Kowalczyk v. Illinois Central R.R. Co. ( 2021 )

2021 IL App (1st) 210206-UOrder filed: August 27, 2021
FIRST DISTRICT
FIFTH DIVISION
No. 1-21-0206
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
BRIAN KOWALCZYK, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 19 L 8347
)
ILLINOIS CENTRAL RAILROAD COMPANY and )
MARIGOLD, INC., ) Honorable
) Patricia O’Brien Sheahan,
Defendants-Appellants. ) Judge, presiding.
______________________________________________________________________________
JUSTICE ROCHFORD delivered the judgment of the court.
Presiding Justice Delort and Justice Hoffman concurred in the judgment.
ORDER
¶1 Held: We affirm the denial of the defendants' joint motion to dismiss or transfer this
matter on forum non conveniens grounds, as the circuit court did not abuse its
discretion in finding that defendants have not met their burden to show that the
private and public interest factors weigh in favor of dismissal or transfer.
¶2 Defendants-appellants, Illinois Central Railroad Company (Illinois Central) and Marigold,
Inc. (Marigold), bring this interlocutory appeal pursuant to Illinois Supreme Court Rule 306(a)(2)
(eff. Oct. 1, 2020), challenging the circuit court's order denying their motion to dismiss or transfer
this matter based on forum non conveniens grounds. For the following reasons, we affirm.
¶3 Plaintiff-appellee, Brian Kowalczyk, filed this lawsuit against defendants on July 29, 2019.
In his complaint, plaintiff generally alleged that he injured his right knee on January 29, 2019,
No. 1-21-0206
when he fell into an open hole located in a walkway along a railroad track. The incident allegedly
occurred while plaintiff was working for Illinois Central as a conductor on property owned by
Marigold located in Cook County, Illinois. Each defendant was alleged to do business in Cook
County. The first count was brought against Illinois Central under the Federal Employers' Liability
Act (FELA) (45 U.S.C. §§ 51-60 (2018)), while the second count was brought against Marigold
and alleged common law negligence.
¶4 The parties engaged in discovery, providing answers to interrogatories, producing relevant
documents and other material, and taking four depositions of potential trial witnesses. That
discovery revealed that the incident had actually occurred in Will County, Illinois, just south of its
border with Cook County, plaintiff resided in Lake County, Indiana, and plaintiff had received
significant medical care in Lake County, Indiana on both of his knees prior to and after the incident.
For these and other reasons, defendants filed a joint motion to either dismiss this matter for refiling
in Lake County, Indiana or transfer this matter to Will County based on forum non conveniens
grounds, contending that plaintiff's choice of venue should be given little deference and the
relevant public and private interest factors weigh strongly in favor of dismissal or transfer. 1
¶5 The parties fully briefed the joint motion, and the circuit court ultimately denied
defendants’ motion in a written order entered on January 28, 2021. On February 26, 2021,
defendants filed a petition for leave to appeal under Rule 306(a)(2), which this court granted on
April 5, 2021. The sole question before us is whether the circuit court abused its discretion in
denying defendants' joint motion to dismiss or transfer based on forum non conveniens grounds.
1
The joint motion also identified the federal court, specifically the Northern District of Indiana, as
a preferred, alternative forum. However, defendants have not made a similar claim on appeal, and we
therefore will not further address the propriety of that alternative forum.
-2-
No. 1-21-0206
¶6 The Illinois venue statute provides that an action must be commenced in either: (1) the
county of residence of any defendant who is joined in good faith, or (2) the county in which the
cause of action arose. 735 ILCS 5/2–101 (West 2020). If there is more than one potential forum,
the equitable doctrine of forum non conveniens may be invoked to determine the most appropriate
forum. Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167, 171 (2003). “The doctrine is based on
considerations of fundamental fairness and sensible and effective judicial administration. The
doctrine allows the court in which the action was filed to decline jurisdiction and direct the lawsuit
to an alternative forum that the court determines can better serve the convenience of the parties
and the ends of justice.” Id. at 171-72.
¶7 The doctrine has two potential applications: interstate forum non conveniens, and intrastate
forum non conveniens. Lambert v. Goodyear Tire and Rubber Co., 332 Ill. App. 3d 373, 377
(2002). “In other words, the doctrine may be applied not only where the choice is between forums
in different states, but also where the choice is between forums in the same state. The same
considerations of convenience and fairness apply in deciding the question of the forum for trial.”
Fennell v. Illinois Central R.R. Co., 2012 IL 113812, ¶ 13. If the trial court grants an interstate
forum non conveniens motion, the action must be dismissed because an Illinois circuit court lacks
the power to transfer the action to the court of another state. However, the dismissal is conditioned
on the plaintiff timely filing the action in the other forum, the defendant accepting service of
process from that court, the defendant waiving any available statute of limitations defense and the
court in the other forum accepting jurisdiction. Id.; Ill. S. Ct. R. 187(c)(2) (eff. Jan. 1, 2018).
¶8 In determining whether to grant or deny a forum non conveniens motion, the circuit court
must consider the deference that should be afforded to the plaintiff's choice of forum. Dawdy, 207
Ill. 2d at 173. “A plaintiff's right to select the forum is substantial.” Id. When a plaintiff chooses
-3-
No. 1-21-0206
its home forum, that choice will be given substantial deference. McClain v. Illinois Central Gulf
R.R. Co., 121 Ill. 2d 278, 289 (1988). However, if the plaintiff is foreign to the selected forum, its
choice is given less deference. Griffith v. Mitsubishi Aircraft International, Inc., 136 Ill. 2d 101,
106 (1990). Moreover, if the plaintiff's chosen forum is not the site of the alleged negligence, its
chosen forum is entitled to less deference. Peile v. Skelgas, Inc., 163 Ill. 2d 323, 337-38 (1994).
¶9 In making its determination as to the forum in which the case should be tried, the circuit
court must also balance certain private and public interest factors. Dawdy, 207 Ill. 2d at 172.
Private interest factors include: (1) the convenience of the parties; (2) the relative ease of access
to sources of evidence; (3) the availability of compulsory process to secure attendance of unwilling
witnesses; (4) the cost to obtain attendance of willing witnesses; (5) the possibility of viewing the
premises, if appropriate; and (6) any other practical considerations that make a trial easy,
expeditious, and inexpensive. Id. Public interest factors include: (1) the interest in having local
controversies decided locally, (2) the unfairness of imposing jury duty on residents of a county
with no connection to the litigation; and (3) the administrative difficulties caused by litigating
cases in congested forums. Id. at 173.
¶ 10 Private factors are not weighed against public factors; rather, the circuit court must evaluate
the totality of the circumstances in determining “whether the defendant has proven that the balance
of the factors strongly favors transfer.” First American Bank v. Guerine, 198 Ill. 2d 511, 518
(2002). “The defendant must show that the plaintiff's chosen forum is inconvenient to the
defendant and that another forum is more convenient to all parties. *** Unless the balance of
factors strongly favor a defendant's choice of forum, the plaintiff's choice of forum should rarely
be disturbed.” Langenhorst, 219 Ill. 2d at 444. Circuit courts are afforded considerable discretion
in a ruling on a forum non conveniens motion. Id. at 441-42. A decision on forum non conveniens
-4-
No. 1-21-0206
will be reversed only where the circuit court abused its discretion in balancing the relevant factors
such that no reasonable person would take the view adopted by the circuit court. Id. at 442.
¶ 11 We begin our analysis by addressing defendants’ initial assertion that the circuit court must
have abused its discretion in denying their joint motion, where it concluded that all the relevant
private and public factors were either neutral or weighed in favor of either Will County or Lake
County, Indiana. Defendants support this argument by citation to DeVries v. Bankers Life Co., 128
Ill. App. 3d 647, 655 (1984), where this court concluded that “[s]ince all factors relevant to the
forum non conveniens determination are either neutral or weigh in defendant's favor, we find that
the denial of defendant's motion to dismiss constituted an abuse of discretion.” We reject this
argument.
¶ 12 First, defendants’ argument essentially contends that the DeVries decision established a
bright-line rule that a forum non conveniens motion must be granted where all the relevant private
and public factors are either neutral or weigh in favor of a defendant. The DeVries decision did no
such thing, where the conclusion in that case was based upon the court’s careful analysis of the
facts of that specific case. Id. at 652-655. Moreover, any such bright-line rule would run afoul of
the long-held understanding that “each forum non conveniens case is unique and must be
considered on its own facts.” Fennell, 2012 IL 113812, ¶ 21.
¶ 13 Second, it was not enough for defendants to convince the circuit court that sufficient public
and private factors weigh in favor of their two proposed alternative forums, collectively. Rather,
defendants had to show that the balance of factors strongly favor at least one of those alternative
forums individually, such that this matter should be relocated to one of those proposed forums.
Langenhorst, 219 Ill. 2d at 444. As will be discussed below, the circuit court did not abuse its
discretion in concluding that defendants failed to meet this burden.
-5-
No. 1-21-0206
¶ 14 Turning to the deference to be afforded to plaintiff’s choice of Cook County as the forum
for this lawsuit, the circuit court’s written order specifically recognized plaintiff’s substantial
interest in choosing his own forum while also recognizing that plaintiff lived in Lake County,
Indiana and that the incident occurred in Will County. Ultimately, the circuit court concluded that
plaintiff’s choice of Cook County was entitled to “some deference” based upon these facts, after
citing to Langenhorst, 219 Ill. 2d at 448, for the proposition that the deference to be accorded in
such a situation is only less, as opposed to none. Notably, defendants do not challenge this finding
on appeal and we agree with the circuit court’s analysis on this point. Therefore, we will proceed
to review the relevant private and public interest factors.
¶ 15 As to the first private-interest factor, defendants must prove plaintiff's chosen forum is
inconvenient and that another forum is more convenient for all parties. Id. Although plaintiff does
not reside in Cook County, defendants may not assert that the chosen forum is inconvenient to
plaintiff. Erwin ex rel. Erwin v. Motorola, Inc., 408 Ill. App. 3d 261, 275 (2011). Furthermore, it
is undisputed on appeal that both defendants are Illinois corporations with their principal place of
business located in Cook County and “[i]t is all but incongruous for defendants to argue that their
own home county is inconvenient.” Kwasniewski v. Schaid, 153 Ill. 2d 550, 555 (1992). While
defendants complain that the circuit court improperly focused on their business activities in Cook
County in analyzing this factor, Illinois appellate decisions are to the contrary. 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”); Gridley v. State
Farm Mutual Automobile Insurance Co., 217 Ill. 2d 158, 173 (2005) (principal place of business
is a “factor to be considered”). The circuit court noted these very points in finding the factor to be
neutral, and we cannot say it abused its discretion in doing so.
-6-
No. 1-21-0206
¶ 16 We now address the second private interest factor—the relative ease of access to sources
of testimonial and documentary evidence. The circuit court found this factor to be neutral and we
agree. Here, the parties have identified—other than plaintiff himself—17 possible liability
witnesses, of which 11 reside in Lake County, Indiana, 3 in Will County, 2 in Kankakee County,
Illinois, and 1 in Porter County, Indiana. While most of these witnesses are located in Indiana, the
circuit court correctly noted that the potential witnesses were scattered across several counties in
Illinois and Indiana, such that no one alternative forum was favored. See Langenhorst, 219 Ill. 2d
at 453 (motion to transfer properly denied where “most of the potential trial witnesses are scattered
and no single county enjoys a predominant connection to the litigation.”). Furthermore, the
counties at issue here are all adjacent to each other with each of the three counties sharing a border
with the other two. As such, any true differences in the relative ease of access to sources of
testimonial evidence among the three possible venues are minimal. Id. at 450 (noting that where
the forums at issue are adjacent and the differences in travel distances are relatively minimal, the
battle over the most appropriate forum results in a battle over mere minutiae).
¶ 17 In addition, plaintiff received medical care for the injury to his right knee in Cook County
and DuPage County, Illinois, as well as Lake County, Indiana. Plaintiff also received significant
medical care on both knees in Lake County, Indiana prior to the incident. The circuit court correctly
recognized that, to the extent that any documents or other materials located in these various forums
would be required for this lawsuit, that fact does not strongly weigh in favor of transfer. See Vivas
v. Boeing Co., 392 Ill. App. 3d 644, 659 (2009) (“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.”); Erwin, 408 Ill. App. 3d at 281 (“it has become well recognized
-7-
No. 1-21-0206
by our courts that given our current state of technology * * * documentary evidence can be copied
and transported easily and inexpensively”).
¶ 18 We do pause briefly to note that in analyzing this factor and concluding that it was neutral,
the circuit court went further to opine as follows:
“the COVID-19 pandemic has had a dramatic impact on how litigation is conducted. Many
court hearings, depositions, and pretrial conferences are now being done remotely. If the
pandemic continues much longer, the judiciary in Cook County will likely find ways to
conduct jury trials remotely. COVID-19 has accelerated the adoption of Zoom, Skype,
Microsoft Teams, and other web-based video conferencing platforms by lawyers and the
general public. The technology employed during this crisis is not likely to disappear
once it ends. The idea of a trial consisting of lawyers, witnesses, jurors, and judges all being
in the same room may one day become an artifact of a by-gone era. Given advancing
technology, testimony and documentary evidence can be accomplished anywhere.”
Defendants complain that the circuit court’s speculation about the possibility of remote jury trials
is unfounded and unsupported by the record, and also ignores both the demonstrated commitment
of Illinois courts to return to in-person jury trials and the long-recognized understanding that there
is no true substitute for live testimony at trial.
¶ 19 As an initial matter, we note that much of the circuit court’s commentary focused on the
use of remote technologies in pretrial matters, and we have little doubt that the circuit court is
correct that the utilization of such technologies will likely survive the COVID-19 pandemic and
perhaps even expand in scope. With respect to the circuit court’s speculation regarding the
possibility of remote jury trials in the future, while we agree with defendants that there is nothing
in the record to support the circuit court’s comments, we also do not believe the circuit court
-8-
No. 1-21-0206
contemplated such a remote jury trial here, nor do we believe these comments played a significant
role in the circuit court’s analysis of this factor. Even if it did, we need not address this issue
further. We have already concluded that the circuit court did not abuse its discretion in concluding
that this factor was neutral based upon its consideration of relevant criteria, so any further analysis
of the circuit court’s reliance upon potentially speculative criteria would be unnecessary as the
issue is moot. In re Jonathan P., 399 Ill. App.3d 396, 400 (2010) (“Generally, courts of review do
not decide moot questions, render advisory opinions, or consider issues where the result will not
be affected regardless of how those issues are decided.”).
¶ 20 The circuit court found the third private interest factor—the availability of compulsory
process to secure attendance of unwilling witnesses—to favor transfer to Indiana because while
compulsory process over Illinois witnesses would be available in either Cook or Will County, the
same would not be the case for unwilling witnesses located in Indiana. While defendants have not
challenged this finding on appeal, we find that it was arguably too generous to defendants.
¶ 21 As noted above, there were also many witnesses located in Illinois who would not be
subject to compulsory process if the matter was refiled in Indiana. Furthermore, while some
witnesses claimed in affidavits that testifying in Illinois would be inconvenient, defendants have
not identified any single, specific witness located in Indiana that would be unwilling to testify in
Illinois. It is generally understood that a circuit court should not speculate about a witness's
whereabouts or unwillingness where a defendant has failed to meet its burden of proof to identify
a specific witness who would be unwilling to testify in Illinois. Erwin, 408 Ill. App. 3d at 277. In
addition, at least 12 of the specifically identified liability witnesses located in Indiana are
employees of defendants, and our supreme court has recognized that a plaintiff will likely
experience little difficulty securing the appearance of a defendant’s employees. Fennell, 2012 IL
-9-
No. 1-21-0206
113812, ¶ 31.
¶ 22 The circuit court found the fourth private interest factor—the cost to obtain attendance of
willing witnesses—to slightly favor Lake County, Indiana after noting again that there were
potential witnesses located in multiple counties. We cannot say this was an abuse of discretion,
where most of the identified witnesses lived in Indiana. As to the fifth private interest factor—the
possibility of viewing the site of the incident—the circuit court did not abuse its discretion in
finding that this factor weighed in favor of Will County, the location of the incident. We do note
however, as the circuit court itself did, that the incident occurred just south of Cook County’s
border with Will County, such that any “viewing of the scene will not be materially different” if
this matter is tried in either county.
¶ 23 As to the final private interest factor—all other practical considerations that make a trial
easy, expeditious, and inexpensive—the circuit court concluded that this factor was neutral after
noting that all the parties were represented by counsel located in Cook County, but that the location
of the parties' attorneys is accorded little weight in determining a forum non conveniens motion.
Langenhorst, 219 Ill. 2d at 450. We agree. We also note that while defendants have gone to great
lengths to show how either Lake County, Indiana or Will County would be more convenient for
various witnesses, we note again that the counties at issue here are all adjacent to each other with
each of the three counties sharing a border with the other two counties. So again, any true
differences in holding an easy, expeditious, and inexpensive trial among the three possible venues
are minimal and this is a battle over mere minutiae. Id.
¶ 24 Turning to the first public interest factor—the interest in having local controversies decided
locally—the circuit court correctly noted that the location of the injury giving rise to the litigation
(here, Will County) is the most significant factor in giving any county a local interest. Dawdy, 207
- 10 -
No. 1-21-0206
Ill. 2d at 183. However, and despite defendants’ claims to the contrary, the circuit court also
appropriately recognized that Cook County had a local interest in this litigation because both
defendants have their principal place of business in Cook County, before concluding that this factor
was neutral.
¶ 25 It is certainly true that “[m]erely conducting business” in the plaintiff's chosen forum does
not affect the forum non conveniens analysis.” Id. at 182. However, the fact that a defendant has
its principal place of business in a plaintiff’s chosen forum is a relevant consideration in
determining if there is a local interest in the litigation at issue. Gridley, 217 Ill. 2d at 173(defendant’s principal place of business is a factor to be considered in determining the more
appropriate forum); Wieser v. Missouri Pacific R.R. Co., 98 Ill. 2d 359, 371–72 (1983) (forum
where a defendant has its principal place of business “had an interest in providing a forum in which
to resolve the dispute.”); Wilder Chiropractic, Inc. v. State Farm Fire & Casualty Co., 2014 IL
App (2d) 130781, ¶ 69 (same). The circuit court did not abuse its discretion in finding this factor
neutral, even if we might have given the edge to Will County considering the location of the injury
giving rise to the litigation is the most significant factor in giving any county a local interest. Bird
v. Luhr Bros., 334 Ill. App. 3d 1088, 1091 (2002) (appellate court will not substitute our judgment
for that of the circuit court to determine whether the circuit court exercised its discretion wisely.)
¶ 26 With respect to the second public interest factor—the unfairness of imposing jury duty on
residents of a county with no connection to the litigation—defendants fault the circuit court for
concluding that “it is not entirely unfair to impose jury duty on Cook County residents” where
both defendants have their principal place of business in here. To the extent that defendants
contend this was an improper consideration, we reject that argument for the same reasons
expressed above. To the extent that defendants argue that Will County, as the site of the incident,
- 11 -
No. 1-21-0206
and Lake County, Indiana, where plaintiff resides, each also have a strong interest in this suit, we
do not disagree. However, the point is that each of the three forums at issue here have an interest
in this matter, and we cannot say that the circuit court abused its discretion in finding this factor
neutral considering that shared interest.
¶ 27 As to the final public interest factor—the administrative difficulties caused by litigating
cases in congested forums—the circuit court concluded that this factor favored either Will or Lake
County, Indiana based upon evidence that Cook County courts were more congested than the
alternative forums. However, the evidence of court congestion supplied by defendants only
included information as to the total number of filed, disposed of, and pending cases in in Cook
County and Will County, and did not include information as to the speed with which cases are
resolved. Moreover, no such information was provided with respect to Lake County, Indiana at
all. “Court 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, citing Brummett
v. Wepfer Marine, Inc., 111 Ill. 2d 495, 503 (1986). Thus, the record does not actually contain
evidence that this relatively insignificant factor strongly weighed in favor of Will County or Lake
County, Indiana in any meaningful way, and the circuit court was arguably wrong to conclude that
there would be any administrative difficulties caused by litigating this matter in Cook County
based on this evidence.
¶ 28 “Having considered all of the arguments raised in the briefing, the attached exhibits, and
the totality of the circumstances of the case,” the circuit court ultimately denied the joint motion
after concluding that “the public and private interest factors in their totality do not strongly favor
transfer, and transfer or dismissal is therefore inappropriate.” It did so after concluding that five
factors were neutral, two favored Lake County, Indiana, one favored Will County, and one factor
- 12 -
No. 1-21-0206
favored either Will County or Lake County, Indiana over Cook County. On appeal, we have
generally found no abuse of discretion with respect to the circuit court’s analysis of the individual
factors, with the following exceptions: (1) the circuit court improperly found the third private
interest factor—the availability of compulsory process to secure attendance of unwilling
witnesses—to favor transfer to Lake County, Indiana, where defendants have not identified any
single, specific witness located in Indiana that would be unwilling to testify in Illinois and many
of those witnesses were employees of defendants; (2) as to the first public interest factor—the
interest in having local controversies decided locally—we might have given the edge to Will
County considering the location of the injury giving rise to the litigation is the most significant
factor in giving any county a local interest, and (3) as to the final public interest factor—the
administrative difficulties caused by litigating cases in congested forums—the circuit court was
arguably wrong to conclude that there would be any administrative difficulties caused by litigating
this matter in Cook County based on the evidence presented by defendants. As such, our own
review of the record finds, in general, even less support for defendants’ joint motion than found
by the circuit court.
¶ 29 However, we reiterate that this court will not substitute our judgment for that of the circuit
court to determine whether the circuit court exercised its discretion wisely. Bird, 334 Ill. App. 3d
at 1091. Rather, it was within the circuit court’s discretion to determine whether the balance of
factors so strongly favor dismissal or transfer of this matter to one of the proposed alternative
forums that the plaintiff should be deprived of his chosen forum. Guerine, 198 Ill. 2d at 526. On
the record before us, we cannot say that the circuit court so abused its discretion in balancing the
relevant factors that no reasonable person would deny defendants’ joint motion to dismiss or
transfer. Langenhorst, 219 Ill. 2d at 442.
- 13 -
No. 1-21-0206
¶ 30 For the foregoing reasons, we affirm the judgment of the circuit court.
¶ 31 Affirmed.
- 14 -