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United States District Court, Northern District of Illinois, E.D

July 29, 1974


The opinion of the court was delivered by: Bauer, District Judge.


This cause comes on the defendant's motion to dismiss this action and to quash the summons served upon it in Bethlehem, Pennsylvania, on the ground that this Court does not have in personam jurisdiction.

This is an action seeking to redress the alleged breach of a contract. The jurisdiction of this Court over this action is allegedly based on diversity of citizenship pursuant to 28 U.S.C. § 1332. The plaintiff, William B. Cohan, is a citizen and resident of the State of Illinois. The defendant, Municipal Leasing Systems, Inc. ("Municipal") is a corporation organized under the laws of the State of Pennsylvania and maintaining its principal place of business in the State of Pennsylvania. The amount in controversy allegedly exceeds $10,000, exclusive of interest and costs.

The plaintiff, in his complaint, alleges, inter alia, the following facts:

  1. The plaintiff is a licensed structural engineer in
     the State of Illinois and does practice that

  2. The defendant entered into an oral agreement in
     September of 1972 wherein the defendant did retain
     the services of the plaintiff as a structural
     engineer and for the further purposes of the
     plaintiff obtaining, on the defendant's behalf,
     certain financing for the development of
     properties belonging to the defendant.

  3. At that meeting and subject to the agreement
     therein made, the defendant paid to the plaintiff
     the sum of $10,000.00 as a retainer for the
     plaintiff's services.

  4. The defendant did orally agree with the plaintiff
     that it would pay to the plaintiff as compensation
     for services rendered and would be rendered
     additional sums of money based on the plaintiff's
     normal and usual billing in such matters.

  5. The plaintiff did, in reliance on that retainer
     and oral agreement, lose other employment as he
     did not have adequate time for other jobs and was,
     therefore, damaged in the sum of $100,000.00.

  6. The check was presented for payment by the
     plaintiff but the bank upon which said check was
     drawn returned same to the plaintiff, advising
     that the endorsement had been cancelled.

  7. Plaintiff has made repeated requests and demands
     upon the defendant to pay that obligation, but the
     defendant has refused and still refuses to do so.

The plaintiff seeks damages in the amount of $110,000.00 plus his costs.

The defendant Municipal in support of its motion contends that:

  1. Municipal is a Pennsylvania corporation with its
     principal offices in Bethlehem, Pennsylvania and
     is not licensed or authorized to do business in
     Illinois, nor is it doing business in Illinois.

  2. Municipal was served with summons in this action
     in Bethlehem, Pennsylvania by application, through
     Rule 4(e) of the Federal Rules of Civil Procedure,
     of the Illinois "long arm" statute, Sections 16
     and 17 of Chapter 110 of the Illinois Revised

  3. The complaint contains no allegations concerning
     any contacts, ties, or relations of Municipal
     Leasing Systems, Inc., within the State of
     Illinois, and indeed the only reference to
     Illinois relates to plaintiff's alleged place of
     citizenship, residence and license as a structural

  4. Robert Morris in his affidavits states that
     apparently the agreement alleged in the complaint
     refers to two written agreements, between the
     plaintiff and a David A. Valente, which were
     negotiated and signed in Pennsylvania and which
     were with regard to services

     to be performed in Pennsylvania relating to
     property situated in Pennsylvania and for which
     payment was rendered and accepted in Pennsylvania.

The plaintiff, in opposition to the instant motion, has filed affidavits in which he states, in relevant part, that:

  1. "That during the Summer of 1972, I was contacted
     by a Mr. Louis Teeman, who represented himself to
     be the agent for the Defendant, MUNICIPAL LEASING
     SYSTEMS, INC., and was requested by Mr. Teeman to
     prepare preliminary drawings for said Defendant.
     I was given a check by Mr. Teeman for $2,500.00 as
     an initial retainer and this check was
     subsequently returned `Not Sufficient Funds'. The
     aforementioned meeting took place in my office,
     which is located in Chicago, Illinois."

  2. "Subsequently, I made two (2) trips to Allentown,
     Pennsylvania. The first trip was for the purpose
     of examining the properties in order to make the
     preliminary drawings and the second trip was to
     meet with the Defendant's bank where I was advised
     that sufficient funds were available for the
     payment of my fees and for the various projects
     that the Defendant anticipated becoming involved

  3. "The afternoon of the meeting with the bank, I
     returned to Chicago, Illinois by plane and I was
     accompanied by the President of the Defendant
     corporation, his secretary and Mr. Teeman. That
     evening, at my office in Chicago, Illinois, Mr.
     Teeman, as agent for the Defendant, handed me the
     $10,000.00 check referred to in the Complaint."

  4. "All the business that I have transacted with the
     Defendant has been transacted, negotiated, and
     consummated in the City of Chicago, State of

The defendant, in reply to the plaintiff's answering affidavits, has filed a verified reply sworn to by David A. Valente and Bruce D. Emig. The verified reply contains, in part, the following statements:

  1. "Louis Teeman was not an agent of Municipal
     Leasing Systems, Inc., nor did he represent
     himself to be an agent of that corporation. Mr.
     Teeman acted as an independent contractor, and any
     negotiations with the Plaintiff, during which
     Teeman and the individual David A. Valente were
     present, occurred in the cities of Allentown and
     Bethlehem, Pennsylvania. None of the negotiations
     or discussions took place in Chicago."

  2. "The Plaintiff did in fact make two trips to
     Allentown for the purpose of examining properties
     and conducting negotiations with the individual
     David A. Valente and a local Pennsylvania bank
     with respect to financing the project being
     discussed. The allegations contained in paragraph
     2 of Plaintiff's Answer contradicts the
     allegations in paragraph 4, where he states that
     `all the business that I have transacted with the
     Defendant has been transacted, negotiated, and
     consummated in the City of Chicago, State of

  3. "The President of Municipal Leasing Systems, Inc.,
     during the summer of 1972 was David A. Valente. At
     no time during the negotiations with the Plaintiff
     did David A. Valente act as an officer of the
     corporation. He acted as an individual and signed
     agreements as an individual. Neither Valente, a
     "secretary" or Mr. Teeman accompanied the
     Plaintiff to Chicago. The $10,000.00 check

     referred to was handed to the Plaintiff by one
     Dawn Buchanan, in the presence of Bruce D. Emig,
     in the City of Bethlehem, Lehigh County,

It is the opinion of this Court after carefully examining the relevant pleadings, memoranda, affidavits and exhibits submitted by the parties in support of their respective positions that the defendant has presently failed to adequately demonstrate that this Court lacks in personam jurisdiction.

Rule 4(d)(7) of the Federal Rules of Civil Procedure provides that service of process upon a foreign corporation is sufficient if served in the manner prescribed by the law of the state in which the District Court sits. The applicable Illinois Long-Arm Statute, § 17 of the Civil Practices Act, provides:

    (1) Any person . . . who in person or through an
  agent does any of the acts herein 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 business of any such acts:
  (a) the transaction of any business within this
  State. . . .

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

While personal jurisdiction over a non-resident defendant does not depend upon the physical presence of the defendant within the state, it is necessary that the act or transaction which is the subject matter of the suit have substantial connection with the forum state. Gray v. American Radiator and Standard Sanitation Corporation, 22 Ill.2d 432, 176 N.E.2d 761 (1961); Koplin v. Thomas Haab and Botts, 73 Ill.App.2d 242, 219 N.E.2d 646 (1966); Ziegler v. Houghton-Mifflin Company, 80 Ill.App.2d 210, 224 N.E.2d 12 (1967).

The purpose of a state Long-Arm Statute is to permit courts sitting within the state to exert jurisdiction over non-residents to the extent permitted under the due process clause. See, e.g., Nelson v. Miller, 11 Ill.2d 378, 143 N.E.2d 673 (1957); Koplin v. Thomas Haab and Botts, supra. The due process implications of the extension of personal jurisdiction over non-resident defendants have been thoroughly explained by the Supreme Court. International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). The thrust of these Supreme Court decisions is that in order for the state to have jurisdiction over a non-resident defendant that defendant must have sufficient "minimum contacts" in the forum state so that jurisdiction is reasonable and just.

It is well settled that in order to have a constitutionally permissible minimum contact with the forum state a non-resident defendant must, by some act, purposely avail itself of the privilege of conducting business in the forum state. Hanson v. Denckla, supra; Consolidated Laboratories, Inc. v. Shandon Scientific Company, 384 F.2d 797 (7th Cir. 1967); Gray v. American Radiator and Standard Sanitation Corporation, supra.

The plaintiff in his complaint and affidavit alleged that the contract and retainer, which are the subject matter of the instant complaint, were solicited, negotiated and consummated in the City of Chicago, State of Illinois. Illinois state courts and federal courts dealing with factual situations similar to those alleged by the plaintiff in the instant action have held that there were sufficient contacts with the forum state to have personal jurisdiction over the non-resident defendant. See United States Railway Equipment Co. v. Port Huron & Detroit Railroad Company, 495 F.2d 1127 (7th Cir. 1974); O'Hare International Bank v. Hampton, 437 F.2d 1173 (7th Cir. 1971); Colony Press, Inc. v. Fleeman, 17 Ill.App.3d 14, 308 N.E.2d 78 (1974); Cook Associates, Inc. v. Colonial Board and Machine Co., 14 Ill. App.3d 965, 304 N.E.2d 27 (1973). While the defendant's verified reply raises the fact that there is a serious conflict between the sworn statements submitted by the parties, it is the opinion of the Court the defendant has failed in its burden of adequately demonstrating that this Court lacks in personam jurisdiction over the defendant.

The burden of proof usually rests upon the party asserting the existence of jurisdiction. KVOS, Inc. v. Associated Press, 299 U.S. 269, 57 S.Ct. 197, 81 L.Ed. 183 (1936). However, this burden is met by a prima facie showing that jurisdiction is conferred by the long arm statute. United States v. Montreal Trust Co., 358 F.2d 239 (2nd Cir. 1966). As noted above, the plaintiff in his complaint and affidavit has made such a prima facie showing.

When a district court is confronted with two contradictory factual allegations in which both parties swear that their allegations are true, the court must assume, for the purpose of the motion attacking jurisdiction, that the facts related in the plaintiff's affidavit and complaint are true unless they are clearly and effectively controverted by live sworn testimony and the production of competent evidence before the Court. See O'Hare International Bank v. Hampton, supra; Woodworkers Tool Works v. Byrne, 191 F.2d 667 (9th Cir. 1951); Kesler v. Schetky Equipment Corp., 200 F. Supp. 678 (N.D.Cal. 1961). The defendant has presently failed to effectively controvert the factual allegations of the plaintiff's complaint and affidavit. Thus the defendant's motion should be denied at this time. However, the instant ruling should not be interpreted to bar the defendant from pursuing its instant motion. If the defendant desires to perfect its instant motion it should move for a hearing on the issue of in personam jurisdiction and produce competent witnesses and other evidence in support of its position. See, e.g., Young v. Albert Pick Hotels, 115 U.S.App.D.C. 400, 320 F.2d 719 (1963).

Accordingly, it is hereby ordered that the defendant's motion to dismiss or to quash the summons is denied at this time and the cause is set for status on September 4, 1974.


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