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Wilo USA, LLC v. Desert Boilers & Controls, Inc.

United States District Court, Seventh Circuit

May 9, 2013

WILO USA, LLC, Plaintiff,


JOHN W. DARRAH, District Judge.

Defendant Desert Boilers & Controls, Inc. ("Desert Boilers") filed a Motion to Dismiss for lack of personal jurisdiction and for improper venue or, alternatively, to transfer venue. Plaintiff Wilo USA, LLC ("Wilo") filed a Response, Desert Boilers filed a Reply, and Wilo was granted leave to and filed a Surreply.


The following facts are taken from the Complaint and the submitted exhibits and affidavits. Plaintiff Wilo is a Delaware limited liability corporation licensed to do business in the state of Illinois. (Compl. § 1.) Wilo manufactures and supplies water pumps and circulators for residential and industrial use. Wilo's corporate office is currently located in Rosemont, Illinois. ( Id. § § 2-3.) From 2009 through September 2011, Wilo maintained its corporate office and warehouse in Melrose Park, Illinois. (Pl.'s Resp. Br., Exh. B. § 5.) Wilo currently maintains a warehouse in Bolingbrook, Illinois. ( Id. § 6.) Wilo has a second office located in Georgia. (Pl.'s Resp. Br., Exh. A. § 5.) Defendant Desert Boilers is a Nevada corporation with its principal office located in Las Vegas, Nevada, and is in the business of providing and servicing boilers. (Compl. §§ 4-5.)

On or about March 18, 2010, Desert Boilers contacted Wilo to purchase boiler parts and issued a purchase order to Wilo for boiler parts. ( Id. § 11.) That purchase order is attached as Exhibit A to Wilo's Complaint. The purchase order is for the sale of a pump, identifies the vendor as Wilo USA LLC, with an address of Thomasville, Georgia, and states that it will be shipped to Desert Boilers at the following address: 305 West St. Louis Ave., Las Vegas, Nevada, 89102 (the "Las Vegas" address). (Compl. Exh. A.) Also, on or about March 18, 2010, Desert Boilers applied to be approved as a customer of Wilo and for a line of credit with Wilo. (Compl. § 12.) As part of the application, Desert Boilers identified its address as the Las Vegas address, and provided Wilo with Desert Boilers's company information, Nevada Tax Resale number, bank account information and tax identification information. (Compl. Exh. B.)

Subsequently, Wilo approved Desert Boilers as a wholesale partner for Wilo parts and for a line of credit with Wilo in the amount of $5, 000. (Compl. § 14.) The "Wilo USA Partner Account Activation" document lists Wilo's Melrose Park, Illinois address at the bottom and top, and has Illinois telephone and facsimile numbers. (Comp. Exh. C.) The letter from Wilo to Desert Boilers regarding Desert Boilers's line of credit is from a Wilo employee at the Thomasville, Georgia address. (Compl. Exh. D.) Both documents are directed to Desert Boilers at its Las Vegas address.

Thereafter, Wilo would periodically receive purchase orders from Desert Boilers for boiler parts. ( Id. § 15.) Wilo invoiced and shipped these parts to Desert Boilers at its Las Vegas address, and the two parties agreed that Desert Boilers would remit payment for the goods within thirty days for each sale. ( Id. §§ 17-18.) As the invoices reflect, the goods were shipped and billed to Desert Boilers at its Las Vegas address, and payment was directed to Wilo at its Thomasville, Georgia address. (Compl. Exh. F.) The majority of the inventory for Desert Boilers's orders was shipped from Wilo's warehouse in Melrose Park, Illinois, and Wilo has submitted a group exhibit of shipping labels that reflect the Illinois address. (Pl.'s Resp. Br., Exh. A, Exh. 1; Pl.'s Resp. Br., Exh. B. § 12.)

During this time, Desert Boilers regularly communicated with Wilo's Illinois office on multiple occasions through e-mail and telephone conversations. (Pl.'s Resp. Br., Exh. A (Miller Aff.) §§ 6-7).) Wilo's Director of Sales, Matthew Beasley, whose office is located in Illinois, stated in his affidavit that he was in regular telephone contact with Desert Boilers over a two-year period. (Pl.'s Resp. Br., Exh. B (Beasley Aff.) §§ 8-10.) Furthermore, Beasley also often communicated with Desert Boilers through his work e-mail address, which has a signature block listing his office at Wilo's corporate headquarters in Illinois. ( Id. )

Beginning July 1, 2011, Desert Boilers requested that Wilo refer to it as "West Coast Energy d/b/a Desert Boilers Inc." (Compl § 19.) Accordingly, Wilo began writing "West Coast Energy d/b/a Desert Boilers Inc." or "West Coast Energy" on the order documentation. ( Id. § 20.) However, no other changes were made to the parties' agreement or order procedure, and Wilo continued to ship to and invoice Desert Boilers at its Las Vegas address. ( Id. § 21.) Wilo's July 15, 2011 shipping label reflects that Wilo shipped products from its Melrose Park, Illinois warehouse to "West Coast Energy, DBA Desert Boilers & Control Inc." at the same Las Vegas address. (Pl.'s Resp. Br., Exh. A, Exh. 1.)

On July 8, 2011, Wilo received an order for boiler parts costing $518, 749.12 from Desert Boilers. (Compl. §§ 24-25.) That order was sent by Desert Boilers employee, Eddie Salazar, to Beasley's work email, which, as discussed above, lists Beasley's office as being located in Illinois. (Pl. Br. Exh. B. § 13.) Pursuant to that order, Wilo sent an order confirmation to "West Coast Energy DBA Desert Boilers & Controls Inc." at the Las Vegas address; that order confirmation has Wilo's Thomasville, Georgia address at its top but identifies Wilo's corporate office in Melrose Park, Illinois in the footer. (Compl. Exh. F.) All products ordered by Desert Boilers on July 8, 2011 were filled and shipped from Wilo's Melrose Park, Illinois warehouse, which is reflected by the shipping labels. (Pl. Br. Exh. B. § 15.)

For the July 8, 2011 order, Wilo and Desert Boilers agreed to special payment terms. Under that agreement, Desert Boilers could delay making payments until January 31, 2012, but had to make all repayments by April 30, 2012. ( Id. § 28.) Between July 15, 2011 and November 8, 2011, as the goods became available for shipment, Wilo invoiced Desert Boilers at its Las Vegas address. (Compl. Exh. I.) Desert Boilers's most recent order was made on February 16, 2012, and invoiced by Wilo on March 1, 2012. (Compl. § 30.)

Wilo asserts that, to date, Desert Boilers owes $453, 809.57 for goods that it has received from Wilo. ( Id. § 34.) Wilo has made multiple demands for payment to Desert Boilers, but Desert Boilers has refused to pay. On April 2, 2012, Harold A. Jacobsen, identified as the Chief Financial Officer for West Coast Energy Products, LLC, sent a letter to Wilo, addressed to Stefan Bline, at Wilo's Rosemont, Illinois address. In that letter, Jacobsen stated that Desert Boilers did not enter into an agreement with Wilo but, rather, that "West Coast Energy" entered into the agreement with Wilo and that any product purchased by West Coast Energy was purchased pursuant to a Representative Agreement. (Compl. Exh. K.) Jacobsen used the identical Las Vegas address (305 West St. Louis Avenue, Las Vegas, Nevada) as Desert Boilers used on its credit and partner application with Wilo. ( Id. ) That same Las Vegas address used by Jacobsen also appears on Desert Boilers's letterhead, as well as the invoices sent to Desert Boilers by Wilo.


Desert Boilers moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2), alleging lack of personal jurisdiction. Fed.R.Civ.P. 12(b)(2). When a defendant moves for dismissal under Rule 12(b)(2), the plaintiff bears the burden of establishing personal jurisdiction. Citadel Group, Ltd. v. Wash. Reg'l Med. Ctr., 536 F.3d 757, 761 (7th Cir. 2008). When no evidentiary hearing is held, as is the case here, the plaintiff must only make a prima facie case of personal jurisdiction based on the submission of written materials. Purdue Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003). Furthermore, the ...

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