The opinion of the court was delivered by: Will, District Judge.
Defendant MALMSTROM CHEMICAL CORPORATION and the individual
defendants, who are copartners doing business under the name and
style of N.I. MALMSTROM & COMPANY, have moved to dismiss the
action on the grounds that the amended complaint fails to state a
claim on which relief can be granted. In the alternative, the
individual defendants have moved to quash the return of service
of summons as to them on the grounds that (a) the Court lacks
jurisdiction over the person of said defendants, and (b) said
defendants have not been properly served with process in this
With respect to the first ground, defendants assert that the
overt acts allegedly committed by the individual defendants as
participants in the conspiracy either are not shown to have
caused any damage to the plaintiff or are not shown to be
unlawful conduct on the part of the defendants. It is well
established that a motion to dismiss may be granted only if it is
clear that plaintiff would not be entitled to relief under any
reasonably conceivable state of facts which might be proven in a
trial on the merits. Jung v. K & D Mining Co., 7 Cir., 1958,
260 F.2d 607.
While some of the alleged overt acts of defendants appear not
to constitute unlawful conduct on their part and there may be
question as to whether any damage to plaintiff was caused by
others, it cannot be said that under the pleadings plaintiff
could not possibly adduce proof which might warrant relief.
Accordingly, the first ground of the motion, i.e., that the
amended complaint fails to state a claim upon which relief can be
granted, is not so clearly established as to warrant dismissal.
The alternative contention of individual defendants is that the
Court lacks jurisdiction over them. In support of this contention
an affidavit has been filed which sets forth that IVAR WM.
MALMSTROM is a resident of New York and RICHARD A. MALMSTROM of
New Jersey and that they were not served with process in this
action within the State of Illinois. It appears that they were
personally served at their respective residences beyond the
territorial limits of the State of Illinois pursuant to Sections
16 and 17 of the Illinois Civil Practice Act, Ill.Rev.Stat. 1961,
c. 110, §§ 16, 17. Defendants contend that none of the acts
performed by them in Illinois were unlawful and therefore do not
give rise to a cause of action for conspiracy. Accordingly, they
contend that such acts do not provide a basis for service of
process on them outside the State of Illinois.
Among the acts alleged to have been committed by the individual
defendants in Illinois are some thirty-seven (37) visits covering
a period of approximately one hundred (100) days during which the
individual defendants called upon ninety-five (95) of the
plaintiff's customers allegedly to induce such customers to deal
directly with them rather than through plaintiff. In addition,
the individual defendants did other acts in Illinois in pursuance
of their normal business activities but which are not alleged to
have been in furtherance of the conspiracy.
The Illinois Supreme Court has held that it was the
legislature's "conscious purpose to assert jurisdiction over
non-resident defendants to the extent permitted by the due-process
clause. * * *" Nelson v. Miller, 11 Ill.2d 378, 389,
143 N.E.2d 673, 679 (1957). There can be no question that the individual
defendants engaged in substantial activity in the State of
Illinois, much of which it is alleged was in furtherance of the
conspiracy which is the subject matter of the instant action.
While it may be that on the subsequent trial of the action,
plaintiff's proof may fail to sustain the charge of conspiracy,
on the basis of the pleadings it would appear that the
of Section 17 of the Illinois Civil Practice Act have been met.
In the light of all of the foregoing, the individual
defendants' motion to dismiss the amended complaint as to them
must be denied.
An order will be entered accordingly.
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