The opinion of the court was delivered by: Getzendanner, District Judge:
MEMORANDUM OPINION AND ORDER
This diversity action is before the court on the motions of
all defendants to dismiss the complaint under Fed.R.Civ.P.
12(b)(1), (2), (4), and (5) or to transfer pursuant to
28 U.S.C. § 1404.
Subject Matter Jurisdiction
Defendants move to dismiss under 12(b)(1), "diversity of
citizenship not having been alleged in the Complaint."
(Defendants Motion to Quash and to Dismiss, 8-21-84, p. 2.)
This claim, not raised once in the supporting memorandum or
affidavits, borders on frivolous. The Complaint clearly
alleges that jurisdiction is based on diversity (¶ 1), that
plaintiff Environmental Toxicology, Inc. ("ETI") is an Ohio
corporation, the address of which is in Chicago (¶ 2), and that
plaintiff Samuel Epstein is an Illinois resident (¶ 3) and a
professor at the University of Illinois Medical School (¶ 6).
It further alleges that all defendants are citizens of
Tennessee (¶ 4), and defendants' affidavits support this
allegation. The amount in controversy is alleged to be in
excess of $10,000, exclusive of interest and costs (¶ 1), and
the allegations that defendants owe plaintiffs over $12,000
under their contract
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 ...