Liaquat Khan v. Van Remmen, Inc.

• Decision Date: 18 September 2001
• Docket Number: No. 2-00-0949.,2-00-0949.
• Citation: Liaquat Khan v. Van Remmen, Inc., 756 N.E.2d 902, 325 Ill. App.3d 49, 258 Ill.Dec. 628 (Ill. App. 2001)
• Parties: LIAQUAT KHAN, Plaintiff-Appellant, v. VAN REMMEN, INC., and Thomas Haynes, Defendants-Appellees.
• Court: Appellate Court of Illinois

756 N.E.2d 902

325 Ill. App.3d 49

258 Ill.Dec. 628

LIAQUAT KHAN, Plaintiff-Appellant, v. VAN REMMEN, INC., and Thomas Haynes, Defendants-Appellees.

No. 2-00-0949.

Appellate Court of Illinois, Second District.

September 18, 2001.

Gregory J. Bueche, Naperville, for Liaquat Khan.

Raysa & Skelton, P.C., Richard D. Skelton, Raysa & Skelton, P.C., Oak Park, for Thomas Haynes and Van E. Remmens, Inc.

Justice BOWMAN delivered the opinion of the court:

Plaintiff, Liaquat Khan, filed suit in the circuit court of Du Page County against defendants, Van Remmen, Inc. (VRI), and Thomas Haynes, alleging that they failed to pay all of the wages due to him pursuant to an employment agreement. Defendants filed special and limited appearances and moved to quash the summons served upon them, arguing lack of in personam jurisdiction. Plaintiff brings this appeal from the trial court's order granting defendants' motion to quash and dismissing plaintiff's action.

The record reveals that VRI was in the business of hiring technically trained individuals to work for its customers on a temporary basis. Haynes was the president of VRI. Plaintiff alleged in his complaint that from 1995 through 1998 he and VRI were parties to an employment agreement (agreement). The agreement provided that plaintiff would work for J.I. Case Corporation in Racine, Wisconsin, at the rate of $28.50 per hour and would receive 1½ times that rate for overtime work. Plaintiff attached an unsigned copy of the agreement to his complaint. Another exhibit to the complaint, a letter on VRI letterhead, indicated that effective June 17, 1996, plaintiff's hourly rate was increased to $29.50 per hour, with an overtime rate of $44.25 per hour.

Plaintiff alleged that VRI did not pay the overtime rate as specified in the agreement and thus owed him $28,823.50. Plaintiff sought recovery under the Illinois Wage Payment and Collection Act (Wage Act or Act) (820 ILCS 115/1 et seq. (West 1998)) and under the theories of breach of contract and promissory estoppel.

Defendants' motion to quash alleged that VRI was a Delaware corporation with its principal place of business in Racine, Wisconsin, and that Haynes was a Wisconsin resident. Defendants argued that there was no basis for personal jurisdiction over them because (1) they did not have sufficient contacts with Illinois to be deemed "doing business" in Illinois; (2) the "transaction" upon which plaintiff based his complaint, namely, the agreement between plaintiff and VRI, was performed in Wisconsin; and (3) the Wage Act did not confer jurisdiction over them.

In an affidavit in support of the motion to quash, Haynes averred that VRI had no offices in Illinois, had no Illinois telephone number, did not advertise in Illinois, and issued all of its payroll checks in Wisconsin. Further, Haynes stated that plaintiff initiated contact with VRI by calling VRI's personnel manager and asking if he could find plaintiff employment. Plaintiff then sent his resume to VRI. VRI reviewed his resume and informed plaintiff that VRI could place him in a position in Wisconsin. Haynes stated that plaintiff and VRI "discussed the terms of employment, but no written employment agreement was signed." According to Haynes, plaintiff worked for J.I. Case from June 19, 1995, through March 11, 1998, and all of his work was performed in Wisconsin.

The Haynes affidavit further indicated that VRI employed approximately 50 employees from 1995 through the time of the affidavit. From 1995 through 1997, VRI placed one Wisconsin resident with an Illinois corporation. In 1998, VRI placed two Illinois residents with an Illinois company. In 1999, VRI did not recruit any Illinois residents to work in Illinois companies, and in 2000, one Illinois resident was recruited to work for an Illinois company.

Plaintiff filed a counteraffidavit in which he averred that VRI paid for his travel from Chicago to Racine, Wisconsin. Contrary to Haynes, plaintiff stated that the employment agreement was executed and it was executed in Illinois. According to plaintiff, VRI sent him two originals of the agreement, both signed by an agent of VRI. Plaintiff signed both agreements in Illinois and sent one of the agreements back to VRI.

Plaintiff further alleged that VRI advertised in Illinois through a website that solicited resumes from Illinois residents and listed employment available in Illinois. Plaintiff attached to his affidavit printouts of the alleged VRI website pages. The address of the website was "http://vritech.com." However, the pages themselves stated that they were for a company called "JTT Technical Services." Plaintiff averred that "JTT Technical Support" was a division of VRI.

Last, plaintiff stated "upon information and belief" that there were additional VRI employees working in Illinois whom Haynes did not disclose in his affidavit.

After hearing argument, the trial court ruled that plaintiff had failed to demonstrate that defendants had sufficient contacts with Illinois to subject them to personal jurisdiction and granted the motion to quash. Plaintiff's appeal followed.

Plaintiff contends that the trial court had jurisdiction over VRI and Haynes because (1) VRI was doing business in Illinois, (2) the employment agreement was a transaction substantially connected to Illinois, and (3) VRI and Haynes committed tortious acts in Illinois, namely, violations of the Wage Act. The applicable standard of review is de novo where, as here, the trial court did not hold an evidentiary hearing but determined jurisdiction solely on the basis of documentary evidence. Hendry v. Ornda Health Corp., Inc., 318 Ill.App.3d 851, 852, 252 Ill.Dec. 208, 742 N.E.2d 746 (2000). The plaintiff bears the burden of showing that a valid basis exists for exercising jurisdiction over a defendant. Mellon First United Leasing v. Hansen, 301 Ill.App.3d 1041, 1047, 235 Ill.Dec. 508, 705 N.E.2d 121 (1998).

When determining whether jurisdiction is proper over a nonresident defendant, courts evaluate whether jurisdiction is proper under the long-arm statute and whether jurisdiction would comport with constitutional standards of due process. Mellon, 301 Ill.App.3d at 1047-48, 235 Ill. Dec. 508, 705 N.E.2d 121. If the plaintiff fails to show that the long-arm requirements have been met, there is no need to determine whether jurisdiction is permissible under the due process clause. Ideal Insurance Agency, Inc. v. Shipyard Marine, Inc., 213 Ill.App.3d 675, 678, 157 Ill.Dec. 284, 572 N.E.2d 353 (1991).

DOING BUSINESS IN ILLINOIS

We first consider plaintiff's contention that the trial court's ruling was in error because VRI was doing business in Illinois. An Illinois court may exercise jurisdiction over any natural person or corporation doing business within this state. 735 ILCS 5/2-209(b)(4) (West 1998).

No bright-line test exists for determining whether a corporation is doing business in Illinois. A corporation is subject to jurisdiction if it conducts business within this state of such character and extent as to warrant the inference that the corporation has subjected itself to the jurisdiction and laws of Illinois. Hendry, 318 Ill.App.3d at 853,252 Ill.Dec. 208,742 N.E.2d 746. It is well established that to qualify as "doing business" a corporation's business activity in the state must be fairly permanent and continuous, not occasional or casual. Hendry, 318 Ill.App.3d at 853,252 Ill.Dec. 208,742 N.E.2d 746. Courts must make a case-by-case determination on the unique facts presented when deciding whether a corporation's activities are sufficiently permanent and continuous to satisfy the "doing business" standard. Hendry, 318 Ill.App.3d at 853,252 Ill.Dec. 208,742 N.E.2d 746.

As support for his argument that VRI was doing business in Illinois, plaintiff relies upon the following two facts: (1) VRI's placement of four individuals with Illinois companies between 1995 and 2000; and (2) VRI's solicitation of resumes from Illinois residents through its website. Based on the record before us, we conclude that plaintiff did not sustain his burden of showing that VRI had continuous and permanent contact with Illinois such that imposing jurisdiction would be justified.

According to the affidavit of defendant Haynes, between 1995 and 1997 VRI placed one Wisconsin resident with an Illinois corporation. In 1998 it placed two Illinois residents with an Illinois corporation. In 1999 it recruited no Illinois residents to work for Illinois companies, and in 2000 it recruited one Illinois resident to work for an Illinois company. While plaintiff claims "upon information and belief" that additional employees not revealed by VRI were employed at Illinois locations, he has failed to provide any actual evidence to support this claim. Further, averments made upon information and belief do not meet the requirements of Supreme Court Rule 191 (145 Ill.2d R. 191) governing affidavits and are insufficient to rebut an affidavit containing positive averments of fact based upon an affiant's personal knowledge. Allied American Insurance Co. v. Mickiewicz, 124 Ill.App.3d 705, 709, 80 Ill.Dec. 129, 464 N.E.2d 1112 (1984). We do not consider the placement of four employees with Illinois companies over a five-year period to be sufficiently permanent or continuous contacts to constitute "doing business" in Illinois.

Contrary to plaintiff's assertion, the fact that a nonresident corporation has clients in Illinois does not necessarily lead to the conclusion that the corporation was doing business in Illinois. In Radosta v. Devil's Head Ski Lodge, 172 Ill.App.3d 289, 296, 122 Ill.Dec. 302, 526 N.E.2d 561 (1988), the court held that defendant World Wide Ski Corporation (World Wide) was not doing business in Illinois because it "only had three customers in Illinois and no agents, offices, sales force or other connection to the forum." The court further noted that the record did not provide details regarding World Wide's...