of 5.30 of the Illinois Business Corporation Act, which provides:
Service of process on foreign corporation not authorized to transact business in Illinois. If any foreign corporation transacts business in this State without having obtained a certificate of authority to transact business, it shall be deemed that such corporation has designated and appointed the Secretary of State as an agent of process upon whom any notice, process or demand may be served. Service on the Secretary of State shall be made in the manner set forth in subsection (c) of Section 5.25 of this Act.
Ill. Rev. Stat. ch. 32, para. 5.30 (Supp. 1991). It is undisputed that ESP has complied with the technical service procedures set forth in 5.25 of the Illinois Business Corporation Act. Thus, the issue this court faces is whether ESP's contacts with Illinois amount to "transacting business" within the meaning of 5.30.
At the outset, we note that the test for "transaction of business" under 5.30 is the same test as employed under the Illinois long-arm statute. American Roofing Corp. v. Griffin Sales Co., No. 88-2252, slip op. at 3 (N.D. Ill. July 13, 1988) (1988 U.S. Dist. LEXIS 7624); Business/Institutional Furniture, Inc., No. 86-7133, slip op. at 3 (N.D. Ill. Feb. 7, 1987) (1987 U.S. Dist. LEXIS 969). While there is no clear definition of what that term means, "it is clear that 'transaction of business' can be a single act, as long as the cause of action arises from that act." Business/Institutional, slip op. at 3 (citing Braband v. Beech Aircraft Corp., 51 Ill. App. 3d 296, 367 N.E.2d 118, 120, 9 Ill. Dec. 684 (1st Dist. 1977), aff'd, 72 Ill. 2d 548, 382 N.E.2d 252, 21 Ill. Dec. 888 (1978), cert. denied, 442 U.S. 928, 99 S. Ct. 2857, 61 L. Ed. 2d 296 (1979)).
As mentioned in our discussion regarding "minimum contacts," see supra Section Ill of this opinion, EEC initiated, negotiated and executed the contract in question in Illinois.
It is settled law that, "if a foreign defendant comes to Illinois and engages in negotiations of some substance regarding the transaction from which the cause of action arises, defendant is subject to suit under the Illinois long-arm statute." Id. (citing Deluxe Ice Cream Co. v. R.C.H. Tool Corp., 726 F.2d 1209 (7th Cir. 1984); Ronco, Inc. v. Plastics, Inc., 539 F. Supp. 391 (N.D. III. 1982); First Nat'l Bank of Chicago v. Boelcskevy, 126 Ill. App. 3d 271, 466 N.E.2d 1182, 1185, 81 Ill. Dec. 380 (1st Dist. 1984)). That EEC physically came to Illinois, initiated, negotiated, and executed the contract at the center of this dispute is overwhelming evidence that EEC "transacted business" in Illinois as that term is defined in 5.30 of the Illinois Business Corporation Act. See id. ("We have no difficulty concluding, on the facts plaintiff presents, that [defendant] transacted business in Illinois. [Defendant] was physically present in Illinois when it negotiated and executed a contract with an Illinois Corporation. These activities constitute the transaction of business in Illinois."). Since EEC was not registered to transact business within the State of Illinois, service was properly made upon the Illinois Secretary of State. Accordingly, EEC's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(5) for inadequate service of process is denied.
V. ESP's Motion to Assess Costs
Finally, we turn to ESP's motion to assess costs for service of process on defendant EEC. The crux of ESP's motion is that EEC received two summons and acknowledgments under Rule 4(c)(2)(C)(ii)--one directly and the other through its agent EII--and refused to return the acknowledgments as provided in that rule. As such, ESP claims it is entitled to the costs of personal service under Rule 4(c)(2)(D). However, as discussed supra subsection IV(1) of this opinion, any attempt to effect service on either EEC or EII by mail is insufficient. It is axiomatic that costs may not be assessed under Rule 4(c)(2)(D) unless the defendant receives a copy of the summons and complaint pursuant to a proper method of service of process. Accordingly, ESP's motion is denied.
For the reasons as set forth above, we deny both EEC's motion to dismiss and ESP's motion to assess costs of personal service. It is so ordered.
MARVIN E. ASPEN
United States District Judge