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Bird v. Luhr Brothers

October 29, 2002

JOSHUA R. BIRD, PLAINTIFF-APPELLEE,
v.
LUHR BROTHERS, INC., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of St. Clair County. No. 00-L-327 Honorable Stephen M. Kernan, Judge, presiding.

The opinion of the court was delivered by: Justice Chapman

This is an appeal from an order of the circuit court denying the motion of Luhr Brothers, Inc. (defendant), to dismiss or transfer on the grounds of forum non conveniens pursuant to Supreme Court Rule 187 (134 Ill. 2d R. 187). The sole issue for review is whether the circuit court abused its discretion in denying defendant's motion. We affirm and remand.

On January 7, 2000, the M/V Mary B and her crew were performing dredging operations in the waters of the Ohio River, at mile 973, between Pulaski County, Illinois, and Ballard County, Kentucky, on the Kentucky side of the river. Joshua R. Bird (plaintiff) was a member of that crew. Plaintiff alleges that he suffered a serious injury on the vessel when he slipped in fuel that had accumulated during refueling. He received immediate medical treatment in Cape Girardeau, Missouri. He received subsequent medical treatment in St. Louis, Missouri; Randolph County, Illinois; Perry County, Illinois; and St. Clair County, Illinois. Plaintiff is a resident of Perry County, Illinois. Defendant, plaintiff's employer, is a corporate citizen of the State of Illinois, with its principal place of business in Monroe County, Illinois.

On May 23, 2000, plaintiff filed suit in St. Clair County, Illinois, alleging a cause of action against defendant under the Jones Act (46 U.S.C. *688 et seq. (2000)). On June 23, 2000, defendant filed a forum non conveniens motion to dismiss pursuant to Supreme Court Rule 187 (134 Ill. 2d R. 187) and an alternative motion to transfer venue. The trial court denied defendant's motions to dismiss or transfer. Defendant appeals pursuant to Supreme Court Rule 306(a)(2) (166 Ill. 2d R. 306(a)(2)), contending that the trial court abused its discretion in refusing to dismiss or transfer venue.

While conceding that jurisdiction and venue are proper in St. Clair County, defendant contends that St. Clair County is not a convenient forum to litigate plaintiff's claim. Defendant claims that no significant connection exists between plaintiff's chosen forum and the litigation and that a dismissal or transfer is therefore warranted based on private- and public-interest factors. Defendant contends that convenience factors favor an interstate transfer to Ballard County, Kentucky, or in the alternative an intrastate transfer to Pulaski County, Illinois. We disagree and affirm the decision of the trial court.

Forum non conveniens is " 'founded in considerations of fundamental fairness and sensible and effective judicial administration.' " First American Bank v. Guerine, 198 Ill. 2d 511, 515, 764 N.E.2d 54, 57 (2002) (quoting Adkins v. Chicago, Rock Island & Pacific R.R. Co., 54 Ill. 2d 511, 514, 301 N.E.2d 729, 730 (1973)). The doctrine provides that a court " 'may decline to exercise jurisdiction over a case properly before it, whenever it appears that there is another forum that can better serve the convenience of the litigants and promote the ends of justice.' " Lambert v. Goodyear Tire & Rubber Co., 332 Ill. App. 3d 373, 377, 773 N.E.2d 133, 137 (2002) (quoting Horn v. Rincker, 84 Ill. 2d 139, 149, 417 N.E.2d 1329, 1334 (1981)). Accordingly, the doctrine presupposes the existence of more than one proper forum with jurisdiction over a plaintiff's cause of action. Niepotter v. Central Illinois Public Service Co., 303 Ill. App. 3d 632, 635, 707 N.E.2d 1278, 1280 (1999).

There are two potential applications of forum non conveniens in Illinois: interstate forum non conveniens and intrastate forum non conveniens. Lambert, 332 Ill. App. 3d at 377, 773 N.E.2d at 137. The interstate branch of forum non conveniens considers whether Illinois is an appropriate state in which to litigate the controversy, and the intrastate branch of the doctrine considers whether the cause is being litigated in the most convenient county within Illinois. Lambert, 332 Ill. App. 3d at 378, 773 N.E.2d at 137 (citing 3 R. Michael, Illinois Practice *14.1 (1989)). The Illinois Supreme Court has instructed that the same considerations of convenience and fairness apply equally when deciding motions based on interstate forum non conveniens or intrastate forum non conveniens. See Torres v. Walsh, 98 Ill. 2d 338, 456 N.E.2d 601 (1983). However, for the purpose of deciding interstate forum non conveniens motions, a plaintiff's home forum is the state in which he or she lives, not the specific county of residence. Gridley v. State Farm Mutual Automobile Insurance Co., 329 Ill. App. 3d 422, 429-30, 767 N.E.2d 896, 903 (2002) (relying on Simantz v. Prime Motor Inns, Inc., 213 Ill. App. 3d 813, 817, 573 N.E.2d 234, 236 (1991); see also Kwasniewski v. Schaid, 153 Ill. 2d 550, 553-54, 607 N.E.2d 214, 216 (1992).

Whether a dismissal or transfer on the basis of forum non conveniens is warranted lies within the sound discretion of the circuit court. Peile v. Skelgas, Inc., 163 Ill. 2d 323, 336, 645 N.E.2d 184, 190 (1994). The circuit court's decision to either grant or deny a defendant's forum non conveniens motion will not be overturned absent an abuse of discretion. Peile, 163 Ill. 2d at 336, 645 N.E.2d at 190. The role of the appellate court is not to substitute its judgment for that of the trial court or even to determine whether the trial court exercised its discretion wisely; but rather, its role is to determine whether the trial court abused its discretion. Niepotter, 303 Ill. App. 3d at 636, 707 N.E.2d at 1281. An abuse of discretion occurs when the circuit court acts arbitrarily, fails to employ conscientious judgment, and ignores recognized principles of law. Hernandez v. Karlin Foods Corp., 322 Ill. App. 3d 805, 807-08, 751 N.E.2d 27, 29-30 (2001).

In exercising its discretion, the circuit court must determine whether the defendant has established that convenience factors weigh strongly in favor of a dismissal or transfer. Walker v. American River Transportation, 277 Ill. App. 3d 87, 89, 660 N.E.2d 550, 552 (1996) (citing Griffith v. Mitsubishi Aircraft International, Inc., 136 Ill. 2d 101, 106, 554 N.E.2d 209, 211 (1990)). The Illinois Supreme Court has recently reiterated that the factors which guide the Illinois courts' consideration of convenience fall into two categories: the private interests of the litigants and the interests of the public. Guerine, 198 Ill. 2d at 516, 764 N.E.2d at 58. The private-interest factors include the following: (1) the convenience of the litigants, (2) the relative ease of access to sources of testimonial, documentary, and real evidence, and (3) all other practical problems that make the trial of a case easy, expeditious, and inexpensiveBe.g., the availability of compulsory process to secure the attendance of unwilling witnesses, the cost to obtain the attendance of willing witnesses, and the ability to view the premises where appropriate. Guerine, 198 Ill. 2d at 516, 764 N.E.2d at 58; see Griffith, 136 Ill. 2d at 105-06, 554 N.E.2d 209; Bland v. Norfolk & Western Ry. Co., 116 Ill. 2d 217, 224, 506 N.E.2d 1291 (1987). The public-interest factors include the following: (1) the interest in deciding localized controversies locally, (2) the unfairness of imposing the expense of a trial and the burden of jury duty on residents of a county with little connection to the litigation, and (3) the administrative difficulties presented by adding further litigation to court dockets in already congested jurisdictions. Guerine, 198 Ill. 2d at 516-17, 764 N.E.2d at 58; see Griffith, 136 Ill. 2d at 105-06, 554 N.E.2d at 211.

Additionally, as the supreme court has repeatedly emphasized: " 'A further consideration under the forum non conveniens doctrine is deference to the plaintiff's choice of forum. A plaintiff's right to select the forum is a substantial one, and unless the factors weigh strongly in favor of transfer, "the plaintiff's choice of forum should rarely be disturbed." ' " Peile, 163 Ill. 2d at 337, 645 N.E.2d at 191 (quoting Griffith, 136 Ill. 2d at 106, 554 N.E.2d at 211 (quoting Jones v. Searle Laboratories, 93 Ill. 2d 366, 372-73, 444 N.E.2d 157, 160 (1982))). But when the plaintiff does not reside in the forum where he or she filed suit or the accident did not occur in the forum where he or she filed suit, the plaintiff's choice is given less deference. Dykstra v. A.P. Green Industries, Inc., 326 Ill. App. 3d 489, 493, 760 N.E.2d 1034, 1037 (2001). Although the deference accorded to the plaintiff's choice of venue in such instances is less, less is not synonymous with none. Dykstra, 326 Ill. App. 3d at 493, 760 N.E.2d at 1037; Elling v. State Farm Mutual Automobile Insurance Co., 291 Ill. App. 3d 311, 318, 683 N.E.2d 929, 934 (1997). Regardless of the amount of deference given to the plaintiff's selection of a particular forum, the defendant still bears the burden of showing that the plaintiff's selection of the forum is inconvenient to the defendant and that another forum is more convenient to all parties. Dykstra, 326 Ill. App. 3d at 493, 760 N.E.2d at 1038. Furthermore, a "defendant seeking transfer from a forum that bears no practical connection to the litigation still shoulders the responsibility of meeting this burden under the doctrine." Walker, 277 Ill. App. 3d at 89, 660 N.E.2d at 552.

The battle over forum thus begins with the plaintiff's choice already in the lead. Guerine, 198 Ill. 2d at 521, 764 N.E.2d at 61. "In most instances, the plaintiff's initial choice of forum will prevail, provided venue is proper and the inconvenience factors attached to such forum do not greatly outweigh the plaintiff's substantial right to try the case in the chosen forum." Peile, 163 Ill. 2d at 335-36, 645 N.E.2d at 190.

We will now undertake an examination of the private- and public-interest factors that apply to both interstate and intrastate forum non conveniens motions.

Private-Interest Factors

In support of its motion to dismiss or transfer, defendant filed a 29-page motion and affidavit detailing the mileage for potential witnesses from each of their residences to each of the three fora. Defendant's affidavit listed 17 crew members as potential occurrence witnesses, representing 5 different states and 15 different counties: 7 counties in Illinois, 3 counties in Missouri, 3 counties in Kentucky, 1 county in West Virginia, and 1 county in Arkansas. While one of the witnesses lives in St. Clair County, Illinois, none of the witnesses live in either Ballard County, Kentucky, or Pulaski County, Illinois. Defendant's affidavit states that the situs of the injury is 15 miles from the Ballard County, Kentucky, courthouse, 2 miles from the Pulaski County, Illinois, ...


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