Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.



July 30, 1992


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


 MARVIN E. ASPEN, District Judge:

 Defendants Yo-Whip, Inc., f/k/a Helpful Products, Inc. ("Yo-Whip") and Marshall Swerman, Yo-Whip's president, have moved to dismiss the complaint brought by Jeffrey B. Schwartz or, alternatively, to transfer the suit to the Central District of California. As detailed herein, however, we find that this court has personal jurisdiction over the defendants, and that transferring the case would merely shift the relative inconvenience in this matter to Schwartz. Accordingly, the motion to dismiss or to transfer is denied.

 We derive the following facts, unless otherwise noted, from the affidavit submitted by Schwartz. Defendants' failure to file a similar affidavit (or indeed a reply of any kind) *fn1" is for the most part irrelevant, since, in the context of a personal jurisdiction inquiry, the plaintiff's affidavit is used to resolve all conflicts. Sidley & Austin v. Hill, 763 F. Supp. 366, 367 (N.D. Ill. 1991) (citing cases).

 Swerman and co-defendant Kathleen Dalziel Miller formed Helpful Products, Inc. (later Yo-Whip) in 1986. Yo-Whip was at all times pertinent to this motion a citizen of California. Motion Exh. A, P5. The company developed, manufactured, marketed and sold whipped yogurt products. In 1986, 1987, and 1988, Swerman and Miller sought and received three different loans from Swerman, an Illinois citizen. Promissory notes for all three loans were sent to Swerman in Illinois. In July 1988, Schwartz introduced Swerman and Miller to investors and investment bankers in the Chicago area; the two were in Illinois to discuss with Schwartz loan repayment details. Swerman apparently returned to Chicago later that month to again meet with prospective investors. From mid-1986 through 1989, Swerman and Miller called Schwartz in Illinois regarding the loans in question, and occasionally "mailed, messengered, faxed, courriered or shipped to Schwartz at his home or place of employment Yo-Whip product samples and written information regarding Yo-Whip." Response at 5 (citing Schwartz affidavit).

 The permutations of personal jurisdiction have been discussed by this court in at least two recent opinions. See Sidley & Austin, 763 F. Supp. 366; see also Publications Int'l, Ltd. v. Simon & Schuster, Inc., 763 F. Supp. 309 (N.D. Ill. 1991). An Illinois federal district court has personal jurisdiction over parties in a diversity action only if an Illinois state court would have such jurisdiction. Heritage House Restaurants, Inc. v. Continental Funding Group, Inc., 906 F.2d 276, 279 (7th Cir. 1990); Turnock v. Cope, 816 F.2d 332, 334 (7th Cir. 1987). Nonresident defendants like Yo-Whip and Swerman may be sued in Illinois if "the minimum contacts with Illinois that due process requires are present." FMC Corp. v. Varonos, 892 F.2d 1308, 1310 (7th Cir. 1990); see also Morgan v. GTECH Corp., No. 90 C 238, slip op. at 10 (N.D. Ill. Dec. 18, 1990) (1990 U.S. Dist. LEXIS 17,252). *fn2"

 Thus, we have personal jurisdiction over Yo-Whip and Swerman if they have "certain minimum contacts" with Illinois "such that the maintenance" of Schwartz' 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 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S. Ct. 559, 564, 62 L. Ed. 2d 490 (1980). It is "forseeability," and not physical presence, that is critical; the due process analysis entails a determination of whether Yo-Whip and Swerman's "conduct and connection with the forum State are such that [they] should reasonably anticipate being haled into court there." World-Wide Volkswagen, 444 U.S. at 297, 100 S. Ct. at 567; see also Heritage House Restaurants, 906 F.2d at 283. Contacts with Illinois that are "random" or merely "fortuitous" will not be sufficient to "establish that exercise of [Illinois'] jurisdiction was forseeable" to defendants. 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 the defendants purposefully avail[ themselves] of the privilege of conducting activities within the forum State.'" FMC Corp., 892 F.2d at 1313 (quoting Jacobs/Kahan & Co. v. Marsh, 740 F.2d 587, 592 (7th Cir. 1984)). Clearly, Yo-Whip and Swerman are subject to the jurisdiction of an Illinois court (and thus a federal court sitting in Illinois) because of the loans from Schwartz, other contacts made through Schwartz in the Chicago area, and the numerous communications between the parties through the mail and over the telephone lines. See Heritage House Restaurants, 906 F.2d at 281; Lyons Sav. & Loan Ass'n v. Geode, Inc., 626 F. Supp. 1141, 1142-44 (N.D. Ill. 1986). Further, defendants initiated the contact in question, and those acts made it reasonably forseeable that they could be subject to the jurisdiction of an Illinois court. Sidley & Austin, 763 F. Supp. at 368.

 Finally, transferring this case to the Central District of California would only "shift the inconvenience to the plaintiff." Geode, 626 F. Supp. at 1144. Transferring venue under 28 U.S.C. ยง 1404(a) (1988) is proper "for the convenience of parties and witnesses, [and] in the interest of justice . . . ." As Schwartz points out, the various loans and other contacts and communications took place while Schwartz was in Illinois. Schwartz and defendants are the only witnesses, and banking records are present in Illinois as well as in California. We decline to transfer the case.

 Yo-Whip and Swerman's motion to dismiss for lack of personal jurisdiction, or, alternatively, to transfer this suit to the Central District of California, is denied. It is so ordered.


 United States District Judge

 Dated 7/30/92

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.