The opinion of the court was delivered by: ELAINE E. BUCKLO
Before the Court are defendants' motions to dismiss or transfer this action for improper venue pursuant to 28 U.S.C. § 1406(a) or, in the alternative, to transfer the action for the convenience of the parties and witnesses and in the interest of justice pursuant to 28 U.S.C. § 1404(a) or, in the alternative, to dismiss defendant Mr. Christoph for lack of personal jurisdiction pursuant to FED. R. CIV. P. 12(b). For the reasons stated herein, defendants' motions are denied.
In late 1989, plaintiff, Gordon Vandeveld ("Mr. Vandeveld") allegedly entered into a verbal partnership agreement with defendant, Robert Christoph ("Mr. Christoph"), and John F. Kennedy ("Mr. Kennedy"), who were then doing business as a partnership known as the ChrisKen Group. Under the partnership agreement, the parties agreed to engage in efforts to obtain an interest in property known as the Miami Beach Marina ("Marina") located in Miami Beach, Florida. At the time, the Marina was owned by the Carner-Mason Limited Partnership ("Carner-Mason") subject to a mortgage held by Heller Financial Corp. ("Heller Financial"). Mr. Vandeveld and the ChrisKen Group established a Florida corporation known as Miami Beach Marina Village, Inc. ("MBMV") for the purpose of acquiring and operating the Marina. The shareholders of MBMV were the ChrisKen Group and Equitable Ventures, Inc., a corporation controlled by Mr. Vandeveld.
In June, 1989, MBMV's attempts to acquire the Marina failed. In October, 1989, Heller Financial foreclosed its mortgage on the Marina, acquired the leasehold, and operated the Marina through a subsidiary known as Tallahassee Building Corp. ("TBC"). Subsequently, Mr. Vandeveld and the ChrisKen Group allegedly modified their partnership agreement to include joint efforts to purchase or lease the Marina from Heller Financial or to negotiate a contract for the management or sale of the Marina. Under the terms of the modified agreement, the ChrisKen Group was primarily responsible for negotiations with Heller Financial and for any day-to-day management of the Marina if the negotiations proved successful. Mr. Vandeveld's primary responsibilities focused on marketing -- including, but not limited to, preparation of prospectus materials and meeting with potential investors, purchasers or lessees. This partnership agreement was negotiated, consummated, and modified in Chicago during the course of personal meetings involving Mr. Vandeveld, Mr. Christoph, and occasionally Mr. Kennedy. See Vandeveld Aff., PP 7, 8.
In September, 1991, Mr. Christoph entered into an agreement with TBC to manage the Marina for six months with a right to continue management if Mr. Christoph could successfully negotiate a resolution of litigation between the City of Miami Beach, Heller Financial, and Carner-Mason. Mr. Christoph negotiated a resolution of that litigation. In October, 1991, ChrisKen Marine Management, Inc. ("CMMI") took over management and operation of the Marina, and continued to manage the Marina until December, 1993, when CMMI ceased operations and distributed its assets to its creditors and shareholders. Since December, 1993, the Marina has been managed by RCI Marine, Inc. ("RCI"), whose president is Mr. Christoph. On May 19, 1994, Mr. Vandeveld brought this action in the Circuit Court of Cook County against Mr. Christoph, individually and as General Partner of the ChrisKen Group, and CMMI. On July 5, 1994, Mr. Christoph removed the action to federal court. On November 4, 1994, Mr. Christoph and CMMI moved to dismiss or transfer the action to the Southern District of Florida pursuant to 28 U.S.C. §§ 1406(a), 1404(a), or to dismiss Mr. Christoph for lack of personal jurisdiction pursuant to FED. R. CIV. P. 12(b).
I. Personal Jurisdiction over Mr. Christoph
Jurisdiction in this case is based on diversity of citizenship. In a diversity action, a federal district court in Illinois has personal jurisdiction over a nonresident defendant only if an Illinois state court would have personal jurisdiction. Michael J. Neuman & Associates, Ltd. v. Florabelle Flowers, Inc., 15 F.3d 721, 724 (7th Cir. 1994) (citing Dehmlow v. Austin Fireworks, 963 F.2d 941 (7th Cir. 1992)). The burden of demonstrating the existence of personal jurisdiction rests with the party asserting jurisdiction, i.e., Mr. Vandeveld in the present case. Publications International, Ltd. v. Simon & Schuster, Inc., 763 F. Supp. 309, 310 (N.D. Ill. 1991); Wysnoski v. Millet, 759 F. Supp. 439, 442 (N.D. Ill. 1991) (citing Saylor v. Dyniewski, 836 F.2d 341, 342 (7th Cir. 1988)).
A. Fiduciary Shield Doctrine
Mr. Christoph first argues that his contacts with Illinois were solely in his representative capacity for MBMV or CMMI, and therefore cannot be used to confer jurisdiction over him personally under the fiduciary shield doctrine. The fiduciary shield doctrine prevents the exercise of personal jurisdiction over an individual whose activities in Illinois were performed solely on behalf of his employer, corporation, or other principal. Rice v. Nova Biomedical Corp., 38 F.3d 909, 912 (7th Cir. 1994) (citations omitted); Kula v. J.K. Schofield & Co., Inc., 668 F. Supp. 1126, 1129 (N.D. Ill. 1987) (citations omitted). The doctrine is rooted in the perceived unfairness of forcing "an individual to defend a suit brought against him personally in a forum in which his only relevant contacts are acts performed not for his own benefit but for the benefit of his employer." Torco Oil Co. v. Innovative Thermal Corp., 730 F. Supp. 126, 134 (N.D. Ill. 1989) (citations omitted). It is an equitable doctrine and, as such, is meant to be applied with discretion. Rice v. Nova Biomedical Corp., supra, 38 F.3d at 914 (citation omitted); Torco Oil Co. v. Innovative Thermal Corp., supra, 730 F. Supp. at 135 (citations omitted).
The fiduciary shield is withdrawn if the agent was acting also or instead on his own behalf -- to "serve his personal interests." Rice v. Nova Biomedical Corp., supra, 38 F.3d at 912 (citation omitted). Accordingly, the doctrine does not protect general partners, who, unlike corporate officials, are both agents and principals of the partnership. Felicia, Ltd. v. Gulf American Barge, Ltd., 555 F. Supp. 801, 806 (N.D. Ill. 1983); Phoenix Home Life Mutual Insurance Co. v. Brown, 857 F. Supp. 7, 10 (W.D. N.Y. 1994). In the present case, Mr. Vandeveld alleges that, in consummating the alleged partnership agreement at issue, Mr. Christoph was acting on behalf of the ChrisKen Group, a partnership composed of himself and Mr. Kennedy. See Complaint, PP 3, 5. Accordingly, the fiduciary shield doctrine does not protect Mr. Christoph from the exercise of personal jurisdiction in this case.
B. Illinois Long-Arm Statute
Mr. Christoph next argues that the exercise of jurisdiction over him would violate the Illinois long-arm statute as well as due process. Prior to September, 1989, a nonresident defendant could be sued in Illinois only if he or she (1) performed one of the acts enumerated in the Illinois long-arm statute; and (2) established minimum contacts with Illinois which satisfy due process requirements. Mors v. Williams, 791 F. Supp. 739, 741 (N.D. Ill. 1992) (citation omitted). Effective September 7, 1989, Illinois amended its long-arm statute to include a new "catch-all" provision, which provides that "[a] court may also exercise jurisdiction on any other basis now or hereafter permitted by the Illinois Constitution and the Constitution of the United States." 735 ILCS § 5/2-209(c). This "catch-all" provision renders the first inquiry (i.e., did the defendant perform one of the enumerated acts under the long-arm statute) unnecessary because jurisdiction under the Illinois long-arm statute is now co-extensive with the limits of due process. Dehmlow v. Austin Fireworks, supra, 963 F.2d at 945; FMC Corp. v. Varonos, 892 F.2d 1308, 1311 n.5 (7th Cir. 1990). Accordingly, the Court must ascertain whether the exercise of jurisdiction over Mr. Christoph satisfies the requirements of due process. This determination requires an analysis under both the United States and Illinois Constitutions. Mors v. Williams, supra, 791 F. Supp. at 741 (citing Rollins v. Ellwood, 141 Ill. 2d 244, 152 Ill. Dec. 384, 565 N.E.2d 1302, 1316 (1990)); Damian Services Corp. v. PLC Services, Inc., 763 F. Supp. 369, 371 (N.D. Ill. 1991) (citation omitted).
Under the Due Process Clause of the Fourteenth Amendment, a state court may exercise personal jurisdiction over a nonresident defendant only if the defendant has "certain minimum contacts with [the forum state] 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, 90 L. Ed. 95, 66 S. Ct. 154 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 85 L. Ed. 278, 61 S. Ct. 339 (1940)); Michael J. Neuman & Associates, Ltd. v. Florabelle Flowers, Inc., supra, 15 F.3d at 725. In determining the reasonableness of forcing a nonresident defendant to defend in the forum state, the critical inquiry is whether there is "some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Asahi Metal Industry Co., Ltd. v. Superior Court of ...