requirements of § 5/2-209(a)(2). Wysnoski v. Millet, 759 F. Supp. 439, 442 (N.D. Ill. 1991)(citing Club Assistance Program, Inc. v. Zukerman, 594 F. Supp. 341, 347 (N.D. Ill. 1984)). However, where there is just one telephone call made, that call can give rise to jurisdiction in Illinois only if the call "constitutes the commission of a tortious act within Illinois." Rose, 713 F. Supp. at 1209. Thus, if there were no misrepresentations made during the telephone call to Illinois, then the call can not give rise to jurisdiction in Illinois. See, e.g., Pendelton v. Germino, 1995 U.S. Dist. LEXIS 11739, No. 95 C 2350, 1995 WL 493449, at *8 (N.D. Ill. Aug. 15, 1995)(holding that defendant's telephone calls could not give rise to jurisdiction because plaintiff did not "allege that [defendant] made any fraudulent misrepresentations or omissions of material fact to Plaintiff during their phone conversations.")
Here, Mr. Shah does not allege that any misrepresentations were made during the sole telephone call from Mr. Zavitkovsky, in May of 1996. (Shah Aff. P16.) Instead, Mr. Shah merely asserts that Mr. Zavitkovsky "advised" him to return the unsold dye to Jay Chem. This distinguishes the one telephone call here, from the communications in Heritage House, 906 F.2d at 278 (making numerous misrepresentations over the telephone that a $ 150,000 deposit would be secure), and FMC Corp. v. Varonos, 892 F.2d 1308, 1310 (7th Cir. 1990)(sending telexes requesting reimbursement for fraudulent operating expenses). See also Turnock, 816 F.2d at 335 (although there was an economic injury, there was no intent to affect Illinois interests, because there were no fraudulent communications or meetings that took place in Illinois); Jan Mark, Inc. v. Reidy, 1997 U.S. Dist. LEXIS 737, No. 96 C 7206, 1997 WL 43203, at *4 (N.D. Ill. Jan. 28, 1997)(finding that defendant's acts were distinguishable from those in FMC Corp., 892 F.2d at 1311-12, because no false communications were sent).
Additionally, even if, arguendo, the telephone call in May of 1996 contained misrepresentations, "the acts that form the basis of tortious interference [with a contract] must be directed at parties other than the plaintiff." Continental Mobile Tel. Co., Inc. v. Chicago SMSA Ltd., 225 Ill. App. 3d 317, 587 N.E.2d 1169, 1174, 167 Ill. Dec. 554 (Ill. App. 1992). For example, in Goldberg v. Miller, 874 F. Supp. 874, 875-76 (N.D. Ill. 1995), plaintiff, an insurance company, brought suit against another insurance company for tortiously interfering with plaintiff's contract with a California citizen. In that case, the California citizen/policy holder was diagnosed with HIV, and contracted to sell his insurance policy in order to get the money before he died. Id. at 875-76. All communications between the defendant insurance company and the policy holder took place in California. Id. at 876. Because all of the defendant's conduct directed toward the policy holder took place outside Illinois, the court determined that it lacked jurisdiction. Id. at 876-77.
Here, Real Colors only asserts that a telephone call was made to Mr. Shah, its own employee, in Illinois. Since Real Colors does not allege that any acts between Isochem and Jay Chem (or any other party) occurred in Illinois, Real Colors has not alleged the commission of a tortious act in Illinois within the meaning of § 5/2-209(a)(2). Thus, Real Colors fails, under § 5/2-209(a)(2), to meet its burden of establishing a prima facie case of personal jurisdiction over Isochem.
2. Conspiracy Theory of Jurisdiction7
Although the Illinois Supreme Court has never rejected "the idea of [personal] jurisdiction based on the acts of co-conspirators, it has been questioned." Green v. Advance Ross Elecs. Corp., 86 Ill. 2d 431, 427 N.E.2d 1203, 1208, 56 Ill. Dec. 657 (Ill. 1981). The Seventh Circuit has allowed personal jurisdiction under the conspiracy theory as long as there is 1) an actionable conspiracy and 2) a substantial act in the furtherance of the conspiracy that takes place in Illinois. Textor v. Board of Regents, 711 F.2d 1387, 1393 (7th Cir. 1983).
First, there is no actionable conspiracy here. A "civil conspiracy is an agreement of two or more people to commit an unlawful act, or to inflict a wrong against another, and an overt act that results in damages." Old Sec. Life Ins. Co. v. Continental Ill. Nat'l Bank, 740 F.2d 1384, 1397 (7th Cir. 1984). Conspiracy alleging a tort as the underlying wrongful act is actionable, as long as it includes additional defendants or new facts not already pled in the underlying tort. Thermodyne Food Serv. Prods., Inc. v. McDonald's Corp., 940 F. Supp. 1300, 1310 (N.D. Ill. 1996)(allowing conspiracy to tortiously interfere with a contract to proceed, even though the same underlying tort had been pled, because it added a new defendant). It is necessary to add new defendants or facts, because unlike criminal law, tort law "does not punish 'inchoate,' which is to say purely preparatory, conduct. . . ." Cenco Inc. v. Seidman & Seidman, 686 F.2d 449, 453 (7th Cir.), cert. denied, 459 U.S. 880, 74 L. Ed. 2d 145, 103 S. Ct. 177 (1982). As a result, civil conspiracy requires damages. Id. Therefore, unless the plaintiff adds another defendant or new facts, a conspiracy count would merely result in another attempt to recover the same damages. See Id. (holding that district court could properly dismiss conspiracy count since damages were already covered in underlying tort). Here, there is no actionable conspiracy, because Real Colors does not allege any new facts or bring in any new defendants through its charge of conspiracy.
Because there is no actionable conspiracy, it is not necessary to address the second question -- whether a substantial act in the furtherance of this alleged conspiracy occurred in Illinois.
Therefore, Real Colors does not meet its burden of showing a prima facie case for personal jurisdiction under the conspiracy theory.
D. Section 5/2-209(c) and Due Process
Section 5/2-209(c) reads: "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 ILL. COMP. STAT. 5/2-209(c)(West 1997). This provision now makes the long arm statute "coextensive" with Illinois and federal due process requirements. Klump, 71 F.3d at 1371.
Illinois courts "have given little guidance as to how state due process  differs from federal [due process]. . . ." RAR, 107 F.3d at 1276. The Illinois Supreme Court has stated that "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 v. Ellwood, 141 Ill. 2d 244, 565 N.E.2d 1302, 1316, 152 Ill. Dec. 384 (Ill. 1990). However, "beyond this . . . [there is] scant case law with which to work." RAR, 107 F.3d at 1276.
Because of the limited case law on the Illinois due process requirement for personal jurisdiction, the Court will focus on federal due process. To satisfy the federal due process requirement, this Court can exercise jurisdiction over Isochem only if Isochem had sufficient "minimum contacts" with Illinois, and if exercising such jurisdiction would 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)). In order to meet the requirement for minimum contacts, Isochem must have "purposefully availed 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, 2 L. Ed. 2d 1283, 78 S. Ct. 1228 (1958). To determine whether Isochem purposefully availed itself to Illinois, the Court must consider whether Isochem's connections with Illinois were enough that it should have "reasonably anticipated being haled into court [here]." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 62 L. Ed. 2d 490, 100 S. Ct. 559 (1980).
The mere fact that one party to a contract is a resident of the forum state does not, by itself, establish minimum contacts. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478, 85 L. Ed. 2d 528, 105 S. Ct. 2174 (1985). In Burger King, the defendant entered into a franchise contract with a plaintiff that had its headquarters in Florida. Id. at 466. Although the defendant never traveled to Florida, his partner did. Id. Noting that the contract contained a provision choosing Florida's laws to govern the contract, the Supreme Court held that, by signing the contract, the defendant had purposefully availed himself of the benefits and protections of Florida law. Burger King, 471 U.S. at 479-82. Thus, the Supreme Court held that the defendant had established minimum contacts, and personal jurisdiction over him could be constitutionally exercised. Id. at 486.
Here, Isochem has not purposefully availed itself of the benefits of Illinois law. No agent of Isochem's was ever sent to Illinois, and there was no mention of Illinois law in the contract between Isochem and Real Colors. The mere mailing of payments to Illinois, along with the one telephone call made in May of 1996, are not enough to establish minimum contacts. See Lakeside Bridge & Steel Co. v. Mountain State Constr. Co., Inc., 597 F.2d 596, 598-99, 603 (7th Cir. 1979)(defendant did not purposefully avail itself by sending purchase orders, other mail, and making telephone calls during contract negotiations), cert. denied, 445 U.S. 907, 63 L. Ed. 2d 325, 100 S. Ct. 1087 (1980); see also Telco Leasing, Inc. v. Marshall County Hosp., 586 F.2d 49, 51 (7th Cir. 1978)(no minimum contacts where everything was done outside Illinois, except that payments and copies of the contract were sent to Illinois). Thus, it would be unconstitutional to exercise jurisdiction over Isochem.
Real Colors has failed to meet its burden of establishing a prima facie case for personal jurisdiction, hence this Court lacks personal jurisdiction over Isochem.
IT IS THEREFORE ORDERED that:
Defendant Isochem Colors, Inc.'s Motion to Dismiss for Lack of Personal Jurisdiction and Improper Venue or, in the Alternative, for a Change of Venue be, and the same hereby is, GRANTED IN PART, and DENIED IN PART.
Accordingly, IT IS FURTHER ORDERED that:
Defendant Isochem be, and hereby is, dismissed from this lawsuit.
DATED: July 25, 1997
United States Magistrate Judge