United States District Court, Northern District of Illinois, Eastern Division
October 29, 2001
DRIVECON CORPORATION, PLAINTIFF,
HOIST & CRANE SERVICE GROUP, ETC., DEFENDANT.
The opinion of the court was delivered by: Milton I. Shadur, United States District Judge.
MEMORANDUM OPINION AND ORDER
This major commercial dispute between Drivecon Corporation ("Drivecon")
and Hoist & Crane Service Group, a Division of Plant Mechanical
Services, Inc. ("Plant Mechanical"), has not yet left the starting blocks
because of the ongoing skirmishes between the litigants over the location
of the turf where their battle must ultimately be waged. Initially Plant
Mechanical was unsuccessful in resisting Drivecon's Fed. R. Civ. P.
("Rule") 12(b)(2) motion to dismiss the action that had earlier been
filed by Plant Mechanical in the United States District Court for the
District of Louisiana. Now Plant Mechanical has in turn sought
dismissal, on like lack-of-personal-jurisdiction grounds, of this action
brought against it by Drivecon. For the reasons stated in this memorandum
opinion and order, Plant Mechanical loses on the current motion as well.
It is hardly necessary to state the obvious: Cases dealing with the
statutory and constitutional reach of such long arm statutes as the
Illinois version (735 ILCS 5/2-209) range all over the lot. Over 15 years
ago this Court attempted the near-impossible task of reconciling the
Illinois caselaw on the subject in Club Assistance Program, Inc. v.
Zukerman, 594 F. Supp. 341 (N.D. Ill. 1984). And because Club Assistance
was only an effort to carry out the Erie v. Tompkins mandate of mirroring
state law in an area where the mirror was extraordinarily cloudy, it came
as a total surprise when a few years later an Illinois Appellate Court
chose to endorse the Club Assistance opinion as an accurate statement of
one of the operative long-arm principles (Arthur Young & Co. v. Bremer,
197 Ill. App.3d 30, 36, 554 N.E.2d 671, 676 (1st Dist. 1990)).*fn1 Be
that as it may, the ensuing Illinois decisions have continued to send out
almost hopelessly mixed signals.
This Court has reviewed each party's current presentation with care,
and there is no question that Plant Mechanical's position has much
force: None of its people has ever set foot in Illinois, and its
"contacts" with this state have uniformly been at a far remove from this
jurisdiction in physical terms. But what emerges from the welter of
detail about what Plant Mechanical has or has not done that could or
could not support haling it into court here*fn2 is the fact that its
activities outside the state clearly subject it to jurisdiction here
under Illinois cases that are exemplified by Ruprecht Co. v. Sysco Food
Servs. of Seattle, Inc., 309 Ill. App.3d 113, 121-22, 722 N.E.2d 694,
700-01 (1st Dist 1999)
As Ruprecht and like cases have held, an out-of-state purchaser that
might otherwise claim insulation from the assertion of personal
jurisdiction in Illinois under the principles stated in Giotis v. Apollo
of the Ozarks, Inc., 800 F.2d 660, 666-67 (7th Cir. 1986) cannot advance
that position successfully where that purchaser has itself tailored and
dictated the specifications for its purchases from the Illinois seller.
Moreover, that proposition applies with special force where there has
been an ongoing course of conduct of that type between the parties (in
that respect see, e.g., G.M. Signs, Inc. v. Kirn Signs, Inc.,
231 Ill. App.3d 339, 343-45, 596 N.E.2d 212, 215 (2d Dist. 1992)). Those
lines of cases articulate the "active purchaser" v. "passive purchaser"
dichotomy that Illinois courts have consistently set out as the predicate
for exercising jurisdiction over purchasers in the "active" category
— a category into which Plant Mechanical falls.
There is no suggestion that the just-described Illinois doctrine
overreaches the permitted scope of a long arm statute in due process
terms. That being the case, the just-discussed Illinois caselaw
controls, and Plant Mechanical's Rule 12(b)(2) motion to dismiss is
denied. It is (at last) ordered to file its Answer to Drivecon's
Complaint on or before November 9, 2001.