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BANWELL v. ILLINOIS COLLEGE OF OPTOMETRY

December 4, 1997

BOYD B. BANWELL, Plaintiff,
v.
ILLINOIS COLLEGE OF OPTOMETRY, an Illinois not-for-profit corporation, and JOHN E. BRANDT, individually, Defendants.



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, SR., District Judge:

 Before the court is Defendant John E. Brandt's Motion to Dismiss Count Five of Plaintiff Boyd D. Banwell's Complaint for lack of personal jurisdiction, pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. For the following reasons, the motion is denied.

 I. BACKGROUND

 Plaintiff Boyd B. Banwell ("Banwell") was the president of the Illinois College of Optometry ("ICO") from 1982 until April 1, 1996. In the summer of 1995, negative press reports surfaced about ICO and Banwell, and in particular, about the financial management of ICO. To determine the credibility of these reports, the ICO Board of Trustees ("the Board") hired outside legal and accounting experts to conduct an independent investigation. After the investigation allegedly revealed that Banwell had obtained unauthorized payments from ICO, the Board requested that Banwell repay those amounts. Shortly thereafter, on April 1, 1996, Banwell resigned under pressure from the Board.

 While the Board sought a replacement, it installed a "Presidential Management Team" ("the Team"), which consisted of three Board members authorized to operate ICO and assume the duties of the president on an interim basis. One of the Team members was Defendant John E. Brandt ("Brandt"), who was also serving as Chairman of the Board at the time.

 On June 16, 1997, Banwell filed a five-count diversity action against ICO and Brandt, individually. *fn2" 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).

 II. DISCUSSION

 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 *fn3" 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 ...


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