832 F.2d 383 (7th Cir. 1987), 86-1614, Mason v. F. LLI Luigi and Franco Dal Maschio Fu G.B. s.n.c.

Docket Nº:86-1614, 86-1646 and 86-1709.
Citation:832 F.2d 383
Party Name:Daraleen MASON, Plaintiff-Appellee, v. F. LLI LUIGI AND FRANCO DAL MASCHIO FU G.B. s.n.c., a partnership, Defendant, Third-Party Plaintiff-Appellee, Cross-Appellant, v. LIBMAN BROOM COMPANY, Third-Party Defendant-Appellant, Cross-Appellee.
Case Date:October 06, 1987
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 383

832 F.2d 383 (7th Cir. 1987)

Daraleen MASON, Plaintiff-Appellee,

v.

F. LLI LUIGI AND FRANCO DAL MASCHIO FU G.B. s.n.c., a

partnership, Defendant, Third-Party

Plaintiff-Appellee, Cross-Appellant,

v.

LIBMAN BROOM COMPANY, Third-Party Defendant-Appellant, Cross-Appellee.

Nos. 86-1614, 86-1646 and 86-1709.

United States Court of Appeals, Seventh Circuit

October 6, 1987

Argued Feb. 17, 1987.

Page 384

Harlan Heller, Harlan Heller, Ltd., Matton, Ill., for third-party plaintiff-appellee, appellant.

Ronald L. Lipinski, Seyfarth, Shaw, Fairweather & Geraldson, Gregory R. Sun, Chicago, Ill., for plaintiff-appellee.

Before BAUER, Chief Judge, CUMMINGS and POSNER, Circuit Judges.

CUMMINGS, Circuit Judge.

In July 1979 plaintiff Daraleen Mason was injured by a broom flagging machine (also known as a cutter/flagger) manufactured by defendant Italian partnership entitled F. LLI Luigi and Franco Dal Maschio Fu G.B. s.n.c. ("Dal Maschio") and located in Salzano, Italy. This kind of machine is used to cut plastic broom fibers to soften their tips. The injury occurred on July 4, 1979, while plaintiff was working in Arcola,

Page 385

Illinois, for Libman Broom Company ("Libman") added by Dal Maschio as the third-party defendant. Plaintiff began to work for Libman at the end of June 1979. Her injury occurred two days after she began operating the flagging machine, when she accidentally stepped on a foot pedal, causing her right arm to be pulled into the machine. As a result she lost her right hand and part of her right forearm. She was the first Libman employee to be injured by one of its flagging machines. Her medical expenses were stipulated to be $11,431.28 and her lost wages totaled $6,462.86. She has been Village Secretary and Deputy Clerk for the Village of Arthur, Illinois, since July 1980. Instead of suing Libman, she settled her claim against it under the Illinois Workers' Compensation Act for about $35,000 according to counsel at oral argument.

After a jury trial, judgment was entered against Dal Maschio in the sum of $800,000. In turn, judgment was entered in favor of third-party plaintiff Dal Maschio against third-party defendant Libman in the amount of $280,000 because the jury found that Libman was 35% at fault. According to an affidavit filed by Dal Maschio in support of a motion to dismiss or to quash service upon it, Dal Maschio sold its cutter/flagger machines f.o.b. Italy to Werner Petzold & Co. ("Petzold") in Cockeysville, Maryland. 1 In turn, Petzold sold the cutter/flagger in question to Libman. Werner Petzold, the owner of Petzold, stated in an affidavit that he was not an officer, director or employee of Dal Maschio and received no direct compensation from it. Subsequent unrebutted evidence showed that he visited Libman on several occasions to show how to operate the machines. Although Petzold is a Maryland corporation, Dal Maschio does not deny that Werner Petzold's position with Dal Maschio is similar to an in-house export manager and that he sold its machinery to Libman on several occasions. Dal Maschio often paid for his trips to its factory in Italy or to trade shows in Europe. He and Dal Maschio employee Marcuglia made several trips to Libman to set up the machines, show Libman how to service them, and teach its personnel. The machine in question was specifically designed for Libman's needs. 2

I.

Dal Maschio contends that it would violate the Due Process Clause of the Fourteenth Amendment to apply the Illinois long-arm statute (Ill.Rev.Stat. ch. 110 Sec. 2-209) to it. Its contention cannot be sustained under the recent decision of the Supreme Court in Asahi Metal Industry Co., Ltd. v. Superior Court of California, --- U.S. ----, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987). 3 There Asahi manufactured tire valve assemblies in Japan and sold them to Cheng Shin Rubber Industrial Co. in Taiwan. Asahi knew that Cheng Shin's tires incorporating Asahi's product would end up in California. The California Supreme Court had held that Asahi's placement of its assemblies in the stream of commerce by delivering them to Cheng Shin in Taiwan, plus Asahi's awareness that some of them would reach California, supported California jurisdiction under the Due Process Clause over a suit by Cheng Shin for indemnification from Asahi. The original plaintiff, a person severely injured in California when his motorcycle's rear tire exploded, had sued only Cheng Shin and had previously settled that action. The Supreme Court reversed, holding in Part II-B of the opinion (which was the opinion of the Court) that it would be unreasonable and unfair and in violation of the Due Process Clause to permit the exercise of personal jurisdiction over Asahi. As in that case, it is true that the burden imposed on Dal Maschio by the exercise of jurisdiction here would be severe since it would require it

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not only to traverse the distance between Italy and Illinois but also to submit its dispute with plaintiff to a foreign judicial system. Dal Maschio is not qualified to do business in Illinois. It has no office, telephone listing or registered agent there. It owns no bank accounts or property, real or personal, in Illinois, nor does it apparently conduct business there apart from its relations with Libman. Therefore, at first blush, it might be said, as pointed out in Asahi in denying jurisdiction over that Japanese manufacturer:

The unique burdens placed upon one who must defend oneself in a foreign legal system should have significant weight in assessing the reasonableness of stretching the long arm of personal jurisdiction over national borders.

107 S.Ct. at 1034. Then the Court concluded:

Considering the international context, the heavy burden on the alien defendant, and the slight interests of the plaintiff and the forum State, the exercise of personal jurisdiction by a California court over Asahi in this instance would be unreasonable and unfair.

Id. at 1035. But in contrast, the interests of the plaintiff and forum State here are heavy, and therefore Asahi is of no avail to Dal Maschio's position.

In this case, Dal Maschio made the machine involved in the accident and similar machines especially for Libman, and one of its employees visited Libman in Illinois several times to show how to set up, operate and service the machines and to teach its personnel. Dal Maschio knew that the machines...

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