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FELICIA, LTD. v. GULF AMERICAN BARGE

January 19, 1983

FELICIA, LTD., PLAINTIFF,
v.
GULF AMERICAN BARGE, LTD., JOSEPH LARGE, KAY LARGE AND UNKNOWN PARTNERS OF GULF AMERICAN BARGE, LTD., DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

Illinois corporation Felicia, Ltd. ("Felicia") brings this breach of contract action against Florida partnership Gulf American Barge, Ltd. ("Gulf American") and its individual partners. Felicia contends Gulf American, by refusing to make rental payments and provide a performance bond, violated an agreement captioned "Bare Barge Charter Party With Option to Purchase" (the "Agreement"). As its title suggests, the Agreement entitled Gulf American to charter two barges from Felicia and, at Gulf American's option, to purchase them.

Defendants now move to dismiss this action for lack of personal jurisdiction under Fed.R.Civ.P. ("Rule") 12(b)(2) or alternatively to transfer it to the United States District Court for the Northern District of Florida pursuant to 28 U.S.C. § 1404(a). For the reasons stated in this memorandum opinion and order, both motions are denied.

Facts*fn1

In the early months of 1982 Gulf American (based in Panama City, Florida) became interested in renting barges to transport various petroleum products on the Intercoastal Waterway between the pan-handle area of Florida and Brownsville, Texas. Toward the end of March 1982 Joseph Large ("Large"), one of the Gulf American partners, spotted in the Waterways Journal a Felicia advertisement offering barges for lease. Intrigued, Large telephoned Carmelo Aiello ("Aiello"), a Felicia employee in its West Chicago office, to explore the possibility of chartering Felicia barges. During the ensuing weeks Large and Aiello had several more telephone conversations to negotiate the specific terms of a leasing arrangement. On June 4, 1982 a Gulf American employee met with Aiello in Chicago to discuss the condition of the barges and then traveled to Lemont, Illinois to inspect both vessels.

On July 1, 1982 Aiello and Kay Large, another Gulf American partner, signed the Agreement in Panama City, Florida. Nine days later an official of Waterways Transportation Services, Inc. ("Waterways"), acting on behalf of both Felicia and Gulf American,*fn2 inspected both barges in Lemont and issued a report on their condition. Under the Agreement such a joint inspection was required both before delivery and after redelivery of the barges to Lemont.

At Large's request (made sometime before delivery) Felicia customized the two barges and their equipment to conform to the specifications given by Large. On July 18, 1982 Felicia delivered the barges to Gulf American at Lemont — the delivery location established by the Agreement (under the terms of which Gulf American then became contractually obligated to make rental payments and purchase insurance coverage). Aiello arranged for third parties to transport the barges to Hanrahan, Louisiana, where Gulf American employees first took physical possession.*fn3

Because of its dissatisfaction with the seaworthiness of the two barges, Gulf American returned the vessels (which are now docked at Lemont) without paying any rent or obtaining a performance bond. These asserted contractual breaches form the basis of Felicia's present suit.

Personal Jurisdiction

Exercise of personal jurisdiction over the nonresident defendants must comply with both statutory and constitutional standards. International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) and its progeny define the due process constraints. Because no federal statute prescribes the manner of service of process in diversity actions, under Rule 4(d)(7) the Illinois long-arm statute (Ill.Rev. Stat. ch. 110, § 2-209(a)(1), "Section 2-209(a)(1)") furnishes the statutory predicate:

  (a) 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:
    (1) The transaction of any business within this
  State.

Because constitutional questions should not be faced unless they must, this opinion will address ...


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