supports this allegation (¶ 16). Defendants have submitted no
facts tending to show these allegations are incomplete or
incorrect or that diversity does not exist. The motion to
dismiss for lack of diversity jurisdiction is therefore denied.
The Complaint names seven individuals as defendants, James
S. Wilder, III, John S. Wilder, Sr., Sid Gilreath, T. Robert
Hill, Jeffrey Garrety, George R. Fusner, Jr., and James
Sanderson. It is alleged that plaintiffs were retained to
prepare expert testimony in a case now pending in Tennessee.
Money owed under this contract was allegedly not paid, and
plaintiffs are now suing to recover those sums. Defendants
present the court with affidavits generally showing that they
are not residents of, and have few or no contacts with,
A district court has great procedural leeway in determining
how to handle a motion to dismiss. Data Disc, Inc. v. Systems
Technology Associates, Inc., 557 F.2d 1280, 1285 (9th Cir.
1977). It is generally acknowledged that, "[i]n the absence of
a full-blown hearing on the merits, plaintiff need only make a
prima facie showing that the court has jurisdiction under a
long-arm statute." Neiman v. Rudolf Wolff & Co., Ltd.,
619 F.2d 1189, 1190 (7th Cir.), cert. denied, 449 U.S. 920, 101 S.Ct.
319, 66 L.Ed.2d 148 (1980); Visual Sciences, Inc. v. Integrated
Communications Inc., 660 F.2d 56, 58 (2d Cir. 1981); Marine
Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981).
Such a showing will not prevent a defendant from challenging
the jurisdictional facts at trial or a pretrial evidentiary
hearing, with plaintiff bearing the burden of demonstrating
jurisdiction by a preponderance of the evidence. Visual
Sciences, 660 F.2d at 58; Marine Midland Bank, 664 F.2d at 904.
However, "until such a hearing is held, a prima facie showing
suffices, notwithstanding any controverting presentation by the
moving party, to defeat the motion." Marine Midland Bank,
644 F.2d at 904. Under this standard, plaintiffs are entitled
to resolution in their favor of all factual disputes. Neiman,
619 F.2d at 1190.
Plaintiffs have clearly made a prima facie showing of
jurisdiction over the persons of James S. Wilder, III, John S.
Wilder, Sr., and Sid Gilreath. According to Epstein's
affidavit, James Wilder contacted plaintiffs by phone to
discuss a contract for their services as expert witnesses.
(Epstein Aff. ¶ 2.) As a result of this conversation, Epstein
agreed to review certain medical records and other documents,
for which he was paid $1000. (Id. at ¶ 3 and Exhibit 1.) James
Wilder sent payment and three packages of documents to Epstein
at 880 North Lakeshore Drive, Chicago, IL 60611. (Id.) On or
about May 4, 1980, James Wilder and John Wilder came to Chicago
to negotiate a contract for the performance of additional
consulting services, at which time they entered into an oral
contract with plaintiffs. (Id. at ¶ 4.) After the May 4
conference, James Wilder and Sid Gilreath came to Chicago to
meet with Epstein and discuss his consulting work on at least
three occasions. (Id. at ¶ 5.) While in Chicago, Epstein had
numerous phone conversations with defendants, and "sent and
received numerous correspondence to and from various defendants
concerning my consulting work." (Id. at ¶ 8.) Epstein received
various payments from defendants in Chicago. (Id. at ¶ 11.)
Evidence exists that these three defendants are partners in the
prosecution of suit for which the expert services were
retained. (Id. at ¶ 7.)
Plaintiffs argue that jurisdiction over the defendants in
this action is established under Ill.Rev.Stat., ch. 110, §
2209(a)(1), which confers jurisdiction over a claim arising
from the transaction of business in Illinois. By negotiating
with Illinois residents, originally contacting these residents
concerning provision of their services, sending payments and
documents into the forum state, and visiting plaintiffs in
Illinois in furtherance of the contract upon which the claim is
based, these three defendants have purposefully availed
themselves of the privilege of conducting business activities
in the forum state. See Nieman, supra; Sonnenschein Carlin Nath
& Rosenthal v. Gregory, No. 82 C 6960, slip op. (N.D.Ill. Jan.
20, 1984) (Marshall, J.). Defendants' claim that this action
should be joined with the Tennessee personal injury claim is
frivolous and unsupported, and dismissal on this basis is
Plaintiffs have not established a prima facie case for
jurisdiction over the remaining defendants, however. Hill,
Garrety, Fusner, and Sanderson are not even mentioned by name
in the Complaint. All plaintiffs tell the court about these
defendants' involvement in the case is as follows:
During the period between May, 1980 and March,
1982, I became aware that defendants JAMES S.
WILDER, JOHN WILDER, SR. and SID GILREATH had
formed a partnership of plaintiffs' attorneys for
the prosecution of the lawsuit against Velsicol
Chemical Corporation. I became aware of this
through conversations with certain defendants and
that correspondence would be copied to other
defendants. From time to time, I would copy
various defendants herein with correspondence.
Also, correspondence which I received made
reference to "Mr. [James] Wilder's partners."
(Epstein Aff. ¶ 7.) There is no evidence whether these
defendants are members of Wilder, Wilder & Johnson, the name on
the letterhead of James Wilder's stationery (neither defendants
nor plaintiffs identify the contacts Hill, Sanderson, Fusner,
and Garrety had with the underlying lawsuit or the contract for
plaintiffs' services). These defendants, in very short
affidavits, assert that they are residents of and certified to
practice law in Tennessee and that they are not residents of,
nor licensed to practice law in, Illinois.
Defendants' generally unhelpful affidavits notwithstanding,
plaintiffs' allegations and evidence simply do not establish
a prima facie case that jurisdiction exists over the persons of
Hill, Sanderson, Funser, or Garrety, either through their own
actions or as parties to the contract or partners to the
Wilders and Gilreath. These defendants' motions to dismiss
under Rule 12(b)(1) are granted without prejudice. Plaintiffs
may attempt to amend the complaint to add sufficient
allegations against these defendants or to supplement the
factual record, but on the present record, the court may not
exercise personal jurisdiction over these defendants.
Motion to Quash
Defendants claim they were improperly served and that
summons was improper. Fed.R.Civ.P. 12(b)(4) & (5). According
to defendants, they should have been notified that, as out of
state defendants, they had thirty (30) days to appear and
defend this action. Instead, they were told they had twenty
(20) days. (Defendants' Memorandum in Support, 8-21-84, p. 4.)
Defendants also claim that as out of state defendants, they
were entitled to personal or publication service. However, in
their affidavits, defendants claim they received service by
registered mail. (James Wilder Aff., 8-15-84, receipt by
registered mail 7-28-84; John Wilder Aff., 8-20-84, receipt by
registered mail 7-27-84; Robert Hill Aff., 8-14-84, receipt by
registered mail 7-27-84; Jeffrey Garrety Aff., 8-15-84,
receipt by registered mail 7-31-84; James Sanderson Aff.,
8-14-84, receipt by registered mail 7-27-84; George Fusner
Aff., 8-14-84, receipt by registered mail 7-30-84; Sid
Gilreath Aff., 8-15-84 ¶ 5, receipt by registered mail
7-27-84.) Defendants cite no authority for their proposition
that mail service is insufficient.
Plaintiffs do not respond to defendants' claim that process
was insufficient by virtue of stating a 20-day period in which
to appear. They do argue that mail service was proper for
effecting service under the Federal Rules. As support, they
simply cite Rule 4(c)(2)(C)(ii), without any analysis of the
rule or citation of case law.
Defendants have not claimed that were Rule 4(c)(2)(C)(ii)
applicable to them, service was still improper because of
failure to follow the procedures set forth therein. The court
notes that the file in this case contains return receipts.
Defendants have waived any claim that 4(c)(2)(C)(ii) was not
The court's own research reveals that the use of
4(c)(2)(C)(ii) for extraterritorial service is in dispute.
Under Rule 4(c)(2)(C), service may be accomplished on
individuals in accordance with Illinois law or mail service,
as well as provided by
4(d)(1). Rule 4(e) provides for service on persons not
inhabitants of the forum state. Under 4(e), when a federal
statute allows extraterritorial service, service may be
accomplished as provided in that statute or in the federal
rules (which would include 4(c)(2)(C)(ii).) When a state
statute provides for extraterritorial service, the state's
procedures may be followed. Green v. Carlson, 581 F.2d 669, 676
(7th Cir. 1978), aff'd, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d
15 (1980) (4(d)(1) "inapplicable" to out of state service).
In this case, there is no federal statute providing for
extraterritorial service. Two courts have held that as
4(c)(2)(C)(ii) did not attempt to supercede 4(e), 4(e)
controls and mail service not authorized by the forum state
rules cannot be used for extraterritorial service. William B.
May Co. v. Hyatt, 98 F.R.D. 569, 570 (S.D.N.Y. 1983); San
Miguel & Compania v. International Harvester Export Co., 98
F.R.D. 572, 573 (D.P.R. 1983). Furthermore, a court in this
circuit has found Illinois would not allow service pursuant to
4(c)(2)(C)(ii) on out of state defendants. Chronister v. Sam
Tanksley Trucking, Inc., 569 F. Supp. 464 (N.D.Ill. 1983). Rule
4(f) does not independently authorize mail service on
extraterritorial defendants. By returning the receipts,
defendants did not estop themselves from moving to quash
service. William B. May Co., 98 F.R.D. at 570-571. In any case,
this argument is waived by plaintiffs' failure to raise it.
Service was therefore improper, and the court need not reach
defendants' claim that they were entitled to 30 days in which
to respond. The service of the summons and complaint is
therefore quashed. However, dismissal is not warranted where
there is a reasonable prospect that plaintiffs could properly
serve defendants. Chronister v. Sam Tanksley Trucking, Inc.,
569 F. Supp. 464, 470 (N.D.Ill. 1983) (holding on 4(c)(2)(C)(ii)
reversed in December 5, 1983 order). That prospect exists in
this case. Service shall be made within the time provided in
Rule 4(j) with any enlargement in time to be requested under
Rule 6(b). Ruling on the motion to transfer is reserved pending
Plaintiffs have established a prima facie case that
defendants James Wilder, John Wilder, and Sid Gilreath have
enough contacts with Illinois to allow jurisdiction over their
persons concerning claims arising from the negotiation of the
alleged contract for plaintiffs' expert services. Plaintiffs
have not made such a showing concerning the remaining
defendants, and they are dismissed from this action. Service of
the summons and complaint for all defendants is quashed.
Plaintiffs shall serve defendants within the time provided in
Rule 4(j), measuring the time limit from the filing of the
complaint. Ruling on the motion to transfer is reserved pending
It is so ordered.
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