Evidence and Practice Tips By: Joseph G. Feehan and Brad W. Keller Heyl, Royster, Voelker & Allen, P.C., Peoria

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1 Illinois Association of Defense Trial Counsel Springfield, Illinois IDC Quarterly Volume 24, Number 1 ( ) Evidence and Practice Tips By: Joseph G. Feehan and Brad W. Keller Heyl, Royster, Voelker & Allen, P.C., Peoria Tips for Forum Non Conveniens Motions Taylor v. Lemans Corp. Taylor v. Lemans Corp., 2013 IL App (1st) , involved an unsuccessful attempt by multiple defendants to transfer a case from Cook County to Bureau County on the grounds of forum non conveniens. The case provides both a helpful review of the law governing forum non conveniens and several useful tips to defense lawyers considering such motions. Review of General Forum Non Conveniens Law The law governing motions to transfer for forum non conveniens is found most notably in the Illinois Supreme Court decisions, Langenhorst v. Norfolk Southern Railway Co., 219 Ill. 2d 430 (2006), First American Bank v. Guerine, 198 Ill. 2d 511 (2002), and Dawdy v. Union Pacific Railroad Co., 207 Ill. 2d 167 (2003). Collectively, these cases establish that forum non conveniens is a doctrine that allows a trial court to decline juris-diction when another forum is better suited to hear the case. Trial courts are encouraged to use this authority only in exceptional circumstances. A trial court s decision on a forum non conveniens motion is given great deference and will be overturned only if there is finding that the trial court abused its discretion. The standard used to decide a motion to transfer based on forum non conveniens is an unequal balancing test that gives deference to the plaintiff s choice of forum. In other words, the plaintiff begins with a head start. In most cases, the plaintiff s choice of forum will prevail unless the inconvenience associated with the chosen forum greatly outweighs the plaintiff s substantial right to choose its forum. The trial court considers both private and public interest factors in making its determination on a forum non conveniens motion. Private interest factors include: (1) the convenience of the parties; (2) the relative ease of access to sources of testimonial, documentary, and real evidence; and (3) all other practical problems that make trial of a case easy, expeditious, and inexpensive. Public interest factors include: (1) the interest in deciding controversies locally; (2) the unfairness of imposing trial expense and the burden of jury duty on residents of a forum that has little or no connection to the litigation; and (3) docket congestion. A trial court should evaluate the totality of the circumstances when analyzing the forum non conveniens issues in a case. The defendant s burden is to establish that the factors strongly favor a transfer to the defendant s choice of forum. A defendant hoping to prevail must show both that the original forum is inconvenient to the defendant and that the defendant s choice is convenient to both parties. Page 1 of 8

2 Facts of the Case In Taylor, the plaintiff was injured in July 2010 while riding his motorcycle at a motocross course in Walton, Illinois. The plaintiff was injured when the front tire of his motorcycle blew out while he was attempting a jump. The plaintiff sought medical care at a nearby hospital and continued to treat for his injuries. Taylor, 2013 IL App (1st) , 4. Almost two years later, Taylor filed a product liability complaint in Cook County against four corporations, alleging strict liability, negligence, and breach of implied warranties. Three of the defendants were Wisconsin corporations with their principal places of business in Wisconsin. The other was an Illinois corporation with its principal place of business in Illinois. Id. 7. The plaintiff was a resident of Fulton County and the motocross course where he was injured was in Bureau County. The medical care that he received immediately after the accident was provided in Bureau County. The majority of his ongoing medical treatment took place in Peoria County. There were three witnesses to the accident. Two of the witnesses were residents of Fulton County and one was a resident of Bureau County. The plaintiff s bike was stored in DuPage County. Id. 8. Motion to Transfer at the Trial Court Level After suit was filed, all of the defendants filed a motion to transfer venue from Cook County to Bureau County on forum non conveniens grounds. The defendants argued that Bureau County was the more appropriate forum. The trial court denied the motion to transfer in a 10-page order. The trial court emphasized the deference given to the plaintiff s choice of forum and explained that, because of the deference given to the plaintiff s choice, the motion to transfer could not be successful unless the relevant private and public interest factors strongly favored the defendants proposed forum. Id In its analysis of the private interest factors, the trial court noted that the plaintiff s choice of forum should be given less deference because it was neither his county of residence nor the location of the accident. The court, however, held that the defendants failed to show that Cook County was inconvenient to them. The court noted that none of the parties were located in Bureau County and the Wisconsin defendants were nearly the same distance from Cook County as Bureau County. The court further noted that the Illinois defendant was almost 75 miles from the Cook County courthouse. In addition, the court found that the witnesses were scattered among various counties and that defendants failed to present affidavits from any of the witnesses stating that Cook County was inconvenient to them. The trial court also noted that the plaintiff s bike was stored in DuPage County, which is adjacent to Cook County. The court gave little credence to the location of the accident site because the claims were for product liability and breach of warranties, meaning that a site visit was unnecessary. Id. 11. The trial court also analyzed the public interest factors. The court found that Bureau County s interest in deciding the case and the imposition of the trial expenses did not weigh strongly in favor of a transfer because the case involved a product liability claim. According to the court, because the claim was a product liability claim, any local interest was supplanted by a general interest of resolving whether a product was defective. The court also found it relevant that two of the defendants had dealer locations within Cook County and none had dealer locations in Bureau County. The trial court further found that the docket in each county did not justify a transfer. Taylor, 2013 IL App (1st) , 12. In short, the court did not feel that these factors strongly favored a transfer from the plaintiff s chosen forum. The defendants appealed the denial of their motion, arguing that the trial court gave undue deference to the plaintiff s choice of forum and incorrectly required defendants to show that each factor considered in the balancing test strongly favored a transfer. Id. Page 2 of 8

3 The First District s Decision on Appeal Before the Illinois Appellate Court First District began its analysis of the public and private factors, it explained that the defendants had not provided transcripts of the trial court hearing on the motion to transfer or an appropriate alternative under Illinois Supreme Court Rule 323 (which allows for an alternative to be presented, such as a bystander s report, if there is no verbatim transcript). The First District explained that defendants failure to do so, combined with their burden of presenting a sufficiently complete record of the trial court proceedings, had two consequences. First, it resulted in a presumption that the trial court had sufficient factual basis for its decision and that its decision conformed to the law. Second, any doubt associated with the incomplete record was to be resolved against the defendants. Id. 17. The First District then proceeded to reject the defendants argument that the trial court gave substantially more deference to the plaintiff s forum choice than it should have because Cook County was neither the plaintiff s county of residence nor the site of the accident. The First District agreed that the plaintiff s forum choice should have been given less deference, but explained that the balancing test applied to forum non conveniens motions is uneven because the plaintiff s chosen forum has the lead, even if it is neither the plaintiff s residence nor the accident site. Thus, some deference was still given. Id. 18. The First District also agreed with the trial court s evaluation of the private interest factors. It noted that none of the parties resided in either Bureau County or Cook County. Further, the distance for the Wisconsin defendants was the same to each courthouse. Although the Illinois defendant was located almost 75 miles closer to Bureau County, the court pointed out that the Illinois defendant did not present an affidavit stating that Cook County was inconvenient. The First District also considered the convenience for witnesses, noting that no witnesses resided in Cook County, that the medical witnesses were located in Peoria County and Bureau County, and that the occurrence witnesses were located in Fulton County and Bureau County. Once again, the court found it important that the defendants did not present any affidavits from witnesses stating that Cook County would be inconvenient. Id Further, the First District explained that defendants failed to show any obstacles related to the presentation of evidence. It explained that witnesses could be deposed anywhere and that technology had made the location of documentary evidence less important. Additionally, the bike at issue was located in DuPage County, close to Cook County. Finally, the attorneys were all from Cook County. On this basis, the Court did not believe the defendants had shown that the private interest factors strongly favored a transfer. Taylor, 2013 IL App (1st) ,. 21 In addressing the public interest factors, the First District emphasized that, because the case was a product liability case, the location of the accident was less significant given that the more general interest in resolving a claim concerning an allegedly defective product largely supplanted the local interest. It also found that it was probably unnecessary for the jury to visit the site of the accident. Further, it found that Cook County had an interest in the controversy because two of the defendants had numerous dealers in Cook County. Finally, the First District found that the congestion of Cook County s docket was an insufficient factor to justify transfer when no other relevant factors weighed strongly in favor of transfer. Id Defendants further argued that the trial court erred by requiring it to prove that each private and public factor weighed strongly in favor of transfer. The First District disagreed, stating that by referencing the various factors in its order, the trial court was only evaluating the different factors and whether a single factor strongly favored transfer. The First District concluded that the trial court properly weighed the factors, explaining that the court emphasized throughout its order that it weighed a totality of the circumstances. Once again, the First District noted that, because the defendants failed to include a transcript of the hearing in the record, it had to Page 3 of 8

4 resolve any doubt against the defendants and assume that the trial court had a sufficient basis for its decision. Id. 26. The defendants also argued that the trial court should have given more weight to the facts that the witnesses resided closer to Bureau County and that the accident occurred there. The First District rejected this argument, citing the trial court s broad discretion and that an appellate court s only function is to determine whether the trial court abused its discretion. In finding no abuse of discretion, the court reemphasized that there were no affidavits from witnesses or the Illinois defendant stating that Cook County was an inconvenient forum. Id. 27. Finally, the defendants argued that whether the jury would be able to view the scene of the accident had significance even though the case involved product liability claims. The defendants stated that they planned to file affirmative defenses and a third-party complaint alleging that the dangers of the motocross course caused plaintiff s injuries. The First District did not consider this argument for two reasons: (1) at the point of the appeal, no such pleadings had been filed; and (2) defendants raised the issues for the first time on appeal. Id. 28. Based on all of these factors, the First District determined that the trial court did not abuse its discretion in denying the defendants motion because the defendants had not sufficiently shown that Cook County was inconvenient to them and that Bureau County was more convenient to all parties. Taylor, 2013 IL App (1st) ,. 25 Tips for Counsel Considering Forum Non Conveniens Motions The Taylor case presents numerous tips for defense attorneys considering forum non conveniens motions. First, it is always important to consider the burden that a defendant must meet to succeed on such motions. Not only does a defendant have the burden of proof, but also the plaintiff has a head start on the defendant given the deference accorded to a plaintiff s choice of forum. Thus, the evidence favoring transfer must be very strong in order to prevail. Additionally, all possible evidence in favor of transfer should be presented to the trial court for review. Second, given the high burden facing a defendant, it is imperative that a defendant does everything possible to substantiate the claims made in its motion. For example, it might not be enough to merely point out to the court that the alternative forum is substantially closer to witnesses or parties than the chosen forum. Rather, such assertions should be substantiated by affidavits establishing these facts and that the alternative forum is much more convenient than the chosen forum. Third, if a defendant is going to rely on affirmative defenses, third party complaints, or both to support the motion to transfer, the defendant should, if possible, have those on file prior to the time forum non conveniens motion to transfer is filed and argued. Additionally, as with all evidence, the defendant should be sure to raise that argument in the motion at the trial court level. Any arguments first presented on appeal are likely to be ignored entirely. Fourth, it is important that, if an appeal becomes necessary, the defendant should provide a transcript of the trial court hearing on the motion to transfer or an appropriate alternative under Illinois Supreme Court Rule 323. If a defendant fails to present a transcript of some sort to the appellate court, the appellate court will resolve any doubt as to the incomplete record against the defendants. The appellate court also will presume that the trial court had a sufficient factual basis for its holding and that its determination conformed with the law. Finally, defendants in product liability cases should be aware that, in those particular cases, the public interest factors that favor hearing a case in the county where the plaintiff resides or the accident occurred might not carry as much weight. Thus, the defendant s burden could be even higher in such cases, and the defendant Page 4 of 8

5 will want to make an even greater effort to ensure that the evidence presented establishes that the private interest factors greatly favor a transfer. Sutton v. Ekong: Examination of a Plaintiff s Use of 735 ILCS 5/ to Allow for Special Service In the Illinois Appellate Court First District decision, Sutton v. Ekong, 2013 IL App (1st) , the court reversed a default judgment entered by the trial court against one defendant due to improper service. Specifically, the court considered the application of Section of the Code of Civil Procedure, 735 ILCS 5/ , finding that the plaintiff had not conducted a diligent inquiry into the defendant s location, meaning that she should not have been allowed to serve the defendant through special order of the court. Pursuant to Section , a plaintiff may serve a defendant through a special order of the court if certain criteria are met. Section provides: If service upon an individual defendant is impractical under items (1) and (2) of subsection (a) of Section 2-203, the plaintiff may move, without notice, that the court enter an order directing a comparable method of service. The motion shall be accompanied with an affidavit stating the nature and extent of the investigation made to determine the whereabouts of the defendant and the reasons why service is impractical under items (1) and (2) of subsection (a) of Section 2-203, including a specific statement showing that a diligent inquiry as to the location of the individual defendant was made and reasonable efforts to make service have been unsuccessful. The court may order service to be made in any manner consistent with due process. 735 ILCS 5/ In Sutton, the First District considered two main issues: first, whether serving a defendant who resided in Illinois through the Secretary of State comported with due process under Section ; and second, whether the plaintiff had made a diligent inquiry as to the defendant s location, such that special service was proper under Section Facts of the Case and Trial Court Proceedings This case arose from a multi-vehicle accident in July 2007 in which the plaintiff, Sherrie Sutton, was injured. On December 19, 2008, the plaintiff filed a complaint against three defendants, including Edwin Ekong, asserting that each had failed to stop his vehicle, leading to a chain of collisions and the plaintiff s injuries. On January 2, 2009, a sheriff attempted to serve Ekong with a summons and complaint at his residence in Chicago, but was unable to do so. On January 23, 2009, the plaintiff filed a motion for a private detective agency to act as a special process server, which was granted. On March 10, 2009, a process server for the private detective agency filed an affidavit stating that she had attempted to serve Ekong at his residence five times between February 7 and February 15, 2009, but was unable to do so because Ekong was avoiding service. On one of these occasions, a man answered the intercom and told her to go away and that he was not coming downstairs for anything. On one other occasion, a man answered the intercom and said that Ekong was not home and refused to go to the main door. Ekong s residence was a secure building in which a visitor must be buzzed in to enter. Sutton, 2013 IL App (1st) , 3 5. On May 15, 2009, the plaintiff filed a motion for service of Ekong through special order of the court under Section She contended that she had been diligent in attempting to serve him and that her inability to Page 5 of 8

6 do so showed he was evading service. Her motion asked the court to allow Ekong to be served through the Secretary of State, similar to Section of the Illinois Vehicle Code, 625 ILCS 5/10-301, which allows a plaintiff to serve a non-resident defendant through the Secretary of State. The plaintiff asked the court to allow such relief, even though Ekong resided in Illinois because the manner of service was consistent with due process, a requirement under Section The court granted the plaintiff s motion on May 22, 2009, and the Secretary of State accepted service on Ekong s behalf on June 8, Id. 6. On January 13, 2011, the plaintiff filed a motion for default judgment against Ekong because he failed to timely appear, answer, or otherwise plead after being served. A default judgment was entered against Ekong on April 13, 2011, and almost $200,000 of damages were awarded on May 23, 2011, after a prove-up hearing. On August 3, 2011, the plaintiff filed a citation to discover Ekong s assets. Ekong was served personally with that citation on August 10, 2011, and filed his appearance on September 13, Id. 7. On October 31, 2011, Ekong filed a combined petition to vacate the default judgment and a motion to quash service, asserting that the court did not have personal jurisdiction over him because service through the Secretary of State was improper. In support of his position, Ekong filed a report from a debtor location and asset research company that stated that, although it had been unable to contact Ekong to determine if he had auto insurance, it had learned that he was a self-employed doctor with his own practice in Chicago. Id. 8. The plaintiff later filed a response, asserting that special service through the Secretary of State was proper because Ekong evaded service. She claimed that she did not know that Ekong owned a business in Chicago at the time she requested special service from the court. The plaintiff attached documents supporting her claims, including a copy of the summons and complaint sent to Ekong s residential address. The plaintiff also provided documents establishing that Ekong had notice of the default judgment and prove-up hearings through various means, including communications sent to his business address and conversations with the plaintiff s counsel. Id. 9. After considering these motions, the trial court denied Ekong s petition to vacate and motion to quash service. The trial court found that, under Section , the plaintiff made a diligent inquiry into Ekong s location and that the method of service conformed to the principles of due process. Ekong filed a motion to reconsider, which was denied. Sutton, 2013 IL App (1st) , Ekong then appealed, contending that the default judgment entered against him was void because service was improper, meaning that the trial court did not have personal jurisdiction over him. Id. 13, 15. Ekong made several arguments in his appeal, but the First District s decision concentrated solely on those regarding whether service through the Secretary of State was improper because he was a resident of Illinois and whether the plaintiff had conducted a diligent inquiry into his location before requesting an order of special service from the court. The First District s Decision on Appeal In its decision, the First District focused first on whether service through the Secretary of State was permitted under Section , even though Ekong was a resident of Illinois at all relevant times. Ekong had argued that service was improper because Section of Illinois Vehicle Code, which allowed for service on non-resident defendants through the Secretary of State, allowed for such service only if the defendant did not reside in Illinois. The First District rejected Ekong s argument, explaining that the trial court had allowed the plaintiff to serve Ekong in a special manner pursuant to Section , which allows for any comparable method of service that is consistent with due process. The court explained that, although the trial court had ordered that service through the Secretary of State should be made in accordance with the rules governing that method of service as set forth in Section of the Illinois Vehicle Code, the plaintiff s actual motion (and thus the relief granted) had been made pursuant to Section Consequently, service was effectuated Page 6 of 8

7 under that provision rather than under the Illinois Vehicle Code. Because the scope of Section is not limited to non-residents of Illinois and allows for any manner of service that comports with due process, the First District held that the fact that Ekong was an Illinois resident did not alone render service on Ekong through the Secretary of State improper. Id. 18. Second, and most importantly, the First District considered Ekong s argument that service on him was improper because the plaintiff had not made a diligent inquiry as to his location prior to requesting service by special order of the court pursuant to Section Specifically, Ekong emphasized that plaintiff had not attempted to serve him at his easily obtainable and publically accessible business address. Id. 19. In considering this argument, the First District focused on the 2011 Illinois Supreme Court case, In re Dar. C., 2011 IL , in which the supreme court reversed the termination of parental rights because it had determined that the State of Illinois had not made a diligent inquiry into the father s location prior to serving him by publication. In deciding that there was no diligent inquiry, the supreme court stated that the State had not performed the type of search or investigation that an earnest and attentive person seeking to learn a fact would ordinarily make because it failed to investigate a number of opportunities to acquire the respondent s contact information. In re Dar C., 2011 IL , 75 (quoted in Sutton, 2013 IL App (1st) , 20). Specifically, the State merely had mailed letters to potential addresses discovered by a computer search rather than also visiting those locations, had failed to verify the source of Social Security benefits being received by the minors and their mother, and had not attempted to obtain the father s phone number from the minors mother after learning that the father had called her. Id , (cited in Sutton, 2013 IL App (1st) , 20). Further, the complaint in a separate child support action involving the father included a case detail report that contained his mailing address, causing the court to note that the State s ability to locate the father s address in that case cast doubt on whether the State had conducted a diligent inquiry into his location for the purpose of the parental rights termination case. Id. 80, 82 (cited in Sutton, 2013 IL App (1st) , 20). The appellate court in Sutton had similar doubts as to whether the plaintiff had conducted a diligent inquiry into Ekong s location before requesting special service. Based on the affidavit of the plaintiff s process server, she made six attempts to serve Ekong at his home and spoke with a man over the building s intercom on two of the six occasions. The court emphasized that, although there was evidence that the server had spoken to a neighbor who told her that Ekong resided at the building and was frequently at home, there was nothing further in the record showing that the plaintiff had taken additional steps to verify that the man the server spoke to was actually Ekong or that Ekong was living at the address at the time. Further, the plaintiff had not attempted to serve Ekong at his business address which, even if unknown to the plaintiff prior to filing the motion for service by special order of the court, was in the phone book and easily could have been obtained. Sutton, 2013 IL App (1st) , The court also used the plaintiff s later discovery of Ekong s business address against her, stating that (similar to In re Dar. C.) it cast doubt on the prior inquiry made into Ekong s whereabouts. The court felt that an earnest and attentive person seeking to locate Ekong would have conducted at least the kind of basic search that would have revealed a business address in order not only to serve him, but also to attempt to verify that he was the person who spoke to the process server and that he was evading service. Based on these facts, the court held that the plaintiff had not conducted a diligent inquiry as to Ekong s location prior to requesting service by special order and that service through the Secretary of State was therefore improper. Id In making its decision, the First District also briefly discussed two cases in which courts had considered the diligent inquiry requirement of Section : In re Marriage of Schmitt, 321 Ill. App. 3d 360 (2d Dist. 2001), and Mugavero v. Kenzler, 317 Ill. App. 3d 162 (2d Dist. 2000). In Schmitt, the Illinois Appellate Court Second District found that a diligent inquiry was made when the petitioner made approximately 11 unsuccessful attempts to serve the respondent in various locations. In Mugavero, the Second District held that there was no diligent inquiry when the plaintiff merely stated that the defendant had moved from the address Page 7 of 8

8 on the summons and left no forwarding address. The Sutton court concluded that the case before it was more like Mugavero than Schmitt because, unlike the petitioner in Schmitt, the plaintiff s attempts in Sutton had been limited to one address. Sutton, 2013 IL App (1st) , 24. Finally, the appellate court rejected the plaintiff s argument that the default judgment should be upheld even if service was improper because Ekong received and ignored notice of the proceedings before entry of default judgment. It explained that a judgment rendered by a court without personal jurisdiction is void irrespective of whether the defendant had actual knowledge of the proceedings. Because service through the Secretary of State by special order of the court was improper, the trial court did not have personal jurisdiction over Ekong when it entered the default judgment. Id. 24. Therefore, the decision of the trial court was overturned and considered void. Id. 25. Conclusion In its decision, the Sutton court provides helpful hints to counsel regarding facts that must be alleged in any motion and supporting affidavit requesting service through a special order of the court. It also provides defense counsel with arguments to be made against special service based on a lack of diligence on the plaintiff s part in serving and investigating the location of a defendant. The decision gives defense counsel specific areas to attack when arguing against special service at a later stage in a case. Any attorney seeking to challenge a trial court s allowing service by special order of the court should review the Sutton decision and the cases cited therein. About the Authors Joseph G. Feehan is a partner in the Peoria office of Heyl, Royster, Voelker & Allen, P.C., where he concentrates his practice in commercial litigation, products liability and personal injury defense. He received his B.S. from Illinois State University and his J.D. cum laude from the Northern Illinois University College of Law. Mr. Feehan is a member of the ISBA Tort Law Section Council and is also a member of the Peoria County, Illinois State and American Bar Associations. He can be contacted at jfeehan@hrva.com Brad W. Keller is an associate in the Peoria office of Heyl, Royster, Voelker & Allen, P.C. He practices primarily in the areas of business and commercial litigation and tort litigation. He received his B.A. in Political Science from the University of Illinois in 2007 and his J.D. magna cum laude from University of Illinois College of Law in About the IDC The Illinois Association Defense Trial Counsel (IDC) is the premier association of attorneys in Illinois who devote a substantial portion their practice to the representation of business, corporate, insurance, professional and other individual defendants in civil litigation. For more information on the IDC, visit us on the web at Statements or expression of opinions in this publication are those of the authors and not necessarily those of the association. IDC Quarterly, Volume 24, Number Illinois Association of Defense Trial Counsel. All Rights Reserved. Reproduction in whole or in part without permission is prohibited. Illinois Association of Defense Trial Counsel, PO Box 588, Rochester, IL , , , idc@iadtc.org Page 8 of 8