The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
DP Service, Inc. ("DP") brings this action based on the breach
of an alleged distributorship agreement entered into with
defendants AM International, Inc. and Jacquard Systems
(collectively "AM"). DP's two-count complaint charges breach of
contract and tortious interference with prospective economic
advantage. AM has moved for dismissal of both counts. For the
reasons stated in this memorandum opinion and order, AM's motion
is denied as to Count I and granted as to Count II.
In this diversity case the Illinois substantive law to which
this Court looks includes its choice-of-law rules. Klaxon Co. v.
Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed.
1477 (1941). Those rules are not the same for the two theories,
breach of contract and tort, sought to be invoked by DP's
1. Count I: Alleged Breach of Contract
Count I of the Complaint alleges the existence and AM's
subsequent breach of a written agreement dated July 1, 1978
establishing DP as a non-exclusive distributor of AM's products
in Illinois. AM argues that the alleged agreement is
unenforceable because no written agreement was ever signed by AM
or any of its agents and because any claimed oral agreement would
run afoul of the Statute of Frauds.
Illinois has not yet adopted the "most significant contacts"
approach for contract choice-of-law questions, as it has in other
areas of substantive law. Nor is there a sufficiently strong
indication of so doing in recent Illinois Supreme Court decisions
to justify this Court in not following the existing law in this
On that score the alleged agreement has two provisions:
(1) It states on the cover page, "This Agreement shall first
become effective upon the Manufacturer's acceptance of the
Distributor's initial order. . . ." — which would be a California
(2) Paragraph 15.7 provides, "This Agreement may be executed in
counterparts, and whenever signed shall be deemed delivered and
executed at Santa Monica, California." Therefore Illinois
choice-of-law rules lead to California, the same law that is
specified by Paragraph 15.6 of the Distributorship Agreement:
This Agreement shall be interpreted and governed
exclusively by California law.
2. Count II: Alleged Tort Liability
DP's second Count sounds in tort. In that area of substantive
law Illinois has adopted the "most significant contacts" choice
of law rule, Ingersoll v. Klein, 46 Ill.2d 42, 262 N.E.2d 593
(1970). Ingersoll requires consideration of four factors:
(b) place where the conduct occurred;
(c) place of incorporation and place of business of