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BELLE-AIRE FRAGRANCES, INC. v. ODORITE INTL.

September 15, 1995

BELLE-AIRE FRAGRANCES, INC., Plaintiff,
v.
ODORITE INTERNATIONAL, INC., Defendant.



The opinion of the court was delivered by: ROBERT W. GETTLEMAN

 Plaintiff Belle-Aire Frangrances, Inc. filed this diversity jurisdiction action pursuant to 28 U.S.C. ยง 1332 against defendant Odorite International, Inc. alleging that defendant owes plaintiff $ 51,396.01 for goods sold and delivered. In the complaint, plaintiff asserts that jurisdiction and venue are proper in this court because on: (1) plaintiff is a corporation organized under the laws of the State of Delaware having its principal place of business in Illinois; (2) defendant is a corporation organized under the laws of the State of Missouri having its principal place of business in the State of Missouri. *fn1" Defendant moves the court to dismiss this action for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2), and because venue is improper and inconvenient pursuant to Rule 12(b)(3).

 FACTS

 Plaintiff is a custom manufacturer of fragrances that are used in other companies' products. Defendant manufactures air fresheners. There is no dispute that defendant has no presence in or contact with the state of Illinois other than plaintiff's claims in the instant case. *fn3" Tom Daly ("Daly"), one of plaintiff's salesmen, telephoned defendant in April 1994, to solicit business. On April 27, 1994, accompanied by plaintiff's vice president Donald Conover, Daly traveled from Illinois to defendant's facility in Kansas City, Missouri. *fn4" On May 2, 1994, Daly telephoned defendant to follow up on issues discussed in the April 27 meeting.

 Pursuant to these discussions, on May 10, 1994, defendant sent plaintiff some of its products for plaintiff to analyze and test. Plaintiff then sent defendant samples of a product that plaintiff had produced for defendant. Between June 5, 1994, and December 12, 1994, Daly negotiated with defendant over the telephone and in writing about certain restrictions, cost factors and price terms related to ordering plaintiff's products. *fn5"

 Pursuant to these negotiations from June through December 1994, defendant telephoned plaintiff with orders for various fragrances. In December 1994, plaintiff ceased filling defendant's orders because defendant had failed to pay an outstanding balance due. Plaintiff filed the instant action on March 7, 1995.

 Discussion

 A federal district court in Illinois has personal jurisdiction over a party in a diversity case only if Illinois courts would have such jurisdiction. Michael J. Neuman & Assoc. v. Florabelle Flowers, 15 F.3d 721, 724 (7th Cir. 1994). Plaintiff has the burden of "establishing a prima facie case for personal jurisdiction." Id. In reviewing whether it has personal jurisdiction, the court can consider and weigh affidavits submitted by the parties. Kontos v. Dept. of Labor, 826 F.2d 573, 576 (7th Cir. 1987). The court must accept all undenied factual allegations as true and interpret all disputed facts in favor of the party asserting jurisdiction. Saylor v. Dyniewski, 836 F.2d 341, 342 (7th Cir. 1988).

 Under Illinois law, to exercise personal jurisdiction over a foreign party the court must consider a three part analysis: (1) whether the Illinois long-arm statute provides personal jurisdiction; (2) whether the exercise of such jurisdiction is consistent with federal due process; and, (3) whether jurisdiction is consistent with the due process requirements of Illinois. Florabelle Flowers, 15 F.3d at 724-725.

 Plaintiff asserts that the court has personal jurisdiction over defendant under the Illinois long-arm statute. That statute, 735 ILCS 5/2-209, provides in part:

 
(a) Any person, whether or not a citizen or resident of this state...does any of the acts hereinafter enumerated, thereby submits... to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts:
 
(1) The transaction of any business within the State;
 
...
 
(7) The making or performance of any contract or promise substantially ...

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