Chronister v. Sam Tanksley Trucking, Inc.

• Decision Date: 27 July 1983
• Docket Number: No. 83 C 0332.,83 C 0332.
• Citation: 569 F. Supp. 464
• Parties: Nora CHRONISTER, Plaintiff, v. SAM TANKSLEY TRUCKING, INC., Defendant.
• Court: U.S. District Court — Northern District of Illinois

569 F. Supp. 464

Nora CHRONISTER, Plaintiff, v. SAM TANKSLEY TRUCKING, INC., Defendant.

No. 83 C 0332.

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

July 27, 1983.

COPYRIGHT MATERIAL OMITTED

Lawrence W. Leck, Lawrence W. Leck & Associates, Ltd., Chicago, Ill., for plaintiff.

Iversen, Carlson & Associates, Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Petitioner Nora Chronister ("Chronister") brought suit against Sam Tanksley Trucking, Inc. ("STT") for allegedly violating Missouri's workmen's compensation law and the public policy against retaliatory discharge. On or about April 16, 1982, while working as a truck driver for STT, Chronister was involved in an accident and sustained personal injuries. Chronister thereafter made claims for medical benefits and other compensation. In her complaint, she alleges that STT terminated her as a direct and proximate cause of her being injured on the job and requesting compensation. She claims, in separate counts, that this violated § 287.780¹ of Missouri's workmen's compensation law and the public policy against retaliatory discharge. Chronister is a resident of Illinois. STT is a corporation incorporated under the laws of Missouri with its principal place of business in Missouri. Presently before this Court is STT's motion to dismiss for lack of personal jurisdiction and insufficiency of process served. STT has also moved to strike Chronister's affidavits. For the reasons set forth below, STT's motion to strike is denied. Furthermore, although the process served on STT was insufficient and will be quashed, for the reasons set forth herein STT's motion to dismiss is denied.

THE SUFFICIENCY OF THE AFFIDAVIT

STT contends that Chronister's first affidavit fails to fulfill the requisite form for affidavits delineated in Rule 56(e)² of the Federal Rules of Civil Procedure. In response, Chronister has submitted a second affidavit, setting forth many of the facts that STT claims are essential to fulfill Rule 56(e).³ We believe that this second affidavit fulfills this rule. The submission of additional proper affidavits is sufficient to cure any defects which may have existed in the original affidavits. Liberty Curtin Concerned Parents v. Keystone Central School District, 81 F.R.D. 590, 604 (M.D.Pa.1978). Therefore, we need not decide whether Chronister's first affidavit is insufficient. Accordingly, STT's motion to strike is denied.

THE EXISTENCE OF PERSONAL JURISDICTION

When federal jurisdiction rests upon diversity of citizenship, personal jurisdiction is determined in accordance with the law of the forum state, with federal law entering the picture only for the purpose of deciding whether a state's assertion of jurisdiction contravenes a constitutional guarantee. O'Hare International Bank v. Hampton, 437 F.2d 1173, 1175 (7th Cir. 1971). See also Bodine's, Inc. v. Sunny-O, Inc., 494 F.Supp. 1279 (N.D.Ill.1980). Therefore, Illinois law establishes the guidelines for determining whether personal jurisdiction exists in the instant case. Personal jurisdiction over a non-resident defendant may be obtained under the Illinois Long-Arm Statute, Ill.Rev.Stat. ch. 110 § 2-209, or under the doctrine that a non-resident corporation is "doing business" in the State. Cook Associates, Inc. v. Lexington United Corp., 87 Ill.2d 190, 199, 57 Ill. Dec. 730, 734, 429 N.E.2d 847, 851 (1981).

The only federal requirement is that these jurisdictional tests comply with federal due process standards. These standards require sufficient "minimum contacts" with the forum state such that the exercise of jurisdiction over a non-resident defendant is congruent with traditional concepts of fair play and substantial justice. Hanson v. Denckla, 357 U.S. 235, 251, 78 S.Ct. 1228, 1238, 2 L.Ed.2d 1283 (1958); International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). The crux of the due process analysis "is that the defendant's conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there." World-Wide Volkswagen v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980).

The Illinois Supreme Court has held that neither the Long-Arm Statute nor the "doing business" test are to be equated with the federal due process standards. Cook, 87 Ill.2d at 197, 201, 57 Ill.Dec. at 733, 735, 429 N.E.2d at 850, 852; Green v. Advance Ross Electronics Corp., 86 Ill.2d 431, 436, 56 Ill. Dec. 657, 660, 427 N.E.2d 1203, 1206 (1981). After Cook and Green, it became clear that even if the exercise of personal jurisdiction meets the federal constitutional requirements of due process, it may not be authorized under the stricter Illinois requirements. U.S. Reduction Co. v. Amalgamet, Inc., 545 F.Supp. 401, 402 (N.D.Ill.1982). See also State Security Ins. Co. v. Frank B. Hall & Co., Inc., 530 F.Supp. 94, 96 (N.D.Ill. 1981). Since the Illinois jurisdictional requirements are stricter than is required by federal due process, our analysis of Chronister's claim will focus upon the Illinois requirements.

The Illinois Long-Arm Statute provides that:

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, and, if an individual, his or her personal representative to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts:

(1) The transaction of any business within this State;

(2) The commission of a tortious act within this State;

(3) The ownership, use, or possession of any real estate situated in this State;

(4) Contracting to insure any person, property or risk located within this State at the time of contracting;

(5) With respect to actions of dissolution of marriage and legal separation, the maintenance in this State of a matrimonial domicile at the time this cause of action arose or the commission in this State of any act giving rise to the cause of action.

It is clear that jurisdiction is limited to those causes of action arising from the commission of any of the above acts within Illinois.

With regard to the "doing business" test for personal jurisdiction, a certain regularity of activities in Illinois is required. A corporation must operate in the State not occasionally, but with a measure of continuity. Cook, 87 Ill.2d at 202-03, 57 Ill.Dec. at 735-36, 429 N.E.2d at 852-53. See also, Braband v. Beech Aircraft Corp., 72 Ill.2d 548, 21 Ill.Dec. 888, 382 N.E.2d 252 (1978), cert. denied, 442 U.S. 928, 99 S.Ct. 2857, 61 L.Ed.2d 296 (1979).

When considering a challenge to its jurisdiction, a court may receive and weigh affidavits. O'Hare, 437 F.2d 1176. Chronister has submitted two affidavits to supplement her complaint.⁴ Both address specifically the "doing business" test. STT in turn has submitted one affidavit supplementing its answer.

Although the burden of proof rests on the plaintiff asserting jurisdiction, for the purpose of making such determinations, conflicts in affidavits must be resolved in favor of the plaintiff. Vena v. Western General Agency, Inc., 543 F.Supp. 779, 782 (N.D.Ill.1982). See also, Chicago Silver Exchange v. United Refinery, Inc., 394 F.Supp. 1332, 1335 (N.D.Ill.1975). Assuming everything Chronister alleges to be true, this Court, while lacking jurisdiction under the Illinois Long-Arm Statute, has personal jurisdiction over the defendant through the "doing business" test.

The Long-Arm Statute does not give this Court personal jurisdiction over Chronister's action. According to the undisputed claim in STT's affidavit, the events upon which Chronister bases her complaint took place in Texas. It is thus highly unlikely that her cause of action could have arose from acts committed in Illinois. Furthermore, Chronister has failed to allege that STT committed any acts, as enumerated in the Long-Arm Statute, which gave rise to the accident. Indeed, Chronister incorrectly maintains that this is unnecessary. As previously mentioned, the burden of proof rests on the party asserting jurisdiction. O'Hare, 437 F.2d at 1176. This burden can be met by a prima facie showing that jurisdiction is conferred by the Long-Arm Statute. Id. This Court thus finds that Chronister has failed to make the requisite prima facie showing regarding this Statute.

This Court, however, does have jurisdiction over this action through the "doing business" test. In Chronister's second affidavit, it is asserted that STT has conducted regular business in Illinois for the past five years. Chronister also asserts that she made approximately 50 to 75 trips into Illinois transporting various goods and materials under the instruction and direction of STT. She lists specifically eight companies with which she was personally involved in the transportation of goods for STT. Assuming everything Chronister alleges to be true, she has established a regularity of activities by STT in Illinois such that it was not operating occasionally, but with a measure of continuity. This Court accordingly has personal jurisdiction under the "doing business" test.

THE INSUFFICIENCY OF THE PROCESS SERVED

STT also maintains that this action should be dismissed because the process served was allegedly insufficient. On February 22, 1983, Chronister filed with the United States Marshal for the Northern District of Illinois a summons and complaint. The marshal sent these items via certified mail to STT in Cape Girardeau, Missouri, the date of service recorded as March 7, 1983. The marshal also sent a return of service postcard, postage prepaid, addressed to the United States Marshal's Service in Chicago. This postcard allowed acknowledgment by STT of the receipt of the summons and complaint. The United States Marshal's Service received this postcard from STT and on March 18, 1983, filed it with the Clerk of the United States District Court.

STT...