*1 (No. 63259. BLAND,

FRANCIS E. v. NORFOLK AND Appellee, COMPANY, WESTERN RAILWAY Appellant. 20, 1987.

Opinion February filed *3 GOLDENHERSH, J., dissenting. Mitchell, of Belleville W. (Thomas Alvey, &

Thompson Bott, Jr., of for Jr., counsel), appellant. and Edward S. Carlson, Dripps, B. Alfeld and C. Philip Roy Jon G. Alton, Talbert, Mallon, P.C., of for appellee. Carlson & Zenner, Laurie A. Engle Oppen- Donald E. Minnesota, for Paul, of St. heimer, & Donnelly, Wolff Railroad et Company Northern Burlington amici curiae al. the court: opinion WARD delivered

JUSTICE an brought Bland (Bland), Francis E. *4 plaintiff, Act Federal Employers’ Liability action under the in the circuit 51 et seq. (1976)) U.S.C. sec. (FELA) (45 defendant, Norfolk the against court of Madison County to for recover (Norfolk), Railway Company and Western em course of his the during suffered personal injuries to transfer moved with the defendant. Norfolk ployment non on County ground the case Macon the forum of Madison County After the circuit court conveniens. to the motion, the the defendant appealed appel denied court, dissenting, affirmed which, justice late with one 3d 862). We (140 App. the circuit court’s denial un the for leave petition appeal defendant’s granted Ill. 2d R. 315). der our Rule 315 (103 that on or No- The about complaint alleged plaintiff’s one the injured platform he was on vember as a cars while by Norfolk’s tank employed to the the car mak- was According complaint, brakeman. at the A. E. Staley a for the defendant ing delivery and Decatur, Macon when catwalk plant County, loose, bar on the car came grab violently jerking and I of the was causing injury. complaint Count plaintiff on the of the Federal Lia- Employers’ based provisions and (45 seq. Act U.S.C. 51 et bility (FELA) (1976)) sec. II, (45 count on the Act U.S.C. sec. Safety Appliance et The out that Norfolk is seq. (1976)). complaint set and operating diverse corporation owning equipment, and in and about Madison yards rights-of-way County. from filed a motion to transfer venue defendant Madison to Macon under doctrine County County that jurisdiction non conceding conveniens. While defend- were County, venue proper all of the connections with argued ant relevant in Macon and that the case suit are plaintiff's more in that conveniently county. support can be tried conveniens, the defendant of its motion under forum occurred in Macon out that the plaintiff’s injuries set is a of Macon County; resident County; witnesses, were that all of the occurrence who proposed *5 222

named, are in employed Macon and that County; Macon is County approximately miles from Edwardsville, the county seat of Madison County. The defendant stated that trial in Madison County would it subject to unneces- sary investigation and discovery expenses and that it would be extremely its costly bring witnesses for trial in Madison In County. addition, the defendant asked the circuit court to take judicial notice of the congested con- dition of the Madison docket, County to the referring 1982 annual report Administrative Office of Illi- Courts, nois which indicated that the time average lapse between filing a complaint and verdict in Madison County is 34.1 months.

The plaintiff filed a motion and a responsive affidavit in which he states that he is being treated by two physi- cians whose offices are in Madison and that he County performs switching operations for Norfolk in Madison County “from time to time.”

The circuit court denied the motion, defendant’s indi- that cating Macon was “too County close” to Madison County require transfer of the the case. The court noted that several other factors favored retaining case Madison County, including state- plaintiff’s ment that two of his treating physicians have offices in Madison that County; plaintiff performs switching operations Madison and that Norfolk County; has “substantial facilities” in Madison The court re- County. jected the defendant’s argument docket of the circuit is court stat- unduly congested, its ing opinion case can “any be reached for trial within 2 of filing” and that years “[a]ny delay beyond years would be caused delay by rather than parties court congestion.” decision, the trial affirming court’s the appellate alia, inter stated, that the record failed to support

the defendant’s that it assertions would incur additional action in Madi- defending inconvenience cost and son County. court’s de is whether the circuit for us question motion was conveniens

nial of the defendant’s non broad discretion Although an of discretion. abuse determining particu court in whether vested in the trial a cause under lar transfer of require circumstances fo decision will be re conveniens, that court’s rum that, in as deciding if it can be shown versed on review did, Meyers Bridgeport it the court discretion. abused Textron, Inc. Machines Division of *6 Air Nationale 117-18; Compagnie ex rel. 112, People 90, 110. 74 Ill. 2d (1978), France v. Giliberto that here, we consider Given circumstances its the defend denying circuit court abused discretion A trial in Ma County. ant’s motion to transfer to Macon con would better “serve the convenience v. Crucible Lonergan and the ends of parties justice.” 599, 606; 37 Ill. 2d Adkins (1967), Steel Co. America of Island R.R. Co. 54 Ill. Chicago, (1973), v. Rock & Pacific 511, 2d 514. It non conveniens is an doctrine. equitable

Forum forum with the existence of more than one presupposes and the matter. subject over the jurisdiction parties 98 Ill. 2d (1983), R.R. Co. (Wieser v. Missouri Pacific Air rel. Nationale 359, 364; Compagnie ex People 90, 112.) v. 74 Under (1978), France Giliberto of a decline to exercise doctrine, jurisdiction a court may is another forum it there appears case whenever more in which trial can be of the parties with jurisdiction Island & Pa Rock Chicago, had. Adkins v. conveniently v. Chi 511, 514; Moore 54 Ill. 2d (1973), R.R. Co. cific 99 Ill. (1983), Transportation North Western cago & 73, 76. the doctrine applies, whether deciding the con- affecting interest factors must private balance 224

venience of the litigants and public interest factors af- fecting the administration of the courts. See Oil Gulf v. Corp. Gilbert (1947), 501, 508-09, U.S. 91 L. Ed. 1055, 1062-63, 839, 67 S. Ct. 843.

Factors to the relating private interests of the liti gants include the “relative ease of access to sources of proof; availability compulsory process for attendance and the cost unwilling, attendance obtaining of will -witnesses; ing of view of if possibility view premises, would be to the action; and all other appropriate practi cal problems make trial of a case easy, expeditious and inexpensive.” Corp. Oil v. Gilbert (1947), Gulf 501, 508, U.S. 91 L. 1055, 1062, 839, Ed. 67 S. Ct. 843. Public factors relevant here include the administra tive difficulties from court flowing congestion; “a local interest in having localized controversies at decided home”; and the unfairness of burdening citizens an unrelated forum with v. jury duty. Corp. Oil Gilbert Gulf 509, (1947), 1055, 1063, 330 U.S. 91 L. Ed. 67 S. Ct. See also Meyers Bridgeport v. Machines Textron, 112, 118; Division Inc. Jones v. Searle Laboratories 372- 73; Espinosa & Western 86 Ill. 2d 111, 118-19; ex People rel. Nationale Air Compagnie 90,110-11. France v. Giliberto Ill. 2d *7 In Torres v. (1983), 338, Walsh this court held that non conveniens is on an intra applicable forum state as as on is, well an interstate basis. That the doct rine be where the choice is forums may applied between in the same State as well as when the choice is between forums in more than one State. The court stated that the same of are considerations convenience and fairness in the of the forum for trial: applicable deciding question “the of an forum, alternate the' access to availability of witnesses, sources the of the rela accessibility proof, trial, tive and obstacles to a fair advantages obtaining 225 the convenience dockets, of the court the congestion the of parties.” contention, FELA cases are to the plaintiff’s

Contrary to the intrastate application not an exception forum recognized It has been long doctrine. non conveniens the “freed to decide FELA cases a State court is that in non conveniens availability principle forum ex local law.” (Missouri to its own according these suits 1, 5, 340 U.S. (1950), Co. v. Mayfield rel. Southern rec 3, 8, L. 71 S. Ct. This 3.) implicitly Ed. the the intrastate ognized applying propriety FELA cases in v. Chi doctrine to Mesa conveniens 98 Ill. cago Transportation & North Western v. case to Torres Walsh companion Ill. North Western Chicago 2d 338. See also Foster & 102 Ill. 2d 378. Transportation that, are not because a overlooking plaintiff’s We one, to select the forum is a Torres v. right substantial admonished: Walsh defendant,

“[Ujnless strongly those factors favor the then his choice plaintiff should be allowed exercise in what the case when venue deciding bring forum to is proper. plain

If there are sufficient factors that favor the forum, tiff’s choice then the defendant’s inconvenience considered, not For provided proper. should be venue defendant, then strongly unless balance favors statutory right should to exercise his be able to choose his forum.” Torres v. Walsh 338, 351. factors Mad- favoring

The record here shows that the are, on forum for trial ison as County appropriate balance, connections relatively unimportant. only are that has with the lawsuit Madison County, defendant conducts within operations time”) time to works (“from the plaintiff occasionally *8 Madison and County, two of the plaintiffs treating phy- sicians have offices in that county. (The record shows three treating physicians have offices in Macon County.) contrast, numerous and more important fac- tors point to Macon as the County convenient, more and therefore forum. appropriate,

Though defendant may transact business within Madison and this County, provides a basis for jurisdiction, not, it is under the circumstances here, an fac important in tor weighing conveniens A question. forum fo rum non conveniens motion “assumes that both courts can obtain jurisdiction over the defendant” and causes court to look the criterion beyond of venue when it con siders the relative convenience of a forum. Adkins v. Chi cago, Rock Island & R.R. Pacific 511, 515; Wieser v. Missouri R.R. Co. Pacific 359, 372; Moore v. Chicago & North Western Transportation Co. (1983),

Similarly, plaintiff’s occasional performing in switching operations Madison County is also not a influential strongly factor. There is no reason to assume that trial in Madison would County be convenient simply because the is in plaintiff occasionally county per- duties as a forming Moreover, brakeman. in our research we did not discover one decision in which a court consid- ered this factor to be of significance on a ruling non conveniens motion. other County’s only appearing connection

with this is that the litigation states that two complaint plaintiff’s treating have offices Madi- physicians However, son all nine of the defendant’s County. wit- nesses reside Macon and as the County, indi- pleadings cate, all of the plaintiff’s medical records of the hospital treatment are in received Macon plaintiff County. resides in Macon County. wit of transporting to the defendant The expense them obvi maintaining to Madison nesses to the witnesses. inconvenience ous, greater as is *9 not con we do the circuit court’s opinion, Contrary is insig the two counties sider that the distance between court’s the circuit do not believe Too, nificant. we on close”) proper (“too on distance seeming emphasis one is but Mileage non conveniens motion. this forum “If were emphasis placed central factor of convenience. doctrine non conveniens factor, one on any forum it so that makes much of the very flexibility would lose 454 U.S. v. Reyno (1981), Co. Piper valuable.” Aircraft 252, 263. 419, 432, 102 S. Ct. 235, 249-50, 70 L. Ed. 2d Marine, (1986), Inc. Wepfer See also Brummett v. Ry. & Ohio 495, 499; Chesapeake Ill. 2d Satkowiak 224, 2d 228. Co. 106 Ill. (1985), a in Macon County

It must conceded that trial be witnesses treating physician would require plaintiff’s cautious, One should be to travel from Madison County. fact that a however, not to undue to the give weight or has an office treating plaintiff’s physician expert a allow chosen forum. To do so would plaintiff’s conveniens frustrate the easily plaintiff forum treating as a selecting physician witness principle by would, an inconvenient or what be expert reality, Ry. forum. See Lowe v. & Western Co. Norfolk 80, 87; 3d v. Bankers 124 Ill. DeVries App. Life See also Norman v. 647, 128 Ill. 3d 652-53. App. 319, 228 Pa. Western Super. & Stores, v. Mar 330, 850, 855-56; 323 A.2d Inc. Safeway 1974), 131, tin 530 P. 2d (Okla. that it would be judged

The circuit apparently do- to transfer trial to Macon because improper his right substantial deprive plaintiff so would ing court did However, of forum. the circuit in the choice into consider- failed to take not mention and have may ation that the plaintiff does not reside in Madison and therefore County, his choice of forum is entitled to less deference. In Piper Co. v. Reyno (1981), Aircraft 454 U.S. 235, 70 L. Ed. 2d S. Ct. the Su Court preme that, explained where the elects to sue outside of its forum, home a court more may readily decline to exercise jurisdiction. court observed:' chosen,

“When the home forum has been it is reasonable to assume that this choice is convenient. plain- When the tiff is foreign chosen], however, forum this as- [to sumption is much less reasonable. Because the central purpose any non conveniens inquiry is to ensure convenient, that the trial is a foreign plaintiff’s choice de- serves (454 235, 255-56, less deference.” U.S. 70 L. Ed. 419, 436,102 S. 266.) Ct. This court is in agreement. Marine, Brummett v. Wepfer Inc. 111 Ill. 495, 499; Satkowiak v. Chesa *10 peake & Ohio Co. Ry. (1985), 224, 233; 106 Ill. 2d Wieser v. Missouri R.R. Co. 98 Ill. 2d (1983), Pacific 359, 367-68.

Public interest factors also favor transfer to Macon Of County. great is the effect this trial will importance have the Madison upon courts and community that will be burdened and otherwise in fur financially nishing forum for this litigation. interest re public that quires causes which are without significant factual connections to forums be transferred to con particular venient forums to insure that those are not jurisdictions burdened with unfairly in which have no litigation they interest or connection. Satkowiak v. & Ohio Chesapeake Ry. (1985), 224, 231-32; Co. 106 Ill. 2d v. Foster Chicago & North Western Ill. Transportation (1984), Co. 378, 384; v. Espinosa & Western Co. Ry. (1981), Norfolk 111, 86 Ill. 2d

This court commented in v. & Espinosa West 111, ern Ry. Co. 121: fi- ‘in protecting concern have a shared generally “Courts functioning of and the efficient resources’ judicial nite by impeded are not they so that judicial systems, their availibility their the extent litigation to nonresident diminished.” impaired citizens is or to local con practical had relevant or any If Madison County have an interest this it would litigation nection with v. Missouri R.R. a forum. (Wieser providing Pacific However, Madison Coun 359, 371-72.) 98 Ill. 2d the fact suit, from apart connection with this ty’s only Rev. (Ill. as a matter of jurisdiction that under law and the defendant 102) corpora ch. par. Stat. 2— others, as of that as well county, many tion is a resident in Madison County on occasion works is that five treating physicians two out apparently fac a sufficient there. This does not provide are located to justify imposition with the litigation tual connection the citizens and court the litigation upon burdens than a “relevant More County. simply system and the is re litigation connection” between the forum v. & Ohio Chesapeake Satkowiak quired. 224, 233; Laboratories

106 Ill. 2d Jones Searle 376-77. has a clear connection contrast, Macon County That injuries. this suit as the situs of the plaintiff’s with in Macon County gives were sustained injuries controversy “of a localized claim the aspect plaintiff’s ‘decided controversy a local interest having with ” Marine, Inc. (1986), Brummett v. Wepfer at home.’ 495, 500. or ab It to consider important presence is also *11 a factor of public of court dockets as congestion sence of Division Tex v. Machines (Meyers Bridgeport concern. of 112, 122; Wieser v. Missouri tron, Inc. (1986), 359, 372.) 2d The plaintiff 98 Ill. R.R. Co. Pacific his he has filed resident of Macon but County, here is a action in Madison which County, appears have one of the most congested court dockets. The annual report the Administrative Office of the Illinois Courts to the Su- , Court of preme Illinois for 1983 shows that the average time for lapse actions seeking damages excess of $15,000 in Madison is 37.2 County months; Macon County reported 30.8 months for the same category.

The circuit court here nevertheless stated that courts of Madison are not County unduly congested, com that it menting was notice taking judicial that a plaintiff's case could be reached for trial within two However, years. in the nothing record appears to support the court’s opin ion. This court has held that the condition of a circuit court’s docket is a matter of which a court can properly (Fender take judicial notice. v. St. Louis Southwestern Co. Ry. 49 Ill. Fender 6.) indicated that the pertinent reports are promulgated office of the by court administrator. The 1983 report indicates clearly the time before trial lapse is reached in Macon County far less than in Madison County.

Too, this court has taken notice previously con gested dockets of the circuit court of Madison County has recognized the congestion is aggravated by presence cases similar to the plaintiff’s—nonresident FELA cases that have little or no connection with Madi son County. (See Espinosa & Western 111, 116; Foster v. Chicago & North Western Transportation 384.) At the time Espinosa decided, was this court cited statis tics showing that 1976 the time before trial average was 30.3 months. the time By down, Foster was handed the relevant statistics showed that had in delay creased to almost three As shown the 1983 sta years. by tistics, the docket of the circuit court of Madison County is still crowded to the where congestion is point great concern. Madison cannot be expected carry

231 additional of this kind of The imported litigation. burden who the justice dissented from court’s appellate majority here the expressed problem strong language: case,

“Neither the to giving par events rise this the ties, the witnesses nor the medical records (except for ‘treating physicians’ those two Madison County) any County. have with connection whatsoever Madison import majority’s of the decision is to make Madison litigation FELA, County a center for (46 Jones Act sec. 688 et seq. (1982)) any U.S.C. and other tort case arising in Illinois venue be is may where fixed there. This to injustice taxpayers, an the and other jurors, judges personnel court of Madison to County, and County litigants who must await trial their cases while litigation County non-Madison their own in the displaces case-clogged (See Madison County circuit court. Satkowiak Chesapeake 224, . v & Ohio 106 862, 370 ***.)” App. 478 N.E.2d 140 Ill. 866-67 (Jones, J., dissenting).

The trial court abused discretion when it refused to transfer this County. action to Macon The judgments of the appellate reversed, and circuit courts are the and- the cause remanded to circuit court of Madison with directions grant to the defendant’s motion to transfer the case to Macon County. remanded,

Reversed and with directions. GOLDENHERSH, JUSTICE dissenting: I its dissent. In the opinion effectively has majority destroyed the choice of venue an em- provided injured who seeks under the Federal ployee recovery Employ- ers’ Act 56 (45 U.S.C. sec. Liability (1976)) con- the upon ferred the railroad employer power select the forum in which the action employee’s will tried. be Corp. 501, Oil 330 Gilbert U.S. 91 Gulf L. Ed. 67 S. Ct. source the doctrine of non in this adopted jurisdiction, conveniens forum which are enunciated factors to be considered court in its and said: application, “The doctrine leaves much [of conveniens] to which ***.

the discretion resorts *** strongly [Ujnless balance is in favor of defendant, rarely of forum should plaintiff’s choice be 1055, 1062, 501, 508, L. Ed. disturbed.” 330 U.S. S. Ct.

In its this court followed Oil opinions, earlier Gulf deference was shown to the discretion and appropriate of In Nashville the trial court. Cotton v. Louisville & 144, acknowledged 14 Ill. 2d the court R.R. Co. (1958), noted in FELA cases and that the doctrine could apply to confer a upon employee the intent the congressional and broad choice of venue. jurisdiction in it erred its de Although opinion occasionally my an of that motion discre cision the denial of a was abuse Ry. as v. Western tion, as & recently Espinosa Norfolk 111, Ill. 2d the that the (1981), Co. 86 court recognized of be disturbed and plaintiff’s rarely choice forum should ruling the non conveniens that circuit court’s forum of an discre should be affirmed unless there was abuse however, that the doc court, tion. went on say “ it that there is trine was ‘whenever appears applicable the of that “serve convenience another forum can better ” Espi and the ends of justice.” the parties [Citation.]’ 111, Ill. 2d nosa v. & Western Co. Rock Island & 118, Chicago, Adkins v. quoting Pacific 511, Ill. R.R. Co. Transporta & Western Chicago

In Foster v. North eliminated majority the tion of the motion serve that the allowance the requirement doc original for the of and substituted the ends justice *** in a fo tried “that the case should be trine the rule oc- and the connection to the parties rum with a greater that forms the gravamen complaint.” currence (102 378, 385.) In & Haring Chicago North Western Transportation I dissent,

as demonstrated the fur doctrine was my ther modified so that the reversal longer no required that there be an of abuse discretion and conveniens could rest the as on conclusion that a solely matter of convenience the be an case should tried in other forum.

I do not the question validity the factors which the Court Supreme enumerated in It Oil. should be Gulf noted, however, the although abstract principle the might same, be the factual situations the and Gulf other cases cited differ this by majority from greatly case. The exercise on the discretion of the circuit part requires application common sense set to a and facts, under our definition of abuse long-standing of discretion, the decision of court, made in the exer- discretion, cise of its not should be set aside unless opposite conclusion is apparent. That is not the clearly situation here. Oil plaintiff brought Gulf action in the Southern District of York. a New He was resident of Virginia operated warehouse public *14 there. His action an against defendant was based on violation an alleged of ordinance of the Lyn- of city chburg. defendant was a un- corporation organized der of the laws and to Pennsylvania do business qualified in both and New Virginia York. The district court dis- missed the on action of non con- ground forum veniens, and the of court reversed. In appeals reversing the court of Court noted that appeals, Supreme there were 450 in and possible claims the case that there were questions concerning jurisdiction’s gov- which law erned the case. In Piper Regno Co. v. Aircraft 454 U.S. L. Ed. 2d 102 S. Ct. were

plaintiffs citizens and residents of and Scotland, occurred in of which the action arose the accident out distin- I that when the Court Supreme Scotland. submit and “resident” guished “foreign” plaintiffs between choice of that a resident plaintiff’s and stated plaintiffs, deference, it had in mind a to greater forum is entitled California, and not a resi- suing resident of Scotland Illinois, an action bringing County, dent of Macon 100 miles distant. County, approximately factors enunci eliminated the in its Having opinions to the ap considered prior ated in which were be Gulf conveniens, and of non of the doctrine plication forum the “con therefor combination having substituted con factual and the “significant venience of the parties” the doctrine rules, the majority applied nection” the trial 338, to reverse Torres v. Walsh an intrastate transfer and effect and courts appellate in Torres dissent my cause from Madison County. this which fallacious premise upon I out the pointed doing this dissent by and need not lengthen rests opinion so again. cases reach foregoing opinions, result of the

As the of litigating after several years this court on the not at issue these cases are Although conveniens. rec- and accumulated attained an merits, age have they ad- fully most cases which have been ords than greater courts. in the circuit and appellate judicated cases demonstrates in so many has occurred What sound and original departure the error in our .from in Horn v. Rincker first ignored rules long-established has been time this court 139. Since that actions original to file motions for leave with deluged motions for supervisory and prohibition mandamus include 306(a) of Rule amendment Since the orders. on' grounds for dismissal motions rulings denying fo has been conveniens, the appellate rum non to appeal leave discretionary for with petitions flooded

235 such and this with for rulings leave petitions ap from This in peal court. stems from appellate part that, the failure to recognize although prin the abstract same, be the the situation where a ciple may foreign sues as the result of an in occurrence a distant is jurisdiction different from the situation vastly pre sented a here, where of Illinois resident sues a county 100 miles from distant which he resides. county Furthermore, it is disturbing decides majority that the of a judgment circuit the state judge concerning of his court’s docket is overruled by four-year-old a set of statistics from the Also, Administrator’s office. majority has apparently overlooked the fact if defendant doing business Madison it is County, also being taxed there. There is no evidence that the expense of trial borne by exceeds its tax revenues re county ceived reason of by defendant’s In presence there. Marine, Brummett v. Wepfer (1986), Inc. 111 Ill. 2d 495, the court said:

“Whether the forum chosen ais convenient one is a matter for the (Moore discretion the trial court. Chi cago & North Transportation Western Co. Ill. 77; 2d Espinosa v. Ry. & Western 111, 119.) The responsibility reviewing court does not encompass determining whether the trial judge wisely (Fender exercised his discretion v. St. Louis Southwestern 49 Ill. 4), only 2d but (111 it has Ill. 503-04.) whether been abused.” application that rule would the af- proper require firmance of the judgment in this case. dissent in Horn v. my Rincker I

139, 152-53, out that pointed as the result that opin ion this court will be to consider for required requests relief not authorized statute or by constitution, that the our problem attention had allegedly requiring historically been resolved the circuit courts without our by interven-

tion, and that “this court is far too its 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 which 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