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June 14, 1990

KEVIN ROSS, Plaintiff,

The opinion of the court was delivered by: NORDBERG


 One day in July 1987, Kevin Ross, a former college basketball player, barricaded himself in a high-rise hotel room in downtown Chicago and threw assorted pieces of furniture out the window. As Ross currently recalls it, the defenestrated furniture "symbolized" the employees of Creighton University, whose alleged misdeeds he blames for the onset of this "major depressive episode." Ross now sues the university in contract and tort. The gist of Ross's Amended Complaint is that Creighton caused this episode and otherwise injured him by recruiting him to attend the school on a basketball scholarship while knowing that Ross, who scored 9 points out of a possible 36 on the American College Test, was pitifully unprepared to attend Creighton, which is a private school whose average student in the year Ross matriculated, 1978, scored 23.2 points on the ACT.

 Although Creighton is located in Omaha, Nebraska, where it is certainly amenable to suit, Ross wants to sue the school in Chicago, where he currently resides. Creighton removed this case from the Circuit Court of Cook County on the basis of diversity, and then moved to dismiss under Fed. R. Civ. P. 12(b)(2) for lack of personal jurisdiction, or, in the alternative, under Rule 12(b)(6) for failure to state a claim on which relief can be granted. For the reasons stated below, the motion to dismiss on jurisdictional grounds is denied, but the motion to dismiss for failure to state a claim is granted.

 Because Ross's original complaint did not clearly delineate his theories of relief, the Court directed him to file an amended complaint setting forth his claims in separate counts, as required by Fed. R. Civ. P. 10(b). The Court also permitted supplemental briefing of Creighton's motion to dismiss, which had been filed in response to the original complaint. As amended, the complaint alleges the following story.


 Ross, who is 6 feet and 9 inches tall, was a high school basketball star in Kansas City, Kansas, when Creighton recruited him. Creighton knew that Ross could not handle college-level studies, but kept him eligible for the basketball team by recommending that he enroll in "bonehead" (Ross's description) courses, such as ceramics, marksmanship, and the respective theories of basketball, track and field, and football. Under its rules, the university would not have accepted the pursuit of this esoteric curriculum by a non-athlete. After four years, when his basketball eligibility expired, Ross had earned only 96 of the 128 credits required to graduate, maintaining a "D" average. His reading skills were those of a seventh-grader; his overall language skills, those of a fourth-grader.

 In order to get Ross remedial education, representatives of Creighton made arrangements for Ross to attend Chicago's Westside Preparatory School, an elementary and high school whose founder, Marva Collins, has drawn national attention for her abilities as an educator. As its name suggests, Westside Prep is a school for children, not for adults. Ross says that Creighton representatives made four trips to Chicago to discuss Ross's enrollment. The agreement to enroll Ross is spelled out in a letter dated July 29, 1982, from Collins to Creighton's athletic director. The letter, countersigned by a Creighton official and returned to Collins, obligated Creighton to pay for Ross's tuition, special tutoring, books and living expenses. Ross attended Westside in 1982 and 1983. He later attended Roosevelt University, also located in Chicago, but dropped out after 1985 for want of money. Ross's furniture-throwing outburst took place on July 23, 1987. He was arrested and ordered to make restitution in the amount of $ 7,500.

 The second and third counts are for breach of contract. The second count alleges that Creighton breached a written contract, which is described as consisting of the documents relating to Ross's enrollment at Creighton, as well as the documents relating to his enrollment at Westside Prep. The substance of Ross's theory is that Creighton had a contractual obligation to provide him sufficient educational and financial support so that he "would have a reasonable opportunity to obtain a meaningful education." Plaintiff's Supplemental Memorandum, at 8. The third count is in the alternative, and is in essence identical to the second, except it alleges that the agreement for Ross to attend Creighton constituted an oral, rather than a written, contract.

 Personal Jurisdiction

 Because subject matter jurisdiction rests on diversity, this Court has personal jurisdiction of Creighton only if an Illinois state court would. FMC Corp. v. Varonos, 892 F.2d 1308, 1310 (7th Cir. 1990). "Under Illinois law, the party seeking to establish personal jurisdiction must make out a prima facie case. . . . In deciding a motion to dismiss, the court must accept all undenied factual allegations and resolve all factual disputes in favor of the party seeking to establish jurisdiction." Saylor v. Dyniewski, 836 F.2d 341, 342 (7th Cir. 1988). Illinois recognizes two types of personal jurisdiction. The broadest is the common law "doing business" doctrine, which gives an Illinois court general jurisdiction over any cause of action against a person whose contacts with the state are so substantial that he can be deemed to be doing business here. Asset Allocation & Management Co. v. Western Employers Ins. Co., 892 F.2d 566, 570 (7th Cir. 1989). A more narrow form of personal jurisdiction is predicated on the state long-arm statute, Ill.Rev. Stat. ch. 110, para. 2-209, which gives an Illinois court specific jurisdiction of any cause of action arising from the commission of one of the acts listed in the statute. Asset Allocation & Management, 892 F.2d at 569-70. Any assertion of personal jurisdiction is limited by the due process clause of the fourteenth amendment. See generally Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-78 & 473 n. 15, 85 L. Ed. 2d 528, 105 S. Ct. 2174 (1984). *fn1"

 The Court cannot agree with Ross that Creighton does business in Illinois. In large part, Ross bases his claim that Creighton does business here on the fact (assumed on this motion to dismiss) that Creighton employs a full-time recruiter in Illinois to encourage residents to attend Creighton and supports its recruitment with direct-mail to prospective students. These efforts apparently have paid off for the university; approximately 290 to 370 Illinois residents -- approximately 5% to 7% of Creighton's students -- attend the school during any particular school year. Moreover, Creighton recruits basketball players in Illinois, and between 1978 and 1989, awarded nine basketball scholarships to Illinois residents, as well as "a significant number [of scholarships] in other sports." Amended Complaint para. 4.

 But as the Illinois courts have repeatedly reaffirmed, "[the] rule has consistently been held as requiring activities greater than solicitation by employees who have only authority to solicit business in this State." Cook Associates, Inc. v. Lexington United Corp., 87 Ill. 2d 190, 429 N.E.2d 847, 852, 57 Ill. Dec. 730 (1981). The activities described above fall squarely within this principle, for mere solicitation of students to purchase Creighton's educational services is not materially different than mere solicitation of customers to buy products from an out-of-state business. Cf. Radosta v. Devil's Head Ski Lodge, 172 Ill. App. 3d 289, 526 N.E.2d 561, 122 Ill. Dec. 302 (1st Dist. 1988) (Wisconsin ski lodge did not do business in Illinois by soliciting Illinois residents to ski in Wisconsin).

 Ross attempts to plead more than mere solicitation by pointing to Creighton's membership in an athletic conference with three member schools from Illinois (Bradley University, Illinois State University and Southern Illinois University) and Creighton's participation in athletic competitions in Illinois. For example, between 1978 and 1989, Creighton's basketball team played 38 games in Illinois, and its other athletics teams have participated in "a significant number of athletic contests" here as well. Amended Complaint ...

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