Tatham-Laird & Kudner, Inc. v. Johnny's American Inn, Inc.

• Decision Date: 09 September 1974
• Docket Number: No. 74 C 1175.,74 C 1175.
• Citation: 383 F. Supp. 28
• Court: U.S. District Court — Northern District of Illinois
• Parties: TATHAM-LAIRD & KUDNER, INC., Plaintiff, v. JOHNNY'S AMERICAN INN, INC., Defendant.

383 F. Supp. 28

TATHAM-LAIRD & KUDNER, INC., Plaintiff, v. JOHNNY'S AMERICAN INN, INC., Defendant.

No. 74 C 1175.

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

September 9, 1974.

James E. Betke, McDermott, Will & Emory, Chicago, Ill., for plaintiff.

Michael W. Coffield, Kirkland & Ellis, Chicago, Ill., for defendant.

MEMORANDUM OPINION

WILL, District Judge.

The plaintiff, Tatham-Laird & Kudner, Inc. (hereinafter TLK), an advertising agency, brings this action to recover $78,235.54 allegedly owed to it by the defendant, Johnny's American Inn, Inc. (hereinafter Johnny's) for services performed pursuant to a written advertising contract. Jurisdiction is based upon diversity of citizenship, 28 U.S.C. § 1332; the plaintiff being a Delaware corporation with its principal place of business in Chicago, Illinois, while the defendant is a Nebraska corporation with its principal place of business in Omaha, Nebraska.

The defendant challenges the personal jurisdiction of this court, moving both to dismiss the instant action and to quash the issuance and return of summons. In support, the defendant maintains that:

1. It is a Nebraska corporation;

2. It is not and never has been an Illinois corporation;

3. It is not qualified or licensed to do business in Illinois;

4. It has never appointed or authorized an agent to accept service of process in any suit in Illinois;

5. It has no employees, offices or real estate in Illinois;

6. It provides no services to customers residing in Illinois;

7. It has had any and all orders for goods, merchandise, and services purchased by it accepted, shipped or performed solely within the State of Nebraska.

Based on the foregoing, the defendant argues that it has neither transacted business nor had sufficient contacts within Illinois to establish long arm jurisdiction. The facts, however, do not bear out any such finding and for the reasons set forth hereinafter, we must deny the defendant's motions.

It has been repeatedly stressed by the Illinois courts that the legislative intent of the Illinois long arm statute, Chap. 110, Ill.Rev.Stat., §§ 16 and 17, was the exertion of jurisdiction over non-residents to the maximum extent permitted by the due process clause. O'Hare International Bank v. Hampton, 437 F.2d 1173 (7th Cir. 1972); Rosenthal & Company v. Dodick, 365 F.Supp. 847 (N.D.Ill.1973); Nelson v. Miller, 11 Ill.2d 378, 143 N.E.2d 673 (1957). As set forth in International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and its progeny, due process requires that there be sufficient minimum contacts with the forum state so that the exercise of jurisdiction over the non-resident be both reasonable and just according to the traditional concepts of fair play and substantial justice. Personal jurisdiction thus depends upon the existence of some voluntary act or conduct which affords the defendant the benefits and protections of the forum's law. Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961). In Illinois, this does not necessitate the defendant's actual physical presence in the state, but only that the transactions have a substantial connection with this forum. Cook Associates, Inc. v. Colonial Broach & Machine Co., 14 Ill.App.3d 965, 304 N.E.2d 27 (1973).

Applying these standards to the instant suit, it is readily apparent that the defendant's contacts with Illinois establish personal jurisdiction. As stated in affidavits submitted by the plaintiff, which remain uncontested, Johnny's was established by Swanson Enterprises for which the plaintiff had performed advertising services since 1950. In September or October of 1968, Cecil Johnson, the defendant's attorney, contacted TLK and set up a meeting at the plaintiff's office in Chicago to discuss the possibility of TLK providing advertising services and market counseling for this new business venture of Swanson's. On October 8, 1968, Johnson and other representatives of Swanson met with TLK in Chicago at which time TLK was advised of the proposed Johnny's fast food franchise operation.

Following this meeting, TLK orally agreed to provide the advertising and marketing services solicited by Swanson. On October 16, 1968, a letter of confirmation was sent by TLK from Chicago to Johnson in Omaha, Nebraska, and TLK received a return letter from Johnson dated October 17, 1968, accepting TLK's proposal.

Thereafter, all advertising and marketing services were provided from TLK's Chicago office. TLK's management supervisor in charge of Johnny's account worked out...