                                  2014 IL App (1st) 132381
                                       No. 1-13-2381

                                                                   Fifth Division
                                                              September 30, 2014
______________________________________________________________________________

                                           IN THE

                            APPELLATE COURT OF ILLINOIS

                                FIRST DISTRICT
______________________________________________________________________________
                                      )
SABA SOFTWARE, INC.,                  )
                                      )     Appeal from the Circuit
      Plaintiff-Appellee,             )     Court of Cook County.
                                      )
      v.                              )     No. 13 L 002088
                                      )
DEERE & COMPANY,                      )     The Honorable Joan E. Powell,
                                      )     Judge Presiding.
      Defendant-Appellant.            )
                                      )
                                      )
______________________________________________________________________________

          JUSTICE GORDON delivered the judgment of the court, with opinion.
          Justices McBride and Taylor concurred in the judgment and opinion.



                                         OPINION

¶1        On February 26, 2012, plaintiff Saba Software, Inc. (Saba), a Delaware corporation,

filed suit in the circuit court of Cook County against defendant Deere & Company (Deere),

another Delaware corporation, for money damages claiming: (1) breach of contract; and (2)

restitution based on unjust enrichment. On April 22, 2013, Deere filed a motion to transfer the

case to Rock Island County based on the Illinois venue statute (735 ILCS 5/2-104 (West 2012))
No. 1-13-2381


and the doctrine of forum non conveniens. Ill. S. Ct. R. 187 (eff. Jan. 4, 2013) (describing the

process for forum non conveniens motions). After a hearing, the trial court denied the motion.

¶2         On July 26, 2013, Deere filed an interlocutory appeal pursuant to Illinois Supreme

Court Rule 306 (eff. Feb. 16, 2011), which permits interlocutory appeals from certain court

orders. Rule 306(a)(2) permits an appeal from an order allowing or denying a forum non

conveniens motion, and Rule 306(a)(4) permits an appeal from an order granting or denying a

motion for a transfer of venue based on the assertion that the defendant is not a resident of the

county in which the action was commenced, and no other legitimate basis for venue in that

county has been offered by the plaintiff. Ill. S. Ct. R. 306 (a)(2), (a)(4) (eff. Feb. 16, 2011).

¶3         On August 28, 2013, the appellate court dismissed the appeal. Saba Software Inc. v.

Deere & Co, No. 1-13-2381 (Aug. 28, 2013). Deere then filed a petition for leave to appeal,

which the Illinois Supreme Court denied, but, pursuant to its supervisory authority, it ordered

this court to vacate its prior dismissal order and to hear the appeal. Saba Software Inc. v. Deere

& Co, No. 116651 (Ill. 2014).

¶4         In this interlocutory appeal, Deere argues that the trial court erred in denying its

motion to transfer the case to Rock Island County. Deere contests the denial on two grounds: (1)

that the trial court erred in failing to apply the Illinois venue statute; and (2) that the trial court

erred in failing to properly apply the doctrine of forum non conveniens.

¶5         For the reasons discussed below, we affirm.

¶6                                         BACKGROUND

¶7         On February 26, 2013, Saba filed the present suit against Deere in the circuit court of

Cook County. The action seeks money damages for: (1) breach of contract; and (2) restitution for




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No. 1-13-2381


unjust enrichment. Both claims arose out of a dispute over a subscription agreement, which the

parties entered into on February 23, 2011.

¶8        To establish venue, Saba alleges in its complaint that:

                  “Venue is proper in this Court because the transaction out of which

          the cause of action arose occurred in part in Cook County, Deere is

          authorized to do business in Cook County, and the parties explicitly

          consented to venue in any state court in Illinois, of competent jurisdiction –

          like this Court – to adjudicate issues arising out of or relating to the Parties’

          governing agreement. See 735 ILCS [5/2-101, 2-102 (West 2010)];

          Subscription Agreement (as defined infra), ¶ 10.7 [sic].”

¶9                                       I. The Parties

¶ 10      Saba describes the parties in its complaint as follows: Saba is a Delaware corporation

with its principal place of business in Redwood Shores, California, and it provides software

subscription services to its customers, including learning management systems.

¶ 11      Deere is a Delaware corporation with its principal place of business in Moline, Illinois,

and it is engaged in the business of agriculture and turf equipment, construction and forestry

equipment, and related financial services.

¶ 12      On February 23, 2011, the parties executed three documents: (1) the software

subscription services agreement (the subscription agreement); (2) the statement of work; and (3)

the product schedule. The subscription agreement is the governing written contract under which

Saba agreed to supply Deere certain software services, including a learning management system.

The statement of work provided that Deere would pay Saba $791,175 for these services under a

fixed-fee arrangement.




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No. 1-13-2381


¶ 13      The subscription agreement includes provision 10.8, entitled “Venue,” which states:

                     “The parties consent to the exclusive jurisdiction of, and venue

          in, any federal or state court of competent jurisdiction located in Illinois for

          the purposes of adjudicating any matter arising out of or relating to this

          Agreement.”

¶ 14      Saba’s complaint states that the initial “go live” date for this project was in November

2011. The parties later reworked their plan to establish a new “go-live” date of February 20,

2012. This dispute arose after the project was not completed by this date, and negotiations began

to break down. Pursuant to section 9.1 of the subscription agreement, the parties met on August

2, 2012, at Deere’s headquarters in Moline, Illinois, to discuss the dispute. When the meeting

proved unsuccessful to resolve the dispute, the parties entered into mediation, pursuant to section

9.2 of the subscription agreement, which was held on November 5 and 6, 2012, in Chicago,

Illinois. The mediation was not successful.

¶ 15                                     II. Deere’s Initial Lawsuit

¶ 16      On November 6, 2012, following mediation, Deere filed a federal complaint against

Saba in the United States District Court for Central Illinois based on diversity of citizenship.

Deere & Company v. Saba Software, Inc., No. 4:12-cv-04105-SLD-JAG (C.D. Ill. 2012). To

establish venue there, Deere alleged three bases in its amended complaint, including the venue

clause of the subscription agreement: “Venue lies in the District pursuant to 28 U.S.C. Sections

1391 and 1404 in that *** the parties agreed in writing that Illinois is the appropriate venue for

any litigation between the parties.”

¶ 17      On February 26, 2013, Saba filed a motion to dismiss under Rule 12(b) of the Federal

Rules of Civil Procedure for, among other claims, lack of subject matter jurisdiction, because




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No. 1-13-2381


both parties are Delaware corporations and therefore the parties were not subject to diversity.

Fed. R. Civ. P. 12(b)(1). On May 15, 2013, Deere voluntarily dismissed the federal suit without

prejudice pursuant to Rule 41 of the Federal Rules of Civil Procedure.

¶ 18                                         IV. Motion to Transfer

¶ 19       After dismissal of the federal action, Saba filed this suit on February 26, 2013, in the

circuit court of Cook County.

¶ 20       On April 22, 2013, before filing an answer, Deere filed a motion to transfer venue.

The motion argued that: (1) venue is improper in Cook County under the Illinois venue statute

(735 ILCS 5/2-104 (West 2012)) and should be transferred to Rock Island County; or (2) in the

alternative, if venue is proper in Cook County, the matter should be transferred under the

doctrine of forum non conveniens, claiming that the witnesses and evidence are located in Rock

Island County, and that Cook County has no connection to or interest in the suit. Ill. S. Ct. R. 187

(eff. Jan. 4, 2013) (permitting an intrastate transfer of an action based on the doctrine of forum

non conveniens.)

¶ 21       In support of its motion, Deere attached: (1) the affidavit of William Nunn, a supply

manager for Deere, which was signed and dated April 8, 2013; and (2) statistical information

concerning the circuit courts of Illinois.

¶ 22                               A. Affidavit of William Nunn

¶ 23       Nunn’s affidavit stated that he is a supply manager at Deere’s corporate headquarters

located at One John Deere Place in Moline, Illinois, which is located in Rock Island County. “At

relevant times” in 2010, 2011 and 2012, Nunn was involved in the transaction between Deere

and Saba that gave rise to this action. He stated that this litigation arose out of Deere’s decision

to replace its learning management system with a system provided by a third-party vendor.




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No. 1-13-2381


¶ 24      Nunn provided additional information about the location of Deere’s operations.

Deere’s registered office is in Moline, as well as its data center, which housed the learning

management system. Six additional Deere facilities are located in Moline, and one additional

facility is located in East Moline, Illinois, which is also in Rock Island County. Nunn also stated

that Deere’s principal place of business has been located in Moline for “well over 150 years.” He

estimated that the company has 5,000 employees in Rock Island County. He explained that

Moline and East Moline are two of the five “Quad Cities,” which also include Rock Island,

Illinois, Bettendorf, Iowa and Davenport, Iowa. Deere also has a training facility in Davenport,

and no offices in Cook County.

¶ 25      Nunn also described the contract negotiation process. In 2010, Deere sent out requests

for information to fifteen companies, including Saba, and then requests for proposals to five

companies, including Saba, for the replacement of its learning management system. All requests

were sent from Deere’s headquarters in Moline. On September 27, 2010, Saba submitted its

proposal to Deere in Moline and the proposal was studied and analyzed there. On February 23,

2011, Deere executed three documents also in Moline: (1) the subscription agreement; (2) the

statement of work; and (3) the product schedule. He stated that no negotiations relating to these

documents took place in Cook County.

¶ 26      Nunn further stated that, after the documents were executed, Saba’s representatives

visited Deere’s representatives in Moline on “numerous occasions” to discuss implementation,

configuration, and support issues, product schedules, and the learning management system. Saba

invoiced Deere for the travel expenses, and Deere paid for these expenses. Deere also prepared

over 350 “Defect Documents” after the execution of the agreement, which recorded problems,

issues and defects in Saba’s work on the learning management system. Each document was




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No. 1-13-2381


generated by problem tracking software installed and executed in Deere’s data center in Moline.

Saba was given access to these documents electronically through Deere’s data center in Moline.

Nunn stated that no negotiations relating to implementation, configuration, and support issues,

project schedules, and Deere’s requirements for the learning management system took place in

Cook County.

¶ 27      Nunn also provided information on the location of activities addressed in the statement

of work, including user acceptance testing and data migration. Although the testing was never

completed, Deere performed preliminary work on the testing in Moline. The data migration

project related to data stored at Deere’s data center in Moline. Nunn stated that Deere was not

aware of any design work, configuration work, or support work performed in Cook County.

¶ 28      Nunn stressed the complexity of this litigation. He stated that he could think of “at

least” 23 of defendant Deere’s representatives that would appear as witnesses at trial for this

matter. Eighteen of these individuals work at Deere’s facilities in Rock Island County. The other

five individuals work at Deere’s facility in Davenport, Iowa, which is less than two miles from

the Rock Island County courthouse. All 23 individuals live in either Rock Island County,

Davenport, Bettendorf, or LeClaire, Iowa. LeClaire is located 16 miles from the Rock Island

County courthouse. Nunn stated that he was not aware of any witness who resided or worked in

Cook County.

¶ 29      Nunn stated that none of the events leading up to the transaction at issue in this

litigation, or any of the events at issue in this litigation, occurred in Cook County. Chicago,

Illinois, and the Cook County courthouse are located approximately 170 miles from Moline.




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No. 1-13-2381


¶ 30                                  B. Statistical Information

¶ 31       Also attached to Deere’s motion were sections from the “Annual Report of the Illinois

Courts, Statistical Summary – 2011,” which stated that it was compiled and published by the

administrative office of the Illinois courts. The report shows the civil caseload statistics by

county for the circuit courts of Illinois. At the end of 2011, Cook County had 23,837 cases

pending where the plaintiff sought over $50,000 in damages, and had 498,763 total civil cases

pending. In contrast, Rock Island County had 395 cases pending where the plaintiff sought over

$50,000 in damages, and had 9,912 total civil cases pending at the end of 2011.

¶ 32       Deere also attached to its motion the section of the report listing time-lapse statistics

(case filing to date of verdict) for law jury verdicts over $50,000 in damages for the circuit courts

of Illinois. In 2011 there were 426 law jury verdicts over $50,000 in damages in Cook County,

and the average time lapse between date of filing and date of verdict was 35.1 months. In

contrast, there were four law jury verdicts over $50,000 in damages in Rock Island County in

2011 and the average time lapse was 13.8 months. However, as the parties acknowledged during

the hearing on the motion to transfer, the present case will have a bench trial, not a jury trial.

¶ 33                                    C. Saba’s Response

¶ 34       Saba’s response to the motion to transfer argued that the venue clause in the

subscription agreement “forecloses any challenge to venue, whether based on statute or

convenience.” Saba referred to provision 10.8 of the subscription agreement, entitled “Venue,”

which states:

                      “The parties consent to the exclusive jurisdiction of, and venue

           in, any federal or state court of competent jurisdiction located in Illinois for




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No. 1-13-2381


           the purposes of adjudicating any matter arising out of or relating to this

           Agreement.”

¶ 35       Saba did not provide an affidavit with its response, and it does not challenge in writing

any of the factual assertions made in Deere’s motion or in Nunn’s affidavit, or any of the

statistical data from the circuit courts of Illinois.

¶ 36                                     D. Hearing and Decision

¶ 37       On July 1, 2013, the circuit court held a hearing on the motion to transfer. At the

hearing, Deere stated that it did not contest jurisdiction or venue in the state of Illinois, but

argued that venue was not proper in Cook County. Deere argued that the venue selection clause

in the agreement does not trump the Illinois venue statute because doing so would be contrary to

both case law and common sense. It argued, in the alternative, that even if venue is proper in

Cook County, the case should be transferred to Rock Island County based on the doctrine of

forum non conveniens.

¶ 38       In response, Saba argued that there was a factual dispute as to whether there was a

connection to Cook County. Although the transcript is slightly unclear 1, Saba argued that an

unidentified person who was connected to Saba was a resident of Orland Park and responded to

Deere’s request for proposal and negotiated the contract terms, and was partially responsible for

its implementation. Saba acknowledged that this information was not included in its brief to the

trial court, but stated that this fact was not included because Deere had already agreed

contractually that it was “perfectly acceptable and not inconvenient” to litigate in any court, state

or federal, in Illinois. Saba argued that the language of the contract was written by Deere, and

           1
               The transcript reads: “There was a -- the Saba was a resident in Orland Park,” which

is located in Cook County, Illinois.



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No. 1-13-2381


was part of a form contract sent to companies that responded to Deere’s request for proposals.

Saba further noted that the contract was signed by five of Deere’s senior executives. At that

point, the trial court interrupted Saba’s counsel to note: “Counsel, I don’t think you really even

need to argue this. This is really clear. They agree to any -- I mean it says right here on venue.”

¶ 39      Saba then addressed Deere’s forum non conveniens argument, stating that “when

Deere agreed that it would consent to venue to locate a case here, it essentially forfeits it [sic]

right to argue the inconvenience of its witnesses.” Saba further argued that, when Deere drafted

the venue clause, it could have written the provision to state that venue was proper only in Rock

Island County, but Deere did not, and “that’s [sic] induced us to enter into it.” Counsel for Saba

attempted to present to the trial court a list of witnesses in Chicago, but the trial court refused to

read the document because it was not timely presented in Saba’s written response.

¶ 40      At the close of the hearing, the trial court denied Deere’s motion to transfer, stating:

                     “I’m just trying to think if this is enough. I’ve got plaintiff’s

          choice, there’s some deference for this. You have part of the transaction

          occurred in Cook. This is tenuous, Counsel. It’s really tenuous, and I think

          you should have given me -- well, we’re on the record. I won’t finish my

          sentence, but I would have appreciated some stronger factors in face of this

          motion, but I’m still going to keep it in Cook. I’m going to deny your

          motion.”

¶ 41      On July 26, 2013, Deere petitioned this court for leave to file an interlocutory appeal

pursuant to Illinois Supreme Court Rule 306 (eff. Feb. 16, 2011). On August 28, 2013, this court

denied Deere’s petition for leave to appeal without stating its reasons. Deere then filed a petition

for leave to appeal with the Illinois Supreme Court. On January 7, 2014, the Illinois Supreme




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No. 1-13-2381


Court denied this petition, but entered a supervisory order directing this court to vacate its

August 28, 2013, order and grant defendant’s petition for leave to appeal. Saba Software Inc. v.

Deere & Co, No. 116651 (Ill. 2014). On January 10, 2014, this court entered an order vacating

its August 28, 2013, order and allowing Deere leave to appeal. This interlocutory appeal

followed.

¶ 42                                      ANALYSIS

¶ 43        On this interlocutory appeal, Deere argues that the trial court erred in denying its

motion to transfer the case to Rock Island County. Deere contests the denial on two grounds: (1)

that the trial court erred in failing to apply the Illinois venue statute; and (2) that the trial court

erred in failing to apply the doctrine of forum non conveniens to transfer the case to Rock Island

County.

¶ 44        In response, Saba argues that the trial court correctly applied the venue clause in the

subscription agreement to hold that venue in Cook County is proper, and further, that the

contract’s venue clause precludes any argument based on forum non conveniens grounds.

¶ 45                                    I. Jurisdiction

¶ 46        An appellate court may hear appeals only from final judgments, unless an exception

specified by the supreme court rules applies. Ill. Const. 1970, art. VI, § 6; Saddle Signs, Inc. v.

Adrian, 272 Ill. App. 3d 132, 135 (1995); Bezan v. Chrysler Motors Corp., 263 Ill. App. 3d 858,

860 (1994). In the instant case, defendant's appeal was taken pursuant to Illinois Supreme Court

Rule 306 (eff. Feb. 16, 2011). This rule permits appeals from orders of the circuit court granting

new trials and orders granting or denying certain motions by permission of the appellate court.

Ill. S. Ct. R. 306 (eff. Feb. 16, 2011). Subparagraphs (a)(2) and (a)(4) allow permissive appeals

as follows:




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No. 1-13-2381


                “(2) from an order of the circuit court allowing or denying a motion to dismiss on

       the grounds of forum non conveniens, or from an order of the circuit court allowing or

       denying a motion to transfer a case to another county within this State on such grounds;

                ***

                (4) from an order of the circuit court granting or denying a motion for a transfer of

       venue based on the assertion that the defendant is not a resident to the county in which

       the action was commenced, and no other legitimate basis of venue in that county has been

       offered by the plaintiff.” Ill. S. Ct. R. 306(a)(2), (a)(4) (eff. Feb. 16, 2011).

¶ 47      On July 26, 2013, defendant Deere petitioned the appellate court for leave to file an

interlocutory appeal pursuant to Rule 306, quoted above, which we denied. Saba Software Inc. v.

Deere & Co, No. 1-13-2381 (Aug. 28, 2013). However, the supreme court in a supervisory order

directed us to vacate that order and hear this appeal, which we now do.

¶ 48                                      II. Proper Venue

¶ 49                                  A. Standard of Review

¶ 50      The issue of proper venue raises separate questions of fact and law. Corral v. Mervis

Industries, Inc., 217 Ill. 2d 144, 154 (2005). “We will not disturb a trial court's findings of fact

unless those findings are against the manifest weight of the evidence.” Corral, 217 Ill. 2d at 154.

“A decision is against the manifest weight of the evidence only when an opposite conclusion is

apparent or when the findings appear to be unreasonable, arbitrary, or not based on the

evidence.” Eychaner v. Gross, 202 Ill. 2d 228, 251 (2002). “The court on review must not

substitute its judgment for that of the trier of fact.” Kalata v. Anheuser-Busch Cos., 144 Ill. 2d

425, 434 (1991). After reviewing the trial court's factual findings, we review the legal effect of

the trial court's conclusions de novo. Eychaner, 202 Ill. 2d at 252.




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No. 1-13-2381


¶ 51      In the trial court, the defendant has the burden to prove that the plaintiff's selection of

venue was improper. Weaver v. Midwest Towing, Inc., 116 Ill. 2d 279, 285 (1987). “In doing so,

the defendant must set out specific facts, not conclusions, and show a clear right to the relief

asked for. [Taylor v. Southern Ry. Co. 350 Ill. 139, 143 (1932).]” Weaver, 116 Ill. 2d at 285.

“Any doubts arising from the inadequacy of the record will be resolved against the defendant.

[Foutch v. O'Bryant, 99 Ill. 2d 389, 391–92 (1984).]” Weaver, 116 Ill. 2d at 285.

¶ 52                                B. Illinois Venue Statute

¶ 53      The Illinois venue statue reads in pertinent part:

                    “Generally. Except as otherwise provided in this Act, every action

                 must be commenced (1) in the county of residence of any defendant who

                 is joined in good faith and with probable cause for the purpose of

                 obtaining a judgment against him or her and not solely for the purpose of

                 fixing venue in that county, or (2) in the county in which the transaction or

                 some part thereof occurred out of which the cause of action arose.” 735

                 ILCS 5/2-101 (West 2012).

¶ 54      The venue waiver clause in Martin-Trigona v. Roderick, 29 Ill. App. 3d 553 (1975)

provided that:

                    “Lessee further consents and waives venue or other objections to

                 lessor instituting any action under this lease in any circuit court of

                 Illinois.” Martin-Trigona, 29 Ill. App. 3d at 554.

Similarly, the venue clause in the present case provides that:

                    “The parties consent to the exclusive jurisdiction of, and venue in, any

                 federal or state court of competent jurisdiction located in Illinois for the




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No. 1-13-2381


                purposes of adjudicating any matter arising out of relating to this

                Agreement.”

Although the exact language differs, the effect of the clause is the same: that the plaintiff may

choose any circuit court in Illinois, and defendant is barred from objecting. Indeed, Saba asks the

court to read the clause this way, arguing in its brief that “[b]y agreeing to the venue set forth in

the Venue Clause, the parties necessarily *** waived or forfeited *** objection.”

¶ 55       Deere relies on a 1975 two-to-one decision of this court that found that a waiver of

venue provision contained in a lease prepared by the plaintiff was void as against public policy

when he filed a complaint in the circuit court of Cook County to recover rent payments owed by

the defendant. Martin-Trigona, 29 Ill. App. 3d at 553. The property and the defendant were

located in Champaign, Illinois. Martin-Trigona, 29 Ill. App. 3d at 553. However, the Martin-

Trigona case is distinguishable from the case at bar because here, Deere placed the waiver clause

in the contract and by doing so, freely and voluntarily waived any objection to venue. Courts are

traditionally reluctant to relieve parties of their contractual agreements, especially when they

drew up a provision and obtained the consent of the other party. Venue is fundamentally a matter

for the convenience of the litigants and is not jurisdictional in nature. It can be waived under

section 8(2) of the Civil Practice Act (Ill.Rev.Stat.1979, ch. 110, par. 8(2)) by failure to assert in

a timely fashion. May v. Charles Larson Co., 304 Ill. App. 137 (1940). Certainly, it can be

waived by the parties. When a party places it in a contract and the other party agrees,

fundamental fairness requires that the party who placed it in the contract cannot later complain

that the clause is void as against public policy.

¶ 56       Justice Felix Frankfurter authored a United States Supreme Court case involving an

interpretation of a federal venue statute:




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No. 1-13-2381


                   “The court stated on page 167, 60 S.Ct. on page 154 that ‘(t)he

                jurisdiction of federal courts-their power to adjudicate-is a grant of

                authority to them by Congress and thus beyond the scope of the litigants to

                confer. But the locality of a law suit-the place where judicial authority

                may be exercised-though defined by legislation relates to the convenience

                of the litigants and as such is subject to their disposition.’ (emphasis

                supplied). The Court further stated that venue is a personal privilege

                conferred by statute and may be asserted or waived at the litigant’s

                election, citing Commercial Ins. Co. v. Stone Co., 278 U.S. 177, 179, 49

                S.Ct. 98, 73 L.Ed. 252. Thus, the court concluded that venue, being a

                privilege, may be lost either by failure to assert it seasonably, by

                submission in a cause, or by submission through contract.” Martin-

                Trigona, 29 Ill. App. 3d at 557-58.

¶ 57      However, when a venue waiver clause is placed in a form contract and affects the due

process rights of others, the waiver clause can be void contrary to public policy.

¶ 58      In Williams v. Illinois State Scholarly Comm'n, 139 Ill. 2d 24 (1990), our supreme

court in a four-to-three decision found that an Illinois statute providing for the commencement of

actions on delinquent or defaulted student loans exclusively in Cook County violated student

borrowers' due process rights, and that the forum selection clause in guaranteed student loan

agreements were void as contrary to public policy. Williams, 139 Ill. 2d at 28-9. Our supreme

court stated: "These contracts were standard form agreements, prepared entirely by ISSC [the

Illinois State Scholarship Commission]. The GSL [guaranteed student loans] agreements

amounted to adhesion contracts, in that the class members were in a disparate bargaining




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No. 1-13-2381


position, and, if they wanted the loan, were forced to ' "take it or leave it." ' " Williams, 139 Ill.

2d at 72. Williams is distinguished from the case at bar because here, this is not a boilerplate

agreement issue to people all over the state or the nation. Here, we have a waiver clause prepared

by Deere, agreed to by Saba, and now Deere wants the clause they placed into the contract to be

held void as against public policy.

¶ 59       In M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, (1972), the United States

Supreme Court found that, where an American company with special expertise contracted with a

foreign company through arm's length negotiations by experienced and sophisticated

businessmen, for the towing of a complex machine thousands of miles across seas and oceans,

and a clause providing for the treatment of any disputes to be decided before the London Court

of Justice was a part of their contract, the clause was prima facie valid and was to be honored by

the parties and enforced by the courts. In order to escape the agreed clause in the contract, the

objecting party must show that trial in the contractual forum will be so gravely deficient and

inconvenient that he will, for all practical purposes, be deprived of his day in court. Absent that,

there is no basis for concluding that it would be unfair, unjust, or unreasonable to hold that party

to his bargain.

¶ 60       The majority rule recognized in Illinois and in most jurisdictions provides that parties

should be free and unrestricted in making their own contracts. Progressive v. Liberty Mutual,

215 Ill. 2d 121, 129 (2005). More specifically, "Illinois's public policy ' "strongly favors freedom

to contract" ' [citation] and broadly allows parties to determine their contractual obligations.

[Citation.]" Hussein v. L.A. Fitness International, L.L.C., 2013 IL App (1st) 121426, ¶ 11. As a

result, "we exercise 'sparingly' the power to declare a private contract void as against public

policy." American Access Casualty Co. v. Reyes, 2012 IL App (2d) 120296, ¶ 10 (quoting




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No. 1-13-2381


Progressive, 215 Ill. 2d at 129). As a result, the parties waived venue in their contract, and Cook

County is a proper place to bring the action.

¶ 61                                III. Forum Non Conveniens

¶ 62      Forum non conveniens is an “equitable doctrine founded in consideration of

fundamental fairness and the sensible and effective administration of justice.” Langenhorst v.

Norfolk Southern Ry. Co., 219 Ill. 2d 430, 441 (2006); Gridley v. State Farm Mutual Automobile

Insurance Co., 217 Ill. 2d 158, 169 (2005). This doctrine permits a trial court to transfer a case

when “trial in another forum ‘would better serve the ends of justice.’ ” Langenhorst, 219 Ill. 2d

at 441 (quoting Vinson v. Allstate, 144 Ill. 2d 306, 310 (1991)); Gridley, 217 Ill. 2d at 169.

¶ 63      Deere not only prepared and agreed to a waiver of the Illinois venue statute, it

expressly waived the doctrine of forum non conveniens for the same reasons that we have

previously related.

¶ 64                                    CONCLUSION

¶ 65      For the foregoing reasons, we affirm the trial court's order denying defendant Deere's

motion to transfer to Rock Island County.

¶ 66      Affirmed.




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