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Ellis v. AAR Parts Trading2/4/2005
and spoliation of evidence counts to the complaint. One month later, before the defendants had an opportunity to file an answer or affirmative defenses to the amended complaint, plaintiff filed her fourth amended complaint adding the Pinol plaintiffs. Although the defendants filed an answer to the fourth amended complaint before the 90-day period for filing a forum non conveniens motion expired (134 Ill. 2d R. 187), Layug filed her fifth amended complaint, once again adding new matters: strict products liability, count III (wrongful death) and count IV (survival action); Illinois common law of bailment; and spoliation of evidence, count XI (all damages). The aforementioned facts provide demonstrative evidence of AAR's and Fleet's vigilance.
When faced with new matters, parties and theories in both the third, fourth and fifth amended complaints, filed within five months of each other, AAR and Fleet filed a joint motion to dismiss Layug's fifth amended complaint in which they discussed the independent investigation conducted by the Republic of the Philippines and the evidence from that investigation. New cases were presented and the identities of potential witnesses were disclosed. See McClain, 121 Ill. 2d at 286 (a later filed forum non conveniens motion was a new motion as additional witnesses, matters and cases were before the court that were not in the prior motion). Therefore, following the reasoning in Kemner and McClain, a new challenge to forum is appropriate when new matter, new parties, or new causes of action or theories are brought forth in an amended complaint. See Bell, 106 Ill. 2d 135; Kemner, 112 Ill. 2d 223; McClain, 121 Ill. 2d 278.
In light of Illinois case law, we question the correctness of Layug's argument, predicated on Rule 187, that a motion to dismiss based upon the doctrine of forum non conveniens is only timely if filed within 90 days of answering the original complaint. See Bell, 106 Ill. 2d 135; Kemner, 112 Ill. 2d 223; McClain, 121 Ill. 2d 278. When new matters or factual allegations, theories of recovery and parties are added to an amended complaint, as with Layug's fifth amended complaint, which were never a part of the original complaint, Illinois case law would permit the party to file another forum non conveniens motion. Bell, 106 Ill. 2d 135; Kemner, 112 Ill. 2d 223; McClain, 121 Ill. 2d 278. We find equally perplexing the conclusion of the trial court that Rule 187 only allows a forum non conveniens challenge to the original complaint. The aforementioned arguments fail to acknowledge the equity and fundamental fairness considerations involved in the doctrine. See In re Marriage of Clark, 232 Ill. App. 3d 342, 350 (1992) (the appellate court declines to read Rule 187 as an absolute prohibition against filing a forum motion beyond the limit prescribed, relying on Rule 183 (134 Ill 2d R. 183), which allows a trial court, for good cause, to extend the time for filing any pleading or the doing of any act which is required by the rules to be done within a limited period).
In further support of the importance of the equitable principles upon which the forum non conveniens doctrine is premised, the amendment statute, section 2-616(a) of the Code of Civil Procedure, supports our construction of Rule 187 that the defendants should be allowed to file successive motions to dismiss under the facts of this case. 735 ILCS 5/2-616(a) (West 2002). Section 2-616(a) provides in pertinent part:
"ยง 2-616. Amendments. (a) At any time before final judgment amendments may be allowed on just and reasonable terms, introducing any party who ought to have been joined as plaintiff or defendant, dismissing any party, changing the cause of action or defense or addin
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