By Christie J. Welsh

On December 14, 2018, Fletcher & Sippel won a hard-fought forum non conveniens motion in Cook County. Due to new evidence tipping the scales in the direction of dismissal, the court determined that the forum analysis evidence strongly favored Iowa as the most convenient forum.

As background, forum motions are used when one party believes that the venue is not the most convenient court in which the case should be tried. Illinois courts use a test that involves balancing certain public and private factors when deciding a forum motion. It is the defendant’s burden to show that the plaintiff’s chosen forum is inconvenient and another forum is more convenient to all parties. The private interest factors considered by the court include the convenience of the parties, availability of the witnesses, the cost of the witnesses’ attendance, and ease of access to sources of evidence. Fennell v. Illinois Central R.R. Co., 2012 IL 113812.

In the case the firm recently won, the initial forum motion was brought in 2013. The court denied the motion and Fletcher & Sippel appealed all the way to the Illinois Supreme Court. The appeal was denied, but language in the opinion left the door open for a subsequent forum non conveniens motion to dismiss in 2017. A renewed motion to dismiss was brought on the basis that new evidence discovered in depositions of certain Iowa witnesses contradicted statements made in affidavits filed in plaintiff’s opposition to the initial forum motion, which tipped the balance of factors in favor of dismissal. The circuit court again found that the forum analysis favored the original venue of Cook County and denied the motion.

Illinois Supreme Court Rule 187 governs motions to dismiss or transfer cases on forum grounds. The rule provides, in pertinent part, that a motion to dismiss on forum grounds, “must be filed by a party not later than 90 days after the last day allowed for the filing of that party’s answer.” Case law provides that a new challenge to forum is appropriate when a new matter, new parties, or new causes of actions or theories are brought in an amended complaint. Ellis v. AAR Parts Trading, Inc., 357 Ill. App. 3d 723, 738, (1st Dist. 2005); see also Eads v. Consol. Rail Corp., 365 Ill. App. 3d 19, 29 (1st Dist. 2006) (“Illinois law provides that a challenge to forum may be renewed where the circumstances affecting any of the forum non conveniens factors have changed, including where ‘new matter,’ such as additional facts or new law which alters the analysis, becomes available.”). Thus, each time a new amended complaint is filed, a party may bring a new motion to dismiss on forum issues within 90 days after the last day to answer or otherwise plead if new material facts are brought to light, if there are new parties, or new theories alleged in the amended complaint.

Here, Fletcher & Sippel brought a third forum motion addressing the following new evidence: (i) two of the individual defendants with Illinois residences were dismissed since the last motion; and (ii) Iowa law was unsettled as to one of plaintiff’s theories of liability, which was added in plaintiff’s third amended complaint. The court found that the fact that two defendants were dismissed presented an opportunity to reevaluate the forum analysis. The court then went through the forum analysis again, evaluating all the factors. It determined that the question of unsettled Iowa law being decided by an Illinois court, which would have implications in Iowa, was a major reason for tipping the scales in favor of dismissal. The lesson from this case is persistence is key. It may just result in some big gains!