Wessel Co., Inc. v. Yoffee & Beitman Management

• Decision Date: 29 September 1978
• Docket Number: No. 78 C 2034.,78 C 2034.
• Parties: The WESSEL COMPANY, INC., Plaintiff, v. YOFFEE AND BEITMAN MANAGEMENT CORP., Defendant.
• Court: U.S. District Court — Northern District of Illinois

457 F. Supp. 939

The WESSEL COMPANY, INC., Plaintiff, v. YOFFEE AND BEITMAN MANAGEMENT CORP., Defendant.

No. 78 C 2034.

United States District Court, N. D. Illinois, E. D.

September 29, 1978.

Lieberman, Levy, Baron & Stone, Ltd., Chicago, Ill., for plaintiff.

Karla Wright, Chicago, Ill., for defendant.

MEMORANDUM

LEIGHTON, District Judge.

Plaintiff brings this suit to recover monies allegedly owed on a contract for printing and sale of brochures. Jurisdiction is invoked under 28 U.S.C. § 1332. The cause is before the court on defendant's motion to dismiss under Rule 12(b)(2), Fed.R.Civ.P., for lack of in personam jurisdiction. For the following reasons, the motion is granted.

I.

The parties agree on the relevant jurisdictional facts. Plaintiff is an Illinois corporation with its principal place of business in Chicago. Defendant is a Pennsylvania corporation and was served with process at its principal place of business in Harrisburg, Pennsylvania. The contract at issue was negotiated by defendant with plaintiff's regional salesman for the eastern United States, Richard Nussey, a New Jersey resident, who submitted a bid for web offset printing of the brochures to defendant's sales manager, Murray Beitman. Nussey avers that he met with Beitman at defendant's Harrisburg offices in May, 1977. At that time, Beitman told him that plaintiff's bid had been accepted. Nussey accepted the order and advised Beitman that all details regarding production were to be handled by plaintiff's production personnel in Chicago. Thereafter, defendant corresponded by letter and telephone with Leonard Levine, plaintiff's executive vice-president in Elk Grove, Illinois, until completion of the order in August, 1977. Levine avers that he received five letters in July and August from Wendy Hepler, defendant's employee, regarding details of production and that he conversed at least six times with her by long distance telephone, although he does not recall who initiated the calls. The brochures were printed in Illinois and shipped to Pennsylvania. Defendant mailed its payments to plaintiff's Illinois offices.

II.

Section 17 of the Illinois Civil Practice Act (the Illinois "long-arm" statute) provides in pertinent part

(1) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person . . . to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts:

(a) The transaction of any business within this State . . .. Ill.Rev.Stat. ch. 110, § 17(1)(a) (1975).

It is well-settled that in enacting this statute, the Illinois legislature intended to provide the means by which jurisdiction can be asserted over non-residents to the extent permitted under the due process clause. McBreen v. Beech Aircraft Corp., 543 F.2d 26 (7th Cir. 1976); Nelson v. Miller, 11 Ill.2d 378, 143 N.E.2d 673 (1967). Sufficient "minimum contacts" with the forum state must exist so that exercise of jurisdiction over a non-resident defendant is reasonable and just according to traditional notions of fair play and substantial justice. Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The issue of minimum contacts cannot be reduced to a rigid formula; "the test . . . is a flexible one which emphasizes the reasonableness of subjecting a defendant to suit; and the proper inquiry is whether a non-resident defendant can be said to have invoked, by act or conduct, the benefits and protection of the laws of the forum." Honeywell, Inc. v. Metz Apparatewerke, 509 F.2d 1137, 1144 (7th Cir. 1975); see also Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 441-42, 176 N.E.2d 761 (1961).

The burden of proof rests on the party asserting jurisdiction; however, this burden is met by a prima facie showing that jurisdiction is conferred by the longarm statute. O'Hare International Bank v. Hampton, 437 F.2d 1173, 1176 (7th Cir. 1971). In considering a challenge to its personal jurisdiction, a court may receive and weigh affidavits. Id. And such conflicts as do exist in the affidavits and pleadings must be resolved in plaintiff's favor for purposes of determining whether a prima facie case for in personam jurisdiction has been established. United States Ry. Equip. Co. v. Port Huron & Detroit R. Co., 495 F.2d 1127, 1128 (7th Cir. 1974). Thus, where defendant's affidavits have varied from plaintiff's, this court has credited plaintiff's affidavits. However, even accepting plaintiff's version of the facts, the minimum contacts essential to personal jurisdiction are not present in this case.

In Geneva Industries, Inc. v. Copeland Construction Corp., 312 F.Supp. 186 (N.D. Ill. 1970), defendant, a Pennsylvania general contractor, accepted a bid for cabinet construction from plaintiff's Pennsylvania agent. After further negotiations directly by telephone and letter between defendant and plaintiff, an Illinois company, the parties executed a contract; the plaintiff manufactured the cabinets in Illinois, shipped them to Pennsylvania, and brought suit on the contract. In holding personal jurisdiction lacking, Judge Will stated:

Quite simply defendant . . . was no more than a customer for a single sale by plaintiff which was negotiated through the mails and by telephone. . . A citizen of a foreign jurisdiction does not submit to in personam jurisdiction of the forum state when a seller based in the forum state, through its agent in the foreign jurisdiction, initiates a contractual relationship between his principal in the forum state and the customer in the foreign state. The fact that the seller accepts the contract in the forum state does not alter this

...