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10/28/87 Natural Gas Pipeline v. Phillips Petroleum Company

October 28, 1987





516 N.E.2d 527, 163 Ill. App. 3d 136, 114 Ill. Dec. 372 1987.IL.1599

Appeal from the Circuit Court of Cook County; the Hon. Anthony J. Scotillo, Judge, presiding.


JUSTICE FREEMAN delivered the opinion of the court. McNAMARA, P.J., and WHITE, J., concur.


Plaintiff Natural Gas Pipeline Company of America brought suit in the circuit court of Cook County to obtain declaratory, injunctive and monetary relief with respect to: (1) its obligations under various contracts with defendant Phillips Petroleum Company to "take or pay" for natural gas supplied it by defendant; (2) the price of certain volumes of gas previously purchased from defendant under other contracts; (3) overpayments to defendant for gas purchased under another contract. Defendant filed a motion to dismiss pursuant to section 2-619(a)(3) of the Civil Practice Law (Ill. Rev. Stat. 1985, ch. 110, par. 2-619) or, alternatively, on grounds of forum non conveniens. The trial court denied the motion based on the latter grounds but granted it pursuant to section 2-619(a)(3). From that ruling, plaintiff appeals and defendant cross-appeals.

Plaintiff, a Delaware corporation with its principal place of business in Illinois, is an interstate natural gas supplier to such Illinois utilities as People's Gas, Light and Coke Company. Defendant, a Delaware corporation with its principal place of business in Oklahoma, is a producer/supplier of natural gas which does business and has a registered agent in Illinois. The subject of plaintiff's suit is a series of 11 gas purchase contracts with defendant. Plaintiff filed its suit on April 21, 1987, at 11 a.m. The same day at 9:01 a.m., defendant had filed suit in Louisiana seeking to enjoin plaintiff from continuing breaches of 31 gas purchase contracts between the parties, including the 11 at issue here, and specific performance of plaintiff's obligations under those contracts. At the time of oral argument in this appeal, defendant filed a supplemental affidavit of one of its Louisiana counsel attesting that its "ratable take" claims have been deleted from the Louisiana litigation but that all 11 contracts involved here remain in issue there. Defendant's amended Louisiana petition, an exhibit to the supplemental affidavit, reveals that there are presently 21 contracts between the parties in issue in Louisiana.

Ten of the gas purchase contracts at issue here concern natural gas defendant produces from wells in the Gulf of Mexico, six off-shore Texas and four off-shore Louisiana. The eleventh contract concerns gas produced from a well in New Mexico. Plaintiff executed all 11 contracts in Texas. Defendant's predecessors executed 10 of them in Texas and the eleventh in Oklahoma. Defendant delivers the off-shore gas to plaintiff and other purchasers through a meter at each of its production platforms and into a single pipeline connection. The purchasers' agent, High Island Offshore Systems, monitors the gas as it flows through the meters and delivers it to the various purchasers. Defendant keeps records relating to communications with plaintiff and plaintiff's agent at defendant's Lafayette, Louisiana, office. Defendant maintains its records relating to gas production under the contracts there and in Houston, Texas. Plaintiff takes delivery of the gas produced in New Mexico in that State.

Upon delivery of the gas, plaintiff transports it through a pipeline system terminating in Illinois. The contracts at issue require defendant to report the total volume of gas produced during particular periods in monthly allocation statements sent to plaintiff's headquarters in Lombard, Illinois. After processing the statements, plaintiff pays defendant by checks prepared in Illinois, drawn on Illinois banks, and delivered to a Chicago address. Plaintiff also sends notices required under the contracts to defendant in either Oklahoma or Texas and receives some notices in Houston.

On appeal, plaintiff contends the trial court abused its discretion in dismissing its complaint under section 2-619(a)(3) after having denied defendant's motion on forum non conveniens grounds. Section 2-619(a)(3) provides for dismissal of an action or "other appropriate relief" where "there is another action pending between the same parties for the same cause." (Ill. Rev. Stat. 1985, ch. 110, par. 2-619(a)(3).) Plaintiff contends the trial court misapplied the standards governing defendant's section 2-619(a)(3) motion as articulated in A. E. Staley Manufacturing Co. v. Swift & Co. (1980), 84 Ill. 2d 245, 419 N.E.2d 23.

Defendant cross-appeals the denial of its motion to dismiss on forum non conveniens grounds. Its counsel stated at oral argument, however, that it intended thereby merely to preclude a reversal of the section 2 -- 619(a)(3) dismissal on the ground that it did not challenge the forum non conveniens ruling. As such and because our decision with respect to plaintiff's appeal is dispositive, we will not address the merits of the cross-appeal. However, because motions to dismiss brought on alternative grounds of forum non conveniens and section 2 -- 619(a)(3) are interrelated (84 Ill. 2d 245, 251, 419 N.E.2d 23), we will examine the legal and factual bases of the trial court's ruling on the former grounds.


The doctrine of forum non conveniens is founded on considerations of fundamental fairness and sensible and effective judicial administration; in applying these considerations, a trial court may decline jurisdiction of a case when it appears there is another forum that can better serve the convenience of the parties and the ends of Justice. (Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511, 514, 301 N.E.2d 729, cert. denied (1976), 424 U.S. 943, 47 L. Ed. 2d 349, 96 S. Ct. 1411; Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill. 2d 359, 365, 456 N.E.2d 98.) Under the doctrine, it is assumed there is more than one forum in which jurisdiction over the parties and subject matter may be obtained. Jones v. Searle Laboratories (1982), 93 Ill. 2d 366, 371, 444 N.E.2d 157.

Specific private interest factors weighing on a forum non conveniens determination include: (1) the relative ease of access to sources of proof; (2) availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; (3) possibility of view of premises if appropriate to the action; (4) all other practical problems that make trial of a case easy, expeditious and inexpensive; and (5) any questions as to the enforceability of any judgment obtained. Moreover, a court is to weigh the relative advantages and obstacles to a fair trial but, unless the balance is strongly in favor of the defendant, a plaintiff's choice of forum should rarely be disturbed. (See Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508-09, 91 L. Ed. 1055, 1062-63, 67 S. Ct. 839, 843; Jones v. Searle Laboratories (1982), 93 Ill. 2d 366, 372-73, 444 N.E.2d 157.) Specific public interest factors include: (1) the concentration of litigation in congested centers instead of being handled at its origin; (2) the imposition of jury duty on a community with no relation to the litigation; (3) the local interest in having localized controversies decided at home; (4) the desirability of having the trial in a forum familiar with the State law which governs the case rather than having a court in another forum deal with problems in conflict of laws and in foreign law. (Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839; Jones v. Searle Laboratories (1982), 93 Ill. 2d 366, 444 N.E.2d ...

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