Two major challenges to venue that a defendant may bring forth in Illinois courts are: motion to transfer for improper venue and motion to transfer for forum non conveniens. Each is based upon the premise that the plaintiff’s chosen venue is flawed in some way. While the underlying premise for both challenges is similar, the time limits for filing these motions and the degree of discretion the court has in granting a motion based on one of these theories differ significantly.
These challenges to venue throw a lifeline to defendants when there is reason to believe that a plaintiff has engaged in “forum shopping”—the strategic selection of a court perceived to offer a more favorable outcome. Plaintiffs often seek out jurisdictions with little to no connection to their case due to that venue’s reputation for plaintiff-friendly verdicts or larger settlement awards. Illinois courts, however, have long disfavored forum shopping, recognizing the importance of adhering to the statutory code and fundamental fairness that requires disputes to be heard in a forum with genuine connection to the case. By raising objections based on improper venue and forum non conveniens, defendants are given an important procedural lifeline to ensure litigation proceeds in an equitable and appropriate forum.
Motion to Transfer Pursuant to Improper Venue
The defendant’s right to transfer based on improper venue is granted under 735 ILCS 5/2-106, which states, “If a motion to transfer is allowed on the ground that the action was commenced in the wrong venue, the cause shall be transferred to the court in a proper venue.” Under 735 ILCS 5/2-104, this objection to venue is waived unless raised before the deadline for the defendant’s appearance or within any extension granted to answer or move with respect to the complaint.
The judge’s decision to grant a motion to dismiss or transfer based on improper venue is primarily statutory—meaning the court must follow the venue statute strictly, finding venue improper when the case at bar does not meet its criteria. These criteria are laid out in 735 ILCS 5/2-101 and further defined by 735 ILCS 5/2-102. The former explains that every action must be brought in either (1) “the county of residence of any defendant joined in good faith and with probable cause…and not solely for the purpose of fixing venue”, or (2) “in the county in which the transaction or some part thereof occurred out of which the cause of action arose.” See 735 ILCS 5/2-101.
For individuals, the meaning of the first prong of this statute is self-explanatory. Residence is determined by one’s domicile, the place where an individual permanently resides and intends to remain.
When discussing the residency of a private corporation, one must look to 735 ILCS 5/2-102(a), which states that a private corporation is deemed to reside in any county in which it (1) has a registered office, or (2) “other office,” or (3) is “doing business.” The first two criteria are typically undisputed in courts. Wherever a defendant has its registered office, or any “other office”, the private corporation can be said to reside in that county for the purpose of fixing venue there. These criteria can often be ascertained by looking at a corporation’s Secretary of State corporate filings.
While a small degree of discretion is placed in courts when assessing the third criterion for a private corporation’s residency, which is whether a corporation is “doing business” in a county, the bar for establishing that a corporation is “doing business” remains quite strict. The Illinois Supreme Court explained that more is required than the minimum contacts test used for determining personal jurisdiction in the state. See Stambaugh v. Int’l Harvester Co., 102 Ill. 2d 250, 257 (1984). The Illinois Supreme Court has further held that the defendant must be “conducting its usual and customary business within the county in which venue is sought.” See Tabirta v. Cummings, 450 Ill. Dec. 374, 382 (2020). These activities must be so extensive that they “localize” the business. Id.
These business standards may seem somewhat vague on their face, affording Illinois courts some discretion to determine whether the facts as presented meet this high bar. For example, courts have looked at evidence of the amount of business activity in the county compared to the amount of activity elsewhere, advertisements, and solicitation of its products or services in the county. Transactions in a county that are merely incidental to a defendant’s customary business, such as traveling through one county when transporting materials from another, do not typically afford the necessary degree of contact with a county for venue. See Hartung v. Central Illinois Public Service Co., 110 Ill. App. 3d 816.
Overall, assuming the transaction giving rise to the suit did not occur in the plaintiff’s chosen forum, corporate defendants should seek to allege facts that minimize any potential finding they “reside” in the county by presenting evidence they do not have any offices or provide any services or products customary to their business in the chosen venue.
A Motion to Transfer Pursuant to Forum Non Conveniens
On the other hand, a motion to transfer pursuant to forum non conveniens is governed by Illinois Supreme Court Rule 187, which sets the time of filing this motion no later than 90 days after the last day required to file an answer. Courts are afforded a lot of discretion when ruling on a motion pursuant to the doctrine of forum non conveniens.
Essentially, this doctrine is used when the plaintiff’s chosen venue is technically proper under 735 ILCS 5/2-101, however, the public and private interest factors weigh in favor of transferring to a different venue. Generally, the plaintiff’s chosen venue is given a high degree of deference, unless the plaintiff does not reside in the chosen forum or the selected forum has little connection to the dispute. There is a strong indication that the plaintiff has engaged in forum shopping when this is the case.
Some relevant factors that a court may take into consideration when deciding to transfer pursuant to forum non conveniens are the availability of alternate forums, access to evidence, convenience of the witnesses, advantages and obstacles to obtaining a fair trial, and congestion of the court dockets. Unlike with a motion to transfer based on improper venue, the analysis for granting a forum non conveniens motion does not consider the defendant’s business conduct in a county as dispositive for fixing venue there. Dawdy v. Union Pac. R.R. Co., 207 Ill.2d 167, 180 (2003).
A court should grant a motion pursuant to forum non conveniens when the defendant is able to point to these factors to show that an alternative venue is substantially a more appropriate forum. However, a court is not required to grant this motion upon this showing, and it is ultimately up to the court’s discretion to decide whether the convenience factors of transferring to another venue outweigh the statutorily proper choice of venue by the plaintiff.
Best Practice for Bringing an Objection to Venue in Illinois
Because the standards for transfer based on improper venue and forum non conveniens involve slightly different legal considerations and discretionary degrees, an effective approach to objecting to venue in many cases may be to assert both grounds, one in the alternative. Presenting both arguments ensures the court has a complete basis to evaluate all statutory and equitable factors, maximizing the likelihood of securing a transfer. Further, a defendant should assert these objections prior to, or on the day of filing a responsive pleading; otherwise, the objection based on improper venue is waived.
Ultimately, a defendant should comprehensively set forth all facts demonstrating that the plaintiff’s chosen forum bears no meaningful connection to, nor legitimate interest in, adjudicating their case—both under the applicable venue statutes and when weighed against the controlling public and private interest factors.