The opinion of the court was delivered by: Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
Plaintiff Mercedes Connolly ("Connolly"), a citizen of
Illinois, brings this diversity action against defendant Judy
Samuelson ("Samuelson"), a Kansas citizen. Connolly essentially
alleges that while participating in a land tour of South Africa
she was injured while crossing a stream; she sues Samuelson for
negligently planning and marketing the tour package. Presently
before the Court is Samuelson's motion to dismiss for lack of
personal jurisdiction. For the reasons set forth below,
Samuelson's motion is granted.
On a motion to dismiss for lack of jurisdiction, the plaintiff
has the burden of providing sufficient evidence to support
jurisdiction. Caicos Petroleum Service Corp. v. Hunsaker,
551 F. Supp. 152, 153 (N.D.Ill. 1982); Captain International
Industries, Inc. v. Westbury, Chicago, Inc., 416 F. Supp. 721,
722 (N.D.Ill. 1975). The court may consider affidavits
submitted by the parties on the question of jurisdiction.
O'Hare International Bank v. Hampton, 437 F.2d 1173, 1176
(7th Cir. 1971). "[I]f a
defendant's affidavit contesting jurisdiction is not refuted by
a counter-affidavit filed by the plaintiff, the facts alleged
in the defendant's affidavit are taken as true." Kutner v.
DeMassa, 96 Ill. App.3d 243, 51 Ill.Dec. 723, 727,
421 N.E.2d 231, 235 (1st Dist. 1981); Caicos Petroleum, 551 F. Supp. at
A federal court has jurisdiction over a diversity suit such as
this one only if a court of the forum state would have
jurisdiction had the suit been brought there. Lakeside Bridge
& Steel Co. v. Mountain State Construction Co., Inc.,
597 F.2d 596, 598 (7th Cir. 1979), cert. denied, 445 U.S. 907, 100
S.Ct. 1087, 63 L.Ed.2d 325 (1980). State courts in Illinois can
asset personal jurisdiction over a non-resident defendant who
"does business" within the state or who has performed one of
the acts enumerated in the Illinois long arm statute. Cook
Associates, Inc. v. Lexington United Corp., 87 Ill.2d 190,
199, 57 Ill.Dec. 730, 734, 429 N.E.2d 847, 851 (1981). The long
arm statute sections arguably relevant to this case give the
Illinois courts jurisdiction "as to any cause of action arising
from . . . (1) The transaction of any business within this
State; or (2) the commission of a tortious act within this
State." Ill.Rev.Stat. ch. 110, ¶ 2-209.
A. Doing Business in Illinois
Connolly alleges in her complaint that Samuelson "does business
in the State of Illinois." Complaint, para. 2. Illinois courts
have long applied the doctrine that a non-resident defendant
may effectively consent to be sued in the state by virtue of
doing business there. Cook Associates, 87 Ill.2d at 199-03,
57 Ill.Dec. at 733-36, 429 N.E.2d at 850-53. However, this
doctrine applies only when there is some regularity of
activities in Illinois. Id., 87 Ill.2d at 202-03, 57 Ill.Dec.
at 735-36, 429 N.E.2d at 852-53.
It is clear that Samuelson's commercial activities do not bring
her within the doing business doctrine. In an undisputed
affidavit, Samuelson avers that she does not maintain an office
or any bank accounts in Illinois, has no agents or employees
located in Illinois, does not travel herself to Illinois to do
business and does not advertise or otherwise actively solicit
business in Illinois. In fact, Samuelson swears that Connolly
and her husband are the only Illinois residents with whom she
can remember doing business. Because these uncontested facts
are taken to be true, we find that Samuelson's conduct does not
amount to doing business in Illinois.
B. Transaction of Business in Illinois
The first section of the Illinois long arm statute that might
possibly relate to this case gives the courts jurisdiction when
the cause of action arises from the transaction of business
within the state. Although Connolly does not explicitly argue
that this section applies here, she does argue that the
exercise of personal jurisdiction over Samuelson is warranted
by Samuelson's sale "in Illinois" of the South African tour
package. However, the factual allegations in both Connolly's
complaint and Samuelson's affidavit demonstrate the attenuated
contact Samuelson has had with Illinois. Samuelson never
travelled to this state concerning any of her business dealings
with Connolly; rather, all of their correspondence was by mail
or telephone. Moreover, their business had nothing to do with
Illinois, but dealt with a tour of South Africa that was
arranged in Kansas. Absent any other connection to Illinois,
the parties' exchange of mail and telephone calls is not enough
to support personal jurisdiction over Samuelson. Maurice
Sternberg, Inc. v. James, 577 F. Supp. 882, 885 (N.D.Ill.
1984); Caicos Petroleum, 551 F. Supp. at 155; U.S. Reduction
Co. v. Amalgamet, Inc., 545 F. Supp. 401, 403 (N.D.Ill. 1982);
Woodfield Ford, Inc. v. Akins Ford Corp., 77 Ill. App.3d 343,
349, 32 Ill.Dec. 750, 754, 395 N.E.2d 1131, 1136 (1st Dist.
1979); see also Artoe v. Mann, 36 Ill. App.3d 204,
343 N.E.2d 647 (1st Dist. 1976).
C. Tortious Act in Illinois
In the frequently cited case of Gray v. American Radiator &
Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961),
the Illinois Supreme Court ruled that the wrong (which it
equated with "tortious act") occurs "where the last event takes
place which is necessary to render the actor liable." Id., 22
Ill.2d at 435, 176 N.E.2d at 762-63. In most cases. that is
where the injury to the plaintiff occurs. The Court declined to
distinguish the terms "tort" and "tortious act" in construing
the long arm statute, and it refused to allow parties to raise
"extraneous issues concerning the elements of a tort and the
territorial incidence of each. . . ." Id., 22 Ill.2d at 436,
176 N.E.2d at 763.
The Illinois Appellate Court followed this aspect of Gray in
Wiedemann v. Cunard Line Limited, 63 Ill. App.3d 1023, 20 Ill.
Dec. 723, 380 N.E.2d 932 (1st Dist. 1978). In Wiedemann, a
traveler sued a cruise ship owner, a vacation tour operator and
others for injuries he sustained on a beach at a resort hotel
in the West Indies. The court found no tortious act in
Illinois, since the traveler was injured in the West Indies and
that was the only place where any specifically alleged
misrepresentations had been made. Id., 63 Ill.App.3d at 1033,
380 N.E.2d at 940.
Also factually similar to this case is Stansell v.
International Fellowship, Inc., 22 Ill. App.3d 959,
318 N.E.2d 149 (1st Dist. 1974). In Stansell, the plaintiff's decedent
was killed in a plane crash in Peru. The non-resident
individual defendant contesting the Illinois court's
jurisdiction was the president of the association which had
arranged the ill-fated airplane trip. The court found no act or
omission in Illinois on the part of the defendant: "Even
assuming that she was in charge of selecting the airline, ...