to Surfer's motion. It failed to respond to Surfer's motion
within the time period set by the Court.
Motion to Dismiss for Lack of Personal Jurisdiction
Subject-matter jurisdiction over this action is based on
diversity of citizenship. 28 U.S.C. § 1332(a)(1). As previously
stated Wessel is an Illinois corporation and Surfer is a
California corporation. In a suit based on diversity of
citizenship, a federal court has personal jurisdiction over the
defendant only if the forum state court would have had
jurisdiction had the suit been brought there. Fed.R.Civ.P.
4(d)(7) and 4(e), Lakeside Bridge and Steel Company v. Mountain
State Construction Co., Inc., 597 F.2d 596, 598 (7th Cir. 1978),
cert. denied, 445 U.S. 907, 100 S.Ct. 1087, 63 L.Ed.2d 325
On a motion to dismiss for lack of personal jurisdiction, the
plaintiff has the burden of providing sufficient evidence to
support jurisdiction. All factual disputes are to be resolved in
plaintiff's favor. United States Railway Equipment Co. v. Port
Huron & Detroit R. Co., 495 F.2d 1127, 1128 (7th Cir. 1974). The
Court may consider affidavits submitted by both parties on the
issue of jurisdiction. O'Hare International Bank v. Hampton,
437 F.2d 1173, 1176 (7th Cir. 1971); Kutner v. DeMussy,
96 Ill. App.3d 243, 248, 51 Ill.Dec. 723, 421 N.E.2d 231 (1st Dist.
1981). "[I]f a defendant's affidavit contesting jurisdiction is
not refuted by a counter-affidavit filed by the plaintiff, the
facts alleged in the defendant's affidavit are taken as true."
Id. at 248, 51 Ill.Dec. 723, 421 N.E.2d 231.
In its complaint, Wessel did not allege any facts which would
support an assertion of long-arm jurisdiction over the defendant.
Wessel has not responded to the defendant's motion to dismiss
even though it has had sufficient time to do so nor has it
submitted counter-affidavits. Therefore, the facts stated in the
defendant's affidavits must be taken as true. Kutner v. DeMussy,
Defendant's affidavits indicate that: (1) it is a publisher of
several sports magazines, (2) it is incorporated under the laws
of California; (3) it has never been registered to do business in
Illinois; and, (4) it has never maintained a place of business,
telephone listing, bank account, agents, officers, or employees
within the State of Illinois. The affidavits also state that
Surfer's magazines are printed in Kentucky and distributed by a
New York company, Select Magazines. The only relationship between
Surfer and Select is a contractual one, and Surfer does not own
or otherwise have an interest in Select. Select handles all
distribution arrangements with wholesalers. The wholesaler
forwards the magazines to newsstands. Surfer publications are
sold in Illinois; however, these sales constitute less than seven
tenths of one per cent (0.7%) of Surfer's total sales.
The contract between Wessel and Surfer, which is the basis of
this action, was the result of Wessel's representative directly
soliciting Surfer at its offices in Orange County, California. No
officer, agent, or employee of Surfer ever entered Illinois for
negotiations regarding the purchase order. The order itself was
completed by Wessel's sales representative and sent to defendant.
The Supreme Court of the United States in International Shoe
Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90
L.Ed. 95, held that in order to exercise in personam jurisdiction
over a non-resident defendant, due process must be satisfied.
That is, the defendant must have certain minimum contacts with
the forum state so that maintenance of the suit does not offend
"traditional notions of fair play and substantial justice." This
standard has been refined in subsequent decisions of the Supreme
Court. However, the due process standards of International Shoe
and its progeny represent only the outer limits beyond which a
state may not go to obtain jurisdiction over non-residents. Cook
Associates, Inc., v. Lexington United Corp., 87 Ill.2d 190, 197,
57 Ill.Dec. 730, 429 N.E.2d
847 (1981). A state is free to set its own limits for acquiring
jurisdiction within the parameters allowed by due process. Id.
Braband v. Beech Aircraft Corp., 72 Ill.2d 548, 556, 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).
The Illinois Supreme Court in Cook, supra stated, "[T]he
boundaries or limits under our statute are not to be equated with
the minimum contacts test under the due process clause." Cook,
87 Ill.2d at 197, 57 Ill.Dec. 730, 429 N.E.2d 847. Thus, the
Illinois test for long-arm jurisdiction is narrower than the due
process test of International Shoe. Illinois courts have
jurisdiction over the person only if a non-resident defendant's
conduct falls within the language of the long-arm statute.
Cook, 87 Ill.2d at 197, 57 Ill.Dec. 730, 429 N.E.2d 847. The
long-arm statute, Ill.Rev.Stat. ch. 110, § 2-209 (1982),
"(a) Any person, whether or not a citizen or resident
of this state, who in person or through an agent does
any of the following of the acts hereinafter
enumerated, thereby submits such person . . . 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 in this
state . . . (c) only causes of action arising from
acts enumerated herein may be asserted against the
defendant in an action in which jurisdiction over him
is based in this action." (emphasis added)
Under the decisions of the Illinois courts interpreting this
section, the facts of the present case do not support a finding
of personal jurisdiction. See Empress International, Ltd. v.
Riverside Seafoods, Inc. 112 Ill. App.3d 149, 153, 67 Ill.Dec.