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OBERMEYER v. GILLILAND

January 6, 1995

WANDA OBERMEYER AND JAMES OBERMEYER, PLAINTIFFS,
v.
PHILIP GILLILAND, H.B. ENTERPRISES INC., D/B/A LEE'S WRECKER SERVICE, AND ROBERT READ, DEFENDANTS.



The opinion of the court was delivered by: Richard Mills, District Judge:

  OPINION

Traffic accident in Michigan.

Interstate truck driver from Michigan routinely hauls to and from Illinois.

Does this Court in Illinois have personal jurisdiction over him?

No.

I. BACKGROUND

On July 22, 1992, Wanda Obermeyer, an Illinois resident, had car problems on Interstate I-96 near South Haven, Michigan. As a result of the problems, she was forced to call a tow truck. The responding tow truck was driven by Philip Gilliland. The tow truck was owned by Lees's Wrecker Service. Upon arrival at the scene, Mr. Gilliland attached Ms. Obermeyer's vehicle to the tow truck and with Ms. Obermeyer as a passenger began driving south on I-96. At the same time, Robert Read, a Michigan resident, was driving a semi-trailer southbound on I-96.

Mr. and Mrs. Obermeyer allege that the semi-trailer ran into the rear of the tow truck and injured Mrs. Obermeyer. They contend Mr. Read's negligence was the proximate cause of Mrs. Obermeyer's injuries. (Mr. Obermeyer seeks recovery for loss of consortium.).

The semi-trailer was owned by a Michigan resident, Donald P. Loew. Mr. Loew, however, leased the truck to Ro Mar Transportation Systems, Inc. (hereinafter Ro Mar), an Illinois corporation. Robert Read drove the truck on a route between Grand Rapids, Michigan and Chicago, Illinois. He was paid by Mr. Loew but took directions from the Ro Mar Grand Rapids terminal, he only route driven by Mr. Read was between Grand Rapids and Chicago. It is not clear, however, how many times Mr. Read made the trip from 1990, when he started working for Mr. Loew, to the date of the accident, July 22, 1992.

Defendant Read contends that the Complaint should be dismissed because this Court lacks personal jurisdiction over him, because venue is improper, and because the Complaint fails to state a cause of action under Michigan law.

II. MOTION TO DISMISS

In ruling on a motion to dismiss, the Court "must accept the well pleaded allegations of the complaint as true. In addition, the Court must view these allegations in the light most favorable to the plaintiff." Gomez v. Illinois State Rd. of Educ., 811 F.2d 1030, 1039 (7th Cir. 1987). Although a complaint is not required to contain a detailed outline of the claim's basis, it nevertheless "must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory." Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir, 1984), cert. denied, 470 U.S. 1054, 105 S.Ct. 1758, 84 L.Ed.2d 821 (1985).

When the motion to dismiss is based on lack of personal jurisdiction, the plaintiff bears the burden of proving that the court has jurisdiction over each defendant. Nelson v. Park Indus., Inc., 717 F.2d 1120 (7th Cir. 1983), cert. denied, 465 U.S. 1024, 104 S.Ct. 1277, 79 L.Ed.2d 682 (1984). Plaintiff need only make a prima facie bowing to avoid dismissal. Id. at 1123. A motion to dismiss will not be granted unless it appears beyond doubt that the plaintiff ...


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