meeting or in phone calls or letters between Oberst and Kemper personnel in Chicago, or that Oberst's contacts with Kemper personnel in Illinois relate in any way to Oberst's alleged fraud. Thus, Glass has not shown that Oberst's contacts with Illinois allow the court to exercise specific jurisdiction over Oberst. Accordingly, the court finds that it has no specific jurisdiction over Oberst.
Since the court has found that Oberst did not have sufficient contacts with Illinois for the court to exercise either general or specific jurisdiction over him, the court need not engage in the second part of the federal due process analysis: whether exercising personal jurisdiction over Oberst would comport with traditional notions of fair play and substantial justice. However, the court will make the additional inquiry because it demonstrates the unfairness of exercising jurisdiction over Oberst.
In deciding whether the assertion of personal jurisdiction comports with fair play and substantial justice, the most important factors the court considers are the interests of the states involved and the relative convenience of litigating in the forum. R-Five, Inc. v. Sun Tui, Ltd., 1995 U.S. Dist. LEXIS 13360, No. 94 C 4100, 1995 WL 548633, *4 (N.D. Ill. Sept. 12, 1995) (citing Asahi Metal Indus. Co., Ltd. v. Superior Court of California, 480 U.S. 102, 113, 107 S. Ct. 1026, 1033, 94 L. Ed. 2d 92 (1987); World-Wide Volkswagen, 444 U.S. at 294, 100 S. Ct. at 564, 565-66). These two factors weigh strongly against the court's asserting jurisdiction over Oberst.
Illinois has virtually no interest in being the forum for Glass's litigation. Oberst is not an Illinois resident. Glass is not an Illinois resident. Any alleged wrong that Oberst committed against Glass did not occur in Illinois. In short, neither Oberst nor Glass has any connection to Illinois beyond the fact that they both worked for Illinois companies or their subsidiaries. Thus, Illinois has nothing at stake in a dispute between Oberst and Glass.
Moreover, the court fails to see any convenience in litigating Glass's claim against Oberst in this forum. Glass does not live here. Oberst lives thousands of miles from here. Forcing Oberst, a California resident, to litigate in this forum a claim that arose in Spain while Oberst was a Spanish resident imposes too great a burden on Oberst for this court to countenance.
Consequently, this court's exercising personal jurisdiction over Oberst fails to comport with fair play and substantial justice, particularly in light of the lack of contacts Oberst has with the forum. Accordingly, the court lacks jurisdiction over Oberst under the principles of federal due process.
While this conclusion disposes of Oberst's motion and Glass's claim against Oberst, the court nonetheless will address the issue of personal jurisdiction over Oberst under Illinois due process, since both parties address Illinois due process issues at length.
2. Illinois due process
Under the Illinois constitution's guarantee of due process, "jurisdiction is to be asserted only when it is fair, just, and reasonable to require a nonresident defendant to defend an action in Illinois, considering the quality and nature of the defendant's acts which occur in Illinois or which affect interests located in Illinois." Rollins, 141 Ill. 2d at 275, 565 N.E.2d at 1316.
Based on the fairness required by Illinois due process principles, a defendant in Illinois may raise a defense to personal jurisdiction known as the fiduciary shield doctrine. Pursuant to the fiduciary shield doctrine, a court cannot exercise jurisdiction over a nonresident defendant who has performed acts in Illinois solely as a representative of his employer, and not for his personal benefit. Rollins, 141 Ill. 2d at 276, 565 N.E.2d at 1316-17 (citing Hurletron Whittier, Inc. v. Barda, 82 Ill. App. 3d 443, 448, 402 N.E.2d 840, 843, 37 Ill. Dec. 838 (1980)).
In Rollins, Ellwood, a police officer and Maryland resident, entered Illinois solely in his capacity as a police officer, and arrested Rollins, a man believed wanted in Maryland. Unfortunately, Rollins was not the man wanted in Maryland, and was forced to spend several weeks in jail until the case of mistaken identity was cleared up. Rollins sued Ellwood and the city of Baltimore.
Finding that Illinois courts had no jurisdiction over Ellwood, the Illinois Supreme Court stated:
We find that it is not fair, just, and reasonable for the Illinois courts to assert personal jurisdiction over one in Ellwood's situation. Ellwood entered into Illinois, and while in Illinois engaged in conduct giving rise to the present cause of action, solely in his capacity as a police officer acting for the Baltimore police department and the State of Maryland. The nature and quality of his actions in Illinois were characterized by his status as a police officer employed by these entities. Because Ellwood's conduct in Illinois was a product of, and was motivated by, his employment situation and not his personal interests, we conclude that it would be unfair to use this conduct to assert personal jurisdiction over him as an individual.
Rollins, 141 Ill. 2d at 279-80, 565 N.E.2d at 1318.
The court also found no exception to the fiduciary shield doctrine simply because "the employee is serving his own financial interests when he performs the tasks imposed upon him by his employer." Id. at 280, 565 N.E.2d at 1318. The court stated that "in practical terms, an employee ... has little or no alternative besides unemployment when ordered to enter another state to carry out the wishes of his employer." Id. The court stated further that it saw "no reason to fashion an exception to the fiduciary shield doctrine that will expose employees who engage in tortious conduct within the scope of their employment to the personal jurisdiction of Illinois courts." Id.
It follows from Rollins that the fiduciary shield does not apply when the defendant was present in Illinois seeking to serve his personal interests, rather than those of his employer. See, e.g., Rice v. Nova Biomedical Corp., 38 F.3d 909, 912 (7th Cir. 1994), cert. denied, U.S. , 131 L. Ed. 2d 855, 115 S. Ct. 1964 (1995). However, several federal courts in Illinois have gone a step further, holding that where defendant corporate officers were in positions to decide whether or not to make their contacts with the forum, it was fair and reasonable to subject them to the jurisdiction of the courts. See Brujis v. Shaw, 876 F. Supp. 975, 980 (N.D. Ill. 1995), Roy v. Austin Co., 1995 U.S. Dist. LEXIS 4958, No. 94 C 740, 1995 WL 230949, *2 (N.D. Ill. Apr. 14, 1995).
This court is not convinced that the Illinois Supreme Court in Rollins intended to have the discretion exception carved out of its fiduciary shield doctrine, but it makes no difference in the present case. The court finds that under Rollins and the federal courts' interpretation of the fiduciary shield doctrine, Oberst cannot be held to be within this court's jurisdiction.
Virtually all of Oberst's contacts with Illinois were in his capacity as an employee of corporations headquartered in Illinois. While employed with Homart, Oberst was required by his superiors to attend board meetings in Chicago (Oberst Aff. P 8; Oberst Dep. at 504-06.) Similarly, while employed with Kemper Financial and Kemper, Oberst attended orientation and board meetings in Chicago at the direction of his superiors. (Oberst Aff. PP 15-16.) He never chose whether, where, or when to have the meetings, or whether to attend them. (Oberst Aff. P 16; Reschke Dep. at 108.) Specifically with respect to the August 1994 meeting with Neal, at which Oberst and Neal discussed Glass's employment contract, Neal asked Oberst to come to Chicago to attend some meetings. (Oberst Dep. at 316-17; Neal Dep. at 153-54.)
Oberst's letters to Kemper executives regarding Glass's and other employees' employment and his telephone calls to people at Kemper Financial, Kemper, or Prime in Illinois appear to have been necessary, strictly job-related, and within the scope of Oberst's employment. (Pl.'s Mot. in Opp. to Mot. to Dismiss Ex. C.; Oberst Aff. P 17; Oberst Dep. at 310, 313-14.)
Oberst claims that he was required to have the foregoing contacts with Illinois in connection with his work in Barcelona on behalf of Kepro, and that he made his contacts with Illinois only because he was performing acts for his employer's benefit and at the direction of his employer. (Oberst Aff. P 15.) The evidence presented by both Oberst and Glass bears out this claim.
Furthermore, Oberst does not and did not own an interest in Kemper Financial, Kemper, Prime, Kepro, Diagonal Mar, or any other Kepro-related real estate, though he owns a very small amount of Kemper stock. (Oberst Aff. P 19.) Thus, he did not personally benefit from firing Glass or maintaining contacts with Illinois beyond earning a salary for performing his job.
Glass has presented no evidence showing that Oberst exercised discretion over his contacts with Illinois or benefitted personally from his contacts. Glass simply states in conclusory fashion that Oberst decided to have contacts with Illinois because such contacts would benefit him. The evidence, including that submitted by Glass, distinctly shows the contrary. In addition, the Illinois Supreme Court has expressly foreclosed Glass's argument that Oberst benefitted financially from his Illinois contacts in that he was attempting to curry favor with his employer, presumably to remain employed and earn a salary or salary increase. See Rollins, 141 Ill. 2d at 280, 565 N.E.2d at 1318 (no exception to fiduciary shield doctrine simply because employee is serving own financial interests by performing tasks imposed on him by employer).
Moreover, Glass's second amended complaint belies his argument that Oberst was acting on his own accord when he fired Glass. The second amended complaint explicitly alleges that Oberst was acting as the agent or representative of Kemper, Prime, and Prime International, Inc., when he allegedly made fraudulent statements to Glass. (Second Am. Compl. PP 32, 34, 35.) If Oberst was acting only as his employers' agent when he allegedly committed fraud against Glass, then he falls squarely within the fiduciary shield doctrine with respect to any contacts with Illinois related to or arising out of his fraudulent acts.
Because Oberst made most of his contacts with Illinois solely as a representative of his employer, it would not be "fair, just, and reasonable" for this court to assert jurisdiction over him based on those contacts. See Rollins, 141 Ill. 2d at 279-80, 565 N.E.2d at 1318. The "nature and quality of [Oberst's] actions in Illinois were characterized by his status as" an employee of Illinois-based companies. See id. Because most of Oberst's conduct in Illinois "was a product of and was motivated by, his employment situation and not his personal interests, ... it would be unfair to use this conduct to assert personal jurisdiction over him as an individual." See id.
Oberst's only Illinois contacts that were for his personal benefit and at his discretion are his relationship with First Chicago and his trip to Chicago to interview with Kemper Financial. These two contacts simply are not substantial enough to form the basis for this court's assertion of general jurisdiction over Oberst. See section II.B.1.a. above. In addition, both contacts are unrelated to Glass's cause of action against Oberst, and thus cannot form the basis for this court's exercising specific jurisdiction over Oberst. See section II.B.1.b. above. Accordingly, under the principles of Illinois due process and the fiduciary shield doctrine, the court finds that exercising personal jurisdiction over Oberst would be unfair and improper.
Because the court has found that asserting jurisdiction over Oberst would violate due process principles under the United States and Illinois constitutions, the court concludes that it has no jurisdiction over Oberst.
For the foregoing reasons, the court grants defendant Michael Oberst's motion to dismiss Counts I and VI of plaintiff Gregory Glass's second amended complaint. Counts I and VI of Glass's second amended complaint are dismissed, and Oberst is dismissed as a party defendant.
Date: JUN 25 1996
James H. Alesia
United States District Judge