ILLINOIS APPELLATE COURT AFFIRMS TRANSFER BASED ON FORUM NON CONVENIENS DESPITE DEFENDANTS’ BUSINESS PRESENCE IN COOK COUNTY

April 2018

By Jeffrey F. Clement

In Schuster v. Richards, et al., 2018 IL App (1st) 171558, the First District Appellate Court affirmed the trial court’s ruling transferring the case from Cook County to Kane County under the doctrine of forum non conveniens. In Illinois, the doctrine of forum non conveniens allows a trial court, which otherwise has proper jurisdiction over a cause, to transfer it to another forum if the other forum can better serve the convenience of the parties and the ends of justice.

In the Schuster case, the plaintiff alleged, while a pedestrian, she was struck by defendant Richards’ automobile while Richards was driving in the course of her employment. Plaintiff sued Richards, Richards’ employer and the lessor of the automobile. The employer and lessor (hereinafter the “corporate defendants”) were sued solely under a theory of respondeat superior/vicarious liability. In other words, the plaintiff alleged Richards was an agent of the corporate defendants and that, as principal, they were responsible for Richards’ negligent acts and omissions. There were no allegations of direct negligence against the corporate defendants.

Plaintiff was a resident of Kane County. The accident occurred in Kane County. Defendant Richards was a resident of DuPage County. The corporate defendants were Delaware corporations which conducted business in various Illinois counties, including Cook County and Kane County. Each of the corporate defendants conducted business more substantially in Cook County and had registered agents in Cook County. The first responders to the scene were located in Kane County. Plaintiff received medical treatment in both Kane County and Cook County.

Plaintiff and her husband filed suit in Cook County. Defendants filed a motion to transfer to Kane County under the doctrine of forum non conveniens. During the parties’ briefing, plaintiffs disclosed a list of 18 potential witnesses, some of whom provided affidavits. The trial court granted defendants’ motion to transfer.

The appellate court affirmed the trial court’s order, finding the trial court did not abuse its discretion in transferring the case to Kane County. First, the appellate court held that plaintiffs’ choice of forum was entitled to less deference than is usually applied because plaintiffs were not residents of Cook County and the accident did not occur in Cook County. Next, the appellate court balanced various private and public interest factors within the totality of circumstances presented. The appellate court found these factors strongly favored transferring the case to Kane County.

Regarding the private interest factors, while the corporate defendants did substantially more business in Cook County, the appellate court held “merely conducting business” in a county does not necessarily affect the issue of forum non conveniens, nor does the presence of a corporate defendant’s registered agent. Rather, a court is to look beyond the criteria of venue when it considers the relative convenience of a forum. The appellate court also rejected plaintiffs’ argument that a court is to weigh a defendant corporation’s activities or review fiscal statistics to determine whether its business is more substantial in one county over another.

Instead, the court relied on the fact that two of the three occurrence witnesses submitted affidavits stating that they were residents of McHenry County and it would be more convenient to travel to Kane County as opposed to Cook County to testify. The third occurrence witness was a resident of Kane County. The investigating officer submitted an affidavit that she was a resident of McHenry County and that Cook County was inconvenient to her. Although plaintiff’s medical providers submitted affidavits that it was convenient to testify in Cook County, the appellate court agreed with the trial court that “most healthcare providers will probably not testify in person during trial.”

As to the public interest factors, the court held because the accident and alleged negligence occurred in Kane County, the controversy was local to Kane County. It would further be unfair to impose a burden of jury duty on residents of Cook County given the fact Cook County had little connection to the litigation. Also, while the corporate defendants did business in Cook County, plaintiffs’ complaint against them was based only on vicarious liability. There were no allegations of direct negligence such as failure to supervise or train. Thus, none of the defendants were being sued based on any conduct that occurred in Cook County.

The Schuster decision will be useful in preventing plaintiffs from forum shopping through the act of simply naming corporate defendants that have a business presence in Cook County. The appellate court was clear that the amount of business conducted by a corporate defendant in Cook County should not be afforded undue weight. Also, unless the complaint alleges that the corporate defendants engaged in some direct negligent activity in Cook County (i.e., negligent supervision or training), Cook County will not likely have a local interest in the litigation.