jurisdiction in this case turns on the application of the Illinois long-arm statute. Ill. Rev. Stat. ch. 110, P 2-209 (Supp. 1992).
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 entities over whom personal jurisdiction is sought--Bing and Kodiak--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 defendants' "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, 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 [Bing and Kodiak] 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 Haedike, the party asserting the existence of jurisdiction, we conclude that Bing's conduct in relation to the State of Illinois satisfies the minimum contacts requirement, rendering this court with personal jurisdiction over Bing. Bing's network in the United States is extensive, with business arrangements impacting the State of Illinois in three means. First, Bing has entered into an agreement with Bing Agency International, a Nebraska corporation, whereby Bing has granted Bing Agency International the "sole sales rights" in the United States of Bing carburetors, individual parts and spare parts to "wholesalers, retailers and repair shops for the replacement requirements in the United States. Haedike maintains, upon information and belief, that Bing Agency International distributes Bing carburetors into Illinois pursuant to its agency agreement with Bing. Second, Bing maintains direct relationships with United States companies. According to Haedike, these companies purchase Bing carburetors directly from Bing, distributing the product in the Chicago area through various dealers. Finally, Bing carburetors enter Illinois via European customers of Bing. For instance, Bing sells its carburetors to Rotax, a European company, which incorporates those carburetors into its aircraft engines. The Rotax engines are then sold to Illinois companies, such as Quad City Ultralight Aircraft Corporation which builds aircraft at its plant in Moline, Illinois. As an illustration of the extent of Bing's network in the United States and specifically Illinois, Haedike aptly notes that every BMW motorcycle sold in the United States is equipped with a Bing carburetor. There are countless number of these motorcycles on the streets of Chicago and, consequently, numerous Illinois dealers supplying the demand for Bing replacement parts. Without question, Bing placed its products, including the allegedly defective carburetor incorporated into Haedike's aircraft, into "the stream of commerce with the expectation that they would be purchased by consumers in Illinois. See Dehmlow v. Austin Fireworks, 963 F.2d 941, 946-47 (7th Cir. 1992) (reaffirming the viability of the stream of commerce theory despite the Supreme Court's decision in Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S. 102, 107 S. Ct. 1026, 94 L. Ed. 2d 92 (1987) (plurality opinion)). Bing's status as a foreign corporation pales in comparison to its aggressive economic strategy which included the development and supply of an Illinois market. To that end, Bing should have reasonably foreseen being subjected to the jurisdiction of an Illinois court (and thus a federal court sitting in Illinois), and its motion to dismiss is denied.
Haedike's response to Kodiak's motion was based entirely on the contention that Kodiak has waived its right to contest the exercise of jurisdiction over its person, an issue resolved above against Haedike. As such, Haedike has not put forth any facts relating to Kodiak's contacts with Illinois, the forum state. Moreover, neither the complaint nor any other pleading submitted by Haedike speak to this issue. It is settled law that plaintiff bears the burden to establish a prima facie case supporting the existence of personal jurisdiction. See Turnock v. Cope, 816 F.2d 332, 334-5 (7th Cir. 1987). Haedike has offered absolutely no evidence to indicate that Kodiak may properly be subjected to this court's jurisdiction. Consequently, Haedike has not met his burden. We note Haedike's assertion that he could not respond to the substance of Kodiak's motion without further discovery. This contention, however, is disingenuous in that, after this court had denied his request for leave to limit briefing to the waiver issue, Haedike filed a surresponse detailing Bing's business contacts with Illinois. That Haedike elected not to file a similar surresponse addressing the substance of Kodiak's motion to dismiss can only be viewed as an unsuccessful strategic choice. Accordingly, we grant Kodiak's motion to dismiss.
For the reasons set forth above, we deny Rotax and Bing's motions to dismiss for lack of personal jurisdiction. Kodiak's motion to dismiss is granted, thus obviating the need to consider its motion for partial summary judgment. It is so ordered.
MARVIN E. ASPEN
United States District Judge