Haubner v. Abercrombie & Kent Intern., Inc.

• Decision Date: 30 June 2004
• Docket Number: No. 1-03-2219.,1-03-2219.
• Citation: 812 N.E.2d 704,351 Ill.App.3d 112,285 Ill.Dec. 884
• Parties: Matthew HAUBNER, Personal Representative for the Estate of Robert Haubner, Deceased, and Noralee Dawn Rockwell, Executor of the Estate of Susan Miller, Deceased, Plaintiffs-Appellants, v. ABERCROMBIE & KENT INTERNATIONAL, INC., Abercrombie & Kent Overseas, Ltd., Abercrombie & Kent Travel, Inc., Abercrombie & Kent Ltd. (Uganda), d/b/a A & K Uganda, Abercrombie & Kent Travel, Ltd., d/b/a A & K Travel Kenya, and Abercrombie & Kent Group Holdings SA (Luxembourg), Defendants-Appellees.
• Court: United States Appellate Court of Illinois

812 N.E.2d 704

351 Ill.App.3d 112

285 Ill.Dec. 884

Matthew HAUBNER, Personal Representative for the Estate of Robert Haubner, Deceased, and Noralee Dawn Rockwell, Executor of the Estate of Susan Miller, Deceased, Plaintiffs-Appellants, v. ABERCROMBIE & KENT INTERNATIONAL, INC., Abercrombie & Kent Overseas, Ltd., Abercrombie & Kent Travel, Inc., Abercrombie & Kent Ltd. (Uganda), d/b/a A & K Uganda, Abercrombie & Kent Travel, Ltd., d/b/a A & K Travel Kenya, and Abercrombie & Kent Group Holdings SA (Luxembourg), Defendants-Appellees.

No. 1-03-2219.

Appellate Court of Illinois, First District, Third Division.

June 30, 2004.

Corboy & Demetrio, P.C., Chicago (Phillip H. Corboy & Edward G. Willer, of counsel); Pickett Dummigan Rhodes LLP, Portland, Oregon (J. Randolph Pickett & Laura L. Rhodes, of counsel), for Appellants.

Clausen Miller P.C., Chicago (Edward M. Kay & Agelo L. Reppas, of counsel), for Appellees.

Presiding Justice HOFFMAN delivered the opinion of the court:

The Plaintiffs, Matthew Haubner, personal representative for the estate of Robert Haubner, deceased, and Noralee Dawn Rockwell, executor of the estate of Susan Miller, deceased, appeal from an order of the circuit court granting a motion to quash service for lack of in personam jurisdiction in favor of the defendants, Abercrombie & Kent Ltd. (Uganda) d/b/a A & K Uganda (hereinafter "A & K Uganda"), Abercrombie & Kent Travel, Ltd., d/b/a A & K Travel Kenya (hereinafter "A & K Kenya") and Abercrombie & Kent Group Holdings SA (Luxembourg) (hereinafter "A & K Luxembourg") (collectively "the foreign A & K defendants"). On appeal, the plaintiffs contend that the circuit court erred in failing to assert in personam jurisdiction over the foreign A & K defendants under sections 2-209(a)(1) and (b)(4) of the Code of Civil Procedure (the Code). 735 ILCS 5/2-209(a)(1) and (b)(4) (West 2000). For the reasons which follow, we affirm in part, reverse in part and remand for further proceedings.

On March 1, 1999, Haubner and Rockwell were abducted from their tent and murdered by suspected Interahamwe rebels while vacationing at the Gorilla Forest Camp in the Bwindi Impenetrable Forest National Park, Uganda. Probate proceedings were initiated in respect to both decedents in the circuit court of Multnomah County, Oregon.

The case at bar was initiated on May 11, 2000, as a wrongful death and survival action in the circuit court of Cook County against Abercrombie & Kent International, Inc. (hereinafter "A & K Int'l"), Abercrombie & Kent Overseas, Ltd. (hereinafter "A & K Overseas") and Abercrombie & Kent Travel, Inc. (hereinafter "A & K Travel") (collectively "the Illinois A & K defendants"). The complaint alleged that the Illinois A & K defendants owned and operated the Gorilla Forest Camp where the decedents were lodging. The complaint further alleged that the Illinois A & K defendants were negligent in failing to warn the decedents about various acts of civil unrest and armed violence occurring along the Ugandan border and in failing to provide adequate security at the Gorilla Forest Camp.

On July 14, 2000, the Illinois A & K defendants filed a motion to transfer the cause to Du Page County on grounds of lack of venue and forum non conveniens. The motion to transfer contained an affidavit from Alistair Ballantine, the chairman of A & K Int'l., which averred that each of the Illinois A & K defendants' offices and sole places of business were in Oak Brook, Du Page County, Illinois.

On February 23, 2001, the plaintiffs were granted leave to amend their complaint to add the foreign A & K defendants. The complaint collectively referred to both the foreign and Illinois A & K defendants as "A & K." Similar to the initial complaint, the amended complaint alleged that "A & K" was an Illinois corporation which owned and operated the Gorilla Forest Camp, and that "A & K" negligently failed to warn and protect the decedents.

On February 22, 2002, A & K Luxembourg filed a request to admit and a notice of removal of the cause to the United States District Court for the Northern District of Illinois based on the doctrine of fraudulent joinder. The request to admit, which was filed before the notice of removal, asked the plaintiffs to admit that the amount in controversy did not exceed $75,000. On June 6, 2002, the district court remanded the matter back to the circuit court over the objection of the Illinois and foreign A & K defendants.

On August 23, 2002, the foreign A & K defendants filed a motion to quash service of the amended complaint and summons, arguing that the circuit court lacked in personam jurisdiction. Attached to the motion were affidavits from corporate officers of A & K Luxembourg, A & K Uganda and Abercrombie & Kent Ltd., (Nairobi) (hereinafter "A & K Nairobi"). Sabine Perrier, of A & K Luxembourg, averred that A & K Luxembourg was a corporation organized under the laws of the Grand Duchy of Luxembourg with its principal place of business and sole office in Luxembourg. A & K Luxembourg operated as a holding company and in that capacity owned an unspecified number of shares of the Illinois A & K defendants. A & K Luxembourg also shared one common director with A & K Int'l and A & K Travel.

Peter Ngori, the managing director of A & K Nairobi, averred the following. A & K Nairobi, whose principal place of business and sole office was located in Kenya, was a retail tour operator and was primarily owned by A & K Luxembourg. A & K Nairobi was the majority shareholder of the entity known as A & K Kenya before the sale and dissolution of the later in June 1999. A & K Nairobi was incorrectly served with the amended complaint under the name A & K Kenya, and was submitting Ngori's affidavit in support of the foreign A & K defendants' motion to quash. A & K Kenya had operated as a retail travel agency with its sole place of business in Kenya. In July 1998, an independent African safari guide had contacted A & K Kenya for assistance in securing certain permits and arrangements for the decedents' trip. A & K Kenya subsequently worked with A & K Uganda to obtain the requested permits and accommodations for the decedents' vacation into the Bwindi Impenetrable Forest National Park and their lodging at the Gorilla Forest Camp.

Patrick Shah, the general manager of A & K Uganda, averred that A & K Uganda's principal place of business and sole office was located in Uganda, where the corporation organized and arranged various safaris and tours, and that A & K Luxembourg held a majority ownership interest in A & K Uganda. Employees of A & K Uganda would occasionally communicate with A & K Int'l via e-mail or telephone regarding safaris and tours organized by the two corporations and, in March 1998, Shah personally visited the offices of A & K Int'l in Illinois. Shah further averred that A & K Uganda had worked with A & K Kenya to arrange certain aspects of the decedents' travel arrangements within Africa.

Following the circuit court's allowance of limited discovery pursuant to Supreme Court Rule 201(l) (Official Reports Advance Sheet No. 8 (May 17, 2002), R. 201(l), eff. July 1, 2002), the plaintiffs served interrogatories upon the foreign A & K defendants. A & K Nairobi answered the interrogatories addressed to A & K Kenya, under objection, and only on behalf of A & K Nairobi. The answers revealed, inter alia, that A & K Uganda and A & K Nairobi derived 30% and 35%, respectively, of their business from the Illinois A & K defendants. A & K Luxembourg also answered that its board members communicated with the board members of both A & K Int'l and A & K Travel in A & K Luxembourg's capacity as a holding company.

On February 28, 2003, the plaintiffs responded to the foreign A & K defendants' motion to quash, arguing that jurisdiction was proper under sections 2-209(a)(1) and (b)(4) of the Code. 735 ILCS 5/2-209(a)(1) and (b)(4) (West 2000). Attached to their response, the plaintiffs provided several affidavits and "A & K" marketing or promotional materials. An affidavit from Robert McLaurin, which was originally submitted to the district court in support of the plaintiffs' motion to remand, averred that he and his wife were friends of the decedents and had accompanied them on the trip to the Gorilla Forest Camp. McLaurin stated that once he returned from Africa he had a conversation with Ballantine, who agreed to refund $4,765 to McLaurin on behalf of "A & K." Another document attached to the response, authored by Ballantine, stated that the refund provided to McLaurin by A & K Int'l "was merely to facilitate the refund given to Mr. McLaurin from A & K Uganda."

The marketing and promotional materials attached to the plaintiffs' response mainly consisted of several print copies of pages from the "Abercrombie & Kent" (A & K) website. One page traced the history of A & K from its beginnings as a small specialized travel firm based in Kenya, to its expansion "beyond the African continent" with offices in London and Oak Brook, Illinois, and its evolution into "a highly specialized, international, integrated group of companies." Another A & K web page contained a press release dated September 7, 1999. The press release, which originated from Oak Brook, Illinois, extolled A & K's naming as the world's best safari outfitter of 1999 before stating that, "The U.S. headquarters for Abercrombie & Kent International, Inc. is located in Oak Brook, Illinois."

Following a hearing, the circuit court granted the foreign A & K defendants' motion to quash and dismissed the foreign A & K defendants for lack of in personam jurisdiction. The circuit court subsequently granted the foreign A & K defendants' motion to make the circuit court's order final and appealable pursuant to Supreme Court Rule 304(a) (155 Ill.2d R. 304(a)), and this timely appeal follows.

Initially, we address the foreign A & K defendants' motion to strike the plaintiffs' brief and dismiss this appeal for failure to...