The opinion of the court was delivered by: Grady, District Judge.
Plaintiff Océ-Industries, Inc. ("Oce") filed this suit
against one of its distributors, Jim Coleman Company
("Coleman"), to recover $180,267.89 for photocopy equipment,
supplies and replacement parts ordered during November 1977 and
February 1979. Plaintiff is a Delaware corporation with its
principal place of business in Illinois. Defendant is a sole
proprietorship doing business in Dallas, Texas. Jurisdiction of
this court is based on 28 U.S.C. § 1332.
Defendant has filed a motion to dismiss for lack of personal
jurisdiction or improper venue. In the alternative, he has
sought the transfer of this action under 28 U.S.C. § 1404(a) to
the Northern District of Texas, Dallas Division, where
defendant has brought suit against the plaintiff concerning the
same subject matter.
For the following reasons, we will deny the defendant's
Personal jurisdiction over a nonresident defendant does not
depend upon physical presence of the defendant within the
state. Section 17 of the Civil Practice Act, Ill.Rev.Stat.
1975, ch. 110, § 17, the so-called "long arm statute,"
establishes the standard for the exercise of personal
jurisdiction over a nonresident defendant:
(1) 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, and, if
an individual, his personal representative, to
the jurisdiction of the courts of this State as
to any cause of action arising from the doing of
any of such acts:
(a) The transaction of any business within this
State;. . . .
The Illinois Supreme Court has stated in Nelson v. Miller,
11 Ill.2d 378, 143 N.E.2d 673, 679 (1957), that the long arm
statute reflects "a conscious purpose to assert jurisdiction
over nonresident defendants to the extent permitted by the due
process clause." Accord, McBreen v. Beech Aircraft Corp.,
543 F.2d 26, 28 (7th Cir. 1976).
The issue here is whether the defendant has had sufficient
contacts with Illinois to satisfy requirements of due process
and not offend "traditional notions of fair play and
substantial justice." International Shoe Co. v. Washington,
326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945); Hanson v.
Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958).
In considering a challenge to its jurisdiction, this court
may receive and weigh affidavits. O'Hare International Bank v.
Hampton, 437 F.2d 1173, 1176 (7th Cir. 1971). While the burden
of proof rests on the party asserting jurisdiction, for
purposes of making such a determination, conflicts in the
affidavits submitted by the parties must be resolved in favor
of the plaintiff. United States Railway Equipment Co. v. Port
Huron & Detroit Railway Co., 495 F.2d 1127, 1128 (7th Cir.
1974); O'Hare International Bank v. Hampton, supra, 437 F.2d at
1176. In this case the
defendant has filed three affidavits of James Coleman,
proprietor of the defendant-company, and two medical
affidavits. The plaintiff has filed two affidavits of Robert
Fortune, Director of Sales for the Copier Division of the
plaintiff, and one affidavit of Edward Regal, the plaintiff's
National Credit Manager since November 1976.*fn1
Applying the above rules, the jurisdictional facts appear as
follows: Defendant initially solicited business from the
plaintiff, and a sales agency relationship was established in
1973 as a result of a meeting occurring in Illinois. Fortune
Affidavit, May 2, 1979, ¶ 3. In late 1974 the defendant became
a distributor for plaintiff for portions of the southern
region, including Texas. This arrangement was at the behest of
the defendant. Fortune Affidavit, May 2, 1979, ¶ 4. During the
subsequent four years, Coleman his personnel in Texas initiated
numerous phone conversations — ranging in the hundreds — to the
plaintiff's headquarters in Illinois. Fortune Affidavit, May 2,
1979, ¶ 6. It was through these phone calls to Illinois that
orders were placed for the plaintiff's products by the
defendant. Fortune Affidavit, May 2, 1979, ¶ 9. Each order for
goods gave rise to a separate contract of sale. Fortune
Affidavit, May 2, 1979, ¶ 10; Regal Affidavit, ¶ 4. Goods were
shipped from Illinois and payment was sent to Illinois. Fortune
Affidavit, May 2, 1979, ¶ 3. Most significantly, the course of
dealing between the parties included shipment of the goods
f.o.b. Chicago. Regal Affidavit, ¶ 3. The defendant thus
assumed the risk for the goods in Illinois from the point at
which they were delivered to the defendant's carrier.*fn2
Finally, Coleman and his agents during the period 1973-1978
attended several Oce sales meetings each year in Chicago.
Fortune Affidavit, May 2, 1979, ¶¶ 6, 8; Coleman Affidavit,
June 28, 1979, p. 3.
By engaging in this continuing course of conduct with the
plaintiff, whose facility was located in Lincolnwood,
Illinois, the defendant "should have known that he might be
liable to suit in Illinois if the bill were not paid."
Colony Press, Inc. v. Fleeman, 17 Ill. App.3d 14,
308 N.E.2d 78, 80 (1st Dist. 1974); see also, O'Hare International Bank v.
Hampton, 437 F.2d 1173, 1177 (7th Cir. 1971); International
Merchandising Associates, Inc. v. Lighting Systems, Inc.,
64 Ill. App.3d 346, 20 Ill.Dec. 838, 380 N.E.2d 1047, 1051 (1st
Dist. 1978) (pattern of telephone and mail contacts, as well as
scattered personal visits to plaintiff's offices). Each sales
contract was "accepted" in Illinois and the parties
contemplated that plaintiff's performance would be completed
there. Colony Press, Inc. v. Fleeman, supra, 308 N.E.2d at 80
(interpreting an f.o.b. Chicago contract).
These contacts are clearly sufficient to invoke the
jurisdiction of this court under the Illinois long arm
statute. The maintenance of this suit in this forum does not
offend due process notions of fair play. Courts have, in fact,
found personal jurisdiction based on significantly fewer
contacts with the forum state than those presented here. The
leading Illinois cases of Colony Press, Inc. v. Fleeman, supra,
and Cook Associates, Inc. v. Colonial Broach and Machine Co.,
14 Ill. App.3d 965, 304 N.E.2d 27 (1st Dist. 1973), serve to
illustrate this point. In both cases, jurisdiction was founded
on a single act of contracting by phone to engage the
plaintiff's services. In Colony Press, an Ohio-based defendant
contacted the plaintiff, an Illinois printing company, in
response to plaintiff's advertising.
A proposed newspaper insert ad was sent to the defendants in
Ohio for their review, and defendants returned the corrected
copy to the plaintiff for printing. The completed
advertisements were shipped to the defendants, f.o.b. Chicago.
An action to recover payment followed. In Cook Associates, a
Delaware corporation doing business in Michigan telephoned the
plaintiff, an Illinois employment agency, in response to an
advertising flier of the plaintiff. Plaintiff sued for its fee
because the defendant employed someone as a result of this
contact. The court held, as in Colony Press, that the single
phone call was enough to constitute the "transaction of
business" within the meaning of the Illinois long arm statute.
Cook Associates, 304 N.E.2d at 31; Colony Press, 308 N.E.2d at
80. Compare also, United States ...