United States: Guest Post – No Way For Non-Resident Plaintiffs To "MacGyver" Their Way Into Illinois Court Due To Forum Non Conveniens

Last Updated: January 17 2018
Article by James Beck

Today's post is another guest post from Kevin Hara, of Reed Smith, who is on his way to becoming a semi-regular blog contributor. This post is about forum non conveniens, which is more discretionary, and less enforceable than personal jurisdiction as a limitation on plaintiff-side (or even defense-side) forum shopping, but which, as Kevin's post demonstrates, is still better than nothing. As always with our guest posts, the author deserves 100% of the credit, and any blame, for what follows.

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As a child of the 80s (slight pause for the chuckling and/or groaning here), there are so many images that flash through one's mind as we reflect, fondly, for the most part, on that decade in discussing an Illinois appellate court's decision in McIver, et al., v. American Medical Systems, Inc., et al., 2017 IL App (5th) 170011-U, 2017 WL 6327143 (Ill. App. Dec. 8, 2017), sending litigation tourists on an about-face based on the doctrine of forum non conveniens. Though spelled differently, this McIver case makes us recall another MacGyver, the hit 80s television show (which, incidentally, my wife and I enjoy watching together in reruns.) However, before delving into MacGyver/McIver, it is impossible to not to discuss some pop culture references from that era, even though we could not explore even the tip of the 80s iceberg: but there was the music – from pop, Michael Jackson, Madonna, Prince, to rock bands known for ballads, a la Journey, Bon Jovi, Van Halen, Duran Duran and too many others to name, including the hair bands, the rise of rap music, heavy metal, and a bevy of one-hit wonders. There was the fashion – perhaps stretching that word a bit – legwarmers, parachute pants, camouflage, perms, bangles, hairspray, and shoulder pads! Who can forget the movies? Back to the Future, the Indiana Jones trilogy (not including Crystal Skull which came much later, apologies Shia Labeouf), ET, The Shining, Empire Strikes Back, Return of the Jedi, Wall Street, The Color Purple, Beverly Hills Cop, Karate Kid, Sly, Arnie, Bruce Willis, all things explosions and action! and far more. The events. Lakers v. Celtics. Air Jordan. The tragic Challenger explosion. Chernobyl. Mount Saint Helens (not all the explosions were in the movies, unfortunately). Macintosh Computers. Windows. The fall of the Berlin Wall. Perestroika. Prozac. CDs. The Oprah Winfrey Show. Rubik's Cube. All of the above, and so much more.

Before we disappear down a virtual "Who Framed Roger Rabbit?" hole, let's revisit the classic 80s television series, "MacGyver," starring Richard Dean Anderson that is apropos to our discussion today. MacGyver was iconic for numerous reasons, with Anderson as the title character, a secret agent for the fictional Department of External Services, physicist, special forces veteran, and problem solver extraordinaire. Although MacGyver undoubtedly qualifies as campy, far-fetched, and perhaps melodramatic, it was also imaginative, witty, clever, fun, and at times, touching. MacGyver famously extricated himself – and the world – from the brink of doom on countless occasions using ordinary objects, often including his ever-trusty Swiss Army knife (rather than, say, a sonic screwdriver), to perform extraordinary feats. For instance, MacGyver is now officially defined in the Oxford English Dictionary, as a verb meaning "Make or repair (an object) in an improvised or inventive way, making use of whatever items are at hand." See, perhaps the most notable real-world example, here. Some of MacGyver's most amazing inventions or accomplishments included using candlesticks, a rubber mat, and an electrical cord to improvise a defibrillator; smashing a pair of binoculars, removing a prism, and deflecting a laser beam back to the emitter, destroying it; plugging a sulfuric acid leak with chocolate, containing sugars which react with acid to form elemental carbon, and a gummy residue (tested successfully by mythbusters); and using jumper cables with coins in the teeth, wiring them to a generator, an creating an arc welder (which, incidentally also proved to be functional.)

But not even MacGyver, despite his quick thinking and unparalleled toolbox, could "MacGyver" jurisdiction over the defendant in the McIver case for the Maryland resident plaintiffs. McIver was yet another multi-plaintiff complaint filed in 2012 in Illinois state court, involving 75 plaintiffs from 23 states, (only one from Illinois), joined in a single action, alleging product liability claims in connection with prescription pelvic mesh products manufactured by AMS. Id. at *1. As with most other multi-plaintiff complaints, the only connection among plaintiffs is that they all received pelvic mesh implants. The defendant filed a motion to sever the claims of the non-resident plaintiffs, arguing misjoinder, and concurrently filed a motion to dismiss for wrongful venue. Id. The parties agreed that the defendant would answer or respond to the complaint after resolution of the motions, as ordered by the court. In March 2013, the trial court denied defendant's motion to sever, apparently reasoning that venue was proper based solely on the presence of one Illinois plaintiff, with the order stating "that AMS would have to defend a case in St. Clair County regardless of whether the motion to sever were granted." Id. Shades of the reversed California Supreme Court BMS decision. The plaintiffs prepared the order, which significantly failed to provide a deadline for the defendant to answer or respond to the complaint, nor did the court order such an answer. As an aside, given what we know of St. Clair County, it comes as no surprise that the trial court denied the motions to sever or dismiss. As indicated, had plaintiffs filed McIver this year, the defendant very well could have moved to dismiss for lack of jurisdiction under BMS.

Time passed, and 73 of the 75 plaintiffs settled with the defendant, leaving only Paula and Earl Conway of Essex, Maryland. Id. at *2. After the court set the case for trial, the defendant, now faced with only nonresident plaintiffs, filed a motion to dismiss based on forum non conveniens (this was still pre-BMS), arguing that "'the public and private interest factors relevant to the consideration of its motion strongly favored dismissing [plaintiffs' action]'" such that it could be refiled in Maryland. Id. The overwhelming majority of relevant events, including plaintiff's mesh implant, her treating physicians, and medical records were located in Baltimore, and fact witnesses including friends, family, and coworkers "would be expected to live in or around Baltimore County." Id. After receiving answers to interrogatories confirming that plaintiffs' fact witnesses all resided outside the state of Illinois, the defendant supplemented its motion, asserting that plaintiffs' case had "absolutely no connection" to Illinois. Id. at *3.

It being St. Clair County, the defense lost again, as the trial court denied the motion without explanation. Id.

On appeal, the defendant argued that the trial court abused its discretion in denying the forum non motion (with which we wholeheartedly agree), and plaintiffs claimed that the motion was untimely under Illinois Supreme Court Rule 187(a). That rule mandates that any forum non conveniens ("FNC") motion must be filed not later than 90 days after the last day that a party may file its answer. Id. The appellate court noted that the trial court ordered the parties to meet and confer, but did not order the defendant to file an answer and, since no answer was filed, the FNC motion was timely under Rule 187(a)'s "unambiguous" deadline. Id.

Strike one.

Plaintiffs claimed defense-side "gamesmanship" despite their own drafting the scheduling order at issue, claiming that the defendants should have filed the FNC motion at the "earliest opportunity." Id. at *4. Again, the appellate court disagreed, finding that the defendant brought the motion with "reasonable and appropriate promptness," noting that the parties had tentatively agreed to the filing deadline for AMS's answer, but "[a]t no point did the plaintiffs seek an order requiring" the defendant to answer by a specific date. Id.

Strike two.

Ultimately, the court went further, and stated that "even assuming that [the defendant] had filed an answer in 2013," it would still conclude that the 2016 forum non conveniens motion was timely. Id. The court's reasoning was simple – the case started with 75 plaintiffs from 23 states, and only after all but the two Maryland plaintiffs were dismissed, could the defendant have "had a clear and valid basis for seeking" transfer to that forum. Id. at *5.

Strike three.

Additionally, the appellate court found no prejudice to the plaintiffs, despite their case being pending more than four years when the defendant filed motion. Plaintiffs provided no discovery during all that time, and only later – more than four years after filing – did plaintiffs' initial discovery responses confirm that plaintiffs' witnesses resided predominantly in Maryland. Id.

Nor was the court sympathetic to plaintiffs' claim that transfer would cause delay. Plaintiffs' own fault, the court found, because any plaintiff filing in a foreign jurisdiction (litigation tourists) and combining his/her claims with other claimants in one action takes a "calculated risk" that those choices might result in dismissal or delay. Id. The court put it bluntly: "[t]o the extent that the present case languished in the circuit court, it did so without objection and with the plaintiffs' implicit consent." Id. (emphasis added)

Finally, reaching the merits of the FNC issue, the court considered both the private and public interest factors, along with plaintiffs' choice of forum, which was "much less reasonable," because the vast majority of relevant events occurred outside of St. Clair County. Id. at *7. Neither the defendant nor the plaintiffs were Illinois residents, and the convenience of the parties was neutral. Id. However, access to evidence "strongly favor[ed] a transfer" to Maryland, given the location of most of the witnesses in that state. Id. Likewise, compulsory process would be impossible in Illinois, and the costs of securing witnesses overwhelmingly supported transfer. Id. Finding that the practical applications of the trial were a nonfactor, the court turned to the public interest factors, concentrating on which state, Illinois or Maryland, had a greater interest in the litigation. Id. at *8. The fact that the plaintiff's mesh implant surgery occurred in Maryland, combined with the unfairness of imposing jury duty on Illinois residents, favored transfer to avoid burdening its taxpayers with a matter "otherwise unrelated to their state." Id. In sum, the appellate court ruled that the trial court erred in denying the forum non conveniens motion because Illinois had "no relevant or significant factual connections to the case." Id. at *9.

Thankfully, the appellate court considered the facts – in conjunction with some common sense – and the applicable law, and reversed and remanded with instructions to dismiss the case. Even though this decision is non-precedential, it puts some handwriting on the wall. Litigation Tourists Go Home, even from St. Clair County. And if not FNC, personal jurisdiction under BMS is waiting in the wings. Not even MacGyver, with his remarkable ingenuity, endless amounts of duct tape, Swiss Army knives, and any assortment of household items, could craft a way back into Illinois state court for these litigation tourist plaintiffs.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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