The opinion of the court was delivered by: Alesia, District Judge.
MEMORANDUM OPINION AND ORDER
Before the court is defendants' motion to dismiss plaintiff's first
amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(2)
and 12(b)(3) or, in the alternative, to transfer venue pursuant to
28 U.S.C. § 1404 (a). For the reasons that follow, the court grants
defendants' motion to dismiss.
Defendants William T. Juliano and William J. Juliano (collectively
"defendants") own and operate a Days Inn Hotel, pursuant to a franchise
agreement, in Mount Laurel, New Jersey. Defendants both reside in New
Jersey. Plaintiff Luxury Commercial Bath Systems ("plaintiff') is a
corporation located in Chicago Ridge, Illinois.
In or about June of 1998, plaintiff contacted William T. Juliano in New
Jersey in an effort to solicit defendants' business for the sale and
installation of bathroom-related items in defendants' hotel. After
receiving plaintiff's telephone call, defendants returned that call and
requested a written proposal for the delivery and installation of
bathroom-related items in defendants' New Jersey hotel. Plaintiff then
sent a hard-copy of this proposal to defendants in New Jersey. On or
about January 12, 1999, while in New Jersey, defendants executed this
agreement with plaintiff.
Pursuant to this agreement, plaintiff manufactured bathtub enclosure
units for shipment to New Jersey. The units were delivered to defendants'
hotel in Mount Laurel, New Jersey, where plaintiff or its agent was to
install them. Plaintiff, or plaintiff's agent, was only able to install a
portion of the bathtub enclosure units before a fire, causing extensive
damage to defendants' hotel, occurred. However, plaintiff or its agent
remain ready, willing and able to complete the contract. (P1.
Compl.¶ 6.) Thus, plaintiff claims that it is entitled to full
payment under the contract, in the amount of $168,446.85. (P1.
Compl.¶¶ 4, 8.)
In their motion to dismiss, defendants allege that this fire was caused
by plaintiff or plaintiff's agent during the installation of the bathtub
units. (Defs.Mem. in Support of Mot. to Dismiss at 3.) According to
defendants, the fire started when plaintiff or plaintiffs agent dropped a
tool down a hollow wall. (Id.) This tool hit wires located within the
wall and caused sparks to ignite. (Id.) Defendants argue that this fire
— allegedly caused by plaintiff or plaintiff's agent — serves
as a defense to the contract claim and as an independent counterclaim
In a case based upon diversity of citizenship, a federal court sitting
in Illinois has personal jurisdiction over a nonresident defendant only
if an Illinois court would have jurisdiction. RAR, Inc. v. Turner Diesel
Ltd., 107 F.3d 1272, 1275 (7th
Cir. 1997); Daniel J. Hartzoig Assoc., Inc. v. Kanner,
913 F.2d 1213, 1216 (7th Cir. 1990). Under Illinois law,
the plaintiff bears the burden of establishing personal jurisdiction.
RAR, 107 F.3d at 1276 (citing Mcllwee v. ADM Indus. Inc., 17 F.3d 222,
223 (7th Cir. 1994)). In deciding a motion to dismiss for lack of
personal jurisdiction, the court may receive and consider affidavits from
both parties. Turnock v. Cope, 816 F.2d 332, 333 (7th Cir. 1987). The
court resolves factual disputes in the pleadings and affidavits, but
takes as true those facts contained in defendant's affidavits that remain
unrefuted by the plaintiff. Boese v. Paramount Pictures Corp., No. 93 C
5976, 1994 WL 484622, *2 (N.D.Ill. Sept. 2, 1994).
Illinois authorizes personal jurisdiction to the limit allowed under
the due process clauses of the Illinois and United States Constitutions.
RAR, 107 F.3d at 1276-77; Dehmlow v. Austin Fireworks, 963 F.2d 941, 945
(7th Cir. 1992) (explaining that the amendment of the Illinois long-arm
jurisdictional statute collapsed the statutory part of the personal
jurisdiction analysis into one, constitutional inquiry). Thus, the
inquiry is whether personal jurisdiction is permitted by (1) the due
process clause of the Illinois Constitution and (2) the Due Process Clause
of the Fourteenth Amendment of the Constitution of the United States.
RAR, 107 F.3d at 1276. If jurisdiction is improper under either
constitution, the court cannot exercise jurisdiction over the defendant.
Glass v. Kemper Corp, 930 F. Supp. 332, 338 (N.D.Ill. 1996).
The Illinois Constitution contains a guarantee of due process that is
separate and independent from the federal due process clause. Under the
Illinois Constitution's guarantee of due process, "[j]urisdiction 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, 152 Ill.Dec. 384, 565 N.E.2d 1302, 1316 (199k)).
Unfortunately, with respect to personal jurisdiction, the Illinois courts
have given little guidance as to how Illinois due process differs from
federal due process.
Some Illinois courts have upheld personal jurisdiction — under
the Illinois Constitution's due process clause — "over a
non-resident corporate purchaser engaged in a commercial relationship
with an Illinois corporation through the placing of purchase orders to
the plaintiff in Illinois for products manufactured in Illinois." RAR,
107 F.3d at 1276 (citing Autotech Controls Corp. v. K.J. Elec. Corp., 256
Ill, App.3d 721, 195 Ill.Dec. 526, 628 N.E.2d 990, 995-96 (1993)). On the
other hand, some Illinois courts have found that merely entering into a
contract with an Illinois resident is not enough to subject the
nonresident party to personal jurisdiction in Illinois. Melton First
United Leasing v. Hansen, 301 Ill. App.3d 1041, 235 Ill.Dec. 508,
705 N.E.2d 121, 127 (1998) (finding that nonresident defendant was not
subject to personal jurisdiction in Illinois because defendant (1)
executed the contracts and obtained and used the equipment in
California; (2) never came to Illinois; and (3) only had contact with
Illinois through correspondence). In this case, defendants entered into a
contract with an Illinois resident, after the Illinois resident solicited
the defendants' business. Second, defendants obtained and used the
equipment in New Jersey. Finally, defendants did not travel to Illinois,
but dealt with plaintiff only by telephone, fax, or mail. Thus, it
appears that defendants are not subject to personal jurisdiction under the
Illinois due ...