NO. 5-01-0113

	IN THE

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

___________________________________________________________________________

JOSHUA R. BIRD, 				)	Appeal from the

							)	Circuit Court of

	Plaintiff-Appellee, 				)	St. Clair County.  

							)

v.							)	No. 00-L-327

							)

LUHR BROTHERS, INC., 			)	Honorable

							)	Stephen M. Kernan, 

	Defendant-Appellant.			)	Judge, presiding.  

___________________________________________________________________________

	JUSTICE CHAPMAN delivered the opinion of the court:

	This is an appeal from an order of the circuit court denying the motion of Luhr

Brothers, Inc. (defendant), to dismiss or transfer on the grounds of forum non conveniens pursuant to Supreme Court Rule 187 (134 Ill. 2d R. 187).  The sole issue for review is

whether the circuit court abused its discretion in denying defendant's motion.  We affirm and

remand.

	On January 7, 2000, the M/V Mary B and her crew were performing dredging

operations in the waters of the Ohio River, at mile 973, between Pulaski County, Illinois, and

Ballard County, Kentucky, on the Kentucky side of the river.  Joshua R. Bird (plaintiff) was

a member of that crew.  Plaintiff alleges that he suffered a serious injury on the vessel when

he slipped in fuel that had accumulated during refueling.  He received immediate medical

treatment in Cape Girardeau, Missouri.  He received subsequent medical treatment in St.

Louis, Missouri; Randolph County, Illinois; Perry County, Illinois; and St. Clair County,

Illinois.  Plaintiff is a resident of Perry County, Illinois.  Defendant, plaintiff's employer, is

a corporate citizen of the State of Illinois, with its principal place of business in Monroe County, Illinois.

	On May 23, 2000, plaintiff filed suit in St. Clair County, Illinois, alleging a cause of

action against defendant under the Jones Act (46 U.S.C. §688 et seq. (2000)).  On June 23, 2000, defendant filed a forum non conveniens motion to dismiss pursuant to Supreme Court Rule 187 (134 Ill. 2d R. 187) and an alternative motion to transfer venue.  The trial court

denied defendant's motions to dismiss or transfer.  Defendant appeals pursuant to Supreme

Court Rule 306(a)(2) (166 Ill. 2d  R. 306(a)(2)), contending that the trial court abused its

discretion in refusing to dismiss or transfer venue.

	While conceding that jurisdiction and venue are proper in St. Clair County, defendant

contends that St. Clair County is not a convenient forum to litigate plaintiff's claim. 

Defendant claims that no significant connection exists between plaintiff's chosen forum and

the litigation and that a dismissal or transfer is therefore warranted based on private- and

public-interest factors.  Defendant contends that convenience factors favor an interstate

transfer to Ballard County, Kentucky, or in the alternative an intrastate transfer to Pulaski

County, Illinois.  We disagree and affirm the decision of the trial court.

	Forum non conveniens is " 'founded in considerations of fundamental fairness and sensible and effective judicial administration.' " First American Bank v. Guerine, 198 Ill. 2d 511, 515, 764 N.E.2d 54, 57 (2002) (quoting Adkins v. Chicago, Rock Island & Pacific R.R. Co., 54 Ill. 2d 511, 514, 301 N.E.2d 729, 730 (1973)).   The doctrine provides that a court " 'may decline to exercise jurisdiction over a case properly before it, whenever it appears that

there is another forum that can better serve the convenience of the litigants and promote the

ends of justice.' "  Lambert v. Goodyear Tire & Rubber Co., 332 Ill. App. 3d 373, 377, 773 N.E.2d 133, 137 (2002) (quoting Horn v. Rincker, 84 Ill. 2d 139, 149, 417 N.E.2d 1329, 1334 (1981)).  Accordingly, the doctrine presupposes the existence of more than one proper

forum with jurisdiction over a plaintiff's cause of action.  Niepotter v. Central Illinois Public Service Co., 303 Ill. App. 3d 632, 635, 707 N.E.2d 1278, 1280 (1999).

	There are two potential applications of forum non conveniens in Illinois: interstate forum non conveniens and intrastate forum non conveniens.  Lambert, 332 Ill. App. 3d at 377, 773 N.E.2d at 137.  The interstate branch of forum non conveniens considers whether Illinois is an appropriate state in which to litigate the controversy, and the intrastate branch of the

doctrine considers whether the cause is being litigated in the most convenient county within

Illinois.  Lambert, 332 Ill. App. 3d at 378, 773 N.E.2d at 137 (citing 3 R. Michael, Illinois Practice §14.1 (1989)).  The Illinois Supreme Court has instructed that the same

considerations of convenience and fairness apply equally when deciding motions based on

interstate forum non conveniens or intrastate forum non conveniens.  See Torres v. Walsh, 98 Ill. 2d 338, 456 N.E.2d 601 (1983).  However, for the purpose of deciding interstate forum non conveniens motions, a plaintiff's home forum is the state in which he or she lives, not the specific county of residence.  Gridley v. State Farm Mutual Automobile Insurance Co., 329 Ill. App. 3d 422, 429-30, 767 N.E.2d 896, 903 (2002) (relying on Simantz v. Prime Motor Inns, Inc., 213 Ill. App. 3d 813, 817, 573 N.E.2d 234, 236 (1991); see also Kwasniewski v. Schaid, 153 Ill. 2d 550, 553-54, 607 N.E.2d 214, 216 (1992).

	Whether a dismissal or transfer on the basis of forum non conveniens is warranted lies within the sound discretion of the circuit court.  Peile v. Skelgas, Inc., 163 Ill. 2d 323, 336, 645 N.E.2d 184, 190 (1994).  The circuit court's decision to either grant or deny a defendant's

forum non conveniens motion will not be overturned absent an abuse of discretion.  Peile, 163 Ill. 2d at 336, 645 N.E.2d at 190.  The role of the appellate court is not to substitute its

judgment for that of the trial court or even to determine whether the trial court exercised its

discretion wisely; but rather, its role is to determine whether the trial court abused its

discretion.  Niepotter, 303 Ill. App. 3d at 636, 707 N.E.2d at 1281.  An abuse of discretion occurs when the circuit court acts arbitrarily, fails to employ conscientious judgment, and ignores recognized principles of law.  Hernandez v. Karlin Foods Corp., 322 Ill. App. 3d 805, 807-08, 751 N.E.2d 27, 29-30 (2001).

	 In exercising its discretion, the circuit court must determine whether the defendant has established that convenience factors weigh strongly in favor of a dismissal or transfer. Walker v. American River Transportation, 277 Ill. App. 3d 87, 89, 660 N.E.2d 550, 552 (1996) (citing Griffith v. Mitsubishi Aircraft International, Inc., 136 Ill. 2d 101, 106, 554 N.E.2d 209, 211 (1990)).  The Illinois Supreme Court has recently reiterated that the factors

which guide the Illinois courts' consideration of convenience fall into two categories: the

private interests of the litigants and the interests of the public.  Guerine, 198 Ill. 2d at 516, 764 N.E.2d at 58.  The private-interest factors include the following: (1) the convenience of

the litigants, (2) the relative ease of access to sources of testimonial, documentary, and real

evidence, and (3) all other practical problems that make the trial of a case easy, expeditious,

and inexpensive–e.g., the availability of compulsory process to secure the attendance of unwilling witnesses, the cost to obtain the attendance of willing witnesses, and the ability to

view the premises where appropriate.  Guerine, 198 Ill. 2d at 516, 764 N.E.2d at 58; see Griffith, 136 Ill. 2d at 105-06, 554 N.E.2d 209; Bland v. Norfolk & Western Ry. Co., 116 Ill. 2d 217, 224, 506 N.E.2d 1291 (1987).  The public-interest factors include the following: (1)

the interest in deciding localized controversies locally, (2) the unfairness of imposing the

expense of a trial and the burden of jury duty on residents of a county with little connection

to the litigation, and (3) the administrative difficulties presented by adding further litigation

to court dockets in already congested jurisdictions.  Guerine, 198 Ill. 2d at 516-17, 764 N.E.2d at 58; see Griffith, 136 Ill. 2d at 105-06, 554 N.E.2d at 211.   

	Additionally, as the supreme court has repeatedly emphasized: " 'A further

consideration under the forum non conveniens doctrine is deference to the plaintiff's choice of forum.  A plaintiff's right to select the forum is a substantial one, and unless the factors weigh strongly in favor of transfer, "the plaintiff's choice of forum should rarely be

disturbed." ' "  Peile, 163 Ill. 2d at 337, 645 N.E.2d at 191 (quoting Griffith, 136 Ill. 2d at 106, 554 N.E.2d at 211 (quoting Jones v. Searle Laboratories, 93 Ill. 2d 366, 372-73, 444 N.E.2d 157, 160 (1982))).  But when the plaintiff does not reside in the forum where he or

she filed suit or the accident did not occur in the forum where he or she filed suit, the

plaintiff's choice is given less deference.  Dykstra v. A.P. Green Industries, Inc., 326 Ill. App. 3d 489, 493, 760 N.E.2d 1034, 1037 (2001).  Although the deference accorded to the

plaintiff's choice of venue in such instances is less, less is not synonymous with none. 

Dykstra, 326 Ill. App. 3d at 493, 760 N.E.2d at 1037; Elling v. State Farm Mutual Automobile Insurance Co., 291 Ill. App. 3d 311, 318, 683 N.E.2d 929, 934 (1997).  Regardless of the amount of deference given to the plaintiff's selection of a particular forum,

the defendant still bears the burden of showing that the plaintiff's selection of the forum is

inconvenient to the defendant and that another forum is more convenient to all parties.  Dykstra, 326 Ill. App. 3d at 493, 760 N.E.2d at 1038.  Furthermore, a "defendant seeking transfer from a forum that bears no practical connection to the litigation still shoulders the

responsibility of meeting this burden under the doctrine." Walker, 277 Ill. App. 3d at 89, 660 N.E.2d at 552. 

	The battle over forum thus begins with the plaintiff's choice already in the lead. 

Guerine, 198 Ill. 2d at 521, 764 N.E.2d at 61.  "In most instances, the plaintiff's initial choice of forum will prevail, provided venue is proper and the inconvenience factors attached to

such forum do not greatly outweigh the plaintiff's substantial right to try the case in the

chosen forum."  Peile, 163 Ill. 2d at 335-36, 645 N.E.2d at 190. 

	We will now undertake an examination of the private- and public-interest factors that

apply to both interstate and intrastate forum non conveniens motions.

Private-Interest Factors

	In support of its motion to dismiss or transfer, defendant filed a 29-page motion and

affidavit detailing the mileage for potential witnesses from each of their residences to each

of the three fora.  Defendant's affidavit listed 17 crew members as potential occurrence

witnesses, representing 5 different states and 15 different counties: 7 counties in Illinois, 3

counties in Missouri, 3 counties in Kentucky, 1 county in West Virginia, and 1 county in

Arkansas.  While one of the witnesses lives in St. Clair County, Illinois, none of the

witnesses live in either Ballard County, Kentucky, or Pulaski County, Illinois.  Defendant's

affidavit states that the situs of the injury is 15 miles from the Ballard County, Kentucky,

courthouse, 2 miles from the Pulaski County, Illinois, courthouse, and 160 miles from the St.

Clair County, Illinois, courthouse.  In the recent case of First American Bank v. Guerine, 198 Ill. 2d 511, 764 N.E.2d 54 (2002), our supreme court held as follows:

	"[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 the plaintiff's chosen forum, and no single county

enjoys a predominant connection to the litigation.  The balance of factors must

strongly favor transfer of the case before the plaintiff can be deprived of his chosen

forum."  Guerine, 198 Ill. 2d at 526, 764 N.E.2d at 64.

We have found that the logic of this reasoning applies equally to interstate motions of forum non conveniens.  Gridley, 329 Ill. App. 3d at 428, 767 N.E.2d at 902.  Applying the Guerine holding to the instant case–where witnesses are dispersed over five different states and 15

different counties–obviates the need to address specifically defendant's 29-page recitation

of mileage computations.  We, therefore, decline to engage " 'in a battle over minutiae' "

(Peile, 163 Ill. 2d at 335, 645 N.E.2d at 190 (quoting Peile v. Skelgas, Inc., 242 Ill. App. 3d 500, 522, 610 N.E.2d 813, 829 (1993) (Lewis, J., specially concurring))).

	Additionally, defendant lists nine medical care providers by affidavit: five are located

in Cape Girardeau, Missouri; one in St. Louis, Missouri; two in Randolph County, Illinois;

and one in Perry County, Illinois.  Plaintiff lists one additional medical care provider in St.

Clair County, Illinois.  There are no medical care providers in either Ballard County,

Kentucky, or Pulaski County, Illinois.  Of the 10 medical care providers listed by defendant

and plaintiff, five are located closer to St. Clair County, Illinois, than either Ballard County

or Pulaski County.  Moreover, since defendant listed only the names and addresses of

institutions and did not list any medical witnesses associated with these institutions, the court

will not speculate regarding the need for discovery or testimony at the trial.  See Gridley, 329 Ill. App. 3d at 426, 767 N.E.2d at 900.

	Defendant has not yet listed any corporate representatives as witnesses.  However, as

plaintiff argues and the trial court noted in its order, the fact that defendant has chosen Parks

Airport located in St. Clair County, Illinois, as a convenient place to house its corporate

aircraft mitigates against defendant claiming a burden regarding the travel arrangements of

these witnesses.  Nor can defendant be heard to complain about plaintiff's chosen forum

being inconvenient to plaintiff.  See Guerine, 198 Ill. 2d at 518, 764 N.E.2d at 59.  Defendant's argument that St. Clair County, Illinois, is inconvenient because of the inability

to compel the presence of witnesses from out of state is unconvincing when only 4 of the 17

occurrence witnesses are from Kentucky.  Moreover, all of the Kentucky residents are crew

members of defendant's vessel, and plaintiff can compel their appearance pursuant to

Supreme Court Rule 237(b) (166 Ill. 2d R. 237(b)).  On balance, Illinois would have the

ability to compel by subpoena power more of the listed witnesses than Kentucky would, since

7 of the 17 occurrence witnesses are from Illinois.  Further, the compulsory process is equally

available in St. Clair County and Pulaski County.

	St. Clair County is no more inconvenient for many of the witnesses than Ballard County, Kentucky, or Pulaski County, Illinois.  And because of the location of major

highways and the close proximity to St. Louis Lambert International Airport, St. Clair

County, Illinois, may be more conveniently accessible to the majority of witnesses–scattered

over 5 states and 15 counties–than rural Ballard County, Kentucky, or rural Pulaski County,

Illinois.  Defendant has failed to show that the convenience factors regarding the accessibility

or availability of witnesses, and the associated costs, strongly favor a transfer to either

Ballard County, Kentucky, or Pulaski County, Illinois.

	The fact that the accident occurred in Ballard County, Kentucky, bears little relevance

to the sources-of-proof factors.  The jobsite to which defendant refers is actually a marine

vessel that travels the inland waterways of the midwestern United States.  As the trial court

aptly noted, "[T]he site of the accident is purely fortuitous, and there would be no occasion

to visit the scene."  No other sources of proof are physically located in Ballard County,

Kentucky, or Pulaski County, Illinois.  Obtaining discovery of defendant's documentary

evidence from its corporate headquarters in Monroe County, Illinois, would be more

convenient to St. Clair County (an adjacent county) than either Ballard County, Kentucky,

or Pulaski County, Illinois.  While the five medical care providers in Cape Girardeau,

Missouri (where plaintiff received his initial medical care), are closer to both Ballard County,

Kentucky, and Pulaski County, Illinois, than St. Clair County, Illinois, the other five

providers are closer to St. Clair County, including one of plaintiff's treating physicians, who

resides in St. Clair County.  Additionally, nothing in the record indicates a need to visit any

of the medical care providers in order to obtain access to sources of proof.  In this age of

ever-increasing modes of communication that are regularly used by professionals, medical

records are readily available.  

	It is improbable that a jury view of the vessel would be necessary.  Even if a jury view

were appropriate, there is no reason to believe that the vessel would any more likely be in the proximity of Ballard County, Kentucky, or Pulaski County, Illinois, than St. Clair County,

Illinois, given the transient nature of the vessel's work.  Regarding the issue of case

complexity, we defer to the trial court's assessment: "[T]his court has tried dozens of Jones

Act cases, and they are not complex litigation."  In considering these other factors that make

this trial easy, expeditious, and inexpensive, we do not find any factors that strongly favor

a transfer.

	Public-Interest Factors

	Defendant's claim that there is no significant connection between plaintiff's chosen

forum, St. Clair County, Illinois, and the litigation obfuscates the distinction between the

doctrines of interstate and intrastate forum non conveniens.  As previously stated, when a court considers an interstate forum non convenience motion, a plaintiff's "home forum" is that of his or her state of residence, not his county of residence within the state.  See Gridley, 329 Ill. App. 3d at 429-30, 767 N.E.2d at 903.  "[A] plaintiff who is a resident of Illinois at the

time he is injured can be said to have an expectation of protection from the laws of Illinois

as a citizen of the State of Illinois."  Carona v. Illinois Central Gulf R.R. Co., 145 Ill. App. 3d 880, 882, 495 N.E.2d 1364, 1366 (1986).  Where the plaintiff's chosen forum is his or her

home forum, the plaintiff's choice will be given substantial deference.  McClain v. Illinois Central Gulf R.R. Co., 121 Ill. 2d 278, 289, 520 N.E.2d 368, 372 (1988).  As a resident of Perry County, plaintiff has a clear connection with his chosen "home forum" of Illinois. 

Similarly, we also find that defendant–as a corporate citizen with its principal place of

business in Monroe County, Illinois–has Illinois connections.  See Skidmore v. Gateway Western Ry. Co., 333 Ill. App. 3d 947, 776 N.e.E.2d 333No. 5-01-0710 (September 9, 2002).  The connection that the State of Kentucky has to the litigation is by virtue of the accident occurring on the Kentucky side

of the Ohio River rather than the Illinois side.  While characterized by the trial court as

"fortuitous," this connection does provide some interest since it is the situs of the injury.  We believe that the citizens of both states have an interest in resolving this dispute and that

neither would be unduly burdened.  

	Defendant's alternative forum for transfer, Pulaski County, Illinois, bears no practical

connection to the litigation under an intrastate analysis.  It is neither the home county of

plaintiff nor the home county of defendant, nor is it the situs of the injury.  From the

standpoint of a localized interest in the dispute, there is little difference between plaintiff's

chosen forum of St. Clair County and defendant's choice of Pulaski County, with the

exception that the trial court found that there are three potential witnesses from St. Clair

County.  Defendant takes exception with this finding and argues that there should be no

consideration given to two of the three witnesses because the existence of those witnesses

was not supported by affidavit in compliance with Supreme Court Rule 187.  This rule states

in part: "Such motions may be supported and opposed by affidavit.  In determining issues of

fact raised by affidavits, any competent evidence adduced by the parties shall also be

considered."  134 Ill. 2d R. 187.  While the language of the rule clearly states that the filing

of affidavits is optional, the wisdom of filing affidavits in support of or opposition to factual

issues raised in an affidavit cannot be overemphasized.  See Gridley, 329 Ill. App. 3d at 429- 30, 767 N.E.2d at 903.  We find, however, that defendant's argument fails.  Absent a

transcript of the proceedings or a bystander's report (which is the appellant's duty to file if

he or she desires it to be included in the report of proceedings (166 Ill. 2d R. 323(c))), we are

at a loss to understand what evidence, if any, was considered by the trial judge, and we will

not speculate in that regard.  Moreover, evidence is only necessary if an affidavit brings a

factual issue into dispute.  Because defendant's affidavit was silent on the issue of any

witnesses plaintiff might call, there was no dispute regarding plaintiff's listed witnesses to

be resolved by evidence.

	Weighing the relevant factors, we find that none of the three fora bears a predominate connection with the litigation.  Guerine, 198 Ill. 2d at 526, 764 N.E.2d at 64.

	Defendant finally argues that the courts of St. Clair County are congested, as shown

by the 32.6-month average lapse of time between the date of filing and the date of verdict for

the 2,887 law cases filed in the county in 1997.  Defendant contends that the courts of

Ballard County, Kentucky, are much less congested because they disposed of 191 law cases

in the same year.  However, without knowing the average number of months between filing

and verdict in Ballard County, we have no basis for meaningful comparison.  Therefore,

defendant's challenge to plaintiff's chosen forum on the basis of congestion is entitled to

almost no weight because the evidence does not establish that the other forum's docket would

facilitate a more expeditious resolution of the litigation.  See Turner v. Jarden, 275 Ill. App. 3d 890, 898, 656 N.E.2d 1125, 1130 (1995) (citing Brummett v. Wepfer Marine, Inc., 111 Ill. 2d 495, 499, 490 N.E.2d 694, 698 (1986)).  We again find it appropriate to defer to the trial

court's superior position to assess any burden this case may place on its docket: "the Courts

of St. Clair County are not congested, with judges, jurors, and courtrooms being available

during every jury setting."  See Boner v. Peabody Coal Co., 142 Ill. 2d 523, 568 N.E.2d 883 (1991).  Defendant does not offer any argument regarding the relative congestion of Pulaski

County courts.

	We commend the trial court for its record evidencing careful consideration of the

relevant forum non conveniens factors, allowing this court to make an informed decision.  Under both an interstate analysis and an intrastate analysis, we hold that the convenience

factors do not strongly favor either a dismissal or a transfer and that plaintiff's choice of

forum should not be disturbed.  Accordingly, we find that the trial court did not abuse its

discretion.

	CONCLUSION

	For the foregoing reasons, the circuit court's order denying defendant's motion to dismiss or transfer is affirmed.

	Affirmed; cause remanded. 

	MAAG, P.J., and HOPKINS, J., concur.

	NO. 5-01-0113

	IN THE

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

___________________________________________________________________________

JOSHUA R. BIRD, 				)	Appeal from the

							)	Circuit Court of

	Plaintiff-Appellee, 				)	St. Clair County.  

							)

v.							)	No. 00-L-327

							)

LUHR BROTHERS, INC., 			)	Honorable

							)	Stephen M. Kernan, 

	Defendant-Appellant.			)	Judge, presiding.  

___________________________________________________________________________

Opinion Filed:	October 29, 2002

___________________________________________________________________________

Justices:	Honorable Melissa A. Chapman, J.

	Honorable Gordon E. Maag, P.J., and

	Honorable Terrence J. Hopkins, J.,

	Concur

___________________________________________________________________________

Attorneys	Floyd E. Crowder, Timothy A. Gutknecht, Crowder & Scoggins, Ltd.,

for	121 West Legion Avenue, P.O. Box 167, Columbia, IL  62236

Appellant	

___________________________________________________________________________

Attorneys	Bruce R. Cook, Mary M. Brauer, Cook, Ysursa, Bartholomew, Brauer

for	& Shevlin, Ltd., 12 West Lincoln Street, Belleville, IL 62220

Appellee	

___________________________________________________________________________