The opinion of the court was delivered by: Marshall, District Judge.
In December, 1979, Ray Norris, an independent marketing
consultant located in Texas, contacted Ronco's corporate
office located in Los Angeles, California. Affidavit of John
C. Parker ¶ 7. Norris informed Ronco that Plastics might be
able to manufacture injection molded products for Ronco. In
response to the call, Ronco sent Plastics one of its products,
a record vacuum, so that Plastics could determine if it could
produce this product for Ronco.
In early 1980, Plastics sent employees to Ronco's Los
Angeles office to examine Ronco's tooling for the part in
question and to negotiate the terms of an agreement for its
manufacture. Id. ¶ 8.
Ronco employees also visited Plastics' Texas plant during
this period. In early April, 1980, an oral agreement was
reached under which Plastics would manufacture and assemble
the record vacuum at its Jacksonville, Texas, plant.
Id. ¶¶ 9-10. The agreement was memorialized when Ronco sent to
Plastics its purchase order indicating that it would purchase
195,000 "Ronco Record Vacuums" from Plastics for a total
purchase price of $477,750.00. Id. ¶ 9. On its face, the
purchase order indicates that it is not binding on Ronco until
signed by two of its officers. The purchase order is an offer,
which is accepted by the vendor, Plastics, when signed by an
appropriate person in the lower left-hand corner. The purchase
order is dated April 16, 1980, is signed by a Ronco officer,
and the offer is accepted by John C. Parker. The purchase order
was executed by Parker, who is a vice president of Plastics, in
Texas.*fn1 The acceptance is dated September 3, 1980. The
purchase order indicates that Parker and William J. Dacus, who
was then Chairman of the Board of Plastics, see Affidavit of
William J. Dacus ¶ 1, jointly and severally guaranteed
On September 16, 1980, Parker appeared in Ronco's Elk Grove
office. Apparently, the contract between Ronco and Plastics
was discussed, and Parker initialed changes in the production
schedule. Second Supplemental Affidavit of John C. Parker,
¶ 8. The contract states that it shall be governed by the law
of Illinois. Complaint Ex. B at 3. The contract also states
that delivery is to be made by Plastics to Ronco in Elk Grove,
(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 such acts:
(a) The transaction of any business within this
Ill.Rev.Stat. ch. 110, § 17(1) (1979).
It is true that a number of factors which have been used to
support a conclusion that a defendant has transacted business
in Illinois within the meaning of § 17(1)(a) are absent in this
case. For example, it has been held that a defendant who
initiates a transaction by seeking out a citizen of Illinois
and proposing a business transaction has satisfied the statute.
See Telco Leasing, Inc. v. Marshall County Hospital,
586 F.2d 49, 52 (7th Cir. 1978) (per curiam); Hutter Northern Trust v.
Door County Chamber of Commerce, 403 F.2d 481 (7th Cir. 1968);
Franchise Architects, Consultants for Franchising, Inc. v.
Tuneomize, Inc., No. 81 6710, slip op. at 5 (N.D.Ill. April 21,
1982); Wessel Co. v. Yoffee & Breitman Management Corp.,
457 F. Supp. 939, 941 (N.D.Ill. 1978); Geneva Industries, Inc. v.
Copeland Construction Co., 312 F. Supp. 186 (N.D.Ill. 1970);
Chicago Film Enterprises v. Jablanow, 55 Ill. App.3d 739, 13
Ill.Dec. 466, 371 N.E.2d 161 (1977). Here, the contract was
initiated by a third party, and all solicitation apparently
took place in conversations between a Texas-based marketing
consultant and Ronco's Los Angeles office. Also absent is the
necessity under the contract for defendant to engage in
substantial performance of its contractual duties in Illinois,
a factor supporting jurisdiction under the statute. See United
States Railway Equipment Co. v. Port Huron & Detroit Railroad
Co., 495 F.2d 1127, 1130 (7th Cir. 1974); Aetna Casualty &
Surety Co. v. Looney, 98 Ill. App.3d 1057, 54 Ill.Dec. 444,
424 N.E.2d 1347 (1981); Woodfield Ford, Inc. v. Akins Ford Corp.,
77 Ill. App.3d 343, 32 Ill. Dec. 750, 395 N.E.2d 1131 (1979);
International Merchandising Associates, Inc. v. Lighting
Systems, Inc., 64 Ill. App.3d 346, 350-54, 20 Ill.Dec. 838,
843-45, 380 N.E.2d 1047, 1052-54 (1978); Artoe v. Mann,
36 Ill. App.3d 204, 343 N.E.2d 647 (1976); Colony Press, Inc. v.
Fleeman, 17 Ill. App.3d 14, 308 N.E.2d 78 (1974); Cook
Associates, Inc. v. Colonial Broach & Machine Co., 14 Ill. App.3d 965,
304 N.E.2d 27 (1973). Clearly, the bulk of the
performance called for in the contract was to be at Plastics'
plant in Texas.*fn6 Another factor supporting jurisdiction,
acceptance of the contract in Illinois, see International
Merchandising Associates, Inc. v. Lighting Systems, Inc.,
64 Ill. App.3d 346, 351-52, 20 Ill.Dec. 838, 242-43,
380 N.E.2d 1047, 1051-52 (1978), is also absent.
However, these factors do not compel the conclusion that
Plastics has not transacted business in Illinois within the
meaning of § 17(1)(a). In three significant ways, Plastics did
transact business in Illinois.
First, Plastics, through an employee, engaged in
negotiations related to the contract
in Illinois, when, on September 16, it sent Parker to Elk
Grove. Parker, by his own admission, discussed the transaction
while in Elk Grove, and initialed changes made in the
contract. See Second Supplemental Affidavit of John C. Parker
¶¶ 5-10; Affidavit of John C. Parker, ¶ 12. At the meeting, the
details of the transaction were laid out, and legally binding
contractual changes were made. If this is not "transacting
business in Illinois" it is difficult to imagine what is. When
a defendant comes to Illinois and engages in negotiations of
some substance regarding the transaction from which the cause
of action arises, then the defendant is subject to suit in
Illinois under § 17(1)(a). See Scoville Manufacturing Co. v.
Dateline Electric Co., 461 F.2d 897 (7th Cir. 1972);
Consolidated Laboratories, Inc. v. Shandon Scientific Co.,
384 F.2d 797, 802 (7th Cir. 1967); Otis Clapp & Son, Inc. v.
Filmore Vitamin Co., No. 78 C 3541, slip op. at 20-21 (N.D.Ill.
Jan. 22, 1982); In re Oil Spill by the Amoco Cadiz, 491 F. Supp. 170,
174 (N.D.Ill. 1979); United Air Lines v. Conductron Corp.,
69 Ill. App.3d 847, 853-55, 26 Ill.Dec. 344, 348-49,
387 N.E.2d 1272, 1276-77 (1979). See also Cook Associates, Inc. v.
Lexington United Corp., 87 Ill.2d 190, 198-99, 57 Ill.Dec. 730,
733-34, 429 N.E.2d 847, 850-51 (1981).*fn7
Second, defendants transacted business in Illinois by
voluntarily seeking the benefits and protections of Illinois
law. The contract which defendants entered stated that it
would be governed by the law of Illinois. By choosing to apply
Illinois law to this transaction, defendants sought to invoke
the protections and benefits of the law of Illinois. See United
States Railway Equipment Co. v. Port Huron & Detroit Railroad
Co., 495 F.2d 1127 (7th Cir. 1974); O'Hare International Bank
v. Hampton, 437 F.2d 1173, 1177 (7th Cir. 1971). By selecting
the law of Illinois, defendants obviously intended that a
breach of the contract would have consequences under Illinois
law, and presumably also intended to utilize the protections of
that law had Ronco breached the contract. See Otis Clapp & Son,
Inc. v. Filmore Vitamin Co., No. 78 C 3451, slip op. at 20
(N.D.Ill. Jan. 22, 1982). When a defendant voluntarily invokes
the benefits and protections of Illinois law, he transacts
business in Illinois within the meaning of the statute. See
id.; Rosenthal & Co. v. Dodick, 365 F. Supp. 847, 850 (N.D.Ill.
1973); Woodfield Ford, Inc. v. Akins Ford Corp.,
77 Ill. App.3d 343, 346, 395 N.E.2d 1131, 1135 (1979); AAAA
Creative, Inc. v. Sovereign ...