MADISON COUNTY UPDATE: Judge Stobbs denies FNC motion

Posted: 5/15/2017

Today is the trial date in the Everett Lile asbestos case, Ct. No. 16-L-318. One of the defendants remaining in the case presented its motion to dismiss pursuant to forum non conveniens, arguing that the case belonged in Lee County, Iowa, where the alleged exposures took place. The court (J. Stephen Stobbs) denied the motion stating that only one defendant was asking for the move based on forum and the court ruled that there must be a substantial majority of the defendants asking for a change of forum in order to give assurance to the plaintiff that the case will not be moved again once it is refiled in another jurisdiction. The court stated that the current forum must be convenient for everyone else if no one else is joining in the motion. Judge Stobbs mentioned in support of his ruling that he was relying on a prior case (Laverty v. CSX, 404 Ill.App.3d 534 (5th Dist. 2010)) in which that court relied on the fact that numerous defendants had filed forum motions in that case when it rejected plaintiff's claims that only one defendant actually pursued a change of forum. Judge Stobb's interpretation of that part of the case was that a substantial majority of the defendants must agree on a change of forum, notwithstanding the numerous other factors taken into consideration in that matter.

Illinois law does not require a consensus among the parties that the change of forum is warranted. The criteria for granting a forum non conveniens motion has been carefully laid out by the higher courts, including the Illinois Supreme Court in Dawdy v. Union Pacific RR Co., 207 Ill.2d 167, 797 N.E.2d 687 (2003) and its progeny. However, nowhere in the case law does it say that plaintiffs are entitled to an assurance that another FNC motion will not be filed in the new forum. This is particularly relevant in interstate forum non conveniens situations where plaintiffs are essentially free to re-file the matter wherever they wish, i.e. even in other forums that may be just as unrelated to the litigation as the current forum. In such situations, a follow-up forum motion would likely be warranted.

With today's ruling, the Madison County Circuit Court has essentially made it clear that barring a substantial majority of the defendants all seeking a change of forum, the court will not be granting any changes of forum on the request of any single defendant or even small groups of defendants for that matter. Furthermore, the court's ruling has also suggested that even in such situations where a "substantial majority of the defendants" pursue the issue, the court will apparently be requiring an assurance from the defendants that no such motions will be sought in the new forum where the plaintiff refiles the case. How this court will ultimately define what constitutes a "substantial majority of the defendants" remains to be seen.