Walker v. Carnival Cruise Lines, Inc., 87 C 115.

• Decision Date: 03 November 1987
• Docket Number: No. 87 C 115.,87 C 115.
• Citation: 681 F. Supp. 470
• Parties: Cleavone WALKER, Plaintiff, v. CARNIVAL CRUISE LINES, INC., a corporation, Defendant.
• Court: U.S. District Court — Northern District of Illinois

681 F. Supp. 470

Cleavone WALKER, Plaintiff, v. CARNIVAL CRUISE LINES, INC., a corporation, Defendant.

No. 87 C 115.

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

November 3, 1987.

Stephen J. McMullen, John J. Henely, Ltd., Chicago, Ill., for plaintiff.

Theodore C. Robinson, John P. Naniatis, Ray, Robinson, Hanninen & Carle, Chicago, Ill., for defendant.

MEMORANDUM OPINION

GRADY, Chief Judge.

This diversity tort case is before us on motion of defendant Carnival Cruise Lines, Inc. ("Carnival"). Carnival moves for dismissal for lack of personal jurisdiction, Federal Rule of Civil Procedure Rule 12(b)(2) and improper venue, Rule 12(b)(3).¹ In the alternative, Carnival argues that the case should be transferred to the United States District Court for the Southern District of Florida, Miami Division, under the provisions of 28 U.S.C. § 1406(a).²

For the reasons outlined below, we deny the motion to dismiss for lack of personal jurisdiction. We deny the motion to dismiss for improper venue. The motion to transfer under 28 U.S.C. § 1406(a) is denied. Counsel are directed to appear for oral argument on whether transfer under 28 U.S.C. § 1404(a) would be in the interests of justice.

FACTS

Carnival is a Panamanian corporation with its principal place of business in Miami, Florida. Plaintiff Cleavone Walker ("Walker"), a citizen and resident of Illinois, booked passage on the T.S.S. Carnivale, a cruise ship operated by defendant Carnival. The Carnivale operates in the territorial waters of the United States of America, off the coast of Florida. Plaintiff alleges that on August 20, 1986, she fell and suffered a personal injury on board the Carnivale, caused by defendant's negligent maintenance of a stairway.

We now turn to the facts concerning Carnival's contacts with the State of Illinois. Carnival employs only one employee in the state. This person does not have direct contact with the public. Rather,

the sole authority and function of this individual is to contact travel agents to promote the ocean cruises offered by Carnival. She has ... no authority to nor does she book any cruise reservations. Travel agents desiring to contact the Carnival employee in Chicago cannot telephone her directly but must telephone Carnival's service representative in Miami and leave a message requesting a call. The Carnival employee in Chicago telephones the service representative in Miami periodically to obtain the telephone numbers of travel agents wishing to make contact with her.

Affidavit of Jack J. Stein (Manager of Claims of Carnival) ("Stein Affidavit"), Exhibit A to Plaintiff's Memorandum in Response to Defendant's Motion for Judgment on the Pleadings (hereinafter "Plaintiff's Response") at 3.

In her own affidavit, Cleavone Walker states that prior to August 1986 she had "seen numerous television commercials in my Chicago home advertising Carnival" and that she had seen and looked at written brochures advertising Carnival Cruise Lines on display shelves in Chicago-area travel agencies. Plaintiff's Response at Exhibit B. However, Walker admits that prior to her cruise she never dealt with or paid any money to Carnival. Rather, she dealt with Aaabco Cruise Center ("Aaabco") in Miami, Florida. Id. Aaabco is one of many independent travel agencies through which Carnival transacts its cruise business. Carnival deals only with travel agencies, some of which are in Illinois, until the passenger begins the journey. Stein Affidavit at 3.

After Walker purchased her ticket from Aaabco, Carnival sent her a ticket and brochure. If Carnival followed its customary procedure, these were sent in care of Walker's travel agency. Id. Whatever the means of delivery, Walker did receive a ticket with 25 numbered paragraphs of terms and conditions of passage printed in small but legible type over three ticket-sized pages. Paragraph eight of the passage contract states

It is agreed by and between the passenger and the Carrier that all disputes and matters whatsoever arising under, in connection with or incident to this Contract shall be litigated, if at all, in and before a Court located in the State of Florida, U.S.A., to the exclusion of the Courts of any other state or country.

Stein Affidavit at 3 (numbered "Contract Page 1"). Aaabco also sent Walker a Carnival "Welcome Aboard" brochure which contained a prominent statement on page nine, under the headline "Passage Contract":

If you look at the back of your ticket, you'll see Conditions of Carriage of Passengers. We'd like to draw your attention to this part of the ticket. It's helpful to read this and become acquainted with the specific conditions and liabilities of your passage.

Id., Exhibit 3 at 9.

DISCUSSION

Defendant has moved for dismissal for lack of jurisdiction and improper venue. In deciding these motions we consider the factual base provided by the materially uncontested affidavits offered by both sides.

Jurisdiction

Plaintiff argues that the contacts between Carnival and Illinois suffice to give this court jurisdiction over Carnival under the Illinois Long-Arm statute, Ill.Rev.Stat. ch. 110, § 2-209 (hereinafter § 2-209), and under the "doing business doctrine." Plaintiff's Response at 2-8.

In a diversity action such as this one, this court has jurisdiction if and only if an Illinois court would have it. Young v. Colgate-Palmolive Co., 790 F.2d 567, 569 (7th Cir.1986). Defendant's motions present us with a two-step inquiry. First, we must determine whether there is any theory under which the Illinois courts would hold that they have jurisdiction. If not, that ends the matter; if there is jurisdiction, we must then see whether venue is proper, and if it is not we must dismiss or transfer the case. The jurisdictional question requires that we examine both § 2-209 and the "doing business" rule, while remaining mindful of the constitutional limits imposed by the Due Process clause. The venue question turns in large part on whether the forum-selection terms of the Carnival-Walker contract are enforceable.

Jurisdiction under Section 2-209

Illinois' long-arm statute, § 2-209, gives its courts jurisdiction over "any cause of action arising from ... (1) The transaction of any business within this State."³ In order for this "transaction of business" to give rise to long-arm jurisdiction the cause of action must "arise from" the conduct giving rise to jurisdiction. Chicago Silver Exchange v. United Refinery, Inc., 394 F.Supp. 1332 (N.D.Ill.1975); Clements v. Barney's Sporting Goods Store, 84 Ill.App.3d 600, 40 Ill.Dec. 342, 406 N.E.2d 43 (1st Dist.1980).

Although at one time the Illinois courts interpreted the state's long-arm statute to be coterminous with the limits imposed by the Constitution's Due Process Clause, see, e.g., Biltmoor Moving and Storage Co. v. Shell Oil Co., 606 F.2d 202 (7th Cir.1979); Wiedemann v. Cunard Line Ltd., 63 Ill.App.3d 1023, 20 Ill.Dec. 723, 380 N.E.2d 932 (1st Dist.1978), the Illinois courts now use a more restrictive approach. See Young v. Colgate-Palmolive Co., 790 F.2d 567, 569 (7th Cir.1986); Green v. Advance Ross Electronics Corp., 86 Ill.2d 431, 56 Ill.Dec. 657, 427 N.E.2d 1203 (1981). But see Capital Assocs. Development Corp. v. James E. Roberts-Ohbayashi Corp., 138 Ill.App.3d 1031, 93 Ill. Dec. 563, 487 N.E.2d 7 (1st Dist.1985). The Illinois courts appear to be striving for a "fixed" interpretation of § 2-209, one not subject to the perceived vagaries of shifting interpretations of due process.⁴City of East Moline v. Bracke, Hayes & Miller, 133 Ill.App.3d 136, 88 Ill.Dec. 322, 478 N.E. 2d 637 (3d Dist.1985). See generally Comment, Long Arm Jurisdiction: Implications of a "Fixed Meaning," 32 DePaul L.Rev. 635 (1983).

Of the various matters described in plaintiff's briefs, the only acts of Carnival upon which § 2-209 jurisdiction could be founded are its advertising via television and other media, and its distribution of brochures to Chicago-area travel agencies.⁵ Plaintiff states that she had "seen" Carnival's T.V. and print advertising, Plaintiff's Response at Exhibit B, ¶¶ 2-3, advertising which promoted the "Fun Ships" of the "Most Popular Cruise Line in the World." See, e.g., Plaintiff's Response at Exhibit C. Plaintiff argues that Carnival's advertising and publicity activities began the chain of events which led her to book a cruise with Carnival, Plaintiff's Response at 4, a booking but for which she would not have had her accident.

The two related issues before this court in the § 2-209 context are whether these acts of Carnival in Illinois rise to the level of "transaction of business," and whether the nexus between these acts and the plaintiff's injury is sufficiently strong so that a tort alleged to have occurred on a Florida cruise ship could fairly be said to "lie in their wake." Jacobs/Kahan & Co. v. March, 740 F.2d 587, 591 (7th Cir.1984); Morton v. Environmental Land Systems Ltd., 55 Ill.App.3d 369, 13 Ill.Dec. 79, 370 N.E.2d 1106 (1st Dist.1977). Both parties have cited a number of cases from Illinois and from neighboring jurisdictions. They have succeeded in convincing us that the cases here and elsewhere are split, and that the Illinois Supreme Court has yet to clarify the "fixed meaning" of § 2-209.

In particular, defendant cites Wiedemann v. Cunard Line Ltd., 63 Ill.App.3d 1023, 1032, 20 Ill.Dec. 723, 380 N.E.2d 932 (1st Dist.1978). The facts of Wiedemann appear to be very similar to those presented here. In Wiedemann, Cunard's Illinois employees were not authorized to contract with anyone in the state. The Illinois Appellate Court held that Cunard's advertising, and the promotion of its services by two of its employees, did not rise to the "transaction of business" in Illinois "because the Cunard employees were not authorized to, and did not, contract with anyone in Illinois." 380 N.E.2d at 939.

Plaintiff's most apposite citation is Morton v. Environmental Land Systems, Ltd., 55 Ill.App.3d 369, 13...