Stack favors transfer, but denies untimely request

Ann Knef Nov. 30, 2005, 5:45am

Judge Daniel Stack

It hasn’t taken long for recent “forum” decisions by the Illinois Supreme Court to have meaningful impact on the lower courts.

This week in Madison County, two forum non conveniens rulings have been based on the high court’s landmark Avery v. State Farm and Gridley v. State Farm decisions. In each case, justices chased Louisiana plaintiffs out of Illinois courts.

On Tuesday, Madison County Circuit Judge Daniel Stack indicated he would have transferred an asbestos case to Cook County, if the attorney for defendant Union Carbide had not waited too long to file the motion.

“…Considering our Supreme Court’s recent pronouncements in the Avery and Gridley cases…this is a case which would more likely have been transferred to Cook County had the timing been more appropriate,” Stack wrote in a Nov. 29 order denying the motion to transfer O’Connell v. AW Chesterton, Union Carbide, to Cook County.

Stack relied on Dawdy v. Union Pacific in which the Illinois Supreme Court held that a "foreign plaintiff's" forum choice deserves less deference if it is not the plaintiff's home.

"The further reading of the Dawdy case makes it clear that our Supreme Court does not condone such 'forum shopping'," Stack wrote.

"This case involves some similar facts....The plaintiffs in this case have had no contact with Madison County except for the bringing of this lawsuit."

According to Stack's order, Edwardsville defense attorney Robert H. Shultz, Jr. of Heyl Royster did not file a transfer motion within an appropriate 90-day period.

Stack stated that public interest factors “somewhat” favored transfer, though it was not clear that the Madison County docket is “more burdened” than Cook County’s.

“The real problem is that this case is set for trial in February and it is likely to cause much further delay to transfer the case at this late date,” Stack wrote.

Union Carbide requested a hearing on motion to transfer in July 2005, a month before an expedited trial had been set, according to the order.

“The continuance of this matter appears to have helped this defendant, because had this been argued back in July, the timeliness issue would have certainly made this decision an easier one,” Stack wrote.

“Considering the fact that other defendants had the requisite information to appropriately plead their motions several months prior, Union Carbide’s ‘motion’ is not timely.”

The trial is scheduled to begin in February 2006.

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Organizations in this Story

Heyl Royster
124 SW Adams St
Peoria, IL 61602

Union Pacific
1400 Douglas St
Omaha, NE 68179

Illinois Supreme Court
200 E Capitol Ave
Springfield, IL 62701

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