Glass v. Kemper Corp.
| Decision Date | 25 June 1996 |
| Docket Number | No. 95 C 3178.,95 C 3178. |
| Citation | 930 F. Supp. 332 |
| Parties | Gregory GLASS, Plaintiff, v. KEMPER CORPORATION, et al., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
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Alan Jay Mandel, Chicago, Illinois, for Plaintiff.
Bennett L. Epstein, John Friedrich Zabriskie, Diane E. Gianos, Hopkins & Sutter, P.C., Chicago, Illinois, for Kemper Corporation.
Robert N. Hermes, Butler, Rubin, Saltarelli & Boyd, Chicago, Illinois, for The Prime Group, Inc. and Prime International, Inc.
Before the court is defendant Michael Oberst's motion to dismiss Counts I and VI of plaintiff Gregory Glass's second amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(2). For the reasons that follow, the court grants Oberst's motion to dismiss.
In its earlier opinion dismissing Count VI against Oberst's co-defendants, the court set out the events leading up to this litigation. See Glass v. Kemper, 920 F.Supp. 928 (N.D.Ill.1996). All of those facts need not be repeated here, but the court will recount the facts that relate specifically to Oberst and his motion to dismiss.
In November 1992, Glass began working for Kepro, S.A. ("Kepro"), and defendant Prime Group, Inc. ("Prime"), in Barcelona, Spain, on the development of a shopping mall to be known as Diagonal Mar. Kepro and Prime were developing the mall for Kemper Corporation ("Kemper"). In May 1993, Oberst was hired by Kemper Financial Services, Inc. ("Kemper Financial"), a wholly owned subsidiary of Kemper, to oversee Kemper's Spanish real estate investments, including Diagonal Mar.
Oberst initially was named a vice president of Kemper Financial. In May 1994, Kemper took control of Kepro, Prime, and other entities affiliated with Diagonal Mar. At that time, Oberst became a Kemper employee and vice president, and was named managing director of Kepro and its Spanish subsidiaries and assumed responsibility for managing the overall development of Diagonal Mar. Also at that time, Glass became a Kemper employee under Oberst.
Oberst and Glass began negotiations for Glass's new employment agreement. However, in October 1994, Kemper, through Oberst, fired Glass. Glass filed a lawsuit in this court,2 alleging various counts against various defendants. Against Oberst, Glass brought claims of fraud, based on the negotiations between Oberst and Glass, and violation of the Illinois Wage Payment and Collection Act.
Oberst currently lives in California, and lived in California prior to working for Kemper Financial and Kemper. From May 1, 1993, through December 3, 1995, Oberst lived as a legal Spanish resident in Barcelona, Spain. Oberst never has lived or maintained a residence in Illinois, owned real property in Illinois, maintained an office in Illinois, maintained a telephone number in Illinois, voted or been liable for income taxes in Illinois, or held a job in which he was based in Illinois.
From September 1988 through April 1993, Oberst worked as a senior vice president for Homart Development Company, which had its headquarters in Chicago. Oberst's office was in California, and he managed real estate projects in California and Texas. Since Homart was based in Chicago, Oberst's supervisors directed him to attend business events in Illinois periodically. Oberst made about four trips per year to Chicago during his employment with Homart.
Before hiring Oberst, Kemper Financial required Oberst to interview at its Chicago office. After hiring Oberst, Kemper Financial required Oberst to spend his first week in its Chicago office for orientation and to prepare to move to Barcelona. After that first week, Oberst was based in Barcelona.
During his week of orientation in Chicago before moving to Barcelona, Oberst made arrangements with the International Private Banking Department of the First National Bank of Chicago ("First Chicago") to have First Chicago maintain his checking, money market, IRA, and investment advisory accounts, pay his bills, and forward his mail to Barcelona.
Kemper Financial, Kemper, and Prime have their headquarters in Illinois. While working in Barcelona, Oberst attended seven board meetings in Chicago to give progress reports on Kemper's Spanish projects. Oberst also had occasional telephone conversations with people at Kemper, Kemper Financial, and Prime headquarters in Chicago. The telephone conversations involved issues that Oberst had to address with people at the headquarters.
Oberst did not meet with Glass during any of his trips to Illinois, and was in Spain when he sent Glass the memorandum terminating Glass's employment. However, in August 1994, during one of his visits to Illinois, Oberst discussed Glass's employment contract with John Neal, Oberst's immediate superior. Oberst also wrote letters to people in Chicago, including Neal, regarding Glass's and other employees' employment contracts. All of Oberst's communications with Glass regarding Glass's employment contract occurred outside of Illinois.
Oberst owns no ownership interest in Kemper Financial, Kemper, or Prime, nor equity interest in Diagonal Mar or any other Kepro real estate or entities. Oberst owns a small amount of Kemper stock.
In sum, Oberst's contacts with Illinois consist of several trips a year during his prior employment with Homart; interviewing with Kemper Financial in Chicago; orientation in Chicago at the start of his employment with Kemper Financial; seven trips to attend board meetings during his employment with Kemper Financial and Kemper; telephone conversations and written communications with people at Kemper Financial, Kemper, and Prime headquarters in Chicago; and maintenance of a banking relationship with First Chicago, based in Chicago.
The question is whether these contacts with Illinois are sufficient to establish this court's jurisdiction over Oberst.
On April 1, 1996, the court dismissed Count VI of Glass's amended complaint, which alleged a violation of the Illinois Wage Payment and Collection Act, 820 ILCS 115/1-115/16, on the ground that the Wage Payment and Collection Act only protects Illinois employees working for Illinois employers. Since Glass was not an Illinois employee at any time during his work on Diagonal Mar, the court ruled that he could not seek the protection of the Wage Payment and Collection Act. See Glass, 920 F.Supp. at 930-34.
While Oberst had not yet been served at the time the other defendants moved to dismiss Count VI, the court finds that its reasoning in dismissing that count applies as a matter of law to all defendants sued by Glass. Therefore, Count VI is dismissed as to Oberst as well. Only Count I, alleging fraud, remains pending against Oberst, and it is based on that count that the court must have personal jurisdiction over Oberst.
In a case based on diversity of citizenship, a federal district court sitting in Illinois has personal jurisdiction over a nonresident defendant only if an Illinois court would have jurisdiction. Daniel J. Hartwig Assoc., Inc., v. Kanner, 913 F.2d 1213, 1216 (7th Cir.1990).
Under Illinois law, a plaintiff bears the burden of providing sufficient facts to establish personal jurisdiction. McIlwee v. ADM Industries, Inc., 17 F.3d 222, 223 (7th Cir.1994); O'Hare Int'l Bank v. Hampton, 437 F.2d 1173, 1176 (7th Cir.1971). In deciding a motion to dismiss for lack of personal jurisdiction, the court may receive and consider affidavits from both parties. Turnock v. Cope, 816 F.2d 332, 333 (7th Cir.1987). The court resolves factual disputes in the pleadings and affidavits in favor of the plaintiff, but takes as true facts contained in the defendant's affidavit that remain unrefuted by the plaintiff. Boese v. Paramount Pictures Corp., No. 93 C 5976, 1994 WL 484622, *2 (N.D.Ill. Sept. 2, 1994) (citing Nelson v. Park Industries, Inc., 717 F.2d 1120, 1123 (7th Cir.1983), cert. denied, 465 U.S. 1024, 104 S.Ct. 1277, 1278, 79 L.Ed.2d 682 (1984)).
In determining whether it has jurisdiction, the court makes a two-part inquiry: "(1) whether the state statute allows jurisdiction, and (2) whether the assertion of jurisdiction complies with constitutional due process standards." Wilson v. Humphreys (Cayman) Ltd., 916 F.2d 1239, 1243 (7th Cir.1990), cert. denied, 499 U.S. 947, 111 S.Ct. 1415, 113 L.Ed.2d 468 (1991).
However, Illinois amended its long-arm jurisdictional statute, effective September 7, 1989, by adding a provision that effectively collapses the two inquiries into one.4 Illinois' long-arm statute now extends personal jurisdiction to the limit allowed under the due process clauses of the Illinois and United States constitutions. Dehmlow v. Austin Fireworks, 963 F.2d 941, 945 (7th Cir.1992); Wilson, 916 F.2d at 1243. Thus, the inquiry now is simply whether this court may assert in personam jurisdiction over a defendant consistent with due process. Wallace v. Herron, 778 F.2d 391, 393 (7th Cir. 1985), cert. denied, 475 U.S. 1122, 106 S.Ct. 1642, 90 L.Ed.2d 187 (1986).
The court cannot look only to federal due process principles, however. The Illinois Supreme Court has held unequivocally that the Illinois constitution contains its own separate and independent guarantee of due process, which also must be satisfied for a court to have jurisdiction over a defendant. Rollins v. Ellwood, 141 Ill.2d 244, 275, 152 Ill.Dec. 384, 398, 565 N.E.2d 1302, 1316 (1990). See also Mors v. Williams, 791 F.Supp. 739, 741 (N.D.Ill.1992).
Thus, the court must take into consideration both federal and Illinois due process to determine whether jurisdiction is proper. If jurisdiction is improper under either federal or Illinois due process, this court cannot exercise jurisdiction over the defendant.
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