836 F.2d 341 (7th Cir. 1988), 87-1033, Saylor v. Dyniewski

Docket Nº:87-1033.
Citation:836 F.2d 341
Party Name:Alfred SAYLOR, Mary L. Saylor, and Julie M. Saylor, a minor, by her mother and next friend, Mary L. Saylor, Plaintiffs-Appellants, v. Walter M. DYNIEWSKI, Sr., Defendant-Appellee.
Case Date:January 06, 1988
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 341

836 F.2d 341 (7th Cir. 1988)

Alfred SAYLOR, Mary L. Saylor, and Julie M. Saylor, a minor,

by her mother and next friend, Mary L. Saylor,

Plaintiffs-Appellants,

v.

Walter M. DYNIEWSKI, Sr., Defendant-Appellee.

No. 87-1033.

United States Court of Appeals, Seventh Circuit

January 6, 1988

Argued Sept. 21, 1987.

Larry Karchmar, Larry Karchmar, Ltd., Chicago, Ill., for plaintiffs-appellants.

Frank C. Stevens, Taylor, Miller, Sprowl, Hoffnagle & Merletti, Chicago, Ill., for defendant-appellee.

Before CUDAHY, POSNER, and KANNE, Circuit Judges.

CUDAHY, Circuit Judge.

The Saylors, who reside in Illinois, brought this diversity action in the District Court for the Northern District of Illinois against Walter Dyniewski, an Indiana resident, for injuries they sustained when Dyniewski's and the Saylors' cars collided at an intersection near Valparaiso, Indiana. The defendant moved to dismiss the suit for lack of personal jurisdiction. Plaintiffs, who were by then precluded from refiling their suit in Indiana where personal jurisdiction over defendant would have been assured, opposed the dismissal motion and sought to have the case transferred to an Indiana district court. The Illinois district court granted the motion to dismiss and denied the transfer request.

Page 342

Construing all disputed facts that bear on personal jurisdiction in the light most favorable to the plaintiffs, we conclude that the Illinois district court lacked personal jurisdiction over the defendant. We also find that the district court did not abuse its discretion in refusing to transfer the case to Indiana. We therefore affirm.

I.

On June 11, 1984, Alfred Saylor and Walter Dyniewski were involved in an automobile accident near Valparaiso, Indiana. Saylor was a resident of Oak Lawn, Illinois; Dyniewski resided in Hebron, Indiana, and worked in Valparaiso. According to Alfred Saylor's affidavit, Dyniewski talked to Saylor at the scene of the accident, relating that he had been en route from "some type of business sales activities" in Illinois when the accident occurred. Dyniewski's affidavit offers a conflicting account of this conversation. According to Dyniewski, he told Saylor that he had been on the way home from work--at the manufacturing plant in Valparaiso where he had worked as a maintenance man for twenty-three years--when the accident occurred.

Alfred Saylor, together with his wife and daughter who were passengers at the time of the accident, initiated this action in the District Court for the Northern District of Illinois on April 21, 1986, seeking tort damages from Dyniewski. The suit was filed with less than two months remaining within the two-year limitation period provided by both the Illinois and Indiana statutes of limitations. Ill.Ann.Stat. ch. 110, para. 13-202 (Smith-Hurd 1984); Ind. Code Ann. Sec. 34-1-2-2(1) (West 1983).

On May 6, 1986, Saylor's attorney mailed Dyniewski copies of the Complaint and Summons in the Illinois action. This mailing also included an "Acknowledgment of Receipt of Summons and Complaint" form and a notice explaining that Dyniewski was being served under Rule 4(c)(2)(C)(ii) of the Federal Rules of Civil Procedure and that failure to return the acknowledgment form within twenty days could result in service by a United States marshall with costs charged to the recipient. Dyniewski nevertheless declined to return the acknowledgment form. On May 15th, Dyniewski's attorney notified the Saylors' attorney that Dyniewski would insist on personal service. Service was finally perfected by the United States marshal on June 23, 1986, almost two weeks past the deadline for filing a protective suit in Indiana against the possibility of dismissal for want of jurisdiction in Illinois.

On December 31, 1986, the Illinois district court dismissed the Saylors' suit for lack of personal jurisdiction and denied the Saylors' Motion for Transfer of Venue. The plaintiffs then brought this appeal.

II.

Under Illinois law, the party seeking to establish personal jurisdiction must make out a prima facie case. Kutner v. DeMassa, 96 Ill.App.3d 243, 247-48, 51 Ill.Dec. 723, 727, 421 N.E.2d 231, 235 (1981); Wessel Co., Inc. v. Yoffee & Beitman Management Corp., 457 F.Supp. 939, 940 (N.D.Ill.1978). In deciding a motion to dismiss, the court must accept all undenied factual allegations and resolve all factual disputes in favor of the party seeking to establish jurisdiction. Delux Ice Cream Co. v. R.C.H. Tool Corp., 726 F.2d 1209 (7th Cir.1984). We therefore accept Alfred Saylor's representation that, to the best of his "knowledge and recollection," Dyniewski spoke to him immediately after the accident...

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