The opinion of the court was delivered by: Grady, District Judge.
This case is before the court on defendant's motion to dismiss
for lack of jurisdiction under Fed.R.Civ.P. 12(b)(2).
Plaintiff Maurice Sternberg, Inc., an Illinois corporation with
its principal place of business in Chicago, Illinois, is an art
gallery engaged in exhibiting, purchasing and selling works of
art and in activities related thereto. Defendant A. Everette
James, Jr. is a physician who resides in Tennessee and collects
paintings as a hobby. Defendant is not currently, nor has he ever
been, an art dealer. The case involves a transaction in which
plaintiff traded a painting to defendant in return for three
other paintings and $7,500.00. Plaintiff alleges that one of the
paintings exchanged by defendant is not authentic and that
defendant knowingly misrepresented the painting as an original.
This action was originally filed in the Circuit Court of Cook
County, Illinois, seeking contract rescission or alternatively
actual and punitive damages pursuant to Ill. Rev.Stat. ch. 121
1/2, § 270a and Ill.Rev.Stat. ch. 26, §§ 2-714 and 2-715 (1982),
and for an alleged misrepresentation of material fact.*fn1
Defendant subsequently removed the action to this court pursuant
to 28 U.S.C. § 1441 and 1332. Defendant has moved to dismiss the
action on the grounds that exercise of personal jurisdiction over
him would violate both the Illinois long-arm statute,
Ill.Rev.Stat. ch. 110, § 2-209(a) (1983), and the due process
clause of the United States Constitution. For the following
reasons, we grant defendant's motion.
In a suit based on diversity of citizenship, a federal court
has personal jurisdiction only if the forum state court would
have jurisdiction. See Lakeside Bridge & Steel Co. v. Mountain
State Constr. Co., Inc., 597 F.2d 596, 601 (7th Cir. 1979), cert.
denied, 445 U.S. 907, 100 S.Ct. 1087, 63 L.Ed.2d 325 (1980);
Fed.R. Civ.P. 4(c) and 4(e). Therefore, the first step in the
analysis is to determine as a statutory matter whether the
Illinois long-arm statute reaches the defendant. See Ronco, Inc.
v. Plastics, Inc., 539 F. Supp. 391, 395-99 (N.D.Ill. 1982); Cook
Associates, Inc. v. Lexington United Corp., 87 Ill.2d 190, 57
Ill.Dec. 730, 733-34, 429 N.E.2d 847, 850-51 (1981); Green v.
Advance Ross Electronics Corp., 86 Ill.2d 431, 56 Ill.Dec. 657,
661-62, 427 N.E.2d 1203, 1207-08 (1981).
Ill.Rev.Stat. ch. 110, § 2-209(a)(1) (1983)*fn2 provides that:
(1) The transaction of any business within this
The issue is thus whether defendant's conduct falls within the
language of this long-arm provision.*fn3
From the affidavits submitted by the parties,*fn4 it appears
that there are three components to defendant's contacts with
Illinois: (1) various interstate telephone conversations and mail
correspondence regarding the transaction; (2) defendant's
contract with an Illinois corporation whose portion of the
contract was performed in Illinois; and (3) two visits by
defendant to Chicago in November 1981 and April 1982 during which
he visited plaintiff gallery. These factors will be examined
individually and in tandem to determine whether they are
sufficient to establish jurisdiction under the Illinois long-arm
First, interstate telephone and mail communications to an
Illinois plaintiff are not sufficient to constitute the
transaction of business required by the Illinois long-arm
statute. Caicos Petroleum Service Corp. v. Hunsaker, 551 F. Supp. 152,
155 (N.D.Ill. 1982); Wessel Co., Inc. v. Yoffee and Beitman
Management Corp., 457 F. Supp. 939, 941 (N.D.Ill. 1978); Woodfield
Ford, Inc. v. Akins Ford Corp., 77 Ill. App.3d 343, 32 Ill.Dec.
750, 755, 395 N.E.2d 1131, 1136 (1st Dist. 1979). This is true
regardless of which party initiates the calls, correspondence or
the transaction itself. United States Reduction Co. v. Amalgamet,
Inc., 545 F. Supp. 401, 403 (N.D.Ill. 1982). Therefore, the
communications by telephone and mail between the parties in the
present case are an insufficient predicate for jurisdiction over
Second, while any contract involving an Illinois party
inevitably involves contact with the state, that fact alone is
insufficient for jurisdictional purposes. Woodfield Ford, supra,
77 Ill.App.3d 343, 32 Ill.Dec. at 756, 395 N.E.2d at 1137. A
distinction must be drawn "between the transaction of business in
Illinois and the transaction of business with an Illinois
corporation." Wessel, supra, at 941. The fact that the Illinois
plaintiff's part of the contract was to be performed in Illinois
is not transacting business for jurisdictional purposes. Id. The
focus of the inquiry must be on the acts of the defendant to
determine whether there has been a transaction of business.
Unarco Indus., Inc. v. Frederick Mfg. Co., Inc., 109 Ill. App.3d 189,
64 Ill.Dec. 808, 810, 440 N.E.2d 360, 362 (3d Dist. 1982).
In the present case, therefore, the fact that plaintiff shipped
the painting in question and performed its part of the bargain in
Illinois is irrelevant for jurisdictional purposes. Defendant
performed its part of the bargain in Nashville. These facts will
not support long-arm jurisdiction in Illinois.
Finally, while physical presence in Illinois is not always
required to assert long-arm jurisdiction, it is one factor which
may be looked at to determine whether a party has "transacted
business" in Illinois. See, e.g., United Air Lines, Inc. v.
Conduction Corp., 69 Ill.App.3d 847, 26 Ill. Dec. 344, 348,
387 N.E.2d 1272, 1276 (1st Dist. 1979). Where a party enters Illinois
and initiates or solicits a transaction, the courts will find
that jurisdiction exists. Caicos Petroleum, supra, at 154.
Further, where a defendant engages in substantial pre-contract
negotiations which eventuate in the execution of the contract,
even in a single session, this will constitute transacting
business for jurisdictional purposes. Ronco, supra, at 396;
United Air Lines, supra, 69 Ill.App.3d 847, 26 Ill.Dec. at 349,
387 N.E.2d at 1277. However, mere physical presence in Illinois
unrelated to the transaction in question will not satisfy the
requirements even where some of the events leading up to the
execution of the final contract occurred in Illinois as a result
of that presence. Ronco, supra, at 396 n. 7. Further, a contract
negotiated in Illinois which is later rejected will not provide
the basis of jurisdiction of a later different contract between
the same parties. See Cook Associates, supra, 87 Ill.2d 190, 57
Ill.Dec. at 733-34, 429 N.E.2d at 850-51; see also Drilled
Foundations, Inc. v. Strata-Dyne, Inc., No. 79 C 4242, slip op.
at 1 (N.D.Ill. Nov. 13, 1980) (Grady, J.).
The question presented in the present case is whether
defendant's two visits to Illinois can be characterized as
transacting business under these interpretations of the statute.
Defendant's first visit to the gallery, made while he was
attending a medical convention in Chicago, cannot be
characterized as transacting business. Although plaintiff asserts
in its responsive memorandum that this visit was an important
component of the transaction (Plaintiff's Response to Defendant's
Motion to Dismiss, at pp. 3, 9-10), there is no reference in
plaintiff's representative's affidavit to the fact that defendant
negotiated, much less entered into, any contract on that first
visit. Mere "fascination and interest" in a number ...