delivered the modified opinion of the court:
These consolidated appeals arise out of two lawsuits filed in the trial court on behalf of 113 plaintiffs who were Philippine decedents who died as a result of a plane crash on April 19, 2000, in the Philippines. The defendants, AAR Parts Trading, Inc. (hereinafter AAR), a parts company, and Fleet Business Credit, LLC (hereinafter Fleet), a financing company, filed motions to dismiss predicated on the doctrine of forum non conveniens in order to dismiss the plaintiffs’ consolidated cases in Cook County, Illinois, so that the cases could be litigated in the Philippines. In this appeal, we are called upon to review two trial court orders: (1) the trial court’s November 20, 2002, order denying the defendants’ motion to dismiss the “02L” Katherine A. Ellis (hereinafter Ellis) cases; and (2) the trial court’s April 8, 2003, order denying AAR’s renewed motion to dismiss Jovy Layug (hereinafter Layug) and Fleet’s initial motion to dismiss Layug. The defendants’ interlocutory appeals were filed on December 21, 2002 (the Ellis appeal) and on April 8, 2003 (the Layug appeal), pursuant to Illinois Supreme Court Rule 306(a)(2) (134 Ill. 2d R. 306(a)(2)), and were consolidated on June 5, 2003, hy the appellate court.
BACKGROUND
In 1978, the Boeing Company, located in Seattle, Washington, manufactured a Boeing 737 jet. In 1998, the Boeing 737 was purchased by AAR, an Illinois corporation with its principal place of business in Illinois. AAR leased the Boeing 737 to the Air Philippines Corporation. Later, AAR sold the Boeing 737 and assigned its rights, title and interests to Fleet, a Delaware corporation with its principal place of business in Illinois.
On April 19, 2000, the Boeing 737 jet, Air Philippines Flight 541, crashed into a 577-foot-high hill, located in Samal Island, while on a domestic flight from Manila to Davao City in the Republic of the Philippines. At the time of the crash, Air Philippines Flight 541 was in the process of making a second attempt to land on the runway. Everyone on the flight, including 7 crew members and 124 passengers, died in the crash.
THE COMPLAINTS
On August 2, 2000, Layug filed a complaint as an individual plaintiff, against AAR. Layug is a resident of Cook County, but the decedent, her mother, was a resident of the Philippines. In the initial, one-count, products Lability complaint, among other allegations, Layug alleged that the Boeing 737: (1) lacked proper and current manuals for operation, maintenance and/or repair; (2) was beyond its safe operational life expectancy; (3) was comprised of structures that were fatigued, cracked, corroded and otherwise in a condition that would likely lead to failure of the aircraft; and (4) contained a flap control system that was fatigued and likely to fail. Layug alleged that as a direct and proximate cause of these defective, unreasonably dangerous and unfit conditions, the aircraft crashed and caused the decedent to be fatally injured.
On September 19, 2000, Layug filed her first amended complaint, which contained three counts. In addition to the products liability count in her initial complaint, the plaintiff added count II based upon negligence and count III for breach of warranty. On November 22, 2000, AAR filed its answer to Layug’s first amended complaint, and on January 19, 2001, AAR filed a motion to dismiss based upon the doctrine of forum non conveniens pursuant to Supreme Court Rule 187. 134 Ill. 2d R. 187. However, before the trial court could rule on AAR’s motion to dismiss the first amended complaint, Layug filed a second amended complaint on February 13, 2001, adding an allegation in the complaint that she had been appointed the administrator of the decedent’s estate.
On August 17, 2001, the trial court denied AAR’s motion to dismiss. The court ruled “that the moving defendant [had] not met its burden as to the relevant factors for consideration” and that the private and public interest factors, “when viewed in their totality, did not strongly favor the suggested forum.” (Emphasis added.) AAR then filed a motion to reconsider and to clarify the court’s order, which was also denied on October 25, 2001. The court ruled that AAR had failed to provide the court with changes in existing law or with any newly discovered evidence that was unavailable when the court ruled on the original motion to dismiss. AAR did not file an appeal from the trial court’s October 25, 2001, order denying its motion to reconsider the motion to dismiss the Layug case.
On March 14, 2002, Layug filed a third amended complaint with new matters, including eight new counts: negligent entrustment, count I (wrongful death) and count II (survival action); strict products liability, count III (wrongful death) and count IV (survival action); Illinois common law of bailment, count V (wrongful death) and count VI (survival action); negligence, count VII (wrongful death) and count VIII (survival action); breach of warranty, count IX (wrongful death) and count X (survival action); and spoliation of evidence, count XI (damages). Fleet Business Credit, LLC, was also joined as an additional defendant.
One month later, on April 16, 2002, Layug filed a fourth amended complaint joining 32 new plaintiffs representing 53 decedents (hereinafter referred to as the Pinol plaintiffs and the complaints involving Layug and the 32 Pinol plaintiffs will be referred to as the Layug/Pinol plaintiffs’ cases). The fourth amended complaint contained the same counts as those contained in the third amended complaint. On June 25, 2002, both AAR and Fleet filed answers to the Layug/Pinol plaintiffs’ fourth amended complaint. Neither defendant filed a motion to dismiss the Layug/Pinol plaintiffs’ complaint based upon the doctrine of forum non conveniens within the 90-day period prescribed by Rule 187. 134 Ill. 2d R. 187. However, before the 90-day period expired, on August 15, 2002, the Layug/Pinol plaintiffs filed their fifth amended complaint adding additional allegations to counts III and IV — strict products liability; count V — Illinois common law of bailment; and count XI — for spoliation of evidence.
THE AAR AND FLEET APPEAL OF THE ELLIS PLAINTIFFS’ CASES
On May 10, 2002, the defendants filed a joint motion to consolidate; the motion referred to 24 complaints with different case numbers, filed on behalf of 59 additional decedents who are the “02L” Ellis plaintiffs; 1 and the motion sought to consolidate the “02L” Ellis cases with the Layug/Pinol cases. The motion to consolidate was granted on May 16, 2002, “for discovery purposes only.” The “02L” Ellis cases were never consolidated with the Layug/Pinol cases for trial. On August 10, 2002, the “02L” Ellis plaintiffs filed their first amended complaint. On August 27, 2002, AAR and Fleet filed a joint motion to dismiss the “02L” Ellis plaintiffs’ complaint on the grounds of forum non conveniens. The trial court denied the motion to dismiss on November 20, 2002, for the same reasons that AAR’s motion to dismiss Layug’s first amended complaint was denied in August 2001. On December 20, 2002, the defendants filed a joint petition for interlocutory appeal, pursuant to Supreme Court Rule 306(a)(2) (166 Ill. 2d R. 306(a)(2)), from the November 20, 2002, order which was granted by the appellate court.
THE AAR AND FLEET APPEAL OF LAYUG’S CASE
On November 26, 2002, AAR and Fleet filed a joint motion to dismiss Layug, the individual plaintiff’s case, but not the 32 Pinol plaintiffs’ cases, based upon the doctrine of forum non conveniens. 2 The motion was entitled “Defendant, Fleet Business Credit LLC’s Initial Motion to Dismiss the Claims of Jovy Layug Set Forth in the fifth amended complaint Based Upon Forum Non Conveniens” (emphasis added) and “Defendant, AAR Parts Trading, Inc.’s Renewed Motion to Dismiss the Claims of Jovy Layug Set Forth in the fifth amended complaint Based Upon Forum Non Conveniens” (emphasis added). In response to the defendants’ joint motion to dismiss, Layug filed a motion to strike and objections to the defendants’ joint motion to dismiss on December 6, 2002. Layug asserted that the “defendants’ motions *** [were] untimely and in violation of Supreme Court Rule 187 which requires that forum non conveniens motions must be filed ‘not later than 90 days after the last day allowed for the filing of that party’s answer’.” In reply, the defendants argued that Layug’s motion to strike was untimely; that her interpretation of Rule 187 was erroneous; and that after the fifth amended complaint was filed, they had a de novo time period for filing a new forum non conveniens motion. Before the trial court ruled on the defendants’ motion to dismiss, the Layug/Pinol plaintiffs, on March 18, 2003, filed a motion for leave to file an amendment to count I (negligent entrustment) and count X (breach of warranty) of the fifth amended complaint, which was granted.
On April 8, 2003, the trial court held a hearing on the defendants’ joint motions to dismiss. The court found that Fleet’s motion to dismiss was untimely because Fleet filed its motion to dismiss Layug’s case 154 days after filing an answer to the fourth amended complaint which joined Fleet as a defendant in the lawsuit. The court found that AAR’s motion to dismiss was also untimely because its “ ‘renewed’ motion *** was filed one year and two days after this court denied the first forum non conveniens motion.” The trial court stated that for “purposes of completeness of the record on appeal,” however, it would rule on the defendants’ motions to dismiss. The court found that the motions failed to delineate new facts, information, discovery, or data which in any way altered the court’s prior findings and rulings. Therefore, the court denied the “initial” motion of defendant Fleet and the “renewed” motion of defendant AAR to dismiss Layug’s case on the grounds of forum non conveniens. Consequently, on April 21, 2003, the defendants filed a second joint interlocutory appeal.
This appeal presents one issue for our review: whether the trial court erred and abused its discretion: (a) when it entered the November 20, 2002, order denying the defendants’ motion to dismiss the “02L” Ellis cases on the grounds of forum non conveniens-, and (b) when it entered the April 8, 2003, order denying AAR’s renewed motion to dismiss Layug and Fleet’s initial motion to dismiss Layug on the grounds of forum non conveniens. Additionally, the Pinol plaintiffs have filed a motion to dismiss the defendants’ appeal as to the Pinol plaintiffs for lack of jurisdiction, which has been taken with this case.
ANALYSIS
JURISDICTION
The threshold question we must address in this appeal is the question of jurisdiction. While the parties agree that this court has jurisdiction over the Ellis plaintiffs’ cases, the 32 Pinol plaintiffs and Layug question whether this court has jurisdiction over their cases. The appellate court must always address the jurisdiction question, even when the parties agree, before it addresses the other issues raised on appeal, because it has “an independent duty to consider [its] jurisdiction before considering the merits of any case.” Gibson v. Belvidere National Bank & Trust Co.,
The “02L” Ellis Plaintiffs
On August 10, 2002, the “02L” Ellis plaintiffs filed their first amended complaint. AAR and Fleet filed a joint motion to dismiss the “02L” Ellis cases on the grounds of forum non conveniens on August 27, 2002, which was denied on November 20, 2002. As such, AAR’s and Fleet’s forum non conveniens motion to dismiss was' timely because it was filed within 90 days after the last day allowed for the defendants to file their answer. See 134 Ill. 2d R. 187(a). On December 20, 2002, the defendants filed a joint petition for interlocutory appeal from the November 20, 2002, order, pursuant to Supreme Court Rule 306(a)(2) (166 Ill. 2d R. 306(a)(2)), which was granted by the appellate court. Therefore, we find that we have jurisdiction over the Ellis plaintiffs because the defendants’ petition for leave to appeal was filed within 30 days of the trial court’s order denying their motion to dismiss the Ellis plaintiffs’ first amended complaint. See 166 Ill. 2d R. 306(b) (“[T]he petition *** shall be filed in the Appellate Court *** within 30 days after the entry of the order”).
The Pinol Plaintiffs’ Cases
The Pinol plaintiffs have filed a motion to dismiss the defendants’ appeal against them contending that this court lacks jurisdiction. They assert that the defendants never filed a motion to dismiss against them on the grounds of forum non conveniens and that the time for doing so has long expired. Therefore, they contend that since a motion to dismiss the Pinol plaintiffs’ cases was never filed in the court below, we do not have jurisdiction over them for purposes of this appeal. We agree with the Pinol plaintiffs’ position that this court lacks jurisdiction over them. Once again, in order to vest the appellate court with jurisdiction over the Pinol plaintiffs, Supreme Court Rule 306(c) requires that an interlocutory petition for leave to appeal must be filed in this court. See 134 Ill. 2d R. 306(c).
The Pinol plaintiffs were joined in the fourth amended complaint on April 16, 2002, and both defendants answered the fourth amended complaint on June 25, 2002. According to Supreme Court Rule 187(a), the defendants had until September 23, 2002, to file a forum non conveniens motion. 134 Ill. 2d R. 187(a). A review of the record reveals that the defendants never filed a motion to dismiss predicated on the grounds of forum non conveniens against the Pinol plaintiffs in the trial court. Even after the Layug/Pinol plaintiffs filed a fifth amended complaint on August 15, 2002, the defendants failed to file a motion to dismiss the Pinol plaintiffs. We note that the Layug/Pinol case was consolidated, for discovery purposes only, on May 16, 2002, with the Ellis cases. When the Layug/Pinol and Ellis cases were consolidated, they retained separate case numbers and remained separate cases for all motions and other matters except discovery matters. See Nationwide Mutual Insurance Co. v. Filos,
We also note that AAR and Fleet did not file, as required by Rule 306, a petition in the appellate court within 30 days after the trial court entered an order because the trial court never entered an order allowing or denying a motion to dismiss the Pinol plaintiffs’ cases on the grounds of forum non conveniens. Therefore, since a Rule 306 petition was never filed in this court by AAR or Fleet naming the Pinol plaintiffs, this court has no jurisdiction over the Pinol plaintiffs. See 134 Ill. 2d R. 306(c). See also Miller v. Consolidated R. Corp.,
The Layug Plaintiff
A. AAR’s First Motion to Dismiss Layug’s
First Amended Complaint
Finally, we must decide if we have jurisdiction over the Layug plaintiff s case. We note that there were two forum non conveniens motions to dismiss filed against Layug in the court below. The first motion to dismiss was filed by AAR in 2001, against Layug’s first amended complaint. The trial court denied that motion to dismiss on August 17, 2001. Layug asserts that this court lacks jurisdiction over her because AAR should have filed a petition in this court from the trial court’s August 17, 2001, order denying AAR’s motion to dismiss, but did not do so. Instead, AAR filed a motion to reconsider, which was also denied on October 25, 2001. We agree with Layug.
Pursuant to Supreme Court Rule 306(c), AAR had 30 days to file a petition for leave to appeal in the appellate court from the trial court’s August 17, 2001, order. 166 Ill. 2d R. 306(b); see also In re Leonard R.,
B. AAR’s and Fleet’s Second Motion to Dismiss Only Layug’s
Fourth Amended Complaint
After AAR and Fleet filed an answer to the LayugIPinol plaintiffs’ fourth amended complaint, and after the LayugIPinol plaintiffs filed their fifth amended complaint, AAR and Fleet filed a joint motion and memorandum to dismiss on the grounds of forum non conveniens on November 26, 2002. The joint motion to dismiss was entitled “AAR’s Renewed Motion To Dismiss and Fleet’s Initial Motion to Dismiss” Layug’s fifth amended complaint. The motion and memorandum to dismiss the fifth amended complaint was denied by the trial court on April 8, 2003. Within 30 days after the trial court entered its order, the defendants filed a joint petition in the appellate court for leave to file an interlocutory appeal on April 21, 2003. Layug argues on appeal that we lack jurisdiction over the April 21, 2003, petition. First, Layug argues that both defendants’ motions to dismiss her fifth amended complaint were untimely. AAR’s “renewed” motion to dismiss was untimely because, instead of “realizing the jurisdictional time to seek leave to appeal from [the trial court’s August 17, 2001,] order had long run,” AAR filed a “renewed” motion to dismiss the claim of Layug on November 26, 2002, “over one year after AAR’s motion to dismiss the Layug case was denied.” She also asserts that Fleet’s “initial” motion to dismiss the fifth amended complaint was also untimely because it was filed 154 days after it answered plaintiff s fourth amended complaint. Therefore, since the defendants’ joint motion to dismiss was untimely filed, we lack jurisdiction over the defendants’ petition filed April 21, 2003.
We disagree with Layug’s argument regarding the defendants’ joint motion to dismiss Layug’s fifth amended complaint. First, we find that Supreme Court Rule 187 is not jurisdictional and, therefore, cannot divest this court of jurisdiction over this appeal. 134 Ill. 2d R. 187(a). Second, whether we may properly exercise jurisdiction over Layug’s case is governed by Rule 306(b), which provides that the appellate court has jurisdiction over appeals from trial court orders allowing or denying motions to dismiss on grounds of forum non conveniens if a petition is filed in this court within 30 days of the trial court’s order. See 166 Ill. 2d R. 306(b).
Supreme Court Rule 187
In order to answer the jurisdiction question as it relates to Layug, we find it necessary to discuss an underlying issue in this case, whether successive forum non conveniens motions are permitted by Supreme Court Rule 187. The trial court determined in its April 21, 2003, order that pursuant to Supreme Court Rule 187, the defendants’ joint motion to dismiss the fifth amended complaint filed November 26, 2002, was untimely. The trial court stated that “the only logical interpretation” of Rule 187 is that it “applies to the original answer of any given defendant to the original pleading filed against that defendant.” (Emphasis added.) According to the trial court, AAR’s only opportunity to file a forum non conveniens motion against Layug would have been within 90 days after its November 22, 2000, original answer to Layug’s first amended complaint. Therefore, since AAR neglected to file an appeal from the trial court’s ruling on its original forum non conveniens motion objecting to Illinois as an inappropriate forum, it is foreclosed from filing an appeal from that order. With regard to Fleet, since it neglected to file a motion to dismiss within 90 days of its original answer (filed June 25, 2002) to the original pleading filed against it (the plaintiffs fourth amended complaint), it is equally foreclosed from raising such a defense in the future.
We find the court’s interpretation of Rule 187 erroneous based upon Illinois case law. Rule 187(a) provides in relevant part that a “forum non conveniens [motion] must be filed by a party not later than 90 days after the last day allowed for the filing of that party’s answer.” (Emphasis added.) 134 Ill. 2d R. 187(a). The Committee Comments for paragraph (a) provide the following explanation for paragraph (a): “Paragraph (a) calculates the period for filing a forum non conveniens motion from the last day allowed for the filing of that party’s answer. *** Paragraph (a) refers to ‘that party’s answer’ to insure that a later-joined defendant is not foreclosed from filing a forum non conveniens motion by the failure of another defendant to do so in a timely manner.” (Emphasis in original.) 134 Ill. 2d R. 187(a), Committee Comments. Regrettably, neither the rule itself nor the Committee Comments clarify the underlying issue of first impression presented in this case — whether Rule 187 only permits a defendant to file one forum non conveniens motion within 90 days of filing his first answer to the plaintiff’s complaint or whether the defendant is allowed to file successive or new forum non conveniens motions within 90 days after filing an answer to each of the plaintiffs’ amended complaints.
Rule 187 was adopted in August of 1986 in response to a timeliness issue raised in Bell v. Louisville & Nashville R.R. Co.,
Examining the timeliness of the defendants’ motions, the Bell court reiterated that the animus for the creation of the forum non conveniens doctrine — equity—was “founded in considerations of fundamental fairness and sensible and effective judicial administration.” Bell,
Perhaps in answer to the specially concurring opinion in Bell
3
, the supreme court adopted Rule 187 approximately one year and five months after the Bell opinion was decided. Unfortunately, neither the Bell decision nor Rule 187 addresses the issue presented in this case— whether a defendant may file a new forum non conveniens motion each time a plaintiff files an amended complaint. However, notwithstanding the continued absence of Rule 187, perhaps in anticipation of its adoption, the court addressed a comparable issue in Kemner v. Monsanto Co.,
“I write separately, however, to express concern with the majority’s decision not to set a specific time in which a defendant must ask the court to decline jurisdiction on the basis of forum non conveniens. The majority’s reluctance to establish a per se rule is understandable. Whether it is ‘fair’ or ‘sensible’ to dismiss a case often turns on its particular facts and circumstances. Nevertheless, I believe that today’s decision provides no guidance whatsoever to trial courts or parties. As such, defendants will be placed in a precarious situation. They have no indication as to how much of a delay will be fatal to their success. This is particularly troublesome in light of the fact that defendants must conduct some discovery before they can determine whether a motion based on the forum non conveniens doctrine is appropriate.” Bell,106 Ill. 2d at 151 (Moran, J., specially concurring).
The supreme court agreed with the defendant. The supreme court reasoned that it is inequitable to place the defendant in a position of having to make the choice between filing a forum non conveniens motion when the basis of filing it may not be clear or waiting to file the motion at the risk of having the motion denied due to delay. Kemner,
Utilizing the Kemner court’s reasoning as a stepping stone for its decision, the supreme court in McClain v. Illinois Central Gulf R.R. Co.,
Once again, we are cognizant of the fact that Supreme Court Rule 187 was not adopted until after the trial court’s interlocutory orders were entered in Kemner and McClain. The fact that Supreme Court Rule 187 was not in effect, however, does not prevent this court from considering the reasoning and the holdings in those cases. The supreme court’s decisions in Bell, Kemner and McClain have not been reversed; therefore, the 90-day limitations period prescribed by Supreme Court Rule 187 must be applied and harmonized with those decisions.
Following the reasoning in Kemner and McClain, AAR’s and Fleet’s “renewed” motion to dismiss Layug’s fifth amended complaint and supporting memorandum filed November 26, 2002, did provide the court with new matter and additional case law (First American Bank v. Guerine,
With regard to the new matter, the record reflects that attached to the memorandum in support of the defendant’s motion to dismiss the fifth amended complaint was the report of the independent investigation committee. The defendants refer to this report in their motion to dismiss Layug’s fifth amended complaint and detail certain facts contained within the report. Although the defendants do not make this argument in their memorandum, we note that based upon the date of the letter attached to the report, the report was not available to AAR when it filed its original motion to dismiss Layug’s first amended complaint, on January 19, 2001. The letter, dated January 3, 2001, requested that the Acting Executive Secretary of Cardenas conduct a fact-finding investigation into the cause of the crash.
In addition, the record establishes that unlike the defendants in Bell, the defendants in this case have been “vigilant.” See Bell, 106 Ill 2d at 146. The record also established that subsequent to AAR filing its original motion to dismiss, Layug had filed four amended complaints within IV2 years. Although the second amended complaint made no substantive changes, but only clarified language appointing the administrator of the decedent’s estate, the third amended complaint added Fleet as a defendant and also added negligent entrustment, bailment and spoliation of evidence counts to the complaint. One month later, before the defendants had an opportunity to file an answer or affirmative defenses to the amended complaint, plaintiff filed her fourth amended complaint adding the Pinol plaintiffs. Although the defendants filed an answer to the fourth amended complaint before the 90-day period for filing a forum non conveniens motion expired (134 Ill. 2d R. 187), Layug filed her fifth amended complaint, once again adding new matters: strict products liability, count III (wrongful death) and count IV (survival action); Illinois common law of bailment; and spoliation of evidence, count XI (all damages). The aforementioned facts provide demonstrative evidence of AAR’s and Fleet’s vigilance.
When faced with new matters, parties and theories in both the third, fourth and fifth amended complaints, filed within five months of each other, AAR and Fleet filed a joint motion to dismiss Layug’s fifth amended complaint in which they discussed the independent investigation conducted by the Republic of the Philippines and the evidence from that investigation. New cases were presented and the identities of potential witnesses were disclosed. See McClain,
In light of Illinois case law, we question the correctness of Layug’s argument, predicated on Rule 187, that a motion to dismiss based upon the doctrine of forum non conveniens is only timely if filed within 90 days of answering the original complaint. See Bell,
In further support of the importance of the equitable principles upon which the forum non conveniens doctrine is premised, the amendment statute, section 2 — 616(a) of the Code of Civil Procedure, supports our construction of Rule 187 that the defendants should be allowed to file successive motions to dismiss under the facts of this case. 735 ILCS 5/2 — 616(a) (West 2002). Section 2 — 616(a) provides in pertinent part:
“§ 2 — 616. Amendments, (a) At any time before final judgment amendments may be allowed on just and reasonable terms, introducing any party who ought to have been joined as plaintiff or defendant, dismissing any party, changing the cause of action or defense or adding new causes of action or defenses, and in any matter, either of form or substance, in any process, pleading, bill of particulars or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be brought or the defendant to make a defense or assert a cross claim.” 735 ILCS 5/2 — 616(a) (West 2002).
The Illinois Supreme Court has interpreted section 2 — 616(a) to mean that where an amended pleading is complete in and of itself, and does not refer to or adopt a prior pleading, the earlier pleading ceases to be part of record for most purposes and is effectively abandoned and withdrawn. Barnett v. Zion Park District,
Finally, since Barnett, Bowman and Saunders are clear that unless a subsequent, amended complaint refers to or adopts a prior pleading, the earlier pleading ceases to be a part of the record, it is disingenuous for Layug to assert that the defendants are foreclosed from filing a forum non conveniens motion attacking the fifth amended complaint because there was no motion to dismiss filed within 90 days of filing their answer to the fourth amended complaint. The defendants filed an answer to the fourth amended complaint on June 25, 2002. According to Layug’s reasoning, a motion to change forum should have been filed by September 25, 2002. This conclusion is flawed since the facts indicate that Layug’s fifth amended complaint, filed August 15, 2002, was filed prior to the expiration of the 90-day limitations period within which the defendants should have filed a motion to dismiss the fourth amended complaint. It would he inequitable and contrary to Illinois case law to reach the conclusion advanced by Layug.
In conclusion, based upon the supreme court’s reasoning in Bell, Kemner, and McClain, and section 2 — 616(a), we find that Rule 187 permitted the defendants to file successive forum non conveniens motions to dismiss against Layug. The defendants alleged new facts and new matter in their motion to dismiss Layug’s fifth amended complaint. In addition, the plaintiffs’ amended complaints added new parties and causes of action. The record reveals that the defendants’ second motion to dismiss, which was filed against Layug individually and not against the Pinol plaintiffs, was filed on November 26, 2002. The trial court’s order denying the motion to dismiss was entered on April 8, 2003. On April 21, 2003, within 30 days after the trial court’s order was entered, the defendants filed a joint petition in the appellate court for leave to file an interlocutory appeal. Therefore, the appellate court has jurisdiction over the defendants’ joint appeal because AAR and Fleet filed a petition in this court on April 21, 2003, within 30 days of the trial court’s order denying their motion to dismiss Layug’s fifth amended complaint. See 166 Ill. 2d R. 306(b).
THE DOCTRINE OF FORUM NON CONVENIENS
In this case we must decide a forum non conveniens question. The doctrine of forum non conveniens is based upon considerations of fundamental fairness and sensible and effective judicial administration. The doctrine allows the court in which the action was filed to decline jurisdiction and direct the lawsuit to an alternative forum that the court determines can better serve the convenience of the parties and the ends of justice. Dawdy v. Union Pacific R.R. Co.,
In Illinois, the doctrine of forum non conveniens has two potential applications: interstate forum non conveniens and intrastate forum non conveniens. The doctrine was first recognized by our supreme court in Whitney v. Madden,
In determining the appropriate forum in which the case should be tried, a court must balance the private and public interests. Bawdy,
The relevant public interest factors include: (1) the administrative difficulties caused when litigation is handled in congested venues instead of being handled at its origin; (2) the unfairness of imposing jury duty upon residents of a county with no connection to the litigation; and (3) the interest in having local controversies decided locally. Bawdy,
An additional consideration under the forum non conveniens doctrine is deference to the plaintiffs choice of forum. A plaintiffs right to select the forum is substantial. Unless the factors weigh strongly in favor of transfer, the plaintiffs choice of forum should rarely be disturbed. Bawdy,
In the case at bar, when deciding whether the trial court abused its discretion in denying the defendants’ request for a change of forum, we have before us the court’s November 20, 2002, order — involving the “02L” Ellis plaintiffs — and its April 8, 2003, order — involving Layug. The sole issue raised by the defendants on appeal is whether the relevant public and private interest factors strongly favor dismissal of these cases from the circuit court of Cook County in order to be filed in the Philippines. However, as the determination of a forum non conveniens motion lies within the sound discretion of the trial court, we must address defendants’ issue in the context of the applicable standard of review. On review, the trial court’s decision will be reversed only if it can be shown that the court abused its discretion in balancing the relevant factors. Dawdy,
Private Interest Factors
With regard to the convenience of the parties and the relative ease of access to the sources of proof, the defendants argue that the Philippines is a more convenient forum because at least 31 witnesses with information critical to the central issues in the case — what caused the crash- — all reside in the Philippines. They assert that these witnesses will be critical to establish the airplane’s service and maintenance history with Air Philippines Corporation, as well as the Philippines pilots’ training and experience. In addition, all six members of the technical working group, responsible for the technical aspects of the crash investigation, are located in the Philippines, and the Philippine attorneys for the family members of the victims of the crash have identified other potential witnesses on Samal Island.
Although we agree that these are valid points made by the defendants, we cannot agree that these factors strongly favor dismissal of the action. As the trial court reasoned, it is uncontested that both of the defendants have their principal place of business in Illinois. The court opined that “it is incredulous for two Illinois resident corporations to argue that their home state is inconvenient to them to litigate this matter. It is also incredulous to observe that the defendants thoroughly ignore the fact that the theories of liability pled against them concern the alleged defective condition of the aircraft prior to its transfer to Air Philippines, and there has been no assertion by the defendants that the sources of proof, records, and witnesses on these issues are not located in Illinois. ” (Emphasis added.) As the court noted in Dawdy, “where the potential trial witnesses are scattered among several counties, including the plaintiffs chosen forum, and no single county enjoys a predominant connection to the litigation, the plaintiff may not be deprived of his or her chosen forum.” Dawdy,
The trial court also points out that there is no need in this case to view the accident site because it was paved over several days after the accident occurred and some plane parts, including,-the engine, were buried by airline personnel. Although it is true that the court in Dawdy concluded that this private interest factor is “not concerned with the necessity of viewing the site of the injury, but rather is concerned with the possibility of viewing the site, if appropriate” (emphasis in original) (Dawdy,
As for the compulsory process of unwilling witnesses and the cost of obtaining the attendance of willing witnesses, these factors do not strongly favor dismissal of the action. As the court stated in its memorandum order, compulsory process of unwilling witnesses weighs equally against Cook County, Illinois, and the Philippines. If the case remains in Illinois, witnesses in the Philippines are not compelled to come to the United States; and, if the forum is changed to the Philippines, Illinois witnesses, including the plaintiff, could not be compelled to appear in the Philippines.
The defendants’ reliance on several federal cases is misplaced. In Nolan v. Boeing Co.,
The facts in Nolan are clearly distinguishable from the facts in the case at bar because, unlike the case at bar, the plaintiffs in Nolan had “no previous connection with the state” in which they filed the cause of action and “none of the activities out of which the defendants’ alleged liability [arose] took place in the state in [which the lawsuit was filed].” Nolan,
Piper Aircraft Co. v. Reyno,
In addition, unlike the plaintiff in Moore v. Chicago & North Western Transportation Co.,
The defendants also raise an issue regarding the inability to pursue a third-party claim against the Philippines air transportation office. The plaintiffs counter, however, that the defendants have waived any further cross-claims related to the accident and that under the lease agreement with Air Philippines, the defendants have a right to seek indemnity against them in Illinois courts under Illinois law.
5
Initially, it is important to understand that cross-claims or counterclaims are different from third-party actions. See 735 ILCS 5/2 — 608(a), 2 — 404(a) (West 2002); see also People v. Fiorini,
However, although a third-party claim brought in Illinois courts against Air Philippines may be unobtainable due to the restriction of the Foreign Sovereign Immunities Act, under the aircraft lease agreement between AAR and Air Philippines, paragraph 10 provides that AAR may seek indemnification from Air Philippines here in Illinois. Paragraph 20 of the lease agreement provides that any causes of action that may arise under the terms of the lease agreement are subject to Illinois law. Therefore, the defendants may bring an action against Air Philippines for indemnification. If, in fact, such a claim is barred by the Foreign Sovereign Immunities Act, this should not weigh in favor of dismissal of the action, as the defendants agreed to the terms of the lease agreement presumably in full awareness of all of its implications and ramifications. It would be disingenuous for them to now argue that they would prefer to litigate the indemnification action against Air Philippines in the Philippines.
Furthermore, it would have been premature for the trial court to remove the case on this basis as no third-party cause of action has been filed in this case, nor does the record indicate that it has been contemplated. See Nolan,
Public Interest Factors
Defendants argue the public interest factors weigh strongly in favor of dismissal as well because the controversy is localized to the Philippines. In addition, the defendants assert that it would be an unfair burden and expense on the citizens of Cook County to allow the controversy to remain in the Cook County court system. Finally, they argue that the Cook County court system is already congested and overcrowded.
We disagree with the defendants’ contention that these factors weigh strongly in favor of dismissal. First, with regard to having localized controversies decided locally, we agree with the trial court’s assessment that Cook County and the Philippines have an equal interest in deciding the controversy surrounding the plane crash. It is true that the crash actually occurred in the Philippines and the residents of the Philippines obviously have a concern regarding the possibility of alleged negligence that may have occurred due to pilot or air traffic controller error. However, the residents of Illinois are certainly interested in this case because the aircraft was owned and/or operated by corporations that do business in the State of Illinois and take advantage of Illinois law; they are concerned about resident corporations and the quality of their products; and one of the administrators of the plaintiffs’ cases is an Illinois resident who is related to one of the decedents.
Second, with regard to the unfairness to Illinois citizens of having the expense and burden of jury duty imposed upon them, the Guerine court’s reasoning is sound. The Guerine court reasoned that where the potential trial witnesses are scattered among different forums, neither forum enjoys a predominant connection to the litigation. See Guerine,
Third, the defendants are correct that Cook County’s court system is congested. However, “[t]he court congestion factor, by itself, is relatively insignificant [citations] and is not sufficient to justify transfer of venue when none of the other relevant factors weigh strongly in favor of transfer.” Dawdy,
In conclusion, although we believe that the trial court’s determination of an appropriate forum could have been decided in favor of either Cook County, Illinois, or the Philippines, we cannot hold that an abuse of the court’s discretion has occurred here. As the supreme court so aptly concluded in Guerine (where the supreme court held that the trial court abused its discretion by granting a motion to transfer), recognizing that Illinois forum non conveniens can be obscure, “a trial court abuses its discretion in granting an intrastate forum non conveniens motion to transfer venue where, as here, the potential trial witnesses are scattered among several counties, including plaintiff’s chosen forum, and no single county enjoys a predominant connection to the litigation. The balance of [both private and public interest] factors must strongly favor transfer of the case before the plaintiff can be deprived of his chosen forum.” (Emphasis added.) Guerine,
For the foregoing reasons, the orders entered by the trial court are affirmed.
Affirmed.
CAMPBELL, RJ., and O’BRIEN, J., concur.
Notes
The 24 complaints are not contained in the record.
During oral argument before this court on September 21, 2004, the defendants admitted that their joint motion to dismiss the fifth amended complaint was only against Layug.
Justice Moran wrote a specially concurring opinion in which he stated:
In Kemner, the court did note that Rule 187 would be effective August 1, 1986. Kemner,
The record is unclear as to whom the defendants’ third-party claim would be against. Defendants mention the Philippines Air Transportation Office and the plaintiffs mention Air Philippines. However, for purposes of this appeal, it is a nonissue as defendants have not filed such a claim and there is no pleading in the record on appeal which suggests that such an action will be filed.