The opinion of the court was delivered by: Nordberg, District Judge.
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on the motion of the
defendant to dismiss for lack of personal jurisdiction and to
quash service of process.
The plaintiff, The Wessel Company ("Wessel"), originally filed
a complaint against Surfer Publications ("Surfer") in the Circuit
Court of DuPage County, Illinois, alleging breach of contract.
Wessel, a printing company, is an Illinois corporation and
Surfer, a publisher, is a California corporation. In its
complaint Wessel alleged that: (1) at Surfer's request, Wessel
manufactured and delivered certain goods to Surfer at a price of
$72,727.91; (2) Surfer still owes Wessel $18,181.98; and, (3)
Wessel has made repeated demands for payment and Surfer continues
to refuse to pay. Wessel seeks judgment against Surfer for the
amount due plus interest, attorneys fees and costs.
Surfer petitioned to remove the action from the state court to
the United States District Court for the Northern District of
Illinois, Eastern Division, pursuant to 28 U.S.C. § 1441(a). This
motion was granted. Surfer then filed a motion to dismiss
Wessel's complaint for lack of personal jurisdiction over Surfer
pursuant to Fed.R. Civ.P. 12(b)(2), 12(b)(4) and 12(b)(5). Surfer
contends that it has not had sufficient minimum contacts as
required by the due process clause of the Fourteenth Amendment to
the United States Constitution and that Surfer's activities in
the State of Illinois do not fit within the statutory
requirements of the Illinois long-arm statute. Ill.Rev.Stat. Ch.
110 § 209(a) (1982). Surfer also asserts that the remaining
balance has not been paid to Wessel because Surfer received
defective goods and because both parties had agreed to reduce the
price by $18,181.98 as compensation for the defects.
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 ...