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BEN KOZLOFF, INC. v. H & G DISTRIBS.

July 28, 1989

BEN KOZLOFF, INC., an Illinois corporation, Plaintiff,
v.
H & G DISTRIBUTORS, INC., Defendant


James H. Alesia, United States District Judge.


The opinion of the court was delivered by: ALESIA

JAMES H. ALESIA, UNITED STATES DISTRICT JUDGE

 Plaintiff, Ben Kozloff, Inc. ("Kozloff"), has filed this two-count diversity action against defendant, H & G Distributing, Inc. ("H & G Distributing"). *fn1" In response to Kozloff's complaint, H & G Distributing has filed a motion to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. For the reasons set forth in this opinion, H & G Distributing's motion to dismiss is denied.

 I. Factual Background

 Kozloff, an Illinois corporation with its principal place of business in Chicago, Illinois, is an importer and wholesaler of frozen seafood products in the United States. H & G Distributing is a Pennsylvania corporation with its principal place of business in Bensalem, Pennsylvania. H & G Distributing maintains no offices in Illinois, nor does it have any agents here.

 For the past seven years, H & G Distributing has placed weekly or biweekly orders for varying amounts of frozen seafood with Kozloff. H & G Distributing initiated each of these purchase orders by telephone. As a result of these orders, since April 1982, H & G Distributing has purchased from Kozloff nearly 790,000 pounds of seafood worth approximately 3.75 million dollars. Kozloff completed these orders by shipping the frozen seafood directly from its inventory to H & G Distributing's storehouses in Philadelphia. During the period in question, Kozloff maintained inventory in several foreign countries (Australia, New Zealand and Honduras) and in other locations within the United States, but outside of Illinois. Kozloff maintains no inventory in Illinois. Kozloff mailed all invoices for the purchase orders to H & G Distributing from its Chicago office and H & G Distributing made all payments to Kozloff's Chicago office.

 This particular dispute arose over various quantities of frozen seafood sold by Kozloff to H & G Distributing between May and July of 1988. Kozloff supplied the seafood in accordance with H & G Distributing's requests and thereafter sent invoices to H & G Distributing seeking payment for the seafood. After making repeated demands for payment of these invoices with no results, Kozloff filed this two-count complaint alleging breach of contract and account stated. In its complaint, Kozloff alleges that this Court has personal jurisdiction over H & G Distributing pursuant to the "transacting business" provision of the Illinois long-arm statute. See Ill. Rev. Stat. ch. 110, para. 2-209(a)(1) (1987). In its motion to dismiss, H & G Distributing challenges Kozloff's assertion and contends that this Court has no personal jurisdiction over it.

 II. Discussion

 For purposes of resolving this issue, we must accept all undenied factual allegations as true and resolve all factual disputes in favor of the party seeking jurisdiction. See Saylor v. Dyniewski, 836 F.2d 341, 342 (7th Cir. 1988). Because this is a diversity action, this Court will have jurisdiction only if the Illinois courts would have jurisdiction. See Young v. Colgate-Palmolive Co., 790 F.2d 567, 569 (7th Cir. 1986); 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). Thus, we examine the jurisdictional requirements of Illinois.

 In Illinois, a party seeking to establish personal jurisdiction over a nonresident defendant must satisfy a two-part test. First, he must demonstrate that the nonresident defendant has performed one of the acts enumerated in the Illinois long-arm statute. Ill. Rev. Stat. ch. 110, para. 2-209 (1987). *fn2" Second, he must show that the nonresident defendant has had sufficient "minimum contacts" to satisfy the Due Process Clause of the Fourteenth Amendment. See International Shoe Co. v. Washington, 326 U.S. 310, 316, 90 L. Ed. 95, 66 S. Ct. 154 (1945). Although these two requirements were originally read as coterminous, the Illinois Supreme Court has made clear that long-arm jurisdiction may not be exercised in every situation which due process would permit. See Young, 790 F.2d at 569. Consequently, we analyze the statutory and constitutional components separately.

 A. Analysis Under the Illinois Long-Arm Statute

 Under the Illinois long-arm statute, one of the acts which gives rise to jurisdiction over a nonresident defendant is the "transaction of business" in this state. Ill. Rev. Stat. ch. 110, para. 2-209(a)(1) (1987). The exercise of this jurisdiction, however, is limited to causes of action "arising from" the defendant's "transaction of business." Ill. Rev. Stat. ch. 110, para. 2-209(a) and (d).

 Under the Illinois "transacting business" requirement, neither the physical presence of the nonresident nor regular and systematic conduct of business within the state is necessary. See Snyder v. Smith, 736 F.2d 409, 416 (7th Cir.) cert. denied, 469 U.S. 1037, 83 L. Ed. 2d 403, 105 S. Ct. 513 (1984). In the past, Illinois courts have consistently held that activities such as mailing money or messages to an Illinois resident or placing telephone calls to an Illinois resident, coupled with an intent to affect Illinois business interests and to communicate a message to Illinois, are sufficient to satisfy the requirements of the Illinois long-arm statute. See AM International Leasing Corp. v. National Council of Negro Women, Inc., 627 F. Supp. 1302, 1308 (N.D.Ill. 1986); Club Assistance Program, Inc. v. Zukerman, 594 F. Supp. 341, 347 n.n. 8-11 (N.D.Ill. 1984) (collecting numerous Illinois cases).

 In determining whether a nonresident defendant has "transacted business" in Illinois, several factors are relevant: which party initiated the transaction; where the contract was negotiated and consummated; and where performance of the contract occurred. See Gordon v. Tow, 148 Ill. App. 3d 275, 280-81, 498 N.E.2d 718, 722, 101 Ill. Dec. 394 (1st Dist. 1986). None of these factors, however, is controlling. See Gordon, 148 Ill.App.3d at 281, 498 N.E.2d at 722. Ultimately, the entire relationship between the parties controls and the "total picture [must] support[] a ...


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