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 ...