp. v. Industrial Risk Insurers (1980), 91 Ill. App.3d 807, 414 N.E.2d 1227; Air France.

Before applying these principles to the facts of this case we must consider plaintiffs' contention that defendants should be estopped from raising the forum non conveniens doctrine. Plaintiffs contend that they voluntarily dismissed the Federal action pursuant to an "understanding" with defense counsel that the action would be refiled in the Cook County Circuit Court. Plaintiffs argue that defendants accordingly should be estopped from raising the forum non conveniens doctrine. They further argue that defendants' challenge is essentially a motion to transfer venue. Since defendants filed their motion to dismiss after filing a general appearance and answer, plaintiffs argue that they waived their objection under section 8(2) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 8(2)), which states that "[a]ll objections of improper venue are waived * * * unless a motion to transfer * * * is made * * * on or before the date upon which [defendant] is required to appear * * *."

• 4 We find that defendants have not waived their right to raise the doctrine. The only memorandum concerning the alleged agreement that is contained in the record states:

"Plaintiffs' counsel, after an agreement with defendants' counsel, took a voluntary dismissal and refiled in the Circuit Court. A part of that agreement was that in the Circuit Court the only issue to be raised concerning jurisdiction was the question of Transport Insurance Company as a party defendant."

• 5 A motion to dismiss on the basis of forum non conveniens assumes that all courts> concerned have jurisdiction and therefore is not truly a challenge to a court's authority to adjudicate the litigation. Thus, we do not interpret the parties' "agreement" as a relinquishment of defendants' prerogative to raise the forum non conveniens doctrine. Furthermore, we disagree with plaintiffs' contention that the defense motion to dismiss is analogous to an objection to venue which defendants consequently waived by failing to object before they answered the complaint. We rejected a similar argument in McDonald's Corp. v. Smargon (1975), 31 Ill. App.3d 493, 334 N.E.2d 385, by noting that a defendant is unable to determine whether a motion under this doctrine will lie until he can investigate the plaintiff's complaint through discovery procedures. Under Supreme Court Rule 201(d) (Ill. Rev. Stat. 1979, ch. 110A, par. 201(d)), discovery usually cannot be initiated before all defendants appear. We concluded in McDonald that a defendant's motion to dismiss for forum non conveniens should not be analogized to an objection to improper venue. Following this reasoning, we find that defendants have not waived their right to raise the doctrine.

Defendants contend that the relevant connections between this litigation and the two States involved strongly favor Wisconsin as the forum. First, they argue that they want to join Mary Grant, driver of plaintiff's car, as a third-party defendant, but are barred from doing so because she is a Wisconsin resident and the Illinois court cannot obtain jurisdiction over her. As a result, they would be forced to bring a second suit against her in Wisconsin, resulting in "piecemeal" litigation. They further argue that since the accident occurred in Wisconsin, sources of proof are more accessible there; the Illinois court lacks power to compel the attendance of important witnesses who reside in Wisconsin; two of the treating physicians will be burdened by extra time and expenses in travelling to Chicago to testify; an Illinois jury would be precluded from viewing the accident scene; the congested Cook County docket would cause substantially greater delays in the trial than would result from trying the case in Walworth County; the accident situs has the greater interest in deciding the controversy; and the Wisconsin court is more suited to apply its own comparative negligence law than is the Illinois court, if choice of law principles indicate that Wisconsin law will govern the action.

Plaintiffs counter these factors by enumerating others which would favor Cook County as the proper forum, e.g., the two Chippewa drivers reside in Cook County and are employed at the Chicago terminal; the tractor trailers that Starck and Lange were driving at the time of the collision had been serviced, inspected, loaded, weighed and dispatched from Chicago; the records involving the trucks and the drivers, which are relevant to plaintiffs' theory of defendants' negligence, exist in Chicago and are thus more convenient to produce in Cook County Circuit Court; Chippewa's safety director is headquartered in Chicago and would be more conveniently produced for trial in Cook County than Walworth County; all directions concerning the defendant drivers' trucking route emanated from Chicago; a citizen's band radio conversation between the two drivers, allegedly relating to Starck's decision to pass the Grant vehicle, had commenced in Illinois; at the time of the occurrence, plaintiff Ronald Grant was a registered Illinois voter and driver, who was still in the process of moving his home to Wisconsin; and with the exception of the emergency room treatment, the plaintiffs' medical treatment occurred in Illinois, and therefore most of the medical witnesses and records are located in Illinois.

• 6 As the above recital indicates, both forums have some ties to the litigation. It was therefore properly within the trial court's discretion to determine which forum is the more convenient choice. Reviewing courts> have reversed orders denying motions to dismiss for forum non conveniens only when the connection between the litigation and plaintiff's chosen forum is so slight as to be virtually nonexistent. Thus, in Adkins v. Chicago, Rock Island and Pacific R.R. Co. (1973), 54 Ill.2d 511, 301 N.E.2d 729, the Illinois Supreme Court reversed the trial court's denial of defendant's motion to dismiss because the only connection the tort action had with Illinois was that the defendant railroad transacted business in Illinois. All the other considerations in the case weighed in favor of defendant's motion to dismiss. The plaintiff's decedent had been killed at a railroad crossing in Iowa; the plaintiff, a Michigan resident, initially filed suit in Federal court in Iowa but refiled in the Illinois Circuit Court after certain rulings had been made; after defendants filed their motion to dismiss, plaintiff amended the complaint to add two Illinois residents as defendants. The supreme court noted that the Rock Island, Illinois courtroom was 200 miles from the accident situs, which would preclude a jury from viewing the actual crossing. In addition, Iowa law was applicable and a trial in Iowa would proceed without the lengthy delays present in the Illinois court. The supreme court also found that the plaintiff had not used good faith in adding the two Illinois residents as defendants. Therefore, the supreme court held that defendant's motion to dismiss should have been granted. In Giseburt v. Chicago Burlington & Quincy R.R. Co. (1964), 45 Ill. App.2d 262, 195 N.E.2d 746, the appellate court reversed the trial court's denial of defendant's motion to dismiss for forum non conveniens because there was no relevant connection between the litigation and the chosen forum. The plaintiff, a Missouri resident, filed suit in Illinois against defendant railroad for injuries sustained at an allegedly obstructed railroad crossing in Missouri. The case was tried in Illinois, but the plaintiff was chiefly represented by Missouri lawyers. None of the witnesses were from Illinois. The appellate court further noted that the courtroom was 350 miles away from the accident situs, precluding a jury from viewing the scene. Moreover, there were serious questions involving the interpretation of Missouri law. The court concluded that, under these circumstances, there was no justification for causing defendant to litigate in Illinois. See also Air France (Singapore airline cannot be sued in Illinois for injuries arising out of a hijacking to Uganda where none of the claims or plaintiffs have any connection with Illinois).

In contrast to those cases, we believe the allegations in the pending case establish the existence of substantial, relevant connections between Illinois and the cause of action. It may be, as defendants assert, that not every connection plaintiffs list is "relevant." For example, that Ronald Grant held an Illinois driver's license and voter's card at the time of the collision does not strengthen the claim that the Illinois forum is more convenient to him; the record shows that he currently lives in Tennessee. We ...

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