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INTERN. TRUCK AND ENGINE v. DOW-HAMMOND TRUCKS

September 4, 2002

INTERNATIONAL TRUCK AND ENGINE CORPORATION, A DELAWARE CORPORATION, AND INTERNATIONAL TRUCK INTELLECTUAL PROPERTY COMPANY, LLC, AN ILLINOIS LIMITED LIABILITY COMPANY, PLAINTIFFS,
V.
DOW-HAMMOND TRUCKS CO., A CALIFORNIA CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Gettleman, District Judge.

MEMORANDUM OPINION AND ORDER

International Truck and Engine Corp. and its wholly owned subsidiary, International Truck Intellectual Property Co., LLC, filed this suit for injunctive and monetary relief against Dow-Hammond Trucks Co., alleging trademark infringement under the Lanham Act, 15 U.S.C. § 1051 et seq., common law trademark infringement and unfair competition, and breach of contract. Defendant has filed a motion pursuant to Fed.R.Civ.P. 12(b)(2) and 12(b)(3) to dismiss this action for lack of personal jurisdiction and improper venue or, in the alternative, to transfer venue pursuant to 28 U.S.C. § 1404(a) to the Eastern District of California. For the reasons stated below, defendant's motion to dismiss is denied and the motion to transfer venue is granted.

BACKGROUND

International Truck and Engine Corp. ("International"), formerly known as Navistar International Transportation Corp., is a Delaware corporation with its principal place of business located in Warrenville, Illinois. International Intellectual Property Co., LLC is an Illinois limited liability company that owns International's trademarks, servicemarks and tradename. Defendant Dow-Hammond is a California corporation with its principal place of business located in Modesto, California.

International manufactures and assembles trucks, distributes service parts and accessories, and operates through a network of independent dealers throughout the United States, Canada and Mexico. International's authorized dealers sell its trucks, parts, accessories and services, in addition to providing maintenance and warranty service.

Defendant does not own or maintain any property, office, branch, plant or telephone listing in Illinois. Nonetheless, between 1994 and 1997, defendant's employees made seven trips to International's offices in Illinois for training purposes, and Jones and another employee traveled to Chicago on April 24, 2000, to attend an International dealer conference. In addition, in furtherance of its operation of an International dealership, defendant entered into three license agreements with International regarding computer systems used at the dealership and submitted 12,305 warranty claims to International in Illinois between January 1, 1994, and June 3, 2002.

On May 27, 2000, defendant relocated its International dealership approximately one mile to 1419 So. 7th Street, Modesto, California, without obtaining International's prior written approval. On June 6, 2000, International informed defendant that it would not approve of the new 7th Street location due to customer service deficiencies, such as a lack of drive-through service bays and the lack of sufficient space for attractively displaying parts. Defendant subsequently filed protests with the California New Motor Vehicle Board, alleging that International's refusal to approve the new 7th Street location was based on an impermissible modification of the franchise agreement and constituted constructive termination of defendant's truck franchise.

Although defendant voluntarily dismissed its protests with the California New Motor Vehicle Board, plaintiffs and defendant have been unable to resolve their differences regarding defendant's relocation of its International dealership. Plaintiffs allege that they have withdrawn permission for defendant to operate an International dealership at the new 7th Street location and use International's trademarks, and that defendant's continued operation of the dealership and use of International's trademarks at the 7th Street location constitute trademark infringement, unfair competition, and breach of contract.*fn1

DISCUSSION

1. Motion to Dismiss

Personal Jurisdiction

Defendant has moved to dismiss for lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2). When evaluating personal jurisdiction over a defendant, the court can consider affidavits submitted by the parties, see Kontos v. U.S. Dept. of Labor, 826 F.2d 573, 576 (7th Cir. 1987), and "must accept all undenied factual allegations and resolve all factual disputes in favor of the party seeking to establish jurisdiction." Saylor v. Dyniewski, 836 F.2d 341, 342 (7th Cir. 1988).

To determine whether the court has personal jurisdiction over a defendant in a federal question case, the court must ask whether haling the defendant into this court accords with the due process clause of the Fifth Amendment, which requires both that the defendant have sufficient minimum contacts with the United States as a whole, and that the defendant be amenable to service of process. United States v. Martinez De Ortiz, 910 F.2d 376, 381-82 (7th Cir. 1990). In the instant case, defendant, a California corporation engaged in business in the United States, indisputably has ...


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