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

September 28, 1983


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


Roberta Berks ("Berks") has filed this diversity action on behalf of her minor daughter Sheryl ("Sheryl") against Wisconsin-incorporated Rib Mountain Ski Corporation*fn1 ("Rib Mountain"), charging Rib Mountain's negligence caused Sheryl to be injured while skiing. Rib Mountain has moved alternatively for (1) dismissal under Fed.R.Civ.P. ("Rule") 12(b)(2) for lack of jurisdiction over its person or (2) transfer under 28 U.S.C. § 1404(a) ("Section 1404(a)"). For the reasons stated in this memorandum opinion and order, the first branch of its motion is granted.*fn2


Rib Mountain operates a ski resort in Wausau, Wisconsin with attendant ski rental and instruction facilities. On March 6, 1982 Sheryl went to Rib Mountain to ski, rented some equipment from the rental center and took skiing instructions from a Rib Mountain employee. While skiing Sheryl fell and broke her leg.

Rib Mountain has never been registered to do business in Illinois, has never owned realty in Illinois and has never shipped goods into Illinois. All its employees and all members of its Board of Directors (the latter are all Oliva family members) have been and are non-Illinois residents. Its office and records are located in Wisconsin. Its only Illinois-oriented activities are some means of soliciting business: a booth at the 1982 Chicago Ski and Winter Show, newspaper advertisements, newspaper accounts and radio broadcasts of skiing conditions, and circulars in sports and ski shops.

Motion To Dismiss

This Court looks to Illinois service-of-process standards to determine whether Rib Mountain is amenable to suit here. Because the Illinois Supreme Court has recently made it plain it will not necessarily expand those standards to the full extent the Due Process Clause would allow,*fn4 this Court need consider only:

    1. the Illinois "long-arm" statute, Ill.Rev.Stat.
  ch. 110, § 2-209 ("Section 2-209");*fn5 and

2. the Illinois "doing business" rule.*fn6

Lexington United, 87 Ill.2d at 199, 57 Ill.Dec. at 733-34, 429 N.E.2d at 850-51.

Berks concedes (Mem. [2]) in personam jurisdiction over Rib Mountain cannot be based on Section 2-209, for Berks' cause of action does not arise out of any Rib Mountain conduct in Illinois. That leaves for determination the "doing business" question, under which the primary inquiry is whether the nonresident corporation:

  is conducting business in Illinois "of such a
  character and extent as to warrant the inference that
  the corporation has subjected itself to the
  jurisdiction and laws

  of the district in which it is served and in which it
  is bound to appear when a proper agent has been
  served with process."

Lexington United, 87 Ill.2d at 201, 57 Ill.Dec. at 735, 429 N.E.2d at 852.

Illinois "doing business" criteria do not reach nonresident corporations that merely solicit business in Illinois. Id., 87 Ill.2d at 201-03, 57 Ill.Dec. at 735-36, 429 N.E.2d at 852-53. All Rib Mountain's activities referred to in the "Facts" section of this opinion are considered "mere" solicitation for that purpose. See Braasch v. Vail Associates, Inc., 370 F. Supp. 809 (N.D.Ill. 1973) (a startingly similar fact situation).

Berks' response to Rib Mountain's motion asserts two other matters:

    1. In 1981 and 1982 Rib Mountain booked travel
  arrangements through local Holiday Inns.

    2. "On information and belief" Chuck Walters, an
  Illinois resident, has booked a number of Rib
  Mountain ski tours for Illinois residents in recent

But those two assertions do not rise to the necessary level of authorization in light of Oliva Aff. ¶ 12:

  At no time in 1982 did Rib Mountain Lodge and Ski
  Corporation, or any of its agents or employees,
  appoint by written or oral communication, any
  individual or entity residing or being located within
  the State of Illinois to act as its agent, nor [sic]
  to negotiate sales or purchases nor [sic] to accept
  or receive money on its behalf.

See Lexington United, 87 Ill.2d at 203, 57 Ill.Dec. at 736, 429 N.E.2d at 853; Wiedemann v. Cunard Line, Ltd., 63 Ill. App.3d 1023, 20 Ill.Dec. 723, 380 N.E.2d 932 (1st Dist. 1978).

Illinois state court cases cited by Berks in support of jurisdiction are distinguishable as involving defendants' goods or services that came into Illinois and thereafter resulted in harm to Illinois plaintiffs. Braband v. Beech Aircraft Corp., 72 Ill.2d 548, 21 Ill.Dec. 888, 382 N.E.2d 252 (1978); Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961). Though Aigner v. Bell Helicopters, Inc., 86 F.R.D. 532 (N.D.Ill. 1980) (another close case on the facts) held solicitation sufficient to invoke in personam jurisdiction, the decisive factor there was the substantial likelihood plaintiff's claim against a Canadian corporation could be heard in no other United States forum. Such is not the case here, for Berks can readily sue Rib Mountain in federal court nearby in Wisconsin.


Rib Mountain's contacts with Illinois are insufficient to sustain this Court's exercise of in personam jurisdiction. Rib Mountain's Rule 12(b)(2) motion to dismiss is granted.

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