Miller v. Consolidated Rail Corp.

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.