1. 1 Forum Non Conveniens 1 Preliminary Question: What is the difference between a motion for change of venue and a forum non conveniens motion?

2. 2 FNC Predicates: There is jurisdiction. There could be proper venue in both counties. It is almost overwhelmingly more fair to transfer case to the county of defendant’s choosing.

3. 3 SC Rule 187 Motion must be filed no later than 90 days after the last day allowed for filing of that party’s answer. Motion must be filed no later than 90 days after the last day allowed for filing of that party’s answer. Shall be scheduled to allow parties sufficient time to conduct discovery on issues of fact raised by such motions. Shall be scheduled to allow parties sufficient time to conduct discovery on issues of fact raised by such motions. Intrastate transfer – from one clerk to another Intrastate transfer – from one clerk to another Dismissal: Dismissal: Def. must accept service of process from that court. Def. must accept service of process from that court. Def. must waive defense of statute of limitations. Def. must waive defense of statute of limitations.

4. 4 Forum Non Conveniens First National Bank v. Guerine First National Bank v. Guerine What deference is given to forum chosen by plaintiff? What deference is given to forum chosen by plaintiff? Private interest factors. Private interest factors. Public interest factors. Public interest factors. Burden on Defendant. Burden on Defendant. 4

5. 5 First National Bank v. Guerine Plaintiffs filed their action in Cook Co. where Guerine resides. Plaintiffs filed their action in Cook Co. where Guerine resides. Unless the balance strongly favors the defendant, plaintiff’s choice of forum should rarely be disturbed. Unless the balance strongly favors the defendant, plaintiff’s choice of forum should rarely be disturbed. Factors to be considered: Factors to be considered: Private interests: Private interests: Convenience of the parties Convenience of the parties Relative ease of access to sources of testimonial, documentary, and real evidence Relative ease of access to sources of testimonial, documentary, and real evidence All other practical problems that make trial of a case easy, expeditious, and inexpensive. All other practical problems that make trial of a case easy, expeditious, and inexpensive. Public interests: Public interests: Interest in deciding localized controversies Interest in deciding localized controversies Unfairness of imposing the expense of a trial and burden of jury duty on residents of a county with little connection to litigation Unfairness of imposing the expense of a trial and burden of jury duty on residents of a county with little connection to litigation Administrative difficulties presented by forcing more litigation into congested fora. Administrative difficulties presented by forcing more litigation into congested fora. Court congestion is relatively insignificant. Court congestion is relatively insignificant.

6. 6 Guerine, cont’d Plaintiff’s choice of forum should rarely be disturbed Plaintiff’s choice of forum should rarely be disturbed Plaintiff’s interest receives less deference when neither plaintiff’s residence nor the site of the accident or injury is located in the chosen forum. Plaintiff’s interest receives less deference when neither plaintiff’s residence nor the site of the accident or injury is located in the chosen forum. Defendant must show that the plaintiff’s chosen forum is inconvenient to the defendant is another forum is more convenient for all parties Defendant must show that the plaintiff’s chosen forum is inconvenient to the defendant is another forum is more convenient for all parties Cannot assert that plaintiff’s chosen form is inconvenient for the plaintiff. Cannot assert that plaintiff’s chosen form is inconvenient for the plaintiff. In most instances, Pl’s choice of forum will prevail provided venue is proper and inconvenience factors attached to such forum do not greatly outweigh Pl’s substantial right to try the case in the chosen forum. In most instances, Pl’s choice of forum will prevail provided venue is proper and inconvenience factors attached to such forum do not greatly outweigh Pl’s substantial right to try the case in the chosen forum.

7. 7 Guerine, conclusion Witnesses dispersed among several counties in the state. Witnesses dispersed among several counties in the state. Private interest factors Private interest factors One of the defendants and his passenger lives in Cook and did not file an FNC claim. One of the defendants and his passenger lives in Cook and did not file an FNC claim. Other D headquartered in Indiana Other D headquartered in Indiana Accident in DeKalb Accident in DeKalb Witnesses in Kane, Dupage and DeKalb Witnesses in Kane, Dupage and DeKalb Public interest factors Public interest factors Defendant Guerine lives in Cook & drove on Cook Co. roads. Defendant Guerine lives in Cook & drove on Cook Co. roads. While Cook Co. courts may be congested, congestion alone is not dispositive. While Cook Co. courts may be congested, congestion alone is not dispositive. While DeKalb Co. has significant ties to the case, Cook Co. does as well. While DeKalb Co. has significant ties to the case, Cook Co. does as well. Today convenience has a different meaning. Today convenience has a different meaning. Trial ct. abuses its discretion in granting an intrastate FNC motion where the potential trial witnesses are scattered among several counties, including Pl’s chosen forum. Trial ct. abuses its discretion in granting an intrastate FNC motion where the potential trial witnesses are scattered among several counties, including Pl’s chosen forum.

8. More Cases on Forum Non Conveniens Dawdy v Union Pacific Traffic accident in Macoupin County Case filed in Madison Co. In choosing venue, why would plaintiff want to play an away game? Gridley v State Farm La. Plaintiff filed class action in Madison Co.

9. Langenhorst v Norfolk Southern RR Pl. filed suit in St. Clair Co. for train- motor vehicle accident from Clinton Co. Pl. filed suit in St. Clair Co. for train- motor vehicle accident from Clinton Co. Defense witnesses from Clinton Co. Defense witnesses from Clinton Co. Close case. Trial judge might have ruled for defense. Close case. Trial judge might have ruled for defense. Applying abuse of discretion standard, appellate and Supreme Courts affirmed. Applying abuse of discretion standard, appellate and Supreme Courts affirmed. 9

10. Fennell v. Ill. Central RR. Pl. filed FELA action in MS. Then after dismissal, refiled in St. Clair Co. Pl. filed FELA action in MS. Then after dismissal, refiled in St. Clair Co. S. Ct. reversed denial of dismissal, finding abuse of discretion. S. Ct. reversed denial of dismissal, finding abuse of discretion. Pl. lived in MS Pl. lived in MS Asbestosis exposure occurred in MS and LA. Asbestosis exposure occurred in MS and LA. Vast majority of witnesses in MS, not subject to IL subpoena Vast majority of witnesses in MS, not subject to IL subpoena IL had no interest in this MS litigation. IL had no interest in this MS litigation. 10

11. 11 Glass v. DOT Transportation, 393 Ill. App. 3d 829 (1 st Dist. 2009) Facts: Traffic accident in Mason Co. Mason Co. emergency personnel investigated accident. Decedent had been a resident of Champaign Co. Probate proceeding in Champaign Co. Pl. appointed personal rep. of estate. She filed the PI case in Cook Co. where she resides. Def. driver is a resident of Adams Co. His employer is a resident of Brown Co. Some witnesses reside in Cook Co. Def. DOT did business in Cook Co. Witnesses scattered among 11 counties. App. Ct. affirmed denial of transfer per FNC.

12. Appeal per Rule Per 301 if dismissal Per 306 if interlocutory Standard of review on appeal: abuse of discretion. 12

13. Definition of abuse of discretion A circuit court abuses its discretion in balancing the relevant factors only where no reasonable person would take the view adopted by the circuit court. 13

14. Takeaways Evidentiary burden: burden on the party seeking transfer that the relevant factors strongly favor transfer. Affidavits can be helpful in meeting movant’s burden. If defendant fails to supply affidavits from its identified witnesses stating that plaintiff’s chosen forum is inconvenient, it can be fatal. 14