Forum Non Conveniens—Persistence Conquers Plaintiff’s Forum Shopping
by Scott R. Shinkan and Alexander J. Brinson
A motion based on forum non conveniens is a great tool that allows a court to dismiss or transfer a case to a forum better suited to hear the case. The court’s power to transfer the case to a more appropriate forum is discretionary, unlike the mandatory transfer of a lawsuit based on theories such as improper venue.
Forum has a significant impact on every aspect of a case, including time to resolution, likelihood of success, potential jury make-up, and therefore, the value of a case. The doctrine of forum non conveniens discourages forum shopping by plaintiffs eager to file suit in plaintiff-friendly jurisdictions. In turn, by transferring the case to a more appropriate forum, the doctrine can assist in keeping the price of a claim down for defendants and insurers. The Illinois First District Appellate Court issued a recent unpublished opinion that is highly persuasive, albeit not binding, that provides a roadmap for a successful forum non conveniens (“FNC”) motion.
In Matthiessen, a motor vehicle accident occurred in Kane County, Illinois, but the plaintiff filed suit in Cook County, Illinois, based on the residence of a defendant. Matthiessen v. Greenwood Motor Lines, Inc., et al., 2021 IL App (1st) 200405-U (May 28, 2021). The defendant-driver and the defendant-entity that owned the semi-truck operated by defendant-driver filed an FNC motion to transfer venue to Kane County. The trial court denied the defendants’ FNC motion. The appellate court initially dismissed the defendants’ petition for leave for appeal, but the Illinois Supreme Court vacated and ordered the appellate court to address the petition.
The appellate court found that the trial court abused its discretion in denying the defendants’ motion to transfer, and remanded with directions to transfer the matter from Cook County to Kane County. The appellate court weighed the private and public interest factors and held that the defendants established that the factors strongly favored transfer.
When analyzing an FNC motion, Illinois courts consider the “totality of the circumstances” and weigh certain private and public interest factors. There are very similar tests in nearly every jurisdiction. The Matthiessen court addressed the following private interest factors: (1) the convenience of the parties; (2) the relative ease of access to sources of testimonial, documentary and real 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; and (6) all other practical considerations that make trial easy, expeditious, and inexpensive. The public interest factors included: (1) the administrative difficulties flowing from court congestion; (2) the unfairness of burdening citizens in an unrelated forum with jury duty; and (3) the interest in having local controversies decided locally.
In holding that Kane County would be substantially more convenient, the First District reasoned that the convenience of the parties, the possibility of viewing the premises, the administrative difficulties flowing from court congestion, the unfairness of burdening citizens in an unrelated forum with jury duty, and the interest in having local controversies decided locally all favored transfer.
There were three keys to this case. First, plaintiffs virtually always make the argument that their choice of forum should be given deference, and the defendants have to meet a heavy burden to show that the case should proceed elsewhere. However, Matthiessen clarified that a plaintiff’s choice of forum is given minimal deference where the plaintiff is not a resident of the forum where suit was filed. Second, Matthiessen reiterated that the location of injury giving rise to the case is the most significant factor in giving any county a local interest in the lawsuit. Third, judges who deny defendants’ FNC motions often state that the location of an accident site does not matter because it is doubtful anyone would take the jury there. However, Matthiessen reiterated that the possibility of viewing the premises should be the factor, not the likelihood of actually doing it.
Learning Points: A forum non conveniens motion should be considered and discussed with trial and appellate counsel in the early stages of pending litigation. If unsuccessful, do not give up. If denied by the trial court, an appeal should be pursued immediately by petition and/or pursuant to the rules of the venue. It is highly unlikely that an FNC appeal will be successful post-verdict. Matthiessen was a great example of resiliency on appeal. The defendants’ motion was denied by the trial court, and the petition for leave to appeal was initially denied by the appellate court. It was not until the Illinois Supreme Court intervened and ordered the appellate court to address the motion that defendants’ relief was granted. With persistence, the defendants successfully transferred the case to the more appropriate forum, potentially saving significantly on indemnity and defense costs.