United States District Court, Northern District of Illinois, E.D
June 21, 1984
HUNTER DOUGLAS METALS, INC., AN ILLINOIS CORPORATION, PLAINTIFF,
EDWARD C. MANGE TRADING CO., A TEXAS CORPORATION, AND EDWARD C. MANGE, AN INDIVIDUAL, DEFENDANTS.
The opinion of the court was delivered by: Bua, District Judge.
The case at bar involves allegations of breach of contract
and tortious behavior against Edward C. Mange Trading Co.
(Trading), a Texas corporation, and Edward C. Mange, an
individual who resides in Texas. Before the Court is the
defendants' Motion to Dismiss or, Alternatively, to Transfer
Venue pursuant to 28 U.S.C. § 1404(a). For the reasons stated
herein, the Motion to Dismiss or Transfer is denied.
The complaint of plaintiff Hunter Douglas Metals, Inc.
(Hunter) is in eight counts which the complaint styles as
"Causes of Action." The first count alleges that Mange and
Trading tortiously interfered with the business relationships
of Hunter and Ed Mange International (International), a
corporate entity of which Mange is an officer which is not a
party to this lawsuit. Counts two, three, four, and five
allege that Trading breached its contract with Hunter and in
so doing acted willfully, maliciously, and in wanton disregard
of the rights of Hunter. The sixth count alleges that Mange
tortiously interfered with the business relationships of
Hunter and Trading so as to cause the breaches of contract
alleged in the other counts. Counts seven and eight allege
that Trading breached its contract with Hunter by delivering
nonconforming goods, which were rejected by Hunter, and by
thereafter failing to deliver any further goods.*fn1
In the motion to dismiss, the defendants first allege that
defendant Ed Mange should be dismissed because this Court
lacks personal jurisdiction over him.
Counts one and six are directed specifically at Mange and
allege that Mange tortiously interfered with the business
relationships of Hunter and Trading, and Hunter and
International, thereby causing Trading and International to
breach or otherwise not perform as required by the contract.
Mange argues that because he has had no contacts with
Illinois sufficient to amount to the transaction of business
in the state, this Court lacks jurisdiction over him. Mange
admits that he was briefly present in Illinois, but only in a
fiduciary capacity, and only after the dispute had arisen, not
during the formation of the transaction out of which the
dispute arose. While there may be merit to Mange's argument,
this Court need not decide the issue as it is apparent that
the allegations against Mange are allegations of tortious
conduct which appear to have been committed in Illinois.
Under the Illinois Long-Arm Statute, one instance of
tortious conduct is sufficient for the courts of this state to
exercise jurisdiction over a defendant. According to the
(a) Any person, whether or not a citizen or
resident of this State, who in person or through
an agent does any of the acts hereinafter
enumerated, thereby submits such person, and, if
an individual, his or her personal
representative, to the jurisdiction of the courts
of this State as to any cause of action rising
from the doing of any of such act;
(2) The commission of a tortious act within this
State . . .
Ill.Rev.Stat. ch. 110, ¶ 2-209(a)(2)(1983).
In Gray v. American Radiator & Standard Sanitary Corp.,
22 Ill.2d 432, 176 N.E.2d 761 (1961), the court held personal
jurisdiction existed in Illinois over an Ohio manufacturer of a
valve which was shipped to Pennsylvania for incorporation into
a hot water heater which was then sold to an Illinois consumer
in the regular course of commerce. In Illinois, the water
heater exploded, causing injury to the plaintiff. According to
the court, the key consideration as to whether, in light of the
requirements of due process, it would be reasonable to require
a defendant to litigate in the chosen forum, is whether the
"act or transaction itself has a substantial connection with
the State of the forum." 22 Ill.2d at 438, 176 N.E.2d 761.
In the case at bar, Mange contends that no personal
jurisdiction exists in Illinois because any tortious acts he
may have undertaken took place in Texas. This contention is
made despite the fact that it is apparently conceded that the
breaches of contract occurred in Illinois.
In support of his argument, Mange relies upon Green v.
Advance Ross Electronics Corp., 86 Ill.2d 431, 56 Ill.Dec. 657,
427 N.E.2d 1203 (1981), in which the court held that the courts
of Illinois had no jurisdiction where the only connection with
the state was the diminution of the funds of a corporation
organized or headquartered in Illinois. However, such reliance
is misplaced as Green is plainly distinguishable from the case
In Green, the court noted that the place of a wrong is that
place where the last event takes place which is necessary to
render the actor liable. 86 Ill.2d at 437, 56 Ill.Dec. at 661,
427 N.E.2d at 1207. Applying this analysis, the Court found
that Texas was the place where the tort had occurred as that
was where the misappropriation of funds which formed the basis
of the suit transpired. In so finding, the court noted that the
diminution of plaintiff's funds in Illinois was too tenuous of
a connection with the forum to support jurisdiction and was
merely a consequence of the tortious conduct and not a part
By comparison, in the case at bar it is clear that the
contracts were breached in Illinois; that is the state where
the payments were to be received and were not, and where
delivery of the nonconforming goods was attempted. The effects
of Mange's alleged tortious behavior were apparently felt in
no state but Illinois and it seems clear that Mange was fully
aware that Illinois would be the forum which his tortious
conduct would impact. Unlike in
Green, the connection of such conduct with this forum is
plainly more than consequential. Under the rationale of Gray,
supra, as well as Green, Mange's tortious behavior occurred in
Illinois to such an extent that this Court has personal
jurisdiction over him. Mange's motion to dismiss for lack of
personal jurisdiction must therefore be denied.
Defendants' next contention is that the punitive damage
prayers in the breach of contract counts should be dismissed.
As defendant notes, plaintiffs have attempted to infuse some
aspect of negligence into the breach of contract claims by
using terms such as "maliciously," "deceptive," and "unfair"
in setting out their breach of contract claims. According to
defendant, the prayer for punitive damages in these counts
must be dismissed as in Illinois a party may not create a tort
action out of an alleged breach of contract. However,
defendants' interpretation is not supported by case law.
While it is well settled in Illinois that a party suing on
a breach of contract may recover only compensatory damages,
Hutchinson v. Brotman-Sherman Theatres, Inc., 94 Ill. App.3d 1066,
1078-79, 50 Ill.Dec. 422, 419 N.E.2d 530 (1981), punitive
damages are recoverable where the breach constitutes an
independent and willful tort accompanied by fraud, malice,
wantonness or oppression. American Society of Contemporary
Medicine, Surgery, & Opthalmology v. Murray Communications,
Inc., 547 F. Supp. 462, 465 (N.D.Ill. 1982) (Aspen, J.); McGrady
v. Chrysler Motors Corp., 46 Ill.App.3d 136, 141, 4 Ill.Dec.
705, 360 N.E.2d 818 (1977). Thus where a count contains
allegations sufficient to support both a contract claim and an
independent tort, both may stand and punitive damages may be
awarded if plaintiff is able to sustain his burden under the
In the case at bar, plaintiff has failed to assert an
independent tort action in the aforementioned counts arising
from the breaches of contract. Unlike the situation in
American Society, where the Court found that a breach of
contracts count also appeared to contain sufficient allegations
to plead an independent action for interference with
prospective business opportunity, in the case at bar no
allegations independent of the breach of contract claims are
made save for the claims that such breaches were "malicious,"
"deceptive," and "unfair." In the opinion of this Court, such
bald assertions, without more, fail to constitute sufficient
allegations of an independent tort. Thus, as only a contract
claim is stated, the punitive prayers of Counts II, III, IV and
V must be dismissed.
Defendant finally argues that venue in the instant case
should be transferred to the U.S. District Court for the
Southern District of Texas under 28 U.S.C. § 1404(a). In
support of this argument, defendant claims:
1) Mange can only be sued in Texas;
2) The calendar of the Southern District of Texas
is less congested than the Northern District of
3) All of Mange's documents are in Texas;
4) The alleged breach occurred in Texas; and,
5) Six of Mange's witnesses are located in Texas.
As this Court has previously discussed, Mange may be sued in
Illinois; therefore, defendants' first argument must fall.
Moreover, defendants' second argument is not based in fact. In
1983, the average judge in the Southern District of Texas had
709 pending cases while the average judge in this district had
only 499 pending cases and this Court has now pending less
than half that number. Moreover, the average civil case in
Texas takes ten months to dispose of while the average civil
case in this district is disposed of in but six months.*fn2
Defendants' third argument is countered by the argument that
all of plaintiff's documents are in Illinois, thus negating
the thrust of the defendants' contentions. As to defendants'
fourth point, as the Court has previously noted, it appears
that the breach took place in Illinois. Moreover, while
defendant states that six of his witnesses are residents of
Texas, plaintiff counters by noting that three of its
witnesses reside within the Northern District of Illinois and
that three others live nearby. Finally, plaintiffs note that
the law of Illinois applies as the purchase contract, which
was accepted by Mange, contains a clause consenting to the
application of the Uniform Commercial Code as enacted in
Viewed in light of the above facts, it is apparent that
Illinois is at least as convenient and appropriate of a forum
as Texas. In such circumstances, the chosen forum of the
plaintiff is entitled to substantial weight and will be
honored. Ronco, Inc. v. Plastics, Inc., 539 F. Supp. 391, 401
(N.D. Ill. 1982). The motion to transfer thus must be denied.
For the reasons stated herein, defendants' motions to
dismiss Mange for lack of personal jurisdiction and to
transfer venue is hereby denied. However, the motion to strike
the prayers for punitive relief in Counts II, III, IV and V
are hereby granted.
IT IS SO ORDERED.