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RICE v. NOVA BIOMEDICAL CORP.

January 23, 1991

DALE S. RICE, Plaintiff,
v.
NOVA BIOMEDICAL CORPORATION and ROBERT CHRISTOPHER, Defendants



The opinion of the court was delivered by: ASPEN

 MARVIN E. ASPEN, UNITED STATES DISTRICT JUDGE

 Plaintiff, Dale S. Rice, has brought this three-count diversity action against Nova Biomedical Corporation ("NOVA") and Robert Christopher, an employee of NOVA, who is Rice's former supervisor. Rice alleges retaliatory discharge in Count I and defamation in Count II with both NOVA and Christopher as defendants. Count III seeks recovery only from Christopher on the theory that Christopher intentionally interfered with Rice's employment relationship with NOVA. Christopher has moved to dismiss under Fed.R.Civ.P. 12(b)(2), contending that the Court lacks personal jurisdiction over him on each count of the complaint. For the following reasons we deny Christopher's Rule 12(b)(2) motion.

 I. Facts

 Rice is a citizen of the State of Illinois. From January 1981 to August 1989, NOVA employed Rice in Illinois. NOVA is a corporation incorporated under the laws of the State of Massachusetts, having its principal place of business outside the State of Illinois. Christopher is not a citizen of the State of Illinois. Christopher is NOVA's employee and was Rice's supervisor.

 Rice first alleges that he was discharged in retaliation for his pursuit of rights granted by the Illinois Workers' Compensation Act, and that such a discharge was in violation of that Act and of Illinois public policy. Rice next alleges that the memorandum of termination to him contained statements that his employment was terminated for insubordination and poor judgment. Rice claims that he was defamed when the statements were communicated by Christopher to persons other than Rice and were made with actual malice and with knowledge that they were false, or with reckless disregard of whether they were false or not. Finally, Rice alleges that Christopher intentionally interfered with Rice's employment relationship for Christopher's own goals of retaliation against Rice and that Christopher's actions were contrary to the best interests of NOVA.

 II. Discussion

 A federal court sitting in Illinois has personal jurisdiction over a party in a diversity case only if an Illinois court would have such jurisdiction. Fed.R.Civ.P. 4(e); FMC Corp. v. Varonos, 892 F.2d 1308, 1310 (7th Cir. 1990). Rice bears the burden of proof in establishing jurisdiction over Christopher. Mott Corp. v. Montanya, 141 Ill. App. 3d 943, 945, 491 N.E.2d 98, 99, 96 Ill. Dec. 284 (1986). A person is subject to the jurisdiction of the Illinois courts if his conduct falls within one of the fourteen categories enumerated under Illinois long-arm statute and whether assertion of personal jurisdiction comported with the due process requirements of the United States Constitution FMC Corp. v. Varonos, 892 F.2d 1308, 1310 (7th Cir. 1990); L.B. Foster Co. v. Railroad Service, Inc., 734 F. Supp. 818, 820 (N.D. Ill. 1990); see also Cook Associates, Inc. v. Lexington United Corp., 87 Ill. 2d 190, 197, 429 N.E.2d 847, 850, 57 Ill. Dec. 730 (1981), and Green v. Advance Ross Electronics Corp., 86 Ill. 2d 431, 436, 427 N.E.2d 1203, 1206, 56 Ill. Dec. 657 (1981). *fn1" Rice asserts that this Court has personal jurisdiction over Christopher because Christopher has committed a tortious act in Illinois within the meaning of Section 2-209(a)(2) of the Illinois long-arm statute.

 Since each count of a complaint is ordinarily a separate statement of a claim and the sufficiency of each claim is to be determined by its content alone, HPI Health Care Services, Inc. v. Mt. Vernon Hosp. Inc., 131 Ill. 2d 145, 160, 545 N.E.2d 672, 678, 137 Ill. Dec. 19 (1989), we shall consider whether Rice's allegations in each count are sufficient to establish a basis for personal jurisdiction over Christopher as to that count.

 In Count I, Rice claims that his supervisor, Christopher, discharged him simply because he filed workers' compensation claims. No other reason for the discharge is alleged. Based on the allegations found in this count, Christopher argues that the "fiduciary shield" doctrine insulates him from personal jurisdiction in Illinois. See Washburn v. Becker, 186 Ill. App. 3d 629, 632, 542 N.E.2d 764, 766, 134 Ill. Dec. 418, cert. denied, 127 Ill. 2d 643, 136 Ill. Dec. 610, 545 N.E.2d 134 (1989); Torco Oil Co. v. Innovative Thermal Corp., 730 F. Supp. 126, 134 (N.D.Ill. 1989). Under the fiduciary shield doctrine, if an individual has contact with a State only by virtue of his acts as a fiduciary of a corporation, such acts may not form the basis for the exercise of personal jurisdiction over that individual. Torco, 730 F. Supp. at 134. Since the fiduciary shield doctrine cannot be invoked when an individual acts on his own behalf, for a plaintiff to avoid application of the doctrine, he need only allege in good faith that the performed acts advanced personal rather than employer interests. Id. at 135. In Posen v. Marks, for example, we rejected the fiduciary shield defense based on the reasoning that, from the plaintiffs' allegation that individual defendant acted " allegedly on behalf of [the] corporation," it could be inferred that the individual was purporting to act on behalf of a corporation, but in reality acted on his own behalf. Posen v. Marks, No. 85 C 51 (N.D.Ill. April 18, 1985).

 In this case, however, even construing the allegations in light most favorable to Rice, Rice's bare allegation that Christopher discharged him because he filed workers compensation claims does not establish even an inference that Christopher stood to personally benefit from Rice's termination. Therefore, as to Rice's retaliatory discharge count, the fiduciary shield doctrine would appear to foreclose ...


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