The opinion of the court was delivered by: Elaine E. Bucklo, United States District Judge.
MEMORANDUM OPINION AND ORDER
Contrak, Inc. sued Paramount Enterprises International, Inc.
("Paramount") for breach of a leasing contract involving shipping
containers used for the transport of explosives. Paramount answered the
complaint and filed a third-party complaint against Textainer Equipment
Management (U.S.) Limited ("Textainer"),*fn1 International Container
Survey Buro, and ICSB Moody International Inc. ("International").
International moves to dismiss, and two entities named ICSB-Moody(S) Pte
Ltd. ("ICSB(S)") and ICSB-Moody Tottrup Ltd. ("ICSB-Tottrup") filed a
separate motion to dismiss. I grant International's motion, and dismiss
ICSB(S) and ICSB-Tottrup's motion for lack of standing.
Paramount is in the business of supplying and transporting explosives.
Contrak leased shipping containers to Paramount, and sued Paramount for
failing to return containers and make payments under the lease. Paramount
has denied liability, and it also impleaded Textainer, International
Container Survey Buro, and International, claiming that International and
International Container Survey Buro agreed to survey and inspect
containers, supplied by Contrak and Textainer, to ensure that the
containers complied with regulatory standards for the shipment of
explosives. Paramount claims that International and International
Container Survey Buro were negligent and breached their contract by
failing to perform proper surveys and by approving nonconforming
containers to be loaded with explosives and shipped to Guam; presumably,
Paramount would have been able to return the containers to Contrak on
time if they had been surveyed properly. International, ICSB(S) and
ICSB-Tottrup move to dismiss for lack of personal jurisdiction under
Fed.R.Civ.P. 12(b)(2) and for failure to state a claim under
Before reaching the merits of the parties' motions, I consider the
timeliness of Paramount's third-party complaint. Under Fed.R.Civ.P.
14(a), a defendant may file a third-party complaint without obtaining
prior leave of court if the third-party complaint is filed "not later than
10 days after serving the original answer." Here Paramount filed its
answer on May 14, 2001, but did not file its third-party complaint until
May 29, 2001, fifteen days later, and did not seek leave of court.
International moves to dismiss the third-party complaint for failure to
comply with Rule 14(a), but it did not consult Rule 6(a), which states
that "[w]hen the period of time prescribed or allowed is less than 11
days, intermediate Saturdays, Sundays and legal holidays shall be
excluded in the computation." Memorial Day is a "legal holiday," id., and
it fell on May 28 in 2001. The third-party complaint, filed fifteen days
(minus two Saturdays, two Sundays and a legal holiday) after the answer,
On a motion to dismiss for lack of jurisdiction, I read the complaint
liberally and accept as true the well pleaded allegations of the
complaint and the inferences that may be reasonably drawn from those
allegations. Sapperstein v. Hager,
188 F.3d 852, 855 (7th Cir. 1999).
International submits the affidavit of Daniel DeVooght in support of its
motion, and Paramount submits a counter-affidavit of Joseph Walsh in
response. I may consider evidence outside of the complaint, and "[t]he
presumption of correctness . . . accord[ed] to a complaint's allegations
falls away on the jurisdictional issue once a defendant proffers evidence
that calls the court's jurisdiction into question." Id. at 856. However,
I resolve disputes in the affidavits or evidence in favor of the
nonmoving party. RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d 1272, 1275
(7th Cir. 1997).
I have personal jurisdiction over International only if an Illinois
state court would have such jurisdiction. Klump v. Duffus, 71 F.3d 1368,
1371 (7th Cir. 1995). The plaintiff has the burden of showing that
jurisdiction is proper under (1) the Illinois long-arm statute, 735 ILCS
5/2-209, (2) Illinois constitutional law, and (3) federal constitutional
law. RAR, Inc., 107 F.3d at 1276. The Illinois long-arm statute
authorizes personal jurisdiction to the limits of the Illinois and
federal constitutions, § 2-209(c), 50 the inquiry collapses into two
constitutional inquiries — state and federal. 107 F.3d at 1276.
To satisfy the Due Process Clause of the Fourteenth Amendment, "[a]
defendant must have `certain minimum contacts with [Illinois] such that
the maintenance of the suit does not offend "traditional notions of fair
play and substantial justice."'" RAR, Inc., 107 F.3d at 1277 (citing
International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). What
that standard means depends on whether the state asserts "general" or
"specific" jurisdiction. Id. Specific jurisdiction exists where the
lawsuit arises out of or is related to the defendant's contacts with the
state. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408,
414 n. 8 (1984). The defendant must have "purposefully established
minimum contacts within the forum State" and so "should reasonably
anticipate being haled into court" in the forum state because it
"purposefully availed itself of the privilege of conducting activities"
there. RAR, Inc., 107 F.3d at 1277 (citations omitted). The "`purposeful
availment' requirement ensures that a defendant will not be haled into a
jurisdiction solely as a result of `random,' `fortuitous,' or
`attenuated' contacts, or of the `unilateral activity of another party or
a third person.'" Mid-America Tablewares, Inc. v. Mogi Trading Co.,
Ltd., 100 F.3d 1353, 1360 (7th Cir. 1996) (citing Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 475 (1985)). "General jurisdiction, meanwhile,
is for suits neither arising out of nor related to the defendant's
contacts, and it is permitted only where the defendant has `continuous
and systematic general business contacts' with the forum." RAR, Inc., 107
F.3d at 1277 (citing Helicopteros, 466 U.S. at 416).
I consider general jurisdiction first. International was*fn2 a
Delaware corporation with its principal place of business
Texas. DeVooght Aff. ¶ 4. It has no office, agent, or employees in
Illinois, id. ¶ 9, is not registered to do business in Illinois, id.
¶ 10, and no employee or agent of International has ever traveled to
Illinois on business, id. ¶ 13. Paramount argues nonetheless that
International has continuous contacts because the DeVooght affidavit
states that "International, on occasion, contracted with a third-party to
have a survey performed in the State of Illinois, when International had
a customer requiring services in Illinois." DeVooght Aff. ¶ 15.
However, neither "[m]ere occasional solicitation" nor "isolated, sporadic
transactions with residents of the forum state" is enough to satisfy the
requirements of general jurisdiction, see Neiman v. Rudolf Wolff & Co.,
Ltd., 619 P.2d 1189, 1193 (7th Cir. 1980), and Paramount comes forward
with no evidence to show that International's relationships with Illinois
subcontractors were anything other than occasional.
The only other basis for general jurisdiction over International is its
listing in the Chicago, Illinois, section of the 1999 Great Lakes/St.
Lawrence Seaway Edition of the "Transportation Telephone Tickler," a
business directory for the shipping industry. But International was also
listed in the sections for Pittsburgh, Pennsylvania, Cleveland, Ohio, and
Detroit, Michigan, see International Reply Ex. C, so there is evidence
that the advertisement in the Tickler was "not solely directed towards
the State of Illinois," see DeVooght Aff. ¶ 11. A listing in a trade
magazine or business guide is insufficient contact with Illinois to
constitute the "continuous and systematic" contact required for general
jurisdiction. See Recycling Sciences Int'l, Inc. v. Soil Restoration and
Recycling L.L.C., No. 00 C 0311, 2001 WL 289868, at 4 (N.D. Ill. Mar.
15, 2001) (Darrah, J.) (Advertisement in national publication was
insufficient basis for general jurisdiction where non-resident defendant
had no assets, office, agents, property, inventory, mailing address or
telephone number in Illinois.); Singletary v. B.R.X., Inc., 828 F.2d 1135,
1136 (5th Cir. 1987) ("[A]dvertising in national publications is not in
itself sufficient to subject a defendant to personal jurisdiction."). I
do not have general jurisdiction over International.
For the purposes of specific jurisdiction, the transaction at issue
here is an alleged agreement between Contrak and International to provide
surveys of containers, which were provided by Paramount to Contrak for
shipment of explosives. Walsh Aff. ¶¶ 4-8. International denies that
there was any such agreement, and supports this with Mr. DeVooght's
statement that International never entered into any agreement with
Contrak to survey containers in Singapore, Hong Kong or Taiwan. DeVooght
Aff. ¶ 17. But Mr. Walsh's affidavit controverts this, and Paramount
is entitled to have conflicts in the affidavits resolved in its favor.
RAR, Inc., 107 F.3d at 1275. International argues that I should not give
Mr. Walsh's affidavit any weight because, although Mr. Walsh, an owner of
Paramount, states that he has personal knowledge of the facts in his
affidavit, he does not say how he knows about the negotiation and
formation of the agreement between Contrak and International. Several
courts have suggested that affidavits submitted in response to a motion
to dismiss under Rule 12(b)(2) must be based on personal knowledge or
comply with Rule 56(e), see Posner v. Essex Ins. Co., Ltd., 178 F.3d 1209,
1215 (11th Cir. 1999) (holding that only portions of affidavit setting
forth specific facts within affiant's personal
knowledge would be
considered on motion to dismiss for lack of personal jurisdiction); FDIC
v. Oaklawn Apts., 959 F.2d 170, 175 & n. 6 (10th Cir. 1992) (holding that
Rule 56(e) requirements of personal knowledge, competency and admissible
facts apply to affidavits submitted in support of or in opposition to
motions to dismiss on jurisdictional grounds); United Phosphorous, Ltd.
v. Angus Chem. Co., No. 94 C 2078, 1996 WL 14036, at 1 (N.D. Ill. Jan.
11, 1996) (Gottschall, J.) (suggesting that Rule 56 procedures for
evidence apply in context of Rule 12(b)(2) motion), but the Seventh
Circuit has not addressed this issue. I need not resolve this question,
however, because even if I consider the allegations in Mr. Walsh's
affidavit, they do not state a prima facie case of specific personal
"[A]n out-of-state party's contract with an in-state party is alone not
enough to establish the requisite minimum contacts" for specific
jurisdiction. RAR, Inc., 107 F.3d at 1277. "Rather, `prior negotiations
and contemplated future consequences, along with the terms of the
contract and the parties' actual course of dealing' must indicate the
purposeful availment that makes litigating in the forum state foreseeable
to the defendant." Id. (citing Burger King, 471 U.S. at 479). Here
Paramount admits that Contrak, the Illinois party, "initiated contact"
with International to provide for surveying services, Walsh Aff. ¶
6, and that the performance of the agreement was to take place in Asia,
not in Illinois, Resp. at 8. Mr. DeVooght's affidavit states that no
employee of International ever traveled to Illinois on business, and
nothing in Mr. Walsh's affidavit contradicts this. Cf. Quantum Color
Graphics, LLC v. Fan Ass'n Event Photo GmbH, No. 01 C 0862, 2002 WL
92859, at 4-5 (N.D. Ill. Jan 23, 2002) (denying motion to dismiss where
only contact was contract with Illinois resident, to be performed in
Illinois, because record was silent as to which party initiated the
negotiations and defendant offered no evidence). The only contacts tying
the agreement to Illinois are Contrak's, and these cannot support the
exercise of personal jurisdiction over International. See Mid-America
Tablewares, 100 F.3d at 1360 (Specific jurisdiction cannot be based
solely on the "unilateral activity of another party or a third
person."); see also Asset Allocation & Mgmt. Co. v. Western Employers
Ins. Co., 892 F.2d 566, 569 (7th Cir. 1990) ("The question is whether
[the defendant] was ...