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CHUNG v. TAROM

January 21, 1998

DANIEL L. CHUNG, Personal Representative and Independent Administrator of the Estate of THERESE C. CHUNG, Deceased, Plaintiff,
v.
TAROM, S.A.; TRANSPORTURI AERIENE ROMANE; TAROM ROMANIAN AIR TRANSPORT; TAROM AIRLINES; AIRBUS INDUSTRIE; AIRBUS INDUSTRIE OF NORTH AMERICA; AIRBUS SERVICES COMPANY, INC.; GIE AIRBUS INDUSTRIE; SWISSAIR AIR TRANSPORT CO., LTD.; SWISSAIR GROUP; SWISSAIR AIRLINES; SWISSAIR ENGINEERING AND MAINTENANCE; DELTA AIRLINES, INC.; UNITED TECHNOLOGIES CORPORATION, d/b/a PRATT AND WHITNEY; PRATT AND WHITNEY GROUP / COMMERCIAL ENGINE BUSINESS; and PRATT AND WHITNEY, Defendants.



The opinion of the court was delivered by: GETTLEMAN

 Plaintiff Daniel L. Chung brings the instant action against various entities. The action arises out of the crash of a Tarom Airlines airplane ("the airplane") on March 31, 1995, near Bucharest, Romania, which killed all of the passengers and crew aboard, including plaintiff's wife, Therese C. Chung. A motion to quash service of process filed by defendant Airbus Industrie GIE ("GIE") (incorrectly sued as "Airbus Industrie" and/or "GIE Airbus Industrie") is presently before the court.

 BACKGROUND

 Plaintiff filed his complaint in the Circuit Court of Cook County, Illinois. The complaint names as defendants GIE, Airbus Industrie of North America ("AINA"), and Airbus Services Company, Inc. ("ASCO"), among others. GIE is the French manufacturer of the airplane. GIE's principal place of business is in Blagnac, France. AINA and ASCO are corporate subsidiaries of GIE. Both AINA and ASCO are incorporated in Delaware and have their principle places of business in Virginia.

 At the time plaintiff filed his complaint, summonses were issued for all defendants, including AINA and ASCO. Affidavits of Service were subsequently returned to plaintiff's counsel indicating that AINA and ASCO had been served by personal service of the complaint by the Sheriff of Fairfax County upon Clyde Kizer -- the president of ASCO -- in Herndon, Virginia on April 15, 1997. ASCO was also served by a private process server in New York, New York on April 11, 1997. In addition, plaintiff sent a summons and a copy of the complaint directly to GIE at its address in Blagnac, France via international mail delivery. GIE received the summons and complaint on or about May 7, 1997. The summons and complaint were not translated into French.

 AINA and ASCO removed the case to this court on April 24, 1997, and subsequently filed answers to plaintiff's complaint. Plaintiff did not seek remand. Thereafter, GIE filed a motion to quash service of process or, in the alternative, dismiss for lack of jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2)(4) and (5). GIE has withdrawn the portion of its motion relating to personal jurisdiction, leaving only the issue of service of process.

 DISCUSSION

 Because plaintiff has attempted to serve process on GIE under the Illinois service of process rules, as allowed by Fed. R. Civ. P. 4(e) and (h), *fn1" the court must determine whether plaintiff has complied with Illinois law. *fn2" Akari Imeji Co. v. Qume Corp., 748 F. Supp. 588, 590 (N.D. Ill. 1990); Geick v. American Honda Motor Co., 117 F.R.D. 123, 125 (C.D. Ill. 1987). Under 735 ILCS § 5/2-204, "a private corporation may be served (1) by leaving a copy of the process with its registered agent or any officer or agent of the corporation found anywhere in the State; or (2) in any other manner now or hereafter permitted by law." The parties agree that neither AINA nor ASCO is a "registered agent" or "officer" of GIE. Accordingly, the issue before the court is whether AINA or ASCO may be deemed to be the "agent" of GIE for the purpose of service under § 2-204. Plaintiff bears the burden of establishing this agency relationship. Akari Imeji, 748 F. Supp. at 591.

 Clearly, "the mere existence of a parent-subsidiary relationship is insufficient to establish the close ties necessary for a subsidiary to be deemed a parent's agent for the service of process." Wissmiller v. Lincoln Trail Motosports, Inc., 195 Ill. App. 3d 399, 552 N.E.2d 295, 298, 141 Ill. Dec. 927 (Ill. App. Ct. 1990). On the other hand, a plaintiff need not show that the two corporations are essentially one or that the subsidiary is an alter ego or a mere department of the parent. Id. In other words, there is no bright-line test for determining how much control a foreign parent corporation must have over its domestic subsidiary before the subsidiary will be deemed its agent for purposes of service of process under Illinois law. Illinois cases have instead established a list of factors which courts may consider. Factors considered in various Illinois cases, as collected by the court in Akari Imeji Co. v. Qume Corp., 748 F. Supp. 588, 592-93 (N.D. Ill. 1990), include whether:

 
(1) the subsidiary was established and wholly owned by the parent;
 
(2) the parent paid the salaries of the subsidiary's directors;
 
(3) the parent guaranteed the subsidiary's lease;
 
(4) the subsidiary's sole business was the sale of parts ...

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