The opinion of the court was delivered by: Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
Plaintiff Afirm, Inc. ("Afirm") brought this diversity suit
against defendant Frazee Paint and Wallcovering Company, Inc.
("Frazee") for breach of an oral contract. Afirm is an Illinois
corporation with its principal place of business in Hinsdale,
Illinois. Frazee is a California corporation with its principal
place of business in San Diego, California. Frazee contends that
the court lacks personal jurisdiction over Frazee and has moved
to dismiss the suit under 12(b)(2). For the reasons set forth
below, the court grants Frazee's motions.
The parties have submitted conflicting affidavits concerning
the material facts.*fn1 While Afirm carries the burden of producing
evidence sufficient to support jurisdiction, see, e.g., Caicos
Petroleum Service Corp. v. Hunsaker, 551 F. Supp. 152, 153
(N.D.Ill. 1982), it enjoys the concurrent advantage of having
factual conflicts resolved in its favor. See Jacobs/Kahan v.
Marsh, 740 F.2d 587, 589 (7th Cir. 1984); Deluxe Ice Cream v.
R.C.H. Tool Corp., 726 F.2d 1209, 1215 (7th Cir. 1984). Thus, the
factual statement that follows is derived from Afirm's affidavit
and complaint and from Frazee's affidavits to the extent they are
not in conflict with Afirm's statements.
Frazee is registered to do business in California — not
Illinois. Frazee does not maintain or operate any facility in any
Illinois county. Nor does Frazee own, use or possess any real
property in Illinois. In the past twelve months, Frazee has not
made any shipment or sale of any kind whatsoever to any entity,
buyer or recipient in Illinois. However, Frazee has had
unsolicited business contact and interstate telephone
conversations with Afirm in the last two years.
Afirm is an employment agency. Its job is to help businesses
find qualified employees and vice versa. If it is successful, the
hiring corporation pays it a fee, usually a percentage of the
salary of the person hired. In the last two years on several
occasions, Afirm made unsolicited interstate calls to Frazee to
present applicants for various positions. Frazee never called
Afirm, unless Frazee was returning a call. Nor did Frazee ever
meet with Afirm or interview applicants in Illinois. However,
Afirm alleges that the parties agreed over the phone that if
Frazee hired an employee Afirm referred to it, it would pay Afirm
25% of the employee's first annual salary.
On June 9, 1983, candidate Martin Balow was presented by Afirm
to Frazee for a "technical director" position. Per Frazee's
request, Balow's resume was submitted. In addition, an
appointment by telephone was arranged for Balow to be interviewed
by Frazee in California in September 1983. But Frazee did not
hire Balow then. Instead, Frazee hired Cyriac Alexander, another
potential candidate, for the technical director position. Balow
then accepted a technical director position with another company.
In May of 1984, Frazee placed an ad for a senior chemist in a
trade publication circulated in Illinois. Afirm responded to this
ad by placing another unsolicited call to Frazee. Afirm spoke to
Cyriac Alexander, now the Senior Vice President of Operations,*fn2
and presented not Balow but a former applicant, Ray Guchurra. Mr.
Alexander never followed up on Afirm's presentation or returned
The parties did not communicate with each other again until
October 15, 1984, the day Afirm found out that Frazee ended up
hiring Balow in July 1984 for the technical director position.*fn3
Afirm contacted Alexander and demanded a placement fee of 25% of
Balow's first year's salary ($12,500). Frazee refused to pay such
fee. Afirm filed this lawsuit.
In a suit based on diversity of citizenship, a federal court
has personal jurisdiction only if the forum state court would
have jurisdiction. See, Maurice Sternberg v. James, 577 F. Supp. 882,
884 (N.D.Ill. 1984). Therefore, the first step in the
analysis is to determine as a statutory matter whether the
Illinois long-arm statute reaches the defendant. Id. If so, the
court must decide whether the Due Process Clause permits service
of process. See, e.g., Deluxe Ice Cream Co. v. R.C.H. Tool Corp.,
726 F.2d at 1214.*fn4 Because we find below that the long-arm
statute does not reach the defendant, we will not need to address
the constitutional issue.
The only pertinent provisions of the Illinois long-arm statute
(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 ...