The opinion of the court was delivered by: BUA
NICHOLAS J. BUA, UNITED STATES DISTRICT JUDGE
This order concerns defendant, The Kershaw Manufacturing Company, Inc.'s, motion to dismiss for improper venue under 28 U.S.C. § 1391(a)(3), or in the alternative, to transfer to the United States District Court for the Southern District of Indiana pursuant to 28 U.S.C. § 1406(a). For the reasons stated herein, defendant's motion to dismiss is denied. The court defers judgment on defendant's motion to transfer until it has been fully briefed.
Defendant, The Kershaw Manufacturing Company, Inc. ("Kershaw"), is a corporation organized under the laws of Alabama, with its principal place of business in Alabama. Kershaw manufacturers and produces maintenance-of-way equipment for sale to railroads. Defendant, Soo Line Railroad Company ("Soo"), is a corporation organized under the laws of Minnesota, with its principal place of business in Minnesota.
Douglas Milligan was an Illinois resident employed by Soo. According to plaintiff's complaint, on August 3, 1990, near Crane, Indiana, Milligan was operating a tie injector machine manufactured by Kershaw. While apparently attempting to inspect or repair the tie injector, Milligan was struck in the head by moving parts of the machine. Milligan died later that day due to head injuries caused by the incident. Milligan's mother, Margaret Milligan, as Administrator of his estate, brings this action seeking to recover under multiple theories.
Defendant claims that venue is not proper in this case because Kershaw does not reside in this district, the actions giving rise to the claim did not occur in this district, and Kershaw is not subject to personal jurisdiction. Plaintiff concedes that the first two factors do not apply, but argues that Kershaw is subject to personal jurisdiction.
A federal district court sitting in Illinois has personal jurisdiction over a party in a diversity action only if an Illinois court would have jurisdiction. FMC Corp. v. Varonos, 892 F.2d 1308, 1310 (7th Cir. 1990). In such an action, the plaintiff bears the burden of providing sufficient evidence to establish personal jurisdiction. Turnock v. Cope, 816 F.2d 332, 334 (7th Cir. 1987). When deciding a motion to dismiss, the court must accept all undenied factual allegations and resolve all factual disputes in the plaintiff's favor. Say l or v. Dyniewski, 836 F.2d 341, 342 (7th Cir. 1988).
In Illinois, jurisdiction may be conferred under the Illinois long arm statute, Ill. Rev. Stat. ch. 110, para. 2-209 (1991), or under the common law doctrine of "doing business." Asset Allocation & Management Co. v. Western Employers Ins. Co., 892 F.2d 566, 570 (7th Cir. 1989); See Cook Assocs., Inc. v. Lexington United Corp., 87 Ill. 2d 190, 429 N.E.2d 847, 850-51, 57 Ill. Dec. 730 (Ill. 1981). Either basis is limited by the due process clause of the United States Constitution which requires a defendant to have minimum contacts with the forum state. International Shoe Co. v. Washington, 326 U.S. 310, 316, 90 L. Ed. 95, 66 S. Ct. 154 (1945); Cook Assocs., Inc., 429 N.E.2d at 850. Plaintiff does not assert jurisdiction under the long arm statute, rather she claims that Kershaw is subject to this court's jurisdiction pursuant to the doing business doctrine.
According to the doing business doctrine, once an unlicensed foreign corporation is found to be doing business in Illinois, the corporation is amenable to suits in the state, even though they may not arise from the corporation's business in the Illinois forum. Asset Allocation & Management Co., 892 F.2d at 570. The rationale is that a nonresident corporation which conducts business in Illinois purposely avails itself of the jurisdiction and laws of Illinois, and therefore, is considered to have consented to be sued in Illinois courts. Cook Assocs., Inc., 429 N.E.2d at 851. There is no all-inclusive test for determining whether a nonresident corporation is doing business in Illinois. Id. at 852. Instead, the facts unique to each case are determinative. Maunder v. DeHavilland Aircraft of Canada, Ltd., 102 Ill. 2d 342, 466 N.E.2d 217, 221, 80 Ill. Dec. 765 (Ill. 1984). Nevertheless, it is well established that in order to impose jurisdiction the nonresident corporation's contacts must be "continuous, permanent, ongoing and systematic . . . not occasional or casual." Reeves v. Baltimore & O R.R., 171 Ill. App. 3d 1021, 526 N.E.2d 404, 407 (Ill. App. Ct. 1988); Asset Allocation, 892 F.2d at 570.
Kershaw argues that it is not doing business in Illinois of such a character and to such an extent as to warrant the inference that the corporation has availed itself of the jurisdiction and laws of Illinois. In support of its motion Kershaw states that: it is not incorporated or licensed to do business in Illinois; it does not maintain a registered agent in Illinois; it has only one employee in Illinois; it does not have an office building, mailing address, or telephone number in Illinois; and its percentage of nationwide sales derived from sales in Illinois is not great enough to confer jurisdiction on an Illinois court. (Defendants' Motion to Dismiss at 6-7).
In response, plaintiff claims that Kershaw has regularly and consistently solicited, sold, shipped, and serviced its products in Illinois. Plaintiff first points to Kershaw's sales figures for the years 1988-1990:
Year Total U.S. Sales Total Illinois Sales
1990 $ 28,719,791 $ 1,514,559 (5.27% of U.S. sales)
1989 $ 28,781,192 $ 889,811 (3.1% of U.S. sales)
1988 $ 28,136,727 $ 1,003,455 (3.6% of U.S. sales)
Second, plaintiff claims that Kershaw's marketing manager and sales representatives travel to Illinois to promote the Kershaw product line. Finally, plaintiff contends that Kershaw's service representatives and engineers come into Illinois to assist in the setup of equipment, to train operators of the equipment, and to trouble-shoot the equipment. (Plaintiff's Response to Motion to Dismiss at 2).
Although there may be no all-inclusive test for determining whether a nonresident corporation is doing business in Illinois, most Illinois courts that have addressed the issue have based their decisions on the presence of offices or sales activities in Illinois. Colletti v. Crudele, 169 Ill. App. 3d 1068, 523 N.E.2d 1222, 1229 (Ill. App. Ct. 1988); See Braband v. Beech Aircraft Corp., 72 Ill. 2d 548, 382 N.E.2d 252, 21 Ill. Dec. 888 (Ill. 1978) (defendant doing business in Illinois in part because it had supervisory control over its Illinois distributor and had directed its sales and marketing program at Illinois); St Louis-San Francisco Ry. v. Gitchoff, 68 Ill. 2d 38, 369 N.E.2d 52, 11 Ill. Dec. 598 (Ill. 1977) (defendant was ...