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Tamburo v. Dworkin

October 9, 2007


The opinion of the court was delivered by: Judge Joan B. Gottschall


Defendants Steven Dworkin, Kristen Henry, Roxanne Hayes, Karen Mills, and Wild Systems Pty. Ltd. have filed this motion to dismiss plaintiffs John F. Tamburo and Versity Corporation's sixth amended complaint alleging lack of personal jurisdiction and failure to state a claim upon which relief can be granted. For the reasons set forth below, the motion to dismiss for lack of personal jurisdiction is granted and the motion to dismiss for failure to state a claim upon which relief can be granted is denied as moot.


Plaintiffs John F. Tamburo ("Tamburo") d/b/a Man's Best Friend Software ("MBFS") and Versity Corporation ("Versity") have sued four individuals, who are not citizens of Illinois, and an Australian corporation under numerous legal theories for losses MBFS allegedly incurred arising out of disputes as to ownership of the contents of online dog pedigree databases.*fn1 Presently before the court is the defendants' joint motion to dismiss plaintiffs' sixth amended complaint, which argues that the court lacks general or specific personal jurisdiction over the defendants. Further, the defendants allege that the plaintiffs have failed to state claims upon which relief can be granted and that therefore the complaint should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

Personal Jurisdiction

In cases based upon diversity of citizenship, federal district courts sitting in Illinois have personal jurisdiction over nonresident defendants only to the extent that Illinois courts would have jurisdiction.*fn2 Edelson v. Chi'en, 352 F. Supp. 2d 861, 865-66 (N.D. Ill. 2005); Interlease Aviation Investors LLC v. Vanguard Airlines, Inc., 262 F. Supp. 2d 898, 905 (2003); See also DeLuxe Ice Cream Co. v. R.C.H. Tool Corp., 726 F.2d 1209, 1212 (7th Cir. 1984). In Illinois, courts have personal jurisdiction over nonresident defendants if permitted by: (1) Illinois statutory law; (2) the Illinois Constitution; and (3) the Constitution of the United States. Id.

The Illinois long-arm statute currently extends personal jurisdiction to the limit permitted by the Illinois Constitution and the Constitution of the United States. 735 ILCS 5/2-209(c); See also Vanguard Airlines, 262 F. Supp. 2d at 905 (citing LaSalle Bank Nat'l Ass'n v. Epstein, No. 9 C 7820, 2000 WL 283072 at *1 (N.D. Ill. Mar 9, 2000). Moreover, the Seventh Circuit has stated that "there is no operative difference between the limits imposed by the Illinois Constitution and the federal limitations on personal jurisdiction" and that not since the Illinois Supreme Court's 1990 Rollins decision has an Illinois court encountered a case in which federal due process requirements permitted personal jurisdiction and Illinois due process requirements prohibited it. Hyatt International Corp. v. Coco, 302 F. 3d 707, 715-16 (7th Cir. 2002). Thus, the three requirements for personal jurisdiction collapse into a single analysis. Consequently, other courts of the Seventh Circuit have conducted only a federal due process analysis in determining whether personal jurisdiction may be exerted over nonresident parties. Vanguard Airlines, 262 F. Supp. 2d at 906 (citing Cont'l Cas. Co. v. Marsh, No. 01 C 0160, 2002 WL 31870531 at *4 (N.D. Ill. Dec. 23, 2002)); United Fin. Mortgage Corp. v. Bayshores Funding Corp., 245 F. Supp. 2d 884, 891-92 (N.D. Ill. 2002)).

Federal due process requirements prescribe that nonresident defendants have sufficient minimum contacts with the forum state such that "maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" Hyatt, 302 F.3d at 713 (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). The standard of "minimum contacts" depends upon whether general or specific personal jurisdiction is alleged. Vanguard Airlines, 262 F. Supp. 2d at 906 (citing RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d 1272, 1277 (7th Cir. 1997). The defendants' motion to dismiss argues that this court has neither general nor specific personal jurisdiction over any of the defendants, all of whom are nonresidents. The court addresses each type of jurisdiction in turn for each defendant.

General Personal Jurisdiction

For purposes of personal jurisdiction under the Illinois long-arm statute, general jurisdiction applies only when a nonresident defendant has had continuous and systematic general business with the forum state such that it demonstrates a purpose on the part of the defendant to avail herself of the protection of Illinois law. RAR, 107 F.3d at 1277; First Nat'l Bank v. El Camino Resources, Ltd., 447 F. Supp 2d 902, 906 (N.D. Ill. 2006). Although there is no "bright line rule" for determining whether a defendant's business contacts with the forum are continuous and systematic, the standard is quite high; requiring a showing that the defendant is conducting business that is fairly permanent and continuous, and of such character and extent as to justify the inference that the defendant has subjected himself to the jurisdiction and laws of the forum. Laiquat Khan v. Van Remmen, Inc., 756 N.E.2d 902, 907 (Ill. App. Ct. 2001); Alderson v. Southern Co., 747 N.E.2d 926, 940 (Ill. App. Ct. 2001). Thus, the Illinois long-arm statute demands a "course of business" or "regularity of activities" as opposed to isolated or sporadic contacts or transactions. Alderson, 747 N.E.2d at 940 (quoting Gaidar v. Tippecanoe Distribution Serv., Inc., N.E.2d 316, 320 (Ill. App. Ct. 1998); Radosta v. Devil's Head Ski Lodge, 526 N.E.2d 561, 564 (Ill. App. Ct. 1988)).

Moreover, although a plaintiff need only make a prima facie case demonstrating general personal jurisdiction, it is not enough that a plaintiff simply allege that the defendant has such a connection when the defendant presents facts to the contrary, and it is not acceptable to require a nonresident to defend herself against a claim when she has alleged facts which, if true, would negate the jurisdiction, without determining what the facts are. TCA Intern., Inc. v. B & B CustomAuto, Inc., 701 N.E.2d 105, 113 (Ill. App. Ct. 1998).

Defendant Wild Systems Pty. Ltd.

Defendant Wild Systems Pty. Ltd. ("Wild") is a corporation organized under the laws of Australia. Wild's products are sold via a website ( ("Breedmate") through which its breeding and bloodline database products may be purchased online. Wild does not have an Illinois distributor or agent, and approximately 1% of Wild's sales via its website are to customers located in Illinois. No facts have been adduced by the plaintiffs to suggest that Wild's website is targeted deliberately or specifically at Illinois consumers. Generally, the mere maintenance of a website, even an interactive one through which orders may be placed, is not sufficient in itself to establish general jurisdiction over a foreign defendant. Euromarket Designs, Inc. v. Crate & Barrel, Ltd., 96 F.Supp.2d 824, 933 (N.D. Ill. 2000); Panavision Int'l, L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1998). Thus, Wild's maintenance of a website through which products may be ordered by Illinois customers does not constitute, in itself, sufficiently continuous and systematic business activity to establish general jurisdiction by this court.

Defendant Dworkin

Plaintiffs allege that defendant Steven Dworkin ("Dworkin") is engaged in the business of breeding dogs and registering them with the American Kennel Club ("AKC"), a New York corporation. Plaintiffs allege, inter alia, that Dworkin's dogs have competed in sundry dog shows in the United States, that Dworkin has sold dogs to individuals in the United States and maintains an email address through which he corresponds with individuals in the course of such business, and that Dworkin has maintained an "interactive" website ( Nowhere, however, do they allege that Dworkin has had any continuous and systematic contact, or even a single business transaction, with even a single individual in the state of Illinois. ...

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