dissenting:
Unlike the majority, I do not believe that the defendant, Consolidated Rail Corporation (Conrail), has forfeited the right to seek dismissal of the plaintiffs action on grounds of forum non conveniens. The trial judge erred in denying Conrail’s present motion, and I would reverse the judgment of the court below.
The plaintiff originally brought the present action in the circuit court of Madison County, seeking recovery under the Federal Employers’ Liability Act (45 U.S.C. §§51 through 59 (1988)) (FELA) for injuries allegedly caused by his exposure to repetitive trauma during the years of his employment with the railroad, from 1955 to 1991. Conrail moved for dismissal of the suit initially on the ground that it was barred by FELA’s three-year statute of limitations (45 U.S.C. § 56 (1988)) and later on the ground of forum non conveniens. Without ruling on the statute of limitations question, the trial court dismissed the action on grounds of forum non conveniens. The plaintiff then filed his action in Missouri, in the circuit court of the City of St. Louis. After Conrail made unsuccessful challenges in Missouri to that court’s jurisdiction and to the timeliness of the suit, the plaintiff returned to the circuit court of Madison County and sought leave to have the case reinstated in Illinois. In support of that request, the plaintiff contended that Conrail’s objections in the Missouri court violated the conditions of the order dismissing the Illinois action that the defendant would accept service in the new forum and would waive any statute of limitations defense. The Illinois court reinstated the plaintiff’s action over Conrail’s objection, and the plaintiff subsequently dismissed the pending Missouri action. Conrail again moved for dismissal of the Illinois action on forum non conveniens grounds, and the present appeal is from the denial of that motion.
There is no link between this case and Madison County, and the trial judge should have granted Conrail’s present forum non conveniens motion, just as he had granted the defendant’s initial motion. According to the materials contained in the record, the plaintiff lived in Knox, Indiana, when he originally filed suit in Madison County; by the time the action was reinstated in Madison County, the plaintiff had moved to North Judson, Indiana. Both communities are located in northern Indiana and are approximately 300 miles from Edwards-ville, the county seat of Madison County. The plaintiff was employed by Conrail in northern Indiana, and it appears that all the occurrence and medical witnesses reside in that area as well. There is, in brief, no practical connection between the present suit and Madison County. That jurisdiction and venue will lie there — Conrail’s tracks run through the county — is of no consequence here, for the doctrine of forum non conveniens assumes the existence of more than one forum in which the cause may be tried. Vinson v. Allstate, 144 Ill. 2d 306, 310 (1991).
Although a plaintiffs choice of a forum is entitled to deference, that deference is lessened when the plaintiff is not a resident of the place selected. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-56, 70 L. Ed. 2d 419, 436, 102 S. Ct. 252, 266 ("When the home forum has been chosen, it is reasonable to assume that this choice is convenient. When the plaintiff is foreign, however, this assumption is much less reasonable”). In deciding whether an action should be dismissed on grounds of forum non conveniens, a court will consider the private interests of the litigants as well as matters of concern to society at large, In this case the relevant criteria, including the. location of witnesses and other sources of proof, and the btirden imposed on the forum of determining a foreign case (see People ex rel. Compagnie Nationale Air France v. Giliberto, 74 Ill. 2d 90, 110-11 (1978), quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 91 L. Ed. 1055, 1062-63, 67 S. Ct. 839, 843 (1947)), strongly favor Indiana as the more convenient location, and the plaintiff’s action should again be dismissed on grounds of forum, non conveniens.
The majority nonetheless upholds the circuit court’s decision denying Conrail’s latest forum non conveniens motion. The majority agrees with the plaintiff that. Conrail, by raising a statute of limitations defense to the Missouri suit, failed to comply with the conditions of the earlier order dismissing the plaintiff’s action. The majority thus concludes that Conrail cannot raise a fresh challenge to the plaintiff’s selection of a forum.
Supreme Court Rule 187(c)(2).states:
"Dismissal of an action under the doctrine of forum non conveniens shall be upon the following conditions:
(i) if the plaintiff elects to file the action in another forum within six months of the dismissal order, the defendant shall accept service of process from that court; and
(ii) if the statute of limitations has run in the other forum, the defendant shall waive that defense. ■ ■
If the defendant refuses to abide by these conditions, the cause shall be reinstated for further proceedings in the court in which the dismissal was granted.” 134 111. 2d R. 187(c)(2).
As a preliminary matter, I agree with the majority that the six-month time limit contained in subsection (i) applies as well to subsection (ii). I do not agree with the court, however, that Conrail violated one of the conditions of the original dismissal order by raising in Missouri the same objection to the timeliness of the plaintiffs action that Conrail had previously raised in Illinois.
Contrary to the majority’s view, there is no reason to require a successful forum non conveniens movant to forgo in the new forum a statute of limitations defense that it could have raised at the original place of trial. The two grounds for dismissal are independent of each other, and there is no basis for subordinating one to the other. As Conrail observes, the plain purpose of the requirement of Rule 187(c)(2)(ii) regarding waiver of the statute of limitations is to protect the plaintiff from having a viable action transferred to a forum where it would be instantly time-barred, as a result of either the passage of time since the action was filed or the application of a shorter limitations period in the receiving state. Thus, the rule will preclude a defendant from raising in the new forum a statute of limitations defense that was not available in the original forum. In the present case, however, the plaintiff’s action is governed by the same three-year limitations period wherever it is filed. In the Missouri court Conrail merely sought to raise the same defense it had already raised in Illinois, and clearly the purpose of the rule is not implicated in these circumstances.
After today’s decision, defendants contemplating a forum non conveniens motion are well advised to seek that relief only after they are certain that the plaintiff’s suit is timely. As the majority acknowledges, its interpretation of Rule 187 effectively requires a defendant to first obtain a ruling on a statute of limitations defense before seeking dismissal of the action because of forum non conveniens. Raising the limitations defense in the new forum will, regardless of the outcome there, enable the plaintiff to return the case to the original forum. Ironically, the statute of limitations question must therefore be resolved by a court that might have no connection at all with the controversy.
In this manner, too, the majority erects a strong disincentive to the prompt resolution of forum non conveniens questions. If the price of a successful forum non conveniens motion is the waiver of any objection to the timeliness of the plaintiff’s action, many defendants who still seek transfer to a more convenient place will likely postpone making those requests until the time allowed by Rule 187(a) for such motions is about to expire, or at least until they believe that there is no limitations defense available in the original forum.
Conrail now finds itself back in the circuit court of Madison County, a demonstrably inconvenient forum, as evidenced by the trial judge’s earlier decision granting the railroad’s initial forum non conveniens motion. "Forum non conveniens is a doctrine that is founded in considerations of fundamental fairness and sensible and effective judicial administration.” Adkins v. Chicago, Rock Island & Pacific R.R. Co., 54 Ill. 2d 511, 514 (1973). The majority’s result in this case is contrary to the purposes of the doctrine and inconsistent with fundamental fairness and sensible and effective judicial administration.
JUSTICE HEIPLE joins in this dissent.