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November 14, 1991



The opinion of the court was delivered by: MARVIN E. ASPEN

MARVIN E. ASPEN, District Judge:

 I. Motion to Dismiss Standard

 A motion to dismiss should not be granted unless it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957); see also Beam v. IPCO Corp., 838 F.2d 242, 244 (7th Cir. 1988); Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert. denied, 475 U.S. 1047, 106 S. Ct. 1265, 89 L. Ed. 2d 574 (1986). We take the "well-pleaded allegations of the complaint as true and view them, as well as reasonable inferences therefrom, in the light most favorable to the plaintiff." Balabanos v. North Am. Inv. Group, Ltd., 708 F. Supp. 1488, 1491 n.1 (N.D. Ill. 1988) (citing Ellsworth).

 II. Background

 Plaintiff Ronald Hrubec is currently employed by Amtrack as a police officer. Nijole Hrubec, Ronald's wife, was employed by Amtrack from 1977 to 1986. At all times relevant to this case, defendants Zarbo and Frazier were employed by Amtrack as a police officer and the Deputy Chief of Police respectively. Higdon was employed by Amtrack as a claims adjuster.

 On or about August 10, 1989, plaintiffs learned that someone had forged Ronald Hrubec's signature on Internal Revenue Service form 4506, requesting Ronald and Nijole Hrubec's 1988 and 1989 federal income tax returns. The Hrubecs contend that Zarbo, Frazier, Higdon and John Doe, whose true identity is unknown to plaintiffs, obtained the federal tax returns of Ronald and Nijole Hrubec without their consent. Plaintiffs seek compensatory and punitive damages from the above-named Amtrack employees, arguing that their conduct constitutes a violation of 26 U.S.C. § 7431(a)(2) (Count I). Amtrack's liability is premised on the doctrine of respondeat superior.

 In addition, the Hrubecs claim that defendants Higdon, Zarbo, Frazier and John Doe procured "through deceptive and surreptitious means" the adoption records relating to the Hrubecs' two minor children, Ronald C. Hrubec and Stephen N. Hrubec, and their natural mother, Kim M. Golden. These records were impounded under seal by order of an Illinois court pursuant to Ill. Rev. Stat. ch. 40, §§ 1501 et seq. Likewise, the defendants allegedly obtained hospital medical records concerning the two children and their natural mother without proper consent. Plaintiffs assert that the above-mentioned conduct constitutes an unreasonable intrusion into their private affairs, and thus an invasion of privacy (Count II).

 III. Personal Jurisdiction

 Zarbo and Frazier move for dismissal pursuant to Fed. R. Civ. P. 12(b)(2) for lack of jurisdiction over the person. The party asserting the existence of jurisdiction--in the instant case, the plaintiffs--bears the burden of proof. Publications Int'l, Ltd. v. Simon & Schuster, Inc., 763 F. Supp. 309, 310, 18 U.S.P.Q.2d (BNA) 1892 (N.D. Ill. 1991); Boden Products, Inc. v. Novachem, Inc., 663 F. Supp. 226, 229 (N.D. Ill. 1987). As the relevant statute in this case, 26 U.S.C. § 7431(a)(2), does not prescribe a manner of service, this court has jurisdiction over Zarbo and Frazier (non-resident parties) only if an Illinois state court could have such jurisdiction. Publications Int'l, 763 F. Supp. at 310; E.J. McGowan & Assoc., Inc. v. Biotechnologies, Inc., 736 F. Supp. 808, 809, 15 U.S.P.Q.2d (BNA) 1145 (N.D. Ill. 1990).

 Personal jurisdiction in this case is governed by the Illinois long-arm statute. Ill. Rev. Stat. ch. 110, para. 2-209 (Supp. 1991). The Illinois long-arm statute is measured by federal constitutional standards. Sidley & Austin v. Hill, 763 F. Supp. 366, 368 n.3 (N.D. Ill. 1991); Publications Int'l, 763 F. Supp. at 311. More specifically, the statute's parameters are contiguous to the due process "minimum contacts" standard. FMC Corp. v. Varonos, 892 F.2d 1308, 1310 n.5 (7th Cir. 1990); Publications Int'l, 763 F. Supp. at 311. Thus, the persons over whom personal jurisdiction is sought--Zarbo and Frazier--must "have certain minimum contacts" with Illinois "such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S. Ct. 339, 343, 85 L. Ed. 278 (1940)); see also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S. Ct. 2174, 2183, 85 L. Ed. 2d 528 (1985) (The "constitutional touchstone" is "whether the defendant purposefully established 'minimum contacts' in the forum State."); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S. Ct. 559, 564, 62 L. Ed. 2d 490 (1980).

 It is "foreseeability," and not physical presence, that is critical; the due process analysis entails a determination of whether Zarbo and Frazier's "conduct and connection with the forum State are such that [they] should reasonably anticipate being hauled into court there." World-Wide Volkswagen, 444 U.S. at 297, 100 S. Ct. at 567; see also Heritage House Restaurants, Inc. v. Continental Funding Group, Inc., 906 F.2d 276, 283 (7th Cir. 1990). Contacts with Illinois that are "random" or merely "fortuitous" will not be sufficient to "establish that exercise of [Illinois'] jurisdiction was foreseeable." Heritage House Restaurants, 906 F.2d at 283 (citation omitted). In other words, the minimum contacts requirement is satisfied if there is "'some act by which [Zarbo and Frazier] purposefully availed [themselves] of the privilege of conducting activities within [Illinois].'" FMC Corp., 892 F.2d at 1313 (quoting Jacobs/Kahan & Co. v. Marsh, 740 F.2d 587, 592 (7th Cir. 1984)).

 Resolving all factual disputes in favor of Hrubec, we conclude that both Zarbo and Frazier did purposefully avail themselves of an employment relationship whereby they were called upon to conduct business activities in Illinois. Hrubec contends that he observed both Zarbo and Frazier performing their duties during business hours at the Amtrack police offices at Union Station in Chicago, Illinois on at least three occasions each. Affidavit of Ronald Hrubec para. 8, at 3. During Hrubec's latest encounter in Chicago, he saw Frazier driving an Amtrack vehicle. Id. On two of the three occasions that Zarbo was working in Chicago, she interviewed Hrubec in connection with investigations that she had personally conducted in Chicago. Id. The obvious conclusion to be drawn from Hrubec's allegations is that both Zarbo and Frazier were present, and have undertaken employment related activities, in Illinois. These ...

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