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Uchumi Supermarkets Ltd. v. Diners Club International

December 16, 1999

UCHUMI SUPERMARKETS LTD., AND TOTAL OIL PRODUCTS (E.A.) LTD., FOR THEMSELVES AND A CLASS OF PERSONS SIMILARLY SITUATED, AND DR. SUNIL VINAYAK, JACQUES ARNOLD VERWIEL, MATTHEW NDONGA KABAU, DILIP K. NAGPAL, THE SPINNER'S WEB LTD., AND DIANA PATEL, FOR THEMSELVES AND A CLASS OF PERSONS SIMILARLY SITUATED,
PLAINTIFFS-APPELLANTS,
V.
DINERS CLUB INTERNATIONAL, LTD.,
DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 95 L 9183 The Honorable Lee Preston, Judge, Presiding.

The opinion of the court was delivered by: Justice Hourihane

This is an appeal from an order denying plaintiffs' petition, pursuant to Supreme Court Rule 187 (134 Ill. 2d R. 187), to reinstate their case which had been dismissed by the circuit court on forum non conveniens grounds. On appeal, plaintiffs argue that the other forum's refusal to allow the case to proceed as a representative, i.e., class, action constitutes a refusal to accept jurisdiction over the action for purposes of Rule 187. For the reasons that follow, we affirm the denial of their petition to reinstate.

BACKGROUND

On May 24, 1995, plaintiffs filed a nine-count "class action complaint" against Diners Club International, Ltd. (DCI), alleging fraud, conspiracy to commit fraud, negligence, willful and wanton conduct, and conversion. Plaintiffs, who are Kenyan corporations or individual residents of that country, sought the payment of moneys allegedly owed to them by Diners Finance Ltd., DCI's licensee in Kenya. Plaintiffs sought to represent two classes: an "establishment class", whose members agreed to honor the Diners Club card and who are now allegedly owed money for customer purchases made using that card; and a "depositor class", whose members are allegedly owed money from their participation in the Diners Finance bank deposit program.

DCI filed a motion to dismiss, pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1998)), based on grounds of forum non conveniens. DCI argued that Kenya is the appropriate forum in that all activities underlying plaintiffs' theories of liability took place in Kenya, all of the documents, witnesses and necessary third parties are in Kenya, and all of the plaintiffs and purported class members are residents of Kenya. Plaintiffs argued, inter alia, that although Kenyan civil procedure recognizes representative actions, they do not provide the scope of relief available in class actions in this state.

On January 31, 1996, the circuit court (Levin, J.) granted DCI's motion. The court observed that, even if the scope of relief in Kenya is not the same as in the United States, or if Kenyan substantive law is less favorable, neither provides a basis to avoid dismissal based on forum non conveniens.

The dismissal of plaintiffs' complaint was made subject to the provisions of Rule 187(c)(2). This rule provides that an action dismissed on forum non conveniens grounds is subject to certain conditions and, upon timely petition by plaintiffs, may be reinstated where "the court in the other forum refuses to accept jurisdiction." 134 Ill. 2d R. 187.

On April 10, 1998, plaintiffs petitioned the circuit court to reinstate the action. They argued that the March 13, 1998, order of the Kenyan court, declining to take the case as a representative action, constitutes a refusal to accept jurisdiction under Rule 187. DCI argued that plaintiffs' characterization of the March 13, 1998, order is simply wrong and that the litigation is proceeding in Kenya. DCI also argued that the adequacy of the Kenyan courts was already considered by the circuit court when it granted DCI's motion to dismiss, that plaintiffs never appealed that ruling, and that the issue could not be relitigated.

The March 13, 1998, order of the Kenyan court indicates that it was entered in response to an application by some 26 persons to be joined as substantive parties in that suit. The order, which dismissed the petition, states in relevant part:

"[W]here the claim of the plaintiff is for damages the machinery of a representative suit is absolutely inapplicable. The relief that he is seeking is a personal relief, applicable to him alone, and does not benefit in any way the class for whom he purports to bring the action.

It is accordingly inappropriate to combine the differing claims of these plaintiffs in one such suit being primarily for the purposes of claiming damages founded on differing and varied factual basis [sic]."

On November 30, 1998, the circuit court (Preston, J.) denied plaintiffs' Rule 187 petition to reinstate. The court noted that the Kenyan court did not dismiss the case, but simply ruled that it could not go forward as a class action, and that this was an insufficient basis to reinstate the case. Plaintiffs timely appealed.

ANALYSIS

Plaintiffs argue that, although no class action was certified in the circuit court, the "action" pled was a class action, and the refusal of the Kenyan court to entertain the suit as a representative action constitutes a refusal to accept jurisdiction for ...


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