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BUSKE LINES, INC. v. THERMO KING MICHIGAN

April 7, 1997

BUSKE LINES, INC., PLAINTIFF,
v.
THERMO KING MICHIGAN,INC., DEFENDANT



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

OPINION

Contract between Illinois corporation and Michigan corporation.

Do phone calls and facsimile transmissions alone cause this Court in Illinois to have personal jurisdiction over Defendant?

No.

I. BACKGROUND

Plaintiff is an Illinois corporation with its principal place of business in Litchfield, Illinois. Defendant is a Michigan corporation with its principal place of business in Grand Rapids, Michigan. Defendant is not registered to do business in Illinois nor does it have a registered agent within the State of Illinois. Defendant is engaged in the business of selling, installing and servicing truck/trailer heating and refrigerator units. Defendant also operates a facility in Detroit, Michigan. Plaintiff operates a facility near Defendant's Detroit facility.

On or about March 25, 1996, Dale Alton, General Manager of Defendant's Detroit facility, received a telephone call from Phil Bauer of Monon Corp., a manufacturer of truck trailers Bauer was seeking a price quotation for its customer, Plaintiff Alton claims he gave quotes to Bauer on various products. On March 27, 1996, Defendant faxed a written quote to Plaintiffs president, Tom Buske, in Litchfield, Illinois. On March 28, 1996, the same quotation was faxed to Steve Ondejka at Plaintiffs Michigan facility. Defendant also claims that Ondejka and Bauer repeatedly assured Alton that the heating units were to be installed in trailers which would be housed at and operated out of Plaintiffs Michigan facility. On April 10, 1996, following a series of phone calls, Defendant faxed a final written quotation for the heating units to Plaintiff. On April 15, Plaintiff returned, by fax, the quote bearing Buske's signature. Defendant claims the heaters were installed at Defendant's Detroit facility. Delivery of the goods was F.O.B. Defendants' Detroit plant. Payment was to be made to a third party in advance of delivery.

Plaintiff claims that the trucks with the Thermo King units
installed were to be picked up in Michigan, but that they were
to be hauled to the Litchfield, Illinois facility for a
"pre-service inspection."  Further, Plaintiff does not know
why Defendant contacted Ondejka at the Michigan warehouse
and that neither he nor Bauer would have authority to tell Alton
that Plaintiff would be housing and operating the trailers only
in Michigan. Plaintiff claims that Defendant knew the trailers
were to be used in Plaintiffs interstate commerce and several
states and would be serviced and maintained only at the Litchfield,
Illinois headquarters.

Subsequently, Defendant allegedly refused or failed to deliver a certain number of the trailers with Thermo King units installed. On November 18 1996, Plaintiff filed suit in the Circuit Court of the Fourth Judicial Circuit, Montgomery County, Illinois alleging breach of contract against Defendant. Plaintiff's complaint alleges that Defendant is subject to personal jurisdiction in Illinois under 735 ILCS 5/2-209 of the Illinois long-arm statute; specifically subsections (a)(1) (transaction of business in Illinois) and (a)(7) (making or performing a contract or promise substantially connected with Illinois). Defendant removed the case to this Court pursuant to 28 U.S.C. § 1332 and 1441, there being diversity of citizenship and the amount in controversy exceeding $50,000.

On December 31, 1996, Defendant filed its motion to dismiss
for lack of personal jurisdiction. Defendant claims the facts
fail to support the exercise of Illinois long-arm jurisdiction
and that Defendant does not have sufficient minimum contacts
with  Illinois to meet the requirements of the due process
clause of the United States and Illinois Constitutions
In support of its position, Defendant points out it is a
Michigan corporation, it maintains no offices or production
facilities in Illinois, it owns no assets located in Illinois,
maintains no sales force in Illinois, has no employees in
Illinois, does not advertise or solicit business in Illinois,
was never physically present in Illinois, and the terms of
the contract provided that the delivery of the heating units
was F.O.B. Defendant's Detroit Michigan plant.

II. LEGAL STANDARD

In deciding a motion to dismiss for want of personal
jurisdiction in a diversity case, a federal district court
looks to the law of the state in which it sits. Michael J.
Neuman & Associates, Ltd. v  Florabelle Flowers, Inc.,
15 F.3d 721, 724 (7th Cir. 1994), accord Dehmlow v. Austin
Fireworks, 963 F.2d 941, 945 (7th Cir. 1992) If personal
jurisdiction is found under Illinois law, the next step is to
determine whether asserting jurisdiction is a violation of due
process  Burnham v. Super. Ct. of California, County
of Marin, 495 U.S. 604, 110 S.Ct. 2105, 109 L.Ed.2d 631
(1990). "During this preliminary proceeding, although the burden
of proof rests on the party asserting jurisdiction, if the
district court's decision is based on the submission of
written materials the burden of proof is met by a prima facie
showing that personal jurisdiction is conferred under the
relevant jurisdictional statute." Nelson by Carson v. Park
Industries, Inc., 717 F.2d 1120, 1123 (7th Cir. 1983)
The Court must resolve all factual disputes in favor of the
Plaintiff. Id.

As this Court noted in Obermeyer v Gilliland, 873 F. Supp. 153, 156 (C.D.Ill 1995), the Illinois Long-Arm statute, 735 ILCS 5/2-209 (West. 1992), makes Illinois law coextensive with minimum due process requirements Thus, analysis can be limited to whether asserting jurisdiction over Defendant satisfies due process requirements under the Illinois and United States Constitutions.*fn1 Pilipauskas v. Yakel,, 258 Ill. App.3d 47, 196 Ill.Dec. 188, 194, 629 N.E.2d 733, 739 (1st Dist. 1994).

According to the Supreme Court, due process requires that a
nonresident defendant have  "minimum contacts with [the forum]
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, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (quoting
Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339,
342-43, 85 L.Ed. 278 (1940)). Minimum contacts have been
defined as "some act by which the defendant purposely avails
itself of the privilege of conducting activities within the
forum state, thus invoking the benefits and protections of its
laws." Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228,
1240, 2 L.Ed.2d 1283 (1958). The Due Process Clause enables
"potential defendants to structure their primary conduct ...

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