Bjorkstam v. MPC Products Corporation , 21 N.E.3d 1216 ( 2014 )

2014 IL App (1st) 133710
FOURTH DIVISION
November 13, 2014
No. 1-13-3710
ULRIKA BJORKSTAM and JOSEPH DANIEL )
DRAY, ) Appeal from the
) Circuit Court of
Plaintiffs-Appellants, ) Cook County.
)
v. ) No. 13 L 007339
)
MPC PRODUCTS CORPORATION d/b/a ) Honorable
Woodward MPC, a Corporation and ) Jeffrey Lawrence,
WOODWARD, INC., a Corporation, ) Judge Presiding.
)
Defendants-Appellees. )
JUSTICE EPSTEIN delivered the judgment of the court, with opinion.
Justices Howse and Taylor concurred in the judgment and opinion.
OPINION
¶1 This appeal addresses whether plaintiffs Ulrika Bjorkstam and Joseph Daniel Dray were
entitled to reinstate their complaint against defendants MPC Products Corporation (MPC) and
Woodward, Inc. (Woodward), in the circuit court of Cook County, Illinois, after it had been
dismissed for forum non conveniens. Plaintiffs filed their initial complaint in the circuit court of
Cook County. The court dismissed plaintiffs' suit for forum non conveniens, finding that Harris
County, Texas, was a more convenient forum. Plaintiffs then filed suit in Texas. In Texas,
Woodward moved to dismiss plaintiffs' complaint for want of prosecution, alleging that plaintiffs
failed to exercise diligence in serving it with the lawsuit. The Texas district court granted
Woodward's motion and plaintiffs refiled their complaint against both defendants in Illinois.
¶2 The Illinois circuit court granted defendants' motion to dismiss the complaint pursuant to
section 2-619(a)(4) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(4) (West 2012)), finding
that the Texas court's order dismissing plaintiffs' complaint precluded it from considering whether
No. 1-13-3710
plaintiffs were entitled to refile their suit in Illinois. While we conclude that the trial court erred in
finding that the Texas court's order barred it from reaching that question, we also conclude that
plaintiffs were not entitled to refile their complaint in Illinois. We thus affirm the trial court's
dismissal of plaintiff's complaint.
¶3 I. BACKGROUND
¶4 Plaintiffs were bystanders injured during a plane crash in Mexico City, Mexico, on
November 4, 2008. On November 3, 2009, plaintiffs filed a lawsuit in the circuit court of Cook
County, alleging that the plane contained faulty parts, including the horizontal stabilizer actuator
manufactured by defendants, whose principal place of business was in Illinois.
¶5 On December 10, 2010, the Cook County circuit court granted defendants' motion to
dismiss plaintiffs' complaint for forum non conveniens, finding that Harris County, Texas, was a
more appropriate forum. Reflecting the conditions to dismissal for forum non conveniens listed in
Illinois Supreme Court Rule 187(c)(2) (eff. Aug. 1, 1986), the trial court included the following
language in its order (the forum non conveniens order):
"Defendants' Motions to Dismiss on the basis of forum non conveniens are hereby
granted upon the conditions that:
(1) If Plaintiff elects to file the action in another forum within six months of
after the dismissal, including joining Defendants to the case *** Pending in the
District Court of Harris County, Texas, all defendants named in the instant matter
must accept service of process from that court. [Citation.];
(2) Defendants must waive the statute of limitations defense if the statute
has run in the other forum. [Citation.];
(3) The case pending before this Court may be reinstated if any Defendant
-2-
No. 1-13-3710
refuses to abide by the mandatory conditions for dismissal [citation]; and
(4) The case pending before this Court may be reinstated if the Court in the
other forum refuses to accept jurisdiction and Plaintiff requests reinstatement
within 30 days after final order refusing jurisdiction."
Plaintiffs did not appeal this order.
¶6 On March 11, 2011, plaintiffs filed a petition 1 in the district court of Harris County, Texas,
naming defendants. On March 15, 2011, plaintiffs' counsel mailed a copy of the petition to
defendants' counsel. The cover letter accompanying the petition listed defendants' counsel's
address as, "1 North La Salle Street, Suite 2300, Chicago, Illinois 30302."
¶7 On January 31, 2013, plaintiffs issued a citation 2 to Woodward, but not MPC, notifying it
of the Texas petition. The citation indicated that Woodward was served with a copy of the citation
and plaintiffs' petition. On March 1, 2013, Woodward moved to dismiss the petition for want of
prosecution, asserting that plaintiffs had failed to exercise due diligence in serving Woodward.
¶8 On June 14, 2013, the Texas district court held a hearing on Woodward's motion to dismiss
plaintiffs' petition. In support of the motion, Woodward argued that it had not been formally served
for two years after plaintiffs filed their petition. Woodward's counsel asserted that he never
received the copy of the petition mailed to his offices on March 15, 2011 because plaintiffs listed
the wrong ZIP code on their letter. Plaintiffs argued that Woodward was aware of the litigation, as
Woodward and MPC were involved in the Illinois litigation, plaintiffs mailed Woodward's counsel
1
A petition in Texas is equivalent to a complaint in Illinois. See 735 ILCS 5/2-201(a)
(West 2008) ("Every action *** shall be commenced by the filing of a complaint."); Tex. R. Civ.
P. 22 (eff. Sept. 1, 1941) ("A civil suit in the district *** court shall be commenced by a petition
filed in the office of the clerk.").
2
A citation in Texas is equivalent to a summons in Illinois. See generally Ill. S. Ct. R. 101
(eff. May 30, 2008); Tex. R. Civ. P. 99 (eff. Jan. 1, 1988).
-3-
No. 1-13-3710
a copy of the petition, and Woodward and MPC had participated in depositions and mediation
before being served with the petition.
¶9 On June 21, 2013, the Texas district court entered a one-paragraph order granting
Woodward's motion to dismiss for want of prosecution. The court's order indicated that plaintiffs'
suit against Woodward was dismissed with prejudice. It did not relate any findings regarding the
forum non conveniens order.
¶ 10 On June 26, 2013, plaintiffs filed a new complaint in the circuit court of Cook County,
Illinois, naming both defendants. The complaint's allegations mirrored those of the lawsuits
plaintiffs had previously filed in Illinois and Texas. Defendants filed a motion to dismiss plaintiffs'
new complaint pursuant to section 2-619(a)(4) of the Code of Civil Procedure (735 ILCS
5/2-619(a)(4) (West 2012)), asserting that res judicata barred plaintiffs from refiling their suit
because the Texas court dismissed plaintiffs' petition with prejudice. Defendants alternatively
argued that plaintiffs could not refile their complaint in Illinois because defendants had not
violated the forum non conveniens order by refusing service or asserting the statute of limitations
as a defense.
¶ 11 The circuit court of Cook County held a hearing on defendants' section 2-619(a)(4) motion
on November 1, 2013. Plaintiffs asserted that defendants had violated the forum non conveniens
order by challenging plaintiffs' service of process in Texas. The circuit court found that plaintiffs'
refiled complaint constituted a collateral attack on the Texas district court's judgment. Although
the circuit court suggested that the Texas district court "failed to enforce [the forum non
conveniens] order," it declined to alter the judgment of the Texas district court dismissing
plaintiffs' petition. The circuit court granted defendants' section 2-619(a)(4) motion. Plaintiffs
appeal.
-4-
No. 1-13-3710
¶ 12 II. ANALYSIS
¶ 13 Plaintiffs challenge the circuit court's grant of defendants' section 2-619(a)(4) motion to
dismiss, asserting that the trial court erred in concluding that the Texas district court's dismissal
order barred plaintiffs from reinstating their lawsuit in Illinois. Plaintiffs contend that they were
entitled to reinstate their suit because defendant violated the Illinois circuit court's forum non
conveniens order by challenging the efficacy of plaintiff's service of process in Texas. Defendants
assert that the Texas district court's order precluded plaintiffs from reinstating their suit and they
were entitled to challenge plaintiffs' defective service of process in the Texas district court. While
we agree with plaintiffs that res judicata did not preclude the Illinois circuit court from deciding
whether they were entitled to reinstate their complaint, plaintiffs were ultimately not entitled to
reinstate their complaint because defendants did not violate the forum non conveniens order or
Illinois Supreme Court Rule 187(c)(2).
¶ 14 "A motion to dismiss under section 2-619 admits the legal sufficiency of the plaintiffs'
complaint, but asserts an affirmative defense or other matter that avoids or defeats the plaintiffs'
claim." (Internal quotation marks omitted.) Evanston Insurance Co. v. Riseborough, 2014 IL
114271, ¶ 13. "When ruling on the motion, the court should construe the pleadings and supporting
documents in the light most favorable to the nonmoving party." Sandholm v. Kuecker, 2012 IL
111443, ¶ 55. "The court must accept as true all well-pleaded facts in plaintiff's complaint and all
inferences that may reasonably be drawn in plaintiff's favor." Id. We review de novo the trial
court's dismissal of a complaint pursuant to section 2-619. Evanston Insurance Co., 2014 IL
114271, ¶ 13.
-5-
No. 1-13-3710
¶ 15 We first address whether res judicata precluded the Illinois circuit court from determining
whether plaintiffs were entitled to reinstate their suit. We then turn to whether plaintiffs were
entitled to reinstate their suit in Illinois.
¶ 16 A. Res Judicata
¶ 17 Plaintiffs contend that the circuit court erred in granting defendants' section 2-619(a)(4)
motion because the Texas district court's dismissal of plaintiffs' Texas petition did not bar the
Illinois circuit court from finding that defendants violated the forum non conveniens order.
Defendants assert that plaintiffs' attempt to reinstate their complaint constituted a collateral attack
on the Texas court's judgment, which was barred by res judicata.
¶ 18 Under the full faith and credit clause of the United States Constitution, we must "give the
judgment of a sister state at least the res judicata effect that the sister state rendering the judgment
would give to it." Morris B. Chapman & Associates, Ltd. v. Kitzman, 193 Ill. 2d 560, 565 (2000);
see U.S. Const., art. IV, § 1. We thus apply Texas law to determine whether res judicata barred the
Illinois circuit court from reinstating plaintiffs' lawsuit. See id.
¶ 19 Under Texas law, "[r]es judicata precludes relitigation of claims that have been finally
adjudicated, or that arise out of the same subject matter and that could have been litigated in the
prior action." Amstadt v. United States Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996). To
establish that res judicata applies, the party asserting it must prove the existence three elements:
"(1) a prior final judgment on the merits by a court of competent jurisdiction; (2) identity of parties
or those in privity with them; and (3) a second action based on the same claims as were raised or
could have been raised in the first action." Id.
¶ 20 In this case, the Texas district court's dismissal of plaintiffs' petition met the first element of
res judicata. Under Texas law, an order dismissing a petition for want of prosecution is generally
-6-
No. 1-13-3710
not considered a final judgment on the merits for purposes of res judicata. Christensen v. Chase
Bank USA, N.A., 304 S.W.3d 548, 553 (Tex. App. 2009). "But if an order dismissing for want of
prosecution erroneously provides that the dismissal is with prejudice and no appeal is taken to
correct the error, the order will support the application of res judicata." Id. In this case, the Texas
district court dismissed plaintiffs' petition for want of prosecution and indicated that dismissal was
with prejudice. At the hearing on defendants' section 2-619(a)(4) motion in the Illinois circuit
court, plaintiffs' counsel noted that he had not appealed the Texas court's dismissal of the petition.
Under Texas law, therefore, the Texas district court's dismissal order constituted a judgment on the
merits for purposes of res judicata.
¶ 21 With respect to the second element, "a former judgment bars a second suit against all who
were in 'privity' with the parties to the first suit." Getty Oil Co. v. Insurance Co. of North America,
845 S.W.2d 794, 800 (Tex. 1992) (quoting Benson v. Wanda Petroleum Co., 468 S.W.2d 361, 363
(Tex. 1971)). "A privy is one who is connected in law with a party to the judgment as to have such
an identity of interests that the party to the judgment represented the same legal right." Ayre v. J.D.
Buckley Allshouse, P.C., 942 S.W.2d 24, 27 (Tex. App. 1996). Privity is determined on a
case-by-case basis. Getty Oil Co., 845 S.W.2d at 800-01. In this case, defendants were named in
both the Texas proceedings and the Illinois proceedings. Only Woodward moved to dismiss
plaintiffs' Texas petition, however, not MPC. Although defendants are related corporate entities,
the record lacks sufficient facts to determine whether their interests are so aligned that we can
consider them to be in privity. We need not resolve whether the same parties were involved in the
Texas and Illinois proceedings, however, as the third element of res judicata is not met in this case.
¶ 22 The Texas district court's order does not meet the third element of res judicata because this
case does not involve a claim that could have been resolved by the Texas district court. In
-7-
No. 1-13-3710
determining whether two claims are the same for purposes of the third prong, Texas applies a
"transactional approach" that asks whether "a subsequent suit *** arises out of the same subject
matter as the prior suit, and that subject matter could have been litigated in the prior suit." Citizens
Insurance Co. of America v. Daccach, 217 S.W.3d 430, 449 (Tex. 2007). In this case, plaintiffs
could not have raised the issue of whether defendants violated the forum non conveniens order in
the Texas district court. Pursuant to Illinois Supreme Court Rule 187(c)(2), when a defendant
refuses to abide by the conditions precedent to dismissal of a complaint for forum non conveniens,
the plaintiff may seek reinstatement of their complaint "in the court in which the dismissal was
granted." Ill. S. Ct. 187(c)(2) (eff. Aug. 1, 1986). Here, the Illinois circuit court dismissed
plaintiff's initial complaint for forum non conveniens. Pursuant to Rule 187(c)(2), therefore,
plaintiff was required to seek reinstatement in the Illinois circuit court, not the Texas district court.
Plaintiff could not have raised his claim for reinstatement in the Texas proceedings. Plaintiffs'
claim for reinstatement was not barred by res judicata.
¶ 23 Although res judicata did not preclude the circuit court from considering whether plaintiffs
could reinstate their complaint, "we may affirm the judgment of the trial court on any basis in the
record, regardless of whether the trial court relied upon that basis or whether the trial court's
reasoning was correct." Alpha School Bus Co. v. Wagner, 391 Ill. App. 3d 722, 734 (2009). We
thus turn to whether plaintiffs were entitled to reinstate their complaint in Illinois because
defendants refused to accept service of plaintiffs' Texas petition.
¶ 24 B. Illinois Supreme Court Rule 187(c)(2)
¶ 25 As a condition to granting defendants' motion to dismiss plaintiffs' first Illinois complaint
for forum non conveniens, the Illinois circuit court required that defendants "accept service of
process from" the district court of Harris County, Texas if plaintiffs refiled their suit in six months.
-8-
No. 1-13-3710
The circuit court derived that condition from Illinois Supreme Court Rule 187(c)(2), which
governs dismissals of lawsuits for forum non conveniens where the more convenient forum is
located outside Illinois. Ill. S. Ct. R. 187(c)(2) (eff. Aug. 1, 1986).
¶ 26 Plaintiffs contend that defendants violated Rule 187(c)(2) by filing a motion to dismiss
plaintiffs' Texas petition for failing to diligently serve Woodward. Defendants assert that they did
not refuse to accept service of process; rather, plaintiffs never served MPC and did not diligently
serve Woodward. In order to determine whether defendants violated the forum non conveniens
order, we must interpret the conditions placed on dismissals for forum non conveniens by Rule
187(c)(2).
¶ 27 Illinois Supreme Court Rule 187(c)(2) sets forth two conditions for dismissal of a
complaint for forum non conveniens: "(i) if the plaintiff elects to file the action in another forum
within six months of the dismissal order, the defendant shall accept service of process from that
court; and (ii) if the statute of limitations has run in the other forum, the defendant shall waive that
defense." Ill. S. Ct. R. 187(c)(2) (eff. Aug. 1, 1986). "If the defendant refuses to abide by these
conditions, the cause shall be reinstated for further proceedings in the court in which the dismissal
was granted." Id. The Illinois circuit court's December 10, 2010 order dismissing plaintiffs'
complaint for forum non conveniens reflected these requirements. We must thus determine
whether defendants refused to abide by either of these conditions, entitling plaintiffs to reinstate
their suit in Illinois.
¶ 28 In determining whether defendants refused to accept service under Rule 187(c)(2), we
apply the principles of statutory construction. See Grossman v. Gebarowski, 315 Ill. App. 3d 213,
220 (2000) ("The rules of statutory construction apply to supreme court rules."). The primary goal
in construing the language of a statute is to determine the intent of the legislature. Hubble v.
-9-
No. 1-13-3710
Bi-State Development Agency of the Illinois-Missouri Metropolitan District, 238 Ill. 2d 262, 268
(2010). The best indicator of legislative intent is the statutory language, given its plain and
ordinary meaning. Id. We view the statute as a whole and interpret different provisions of the
statute in conjunction with one another. Id.
¶ 29 Plaintiffs first contend that Rule 187(c)(2) required defendants to waive their challenges to
plaintiffs' service of the petition in Texas. We disagree. The plain language of Rule 187(c)(2)(i)
required defendants to "accept service of process" from the Texas district court. It did not require
defendants to waive any challenges to plaintiffs' service of process. Importantly, in subsection
(c)(2)(ii) of Rule 187, the defendant is required to "waive" the defense of the statute of limitations.
Ill. S. Ct. R. 187(c)(2)(ii) (eff. Aug. 1, 1986). "When the legislature uses certain language in one
part of a statute and different language in another, we may assume different meanings were
intended." Carver v. Bond/Fayette/Effingham Regional Board of School Trustees, 146 Ill. 2d 347,
353 (1992). Had the supreme court intended Rule 187(c)(2)(i) to require defendants to waive
challenges to plaintiffs' service of process, it would have expressly said so.
¶ 30 We find support for this conclusion in Miller v. Consolidated Rail Corp., 173 Ill. 2d 252
(1996). In Miller, our supreme court held that the condition that the defendant must accept service
from the other forum did not constitute an impermissible waiver of the defendant's constitutional
right to object to the forum's lack of personal jurisdiction over the defendant. Id. at 261. In reaching
that conclusion, the court stated, "[t]he condition of acceptance of service of process does not
equate with a waiver of personal jurisdictional challenges to another forum." Id. Service of process
is an element of personal jurisdiction. See BAC Home Loans Servicing, LP v. Mitchell, 2014 IL
116311, ¶ 18 ("Personal jurisdiction may be established either by service of process in accordance
with statutory requirements or by a party's voluntary submission to the court's jurisdiction.").
- 10 -
No. 1-13-3710
Contrary to plaintiffs' contention, therefore, Rule 187(c)(2)(i) did not require defendants to waive
their right to challenge the efficacy of plaintiffs' service of process.
¶ 31 Even though defendants did not waive their right to challenge plaintiffs' service, we must
still address whether defendants refused to "accept service of process from" the Texas district court
in violation of Rule 187(c)(2)(i). The definition of "service of process" is well-established: "a
formal delivery of documents that is legally sufficient to charge the defendant with notice of a
pending action." Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 700 (1988). We
presume that our supreme court incorporated this definition in using the phrase, "service of
process," in Rule 187(c)(2). See Morissette v. United States, 342 U.S. 246, 263 (1952) ("[W]here
Congress borrows terms of art in which are accumulated the legal tradition and meaning of
centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to
each borrowed word in the body of learning from which it was taken ***."); Advincula v. United
Blood Services, 176 Ill. 2d 1, 17 (1996) ("A term of well-known legal significance can be
presumed to have that meaning in a statute."). Rule 187(c)(2)(i) thus requires a defendant to accept
legally sufficient service of process.
¶ 32 We further conclude that, in this case, the law of Texas dictates what constitutes sufficient
"service of process" under Rule 187(c)(2). Rule 187(c)(2) states that a defendant must accept
"service of process from that court." (Emphasis added.) Ill. S. Ct. R. 187(c)(2)(i) (eff. Aug. 1,
1986). In context, the phrase, "that court," refers to the court in which the plaintiff elects to refile
his or her suit after it has been dismissed for forum non conveniens. Id. The Illinois Supreme Court
thus qualified the service of process that a defendant must accept as service of process from the
court of the forum state, i.e., the state in which the plaintiff elects to refile his or her suit. We hold,
therefore, that "service of process from that court" constitutes service of process as defined by the
- 11 -
No. 1-13-3710
law of the forum state. This interpretation aligns with the general principle that the procedural
rules of a forum state should apply to litigation conducted in that state. People v. Saiken, 49 Ill. 2d
504, 509 (1971); Restatement (Second) of Conflict of Laws § 122 (1971); see OneWest Bank, FSB
v. Markowicz, 2012 IL App (1st) 111187, ¶ 22 ("The manner and timing of service of process are
*** matters of procedure." (Internal quotation marks omitted.)). In order to demonstrate that they
were entitled to reinstate their complaint in Illinois, plaintiffs must show that defendants refused to
accept legally sufficient service of process under Texas law.
¶ 33 Under Texas law, a "citation" is a formal form of notice given to the defendant upon the
initiation of a cause of action. See Tex. R. Civ. P. 99 (eff. Jan. 1, 2012) (prescribing the form and
contents of a citation); Texas Natural Resource Conservation Comm'n v. Sierra Club, 70 S.W.3d
809, 813 (Tex. 2002) (" 'Service of citation' is *** a term of art that describes the formal process by
which a party is informed that it has been sued."). While a citation may be served by "mailing to
the defendant by registered or certified mail *** a true copy of the citation with a copy of the
petition attached" (Tex. R. Civ. P. 106(a)(2) (eff. Sept. 1, 1990)), "[n]o party or other interested
person is authorized to serve the citation; only a sheriff, constable, or other person authorized by
law or court order may do so." State v. Bristol Hotel Asset Co., 65 S.W.3d 638, 648 (Tex. 2001)
(citing Tex. R. Civ. P. 103 (eff. Jan. 1, 1988)). "[T]he officer serving the citation must verify the
return of service." Bristol Hotel Asset Co., 65 S.W.3d at 648 (citing Tex. R. Civ. P. 107 (eff. Sept.
1, 1990)).
¶ 34 In this case, plaintiffs initiated a cause of action in Texas against defendants. In order to
effectuate "service of process from" the Texas court, they were thus required to serve defendants
with a citation in accordance with the Texas Rules of Civil Procedure. Plaintiffs did not serve MPC
with a citation at any point in the Texas proceedings. Although plaintiffs did formally serve a
- 12 -
No. 1-13-3710
citation upon defendant Woodward on January 31, 2013, the Texas district court determined that
this service was ineffective because plaintiffs did not act diligently under Texas law. We are bound
to afford preclusive effect to the Texas court's ruling on this issue. Morris B. Chapman &
Associates, Ltd., 193 Ill. 2d at 565. Plaintiffs cannot claim in this appeal that their January 31, 2013
service constituted valid service of process under Texas law.
¶ 35 Plaintiffs maintain that they served defendants because they mailed defendants' counsel a
copy of the complaint on March 15, 2011 and Texas Rule of Civil Procedure 21a provides for
service by mail. Tex. R. Civ. P. 21a (eff. Sept. 1, 1990). Yet that rule provides for service by mail
for pleadings "other than the citation to be served upon the filing of a cause of action." Id. While
plaintiffs mailed a copy of their petition to defendants' counsel on March 15, 2011, nothing in the
record suggests that a citation was issued to accompany the petition. An affidavit from plaintiffs'
counsel's assistant, who transcribed the letter, also stated that she "mailed the letter *** via
first-class United States mail," not registered or certified mail. The record lacks any evidence that
the person who mailed the petition was authorized by law to serve a citation. To the contrary,
plaintiffs' counsel mailed it and Texas law prohibits a party or interested person from serving a
citation. The record also lacks a certified return of service. In sum, plaintiffs cannot establish that
their March 15, 2011 mailing constituted valid service that defendants were obligated to accept
pursuant to Rule 187(c)(2).
¶ 36 Even if plaintiffs' mailing had been a proper method of service in Texas, plaintiffs did not
trigger defendants' obligation to accept service under the terms of the forum non conveniens order.
That order required that plaintiffs serve defendants with process "from [the Texas] court."
(Emphasis added.) This language suggests that the Illinois circuit court intended that defendants
accept service via formal judicial order, e.g., a summons or citation, rather than other, informal
- 13 -
No. 1-13-3710
means. Although the Illinois circuit court arguably could have required defendants to accept
service through less formal means as a condition to the forum non conveniens dismissal, it did not.
The only service emanating from the Texas district court was plaintiffs' January 31, 2013 service
of Woodward, which the Texas district court found to be insufficient. Plaintiffs' March 15, 2011
letter did not contain a copy of the citation or any other court order. In sum, plaintiffs did not
effectuate service from the Texas district court that defendants would have been obligated to
accept under the terms of the forum non conveniens order.
¶ 37 Plaintiffs also contend that defendants were aware of their Texas lawsuit, as they had
participated in the Illinois circuit court proceedings, depositions, and an out-of-court mediation.
Under Texas law, however, "[t]he propriety of service is evaluated under a strict-compliance
standard." MobileVision Imaging Services, L.L.C. v. LifeCare Hospitals of North Texas, L.P., 260
S.W.3d 561, 565 (Tex. App. 2008) (citing Boreham v. Hartsell, 826 S.W.2d 193, 195 (Tex. App.
1992)). "[M]ere knowledge of a pending suit does not place any duty on a defendant to act."
Wilson v. Dunn, 800 S.W.2d 833, 837 (Tex. 1990); see also MobileVision Imaging Services,
L.L.C., 260 S.W.3d at 565 ("The law is clear that reasonable notice or actual notice of a pending
lawsuit cannot substitute for proper service of process."). Regardless of defendants' knowledge of
plaintiffs' lawsuit, plaintiffs cannot demonstrate that they strictly complied with the requirements
of service of process in Texas. Defendants' knowledge of the lawsuit did not act as a substitute for
service of process.
¶ 38 We recognize that, on an equitable basis, this outcome is disquieting. Defendants were
fully aware of the pending Texas case, participating in out-of-court actions relating to the
litigation. Defendants may have maintained an informed, deliberate silence with respect to
plaintiffs' service of process. Yet the plain language of Rule 187(c)(2), the language of the
- 14 -
No. 1-13-3710
December 10, 2010 court order, and plaintiffs' omissions in formally serving defendants compel
our result. As plaintiffs did not effectuate valid service of process from the Texas district court,
defendants' obligation to accept service under Rule 187(c)(2) or the forum non conveniens order
was not triggered. Defendants did not violate the Illinois circuit court's forum non conveniens
order and plaintiffs were thus not entitled to reinstate their complaint in Illinois. We affirm the trial
court's dismissal of plaintiffs' complaint.
¶ 39 III. CONCLUSION
¶ 40 For the reasons stated above, we affirm the trial court's dismissal of plaintiffs' complaint.
¶ 41 Affirmed.
- 15 -