Wysnoski v. Millet, 90 C 5914.

• Decision Date: 11 March 1991
• Docket Number: No. 90 C 5914.,90 C 5914.
• Parties: Dennis WYSNOSKI, Plaintiff, v. Barron P. MILLET; Tom Jones; d/b/a Tom Jones Aircraft Sales; and Scott Boggs and Rodney Boggs, d/b/a the Boggs Company, Defendants.
• Court: U.S. District Court — Northern District of Illinois

759 F. Supp. 439

Dennis WYSNOSKI, Plaintiff, v. Barron P. MILLET; Tom Jones; d/b/a Tom Jones Aircraft Sales; and Scott Boggs and Rodney Boggs, d/b/a the Boggs Company, Defendants.

No. 90 C 5914.

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

March 11, 1991.

COPYRIGHT MATERIAL OMITTED

Richard E. Steck, Steck and Spataro, Chicago, Ill., for plaintiff.

Keith J. Shuttleworth, Burke, Wilson & McIlvaine, Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

ALESIA, District Judge.

Before the Court is the motion of defendants', Barron P. Millet ("Millet"), Tom Jones, d/b/a Tom Jones Aircraft Sales ("Jones"), Hassel V. "Scotty" Boggs ("S. Boggs") and Rodney Boggs ("R. Boggs"), d/b/a the Boggs Company, to dismiss the complaint of the plaintiff, Dennis Wysnoski ("Wysnoski"), pursuant to Federal Rule of Civil Procedure 12(b)(2), or to transfer the case to the Northern District of Texas pursuant to 28 U.S.C. section 1404(a), or to dismiss the action pursuant to Federal Rule of Civil Procedure 9(b).

I. FACTS

Wysnoski is an Illinois resident. On or about June 13, 1990, Wysnoski read an advertisement regarding the sale of a certain used aircraft in a nationally circulated publication. The advertisement was placed in the publication by Jones, a resident of Georgia. Wysnoski contacted Jones regarding the aircraft. Jones responded by letter and facsimile and directed Wysnoski to contact his partner, Millet, a resident of Texas. Wysnoski contacted Millet and they spoke by telephone several times about the plane. Millet referred Wysnoski to R. Boggs and S. Boggs, Texas residents, for additional information concerning the condition of the aircraft's engine. All contacts took place between approximately June 13, 1990, and June 19, 1990. Wysnoski initiated the contacts after seeing the advertisement and the defendants further contend, and Wysnoski does not contradict, that any telephone calls, mailings, facsimiles or other communication sent by any of the defendants were only in response to Wysnoski's inquiries.

Wysnoski's claim arises from the defendants' alleged fraudulent misrepresentations during the course of the parties' communications. The complaint charges each of the defendants with fraudulently representing that the aircraft Wysnoski purchased from them had no time in flight since its engine received a major overhaul. Wysnoski was in Illinois during the communications and when he arranged to take delivery, secured financing, and agreed to sell his existing aircraft to third parties. Wysnoski agreed to purchase the aircraft from the defendants while Wysnoski was in Illinois, although delivery of the plane took place in Missouri.¹

On June 29, 1990, Wysnoski took delivery and tendered payment for the aircraft. He alleges that he subsequently discovered that the plane was not in the condition represented and that it was of virtually no value until he expended money for repairs and restoration. Wysnoski seeks both compensatory and punitive damages for fraud and violation of the Illinois Consumer Fraud and Deceptive Business Practices Act. Ill.Rev.Stat. ch. 121½, para. 262 (1973).

II. DISCUSSION

A. JURISDICTION

The defendants' motion to dismiss asserts that the Court does not have personal jurisdiction. Because this is a diversity action, this Court has jurisdiction only if Illinois state courts would have jurisdiction under the Illinois long-arm statute and jurisdiction is consistent with constitutional due process. Fed.R.Civ.P. 4(e); Deluxe Ice Cream Co. v. R.C.H. Tool Corp., 726 F.2d 1209, 1212 (7th Cir.1984). The Illinois long-arm statute and constitutional due process are not coterminous and therefore, must be considered separately. Deluxe Ice Cream, 726 F.2d at 1214; Green v. Advance Ross Electronics Corp., 86 Ill.2d 431, 56 Ill.Dec. 657, 427 N.E.2d 1203 (1981). Where there are multiple defendants, personal jurisdiction as to each must be considered separately, although their ties may aid the analysis. Rush v. Savchuk, 444 U.S. 320, 332, 100 S.Ct. 571, 579, 62 L.Ed.2d 516 (1980); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297-99, 100 S.Ct. 559, 567-68, 62 L.Ed.2d 490 (1980). Furthermore, although the court must resolve all factual disputes in favor of the plaintiff, when considering a motion to dismiss, the burden of proving jurisdiction rests with the party asserting it. Saylor v. Dyniewski, 836 F.2d 341, 342 (7th Cir.1988).

1. Illinois Long-Arm Statute

Wysnoski alleges jurisdiction pursuant to the Illinois long-arm statute, which provides in relevant part:

(a) 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 ... to the jurisdiction of the courts of this State as to any cause of action arising from the doing of such acts:

. . . . .

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

(c) Only causes of action arising from acts enumerated herein may be asserted against a defendant in an action in which jurisdiction over him or her is based upon this Section.

Ill.Rev.Stat. ch. 110, para. 2-209 (1983).

A single tortious act committed in Illinois confers jurisdiction under the statute, as long as the acts giving rise to the claim are the same acts conferring jurisdiction. Snyder v. Smith, 736 F.2d 409, 416 (7th Cir.1984), cert. denied 469 U.S. 1037, 105 S.Ct. 513, 83 L.Ed.2d 403 (1984); Nelson v. Miller, 11 Ill.2d 378, 390-91, 143 N.E.2d 673, 680 (1957). This principle is true regardless of the place of execution of related contracts. Nelson, 11 Ill.2d at 390-91, 143 N.E.2d at 680. Wysnoski alleges fraud arising out of intentional misrepresentations regarding the condition of the aircraft. It is settled that a loss is recoverable in tort where the loss is caused by intentional false representations. Rose v. Franchetti, 713 F.Supp. 1203, 1209 (N.D. Ill.1989), citing Moorman v. National Tank Company, 91 Ill.2d 69, 88-89, 61 Ill.Dec. 746, 435 N.E.2d 443 (1982). Wysnoski asserts that these torts occurred in Illinois, thereby conferring jurisdiction under the statute.

The defendants respond that misrepresentation by telecommunication occurs only in the location where the call is received. The defendants cite Harvey v. Price, 603 F.Supp. 1205 (S.D.Ill.1985), for this proposition. A review of Harvey and related cases examining the situs of a tort when the injury arose from fraudulent misrepresentation by telephone reveals that where the phone was dialed and where it was answered are not determinative. Rather, Harvey and related cases focus on where the information is received and used, not the mechanics of electronic communication. See Id. at 1209, 1210. The Harvey court stated: "For purposes of the statute, the misrepresentation, occurred, if at all, in Illinois where the plaintiff relied on the defendant's statements to his detriment." (emphasis added). Id. at 1209.

In Club Assistance Program, Inc. v. Zukerman, 594 F.Supp. 341, 347 (N.D.Ill. 1984), the court held that telephone call misrepresentations satisfied the requirements of the Illinois long-arm statute if the defendant intended to affect an Illinois interest and communicate his message to Illinois. It is "well established Illinois law ... that use of the mails and telephone subjected the defendants to jurisdiction," FMC Corp. v. Varonos, 892 F.2d 1308, 1313 (7th Cir.1990) (emphasis added) (citations omitted). The Varonos court also held that telex and telecopier communication are the same as telephone communication for purposes of the Illinois long-arm statute.

Here, Wysnoski alleges that each defendant intentionally misrepresented the facts during telephone conversations with him while he was in Illinois, and that he relied on the misrepresentations to his detriment while in Illinois. Additionally, Wysnoski alleges that Jones sent a letter and facsimiles to him in Illinois. Accordingly, the facts of this case meet the requirements of the Illinois long-arm statute.

2. Due Process

The defendants contend their contacts with this State are not sufficient to allow this Court to assert jurisdiction consistent with due process. The issue is whether the defendants' activity "constitutes `minimum contacts' between the defendant and the forum state such that the exercise of jurisdiction `does not offend traditional notions of fair play and substantial justice.'" Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102, 105, 107 S.Ct. 1026, 1028, 94 L.Ed.2d 92 (1987). The analysis is two-fold:

Once it has been decided that a defendant purposefully established minimum contacts within the forum State, these contacts may be considered in light of other factors to determine whether the assertion of personal jurisdiction would comport with fair play and substantial justice.

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 2184, 85 L.Ed.2d 528 (1985). The defendant's activity and connection with the forum State must be "such that he should reasonably anticipate being haled into court there." Burger King, 471 U.S. at 474, 105 S.Ct. at 2183. The activity giving rise to jurisdiction must be the same as the activity giving rise to the claim. Snyder v. Smith, 736 F.2d at 416, cert. denied 469 U.S. 1037, 105 S.Ct. 513, 83 L.Ed.2d 403 (1984).

The defendants all have sufficient minimum contacts with Illinois. Jones caused an advertisement to be circulated in Illinois; spoke by telephone to Wysnoski in Illinois after inviting inquiry through the advertisement published in Illinois; sent a letter to Wysnoski in Illinois; and sent a facsimile to him in Illinois — all concerning the possible sale of the aircraft and all allegedly containing fraudulent statements.² Millet spoke by telephone with the plaintiff in Illinois several times and intentionally misrepresented the condition of the aircraft. He completed the sale of the aircraft to Wysnoski knowing it would be going to Illinois. The...