general press release, that would provide a limited explanation of the circumstances surrounding Banwell's departure. In May 1996, the Team unanimously approved a final version of the public statements and, with the support of the Board, issued them. As Chairman of the Board, Brandt's signature appeared on the letter to the interested parties, and several quotes regarding Banwell's resignation were attributed to Brandt in the general press release.
On June 16, 1997, Banwell filed a five-count diversity action against ICO and Brandt, individually.
In Count Five of his Complaint, Banwell alleges that ICO and Brandt, individually, defamed him by making false and malicious public statements about his resignation. Brandt, an Indiana resident, now moves to dismiss Count Five for lack of personal jurisdiction. He argues that his actions do not subject him to personal jurisdiction in Illinois because they were performed in his representative capacity, and thus, under the protection of the fiduciary shield doctrine.
In an affidavit accompanying his motion, Brandt affirms that he has "had no personal contacts in the State of Illinois at any relevant time. My only contacts have been those related to my service on both the Board and the Management Team, and those related to my employment as an agent for my current employer." (Brandt Aff. at P5).
A plaintiff bears the burden of proving facts sufficient to establish personal jurisdiction. RAR, Inc. v. Turner Diesel Ltd., 107 F.3d 1272, 1276 (7th Cir. 1997). When determining whether it has jurisdiction over a defendant, the court can both consider and weigh affidavits submitted by the parties, Kontos v. U.S. Dept. of Labor, 826 F.2d 573, 576 (7th Cir. 1987), but must accept as true all undenied factual allegations and interpret all disputed facts in favor of the party asserting jurisdiction. Saylor v. Dyniewski, 836 F.2d 341, 342 (7th Cir. 1988).
In a diversity action, the court will have personal jurisdiction over a non-consenting, nonresident defendant only if an Illinois state court would have jurisdiction. McIlwee v. ADM Industries, Inc., 17 F.3d 222, 223 (7th Cir. 1994). In determining whether a state court would have jurisdiction, a federal court must make a three-part inquiry: "(1) state statutory law, (2) state constitutional law, and (3) federal constitutional law." RAR, Inc., 107 F.3d at 1276.
The statute that allegedly provides jurisdiction in this case is Illinois' long-arm statute because: (1) Brandt allegedly transacted business in Illinois, 735 ILCS 5/2-209(a)(1); (2) Brandt's allegedly tortious act occurred in Illinois, 735 ILCS 5/2-209(a)(2); and (3) Brandt is a director
of an Illinois corporation, 735 ILCS 5/2-209(a)(12). As a practical matter, however, Subsection (c) of Illinois' long-arm statute subsumes the enumerated acts of subsection (a) by granting jurisdiction "on any . . . basis now or hereafter permitted by the Illinois Constitution and the Constitution of the United States." 735 ILCS 5/2-209(c) (1997). Therefore, "the three inquiries mentioned above collapse into two constitutional inquiries--one state and one federal." RAR, Inc., 107 F.3d at 1276.
Federal due process demands that an Illinois court exercise jurisdiction 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); Neuman & Assocs. v. Florabelle Flowers, 15 F.3d 721, 725 (7th Cir. 1994). The defendant must purposefully avail itself of the rights and privileges of conducting activities in the forum state such that it invokes the benefits and protections of that forum's law. Hanson v. Denckla, 357 U.S. 235, 253, 2 L. Ed. 2d 1283, 78 S. Ct. 1228 (1958). In other words, the defendant's activities must be of the quality and nature that it would reasonably anticipate being haled into that jurisdiction's court. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 287, 62 L. Ed. 2d 490, 100 S. Ct. 559 (1980). Due process also requires that the action arise from, or at least relate to, the defendant's contacts with the forum state, and that the defendant's relationship with the forum must not be "random, fortuitous, or attenuated." Burger King Corp v. Rudzewicz, 471 U.S. 462, 472, 475-76, 85 L. Ed. 2d 528, 105 S. Ct. 2174 (1985).
"The doctrine of constitutional avoidance counsels that 'federal courts should avoid addressing federal constitutional issues when it is possible to dispose of a case on pendent state grounds,'" RAR, Inc., 107 F.3d at 1276 (citation omitted). In any event, Brandt does not challenge the exercise of personal jurisdiction over him on federal constitutional grounds. Thus, the court will only address whether the exercise of personal jurisdiction over Brandt meets the due process guarantees of the Illinois Constitution.
Though "the Illinois Supreme Court has made clear that the Illinois due process guarantee is not necessarily co-extensive with federal due process protections. . . . Illinois courts have given
little guidance as to how state due process protection differs from federal protection in the context of personal jurisdiction." Id. Nevertheless, the Illinois Supreme Court has explained 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 (1990).
"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." Glass v. Kemper Corp., 930 F. Supp. 332, 340 (N.D. Ill. 1996). In general, the fiduciary shield doctrine "denies personal jurisdiction over an individual whose presence and activity in the state in which the suit is brought were solely on behalf of his employer or other principal." Rice v. Nova Biomedical Corp., 38 F.3d 909, 912 (7th Cir. 1994) (citation omitted). However, at least one court has stated that "no single factor is determinative. Rather, the test is whether, on the basis of the defendant's conduct in Illinois or acts affecting Illinois interests, it would be fair to require him to defend an action in Illinois." Brujis v. Shaw, 876 F. Supp. 975, 980 (N.D. Ill. 1995). In any event, "the doctrine is usually said to be discretionary or 'equitable,' rather than absolute, an entitlement." Rice, 38 F.3d at 914 (citation omitted).
The Illinois Supreme Court first recognized the fiduciary shield doctrine in Rollins v. Ellwood, 141 Ill. 2d 244, 565 N.E.2d 1302, 1314, 152 Ill. Dec. 384 (1990). In Rollins, Ellwood, a Baltimore police officer, traveled to Illinois to assume custody over an alleged fugitive captured in Illinois and wanted in Maryland. Unfortunately, the alleged fugitive ("Rollins") was the victim of mistaken identity. However, the mistaken identity was not discovered until after Rollins had spent several weeks in jail and Ellwood had taken custody of him for the trip back to Baltimore. After his release, Rollins sued Ellwood and the City of Baltimore in Illinois. In finding that the fiduciary shield doctrine protected Ellwood from the jurisdiction of Illinois courts, 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.