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BRUJIS v. SHAW

February 9, 1995

LIA G. BRUJIS, on behalf of herself and all others similarly situated, Plaintiff,
v.
MEL SHAW; THOMAS ISGRIGG; and UNITED STATES CREDIT BUREAU, INC., Defendants.



The opinion of the court was delivered by: JAMES B. MORAN

 Plaintiff Lia Brujis brings this action against United States Credit Bureau, Inc. (USCB), a California corporation, and two of its officers, Mel Shaw and Thomas Isgrigg (the individual defendants). Plaintiff alleges that the defendants misled her and other consumers in violation of the federal Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692(o). Before us is the motion of the individual defendants to dismiss the complaint for lack of personal jurisdiction. For the reasons set forth below, the motion is denied.

 FACTS *fn1"

 The facts relevant to this motion are few. Brujis is suing USCB, Shaw and Isgrigg, individually, and on behalf of a class of consumers. She claims USCB, a debt collection agency whose senior officers included Shaw and Isgrigg, engaged in deceptive practices in violation of the FDCPA. The company used the flame United States Credit Bureau to mislead unsophisticated consumers into thinking that the company is affiliated with or sanctioned by the federal government, that it is a credit reporting agency, and that it will add negative information to consumers' credit histories if they fail to comply with USCB's demands for payment -- none of which is true. She seeks statutory damages for these violations.

 At the time of the events in question Shaw was president of USCB and owned the vast majority of its stock. Isgrigg was the company's vice-president and ran one of its offices. Shaw has been a resident of California for his entire life. Isgrigg has been a resident of California for 47 years, and before that resided in Wisconsin. Neither man conducts personal business in Illinois, banks in Illinois, has an office or mailing address in Illinois, or owns real estate in Illinois. To the extent they have had any contacts with Illinois relating to the subject matter of this suit, those contacts were made solely through business dealings involving USCB.

 DISCUSSION

 Personal jurisdiction in federal question cases is authorized by the service of process provisions of Rule 4 of the Federal Rules of Civil Procedure. Section (k) of that rule provides that "service of summons or filing a waiver of service is effective to establish jurisdiction over the person of a defendant who could be subjected to the jurisdiction of a court of general jurisdiction in the state in which the district court is located, or ... when authorized by a statute of the United States." Shaw and Isgrigg argue that because there is no statute here authorizing special service methods, the court has jurisdiction only if an Illinois court would have jurisdiction. Illinois has a long-arm statute that grants its courts personal jurisdiction to the maximum extent permitted by the Illinois constitution and the Constitution of the United States. 735 ILCS 5/2-209. Shaw and Isgrigg are covered by § 2-209 because under both constitutions the tortious acts they allegedly committed in Illinois -- authorizing and directing the use of the misleading USCB name in violation of the FDCPA -- are sufficient to confer jurisdiction. *fn2" International Shoe Co. v. Washington, 326 U.S. 310, 316, 90 L. Ed. 95, 66 S. Ct. 154 (1945) ("minimum contacts" sufficient for federal due process); Arthur Young & Co. v. Bremer, 197 Ill. App. 3d 30, 143 Ill. Dec. 736, 741, 554 N.E.2d 671 (App.Ct. 1990) (§ 2-209 requires plaintiff to allege only that defendant "performed an act or omission which caused an injury in Illinois, and that the act or omission was tortious in nature"); Heritage House Restaurants, Inc. v. Continental Funding Group, Inc., 906 F.2d 276, 282 (7th Cir. 1990) (holding that jurisdiction in misrepresentation and deceptive business practices case was appropriate under § 2-209, based on nonresident defendant's alleged misrepresentations to an Illinois corporation about whether a deposit would be insured). However, Shaw and Isgrigg argue that the court lacks jurisdiction because Illinois' fiduciary shield doctrine exempts them from the long-arm statute. We must decide whether the doctrine applies on these facts.

 The Rollins court undertook its own analysis of the doctrine to determine whether it should be accepted in Illinois. It noted that the Appellate Court cases adopting the doctrine had not addressed the due process clause of the Illinois constitution, but had focused only on federal due process standards. Id. at 399-400. This approach was erroneous, the Supreme Court said, because "the scope of Illinois' long-arm statute may not be co-extensive with the jurisdictional aspect of the Federal due process clause in any particular situation." Id. at 397. Rather, courts interpreting § 2-209 should take into account the due process standards embodied in the Illinois constitution. Under those standards, and "the tenets of our concept of the jurisdictional power of the Illinois courts," the court held that it was "unfair and unreasonable ... to assert personal jurisdiction over an individual who [sought] the protection and benefits of Illinois law, not to serve his personal interests, but to serve those of his employer or principal." 152 Ill. Dec. at 400.

 It is clear that Rollins governs this dispute. Yet, the parties differ over its interpretation. Shaw and Isgrigg claim that because they were acting only on behalf of USCB, not on their own behalf, they are protected by the fiduciary shield doctrine (Dft's Mem. at 4-7). Brujis reads Rollins more narrowly, arguing that the fiduciary shield protects only those who both acted on their employer's or principal's behalf and had no discretion over their actions. She claims that since Shaw and Isgrigg were principal officers of USCB they had discretion to decide whether to continue using the name United States Credit Bureau to deceive customers and that they should not be protected by the fiduciary shield (Plf's Mem. at 7-10).

 Fiduciary shield cases following Rollins do not conclusively settle whether a fiduciary's exercise of discretion automatically removes him from the protection of the shield. The cases that have addressed the issue generally conclude that the shield should not apply where the employee has the power to decide what is to be done and chooses to commit the acts that subject him to long-arm jurisdiction. Renner v. Grand Trunk Western Railroad Co., 263 Ill. App. 3d 547, 204 Ill. Dec. 42, 44, 641 N.E.2d 1 (App.Ct. 1994), appeal denied, N.E.2d (Table No. 77257) (Ill. Oct. 6, 1994); People ex rel. Morse v. E & B Coal Co., 261 Ill. App. 3d 738, 199 Ill. Dec. 597, 603, 634 N.E.2d 436 (App.Ct. 1994); Ruca Hardware, Ltd. v. Chien, 1994 U.S. Dist. LEXIS 14064, No. 94 C 3635, 1994 WL 548196, at *5 (N.D.Ill. Oct. 4, 1994); Lexecon Inc. v. Milberg Weiss Bershad Specthrie & Lerach, 1993 U.S. Dist. LEXIS 6898, No. 92 C 7768, 1993 WL 179789, at *4 (N.D.Ill. May 24, 1993). Indeed, in only one case in which the discretion issue arose did a court reject the idea of an exception to the fiduciary shield for discretionary acts, and it did so only in passing. Rice v. Nova Biomedical Corp., 38 F.3d 909 (7th Cir. 1994). The Rice court said only that "if [the defendant's] action in coming into Illinois to fire and defame [the plaintiff] was done solely on behalf of [the defendant's employer], he is under the fiduciary shield and this regardless of whether he exercised discretion rather than merely carrying out precise orders mechanically." Id. at 912. Rice's statement about discretion was clearly dictum, and we do not think that the court intended to settle the issue with a single sentence unsupported by any analysis. Thus Rice does not undermine our conclusion that all the courts that have examined the discretion issue have held that the exercise of discretion removes the defendant from the fiduciary shield's protections.

 Nonetheless, in a great many fiduciary shield cases the discretion issue does not arise at all -- the courts consider only whether the out-of-state defendant was acting on the corporation's behalf or on his own. See e.g., Alpert v. Bertsch, 235 Ill. App. 3d 452, 176 Ill. Dec. 333, 601 N.E.2d 1031 (App.Ct. 1992), appeal denied, 183 Ill.Dec. 15 (1993); Household Commercial Financial Services, Inc. v. Trump, 1993 U.S. Dist. LEXIS 13818, Nos. 92 C 6920 and 92 C 5010, 1993 WL 389386 (N.D.Ill. Sept. 30, 1993); Modern Aids, Inc. v. Lil' Drug Store Products, Inc., 1993 U.S. Dist. LEXIS 8693, No. 93 C 1714, 1993 WL 239054 (N.D.Ill. June 25, 1993); Ace Novelty Co. v. Vijuk Equipment, Inc., 1991 U.S. Dist. LEXIS 10713, No. 90 C 3116, 1991 WL 150191 (N.D.Ill. July 31, 1991). Thus it is not clear under Illinois law whether discretion is an essential factor to be considered in determining whether the fiduciary shield should be invoked.

 It is our task to ascertain, as best we can, what the Illinois Supreme Court would do if it were deciding this case. Todd v. Societe Bic, S.A., 21 F.3d 1402, 1405 (7th Cir.), cert. denied, 130 L. Ed. 2d 312, 115 S. Ct. 359 (1994); Heller International Corp. v. Sharp, 974 F.2d 850, 858 (7th Cir. 1992). We think that court would consider the extent of the nonresident defendant's discretion an important factor, though not a determinative one, in deciding whether an Illinois court's jurisdiction over him was proper. As the courts that have emphasized discretion have pointed out, the Rollins court was impressed by the compulsory nature of Officer Ellwood's actions in Illinois:

 
Also, we are not persuaded by the argument ... that asserting personal jurisdiction over an employee who acted in the scope of his employment is justified because the employee is serving his own financial interests when he performs the tasks imposed upon him by his employer. In practical terms, an employee, especially one in Ellwood's position, has little or no alternative ...

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