Johnson v. Nash , 2019 IL App (1st) 180840 ( 2019 )

2019 IL App (1st) 180840Nos. 1-18-0840, 1-18-0895, 1-18-1020, cons.
Opinion filed March 29, 2019
FOURTH DIVISION
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
)
MICHAEL JOHNSON and ROBERT ROSA, ) Appeal from the Circuit
) Court
Plaintiffs-Appellees, ) of Cook County.
)
v. (No. 2016-L-003433) )
)
AARON NASH; LYONS LIMOUSINE, LLC; PATRICK )
RICHARD LYONS; MARY LYONS; ZENITH )
LIMOUSINE, LLC; EDWARD KRAEMER & SONS, )
INC.; KENNY CONSTRUCTION COMPANY; )
KENNY-KRAEMER JOINT VENTURE; PLOTE, INC.; ) Nos. 2016-L-003433, 2016-
PLOTE CONSTRUCTION, INC.; ROADSAFE ) L-005389, 2016-L-010574,
TRAFFIC SYSTEMS, INC.; TRAFFIC CONTROL & ) 2017-L-007057, cons.
PROTECTION, INC.; GFS CONSTRUCTION, LLC; )
OMEGA & ASSOCIATES, INCORPORATED.; THE )
RODERICK GROUP, INC., PC; EXP U.S. SERVICES, )
INC.; THOMAS ENGINEERING GROUP, LLC; ) The Honorable
ALFRED BENESCH & COMPANY; V3 COMPANIES ) Daniel T. Gillespie,
OF ILLINOIS, LTD.; V3 COMPANIES, LTD.; BV3 ) Judge, presiding.
JOINT VENTURE; and ENERGY ABSORPTION )
SYSTEMS, INC., )
)
Defendants )
)
(Plote Construction, Inc., and Exp U.S. Services, Inc., )
Defendants-Appellants; Aaron Nash, Defendant- )
Appellee). )
_______________________________________________ )
)
DON CORNING and LOIS CORNING, )
)
Plaintiffs-Appellees, )
)
No. 1-18-0840
v. (No. 2016-L-005389) )
)
AARON NASH, LYONS LIMOUSINE, LLC, a Limited )
Liability Company; PATRICK RICHARD LYONS; )
ZENITH LIMOUSINE, LLC, a Limited Liability )
Company; EDWARD KRAEMER & SONS, INC., a )
Foreign Corporation; KENNY CONSTRUCTION )
COMPANY, a Foreign Corporation, KENNY- )
KRAEMER JOINT VENTURE; PLOTE, INC., a )
Domestic Corporation; PLOTE CONSTRUCTION, INC., )
a Domestic Corporation; and ROADSAFE TRAFFIC )
SYSTEMS, INC., a Foreign Corporation, GFS )
CONSTRUCTION, LLC; OMEGA & ASSOCIATES, )
INCORPORATED.; THE RODERICK GROUP, INC., )
PC; EXP U.S. SERVICES, INC.; THOMAS )
ENGINEERING GROUP, LLC; ALFRED BENESCH & )
COMPANY; V3 COMPANIES OF ILLINOIS, LTD.; V3 )
COMPANIES, LTD.; and BV3 JOINT VENTURE, )
)
Defendants )
)
(Plote Construction, Inc., and Exp U.S. Services, Inc., )
Defendants-Appellants; Aaron Nash, Defendant- )
Appellee). )
_______________________________________________ )
)
KEVEN W. SCHMIDT, Individually and as Personal )
Representative of the Estate of Terri Schmidt, Deceased, )
)
Plaintiff-Appellee, )
)
v. (No. 2016-L-010574) )
)
AARON NASH; LYONS LIMOUSINE, LLC; PATRICK )
RICHARD LYONS; MARY LYONS; ZENITH )
LIMOUSINE, LLC; EDWARD KRAEMER & SONS, )
INC.; KENNY CONSTRUCTION COMPANY; )
KENNY-KRAEMER JOINT VENTURE; PLOTE, INC.; )
PLOTE CONSTRUCTION, INC.; ROADSAFE )
TRAFFIC SYSTEMS, INC.; TRAFFIC CONTROL & )
PROTECTION, INC.; GFS CONSTRUCTION, LLC; )
OMEGA & ASSOCIATES INCORPORATED; THE )
RODERICK GROUP INC., PC; EXP U.S. SERVICES, )
INC.; THOMAS ENGINEERING GROUP, LLC; )
ALFRED BENESCH & COMPANY; V3 COMPANIES )
OF ILLINOIS, LTD.; V3 COMPANIES, LTD.; and BV3 )
2
No. 1-18-0840
JOINT VENURE, )
)
Defendants )
)
(Plote Construction, Inc., and Exp U.S. Services, Inc., )
Defendants-Appellants; Aaron Nash, Defendant- )
Appellee). )
_______________________________________________ )
)
AARON NASH, )
)
Plaintiff-Appellee, )
)
v. (No. 2017-L-007057) )
)
EDWARD KRAEMER & SONS, INC.; KENNY )
CONSTRUCTION COMPANY; KENNY-KRAEMER )
JOINT VENTURE; PLOTE, INC.; PLOTE )
CONSTRUCTION, INC.; ROADSAFE TRAFFIC )
SYSTEMS, INC.; TRAFFIC CONTROL & )
PROTECTION, INC.; GFS CONSTRUCTION, LLC; )
OMEGA & ASSOCIATES INCORPORATED; THE )
RODERICK GROUP INC., PC; EXP U.S. SERVICES, )
INC.; THOMAS ENGINEERING GROUP, LLC; )
ALFRED BENESCH & COMPANY; V3 COMPANIES )
OF ILLINOIS, LTD.; BV3 JOINT VENTURE; JOHN )
THOMAS, INC. d/b/a John Thomas Company; ENERGY )
ABSORPTION SYSTEMS, INC.; TRAFFIC SERVICES, )
INC.; CHASTAIN & ASSOCIATES, LLC; )
CHASTAIN/THOMAS JV; STANLEY )
CONSULTANTS, INC.; AECOM SERVICES OF )
ILLINOIS, INC.; HNTB CORP.; KEVIN WILLING; )
STEVE MENKE; and WILLIAM SCHAEFER, )
)
Defendants )
)
(Exp U.S. Services, Inc., and Plote Construction, Inc., )
Defendants-Appellants). )
)
JUSTICE GORDON delivered the judgment of the court, with opinion.
Presiding Justice McBride and Justice Burke concurred in the judgment and
opinion.
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No. 1-18-0840
OPINION
¶1 Plaintiffs Michael Johnson, Robert Rosa, Don Corning, Lois Corning, and Keven
Schmidt, as well as Terri Schmidt, deceased, were all passengers in a limousine on Interstate
90 (I-90), heading from their home in Wisconsin to O’Hare International Airport, when the
limousine, driven by Aaron Nash, crashed into a construction site in Kane County. Of the six
passengers, Terri Schmidt was killed, plaintiff Robert Rosa became a paraplegic, and the four
other plaintiffs were injured (collectively, the plaintiff passengers).
¶2 The plaintiff passengers sued defendants-appellants Exp U.S. Services, Inc., and Plote
Construction, Inc., as well as other defendants involved in the construction site, alleging that
these defendants failed to post warning signs in the construction area (the construction
defendants). In addition, plaintiffs sued Nash, the limousine driver; Lyons Limousine, LLC
(Lyons), his employer; and Zenith Limousine, LLC (Zenith), a Wisconsin business with
which Lyons was affiliated. The driver, Nash, also sued the construction defendants. The trial
court consolidated all the lawsuits.
¶3 Out of all the many defendants in the consolidated actions, only two—Exp U.S.
Services, Inc., and Plote Construction, Inc.—argue on this appeal that the trial court abused
its discretion by denying a forum non conveniens motion to transfer the cases from Cook
County, where plaintiffs filed their actions, to Kane County, where the accident occurred. 1
These two defendants both have their principal offices in Cook County and, thus, are
claiming that their home forum in not convenient for them. For the following reasons, we
find no abuse of discretion by the trial court for denying their motion and affirm. See
Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 447-49 (2006) (our supreme court
1
Nash, the limousine driver, sided with the plaintiff passengers in this appeal and adopted their
brief.
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No. 1-18-0840
found that the doctrine of forum non conveniens did not require the transfer of a wrongful
death action to the county in which the collision occurred).
¶4 BACKGROUND
¶5 In the case at bar, the plaintiff passengers, who were Wisconsin residents, hired a
limousine from defendant Lyons, a Wisconsin business, to transport them on March 25,
2016, from Madison, Wisconsin, to O’Hare International Airport in Cook County. The
driver, Nash, was a Lyons’s employee and a Wisconsin resident. At 5:30 a.m., the limousine
picked up the plaintiff passengers, and almost two hours later, at 7:12 a.m., the limousine
collided with a barrier wall at a construction site on I-90, killing one passenger and injuring
five others.
¶6 The accident report of the responding police officer indicates that the accident
occurred after Nash failed to shift lanes to the right, as was compelled by the construction
work. The report states that the limousine was driving in the left-hand lane of I-90 eastbound,
in the city of Elgin, in Kane County, when all three eastbound lanes were required to shift
right. Immediately after the lane shift, temporary concrete barrier walls were positioned
along the left lane. The end of the concrete wall was protected by “a crash attenuator,” which
protects the public from the end of the wall. The report states that Nash told the officer that
“the sun was extremely bright,” that he had his sun visor lowered, and that he had his hand
up to block the sun. Nash informed the officer that the bright sunlight blinded his vision and,
as a result, he did not observe either the lane shift or the concrete barriers. As the rest of the
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No. 1-18-0840
lane shifted right, the limousine continued forward, struck the end of the wall with the crash
attenuator, and flipped over on its roof. 2
¶7 Nash testified at his deposition that, seconds before the accident, he observed a sign
that said “stay in your lane” on his left side. Nash could not observe any signs on his right
side because “semis and SUV’s” were blocking his view and he was “in a very low limo.”
Although he observed the vehicle ahead of him shift to the right lane, he “thought it was
merging or switching lanes.” Nash did not shift because of the “stay in your lane” sign. Since
he knew he was in a construction zone, he was “looking for signs constantly” and he did not
observe any signs on his left side that indicated a curve in the road ahead. At the time of the
collision, the limo was traveling at the speed of traffic, which was approximately 65 miles
per hour, and Nash did not have the opportunity to hit the brakes prior to the collision.
¶8 After the accident, the plaintiff passengers filed a total of three actions in Cook
County, alleging that defendants Nash, Lyons, and Zenith, were negligent with respect to the
operation of the limousine, and the hiring and training of Nash. Their complaints further
alleged that the construction defendants, including the two defendants-appellants in this
appeal, were negligent in failing to post an adequate number of signs to warn drivers of the
lane change. Nash, who was a defendant in the plaintiff passenger suits, also filed a
complaint against the construction defendants that sought recovery for his own injuries and
also alleged that the construction defendants were negligent in failing to post adequate signs.
As we observed above, all four actions were consolidated for both discovery and trial.
2
At his deposition, Nash testified that, in connection with this incident, he pled guilty to a Class 4
felony for not having a commercial driver’s license. Also, at his deposition when asked whether he agreed
that he was “responsible for this accident,” Nash responded, “[y]es, sir.”
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No. 1-18-0840
¶9 Initially, 15 of the construction defendants 3 filed or joined forum non conveniens
motions to transfer the actions to Kane County. Of these 15 defendants, only 5 defendants
filed or joined petitions for leave to appeal in the appellate court, which were granted
pursuant to Illinois Supreme Court Rule 306(a)(2) (eff. Nov. 1, 2017). 4 However, only two of
the five defendants pursued the appeal by filing briefs with this court: Exp U.S. Services, Inc.
(Exp) and Plote Constructions, Inc. (Plote).
¶ 10 With respect to these two defendants-appellants, plaintiffs allege in their complaints
that Plote is an Illinois corporation with its principal office in Hoffman Estates, Illinois,
which is in Cook County, and that Exp is a Delaware corporation. 5
¶ 11 However, William Schaefer, Exp’s resident engineer for the I-90 reconstruction
project, testified at his deposition that Exp’s main office is on Michigan Avenue, in Chicago,
which is in Cook County, and that he has an office there. During the I-90 reconstruction
project in 2016, he was normally at the field office in East Dundee, which is located in both
Kane and Cook Counties.
¶ 12 Schaefer testified in his deposition that, in December 2015, he, along with Steve
Menke, the project manager from Plote, and other defendants, decided to revise the “MOT,”
or maintenance of traffic plan, for the area where the crash occurred, and to not post certain
3
In addition to the two defendants-appellants, the other construction defendants involved in the
forum non conveniens motions were Alfred Benesch & Company.; BV3 Joint Venture; RoadSafe Traffic
Systems, Inc.; Kenny Construction Company; Edward Kraemer & Sons, Inc.; Kenny-Kraemer Joint
Venture; GFS Construction, LLC.; The Roderick Group Inc., Ltd.; Traffic Control & Protection, Inc;
Plote, Inc.; V3 Companies of Illinois; V3 Companies, Ltd.; and Energy Absorption Systems, Inc.
4
Illinois Supreme Court Rule 306(a)(2) (eff. Nov. 1, 2017) permits a party to petition for leave to
appeal to the appellate court from certain interlocutory orders, including “from an order of the circuit
court allowing or denying a motion to dismiss on the grounds of forum non conveniens.”
5
If any of the defendants filed answers in these actions, they are not in the record before us.
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No. 1-18-0840
advance warning signs. 6 It is these changes that are at the heart of plaintiffs’ claims against
the two defendants-appellants, and plaintiffs argue that these decisions occurred in Cook
County.
¶ 13 Since we must apply an abuse-of-discretion standard to the trial court’s
forum non conveniens decision, 7 we provide here the trial court’s findings in detail.
¶ 14 The trial court found
“that the following facts are undisputed:
1. Plaintiffs all reside in Wisconsin;
2. The construction site where the accident occurred is located in Kane County;
3. The Plaintiffs’ medical treatment occurred in Cook County, Kane County, and
Wisconsin;
4. Some of Defendants’ principal place of business are located in Cook County;
5. The great majority of the Defendants derive revenue from business activities
located in Cook County;
6. Certain Defendants have litigated cases as both plaintiffs and defendants in
other actions filed in the Circuit Court of Cook County; and
7. The witnesses and parties reside, or are located amongst several counties and
two states including: Will County, Dupage County, Cook County, Kane County,
McHenry County, Lake County, and Wisconsin.”
6
Schaefer also testified that Plote was the contractor and, thus, “the one that’s responsible for the
maintenance of traffic.”
7
As we discuss in more depth in the analysis below, the standard of review for a forum non
conveniens decision is abuse of discretion. Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 442
(2006).
8
No. 1-18-0840
However, after listing the above undisputed facts, the trial court found that one of them was
completely irrelevant to the issue. The trial court explicitly found “this Court cannot take
Defendants’ prior litigation history into account when determining whether transfer is
warranted.”
¶ 15 With respect to the private interest factors that a court must consider in deciding a
forum non conveniens motion, the trial court found that these factors either favored Cook
County or were neutral.
¶ 16 First, the trial court found that, since plaintiffs do not reside in Cook County, their
choice of forum was entitled to less deference but that less deference did not mean no
deference as defendants argued. See Langenhorst, 219 Ill. 2d at 448 (“ ‘ “the deference to be
accorded is only less, as opposed to none” ’ ” (emphases in original) (quoting First American
Bank v. Guerine, 198 Ill. 2d 511, 518 (2002), quoting Elling v. State Farm Mutual
Automobile Insurance Co., 291 Ill. App. 3d 311, 318 (1997))). In addition, the trial court
found that “[t]he record plainly shows that a great majority of the Defendants in this case
either conduct business in Cook County, or are headquartered here.” In support, the trial
court cited and quoted Kwasniewski v. Schaid, 153 Ill. 2d 550, 555 (1992) (“It is all but
incongruous for defendants to argue that their own home county is inconvenient.”).
¶ 17 Second, in concluding that ease of access to proof slightly favored Cook County, the
trial court observed that, although some testimonial and documentary evidence would “arise
from” the fact that the scene of the accident was in Kane County and the limousine was
stored there, at least one eyewitness lived in Cook County, as did at least 20 medical
providers who treated plaintiffs, as well as other damage witnesses. The trial court observed
that the brief, initial medical treatment that plaintiffs received in Kane County “pales in
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No. 1-18-0840
comparison” to the treatment they later received in Cook County, which was better equipped
to handle their care.
¶ 18 Third, the trial court concluded that the availability of compulsory process
favored neither side, since witnesses in Kane County were just as susceptible to Illinois
compulsory process as those in Cook County, and cited in support Bradbury v. St. Mary’s
Hospital of Kankakee, 273 Ill. App. 3d 555, 561 (1995) (“process would be available in
either county to compel the attendance of any unwilling Illinois resident witnesses pursuant
to Supreme Court Rule 237”).
¶ 19 Fourth, the trial court found that considerations of the cost of obtaining witnesses
slightly favored Cook County, in light of the fact that plaintiffs provided “over 21 sworn
affidavits from witnesses who state that it would be more convenient if this case were
litigated in Cook as opposed to Kane County,” while defendants failed to provide a single
affidavit from any witness stating that it would be inconvenient if the case was litigated in
Cook County. See Bradbury, 273 Ill. App. 3d at 560 (“The record in this case is quite
remarkable, not for what it contains, but rather, for what it does not contain. The defendants’
forum non conveniens motion *** was not supported by any affidavits.”). In addition,
although first responders from Kane County provided plaintiffs with emergency medical
care, so did responders from Du Page and Cook Counties.
¶ 20 Fifth, the trial court found that the possibility of viewing the premises did not weigh
in favor of transfer because “the construction zone and the conditions which allegedly caused
Plaintiffs’ accident are gone,” and it cited in support Blake v. Colfax Corp., 2013 IL App
(1st) 122987, ¶ 22 (a transfer was not necessary where there was no “condition of the
roadway, which is still present for a site inspection,” that was a cause of the collision).
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No. 1-18-0840
¶ 21 Sixth, the trial court found that other practical considerations favored Cook County,
since “all of the attorneys of record in this case are located within Cook County,” with most
of them “in close proximity to the Daley Center,” where a trial would occur. See
Langenhorst v. Norfolk Southern Ry. Co., 354 Ill. App. 3d 1103, 1116-17 (2004) (although
convenience to the litigants’ lawyers is not a significant factor, “[a] courtroom blocks away
from defense counsel’s main office *** is a courtroom that tends to make trial easier, more
expeditious, and less expensive for that attorney’s client”). The trial court found that plaintiff
Rosa, a quadriplegic, needed to be in close proximity to his physicians in Cook County, and
required emergency medical care less than a year before. Thus, the trial court found that all
the private interest factors favored Cook County or were neutral.
¶ 22 The trial court also found that the public interest factors did not require a transfer.
First, with respect to the interest in deciding local matters locally, the trial court found that
“this case can be considered a ‘local matter’ in either Kane or Cook County.” Although the
accident occurred in a construction site in Kane County, the trial court observed that “Cook
County motorists undoubtedly used the expressway and construction project at issue while
going to and from Cook County” and defendants managed and undertook similar
construction projects in Cook County.
¶ 23 Second, with respect to the interest of not imposing the expense and burden of a trial
on a county with little connection to the suit, the trial court found that defendants were
headquartered here or had offices here and derived significant revenue from Cook County
and that “Cook County citizens definitely have [an] interest in deciding a case involving ***
its own corporate residents.”
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No. 1-18-0840
¶ 24 Third, with respect to the issue of docket congestion, the trial court found that,
although Cook County was more congested, “cases actually resolved in Cook County quicker
than the cases in Kane County and, thus, this factor was inconsequential.” See Guerine, 198
Ill. 2d at 517 (“Court congestion is a relatively insignificant factor, especially where the
record does not show the other forum would resolve the case more quickly.”); see also
Langenhorst, 219 Ill. 2d at 452 (the factor of court congestion does not favor transfer where
“defendants have not shown that the case would be resolved more quickly in” the other
county).
¶ 25 After considering all the public and private interest factors that must be considered in
a forum non conveniens motion, the trial court denied the motion to transfer the litigation
from Cook County to Kane County.
¶ 26 As noted above, this court granted defendants-appellants’ petitions for leave to
appeal, and this interlocutory appeal followed.
¶ 27 ANALYSIS
¶ 28 For the following reasons, we cannot find that the trial court abused its discretion in
denying defendants-appellants’ motion and, thus, affirm.
¶ 29 I. Standard of Review
¶ 30 “Forum non conveniens is an equitable doctrine founded in considerations of
fundamental fairness and the sensible and effective administration of justice.” Langenhorst,
219 Ill. 2d at 441 (citing Vinson v. Allstate, 144 Ill. 2d 306, 310 (1991)). “This doctrine
allows a trial court to decline jurisdiction when trial in another forum ‘would better serve the
ends of justice.’ ” Langenhorst, 219 Ill. 2d at 441 (quoting Vinson, 144 Ill. 2d at 310).
“Forum non conveniens is applicable when the choice is between interstate forums as well as
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No. 1-18-0840
when the choice is between intrastate forums,” such as in the case at bar. Glass v. DOT
Transportation, Inc., 393 Ill. App. 3d 829, 832 (2009). The burden is always on the movant
to show that the relevant factors strongly favor a transfer. Koss Corp. v. Sachdeva, 2012 IL
App (1st) 120379, ¶ 106 (the burden is on the movant to show a transfer is strongly favored);
Erwin v. Motorola, Inc., 408 Ill. App. 3d 261, 275 (2011) (the burden is on the movant to
show a transfer is strongly favored); Woodward v. Bridgestone/Firestone, Inc., 368 Ill. App.
3d 827, 833 (2006) (“[t]he burden is on a defendant to show that the relevant factors strongly
favor the defendant’s choice of forum”).
¶ 31 The standard of review for a forum non conveniens decision is abuse of discretion.
Langenhorst, 219 Ill. 2d at 442.
¶ 32 “A trial court is afforded considerable discretion in ruling on a forum non conveniens
motion.” Langenhorst, 219 Ill. 2d at 441.“We will reverse the circuit court’s decision only if
defendants have shown that the circuit court abused its discretion in balancing the relevant
factors.” Langenhorst, 219 Ill. 2d at 442 (citing Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d
167, 176-77 (2003)). “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.”
Langenhorst, 219 Ill. 2d at 442 (citing Dawdy, 207 Ill. 2d at 177); Glass, 393 Ill. App. 3d at
832.
¶ 33 “The issue, then, is not what decision we would have reached if we were reviewing
the facts on a clean slate, but whether the trial court acted in a way that no reasonable person
would.” Vivas v. The Boeing Co., 392 Ill. App. 3d 644, 657 (2009). In addition, “we may
affirm a trial court’s forum non conveniens order on any basis found in the record.” Ruch v.
Padgett, 2015 IL App (1st) 142972, ¶ 40.
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No. 1-18-0840
¶ 34 II. Plaintiff’s Choice of Forum
¶ 35 “Before weighing the relevant factors, a court must first decide how much deference
to give to a plaintiff’s choice of forum.” Vivas, 392 Ill. App. 3d at 657 (citing Langenhorst,
219 Ill. 2d at 448 (the supreme court determined the appropriate amount of deference before
weighing the relevant factors)).
¶ 36 It is “ ‘assumed on a forum non conveniens motion that the plaintiff’s chosen forum is
a proper venue for the action.’ ” Langenhorst, 219 Ill. 2d at 448 (quoting Dawdy, 207 Ill. 2d
at 182). “Plaintiff’s choice of forum is entitled to substantial deference.” Langenhorst, 219
Ill. 2d at 448; Guerine, 198 Ill. 2d at 521 (“the battle over forum begins with the plaintiff’s
choice already in the lead”). However, when neither the plaintiff’s residence nor the site of
the injury are located in the chosen forum, the plaintiff’s choice is “entitled to somewhat less
deference.” (Emphasis in original.) Langenhorst, 219 Ill. 2d at 448; Guerine, 198 Ill. 2d at
517. While “ ‘ “the deference to be accorded to a plaintiff regarding his choice of forum is
less when the plaintiff chooses a forum other than where he resides *** nonetheless the
deference to be accorded is only less, as opposed to none.” ’ ” (Emphases in original.)
Langenhorst, 219 Ill. 2d at 448 (quoting Guerine, 198 Ill. 2d at 518, quoting Elling, 291 Ill.
App. 3d at 318). Thus, the trial court did not abuse its discretion by finding that plaintiffs’
choice of Cook County was entitled to some deference.
¶ 37 III. Private Interest Factors
¶ 38 When a court considers a forum non conveniens motion, the Illinois Supreme
Court held that it must consider both “the private and public interest factors” Langenhorst,
219 Ill. 2d at 443; Dawdy, 207 Ill. 2d at 172-73; see also Vivas, 392 Ill. App. 3d at 658. “[N]o
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No. 1-18-0840
single factor is controlling.” Erwin, 408 Ill. App. 3d at 274 (citing Langenhorst, 219 Ill. 2d at
443).
¶ 39 First, we consider the private interest factors, which are “ ‘(1) the convenience of the
parties; (2) the relative ease of access to sources of testimonial, documentary, and real
evidence; and (3) all other practical problems that make trial of a case easy, expeditious, and
inexpensive.’ ” Langenhorst, 219 Ill. 2d at 443 (quoting Guerine, 198 Ill. 2d at 516); Dawdy,
207 Ill. 2d at 172; see also Vivas, 392 Ill. App. 3d at 658.
¶ 40 A. Convenience to the Parties
¶ 41 First, the convenience of the parties does not weigh in favor of transfer, for the
following reasons.
¶ 42 With respect to this factor, “the defendant must show that the plaintiff’s chosen forum
is inconvenient to the defendant.” (Emphasis added.) Langenhorst, 219 Ill. 2d at 450; Vivas,
392 Ill. App. 3d at 658. In other words, “one party cannot argue the other party’s
convenience.” Ruch, 2015 IL App (1st) 142972, ¶ 51; Susman v. North Star Trust Co., 2015
IL App (1st) 142789, ¶ 27; see also Elling, 291 Ill. App. 3d at 317 (a court may properly
consider “the fact that only four of the six defendants joined in the motion to transfer”);
Neofotistos v. Center Ridge Co., 241 Ill. App. 3d 951, 957 (1993) (an appellate court may
consider a defendant’s decision not to seek leave to appeal the denial of a forum non
conveniens motion).
¶ 43 On this appeal, where both defendants-appellants have their principal offices in Cook
County, the convenience of the parties does not weigh in favor of transfer. Erwin, 408 Ill.
App. 3d at 276 (while a party’s principal place of business is not necessarily “dispositive” in
a forum non conveniens analysis, “it certainly is an acceptable factor to be weighed”); see
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No. 1-18-0840
also Gridley v. State Farm Mutual Automobile Insurance Co., 217 Ill. 2d 158, 173 (2005)
(principal place of business is a “factor to be considered”).
¶ 44 Where a defendant has “its headquarters in plaintiffs’ chosen forum,” the convenience
factor does not usually weigh in favor of transfer. Vivas, 392 Ill. App. 3d at 658. A party
“cannot be heard to complain that his home forum is inconvenient unless other factors are at
issue.” Susman, 2015 IL App (1st) 142789, ¶ 27; Erwin, 408 Ill. App. 3d at 276 (“Motorola
could not genuinely contend that litigating the case in Illinois, where it maintained its
corporate headquarters, would prove inconvenient to it.”); Vivas, 392 Ill. App. 3d at 658 (the
convenience of the parties did not weigh in favor of transfer, where “defendant Boeing has its
headquarters” in Illinois).
¶ 45 At oral argument, when asked to cite cases where this court found that a defendant’s
home forum was nonetheless inconvenient to it, defendants-appellants cited Susman, 2015 IL
App (1st) 142789, and Bruce v. Atadero, 405 Ill. App. 3d 318 (2010). However, neither case
supports defendants-appellants’ argument. First, Susman involved the opposite procedural
posture from the case at bar. In Susman, the trial court had granted the defendant’s forum non
conveniens motion to transfer the case from Cook County, where the defendant was
headquartered, to Lake County, which was the location of both the disputed real estate and
the plaintiff’s residence. Susman, 2015 IL App (1st) 142789, ¶¶ 1, 27-28. We found, on
appeal, that the “plaintiff cannot be heard to complain that his home forum is inconvenient”
and, thus, the trial court did not abuse its discretion by granting the transfer. Susman, 2015 IL
App (1st) 142789, ¶ 27. Similarly, in the case at bar, where the procedural posture is reversed
and we are reviewing a denial instead of a grant, defendants-appellants cannot be heard to
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No. 1-18-0840
complain that their home forum is inconvenient, and we cannot find an abuse of discretion by
the trial court. Thus, Susman does not support defendants-appellants’ argument.
¶ 46 Bruce is even less persuasive. In Bruce, the plaintiff brought wrongful death and
survival claims in McHenry County against the hospital that treated the decedent in McHenry
County and against the treating physician who resided and practiced in McHenry County.
Bruce, 405 Ill. App. 3d at 319-20. After discovery had proceeded for almost two years in
McHenry County, the plaintiff voluntarily dismissed the McHenry County action and refiled
in Cook County, where the hospital also had some facilities. Bruce, 405 Ill. App. 3d at 320.
This court reversed the trial court’s denial of the defendants’ forum non conveniens motions
on several grounds but primarily due to the blatant “forum shopping that our supreme court
has expressly held should not be permitted.” Bruce, 405 Ill. App. 3d at 332. In the case at bar,
there are no issues of filing and refiling, as there were in Bruce. In addition, in Bruce, both
defendants resided in McHenry County, where this court ordered the case transferred back to.
Bruce, 405 Ill. App. 3d at 319-20. Similarly, in the case at bar, both defendants-appellants
have their principal offices in Cook County, where this court affirms the case should
continue. Thus, Bruce also does not support defendants-appellants’ argument.
¶ 47 In sum, this factor does not favor transfer.
¶ 48 B. Ease of Access to Evidence
¶ 49 The trial court did not abuse its discretion by concluding that the ease of access to
evidence did not favor transfer, for the following reasons. See Langenhorst, 219 Ill. 2d at
443.
¶ 50 First, defendant has not identified on this appeal a single witness by name who would
be unwilling to testify in Illinois. In Erwin, 408 Ill. App. 3d at 277, this court considered a
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forum non conveniens motion where the defendant failed to provide the name or address of a
single witness who would be unwilling to testify in Illinois, and the trial court denied the
motion. We found that, “[s]ince the burden of proof lies with [the defendant], under these
circumstances,” we will not “speculate about a witness’s *** unwillingness to testify at trial”
in order to find an abuse of discretion. Erwin, 408 Ill. App. 3d at 277. While a trial court is
within its discretion to consider the inconvenience of witnesses without affidavits from each
witness (Koss, 2012 IL App (1st) 120379, ¶¶ 106-07), the possibility of inconvenience wanes
when the counties are adjacent, 8 and the burden remains, at all times, on the defendant to
provide proof showing that the requested transfer is strongly favored. See Koss, 2012 IL App
(1st) 120379, ¶ 106 (the burden is on the party seeking transfer to prove that the relevant
factors strongly favor it); Erwin, 408 Ill. App. 3d at 274-75.
¶ 51 Second, as the trial court observed, viewing the accident scene is no longer an option
since the construction site, with its particularized lanes and signs, is simply gone. For
example, in Vivas, this court found that “this factor is not as significant where the accident
site has ‘substantially changed’ since the accident.” Vivas, 392 Ill. App. 3d at 659-60. The
Vivas court observed that, “years later, the construction has likely been completed or has at
least proceeded to an extent that the appearance *** has changed significantly since the date
of the crash. *** Thus, we cannot find that the trial court abused its discretion in giving little
weight to this factor.” Vivas, 392 Ill. App. 3d at 660. The same is true in the case at bar. See
also Blake, 2013 IL App (1st) 122987, ¶ 22 (a transfer was not necessary where there was no
8
Defendants-appellants state in their appellate briefs that the accident scene is 14.8 miles from
the Kane County courthouse and 37.9 miles from “the Cook County courthouse,” which makes “the Cook
County courthouse” less than 15 miles further away. (Although there are a number of courthouses in
Cook County, defendants-appellants appear to be referring to the Daley Center.)
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No. 1-18-0840
“condition of the roadway, which is still present for a site inspection,” that was a cause of the
collision).
¶ 52 Third, “the location of documents, records and photographs has become a less
significant factor in forum non conveniens analysis in the modern age of e-mail, Internet,
telefax, copying machines and world-wide delivery services, since they can now be easily
copied and sent.” Vivas, 392 Ill. App. 3d at 659; see also Erwin, 408 Ill. App. 3d at 281 (“it
has become well recognized by our courts that given our current state of technology ***
documentary evidence can be copied and transported easily and inexpensively”); Woodward,
368 Ill. App. 3d at 834 (“the location of documents is not significant because documents can
be transported with ease and at little expense”); Glass, 393 Ill. App. 3d at 836-37 (“there
should be little difficulty encountered in securing documentary evidence, given that current
technology allows documents to be copied and transported easily and inexpensively”);
Ammerman v. Raymond Corp., 379 Ill. App. 3d 878, 890 (2008) (“the location of
documentary evidence has become less significant because today’s technology allows
documents to be copied and transported easily and inexpensively”). Thus, this factor also
does not favor transfer.
¶ 53 In sum, where “potential witnesses and evidence [are] scattered among different”
forums, we cannot find that the trial court abused its discretion in concluding that this factor
“did not tilt in favor” of transfer. Vivas, 392 Ill. App. 3d at 659; see also Erwin, 408 Ill. App.
3d at 280 (defendant Motorola “failed in its burden to establish that the relative ease of
obtaining such ‘scattered’ testimonial evidence weighed strongly in favor of dismissal and
transfer”); Woodward, 368 Ill. App. 3d at 834 (where “potential trial witnesses are scattered
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No. 1-18-0840
among different forums, including the plaintiffs’ chosen forum,” this factor does not favor
transfer).
¶ 54 C. Practical Problems
¶ 55 The last private interest factor is a consideration of “ ‘all other practical problems that
make trial of a case easy, expeditious, and inexpensive.’ ” Langenhorst, 219 Ill. 2d at 443(quoting Guerine, 198 Ill. 2d at 516-17); Dawdy, 207 Ill. 2d at 172; see also Vivas, 392 Ill.
App. 3d at 658.
¶ 56 First, when the issue is moving a suit from Cook County to an adjacent county, this
court has previously found that the factor of practical problems is not usually a strong factor
favoring transfer. For example, with respect to nearby Lake County, this court has previously
written:
“This court, which is located in Chicago, Cook County, may take judicial notice of
the fact that Lake County is adjacent to Cook County and that many people commute
every day from Lake County to work in Chicago. Ill. R. Evid. 201(b) (eff. Jan. 1,
2011) (‘A judicially noticed fact must be one not subject to reasonable dispute in that
it is *** generally known within the territorial jurisdiction of the trial court ***.’); Ill.
R. Evid. 201(c) (eff. Jan. 1, 2011) (‘A court may take judicial notice, whether
requested or not.’). The close proximity of the two counties, and the many roads and
trains between the two, reduces any practical problems. Spiegelman v. Victory
Memorial Hospital, 392 Ill. App. 3d 826, 844 (2009) (observing ‘the close proximity
of Lake County to Cook County’); Huffman v. Inland Oil & Transport Co., 98 Ill.
App. 3d 1010, 1018 (1981) (‘arguments regarding convenience to the parties and the
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No. 1-18-0840
witnesses [are] of little merit where the Missouri forum suggested by defendant was
only 15 miles from the chosen forum’).” Susman, 2015 IL App (1st) 142789, ¶ 31.
¶ 57 Second, while little weight should be accorded to the location of the movant’s
attorney on a forum non conveniens motion, “a court may still consider it in the
forum non conveniens analysis.” Vivas, 392 Ill. App. 3d at 660; see also Dawdy, 207 Ill. 2d at
179 (“a court may consider this factor”); Woodward, 368 Ill. App. 3d at 835 (“We also note
that the defendants’ counsel of record have offices in Illinois. Although not a significant
factor, we may consider it in our analysis.”). As the trial court observed, all the attorneys of
record in the court below were in Cook County.
¶ 58 Lastly, we agree with the trial court’s finding that claims based on “a defendant’s
prior litigation experience *** lack[ ] merit.” Ammerman, 379 Ill. App. 3d at 888. This is
“because forum non conveniens claims are heavily dependent upon the facts of each case and
accordingly ‘must be decided pursuant to an “individualized, case-by-case consideration of
convenience and fairness.” ’ ” Ammerman, 379 Ill. App. 3d at 888 (quoting Gridley, 217 Ill.
2d at 168, quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)).
¶ 59 For all the foregoing reasons, we find that the trial court did not abuse its discretion in
finding that the private interest factors did not favor transfer.
¶ 60 IV. Public Interest Factors
¶ 61 When deciding a forum non conveniens motion, a court must also consider the public
interest factors. These factors include: “(1) the interest in deciding controversies locally;
(2) the unfairness of imposing trial expense and the burden of jury duty on residents of a
forum that has little connection to the litigation; and (3) the administrative difficulties
presented by adding litigation to already congested court dockets.” Langenhorst, 219 Ill. 2d
21No. 1-18-0840
at 443-44 (citing Guerine, 198 Ill. 2d at 516-17); Gridley, 217 Ill. 2d at 170; Dawdy, 207 Ill.
2d at 173; see also Vivas, 392 Ill. App. 3d at 660.
¶ 62 First, we consider the respective forums’ interests in deciding these controversies and
the fairness of imposing jury duty on the forums’ residents. In Langenhorst, our supreme
court affirmed a trial court’s decision not to transfer a case from St. Clair County to Clinton
County, which was the scene of the accident. Langenhorst, 219 Ill. 2d at 451, 454. In
considering the respective forums’ interest, the court observed that St. Clair County had as
much interest in the controversy as Clinton County, because “this same railway line”
involved in the accident “bisects all of St. Clair County.” Langenhorst, 219 Ill. 2d at 451.
The same is equally true of I-90 and Cook County.
¶ 63 Lastly, we must consider “the administrative difficulties presented by adding
litigation to already congested court dockets.” Langenhorst, 219 Ill. 2d at 443-44 (citing
Guerine, 198 Ill. 2d at 516-17). However, “[c]ourt congestion is a relatively insignificant
factor, especially where the record does not show the other forum would resolve the case
more quickly.” Guerine, 198 Ill. 2d at 517.
¶ 64 In its brief to this court, defendants-appellants criticize the trial court for relying on
2015 statistics, when the 2016 Annual Report of the Illinois Courts was released on January
31, 2017, which was well before the trial court’s decision on April 6, 2018. Defendants-
appellants ask us to take judicial notice of the 2016 report, which we do.
¶ 65 However, the 2017 Annual Report of the Illinois Courts, which was released on
January 31, 2018, was also available prior to the trial court’s April 6, 2018, decision, and we
take judicial notice of that as well—and it does not support defendants-appellants’ argument.
For completeness’s sake, we provide the relevant statistics for all three years.
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No. 1-18-0840
¶ 66 First, as the trial court observed, cases actually resolved faster in Cook County than in
Kane County in 2015—40.2 months versus 41.7 months. The 2015 Annual Report of the
Illinois Courts showed that there were only 6 jury verdicts in Kane County in the law
division over $50,000 and 457 such verdicts in Cook County but that the time lapse from the
date of filing to the date of verdict for such cases was 41.7 months in Kane County but only
40.2 months in Cook County. Admin. Office of the Ill. Courts, Annual Report of the Illinois
Courts: Statistical Summary—2015, 59 (2016), http://www.illinoiscourts.gov/SupremeCourt/
AnnualReport/2015/2015_Statistical_Summary.pdf [https://perma.cc/2A2U-DMK9]. Thus,
Cook County completed such cases faster than Kane County.
¶ 67 But in 2016, as defendants-appellants point out, these cases resolved faster in Kane
County than in Cook County—37.8 months versus 29.9 months. The 2016 Annual Report of
the Illinois Courts showed that there were only 9 jury verdicts in law division cases above
$50,000 in Kane County and 378 such verdicts in Cook County and that the time lapse for
such cases was 29.9 months for Kane County and 35 months in Cook County. Admin. Office
of the Ill. Courts, Annual Report of the Illinois Courts: Statistical Summary—2016, 59
(2017), http://www.illinoiscourts.gov/SupremeCourt/AnnualReport/2016/2016_Statistical_
Summary.pdf [https://perma.cc/B39R-ULY4]. Thus, in 2016, Kane County was over 5
months faster in completing such cases.
¶ 68 But the situation changes again when we look at 2017. In 2017, Cook County
completed such cases at a faster pace, as it did in 2015, the year that the trial court used in its
analysis. The 2017 Annual Report of the Illinois Courts showed that there were only 11 jury
verdicts in Kane County in the law division over $50,000 and 400 such verdicts in Cook
County but that the time lapse from the date of filing to the date of verdict for such cases was
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No. 1-18-0840
38.3 months in Kane County but only 32.2. months in Cook County. Admin. Office of the Ill.
Courts, Annual Report of the Illinois Courts: Statistical Summary—2017, 59 (2018),
http://www.illinoiscourts.gov/SupremeCourt/AnnualReport/2018/2017_Statistical_Summary
_Final.pdf [https://perma.cc/ZT2N-Y7XY]. Thus, Cook County was faster for such cases in
2017.
¶ 69 What we learn from these constantly changing statistics is that this factor is irrelevant
with respect to these two counties at this point in time.
¶ 70 Thus, for all the reasons that the trial court discussed in its own order and for all the
additional reasons that we discussed above, we cannot find that the trial court abused its
discretion in finding that the public and private factors did not require a transfer to Kane
County.
¶ 71 CONCLUSION
¶ 72 With respect to defendants-appellants’ forum non conveniens motion, we have
carefully considered and weighed every factor in the forum non conveniens doctrine, and we
cannot find that the trial court abused its discretion by denying defendants-appellants’
motion.
¶ 73 Affirmed.
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