*1 tion, and that “this court is far too busy spend races time to the courthouse.” end result refereeing here is that this court as- majority opinion will sume the added burden of distances between measuring prefers which the defendant have its county case tried and the accord- county plaintiff, ance with the Federal Lia- provision Employers’ Act, to file his elected cause action. bility
(No. 63350. BARNES, RAIL ROBERT SOUTHERN Appellee, . COMPANY,
WAY Appellant 20, 1987. February Opinion filed *2 SIMON, JJ., dissenting. GOLDENHERSH Roessler, of Gundlach, Lee, & Belle Eggmann, Boyle Kuhn, M. Roessler and Lisa A. (Richard counsel), ville for appellant. Hartman, Jackstadt, P.C.,
Eric D. of Callis & for Granite City, appellee. delivered of the court: opinion
JUSTICE RYAN Barnes, this action in the brought Robert plaintiff, court of County pursuant circuit St. Clair Federal 51 et sec. Act U.S.C. (FELA) (45 Employers’ Liability caused seq. (1982)) personal injuries allegedly of his the Southern Com employer, Railway negligence The circuit denied Southern’s mo (Southern). pany *3 reconsider order its motion to de tion to a prior denying non conveniens. of cline Ill. (94 to Rule 306 2d R. Pursuant Court Supreme a for petition interlocutory ap Southern filed 306(a)(1)(ii)), The order, plaintiff from this which was granted. peal the was taken filed a motion to dismiss then the motion and granted the case. The appellate with (141 the lack of jurisdiction. App. for dismissed for leave to ap We allowed Southern’s 121.) Ill. 2d under our Rule 315 R. (103 315(a)). peal a this action com- by filing commenced plaintiff on July the of St. Clair County in circuit court plaint personal redress complaint sought alleged 1983. The to from noxious arising exposure purportedly injuries as a in painter while employed and fumes poisonous The action Cincinnati, in Ohio. “Gest Yard” predicated violations of Southern’s duties alleged on. the under FELA. of
Southern was served with summons and the copy 31, 1983, on 1983. On October complaint September Southern In allegations. filed an answer effort ex- to determine whether a factual basis apparent isted warrant of motion to decline filing jurisdic- tion because St. Clair fo- County was a convenient cause, rum in which litigate also Southern to the and propounded interrogatories requested of production tax documents, including relevant income returns, bills, and doctor and medical hospital reports. of eight months after the
Approximately plaintiff’s complaint, Southern, 15, 1984, on March filed a motion asking circuit court decline jurisdiction of the cause and to dismiss it on the theory non conveniens. Although Southern filed a memorandum support its it did not file an or affidavit verified suggestions. 5, 1984,
On October almost one after year having interrogatories served on the plaintiff, Southern filed a motion to compel to answer the interrogato- ries and to produce documents requested. this motion that it was file an unable to affida-
vit in of its in- motion because ability determine of residence identity place and of potential witnesses. The circuit court the mo- granted tion November and ordered with compliance Southern’s discovery pleadings within 28 On No- days. vember rel- interrogatories answers discovery evant documents were plaintiff. January 29, 1985, On Southern filed an affidavit *4 its In of motion to decline jurisdiction. affidavit, that: the was a (1) plaintiff Southern Florence, of (2) resident the Kentucky; alleged injury Cincinnati, Ohio; Cincinnati, Ohio, was sustained in is (3) Belleville, site Illinois, 330 miles from the approximately courthouse; of of the St. Clair the County (4) testimony and nonemployee required witnesses would employee these and and that witnesses were residents of Kentucky Ken- Ohio; since the witnesses were (5) nonemployee residents, could and Ohio not be they compelled tucky Illinois; the railroad would incur ex- appear (6) large the Illinois; if the to trial proceeded (7) case penses of witnesses for unknown periods absence employee railroad; the the (8) time would disrupt operation a St. Clair County; there was of cases in large backlog would an unreasonable bur- (9) jury duty constitute County. den to the citizens of St. Clair . counsel, the circuit court hearing' arguments After 6, motion March 1985. The court denied the forum on with noted that the cause had no connection absolutely where the being St. Clair other than the place court, re However, chose file his action. & v. Louisville Nashville R.R. Herbert on lying be 624, 130 Ill. 3d denied the motion App. time in which not filed within the cause motion was Southern was answer. required which motion On the circuit court’s was “Motion Reconsider” labeled this court denied denial of its forum motion. circuit Ill. 2d 1985. to Rule 306 April 3, (94 motion on Pursuant filed a Southern, May peti R. on 306(a)(1)(ii)), court from tion for leave to appeal was 3, 1985, order. The petition court’s April circuit filed a 1985. The thereafter on June granted taken with to dismiss was dis the motion and granted case. The it lacked jurisdic ground missed taken within 30 days tion because motion. 141 Ill. App. denial 121.
241 306 Supreme governs Court Rule interlocutory ap- from the circuit or granting orders of court peals deny- amendment, certain motions. its Rule 306 ing Following in provides relevant part:
“An following be taken in cases appeal may only the on the allowance the of a Appellate petition Court for leave to appeal:
[***] (ii) order denying from an of the circuit .court motion to dismiss on of grounds the non com forum Ill. (94 306(a)(1)(ii).) veniens ***.” 2d R. Under Rule for leave to “shall petition appeal served, filed in the Court duplicated, Appellate within 30 accordance with the briefs requirements for the days the order." entry (Emphasis added.) (94 after of Ill. 2d R. Rule 306(a)(1).) 306 contains no for provision of motions time filing which extend the for filing of as notice such is Rule appeal 303(a)(1) contained and in Rule 307(b) (94 2d R. 87 Ill. 2d R. Ill. 303(a)(1); Because the limit 307(b)). filing time for petition leave is to meet it appeal jurisdictional, failure or to secure a extension will result in dismissal of See In Adoption re Anderson appeal. 88 (1980), Trophytime, Inc. v. Graham App. 42; 3d 73 Ill. (1979), 335; Savings Seaman Lawn & Loan Asso App. 3d Ill. ciation 181; Stat., 128 Ill. 2d Ann. ch. App. 110A, par. Notes, Historical and Practice at 245 (Smith-Hurd 1985).
In dismissing for lack jurisdiction, the appellate court concluded that the for leave to petition was above, As noted it relied on the fact untimely. filed more petition days was than after the order Southern’s mo entry denying tion to decline and to the cause dismiss Leet v. Louis conveniens. Citing ville & Nashville R.R. Co. 131 Ill. App. that the within 30-day period reasoned to file a for leave to from order a motion to dismiss on non conveniens
denying a motion to reconsider not be tolled grounds may the motion to the order dismiss. that the court erred
It is Southern’s position 19, 1985, motion on Leet. its March Although relying to reconsider filed within 30 of the order days deny- it emphasizes ing that its motion to reconsider tolled contending is *6 from an or- in which to appeal 30-day jurisdictional period of grounds der a motion to dismiss denying forum its as a “motion to Notwithstanding non conveniens. label 19, 1985, reconsider,” its March contends Southern therefore, and, information new factual presented Because its in the nature of a motion to dismiss. new the April related appeal only for leave petition than reconsider, rather 1985, order its motion to denying dismiss, its motion to 6, 1985, order denying the March court had jurisdiction that the argues appellate 1985, or- after the April its over petition, the circuit court It is also Southern’s position der. motion to decline juris- discretion in its denying abused its of the cause on the grounds diction and to dismiss forum non conveniens. court’s of the appellate first consider the propriety
We of Southern’s appeal for lack of jurisdiction dismissal its motion to recon- 3, 1985, order denying from the April decision is that the Leet with Southern agree sider. We is not tolling of of this issue appeal. dispositive hold this case. we Accordingly, the facts of presented by ap- Southern’s dismissing that the court erred of jurisdiction. for lack peal in Kemner Monsanto recent decision
Our contention that 112 Ill. 2d supports 1985, motion new matter its of raising that motion in the same status as its fo- placed case, rum motion. In that brought action plaintiffs in the circuit court of St. Clair for damages various against defendants caused purportedly by expo- sure to chemicals released as a result of a railroad-tank- car derailment in Missouri. the time for Sturgeon, Within responsive defendant Monsanto pleadings, Company moved to dismiss the cause on the 29, 1981, conveniens. On May circuit court denied that motion. Because there nowas at that time provision for interlocutory under Rule Monsanto appeal sought mandamus, review by which this court denied. On Sep- 13, 1982, tember Monsanto filed a second motion seeking dismissal on the basis non conveniens. This mo- tion, factual was denied changes, on April 19, 1983. Rule 306 had been since the filing amended the first forum of a permitting petition for leave to forum matters. Pursuant to Rule 306, a for timely petition leave to was filed in the court. denial, Monsanto Upon sought leave to this court. That was also denied. On September Monsanto filed a motion to recon- sider the circuit court’s orders its motions dismiss non conveniens. This motion alleged new factual information and cited new authorities decided *7 since the denial of the second motion. The court circuit denied that motion on 13, December 1984. the re- Within Monsanto, 30 quired days, to Rule pursuant again sought court, leave to to the this time from the 13, 1984, order, December not the April Hence, order as stated court. by September forum motion not an attempt was 29, 1983, order, extend the appeal from the period April since a for leave to had been appeal already and denied as to that order. that a circuit court Noting was obtained and a to each ruling timely appeal sought as motion was in sub- this court concluded that each stance and motion dismissal original seeking a new non conveniens. three or- all Accordingly, basis of ders Monsanto’s motion to dismiss denying conveniens nature, each interlocutory were independently ap- the last orders were and therefore two that the third forum under Rule 306. The fact pealable “motion to a 1984) motion was (September captioned was, view, not because controlling, reconsider” our from its determined more character of a must be pleading content than from label. not was interlocutory a
Although origi- denial of Southern’s from the circuit court’s sought chronolog- case, in this a review nal forum motion in the conclu- results litigation ical of this development 1985, motion was that Southern’s March sion period to toll the running simply independent It substantially from the order. prior mo- of- the new motion. The content and basis the prior nature that it must be considered in tion were such reviving a motion new, motion and not of a circuit had presented that which been rearguing motion. The of events. following sequence noted above the We order 6, 1985, entered written court, on March circuit to decline jurisdiction. Southern’s motion order recited: this action connection between finds no
“The Court fo- However, the Court deems County. and St. Clair waived having been objection as rum non conveniens after 6 months motion was filed defendant this days per as and not within served defendant was (5th N v. L & Dist. #5— of Herbert interpretation Court’s 84-0359, 2-4-85).” in the briefs the statements from
It appears argu- oral during issue the delay raised orally
245
6
Rely
the March
motion.
hearing
ment at
v. Louisville
decision Herbert
the then recent
ing
&
R.R. Co.
624,
Nashville
App.
at
the is
hearing
raised for the first time
that
plaintiff
origi
of its
sue that Southern
delayed
filing
unduly
St.
because
Clair
nal motion to decline jurisdiction
forum.
counsel
was an inconvenient
Southern’s
that Herbert should not be
applied
argued
apparently
in
to its forum motion and that
the delay
retroactively
if
motion,
plain
its forum
caused
filing
any,
by
with
dis
comply
tiff’s own failure
Southern’s
a
On
March
Southern
requests.
covery
of its fo
reconsider the circuit court’s denial
motion to
1985,
rum
The March
supported
motion.
motion was
In the
that has not
contradicted.
by
affidavit
been
affidavit,
showing
Southern
facts
motion
fo
in the
its original
any purported delay
to answer
rum motion was due to the
failure
plaintiff’s
South
interrogatories
Southern’s
and to
with
comply
or
ern’s
for
until
production
compelled by
request
as
der
Both
requests,
to do so.
discovery
must be
serted,
to obtain
facts that
were necessary
motion
in
of its forum
contained
an affidavit
Nash
&
this court in Cotton Louisville
as
by
required
record indi
ville R.R. Co.
In essence,
19, 1985,
Southern’s March
motion was
filed for the
on
purpose
supplying
adequate record
review, in accordance with this court’s
in Wieser v.
ruling
Missouri
R.R. Co.
Here, is contended that counsel, at the hearing, argued against circuit court’s denial of its original forum motion. Under the set forth in reasoning Wieser v. Missouri R.R. Pacific 98 Ill. however, such oral argument would not constitute an record adequate re *10 view. In fact, nothing in the record shows that such an argument was made or, made, if it was what facts were asserted in of the argument. South Accordingly, ern was to file its compelled second motion to make a proper record on Because appeal. Southern’s leave to from 3, 1985, order April was filed within the requisite 30-day period, the appellate court had properly jurisdiction to consider Southern’s appeal and, therefore, erred it. dismissing
We next consider the propriety circuit court’s denial of Southern’s motion to decline under jurisdiction the doctrine of non conveniens. The determination of whether the facts a case particular warrant the al- lowance of a motion to dismiss under the oí doctrine fo- rum non conveniens is entrusted to the sound discretion of the circuit court. In a decision of reviewing a circuit court in a motion to decline denying jurisdiction based on a contention forum chosen is not a convenient one in which to litigate particular
248
case, the decision of the circuit court will not be re versed on review discretion in judicial absent abuse v. the relevant considerations. Meyers Bridge weighing Textron, Machines Division Inc. Ill. port 113 (1986), Foster v. & North Western 117-18; Chicago 112, 2d 378, 384-85; Ill. Transportation (1984), 102 2d Wieser v. Missouri R.R. Co. (1983), 98 Ill. 2d Pacific Jones v. Searle Laboratories Ill. 2d 365; (1982), Air ex rel. Nationale People Compagnie 373; France v. Cotton v. 110; Giliberto 74 Ill. 2d (1978), Louisville Nashville & R.R. Co. 14 Ill. 2d (1958), 159. juris
In motion to decline conveniens, non circuit diction on the basis of court, in its written concluded that the motion order, It relied on the fact the motion was was untimely. filed more than five months after Southern filed its an Herbert v. Louisville Nashville R.R. Co. & swer. Citing 3d for the that a (1985), App. proposition motion to decline is to an analogous objection venue, which must filed on or before improper or the defendant is required appear date upon answer, the circuit court reasoned that Southern This is is waived its to raise the forum issue. right the issue sue the motion to reconsider and addressed we address in this appeal. on Her the circuit court erred in relying
We believe v. 297, and bert. Grant Starch In 96 Ill. 3d App. Smargon McDonald’s Corp. 31 Ill. App. of whether 493, our court addressed issue to an ob conveniens motion was analogous *11 if not venue, could be waived jection improper In both fixed for answer. made before date stated that a defendant must cases, court appellate to determine whether conduct some discovery rules, discov- that, this court’s under is appropriate had appeared. not until the defendants begin could ery held that a case, in Therefore, each non conveniens motion based on doctrine for fil if not made the date fixed was not waived before court cases were the answer. Both of these ing before Herbert. cases ad Although decided both long Herbert, in dressed the issue found to controlling follow, or mention, distinguish case did not decline to Herbert, Moreover, in we allowed two earlier decisions. and re the defendant’s leave of St. manded the cause to the circuit court Clair of our decision in Bell in for further consideration light v. Louisville & Nashville R.R. Co. 106 Ill. 2d case, in 135. In that we held that a defendant’s delay the circuit court to decline and to dis asking non conveniens miss the the grounds cause on is a factor to be the motion and weighed considering whether the circuit court abused its discre determining conveniens tion. Because the doctrine is an in Bell doctrine, however, we equitable rejected any spe cific time in must ask the circuit which the defendant court to decline jurisdiction.
Here, Southern filed its forum motion on 15, 1984, 4½ months after its an approximately swer and interrogatories were filed. The how plaintiff, ever, comply did with discovery requests Thus, and failed to answer the submitted. interrogatories Southern filed a motion to compel October above, As noted that motion comply. it had filed a forum motion but had not to file an of it been able affidavit be cause it had not been wit identify potential able nei The motion to was verified and was compel nesses. ther denied nor contradicted. The circuit court ordered and the Accord finally complied. compliance, events, we of the above ingly, sequence basis *12 hold that the circuit court abused its discretion in deny ing original Southern’s forum motion on the that it was untimely.
We should note that this court has Rule 187 adopted (107 Ill. 2d R. 187), effective August re non conveniens motions that quires after that date be filed not later than 90 after the days last al day lowed for the of that party’s answer. The rule also requires on such motions hearings be scheduled so as to allow sufficient time to conduct on issues discovery of fact raised such motion. by
Because, as found
the circuit court
by
its written
order of
the instant cause had no connec
tion with St. Clair
other
than
County
being
place
where the plaintiff
action,
since,
chose to file his
un
circumstances,
der the
Southern
motion to decline jurisdiction,
the motion should have
granted,
been
the clear
considering
precedent
estab
e.g., Foster v.
& North
Chicago
See,
lished
this court.
Western
Co.
Transportation
378;
(1984), 102 Ill. 2d
Moore v.
& North
Chicago
Western
Co.
Transportation
Wieser v. Missouri
R.R. Co.
73;
99 Ill. 2d
(1983),
Pacific
Espinosa
& Western
359;
98 Ill. 2d
Norfolk
Ry.
For the reasons set the order of the appellate court dismissing jurisdic- lack of tion is reversed. Because the record us discloses before the circuit court its discretion when it abused refused to dismiss the instant matter based upon conveniens, doctrine of and since the issue has court, been briefed this it is fully unnecessary remand this cause to consider merits of Southern’s The or- for leave appeal. der of the circuit court of St. Clair is therefore reversed and this cause is remanded to that court with directions Southern’s motion to decline grant jurisdic- the cause. Inasmuch as the statute tion and dismiss involved in this case limitations on the cause of action run, the dismissal order is to be conditioned have may the statute of the waiver Southern of the defense of file in an limitations should the elect to his case forum. If Southern refuses to waive de appropriate limitations, fense of the statute or if asserts that defense in a case in an filed by appro *13 from the of dismissal forum within one date priate year case, of this based on the cause of action asserted herein, then the shall leave to reinstate plaintiff given be this case in the circuit court of St. Clair See 107 County. Ill. 2d R. 187(c)(2)(ii). remanded, and
Reversed with directions. GOLDENHERSH, JUSTICE dissenting: I dissent. The that this was majority’s holding taken rests on the that the motion for re- theory consideration denied the circuit court a new mo- was tion. This conclusion is finding based majority’s that the motion for reconsideration contained allegations of fact not included in the motion because original defendant had no of them until re- knowledge plaintiff to defendant’s The record sponded interrogatories. shows that information in the clearly only supplied in affidavit filed of the motion for reconsidera- tion was the names and the cities of the residence of the in witnesses described defendant’s first motion. The ap- court, that the argument defendant’s pellate considering motion, motion for reconsideration said: was new argues to reconsider was really “Defendant his motion in the nature of a new motion to decline However, the motion conveniens. upon based non. original the court’s denial of the closely followed original no not found in the motion and alleged was labeled as a motion to Consequently, reconsider. we new, do not find this was a independent non con (141 App. 121,122.) veniens motion.” I with the court that the information in- agree cluded in the motion for reconsideration was insufficient to transform the motion for reconsideration of the origi- nal motion into a new motion for dismissal. The record that original plain- shows defendant’s stated Florence, tiff a resident of Kentucky, that he sustained as the result of an oc- injuries Cincinnati, Ohio, currence near and that the witnesses Cincinnati, Ohio, and are located in the area of evidence Florence, No affidavits were filed Kentucky. sup- of the motion to dismiss. port one The affidavit of of defendant’s attorneys with the motion for reconsideration the allega repeats tions contained motion and supplies called as wit might names of six individuals who be were, now, nesses and or are fellow employees mu It states that reside in certain named plaintiff. they in either or It also names Ohio. nicipalities Kentucky who treated and who called may four doctors witnesses, and states that two are located as material *14 con There is no and two Ohio. assertion Kentucky in the either the motion for reconsideration or tained in in the that the information supplied affidavit supporting to discovery, affidavit was not known to defendant prior motion. or indeed at the time of the of is The that defendant comes to such a contention nearest in its that discov “using plaintiff’s the statement brief of Southern filed its affidavit support ery compliance oblique 1985.” This the forum motion on January a claim of reference, prior ignorance without that the facts, not conclusion majority’s does an ade for the of supplying affidavit purpose “was More accu- Ill. 2d at (116 246.) record on review.” quate
253 an inade- repair it filed as a belated effort was rately, order of dismissal The court’s quate appellate motion. affirmed. and should be proper was taken, the was timely that the decided Having found that court, having that the circuit holds majority erred County, with St. Clair the case had no connection motion. defendant’s dissents, most recently I out in several have pointed Ill. 2d (1987), Ry. in Bland v. & Western Norfolk irrelevant doc the “connections” test is that (Gulf of non factors public trine conveniens. forum 501, 508-09, 91 L. Cory. v. Gilbert 330 U.S. Oil 1062-63, 839, 843) Ed. 67 S. Ct. relevant the “connections” test are different from conveniens be rel may Connections recently by majority. created course, must be but, evant jurisdiction, on effect dismissal the basis conceded in order to fo rum non conveniens. court has when this ordinarily I out that point
Finally, juris of dismissal on reversed the court’s order it has remanded the cause to appel dictional grounds Kemner v. (See late court for further proceedings. I fail to see 223.) any Monsanto Co. here. for the action taken precipitous justification SIMON, dissenting: also JUSTICE Justice For reasons so clearly explained the defendant’s Goldenhersh, I his conclusion join was ruling non conveniens As dismissed properly taken. court, I no reason to see ground issue. merits of the non conveniens address the