that an operation be performed for further diagnosis (since a
positive diagnosis was not possible without a pathological
examination) and possible removal of the "mass". Dr. Tipton
requested that Meridell secure authorization to allow him to
employ whatever surgical procedures he felt would be required
in the operation. At a later date, the surgeon also requested
permission to use the necessary anesthetic and pathological
Consent for the operation and the related procedures was
obtained by Meridell from plaintiff's guardian in Illinois at
IDCFS. On November 23, 1971, an operation was performed by Dr.
Tipton, assisted by Drs. Bailey and Pelphrey, in Austin,
Texas. During the surgery a cyst was discovered in plaintiff's
right ovary, which after subsequent pathological analysis was
determined to be benign. However, for reasons which are wholly
undetermined at this stage of the lawsuit, not only was Ms.
Chancellor's right ovary extracted, but her left ovary, uterus
and appendix were removed as well.
The complaint alleges that at no time prior to the surgery
was plaintiff informed either of Dr. Tipton's pre-operative
diagnosis or of the extent of the operation. Meridell's staff
merely informed Ms. Chancellor that an appendectomy was to be
performed. In May of 1972, about six months after surgery,
plaintiff was removed from Meridell and transferred to Chicago
State Hospital, a public mental institution in Illinois. While
at this latter institution, Janice was informed that her
ovaries and uterus had been removed and her procreative
On November 13, 1978, plaintiff filed the current action in
federal district court against 13 individual defendants. For
purposes of these motions, the defendants can be divided into
three groups: (1) former officials at IDCFS ("The IDCFS
defendants"); (2) those relevant officials of the Meridell
clinic in Texas ("The Meridell Defendants"); and (3) the three
Austin, Texas physicians who participated in and performed
plaintiff's operation (The "Texas Physicians")*fn1. There are
six counts in the complaint alleging: (1) denial of the
plaintiff's right to procreate; (2) denial of due process of
law; (3) denial of plaintiff's right to treatment; (4) breach
of guardianship duties; (5) professional malpractice; and (6)
medical malpractice. Counts 1 through 3 are directed toward
all defendants. Counts 4 and 5 are directed toward the IDCFS
and Meridell Defendants, and Count 6 is alleged against the
Texas Physicians only. Both the Texas Physicians and the
Meridell Defendants have moved to dismiss herein. Since each
group has raised different defenses and because in personam
jurisdictional defenses are necessarily fact sensitive, the
respective motions are discussed individually.
Although it is not clear from plaintiff's brief, presumably
she intends to assert Illinois jurisdiction under the
"transacting business within the state" provision of Illinois
long arm statute, Ill.Rev.Stat. Ch. 110 § 17(1)(a) (1980). The
determination of in personam jurisdiction involves a two-tiered
analysis both statutory and constitutional. However, since the
legislative intent of the Illinois long-arm statute is to
assert jurisdiction to the maximum extent permitted under the
due process clause, Hutter Northern Trust v. Door County
Chamber of Commerce, 403 F.2d 481 (7th Cir. 1968); Nelson v.
Miller, 11 Ill.2d 378, 143 N.E.2d 673 (1957), the statutory and
constitutional analyses are merged here.
The Supreme Court on numerous occasions has articulated the
limits of in personam jurisdiction under the due process
clause. See e. g., World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Shaffer v.
433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977),
International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct.
154, 90 L.Ed. 95 (1945). The thrust of these decisions is that
sufficient "minimum contacts" must exist between the defendant
and the forum state so that jurisdiction over non-residents
does not violate "traditional concepts of fair play and
substantial justice." International Shoe Co. v. Washington,
supra at 316, 66 S.Ct. at 158. It is well settled that there is
no specific formula for ascertaining which "contacts" will
satisfy the constitutional minima. Rather, the court must
examine the facts of each case in light of certain factors
including the burden on the defendant, the forum's state's
interest in adjudicating the dispute and the plaintiff's
interest in obtaining effective relief. World-Wide Volkswagen
v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 564, 62 L.Ed.2d
490 (1980). See also, Kulco v. Superior Ct., 436 U.S. 84, 92,
98 S.Ct. 1690, 1697, 56 L.Ed.2d 132 (1978); McGee v.
International Life Insurance Co., 355 U.S. 220, 223, 78 S.Ct.
199, 201, 2 L.Ed.2d 223 (1957). Certainly, a fundamental
inquiry of the "minimum contacts" analysis is whether the
non-resident defendant engaged in some act or conduct by which
it may fairly be said that he invoked the benefits and
protections of the law of the forum state. Hanson v. Denckla,
357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958);
Gelderman & Co., Inc. v. Dussault, 384 F. Supp. 566, 571
(N.D.Ill. 1974); Rosenthal & Co. v. Dodick, 365 F. Supp. 847
PERSONAL JURISDICTION OVER THE TEXAS PHYSICIANS
The facts, as presented to the Court, fail to suggest
sufficient minimum contacts between the Texas physicians and
Illinois to sustain personal jurisdiction in this forum. The
physicians' contacts with Illinois can only be described as
severely attentuated. All three reside and practice only in
Texas and performed all services for plaintiff in that state.
There is no indication that any of the doctors dealt directly
with the IDCFS in either Illinois or Texas. Rather all
contacts, payments, communications and services were rendered
to and through the Meridell Center, a Texas institution.
Of the three physicians, Dr. Tipton may be viewed as having
the greatest possible contact with Illinois. He, however, did
not regularly treat Meridell's patients (indeed, Janice
Chancellor was his only patient from the Center). Moreover,
Dr. Tipton's services were solicited by Meridell after he was
recommended by the Center's pediatrician. That Dr. Tipton may
ultimately have been paid indirectly by funds made available
from Illinois is insufficient to confer jurisdiction.
Chicago Silver Exchange v. United Refinery, Inc., 394 F. Supp. 1332
Plaintiff, however, urges us to consider the fact that Dr.
Tipton must have known or suspected that plaintiff was an
Illinois resident when he obtained consent for the operation
and suggests that it is therefore reasonable to view him as
being able to anticipate being "haled" into court in
responsibilities as a medical doctor to provide services to a
patient in need of his skill. Jurisdiction cannot be asserted
in this case, on this basis, without in effect subjecting all
doctors to nationwide service of process should they be called
upon to treat non-resident patients. See also, Soares v.
Roberts, 417 F. Supp. 204 (D.R.I. 1976); Gelineau v. New York
University Hospital, 375 F. Supp. 661 (D.N.J. 1974).
Illinois precedent supports the conclusions stated above. In
Muffo v. Forsyth, 37 Ill. App.3d 6, 345 N.E.2d 149 (1976), the
Illinois plaintiff sought medical treatment from a Missouri
physician in Missouri. The defendant physician treated
plaintiff over an extended period of time and even called a
pharmacist in Illinois to prescribe the drug which had adverse
effects on plaintiff and precipitated the lawsuit. In Muffo,
however, these contacts, which are significantly more
substantial than those of the instant case, were insufficient
to sustain jurisdiction. The Muffo Court, affirming an order
which dismissed the action, stated, "The unilateral action of
the plaintiff in seeking and obtaining the service of the
defendant cannot serve to satisfy the jurisdictional
requirements." 37 Ill. App.3d at 9-10, 345 N.E.2d 149.
The holding in Muffo is applicable here. Defendant Tipton has
no more availed himself of the benefits and protections of
Illinois law than did the physician in Muffo. And since
defendants Bailey and Pelphrey were merely retained by Dr.
Tipton to assist him in surgery, they have even less contact
with Illinois that Dr. Tipton. Accordingly, the Texas
Physicians' motion to dismiss must be granted.
PERSONAL JURISDICTION OVER THE MERIDELL DEFENDANTS
The motion of the Meridell Defendants raises an additional
issue not previously discussed in connection with the filing
of the Texas Physicians. Stated succintly, the Meridell
Defendants have argued that the Illinois long-arm statute
cannot serve to obtain in personam jurisdiction over the
Cruickshanks and Lippold, as individuals, since all of their
acts or omissions complained of by plaintiff were taken in
their capacities as employees at the Meridell Achievement
Center, Inc., a Texas corporation.
Although the issues are different with respect to these
defendants, the same principles which governed the Texas
Physicians' motion to dismiss are, of course, applicable to
the concommitant filing of the Meridell Defendants. That is,
the Court must evaluate the defendants' connection to the
forum state, the forum's interest in the litigation and the
plaintiff's stake in securing convenient and effective relief.
There is a substantial nexus between Illinois and both
defendants Lippold and Gregor Cruickshank. Both individuals
have substantially the same contacts with the forum. Each of
the two travelled to Illinois to attend national child care
conferences. On these occasions, they both might have met with
IDCFS officials to discuss, generally, the status of various
children placed at Meridell by the Department. In this regard,
Gregor Cruickshank has stated that he also may have had
telephone conversations with IDCFS workers in Illinois to
arrange these meetings. In his deposition, Cruickshank also
admits that on one occasion he visited Illinois to retrieve
some runaway residents of Meridell.
Most significant to this analysis, however, are the contacts
of the defendants with Illinois in connection with the child
care contracts that were executed between IDCFS and Meridell.
The General Care Agreement was signed and perhaps negotiated
by Wayne Lippold. As indicated above, IDCFS placed many
children at Meridell pursuant to this agreement, yielding the
Center almost $800,000 per year in revenue. Both Cruickshank
and Lippold traveled to Illinois, at least on an annual basis,
to renegotiate the per-diem rate of payment specified in this
instrument. Defendant Lippold also executed the individual
care agreement pursuant to which plaintiff was admitted to
Thus, although both defendants argue that the general care
agreement and, indeed,
their trips to Illinois have no connection to the current
litigation, this Court cannot agree. First, the terms of the
two contracts indicate that they were interrelated. The
per-diem rate specified in Ms. Chancellor's individual care
contract was determined by the applicable rate contained in
the general contract. It certainly is not stretching the facts
to conclude that, absent the arrangement between IDCFS and
Meridell reflected in the more general instrument, Janice
Chancellor would not have been placed in Meridell. Thus,
defendants cannot deny their connection with plaintiff's cause
of action by divorcing their activities in Illinois in
conjunction with the general agreement from the individualized
arrangements for plaintiff's admission to Meridell.
Not only are there substantial contacts between defendants
and the forum state, but it also is apparent that the forum
state has a strong interest in adjudicating this dispute. This
stake extends beyond that of other cases in which the state's
primary interest is in affording the protection of its courts
to its own citizens. Rather, in the instant case plaintiff was
a ward of the state and as such the state was entrusted with
a fiduciary obligation to assure that she received adequate
care and treatment. Accordingly, Illinois has a uniquely
strong interest in determining that her rights in this regard
are fairly and properly adjudicated. Moreover, Illinois'
interest in the litigation is further heightened by the
existence of the contract between the state agency and
Meridell which lies beneath this lawsuit. The state is
actively intertwined in plaintiff's claim.
Finally, the facts of the instant case suggest that
plaintiff's interest in obtaining convenient and effective
relief, see, Kulko v. Superior Court, supra at 436 U.S. 92, 98
S.Ct. at 1697, assumes unusually strong significance here. It
cannot be said that plaintiff created the jurisdictional
problem-i. e., that the defendants reside and the claim arose
in a jurisdiction far removed from her domicile. In contrast to
the situation in World-Wide Volkswagen, in which plaintiffs
voluntarily chose to drive through Oklahoma, plaintiff cannot
be said to have in any way opted to go to Texas. She was placed
there involuntarily by the IDCFS.
In short, plaintiff's presence in Texas where the operative
facts occurred and the agents of the lawsuit may be found, is
certainly more fortuitous than defendants' contrasting
presence in Illinois from time to time. While this is not
determinative here, it serves to caution the Court. Having
been involuntarily dispatched to Texas once before, plaintiff
is entitled to have this Court pause and seriously consider
the fairness of remanding her to that forum once again.
After considering the factors outlined above, the Court is
persuaded that Illinois' assertion of jurisdiction over
defendants Gregor Cruickshank and Wayne Lippold does not
violate due process. The Court is cognizant of the fact that
both Cruickshank and Lippold acted within the forum state in
their capacities as managing agents of the Meridell Center.
The Court is also aware that its decision today flows against
the weight of the precedent cited by the defendants which
express the rule that jurisdiction over the individual
officers of a corporation cannot be predicated merely upon
jurisdiction over the corporation. See e. g., Weller v.
Cromwell Oil Co., 504 F.2d 927, 929 (6th Cir. 1974); Escude
Cruz v. Ortho Pharmaceutical Corp., 619 F.2d 902 (1st Cir.
1980); Wilshire Oil Co. v. Riffe, 409 F.2d 1277 (10th Cir.
1969); Spelling-Goldberg Productions v. Bodek & Rhodes,
452 F. Supp. 452 (E.D.Pa. 1978); Lehigh Valley Industries v.
Birenbaum, 389 F. Supp. 798 (S.D.N.Y. 1975). At least in this
case, however, a mechanical application this rule comports
neither with traditional notions of fair play and substantial
justice nor with the Court's responsibility to examine the
jurisdictional question flexibly, on the basis of the facts of
the particular case.
In declining to apply the above stated rule in this action,
the Court notes first that the defendants have cited no
precedent from this circuit.*fn3 In addition, many of the
cases cited by defendants are distinguishable from the present
factual context. For example, in Weller v. Cromwell Oil Co.,
504 F.2d 927 (6th Cir. 1974) the case principally relied on by
defendants, plaintiff sued for breach of contract and
violations of the antitrust laws against an out of state
corporation and two of its non-resident officers. In contrast
with the instant case, the Weller plaintiff never alleged that
the individual defendants were ever within the state in
connection with the subject matter of the litigation. Here it
is undisputed that defendants Lippold and Cruickshank were
present in Illinois on business clearly related to Ms.
Chancellor's action. Moreover, in Weller, plaintiff merely
relied on an inadequate affidavit to establish his
jurisdictional facts. This affidavit did not even specifically
allege that it was the individual defendants who made the
allegedly false representations that gave rise to the lawsuit.
Other cases applying the rule are also factually
distinguishable from this action. In Idaho Potato Commission v.
Washington Potato Commission, 410 F. Supp. 171 (D.Ida. 1976)
there again was no allegation that the individual defendants
were ever within the desired forum state in conjunction with
the subject matter of the lawsuit. In Wilshire Oil Co. v.
Riffe, 409 F.2d 1277 (10th Cir. 1969), the Court in part relied
on the fact that there was no nexus between the contacts of the
individual defendants with the forum states and the litigation
in dismissing a case for lack of in personam jurisdiction. See
also, Lehigh Valley Industries, Inc. v. Birenbaum, 385 F. Supp. 798
(S.D.N.Y. 1975), where the cause of action did not arise
out of the transaction of business within the forum. Still
other cases have involved situations in which the individual
defendant's corporate contacts have been so attenuated as to
make an assertion of jurisdiction unreasonable.
In summary, many if not most of the decisions offered by
defendants concerned situations in which the contacts between
the individual defendants and the forum state were
insufficient to confer jurisdiction regardless of whether the
individuals acted in their corporate or personal capacities.
They are thus ill-suited as guiding precedent. There are,
however, some cases which from all appearances would be
applicable here. For example, in Path Instruments International
Corp. v. Asahi Optical Co., 312 F. Supp. 805 (S.D.N.Y. 1970),
the Court noted that all of the individual defendants visited
the state for business purposes connected with the subject
matter of the litigation but declined to sustain jurisdiction
because none of the defendants allegedly engaged in any conduct
within the state for personal purposes rather than on behalf of
their corporations. 312 F. Supp. at 810. To the same effect is
dicta in Quinn v. Bowmar Publishing Co., supra, stating:
The Court need not reach the question of
whether Campbell's contacts with Maryland are
sufficient in number under the statute, since
Campbell was acting on corporate business during
[his visits to the forum].
445 F. Supp. at 786, citing, Wilshire Oil Co. v. Riffe,
Assuming these cases are apposite, the Court declines to
follow them. The analysis of the forum's interest in the
dispute and the plaintiff's interest in obtaining convenient
and effective relief strongly militate in favor of sustaining
jurisdiction. Also, as outlined above, Messrs. Cruickshank and
Lippold's contacts with Illinois are sufficiently extensive
and amply related to plaintiff's cause of action so that if
they were taken in their personal capacities there would be no
question but that these individuals are amenable to suit in
Illinois. For the reasons expressed below, if substantial
justice and fundamental fairness is the standard, the Court
cannot accept the conclusion that the mere fact that the
defendants' actions were taken in their corporate rather than
individual capacities must alter the result.
First, although foreseeability is not the only criteria for
in personam jurisdiction, it is a significant factor. And in
this regard, defendants' conduct and connections to Illinois
were such that they could reasonably anticipate being haled
into court in Illinois in this action. World-Wide Volkswagen v.
Woodson, supra 444 U.S. at 297, 100 S.Ct. at 567. Second,
defendants' trips to Illinois illustrate that forcing them to
defend a suit in this forum would subject them to no greater
inconvenience than those they experience in their professional
careers. Moreover, defendants have, in a real sense, availed
themselves of the benefits and protections of the laws of the
forum state. It is sheer fiction to assume that Cruickshank and
Lippold, as the managing agents of the Meridell Center, derived
no benefit from their Illinois activities. The Center derives
almost $800,000 in revenue from its contract with IDCFS. A
portion of that revenue was compensation for the care provided
to Ms. Chancellor. Viewed pragmatically, Cruickshank and
Lippold at least owe a substantial portion of their own
salaries to the privilege of being able to conduct business in
and with the state of Illinois. In addition, defendants have
availed themselves of the benefits of the forum state in their
efforts to acquire additional expertise in child care treatment
by attending national conferences in this jurisdiction. It is
this expertise which allows defendants the opportunity to treat
Ms. Chancellor and children like her in return for payment from
Illinois. In this added respect defendants have benefited from
the protection of Illinois law.
In the context of this suit, a § 1983 action in which
plaintiffs traditionally have looked to individual defendants
for compensation, the Court concludes that fairness requires
that the corporate shield not defeat plaintiff's attempt to
assert jurisdiction over the Administrators of Meridell. This
is not to suggest that the protections ordinarily afforded
individuals by corporate constructs are wholly irrelevant to
this case. Rather, the fact that the defendants acted on behalf
of the Meridell Center in both Illinois and Texas may suggest
that any ultimate liability due to plaintiff lies as much with
the Center as with any individual defendant. The Court only
suggests that the corporate shield cannot a fortiori defeat
jurisdiction in the present context.
A mechanistic application of the rule defendants suggest
would, moreover, lead to the anomoly of a corporation being
amenable to the jurisdiction of a foreign forum solely due to
the egregious conduct of an employee in that forum, while the
perpetrator of the wrong is insulated from suit in that
jurisdiction. The due process clause does not so require.
The situation with respect to the third Meridell Defendant,
Patricia Cruickshank, is somewhat different. It is not alleged
that Mrs. Cruickshank was ever within this jurisdiction.
Moreover, all of her contacts with the forum were in
connection with her
attempts to obtain adequate medical treatment for Ms.
Chancellor and the consent required for her operation.
Accordingly, the case for in personam jurisdiction over Mrs.
Cruickshank is much like that regarding the Texas Physicians.
The same considerations outlined above in that context are
applicable here, supra at 1002. Accordingly, Mrs. Cruickshank's
motion to dismiss is granted.
VENUE UNDER 28 U.S.C. § 1391(b)
The Meridell defendants have also questioned whether the
proper venue of this action is the Northern District of
Federal subject matter jurisdiction over this action is
premised on the federal question, diversity and civil rights
provisions of Title 28, 28 U.S.C. § 1331, 1332 & 1343. Since
the current action is not solely based on diversity of
citizenship, 28 U.S.C. § 1391(b) defines the appropriate
venue.*fn5 Lamont v. Haig, 590 F.2d 1124 (D.C. Cir. 1978);
American Chemical Paint Co. v. Dow Chemical Co., 161 F.2d 956,
959 (6th Cir. 1947). This statute provides, in pertinent part:
A civil action wherein jurisdiction is not
founded solely on diversity of citizenship may be
brought only in the judicial district where all
defendants reside, or in which the claim arose,
except as otherwise provided by law.
The District of Columbia Circuit recently has examined the
relevant provisions of § 1391(b), as well as its legislative
history, in some detail. That court concluded that the 1966
amendment to § 1391(b), which authorized suits in the district
in which the claim arose, was designed to "facilitate the
disposition of claims by providing, in appropriate cases, a
more convenient forum to the litigants and witnesses involved."
Lamont v. Haig, 590 F.2d 1124, 1133 (D.C. Cir. 1978), quoting,
H.R.Rep.No. 1893, 89th Cong., 2d Sess. 2 (1966). According to
the Lamont Court:
Where "the claim arose" should . . . be
ascertained by advertence to events having
operative significance in the case, and a common
sense appraisal of the implications of those
events for accessability to witnesses and
On the basis of the matters alleged, it is difficult to
conclude that the proper venue of this lawsuit against Texas
residents is Illinois rather than Texas. The operation, the
allegedly deficient surgical and post operative care and the
alleged lack of disclosure to the plaintiff all occurred in
Texas. Indeed, although plaintiff was a ward of Illinois, it
appears that all events having "operative significance" in the
case are centered in Texas. Venue, providing access to
particular federal courts, is a Congressional determination
which may not be and is not co-extensive within the reach of
the due process clause. Congress has not provided access to
this Court. Accordingly and alternatively, the venue
objections are sustained.