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KING v. PERRY & SYLVA MACH. CO.

June 7, 1991

GEORGE KING, JR., Plaintiff,
v.
PERRY AND SYLVA MACHINERY COMPANY, TOYOTA TSUSHO AMERICA, INC., MEIKO AMERICA, INC., TOYOTA TSUSHO AMERICA, INC., c/o MEIKO AMERICA INC., TAKAHASHI MACHINERY COMPANY, LTD. AND FANUC, LTD., Defendants


Brian Barnett Duff, United States District Judge.


The opinion of the court was delivered by: DUFF

BRIAN BARNETT DUFF, UNITED STATES DISTRICT JUDGE.

 George King, Jr., was injured while working with a machine he claims was manufactured, at least in part, by each of the defendants. He contends that the machine was defective, and that its defects caused his injuries. He is suing the defendants to recover for those injuries. Although Mr. King filed suit in Cook County Circuit Court, one of the defendants, Fanuc Ltd., removed it to this court. Fanuc, Ltd. has also moved to quash service of process and objects to this court's assertion of in personam jurisdiction. Another defendant, Takahashi Machinery Co., has moved to transfer the case to the Central District of Illinois. For the reasons discussed below, the court denies Fanuc, Ltd.'s motion to quash service and grants Takahashi Machinery's motion to transfer the case.

 Motion to Quash Service

 Mr. King attempted to serve the defendant Fanuc, Ltd. by serving a company known as Fanuc, USA. Although the complaint is not specific, (nor, of course, need it be in order to comply with Fed.R. Civ.P. 8) Fanuc Ltd. states in its initial memorandum that certain of the component parts of the machine which allegedly caused Mr. King's injury bear its trade name. Fanuc, USA is a subsidiary of Fanuc, Ltd., and is licensed to provide maintenance service for Fanuc Ltd. products in the United States. Fanuc Ltd. claims that it is not sufficiently related to Fanuc, USA for this court to deem Fanuc USA its agent. Thus, Fanuc Ltd. argues that Mr. King should have served it pursuant to the Hague Convention, 20 U.S.T. 361, T.I.A.S. No. 663A, reprinted in 28 U.S.C., Fed.R. Civ.P. 4, app. at 142-149 991 Supp.).

 The Supreme Court has held that the Hague Convention does not apply when process is served on a foreign corporation through its domestic subsidiary if state law deems that subsidiary the foreign corporation's involuntary agent for service. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 100 L. Ed. 2d 722, 108 S. Ct. 2104 (1988). The question, therefore, is whether Fanuc, USA is, according to Illinois law, Fanuc, Ltd.'s involuntary agent.

 Certainly, "where the facts indicate that one corporation so controls the affairs of another corporation that the two entities are essentially one, the court will disregard the corporate entities and hold service of process on one corporation effective as to the others." Schlunk v. Volkswagenwerk Aktiengesellschaft, 145 Ill. App. 3d 594, 608, 105 Ill. Dec. 39, 495 N.E.2d 1114 (1st Dist. 1986) citing Rymal v. Ulbeco, Inc., 33 Ill. App. 3d 799, 803, 338 N.E.2d 209 (1975), aff'd., Volkswagenwerk v. Schlunk, 486 U.S. 694, 100 L. Ed. 2d 722, 108 S. Ct. 2104 (supra). Such a symbiotic relationship, however, is not necessary in order to find that the subsidiary is the parent's involuntary agent. Rather, Illinois courts examine the relationship as a whole, with no single factor being dispositive. Id. At least one court has enumerated some of the factors relevant to the determination:

 
(1) control exercised by parent over subsidiary;
 
(2) obligations of subsidiary to service parent's products;
 
(3) inclusion of subsidiary's name and address on parent's advertising;
 
(4) joint sponsorship of promotional activities;
 
(5) interlocking directorships;
 
(6) sites of meeting of subsidiary's board of directors; and
 
(7) whether subsidiary is authorized to prosecute trademark infringement ...

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