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United States District Court, Northern District of Illinois, E.D

July 27, 1983


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


Petitioner Nora Chronister ("Chronister") brought suit against Sam Tanksley Trucking, Inc. ("STT") for allegedly violating Missouri's workmen's compensation law and the public policy against retaliatory discharge. On or about April 16, 1982, while working as a truck driver for STT, Chronister was involved in an accident and sustained personal injuries. Chronister thereafter made claims for medical benefits and other compensation. In her complaint, she alleges that STT terminated her as a direct and proximate cause of her being injured on the job and requesting compensation. She claims, in separate counts, that this violated § 287.780*fn1 of Missouri's workmen's compensation law and the public policy against retaliatory discharge. Chronister is a resident of Illinois. STT is a corporation incorporated under the laws of Missouri with its principal place of business in Missouri. Presently before this Court is STT's motion to dismiss for lack of personal jurisdiction and insufficiency of process served. STT has also moved to strike Chronister's affidavits. For the reasons set forth below, STT's motion to strike is denied. Furthermore, although the process served on STT was insufficient and will be quashed, for the reasons set forth herein STT's motion to dismiss is denied.


STT contends that Chronister's first affidavit fails to fulfill the requisite form for affidavits delineated in Rule 56(e)*fn2 of the Federal Rules of Civil Procedure. In response, Chronister has submitted a second affidavit, setting forth many of the facts that STT claims are essential to fulfill Rule 56(e).*fn3 We believe that this second affidavit fulfills this rule. The submission of additional proper affidavits is sufficient to cure any defects which may have existed in the original affidavits. Liberty Curtin Concerned Parents v. Keystone Central School District, 81 F.R.D. 590, 604 (M.D.Pa. 1978). Therefore, we need not decide whether Chronister's first affidavit is insufficient. Accordingly, STT's motion to strike is denied.


  When federal jurisdiction rests upon diversity of citizenship,
personal jurisdiction is determined in accordance with the law
of the forum state, with federal law entering the picture only
for the purpose of deciding whether a state's assertion of
jurisdiction contravenes a constitutional guarantee. O'Hare
International Bank v. Hampton, 437 F.2d 1173, 1175 (7th Cir.
1971). See also Bodine's, Inc. v. Sunny-O, Inc., 494 F. Supp. 1279
 (N.D.Ill. 1980). Therefore, Illinois law establishes the
guidelines for determining whether personal jurisdiction exists
in the instant case. Personal jurisdiction over a non-resident
defendant may be obtained under the Illinois Long-Arm Statute,
Ill.Rev.Stat. ch. 110 § 2-209, or under the doctrine that a
nonresident corporation is "doing business" in the State. Cook
Associates, Inc. v. Lexington United Corp., 87 Ill.2d 190,
199, 57 Ill. Dec. 730, 734, 429 N.E.2d 847, 851 (1981).

The only federal requirement is that these jurisdictional tests comply with federal due process standards. These standards require sufficient "minimum contacts" with the forum state such that the exercise of jurisdiction over a non-resident defendant is congruent with traditional concepts of fair play and substantial justice. Hanson v. Denckla, 357 U.S. 235, 251, 78 S.Ct. 1228, 1238, 2 L.Ed.2d 1283 (1958); International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). The crux of the due process analysis "is that the defendant's conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there." World-Wide Volkswagen v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980).

The Illinois Supreme Court has held that neither the Long-Arm Statute nor the "doing business" test are to be equated with the federal due process standards. Cook, 87 Ill.2d at 197, 201, 57 Ill.Dec. at 733, 735, 429 N.E.2d at 850, 852; Green v. Advance Ross Electronics Corp., 86 Ill.2d 431, 436, 56 Ill. Dec. 657, 660, 427 N.E.2d 1203, 1206 (1981). After Cook and Green, it became clear that even if the exercise of personal jurisdiction meets the federal constitutional requirements of due process, it may not be authorized under the stricter Illinois requirements. U.S. Reduction Co. v. Amalgamet, Inc., 545 F. Supp. 401, 402 (N.D.Ill. 1982). See also State Security Ins. Co. v. Frank B. Hall & Co., Inc., 530 F. Supp. 94, 96 (N.D.Ill. 1981). Since the Illinois jurisdictional requirements are stricter than is required by federal due process, our analysis of Chronister's claim will focus upon the Illinois requirements.

The Illinois Long-Arm Statute provides that:

  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 or her 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:

(1) The transaction of any business within this State;

(2) The commission of a tortious act within this State;

    (3) The ownership, use, or possession of any real estate
  situated in this State;

    (4) Contracting to insure any person, property or risk
  located within this State at the time of contracting;

    (5) With respect to actions of dissolution of marriage and
  legal separation, the maintenance in this State of a
  matrimonial domicile at the time this cause of action arose
  or the commission in this State of any act giving rise to the
  cause of action.

It is clear that jurisdiction is limited to those causes of action arising from the commission of any of the above acts within Illinois.

With regard to the "doing business" test for personal jurisdiction, a certain regularity of activities in Illinois is required. A corporation must operate in the State not occasionally, but with a measure of continuity. Cook, 87 Ill.2d at 202-03, 57 Ill.Dec. at 735-36, 429 N.E.2d at 852-53. See also, Braband v. Beech Aircraft Corp., 72 Ill.2d 548, 21 Ill.Dec. 888, 382 N.E.2d 252 (1978), cert. denied, 442 U.S. 928, 99 S.Ct. 2857, 61 L.Ed.2d 296 (1979).

When considering a challenge to its jurisdiction, a court may receive and weigh affidavits. O'Hare, 437 F.2d 1176. Chronister has submitted two affidavits to supplement her complaint.*fn4 Both address specifically the "doing business" test. STT in turn has submitted one affidavit supplementing its answer.

Although the burden of proof rests on the plaintiff asserting jurisdiction, for the purpose of making such determinations, conflicts in affidavits must be resolved in favor of the plaintiff. Vena v. Western General Agency, Inc., 543 F. Supp. 779, 782 (N.D.Ill. 1982). See also, Chicago Silver Exchange v. United Refinery, Inc., 394 F. Supp. 1332, 1335 (N.D.Ill. 1975). Assuming everything Chronister alleges to be true, this Court, while lacking jurisdiction under the Illinois Long-Arm Statute, has personal jurisdiction over the defendant through the "doing business" test.

The Long-Arm Statute does not give this Court personal jurisdiction over Chronister's action. According to the undisputed claim in STT's affidavit, the events upon which Chronister bases her complaint took place in Texas. It is thus highly unlikely that her cause of action could have arose from acts committed in Illinois. Furthermore, Chronister has failed to allege that STT committed any acts, as enumerated in the Long-Arm Statute, which gave rise to the accident. Indeed, Chronister incorrectly maintains that this is unnecessary. As previously mentioned, the burden of proof rests on the party asserting jurisdiction. O'Hare, 437 F.2d at 1176. This burden can be met by a prima facie showing that jurisdiction is conferred by the Long-Arm Statute. Id. This Court thus finds that Chronister has failed to make the requisite prima facie showing regarding this Statute.

This Court, however, does have jurisdiction over this action through the "doing business" test. In Chronister's second affidavit, it is asserted that STT has conducted regular business in Illinois for the past five years. Chronister also asserts that she made approximately 50 to 75 trips into Illinois transporting various goods and materials under the instruction and direction of STT. She lists specifically eight companies with which she was personally involved in the transportation of goods for STT. Assuming everything Chronister alleges to be true, she has established a regularity of activities by STT in Illinois such that it was not operating occasionally, but with a measure of continuity. This Court accordingly has personal jurisdiction under the "doing business" test.


STT also maintains that this action should be dismissed because the process served was allegedly insufficient. On February 22, 1983, Chronister filed with the United States Marshal for the Northern District of Illinois a summons and complaint. The marshal sent these items via certified mail to STT in Cape Girardeau, Missouri, the date of service recorded as March 7, 1983. The marshal also sent a return of service postcard, postage prepaid, addressed to the United States Marshal's Service in Chicago. This postcard allowed acknowledgment by STT of the receipt of the summons and complaint. The United States Marshal's Service received this postcard from STT and on March 18, 1983, filed it with the Clerk of the United States District Court.

STT asserts that this process as served was insufficient. It maintains that Rule 4(e)*fn5 of the Federal Rules of Civil Procedure governs service of parties not inhabitants of or found within the state and that this rule provides that service shall be made in accordance with the forum state's rules. STT further submits that the Illinois Code of Civil Procedure, Ill.Rev.Stat. ch. 110 §§ 2-201 to 212, requires personal service in all actions except those outlined in Section 2-206*fn6 of the Code, which allows service on a defendant through a combination of publication and mailing. It concludes that the instant case does not fall within that category and, therefore requires personal service.

While Rule 4 previously allowed service by mail only when that method was specifically authorized by state statute,*fn7 this is no longer true. Effective February 26, 1983, a new subdivision, (c)(2)(C)(ii), was added by Congress to the Rule, authorizing service of process by mail in federal courts. 4 C. Wright & A. Miller, Federal Practice and Procedure § 1137 (Supp. 1983). The federal courts are thus no longer dependent on the forum state's rules regarding this matter. In the instant case, the date of service is recorded as March 7, 1983, nine days after the new Rule 4 became effective. The new Rule is thus clearly applicable to this case and so service by mail was authorized.*fn8 STT is accordingly incorrect in its assertion that service by mail is not allowed.

The question remaining, however, is whether Rule 4, as amended, has been complied with. Rule 4 provides, in pertinent part, that:

(c) Service

    (2)(A) A summons and complaint shall, except as provided in
  subparagraphs (B) and (C) of this paragraph, be served by any
  person who is not a party and is not less than 18 years of

    (B) A summons and complaint shall, at the request of the
  party seeking service or such party's attorney, be served by
  a United States marshal or deputy United States marshal, or
  by a person specifically appointed by the court for that
  purpose, only —

      (i) on behalf of a party authorized to proceed in forma
    pauperis pursuant to Title 28, U.S.C. § 1915, or of a
    seaman authorized to proceed under Title 28, U.S.C. § 1916

      (ii) on behalf of the United States or an officer or
    agency of the United States, or

      (iii) pursuant to an order issued by the court stating
    that a United States marshal or deputy United States
    marshal, or a person specially appointed for that purpose,
    is required to serve the summons and complaint in order
    that service be properly effected in that particular

    (C) A summons and complaint may be served upon a defendant of
  any class referred to in paragraph (1) or (3) of subdivision
  (d) of this rule —

      (ii) by mailing a copy of the summons and of the complaint
    (by first-class mail, postage prepaid) to the person to
    be served, together with two copies of a notice and
    acknowledgment conforming substantially to form 18-A and a
    return envelope, postage prepaid, addressed to the sender.
    If no acknowledgment of service under this subdivision of
    this rule is received by the sender within 20 days after
    the date of mailing, service of such summons and complaint
    shall be made under subparagraph (A) or (B) of this
    paragraph in the manner prescribed by subdivision (d)(1) or

  (d) Summons and Complaint: Person to be Served. The summons and
  complaint shall be served together. The plaintiff shall furnish
  the person making service with such copies as are necessary.
  Service shall be made as follows:

    (3) Upon a domestic or foreign corporation or upon a
  partnership or other unincorporated association which is
  subject to suit under a common name, by delivering a copy of
  the summons and of the complaint to an officer, a managing or
  general agent, or to any other agent authorized by
  appointment or by law to receive service of process and, if
  the agent is one authorized by statute to receive service and
  the statute so requires, by also mailing a copy to the

(Emphasis added).

The correct procedure for service is thus outlined in Sections (c)(2)(B) and (c)(2)(C)(ii) of the amended rule.

As the underlined portions of the Rule 4 text make clear, the process served on STT was insufficient. Generally, if the service of process is insufficient, but a reasonable prospect exists that the plaintiff could properly serve the defendant, the court will not dismiss the action, but merely quash the service, retaining the case. Hill v. Sands, 403 F. Supp. 1368, 1370 (N.D.Ill. 1975). See also, Haley v. Simmons, 529 F.2d 78, 79 (8th Cir. 1976); Richardson v. Ingram Corp., 374 F.2d 502, 503 (3d Cir. 1967), cert. denied, 389 U.S. 866, 88 S.Ct. 134, 19 L.Ed.2d 139 (1967); Gibson v. Township of Bass River, 82 F.R.D. 122, 126 (D.N.J. 1979). In the instant matter, Chronister can properly serve STT pursuant to Section (c)(2)(C)(ii) of the amended Rule 4. Hence, a dismissal is not warranted. This Court therefore retains this case but quashes the service. Chronister will be afforded the opportunity to effectuate proper service upon STT. The status hearing set for July 29, 1983, will be stricken and reset for September 2, 1983. If there is no proper service by such time, the case will be dismissed.

For the above reasons, this Court denies STT's motions to strike Chronister's affidavits and to dismiss this cause. Service of process on STT is quashed. It is so ordered.

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