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WYSNOSKI v. MILLET

March 11, 1991

DENNIS WYSNOSKI, Plaintiff,
v.
BARRON P. MILLET; TOM JONES; d/b/a TOM JONES AIRCRAFT SALES; and SCOTT BOGGS and RODNEY BOGGS, d/b/a THE BOGGS COMPANY, Defendants


James H. Alesia, United States District Judge.


The opinion of the court was delivered by: ALESIA

JAMES H. ALESIA, UNITED STATES DISTRICT JUDGE

 Before the Court is the motion of defendants', Barron P. Millet ("Millet"), Tom Jones, d/b/a Tom Jones Aircraft Sales ("Jones"), Hassel V. "Scotty" Boggs ("S. Boggs") and Rodney Boggs ("R. Boggs"), d/b/a the Boggs Company, to dismiss the complaint of the plaintiff, Dennis Wysnoski ("Wysnoski"), pursuant to Federal Rule of Civil Procedure 12(b)(2), or to transfer the case to the Northern District of Texas pursuant to 28 U.S.C. section 1404(a), or to dismiss the action pursuant to Federal Rule of Civil Procedure 9(b).

 I. FACTS

 Wysnoski is an Illinois resident. On or about June 13, 1990, Wysnoski read an advertisement regarding the sale of a certain used aircraft in a nationally circulated publication. The advertisement was placed in the publication by Jones, a resident of Georgia. Wysnoski contacted Jones regarding the aircraft. Jones responded by letter and facsimile and directed Wysnoski to contact his partner, Millet, a resident of Texas. Wysnoski contacted Millet and they spoke by telephone several times about the plane. Millet referred Wysnoski to R. Boggs and S. Boggs, Texas residents, for additional information concerning the condition of the aircraft's engine. All contacts took place between approximately June 13, 1990, and June 19, 1990. Wysnoski initiated the contacts after seeing the advertisement and the defendants further contend, and Wysnoski does not contradict, that any telephone calls, mailings, facsimiles or other communication sent by any of the defendants were only in response to Wysnoski's inquiries.

 Wysnoski's claim arises from the defendants' alleged fraudulent misrepresentations during the course of the parties' communications. The complaint charges each of the defendants with fraudulently representing that the aircraft Wysnoski purchased from them had no time in flight since its engine received a major overhaul. Wysnoski was in Illinois during the communications and when he arranged to take delivery, secured financing, and agreed to sell his existing aircraft to third parties. Wysnoski agreed to purchase the aircraft from the defendants while Wysnoski was in Illinois, although delivery of the plane took place in Missouri. *fn1"

 On June 29, 1990, Wysnoski took delivery and tendered payment for the aircraft. He alleges that he subsequently discovered that the plane was not in the condition represented and that it was of virtually no value until he expended money for repairs and restoration. Wysnoski seeks both compensatory and punitive damages for fraud and violation of the Illinois Consumer Fraud and Deceptive Business Practices Act. Ill. Rev. Stat. ch. 121 1/2, para. 262 (1973).

 II. DISCUSSION

 A. JURISDICTION

 The defendants' motion to dismiss asserts that the Court does not have personal jurisdiction. Because this is a diversity action, this Court has jurisdiction only if Illinois state courts would have jurisdiction under the Illinois long-arm statute and jurisdiction is consistent with constitutional due process. Fed. R. Civ. P. 4(e); Deluxe Ice Cream Co. v. R.C.H. Tool Corp., 726 F.2d 1209, 1212 (7th Cir. 1984). The Illinois long-arm statute and constitutional due process are not coterminous and therefore, must be considered separately. Deluxe Ice Cream, 726 F.2d at 1214; Green v. Advance Ross Electronics Corp., 86 Ill. 2d 431, 427 N.E.2d 1203, 56 Ill. Dec. 657 (1981). Where there are multiple defendants, personal jurisdiction as to each must be considered separately, although their ties may aid the analysis. Rush v. Savchuk, 444 U.S. 320, 332, 62 L. Ed. 2d 516, 100 S. Ct. 571 (1980); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297-99, 62 L. Ed. 2d 490, 100 S. Ct. 559 (1980). Furthermore, although the court must resolve all factual disputes in favor of the plaintiff, when considering a motion to dismiss, the burden of proving jurisdiction rests with the party asserting it. Saylor v. Dyniewski, 836 F.2d 341, 342 (7th Cir. 1988).

 1. Illinois Long-Arm Statute

 Wysnoski alleges jurisdiction pursuant to the Illinois long-arm statute, which provides in relevant part:

 
(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 . . . to the jurisdiction of the courts of this State as to any cause of action arising from the doing of such acts:
 
. . . .
 
(2) The commission of a tortious act within this State; . . .
 
(c) Only causes of action arising from acts enumerated herein may be asserted against a defendant in an action in which jurisdiction over him ...

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