Do you HAVE to defend in Madison County?

Under the glare of nationwide publicity, the Illinois Supreme Court has fired a shot at forum-shopping abuses -- tactics by plaintiff lawyers that have led some commentators to describe Madison County as "the lawsuit capital of the world."

Numerous national publications have commented on the plaintiff-friendly jurisdiction, and the willingness of local judges to entertain cases that have no connection to the county except that the defendant does some business there.

In Dawdy v. Union Pacific Railroad Co., Docket No. 93710, 2003 Ill. LEXIS 1418 (Aug. 21, 2003), the court has just ruled on a personal injury action filed in Madison County. Plaintiff had been driving a tractor in Macoupin County (adjacent to Madison County) when he collided with a truck that was being driven for the Union Pacific Railroad. He sought damages from the truck driver and railroad.

The defendants filed a motion to transfer venue from Madison County to Macoupin County. They pointed out that plaintiff resides in Greene County, the accident occurred in Macoupin County, the truck driver resides in Macoupin County, and Union Pacific is a Delaware corporation with its principal place of business in Omaha, Nebraska.

Plaintiff, on the other hand, argued that venue in Madison County is just as convenient as in Macoupin County since, among other things, Union Pacific not only "does business" in Madison County -- and thus "resides" there for venue purposes under the Illinois venue statute, 737 ILCS 5/2-101 and 5/2-102(a) -- it also operates a facility there that employs numerous citizens of the county, including some who would be witnesses in the case. Further, 14 of the 18 total potential witnesses reside in neither Madison County nor Macoupin County and, therefore, would be required to travel regardless of where the case were tried.

According to plaintiff, his choice of forum was entitled to deference and the defendants failed to show that the factors in a forum non conveniens analysis strongly favored transfer.

The circuit court denied the motion to transfer and the appellate court initially reversed, but then affirmed, citing First American Bank v. Guerine, 198 Ill.2d 511 (2002). The Supreme Court, however, reversed, saying "[C]ourts have never favored forum shopping"

Although deference to the plaintiff's choice of forum is one factor to consider, it "is not entitled to the same weight or consideration in all cases," and when a plaintiff files somewhere other than his home forum, such a choice "deserves less deference."

Moreover, when the plaintiff is foreign to the forum chosen and the action that gives rise to the litigation did not occur in the chosen forum, "it is reasonable to conclude that the plaintiff engaged in forum shopping to suit his individual interests, a strategy contrary to the purposes behind the venue rules."

In addition, the fact that Union Pacific conducts significant business in Madison County is not dispositive of the analysis:

Merely conducting business, or maintaining a post office box, in Madison County does not affect the forum non conveniens issue. It is assumed on a forum non conveniens motion that the plaintiff's chosen forum is a proper venue for the action. If defendant Union Pacific did no business in Madison County, that county would have been an improper venue for the case. A forum non conveniens motion causes a court to look beyond the criteria of venue when it considers the relative convenience of a forum. [Emphasis added.]

The court's conclusion in Dawdy stands in stark contrast to the court's previous conclusion in Guerine, rendered barely one year earlier. In Guerine, a Kane County resident was killed in an accident in DeKalb County. The lawsuit was filed in Cook County. One of the individual defendants was a Cook County resident and the other defendant resided in Indiana but would have to drive through Cook County to trial in either Kane or DeKalb County. The potential witnesses were scattered among several counties in the same area of the state, including Kane and DeKalb Counties, although several of them filed affidavits indicating a willingness to travel to Cook County for trial.

The majority in Dawdy distinguished Guerine by saying that "where 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 plaintiff may not be deprived of his or her chosen forum." However, the dissenter, Justice Kilbride, seems more cynical and sees the majority as anti-Madison County and pro-business:

The only distinguishing factors between these cases are that Guerine was filed in Cook County rather than Madison County, and plaintiff's chosen forum in Guerine happened to be the residence of the individual defendant rather than residence of the corporate defendant.

In either event, the court's opinion in Dawdy is sure to be welcome reading for companies which have lamented their struggle in Madison County.