Kowalczyk v. Illinois Central R.R. Co.

2021 IL App (1st) 210206-U

• Court: Appellate Court of Illinois
• Decided: August 27, 2021
• Docket: 1-21-0206
• Status: Unpublished

Opinion

2021 IL App (1st) 210206-U Order 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.

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¶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

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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

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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.

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¶ 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.

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¶ 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

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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

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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

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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

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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,

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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

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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.

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¶ 30 For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 31 Affirmed.

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