United States District Court, N.D. Illinois, Eastern Division
October 14, 2004.
HUB GROUP, INC., Plaintiff,
PB EXPRESS, INC., Defendant.
The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant's Motion to Dismiss, or,
alternatively, Motion for a Change of Venue. For the reasons set
forth below, Defendant's Motions are denied.
The parties' dispute centers on a transaction to transport a
container of soap from the Colgate Palmolive Plant in New
Concord, Ohio to Rancho Cucamonga, California. Hub City
Cleveland, LP, a subsidiary of Plaintiff Hub Group, Inc.,
contracted with Defendant PB Express to transport the soap to a
rail yard in Chicago for intended subsequent travel by train to
California. According to PB Express, the truck driver
transporting the soap experienced mechanical difficulties in
transit, and, after leaving the container unattended, the soap
was lost or stolen.
Hub Group is a national company headquartered in Downer's
Grove, Illinois, which provides shipping logistic services. At
all times pertinent to this complaint, Hub Group operated through
regional "Hub centers," including Hub City Cleveland, LP. (The
parties appear to disagree on the nature of the corporate
affiliation between Hub Group and Hub City Cleveland, but this
dispute does not impact the present opinion.) PB Express is an
Ohio corporation located in Cleveland, Ohio and its business
leases trucks to conduct interstate shipping.
PB Express initially seeks to dismiss the complaint for lack of
personal jurisdiction. PB Express argues that Hub Group is a
"stranger" to the contract at issue here, which on its face is
solely between Ohio entities (PB Express and Hub City Cleveland).
It also notes that the contract was for transport from Ohio to
California, with Chicago serving only as an intermediary stop to
transfer to rail transport. In addition, PB emphasized that the
soap never entered Illinois. Finally, according to PB Express,
all factual matters required to prove the case are located in
Hub Group, in turn, argues that PB Express consented to
Illinois jurisdiction and venue by entering into a 1994 Motor
Transportation Contract (the "1994 Contract") with Hub Group's
Highway Division. This 1994 Contract contained a forum selection
clause specifying that disputes arising under the 1994 Contract
must be litigated in Illinois. In addition, Hub Group argues that PB Express consented to personal jurisdiction by virtue of being
subject to federal statutory provisions governing interstate
motor carriers, such as PB Express. Moreover, even if PB Express
did not expressly or impliedly consent to personal jurisdiction,
Hub Group argues that PB Express is subject to specific and
general jurisdiction because it transacted and is doing business
Plaintiff Hub Group carries the burden of proof to establish
personal jurisdiction. See Purdue Research Foundation v.
Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003)
This burden, however, is low: Hub Group need only make a prima
facie showing of personal jurisdiction to survive a motion to
dismiss. See id. In addition, all disputed facts, including
conflicting testimony in affidavits, must be resolved in Hub
Group's favor. See id. Hub Group, however, must make a showing
based on specific facts set forth in the record, rather than via
conclusory allegations. See id. at n. 13.
a. Express Consent Via The 1994 Contract
Hub Group initially relies on the 1994 Contract between PB
Express and Hub Highway Services, which is purportedly "a
subsidiary operating center" of Hub Group. Pls. Mem., Ex. C (J.
Wall Aff.). As noted above, this contract contains an explicit
provision granting forum and venue selection in this court. Hub Group also contends, via John Wall's affidavit, that the 1994
Contract "renews automatically each year" and "to the best of
[his] knowledge" the contract was in effect at the time of the
lost cargo. Id. at ¶ 5. PB Express does not dispute the
existence of this contract, but rather claims that it is nothing
more than an "obsolete contract from 1994 between different
parties than [sic] the parties to the subject transaction." Defs.
Reply Mem. at 2. In addition, PB Express argues that Hub Group's
affidavit is "improperly presented" because it is not based on
personal knowledge. Id. at 3. Specifically, the affiant, John
Wall, could not have personal knowledge of the 1994 Contract
because "he was not employed at Hub Group when the contract was
negotiated or signed." Id.
PB Express's concerns about John Wall's lack of personal
knowledge are misplaced. It is certainly true that an affidavit
must be based on personal knowledge, which usually but not
necessarily includes in-person observation of events. See,
e.g., Visser v. Packer Engineering Assoc., Ltd., 924 F.2d 655,
659 (7th Cir. 1991). But personal knowledge also allows for
inferences. See id. The requirement of "personal knowledge" is
aimed at preventing "flight of fancy, speculations, hunches,
intuitions, or rumors about matters remote from" personal
experience. Id., citing Palucki v. Sears, Roebuck & Co.,
879 F.2d 1568, 1572 (7th Cir. 1989). PB Express's sole authority
is consistent with this proposition. See Drake v. Minnesota Min. & Mfg. Co.,
135 F.3d 878 (7th Cir. 1998).
It cannot be said that John Wall's statements as to the 1994
Contract are the sort of "flights of fancy" that are so removed
from personal knowledge that they must be rendered a nullity.
See id. The bulk of his affidavit simply speaks to the
provisions of 1994 Contract which are self-evident in any event
and the background context of the contract. True, John Wall is
a newcomer to Hub Group, having arrived in December 2002, and
therefore was apparently not at the company during any of the
relevant time period. That said, as Director of Risk Management,
he presumably has educated himself on the nature of Hub Group's
contracting practices and thus there is a sufficient nexus
between his present personal knowledge, albeit derived from
others, and the content of his affidavit.
A thorny issue arises regarding Wall's statement that the 1994
Contract was in effect at the time of the lost cargo. PB Express
does not focus on this particular issue, but the Court must. In
his affidavit, Wall qualifies that his comments on this topic are
to the best of his "knowledge and belief." J. Wall Aff. at ¶ 5.
Unfortunately for Hub Group, an affiant is not recognized for his
best efforts to obtain knowledge and belief: he either knows the
fact, and can therefore competently attest to it, or does not,
and must accordingly refrain. See, e.g., Corder v. Lucent Technologies, Inc., 162 F.3d 924, 927 (7th Cir. 1998);
America's Best Inns, Inc. v. Best Inns of Abilene, L.P.,
980 F.2d 1072, 1074 (7th Cir. 1992). Thus, Wall's statements as
to whether the 1994 Contract was in place are a nullity.
The end result, however, is that the parties present (at most)
a factual dispute about whether the forum selection clause in the
1994 Contract binds PB Express. This alone does not defeat Hub
Group's position. Hub Group need only make a prima facie case
of personal jurisdiction, even when alleging consent as a basis
for jurisdiction. See R.R. Donnelley & Sons Co v. Jet Messenger
Service, Inc., 2004 WL 1375402, *2 (N.D. Ill. 2004). Hub Group
has done this by attaching the 1994 Contract and providing enough
specific facts in John Wall's deposition, irrespective of the
nullified portions, to make a case for personal jurisdiction.
b. Implied Consent Via Federal Statute
Hub Group has also established a prima facie case of implied
consent through the federal statutory provisions pertaining to
interstate motor carriers. Specifically, Title
49 U.S.C. Section 13304(a) requires all interstate motor carriers, such as PB
Express, to designate an agent for service of process in any
state in which they conduct business. See 49 U.S.C. § 13304(a).
There is no dispute that PB Express falls under the purview of
this provision. And there is no dispute that PB Express conducted
business in Illinois at least up until the year 2000. PB
Express, however, has not designated an agent in Illinois pursuant to the
The difficulty that PB Express faces here is that a recent
decision in this Circuit held that "a corporation has consented
to be sued in the forum where it designates an agent to receive
service of process." Donnelley, 2004 WL 1375402 at *4. PB
Express could have a technical argument that Donnelley's
position on implied consent does not apply because PB Express
never made the predicate act of designating an agent for service
of process in Illinois. PB Express wisely does not make such an
argument, however, because there is authority for the proposition
that failure to comply with the statutory requirements of
49 U.S.C. § 13304 does not allow a motor carrier to evade
jurisdiction. See Ocepek v. Corporate Transport, Inc.,
950 F.2d 556, 560 (8th Cir. 1991).
Instead, PB Express seeks to distinguish Donnelly on the
basis that the transaction at issue in that case involved "a base
of operations" in Chicago and an "intentional breach of a
subcontract agreement executed in Illinois." Def. Reply Mem. at
4. Here, PB Express appears to argue that the Donnelly holding
depended on the existence of other minimal contacts with
Illinois, aside from the designation of an agent in Illinois
pursuant to federal statute. This is plainly wrong. The
Donnelly court reached its decision based upon a finding of
consent, presumably derived from compliance with federal statute. Personal jurisdiction derived from consent
does not require consideration of due process issues or minimal
contacts with the forum state: indeed, a party can have no
contacts with a forum state and still consent to personal
jurisdiction there. Cf. Donnelly, 2004 WL 1375402 at *3-*4
(noting plaintiff's position that the "federal statute effects
personal jurisdiction over Jet [defendant] in Illinois courts
without any requirement that Jet have any further minimum
contacts with Illinois," and ultimately agreeing with plaintiff's
The Court finds no reason and PB Express provides no
competing authority in this Circuit to disagree with Judge
Holderman's reasoning and decision in Donnelly. Accordingly,
Hub Group has established a prima facie case for both express
and implied consent. As a result, the Court need not address the
issues of whether Hub Group can establish specific or general
B. Transfer for Forum Non-Conveniens
In the alternative, PB Express moves for a transfer of forum
pursuant to Federal Rule 1404(a). The main issue here is whether
PB Express has made a sufficient showing that the convenience of
the parties and witnesses, as well as the interests of justice,
clearly weigh in favor of a transfer to Ohio. See generally,
Pierce v. System Transport, Inc., 2002 WL 731136 (N.D. Ill.
2002). PB Express has not made the requisite showing. As an
initial matter, PB Express's statements requiring convenience are mostly
conclusory in nature, without sufficient specificity for this
Court to make an informed balancing of the pertinent factors.
Potential witnesses are unidentified and thus individualized
determinations of importance and inconvenience is unknown and
the requisite elements of proof for both Hub Group's case in
chief, as well as any affirmative defenses, are unspecified.
In short, PB Express has not provided sufficient information
for this Court to overturn the general rule that a plaintiff is
entitled to any proper venue of choice, absent a showing of
unusual hardship. Based upon PB Express's submission, the Court
can only conclude that a transfer would simply shift hardships
from PB Express to Hub Group.
For the foregoing reasons, Defendant's Motion to Dismiss and,
in the alternative, Motion for Transfer are DENIED.
IT IS SO ORDERED.
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