The opinion
NOTICE: Under Supreme Court Rule 367 a party has 21 days
after the filing of the opinion to request a rehearing.
Also, opinions are subject to modification, correction or
withdrawal at anytime prior to issuance of the mandate by
the Clerk of the Court. Therefore, because the following
slip opinion is being made available prior to the Court's
final action in this matter, it cannot be considered the
final decision of the Court. The official copy of the
following opinion will be published by the Supreme Court's
Reporter of Decisions in the Official Reports advance
sheets following final action by the Court.
Docket No. 79969--Agenda 15--March 1996.
ALBERT MILLER, Appellee, v. CONSOLIDATED RAIL CORPORATION,
Appellant.
Opinion filed June 30, 1996.
JUSTICE McMORROW delivered the opinion of the court:
This interlocutory appeal arises from the Madison
County circuit court's order denying defendant's second
motion to dismiss plaintiff's personal injury lawsuit, based
on forum non conveniens, following the reinstatement of the
lawsuit. The appellate court denied defendant's petition for
leave to appeal the circuit court's ruling. 155 Ill. 2d R.
306. We subsequently allowed defendant's petition for leave
to appeal (155 Ill. 2d R. 315), and now affirm the circuit
court's order.
BACKGROUND
On May 17, 1993, plaintiff, Albert Miller, then a
resident of Knox, Indiana, commenced this lawsuit by filing
a complaint in the circuit court of Madison County against
defendant, Consolidated Rail Corporation. Plaintiff's
lawsuit, brought pursuant to the Federal Employers'
Liability Act (FELA) ( 45 U.S.C. §51 et seq. (1988)), seeks
recovery for injuries allegedly suffered during the course
of his employment with defendant from May 1955 to April
1991. Plaintiff's complaint avers that throughout his tenure
of work with defendant, he was exposed to repetitive trauma
which has resulted in carpel tunnel syndrome and lumbar
radiculopathy.
On June 19, 1993, defendant moved the circuit court to
dismiss the suit, arguing, inter alia, that plaintiff's suit
was time-barred under the three-year statute of limitations
applicable to FELA lawsuits ( 45 U.S.C. §56 (1988)). Before
the trial court issued a ruling on this motion, defendant
moved the court to decline jurisdiction of the lawsuit based
on the doctrine of forum non conveniens. In support of the
motion, defendant argued that Madison County was an
inconvenient forum because plaintiff worked for defendant in
Indiana and all of the occurrence and medical witnesses
appeared to be Indiana residents. The motion was granted
subject to the conditions of Supreme Court Rule 187 (134
Ill. 2d R. 187). In its order of October 22, 1993, the court
ruled:
"Defendant's motion granted with the
agreement of defendant[ ] that plaintiff shall
have the right to refile said cause in another
jurisdiction upon the condition that defendant
waives the statute of limitations for 6 months
from the date of this order.
If defendant fails to waive said statute of
limitations this cause shall be reinstated. (Rule
187)."
On November 2, 1993, plaintiff filed his FELA lawsuit
in the circuit court of St. Louis, Missouri, where defendant
and counsel for plaintiff had several FELA matters pending
at that time. On December 2, 1993, defendant moved the
Missouri court to dismiss the suit for lack of jurisdiction
and venue, and on February 8, 1994, defendant moved to
dismiss the suit on the grounds that it was time-barred
under FELA's three-year statute of limitations. The Missouri
court denied both motions. On April 6, 1994, defendant filed
its answer to the complaint and raised an affirmative
defense based on the FELA statute of limitations.
Thereafter, the parties took discovery.
On November 17, 1994, although the cause had twice been
set for trial, defendant moved the Missouri court to dismiss
the suit on the basis of forum non conveniens. Like the
earlier forum motion filed in Illinois, this motion was also
based on the theory that Indiana would be a more convenient
forum. However, before the Missouri court ruled on this
motion, plaintiff returned to the circuit court of Madison
County and, on February 9, 1995, moved the court to
reinstate his FELA lawsuit. In the motion, plaintiff
asserted that under Supreme Court Rule 187(c)(2) (134 Ill.
2d R. 187(c)(2)) he was entitled to reinstate his lawsuit in
Illinois because defendant had failed to abide by the
conditions of the Madison County court's order of October
22, 1993, which required defendant to waive the statute of
limitations defense while the suit was pending in the
Missouri court.
Rule 187(c)(2) provides:
"Dismissal of an action under the doctrine of
forum non conveniens shall be upon the following
conditions:
(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.
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." 145 Ill. 2d R. 187(c)(2).
In opposition to plaintiff's motion to reinstate,
defendant argued that Rule 187(c)(2) was not a proper basis
upon which to reinstate plaintiff's suit. Defendant charged
that subdivision (c)(2)(i) of Rule 187 did not permit
plaintiff to refile the dismissed action in Missouri, which
defendant characterized as a more inconvenient forum than
Illinois. Defendant also claimed that subdivision (c)(2)(ii)
should not be interpreted to extend the statute of
limitations if a lawsuit is time-barred when initially filed
in Illinois. On March 24, 1995, the Madison County court
rejected defendant's objections and granted plaintiff's
motion to reinstate the case. Defendant moved the court to
certify for appeal the questions it had raised in opposition
to plaintiff's motion to reinstate (see 155 Ill. 2d R. 308),
but the court denied this motion. On May 4, 1995, plaintiff
voluntarily dismissed the lawsuit pending in Missouri.
On May 30, 1995, defendant once again moved the court
to dismiss the lawsuit under the doctrine of forum non
conveniens. Defendant's motion reiterated its position that
Indiana was a more convenient forum. With the motion,
defendant included excerpts from plaintiff's deposition
testimony taken while the lawsuit was pending in Missouri
wherein plaintiff testified that his employment with
defendant was entirely in Indiana and that his medical
witnesses were located in Indiana. On July 14, 1995, the
circuit court denied defendant's forum motion.
On August 8, 1995, defendant filed a petition for leave
to appeal to the appellate court. On September 13, 1995, the
appellate court, exercising its discretion under Supreme
Court Rule 306 (155 Ill. 2d R. 306), issued an order denying
the petition. Thereafter, we granted defendant's petition
for leave to appeal to this court under Supreme Court Rule
315 (155 Ill. 2d R. 315).
ANALYSIS
As a threshold matter, we address three arguments
relied upon by plaintiff concerning why we should not
consider defendant's appeal. Plaintiff contends that we do
not have jurisdiction over defendant's appeal. Plaintiff
also asserts that defendant's failure to obtain
certification of the legal questions it now raises on appeal
precludes our review of those issues. In addition, plaintiff
claims that defendant's latest forum motion was untimely and
therefore waived. We discuss each of these contentions in
turn.
Jurisdiction
Plaintiff contends that this court does not have
jurisdiction over defendant's appeal because defendant did
not seek a timely appeal from the orders of the circuit
court. Although defendant filed a notice of appeal within 30
days of the circuit court's order denying its latest forum
motion, plaintiff asserts that the gravamen of defendant's
appeal concerns the propriety of the circuit court's order
of October 22, 1993, conditioning dismissal for forum non
conveniens on defendant's compliance with the conditions in
Rule 187(c)(2), and also the order of March 24, 1995,
reinstating plaintiff's lawsuit. Neither of these orders
were appealed by defendant. Plaintiff argues that
defendant's latest forum motion does not raise any new
matters and, as such, may not toll the time within which to
seek a timely appeal from the circuit court's prior orders.
Supreme Court 306 (155 Ill. 2d R. 306) governs the
filing requirements for interlocutory appeals to the
appellate court from orders of the circuit court denying a
motion to dismiss on the basis of forum non conveniens. Rule
306, as amended, provides, in pertinent part:
"A party may petition for leave to appeal to
the Appellate Court from the following orders of
the trial court:
***
(2) from an order of the circuit court
allowing or denying a motion to dismiss on
the grounds of forum non conveniens ***."
155 Ill. 2d R. 306(a)(2).
Rule 306 also provides that "[a]n original and three copies
of the petition *** shall be filed in the Appellate Court in
accordance with the requirements for briefs WITHIN 30 DAYS
AFTER THE ENTRY OF THE ORDER." (Emphasis added.) 155 Ill. 2d
R. 306(b). The 30-day time limit for filing the petition for
leave to appeal from the denial of forum motions is
therefore jurisdictional. See McClain v. Illinois Central
Gulf R.R. Co., 121 Ill. 2d 278, 285-86 (1988); Barnes v.
Southern Ry. Co., 116 Ill. 2d 236, 241 (1987); Kemner v.
Monsanto, 112 Ill. 2d 223, 236 (1986).
The notice of appeal from the circuit court's order of
July 14, 1995, denying defendant's forum motion was filed
within 30 days and therefore Rule 306 directly applies.
Since the promulgation of Rule 306, three decisions of this
court have recognized that, for jurisdictional purposes,
petitions for leave to appeal may be filed within 30 days of
all interlocutory orders denying a motion to dismiss on the
basis of forum non conveniens. See Kemner, 112 Ill. 2d at
238-39; Barnes, 116 Ill. 2d at 244-45 ; McClain, 121 Ill. 2d
at 286-87. Like the orders timely appealed from in those
cases, the circuit court's order of July 14, 1995, denying
defendant's latest forum motion was interlocutory in nature
and thus appealable under Rule 306. Since defendant filed a
timely petition for leave to appeal from that order, we may
properly exercise jurisdiction over this appeal.
Certification
Plaintiff also asserts that defendant's failure to
obtain the circuit court's certification of particular
questions of law pursuant to Supreme Court Rule 308 (155
Ill. 2d R. 308) precludes our review of defendant's appeal.
Plaintiff points out that after his lawsuit was reinstated
in Madison County, the circuit court denied defendant's
request to certify questions of law regarding the
reinstatement. Plaintiff contends that we are prevented from
reviewing defendant's appeal because defendant raises the
same issues which the circuit court declined to certify
pursuant to Rule 308.
In the present case, defendant's appeal is specifically
authorized by Rule 306. While it is true that defendant did
not obtain the requisite certification from the circuit
court for a permissive interlocutory appeal from order
reinstating plaintiff's lawsuit, defendant's appeal is not
from that order. Rather, defendant appeals from the circuit
court's order of July 14, 1995, denying its motion to
dismiss on the grounds of forum non conveniens. Such an
appeal does not require certification of legal questions and
is specifically authorized by Rule 306. 155 Ill. 2d R.
306(a)(2); see also McClain, 121 Ill. 2d at 287 ; Barnes, 116
Ill. 2d at 244-45; Kemner, 112 Ill. 2d at 239 . Thus,
plaintiff's argument is without merit.
Rule 187(a)
Plaintiff further claims that we should not consider
defendant's appeal from the denial of its latest forum
motion because that motion was not timely filed with the
circuit court and, as a result, any consideration of it has
been waived. Plaintiff directs our attention to Supreme
Court Rule 187(a), which requires that all forum non
conveniens motions be filed no later than 90 days after the
last day allowed for the filing of that party's answer. 134
Ill. 2d R. 107(a). Plaintiff argues that since defendant's
latest forum motion was filed on May 30, 1995, nearly two
years following defendant's first responsive pleading, its
merit should not be considered.
Rule 187(a) provides:
"A motion to dismiss or transfer the action
under the doctrine of forum non conveniens must be
filed by a party not later than 90 days after the
last day allowed for the filing of that party's
answer." 134 Ill. 2d R. 187(a).
The time limit set forth in Rule 187(a) for the filing of
forum motions is unambiguous. The rule clearly indicates
that the 90-day time limit is triggered by the deadline set
for "the last day allowed for the filing of that party's
answer." 134 Ill. 2d R. 187(a); see also Barnes, 116 Ill. 2d
at 250; Kemner, 112 Ill. 2d at 242 . Under the rules
promulgated by this court, the circuit court has broad
discretion in setting and extending the deadlines for the
filing of pleadings. See 134 Ill. 2d Rs. 181 through 183.
However, the record in the present case reveals that the
circuit court did not set a deadline for the filing of
defendant's answer, and, in fact, defendant did not file an
answer in the Illinois suit. Therefore, the time limit set
forth in Rule 187(a) did not proscribe the circuit court
from considering defendant's latest forum motion. See
Barnes, 116 Ill. 2d at 250 ; Kemner, 112 Ill. 2d at 242 .
Rule 187(c)(2)
We now address the substantive arguments raised in
defendant's appeal. The sole issue that defendant asks us to
consider is the propriety of the circuit court's order
denying defendant's latest forum motion. On this issue,
defendant invites us to balance the relevant public and
private interests which normally bear on assessing whether
a circuit court abused its discretion in denying a forum
motion. See, e.g., Washington v. Illinois Power Co., 144
Ill. 2d 395, 399-404 (1991). In so doing, defendant relies
on that portion of the circuit court's order of October 22,
1993, which granted its original forum motion. Defendant
maintains that the public and private interests have not
changed since that dismissal and continue to yield the
conclusion that Indiana is a more convenient forum. In this
regard, defendant acknowledges that the circuit court's
order of October 22, 1993, specifically conditioned
dismissal of plaintiff's lawsuit on defendant's compliance
with Rule 187(c)(2), which contains the conditions for
entitlement to dismissal on grounds of forum non conveniens.
See 134 Ill. 2d R. 187(c)(2). However, by several different
avenues, defendant asserts that the conditions in Rule
187(c)(2) do not support the denial of defendant's latest
forum motion and, as such, should not preclude the court
from balancing the interests which usually govern the
granting or denial of a forum motion.
Subdivision (c)(2)(i)
Subdivision (c)(2)(i) of Rule 187 provides that "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." 134 Ill. 2d R.
187(c)(2)(i). Defendant challenges this condition as
impermissibly requiring a waiver of its constitutional right
to object to that forum's lack of personal jurisdiction over
defendant.
Defendant's interpretation of subdivision (c)(2)(i) is
misplaced. The requirements of Rule 187 subdivisions
(c)(2)(i) and (c)(2)(ii) are conditions precedent to the
granting of a defendant's motion to dismiss based on forum
non conveniens. See 134 Ill. 2d R. 187(c)(2); see also
McClain, 121 Ill. 2d at 292 . The language setting forth the
condition found in subdivision (c)(2)(i) is straightforward.
Subdivision (c)(2)(i) does not impose any requirement on
defendant to waive personal jurisdictional challenges to
another forum. Rather, subdivision (c)(2)(i) merely provides
that, as a condition for entitlement to dismissal on the
basis of forum non conveniens, defendant shall accept
service of process if plaintiff files in another forum
within six months of the dismissal. See McClain, 121 Ill. 2d
at 292. The condition of acceptance of service of process
does not equate with a waiver of personal jurisdictional
challenges to another forum.
Indeed, in the instant case, defendant was not
compelled by subdivision (c)(2)(i) to waive its right to
object to another forum's lack of personal jurisdiction. The
record reveals that after plaintiff filed his lawsuit in
Missouri, defendant challenged the Missouri court's
jurisdiction over defendant. The record also reveals that
the Missouri court held a hearing on the motion, considered
its merit, and later denied the motion. Therefore,
subdivision (c)(2)(i) of Rule 187 did not operate to prevent
defendant from raising personal jurisdictional challenges.
Defendant also contends that subdivision (c)(2)(i) does
not permit a plaintiff to file a lawsuit in a forum which is
less convenient than the court which previously dismissed
the suit on the basis of forum non conveniens. According to
defendant, plaintiff's choice of Missouri is less convenient
than Illinois, and it would be irrational to apply
subdivision (c)(2)(i) to allow such a result.
Subdivision (c)(2)(i) does not address where a
plaintiff may file a lawsuit after the suit has been
dismissed for forum non conveniens. As noted above, that
subdivision merely puts forth as a condition precedent for
a defendant's entitlement to dismissal on the basis of forum
non conveniens that if the plaintiff decides to file suit in
"another forum," then defendant will accept service of
process from that forum. 134 Ill. 2d R. 187(c)(2)(i); see
also McClain, 121 Ill. 2d at 292 . By its terms, subdivision
(c)(2)(i) contains no qualifying criteria regarding
plaintiff's choice of an alternate forum. See McClain, 121
Ill. 2d at 292. Therefore, we reject defendant's attempt to
engraft such a qualification on subdivision (c)(2)(i).
Subdivision (c)(2)(ii)
Subdivision (c)(2)(ii) of Rule 187 provides that "if
the statute of limitations has run in the other forum, the
defendant shall waive that defense." 134 Ill. 2d R.
187(c)(2)(ii). Defendant contends that the condition that
defendant waive the statute of limitations defense, if the
statute of limitations has run in the other forum, applies
to lawsuits which are not time-barred under the applicable
statute of limitations only when initially filed in the
Illinois court that dismissed the lawsuit for forum non
conveniens. In the instant case, defendant argues, the
statute of limitations had run in Illinois at the time the
suit was initially filed in 1993. Defendant contends that
the three-year statute of limitations applicable to FELA
lawsuits is a constant, regardless of the forum in which
plaintiff files suit. See 45 U.S.C. §56 (1988). Therefore,
the three-year limit had run in both Illinois and Missouri,
and Rule 187 does not preclude defendant's reliance on the
statute of limitations period. Defendant maintains that
"Rule 187(c)(2)(ii) was never intended to place Conrail in
a position of waiving its FELA statutory defense if it would
have been applicable had the matter remained in Illinois."
Defendant claims that the waiver condition of subdivision
(c)(2)(ii) only applies to the "subsequent running of the
statute of limitations" which would preserve plaintiff's
rights if the initial suit was timely filed. According to
defendant, plaintiff's lawsuit was time-barred under FELA's
statute of limitations when it was initially filed in
Madison County and, as a result, defendant's assertion of
the FELA statute of limitations while plaintiff's FELA
lawsuit was pending in Missouri did not violate the
condition of subdivision (c)(2)(ii) or the Madison County
circuit court's order of October 23, 1993. Therefore,
defendant is not barred from again moving to dismiss based
on forum non conveniens.
Like the condition in subdivision (c)(2)(i), the
condition in subdivision (c)(2)(ii) applies to all
dismissals on the basis of forum non conveniens by an
Illinois court. See McClain, 121 Ill. 2d at 292 . As a
result, the plain language of subdivision (c)(2)(ii)
instructs that the condition applied to the circuit court's
denial of defendant's latest forum motion in the instant
case.
Defendant, by raising the statute of limitations while
plaintiff's lawsuit was pending in the Missouri court,
violated the condition in subdivision (c)(2)(ii). Even
though no decision of this court has expressly adopted an
approach regarding the scope of the condition in subdivision
(c)(2)(ii), language from McClain and Barnes reflects an
apparent difference of opinion as to the time constraint of
its applicability. See McClain, 121 Ill. 2d at 292 ; Barnes,
116 Ill. 2d at 251 . In each of those cases, this court
reversed the denial of a defendant's forum motion and
directed the circuit court to enter an order dismissing the
lawsuit on the basis of forum non conveniens. See McClain,
121 Ill. 2d at 292 ; Barnes, 116 Ill. 2d at 251 . However, in
so doing, McClain and Barnes each instructed the circuit
court differently as to the scope of the condition in
subdivision (c)(2)(ii). See McClain, 121 Ill. 2d at 292 ;
Barnes, 116 Ill. 2d at 251 . Citing to Rule 187(c)(2), this
court in McClain stated:
"We remand the cause of action to the circuit
court to dismiss the action on the condition that
if the plaintiffs elect to file the action in
another forum within six months of the dismissal
order, [defendant] shall accept service of process
from that court AND shall waive the defense of the
statute of limitations." (Emphasis added.)
McClain, 121 Ill. 2d at 292 .
McClain apparently construed the six-month contingency of
the condition imposed by the condition in subdivision
(c)(2)(i)--that the suit be filed in another forum within
six months of the dismissal--to apply to the condition in
subdivision (c)(2)(ii). See McClain, 121 Ill. 2d at 292 . In
contrast, Barnes employed language indicating that the
condition of waiving the statute of limitations defense
would apply where plaintiff elected to file suit in another
forum at any point up to one year from the dismissal order.
See Barnes, 116 Ill. 2d at 251 . Citing to subdivision
(c)(2)(ii), this court in Barnes directed the circuit court
that if defendant asserted the statute of limitations
defense in a lawsuit filed by plaintiff
"within one year from the date of dismissal
of this case, based on the cause of action
asserted herein, then the plaintiff shall be given
leave to reinstate this case ***." Barnes, 116
Ill. 2d at 251.
The Seventh Circuit Court of Appeals, in Rutledge v.
Chotin, 972 F.2d 820, 823-24 (7th Cir. 1992), acknowledged
the inconsistent interpretations of McClain and Barnes as to
the time constraint imposed by subdivision (c)(2)(ii)'s
condition of waiver of the statute of limitations and, in
response, declined to follow either approach. The Rutledge
court observed that the previously mentioned language of
McClain was consistent with interpreting the six-month
contingency of the condition in subdivision (c)(2)(i) to
apply to both the acceptance of service in subdivision
(c)(2)(i) and the waiver of the statute of limitations in
subdivision (c)(2)(ii). See Rutledge, 972 F.2d at 823 .
However, the court assumed that interpretation to be
incorrect because it was inconsistent with the
aforementioned language of Barnes. See Rutledge, 972 F.2d at
823. Instead of adopting either approach, the court
concluded that the condition in subdivision (c)(2)(ii)
applies only if the statute of limitations has run at the
time of the lawsuit's dismissal for forum non conveniens.
See Rutledge, 972 F.2d at 823-24 . In reaching that
conclusion, the court examined the language of subdivision
(c)(2)(ii) in isolation from that of subdivision (c)(2)(i)
and reasoned that "the use of the present perfect tense
(`has run') indicates that the `running' is to be concurrent
with the dismissal." Rutledge, 972 F.2d at 823 . Our
appellate court in Revelle v. Davis, 273 Ill. App. 3d 718,
721 (1995), subsequently embraced Rutledge's approach of
viewing the condition in subdivision (c)(2)(ii) as being
separated from the time limitation of subdivision (c)(2)(i).
We believe that the approach apparently adopted by
McClain as to the time constraint of the condition in
subdivision (c)(2)(ii) is consistent with the plain language
of Rule 187(c)(2). Significantly, the condition in
subdivision (c)(2)(ii) is expressly preceded by the word
"and" connecting that subdivision with the language setting
forth the condition in subdivision (c)(2)(i). See 134 Ill.
2d R. 187(c)(2). In interpreting an enactment, it is well
established that the use of the word "and" in the
conjunctive is appropriate and will be given effect unless
such use would produce a result not intended. See People ex
rel. Department of Registration & Education v. D.R.G., Inc.,
62 Ill. 2d at 401, 405 (1976). We do not perceive any basis
upon which to construe the term "and" connecting the time
constraint in subdivision (c)(2)(i) with that of subdivision
(c)(2)(ii) as being superfluous especially where the
condition in subdivision (c)(2)(i) already requires
defendants to accept service of process as long as a
plaintiff files its lawsuit in another forum within six
months of dismissal on the basis of forum non conveniens.
Accordingly, we hold that the condition in subdivision
(c)(2)(ii) requiring a defendant to waive the statute of
limitations defense applies where a plaintiff files the
lawsuit previously dismissed for forum non conveniens within
six months of the dismissal. In other words, a defendant is
entitled to dismissal from an Illinois court on the basis of
forum non conveniens only if the defendant accepts service
of process and waives the statute of limitations defense
where a plaintiff files suit in another forum within six
months of the dismissal. To the extent that Barnes is
inconsistent with that holding, it is overruled, as is the
approach to subdivision (c)(2)(ii) taken by the appellate
court in Revelle.
In the case at bar, the circuit court properly denied
defendant's second motion to dismiss based on forum non
conveniens. The record reveals that after the circuit
court's order of October 22, 1993, dismissing plaintiff's
lawsuit on the basis of forum non conveniens, plaintiff
filed the suit in the circuit court of St. Louis on November
22, 1993. Even though defendant accepted service of process
from the Missouri court in compliance with the condition in
subdivision (c)(2)(i), defendant raised the statute of
limitations twice while the suit was pending in that court
in violation of the condition in subdivision (c)(2)(ii). As
a result, the circuit court properly found that defendant
was not again entitled to dismissal on the basis of forum
non conveniens, and we need not inquire into whether Madison
County is currently an inconvenient forum for plaintiff's
lawsuit.
Although defendant views the condition in subdivision
(c)(2)(i) as prejudicially requiring a waiver of the statute
of limitations defense in another forum where it is a viable
defense both in that forum and while the lawsuit was
previously pending in the Illinois court which granted the
dismissal for forum non conveniens, defendant merely
obfuscates the issue. In such instances, a defendant may
successfully raise the statute of limitations in the first
instance in the Illinois court and have the case dismissed.
A defendant is not under a procedural obligation to seek or
accept dismissal for forum non conveniens before raising the
statute of limitations while the lawsuit is pending in the
Illinois court from which defendant seeks dismissal on the
basis of forum non conveniens. In the instant case,
defendant voluntarily elected to make a forum motion and to
accept the circuit court's ruling on that motion before a
ruling was issued on defendant's motion to dismiss based on
the FELA statute of limitations. That is defendant's right.
However, defendant may not now claim that it has been
prejudiced because it has chosen to accept the circuit
court's ruling on its forum motion and to subsequently raise
the statute of limitations in another forum in violation of
the condition in subdivision (c)(2)(ii). Whether defendant
has been prejudiced by its own procedural maneuvering is
irrelevant, such a claim is in derogation of Rule 187(c)(2).
Because the circuit court did not abuse its discretion
in denying the motion to dismiss this cause, the appellate
court did not abuse its discretion in denying the defendant
leave to appeal under Supreme Court Rule 306. The orders of
the appellate court and circuit court are affirmed and the
cause is remanded to the circuit court for further
proceedings.
Orders affirmed;
cause remanded.
JUSTICE MILLER, dissenting:
Unlike the majority, I do not believe that the
defendant, Consolidated Rail Corporation (Conrail), has
forfeited the right to seek dismissal of the plaintiff's
action on grounds of forum non conveniens. The trial judge
erred in denying Conrail's present motion, and I would
reverse the judgment of the court below.
The plaintiff originally brought the present action in
the circuit court of Madison County, seeking recovery under
the Federal Employers' Liability Act ( 45 U.S.C. §§51 through
59 (1988)) (FELA) for injuries allegedly caused by his
exposure to repetitive trauma during the years of his
employment with the railroad, from 1955 to 1991. Conrail
moved for dismissal of the suit initially on the ground that
it was barred by FELA's three-year statute of limitations
( 45 U.S.C. §56 (1988)) and later on the ground of forum non
conveniens. Without ruling on the statute of limitations
question, the trial court dismissed the action on grounds of
forum non conveniens. The plaintiff then filed his action in
Missouri, in the circuit court of the City of St. Louis.
After Conrail made unsuccessful challenges in Missouri to
that court's jurisdiction and to the timeliness of the suit,
the plaintiff returned to the circuit court of Madison
County and sought leave to have the case reinstated in
Illinois. In support of that request, the plaintiff
contended that Conrail's objections in the Missouri court
violated the conditions of the order dismissing the Illinois
action that the defendant would accept service in the new
forum and would waive any statute of limitations defense.
The Illinois court reinstated the plaintiff's action over
Conrail's objection, and the plaintiff subsequently
dismissed the pending Missouri action. Conrail again moved
for dismissal of the Illinois action on forum non conveniens
grounds, and the present appeal is from the denial of that
motion.
There is no link between this case and Madison County,
and the trial judge should have granted Conrail's present
forum non conveniens motion, just as he had granted the
defendant's initial motion. According to the materials
contained in the record, the plaintiff lived in Knox,
Indiana, when he originally filed suit in Madison County; by
the time the action was reinstated in Madison County, the
plaintiff had moved to North Judson, Indiana. Both
communities are located in northern Indiana and are
approximately 300 miles from Edwardsville, the county seat
of Madison County. The plaintiff was employed by Conrail in
northern Indiana, and it appears that all the occurrence and
medical witnesses reside in that area as well. There is, in
brief, no practical connection between the present suit and
Madison County. That jurisdiction and venue will lie there--
Conrail's tracks run through the county--is of no
consequence here, for the doctrine of forum non conveniens
assumes the existence of more than one forum in which the
cause may be tried. Vinson v. Allstate, 144 Ill. 2d 306, 310
(1991).
Although a plaintiff's choice of a forum is entitled to
deference, that deference is lessened when the plaintiff is
not a resident of the place selected. Piper Aircraft Co. v.
Reyno, 454 U.S. 235, 255-56 , 70 L. Ed. 2d 419, 436 , 102 S.
Ct. 252, 266 ("When the home forum has been chosen, it is
reasonable to assume that this choice is convenient. When
the plaintiff is foreign, however, this assumption is much
less reasonable"). In deciding whether an action should be
dismissed on grounds of forum non conveniens, a court will
consider the private interests of the litigants as well as
matters of concern to society at large. In this case the
relevant criteria, including the location of witnesses and
other sources of proof, and the burden imposed on the forum
of determining a foreign case (see People ex rel. Compagnie
Nationale Air France v. Giliberto, 74 Ill. 2d 90, 110-11
(1978), quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501,
508-09, 91 L. Ed. 1055, 1062-63 , 67 S. Ct. 839, 843 (1947)),
strongly favor Indiana as the more convenient location, and
the plaintiff's action should again be dismissed on grounds
of forum non conveniens.
The majority nonetheless upholds the circuit court's
decision denying Conrail's latest forum non conveniens
motion. The majority agrees with the plaintiff that Conrail,
by raising a statute of limitations defense to the Missouri
suit, failed to comply with the conditions of the earlier
order dismissing the plaintiff's action. The majority thus
concludes that Conrail cannot raise a fresh challenge to the
plaintiff's selection of a forum.
Supreme Court Rule 187(c)(2) states:
"Dismissal of an action under the doctrine of
forum non conveniens shall be upon the following
conditions:
(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.
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." 134 Ill. 2d R. 187(c)(2).
As a preliminary matter, I agree with the majority that
the six-month time limit contained in subsection (i) applies
as well to subsection (ii). I do not agree with the court,
however, that Conrail violated one of the conditions of the
original dismissal order by raising in Missouri the same
objection to the timeliness of the plaintiff's action that
Conrail had previously raised in Illinois.
Contrary to the majority's view, there is no reason to
require a successful forum non conveniens movant to forgo in
the new forum a statute of limitations defense that it could
have raised at the original place of trial. The two grounds
for dismissal are independent of each other, and there is no
basis for subordinating one to the other. As Conrail
observes, the plain purpose of the requirement of Rule
187(c)(2)(ii) regarding waiver of the statute of limitations
is to protect the plaintiff from having a viable action
transferred to a forum where it would be instantly time-
barred, as a result of either the passage of time since the
action was filed or the application of a shorter limitations
period in the receiving state. Thus, the rule will preclude
a defendant from raising in the new forum a statute of
limitations defense that was not available in the original
forum. In the present case, however, the plaintiff's action
is governed by the same three-year limitations period
wherever it is filed. In the Missouri court Conrail merely
sought to raise the same defense it had already raised in
Illinois, and clearly the purpose of the rule is not
implicated in these circumstances.
After today's decision, defendants contemplating a
forum non conveniens motion are well advised to seek that
relief only after they are certain that the plaintiff's suit
is timely. As the majority acknowledges, its interpretation
of Rule 187 effectively requires a defendant to first obtain
a ruling on a statute of limitations defense before seeking
dismissal of the action because of forum non conveniens.
Raising the limitations defense in the new forum will,
regardless of the outcome there, enable the plaintiff to
return the case to the original forum. Ironically, the
statute of limitations question must therefore be resolved
by a court that might have no connection at all with the
controversy.
In this manner, too, the majority erects a strong
disincentive to the prompt resolution of forum non
conveniens questions. If the price of a successful forum non
conveniens motion is the waiver of any objection to the
timeliness of the plaintiff's action, many defendants who
still seek transfer to a more convenient place will likely
postpone making those requests until the time allowed by
Rule 187(a) for such motions is about to expire, or at least
until they believe that there is no limitations defense
available in the original forum.
Conrail now finds itself back in the circuit court of
Madison County, a demonstrably inconvenient forum, as
evidenced by the trial judge's earlier decision granting the
railroad's initial forum non conveniens motion. "Forum non
conveniens is a doctrine that is founded in considerations
of fundamental fairness and sensible and effective judicial
administration." Adkins v. Chicago, Rock Island & Pacific
R.R. Co., 54 Ill. 2d 511 , 514 (1973). The majority's result
in this case is contrary to the purposes of the doctrine and
inconsistent with fundamental fairness and sensible and
effective judicial administration.
JUSTICE HEIPLE joins in this dissent.