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Nolan v. Retronix

July 7, 2008

ROBBIE NOLAN, MICHAEL SCHAEFER, AND FABIAN JONES, PLAINTIFF,
v.
RETRONIX, INC., RETRONIX IRELAND LTD., AND BASIL HOLIAN, DEFENDANTS.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge

MEMORANDUM OPINION AND ORDER

Robbie Nolan, Michael Schaefer, and Fabian Jones have sued Retronix, Inc., Retronix Ireland, Ltd. (now known as Westerwood (WG) Global Limited), and Basil Holian for breach of contract, violation of the Illinois Wage Payment and Collection Act, battery, assault and intentional infliction of emotional distress. Retronix, Inc. has filed a third party complaint (strictly speaking, a cross-claim) against Retronix Ireland and Holian, asserting claims of contribution and implied indemnity. Retronix Ireland and Holian have moved to dismiss plaintiffs' complaint and the third party complaint and for lack of personal jurisdiction. They have also moved to dismiss the third party complaint for failure to state a claim.

After Retronix Ireland and Holian moved to dismiss plaintiffs' complaint, the Court allowed plaintiffs to conduct discovery on the subject of personal jurisdiction.

Plaintiffs subsequently served written discovery, to which defendants responded. Plaintiffs then sought to take the depositions of two principals of the defendant corporations. After defendants objected, the Court directed plaintiffs to respond to the motion to dismiss based on the information they then had and permitted them to argue in their response why they needed to, and should be allowed to, take the depositions of the two principals. At a status conference held after plaintiffs had filed their response, the Court tentatively concluded that plaintiffs did not need the two depositions to respond adequately to Retronix Ireland's arguments and that the depositions would not assist them in opposing Holian's motion. The Court has now determined that it erred in this regard and therefore will permit plaintiffs to take those depositions before the Court makes a definitive ruling on the personal jurisdiction issue.

With regard to the third party complaint, the Court concludes that Retronix, Inc. has stated viable claims against Retronix Ireland and Holian. On the personal jurisdiction issue, the Court will (as indicated above) defer a definitive ruling pending further discovery by plaintiffs.

Facts

When personal jurisdiction is challenged, the plaintiff bears the burden of establishing a prima facie or "threshold" showing that the court may properly exercise jurisdiction over the defendant. Purdue Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003). In considering a motion to dismiss for lack of personal jurisdiction, the court accepts the plaintiff's factual allegations as true unless refuted by affidavits or other evidence submitted by the defendant. Turnock v. Cope, 816 F.2d 332, 333 (7th Cir. 1987). Conflicts in the evidence are resolved in favor of the exercise of jurisdiction. Purdue Research Found., 338 F.3d at 782. Applying these standards, the Court finds the relevant facts as follows with respect to the issue of personal jurisdiction.

Nolan, Schaefer, and Jones are citizens and residents of Florida, Idaho, and Arizona respectively. 2d Am. Compl. ¶¶ 2-3. In their second amended complaint, plaintiffs allege that in January 2004, they entered into employment contracts with "Retronix" -- a phrase they use in the complaint to describe Retronix, Inc. and Retronix Ireland collectively, see id. ¶ 6, under which they were to work at an Intel facility in Ireland. Id. ¶ 12. Plaintiffs do not contend that they were solicited for employment in Illinois -- none of them reside or resided in this state -- nor do they contend that any of the communications that led to their employment were made to or from Illinois. Similarly, plaintiffs do not contend that any of the work they were hired to perform was expected to take place in Illinois.

Plaintiffs began working at the Intel facility in Ireland in March 2004, after they obtained work permits from the government of Ireland. Id. ¶ 13. They allege that "Retronix" breached the employment contracts in various ways, including by failing to pay their salaries in full, failing to reimburse them for expenses, making unauthorized deductions from their paychecks, failing to provide periodic assessments of their performance, failing to give them sufficient notice of termination of the contracts, and failing to make accurate reports to United States tax authorities regarding taxes withheld from their pay. See id. Counts 1-10. Plaintiffs also allege that certain of these actions by "Retronix" constituted violations of the Illinois Wage Payment and Collection Act. See id. Counts 11-13. Nolan also alleges that on February 24, 2005 in Leixlip, Ireland, he was assaulted by Basil Holian, allegedly an owner, director, and officer of Retronix Ireland, see id. ¶ 7; Nolan makes various tort claims against Holian and "Retronix" arising from this incident. See id. Counts 14-16.*fn1

Plaintiffs do not specify in their complaint (they are not required to do so at this stage of the case) which entity they claim to have contracted with -- Retronix Inc. or Retronix Ireland or both. In their response to the motion to dismiss, plaintiffs say that they cannot be certain and that they were led to believe that the two entities were one and the same. There is some evidence that would tend to support such a contention, or at least that Retronix Inc. and Retronix Ireland acted as though the plaintiffs were employed by both entities. Among other things, Nolan has submitted a W-2 form reporting income for 2004 that identifies his employer as Retronix Ireland, Ltd., as well as an earnings statement, also for 2004, that appears to identify him as an employee of Retronix Inc. See Pl. Resp., Exs. D & E.

The evidence regarding the employment contract of Nolan, apparently the only plaintiff who executed a written contract, likewise leaves a somewhat muddled picture. Nolan's contract says he is to be employed by "Retronix" without specifying a particular entity. See id., Ex. B. The contract is signed on behalf of "Retronix Inc." by an individual named Tommy Love. Retronix, Inc. says, however, that Love was never one of its employees and that he had no authority to act on its behalf; Retronix, Inc. thinks that Love is an employee of Retronix Ireland. See id., Ex. F, Ints. 12(a)-(g). Consistent with these assertions, Retronix, Inc. contends that Nolan was never one of its employees and that it believes Nolan was employed by Retronix Ireland. See id., Ints. 13-16.

By contrast, Retronix Ireland says that Love, the person who signed Nolan's contract, was an employee of something called "Retronix, UK." See id., Ex. G, Int. 15. And contrary to Retronix, Inc.'s assertions, Retronix Ireland contends that Nolan was employed by Retronix, Inc. and that Retronix, Inc. supervised his employment in Ireland. See id., Ints. 12, 14, 16. Nolan and Schaefer, however, have submitted evidence that they received W-2 forms identifying their employer as "Retronix Ireland Limited." Id., Ex. D. In addition, the letter terminating Nolan's employment said that his "Contract of Employment with Retronix, Ireland, Ltd. as a Retronix employee . . . has been terminated," and it was signed by a Retronix Ireland employee. See id., Ex. G, Int. 18.

Plaintiffs have submitted evidence indicating that while working in Ireland, they had discussions with Retronix Ireland personnel regarding allegedly inaccurate reporting of their income tax withholding and delays in paying them. See Pl. Resp., Ex. H. In one of these e-mails, defendant Holian, who in Retronix Ireland's interrogatory answers categorically denied that Nolan was ever employed by Retronix Ireland, stated that the plaintiffs "represent Retronix Ireland on site" and referred interchangeably to "Retronix Ireland" and "Retronix." Id., p. 4 (e-mail dated Feb. 28, 2005).

According to Retronix, Inc.'s answers to interrogatories, Anthony Boswell, who lives in Scotland, is the sole owner of Retronix, Inc. as well as the founder of an entity called "Retronix, Ltd." Retronix, Inc. is incorporated in Illinois. Pl. Resp., Ex. F, Ints. 2-3. Boswell currently owns shares in a number of companies bearing the name "Retronix" in their titles, all of which are listed on a common website, www.Retronix.com, which Retronix, Inc. says is owned and maintained by Retronix, Ltd. Id., Int. 4. Boswell says he owned a minority interest in Retronix Ireland from July 2001 through November 2006. According to Retronix, Inc.'s interrogatory ...


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