U.S. Glob. Corp. v. Enerco Sp. z o.o.

• Decision Date: 23 July 2020
• Docket Number: Case No. 19-cv-02589
• Parties: U.S. GLOBAL CORPORATION, Plaintiff, v. ENERCO SP. Z O.O., ENERCO SP. Z O.O. SP. K., PIOTR PAWL WISNIEWSKI, and KRYSTIAN BOGDAN STACHOWIAK Defendants.
• Court: U.S. District Court — Northern District of Illinois

U.S. GLOBAL CORPORATION, Plaintiff, v. ENERCO SP. Z O.O., ENERCO SP. Z O.O. SP. K., PIOTR PAWL WISNIEWSKI,and KRYSTIAN BOGDAN STACHOWIAK Defendants.

Case No. 19-cv-02589

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

July 23, 2020

Judge Jorge L. Alonso

MEMORANDUM OPINION AND ORDER

In this diversity action, Plaintiff U.S. Global Corporation ("USG"), an Illinois corporation, brings various claims against Defendants Enerco Sp. z o.o. ("Enerco"), Enerco Sp. z o.o. Sp. K. ("Enerco SP"), Piotr Pawl Wisniewski, and Krystian Bogdan Stachowiak. Defendants now move to dismiss pursuant to Fed. R. Civ. P. 12(b)(2), arguing this Court lacks personal jurisdiction over any of the Defendants. For the reasons that follow, defendants' motion [26] is granted in part and denied in part.

BACKGROUND

USG is an Illinois corporation with its principal place of business in Cook County, Illinois. (See Compl., ECF No. 1 at ¶ 1.) USG does business in the renewable energy sector, and among other activities, USG introduces American companies to foreign companies to facilitate energy projects in foreign markets. (Id. at ¶ 7.) USG complains that defendants—two Polish companies and the two individuals that own those companies—wrongfully pursued certain energy projects with an American company introduced to them by USG without involving USG, allegedly inviolation of a contract USG had with another Polish company affiliated with defendants. (See id. at ¶¶ 7-37.)

Defendants Piotr Pawl Wisniewski and Krystian Bogdan Stachowiak are citizens and residents of Poland. (Id. at ¶ 4.) Defendant Enerco is a Polish limited liability company owned by Wisniewski and Stachowiak with its principal place of business in Poland. (Id. at ¶¶ 2, 9.) Defendant Enerco SP is a Polish limited partnership with its principal place of business in Poland; Enerco SP is owned by Wisniewski, Stachowiak, and Enerco. (Id. at ¶ 3.)

1. Formation of the "Confidentiality and Non-Circumvention Agreement"

Again, the thrust of USG's complaint is that defendants allegedly breached an agreement that USG entered into in February 2005 with another Polish company, EEPN Sp. z o.o. ("EEPN"), which was owned and controlled by Wisniewski and Stachowiak. (Id. at ¶ 10.)

Around March 2004, an agent for EEPN contacted USG's president and CEO, Romuald Poplawski, and asked if USG could help EEPN find investors for a wind project in Poland. (Pltf.'s Resp., ECF No. 30, Ex. 1 at ¶ 5.) The project would eventually come to be known as the "Tymien project." (Id.) According to USG, Poplawski was in Illinois when EEPN's agent contacted him, (id.) but defendants stress that EEPN's agent never physically traveled to Illinois, and any communications with Poplawski would have been by phone, mail or in person in Warsaw Poland. (ECF No. 35, Ex. 4 at ¶ 5.) In June 2004, EEPN's agent proposed to arrange "a call or meeting" with Wisniewski and Stachowiak" and USG. (ECF No. 30, Ex. 1 at ¶ 7.)

Thereafter, USG's Poplawski spoke with Wisniewski and Stachowiak about introducing them to potential Illinois investors, and although USG concedes its business was "not exclusively Illinois-based," USG says it was "heavily Illinois-centric" because Illinois is where most ofPoplawski's contacts were located, something Poplawski emphasized to Wisniewski and Stachowiak. (Id. at ¶ 9.)

After these initial conversations, Poplawski drafted the "Confidentiality and Non-Circumvention Agreement" ("the Agreement") between EEPN and USG. (Id. at ¶ 10.) Defendants contend that USG contacted EEPN in Poland specifically to discuss entering into the Agreement, and USG disputes that fact. (See Defs.' Memo in Support of Mot. to Dismiss, ECF No. 26, Ex. 1 at ¶ 6; see also ECF No. 30, Ex. 1 at ¶ 4.) Poplawski drafted and executed the Agreement in Illinois. (Id. at ¶ 10.) Defendant Stachowiak executed the Agreement in Poland on behalf of EEPN. (Defs.' Reply, ECF No. 35, Ex. 1 at ¶ 5.) Defendants state that EEPN conducted all of its negotiations for the Agreement in Poland and that neither defendants nor any agent of EEPN traveled to Illinois or the United States to negotiate or draft the Agreement. (Id.)

In relevant part, the Agreement covers the Tymien project as well as other, unspecified "potential projects in Poland." (ECF No. 35, Ex. 3, Ex. A at 1.) The Agreement states that "neither EEPN nor any of the firm's associated or affiliated companies shall take any independent action" to develop projects or conduct any transactions "with parties and/or investors introduced by USG without USG's direction and involvement" (ECF No. 1 at ¶¶ 12-13.) This clause remained in effect for two years after the Agreement was terminated. (ECF No. 35, Ex. 3, Ex. A at 2.) The Agreement also included a choice-of-law provision that stated it "shall be governed and construed in accordance with the laws of the State of Illinois, USA." (ECF No. 30, Ex. 1 at ¶ 10.)

USG and EEPN executed the agreement on February 5, 2005. Neither Defendant Enerco nor Enerco SP existed at the time. Enerco was formed on December 5, 2005, and Enerco SP was formed on January 4, 2006. (ECF No. 35, Ex. 3 at ¶¶ 5-6.) EEPN was liquidated in 2013. (ECFNo. 26, Ex. 1 at ¶ 5.) Defendants state—and USG does not dispute—that they terminated the Agreement by letter on June 24, 2009. (See ECF No. 35, Ex. 3 at ¶ 12.)

2. Defendants' Business Activities

Around the same time that USG's Poplawski met Defendants Wisniewski and Stachowiak, Poplawski began looking for potential investors for the Tymien project. (ECF No. 30, Ex. 1 at ¶ 8.) Poplawski contacted Invenergy, described by USG as "an Illinois-based company engaged in renewable energy projects," and provided Invenergy with information about EEPN and the Tymien project. (Id.) Poplawski introduced Invenergy to Wisniewski and Stachowiak in 2005. (Id. at ¶ 11; see also ECF No. 35, Ex. 5 at ¶ 5.) The parties offer differing versions as to how the business relationship between defendants and Invenergy played out from there.

According to USG, "it was always understood [to EEPN, Invenergy, and USG] that decision-making and document drafting and review would be done from Chicago" because Invenergy would have a larger stake in the Tymien project. (See ECF No. 30, Ex. 1 at ¶ 12.) USG claims it helped Wisniewski and Stachowiak apply for visas to travel to Chicago for business meetings with Invenergy. (Id. at ¶ 14.) USG describes a number of trips Wisniewski and Stachowiak made to Chicago allegedly "in performance of the Agreement and projects developed as a result of the Agreement." (Id. at ¶ 16.) In March 2006, Wisniewski and Stachowiak, along with two other EEPN staffers, traveled to Chicago where they attended "substantive meetings with Invenergy" on three separate days; the meetings related to the Tymien project and other potential projects, including one that came to be known as the "Darlowo project." (Id.) Also, Defendants Wisniewski and Stachowiak returned to Chicago from July through August of 2006, where they attended "multiple days of meetings with high-ranking Invenergy personnel"; USG does notspecify what these 2006 meetings were about but states that Poplawski attended "most if not all" of them. (Id. at ¶ 17.)

Additionally, USG states that virtually all work for the Tymien project was performed in Illinois. Documents for the project were either drafted or approved by Invenergy in Chicago, and to the extent EEPN drafted documents, Wisniewski and Stachowiak apparently "routinely" sent such documentation to either USG or Invenergy in Illinois for review and approval. (Id. at ¶ 18.) Further, USG states that "all significant documents" were reviewed and edited by attorneys at the Chicago office of Baker & McKenzie. (Id. at ¶ 19.) USG also estimates that about "90 percent or more" of the total work performed by USG on the Tymien project was performed in Illinois, and USG claims that "a substantial majority" of the "efforts put forth by Invenergy" on the Tymien project was made by Illinois-based Invenergy personnel. (Id. at ¶ 20.)

Finally, specifically regarding Defendants Enerco and Enerco SP, USG claims that the defendant entities "conducted multiple other projects with Invenergy," including the Darlowo project. (Id. at ¶ 21.) Specifically regarding the Darlowo project, USG concedes that its involvement was marginalized by defendants and Invenergy but claims that Poplawski knows that document drafting, document review, and "all major decision-making" was performed by Invenergy in Illinois. (Id.)

Defendants offer a different set of facts. First, defendants assert that the only projects potentially covered by the Agreement—i.e., projects involving Invenergy and EEPN or entities affiliated with EEPN—were the Tymien project and Darlowo project. (See ECF No. 35, Ex. 5 at ¶ 13.)¹ With respect to Enerco and Enerco SP, defendants state that neither entity had anyinvolvement in either project. It is undisputed that EEPN—not the Enerco entities—participated in the Tymien project. Further, defendants appear to contend that the Enerco entities did not participate in the Darlowo project, but rather, two other Europe-based companies associated with Wisniewski and Stachowiak (referred to by defendants as "the Cyprus companies") formed a joint venture with Invenergy to perform the Darlowo project. (ECF No. 35, Ex. 5 at ¶¶ 9-13.) Defendants maintain that neither Enerco nor Enerco SP has ever conducted any business in Illinois. (See ECF No. 26, Ex. 1 at ¶ 7.)

With respect to Invenergy, defendants contend that Invenergy never performed any work in Illinois on the Tymien project or Darlowo project. Rather, defendants contend that Invenergy has several, separate European-based corporate entities, and any work performed by Invenergy on the Tymien and Darlowo projects was performed by these European-based entities (and thus, performed in Europe, not Illinois). (ECF No. 35, Ex. 5 at ¶¶ 2, 5-12, 14-15.) Defendants also state that any work performed...