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Dick Corp. v. SNC-Lavalin Constructors

April 20, 2006

DICK CORPORATION, A PENNSYLVANIA CORPORATION, PLAINTIFF,
v.
SNC-LAVALIN CONSTRUCTORS, INC., A DELAWARE CORPORATION AND PCL INDUSTRIAL CONSTRUCTION, INC., A COLORADO CORPORATION, JOHN GILLIS AND MICHAEL RANZ, DEFENDANTS.



The opinion of the court was delivered by: Marvin E. Aspen, District Judge

MEMORANDUM ORDER AND OPINION

Plaintiff Dick Corporation's Fourth Amended Complaint against Defendants SNC-Lavalin Constructors, Inc., PCL Industrial Construction, Inc., John Gillis, and Michael Ranz, alleges copyright infringement, tortious interference with prospective business relations, tortious interference with contractual relations, conversion, and misappropriation of trade secrets. Presently before us is defendants Gillis' and Ranz's ("Defendants") motion to dismiss for lack of personal jurisdiction and for failure to state a claim upon which relief can be granted. As set forth below, we find that the fiduciary shield doctrine prevents us from exercising personal jurisdiction over Defendants.

BACKGROUND

Plaintiff Dick Corporation ("Dick") is a company registered and organized under the laws of Pennsylvania with its principal place of business in Large, Pennsylvania. (Fourth Am. Compl. ¶ 1.) Around May 12, 1999, Dick entered into a joint venture with the National Energy Production Corporation ("NEPCO"), a Delaware corporation, to serve as the general engineering, procurement and construction contractor for the Kendall County Generation Facility ("Kendall"), a power plant located in Minooka, Illinois. (Id. ¶¶ 2, 12-13.) "As part of the [j]oint [v]enture, Dick and NEPCO created certain engineering designs, drawings, design data, calculations, specifications, intellectual property and other related documents [("Drawings")] ... [and] certain scheduling information, cost projections, cost information, bidding information and other financial reports ... [("Data")] for the purpose of constructing the Kendall facility." (Id. ¶¶ 18-19.) The Dick/NEPCO joint venture agreement included exclusivity provisions, such as "all documents produced for or by the [j]oint [v]enture shall be owned by the [j]oint [v]enture ... [N]either party shall use the documents for other projects without the prior written consent of the others." (Id. ¶ 17.) The agreement also prohibited either party from transferring or assigning any joint venture work product without prior written consent. (Id. ¶ 16.)

On December 21, 2000, NEPCO executed a contract with LSP-Nelson to perform engineering, procurement, and construction services for the Nelson facility ("Nelson"), a power plant located in Dixon, Illinois. (Id. ¶¶ 12, 21.) NEPCO created a joint venture with PCL Industrial Construction, Incorporated ("PCL"), a Colorado corporation, regarding performance of the Nelson contract on February 28, 2002, at which time LSP-Nelson and PCL entered into an "Amended and Restated Turnkey Engineering, Procurement and Construction Agreement dated as of December 21, 2000 ("Restated Nelson Contract")." (Id. ¶ 22.) The Restated Nelson Contract provides that "major power block design, equipment layout, building general arrangement, condensate/feedwater/steam piping design, and electrical design for the [Nelson] [f]acility are substantially similar to that for the Kendall Project." (Id. ¶ 24.) In the spring of 2002, SNC Lavalin Constructors, Inc. ("SNC"), SNC Lavalin's subsidiary, "entered into an arrangement to perform construction-related services at the Nelson [f]acility." (Id. ¶ 23.)

Dick filed a five count complaint in the Northern District of Illinois alleging that SNC, PCL, John Gillis, and Michael Ranz improperly and without consent copied, distributed, misappropriated, used, and created derivative works from the joint venture Drawings and Data to construct Nelson. (Id. ¶ 29.) Gillis, former President of NEPCO and current Chief Operating Officer at SNC, and Ranz, former Vice President of NEPCO and current Senior Vice President of SNC - both residents of Redmond, Washington - moved to dismiss the charges against them claiming a lack of personal jurisdiction. (Mot. to Dismissat 5,6.) Dick counters that both individual defendants established minimum contacts with Illinois since they each 20-31, 34-41; Pl. Resp. to Mot. to Dismiss at 9-19.)

STANDARD OF REVIEW

In a motion to dismiss under Federal Rule of Civil Procedure 12(b)(2), the plaintiff bears the burden of showing a prima facie case of personal jurisdiction. Purdue Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003); see RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d 1272, 1276 (7th Cir.1997); Wasendorf v. DBH Brokerhaus AG, No. 04 C 1904, 2004 WL 2872763, at *2 (N.D. Ill. Dec. 13, 2004). In determining whether we have personal jurisdiction, we may receive and consider affidavits and other materials submitted by the parties.

See Turnock v. Cope, 816 F.2d 332, 333 (7th Cir. 1987), superceded by statute on other grounds as stated in FMC Corp. v. Varonos, 892 F.2d 1308, 1310 (7th Cir. 1990). For purposes of a motion to dismiss based on personal jurisdiction, we "accept all allegations of the complaint as true except those controverted by defendants' affidavits." Northwestern Corp. v. Gabriel Mfg. Co., No. 96 C 2004, 1996 WL 73622, at *2 (N.D. Ill. Feb. 6, 1996). Where the defendant submits an affidavit contesting personal jurisdiction, "the plaintiff must go beyond the pleadings and submit affirmative evidence supporting the existence of jurisdiction." Purdue, 338 F.3d at 783 (emphasis added). We resolve all factual disputes in the record in plaintiff's favor, but we may accept as true those facts presented by defendant that remain uncontested. Id.; RAR, 107 F.3d at 1275.

ANALYSIS

I. Personal Jurisdiction

In a case based on diversity of citizenship, a federal court sitting in Illinois may exercise personal jurisdiction over a nonresident defendant only to the extent that an Illinois court could do so. Klump v. Duffus, 71 F.3d 1368, 1371 (7th Cir.1995); see Michael J. Neuman & Assoc., Ltd. v. Florabelle Flowers, Inc., 15 F.3d 721, 724 (7th Cir.1994). Therefore, to survive a motion to dismiss the plaintiff must make a prima facie showing that exercising jurisdiction over a nonresident party complies with the Illinois long-arm statute, the Illinois Constitution, and federal constitutional due process requirements. See Cent. States, Southeast & Southwest Areas Pension Fund v. Reimer Express World Corp., 230 F.3d 934, 939 (7th Cir. 2000); see also RAR, 107 F.3d at 1276.

The Illinois long-arm statute permits Illinois courts to exercise jurisdiction over a defendant where the cause of action arises from the transaction of business, commission of a tort, "making or performance of any contract or promise substantially connected with this State[,]" or any basis permitted by the state and federal Constitutions. 735 Ill. Comp. Stat. 5/2-209 (a) (1, 2, 7), (c); Cent. States, 230 F.3d at 940; RAR, 107 F.3d at 1276. The record demonstrates that Gillis and Ranz each established minimum contacts with Illinois subjecting themselves to this court's jurisdiction. For example, Gillis executed and Ranz was involved with negotiating and overseeing the two contracts at issue, which were to be performed in Illinois.*fn1

Gillis' and Ranz's lack of material presence in Illinois does not preclude finding that they established the requisite minimum contacts because the Supreme Court has held that an individual who never physically enters the forum state could nonetheless be subject to its jurisdiction if he purposefully directs conduct towards residents of the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-73, 105 S.Ct. 2174 (1985) (finding personal jurisdiction in Florida where the defendant knowingly engaged in a business relationship with the plaintiff, a Florida company, even though he never entered Florida to conduct business); see also Calder v. Jones, 465 U.S. 783, 788, 104 S.Ct. 1482 (1984) (finding that despite the lack of physical contacts with the forum state, an editor and journalist of a Florida-based tabloid periodical were subject to personal jurisdiction in California in an action arising out of an allegedly defamatory ...


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