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Viktron Ltd. Partnership v. Program Data Inc.

November 14, 2001

VIKTRON LIMITED PARTNERSHIP, PLAINTIFF-APPELLANT,
v.
PROGRAM DATA INCORPORATED, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Du Page County. No. 99--L--0423 Honorable James W. Jerz, Judge, Presiding.

The opinion of the court was delivered by: Justice Grometer.

Ordered published January 2, 2002.

VIKTRON LIMITED PARTNERSHIP, PLAINTIFF-APPELLANT,
v.
PROGRAM DATA INCORPORATED, DEFENDANT-APPELLEE.

Appeal from the Circuit Court of Du Page County. No. 99--L--0423 Honorable James W. Jerz, Judge, Presiding.

The opinion of the court was delivered by: Justice Grometer.

Plaintiff, Viktron Limited Partnership (Viktron), appeals the decision of the circuit court of Du Page County dismissing its action against defendant, Program Data Incorporated (PDI), pursuant to section 2--619 of the Civil Practice Law (735 ILCS 5/2--619 (West 2000)). The trial court concluded that it lacked personal jurisdiction over PDI, basing this decision both upon Illinois' long-arm statute (735 ILCS 5/2--209 (West 2000)) and due process concerns (see U.S. Const., amend. V; Ill. Const. 1970, art. I, §2). The sole issue raised in this appeal is whether the trial court correctly determined that Illinois could not assert in personam jurisdiction over PDI. For the reasons that follow, we conclude that it did not.

BACKGROUND

The following facts are taken from the complaint as well as the affidavits submitted by the parties. Viktron is an Illinois limited partnership with its principal place of business in Carol Stream, Illinois. Viktron manufactures printed circuit boards in California, Utah, Florida, and West Chicago. PDI is a California corporation that manufactures testing equipment that is used in the manufacture of printed circuit boards. PDI's principal place of business is in California, as is its separate testing facility. It maintains no facilities outside California. At issue in the present case is a contract the parties entered into in which Viktron was to purchase four circuit board testers. PDI was to provide one to each of Viktron's four plants in the above-listed states.

The events that culminated in this contract began in March 1997, when PDI learned that a company named Lika was interested in purchasing testers of the type PDI manufactured. Lika had previously approached PDI about such a purchase in 1994. PDI's president, Akin Aksu, and another PDI employee traveled to the Lika facility, which was located in California, to discuss a possible sale. During this visit, PDI learned that Lika had been purchased by Viktron. Viktron expressed interest in PDI's testers but did not have adequate funding for a purchase.

Approximately one year later, PDI again sent two representatives to the California plant. Viktron's chief executive officer, Shalabh Kumar, was present and requested a demonstration of the tester's capabilities on Viktron's circuit boards. PDI set up the requested demonstration, which took place in June 1998. Kumar then requested another demonstration.

In July 1998, Kumar traveled to PDI's plant to observe the second demonstration. Kumar then requested another demonstration using different fixtures. This third demonstration also took place in July 1998 at the PDI facility and was attended by Shelley Krueger, Viktron's California engineering manager. However, one board that was to be tested required a larger testing machine. Viktron requested that a demonstration be set up for this board. PDI arranged with one of its customers, also located in California, to test this board on a PDI tester. Krueger attended this demonstration in September 1998. Viktron requested a further demonstration, and Aksu traveled to Viktron's California facility to prepare for it. Subsequently, Krueger visited PDI to discuss certain details regarding PDI's testers.

On November 11, 1998, Aksu sent Kumar a letter discussing PDI testers. The letter was sent to Viktron's West Chicago facility. On November 25, 1998, Viktron's corporate controller, Raj Thakral, called Aksu and requested that he come to Illinois to meet with Kumar. Aksu traveled to Illinois, and the meeting lasted between two and three hours. In his affidavit, Aksu asserts that, during the meeting, Kumar advanced various price-cutting proposals. Aksu states he did not agree with any of these proposals and left "without any agreement on any terms for purchase of a PDI tester." Kumar asserts, by affidavit, that the meeting involved negotiations concerning "price, quantity, warranty, delivery dates and the layout of the test equipment." Following the meeting, Kumar and Aksu engaged in a series of written and telephonic communications.

On December 7, 1998, Aksu sent Kumar a written price quotation. This correspondence was addressed to Viktron's West Chicago facility. On December 10, 1998, Aksu sent another letter to Kumar in West Chicago. The letter begins with the following statement: "Enclosed please find the confirmation of what we have [sic] discussed during our meeting in Chicago last Thursday." On December 21, 1998, Viktron sent PDI an offer. The offer was accompanied by a down payment. Aksu rejected the offer and, on January 4, 1999, sent Kumar a letter containing a counteroffer.

On January 6, 1999, two PDI engineers went to Viktron's California plant to review its products, and on January 12, 1999, Aksu proposed to Kumar that Aksu would travel there to see if an agreement could still be reached. It is unclear from the record whether this trip occurred. At this point, Aksu asserts, an agreement was not possible, and he returned Viktron's down payment.

Both parties aver that a series of communications followed concerning specifications for the testers. These communications occurred between PDI and all four of Viktron's facilities. On January 19, 1999, Aksu sent Kumar a letter containing PDI's "final offer." Two days later, Viktron wired PDI a down payment of $378,000. Shortly thereafter, Kumar called Aksu and accepted the offer.

Viktron agreed to purchase four testers. The contract required that the first tester be delivered to Viktron's plant in California and that the third be delivered to its Illinois facility. The contract required that PDI train Viktron employees on the use of the testers. Training was to take place at each of Viktron's facilities. The testers themselves were warranted for two years, and switch cards were warranted for seven. The contract obligated PDI to send technicians when necessary to Viktron's four facilities to make repairs. Also, PDI was to provide integration software for the testers ...


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