By:  Carson Griffis*

In Miller v. Thom, 2021 IL App (4th) 200410, the appellate court addressed whether forum non conveniens applied to a plaintiff's error in e-filing her complaint in the wrong county.

The plaintiff e-filed her medical malpractice complaint in the circuit court of Sangamon County, but the complaint's caption indicated that it was being brought in St. Clair County.  The defendants filed their appearances in Sangamon County and a motion to dismiss the complaint for failing to attach the necessary affidavit under section 2-622 of the Code of Civil Procedure.  735 ILCS 5/2-622.  In response, the plaintiff filed the requisite affidavit in Sangamon County.

The plaintiff then filed a motion to transfer venue, stating that her attorney inadvertently selected Sangamon County rather than St. Clair County in the Odyssey e-filing system.  The circuit court denied the motion but gave the plaintiff an opportunity to file a forum non conveniens motion instead.   The plaintiff then filed a forum non conveniens motion, which the circuit court granted.

On appeal under Illinois Supreme Court Rule 306(a)(2), which allows for interlocutory appeals from orders granting or denying forum non conveniens motions, the appellate court reversed the circuit court's transfer order.  Leaving aside the question of whether a plaintiff could bring a forum non conveniens motion at all, the court held that the plaintiff's motion did not implicate that doctrine because forum non conveniens applies when there is more than one proper venue for an action, but one venue is more convenient than the other.  In this case, Sangamon County was not a proper venue because it had no connection to the lawsuit -- the only reason that Sangamon County was involved was plaintiff's e-filing mistake.  So this was not a circumstance where both Sangamon and St. Clair Counties were appropriate venues, but St. Clair County was more convenient. 

The court also held that the venue provisions of the Code of Civil Procedure did not justify the transfer of plaintiff's action.  The court noted that a defendant must file a motion to transfer venue "on or before the date upon which he or she is required to appear or within any further time that may be granted him or her to answer or move with respect to the complaint."  735 ILCS 5/2-104(b).  Because that time had elapsed by the time the plaintiff moved to transfer venue, the court held that it would be "unjust" to allow the plaintiff to seek to transfer venue, especially since the venue statute is "designed to protect defendants."

*Carson Griffis is an Assistant Attorney General in the Civil Appeals Division of the Office of the Illinois Attorney General.  No comments made in this post are made on behalf of the Office of the Illinois Attorney General, nor do they reflect the views or opinions of the Office of the Illinois Attorney General.