Boner v. Peabody Coal Co.

CHIEF JUSTICE MILLER, dissenting:

I would reverse the order of the circuit court denying defendant Peabody’s motion for transfer of the present action on grounds of forum non conveniens. Judged against the criteria that govern the resolution of such questions, the case at bar clearly qualifies as one in which transfer should be allowed. Accordingly, I dissent.

“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. (1973), 54 Ill. 2d 511 , 514.) In determining whether an action should be transferred to a different forum, a court will consider the private interests of the litigants as well as matters pertaining to the interest of society at large. (Griffith v. Mitsubishi Aircraft International, Inc. (1990), 136 Ill. 2d 101, 105-06 ; Torres v. Walsh (1983), 98 Ill. 2d 338, 351 .) Considerations relevant to this inquiry include the convenience of the parties and witnesses, the relative access to sources of proof, the interest of a local court in resolving matters of local concern, and, conversely, the burdens imposed on a congested forum and its residents by foreign litigation. (See People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill. 2d 90, 110-11 , quoting Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508-09 , 91 L. Ed. 1055, 1062-63 , 67 S. Ct. 839, 843 .) No single circumstance is necessarily dispositive, however, and each case must ultimately turn on its own set of facts. See Satkowiak v. Chesapeake & Ohio Ry. Co. (1985), 106 Ill. 2d 224, 228 .

The majority concludes that defendant Peabody’s transfer motion was properly denied because St. Clair County is the plaintiff’s choice of forum and because many of the witnesses reside neither in St. Clair County nor in Gallatin County. In support of its decision, the majority also notes that Peabody engages in various activities in the forum county. In addition, the majority believes that the plaintiff would encounter difficulty in obtaining a fair trial in Gallatin County, and the majority also finds that the docket in St. Clair County is less congested. The reasons cited by the majority, however, fail to sustain the court’s conclusion.

The plaintiff is a resident of Dale, Hamilton County; Hamilton County lies directly northwest of Gallatin County, the site of the accident. The plaintiff elected to bring the present action in other than her home county, and her choice of forum is therefore entitled to less deference than it would otherwise enjoy. (See Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill. 2d 359, 367-68 .) As the Supreme Court has explained:

“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. Because the central purpose of any forum non conveniens inquiry is to ensure that the trial is convenient, a foreign plaintiff’s choice deserves less deference.” Piper Aircraft Co. v. Reyno (1981), 454 U.S. 235, 255-56 , 70 L. Ed. 2d 419, 436 , 102 S. Ct. 252, 266 .

Thus, the plaintiff cannot be heard to argue that she has brought her action in a forum that is assumed to be convenient for her, and her selection of St. Clair County as the forum in the present case commands less weight than it would if she were a resident of that county. Nor, for that matter, is St. Clair County convenient for many of the other witnesses in the case. Like the plaintiff, most of the potential witnesses who do not reside in Gallatin County reside in neighboring counties, and thus live much closer to Shawneetown, the county seat of Gallatin County, than to Belleville, the county seat of St. Clair County. For the plaintiff and for most of the potential witnesses, Gallatin County clearly provides the more convenient forum.

As a related concern, I note that the majority’s decision virtually eliminates any possibility that a jury will be able to view the scene of the accident during the course of the trial. It must be acknowledged that a view of the premises would present no major difficulty if the case were tried in Gallatin County or a nearby county but would become exceedingly impracticable if the case is allowed to proceed more than 100 miles away in St. Clair County. The majority’s decision effectively determines now that the jury will not view the accident site, even though that might become appropriate during trial.

The few circumstances offered by the majority in support of the plaintiff’s selection of St. Clair County as the forum for the present action will normally be found in cases involving a question of forum non conveniens. As the majority must concede, a decision on grounds of forum non conveniens presupposes the existence of more than one forum having jurisdiction and venue over the cause of action. (See Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 506-07 , 91 L. Ed. 1055, 1061 , 67 S. Ct. 839, 842 ; Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511 , 515.) In the present case, defendant Peabody does not deny that its activities in St. Clair County are sufficient to establish jurisdiction and venue in that forum. Such contacts, however, are not by themselves sufficient to answer the issue raised here, which requires us to determine the convenience of the forum for purposes of the present action. See Bland v. Norfolk & Western Ry. Co. (1987), 116 Ill. 2d 217, 226 .

Nonetheless, the majority believes that defendant Peabody’s presence in St. Clair County might in some way facilitate the production of documentary evidence if the action is permitted to go forward there. This attempt to manufacture an additional consideration weighing in favor of the plaintiff’s chosen forum is unconvincing. There is no indication in the present record that any documentary evidence relevant to the plaintiff’s action is located in St. Clair County or, for that matter, in St. Louis, Missouri, where Peabody also maintains offices. Assuming that pertinent evidence can be found in or near St. Clair County, I fail to see why the ease of producing those documents in that forum must outweigh the substantial inconvenience of requiring distant witnesses to travel from Gallatin and neighboring counties.

The majority also speculates that the plaintiff would encounter difficulty in obtaining a fair trial in Gallatin County. The majority’s conclusion is without foundation. Nothing in the record indicates that potential jurors of Gallatin County would have any predisposition in favor of the defendants. Moreover, adequate remedies exist to protect the. plaintiff’s rights if a problem were to develop. If at some subsequent time the plaintiff feared that she would not be able to obtain a fair trial, she could then seek a change of venue on that ground. (See Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1001(a)(2).) The present record, however, offers no support for the majority’s conclusion that the circuit court of Gallatin County, or of an equally convenient, neighboring county in southeastern Illinois, could not ensure a fair trial of the plaintiff’s action. See Satkowiak v. Chesapeake & Ohio Ry. Co. (1985), 106 Ill. 2d 224, 234 .

Finally, the majority makes the surprising suggestion that the docket of the circuit court of St. Clair County is less congested than the docket of the circuit court of Gallatin County. The majority rests this conclusion on certain data that purportedly show that the backlog of civil jury cases involving more than $15,000 is greater in Gallatin County. The statistics relied on by the majority are derived in large part from computer projections, however, and the report supplying the information expressly states that the figures shown for less populous counties may be misrepresentative because of the relatively smaller caseloads in those circuits. (See Circuit Court Calendar Management, January-December 1989, series CF, vol. 2, no. 4, at 5, n.*.) The difference between the dockets of the two counties is at once apparent from a review of the number of cases pending at year end. According to the compilations of civil jury cases involving more than $15,000, Gallatin County had 16 such cases pending at the end of 1988 and 14 such cases pending at the end of 1989; the figures for St. Clair County were 1,848 and 1,597, respectively. (Circuit Court Caseload Summaries, January-December 1988, series CL, vol. 1, no. 4; Circuit Court Caseload Summaries, January-December 1989, series CL, vol. 2, no. 4.) I am confident that the circuit court of Gallatin County would be able to accord the present action the time and attention it requires.

In sum, the record is devoid of any significant connection between the present controversy and St. Clair County, and the majority fails to present any persuasive reason for preferring the more distant forum. Today’s decision ignores the “considerations of fundamental fairness and sensible and effective judicial administration” that animate the doctrine of forum non conveniens (Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511 , 514), and I respectfully dissent.

JUSTICE HEIPLE joins in this dissent.