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Dickerson v. Perdue

July 20, 2007

SHELLY G. DICKERSON, PLAINTIFF,
v.
JAMES L. PERDUE AND JAMES L. PERDUE D/B/A J. L. PERDUE, DEFENDANTS.



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

MEMORANDUM & ORDER

I. INTRODUCTION

Defendants James L. Perdue and James L. Perdue d/b/a J. L. Perdue ("Perdue" or "Defendants") have moved to dismiss Plaintiff Shelly G. Dickerson's suit, pursuant to FEDERAL RULE OF CIVIL PROCEDURE 12(b)(2), for lack of personal jurisdiction over Defendants (Doc. 9). In the alternative, Defendants seek a Rule 12(b)(3) dismissal for improper venue, a transfer of venue, pursuant to 28 U.S.C. § 1404, to the United States District Court of Nebraska or a Rule 12(b)(6) dismissal for failure to state a claim for which relief can be granted (Id.). Plaintiff has timely opposed both the dismissal and transfer of venue (Doc. 12). For the following reasons, Defendants' request for dismissal or transfer is unavailing.

II. BACKGROUND

Plaintiff's Complaint asserts that diversity jurisdiction exists between the parties, pursuant to 28 U.S.C. § 1332, and that the acts giving rise to her claims occurred within this District (Doc. 4, ¶ 1). As she is a citizen of Illinois, she states that complete diversity of citizenship exists between the parties as Defendants are citizens of and reside in Nebraska (Id. at ¶¶ 2-3). Further, Plaintiff seeks damages, including punitive damages, in excess of $75,000.00 (Id. at pp. 4-5). The Complaint consists of two counts, one for defamation (Id. at ¶¶ 19-23) and the other for tortious interference with a contract (Id. at ¶¶ 24-28).

The following provides a factual account of Plaintiff's allegations, as stated in her Complaint (Doc. 4). Plaintiff was employed by Perdue as a driver and drove Perdue's tractor trailer truck in interstate commerce. With both Perdue and the church's permission, while home in Smithton, Illinois, Plaintiff parked the truck in the parking lot of St. Michael's Church in Padderborn, Illinois, approximately two miles from her home. Also with Perdue's permission, Plaintiff was allowed a five-day absence from work. On this fifth day of leave, Plaintiff contacted Perdue to tell him that she had fallen ill and could not drive the truck. However, Perdue demanded Plaintiff drive the truck that day back to Kearney, Nebraska, pay for her own way home and was unresponsive to any of her following calls for the rest of the day. That same day, Plaintiff was contacted by the deputy sheriff of St. Clair County, Illinois, and told to call the Buffalo County, Nebraska's Sheriff's Department. When she spoke to someone at the Buffalo County Sheriff's Department, Plaintiff was questioned as to the location of the truck. Plaintiff was also told by a representative of the Buffalo County Sheriff's Department that Perdue had accused her of making illegal runs with the truck. She told the police that the truck was parked on the parking lot of St. Michael's Church in Padderborn, Illinois. Two days later, the truck was picked up from the parking lot by persons unknown. Plaintiff's employment with Defendants was thereafter terminated.

Plaintiff subsequently applied for a job and was offered employment by Contract Transport, Inc. ("Contract") in St. Louis, Missouri. However, Plaintiff did not report for her first day of work because she was under the mistaken belief that she did not have a job with Contract. Her mistaken belief was due to a telephone call she received from someone claiming to be a Contract representative, who informed Plaintiff that Contract had decided not to hire her.

III. DISCUSSION

A. Personal Jurisdiction

Defendants first seek a dismissal of Plaintiff's suit upon the basis that this Court lacks personal jurisdiction over Defendants. Once a defendant moves to dismiss pursuant to FEDERAL RULE OF CIVIL PROCEDURE 12(b)(2), a plaintiff has the burden of establishing the existence of personal jurisdiction over an out of state defendant. Purdue Research Foundation v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003) (internal citations omitted). A plaintiff must provide sufficient evidence to establish at least a prima facie case of personal jurisdiction.

Turnock v. Cope, 816 F.2d 332, 333 (7th Cir.1987).

Because this Court sits in Illinois and further, because this action is a diversity case, the Court will have personal jurisdiction over non-resident Defendants only if an Illinois court would have personal jurisdiction. FMC Corp. v. Varonos, 892 F.2d 1308, 1310 (7th Cir. 1990)(citing FED.R.CIV. P. 4(e)). Therefore, Plaintiff must demonstrate that personal jurisdiction over both Defendants in this case complies with (1) the Illinois long-arm statute, (2) Illinois constitutional law, and (3) federal constitutional law. RAR, Inc.v. Turner Diesel, Ltd., 107 F.3d 1272, 1276 (7th Cir. 1997). Moreover, because the Illinois long-arm statute*fn1 "'permits its courts to exercise jurisdiction on any basis permitted by the Illinois and United States Constitutions,'" the analysis then becomes a two-prong examination: (1) determining whether the applicable state long arm statute is satisfied and (2) whether exercise of jurisdiction is consistent with the constitutional requirements of due process. Hyatt Int'l Corp. v. Coco, 302 F.3d 707, 714 (7th Cir. 2002) (quoting Central States, Southeast and Southwest Areas Pension Fund v. Reimer Express World Corp., 230 F.3d 934, 940 (7th Cir. 2000); see also FMC Corp. v. Varonos, 892 F.2d 1308, 1311 n.5 (7th Cir. 1990).

The Illinois long-arm statute, 735 ILL.COMP.STAT. 5/2-209, lists The statutory grounds for which personal jurisdiction over a defendant may be exercised by an Illinois court. Personal jurisdiction can be either "general," as stated in 735 ILL.COMP.STAT. 5/2-209(b), "specific," as enumerated under 735 ILL.COMP.STAT. 5/2-209(a), or for "any other basis permitted by the Illinois and United States Constitutions," as stated in 735 ILL.COMP.STAT. 5/2-209(c). General jurisdiction over an out of state defendant is not dependent upon whether the underlying issues in plaintiff's suit arose out of or related to defendant's contacts with the forum state." RAR, Inc., 107 F.3d at 1277.Instead, an out of state defendant is subject to general jurisdiction of the forum state when the defendant has "continuous and systematic general business contacts" with the forum state. Id. On the other hand, an out of state defendant may be subject to specific jurisdiction of the forum state when the issues in plaintiff's suit arise out of or relate to the defendant's minimum contacts with the forum. Id. These minimum contacts, if "purposely availed" by defendant towards the forum state, should give the out of state defendant "fair warning" that its activities may warrant imposition of the forum state court's jurisdiction, such that the out of state defendant could "reasonably anticipate being haled into court" there. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-76 (1985).

1. General Jurisdiction

Defendants contend this Court cannot exercise general jurisdiction over them, pursuant to 735 ILL.COMP.STAT. 5/2-209(b), as they are not citizens of Illinois nor do they conduct business here. While Plaintiff argues in her Response (Doc. 12) that general jurisdiction exists, the Court finds she has not met her burden of proof in this regard. Even though the Court accepts jurisdictional allegations as true unless negated by a defendant's affidavits, see O'Hare Intern. Bank v. Hampton, 437 F.2d 1173, 1176 (7th Cir. 1971), in this case, Plaintiff has no such allegations in her Complaint to establish general jurisdiction over Defendants in Illinois. In her Response, Plaintiff asserts general jurisdiction exists over Defendants because they hired Plaintiff in Illinois, she parked the truck in Illinois, fueled the truck in Illinois and hauled freight in Illinois (Doc. 12, p. 3). Plaintiff, however, offers no affidavits or other evidentiary support to substantiate her assertions.*fn2 Further, the allegations in her Complaint make no reference to any businesslike activities occurring in Illinois. At most, she alleges that she lives in Illinois and that she parked the truck in ...


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