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HUB GROUP, INC. v. PB EXPRESS

October 14, 2004.

HUB GROUP, INC., Plaintiff,
v.
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.

I. INTRODUCTION

  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.

  II. DISCUSSION

  A. Jurisdiction

  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 Ohio.

  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 in Illinois.

  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.

  1. Consent

  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 ...


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