as alleging that plaintiff had a reasonable
expectation of a future relationship with the Foundation, the claim
nevertheless fails: plaintiff has not alleged any basis whatever for his
expectation of a future relationship with the Foundation. See Williams,
145 Ill.App.3d at 569, 99 Ill.Dec. 412, 495 N.E.2d 1147 ("[T]he mere hope
of continued employment, without more, does not . . . constitute a
reasonable expectancy as must exist to state a cause of action for
tortious interference"). Therefore, count VI(D) against the individual
SABIS defendants is dismissed.
X. RETALIATORY DISCHARGE
The individual SABIS defendants, the Foundation, and the individual
Foundation defendants move to dismiss count VI(F), which alleges that
"defendants" wrongfully discharged plaintiff for his objections to
SABIS's illegal practices, in violation of Illinois public policy.
A. Individual SABIS and Foundation Defendants
The individual defendants argue that plaintiff may bring a claim for
retaliatory discharge only against his employer. Illinois courts
recognize the tort of retaliatory discharge as a narrow exception to the
general rule that an employer may discharge an at-will employee for any
or no reason. See Buckner v. Atlantic Plant Maintenance Inc.,
182 Ill.2d 12, 17, 230 Ill.Dec. 596, 694 N.E.2d 565 (Ill. 1998). The
Illinois Supreme Court held recently that the "only proper defendant in a
retaliatory discharge action is the plaintiff's former employer."
Buckner, 182 Ill.2d at 22, 230 Ill.Dec. 596, 694 N.E.2d 565. That is, a
retaliatory discharge action may not be brought against an "employee or
agent of [plaintiffs] former employer who effected the discharge on
behalf of the employer." Id. at 16, 230 Ill.Dec. 596, 694 N.E.2d 565.
Applying Buckner, to the extent that count VI(F) names individual SABIS
and Foundation defendants,*fn5 it is dismissed as to the individual
B. The Foundation
Likewise, because the court has already concluded that the exhibits to
the complaint demonstrate that the Foundation was not plaintiffs
employer, count VI(F) against the Foundation is dismissed.
X. PERSONAL JURISDICTION
Defendants Reddick and Schulz have filed a motion under Fed.R.Civ.P. 12
(b)(2) to dismiss for lack of personal jurisdiction. Reddick is SABIS's
General Counsel. Schulz is SABIS's Vice President/Business Development.
Reddick and Schulz are named defendants in six of plaintiffs 13 causes of
action: § 1981; § 1985; § 1983; tortious interference with
contract; tortious interference with prospective business advantage; and
wrongful discharge. The court has already dismissed all counts against
Schulz, and all counts against Reddick except § 1981. Therefore, the
only personal jurisdiction question remaining to address is whether the
court has personal jurisdiction over defendant Reddick with respect to
plaintiffs § 1981 count.
According to his affidavit, Reddick has no independent contacts with
the state of Illinois apart from his duties on behalf of SABIS: he is a
Minnesota resident; works at the SABIS office in Minnesota; owns no
property in Illinois; pays no taxes to Illinois taxing authorities; and
conducts no business in Illinois independent of his activities as SABIS
General Counsel. In addition, Reddick claims that he performed the acts
in question "at the direction of Ralph Bistany." Accordingly, Reddick
argues that it would violate Illinois due process for this court to
exercise jurisdiction over him.
On a motion to dismiss, the plaintiff has the burden to make a prima
facie showing that personal jurisdiction exists. See Michael J. Neuman &
Associates, Ltd. v. Florabelle Flowers, Inc., 15 F.3d 721, 724 (7th Cir.
1994). The court accepts all wellpleaded facts in plaintiff's complaint
as true unless controverted by defendant's affidavits, see Turnock v.
Cope, 816 F.2d 332, 333 (7th Cir. 1987), and resolves conflicts between
the affidavits in plaintiff's favor. See id.
This court has jurisdiction over a nonconsenting, non-resident
defendant only if an Illinois state court would have jurisdiction. See
McIlwee v. ADM Industries, Inc., 17 F.3d 222, 223 (7th Cir. 1994). An
Illinois state court has jurisdiction if jurisdiction comports with the
Illinois and the United States Constitutions. See RAR v. Turner Diesel,
Ltd., 107 F.3d 1272, 1276 (7th Cir. 1997).*fn6
Personal jurisdiction must comply with the Illinois Constitution, or
more specifically, Illinois due process. While the Illinois Supreme Court
has offered little guidance as to how state due process differs from
federal due process in the personal jurisdiction context, it 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, 275, 152 Ill.Dec. 384,
565 N.E.2d 1302 (Ill. 1990). Reddick argues that it would violate
Illinois due process to require him to defend an action in Illinois for
events arising out of his activities as an agent of SABIS and on SABIS's
behalf. Specifically, he argues that the "fiduciary shield" doctrine
prevents this court from exercising jurisdiction over him.
In certain circumstances, Illinois due process mandates a "fiduciary
shield" defense to personal jurisdiction as a matter of law. See
Rollins, 141 Ill.2d at 280, 152 Ill.Dec. 384, 565 N.E.2d 1302. 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 principal." Rice v. Nova
Biomedical Corp., 38 F.3d 909, 912 (7th Cir. 1994). The rationale
underlying the doctrine is that, "[i]t is unfair and unreasonable . . .
to assert personal jurisdiction over an individual who [sought] the
protection and benefits of Illinois law, not to serve his personal
interests, but to serve those of his employer or principal." Rollins, 141
Ill.2d at 280, 152 Ill.Dec. 384, 565 N.E.2d 1302.
There are two important limitations to the shield: (1) the shield is
removed if the individual's personal interests motivated his actions, see
Rice, 38 F.3d at 912; and (2) the shield generally does not apply when
the individual's actions are discretionary. See Brujis v. Shaw,
876 F. Supp. 975, 978 (N.D.Ill. 1995). As noted, the fiduciary shield
denies personal jurisdiction if the individual's actions were "solely on
behalf of his employer." Rice, 38 F.3d at 912. If the individual "was
acting also on his own behalf — to serve his personal interests,"
the shield does not apply. Id. (emphasis added). The personal interests
need not be pecuniary — they may be dislike or malice towards the
plaintiff. See id.; Roy v. Austin Co., 1994 U.S.Dist. LEXIS 16254 at *6-7
(N.D.Ill. 1994) (holding, on a motion to dismiss, that plaintiffs
allegation that defendant's actions were "without justification based on
the legitimate business interests of [the employer], and were performed
maliciously" was sufficient to prove actions taken to serve personal
interests). However, a
defendant who dislikes or acts maliciously towards a plaintiff will not
necessarily lose the fiduciary shield. Instead, the dislike must "have
created or exacerbated the harm to the [plaintiff]." Rice, 38
F.3d at 912.
The complaint alleges that Reddick's actions were "willful, malicious'
or with wanton disregard for Plaintiffs rights." However, nothing in the
complaint infers that Reddick's actions toward plaintiff created or
exacerbated the harm toward plaintiff. To the contrary, the allegations
suggest that Reddick was merely carrying out Ralph "Bistany's order to
terminate plaintiff. Moreover, Reddick stated in his affidavit that his
actions were "at the direction of Mr. Ralph Bistany." Plaintiff has
failed to submit affidavits contradicting this statement.
The "discretion" factor also supports application of the fiduciary
shield in this case. The shield generally should not apply where the
"employee has the power to decide what is to be done and chooses to
commit the acts that subject him to long-arm jurisdiction." Brujis v.
Shaw, 876 F. Supp. 975, 978 (N.D.Ill. 1995); see also Ruca Hardware,
Ltd. v. Chien, 1994 WL 548196 at 7, 1994 U.S.Dist. LEXIS 14064 at *12
(N.D.Ill. 1994). In establishing the fiduciary shield doctrine in
Rollins, the Illinois Supreme Court suggested that the element of
compulsion involved in an employee's contacts with Illinois made it
unfair to assert jurisdiction over him later. See Rollins, 141 Ill.2d at
279-80, 152 Ill. Dec. 384, 565 N.E.2d 1302. Rollins involved a wrongful
arrest suit brought against a Baltimore, Maryland officer who effectuated
an arrest in Illinois. Stressing the absence of discretion in that case,
the Supreme Court stated:
Because [the police officer'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.... In
practical terms, an employee, especially one in [the
police officer's] position, has little or no
alternative besides unemployment when ordered to enter
another State to carry out the wishes of his
"Similar to Rollins, the complaint and Reddick's affidavits establish
that Ralph Bistany compelled Reddick to terminate plaintiff. Plaintiff
alleges nothing to suggest that Reddick had any discretion whether or not
to execute Bistany's directive.
For the foregoing reasons, the court concludes that the fiduciary
shield doctrine bars the court's jurisdiction over Reddick. Accordingly,
Reddick is dismissed as a defendant in this action.
SABIS's motion to dismiss counts V(C), V(E), VI(C), and VI(E) is
granted. SABIS's motion to dismiss counts V(B) is denied. The individual
SABIS defendants' motion to dismiss counts V(B), V(C), V(E), VI(F),
VI(C), VI(E) and VI(F) is granted. The Foundation's motion to dismiss
counts V(A), V(B), V(C), V(E), V(F), VI(C), VI(E) and VI(F) is granted.
The individual Foundation defendants' motion to dismiss counts V(C),
V(E), VI(C), VI(E) and VI(F) is granted. The individual Foundation
defendants' motion to dismiss count V(B) is granted with respect to
defendant Murphy and is denied with respect to defendant Livney.
Defendant Schulz' motion to dismiss for lack of personal jurisdiction is
denied as moot. Defendant Reddick's motion to dismiss for lack of
personal jurisdiction is granted. Plaintiff is ordered to file a second
amended complaint conforming to this opinion on or before May 19, 1999.
The complaint should set forth the claims in numbered sections (as
opposed to federal and state categories as in the original and amended
complaints). In addition, each claim should separately identify which
defendants are named. The remaining defendants shall respond to the
second amended complaint on or before June 9, 1999. This matter is set
for a report on
status June 22, 1999, at which time the parties are directed to present
a proposed joint, definitive discovery plan.