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CHRONISTER v. SAM TANKSLEY TRUCKING

July 27, 1983

NORA CHRONISTER, PLAINTIFF,
v.
SAM TANKSLEY TRUCKING, INC., DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

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.

THE SUFFICIENCY OF THE AFFIDAVIT

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.

THE EXISTENCE OF PERSONAL JURISDICTION

  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 ...

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