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March 27, 1990


The opinion of the court was delivered by: SHADUR



 Law partnership Tompkins, McGuire & Wachenfeld (the "Firm") has filed a motion framed in the alternative in this action brought by Bankers Leasing Association, Inc. ("Bankers") for breach of an equipment lease, seeking:


1. to dismiss Bankers' Complaint under Fed. R. Civ. P. ("Rule") 12(b)(2) for lack of personal jurisdiction over the Firm; or


2. to transfer this action under 28 U.S.C. § 1404(a) to the United States District Court for the District of New Jersey, where the Firm is located and where it contends all the material witnesses are located.

 This brief memorandum opinion and order confirms the guidance given orally to the litigants' counsel at today's status hearing, in light of the memorandum just filed by Bankers in opposition to the Firm's dual motion. *fn1"

 Because Bankers relies on the Illinois long-arm statute (Ill. Rev. Stat. ch. 110, para. 2-209 ["Section 2-209"] *fn2" ) to obtain personal jurisdiction over the Firm in this diversity action, Bankers' responsive memorandum quite properly relies substantially on the most recent opinion from our Court of Appeals on that subject: FMC Corp. v. Varonos, 892 F.2d 1308 (7th Cir. 1990). But Bankers seeks to buttress FMC's articulation of the Illinois standard *fn3" by also invoking the September 7, 1989 amendment to the Illinois long-arm statute -- an amendment that has extended the statute's reach to the outer boundaries permitted by the Due Process Clause (see FMC, 892 F.2d at 1311 n. 5). For the reason expressed in this opinion, that added fillip is unjustified.

 Although this lawsuit was filed in December 1989, the conduct of the Firm to which Bankers points in its effort to secure personal jurisdiction over the Firm here in Illinois took place in 1987. And it is of course a defendant's conduct, rather than the fact of its being sued here, that creates the potential for such personal jurisdiction. It is necessary only to quote the relevant portion of the long-arm statute (P.A. 86-840, § 1 amending Section 2-209, 1989 Ill. Legis. Serv. 4069, 4070 (West)) to reconfirm that self-evident fact: *fn4"


(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 to any cause of action arising from the doing of any of such acts:


(1) the transaction of any business within this State;


* * * *


(c) A court may also exercise jurisdiction on any other basis now or hereafter permitted by the Illinois Constitution and the Constitution of the United States.

 As can be seen, the long-arm statute itself speaks of acts by which a person submits to the Illinois courts' jurisdiction "as to any cause of action arising from the doing of any such acts." And it is this Court's view that the new Section 2-209(c), which represents the legislative overruling of the Illinois Supreme Court's earlier declaration of independence from the automatic application of federal due process standards ( Cook Associates, Inc. v. Lexington United Corp., 87 Ill. 2d 190, 197, 429 N.E.2d 847, 850, 57 Ill. Dec. 730 (1981); Green v. Advance Ross Electronics Corp., 86 Ill. 2d 431, 436-37, 427 N.E.2d 1203, 1206, 56 Ill. Dec. 657 (1981)), must be read in the same terms -- else a quite different kind of due process problem would be presented, under which a party could be haled into court for conduct that would not have subjected that party to suit when the action was taken.

 Lest that last proposition may be thought overly cryptic, some elaboration may be in order. There is of course a reason that the Illinois long-arm statute is framed in terms of submission to jurisdiction by the performance of some act. Initially in personam jurisdiction rested on the historic (and jurisprudentially primitive) notion that such jurisdiction was dependent on the physical service of process while the defendant was physically present in the forum jurisdiction. Then in the evolutionary process of expanding in personam jurisdiction, all the departures from that original notion began with the idea that the defendant had impliedly consented to such jurisdiction by engaging in specified conduct. *fn5" And in every instance those departures were found to pass constitutional muster under the Due Process Clause because the defendant could reasonably have expected to be haled into court on the basis of that specified conduct (see, e.g., among the myriad cases applying that approach, Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-76, 85 L. Ed. 2d 528, 105 S. Ct. 2174 (1985)).

 But here a state Supreme Court -- the ultimate authority on the meaning of its state's statutes -- had announced that defendants would not automatically be subjected to suit in Illinois merely because the federal definition of permissible jurisdiction in due process terms would have embraced the Illinois-related activity of those defendants. Instead the established Illinois case law would be used to measure the reach of the Illinois long-arm statute, a reach that could well be less extensive than the Due Process Clause would allow. *fn6" Under those circumstances people and companies had a right to rely on the premise that their conduct that was in the gap area -- conduct that fell outside the Illinois-case-defined reach of Section 2-209, though it came within the potential reach of the Due Process Clause -- would not later force them into Illinois courts to respond to claims stemming from that very conduct. And for courts to defeat those justified expectations would tend to undercut the notions of predictability of legal rules, and of the consequences of engaging in conduct in reliance on those rules, that implicate due process considerations.

 Familiar principles teach that statutes should be construed, if reasonably possible, to avoid such potential constitutional infirmities. And a reading of Section 2-209(c) as stating a rule that is applicable only to future and not to past conduct (like all the rest of Section 2-209) serves those principles, as well as being the most logical reading of the statutory language in its own context. *fn7" It is true that FMC, 892 F.2d at 1311 n. 5 said that the Court of Appeals was applying the pre-1989-amendment version of the long-arm statute "because this change became effective after the present case was filed. . . ." But the Court of Appeals was not there called upon to examine the issue discussed here, and that offhand dictum cannot be viewed as controlling.

 Accordingly the parties are directed to address the issue now before this Court in terms of the pre-1989-amendment version of Section 2-209. This Court will await the completion of the parties' briefing on the current motion.

 Date: March 27, 1990

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