United States District Court, Northern District of Illinois, E.D
September 28, 1983
ROBERTA BERKS, ETC., ET AL., PLAINTIFFS,
RIB MOUNTAIN SKI CORPORATION, DEFENDANT.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
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
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. ) 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
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
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.