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BLANCO OSO INTL. TRADING CO. v. SOUTHERN SCRAP MAT

April 25, 1990

BLANCO OSO INTERNATIONAL TRADING COMPANY, Plaintiff,
v.
SOUTHERN SCRAP MATERIAL CO., LTD., Defendant



The opinion of the court was delivered by: DUFF

 BRIAN BARNETT DUFF, UNITED STATES DISTRICT JUDGE

 Southern Scrap Material Company, Ltd., has moved under Rule 12(b)(2), Fed.R.Civ.Pro, to dismiss the suit of Blanco Oso International Trading Company. Southern Scrap contends that this court lacks jurisdiction over the company. Blanco Oso has presented weak arguments for why Southern Scrap is wrong, and pleas for a delay in the decision on Southern Scrap's motion until Blanco Oso has had a chance to discover more evidence.

 The court's duty in considering Southern Scrap's motion is straightforward. The Seventh Circuit described that duty succinctly in Nelson by Carson v. Park Industries, Inc., 717 F.2d 1120, 1123 (7th Cir. 1983) (citations omitted):

 
To determine whether exercising personal jurisdiction is proper, a court may receive and weigh affidavits prior to trial on the merits. During this preliminary proceeding, although the burden of proof rests on the party asserting jurisdiction, if the district court's decision is based on the submission of written materials the burden of proof is met by a prima facie showing that personal jurisdiction is conferred under the relevant jurisdictional statute. Further, the party asserting jurisdiction is entitled to the resolution in its favor of all disputes concerning relevant facts presented in the record.

 From Blanco Oso's complaint and the affidavits submitted by the parties, these are the facts: Blanco Oso is an Illinois corporation which has its principal place of business in Illinois. Southern Scrap is a Louisiana corporation whose principal place of business is in that fair state. Southern Scrap has no ongoing business, employees, or agents in Illinois, although someone has told Blanco Oso's General Manager, Gerald Young, that Southern Scrap has done business (when, Young does not say) with at least three Illinois companies other than Blanco Oso. Blanco Oso and Southern Scrap both buy and sell scrap metals.

 Sometime in 1985, an agent of Southern Scrap contacted Young about trying to buy scrap metal located in Illinois. An affidavit from Young does not say where these negotiations occurred, or where the agent lived, but elsewhere in the affidavit Young refers to a Southern Scrap agent who lived in Missouri. Regardless, these negotiations were not fruitful. Sometime later -- Young does not say when -- employees of Southern Scrap contacted Young about buying scrap auto bodies. Young does not say where these talks took place, or what was their result.

 The third time was the charm. In June 1989, Young contacted Southern Scrap's Louisiana offices. Young was in the U.S. Virgin Islands at the time, but he made it clear to Southern Scrap that he was representing Blanco Oso in the sale of 3000 gross tons of scrap metal located in the Virgin Islands. The parties negotiated many of the details of their resulting contract between June and August 1989, mostly over the telephone lines between Louisiana and the Virgin Islands. Southern Scrap attempted to send the final copy of the contract to the Virgin Islands, but for technical reasons it could not complete the transmission. Instead, at Young's suggestion, Southern Scrap sent the final copy to Illinois.

 By the terms of the parties' contract, Southern Scrap was to pay a $ 15,000 advance to Blanco Oso upon signing of their agreement. Title to the scrap was to pass upon delivery to Southern Scrap and Southern Scrap's acceptance. Southern Scrap promised to make final payment upon Blanco Oso's presentation of an invoice. The contract does not mention where this would take place. *fn1"

 In Rose v. Franchetti, 713 F. Supp. 1203, 1205 (N.D.Ill. 1989), this court noted that a court acquires personal jurisdiction over a defendant "when the plaintiff properly serves the defendant with process pursuant to a statute or rule, and the service does not violate due process." Like the defendant in Rose, Southern Scrap does not object to the manner of service which the plaintiff employed. The only question is whether Illinois law permits service on Southern Scrap. See Rule 4(e). Blanco Oso argues that Illinois law authorizes service in two ways. It first contends that Illinois's "long-arm" statute, Ill.Rev.Stat. ch. 110, para. 2-209(a)(1) (1987), permits service "as to any cause of action arising from . . . the transaction of any business within this State." It argues second that under the common law of Illinois, service is permitted upon any entity which is doing business within Illinois.

 In determining whether para. 2-209(a)(1) authorizes service of process in a federal civil action, the court should ask whether (1) the defendant transacted any business in Illinois, (2) the cause of action arises from that transaction, and (3) the exercise of jurisdiction is consistent with prevailing constitutional standards of due process. See Jacobs/Kahan & Co. v. Marsh, 740 F.2d 587, 590 (7th Cir. 1984); J. Walker & Sons v. DeMert & Dougherty, Inc., 821 F.2d 399, 402 (7th Cir. 1987). *fn2" While there is evidence that Southern Scrap or its agents transacted business in Illinois at some time prior to the parties' discussions in the summer of 1989, there is no evidence that Southern Scrap was transacting business with anyone in Illinois other than Blanco Oso in the summer of 1989. Since it is undisputed that Blanco Oso's present cause of action arose from whatever business the parties conducted in the summer of 1989, the key question is whether Southern Scrap's activities at that time amounted to the transaction of business in Illinois.

 
The determination of whether defendant sufficiently transacted business in Illinois so as to avail himself of the benefits of Illinois law requires consideration of several factors: who initiated the transaction; where the contract was entered into; and where the performance of the contract was to take place. While none of these factors has been held to be controlling, each of them has been held to be significant.

 Gordon v. Tow, 148 Ill. App. 3d 275, 280-81, 498 N.E.2d 718, 722, 101 Ill. Dec. 394 (1986) (citations omitted). See also Leonardo's Inc. v. Greathall, Ltd., 714 F. Supp. 949, 952-53 (N.D.Ill. 1989). In this case, it is undisputed that Blanco Oso initiated this transaction (and not from Illinois -- Young was in the Virgin Islands). While the parties conducted their negotiations outside of Illinois, the final act which created a contract between the parties occurred in Illinois. See Gordon, 148 Ill.App.3d at 282, quoting Youngstown Sheet & Tube Co. v. Industrial Com., 79 Ill. 2d 425, 433, 404 N.E.2d 253, 257, 38 Ill. Dec. 829 (1980) ("'the place where the last act necessary to give validity to the contract is done is the place where the contract is made.'"). Most of the performance of the contract was to take place outside of Illinois, since Blanco Oso promised to ship scrap from the Virgin Islands to Louisiana, but part of Southern Scrap's end of the bargain was to pay a $ 15,000 advance to Blanco Oso, presumably to Blanco Oso's office in Illinois.

 As this court noted in Leonardo's, Illinois cases provide "little guidance" in balancing the factors listed in Gordon. Leonardo's, 714 F. Supp.at 953. It strikes the court that the factors in this case tilt against jurisdiction over Southern Scrap. The business acts which occurred in this case had almost no connection with Illinois. But for a faulty transmission, the parties would have executed their contract outside Illinois. As for Southern Scrap's obligation to send an advance payment to Illinois, that alone would not amount to the transaction of business, see Telco Leasing, Inc. v. Marshall Cty. Hospital, 586 F.2d 49, 52 (7th Cir. 1978) (per curiam); Northern Trust Co. v. Randolph C. Dillon, Inc., 558 F. Supp. ...


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